Executed October 14, 2008 06:30 p.m. CDT by Lethal Injection in Texas
26th murderer executed in U.S. in 2008
1125th murderer executed in U.S. since 1976
10th murderer executed in Texas in 2008
415th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Alvin Andrew Kelly
W / M / 33 - 57
|Jerry Glenn Morgan
W / M / 30
Brenda Gail Morgan
W / F / 25
Devin Glenn Morgan
W / M / 22 months
In the six years between the triple homicide and his trial, Kelly had several felony convictions which resulted in prison time, including Burglary and Delivery of a controlled substance. In 1990, Kelly pleaded guilty to the murder of his roommate, John Ford, and was sentenced to 30 years in prison. He was serving that sentence when he was charged with capital murder for the Morgan killings. His accomplice in the killings, Ronnie Lee Wilson, was convicted of murder and sentenced to 66 years in prison.
Kelly v. Cockrell, 72 Fed.Appx. 67 (5th Cir. 2003) (Habeas).
"I'm getting communion. I don't want no worldly food. I filled out the paperwork, and I'm going to have the Lord's Supper for my last meal. I'm fasting from Sunday to Tuesday, so when I go, I'll be purified."
"I offer my sorrow, and my heart goes out to y'all," Kelly said in his last statement to the members of the Morgan family who attended his execution. "I know you believe that you're going to have closure tonight. As I stand before God today, the true Judge, I had nothing to do with the death of your family." Kelly then asked for forgiveness for Ford's murder "because I do stand guilty for my involvement for that." Kelly also thanked his family, his friends, and God. As the lethal injection was administered, he sang, "Thank You, Lord Jesus, for coming into my life. You walked with me through prison. Thank You, Lord Jesus, because You died for me. Thank You, Lord Jesus, for remembering me."
Texas Department of Criminal Justice - Executed Offenders (Alvin Kelly)Inmate: Kelly, Alvin Andrew
Prior Prison Record: TDCJ-ID #405263, five-year sentence from Franklin County for Burglary, paroled 03/24/86; TDCJ #472663, five years concurrent for Delivery of a Controlled Substance, paroled 06/17/88; TDCJ #558386, 30 years concurrent for Murder with a Deadly Weapon.
Co-Defendants: Ronnie Lee Wilson.
Texas Execution Information Center by David Carson.
Alvin Andrew Kelly, 57, was executed by lethal injection on 14 October 2008 in Huntsville, Texas for the murder and robbery of a couple and their baby in their home.
On the morning of 1 May 1984, the bodies of Jerry Morgan, 30, his wife, Brenda, 25, and their 22-month-old son, Devin, were found in their Gregg County home by family members. Each victim had died from gunshot wounds. Jerry Morgan was shot in the chest several times. Brenda Morgan was shot once in the back. Devin was shot once in the face. In addition, their car had been stolen, along with several items from inside the home, including a television, videocassette recorder, and several guns.
The murders remained unsolved for six years. In 1990, Chris Vickery called the Gregg County Sheriff's Office and told them that his former wife, Cynthia Kelly, had information for them. After authorities contacted Cynthia in Michigan, they obtained an indictment charging her ex-husband, Alvin, in the 1984 triple homicide.
At Kelly's trial, his younger brother, Steven, testified that he and Alvin were in the business of selling drugs. Their source of drugs was a man named Walter Shannon. Several days before the murders, Alvin, then 33, and Steven Kelly drove together with Ron Wilson, 27, another drug dealer, to the victims' home. Steven testified that when they arrived, Alvin ordered him to stay in the vehicle. Disregarding that instruction, Steven walked around to the back of the house because he heard an argument. He observed Alvin pointing a gun at a man and threatening to kill him. Alvin then noticed Steven watching and angrily ordered him back to the vehicle. As Steven returned to the vehicle, he heard Wilson arguing with a woman inside the home. Alvin and Wilson then returned to the vehicle. As the three men drove away, Wilson said to Alvin, "I told you not to bring him [Steven] because ... we're supposed to take care of some business and ... we didn't take care of it." Alvin responded, "We can always come back later and take care of it ... there's no problem there."
Steven Kelly further testified that on the night of 30 April, Alvin, Cynthia, and Wilson arrived at his house. Appearing nervous and hurried, Alvin said he was in serious trouble and needed some money. Alvin said he had killed the family Steven had seen him threaten, and the child was "involved". Alvin then handed Steven a pistol and asked him for "five hundred dollars to get out of town." Steven gave Alvin the $500, and Alvin left with Cynthia and Wilson.
Cynthia Kelly testified that on the evening of 30 April, Alvin, Wilson, and she drove to the victims' home. She testified that she frequently accompanied Alvin on his drug deals, knew that he carried a gun, and that she also carried a gun to "watch his back", but she was unaware of both the destination and the purpose of this trip. Upon their arrival, Alvin ordered her to remain in the vehicle. While waiting for the men, Cynthia heard gunfire and a baby crying. She then entered the home and saw that Alvin had a woman pinned up against the wall and that a baby was crying. Cynthia picked up the child and shielded him from the sign of his mother struggling with Alvin. Alvin then shot the woman in the back of the neck and dragged her to a bedroom. Cynthia put the baby in a chair and followed Alvin into the bedroom. Alvin placed the woman next to her husband, who had already been shot. The woman begged her for help. She responded by placing a towel under her head. She then returned to the living room and picked up the baby to comfort him. Alvin took the crying infant from her and shot him in the head. He then aimed his gun at Cynthia and ordered her to return to the vehicle. As she exited the home, she heard another gunshot. Cynthia testified that Alvin shot the mother and the infant with the same .22-caliber pistol.
Continuing her testimony, Cynthia said that Alvin and Wilson exited the home with several items including guns, a coffee maker, and some decorative brass butterflies. The two men drove away in the victims' car, while she followed in their vehicle. After wiping the victims' car for fingerprints, they abandoned it in a parking lot in Tyler. Later, while driving, Alvin and Wilson discussed needing money, and the three ended up at Steven Kelly's home.
The state introduced physical evidence corroborating Cynthia's testimony, including the location and position of the bodies in the home, the location of Brenda and Devin Morgan's gunshot wounds, the caliber of the murder weapon, the towel under Brenda's head, and the location of the victims' abandoned car. The state also introduced evidence that Jerry and Brenda Morgan were city marshal reserve officers. The prosecution argued that Alvin's motive for killing the Morgans was that they were providing information to law enforcement.
Cynthia's sister, Violet Brownfield, testified that Alvin Kelly had bragged about killing a family, including a child.
Danny Moore, an acquaintance of Kelly's, testified that Kelly told him he collected debts for a Walter Shannon. He described a job he had done by telling him, "that man, his old lady, and the kid ... they're not coming back." Moore testified that Kelly also said, "There's going to be a lot more people end up like this if they don't pay up."
In his defense, Kelly's lawyers claimed that the victims were killed by an unidentified black assailant. This theory was based on the evidence that two black males were apprehended for stealing a pick-up truck from a parking lot near the victims' abandoned car, and that a necklace recovered from that truck was initially identified as belonging to Brenda Morgan. Additionally, hairs with Negroid characteristics were found in vacuum sweepings from the Morgans' home. The defense claimed that Cynthia Kelly had a relationship with the actual assailant and fabricated her testimony to protect him and/or to spite Alvin.
The state responded to Kelly's defense by introducing an expert in trace evidence, who testified that the hairs with Negroid characteristics found in the Morgan house did not match either of the two black men who were apprehended for stealing the truck, and furthermore that those hairs could have come from a Caucasian person.
At the time of the triple homicide, Kelly had an arrest record for unlawfully carrying a weapon. In the six years between the triple homicide and his trial, he had several felony convictions which resulted in prison time. In September 1985, he was sentenced to 5 years for burglary. He was paroled in March 1986. In February 1988, he was again sentenced to 5 years, this time for delivery of a controlled substance. He was paroled 4 months later, in June. (At the time, early release was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.) In August 1990, Kelly pleaded guilty to the murder of his roommate, John Ford, and was sentenced to 30 years in prison. He was serving that sentence when he was charged with capital murder for the Morgan killings.
A jury convicted Kelly of the capital murder of Devin Morgan in October 1991 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 1996.
Ronnie Lee Wilson was convicted of murder and sentenced to 66 years in prison. He remains in custody as of this writing.
Kelly maintained his innocence throughout his appeals. At an evidentiary hearing in U.S. district court in February 2007, Kelly testified that he did not kill the Morgans, and had never met them. He admitted that he had been a drug dealer, but claimed that on the night the Morgans were killed, he was changing the engine in a truck with a man named Johnny Waller. He claimed that Cynthia and Steven Kelly and others gave false testimony at his trial.
In that same hearing, Kelly's sister, Nancy Brown, testified that she and her husband, Conley, visited Cynthia in Georgia for several hours, and that in that meeting, Cynthia recanted her trial testimony, telling her that "between you, me, and God," Alvin Kelly did not kill Devin Morgan. Conley Brown testified that Cynthia told him and his wife together that Kelly did not murder Devin. Cynthia testified that she did meet with the Browns in Georgia, but made no such statement.
Cynthia's sister, Beverly Frank, testified by deposition that Cynthia had once stated that she killed Jerry Morgan. Frank testified that she initially believed Cynthia's claim, but later decided Cynthia was only trying to scare her because she was trying to stop Cynthia's drug use. Frank testified that Cynthia was incapable of killing anyone.
The district court found that Cynthia's testimony was more credible and better supported by the entire record than the Browns, and noted that even the Browns disagreed as to who was present when Cynthia allegedly recanted her trial testimony. The court ruled that Cynthia did not recant her testimony, and denied Alvin Kelly's appeal. The U.S. Fifth Circuit Court of Appeals affirmed the district court's ruling in April 2008. All of Kelly's subsequent appeals in state and federal court were denied.
"I'm tired of being here," Kelly told a reporter in an interview from death row in Livingston the week before his execution. "This is not life." Even though he still denied murdering the Morgans, Kelly said that he was looking forward to his execution date. "I don't want a stay ... It's time for me to go home. I'm ready. I embrace it." Kelly said that he would not cause any problems with prison officials taking him to the death chamber in Huntsville "unless they're going to bring me back".
"This is not an execution. This is a graduation day," Kelly said in another interview, which was videotaped and posted on the internet. "To live is for Christ; to die is gain," he continued, quoting from the New Testament book of Philippians. "I'm going home with peace, and joy, and a song on my lips, you know what I'm saying? I'm so ready to go."
Kelly described the murder of John Ford in a 2002 interview. "Actually, it wasn't supposed to be a murder," he explained. Kelly said Ford owed him some drugs and money. He intended to drive Ford out to the country and rob him of his money, drugs, and car, and leave him on the side of the road. "That way, he would have plenty of time to think about what he owed me and everything. I'm not proud of that - it's stupid, but that was the plan." He said that the plan went wrong when a gun Cynthia was holding on Ford went off - whether accidentally or deliberately, he did not know. Kelly said, "I took the gun away from her, and I'm gonna be honest with you, I was scared at the time. I was trying to act cool, but I took the gun because I thought she was going to shoot me too. We are all strung out on drugs, and so, I took the gun, and I emptied the gun in John T. Ford. I shot him about five times, emptying the gun so it wouldn't have anymore bullets in it."
Kelly said that he collected and destroyed the evidence at the scene, including setting Ford's vehicle on fire. Because of this, Gregg County investigators did not have the evidence to convict him. However, in 1987 while in jail on an unrelated charge, he became a Christian after a visit from a minister. "I wanted to clear my conscience and everything in my life," Kelly said, "so in 1990, I pled guilty to murdering John T. Ford."
Kelly explained that this guilty plea resulted in him being charged for killing the Morgans also. He said he had originally been cleared of suspicion in that case by the lead investigator, Henry Mize, and the case was eventually put away unsolved. When Mize died of a stroke, however, the cold case was reopened. Kelly said that when he pleaded guilty to Ford's murder, prosecutors were going to bring murder charges against his wife as well, but she struck a deal with them: testify that Kelly was at the scene of the Morgan killings in exchange for immunity from prosecution for Ford's murder.
Kelly said he turned down several plea offers for a life sentence in the Morgan case because accepting the offers would have forced him to lie. "If I was guilty, I would plead guilty," he said. "But I can't stand before God on a lie."
"I offer my sorrow, and my heart goes out to y'all," Kelly said in his last statement to the members of the Morgan family who attended his execution. "I know you believe that you're going to have closure tonight. As I stand before God today, the true Judge, I had nothing to do with the death of your family." Kelly then asked for forgiveness for Ford's murder "because I do stand guilty for my involvement for that." Kelly also thanked his family, his friends, and God. As the lethal injection was administered, he sang, "Thank You, Lord Jesus, for coming into my life. You walked with me through prison. Thank You, Lord Jesus, because You died for me. Thank You, Lord Jesus, for remembering me." He then lost consciousness. He was pronounced dead at 6:30 p.m.
Jerry Morgan's niece, Lori Kubecka, witnessed the execution. Afterward, she told a reporter that she and the other family members knew "without a shadow of a doubt" that Kelly was guilty of the murders. She said Kelly's last words "made me ill." "None of us came for closure," Kubecka said. "We were there to speak and give voices to our family who did not have voices anymore."
Dallas Morning News
"East Texas man executed in child's death." (Associated Press Tuesday, October 14, 2008)
HUNTSVILLE, Texas – A former East Texas truck repair shop owner was executed Tuesday evening for fatally shooting a 22-month-old boy in a spree that also killed the child's parents.
Alvin Kelly thanked God, expressed love to friends and relatives and denied committing the murder that led to his execution. "I pray this gives you some peace," Kelly said from the death chamber gurney, looking at four relatives of the slain family. "I know you believe that you're going to have closure tonight. As I stand before God today, the true judge, I had nothing to do with the death of your family."
Alvin Kelly Kelly, 57, said he would ask God to not hold that against them. At the same time, he acknowledged killing another man for whom he was serving time when he was charged in the death of the 22-month-old, who died in 1984 in Gregg County, about 100 miles east of Dallas.
As the drugs were administered, he began singing a hymn praising God for coming into his life. "I thank you Lord Jesus for remembering me ... ," he sang as the drugs took effect and he slipped into unconsciousness. Twelve minutes later, at 6:30 p.m. CDT he was pronounced dead.
Kelly was the 10th Texas prisoner executed this year in the nation's busiest capital punishment state. He's among a dozen condemned inmates scheduled to die over the next six weeks. Another lethal injection is set for Thursday.
The U.S. Supreme Court last week refused to review his appeal. His lawyer returned to the high court with another appeal, asking for a reprieve while the justices examine a Tennessee case about whether poor death row inmates seeking clemency from state officials have a right to taxpayer-paid attorneys. About two hours before his scheduled execution, the justices turned down the appeal. Kelly, in an interview last week outside death row, said he didn't want a reprieve and looked forward to "go home to God." "That's what this is all about," he said. "I have friends and family who are sad. But I am happy. I'm not going to die. I have eternal life."
Kelly already was serving a 30-year prison term for murder when he was convicted of killing Devin Morgan, the 22-month-old son of Jerry and Brenda Morgan. Relatives discovered the bodies at their home in Spring Hill, a few miles northwest of Longview. Several items also had been taken, including a car, at least five guns and some television and stereo equipment.
The murders went unsolved for six years until a man in Michigan told authorities that his former wife, who also had been married to Kelly, had information about the case. Prosecutors said his ex-wife never felt she could come forward because she feared Kelly, who turned to drug dealing and manufacturing after his truck repair business cratered because of his drug addiction. By then, Kelly said he had found religion in the Gregg County Jail, where he was being held on a drug charge and then was implicated in the aggravated sexual assault of two fellow inmates. He turned down several plea deals to confess to the three slayings, saying that accepting the offers would force him to lie. "If I was guilty, I would plead guilty," he said from death row. "But I can't stand before God on a lie."
He also denied the possibility he was so strung out on methamphetamines at the time of the shootings that he couldn't recall them. "If I did it, I'd remember," he said. "If I did it, I'd admit to it." And while acknowledging he once viewed himself as a gangster, he insisted prosecutors "wanted to make me out to be some John Dillinger."
Lori Kubecka, who was 10 when her aunt, uncle and nephew were killed, represented her family witnessing Kelly's execution. "When it comes to what he did to our family, I think he deserves it," she told the Longview News-Journal. "But it's been so long. He has sat behind bars for so long now."
At Kelly's trial, prosecutors presented evidence that showed Jerry and Brenda Morgan had been city marshal reserve officers, and Kelly's motive was that they were providing information about him to authorities. He said with his previous murder conviction, plus convictions for burglary, weapons possession, controlled substance delivery and possession and aggravated sexual assault, "I didn't stand a chance."
"I still love Texas," he said. "I love bluebonnets. Texas didn't put me here. I put me here, by my lifestyle. I'm not pious. I'm not holy. I'm an old sinner."
"Convicted E. Texas child killer executed; Former repairman maintains his innocence," by Michael Graczyk. (Oct. 14, 2008, 10:49PM)
HUNTSVILLE, Texas — A former East Texas truck repair shop owner was executed Tuesday evening for fatally shooting a 22-month-old boy in a spree that also killed the child's parents.
Alvin Kelly thanked God, expressed love to friends and relatives and denied committing the murder that led to his execution. "I pray this gives you some peace," Kelly said from the death chamber gurney, looking at four relatives of the slain family. "I know you believe that you're going to have closure tonight. As I stand before God today, the true judge, I had nothing to do with the death of your family."
Kelly, 57, said he would ask God to not hold that against them. At the same time, he acknowledged killing another man for whom he was serving time when he was charged in the death of the 22-month-old, who died in 1984 in Gregg County, about 100 miles east of Dallas.
As the drugs were administered, he began singing a hymn praising God for coming into his life. "I thank you Lord Jesus for remembering me," he sang as the drugs took effect and he slipped into unconsciousness. Twelve minutes later, at 6:30 p.m., he was pronounced dead.
Kelly was the 10th Texas prisoner executed this year in the nation's busiest capital punishment state. He's among a dozen condemned inmates scheduled to die over the next six weeks. Another lethal injection is set for Thursday.
The U.S. Supreme Court last week refused to review his appeal. His lawyer returned to the high court with another appeal, asking for a reprieve while the justices examine a Tennessee case about whether poor death row inmates seeking clemency from state officials have a right to taxpayer-paid attorneys. About two hours before his scheduled execution time, the justices rejected the appeal.
Kelly, in an interview last week outside death row, said he didn't want a reprieve and looked forward to going "home to God." Kelly was serving a 30-year prison term for murder when he was convicted of killing Devin Morgan, the 22-month-old son of Jerry and Brenda Morgan. Relatives discovered the bodies at their home in Spring Hill, a few miles northwest of Longview. Several items also had been taken, including a car, at least five guns and some television and stereo equipment.
The murders went unsolved for six years until a man in Michigan told authorities that his former wife, who also had been married to Kelly, had information about the case. Prosecutors said his ex-wife never felt she could come forward because she feared Kelly, who turned to drug dealing and manufacturing after his truck repair business cratered because of his drug addiction.
By then, Kelly said he had found religion in the Gregg County Jail, where he was being held on a drug charge and then was implicated in the aggravated sexual assault of two fellow inmates. He turned down several plea deals to confess to the three slayings, saying that accepting the offers would force him to lie. "If I was guilty, I would plead guilty," he said. "But I can't stand before God on a lie."
Kelly Kubecka, who was 10 when her aunt, uncle and nephew were killed, represented her family witnessing Kelly's execution. "When it comes to what he did to our family, I think he deserves it," she told the Longview News-Journal. "But it's been so long. He has sat behind bars for so long now."
Scheduled to die on Thursday is Kevin Watts, 27, convicted of the execution-style shootings of three people during a robbery at a San Antonio restaurant in 2002.
On the morning of May 1, 1984, in Gregg County, Texas, the bodies of Jerry Morgan, his wife Brenda Morgan, and their twenty-two month old son Devin Morgan were discovered in their home by other family members. Each victim died of gunshot wounds. Various items were missing from the victims’ home, including a 1977 Pontiac Catalina, a .22 caliber revolver, a .380 semi-automatic pistol, a 7-millimeter rifle, a Remington 870 pump action shotgun, a .38 caliber derringer, a television set, a video recorder, a stereo, decorative brass butterflies, and a coffee maker.
These murders went unsolved for six years. In 1990, a man named Chris Vickery called the Gregg County Sheriff’s Office and indicated that Cynthia May Kelly Cummings, Alvin Kelly’s former wife, had information for the authorities. At that time, Cynthia lived in Michigan, and Kelly was serving a 30-year sentence in Texas for the murder of John Ford. Kelly pleaded guilty to the unrelated murder of John Ford which occurred after the Morgan murders. The authorities contacted Cynthia, and ultimately obtained an indictment charging Kelly with the capital murder of Devin during the course of the robbery of Jerry.
At trial, Steven Kelly, Alvin Kelly’s younger brother, testified that Kelly and he were in the business of selling drugs. Kelly’s source of drugs was Walter Shannon. Several days prior to the murders, Steven drove with Kelly and Ron Wilson, a fellow drug trafficker, to the Morgans’ home. Prior to exiting the vehicle, Kelly instructed Steven to remain in the vehicle. Disregarding that instruction, Steven walked around to the back of the house because he heard an argument. Steven observed Kelly pointing a gun at Jerry and threatening, “I want you to know that I can kill you at any time.” Kelly noticed Steven watching and angrily ordered him back to the vehicle. As Steven returned to the vehicle, he heard Wilson arguing with a woman inside the home. Kelly and Wilson then returned to the vehicle. As the three men drove away, Wilson, obviously upset, said to Kelly, “I told you not to bring him because . . . we’re supposed to take care of some business, and . . . we didn’t take care of it, . . . we’re supposed to prove a point, and now, that they’re going to be upset with us.” Kelly responded, “We can always come back later and take care of it . . . there’s no problem there.”
Steven further testified that a few days later on the night of April 30, 1984 (the night of the Morgan murders), Kelly, Wilson, and Cynthia arrived at his house after he and his wife went to bed. Appearing very nervous and in a hurry, Kelly said he was in serious trouble and needed money. Kelly confessed that he had killed the family Steven had seen him threaten, and the child was “involved.” Kelly then opened a briefcase, handed Steven a pistol, and asked for “five hundred dollars to get out of town.” Kelly was wearing a pistol when he entered Steven’s house but he did not give that gun to Steven. Steven gave Kelly five hundred dollars and Kelly left with Cynthia and Wilson.
Cynthia testified that she met Alvin Kelly sometime in 1982 or 1983, and that they began living together in Tyler, Texas. Cynthia and Kelly were married in 1985, after the Morgan murders. Cynthia thereafter became addicted to methamphetamine. She frequently accompanied Kelly when he sold drugs. Kelly carried a firearm and had Cynthia carry a pistol to “watch his back.” On the evening of April 30, 1984, after drinking beer and injecting methamphetamine, Cynthia, Kelly, and Wilson drove to the victims’ home. Upon arrival, Kelly ordered Cynthia to remain in the vehicle. Cynthia had been unaware of both the destination and the purpose of this trip. While waiting for the men, Cynthia heard gunfire and a baby crying. She entered the home and saw that Kelly had a woman, Brenda Morgan, pinned against the wall and that a baby, Devin Morgan, was crying. Cynthia picked up the child and shielded him from the sight of his mother struggling with Kelly. Kelly shot Brenda in the back of the neck and dragged her to a bedroom. Cynthia put the baby in a chair and followed Kelly to the bedroom. Brenda’s husband Jerry had already been shot, and Kelly placed Brenda next to him. Brenda begged Cynthia for help, and Cynthia responded by retrieving a towel and placing it under Brenda’s head. Cynthia returned to the living room and attempted to comfort the crying baby. Kelly grabbed the crying infant from Cynthia and shot him in the head. Kelly aimed his gun at Cynthia and ordered her to return to the vehicle. As she left the house, Cynthia heard Kelly again fire a shot. Cynthia testified that Kelly used the same gun, a .22 caliber pistol, to shoot both Brenda and the baby. Kelly and Wilson took several items from the victims’ home, including guns, decorative brass butterflies, and a coffee maker.
Kelly, with Wilson as a passenger, drove the victims’ car and ordered Cynthia to follow him in their vehicle. Pursuant to Kelly’s instructions, Wilson and Cynthia assisted Kelly in wiping the victims’ car to destroy any fingerprints evidence. They abandoned the car in a hospital parking lot in Tyler, Texas. Subsequently, while driving, Kelly and Wilson discussed needing money, and the three “ended up at” Steven’s home. Cynthia testified that her memory became “blurry” after that point. She did remember, however, that Kelly and Steven retreated to the pool room to have a conversation. She did not hear the conversation.
The State introduced evidence corroborating several points of Cynthia’s testimony, including the location of Brenda’s and Devin’s gunshot wounds, the caliber of the murder weapon, the location and position of the bodies in the home, the towel that was found under Brenda’s head, and the location of the victims’ car, devoid of fingerprints. The State also introduced evidence that Jerry and Brenda had been City Marshal Reserve Officers. The state argued that Kelly killed the Morgans because they were providing information to law enforcement. Additionally, Cynthia’s sister Violet Brownfield testified that Kelly “bragged” about killing a family, including a child.
Danny Moore, who met Kelly through Moore’s cousin, testified that Kelly said that he collected “debts at a forty-sixty split” for Walter Shannon. Moore further testified that Kelly said he had “taken care of that job . . . and needed to go see the man about some money.” Kelly went on to say, “that man, his old lady, and the kid . . . they’re not coming back.” Kelly became angry and said, “I warned them, they had a chance. They wouldn’t do nothing.” Kelly warned, “There’s going to be a lot more people end up like this if they don’t pay up.”
Kelly’s defense theory was that the victims were killed by an unidentified black assailant. He relied on the following evidence: (1) hairs with Negroid characteristics were found in vacuum sweepings from the Morgans’ home; (2) a pick-up truck was stolen from a parking lot near the victims’ abandoned car; (3) two black males were apprehended for the theft of that truck; and (4) a necklace was recovered from the black males that two of the victims’ family members initially identified as belonging to Brenda. Kelly’s theory was that Cynthia had a relationship with a black man and that she fabricated her story to protect that man or to attempt revenge against Kelly or both.
In October of 1991, a Gregg County jury found Kelly guilty of capital murder. At the punishment phase of the trial, the state introduced evidence that Kelly had a bad reputation for violence and a record of criminal convictions, including burglary, unlawful weapon possession, controlled substance delivery and possession, aggravated sexual assault, and murder. The jury affirmatively answered the special issues set forth in the Texas Code of Criminal Procedure. Accordingly, the trial court sentenced Kelly to death.
UPDATE: A former East Texas truck repair shop owner was executed Tuesday evening for fatally shooting a 22-month-old boy in a spree that also killed the child's parents. Alvin Kelly thanked God, expressed love to friends and relatives and denied committing the murder that led to his execution. "I pray this gives you some peace," Kelly said from the death chamber gurney, looking at four relatives of the slain family. "I know you believe that you're going to have closure tonight. As I stand before God today, the true judge, I had nothing to do with the death of your family." Kelly, 57, said he would ask God to not hold that against them. At the same time, he acknowledged killing another man for whom he was serving time when he was charged in the death of the 22-month-old, who died in 1984 in Gregg County, about 100 miles east of Dallas. As the drugs were administered, he began singing a hymn praising God for coming into his life. "I thank you Lord Jesus for remembering me ... ," he sang as the drugs took effect and he slipped into unconsciousness. Twelve minutes later, at 6:30 p.m. CDT he was pronounced dead. Lori Kubecka, who was 10 when her aunt, uncle and nephew were killed, represented her family witnessing Kelly's execution. "When it comes to what he did to our family, I think he deserves it," she told the Longview News-Journal. "But it's been so long. He has sat behind bars for so long now."
Longview News Journal
"Man convicted in 1984 shooting death maintains innocence ," by Wes Ferguson. (Sunday, October 12, 2008)
You didn't mess with Big Al in the 1980s. Strung out on methamphetamine, Alvin Andrew Kelly collected debts for a drug operation in Kilgore. In 1984, he shot his own roommate, set the man's truck on fire and dumped the body on a road near Lake Cherokee.
He sold drugs. He stole. He sexually assaulted two of his fellow inmates in the Gregg County Jail. "I was a bad guy," said Kelly, who's scheduled to be executed Tuesday. "I thought I was a gangster, you know what I'm saying?"
Kelly said he is ready to die for the crimes he committed, but he swears he did not commit the crime that put him on death row — the 1984 shooting death of 22-month-old Devin Morgan. The toddler's body was found along with the bodies of his parents at their home in the Spring Hill community.
"The travesty of this case is not my death, because when I die I know where I'm going," said Kelly, who says he became a Christian in 1987. "The travesty is the victims' family not getting the truth, because I'm not the person that's responsible for this family's death. All the fighting I have done in this case is not for me. I am a child of God. He can do with me whatever he wants to." Prosecutors and investigators have declined to comment until Kelly has been executed. His attorney said he intends to ask the governor for a 30-day reprieve.
No physical evidence
On Monday, the U.S. Supreme Court declined to review the case. The decision has all but ended an appeals process that began soon after Kelly's conviction in 1991, when a Gregg County jury reached a guilty verdict based largely on the testimony of Kelly's ex-wife, Cynthia May Cummings.
Cummings testified she watched her husband and his friend Ronnie Lee Wilson — who also was convicted — kill the Morgan family. She described details of the crime scene that prosecutors said only an eyewitness would know. Kelly's brother also testified. He said he watched Kelly threaten to kill Jerry Morgan at the Morgans' home a few days before the murders. He also said Kelly came to his house the night of the deaths, admitted to the killings and asked for money to flee town.
However, no physical evidence has been presented that ties Kelly to the murders. Kelly maintains he first saw the Morgans when his defense attorney showed him a family portrait shortly before his trial. "There's no way I could possibly go in this house, kill three people and drag their bodies to the end of (a bedroom) and not leave some physical evidence — a hair, skin, blood or something," he said. "It's not there because I wasn't there."
After he dies, Kelly said, he believes the truth will be revealed, but he said officials won't care. "They'll go, 'Oh, we went on the evidence we had, and so what? He's an ex-drug-dealing confessed murderer, and we did society a good deal by executing him.' But that's not right," he said. "I have been offered a life sentence three times in this case. I can't take a life sentence. I would have to lie to myself, and I couldn't do that."
Kelly said he only is responsible for the death of his roommate, John T. Ford, in a dispute over money and drugs 35 days after the Morgan murders. In a recent interview on death row, he claimed Cummings shot Ford first, and he merely emptied rounds into Ford's dead body.
He also speculated that Ford and Cummings might have killed the Morgans. Cummings has never been charged or indicted on those accusations, and attempts to find her and her relatives were unsuccessful.
17 years of appeals
Kelly's attorneys have argued that Cummings and Kelly's brother agreed to testify in exchange for immunity in other crimes, tarnishing their credibility. There is no documentation about a formal agreement, though, and prosecutors have said there was no deal. Appeals attorneys also have said a heart-shaped necklace casts the state's entire case in doubt.
A few days after their deaths, police found the Morgans' car on a street near a Tyler hospital. A few blocks away, a pickup had been stolen the night of the killings. The pickup was found in Grand Prairie, and the two men in the vehicle were arrested, according to appeals attorneys' briefs. Inside the truck, officers found a heart-shaped necklace.
Investigators presented the necklace to three of Brenda Morgans' family members, who "immediately" recognized it as hers, according to a brief filed by Kelly's attorney, T. Scott Smith of Sherman. "Years later, a few weeks before trial — when it became apparent that the man who stood accused might go free if the necklace found in the truck with the two black males was in fact Brenda's — these witnesses changed their mind and decided that this necklace did not belong to Brenda Morgan," he wrote. "For unknown reasons, the police excluded the two black males as suspects in the Morgan murders."
Contacted Friday, Brenda Morgan's mother, Betty McGrede, said her daughter owned a heart-shaped necklace, but she could not remember whether investigators showed it to her. Another attorney, Mark Breding of Quitman, also says he found holes in the state's case against Kelly.
Representing Kelly during his state appeals, Breding took statements from Cummings' two sisters that cast doubt on Cummings' testimony. Shortly thereafter, investigators questioned the women, and they recanted their statements or said they were taking medication and delusional when they spoke to Breding. Breding said he does not buy that. "For them to completely gut their affidavits, it just floored me. Both of them," he said. "I'm just curious what was said to those ladies that made them completely change their story."
Kelly said he forgives the people who testified against him, as well as the state of Texas, Gregg County and the jurors who found him guilty. Days away from his scheduled death, Kelly said he is ready, and he has asked for a special meal before he dies.
"I'm getting communion," he said. "I don't want no worldly food. I filled out the paperwork, and I'm going to have the Lord's Supper for my last meal. "I'm fasting from Sunday to Tuesday, so when I go, I'll be purified."
* * *
Niece keeps promise to watch execution
Jim Morgan didn't live to see the execution of the man who, on a spring night in 1984, craddled Morgan's toddler grandson in one hand, held him at arm's length and shot the child in the face. Morgan died a year and a half ago. Before his death, his granddaughter, Lori Kubecka, made a promise to him that she intends to keep Tuesday. "He said if he couldn't be there, he sure hoped I would step in," she said. Kubecka said she is the only member of her family who plans to witness the scheduled Tuesday execution of Alvin Andrew Kelly.
After 17 years of appeals, Kelly is set to die for the murder of 22-month-old Devin Morgan, whose body was found along with the bodies of his parents, Jerry and Brenda Morgan, at their home in the Spring Hill area of Gregg County. Kelly's ex-wife and his brother testified he killed the family, but Kelly says he didn't know the Morgans and maintains he did not kill them. "I pray to God I can go through with it," Kubecka said of witnessing Kelly's lethal injection. "I hope I can actually go in, but I don't know if I can. I'm going to be there, and I'm going to try."
The Morgans' remaining family members have mixed emotions about the execution, Kubecka said. She said she could not convince her mother, Brenda Morgan's sister, to join her Tuesday. "I just have this huge knot in my stomach," Kubecka said. "I don't know if it's right or wrong. I don't think it's right to take another person's life. Even though this happened to us, I'm not really for the death penalty.
"But I think it depends on the act, and for this particular act, when it comes to a baby, he shot Devin in the face. When it comes to what he did to our family, I think he deserves it. But it's been so long. He has sat behind bars for so long now, I can't really say. I don't know. "I feel for his family. They're going to see now what we've gone through in the past 24 years."
Kubecka, who lives in Corpus Christi, was 10 at the time of the killings. She lived a few streets away from the Morgans' home on Greggtex Road and said she saw them almost every day. She often helped her mother, Jerry Morgan's sister, baby-sit Devin. "For years, we didn't know who did it. I was terrified. To this day, I still cannot stay by myself overnight," she said. "Even though he's behind bars, you still have this thought in the back of your mind that if this man could do it, anyone could come into my home and kill my family. It definitely traumatized me. It was such a brutal, brutal murder."
A niece remembers the Morgan family
Jerry Morgan, 30: "Jerry was the kindest man. I call him a clown, because he cut up with everybody. ... He was just a fun-loving, very kindhearted person. He loved his family more than anything in this world. He loved his son."
Brenda Morgan, 25: "Brenda was my role model. They were so happy together. She loved her family, and she was a very devoted mom. She was beautiful, just a beautiful person inside and out."
Devin Morgan, 22 months: "Devin was an angel. I remember the butterfly kisses I used to get from him. He'd wrap his tiny little arms around my hand, and he'd just squeeze as hard as he could."
— Lori Kubecka, who was 10 years old when the Morgans were killed
* * *
Family is 'never forgotten,' mom and grandmother says
The "rocky horse" Betty McGrede built for her grandson still sits on the front porch of her country home near Hallsville. Devin Morgan was too small to ride it when he was killed in 1984.
Two days from now, 57-year-old Alvin Andrew Kelly is scheduled to die for the toddler's death. Devin would have been 26. "Nothing's ever going to bring my kids back," said McGrede, whose daughter and son-in-law, Brenda and Jerry Morgan, also were killed, "but (Kelly has) lived longer than he really deserved to live."
The case went unsolved for about five years, until Kelly's estranged wife implicated him in the deaths. "The first few years after they were killed, you lived in fear because you didn't know who they were, where they were, or why they did it," she said. "Chances are, we'll live the rest of our lives and never know why."
At Kelly's trial in 1991, witnesses said the killings might have been drug-related, but prosecutors presented no physical evidence of that. McGrede said she does not believe the drug claims. "Brenda would do good if you could get her to take aspirin for a headache," she said. "There's just no way. I know there were rumors, but I just don't believe they would have dealt with drugs in any way."
She said Devin had an older brother, Shane, who died of complications from cerebral palsy two months before the killings. Jerry and Brenda Morgan were still grieving when they were killed.
Today, the McGredes often talk about the Morgan family, especially around the holidays. "They're never forgotten," she said. "It'll always be there. It changes you forever." After losing her two grandsons, McGrede now has "a bunch of little girls," she said – three granddaughters and four great-granddaughters. "None of the grandkids were even born then," she said. "They just know by pictures."
* * *
Alvin Kelly's road to execution
April 30, 1984: A Gregg County family is shot to death in the Spring Hill community. The next morning, family members discover the bodies of Jerry, Brenda and 22-month-old Devin Morgan, arranged on the floor of Devin's bedroom.
June 5, 1984: A burning truck is found north of the Judson community. The body of the owner, John T. Ford, is located a few days later on a road near Lake Cherokee.
Sept. 5, 1985: A couple since 1982, Alvin Andrew Kelly and Cynthia May Cummings marry. By 1987, they have separated, and Cummings has move from East Texas to Michigan.
July 7, 1987: Kelly, who had been in the Gregg County Jail on a drug charge, is convicted of the aggravated sexual assault of two fellow inmates.
Nov. 20, 1989: A man in Michigan calls Gregg County investigators to say Cummings, his ex-wife, has information about Ford's and the Morgans' deaths. Cummings implicates her estranged husband, Alvin Kelly.
July 26, 1990: Kelly pleads guilty to Ford's murder and is sentenced to 30 years in prison. He denies killing the Morgan family.
Sept. 23, 1990: In a sworn statement, Cummings says she witnessed Kelly kill the Morgan family. She describes a towel she folded under Brenda Morgan's head and provides other details that prosecutors say only an eyewitness would know. She says another man, Ronnie Lee Wilson, helped with the killings.
Nov. 28, 1990: Kelly is indicted in the Morgans' deaths.
Oct. 24, 1991: After a weeklong trial, a Gregg County jury deliberates 73 minutes before convicting Kelly of the capital murder of Devin Morgan. A day later, the jury sentences Kelly to death. Kelly is never tried for the deaths of Jerry or Brenda Morgan. Kelly maintains he did not kill the family.
April 6, 1992: Wilson is found guilty of capital murder and is sentenced to 66 years in prison. Wilson has been eligible for parole since 1998, and is scheduled for release in 2013.
June 26, 1996: The first of almost 20 years of failed appeals is announced, with the Texas Court of Criminal Appeals affirming Kelly's sentence.
Aug. 15: Gregg County District Judge Alvin Khoury sets Kelly's execution date for Oct. 14.
Oct. 6: The U.S. Supreme Court declines to review the case.
Tuesday: Kelly is scheduled to be executed.
Canadian Coalition Against the Death Penalty
Alvin Kelly - Texas Death Row
Hymns by Alvin Kelly
Interview with Alvin Kelly - By The Kilgore News Herald
TRIAL BY FIRE
My name is Alvin Kelly, I am presently incarcerated on Texas Death Row at the Polunsky Unit in Livingston, Texas. We (Death Row) were moved over here to the then Terrell Unit since named Polunsky Unit in March 2000 from Ellis One Unit in Huntsville, Texas, where we had a work program, religious services, in-cell craft program, group exercise and in and outs each hour on the hour, just as population does. Of course we were not allowed to mingle with population inmates, we were kept in a Death Row society separated from all the others.
Since our move to the new Polunsky Unit we have been placed in isolation cells and denied all we have grown used to. I have been on DR now for over 10 years, 8 of those years I spent on the work program free of handcuffs and allowed all privileges as were available at that time.
Since coming here to the Polunsky Unit we are locked in our cells 23 hours a day. We are allowed out for one hour exercise plus a shower. The rest of the time we are in our cells. These are isolation cells 11 ft x 7 ft with a stainless steel sink and toilet, a bunk against the far wall and a small table built into the wall by the head of the bunk, all made of steel.
We are not allowed any work program at all, no TVs, no religious services, no craft program, and no group rec. Everything here is single man cells and single man rec (exercise). We are strip searched and handcuffed every time we leave our cell for any reason. Escorted by 2 officers, one holding on to your arm at all times, to any place we go, shower, rec, medical or visitation. Then placed in the cage at destination and uncuffed, all except medical. You are never uncuffed during medical exam at all for any reason.
I explain all of this to give you an idea of what a day on DR is like and the isolation cells add to the tension and atmosphere. I am a Christian and consider myself a strong and mature Christian. As I’ve said, I’ve been on the Row now for over 10 years and I have never been in any trouble and never had a disciplinary case of any kind for any reason. At Ellis Unit I was allowed Bible study on Friday nights and church service on Sunday. So I kept my life filled with doing God’s business and reading and studying His word. My perspective on most things is different than most because I align all I do to God’s law and His word. I try to live at peace with all men, including the authority over me here.
I learned a lot about myself after coming to the Polunsky Unit back in March 2000. A lot of it I didn’t like and was honestly very ugly. My speech changed, my attitude towards others changed, my temper got shorter and my whole world just seemed to be out of control. I still read by Bible daily, do a college Bible study course, and pray 3- times a day. But still I seem to be mad most of the time.
In December of 2001 the Unit instituted a new policy of our personal property could not exceed 2 bags. So this brought on a major shakedown which we were all locked down in our cells 24/7. During this shakedown I received my very first disciplinary case which was for having my old craft supplies that I was once allowed to purchase while at Ellis One. This consisted of my small stapler, staples, craft scissors, 1 oz glue bottle, craft razor blade, and some clear tape. All of which I’ve had for over 2 years of being here. I pleaded guilty to the charge because I was in possession of the items. However, a 10 year clean disciplinary record did not mean anything, so I was given 15 days cell restriction, then placed on Level 2 and moved to F-pod. F-pod is a disciplinary pod totally Level 2 and Level 3. Level 2 is property restriction, i.e. radio, fan typewriter, all electrical, no commissary except 10 dollars postage materials (stamps, pen, legal pads, envelopes etc.) every 2 weeks. Level 2 can also buy hygiene supplies once every 30 days, i.e. shampoo, toothpaste, deodorant. We are not allowed anything else from the unit commissary. We’re only allowed rec one hour a day Monday – Thursday, 4 days a week. On Friday, Saturday and Sunday we are locked down 24/7. We were not even allowed our thermal underwear this winter even when it was down to 30 degrees outside. We are only allowed 2 regular visits a month. Level 1 is allowed 1 visit per week each month.
Level 3 is not allowed any hygiene supplies at all, only postage every 2 weeks. So the atmosphere down here is filled with animosity. The people back here are denied anything beyond the meager necessities to survive in any sort of dignity or humanity. It is an evil and vile place. The atmosphere is filled with cussing, beating and banging and floods, fires, feces and urine being chunked on people, gas being sprayed in peoples’ cells or the day room where everyone has to breathe it in. Visitation being denied some just because they live on F-pod, and it just goes on and on.
I write this article to reflect what I as a Christian have learned in my stay back here at F-pod. I do not begrudge or belittle any man back here his stand or actions against this unfair and unjust disciplinary system. I myself have to answer to God first and then to man. I try to live my life, even back here, in obedience to God’s law and submissive to man’s. I’ve found it hard, cruel and at times almost unbearable. However, what I have learned is that God sometimes allows us to be placed in a situation or circumstances of our own making to allow us to face a deep seated sin in our lives so we can recognize it and confess it to Him, and grow in maturity and spirituality. Mine I came to know face to face was my anger. I am not proud of my actions upon first arriving on F-pod nor my response to the officials around me, as well as other inmates. However, as I was faced with all this and came to see the ugly anger buried deep within me, I began to cry out to God, Help me!
The first day I did this I must have went to God 20 times asking for His help to get past my anger. The next day maybe 15, then 10, then 5, and so on until even now I still get angry and believe me in this place its just a matter of time. But now as soon as I do, no matter what the circumstances, I go straight to God and I’m over it. I may not still be happy but I’m not out of control either, therefore I sin not. I take it to God, he calms my soul, forgives me, I therefore forgive the person I was angry with and God deals with the problem so its not a problem any more.
I still have a long way to go in my walk and I am trying every day to study and pray to come closer to Christ so I can be a witness in this darkness to all those who are lost so they too can come to know the hope and the joy of salvation by grace through faith in Jesus Christ.
Feb. 19 2002
Alvin Kelly would appreciate pen pals and mail. Please forward your mail to him directly at the following address:
Mr. Alvin Kelly , #999012
Polunsky Unit DR.
3872 FM 350 South
Livingston Texas 77351 USA
Lamp of Hope
An Innocent Man on Texas Death Row
Background: On April 30, 1984 in Longview Texas, Jerry and Brenda Morgan and their 18-month-old son, Devin, were murdered in their home. Jerry is shot 4 times, Brenda is shot once and Devin is shot twice. The motive for the murders was never determined. Though police and the DA's office apparently tried to link the killings to drug activities during the trials, the Morgans were, by all accounts, law-abiding, decent, hard-working average people with no connections to criminal activity. Nothing of any value was stolen from the house. The only missing items appear to be handguns and rifles from a gun case, some small electronics and housewares and a heart-shaped necklace of Brenda Morgan's. The Morgan's car was taken and found the next morning thirty miles away in Tyler, Texas. No murder weapon was found and no suspect fingerprints were found at the scene or in the car. The minimal forensic evidence recovered from the scene consisted of African-American hairs found on a towel under Brenda Morgan's head, assorted African-American hairs from vacuumings and some latent fingerprints (none of which could be connected to the suspects, including Wilson and Alvin and Cynthia Kelly). Unfortunately, DNA technology in the 1980's was relatively new and unsophisticated and no comparative testing or data bank comparison was done on the African American hairs from the scene. However, with the passage of the new DNA testing law in Texas, the test could be done now. No motive meant there were no readily identifiable suspects and the investigation into the murders quickly went cold.
In the winter of 1985, Roy Bean, a property crimes detective with the Longview Police Department arrested Cynthia Mae Kelly and her husband, Alvin Kelly, for outstanding warrants. Since the investigation into the Morgan murders was still active, all police personnel were asked to pursue information about the case with all suspects. Cynthia apparently volunteered information about her involvement in the murder of the Kellys' roommate, John Ford. During this interview with Bean, Cynthia also said she had information about the Morgan murders.
He turned this information over to the two Longview homicide detectives in charge of the Morgan investigation. Neither homicide detective talked to or interviewed Cynthia after receiving the arresting Bean's information. Cynthia continued to contact Bean at his office while she was in jail for outstanding warrants, asking if she could get an offer of immunity in the Ford case for information she claimed to have in the Morgan case. However , Bean did not have the authority to promise her immunity. These contacts continued and at no time did she mention Ronnie Lee Wilson. Bean also spoke with the first assistant district attorney shortly after Cynthia's arrest and told the ADA about Cynthia's knowledge of the Morgan murders, which also implicated Alvin. Though Bean said he does not know whether the ADA made a deal with Cynthia, he notes that shortly after he gave the information to the ADA, Cynthia was released from jail and went to stay with relatives in Michigan. Bean continued to receive calls from Cynthia and her boyfriend about the immunity issue. The conversations occurred through 1986. All interviews and calls were taped per Longview Police Department Criminal Investigation Division policy. Nothing of note occurred in the Morgan murder investigation until six years later, 1990, when Cynthia suddenly came forward under questionable circumstances to give a statement about her "knowledge” of the crime. Subsequently, her husband Alvin and Wilson were charged with the Morgan murders. Though Bean garnered extensive information about the case from his conversations with Cynthia, he was never called to testify in either trial or contacted by the police or DA's office about the information he had. Worse yet, the prosecution suppressed this critical information and neither Wilson nor his defense attorney saw it until 1998.
Sequence of important events and conflicts:
April 30, 1984: Jerry, Brenda and Devin Morgan are murdered between 6 and 9 p.m. according to the pathologist's report. This is based on the fact that Jerry and Brenda are in their work clothes and no dinner is being or has been prepared. The Morgan's neighbor tells police she saw an African-American male drive away from the Morgan home in the Morgan's car between 7:30 and 8 p.m. (it was Daylight Saving time and light out). This lead was never followed up on. In Tyler, Texas, thirty miles from Longview, a Silverado pickup is reported stolen from Saunders Street.
May 1, 1984: Morning: the Morgan's car is found thirty miles away in Tyler, Texas. One block from the recovery site is the location from which Boswell's Silverado was stolen.
May 7, 1984: The stolen Silverado is recovered in Grand Prairie, Texas in the possession of two African American males.
May 11, 1984: Evidence taken from the truck includes: three towels, one hair, one vegetation sample and one woman's necklace, a gold chain with a flying heart on it.
May 14, 1984: Because of the coincidence of the Silverado theft just blocks from the Morgan car recovery site, an investigator shows the necklace from the stolen vehicle to Brenda Morgan's relatives, possibly believing it might have been Brenda's. Brenda's sister and father identified the necklace as Brenda's. Brenda's mother, her other sister and Jerry Morgan's mother could not positively identify the necklace.
May 15, 1984: Brenda's mother remembers that her daughter did have a necklace like the one she was shown the day before. The sister who identified the necklace as Brenda's shows the investigator a necklace she owned that was identical to the one Brenda had. The floating heart necklace does not appear in photos taken of the jewellery Brenda Morgan was wearing at the time of her autopsy (May 3, 1984). According to an affidavit from Brenda's sister, police only had possession of Brenda Morgan's rings. Brenda's necklace has not been found.
May 16, 1984: The evidence is taken to the Southwestern Institute of Forensic Sciences. The items have not yet undergone DNA testing for comparison to national data banks of known offenders, hairs found at the scene, or to Brenda Morgan to verify whether or not the necklace was hers, though they have been recently submitted for testing in Kelly's case and are waiting the results now.
Pre-trial background, 1990-92: Cynthia reappears and divulges the information she allegedly has on the case. Subsequently, Wilson and Alvin are charged with the murders. Cynthia is the prosecution's only witness. Her testimony will be the foundation of the prosecution's case. Supporting testimony (also suspect) will come from one of Alvin's brothers. There is no supporting forensic evidence or anything to link Alvin or Wilson to the crime. Cynthia still has not been charged in any way with the John Ford murder for which Alvin has received a thirty-year sentence. In 1990, prior to Cynthia's return to Texas, prosecutors visit her in Michigan to discuss her participation in the trials of Alvin and Wilson. She is brought back to Texas and gives a second statement, under close supervision of prosecutors, that includes many obvious discrepancies and untruths. During the Alvin Kelly trial, Cynthia was sequestered in a state apartment, with her sister, under close scrutiny of the state and was taking Demerol for her drug addiction (two prescriptions are filled in one week). There are serious questions about the degree to which Cynthia was a "voluntary" (and coherent) witness in the case.
Cynthia Kelly -Immunity/prosecution issues:
John Ford murder: One of Alvin's brothers signs an affidavit in 1998 that he overheard Cynthia tell his mother and his wife, that she killed John Ford. The brother relayed this information to prosecutors prior to Alvin's trial for the Morgan murders. They "seemed not to want to hear this information " .
In an affidavit, Cynthia's sister relates a conversation she had with prosecutors about Cynthia's involvement as a witness in the case. She asked whether or not Cynthia might be prosecuted or go to jail for her involvement in the crime. Prosecutors assured her Cynthia would not. In a later conversation with an investigator for the defense, again the sister says that prosecutors told her not to worry, because, even though they were not giving Cynthia immunity, they were not going to prosecute her. Cynthia confirmed this information in a conversation with her sister after Cynthia returned from giving her deposition in Texas.
Statement and Trial evidence:
September 1990: Cynthia gives a second statement about the Morgan murders to prosecutors which conflicts with her 1985 statement. The information in the statement is used at Alvin's trial and he is convicted of capital murder and sentenced to death in 1991.The same statement is used in Wilson's trial to implicate him in the crime; he is sentenced to 66 years on April 14, 1992. This second statement from Cynthia, and subsequent testimony, is rife with inconsistencies, irregularities and obvious untruths -the bulk of them concerning Wilson's involvement. Problems include: Her original statement given in 1985 did not match her deposition taken in 1990 and her deposition did not match her trial testimony at Kelly's trial in 1991. When asked about her statement at Kelly's trial she said she lied, but was allowed to carry on with testimony.
Lack of solid motive:
The prosecution wove a tenuous story about the murders being drug related. But, the Morgans were, by all accounts, law-abiding, decent, hard-working average people with no connections to drugs or other criminal activity. There is no logical reason to believe the family was killed as the result of drug activity.
Purported visit to the Morgan home:
In Cynthia Kelly's version of events (deposition hearing 1991) on the day of the murders, she, Alvin and Wilson stopped by the Morgan trailer between the hours or 3-4 p.m. Cynthia claims to have seen three cars in the driveway and people moving around inside the trailer. Cynthia claims that Wilson went up to the door, knocked and spoke calmly to a man (who she thought was Jerry Morgan) for a few moments. It is interesting to note that this placid approach to the trailer came only days after Steve Kelly claims to have witnessed the pistol whipping of Jerry Morgan by Alvin Kelly. However, according to testimony from Jerry Morgan's mother, her son and his wife were at work during those hours; she was babysitting Devin and Jerry picked the baby up sometime between 5:30, when he left work, and 5:45. Brenda got off work at 6 p.m. and stopped by a store before going home. The work hours of Jerry and Brenda were verified by investigators through records at the Morgans' employers.
Conflicts in account of post-murder activities:
Cynthia gives two versions of what happened after the murders. In one version (statement of Sept. 1990), she says that after the murders, Alvin told her to go to the truck and follow him and Wilson, who were in the Morgan car. The three drove to a wrecking yard outside longview and Alvin told Cynthia to go home. She claims she didn't see either Alvin or Wilson until the following morning (May 1) when the two men pulled into the Kelly yard with the Morgan car on a wrecker. The statement was used to indict Wilson in 1990 but was never allowed into court for the trial. In the second version (deposition hearing 11 months later, 1991), Cynthia is questioned under oath and now, rather than driving to the wrecking yard, she claims that the three drove to Tyler, Texas where they abandoned the Morgan car a block behind Mother Francis Hospital after wiping it clean of fingerprints. The three then drove to the home of Alvin's brother in Tyler. Cynthia said while she and Wilson waited in the truck, Alvin went inside and had a long conversation with his brother. Cynthia, Alvin and Wilson then supposedly drove to Waco and spent the entire day there. The second version has obviously been tailored to fit the evidence since Cynthia's initial version does not account for how the car got to Tyler. The tailored version also conveniently and smoothly brings Alvin's brother into the equation, thereby adding credence to his subsequent testimony about his knowledge of the crime and Alvin's involvement. Alvin and his brother have had an ongoing war between them most of their lives.
The mystery wrecker/tow truck:
It is also interesting to note the deletion of the wrecker/tow truck in Cynthia's second accounting of the post-murder activities. According to Cynthia, Alvin and, allegedly Wilson, were dropped at a wrecking yard after the murders and returned to the Kelly home the next morning (May 1) with the Morgan car on a wrecker. The tow truck aspect is particularly important because it directly conflicts with information in Cynthia's second statement and testimony. Had the prosecution revealed the information during the trial, Kelly's defense attorney could have tried to verify or disprove the story about the wrecker. But, this important lead could not be pursued.
Time frame inconsistencies:
Cynthia also testified that Wilson was in her presence from the morning of April 30 to noon on May 2. There are several problems with her story: First, Cynthia testifies that she, Alvin and Wilson arrived at the Morgan home at 9 p.m. But autopsy reports indicate that the victims had no food in their stomachs which strongly indicates they were killed before eating dinner that night. In addition, one of Brenda's sisters called the house sometime between 7 :30 and 8 p.m. and became concerned when she got no answer. There was also testimony from three witnesses at Wilson's trial that he was at the Good Shepherd Hospital in Longview between the hours of 2-5 p.m. on April 30 (when he is supposed to be in Rusk, Texas with the Kellys). They remembered the date well because it was the day their child had been born and they remembered Wilson visiting with his mother and his stepfather. There was also testimony from more than one person that Wilson was at his parents' home the evening and night of April 30. Yet another critical and indisputable fact thoroughly impeaches Cynthia Kelly's version of events. Cynthia claims that Wilson was in her presence from April 30 to May 2. However, on May 2 when Wilson was allegedly in Waco and Rusk with the Kellys, he received a speeding citation from the Longview Police Dept. at 2:42 p.m. (verified by an NCIC inquiry on Wilson at that time) .
False testimony about Wilson's vehicle:
At the time of the murders, Wilson drove a 1981 black and silver Chevy truck, which is verified by GMAC finance records. He was in this truck when he received his traffic citation on May 1 .However, Cynthia testified that the only vehicle she had ever seen Wilson drive was an "old, little white car" which she claims he was driving to and from the Kelly house in the April 30-May 2 time frame. This story about a white car was never pursued and the information never verified. But, the simple fact that Wilson was driving his actual vehicle, the truck, when cited for speeding again disproves Cynthia's story.
Perjury concerning official contact prior to trial:
During the trial, Cynthia perjured herself again by denying that she had ever spoken with other law enforcement officials prior to her contact with the DA's office. In 1998, Cynthia's 1985 interview/statement and numerous conversations with a Longview Police Dept. detective finally surfaced. The information came directly from the arresting detective who signed an affidavit about his interviews with Cynthia. The interviews and conversations were taped and held by the Longview Police Dept. and should have been readily accessible by the DA's office at the time of the trials.
Perjured supporting testimony:
During Alvin Kelly's trial, his brother Steve Kelly testified that the Friday prior to the Morgan murders, he went with Wilson and Alvin to a brick home in Longview, and that he was told to stand by the car. Steve said that he heard voices, went to the back yard and saw his brother kicking and pistol whipping a man he later identified as Jerry Morgan. This beating went on for seven to ten minutes. Despite this alleged kicking and pistol whipping, the coroner confirmed that there were no bruises on Jerry. In addition, when Jerry attended a Morgan family event at his mother's house the Sunday prior to the murders, had no injuries. Steve testified that after this incident, he, Alvin and Wilson returned to Alvin's home in Rusk. According to Steve, there was a lamp on in the living room, about two to four days before the killings. However, testimony at Alvin's trial established that the electricity to the house in Rusk had been terminated in April 4, 1984 until January of 1985. Steve said, on April 4, 1984, while on drugs, said he took Alvin's clothes and a piano and burned them outside the house at Rusk. Two neighbors testified that, after the fire, it did not appear that anyone lived in this house. This was the house in which Cynthia claimed she spent the night after the Morgan murders three and one-half weeks later. Steve also testified that a few days later, Alvin, Wilson and Cynthia appeared at his house in the early morning hours. Contrary to the Cynthia's testimony, Steve said there was no question that all three came into his house and his (Steve's) wife was present. At Alvin's trial, Steve admitted untruths in the statement he gave to police. Following the Alvin Kelly trial, Steve Kelly has subsequently stated on multiple occasions, "I turned state's evidence against my brother for a crime he didn't do."
Suppression of prior interviews and tapes:
The critical evidence of the tapes and records of prior contact with a law enforcement official was suppressed by the DA's office during the trial. Wilson's defense attorney apparently found out about the statement and tried to obtain a copy. He was told it could not be found. The evidence would certainly not help the prosecution since the inconsistencies cast reasonable doubt on the veracity of their "star eyewitness". Furthermore, Cynthia's first statement in 1985 was almost identical to her second with the exception of those sections obviously changed to more closely fit the evidence in the case. In view of that fact, Wilson and his attorney (as well as Alvin's) should have been provided with the tapes and any other materials dealing with her testimony under the Rules of Evidence.
False assertion that no deal was made with prosecutor:
Despite her self-confessed involvement in the Ford murder 17 days after the Morgan murders and her subsequent implication of herself in the Morgan murders, Cynthia is a free woman who seemingly need not fear prosecution for her involvement in these heinous crimes. During the trial, Cynthia said she had not made a deal with the DA's office in exchange for her testimony. Though it may be technically true that no formal deal was made, no immunity officially offered, there is clear evidence that a tacit agreement not to pursue prosecution for her involvement in the cases existed. Though she confesses her part in the Ford murder in 1985, and, according to affidavits about conversations with her about the murder, may well have been the one who actually pulled the trigger, she is free. She possesses intimate and critical knowledge about the Morgan murders, which led to the convictions of her husband and Wilson, yet she has never been charged for her involvement. This oddity can only be explained by the fact that there was indeed a deal, tacit as it may be. In order to solve the crime, prosecutors and law enforcement officials needed her information and testimony and two other people to place inside the home to make their version of the events appear credible.
Prosecutorial pressure and/or coercion:
Since the trial, numerous witnesses have come forward with sworn evidence that indicates that Cynthia admitted to them that she lied under oath because she was frightened. Her fear stemmed from threats by the prosecution to charge her with the Ford murder if she did not cooperate in the Alvin Kelly and Ronnie Lee Wilson trials. Alvin's sister and brother-in-law say Cynthia told them that officials threatened to kill her and her child if she did not cooperate. During this meeting with Cynthia in 1998, Cynthia also expressed fear for the her in-Iaw's welfare if they began "asking too many questions". Cynthia has a history of drug and alcohol abuse and involvement in crime. At the time, she had implicated herself in the Ford murder. Threats of prosecution and eventual imprisonment would be very real to her and effective tools against someone who would probably have a strong sense of self-preservation. And, with no statute of limitation on the crime of murder, the lack of an immunity agreement or formal deal assures initial and continuing cooperation. One of Alvin's brothers signed an affidavit in 1998 saying that he was approached by prosecutors who said they would get rid of pending criminal charges against him if he would give them information leading to Alvin's conviction. He told them he knew nothing and served his time. Though he had evidence about Alvin's innocence, prosecutors were not interested in that. Another brother told people he was coerced into giving untruthful testimony to convict Alvin.
Before Kelly's trial he was contacted by Jonny Waller who informed Kelly that he knew he did not kill the Morgans' because he was with him the night this crime took place. They had just changed out engines in Kellys truck. Kelly tells Waller to go to his attorney and tell him this and come to trial and testify. At daylight the next morning Gregg Co. sheriff Dept. raids the Waller home and finds marijuana and drug paraphernalia. So Waller who is on parole from TDCJ already is told if he comes to Kelly's trial he will be sent back to prison. Waller has not been heard from since. Kelly has asked every court appointed attorney to find and talk to Waller but none have done so yet. Kelly has a court appointed attorney for his Federal Habeas and Scott is a good attorney. However he has other cases and is limited to the time and investigation he can spend on Kelly's case as bell as having limited money for investigators. Jelly needs help in finding his alibi witness and talking to other witnesses who were not allowed to testify at the trial. Kelly is an indigent inmate and cannot afford to pay investigative fees to hire an investigator. He needs your help in finding and securing an investigator. To help contact Kelly at:
Alvin Kelly, #999012
3872 FM350 South
Livingston, Texas 77351 USA
Alternatively you can send an email
Contributions to Alvin's legal defense fund can be made to:
Legal Defense Fund
P O Box 10
Schulenburg, TX 78956
Account # 8624844
Texas Death Penalty Blog
Alvin Kelly Video interview from Death Row.
Kelly v. Cockrell, 72 Fed.Appx. 67 (5th Cir. 2003) (Habeas).
Defendant, who was convicted of capital murder in Texas and sentenced to death, filed petition for federal habeas relief. The United States District Court for the Eastern District of Texas denied the petition, and defendant filed application for issuance of a certificate of appealability (COA). The Court of Appeals, Benavides, Circuit Judge, held that: (1) affidavits executed seven years after defendant's trial did not establish the factual basis underlying defendant's claim that his death sentence constituted cruel and unusual punishment because it was secured in part through the use of perjured testimony; (2) even if defendant was denied sufficient funds to adequately investigate and prepare his defense in violation of Ake, defendant made no substantial showing of prejudice; and (3) defense counsel did not render ineffective assistance. Denied.
BENAVIDES, Circuit Judge:
Petitioner Alvin Andrew Kelly (Kelly), convicted of capital murder in Texas and sentenced to death, appeals the denial of federal habeas relief. In his “Application for Issuance of a Certificate of Appealability [COA] on Rejected Requests,” Kelly raises following claims: (1) his conviction and sentence constitute a denial of due process of law because he is actually innocent; (2) the prosecutor violated his due process rights by arguing incorrectly to the jury that his former wife should not be considered an accomplice; (3) his death sentence constitutes cruel and unusual punishment because it was secured in part through the use of perjured testimony; (4) the denial of sufficient funds to adequately investigate and prepare his defense constitute a denial of due process of law and cruel and unusual punishment; (5) the failure to provide sufficient funds to investigate and prepare his defense rendered counsel's performance ineffective; (6) the state court's denial of his motion to recuse itself denied him due process; and (7) counsel rendered ineffective assistance at trial.FN1 For the reasons stated below, we DENY a COA with respect to each of the seven claims.
FN1. Also, the district court granted a COA with respect to four claims that have not yet been briefed and thus are not before us: (1) Kelly's conviction was obtained through the prosecution's use of perjured testimony; (2) the prosecution failed to disclose exculpatory evidence; (3) the prosecution did not disclose that it had agreed not to prosecute Kelly's former wife or brother-in-law in exchange for their testimony; and (4) the district court made impermissible credibility determinations in connection with the grant of summary judgment.
I. FACTUAL AND PROCEDURAL HISTORY.
On the morning of May 1, 1984, in Gregg County, Texas, the bodies of Jerry Morgan, his wife Brenda, and their twenty-two month old son Devin were discovered in their home by other family members. Each person had died of gunshot wounds. Various items were missing from the victims' home, including a 1977 Pontiac Catalina, a .22 caliber revolver, a .380 semi-automatic pistol, a 7-millimeter rifle, a Remington 870 pump action shotgun, a .38 caliber derringer, a television set, a video recorder, a stereo, decorative brass butterflies, and a coffee maker.
These murders remained unsolved for six years. In 1990, a man named Chris Vickery called the Gregg County Sheriff's Office and indicated that his former wife, Cynthia Kelly (Cynthia), had information for the authorities. At that time, Cynthia lived in Michigan, and Kelly was serving a 30-year sentence in Texas for the murder of John Ford.FN2 The authorities contacted Cynthia, and ultimately obtained an indictment charging Kelly with the capital murder of Devin Morgan during the course of the robbery of his father, Jerry Morgan.
FN2. Kelly had pleaded guilty to the unrelated murder of John Ford, which occurred after the instant offense.
At trial, Steven Kelly, Kelly's younger brother, testified that Kelly and he were in the business of selling drugs. Kelly's source of drugs or “main man” was Walter Shannon.FN3 Several days prior to the instant offense, Steven drove with Kelly and Ron Wilson, a fellow drug trafficker, to a home later identified as the victims' home. Prior to exiting the vehicle, Kelly instructed Steven to remain in the vehicle. Disregarding that instruction, Steven walked around to the back of the house because he heard an argument. Steven observed Kelly pointing a gun at Jerry Morgan and threatening “I want you to know that I can kill you at any time.” Kelly noticed Steven watching and angrily ordered him back to the vehicle. As Steven returned to the vehicle, he heard Wilson arguing with a woman inside the home. Kelly and Wilson also returned to the vehicle. As the three men drove away, Wilson, who was obviously upset, said to Kelly “I told you not to bring him [Steven] because ... we're supposed to take care of some business, and ... we didn't take care of it, ... we're supposed to prove a point, and now, that they're going to be upset with us.” Kelly responded “we can always come back later and take care of it, ... there's no problem there.”
FN3. Walter Shannon was also known as W.W. Shannon.
Steven further testified that a few days later on the night of April 30, 1984 (the night of the instant offense), Kelly, Wilson and Cynthia arrived at his house after he and his wife had gone to bed. Appearing very nervous and in a hurry, Kelly said he was in serious trouble and needed money. Kelly confessed that he had killed the family Steven had seen him threaten, and the child was “involved.” Kelly then opened a briefcase, handed Steven a pistol, FN4 and asked for “five hundred dollars to get out of town.” Steven gave Kelly the five hundred dollars, and Kelly left with Cynthia and Wilson.
FN4. Kelly was wearing a pistol when he entered Steven's house but he did not give that gun to Steven.
Cynthia testified that she met Kelly sometime in 1982 or 1983 and they began living together in Tyler, Texas.FN5 Cynthia thereafter became addicted to methamphetamine and would frequently accompany Kelly while he was conducting drug deals. Kelly carried a firearm and had Cynthia carry a pistol to “watch his back.” FN6
FN5. Cynthia and Kelly were married after the instant offense on September 5, 1985.
FN6. Kelly told Cynthia that the police could not perform a ballistics test on a .22 caliber gun.
On the evening of April 30, 1984, after drinking beer and injecting methamphetamine, Cynthia, Kelly, and Wilson drove to the victims' home. Upon arrival, Kelly ordered Cynthia to remain in the vehicle. Cynthia had been unaware of both the destination and the purpose of this trip. While waiting for the men, Cynthia heard gunfire and a baby crying. She entered the home and saw that Kelly had a woman (Brenda Morgan) pinned against the wall and that a baby (Devin Morgan) was crying. Cynthia picked up the child and shielded him from the sight of his mother struggling with Kelly. Kelly shot Brenda in the back of the neck and dragged her to a bedroom. Cynthia put the baby in a chair and followed Kelly to the bedroom. Brenda's husband Jerry had already been shot, and Kelly placed Brenda next to him. Brenda begged Cynthia for help, and Cynthia responded by retrieving a towel and placing it under Brenda's head.
Cynthia returned to the living room and attempted to comfort the crying baby. Kelly grabbed the crying infant from Cynthia and shot him in the head. Kelly aimed his gun at Cynthia and ordered her to return to the vehicle. As she exited the home, Cynthia heard Kelly again shoot the infant. Cynthia testified that Kelly used the same gun, a .22 caliber pistol, to shoot both Brenda and the baby.
Kelly and Wilson took several items from the victims' home, including guns, decorative brass butterflies, and a coffee maker. Kelly, with Wilson as a passenger, drove the victims' car and ordered Cynthia to follow him in their vehicle. Pursuant to Kelly's instructions, the three wiped the victims' car to destroy any fingerprints and abandoned the car in a hospital parking lot in Tyler, Texas. Subsequently, while driving, Kelly and Wilson discussed needing money, and the three “ended up at” Steven's home. Cynthia's memory became “blurry” after that point; however, she did remember Kelly and Steven retreating to the pool room to have a conversation.FN7. Cynthia did not hear any of their conversation.
The State introduced evidence corroborating several points of Cynthia's testimony, including the location of the mother's and child's gunshot wounds, the caliber of the murder weapon, the location and position of the bodies in the home, the towel that was found under the mother's head, and the location of the victims' car (which was devoid of fingerprints). The State also introduced evidence that Jerry and Brenda Morgan had been City Marshal Reserve Officers and argued that Kelly's motive for killing the Morgans was that they were providing information to law enforcement.
Additionally, Cynthia's sister Violet Brownfield testified that Kelly had “bragg[ed]” about killing a family, including a child. Danny Moore, who had met Kelly through Moore's cousin, testified that Kelly said he collected “debts at a forty-sixty split” for Walter Shannon. Moore further testified that Kelly said he had “taken care of that job ... [and] need[ed] to go see the man about some money.” Kelly further explained that “that man, his old lady, and the kid ... they're not coming back.” Kelly became angry and said “I warned them, they had a chance. [T]hey wouldn't do nothing.” Kelly warned that “there's going to be a lot more people end up like this if they don't pay up.”
Kelly's defense theory was that the victims were killed by an unidentified black assailant. He relied on the following evidence: (1) hairs with Negroid characteristics were found in vacuum sweepings from the Morgans' home; (2) a pick-up truck was stolen from a parking lot near the victims' abandoned car; (3) two black males were apprehended for the theft of that truck; and (4) a necklace was recovered which two of the victims' family members initially identified as belonging to Brenda Morgan. Kelly's theory was that Cynthia had a relationship with a black man and she had fabricated her story to protect that man and/or to attempt revenge against Kelly.FN8
FN8. The State introduced evidence through Timothy Fallon, a Trace Evidence Analyst, that the hairs that had Negroid characteristics did not match either of the two black men who were apprehended for theft of the truck. Additionally, Fallon explained that hair that had Negroid characteristics did not necessarily come from a black individual and could come from a Caucasian individual.
In October of 1991, a Gregg County, Texas jury found Kelly guilty of capital murder. At the punishment phase of the trial, the State introduced evidence that Kelly has a bad reputation for violence and a record of criminal convictions, including burglary, unlawful weapon possession, controlled substance delivery and possession, aggravated sexual assault, and murder. The jury affirmatively answered the special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure, and the trial court sentenced Kelly to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence, Kelly v. State, No. 71,361 (Tex. Crim.App. June 26, 1996), and the Supreme Court denied Kelly's petition for certiorari on March 24, 1997. Kelly v. Texas, 520 U.S. 1145, 117 S.Ct. 1316, 137 L.Ed.2d 479 (1997).
Kelly filed a state habeas petition, and the state trial court recommended denying relief. The Court of Criminal Appeals denied relief without written order, Ex parte Kelly, No. 36,791-10 (Tex .Crim.App. April 8, 1998), and the Supreme Court denied certiorari on October 5, 1998. Kelly v. Texas, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 172 (1998).
The federal district court dismissed Kelly's first federal habeas petition as unexhausted. Kelly then filed a second application for state post-conviction relief, which was dismissed as an abuse of the writ by the Texas Court of Criminal Appeals. Ex Parte Kelly, No. 36,791-02 (Tex.Crim.App. September 13, 2000). Kelly then filed the instant petition, which the district court denied. As previously indicated, the district court granted Kelly's motion for a COA with respect to four claims that have yet to be briefed. Before us now is Kelly's application for a COA with respect to seven issues.
II. STANDARD OF REVIEW
As indicated, Kelly requests a COA from this Court. Section 2253(c)(1) provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....” Recently, the Supreme Court made clear that “until 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, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). To obtain a COA, Kelly must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To make such a showing, he must demonstrate 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.” Miller-El, 123 S.Ct. at 1039 (internal quotation marks and citations omitted).
In Miller-El, the Supreme Court reiterated that we “should limit [our] examination to a threshold inquiry into the underlying merit of [the] claims.” Miller-El, 123 S.Ct. at 1034 ( Slack, 120 S.Ct. 1595). The Court explained that “a COA ruling is not the occasion for a ruling on the merit of petitioner's claim....” Id. at 1036. Instead, a COA ruling “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 1039. To make this assessment, a court of appeals “look [s] to the District Court's application of AEDPA to petitioner's constitutional claims and ask[s] whether that resolution was debatable amongst jurists of reason.” Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. If a court of appeals denies a COA by deciding the merits of an appeal, it essentially decides the appeal without jurisdiction. Id.
We must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 1040. As such, we do not decide the merits of Kelly's claims, but only whether he has demonstrated that “ ‘reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” ’ Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). Additionally, when a district court denies a claim on a procedural ground, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
A. DUE PROCESS VIOLATION BASED ON CLAIM OF ACTUAL INNOCENCE
Kelly first argues that his conviction and sentence constitute a denial of due process because he is actually innocent of the crime. Relying on Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the district court concluded that “[b]ecause clemency can be obtained from the Board of Pardons and Paroles of the State of Texas, actual innocence, by itself, is not a claim for which relief can be granted in federal habeas corpus for someone sentenced to death under Texas law.” Finding the claim not cognizable in federal habeas proceedings, the district court denied relief and a COA.
“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera, 506 U.S. at 400, 113 S.Ct. 853. Instead, a claim of actual innocence is a “gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 404, 113 S.Ct. 853. Accordingly, we conclude that the district court's conclusion is not debatable among jurists of reason.
Kelly argues that the independent constitutional claim is the due process violation based on the state's awareness of the false testimony it elicited at trial. However, as noted previously, the district court has granted a COA with respect to that particular due process claim. At this point in the appeal, we are addressing only the claims that involve a request for a COA.
B. DUE PROCESS VIOLATION BASED ON PROSECUTORIAL ARGUMENT
Kelly argues that his due process rights were violated by the prosecutor's incorrect argument that Cynthia should not be considered an accomplice with respect to the instant offense. For constitutional error to have occurred, a prosecutor's improper argument must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986); cf. Earvin v. Lynaugh, 860 F.2d 623 (5th Cir.1988) (the evidence must be so insubstantial that no conviction would have occurred but for the argument made by the prosecutor).
During closing arguments at the guilt-innocence phase, the prosecutor referred to the jury instructions and stated the following:
The law in Texas is that if an accomplice testifies, before a Jury can convict, there must be some other evidence to connect the Defendant to the offense charged. The Court goes on to tell you what an accomplice is. And we submit, ladies and gentlemen, Cindy Kelly is not an accomplice because Cindy Kelly did not act with intent to promote or assist in the commission of this offense. She did not enter the house with the intent to commit the murder or the robbery. In fact, Cindy Kelly acted in an attempt to stop what was done. She attempted to stop the murder of the baby. She begged this Defendant to leave the baby at a doorstep and to save the baby's life. The very crime scene itself shows that Cindy Kelly is not a party to this offense because she is the one that left the folded towel under the head of Brenda Morgan in an attempt to comfort the victim. The Court further instructs you that to be a party to the offense, they must be connected to the offense before or during the commission of the offense. Cindy Kelly, at the order and direction of Alvin Kelly, drove away at his instructions and his direction. At his order, she helped wipe the car down in Tyler after the capital murder was complete. She had no intent prior to or during to aid or assist in the commission of the offense. She just thought this was business as usual when her [sic] and Al went out. The Court also tells you that mere presence alone does not make a person an accomplice. Even if there's any question in your mind as to whether Cindy Kelly is an accomplice, the testimony is corroborated and overwhelming by three witnesses - three witnesses who this Defen[d]ant confessed to - Steve Kelly, his brother, Violet Brownfield, and Danny Moore.
The record contains evidence supporting the prosecutor's argument that Cynthia was not an accomplice. As such, the argument is a fair comment on the evidence.
Relying on Creel v. State, 754 S.W.2d 205 (Tex.Crim.App.1988), the district court denied relief. In Creel, the Court of Criminal Appeals reiterated that without an affirmative act on the part of the witness to assist or encourage the murder, the witness is not an accomplice. Id. at 213. Indeed, Kelly points to no evidence at trial that Cynthia committed an affirmative act to assist or encourage the murder of the baby, Devin. We conclude that the district court's resolution of this issue is not debatable among jurists of reason.FN9
FN9. In support of his argument, Kelly relies on the Supreme Court's decision in Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957). There, the Supreme Court held that the petitioner's due process rights were violated when the prosecutor knowingly elicited testimony that gave a false impression of material evidence to the jury. Alcorta did not involve a claim of improper prosecutorial argument. To the extent that Kelly is attempting to argue that his due process rights were violated based on the prosecution's knowing use of perjured testimony and failure to disclose exculpatory evidence, as noted previously, those claims are not yet before us.
* * *
G. VIOLATION OF SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
The Supreme Court has recently reaffirmed the familiar two-prong test for ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Terry) Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To demonstrate that counsel was ineffective, a petitioner must establish that counsel's representation fell below an objective standard of reasonableness. See id. To show prejudice, he must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. See id. at 1511-12.
1. Failure to Properly Examine Cynthia
Kelly argues that counsel rendered ineffective assistance by failing to cross-examine Cynthia with respect to the existence of any agreement she had with the State for her testimony. During the state habeas proceedings, the state court found that “[t]here was no agreement between the State and Cynthia ... that she would not be prosecuted for the murders to induce her to testify.”
Kelly admits that because Cynthia denied any such agreement during her pre-trial deposition, counsel correctly would have expected her to continue to do so at trial. Kelly further acknowledges that the prosecutor personally represented to the court that no deal had been made with Cynthia in exchange for her testimony and that the State did not consider Cynthia a codefendant or a coconspirator. Instead, according to the State, Cynthia was a witness to the murders. Nonetheless, Kelly asserts that had counsel asked Cynthia whether she had received anything for her testimony, it would have (at least) raised a question of credibility for the jurors.
The district court assumed arguendo that counsel's failure to make this inquiry constituted deficient performance. With respect to the second prong, the district court “adopted” the state court's finding that there was no agreement between the State and Cynthia that she would not be prosecuted in exchange for testifying against Kelly. Based on this factual finding, the district court found there was not a reasonable probability that, had counsel cross-examined Cynthia with respect the existence of any such agreement, the outcome of the guilt or sentencing phase would have been different.
Relying on the affidavits of Kelly's sister Nancy Brown and her husband, Conley Brown, defense investigator Barry Higginbotham, Cynthia's sister, Beverly Stemen, and state habeas counsel Mark Breding, Kelly contends that subsequent investigation has demonstrated that the authorities either: (1) coerced Cynthia into testifying by threatening her life and that of her son; or (2) promised, advised, or lead Cynthia to believe that she would not be prosecuted if she returned to Texas to testify.
Contrary to Kelly's contentions, the hearsay in the affidavits regarding some vague threat by the authorities does not rise to a substantial showing. None of the affidavits provide that Cynthia admitted that she had an agreement with the State. The closest allegation is that representatives of the district attorney's office told Cynthia's sister Beverly Stemen that although Cynthia would not be granted immunity, she would not be prosecuted. Kelly's argument is that Cynthia was not prosecuted even though her sister informed Assistant District Attorney Rebecca Simpson that Cynthia had confessed to shooting Jerry Morgan. However, the state court found that Beverly never had a conversation with Simpson or the District Attorney's Office investigator Russell Potts concerning Cynthia shooting Morgan. Moreover, as set forth previously, in a 2001 deposition, Cynthia's sister Beverly contradicted her previous affidavit by testifying that “I remember [Cynthia] saying very clearly on that point, very clearly that in [Cynthia's] dream she had shot the man.” FN19 Further, the state court found that Cynthia never told her sisters that she shot Jerry Morgan and that Cynthia's reference to shooting a man was only in the context of a nightmare.
FN19. As set forth previously, Beverly stated in her deposition that she was angry at Cynthia at the time she lied. Beverly also indicated that she was taking “medications” and went to see a psychiatrist because the medicine “was causing me to do things and say things that weren't of my nature, that were inappropriate.” Specifically, the state court found that Beverly was taking the following medications when she had executed the affidavit: “Luvox, Wellbutrin, Cytomel, Trazodone, Methyphaidate, Conazepam, Methpheid, Cyclobenzaabr, Ultram, and Zepharine.”
The State's position has been that Cynthia did not participate in the murders and thus she would not be prosecuted. The state court found that District Attorney's Office investigator Russell Potts and Sheriff's investigator Chuck Willeford informed Cynthia that “if it was shown that she participated in the crime she would be prosecuted. She was informed that mere presence at the scene was not sufficient to charge her with the crime.”
In any event, the question before us is whether Kelly has made a substantial showing that there is a reasonable probability of a different outcome had defense counsel cross-examined Cynthia regarding any deal she allegedly had with the State. Although defense counsel did not inquire regarding a deal with the State, counsel did question Cynthia's motives while on the stand. Counsel asked Cynthia whether the State had charged her with any offense, and she responded no. On cross-examination, Cynthia admitted that the State paid for her trips between Michigan and Texas and for her stay in Texas. Additionally, the state court found that defense counsel cross-examined Cynthia regarding her decision to speak to law enforcement after the dismissal of a child support lawsuit against Kelly. In view of the evidence against Kelly at trial and the questions regarding Cynthia's motivation to testify, we are confident that Kelly has not shown that the district court's conclusion (that there exists no reasonable probability of a different outcome had defense counsel cross-examined Cynthia regarding any deal she allegedly had with the State) is debatable among jurists of reason.
Kelly also argues that counsel rendered ineffective assistance by failing to cross-examine Cynthia with respect to the role she played in the murder of John Ford.FN20 Kelly argues that such cross-examination would have disclosed to the jury that Cynthia had far greater involvement in “criminal activities than she admitted at trial.” According to Kelly, this questioning “would have indicated that she was actually an accomplice in the Morgan killings, rather than simply being present and forced to assist at gunpoint, as she claimed at trial.” Of course, as found by the state court during habeas proceedings, had counsel conducted such a cross-examination during the guilt phase, the jury would have been informed that Kelly had committed another murder. Indeed, Kelly's counsel had filed a motion in limine to exclude evidence of extraneous offenses such as the Ford murder. The district court denied relief on this claim, concluding that Kelly had not met the first prong of Strickland. 466 U.S. at 687, 104 S.Ct. 2052. More specifically, the district court opined that “[c]onsidering that Kelly denied guilt in the Morgan murders, the Court cannot say that a strategy of not admitting to the Ford murder during the guilt/innocence phase of the trial, in order to lessen the chance of jury prejudice, would have been objectively unreasonable.” On appeal, Kelly does not acknowledge, much less challenge, this conclusion. Accordingly, because cross-examination of Cynthia regarding another murder would have introduced very prejudicial evidence during the guilt phase, we conclude that Kelly has not shown that the district court's resolution of this issue is debatable among jurists of reason.
FN20. Kelly was serving a sentence for the murder of John Ford at the time the instant, unrelated offense was solved.
2. Failure to File Prepared Motion to Transfer Venue
Elizabeth Fulton, who was co-counsel for Kelly's lead attorney Harry Heard, prepared a motion to transfer venue that was never filed. Under Texas law, to prevail on a motion to transfer venue based on unfavorable pretrial publicity, a defendant must establish, among other things, that pretrial publicity was pervasive, prejudicial, and inflammatory. McManus v. State, 591 S.W.2d 505 (Tex.Crim.App.1979); Demouchette v. State, 591 S.W.2d 488 (Tex.Crim.App.1979).
Relying on three affidavits and twenty-seven newspaper articles covering the instant offense, Kelly argues that trial counsel should have filed the motion, and it would have been granted.FN21 In support of this argument, Kelly points to two statements made by each of the affiants. The first statement in each of the affidavits reads as follows: “It is my belief that a conspiracy of influential people constituting a dangerous combination against Alvin Kelly that would preclude a fair trial in Gregg County, Texas, exists.” The second statement by the affiants reads as follows: “It is my belief that the newspaper accounts that attempt to tie the murder of the Morgan family to the Kentucky Fried Chicken (KFC) murders would also preclude a fair trial in Gregg County, Texas.” The apparently unrelated “KFC murders” in the region had received a good deal of media coverage and had not been solved (at least at the time of Kelly's trial).
FN21. The district court assumed arguendo that twenty-seven newspaper articles over a six-year period constituted pervasive press coverage.
With respect to the first statement made by the affiants, the district court found that the conspiracy allegations and prejudice against the defendant are vague and conclusory. With respect to the allegation that Kelly was prejudiced by the newspaper articles, the district court found that none of the summaries offered by Kelly indicate that the respective writers attempted to tie the instant murders to the KFC murders. Indeed, all the references found by the district court indicated that the instant murders and the KFC murders were not related.FN22 Thus, the district court concluded that the state trial court would not have found credible the assertion in the affidavits that the newspaper coverage connecting the instant offense to the KFC murders would have precluded a fair trial.
FN22. We also note that the references to the KFC murders were in four articles published in 1984 and one article in 1989. The instant trial was conducted in 1991.
In his brief, Kelly does not attempt to demonstrate that the district court's conclusions were incorrect. This Court is not persuaded that twenty-seven articles over a time period in excess of six years is pervasive. Moreover, in light of Kelly's failure to show that the conspiracy allegations were more than conclusory or that the newspaper coverage attempted to connect the instant offense with the KFC murders, we are convinced that the district court's resolution of Kelly's claim that counsel rendered ineffective assistance for failing to file the motion to transfer venue is not debatable among reasonable jurists.
3. Counsel was Intoxicated During Trial
In the alternative to the above arguments, Kelly argues that no prejudice is necessary because his counsel was intoxicated during trial and a “drunk lawyer is no better than a sleeping one.” In Burdine v. Johnson, 262 F.3d 336 (5th Cir.2001) (en banc), cert. denied, 535 U.S. 1120, 122 S.Ct. 2347, 153 L.Ed.2d 174 (2002), this Court held that a defendant's Sixth Amendment right to counsel is violated when that defendant's counsel is repeatedly asleep through not insubstantial portions of the defendant's capital murder trial. Under such circumstances, it must be presumed that the violation prejudiced the defendant. Contrary to Kelly's reliance on Burdine, in that case, this Court distinguished intoxicated counsel from sleeping counsel, explaining that sleeping or unconscious counsel could not perform at all for his client. Id. at 349. We are bound by precedent to reject Kelly's argument that he need not show prejudice based on defense counsel's alleged intoxication. See also Burnett v. Collins, 982 F.2d 922 (5th Cir.1993) (rejecting claim that counsel rendered ineffective assistance simply because counsel abused alcohol).
Accordingly, because Kelly has failed to make a substantial showing of the denial of a constitutional right with respect to each of his claims, we DENY a COA.