Executed June 26, 2013 6:37 p.m. CDT by Lethal Injection in Texas
18th murderer executed in U.S. in 2013
1338th murderer executed in U.S. since 1976
8th murderer executed in Texas in 2013
500th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Kimberly Lagayle McCarthy
B / F / 36 - 52
|Dorothy E. Booth
W / F / 71
At the penalty phase of trial, the state presented evidence that McCarthy had murdered two other elderly women in 1988. Maggie Harding, 82, was a longtime friend of McCarthy's mother. She helped organize McCarthy's wedding and had let her store some furniture at her house. The second was Jettie Lucas, an 85-year-old distant relative. Both women were killed in their homes and both suffered stab wounds and multiple blunt force injuries. A claw hammer was used on Lucas, while Harding was bludgeoned with a metal meat tenderizer. Both of their purses and credit cards were stolen.
McCarthy v. State, 65 S.W.3d 47 (Tex.Crim.App. 2001). (Direct Appeal - Reversed)
McCarthy v. State, 2004 WL 3093230 (Tex.Crim.App. 2004). (Retrial Direct Appeal - Affirmed)
McCarthy v. Thaler, 482 Fed.Appx. 898 (5th Cir. 2012). (Federal Habeas)
Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.
"This is not a loss. This is a win. You know where I'm going. I'm going to be home with Jesus. Keep the faith. I love you all."
Texas Department of Criminal Justice - Executed Offenders
McCarthy, Kimberly Lagayle
Date of Birth: 05/11/1961
Date Received: 12/07/1998
Education: 12 years
Occupation: occupational therapist, waitress, home health care, laborer
Date of Offense: 07/21/1997
County of Offense: Dallas
Native County: Hunt
Hair Color: Black
Eye Color: Brown
Height: 5' 3"
Prior Prison Record: 2 year sentence for 1 count of Forgery, received 02/12/90, released on Parole on 06/04/90 discharged 12/09/91.
Summary of Incident: On 07/21/97, McCarthy entered the residence of a 70-year old white female in Lancaster with the intent to rob the victim. A struggle took place and victim was stabbed numerous times resulting in her death. McCarthy then used the victim's credit cards and used the victim's vehicle for transportation.
Texas Attorney General
Wednesday, June 19, 2013
Media Advisory: Kimberly McCarthy scheduled for execution
AUSTIN — Pursuant to an order of Dallas County's 292nd Judicial District Court, Kimberly McCarthy is scheduled for execution after 6 p.m. on June 26, 2013. A Dallas County jury found McCarthy guilty of murdering Dorothy Booth during the course of a robbery.
FACTS OF THE CRIME
The United States District Court for the Northern District of Texas described Booth’s murder as follows: On July 21, 1997 McCarthy entered the home of her 71-year-old neighbor Dorothy Booth under the pretense of borrowing some sugar and then stabbed Mrs. Booth five times, hit her in the face with a candelabrum, cut off her left ring finger in order to take her diamond ring, and nearly severed her left little finger as well. McCarthy then took Mrs. Booth’s purse and its contents, along with her wedding ring and fled in her car. Later, McCarthy bought drugs with the stolen money, used the stolen credit cards, and pawned the stolen wedding ring.
On August 18, 1997, McCarthy was indicted in Dallas County for the capital murder of Dorothy Booth.
On Nov. 17, 1998, a Dallas County jury found McCarthy guilty of capital murder and was sentenced to death.
On December 12, 2001, McCarthy’s capital murder conviction was reversed by the Texas Court of Criminal Appeals on direct appeal.
On June 28, 2002, the U.S. Supreme Court denied the State’s petition for a writ of certiorari.
On Oct. 29, 2002, following a retrial, a Dallas County jury found McCarthy found guilty of capital murder. She was again sentenced to death.
On September 22, 2004, the Texas Court of Criminal Appeals affirmed McCarthy’s conviction.
On June 13, 2005, the U.S. Supreme Court denied McCarthy's petition for writ of certiorari.
On September 12, 2007, the Texas Court of Criminal Appeals denied a state habeas application
On September 11, 2008, McCarthy filed a federal habeas petition in the United States District Court for the Northern District of Texas.
On July 11, 2012, the U.S. Court of Appeals for the Fifth Circuit denied McCarthy’s application for a certificate of appealability.
On Jan 7, 2013, the U.S. Supreme Court denied McCarthy’s petition for writ of certiorari.
On September 4, 2012, Dallas County's 292nd Judicial District Court set McCarthy’s execution for January 29, 2013.
On January 29, 2013, the 292nd Judicial District Court rescheduled McCarthy’s execution to April 3, 2013.
On April 1, 2013, the 292nd Judicial District Court rescheduled McCarthy’s execution to June 26, 2013.
On June 19, 2013, McCarthy filed in the state trial court an application for post-conviction writ of habeas corpus.
On June 24, 2013, the Texas Court of Criminal Appeals dismissed McCarthy’s application for writ of habeas corpus.
On June 25, 2013, McCarthy filed in the Texas Court of Criminal Appeals a suggestion for reconsideration.
On June 25, 2013, the Texas Court of Criminal Appeals declined to reconsider its earlier order dismissing McCarthy’s habeas application.
There is presently no pending litigation in McCarthy's case.
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented with information about the defendant’s prior criminal conduct during the second phase of the trial, which is when they determine the defendant’s punishment.
In addition to Booth’s murder, McCarthy had also murdered two other elderly women. The first, Maggie Harding, was an eighty-two-year-old longtime friend of McCarthy’s family, who had helped organize McCarthy’s wedding and who had let McCarthy store excess furniture at her house. Harding was stabbed several times in the face, chest and abdomen, including one wound piercing her heart. She also suffered “dramatic” injuries to her face, including a broken jaw, crushed cheek bone, and bleeding on the brain. These wounds were consistent with being caused by a meat tenderizer found in the kitchen sink. Harding’s purse was missing from her home.
The second of McCarthy’s elderly victims was eight-five-year-old, physically-disabled Jettie Lucas, a “distant cousin” of McCarthy’s mother. Lucas was stabbed in the face, including wounds piercing her eyes. She also suffered blunt force trauma to her head and neck, including strikes which tore one of her ears, fractured her skull, and caused bleeding on the brain. These injuries were consistent with a claw hammer found near Lucas’s body. The contents of Lucas’s purse and wallet were missing.
In addition, McCarthy had convictions for forgery, theft of services, and prostitution. While incarcerated awaiting trial, McCarthy assaulted, threatened and took advantage of other inmates, and violated many prison rules.
Texas Execution Information Center by David Carson.
Kimberly Lagayle McCarthy, 52, was executed by lethal injection on 26 June 2013 in Huntsville, Texas for the murder and robbery of a woman in her home.
On 21 July 1997 in the Dallas suburb of Lancaster, McCarthy, then 36, went to the home of her neighbor, Dorothy Booth, 71. She asked to borrow some sugar, and Booth let her inside. McCarthy then began attacking Booth, stabbing her five times and hitting her in the face with a candelabrum. She cut off Booth's left ring finger in order to obtain her diamond wedding ring. She took the victim's purse, walked out of the home, and cleaned herself up. The next morning, McCarthy, dressed for work, drove Booth's car to a crack house to purchase crack cocaine. She later pawned the victim's wedding ring for $200 and used her credit cards at least four times that day.
In a written confession taken after her arrest, McCarthy stated that two drug dealers who were visiting her at her house asked her, after her money ran out, if they knew of anyone she could borrow money from to buy more drugs from them. She said no, but "they began to be verbally abusive & threatening harm to me if I didn't." She then suggested her neighbor, Dorothy Booth. The drug dealers told her to call Booth and ask to borrow some sugar, as a pretense for going to her house so that they could rob her. She stated that they went over together, and when Booth opened the door for her, the drug dealers went inside, while she waited outside in Booth's car. They came outside with Booth's belongings, and they drove away. McCarthy admitted driving Booth's car, selling her possessions for drugs, and using her credit cards.
At McCarthy's trial, the defense failed to present any evidence that anyone but McCarthy was involved in the killing. McCarthy had a previous felony conviction for forgery. She was given a two-year prison sentence, which she began serving in February 1990. She was released on parole after four months, and was discharged from her sentence in December 1991. She also had a misdemeanor conviction for prostitution in 1990.
The state presented evidence that McCarthy had murdered two other elderly women in 1988. Maggie Harding, 82, was a longtime friend of McCarthy's mother. She helped organize McCarthy's wedding and had let her store some furniture at her house. The second was Jettie Lucas, an 85-year-old distant relative. Both women were killed in their homes and both suffered stab wounds and multiple blunt force injuries. A claw hammer was used on Lucas, while Harding was bludgeoned with a metal meat tenderizer. Both of their purses and credit cards were stolen.
A jury convicted McCarthy of capital murder in November 1998 and sentenced her to death. In December 2001, however, The Texas Court of Criminal Appeals overturned her conviction because the police took her confession from her after she requested a lawyer. McCarthy was put on trial again. In the second trial, prosecutors presented a butcher knife found in McCarthy's home. It had been washed, but forensic experts found blood remains inside the plastic handle. The blood contained Booth's DNA.
In closing arguments, defense attorney Brad Lollar argued that the state had no evidence - "no hair, no fiber, no fingerprints, no blood" - placing McCarthy in the victim's home. A new jury convicted McCarthy in October 2002 and re-sentenced her to death. In her appeals, she argued that her attorney, who succeeded in having her first conviction overturned on the basis of the inadmissible confession, rendered ineffective assistance at her second trial by not introducing that same confession as evidence. The Court of Criminal Appeals affirmed her new conviction and sentence in September 2004. All of her subsequent appeals in state and federal court were denied.
McCarthy's execution had been scheduled for January, but her lawyer won a stay of execution so that he could present his claim that racial bias was used in the selection of her jury. The execution was rescheduled for April after the court heard and denied the claim. McCarthy then won another stay because the Texas legislature was in session and was considering bills that could have impacted her case. McCarthy declined to speak with reporters while on death row.
Though many condemned prisoners address their crime in their last statements, either to express remorse or assert their innocence, McCarthy did not. "This is not a loss. This is a win," she said. "You know where i'm going. I'm going to be home with Jesus. Keep the faith. I love you all." The lethal injection was then started. She was pronounced dead at 6:37 p.m.
McCarthy was the 500th person, but only the fourth woman, executed in Texas since 1982, when the death penalty resumed after an 18-year hiatus. 261 of those executions have occurred since 2001, during Rick Perry's tenure as governor. The last woman executed in the state was Frances Newton in 2005.
"Dallas woman becomes Texas' 500th execution," by Allan Turner. (June 27, 2013 1:14am)
HUNTSVILLE — As scores of death penalty protesters chanted, clapped and sang Wednesday, Dallas County convicted murderer Kimberly McCarthy became the 500th Texas inmate executed since the state re-activated the death penalty 31 years ago. On the other side of the prison, a small group of capital punishment supporters silently watched as witnesses entered the red brick death house.
Inside the execution chamber, McCarthy, in standard prison garb and strapped down with leather belts, looked toward family and friends in the witness room. "Thank you everybody," she told them. "This is not a loss; this is a win. You know where I am going. I am going home to be with Jesus. Keep the faith. I love you all." The lethal dose of pentobarbital was injected at 6:17 p.m., and McCarthy was declared dead 15 minutes later. She was executed for the July 1997 robbery and murder of her Lancaster neighbor, Dorothy Booth, 71.
After the execution, Booth's daughter Donna Aldred told reporters her mother was "an incredible woman who was taken before her time." "After almost 16 years," she said, "the finality of this event has allowed me to say goodbye to my mother. We are grateful to see justice fulfilled." Randy Browning, a family friend, told those gathered beneath a blistering afternoon sun that the victim's family and friends would "accept closure in whatever form comes our way." McCarthy, he said, never expressed remorse over killing Booth or the elderly victims of two other slayings prosecutors attributed to her.
As the time for the execution approached, protesters from Houston and Dallas gathered in a parking lot adjacent to the prison. "It just seems so obviously wrong," said Kelly Epstein, an anti-death penalty advocate from Spring. "And we just keep doing this. It's part of our violent society — our love of guns, our love of violence. I think each person, even McCarthy, has value and worth." Led by Houston activist Gloria Rubac, protesters - ultimately about a hundred - joined in a chant. "Harris County says death row!" Rubac shouted. "We say hell no!" came the response. "Perry says death row!" Rubac prompted. "We say hell no!" "The death penalty is guilty and should be stopped right now!" Rubac shouted.
The Rev. Peter Johnson, of Dallas, told the crowd that "the death penalty is not only economically stupid. It says something about our moral fiber … The solution to murder cannot be murder." Across the prison grounds, Houstonian Jordan Rhea said he supported McCarthy's execution because "If you take a life, justice needs to be done. It's an eye for an eye."
Inmate's last hours
Another capital punishment supporter, Destiny Thompson, also of Houston, said she felt death was an appropriate punishment because of the brutality of McCarthy's crime. "It was violent, premeditated and inhumane," Thompson said. McCarthy, who consistently refused to talk with the media while on death row, occasionally joked with prison staff while she whiled away her final day in a holding cell just a few feet from the execution chamber. But for the most part, prison spokesman John Hurt said, she was subdued and pensive. The inmate was served a breakfast of oatmeal, fruit and chicken sandwiches at 1:48 a.m. Later in the day she read, packed her belongings and visited with her spiritual advisor, her ex-husband and a prison chaplain. There was no question that McCarthy would be put to death after the Texas Court of Criminal Appeals on Tuesday rejected her second appeal in as many days.
Her lawyer, Maurie Levin of the University of Texas Capital Punishment Clinic, had asked the court to review claims that African-Americans improperly were kept from serving on McCarthy's jury. Three blacks were eliminated in the selection process, and only one ultimately served on the jury. McCarthy was African-American. "The shameful errors that plague Ms. McCarthy's case - race bias, ineffective counsel, and courts unwilling to exercise meaningful oversight of the system - reflect problems that are central to the administration of the death penalty as a whole," Levin said after the court's decision.
McCarthy had no further recourse to the federal courts, her lawyer said. Testimony in the trial indicated that McCarthy, addicted to crack cocaine, approached Booth ostensibly to borrow sugar, then repeatedly stabbed her. McCarthy severed her victim's finger to obtain a ring, which, along with other stolen items, was converted to cash to buy drugs. During the punishment phase of McCarthy's trial, prosecutors told jurors that she also had killed two other women, both of them in their 80s. Both of those victims were related to or were close friends of her family. In addition, McCarthy had been convicted of forgery, theft of property and prostitution.
"Woman executed for 1997 slaying," by Cody Stark. (Thu Jun 27, 2013, 04:48 PM CDT)
HUNTSVILLE — A former drug addict was executed Wednesday evening for the brutal murder of a retired psychology professor in North Texas 16 years ago. Kimberly McCarthy became the 500th inmate and fourth woman to be put to death in Texas since the state reinstated the death penalty in 1982.
The former nursing home therapist, who was also linked to two other homicides, is also the first woman to be executed in the United States since 2010. McCarthy was convicted and sentenced to die for the 1997 robbery and slaying of 71-year-old Dorothy Booth at Booth’s home in Lancaster. Booth, who had offered to give McCarthy a cup of sugar, was beaten and fatally stabbed.
In her final statement Wednesday, McCarthy wanted to say “thanks” to family and friends “who have supported” her over the years. “Thank you everybody,” she said as she stared at her witnesses from the gurney. “This is not a loss, this is a win. You know where I am going. I am going home to be with Jesus. Keep the faith, I love y’all.” As the single dose of pentobarbital began flowing through her veins, McCarthy said “God is good” before her breathing became heavy and she lost consciousness. She was pronounced dead at 6:37 p.m., 20 minutes after the lethal dose was administered.
Booth’s daughter, Donna Aldred, read a statement following the execution, thanking the prosecutors and investigators who handled her mother’s murder. “After waiting 16 years, the finality of today’s events have allowed me to say goodbye to my mother,” Aldred said. “Although I am grateful to see justice served, nothing will ever fill the holes we have in our hearts.” The Texas Court of Criminal Appeals denied McCarthy’s final appeal Tuesday, which contended prosecutors improperly excluded black jurors and that her lawyers failed to challenge the moves at trial or in early appeals. McCarthy is black, and Booth was white. All but one of the 12 jurors at McCarthy’s trial were white.
During her trial, prosecutors showed that McCarthy cut off Booth’s finger to remove the victim’s wedding ring. McCarthy then stole the victim’s car and drove to Dallas where she pawned the ring for money to buy crack cocaine. Evidence also showed she used Booth’s credit cards at a liquor store. Booth’s DNA was found on a 10-inch butcher knife recovered from McCarthy’s home. McCarthy blamed the crime on two drug dealers, but there was no evidence either existed.
Blood DNA evidence also tied McCarthy to the December 1988 slayings of 81-year-old Maggie Harding and 85-year-old Jettie Lucas. Harding was stabbed and beaten with a meat tenderizer, while Lucas was beaten with both sides of a claw hammer and stabbed. McCarthy, who denied any involvement in the attacks, was indicted but not tried for those slayings. - See more at: http://itemonline.com/local/x479821338/Woman-executed-for-1997-slaying#sthash.QpI4MHr6.dpuf
In July of 1997, Kimberly Lagayle McCarthy entered the home of her 71-year old neighbor Dorothy Booth after calling and asking if she could borrow some sugar. Dorothy was a retired nursing professor. McCarthy stabbed Dr. Booth five times with a butcher knife, hit her in the face with a candelabrum, and cut off her left ring finger in order to take her diamond ring. McCarthy then left with Dr. Booth's purse and wedding ring. Eventually, she drove Dorothy's white Mercedes Benz to a crack house where she attempted to purchase crack cocaine. She later pawned Dr. Booth's wedding ring for $200, and used her credit cards at least four times on the day after the murder, at a liquor store in the neighborhood on one occasion. The 10-inch butcher knife was found in McCarthy's home. It had been washed but after dismantling the handle, forensics experts found a blood sample that was matched to Dr. Booth's genetic profile. McCarthy also faces capital murder charges in the December 1988 deaths of Maggie Harding, 81, and Jettie Lucas, 85. The elderly women had befriended her through her mother. Maggie had been stabbed and bludgeoned with a metal meat tenderizer, her body dumped in a garage. McCarthy had done part time office work for Maggie in the past. Maggie's niece told reporters that her aunt had "a tremendous amount of money" in her home. A week later, Jettie Lucas's body was found in her South Dallas home. She was beaten to death with a claw hammer and also stabbed with a knife. Police found a bloody hammer and several knives in the home. They also found a handprint on the refrigerator that was matched to McCarthy after she was arrested for Dorothy Booth's murder. The women were murdered within days of one another in December 1988 and DNA evidence linked McCarthy to their murders.
McCarthy v. State, 65 S.W.3d 47 (Tex.Crim.App. 2001). (Direct Appeal - Reversed)
Defendant was convicted in the trial court, Dallas County, Webb Biard, J., of capital murder and sentenced to death. On automatic appeal, the Court of Criminal Appeals, Cochran, J., held that: (1) defendant's statement to police officer was inadmissible, and (2) error in admitting statement was not harmless. Reversed and remanded. Keller, P.J., filed dissenting opinion, in which Hervey, J., joined.
COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.
On November 17, 1998, a jury convicted appellant of the capital murder of Dr. Dorothy Booth, an elderly retired professor, a murder which was alleged to have occurred on July 21, 1997. See Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. See Tex.Code Crim. Proc. Ann. Art. 37.071 § 2(g).FN1 Direct appeal to this Court is automatic. See Article 37.071 § 2(h). Appellant raises nineteen points of error, but does not challenge the sufficiency of the evidence at either stage of the trial. We will reverse.
Appellant argues in her first point of error that the trial court's admission of her custodial statement violated her right to counsel under the Fifth and Fourteenth Amendments to the United States Constitution. Appellant specifically asserts that the statement was inadmissible because the police questioned her without an attorney present after she had unambiguously invoked her right to counsel.FN2 We agree Appellant also contends that the trial court failed to file findings of fact and conclusions of law on the issue of the voluntariness of her confession, which is required by Article 38.22. Appellant failed, however, to explain how the factual record proves that her confession to the police was made involuntarily, failed to present any legal authority to support the argument that her confession was involuntary, and failed to apply the law to the facts to support the conclusion that her confession was involuntary. Therefore, we conclude that the issue of the voluntariness of appellant's confession was inadequately briefed and presents nothing for review. Tex.R.App. P. 38.1. It does not, therefore, justify an order from this Court remanding this cause to the trial court to conduct a hearing into the voluntariness of appellant's confession and ordering the trial court to enter findings of fact and conclusions of law thereto.
The trial court held a hearing on appellant's motion to suppress her statement. At the hearing, the evidence showed that Sergeant Patrick Stallings of the Lancaster Police Department arrested appellant on July 24, 1997. Stallings stated that after he arrested appellant, he tried to interview her. He testified that “during the interview, [appellant] said she wanted to give a statement, and at the beginning when we started to take the statement, she asked me to write it, then she invoked her right to have an attorney.” Stallings stopped the interview at that point. Appellant also told Stallings that “she did not want to talk with us any further.” Stallings testified that he could not interview appellant any further because she had asked for an attorney. He did not provide her with an attorney, but he did immediately cease the interview. Appellant was transferred from Lancaster to the Lew Sterrett Justice Center in Dallas.
On July 28, 1997, Detective Dwayne Bishop of the Dallas Police Department telephoned Stallings to inquire about the case. Bishop told Stallings that Aaron McCarthy, appellant's husband, asked Bishop to speak with appellant at the Dallas County Jail. Stallings discussed the facts of the case with Bishop and faxed three pages of related information to Bishop. Stallings testified that, “prior to the time Detective Bishop ever went to see” appellant, Stallings “clearly told [Bishop] that [he] had tried to talk to her, she invoked her right not to talk to [him] and invoked her right to an attorney.” It was Stallings' understanding that Bishop would “try to get a statement from her.” Bishop testified, however, that Stallings failed to inform him that appellant had invoked her right to counsel.
On July 29, 1997, Bishop visited appellant at the Sterrett Center. Bishop testified that he read appellant her Miranda rights.FN3 According to Bishop, appellant stated that she understood her rights and indicated that she wanted to continue talking without the presence of an attorney. Bishop testified that he did not threaten or coerce appellant or promise her anything in exchange for her statement. The record, however, does show that Bishop made no attempt to determine if appellant had an attorney so that he could contact that attorney. The record also demonstrates that appellant did not initiate the meeting with Bishop. FN3. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Appellant argued in support of her pre-trial motion to suppress her custodial statement that: The defendant's position, Your Honor, is that she clearly invoked her right to counsel prior to the time she made any statement. Defendant's position is that she clearly invoked her Fifth Amendment privilege and the rights afforded to her under 38.22 of the Texas Code of Criminal Procedure, the rights given to her by Article I, Section 19 and 189 of the Texas Constitution not the make any statement and not to—well, invoke her right to counsel. We think the evidence is clear that after she invoked those rights, agents of law enforcement approached her and initiated further contact, and as a result of that this statement is produced. We feel that this is a violation of those rights guaranteed to the defendant and we would ask that the statement be quashed.
The State did not respond. The trial court summarily ruled that the statement was admissible. When the State moved to admit appellant's statement into evidence during its case-in-chief at trial, appellant renewed her objection. The trial court stated that its prior ruling stood and admitted the statement.FN4
Appellant's written statement reads as follows: Early Tuesday morning about 1:30 a.m., drugs were delivered to me at my residence by “Kilo” and “J.C.”, two guys I met in South Dallas selling drugs, about a month or so ago. Both guys stayed at my residence & partied with me. After my money & the drugs ran out, they asked if I could get some more money. I told them no. They asked me if I knew any of my neighbors I could borrow money from & I said no, not at that hour & that I had to go to work. At that time they began to be verbally abusive & threatening to harm me if I didn't. I called my neighbor “Dorothy Booth”. I'm not sure of the time & got no answer. I waited a while & called back, she answered. “Kilo” told me to hang up & I did. He told me to call back & ask her to borrow some sugar or milk instead of money over the phone, because they were going to rob her & take the car. I called back & asked to borrow sugar, she said ok. Kilo & J.C. followed me to her house, when she opened the door & saw me, to let me in they both pushed the door open & knocked her down. I was shoved back outside to her car. The driver side was unlocked & I was told to stay there & lay down in the front seat. Several minutes later they both came out with her car keys, purse, & CD player. Both guys went back into my house & came out with a jam box, cordless phone & caller ID. They told me to drive to Mi Amore motel on second avenue to make a pick up. I was told to park on the next street over & wait for them. After about 3–5 minutes or so I drove off with all the belongings they took & went to Fitzhugh to the dope house. No one answered the door so I went to Perry street dope house. I took everything out of the car & went inside to get dope. They didn't have any so “Smiley” said he would go around the corner & get me some. I gave him the keys & another girl rode with him. They came back & the police stopped them in front of the dope house on Perry street. I went to the back of the house & waited a few minutes & left out the back door to get drugs elsewhere. A few hours later I returned to Perry street dope house & “Smiley” was upset that the cops stopped him. He gave me the car keys back. He asked me if the car was stolen & I said no. He wanted to rent it out for dope so I did & left. After the dope ran out I searched the purse & found a diamond ring & credit cards. I took the ring to the pawn shop & sold it. Later I used the credit card at the grocery store & gas station to purchase cigarettes by the carton for resale at the “boot leg” for cash. I went to a friend's house to smoke dope. He sold the caller ID and cordless phone for dope money. The jambox was sold to an individual at the Mexican dude on Fitzhugh & East Grand. I got a ride with a male & female. We went to several gas stations & she went inside to use the credit cards once or twice.
Appellant argues on appeal that her statement was inadmissible because Bishop approached her and initiated further contact after she invoked her right to counsel. She is correct.
Once a suspect has invoked the right to counsel during questioning by law enforcement, the Fifth Amendment right to counsel has been invoked and all interrogation by the police must cease until counsel is provided or the suspect reinitiates conversation. See Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Miranda, 384 U.S. at 474, 86 S.Ct. 1602; Dinkins v. State, 894 S.W.2d 330, 350–51 (Tex.Crim.App.1995).
This is a clear, “bright line” constitutional mandate frequently repeated by the United States Supreme Court. See Minnick v. Mississippi, 498 U.S. 146, 150, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (tracing the historical reiterations of the rule and noting that “[t]he merit of the Edwards decision lies in the clarity of its command and the certainty of its application”). This bright and unbending rule “conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms.” Minnick, 498 U.S. at 151, 111 S.Ct. 486.FN5 State courts are not free to deviate from the firm constitutional mandate set out in Edwards. FN5. The Supreme Court recently declined to modify or jettison the Miranda rule, Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). In Dickerson, Chief Justice Rehnquist, speaking for the Court, rejected the very rule that the State requests us to adopt in this case: that a defendant's custodial statement should be admissible if, under the totality of circumstances, the court finds that the statement was given voluntarily and without mental or physical coercion, regardless of whether the defendant has been given Miranda warnings and invoked his right to consult an attorney. Id. at 2336.
There is no evidence in this record that appellant consulted with counsel before Detective Bishop questioned her. There is no evidence in this record that appellant herself affirmatively reinitiated conversations with law enforcement. The State does not argue that appellant waived her right to counsel in either of these modes. Instead, the State contends that Bishop did not, in fact, coerce or badger appellant into making a written statement, and therefore, the underlying purpose of the Edwards rule was fulfilled. That may be true. However, the Edwards rule acts as a “clear and unequivocal” guideline to law enforcement precisely because it is “relatively rigid.” See Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). When a person subjected to custodial interrogation unambiguously invokes the right to counsel, all questioning must cease. Interrogation may not be reinitiated by the police FN6 at any time or in any manner unless the person has consulted counsel. Id. at 681–82. Period. FN6. Of course, if the arrestee reinitiates the conversation, the Edwards rule is satisfied.
The State also argues that Detective Bishop did not know that appellant had invoked her right to counsel. Whether or not Stallings informed Bishop of appellant's invocation of her right to counsel is irrelevant because courts impute knowledge of the invocation of any Miranda rights to all representatives of the State. See Michigan v. Jackson, 475 U.S. 625, 634, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); Sterling v. State, 800 S.W.2d 513, 520 (Tex.Crim.App.1990). Moreover, Stallings' sworn testimony revealed that he informed Bishop that appellant invoked her right to counsel and that Stallings ceased his interrogation of appellant after that invocation.
In sum, the Edwards rule does not take into account the good intentions of the individual police officer, the lack of official coercion or badgering in the particular case, or the actual voluntariness of a person's custodial statement. Edwards represents a bright and firm constitutional rule that applies to all suspects and all law enforcement officers. We hold, therefore, that the trial court erred in admitting appellant's statement into evidence.
We must now determine whether this error harmed appellant. Texas Rule of Appellate Procedure 44.2(a) provides that where, as here, the appellate record in a criminal case reveals constitutional error, we must reverse a judgment of conviction or punishment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex.R.App.P. 44.2(a). We begin by reviewing the trial record to determine how the State used appellant's statement against her.
We first note that the State offered ample evidence of appellant's guilt from sources independent of her statement. Dr. Booth's daughter testified that, six months prior to her death, Dr. Booth told her that “the black lady that lived across the alley” called her in the middle of the night and asked to borrow money. The victim's caller ID records showed that she received two calls from an anonymous number on July 22, 1997, at 6:19 a.m. and 6:29 a.m. Harry Wilkins, Jr., aka, “Smiley,” testified that appellant was driving the victim's white Mercedes Benz station wagon when she met him on the morning of July 22, 1997, to inquire about buying crack cocaine. The State further showed that appellant pawned the victim's diamond ring on July 22, 1997, and that she used the victim's credit cards at several locations on July 23, 1997. When appellant was arrested on July 24, 1997, she attempted to take with her a tote bag containing the victim's driver's license and several of the victim's credit cards. The State's strongest independent evidence of appellant's guilt was produced when the police executed a search warrant at appellant's home on July 24, 1997. Officers found a large knife stained with Dr. Booth's blood in appellant's kitchen cabinet above the refrigerator. The bloody knife matched other knives found in the kitchen drawers of appellant's house.
Nevertheless, the State relied on appellant's statement extensively, both during its case-in-chief and during its closing arguments. Initially, the State used the statement to set up appellant's version of what happened on the early morning of July 21, 1997. The State used the statement to discredit appellant's version of events as compared to the State's principle theory of the case—that appellant acted alone in the murder and robbery of Dorothy Booth. For example, during direct-examination of Bishop, the State asked him if appellant included in her statement a way for the State to further identify “Kilo and J.C.” or find them. Bishop responded in the negative, casting doubt on whether “Kilo and J.C.” even existed. During its closing argument at guilt/innocence, the State rhetorically asked the jury: if there really were a “Kilo and J.C.,” why would they hide the murder weapon in appellant's kitchen cabinet? The State also questioned why “Kilo and J.C.” left appellant alone in the victim's car with all of the stolen property while they went inside a crack house to negotiate the purchase of drugs.
Additionally, the State made significant use of this statement to establish appellant's guilt for the capital murder of Dr. Booth. The State admitted the statement through the testimony of its last witness during its case-in-chief, as the last exhibit placed before the jury for its consideration. The State used the statement during the presentation of its case to prove that appellant knew Dr. Booth and called her on the morning of the offense to make sure Dr. Booth was home and awake. Even though appellant tried to lay blame for the robbery on “Kilo and J.C.,” the State used the statement to show that appellant was aware that “Kilo and J.C.” planned to rob Dr. Booth. Bishop also testified that appellant never said in her statement that she left, or tried to leave, to call the police during any of the times that “Kilo and J.C. left her alone in the car.” Instead, the statement showed that appellant remained at the scene of the crime for three to five minutes. The State, during its direct examination of Bishop, demonstrated to the jury the length of a five minute period by having Bishop sit silently on the witness stand while the prosecutor let five minutes tick off of his watch. After this, the State allowed Bishop to reiterate that appellant never tried to leave the scene to get help from anyone.
The State also used appellant's statement during its case-in-chief to show how her post-offense behavior indicated her guilt. The State used the statement to place evidence of flight from the police before the jury. Specifically, during her account of the attempt to trade Dr. Booth's property to “Smiley” for drugs, appellant states that the police stopped “Smiley” in the victim's car in front of “Smiley's” house. In her statement, appellant recounted how she ran out the back door of “Smiley's” house and hid before returning to get the car keys back from “Smiley.” Appellant's statement was used in the State's examination of Bishop to point out several obvious falsehoods made by appellant. Toward the end of Bishop's testimony, the State questioned Bishop regarding appellant's oral comments. After her statement was written and signed, appellant told Bishop that portions of her statement were not true. According to Bishop, appellant then told him: That she would tell the truth. Number one, she didn't want to get the death penalty; and, number two, if she was going to get the death penalty, that if she can get just one rock of cocaine, then she would tell the truth, but she wanted to get one rock of cocaine before she died. The State then passed Bishop to appellant for cross-examination.
Lastly, the State relied extensively on appellant's statement during its closing arguments to the jury at guilt/innocence. Appellant's inadmissible statement became the rhetorical strawman that the State effectively decimated. The State made no less than ten references to appellant's statement in its arguments. The State referred to the statement as proof that it was appellant who called Dr. Booth on the morning of the murder. It pointed out in argument that appellant went to Dr. Booth's door to get sugar in order to get Dr. Booth to open her door. The State argued that it eliminated its first suspect, “Smiley,” from suspicion in the murder of Dr. Booth because appellant explained in her statement that she allowed “Smiley” to borrow Dr. Booth's car for a few hours in exchange for drugs. The State used appellant's statement to remind the jury that appellant ran from the police at “Smiley's” house “to avoid detection for this offense.” The State pointed to appellant's statement as proof that appellant had possession of Dr. Booth's property and converted it to cash to buy drugs.
During its final closing argument in rebuttal, the State again relied on appellant's statement, citing it as direct evidence of her guilt. First, the State argued that “Kilo and J.C.” existed only in appellant's statement. The State asked the jury if it made sense to it that “Kilo and J.C.” would want property so badly that they would kill Dr. Booth, take her property, go to south Dallas, leave appellant with all of this stolen property, and walk away. The attorney for the State then argued before the jury, [STATE]: Now, let's assume just for the moment there was this alleged Kilo and J.C. Let's assume that. Let me show you the ways you can find her guilty. One, you can find her guilty as being the one who actually killed Ms. Booth and took her property. Two, you can find her guilty as to what they call a party. If acting with intent to promote or assist in the commission of the offense, okay, she then solicits, encourages or aids J.C. and Kilo. In her own statement she called—she called them, she aided them, she walked over there. It was because of her Ms. Booth opened the door and said, sure, you can find them as a party on that portion. There is a third portion you can find her guilty for capital murder on. That's called a conspiracy theory. Okay? What are we talking about when we talk about conspiracy. Well if people conspire to commit one offense and another offense is committed by one of the conspirators actions, then all conspirators are guilty of the offense committed. So even if you take her statement, okay, and she talks with them, that's conspiring with them about committing a robbery and she aids them, we know that, and either one of those alleged people goes in and kills Ms. Booth, then she can be convicted on conspiracy theory, theory number 3, okay, three ways you can convict. The trial court instructed the jury on the law of parties and the law of conspiracy in the abstract. The trial court also instructed the jury on the law of parties in the second alternative application paragraph, and on the law of conspiracy on the third alternative application paragraph. Thus, the State used appellant's statement as direct evidence of her guilt as a party or co-conspirator.FN7
FN7. Later in its closing argument, the State again used appellant's statement as further proof of her guilt as a party or co-conspirator: [STATE]: She waited outside the victim's house in a car for several minutes. Here's a person whose life has been threatened and these friendly killers leave her outside in the car unguarded, doesn't go to the police, doesn't run for help, doesn't call anybody. Does that make sense to you? That's the first wait. What about the second wait? She waited outside while the alleged killers went in her house. Just wait. Let's wait for the killer. See? Does that make any sense to you? You wait outside, doesn't run away, your life is supposed to be threatened? No, it doesn't. Three, the third wait. She waited in the car with the keys, we know, about a block off of Second Avenue for three to five minutes. Folks, common sense that there was—if there was a real Kilo and J.C., you hang around knowing that these are the type of people that can kill and you just wait on them? No, that's not true.
The State also asked the jury to look to appellant's statement to find her motive for committing the capital murder of Dr. Booth. [STATE]: On the TV you hear the words sometimes motive, means and opportunities. We are not required to prove motive, but I want to cover those with you to show how we put the facts of the together. Motive, financial problems, wanted crack. We know that even from her own statement. Okay?
Lastly, the prosecutor used appellant's statement to help explain the murder weapon. [STATE]: Think about this, Folks. In her statement—here's where the truth rings. In her statement she never ever mentions the knife. What did they threaten her with if they did? Never mentions a knife. She never mentions them picking it up taking it out of the house. These are dope dealers. What did they need to get a knife for? She never mentions them taking it back to her house. She never once mentions the knife. Why? Because the knife is what ties her into the crime.
In analyzing whether the constitutionally erroneous admission of a defendant's statement was harmless, we look first to Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). In Satterwhite, the Supreme Court emphasized that the decision on harmlessness was not determined solely on the basis of whether there was sufficient evidence, independent of the defendant's inadmissible statement, for a reasonable jury to reach the same conclusion which it had reached with the statement.
The Court of Criminal Appeals thought that the admission of [the tainted] testimony on this critical issue was harmless because the “properly admitted evidence was such that the minds of the average jury would have found the State's case (on future dangerousness) sufficient ... even if the testimony had not been admitted.” The question, however, is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 486 U.S. at 258–59, 108 S.Ct. 1792. The principle set out in Satterwhite still applies to this Court's review of harm in the admission of appellant's statement into evidence because this is federal constitutional error under Tex.R.App. P. 44.2(a). We must review whether the admission of appellant's statement contributed to the jury's verdict of guilty in this cause, regardless of whether there is evidence independent of the statement that is otherwise sufficient to sustain the jury's verdict of guilt.
“An appellate court should not focus on the propriety of the outcome of the trial.” Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000). If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error is not harmless beyond a reasonable doubt. See Satterwhite, 486 U.S. at 256–257; Wesbrook, 29 S.W.3d at 119. The reviewing court should calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence. See Wesbrook, 29 S.W.3d at 119. A defendant's statement, especially a statement implicating her in the commission of the charged offense, is unlike any other evidence that can be admitted against the defendant. See Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In Fulminante, the defendant was convicted through the use of a statement obtained in violation of his Fifth and Fourteenth Amendment rights. See id. at 287–88, 111 S.Ct. 1246. The Supreme Court noted that [A] defendant's own confession is probably the most probative and damaging evidence that can be admitted against him. … [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so. See id. at 296, 111 S.Ct. 1246. In this case, appellant's statement did not place the murder weapon in her own hands, as the defendant's confession did in Fulminante. But her statement was, as the State's attorney so effectively pointed out in his closing argument, powerful enough to establish her guilt of capital murder either as a party or as a conspirator. It was also used to paint appellant as an unrepentant liar and set out her cruel and greedy motive for killing her elderly neighbor.
A confession is likely to leave an indelible impact on a jury. “If the jury believes that a defendant has admitted the crime, it will doubtless be tempted to rest its decision on that evidence alone, without careful consideration of the other evidence in the case. Apart, perhaps, from a videotape of the crime, one would have difficulty finding evidence more damaging to a criminal defendant's plea of innocence.” Fulminante, 499 U.S. at 313, 111 S.Ct. 1246 (Kennedy, J., concurring). Regardless of whether there was, apart from appellant's statement, sufficient evidence to conclude that the outcome of the trial was proper, we find it impossible to say there is no reasonable likelihood that the State's use of appellant's statement materially affected the jury's deliberations. See Wesbrook, 29 S.W.3d at 119; Garcia v. State, 919 S.W.2d 370, 380 (Tex.Crim.App.1994). We cannot conclude, beyond a reasonable doubt, that the admission of appellant's unconstitutionally obtained statement did not contribute to the jury's verdict of guilty.
Although we are slow to overturn the verdict of a jury, when fundamental constitutional protections are violated, however innocently, we must uphold the integrity of that law. Accordingly, we sustain appellant's first point of error.FN8 We reverse the judgment of the trial court and remand this cause to that court for a new trial. FN8. Because we reverse the judgment on the basis of Edwards error, the other issues appellant raises are moot.
KELLER, P.J., filed a dissenting opinion in which HERVEY, J., joined. KEASLER, J., not participating.
KELLER, P.J., filed a dissenting opinion in which HERVEY, J., joined.
If appellant's statement were truly a confession, in the sense that in it appellant admitted that she murdered Mrs. Booth, I would agree with the Court that its admission harmed appellant. Questions of harm and of the applicability of cases dealing with the improper admission of confessions are complicated, however, by the fact that when appellant gave her voluntary statement to Detective Bishop, she meant it to be exculpatory. And it was exculpatory. If the jury had believed what appellant said in her statement, the jury could have decided that appellant acted under duress on the morning of the murder and that she was not guilty of any crime at all. The introduction of the statement provided the jury with an option that did not exist in the absence of the statement.
In fact, and not surprisingly, appellant fashioned her defense around the statement. Max Courtney, director of a crime lab, testified that he was furnished photographs, witness statements, police statements, prosecution reports, autopsy reports, and more. From those items, he determined that nothing in the physical evidence at the murder scene was inconsistent with appellant's statement to Detective Bishop. Courtney further testified that the physical evidence at the murder scene appeared to be consistent with two different pairs of shoes leaving marks in the entryway, and with a bloody knife mark that did not match the knife found in appellant's house.
Because of the admission of appellant's statement, the trial court included in the jury charge an instruction on duress. Defense counsel was also able to argue duress to the jury, contending that appellant was coerced into helping Kilo and J.C. and that her statement was consistent with the evidence. The defense of duress, and Max Courtney's testimony backing up the story in the statement, were available to appellant because her statement was admitted at trial. It is true that appellant was stuck with that particular defense once the statement was admitted, but she got the benefit of having the defensive theory she herself devised placed before the jury without having to testify. Moreover, if she had testified to facts inconsistent with the Kilo–J.C. duress story, the State could have introduced the statement to impeach her credibility.FN1 Appellant's options became limited the moment she gave the statement, regardless of whether the State introduced it during its case-in-chief. The possibility of raising an actual defense other than duress was, to all intents and purposes, foreclosed by the State's ability to use appellant's statement for impeachment. FN1. Mincey v. Arizona, 437 U.S. 385, 397–398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).
Setting aside consideration of the statement, there was abundant evidence that appellant killed Mrs. Booth. Appellant was seen driving Mrs. Booth's car within about an hour of the murder. Appellant pawned Mrs. Booth's ring that same day. Appellant used Mrs. Booth's credit cards several times and had the credit cards and Mrs. Booth's driver's license when arrested. Police found a large knife, cleaned but stained with Mrs. Booth's blood, in appellant's kitchen cabinet. The knife matched others found in appellant's kitchen. The ultimate question is whether the admission of the statement contributed to appellant's conviction or punishment.FN2 The Kilo–J.C. story offered an explanation for all of the above evidence, to one extent or another. Without the Kilo–J.C. story, there was no explanation. And because the Kilo–J.C. story was available for impeachment purposes, appellant was limited in her ability to propose a different defense to the jury. FN2. Tex.R.App. P. 44.2(a).
The evidence that fit least well with the Kilo–J.C. story was the evidence that was also, absent the story, most incriminating, namely: the knife. The appearance of what was apparently one of appellant's own knives, cleaned, in her kitchen cabinet, with the victim's blood under the handle, is consistent with the Kilo–J.C. story because according to the story, the two men were at appellant's house both before and after the murder. Counsel suggested in argument that the men took the knife and then after the murder put it in the cabinet to incriminate appellant. In the absence of the Kilo–J.C. story, there is no explanation at all for the presence of the bloody knife in appellant's kitchen cabinet. The Kilo–J.C. story offers an explanation for the other evidence, such as appellant's possession of Mrs. Booth's car, credit cards, and ring. It may or may not be a very good explanation, and in fact the jury rejected it. But it was better than no explanation, which is what appellant had absent the admission of the statement.
The State used appellant's statement to argue that she was a liar. Showing a defendant to be a liar could establish harm. But in this case, the very same evidence that tended to show appellant was a liar was the evidence that tended to show she was a murderer. If the jury believed that the presence of the knife in appellant's kitchen, for instance, showed that appellant lied about Kilo and J.C., then the jury also believed that appellant had the murder weapon hidden in her kitchen cabinet, with no explanation for it being there. The State also used appellant's statement to put her at Mrs. Booth's house the morning of the murder. But appellant's possession of the victim's car and other property shortly after the murder ties her to the murder anyway. Her statement at least attempted to explain that possession in a manner consistent with innocence. Absent the statement, there was no explanation. Her statement was buttressed by Max Courtney's testimony about two possible different shoe prints and a possible different knife, and supported by his claim that everything appellant said beginning with “I called my neighbor Dorothy Booth” to “both guys went back into my house and came out with my jam box, cordless phone and caller ID” was consistent with the physical evidence at the murder scene.
The State argued to the jury that it could find appellant guilty of capital murder even if it believed her story about Kilo and J.C., by convicting her as a party or as a conspirator. But that is not true unless the jury disbelieved the claim of duress. Of course, the jury could believe one part of the statement and disbelieve other parts, but if the jury had believed all of it, appellant would have been acquitted. Even if the jury believed only part of the statement, appellant was still no worse off than she would have been with no defensive theory at all, or with whatever defensive theory counsel could suggest in argument.
Given the extremely damaging evidence against appellant, and the fact that the statement put before the jury appellant's explanation for the evidence and her claim of innocence, and the fact that making the statement limited her options regardless of whether it was introduced in the State's case-in-chief, I would hold that appellant was not harmed by the admission of the statement.
McCarthy v. State, 2004 WL 3093230 (Tex.Crim.App. 2004). (Direct Appeal - Affirmed)
Background: Defendant was convicted in the trial court, Dallas County, Webb Biard, J., of capital murder and was sentenced to death. After new trial, 65 S.W.2d 47, defendant appealed.
Holdings: The Court of Criminal Appeals, Cochran, J., held that: (1) any error in trial court's denial of defendant's challenges to certain jurors for cause was harmless; (2) evidence supported future dangerousness special issue; (3) autopsy photographs were admissible at trial; (4) death penalty scheme did not violate due process even though it did not require the state to prove absence of mitigating circumstances; (5) state did not have to allege punishment issues in indictment; (6) requirement of at least ten “no” votes for jury to return negative answer to punishment issues did not violate due process or defendant's right to be free from cruel and unusual punishment; and (7) trial court's failure to define the terms “probability,” “criminal acts of violence,” and “continuing threat to society” in jury instructions at punishment phase of trial did not violate defendant's constitutional rights. Affirmed.
COCHRAN, J., delivered the opinion of the Court, joined by KELLER, P.J., and MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, and HOLCOMB, JJ.
Appellant was convicted in November 2002 of capital murder. Tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g). FN1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises fifteen points of error. We affirm.
In her first point of error, appellant claims the trial court erred by denying her challenge for cause against prospective juror Donald Scott in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article 35.16. In her second point of error, appellant claims the trial court abused its discretion in denying her challenge for cause against prospective juror Joe Fox. Appellant used all of her peremptory strikes and the trial court granted two additional strikes. After appellant used the additional strikes, she requested more, but the trial court denied that request. She identified an objectionable juror she had to accept. Chambers v. State, 866 S.W.2d 9, 22-23 (Tex.Crim.App.1993).
When the trial court erroneously overrules a challenge for cause, a defendant is harmed if he uses a peremptory strike to remove the challenged venireperson and thereafter suffers a detriment. Sells v. State, 121 S.W.3d 748, 758 (Tex.Crim.App.), cert. denied, 540 U.S. 986, 124 S.Ct. 511, 157 L.Ed.2d 378 (2003); Feldman v. State, 71 S.W.3d 738, 743-44 (Tex.Crim.App.2002). The record reflects that appellant received two extra peremptory strikes. Therefore, appellant can show harm only if at least three complained-of challenges were erroneously denied. Sells, 121 S.W.3d at 758. Appellant complains of just two overruled challenges for cause. Regardless of any error in the trial court's ruling on these challenges for cause, appellant has failed to show she was harmed. Points of error one and two are overruled.
In her third point of error, appellant claims the evidence is legally insufficient to support the jury's verdict, beyond a reasonable doubt, that she would commit criminal acts of violence that would constitute a continuing threat to society. Appellant argues that nothing in the facts of the instant offense or in the evidence of extraneous offenses and bad acts supports a conclusion that she would constitute a continuing danger to prison society.
The term “society” within this context encompasses both the prison population and the free population. Hall v. State, 67 S.W.3d 870, 873 (Tex.Crim.App.2002). Thus, the State has the burden of proving beyond a reasonable doubt that there is a probability that appellant, if allowed to live, would commit criminal acts of violence in the future, so as to constitute a continuing threat, whether in or out of prison. Conner v. State, 67 S.W.3d 192, 199 (Tex.Crim.App.2001). As a reviewing court, we view all of the evidence before the jury in the light most favorable to its finding to determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found beyond a reasonable doubt that the answer to the first punishment issue was “yes.” Id.
The evidence at the guilt stage reflected that appellant and the 71-year-old victim, Dorothy Booth, were neighbors. Mrs. Booth let appellant into her house to lend her some sugar. Appellant stabbed Mrs. Booth five times, hit her in the face with a candelabrum, cut off her left ring finger in order to take her diamond ring, and nearly severed her left little finger as well. Appellant left with Mrs. Booth's purse, returned home, and cleaned up. She then drove Mrs. Booth's Mercedes Benz to a “crack house” where she attempted to purchase crack cocaine. Witnesses who saw appellant at the “crack house” on the morning after the murder testified that she was calm, did not appear to be on drugs, and was dressed for work. She pawned Mrs. Booth's wedding ring for $200, and used the victim's credit cards at least four times on the day after the murder.
At the punishment phase of the trial, the State presented evidence that appellant had murdered two other elderly women in 1988. One of these victims had been a long-time friend of appellant's mother who had agreed to store some of appellant's furniture in her garage. The other victim was a distant relative of appellant. Both women suffered multiple blunt force injuries and stab wounds. The only items taken from the victims were their purses and credit cards. The State also presented evidence that appellant was convicted of forgery in 1988, prostitution in 1990, and theft of services in 1996. Finally, the State presented evidence that appellant committed some infractions while in prison, including the refusal to turn over her razor to a guard after showering, and an incident in which she threatened another inmate. Appellant presented evidence that her crimes resulted from her addiction to crack cocaine and the need for cash to support the addiction. Appellant also presented testimony of a psychologist that there was a 9.4 to 14.7 percent chance that she would commit future acts of violence.
Based upon the brutal and calculated nature of appellant's conduct in committing the instant offense, the two extraneous murders in which appellant used her position of trust with the elderly victims to gain entry into their homes, the brutal nature of those offenses, and other bad acts, including violating prison rules, a rational trier of fact could conclude beyond a reasonable doubt that appellant would commit criminal acts of violence that would constitute a continuing threat to society. Point of error three is overruled.
In points of error four through seven, appellant claims the trial court abused its discretion by admitting into evidence inflammatory autopsy photographs. According to appellant, all of the complained-of photos were color images projected before the jury on a “giant-size television screen.” The first complained-of group of photos, Exhibits 92, 93, 94, 95, 97, and 98, are autopsy photos of Mrs. Booth, admitted into evidence at the guilt phase. Appellant argues that because the manner and means of Mrs. Booth's death was not contested and the medical examiner was able to communicate the nature and extent of the injuries without the aid of the photos, the photos did not assist the jurors but served only to inflame them. In these circumstances, appellant contends, the danger of unfair prejudice substantially outweighed any probative value.
Appellant also complains of Exhibits 181 through 187, autopsy photos of Maggie Harding, the victim of an extraneous murder, and Exhibits 189 through 193, autopsy photos of Lettie Lucas, the victim of another extraneous murder, which were admitted at the punishment phase of the trial. Appellant argues that the manner and means of Harding's and Lucas' deaths were not contested, the photos were “entirely cumulative” of the medical examiner's testimony regarding the causes of the victims' deaths, and merely served to inflame the jury.
The admissibility of a photograph is within the sound discretion of the trial judge. Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App.1997). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Hayes v. State, 85 S.W.3d 809, 816 (Tex.Crim.App.2002); Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App.2001). Proper analysis under Rule of Evidence 403, in weighing the probative value of a photo against its prejudicial effect, includes but is not limited to: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Erazo v. State, No. 2206-02, slip op. at 3-4 (Tex.Crim.App. June 16, 2004). We also consider the form, content, and context of the photos at issue. Id. at 9.
Each of these photos depicts a different injury or group of injuries to different parts of the victims' bodies. The photos were referred to by the medical examiner when discussing the various injuries and the probable manner and means of the injuries and causes of death. Contrary to appellant's assertions, Mrs. Booth's cause of death was a fact issue for the jury to resolve at the guilt phase, and the manner, means, extent and nature of all of the victims' injuries were factors for the jury to consider in addressing, at punishment, the issue of appellant's future dangerousness. The photos were not duplicative or cumulative, and served to aid the medical examiner's explanation of issues relevant to the State's case. Thus, the photos were probative of matters that the State was required to prove and were helpful in assisting the jury to visualize the evidence and weigh it accordingly. Although testimony relating to the victims' injuries was extensive, little additional time was expended in admitting the photos. And while the photos were graphic in their depiction of the injuries inflicted on the victims, their subject matter was not so emotionally charged as to preclude their admission. Compare Erazo, No. 2206-02, slip op. at 15-17. The probative value of the photos was not substantially outweighed by any unfair prejudicial effect. Therefore, the trial court did not abuse its discretion in overruling appellant's objections to the photos. Points of error four through seven are overruled.
In her eighth point of error, appellant claims the Texas death-penalty scheme violates the due-process protections of the United States Constitution because the punishment issue related to mitigation fails to require the State to prove the absence of sufficient mitigating circumstances beyond a reasonable doubt, contrary to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. We have previously rejected these identical contentions. Paredes v. State, 129 S.W.3d 530, 541 (Tex.Crim.App.2004); Resendiz v. State, 112 S.W.3d 541, 549-50 (Tex.Crim.App.2003), cert. denied, 72 U.S.L.W. 3688 (May 3, 2004). Appellant does not persuade us that these prior cases were wrongly decided. Point of error eight is overruled.
In point of error nine, appellant claims the trial court erred in denying her motion to set aside the indictment for failure to allege all of the necessary elements of the offense in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Appellant argued in her motion, and re-asserts now, that the punishment issues are elements of the crime of capital murder that the State must allege in the indictment pursuant to Apprendi. We have held that Apprendi does not compel the State to allege the punishment issues in the indictment. Rayford v. State, 125 S.W.3d 521, 533 (Tex.Crim.App.2003). The trial court did not abuse its discretion in denying appellant's motion. Point of error nine is overruled.
In her tenth point of error, appellant claims the Texas death-penalty scheme violated her due process rights and her right to be free from cruel and unusual punishment under the United States Constitution by requiring at least ten “no” votes for the jury to return a negative answer to the punishment issues. We have repeatedly addressed and rejected such claims. Id.; Turner v. State, 87 S.W.3d 111, 118 (Tex.Crim.App.2002), cert. denied, 538 U.S. 965, 123 S.Ct. 1760, 155 L.Ed.2d 519 (2003); Jackson v. State, 33 S.W.3d 828, 841 (Tex.Crim.App.2000). Point of error ten is overruled.
In point of error eleven, appellant claims the Texas death-penalty scheme violated her rights under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution because of vague, undefined terms in the jury instructions at the punishment phase of the trial that effectively determine the difference between a life sentence and the imposition of the death penalty. Appellant complains of the trial court's failure to define “probability,” “criminal acts of violence,” and “continuing threat to society.” We have repeatedly rejected identical claims. Rayford, 125 S.W.3d at 532; Chamberlain v. State, 998 S.W.2d 230, 237-38 (Tex.Crim.App.1999). Point of error eleven is overruled.
In her twelfth point of error, appellant claims the Texas death-penalty scheme denied appellant due process of law, and imposed cruel and unusual punishment in violation of the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution because of the impossibility of simultaneously restricting the jury's discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence militating against imposition of the death penalty. Appellant relies on Justice Blackmun's dissenting opinion in Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting). This argument has been repeatedly rejected. Rayford, 125 S.W.3d at 532; Murphy v. State, 112 S.W.3d 592 (Tex.Crim.App.2003), cert. denied, 541 U.S. 940, 124 S.Ct. 1660, 158 L.Ed.2d 363 (2004); Chamberlain, 998 S.W.2d at 238. Points of error twelve and thirteen are overruled.
In point of error fourteen, appellant claims the cumulative effect of her enumerated constitutional violations denied her due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution. We have found no constitutional violations; therefore, there can be no adverse cumulative effect. Point of error fourteen is overruled.
In point of error thirteen, appellant asserts the same claim under Article I, §§ 13 and 19, of the Texas Constitution that she asserts in her twelfth point of error. In point of error fifteen, appellant asserts the same claim under Article I, § 19, of the Texas Constitution that she asserts in her fourteenth point of error. Because appellant offers no separate argument or authority in support of these state claims, they are not properly before us. Norris v. State, 902 S.W.2d 428, 446 n. 22 (Tex.Crim.App.1995); Heitman v. State, 815 S.W.2d 681, 690-91 fn. 23 (Tex.Crim.App.1991). Points of error thirteen and fifteen are overruled.
The judgment of the trial court is affirmed. KEASLER, J., not participating.
McCarthy v. Thaler, 482 Fed.Appx. 898 (5th Cir. 2012). (Federal Habeas)
Background: Defendant was convicted of capital murder in Texas court and the Court of Criminal Appeals of Texas, Cochran, J., 2004 WL 3093230,affirmed and denied subsequent application for habeas corpus, 2007 WL 2660306. Defendant then petitioned for federal habeas relief. The United States District Court for the Northern District of Texas, Reed O'Connor, J., 2011 WL 1754199, denied petition and certificate of appealability (COA).
Holdings: Defendant requested COA. The Court of Appeals held that: (1) state appellate court's determination in habeas proceeding that defendant's written statement was inadmissible in punishment phase under Texas law could not be overruled by federal court and so trial defense counsel's failure to seek to introduce that statement could not amount to ineffective assistance, and (2) failure of trial defense counsel to move to exclude victim's daughter from courtroom when she was not testifying was not unreasonable strategic choice, and so COA was not warranted on ineffective assistance basis for that failure. Request denied.
PER CURIAM: FN*
FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
A Texas jury convicted Petitioner Kimberly Lagayle McCarthy of capital murder, and she was sentenced to death. The Texas Court of Criminal Appeals affirmed and denied her subsequent application for habeas corpus. The district court denied her federal habeas petition and declined to grant her a certificate of appealability (“COA”). McCarthy asks this court to grant her a COA on two issues pursuant to 28 U.S.C. § 2253. Because McCarthy cannot make a substantial showing of the denial of a federal constitutional right, we DENY a COA.
The evidence presented at trial established that McCarthy “entered the home of her 71–year old neighbor Dorothy Booth under the pretense of borrowing some sugar and then ‘stabbed Mrs. Booth five times, hit her in the face with a candelabrum, [and] cut off her left ring finger in order to take her diamond ring.’ ” McCarthy v. Thaler, No. 3:07–CV–1631–O, 2011 WL 1754199, at *1 (N.D.Tex. May 9, 2011) (quoting McCarthy v. State, No. 74590, 2004 WL 3093230, at *2 (Tex.Crim.App. Sept. 24, 2004)). McCarthy then left with Mrs. Booth's purse and wedding ring. Eventually, she “drove Mrs. Booth's Mercedes Benz to a ‘crack house’ where she attempted to purchase crack cocaine.” McCarthy, 2004 WL 3093230, at *2. She later “pawned Mrs. Booth's wedding ring for $200, and used the victim's credit cards at least four times on the day after the murder.” Id.
McCarthy was originally convicted of the capital murder of Mrs. Booth in 1998. However, the Texas Court of Criminal Appeals (“TCCA”) reversed her conviction on direct appeal. McCarthy v. State, 65 S.W.3d 47, 49 (Tex.Crim.App.2001). The TCCA held that the trial court had violated McCarthy's right to counsel under the Fifth and Fourteenth Amendments by admitting into evidence a written statement she made to police after she had unambiguously invoked her right to counsel. Id. at 51. Although McCarthy did not admit to physically killing Mrs. Booth in the statement, the TCCA concluded that the statement “was, as the State's attorney so effectively pointed out ..., powerful enough to establish her guilt of capital murder either as a party or as a conspirator.... [and] was also used to paint [her] as an unrepentant liar and set out her cruel and greedy motive for killing her elderly neighbor.” Id. at 55.FN1
FN1. The written statement reads as follows: Early Tuesday morning about 1:30 a.m., drugs were delivered to me at my residence by “Kilo” and “J.C.”, two guys I met in South Dallas selling drugs, about a month or so ago. Both guys stayed at my residence & partied with me. After my money & the drugs ran out, they asked if I could get some more money. I told them no. They asked me if I knew any of my neighbors I could borrow money from & I said no, not at that hour & that I had to go to work. At that time they began to be verbally abusive & threatening to harm me if I didn't. I called my neighbor “Dorothy Booth”. I'm not sure of the time & got no answer. I waited a while & called back, she answered. “Kilo” told me to hang up & I did. He told me to call back & ask her to borrow some sugar or milk instead of money over the phone, because they were going to rob her & take the car. I called back & asked to borrow sugar, she said ok. Kilo & J.C. followed me to her house, when she opened the door & saw me, to let me in they both pushed the door open & knocked her down. I was shoved back outside to her car. The driver side was unlocked & I was told to stay there & lay down in the front seat. Several minutes later they both came out with her car keys, purse, & CD player. Both guys went back into my house & came out with a jam box, cordless phone & caller ID. They told me to drive to Mi Amore motel on second avenue to make a pick up. I was told to park on the next street over & wait for them. After about 3–5 minutes or so I drove off with all the belongings they took & went to Fitzhugh to the dope house. No one answered the door so I went to Perry street dope house. I took everything out of the car & went inside to get dope. They didn't have any so “Smiley” said he would go around the corner & get me some. I gave him the keys & another girl rode with him. They came back & the police stopped them in front of the dope house on Perry street. I went to the back of the house & waited a few minutes & left out the back door to get drugs elsewhere. A few hours later I returned to Perry street dope house & “Smiley” was upset that the cops stopped him. He gave me the car keys back. He asked me if the car was stolen & I said no. He wanted to rent it out for dope so I did & left. After the dope ran out I searched the purse & found a diamond ring & credit cards. I took the ring to the pawn shop & sold it. Later I used the credit card at the grocery store & gas station to purchase cigarettes by the carton for resale at the “boot leg” for cash. I went to a friend's house to smoke dope. He sold the caller ID and cordless phone for dope money. The jambox was sold to an individual at the Mexican dude on Fitzhugh & East Grand. I got a ride with a male & female. We went to several gas stations & she went inside to use the credit cards once or twice.
McCarthy was subsequently re-tried. The jury found her guilty of capital murder, and she was sentenced to death. The TCCA upheld her second capital murder conviction on direct appeal, McCarthy, 2004 WL 3093230, and the Supreme Court of the United States denied her petition for a writ of certiorari. McCarthy v. Texas, 545 U.S. 1117, 125 S.Ct. 2906, 162 L.Ed.2d 298 (2005). McCarthy timely filed a state petition for a writ of habeas corpus. Without holding an evidentiary hearing, the state habeas trial court entered findings of fact and conclusions of law recommending that all requested relief be denied. The TCCA denied relief in an unpublished order and adopted all but two of the state trial court's findings and conclusions. Ex Parte McCarthy, No. WR–50–360–02, 2007 WL 2660306, at *1 (Tex.Crim.App. Sept. 12, 2007). McCarthy filed a federal habeas petition based on nine grounds. The district court denied relief on all of her claims and declined to grant a COA. McCarthy, 2011 WL 1754199. Petitioner appeals, requesting a COA from this court on two of the issues asserted in the district court.
On appeal, McCarthy seeks a COA on two issues raised in the district court. First, she claims that she was denied her right to effective assistance of counsel when her lawyers failed to introduce the written statement she made to police after her arrest as mitigating evidence at the punishment stage of trial. Second, she asserts that she was denied her right to effective assistance of counsel when her lawyers agreed to waive the imposition of Texas Rule of Evidence 614 (“the Rule”) with respect to Mrs. Booth's daughter, Donna Aldred.
To obtain a COA, a prisoner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “[I]n determining this issue, we ‘view[ ] the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).’ ” Druery v. Thaler, 647 F.3d 535, 538 (5th Cir.2011) (quoting Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.2000)). Under § 2254(d), when reviewing a claim adjudicated on the merits by a state court, we defer to the state court's determination regarding that claim, “unless the decision ‘[is] contrary to, or involve[s] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... [is] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Barrientes, 221 F.3d at 772 (quoting 28 U.S.C. § 2254(d)(1) & (2)).
Because both of McCarthy's claims allege ineffective assistance of counsel, we review her claims under the familiar standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on her ineffective assistance claims, McCarthy “must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness and that (2) there is a reasonable probability that prejudice resulted.” Druery, 647 F.3d at 538 (citing Bower v. Quarterman, 497 F.3d 459, 466 (5th Cir.2007)). In assessing the reasonableness of counsel's representation, “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’ ” Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). “To overcome that presumption, a defendant must show that counsel failed to act ‘reasonabl[y] considering all the circumstances.’ ” Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Further, in order to establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly so.’ ” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 778, 178 L.Ed.2d 624 (2011) (citations omitted); see Druery, 647 F.3d at 538–39 (“When our review is governed by AEDPA—as is the case here—our review of the state court's resolution of the ineffective-assistance-of-counsel claim is ‘doubly deferential,’ since the question is ‘whether the state court's application of the Strickland standard was unreasonable.’ ”) (citations omitted). Section 2254(d) applies to McCarthy's ineffective assistance claims. Thus, when deciding whether to grant habeas relief on those claims, “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Richter, 131 S.Ct. at 788.
Accordingly, to obtain a COA on her ineffective assistance claims, McCarthy must show “that it was ‘necessarily unreasonable for the [state court] to conclude: (1) that [s]he had not overcome the strong presumption of competence; and (2) that [s]he had failed to undermine confidence in the jury's sentence of death.’ ” Ayestas v. Thaler, 462 Fed.Appx. 474, 478 (5th Cir.2012) (quoting Cullen, 131 S.Ct. at 1403); see id. (“For a COA, we are limited to deciding whether jurists of reason would find the answers to these questions debatable or whether the issues deserve encouragement to proceed.”) (citation omitted).
McCarthy first claims that her counsel rendered ineffective assistance under Strickland by failing to introduce the written statement she made to police after her arrest as mitigating evidence at the punishment stage of trial. Although she concedes that portions of the statement—even if introduced at punishment—were inculpatory, she argues that the statement also contained mitigating evidence. Specifically, she contends that the statement, inter alia, (1) would have provided evidence that she was not the actual killer, even though she was involved in the murder, (2) would have confirmed that the killing was due to her drug addiction, and (3) would have demonstrated her willingness to cooperate in the investigation of Mrs. Booth's murder. The state habeas court rejected McCarthy's claim. First, it found that the statement would have been inadmissible as a self-serving declaration under Texas law if defense counsel had attempted to introduce it as mitigating evidence at punishment. See Allridge v. State, 762 S.W.2d 146, 152 (Tex.Crim.App.1988) (“[S]elf-serving declarations of the accused are ordinarily inadmissible in his behalf, unless they come under some exception....”) (quoting Singletary v. State, 509 S.W.2d 572, 576 (Tex.Crim.App.1974)). The state court thereby concluded that McCarthy's counsel had not been deficient for failing to introduce the written statement at punishment because the statement would have been inadmissible if offered.
Further, the state habeas court determined that even if the statement were admissible under state law, the decision of McCarthy's counsel not to introduce it was sound trial strategy. For instance, the state court found that the statement contained the following aggravating elements if introduced at punishment: (1) the statement was inconsistent with some of the physical evidence produced at trial, (2) portions of the statement were highly improbable, (3) on direct appeal from her first conviction, the TCCA held that the statement was “used to paint appellant as an unrepentant liar and set out her cruel and greedy motive for killing her elderly neighbor,” McCarthy, 65 S.W.3d at 56, and (4) the statement would have provided the only direct evidence of McCarthy's participation in the offense. Lastly, the state court found that even if McCarthy could establish that her counsel was constitutionally deficient by not introducing the statement, she had failed to show prejudice from that error, i.e., a reasonable probability that but for her counsel's error, the results of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
In denying McCarthy's claim for federal habeas relief on this issue, the district court essentially adopted all three of the state habeas court's rationales for denying relief and declined to grant a COA. McCarthy, 2011 WL 1754199, at *7. We agree with the district court that “ ‘reasonable jurists could [not] debate’ whether the ... petition should have been resolved by the district court in a different manner or ‘that [this issue was] adequate to deserve encouragement to proceed further.’ ” Druery, 647 F.3d at 539 (citation omitted).
To establish that her counsel was ineffective, McCarthy must first show that her counsel was deficient. But McCarthy cannot show that reasonable jurists could find debatable the district court's conclusion that it was not “necessarily unreasonable for the [TCCA] to conclude [ ] that [McCarthy] had not overcome the strong presumption of competence.” Cullen, 131 S.Ct. at 1403. As an initial matter, for McCarthy's counsel to have been deficient for failing to introduce evidence at trial, the evidence must have been admissible under Texas law. See Turner v. Quarterman, 481 F.3d 292, 298 (5th Cir.2007) (“For Turner's counsel to be deficient in failing to object, the objection must have merit under Texas law.”). Here, the state habeas trial court determined that McCarthy's statement would have been inadmissible under Texas evidentiary law if her counsel had attempted to introduce it as mitigating evidence at punishment, and the TCCA adopted that finding. Accordingly, a federal habeas court cannot overrule that conclusion because “[u]nder § 2254, federal habeas courts sit to review state court misapplications of federal law[;] [they] lack[ ] authority to rule that a state court incorrectly interpreted its own law.” Charles v. Thaler, 629 F.3d 494, 500–01 (5th Cir.2011); see id. at 500 (“Because the state determined that Carter's testimony was permissible lay opinion under state evidentiary law ..., a federal habeas court may not conclude otherwise.”); see also Schaetzle v. Cockrell, 343 F.3d 440, 448–49 (5th Cir.2003) (“[W]e defer to [the TCCA's] determination of state law. ‘It is not our function as a federal appellate court in a habeas proceeding to review a state's interpretation of its own law....’ ”) (citation omitted). McCarthy's counsel cannot have rendered ineffective assistance by failing to introduce evidence that would not have been admitted. See Turner, 481 F.3d at 298 (“Turner's counsel cannot have rendered ineffective assistance of counsel by failing to make an objection that would have been meritless.”). Thus, “it is not debatable that the state court's resolution of this issue was not unreasonable,” and we deny McCarthy's request for a COA on this issue. Druery, 647 F.3d at 540.
Further, even if McCarthy's written statement were admissible under Texas law, it was not unreasonable for the state habeas court to conclude that her counsel's decision not to offer the statement was sound trial strategy. “[T]his Court has repeatedly denied claims of ineffective assistance of counsel for failure to present ‘double edged’ evidence where counsel has made an informed decision not to present it.” Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir.2003) (citations omitted); see Boyle v. Johnson, 93 F.3d 180, 187–88 (5th Cir.1996) (noting the heavy deference owed trial counsel when they decide as a strategical matter not to introduce evidence of a “double-edged nature,” which could harm the defendant's case).
Here, McCarthy's written statement would have been “double-edged” if introduced at punishment, as it contained several aggravating facts and had been effectively used by the State at her first trial as (a) substantive evidence of her guilt and (b) a basis upon which to attack her credibility. For instance, in overturning McCarthy's conviction at the first trial, the TCCA found that during closing arguments in the guilt/innocence phase of the trial “[McCarthy's] inadmissible statement became the rhetorical strawman that the State effectively decimated.” McCarthy, 65 S.W.3d at 53. Further, although the TCCA found that “[the] statement did not place the murder weapon in [McCarthy's] own hands,” the court did conclude that the statement was, as the State “so effectively pointed out ..., powerful enough to establish her guilt of capital murder either as a party or as a conspirator [and] was also used to paint appellant as an unrepentant liar and set out her cruel and greedy motive for killing her elderly neighbor.” Id. at 56. McCarthy's counsel at the second trial was the same lawyer who represented her at her first trial and had successfully represented her on direct appeal. Thus, counsel was well-aware of the fact that introducing the statement at punishment could have harmed McCarthy's case, and his decision not to do so was therefore necessarily informed. Accordingly, counsel's strategic choice not to introduce the statement at punishment was not objectively unreasonable. Cullen, 131 S.Ct. at 1403 (“To overcome th[e] presumption [of adequate assistance], a defendant must show that counsel failed to act ‘reasonabl[y] considering all the circumstances.’ ”) (citation omitted). It is not debatable that the state court's resolution of this issue was not unreasonable, and we deny a COA on this issue. Druery, 647 F.3d at 540.
McCarthy also claims that her counsel rendered ineffective assistance under Strickland when her lawyers agreed to waive the imposition of Texas Rule of Evidence 614 (“the Rule”) with respect to Mrs. Booth's daughter, Donna Aldred. In Texas, the Rule allows a trial court to exclude certain witnesses from the courtroom upon a motion from either party or upon the court's own motion so that the witnesses “cannot hear the testimony of other witnesses.” Tex.R. Evid. 614. However, because Dr. Aldred was Mrs. Booth's daughter, the court could have only ordered her exclusion at McCarthy's request if the court determined that her testimony “would be materially affected if the witness hears other testimony at trial.” Tex.Code Crim. Proc. art. 36.03(a) (providing for the exclusion of certain witnesses “who for the purposes of the prosecution is a victim, close relative of a deceased victim, or guardian of a victim”).FN2 If McCarthy's counsel had moved to exclude Dr. Aldred under the Rule and the State opposed that motion, the court could have required McCarthy “to make an offer of proof to justify the exclusion.” Id. art. 36.03(b). FN2. The trial court also had authority to exclude Dr. Aldred on its own motion in order “to maintain decorum in the courtroom.” Tex.Code Crim. Proc. art. 36.03(c).
Dr. Aldred was the first witness to testify at the guilt/innocence stage of trial; her testimony chiefly entailed identifying her mother's stolen property. Dr. Aldred then took a seat in the gallery and the second witness testified. Next, the third witness, Lieutenant Nolan Smith, began testifying regarding his investigation of the crime. As Lieutenant Smith identified and described several crime scene photographs to the jury, Dr. Aldred became upset, began crying, and left the courtroom. The trial court quickly called a recess and McCarthy's counsel moved for a mistrial. Counsel contended that the jury's observation of Dr. Aldred's emotional reaction to the crime scene photographs was extremely prejudicial to McCarthy's case. The trial court denied a mistrial. Defense counsel then invoked the Rule with regard to Dr. Aldred for all purposes, and the trial court granted that request.
McCarthy contends that her trial counsel's decision to allow Dr. Aldred to remain in the courtroom was objectively unreasonable under Strickland. First, McCarthy claims that defense counsel could have excluded Dr. Aldred under the Rule because her testimony could have been affected by hearing the testimony of other witnesses if she had been recalled to testify. McCarthy also claims that her counsel unreasonably failed to request that the trial court admonish Dr. Aldred concerning outbursts during trial. She maintains that no sound trial strategy can justify her counsel's decisions not to (a) object to excepting Dr. Aldred from the Rule or (b) request that the trial court admonish Dr. Aldred about outbursts. Lastly, McCarthy asserts that her counsel's deficiency prejudiced her because it created an unacceptable risk that impermissible factors came into play in the jury's deliberative process.
The state habeas court rejected McCarthy's ineffective assistance claim. First, it concluded that her claim was procedurally barred under Texas law. The state court determined that McCarthy had expressly limited her claim to matters that were in the record on direct appeal; thus, it concluded that she could have raised those claims on direct appeal, thereby waiving her ability to raise those claims in her petition for habeas relief under Texas law. See Ex Parte Gardner, 959 S.W.2d 189, 191 (Tex.Crim.App.1996) (holding that petitioner waived the ability to raise a claim in his habeas petition, in part, because he made no attempt to raise the claim while his direct appeal was pending, even though he could have raised his claim on direct appeal).
Further, the state habeas court concluded that even if McCarthy's claim was not procedurally barred, she had failed to establish that her counsel's decision to waive the Rule as to Dr. Aldred was defective under Strickland. For instance, the state court indicated that excluding Dr. Aldred from the courtroom would not have served the main purpose of the Rule— i.e., preventing her testimony from being materially affected by the testimony of other witnesses. The state court found that the State had only used Dr. Aldred's testimony to identify her mother's stolen property; thus, the court determined that the testimony of other witnesses could not have influenced her testimony because she was the only witness who identified her mother's property. Further, the state court concluded that it was reasonable for defense counsel not to have expected Dr. Aldred to lose her composure at trial. It noted that Dr. Aldred had been in the courtroom during the first trial where she saw the same evidence and did not lose control of her emotions. Thus, the court held that defense counsel's decision reflected sound trial strategy and that counsel's representation of McCarthy was not deficient. Lastly, the court concluded that McCarthy had failed to establish prejudice from Dr. Aldred's presence at trial given the brief nature of her crying, her quick removal from the courtroom, and the fact that the jury heard from ten witnesses after the incident before they deliberated.
The district court denied McCarthy's federal habeas petition on this claim, even though the district court rejected the State's argument that the claim was procedurally barred under Texas law. The district court determined that the state court's order denying McCarthy's habeas claim on this issue did not contain an adequate and independent state ground for denying relief. McCarthy, 2011 WL 1754199, at *2–3.FN3 However, we need not address that issue because we hold that McCarthy cannot show that reasonable jurists could find debatable the district court's conclusion that it was not “necessarily unreasonable for the [TCCA] to conclude [ ] that [McCarthy] had not overcome the strong presumption of competence.” Cullen, 131 S.Ct. at 1403.
FN3. The district court based its conclusion that McCarthy's claim was not procedurally barred, in part, on its mistaken finding that the TCCA had rejected the state habeas trial court's conclusion that McCarthy had waived her ability to bring this claim in a habeas petition. McCarthy, 2011 WL 1754199, at *2. In fact, the TCCA only declined to adopt the trial court's finding that McCarthy had waived her ability to bring a habeas claim based on defense counsel's decision not to introduce her written statement at punishment; the TCCA adopted the state trial court's conclusion that McCarthy had waived her ability to bring a habeas claim based on Dr. Aldred's presence at trial. McCarthy, 2007 WL 2660306, at *1.
First, it is not clear that Dr. Aldred could have been excluded from the courtroom under the Rule if McCarthy's counsel had moved to exclude her. The state habeas court appeared to find that Dr. Aldred could not have been excluded under the Rule, and it explicitly determined that Dr. Aldred's testimony could not have been influenced by the testimony of other witnesses due to the limited nature of her testimony. See Russell v. State, 155 S.W.3d 176, 179 (Tex.Crim.App.2005) (“The purpose of placing witnesses under the rule is to prevent the testimony of one witness from influencing the testimony of another, consciously or not.”). The state court also found that McCarthy's counsel had agreed to waive the Rule as to Dr. Aldred in exchange for the State's agreement to allow some of McCarthy's family members to remain in the courtroom—some of whom would later testify at punishment. Accordingly, given the uncertainty regarding whether Dr. Aldred could have been excluded under the Rule, it was not unreasonable for the state court to have determined that it was a reasonable strategical choice for defense counsel to forego attempting to exclude Dr. Aldred under the Rule in exchange for ensuring that McCarthy's family could also remain in the courtroom. Pape v. Thaler, 645 F.3d 281, 288 (5th Cir.2011) (“When evaluating an ineffective assistance of counsel claim, we afford counsel the ‘strong presumption’ that counsel's representation fell within a ‘wide range’ of ‘reasonable professional assistance.’ ”) (quoting Richter, 131 S.Ct. at 787).
It was also not necessarily unreasonable for defense counsel to assume that Dr. Aldred would not lose her composure during trial. Dr. Aldred sat through McCarthy's first trial without incident, presumably including portions of the trial where graphic crime scene photographs were shown to the jury. Further, after Dr. Aldred began crying and the trial court called a recess, defense counsel responded appropriately, moving for a mistrial and then successfully invoking the Rule as to Dr. Aldred for the rest of trial. Considering all of the circumstances, defense counsel's decisions not to initially invoke the Rule as to Dr. Aldred or to request an admonishment regarding outbursts were not necessarily unreasonable. Cullen, 131 S.Ct. at 1403 (“To overcome [the presumption that counsel made all significant decision in the exercise of reasonable professional judgment], a defendant must show that counsel failed to act ‘reasonabl[y] considering all the circumstances.’ ”) (citation omitted). Thus, “it is not debatable that the state court's resolution of this issue was not unreasonable,” and we deny a COA. Druery, 647 F.3d at 540; Turner, 481 F.3d at 298.
For the reasons stated above, Petitioner's request for a COA is DENIED.