United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 3, 2005 October 12, 2005 UNITED STATES COURT OF APPEALS For the Fifth Circuit Charles R. Fulbruge III Clerk
No. 04-70025
JESUS LEDESMA AGUILAR
Petitioner - Appellant
VERSUS
DOUG DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Respondent - Appellee
Appeal from the United States District Court For the Southern District of Texas
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Petitioner, Jesus Ledesma Aguilar (Aguilar), was convicted of
capital murder and sentenced to death in Texas state court for the
murders of Annette and Leonardo Chavez, Sr. In this appeal,
Aguilar challenges the district court’s dismissal of his habeas
petition. Aguilar seeks COA on six claims on which relief was
denied by the district court. He also seeks reversal on the merits of the single claim on which the district court granted COA. For
the reasons discussed below, we deny habeas relief on that claim.
We also deny COA on the remaining claims.
I.
Petitioner was convicted in Texas state court of capital
murder for intentionally and knowingly causing the death of
Leonardo Chavez, III and his wife, Annette Chavez, during the same
criminal transaction. The essential facts are summarized below.
Aguilar and Rick Esparza, who were longtime friends, worked
together in the sale of marijuana. Rick initially worked for
Aguilar beginning in November 1994 in transporting marijuana from
their homes in Texas to Mississippi in Rick’s vehicle. Shortly
thereafter, another supplier asked Rick to transport marijuana to
Mississippi, and he began dealing without Aguilar. Apparently,
Aguilar felt Rick was stealing his business, and this caused
friction between the two men.
Aguilar began stopping by Rick’s trailer and accusing Rick of
running drugs without him. Rick testified that Aguilar threatened
Rick’s life on a number of occasions. Rick stated that he was
afraid of Aguilar because he had seen “the way [Aguilar] hurts
people.”
In spite of Aguilar’s threats, Rick maintained his own drug
courier business. Rick often asked his sister, Annette Chavez, and
her family to stay at his home during out-of-town trips. On June
8, 1995, Rick and his wife took a load of drugs to Mississippi.
2 Annette, her husband Leo, and their two children, Leo Jr. (nine
years old) and Lincoln (about two years old), stayed at Rick’s
home.
Aguilar spent much of the afternoon and evening of June 9
drinking with friends. At approximately 9:00 p.m., he was at a
friend’s house with, among others, David and Chris Quiroz
(Aguilar’s nephew). Their host eventually went to bed. As David
Quiroz was leaving, he saw Aguilar and Chris Quiroz walk toward a
red Buick owned by Chris’ mother.
At approximately 5:00 a.m., Leo, Jr. was awakened from his bed
in Rick’s trailer by the sound of a gunshot. Leo, Jr. got out of
bed and entered the kitchen. Because there was no wall between the
rooms, Leo, Jr. could see into the living room, which was
illuminated by a small lamp. Leo, Jr. saw his parents on the floor
with two men standing over them. Leo, Jr. testified that the
“American” man told his father to “[g]et your fat ass up,” and then
saw the man shoot his father. The “Mexican” man then took the gun
and shot his mother.1 Leo, Jr. ran to the neighbors for help. A
pathologist testified it was obvious from markings on Leo Sr.’s and
Annette’s bodies that they were severely beaten before they were
shot.
That afternoon, Daniel Pena was driving around with Aguilar
and Chris Quiroz when Aguilar asked Daniel to go to Rafael Flores,
1 A pathologist testified as an expert witness for the state and stated that the couple had been shot “execution style.” 20 TR 738.
3 Jr.’s residence. Aguilar offered to sell a .22 caliber revolver to
Rafael. Rafael bought the revolver and gave it to his brother, who
in turn gave it to their father. The police later received a tip
that they could recover the murder weapon from the Flores’
residence, which they did. After recovering the weapon, the police
lab compared bullets from .22 caliber revolver with the .22 caliber
bullets recovered from the Chavezes’ bodies. The ballistics expert
could not rule this revolver in or out as the murder weapon.
Approximately two weeks after the murders, Leo, Jr.’s
grandmother was reading the newspaper when Leo, Jr. saw a picture
and told her that two of the men in the picture were the men who
“hurt” his parents. His grandfather took Leo, Jr. to the police
station where Leo, Jr. identified Chris Quiroz as the “American”
who shot his father, and Aguilar as the “Mexican” who shot his
mother. Leo was unable to identify Aguilar in a police lineup, but
an investigator for the Cameron County Sheriff’s office testified
that Leo, Jr. became visibly upset when Aguilar entered the lineup
room.
Following the guilty verdict and affirmative findings on the
Texas special issue, the trial court sentenced Aguilar to death in
accordance with Texas law. The Texas Court of Criminal Appeals
affirmed Aguilar’s conviction and sentence and the United States
Supreme Court denied certiorari. See Aguilar v. State, No. 72,470
(Tex. Crim. App. 1997), cert. denied, 523 U.S. 1139 (1998).
4 Aguilar then filed a state application for post conviction relief
which the Texas Court of Criminal Appeals denied. Ex Parte Aguilar,
No. 36,142-01 (Tex. Crim. App. June 10, 1998). Aguilar later filed
his federal habeas corpus petition. At an evidentiary hearing
before a magistrate judge, Aguilar asked the court to dismiss his
petition without prejudice so that he could return to state court
and raise unexhausted claims. The request was granted. Aguilar’s
successive state habeas petition was dismissed by the Texas Court
of Criminal Appeals as an abuse of the writ in November 2001. Five
days later, he filed another federal habeas corpus petition. The
state moved for summary judgment on the writ and the motion was
referred to a magistrate judge for Report and Recommendation. The
magistrate judge recommended that all of Petitioner’s claims be
denied, except one. The magistrate judge recommended that Aguilar
be granted relief on his claim that he was deprived of due process
by the trial court’s failure to charge the jury on a lesser
included offense of non-capital murder. The district court judge
accepted all the magistrate judge’s recommendations, except on the
lesser included offense claim. The district court concluded that
Petitioner was not entitled to relief on this claim and dismissed
his petition. The district court later granted COA on Aguilar’s
lesser included offense claim.
II.
A.
Aguilar filed his federal habeas petition after the enactment
5 of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), and therefore, the provisions of that act govern our scope
of review. AEDPA prohibits a federal court from granting an
application for habeas corpus with respect to any claim that was
adjudicated on the merits in state court proceedings unless that
adjudication “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States,” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. 2254(d) (1996). Further, the state court’s
factual determinations are presumed correct and can only be
rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B.
We consider first Aguilar’s argument that the trial court
violated his Fourteenth Amendment right to due process of law when
it refused his request for a lesser included offense charge to the
jury. The district court granted COA on this claim.
In Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389
(1980), the Supreme Court held that a lesser included offense
charge is constitutionally required in capital cases “when the
evidence unquestionably establishes that the defendant is guilty of
a serious, violent offense--but leaves some doubt with respect to
an element that would justify conviction of a capital offense...”
A defendant is entitled to the instruction if the jury could
6 rationally acquit the defendant on the capital crime and convict on
the non-capital crime. Cordova v. Lynaugh, 838 F.2d 764, 767 (5th
Cir. 1998), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.
2d 932 (1988).2
Aguilar argues that this standard is satisfied because the
evidence supported a finding that he did not act in concert with
Quiroz in the murders of both Annette and Leo Chavez, Sr. Aguilar
contends that a reasonable jury could have found that he only
murdered one of the victims, Annette; that Quiroz acted on his own
volition when he shot Leo, Sr., and that Aguilar simply followed
suit. Based on this view of the evidence, Aguilar argues that a
rational jury could have acquitted him of the capital crime and
convicted him of the non-capital crime, and therefore Beck required
the court to give the lesser included offense instruction.
The state charged Aguilar with the capital offense of
committing two murders during the same transaction. (“A Person
commits an offense if the person commits murder as defined under
Section 19.02(b)(1) and...the person murders more than one person:
during the same criminal transaction....” Tex. Pen. Code Ann. §
2 Texas law is consistent with the federal constitutional rule. In Texas, the courts apply a two prong test to decide whether a defendant is entitled to a lesser included offense charge. See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). The first requirement is that “the lesser included offense must be included within the proof necessary to establish the offense charged.” Id. at 672. The second prong requires that “some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. Id.
7 19.03(a)(7)(A)). The state is not required to prove that the same
person committed both murders. According to the Texas law of
parties, “[a] person is criminally responsible for an offense
committed by the conduct of another if:...acting with intent to
promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to
commit the offense....” Tex. Pen. Code Ann. § 7.02(a)(2).
The evidence was clearly sufficient to establish that Aguilar
participated in the murder of Leo, Sr. The question is whether the
evidence would permit a reasonable jury to make a contrary finding:
that Quiroz acted alone in Leo’s murder without encouragement or
other participation by Aguilar. After reviewing the record, we are
satisfied it would not permit a rational jury to find that if
Aguilar is guilty, he is only guilty of murdering Annette. As the
district court pointed out, Aguilar–and not Quiroz–had the motive
to kill Esparza or his family members. The evidence established
that Aguilar had been to the trailer home on several earlier
occasions, threatening Esparza, and had previously discussed with
Annette Chavez the whereabouts of Esparza. Aguilar entered the
Esparzas’ trailer with his eighteen-year-old nephew (Quiroz), who
had no connection to the Chavezes or Esparza or with Aguilar’s
marijuana trafficking. The two entered the trailer with a firearm
and proceeded to severely beat the Chavezes. Then, the couple was
shot “execution style” within minutes of each other. There is no
8 evidence in the record supporting Aguilar’s contention that he did
not have intent to kill both Leo and Annette when he and Quiroz
entered the residence.3 A reasonable jury, who would find that
Aguilar was the second shooter in this double murder, could not find
that he did not encourage or otherwise participate in the shooting
of Leo, Sr. We therefore conclude that the district court did not
err in rejecting Aguilar’s Beck claim.
III.
Next, we address Petitioner’s claims for COA. Under AEDPA,
Aguilar must obtain a COA before he can appeal the district court’s
denial of his habeas petition. 28 U.S.C. 2253(c)(1). This court
will grant a COA if Aguilar makes a substantial showing of the
denial of a constitutional right, which includes showing that
“reasonable jurists could debate whether (or for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were ‘adequate to deserve encouragement
to proceed further.’” Miller El v. Cockrell, 537 U.S. 322, 336, 123
S.Ct. 1029, 1039 (2003) (citing Slack v. McDaniel, 529 U.S. at 484
(2000)). To satisfy this standard, Aguilar must demonstrate that
3 In Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), the Supreme Court made clear that the jury must be permitted to consider a verdict of guilt of a noncapital offense “in every case” in which “the evidence would have supported such a verdict.” Id. at 610 (citing Beck v. Alabama, 447 U.S. at 627, 100 S.Ct. at 2384.
9 reasonable jurists could find the district court’s resolution of his
constitutional claims debatable. Id. at 336. Further, when the
denial of relief is based on procedural grounds, then Petitioner
must show that “jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack,
592 U.S. at 484. It is clear that petitioner need not show that the
appeal will succeed in order to obtain a COA. Id. at 337. We
consider each of Petitioner’s claims below.
B. Ineffective Assistance of Counsel
First, Petitioner contends that his Sixth and Fourteenth
Amendment rights to effective assistance of counsel were violated
because direct appeal counsel failed to properly brief his
sufficiency of the evidence argument on direct appeal in state
court. In Aguilar’s initial state habeas application, he did not
assert this specific claim of counsel error as a ground for relief.
In his successive habeas application, Aguilar did assert this error
as a ground for relief. The Texas Court of Criminal Appeals
dismissed the claim as procedurally defaulted under Texas Criminal
Procedure Article 11.071(5)(a) as an abuse of the writ. The
district court found the claim unexhausted and procedurally
defaulted. Because Aguilar did raise the claim in his second state
habeas application, we disagree with the district court that the
claim was not exhausted. We agree with the district court, however,
that the claim was procedurally barred from federal habeas review.
As the Supreme Court stated in Coleman v. Thompson, 501 U.S.
10 722, 750, 111 S.Ct. 2546, 2551 (1991), “[i]n all cases in which a
state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner
can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental
miscarriage of justice.” This court has consistently held that
Texas’ abuse-of-writ rule is ordinarily an “adequate and
independent” procedural ground on which to base a procedural default
ruling. Henderson v. Crockwell, 333 F.3d 592, 605 (5th Cir. 2003);
Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999); Matchett v.
Dretke, 380 F.3d 844, 848 (5th Cir. 2004).
The state court dismissed Aguilar’s claim based on an
independent and adequate state remedy: the successive writ was
dismissed as an abuse of writ under Texas Code of Criminal Procedure
article 11.071 § 5(a). In his request for relief, Aguilar makes no
attempt to argue actual prejudice or a fundamental miscarriage of
justice as required by Coleman. We therefore find that reasonable
jurists would not debate whether the district court was correct in
its ruling and we deny COA on this claim.
C. Meaningful Appellate Review
Next, Aguilar argues that the Texas Court of Criminal Appeals
was biased on direct appeal and it relied on facts not in the
record. The district court found the claim procedurally defaulted
11 because it was raised for the first time in Aguilar’s second state
habeas petition and dismissed as an abuse of writ pursuant to Texas
Code of Criminal Procedure article 11.071 § 5(a). As discussed
above, the Supreme Court recognized that a procedural bar exists to
federal habeas review if the state court dismisses the application
based on independent and adequate state grounds. Because the Texas
Court of Criminal Appeals found that Aguilar’s second state habeas
petition was an abuse of the writ under Texas Code of Criminal
Procedure article 11.071 § 5(a), and because Aguilar has not
attempted to show actual prejudice or a miscarriage of justice, no
reasonable jurists could find the district court’s procedural ruling
incorrect.
D. Failure to Appoint Ballistics Expert
Aguilar also argues that the trial court’s failure to appoint
a ballistics expert to testify on behalf of Petitioner violated his
right to due process. The state called Ronald Richardson, a
firearms expert. He testified that both victims were killed by .22
caliber slugs. The bullets removed from the victims’ bodies were
badly damaged, and the expert was unable to determine whether they
were fired from the .22 caliber pistol the state contended was the
murder weapon. Before trial, Aguilar filed a written motion asking
the court to provide a ballistics expert “to testify as to the
potential weapon used in the alleged murders and evidence of
ballistics in general.” He argued generally that the “expert
witness [was] important in this case and proceeding to trial without
12 the witness would be prejudicial to the Defendant and would not
afford him a fair trial....” The trial court denied his motion.
In an oral pre-trial motion Aguilar again asked the court to provide
a ballistics expert without giving specific reasons as to how it
would aid in his defense.4
The state habeas court rejected Aguilar’s claim because of his
failure to provide an affidavit from trial counsel explaining what
expert witness he anticipated calling, and how his defense was
actually prejudiced through his inability to present that expert.
Habeas relief may be granted for failure to appoint a
ballistics expert where the evidence is both 1) critical to the
conviction, and 2) subject to varying expert opinion. See Scott v.
Louisiana, 934 F.2d 631, 633 (5th Cir. 1991); Yohey v. Collins, 985
F.2d 222, 227 (5th Cir. 1993). The defendant must also “demonstrate
something more than a mere possibility of assistance from a
requested expert.” Yohey at 227 (citing Moore v. Kemp, 809 F.2d 702,
712 (11th Cir.), cert. denied, 481 U. 1054, 107 S.Ct. 2192, 95
L.Ed.2d 847 (1987)). The magistrate judge and district judge
4 The defense asked the trial judge for permission to hire its own ballistics expert, stating: “The ballistics expert that appeared here for the Department of Public Safety last time, Your Honor, I think without, you know, really going into much of his testimony, I think was very inconclusive to some of his determinations, inconclusive as to what type – you know, the caliber, things of that nature, Judge. I would like to have an opportunity and I would like to have a ballistics expert come in here to be able to differentiate between .22 and .25 calibers, slugs, location of powder burns, types of powders that are used for ballistic purposes, projectile, things of that nature....”
13 rejected Aguilar’s claim because he failed to satisfy either prong
of the test set forth in Scott and Yohey. The record evidence
supports the conclusion that the state’s inconclusive ballistics
evidence—that the bullets could have been but were not necessarily
fired from the purported murder weapon—was not critical to the
conviction. Also, Aguilar failed to provide any evidence that his
desired expert could have excluded the gun as the murder weapon.
In his COA application for the first time, Aguilar now claims
that tests could have been performed to show that the gun had not
been fired in years or that the gun did not have the victims’ blood
on it, in order to prove it was not the gun used in the murders.
However, the record reveals that Aguilar never asked the trial court
for appointment of a ballistics expert or other expert to show there
was no blood splatter on the weapon or that it not been fired
recently. He also produced no evidence of the likelihood that such
evidence could be recovered from the weapon.
The record fully supports the state habeas court finding that
Aguilar failed to show that evidence from a ballistics expert would
have been beneficial to his case or that the evidence is subject to
varying expert opinion. For the first time Aguilar, in support of
his application, provided this court with several articles and books
discussing the uncertainty of forensic science and how test results
may be inaccurate. These treatises, however, are not helpful in
showing how a ballistics expert would have assisted Aguilar in
proving his innocence.
14 Because Aguilar has failed to show that a ballistics expert
would have assisted him in proving his innocence or that the
evidence in this case would be subject to varying opinion, we find
that reasonable jurists would not find the district court’s
assessment of defendant’s constitutional claims debatable or wrong
and therefore deny COA.
F. Sufficiency of Evidence
Aguilar also seeks a COA on grounds that the evidence was
insufficient to support the jury’s finding that he was a party to
the murder of Leo Chavez, Sr. and the finding that he was
responsible for the murder of Annette Chavez.
In determining a sufficiency of the evidence claim, a court
should consider whether “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On direct
appeal, the Court of Criminal Appeals found that the evidence was
sufficient to support the jury’s finding that Aguilar was a party
to the murders. The court considered the eye-witness testimony of
Leo Chavez, Jr. and his identification of Aguilar as the person
directly responsible for the death of his mother. The court also
observed that Aguilar, and not Quiroz, was the person with the
motive to kill the people in the trailer home. The court also
discussed the fact that Aguilar sold the .22 caliber revolver that
15 was later discovered by the police and offered by the state as a
possible murder weapon. Based on the foregoing evidence, the Court
of Criminal Appeals found that a rational jury could find beyond a
reasonable doubt that appellant was criminally responsible for the
deaths of both victims and that the victims were killed during the
same criminal transaction.
The district court adopted the magistrate judge’s opinion that
“[u]nder the very deferential Jackson standard, this was sufficient
to support the jury’s finding that Aguilar was a party to the second
murder.” Based on the evidence presented at trial, we conclude that
the district court’s conclusion based on the deferential Jackson
standard was not debatable or wrong and we therefore deny COA.
G. Appearance Before Jury in Shackles
In his final claim, Aguilar argues that his right to due
process was violated because he appeared before the jury in
shackles. The state habeas court rejected the claim on the ground
that Aguilar should have raised the claim on direct appeal and on
the additional ground that he did not refer to any specific
objections in the trial record. On federal habeas review, the
district court also refused to grant relief because Aguilar did not
reference any specific or timely objection and only provided a
statement in an affidavit by his trial counsel that he “requested”
that Aguilar not be shackled in the presence of the jury. In his
COA request to this court, Aguilar once again gives us no record
reference where he objected to the fact that he was shackled in the
16 presence of the jury and in our review of the trial record, we found
no such objection.
In Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App.
1996), the court found that claims which should have been raised on
direct appeal are procedurally defaulted. Furthermore, in Busby v.
Dretke, 359 F.3d 708, 719 (5th Cir.), this court established that
“the Gardner rule set forth an adequate state ground capable of
barring federal habeas review.” In the instant case, Aguilar’s
claim that he was shackled in front of the jury should have been
raised on direct appeal.
We conclude that reasonable jurists could not debate whether
the state court erred in its procedural ruling regarding Aguilar’s
failure to raise his shackling claim on direct appeal. We therefore
deny COA on this claim.
Conclusion
For the reasons stated above, we AFFIRM the district court’s
judgment denying habeas relief on his claim that he was entitled to
the lesser included offense jury charge. We also DENY COA on the
remaining claims.