Beatty, Tracy

• Court: Texas Supreme Court
• Decided: July 17, 2015
• Docket: AP-75,010
• Status: Published

Opinion

"•fffr CAUSE NUMBER 241-0978-04

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j I JUL I32015 jCLERK 24 CAUSE NUMBER 241-0978-04 : BY

STATE OF TEXAS IN THE 241st JTJDICIAL

VS. DISTRICT COURT OF

TRACY BEATTY SMITH COUNTY, TEXAS Capital Murder, Capital Felony as charged in the Indictment

FORMAL SENTENCING PURSUANT TO MANDATE FROM TEXAS COURT OF CRIMINAL APPEALS ORDER SETTING DATE OF EXECUTION ORDER FOR ISSUANCE OF WARRANT OF EXECUTION

JUDGMENT

JUDGE PRESIDING AT TRIAL: Date originally sentenced JACK SKEEN, JR. and Judgment: 08-10-04

JUDGE PRESIDING AT FORMAL Date of formal sentencing: SENTENCING May 13, 2009, upon Mandate JACK SKEEN, JR. affirming case and Order Denying 11.071 State Writ: May 6, 2009

Date of re-sentencing following denial of federal habeas corpus relief: July 13, 2015

ATTORNEY FOR STATE AT TRIAL: ATTORNEY FOR DEFENDANT AT TRIAL: MATT BINGHAM ROBERT C. PERKINS J. BRETT HARRISON KEN HAWK APRIL SIKES ATTORNEY ON DIRECT APPEAL: DON DAVIDSON

UL16 2M5 CAUSE NUMBER 241-0978-04 PAGE

ATTORNEY ON 11.071 STATE WRIT: JEFF HAAS

ATTORNEY ON FEDERAL HABEAS CORPUS WRIT: THOMAS SCOTT SMITH

ATTORNEY AT FINAL SENTENCING FOLLOWING DENIAL OF FEDERAL HABEAS CORPUS RELIEF: AUSTIN REEVE JACKSON

OFFENSE CHARGED: CAPITAL MURDER DATE OFFENSE CONVICTED OF: CAPITAL MURDER COMMITTED NOVEMBER 25. 2003 DEGREE: CAPITAL FELONY

CHARGING INSTRUMENT: INDICTMENT PLEA: NOT GUILTY TERMS OF PLEA BARGAIN NONE

DATE SENTENCE FORMALLY PRONOUNCED AND IMPOSED: AUGUST 10. 2004 COSTS: $273.00

Date Sentence Formally Pronounced following Mandate from Texas Court ofCriminal Appeals affirming Judgment and Sentence, April 7, 2009, and following denial of 11.071 writ application May 6,2009: MAY 13. 2009

Date Sentence Formally Pronounced following Denial ofFederal Habeas Corpus Relief: JULY 13. 2015

DATE OF EXECUTION: 08/13/2015 as provided by law

Punishment: Date Set for Execution: Death by lethal injection 08/13/2015 as provided by law as provided by law Place of Execution: As provided by law in the Texas Department of Criminal Justice - Institutional Division (formerly Texas Department of Corrections, State Penitentiary) CAUSENUMBER 241-0978-04 PAGE

JUDGMENT AND SENTENCE UPON FORMAL SENTENCING WARRANT OF EXECUTION

The Defendant having been indicted in the above entitled and numbered cause for the felony offense ofCAPITAL MURDER as charged in the indictment, acapital felony, and this cause being called for jury selection on JULY 08, 2004, the State appeared by her Criminal District Attorney MATT BINGHAM and Assistant District Attorneys J. BRETT HARRISON AND APRIL SIKES, and the Defendant TRACY BEATTY, appeared in person and his counsel ROBERT C. PERKINS AND KEN HAWK, also being present and both parties announced ready and jury selection commenced, and the Defendant in open court was duly arraigned and pleaded Not Guilty to the charge of Capital Murder as contained in the indictment herein, thereuponjury, to-wit: MITCHELL HARRIS, and eleven others, were duly selected, along with one alternatejuror, and upon completion ofjury selection thejury was impaneled and sworn. On AUGUST 2,2004 the Court proceeded with the trial with the reading ofthe indictment, the Defendant entering his plea of "Not Guilty," opening statements, and introduction ofevidence. The jury, who having heard the evidence submitted, and having been duly charged by the court, and after hearing argument of counsel, retired in the charge of the proper officer to consider their verdict, and afterward were brought into open Court, by the proper officer, the Defendant and his counsel being present, and in due form of law returned into open Court the following unanimous verdict, which was received by the Court, and is here and now entered upon the minutes of the Court, to wit: WE, THE JURY, find unanimously and beyond areasonable doubt, the Defendant, TRACY BEATTY, Guilty of Capital Murder, that is intentional murder committed in the course of committing burglary of a habitation, as charged inthe indictment.

AS/ MITCHELL HARRIS FOREMAN

The Defendant having been found guilty ofCapital Murder by the verdict ofthe jury and thereupon further evidence being heard by the jury on the special issues pertaining to punishment, the Court again charged the jury as provided by law on the following special issues: •SPECIAL ISSUE NO. 1

Is there aprobability that the Defendant, TRACY BEATTY, would commit criminal acts of violence that would constitute a continuing threat to society?

SPECIAL ISSUE NO. 2

Taking into consideration all ofthe evidence, including the circumstances of the offense, the Defendant's character and background, and the personal moral culpability ofthe Defendant, is there CAUSE NUMBER 241-0978-04 PAGE

sufficient mitigating circumstance orcircumstances towarrant that a sentence oflife imprisonment rather than a death sentence be imposed?

The jury, after hearing arguments of counsel, retired in charge of the proper officer to consider their verdict and afterwards were brought into open Court by the proper officer; the Defendant and his counsel being present and in due form of law returned into open Court the following verdict, which was received by the Court and is here and now entered upon the minutes of the Court, to-wit:

ANSWER TO SPECIAL ISSUE NUMBER 1:

We, the jury unanimously find and determine beyond a reasonable doubt that the answer to this Special Issue No. 1 is "YES." As/ MITCHELL HARRIS FOREMAN

ANSWER TO SPECIAL ISSUE NUMBER 2:

We, the jury unanimously find and determine beyond areasonable doubt that the answer to this Special Issue No. 2 is "NO." /s/ MITCHELL HARRIS FOREMAN

JURY CERTIFICATE

WE, THE JURY, RETURN INOPEN COURT THE ABOVE ANSWER OR ANSWERS AS OUR ANSWER OR ANSWERS TO THE SPECIAL ISSUE OR SPECIAL ISSUES SUBMITTED TO US, AND THE SAME IS OUR VERDICT IN THIS CASE.

/s/ MITCHELL HARRIS FOREMAN

IT IS THEREFORE considered and adjudged bythe Court, that the said Defendant isguilty ofthe offense ofCapital Murder, as charged in the indictment, a Capital Felony; and that the said Defendant committed saidoffense on or about the25* dayof NOVEMBER, 2003, as found by the jury, and that he be punished, as has been determined by the jury's answers to the special issues and in accordance with State law byimposition of the sentence of DEATH, according to the law. CAUSE NUMBER 241-0978-04 PAGE 5

THEREUPON the said Defendant was informed by the Court ofthe mandatory appeal ofthis Judgment and Sentence to the Texas Court of Criminal Appeals as provided by law and rights to an 11.071 Application for Writ of Habeas Corpus, and further the said Defendant was asked by the Court whether he had anything to say why said sentence should not be pronounced against him, subject to the mandatory appeal and mandate, and he answered nothing in bar thereof, and it appearing to the Court that the Defendant is mentally competent and understands the English language, the Court proceeded, then in the presence of the Defendant, his counsel, and counsel for the State, to pronounce sentence, subject to mandatory appeal, against him as follows:

IT IS THE ORDER OF THE COURT, that the said Defendant, TRACY BEATTY, isguilty of the offense ofCAPITAL MURDER, as charged inthe indictment, a Capital Felony; and that the said Defendant, TRACY BEATTY, committed said offense ofCAPITAL MURDER on or about the 25th day of NOVEMBER, 2003, as found by the jury, and that he be punished, as has been determined by the jury's answers to the special issues along with Texas law, by imposition of the punishment of DEATH, according to the law, and said Defendant is remanded to the Sheriff of Smith County, Texas to be delivered to the Director of the Texas Department of Corrections (Texas Department ofCriminal Justice, Institutional Division), or other person legally authorized to receive said Defendant, to be held until the date for execution as set out inthis judgment and Death Warrant with date of execution, as provided by law.

The Court certified the record for appeal and an appeal to the Texas Court of Criminal Appeals followed. On the 7™ day of APRIL, 2009, the Texas Court ofCriminal Appeals issued its Mandate inthis cause ofaction and finding that there was no error inthe judgment ofthe trial court, it ORDERED, ADJUDGED, and DECREED that the judgment of the trial court be in all things affirmed, and that the Defendant pay all costs in this behalf expended and that the Defendant's motion for rehearing be denied. The trial court received the Mandate commanding the trial court to observe the order ofthe Texas Court ofCriminal Appeals in this case and toduly recognize, obey and execute said mandate.

On MAY 6, 2009 the Texas Court of Criminal Appeals issued its Order denying the Defendant's Application for a State 11.071 Writ of Habeas Corpus.

After exhausting his state court remedies, Defendant filed afederal habeas petition, which the federal district court rejected. The Fifth Circuit Court of Appeals affirmed the denial of a certificate ofappealability on July 16, 2014. Finally, on May 18,2015, the United States Supreme Court refused review of this matter.

On July 13, 2015, this case was again called for formal sentencing in accordance with the verdicts and Judgment herein rendered and entered against the Defendant, TRACY BEATTY, on August 10, 2004. The State appeared by her Criminal District Attorney, MATT BINGHAM, (together with her Assistant Criminal District Attorney APRIL SIKES) and the Defendant, TRACY CAUSE NUMBER 241-0978-04 PAGE

BEATTY appeared in person and with AUSTIN REEVE JACKSON, as his current counsel for formal setting of adate of execution, and whereupon the State of Texas announced ready and the Defendant announced ready, and the Defendant offered nothing at bar as to why the date ofexecution should not be set, the Court proceeding with formal sentencing and setting the date of execution. Thereupon the Defendant, TRACY BEATTY, throughhis counsel was asked by the Court whether he had anything to say or offer at bar as to why sentence should not be formally pronounced against him and said counsel indicated there was nothing he had to offer at bar as to why sentence should not be formally pronounced and adate of execution set. It appearing to the Court the Defendant, TRACY BEATTY is mentally competent and understanding of the English language, the Court proceeded, inthe presence ofthe saidDefendant, TRACY BEATTY, and allhis counsel and counsel for the State, in open court to formally pronounce Judgment and Sentence against the Defendant in accordance with the jury's verdicts and mandate of the Texas Court of Criminal Appeals, to set the date ofexecution, and to order issuance ofthe Warrant ofExecution as follows: IT IS THE ORDER OF THE COURT, that the said Defendant, TRACY BEATTY, who has been adjudged to be GUILTY of the felony offense of CAPITAL MURDER, as charged in the indictment in this cause, a Capital Felony; and that the said Defendant, TRACY BEATTY, committed said offense on the 25th day of NOVEMBER, 2003, as found by the jury, and whose punishment has been assessed by application of law to the verdicts ofthe Jury on the Special Issues submitted and the Judgment of the Court, by DEATH, according to law, and, it is ORDERED, that the Defendant, TRACY BEATTY, be taken by the SheriffofSmith County, Texas, and by him kept in custody until the Clerk ofthis Court shall issue and deliver to said SheriffaDEATH WARRANT (also known as aWARRANT OF EXECUTION), in accordance with this Judgment and Sentence, directed to the Director of the Texas Department of Criminal Justice - Institutional Division (formerly known as the Texas Department of Corrections, State Penitentiary), at Huntsville, Texas commanding him, the said Director of the Texas Department of Criminal Justice - Institutional Division (formerly known as the Texas Department of Corrections -State Penitentiary) to put into execution the Judgment and Sentence of DEATH against the said TRACY BEATTY, and immediately upon the issuance of said WARRANT OF EXECUTION, the SheriffofSmith County Texas is directed to take the said TRACY BEATTY, together with the said WARRANT OF EXECUTION, to the Director ofthe Texas Department of Criminal Justice - Institutional Division (formerlyknown as the Texas Department ofCorrections, State Penitentiary) or other person legally authorized to receive such convicts, and deliver the said TRACY BEATTY and said WARRANT OF EXECUTION into the custody ofsaid Director ofthe Texas Department ofCriminal Justice - Institutional Division (formerly known as the Texas Department of Corrections, State Penitentiary), and the said Director of the Texas Department of Criminal Justice -Institutional Division (formerly known as the Texas Department of Corrections, State Penitentiary) is hereby COMMANDED and DIRECTED to keep the said TRACY BEATTY until the 13th DAY OF AUGUST. 2015

upon which day, at the Texas Department of Criminal Justice - Institutional Division (formerly CAUSE NUMBER 241-0978-04 PAGE

known as the Texas Department of Corrections, State Penitentiary), at any time after the hour of 6:00p.m. in aroom arranged for the purpose of execution, the Director of the Texas Department of Criminal Justice - Institutional Division (formerly known as the Texas Department ofCorrections, State Penitentiary) is hereby, acting by and through the executioner assigned by said Director as provided by law, COMMANDED, ORDERED, and DIRECTED to carry out this Judgment and Sentence of DEATH by intravenous injection of a substance or substances in a lethal quantity sufficient to cause the death ofthe said TRACY BEATTY and until said TRACY BEATTY is dead, such procedure to be determined and supervised, in accordance with law, by the said Director of the Texas Department of Criminal Justice - Institutional Division (formerly known as the Texas Department of Corrections, State Penitentiary).

ORDERED IN OPEN COURT ON THE 13™ DAY OF JULY, 2015.

SIGNED ON THIS THE 13™ DAY OF JULY, 2015.

Jwtt&in, HONORABLE JACK SKEEN, JRl JUDGE, 241st DISTRICT COURT SMITH COUNTY, TEXAS CAUSE NUMBER 241-0978-04 PAGE 8

ORDER

THEREFORE, it is the further ORDER and the Judgment of this Court that the Director of the Texas Department of Criminal Justice - Institutional Division (formerly known as the Texas Department of Corrections, State Penitentiary), acting by and through the executioner assigned by said Director as provided by law, be and is hereby DIRECTED, ORDERED and COMMANDED to, at any time after the hour of6:00 p.m. on the 13th dav of AUGUST. 2015, in aroom arranged for the purpose of execution at the Texas Department ofCriminal Justice - Institutional Division (formerly known as the Texas Department of Corrections, State Penitentiary) to carry out this Judgment and Sentence ofDEATH by intravenous injection ofasubstance or substances in alethal quantity sufficient to cause the death ofthe said TRACY BEATTY and until said TRACY BEATTY is dead, such procedure to be determined and supervised, in accordance with law, by the said Director of the Texas Department of Criminal Justice - Institutional Division (formerly known as the Texas Department of Corrections, State Penitentiary).

SIGNED THIS THE 13™ DAY OF JULY, 2015

HONORABLE JACK SKEEN, J JUDGE, 241ST DISTRICT COUR1 SMITH COUNTY, TEXAS PAGE CAUSE NUMBER 241-0978-04

WARRANT OF EXECUTION

ALL IN ACCORDANCE with this Warrant ofExecution (Death Warrant) for the execution ofthe sentence ofDEATH, and in accordance with the Judgment, Sentence, and Order Setting Date of Execution and Order for Issuance of Warrant of Execution of this Court, show herein, which I certify to be true and correct copies ofsuch documents now on file in my office and entered on the Minutes of said Court. Acertified true and correct copies of the Judgment and Sentence entered by the Court on AUGUST 10, 2004 which was affirmed by the Texas Court of Criminal Appeals, is attached hereto as Exhibit "A."

HEREIN FAIL NOT, BUT DUE RETURN MAKE OFTHE WARRANT OFEXECUTION SHOWING HOW YOU HAVE EXECUTED THE SAME.

Given under my hand and seal of the 241st Judicial District Court of Smith County, Texas on this the 13™ day of July, 2015.

^KQuO * LOIS ROGERS ^ DISTRICT CLERK/SMITH COUNTY, TEXAS CLERK OF THE 241st JUDICIAL DISTRICT COURT SMTfHQP EPUTY-DISTR1CT CLERK Print Name: Denise Langston

JIM.$?!M5V FILED AU6 102004

JUDGEMENT AND SENTENCE OF DEATH

CAUSE NO. 241-0978-04

X IN THE 241s'DISTRICT STATE OF TEXAS

X COURT IN AND FOR VS.

TRACY BEATTY X SMITH COUNTY, TEXAS CAPITAL MURDER, CAPITAL FELONY as charged in the Indictment

JUDGE PRESIDING : JACK SKEEN. JR. JUDGMENT DATE: August 10, 2004

ATTORNEY FOR STATE: ATTORNEY FOR DEFENDANT: MATT BINOHAM/BRETT HARRISON ROBERT PERKINS

APRIL SIKES KEN HAWK

OFFENSE CHARGED: CAPITAL MURDER DATE OFFENSE CONVICTED OF: CAPITAL MURDER COMMITTED: NOVEMBER 25. 2003 DEGREE: CAPITAL FELONY

CHARGING INSTRUMENT: INDICTMENT PLEA: NOT GUILTY TERMS OF PLEA BARGAIN: NONE

DATE SENTENCE FORMALLY PRONOUNCED AND IMPOSED: AUGUST 10. 2004 COURT COSTS: $273,00

SUBJECT TO MANDATORY APPEAL AS PROVIDED BY STATUTE

PUNISHMENT AND PLACE OF CONFINEMENT: DEATH SENTENCE DEFENDANTORDERED HELD IN THE TEXAS DEPARTMENTOF CRIMINAL JUSTICE- INSTITUTIONAL DIVISION UNIT UNTIL EXECUTED PURSUANT TO LAW AND THE JUDGMENT AND SENTENCE OF THE COURT.

cjft\\>X (y JUDGMENT AND SENTENCE OF DEATH PAGE 2

DATE DEATH PENALTY TO BE IMPOSED: TO BE SET AFTER MANDATORY APPEAL AS PROVIDED BY STATUTE

TIME OF CONFINEMENT TO DATE OF JUDGMENT: 224 DAYS RESTITUTION: NOT APPICABLE

JUDGMENT OF CONVICTION AND DEATH SENTENCE

The Defendant having been indicted in the above entitled and numbered cause for the felony offense of Capital Murder as charged in the indictment, a capital felony, and this cause being called for jury selection on JULY 8, 2004, the State appeared by her Criminal District Attorney P. MATT BINGHAM and Assistant District Attorneys J. BRETT HARRISON and APRIL SIKES. and the Defendant TRACY BEATTY. appeared in person and his counsel ROBERT PERKINS and KEN HAWK, also being present and both parties announced ready and jury selection commenced, and the Defendant in open court was duly arraigned and pleaded Not Guilty to the charge of Capital Murder as contained in the indictmentherein, thereupon, jury, to- wit: MITCHELL HARRIS and eleven others, were duly selected, along with one alternatejuror, and upon completionofjury selection the jury was impaneled and sworn. On AUGUST2, 2004 the Court proceeded with the trial with the reading of the indictment, the defendant entering his plea of "NOT GUILTY", opening statements, and introductionof evidence. The jury, who having heard the evidence submitted, and having been duly charged by the court, and after hearing argument of counsel, retired in the charge of the properoffice to considertheir verdict, and afterward were brought into open Court, by the proper officer, the Defendantand his counsel being present, and in due form of law returned into open Court the following unanimous verdict, which was received by the Court, and is here and now entered upon the minutes of the Court, to wit:

WE, THE JURY, find unanimously and beyond a reasonable doubt, the Defendant, TRACY BEATTY, Guilty of Capital Murder, that is intentional murder committed in the course of committing burglary of a habitation, as charged in the indictment.

/S/MITCHELL HARRIS

FOREMAN JUDGMENT AND SENTENCE OF DEATH PAGE 3

The Defendant having been found guilty of Capital Murder bythe verdict of the juryand thereupon further evidence being heard by the juryon the special issues pertaining to punishment, the Court again charged the jury as provided by law on the following special issues: SPECIAL ISSUE NO. 1

Isthere a probability that the defendant, TRACY BEATTY, would commit criminal acts of violence that would constitute a continuing threat to society?

Taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, is there sufficient mitigating circumstance or circumstances to warrant thata sentence of life imprisonment rather than a death sentence be imposed?

Thejury, after hearing arguments of counsel, retired in charge of the proper officer to consider their verdict and afterwards were brought into open Court by the proper officer; the Defendant and his counsel being present and in due form of law returned into open Court the following verdict, which was received by the Courtand is here and now entered upon the minutes of the Court, to-wit:

We, the jury unanimously find and determine beyond a reasonable doubt that the answer to this Special Issue No. 1 is: "YES."

/S/ MITCHELL HARRIS FOREMAN JUDGMENT AND SENTENCE OF DEATH PAGE 4

We, the jury unanimously find and determine beyond a reasonable doubtthat the answer to this Special Issue No. 2 is "NO."

WE, THE JURY, RETURN IN OPEN COURT THE ABOVE ANSWER OR ANSWERS AS OUR ANSWER OR ANSWERS TO THE SPECIAL ISSUE OR SPECIAL ISSUES SUBMITTED TO US, AND THE SAME IS OUR VERDICT IN THIS CASE.

IT IS THEREFORE considered and adjudged by the Court, that the said Defendant is guilty of the offense of Capital Murder, as charged in the indictment, a Capital Felony, and that the said Defendant committed said offense on or about the 25™day of November, 2003, as found by the jury, and that he be punished, as has been determined by the jury's answers to the special issues and in accordance with State law by imposition of the sentence of DEATH, according to the law. THEREUPON the said Defendant was informed by the Court of the mandatory appeal of this Judgment and Sentence to the Texas Court of Criminal Appeals as providedby law and rights to an 11.071 Application for Writ of Habeas Corpus, and further the said Defendant was asked by the Court whether he had anything to say why said sentence should not be pronounced against him, subject to the mandatory appeal and mandate, and he answered nothing in bar thereof, and it appearing to the Court that the Defendant is mentally competent and understands the English language, the Court proceeded, then in the presence of the Defendant, his counsel, and counsel for the state, to pronounce sentence, subject to mandatory appeal, against him as follows: PAfiF S JUDGMENT AND SENTENCE OF DEATH

IT IS THE ORDER OF THE COURT, that the said Defendant, TRACY BEATTY, is guilty ofthe offense ofCAPITAL MURDER, as charged in the indictment'^J^ on that the said Defendant, TRACY BEATTY, committed said offense ofCAPTIAL MURDER on or about the 25* day ofNovember, 2003, as found by the jury, and that he be punished, as ha been detelined by the jury's answers to the special issues along with Texas law by impos.tion of he punishmentofDEATH, according to the law, and said Defendant ,s remanded o, the SheriffofSmith County, Texas to be delivered to the Director ofthe Texas Department of S^<™ Cr«as Dep rtment ofCriminal Justice, Institutional Division), or other person Wally authorized to receive said Defendant, to be held until adate to be determined and ordered by ms Court should the appeal in this cause be affirmed and the Mandate ofsame is return*1 to the Clerk ofthis Court, whereupon aDeath Warrant with date ofexecution shall be ordered as provided by law, and there after the Defendant transported to the appropriate authority for execution as provided by law.

SIGNED this the 11* dayof August, 2004.

Smith County, Texas

NOTICE OF APPEAL:

MANDATED BY TEXAS LAW from date ofJudgment of Death AUGUST 10, 2004.

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