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0770758-024
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KATHERINE TYRA 1t
HARRIS CouNTY DISTRICT CLERK
September 17 1992
SEPI
Mr Scott Atlas
2500 First City Tower
1001 Fannin Ricardo Aldape Guerra
Houston Texas 770026760 RE Cause No 3598
248th DistriCt Court
Dear Applicant
please be advised that your postconviction petition
for writ of Habeas Corpus
was received and filed on September 17 192 Article 11.07 of the Texas Code
of Criminal Procedure affords the State 15 days in
which it may answer said peti
tion After the 15 days allowed the State the Court has 20 days
in which it may
order hearing If the Court has not entered an order within
35 days from the
date of the filing of the petition the petition
will be forwarded to the Court
of Criminal Appeals for their consideration
The records of this office reflect the following
CAUSE NO PETITION FOR WRIT OF HABEAS CORPUS FILED DISPOSITION
Please be further advised that all future correspondence
should indicate the
above listed cause number
Very truly yours
nvmiot
RAYMOND POSADO Manager
PostTrial Systems
Criminal Division
for KATHERINE TYPA District Clerk
Harris County Texas
RPlm
cc Judge of the above named District Court
District Attorneys Office
Appellate Division
pC/CRl R01Ol91
301 FANNIN Box 4651 HousToN TExAs 77210 713 221-5711
THE WILLARD OFFICE BUILDING
455 PENNSYLVANIA AVE. NW
WASHINGTON D.C 20004-1006
TELEPHONE 202 639-8500
FAX 202 639-6804
HUNGARIAN EXPORT BUILDING
UL.VOROVSK000 21
21069 MOSCOW RUSSIAN FEDERATION
TELEPHONE 01170-95 202-5416
FAX 01170-95 200-4218
47 CHARLES Sr BERKELEY SQUARE
LONDON WIX 7P9 ENGLAND
TELEPHONE 01144-71491-7236
FAX 01144-71499-5320
VINSON ELKINS
ATTORNEYS AT LAW
2500 FIRST CITY TOWER
1001 FANNIN
HOUSTON-rEXAS 77002-6760
TELEPHONE 713 758-2222
FAX 713 758-2348
WRITERS DIRECT DIAL
713 758-324
September 16 1992
FIRST CITY CENTRE
818 CONGRESS AVENUE
AUSTINTEXAS 78701-2496
TELEPHONE 512 495-8400
FAX 812495-8612
3700 TRAMNIELL CROW CENTER
2001 ROSS AVENUE
DALLASTEXAS 75201-2916
TELEPHONE 214 220-7700
FAX 214 220-7716
BAGATELA 12
00-585 WARSAW POLAND
TELEPHONE 01148-2825-33-33
FAX 01145-2 825-22-45
Ms Katherine Tyra
District Clerk
301 Fannin
Houston Texas 77002
Re Cause No 359805 Lx Parte Ricardo Aldape Guerra
Dear Ms Tyra
of
Enclosed please fmd for filing in the above-captioned case an original and one copy
First Amended Application of Writ of Habeas Corpus which is missing
table of authorities that will be supplied within the next few days
and an Appendix to First Amended Application of Writ of Habeas Corpus
and
Motion to Withdraw Order Setting Execution Date Pending Consideration
and Disposition of Application for Writ of Habeas Corpus Proceeding
Please give both sets of all three documents to Debbie Wilson in Post-Conviction Writs
copy of these pleadings is being hand delivered to opposing counsel
Thank you for your attention to this matter
Veiy truly yours
ScIa
Ms Katherine Tyra
September 16 1992
Page
c\aldape\iyr916
Enclosures
cc Ms Karl Sckerl by messenger
Clerk Texas Court of Criminal Appeals by overnight mail
Monica Washington U.S Court of Appeals for the 5th Circuit by overnight mail
Ricardo Aldape Guerra by overnight mail
Ms Katherine Tyra
September 16 1992
Page
bcc Stan Schneider by messenger
Santiago Roe by DHL overnight
Amb Francisco Gonzalez de Cossio by messenger
Sandra Babcock by messenger
Team
THE WILLARD OFFICE BUILDING
455 PENNSYLVANIA AVE. NW
WASHINGTON D.C.20004-I 008
TELEPHONE O2 839-6500
FAX 202 639-6604
HUNGARIAN EXPORT BUILDING
UL.VOROVSPc000 21
121069 MOSCOW RUSSIAN FEDERATION
TELEPHONE 01170-95 202-8418
FAX 01170-95 200-4216
47 CHARLES ST BER$ELEY SQUARE
LONDON WIX 7PB ENGLAND
TELCPHONE 01144-71491-7236
FAX 01144-71 499-5320
VINSON ELKINS
L.L
ATTORNEYS AT LAW
2500 FIRST CITY TOWER
1001 FANNIN
HOUSTONTEXAS 77002-6760
TELEPHONE713 758-2222
FAX 713 758-2348
WRITERS DIRECT DIAL
713 758-224
September 21 1992
FIRST CITY CENr
BIB CONGRESS AvLZ
AUSTINTEXAS 787Oi-S6
TELEPHONE 512 499C
FAX 12 495-86
3700 TRAMMELL CROW rP
200 ROSS AVEW
OALLASTCXAS 752O66
TELEPHONE 214 220-CC
FAX 21.4 220-77
BAQATELA
00-585 WARSAW P...MD
TELEPHONE OIl 452
FAX 01146-2 625---
By Federal Express
Thomas Lowe
Clerk Texas Court of Criminal Appeals
14th and Lavaca
Price Daniel Building
Room 201
Austin Texas 78701
Re Cause No 359805 Parte Ricardo Aldape Guerra
Dear Mr Lowe
As requested by Rick Wetzel enclosed are the following
Nine copies of the First Amended Application for Writ of Habeas Corpus
filed on behalf of Ricardo Aldape Guerra and
an Order signed by Judge Densen this morning denying Mr Guerras petition
for Habeas Corpus and denying both Mr Guerras motion to withdraw the
setting of his execution date and the States request for modification of the
execution date to January 28 1993
You should have received by messenger yesterday afternoon copy of Mr Guerras
motion for stay of his execution date
Very truly yours
Scott Atlas
cIdapksL921
Thomas Lowe
September 21 1992
Page
Enclosures
cc Ms Karl Sckerl by messenger only
Monica Washington U.S Court of Appeals for the 5th Circuit by telecopy
only
Ricardo Aldape Guerra only
Thomas Lowe
September 21 1992
Page
bcc Stan Schneider by telecopy only
Amb Francisco Gonzalez de Cossio by telecopy only
Sandra Babcock by telecopy only
Team
IN THE TEXAS COURT OF CRIMINAL APPEALS
AND
IN THE 248TH JUDICIAL DISTRICF OF HARRIS COUNTY TEXAS
Ex Parte RICARDO ALDAPE G1JERRA
Applicant
Case No
_______
Harris County
Cause No 359805
FIRST AMENDED
APPLICATION FOR WRIT OF HABEAS CORPUS
RICARDO ALDAPE GUERRA IS CURRENTLY SCHEDULED TO BE EXECUTED
SEPTEMBER 24 1992 AT 1201 A.M
Scott Atlas
RECEIVED IN
COURT of CRIMINAL APPEALS
SEP 22 199Z
THOMAS LOWE CLERK
OF COUNSEL
Stanley Schneider
Schneider McKinney
11 Greenway Plaza
Houston Texas 77046
Attorney in Charge
Texas Bar No 01418400
Theodore Kassinger
VINSON ELKINS L.L.P
2500 First City Tower
1001 Fannin
Houston Texas 77002-6760
713 758-2024
713 961-5901 FAX 713 758-2346
TABLE OF CONTENTh
Page
INTRODUCTION
FACTUAL OVERVIEW
PRIOR PROCEEDINGS
STATEMENT OF MATERIAL FACTS
Background
Trial Evidence 10
The Crime Scene and Apprehension of Suspects 10
The Prosecutions Theory at Trial 15
The So-Called Eyewitness Testimony 18
Patricia Diaz 19
Herlinda Garcia 21
Vera Flores 23
Hilma Galvan 25
Jose Armijo Jr 28
Other Prosecution Witnesses 33
George Brown 33
Frank Perez 34
Jose Gelasio Saucedo 35
An Emotional Appeal Based on Victim Character Evidence 35
The Defense Case 36
Jacinto Vega 37
Jose Heredia 38
Jose Manuel Barrosa Esparza 39
Jose Luis Tones Luna 40
Ricardo Aldape Guerra 41
Page
The Prosecutions Rebuttal 42
Closing Argument 43
The Lineup and Evolution in the Witnesses Recollections 45
ARGUMENT 48
GUERRA IS INNOCENT AND THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE U.S CONSTITUTION REQUIRE
MECHANISM FOR REVIEW OF NEW SUBSTANTIAL EXCULPA
TORY AND MITIGATING EVIDENCE IN GUERRAS CASE 48
II GUERRAS CONVICTION WAS BASED ON INSUFFICIENT
EVIDENCE IN VIOLATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE U.S CONSTITUTION AND ARTICLE
SECTIONS 13 AND 19 OF THE TEXAS CONSTITUTION 54
III FLAGRANT PROSECUTORIAL MISCONDUCT BEFORE AND
DURING TRIAL VIOLATED GUERRAS RIGHTS UNDER THE
FIFTH SIXTH EIGHTH AND FOURTEENTH AMENDMENTS TO
THE U.S CONSTITUTION AND ARTICLE SECTIONS 10 13 AND
19 OF THE TEXAS CONSTITUTION 56
Introduction 56
Pretrial Investigative and Prosecutorial Wrongdoing 58
The Prosecution Failed to Disclose -- and Affirmatively
Concealed --Material Exculpatory Evidence 58
The Pretrial Intimidation of Witnesses by Police and
Prosecutors Deprived Guerra of His Due Process Rights 65
Evidence of Other Improper Police Procedures 66
11
Page
Prosecutors Improper Trial Conduct 68
The Prosecutors Improper Remarks During VofrDire Deprived
Guerra of His Constitutional Rights 68
Appeals to Prejudice Against Illegal Aliens From
Mexico 68
Juror Was Told that the Testimony of Police Officers
Is Entitled to Greater Credibility than that of Other
Witnesses 68
Juror Was Told that Life Sentence Did Not Mean
Life 69
The Prosecutors Misstated the Law of Parties in
Manner that Misled Most of the Jurors into Thinking
They Could Sentence Guerra to Death Even if They
Believed that He Was Not the Triggerman 70
Many Jurors Were Told Guerra Would Be Crazy Not
to Testify 72
The Prosecutors Use of Known False Evidence Deprived
Guerra of His Right to Fair Trial 77
False Accusation that Guerra Committed an Unrelated
Murder 77
Prosecutorial Use of Material False Testimony
Violates Criminal Defendants Rights Under
Both the U.S and Texas Constitutions 80
ii The Prosecution Intentionally Misled the Jury by
Knowingly Eliciting and Failing to Correct
Misleading Prejudicial Testimony 82
111
Page
False Accusation that Guerras Roommate Committed
Robbery and Use of This Evidence in Support of
Argument for Imposing Death Penalty 85
Prosecutors Display of Mannequins Throughout Trial 88
Eliciting Irrelevant Testimony that Witnesses Feared Guerra 90
The Prosecutors Improper Jury Argument and Repeated
Statements of Personal Opinion and the Introduction of
Evidence Outside the Record 91
The Prosecutors Repeatedly Improperly Bolstered the
Testimony of State Witnesses with Imaginary Facts or
Impermissible Opinions 93
The Prosecutors Gave False Unsworn Testimony in an
Attempt to Unfairly Impeach Two Crucial Defense
Witnesses 95
The Prosecutors Falsely Accused Guerra of Lying
About How He Ran Back to 4907 Rusk 95
ii Without Evidence the Prosecutors Accused Key
Defense Witness of Being High on Drugs or
Alcohol 96
iii In Flagrant Contradiction to Material in the
Prosecutors Files Prosecutors Wrongly Accused
Two Defense Witnesses of Lying 97
iv Prosecutors Impeachment of Defense Witnesses
Through Questions Without Underlying Proof 98
The Prosecutors Repeated Pleas to Community
Expectations 100
Use of Irrelevant and Inflammatory Victim Impact Testimony
from Mrs Harris and Mrs Armijo Violated Guerras Rights 100
-iv-
Page
The Prosecution Attempted to Invoke Religion to Persuade the
Jury to Give the Death Penalty 105
The Cumulative Effect of Prosecutorial Misconduct Throughout
Guerras Trial Deprived Him of Fair Trial and Deprived Guerra of
His Due Process Rights Under the Fifth and Fourteenth Amendments
to the U.S Constitution and Article Sections 3A 10 13 and 19
of the Texas Constitution 106
The Serious and Continuing Prosecutorial Misconduct Alleged Here
Resulted in Deprivation of Fundamental Fairness that Cannot Be
Waived By Failure to Object 108
IV THE HOSTILE ENVIRONMENT SURROUNDING GUERRAS TRIAL
AND THE PROSECUTORS CONDUCT IN EXACERBATING THE
HOSTILE ENVIRONMENT SUBVERTED THE TRIAL PROCESS AND
VIOLATED GUERRAS RIGHTS UNDER THE FIFTH SIXTH
EiGHTH AND FOURTEENTH AMENDMENTS TO THE U.S
CONSTITUTION AND ARTICLE SECTIONS 10 13 AND 19 OF THE
TEXAS CONSTITUTION 110
Pretrial Publicity and Prejudicial Feelings Toward Illegal Aliens 113
Record Number of H.P.D Officers Killed 113
Attitudes Towards Illegal Aliens 114
Harris Murder Trial and Guerra as Illegal Alien 114
Anti-Illegal Alien Attitudes in Houston 114
Supreme Court Decision on Education of the Children
of Illegal Aliens 116
Immigration Reform Debate 116
Study Claiming Illegal Aliens Burden the Welfare
System 119
Page
Ku Klux Klan Demonstration 120
The Jurors Were Aware of Anti-Illegal Alien Issues Discussed
in the Media 121
The Prosecutors Repeatedly Focused Jurors Attention on Illegal
Aliens During Voir Dire and Subtly Incited Prejudices Among the
Jurors 121
Presence of Uniformed Officers in the Courtroom 122
Conclusion 125
THE PROSECUTORS APPEAL TO ETHNIC PREJUDICE BY URGING
JURORS TO CONSIDER GUERRAS STATUS AS AN ILLEGAL ALIEN
WHEN ASSESSING PUNISHMENT VIOLATED HIS RIGHTS UNDER
THE FIFTH SIXTH AND FOURTEENTH AMENDMENTS TO THE
U.S CONSTITUTION AND ARTICLE SECTIONS 3A 10 13 AND
19 OF THE TEXAS CONSTITUTION 126
VI THE ADMISSION OF IRRELEVANT INFLAMMATORY VICTIM
IMPACT EVIDENCE DURING THE GUILT-INNOCENCE PHASE
VIOLATED GUERRAS RIGHTS UNDER THE FIFTH EIGHTH AND
FOURTEENTH AMENDMENTS OF THE U.S CONSTITUTION AND
ARTICLE SECTIONS 13 AND 19 OF THE TEXAS
CONSTITUTION 131
Admission of the Victim Impact Evidence During the Guilt-Innocence
Phase Violated the Fifth and Fourteenth Amendments to the U.S
Constitution as Well as Article Sections 13 and 19 of the Texas
Constitution 131
The Victim Impact Evidence Was Irrelevant and Inadmissible
Under Texas Law 132
-vi-
Page
Victim Impact Evidence During the Guilt-Innocence Phase of
Guerras Trial Rendered the Trial Fundamentally Unfair and
Violated Guerras Right to Due Process of Law Under the
U.S Constitution 134
The Victim Impact Evidence Also Rendered Guerras Trial
Fundamentally Unfair Under Article Sections 13 and 19 of
the Texas Constitution 136
The Admission of Prejudicial Victim Impact Testimony at the
Guilt-Innocence Phase of Guerras Trial Violated the Eighth and
Fourteenth Amendments to the U.S Constitution 138
The Victim Impact Testimony Resulted in the Arbitrary and
Capricious Imposition of the Death Penalty 138
The Use of the Victim Impact Testimony During the Guilt
Phase Unconstitutionally Destroyed the Bifurcated Capital Trial
Procedure Mandated By the Eighth Amendment 140
Payne Tennessee Permits Victim Impact Testimony at the
Sentencing Phase Only 142
VII THE TOTALITY OF THE CIRCUMSTANCES SURROUNDING THE
INVESTIGATION AND TRIAL DENIED GUERRAS RIGHT TO DUE
PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
DUE COURSE OF LAW UNDER ARTICLE SECTIONS 13 AND 19
OF THE TEXAS CONSTITUTION 144
The Applicable State and Federal Constitutional Legal Standards 146
The Federal Standards 146
The Reliability/Totality-of-Circumstances Test as
Interpreted by Manson 146
The Totality of Circumstances Test as Interpreted by
Brandley 151
-vii-
Page
The Texas Standards 152
Harmless Error 153
The State Identification Procedures Were Impermissibly Suggestive 154
Police Intimidation 154
Guerra in Handcuffs 155
The Lineup 155
The July 22 Walk-Throught 160
The Mannequins and Prosecutorial Suggestiveness 161
Repeated Viewings 162
The State Witnesses Identifications Were Fundamentally
Unreliable 163
The Witnesses Testimony Was Inconsistent 164
The Stories of the States So-Called Eyewitnesses
Contradicted the Irrefutable Physical Evidence 164
The Stories of the States Principal So-Called
Eyewitnesses Changed Over Time 166
Patricia Diaz 167
ii Herlinda Garcia 168
iii Vera Flores 169
iv Hilma Galvan 171
Jose Armijo Jr 174
vi Other Prosecution Witnesses 177
vii Defense Witnesses 178
The Witnesses Stories Contradicted Each Other 179
The Manson Reliability Analysis 183
The Opportunity to View the Criminal at the Time of
the Crime 184
-viii-
Page
The Witnesss Degree of Attention 186
The Accuracy of His Prior Description of the
Criminal 187
The Witnesss Level of Certainty 188
The Time Between the Crime and the Confrontation 189
The Court Should Adopt the ALl Guidelines for Pretrial
Identification Procedures 189
VIII GUERRA WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH
EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE SECTION 10 OF THE
TEXAS CONSTITUTION 192
Guerra has the Constitutional Right to Receive Effective Assistance
of Counsel 192
The Norm for Professional Competence 193
Need to Show Prejudice Resulting from the Defense 195
Guerras Counsel Rendered Ineffective Assistance Throughout the
Entire Trial Process 197
Inadequate Pretrial Investigation and Preparation for the
Guilt-Innocence Phase 198
Failure to Consult and Retain Other Experts and to
Prepare 201
Failure to Attack the Lineup and Other Prosecution Pretrial
Investigative Techniques 204
Acts and Omissions During Voir Dire 206
-ix-
Page
Defense Counsels Acts and Omissions During the Trials
Guilt-Innocence Phase Resulted in Ineffective Assistance 207
Failure to Mention the Impossibility of Someone in
Guerras Location at the Scene Could Have Been the
Shooter 207
In-Court Identifications Were Not Attacked 207
Omissions in Cross-Examination of Fingerprint
Expert 208
Defense Counsels Conduct During the Penalty Phase Resulted
in Ineffective Assistance 209
Defense Counsel Failed to Investigate Guerras
Background for the Punishment Phase 212
This Failure to Investigate and Present Mitigating
Evidence Constituted Ineffective Assistance of
Counsel 215
Defense Counsels Failure to Investigate Mitigating Facts
Was Not the Result of an Informed Strategic Decision
and Therefore Was Unreasonable 217
Even if No Single Error Constituted Ineffective Assistance the
Totality of the Errors Amounts to Ineffective Assistance and Justifies
New Trial 221
In Capital Cases Texas Should Follow the Same Test of Ineffective
Assistance that It Uses in Noncapital Cases 223
Page
IX THE COURTS REFUSAL TO EXCUSE FOUR VENIRE MEMBERS
FOR CAUSE DENIED GUERRA HIS RIGHTS TO FAIR AND
IMPARTIAL TRIAL AND TO AN IMPARTIAL JURY IN VIOLATION
OF THE FIFTH SIXTH AND FOURTEENTH AMENDMENTS TO
THE U.S CONSTiTUTION AND ARTICLE SECTIONS 10 13 AND
19 OF THE TEXAS CONSTITUTION 227
Detective Jack Lee 229
Many States Recognize the Inherent Partiality of Police
Officer/Juror 229
Detective Lees Familiarity with the Lawyers and Witnesses of
the Prosecution Team and His Status as Police Officer
Disqualified Him as Matter of Law Under the Facts of this
Case 231
Jerry Thagard 233
Cynthia Matthews 234
She Would Have Difficulty Requiring the Prosecutor to Prove
Guilt Beyond Reasonable Doubt 234
She Would Hold Guerras Failure to Testify Against Him 236
Tommy Smith 238
Conclusion on Refusal to Excuse for Cause 240
THE ARTICLE 35.13 REQUIREMENT THAT PEREMPTORY
CHALLENGES BE EXERCISED AFTER QUESTIONING EACH
PROSPECTIVE JUROR VIOLATED GUERRAS RIGHTS UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S
CONSTITUTION AND ARTICLE SECTIONS 3A 13 AND 19 OF
THE TEXAS CONSTITUTION 240
-xi-
Page
XI THE COURTS INQUIRY INTO THE NUMERICAL DIVISION OF THE
JURY DURING DELIBERATIONS DENIED GUERRA HIS RIGHTS TO
DUE PROCESSOF LAW AND TRIAL BY IMPARTIAL JURY UNDER
THE FIFTH SIXTH AND FOURTEENTH AMENDMENTS OF THE
U.S CONSTITUTION AND ARTICLE SECTIONS 13 AND 19 OF
THE TEXAS CONSTITUTION 245
XII THE JURY WAS PRECLUDED DURING SENTENCING FROM
CONSIDERING GUERRAS MITIGATING EVIDENCE OF GUERRAS
YOUTH AND THE INAPPLICABILITY OF THE LAW OF PARTIES IN
VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS
TO THE U.S CONSTITUTION AND ARTICLE SECTIONS 13 AND
19 OF THE TEXAS CONSTITUTION 249
Mitigating Evidence of Youth 249
Inapplicability of the Law of Parties 252
XIII THE TRIAL COURTS REFUSAL TO DEFINE THE OPERATIVE
TERMS OF ARTICLE 37.071 IN PUNISHMENT SPECIAL ISSUES NO
AND VIOLATED GUERRAS RIGHTS UNDER THE FIFTH SIXTH
EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S
CONSTITUTION AND ARTICLE SECTIONS 10 13 15 AND 19 OF
THE TEXAS CONSTITUTION 254
Reasonable Doubt Must Be Defined 257
The Terms in the Special Issue Questions also Must Be Given
Limiting Constructions During the Punishment Phase of the Trial 261
The Language of the Special Issues Must Provide the Jury
with Specific Guidance 261
The First Special Issue Question Provides No Guidance 266
The Second Special Issue Question also Provides No
Guidance 269
Conclusion 275
-xi-
Page
XIV EViDENCE CUSTODIANS LOSS OF STATE EXHIBIT THE MAP
OF THE SCENE DEPRIVED GUERRA OF DUE PROCESS IN
VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENT
AND ARTICLE SECTIONS 13 AND 19 OF THE TEXAS
CONSTITUTION 276
XV THE CUMULATIVE EFFECT OF THE ERRORS AT GUERRAS
TRIAL DENIED HIM HIS CONSTITUTIONAL RIGHT TO
FUNDAMENTALLY FAIR TRIAL 277
XVI THE TEXAS CONSTITUTION PROVIDES BROADER GUARANTEES
OF INDIVIDUAL RIGHTS AND LIBERTIES THAN THOSE FOUND
IN THE U.S CONSTITUTION 279
The Texas Bill of Rights Should Be Construed Broadly 281
The Constitutional Language Calls for Broad Construction 281
Juridical Advantages of Broader Construction 282
Specific Texas Constitutional Provisions Provide Broader Protection
of Individual Rights and Liberties than Current Interpretations of the
Federal Constitution 284
Article Section 13 284
Article Section 19 285
XVII JUDICIAL REVIEW OF ALL CONSTITUTIONALERRORS RAISED IN
HABEAS CORPUS PROCEEDINGS INVOLVING CAPITAL CASES IS
REQUIRED BY ARTICLE SECTION 13 OF THE TEXAS
CONSTITUTION 287
Article Section 13 of the Texas Constitution Requires Review of
all Constitutional Errors Even if Unpreserved in Capital Cases 287
Other Courts Allow Review of Unpreserved Errors in Capital
Cases 290
-XIII-
Page
Alternatively the Court Should at Least Review Errors in the
Punishment Phase 292
Conclusion 293
PRAYER FOR RELIEF 293
AFFIDAVIT OF VERIFICATION 295
CERTIFICATE OF SERVICE 296
-xiv-
IN THE TEXAS COURT OF CRIMINAL APPEALS
AND
IN THE 248TH JUDICIAL DISTRICT OF HARRIS COUNTY TEXAS
Ex Parte RICARDO ALDAPE GUERRA
Case No
___________
Applicant Harris County
Cause No 359805
_________________________________
FiRST AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS
Petitioner RICARDO ALDAPE GUERRA Guerra pursuant to Article 11.07
of the Texas Code of Criminal Procedure moves this Court to issue Writ of Habeas
Corpus for his release from confinement on grounds that he is being denied his liberty
under an illegal and unconstitutional conviction and sentence of death
Petitioner seeks an evidentiary hearing to more fully develop the facts on which this
Petition is based
INTRODUCLION
This is case involving an abhorrent crime -- the murder of Houston police
officer James Harris Harris The true murderer Roberto Carrasco Flores
Carrasco was killed by police only 90 minutes after the Harris murder in shootout
11Guerra will refer to Roberto Carrasco Flores as Carrasco rather than Flores to
avoid confusion with the name of one of the States principal witnesses Vera Flores
-1-
that began when Carrasco emerged from his hiding place shooting the murder weapon
carrying 31 rounds of ammunition and holding Harriss gun in his belt Shortly after
Carrasco was killed Guerra who had been in car with Carrasco when they encountered
Harris was found cowering behind nearby trailer Guerra immediately and willingly
cooperated with the police and gave an explanation of the events that remains unchanged
to this day and that is completely consistent with the physical evidence
Guerra had left his home in Mexico two months earlier to find better job
in Houston He had been working and sending money home to his family In fact when
arrested he was carrying $300 money order payable to his mother Guerra will show
that he had never previously been in trouble with the police in the U.S or in Mexico and
had no criminal record
Twenty-eight-year-old Carrasco on the other hand mere acquaintance of
Guerras had bragged of killing several people hated the police because of incidents in
his past used numerous aliases and carried cherished nine-millimeter semi-automatic
pistol -- the same gun that killed Harris
With Carrasco dead and Guerra the only one available for trial the police
and prosecution immediately began course of conduct designed to influence the evidence
away from Carrasco and towards Guerra In addition throughout the case the prosecution
used subtle methods of planting prejudice in the jurors eyes against poor immigrant
hardly able to protect himself who was in the wrong place at the wrong time
-2-
These factors -- combined with defense presented by court-appointed
lawyers with little time to prepare who did not have all the facts available to this Court
and who were not prepared to cope with the subtle but effective use of prejudice against
their client resulted in conviction that was miscarriage of justice and that now
threatens to result in the taking of an innocau life
Guerra will demonstrate that the States case was based on confused
manipulated and concealed witness evidence effective prejudicial prosecutorial remarks
and rejection of the physical evidence The motive for this conduct was the desire and
need by the prosecution and police to blame Guerra the only person alive and available
for trial
FACflJAL OVERVIEW
On July 13 1982 Officer Harris was shot and killed with nine-millimeter
Browning semi-automatic pistol that belonged to Carrasco It was not Guerras gun
The shooting occurred as Harris approached stopped vehicle in
residential neighborhood in East Houston In the vehicle was Guerra who lived in the
neighborhood and his acquaintance Carrasco One of the occupants approached Harris
pulled gun and shot him three times At the time of the shooting the other occupant
in response to the officers previous requests was standing with his hands on the hood of
Harriss car After the shooting both individuals fled
Approximately 90 minutes later Carrasco was killed in shootout in which
he shot and seriously wounded police officer Lawrence Trepagnier five times with the
-3-
same nine-millimeter Browning used to kill Harris Harriss gun .357 Colt Python which
was taken from him after he was shot was found wedged in Carrascos pants waistband
There is no dispute that there was no physical evidence -- fingerprints metal
trace or anything else -- indicating that Guerra had ever touched either the murder
weapon or victim Harriss gun All the physical evidence surrounding Harriss shooting
pointed unequivocally to Carrasco not Guerra as the killer
Nonetheless in trial that began less than seven weeks later Guerra was
convicted of murder and sentenced to death solely on the basis of contradictory unreliable
testimony and unconstitutionally tainted witness identifications
Guerra an undocumented worker from Mexico maintains his innocence as
he has since his arrest immediately after the shootout in which Carrasco was killed
Within hours after Harris was killed Guerra unaided by counsel voluntarily gave police
officers full account of the shooting that was consistent in all respects with the physical
evidence
Eyewitnesses initial descriptions of the shooter were far more consistent with
Carrascos dress and appearance than with Guerras On the night of the shooting
Carrasco wore maroon shirt and brown pants while Guerra wore light green shirt and
blue jeans Carrasco had short hair and was clean-shaven Guerra had black straight
shoulder-length hair mustache and beard
Only after series of improper investigative tactics and procedures --
including withholding and concealment of exonerating evidence witness intimidation
-4-
highly suggestive lineup reenactment of the crime staged by the police for potential
State witnesses and the use of life-sized mannequins of Carrasco and Guerra dressed in
clothing worn by them the night of the shooting were few prosecution witnesses able
to disregard their initial impressions and identify Guerra as the shooter
This Application demonstrates as Justice Clinton stated in dissent on
Guerras direct appeal that genuine miscarriage of justice has occurred Guerra
State 771 S.W.2d 453 486 Tex Crim App 1988 cert denied 492 U.S 925 1989
Guerras conviction and death sentence resulted from an investigation and trial that were
infected by the States unfair blind focus on the only available target in the investigation
for the murder of police officer This blind focus caused the prosecution to engage
in 18 different acts of prosecutorial misconduct both before and during the trial and to
conduct an overly aggressive investigation in grievous violation of Guerras rights
10 calm and deliberate investigation of the crime without this blind focus
compels the conclusion that Guerra is innocent of the killing for which he was convicted
and sentenced to death and that the evidence supporting the jury verdict was patently
insufficient
11 Guerras trial also was fatally infected by the communitys inflamed passions
engendered by the alleged killing of police officer by an undocumented worker The
prosecution repeatedly and wrongly appealed to ethnic prejudices and Guerras illegal
alien status
-5-
12 Not satisfied with the available relevant evidence the prosecutors further
inflamed the jury during the guilt-innocence phase by eliciting detailed sympathy-evoking
testimony from Mrs Harris -- and the wile of an innocent bystander who also was shot
and killed but whose death was not the subject of any charge against Guerra
13 Guerras conviction and sentence also are constitutionally flawed because his
defense counsel failed to render effective assistance of counsel in substantial part because
of exculpatory evidence that the State withheld
14 Finally series of improper rulings by the trial court compounded the
unconstitutional treatment of Guerra and give rise to other grounds requiring that his
conviction and death sentence be reversed
15 At an evidentiary hearing Guerra will present witnesses and documentary
evidence proving the claims set forth in this Application and demonstrating that he should
not be executed
PRIOR PROCEEDINGS
The 248th Judicial District Court of Harris County Texas entered the
judgment that is the subject of this petition Tr 34O-41
VThe separately bound and paginated Appendix which contains mostly documents
from the States files principally offense reports lab reports and witness statements and
newspaper clippings will be cited as App with separate reference to Guerras
internal numbering system as F_ The Statement of Facts will be cited as S.F Vol
at The Transcript will be cited as Tr
-6-
Guerra was arrested on July 13 1982 jç at and indicted on July 23 1982
for the offense of capital murder of police officer at la
Guerra entered plea of not guilty at Because he was indigent he
was represented at trial by court-appointed counsel Candelario Elizondo and Joe
Hernandez who were appointed by July 15 at 355-56
Jury selection began on August 30 1982 S.F Vol at The trial began
on October 1982 Tr 367 S.F Vol 20 at and on October 12 the jury returned
verdict of guilty Tr 326 372 S.F Vol 25 at 994
The sentencing proceedings began on October 13 1982 Tr 373 S.F
Vol 26 at On October 14 the jury returned verdict affirmatively answering the two
sentencing issues presented to it Tr 331-32 374 S.F Vol 27 at 206-07 The trial court
sentenced Guerra to death Tr 374 Motion for New Trial was filed that same day
Tr 341 374
On October 26 1982 hearing was held on Guerras First Amended Motion
for New Trial S.F Vol 28 at The trial court denied the motion Tr 341 S.F Vol 28
at
Guerra appealed his conviction to the Texas Court of Criminal Appeals
which affirmed his conviction on May 1988 Guerra State 771 S.W.2d 453 Tex
Crim App 1988 On July 1989 the Supreme Court of the United States denied
certiorari Guerra Texas 492 U.S 925 1989
-7-
Guerra is presently incarcerated on death row in Huntsville Texas This is
Guerras first application for habeas corpus relief
STATEMENT OF MATERIAL FACIS
Background
Guerra is Mexican citizen He first came to the United States in May
1982 shortly after his twentieth birthday S.F Vol 24 at 855 S.F Vol 26 at 158-59 He
entered the country illegally in search of better wages and working conditions S.F
Vol 24 at 856
10 Shortly after he arrived in Houston Guerra found work for subcontractor
at 856 He was paid $3.00 per hour Although the work paid little by American
standards Guerra earned more in two days than he would earn in week in Mexico He
was able to pay for his living expenses in Houston and still had enough left to send
money to his mother in Monterrey Mexico App 82 F333
11 While he was working in Houston Guerra lived in small apartment at 4907
Rusk Street in neighborhood in East Houston known as Magnolia S.F Vol 24 at 841
856 Magnolia was lower-income predominantly Hispanic neighborhood S.F Vol 20
at 63 where Street fights and the sound of gunfire were routine Guerra carried gun
for protection S.F Vol 24 at 869 as did many who lived in the neighborhood see jç
12 Guerra shared his cramped living quarters with several other undocumented
workers id at 856 Rent food and utility bills were divided among them although if
someone fell on hard times the others would cover his share of the rent They spent
-8-
their days working cooked Mexican food together in the evenings and drank beer on
their porch during the hot muggy summer nights when the lack of air conditioning in their
apartment made staying inside unbearable at 858
13 The house at 4907 Rusk served as gathering place for friends and
acquaintances of the people who lived there Most were undocumented Mexican laborers
or wetbacks as some of the Mexican-Americans in the neighborhood called them They
shared stories of Mexico drank and sometimes went out to neighborhood bar called
Marys
14 Carrasco was merely recent acquaintance of Guerras 841-42 They
met at 4907 Rusk in late June 1982 only two or three weeks before the shooting at
841-42 874 Carrasco was known to Guerra only as El Werro Jc at 24 at 841Y
Werro or Guero is Mexican nickname for light-skinned or light-haired person El
Werro was charismatic and mysterious He was also little bit crazy and known to carry
gun App 76 F269 He told Guerra and others he had met in Houston only that
Carrasco introduced himself to others by the name Antonio S.F Vol 24 at
783-84 He assumed yet another identity after robbing James Joseph Kosmerl when he
took Kosmerls drivers license and superimposed his picture over that of Kosmerl
Appendix App 97 F409 see also App 115-119 F503-07 He also used the name
Luis when he persuaded stranger to buy the murder weapon for him in gun store
App 24-26 F42-44 App 84-86 F357-59 see also S.F Vol 21 at 220-22 It was only
after taking fingerprints and requesting search of the latent print files in the Texas
Department of Public Safety that police were able to identify him as Roberto Carrasco
Flores App 78 F279
-9-
he came from Chihuahua Mexico and had come to the United States illegally He kept
his true identity secret
15 On June 19 1982 shortly before he began visiting the Rusk Street
apartment Carrasco approached Aifredo Maldonado Jr in Carters Country Gun Store
in Pasadena Texas introduced himself and gave Maldonado $550 to purchase nine-
millimeter Browning high-powered pistol and two boxes of ammunition App 24-26
P42-44 In exchange for the favor Carrasco told Maldonado to keep the $30 left over
after Maldonado bought the nine millimeter S.F Vol 21 at 221-22 App 24-26
F42-44
16 Carrasco wore his nine-millimeter Browning constantly and he practiced
firing it in the backyard of the house at 4907 Rusk According to those who knew him
he guarded the weapon jealously and never allowed others to fire it He bragged about
having killed convenience store clerk see App 36 F36 App 83 P350 and at least
one other person and professed his hatred of all policemen
Trial Evidence
The Crime Scene and Apprehension of Suspects
17 Shortly after 1000 p.m on the night of July 13 1982 Officer Harris was
shot three times in the side of the head by Hispanic man wielding Browning nine-
millimeter pistol S.F Vol 20 at 73-74 83 97 The shooting occurred at the intersection
of Walker and Edgewood streets in the lower-income residential neighborhood in East
Houston called Magnolia S.F Vol 21 at 215
-10-
18 Houston homicide detective G.T Neely arrived on the scene only minutes
after the shooting S.F Vol 20 at 62-63 When he arrived he saw black Buick with
partially red top parked parallel to Harriss patrol car facing south at 65-66
Down the street was Ford with bullet hole in the windshield at 69 The bullet
damage indicated that the shooter had fired from the passenger side of the Ford at
70
19 Neely later learned that the driver of the Ford Jose Francisco Armijo Mr
Armijo had been shot in the head by nine-millimeter bullet at 71
20 On the top of Harriss patrol car there was blood spatter starting at the
drivers side and traveling across the car toward the passenger side at 86 Three
fired cartridges from nine-millimeter gun were found near the northeast corner of
App 107 F446 Map of Crime Scene Although it is not clear from Neelys
testimony where the Buick and the patrol car were parked the record later indicates that
both cars were parked on Walker Street The state made extensive use of diagram
throughout the trial to aid the jury in understanding the events surrounding the shooting
That diagram was marked States Exhibit and introduced in evidence S.F Vol 20 at
54-55 Unfortunately Exhibit is not in the possession of the evidence custodian for the
248th District Court and cannot be found Moreover an extremely poor record was made
for the purposes of reviewing that testimony so that it is virtually impossible to decipher
some of the testimony and the precise location of the vehicles Guerra 771 S.W.2d
at 478 n.2 see pp 276-77 infra loss of map violates Guerras due process rights
Mr Armijo sat in his car unattended by emergency medical personnel for 45
minutes because they initially thought he was the shooter App 195 F1464 KTRK-TV
Channel 13 Newscast 600 p.m July 14 1982 He died from his injuries on July 20
1982 S.F Vol 20 at 71
-11-
Edgewood and Walker at 132 Three nine-millimeter bullets were also found they
had struck house that was at the northwest corner of Walker and Edgewood Jci at 73
21 From this evidence Neely deduced that Harris had been standing by the
door of his car when he was shot at close range on the left side of his face with the
bullets traveling across the car in an almost perpendicular position from driver side
to passenger side toward the house where the bullets were found at 87 see App
182 F1567 diagram and map of neighborhoodY
22 Neely found another four fired nine-millimeter cartridges one in the
passenger seat of the Buick id at 68 another in ditch in front of 4925 Walker2 and
two in the driveway of 4925 Walker at 143-44 on the north side of Walker Street
In addition police recovered two .45 caliber fired casings on the south side of Walker
Street at 102 From this evidence Neely concluded that whoever shot Harris used
nine-millimeter pistol ran east down the north side of Walker shot Armijo and
continued running in the same direction while the other person was running east on the
south side of Walker and fired .45 caliber pistol at least twice j. at 104-05
Subsequent testimony by the medical examiner who performed the autopsy see
35 infra established that Harris had gunpowder burns on and around his wounds
S.F Vol 23 at 685-86 691 police ballistics expert opined that the distance most likely
to leave powder burns from the murder weapon was 18 to 24 inches and probably not
as far away as four feet S.F Vol 20 at 148-52
2Fhis cartridge was found close to the car driven by Mr Armijo when he was shot
S.F Vol 20 at 103
-12-
23 The physical evidence surrounding Mr Armijos shooting resulted in the
prosecutions expert witnesses concluding that after Harris had been shot Mr Armijo was
shot from the front of his car through the windshield S.F Vol 20 at 145-46 App 61-63
F223-25 App 68 F245 App 103-106 F439-42
24 As detectives were canvassing the area for witnesses following the shooting
they received information that the suspects might be found at 4907 Rusk S.F Vol 21
at 216 They searched the house but found no suspects so they went next door to 4911
Rusk and searched that house at 217 They then returned to 4907 Rusk and
searched it again J.c at 218 As officers were coming out of 4907 Rusk they heard
several gunshots at 219
25 While several police officers were searching the inside of 4907 Rusk officers
Lawrence Trepagnier and Mike Edwards remained outside to search the back yard and
driveway area of 4911 Rusk S.F Vol 23 at 653
26 Carrasco fired his nine-millimeter Browning at Trepagnier as the officer
approached the dark garage where Carrasco was hiding at 672-73 Trepagnier was
hit five times in the chest and abdominal area Jc at 672-73 678 680 Carrasco ran past
Trepagnier who returned fire before becoming incapacitated at 674-75 Carrasco
then ran around the side of the house at 4911 Rusk and was shot and killed by other
police officers firing from the front of 4911 Rusk S.F Vol 20 at 56-57 Carrasco was
firing at other officers when he was killed App 81 F327
-13-
27 Police found the Browning nine-millimeter pistol which had dropped from
Carrascos hand as he fell next to his body on the grass jj at 146 The clip inside the
gun which had capacity of 13 to 15 rounds of ammunition at 127 was empty App
71 F259 App 122 F536
28 After Carrasco was taken to the morgue police found Harriss .357 revolver
in the front of Carrascos waistband under his belt S.F Vol 21 at 202-03 At the
morgue police also discovered another magazine for the nine-millimeter pistol in
military-type magazine pouch attached to Carrascos belt at 202 This clip contained
20 rounds of nine-millimeter ammunition They also found 11 additional loose rounds
of nine-millimeter ammunition in his left front pants pocket at 205 and leather
holster on the inside of his front waistband jç at 204
29 The police found Guerra minutes after Carrasco was killed hiding behind
horse trailer in the back yard of 4911 Rusk S.F Vol 20 at 25-26 50-51 Guerra was
unarmed at the time of his arrest although detectives found .45 caliber Detonics pistol
lying under the trailer wrapped in bandanna at 27-28 He was arrested and
returned to the original crime scene where witnesses were being questioned before being
taken to the police station at 27
30 Only hours later Guerra gave voluntary statement unaided by counsel in
which he explained his actions at the time of the shooting App 73 F264 App 87-88
F366-67 This statement is entirely consistent with Guerras position at trial and in this
Application
-14-
The Prosecutions Theory at Trial
31 Although Carrasco was found with the murder weapon which he owned the
State tried Guerra as the triggerman in the shooting of Harris The State speculated at
trial that Guerra after allegedly shooting Harris and Armijo with the nine-millimeter gun
belonging to Carrasco switched guns with Carrasco S.F Vol 25 at 907-09 Under
the States theory Carrasco had been carrying the .45 caliber Detonics pistol when Harris
was shot and took the nine-millimeter pistol and Harriss .357 revolver only after the
shooting of Harris and Armijo and before the shooting of Officer Trepagnier
32 This farfetched theory is not only illogical but was without any evidentiary
support at trial The State was unable to produce any physical evidence whatsoever
supporting gun switch or even suggesting that at any time Guerra might have handled
the murder weapon
Police lab chemist Danita Smith testified that she had performed
trace metal detection test on Guerra only hours after the shooting to determine
if he had ever held the murder weapon S.F Vol 21 at 181 She found no trace
metal pattern on his palms to indicate that he had ever held any gun at 194-
95 Smith performed trace metal detection test on Guerras abdomen as well
and again found no evidence of metal contact jcj at 197
These results were consistent with the results of laboratory test that
Ms Smith performed on her own hands after holding the .45 caliber Detonics
-15-
pistol She found that the .45 left no trace metal pattern on her palms due to the
composition of the guns metal at 188
The nine-millimeter Browning on the other hand when held for 2/2
minutes by police lab chemist Amy Parker Heeter left an easily discernible trace
metal pattern at 16465 Likewise Officer Harriss .357 Colt revolver left
clear trace metal pattern at 168
When Heeter performed trace metal detection test on Carrascos
palms she found trace metal on both palms The pattern on his right palm
according to her testimony was consistent with the pattern left by Harriss .357
revolver at 171 176-77 There was pattern on his left palm as well
although Heeter opined that it was inconsistent with the trace metal pattern left by
the nine-millimeter at 172 At an evidentiary hearing Guerra will show that
Heeters opinion about the pattern in Carrascos left palm is simply wrong
33 In attempting to explain how it was possible that Guerra held and shot the
nine-millimeter pistol repeatedly without having any trace metal on his palms the State
elicited from Heeter testimony that trace metal patterns could be obliterated by rubbing
ones hands with dirt or washing ones hands with water Jc at 174-75 However chemist
Smith testified that plastic bags had been placed on Guerras hands after his arrest in
order to preserve any evidence such as powder particles or trace metal at 19596
She noted however that the palms of Guerras hands were dirty speculating that
continued..
-16-
34 Sensing the weakness in the proof of its theory based on the evidence the
prosecution speculated to the jury in closing argument that Guerra and Carrasco must
have removed their guns from their waistbands while driving put them on the car seat
and mistakenly picked up the wrong guns as they got out of their car at Harriss request
S.F Vol 25 at 908-09 This speculation concerning the reason or circumstances
substantiating the unusual gun-switch theory being advanced is nonsensical and contrary
to the evidence in several respects First Guerra denied that he had laid his gun on the
seat at all S.F Vol 24 at 87071.2 Second Carrasco was very possessive of his weapon
he had holster and bullets for it and could not possibly have mistaken one gun for the
other Finally the State never explained why any rational or even irrational person in
Carrascos position would want to incriminate himself by accepting both weapon even
.continued
he may have rubbed them in dirt or fallen on the ground in dirt S.F Vol 21 at 187
No one called Officer G.L Bratton to testify His report stated that as he saw other
policemen arrest Guerra and bag his hands he notice that hands had sand
on them from where he had been on the ground being searched by officers App 34
F79 At an evidentiary hearing Guerra will show that neither normal handwashing nor
rubbing ones hands with dirt unless done with great force will eliminate trace metal
pattern
2In fact the prosecutors undoubtedly were aware of statements obtained in the
investigation suggesting the fallacies in their theory Since Guerra had admitted removing
his gun just before leaving car to enter store earlier in the day App 19 F34 there
is an unavoidable implication that he had been riding in the car with the gun in his
waistband before he removed it to enter the store Also it is inconceivable that he would
have put his unregistered gun back on as he was about to leave his car to speak to
police officer making routine stop for minor traffic violation
-17-
his own that someone had just used to kill two people including police officer and the
weapon of the murdered officer
35 The detailed facts proven by the prosecution at trial through various experts
and police investigators lead to the inescapable conclusion that Harris was standing
between his car and the shooter ii the shots were from gun fired at very close range
-- within two feet of Harriss face and iii the shooter had to be standing east of Harris
and thus at least several feet from the hood of the car-2 Nevertheless the testimony of
the prosecutions so-called eyewitnesses failed to support these conclusions Indeed the
confused witnesses stories at trial contradicted the physical evidence
36 Since there was no physical evidence tying the murder weapon to Guerra
and all available physical evidence suggested that Carrasco was the shooter the State
relied on the testimony of several eyewitnesses to the shooting in order to prove that
Guerra had held the nine-millimeter and used it to shoot Harris
The So-Called Eyewitness Testimony
37 The State presented the testimony of several witnesses Five witnesses
placed Guerra at the scene of the murder but only one Mr Armijos 10 year-old son
consistently claimed that he actually saw who shot Harris and Mr Armijo S.F Vol 21
at 284 287 Nevertheless the prosecution recast this testimony to convert these witnesses
i2$ pp 11-12 supra S.F Vol 20 at 87 143-52 Vol 23 at 685-86 691 App 29-
30 F57-58 App 44-61 F206-23 App 77 F272 App 98-102 P432-36 App 107
F446 App 133 F601 App 136-137 F622-23
-18-
to eyewitnesses The prosecution also ignored fundamental inconsistencies in these
witnesses testimony in three respects First these witnesses stories differed materially
from each other Second each witnesss initial description of the shooter given within
hours after the crime differed significantly from Guerras appearance Finally the
witnesses gave statements to the police shortly after the crime that differed materially
from their trial testimony To grasp fully the varied versions of the events of July 13
1982 it is helpful to examine the testimony of each purported eyewitness individually.11
Patricia DiaL
38 Patricia Diaz was driving east on Walker Street when she found the Street
blocked off at Edgewood by black car with red top jç. at 310 She stopped her car
approximately 9-1/2 feet from the Buick S.F Vol 20 at 65 Neelys testimony As she
pulled up to that intersection she noticed police car parked behind the Buick and
heard voice yelling Stop S.F Vol 21 at 312 She then noticed the profile of man
with long beard long hair and moustache standing by the driver door of one of the
11All the so-called eyewitness testimony must be considered in light of the States
use of two suggestive life-sized mannequins of Guerra and Carrasco The mannequins
were molded into astonishing likenesses of the two men as they looked on July 13 1982
the state purportedly spent $7000 to have them made App 162 F1432 App 163
F1495 Houston Post and Houston Chronicle articles dated Oct 1982 Each wore
the clothes that had been taken from the two men on the night of the shooting
Carrascos mannequin wore the bullet-riddled bloodstained shirt that he was wearing when
he died These mannequins were positioned in front of the jury and witnesses throughout
the trial Id S.F Vol 25 at 899
-19-
cars pointing toward the police car.LV Id at 312-13 316 329-30 She saw nothing fri the
mans hands at 318 After seeing the man point she ducked and hewd shoty at
314
39 Ms Diaz testified that she could no see the police officer because she was
scared to look up again after she had initially caught glimpse of the scene at 313
When asked by the State if she had any trouble seeing what was happening she replied
didnt get to see that good the people around and everything saw the shadows but
saw the shadow of one person then at 313
40 In sum she saw the profile of man with long hair and facial hair standing
by one of the cars pointing at the police car She ducked and heard some shots
at 314 She did not see anyone shoot Harris at 330 340
App 182 F1567 Map of Crime Scene Walker Street runs east to west
The Buick was facing south on Walker thereby blocking virtually the entire street The
police car was behind the Buick also facing south The police car was parked on Edge-
wood north-south Street that intersects in an upside-down intersection with Walker
App 181 F1566
She testified that the man she saw pointing was wearing green shirt S.F Vol 21
at 324 After being reminded that she had told the police on the night of the murder that
she did not know the color of the shirt she conceded that she did not know its color
at 324-25 At lineup later on the night of the shooting she identified Guerra as the
man whose profile she saw at 317
-20-
Herlinda Garcia
41 Herlinda Garcia was 15 years old at the time of the shooting S.F Vol 22
at 463 She was standing on Walker Street when the shooting occurred She testified
that as she was on her way to the store the Buick stopped in the middle of Walker
Street Id at 445 two men got out of the car and the driver whom she identified as
Guerra said that their car was messed up at 446-47 Seconds later police car
pulled up and she claimed that she heard Harris say Hold it at 448 She did not
however recall seeing Harris get out of his car
42 At that point Ms Garcia testified those two men got out of their car
contradicting her earlier statement that the men were already out of the car when Harris
pulled up jç at 446 448 Both men then walked toward Harris at 449 One or
both men had their hands on top of one of the cars Id at 478-79 Then one man
turn toward the policeman and he pulled something out of his pants then
he shot that policeman and that is when ran me and my baby at 449
Ms Garcia later said that she heard three gunshots at 450 that she saw the
policeman on the floor and that is when she ran at 451 Finally she clarified
told you was running at the time of the gunshots at 480
Wfhe trial record on the location of witnesses and events is incomprehensible
note supra For example Garcia testified that she was standing right here and the
police officers car was right here S.F Vol 22 at 444
tDuring cross-examination she placed Harris walking up to the Buick at 476
but later claimed that he was halfway between both cars at 477
-21-
43 She testffied that from where she was standing she could not see what
object if any the man pulled out of his pants jçj. at 450
44 She testified that she was able to see the man who she identified at trial as
Guerra running on the opposite side of Walker as she ran toward her house on Walker
at 452 which is on the south side of the street compare at 451-52 Vol 20 at
104-05 143-44 Vol 22 at 547 562
45 As she was running inside her house Ms Garcia saw red Ford
apparently the Armijo vehicle coming down the Street toward her JL at 458-59
46 Despite her in-court identification of Guerra as the person she believed shot
Harris Ms Garcia acknowledged that in her initial statement to the police she had
described the shooter as blond haired man wearing brown shirt and brown pants
at 466-67 This description most closely matches Carrasco who was wearing maroon
shirt and brown pants and was called Werro or fair-skinned one S.F Vol 24 at
809 Even at trial Ms Garcia continued to insist that the shooter wore brown clothes
see e.g S.F Vol 22 at 467 478-80 even though this more closely fits the description of
the clothes worn by Carrasco than those worn by Guerra
47 Near the end of her testimony Ms Garcia admitted that she never saw the
man in brown clothes raise his hand or shoot anyone at 484
Her unbelievable explanation for having identified the shooter as blond was that at
distance in the dark it looked like it was blond at 460
-22-
48 In sum Ms Garcia young teenager recalled seeing blond-haired man
in brown clothes standing near the trunk of the Buick start walking toward Harris and
pull something out of his pants She ran then heard gunshots and assumed the shots
were fired by the blond man in brown clothes
Vera Flores
49 Vera Flores who was 16 at the time of trial ici at 522 testified that she
was with her sister Herlinda Garcia when the Buick stopped in the middle of Walker
Street at 503 506 She claimed that the Buick was coming down Edgewood Street
when she first noticed it jç at 521 that one man got out of the car and asked Ms
Flores if she had any cables to give his car boost at 507 and that she told him that
she did not At that time she noticed only one man at 508
50 Ms Flores testified that about 1-1/2 minutes after the Buick stopped the
police car arrived at the intersection at 508 Ms Flores started to walk away and
then she heard the policeman say Stop She saw that Harris was out of his car
standing by his door at 510 The men from the black and red car approached the
police car at 511 She heard someone say no no like they were frightened and
then she heard gunshots jQ at 512
51 Ms Flores did not see anyone with gun She testified that the reason
she concluded that the driver of the Buick shot Harris was when he started
running just seen him shooting down the Street at 513-15 She admitted
-23-
however that she could not see what happened to the police officer because she hid
behind car when the shooting started
52 Ms Flores identified Guerra as the driver and the man she saw running
down Walker street on the side of the szrea where she live4 aaoss the strea fivm
Galvan at 517 see at 516 Here Ms Floress testimony directly contradicts her
sister Herlindas account of the shooting which placed the Buick driver running on the
opposite side of the street at 452
53 Ms Flores conceded that at lineup at the police station several hours after
the crime she had failed to identify Guerra which she attributed to fear at 518
54 On cross-examination Ms Flores admitted that in the first statement she
gave police at 1240 a.m on July 14 she said that she could not identify anyone j.ç at
525 She further testified that her sister Herlinda had already started walking back
toward her house before any shooting started jç at 527
55 In her first statement Ms Flores said that the two men were at the police
officers car with their hands on the hood Her testimony at trial was confused but
supported this observation with the passenger nearer to and within about two feet of
Harris Id at 527-31
56 Most importantly Ms Flores testified that she did not see the man who
shot Harris or Armijo Sr at 516 535 see at 545 She saw no gun until after
Harris had been shot and after the man she acsumed was the shooter had begun to run
-24-
down the Street Id at 512-513 Ms Flores re-confirmed on cross-examination that she
did not see anyone shoot Hanic at 535
57 In sum she saw both men from the Buick put their hands on the hood of
the police car with the passenger closer to and about two feet from Harris She heard
shots Then she saw Guerra running down the south side of Walker
Hilma Galvan
58 Hilma Galvan testified that she was out walking with Jose and Armando
Heredia on the night of July 13 1982 at 551 While she was at the corner of Lenox
and Walker she noticed car parked on Lenox with its headlights on jç at 550 The
car then came up the Street at high rate of speed turned the corner and came close
to hitting her Id at 551 She saw then that the driver of the car was Guerra at 570
whom she knew jç at 567
59 Ms Galvan then saw the police car stop near George Brown jç at 553
Hearing the other car coming down Rusk real fast she started back toward her house
She next saw the police car and the other car parked at the intersection of
Edgewood and Walker jç at 554 While she was at the driveway of the Cavazos home
she saw the police car pull up behind the other car at 555
Even after acquiescing in the prosecutors leading question on re-direct that she had
seen the driver pull pistol and shoot Harris at 543-44 she immediately backpedalled
to say that she was unsure what the driver had pulled out and no longer remembered if
she had seen him shoot Harris jç. at 545
-25-
60 From her vantage point she could see one of the men standing in front of
his car by the sidewalk across the street at 556 She then walked to her driveway
which was the second house east from the intersection of Edgewood and Walker jc at
548 556 on the north side compare Vol 20 at 104-05 143-44 with Vol 22 at 547 562
App 181 F1566 map From there she watched what happened S.F Vol 22 at 556
61 According to her testimony Harris got out of his car and yelled Come
here to the man that was by the sidewalk at 557 The man kept on walking so
Harris again told him to come here The man kept on walking so Harris told him
Hey you come back jçL At that point the man turned around and walked back
toward the police officer
62 Ms Galvan saw Ms Garcia and Ms Flores standing in front of the car
but she saw no one else there apart from the police officer and that man The
police officer continued to stand by the door of his car at 558
63 Ms Galvan described the shooting as follows
Well it happened so sudden when the police officer called him for the
second time and he said Hey you come here he turned around and
started toward the police officer and all heard was two shots and seen
the officer fall and then heard about two more shots
at 559 She said she neva saw gun but she saw the flash coming out of the gun
jçj at 560 Ms Galvan testified that the shooter had blond hair and wore black or dark
-26-
brown shirt and brown pants at 589 In court however she identified the shooter
as Guerra at 561 She claimed she never saw Carrasco at 567 581
64 After Harris fell she ran into her house at 562 She saw Ms Garcia
and Ms Flores running to their house on the opposite side of the street from Galvan
Id She did not see what the shooter did after she ran into her house
65 Ms Galvan testified that she had seen Guerra previously at convenience
store where she worked Id at 567 She believed she had first seen him several months
before the shooting
66 On cross-examination she admitted that in the statement she first gave
police at 1205 a.m on July 14 she stated that Harris walked up to Guerra and pushed
him against the car at 584 When asked if Harris had his revolver out she
responded couldnt see the officer His back was towards me Later she
elaborated
He didnt really push him against the car He tried to go -- well know
said pushed but of course was confused that night He tried to get
hold of him like this and eveiything happened so soon The shots were
fired right there and then
at 585 The person she believed to be the shooter then ran towards her on her side
of the Street jç at 587 which is the north side
Ms Galvan attributed the blondness to light reflecting off the street S.F Vol 22
at 569-70 589 even though she admitted that Guerra was inside the Buick at the time
at 569 and the nearest streetlight was across the Street and 34 yards west of the
intersection jc App 67 F229 She then inconsistently claimed that she might have
been mistaken about the clothing color because it was dark Jci at 589
-27-
67 In her first statement to police she described the shooter as having dark
brown or black shirt dark brown pants and blond hair at 589 Yet she testified that
she knew Guerra because he frequently came into the convenience store where she
worked Id at 566-67 She had not seen Carrasco in the neighborhood at 588 Yet
when asked if Carrasco was with Guerra the first time that Guerra came into her store
she responded To tell you the truth think he was but there were so many of them
that its hard for me to remember all of them and they dont look the same now jc1 at
587
68 Jose Heredia was standing next to Ms Galvan when the shooting took place
Id at 590
69 In sum Ms Galvan saw Harris order Guerra to come closer and push him
against the police car Then she heard shots saw flash and saw Harris fall She never
saw gun and she said nothing about seeing Guerra pointing at Harris She then saw
Guerra whom she described to police that night as having blond hair and black or dark
brown clothing begin to run towards her as she ran into her house
Jose Armijo Jr
70 Ten year-old Jose Armijo Jr was in the car with his father Jose Francisco
Armijo when the elder Armijo was shot in the head with single nine-millimeter bullet
S.F Vol 21 at 287
71 Mr Armijo was driving west on Walker Street toward the intersection of
Edgewood and Walker when Jose Jr saw the black Buick at 281 Jose Jr was
-28-
sitting in the front passenger seat of his fathers car He saw the police car behind
the Buick at 282 His father then stopped the car
72 In response to leading questions posed by the State Jose Jr testified that
Harris was standing beside the open door of the patrol car at 283 Two other men
were standing by the hood of the patrol car with their hands on the hood jç At that
point Jose Jr testified one of the men acted like he was scratching his back took out
gun and shot Harris jç at 284 Jose Jr could see fire coming out of the gun
at 285 Harris then fell to the ground
73 Jose Jr testified that the shooter wore green shirt and the other man
wore purple shirt While testifying he was facing two life-sized mannequins molded
into likenesses of Guerra and Carrasco each of whom wore the same clothes that they
had worn on the night of the shooting Guerra wore green shirt and blue jeans and
Carrasco wore maroon shirt and brown pants The State introduced the mannequins
in evidence at the beginning of the States case and they remained in front of each
witness as each testified S.F Vol 20 at 44 Vol 25 at 899
On the night of the shooting Jose Jr told the police that the shooter used his left
hand to retrieve and shoot the gun App F16 He omitted from his trial testimony
any reference to which hand the shooter had used perhaps because the prosecutors knew
as Guerra will prove at an evidentiary hearing that Guerra is iight-handed while Carrasco
was left-handed
-29-
74 Jose Jr saw one of the men grab the police officers gun but he could not
tell which one at 286 Both men then started running and shooting all over the
place
75 Mr Armijo began to back his car up after Harris was shot The two
men ran by the car one on each side and the one on the passenger side of the car shot
into the car at 287 Jose Jr testified that he thought the shooter was wearing
green shirt Mr Armijo was hit by bullet and put the car in drive at 287-88
The car went into ditch at 288 After the shooters ran by the car Jose Jr got out
of the car and went to Galvans house to get help
76 At lineup only hours after the shooting Jose Jr was unable to identify
Guerra as the shooter at 290 Yet with the mannequins facing him in Court he was
able to distinguish the color of the shirts worn by Guerra and Carrasco at 285 He
also testified that the shooter had beard and long hair like the mannequin of Guerra
in the courtroom Id at 292 In court he identified Guerra as the shooter at 291
77 On cross-examination Jose Jr admitted that he gave sworn statement to
the police on the night of July 13 1982 in which he stated that he did not see the shooter
cleary at 295 In that first statement given shortly after the shooting and hours
before the lineup he told police that he did not know who shot the police officer jQ at
296 In that statement Jose Jr also told the police that he did not know what clothing
Guerra and Carrasco were wearing the night of the shooting at 301 At lineup
hours later he failed to identify Guerra at 298 At that lineup police officer told
-30-
Jose Jr that the men in the lineup could not see him because Jose Jr and the other
witnesses were looking through one-way mirror Id at 296 Nevertheless at trial the
State elicited from Jose Jr the excuse that he had failed to identify Guerra at the lineup
out of fear at 290
78 After he heard the shots that killed Officer Harris Jose Jr ducked and hid
on the floorboard of his fathers car at 302 He stayed on the floor of the car until
the men ran past the car and reached the corner of the Street behind the car at 303
79 In short Jose Jr testified that as two men were standing with their hands
on the patrol car one acted like he was scratching his back took gun and shot Harris
Jose Jr then hid on the cars floorboard as the two men ran past one shot his father
and both turned the corner at Lenox At trial with the mannequins in front of him Jose
Jr claimed that Guerra was the shooter of both Harris and his father at 291 even
though he initially told the police that he had not seen either man well did not know
what they looked like and did not know who shot Harris even though he was down on
the floorboard when his father was shot and even though he told the police at the lineup
that he could not identify anyone
80 To rehabilitate Jose Jr the State called Marie Estelle Armijo Mrs
Armijo Jose Jr.s mother and the widow of Mr Armijo S.F Vol 23 at 620 The court
allowed Mrs Armijo to testify even though she was present for the States entire case
and heard all the testimony of her son and of the other witnesses and she saw the
mannequins at 626 The court overruled defense counsels objection that her
-31-
testimony constituted violation of The Rule Tex Evid 614 requiring witnesses to
be excluded from the courtroom during others testimony jç
81 Mrs Armijo testified that at approximately 830 a.m on July 14 1982 Jose
Jr had come home from the lineup and told her that he had seen the person who had
done the shooting but was afraid to tell the police at 633 It is not clear from the
record whether Jose Jr was referring to the shooting of Harris or the shooting of his
father She further testified that she had waited six weeks until only few days before
the trial to tell the prosecutors that Jose Jr could identify Guerra as the shooter at
635-36
82 Over defense counsels objections Mrs Armijo was also permitted to testify
about how Jose Jr.s behavior had changed since his fathers death at 634-35 This
testimony could only have been intended to engender sympathy and to arouse jury
hostility against Guerra the only defendant present It clearly was irrelevant to the
question of his guilt
83 On cross-examination Mrs Armijo admitted that she had been asked to
leave the courtroom during her sons testimony after she had an emotional outburst in
reaction to defense counsels questioning at 639 see also S.F Vol 21 at 304 She
also testified that she had spoken to her son after his testimony but before hers about
the facts of this case S.F Vol 23 at 640
Mrs Armijo testified that Jose told her he knew who had done it S.F Vol 23
at 633
-32-
Other Prosecution Witnesses
84 In addition to the testimony of the five people named above who according
to the State witnessed the shooting of Harris early in its case the State presented the
testimony of three witnesses who aithougli not present at the scene of the shooting
witnessed events before and after the shooting that were relevant to the States theory of
the case These witnesses testimony was similarly inconsistent and apparently affected by
improper influences
George Brown
85 First George Brown testified that he was walking his dog on Walker Street
when black Cutlass drove dangerously close to him S.F Vol 22 at 381-82 The car
passed by him twice Id at 376-78 382 The first time the car passed Mr Brown
noticed the man in the passenger seat of the car At trial Mr Brown identified Guerra
as the passenger Altogether he saw four or five people in the car unlike all other
witnesses except Jose Jr who reported seeing at least four people App F16 who
reported seeing only two in the vehicle jç at 392-93 399
86 No more than ten seconds after the car drove passed him and turned left
on Altic police car approached at 383 Mr Brown informed Officer James
Harris that car had nearly hit him and his dog Harris then drove off in pursuit of
the car described by Brown at 383-84
87 Less than minute later Mr Brown heard to gunshots at 385
He was walking in the direction of the shooting when he saw Mexican man running
-33
toward McKinney Street at 385-86 Mr Brown recalled the man wearing white
T-shirt and blue jeans holding his stomach and turning his head to look behind him as
he ran at 385-87 Mr Brown testified that the man he saw running was neither
Guerra nor Carrasco at 387
Frank PereL
88 Next Frank Perez testified that he was working in his driveway at 919
Lenox Street when he heard gunshots at 408 About minute later he saw man
running coming from Walker and cutting across the yard of the house at Lenox and
heading down Lenox toward McKinney at 410-11 As the man ran by his house
Perez heard something metallic drop to the ground at 411 The man turned
around picked up the dropped object and continued running toward McKinney at
410-412
89 Perez testified that the man he saw had short hair thort frill beard and
mustache and was wearing light-colored T-shirt and jeans ji. at 413 When shown
picture of Carrasco Perez testified that he was pretty certain Carrasco was the man
he saw that night at 413-14 On cross-examination Perez admitted that his initial
description of the man referred to long hair and Jut bean and mustache at
1McKinney runs parallel to and is one block south of Walker App 181
F1566
Lenox is parallel to and one block east of Edgewood Number 919 is few houses
south of Walker on the east side of the street S.F Vol 22 at 419 App 181 F1566
map
-34-
425-26 The mannequin of Carrasco noted Perez had short hair and no beard at
426-27
Jose Gelasio Saucedo
90 Finally Jose Gelasio Saucedo Mr Armijos brother-in-law testified that he
was inside his house on the northwest corner of Lenox and Walker when he heard
gunshots S.F Vol 21 at 265 He went to his side window and saw the back of man
running north on Lenox in the direction of Rusk Street at 266 Although there
was no light outside his house he claimed initially that he could see that the man had
shoulder-length hair and was wearing shirt that was either dark green or blue although
it was difficult to the tell the color due to the darkness Id at 269 On cross-
examination he admitted that he could not discern the color of the mans shirt hair or
pants because of the darkness and that all he could tell about the shirt color was that it
was dark Id at 275-77
An Emotional Appeal Based on Victim Character Evidence
91 The medical examiner who conducted the autopsy of Harris described the
powder burns around Harriss wounds and the path of each bullet S.F Vol 23 at 685-91
During his testimony the State introduced several grisly photographs of the autopsy
showing the entrance and exit wounds to Harriss face and head and several pictures
Rusk is parallel to and one block north of Walker
-35-
showing rods entering one side of Harriss face and exiting the other side at 688-91
Exs 74-78
92 The States final witness immediately after the grisly pictures of Harris had
been displayed was Pam Harris Harriss widow who testified at some length about her
husbands life work and marriage Id at 701-11 The court overruled repeated
objections by defense counsel that the prosecutors line of questioning was immaterial and
inflammatoiy at 702-03 706
93 As of the end of the States case only one witness 10-year-old Jose Jr
claimed to have seen Guerra shoot Officer Harris S.F Vol 21 at 284 Ms Diaz saw
man with long hair standing by the side of one of the cars point towards the police car
with his hands -- not gun at 312-13 316 teenagers Garcia and Flores saw two sets
of hands on the police car hood S.F Vol 22 at 479 527-32 heard shots and saw Guerra
run away after the shooting jç at 452 536-37 and Ms Galvan saw Guerra being pushed
against the police car saw flash and heard shots at 559-60 584-85 No one saw
Guerra in the location where the shooter had to be east of Harris
The Defense Case
94 The defense presented the testimony of four witnesses two of whom were
eyewitnesses to the shooting of Officer Harris and two of whom heard Carrasco confess
to the murder immediately after the shooting The defenses final witness was Guerra
95 The defense witnesses each supported Guerras version of the events and
establish his innocence
-36-
96 The two eyewitnesses to the shooting were Jacinto Vega and Jose Heredia
Jacinto Vega
97 Jacinto Vega who was 17 at the time of the trial testified that he had been
sitting on Hilma Galvans porch when he first saw Guerra whom he knew drive the black
and red Buick past the house S.F Vol 23 at 715 He saw the car stop at the
intersection of Edgewood and Walker at 716 He saw the driver get out of the car
and approach two girls Ms Garcia and Ms Flores who were standing by the sidewalk
Id at 717 He recalled the passenger who had short hair getting out of the car at
718
98 police car drove up and parked behind the Buick at 716 When
Harris arrived he called the driver who walked over to the police car and placed his
hands on the hood of the car at 718 The passenger walked behind the driver and
while he was standing behind and thus east of the driver took something out and shot
Harris He held the weapon with two hands at 719
99 After shooting Harris the passenger began running j.ç. Vega did not see
which way the shooter ran because Galvan yelled at him to Get inside the house
Instead however he hid behind brick wall on Galvans porch He saw someone
pass by but could not see the person well enough to describe him Jci
100 Vega went to the police lineup where he identified Guerra as the person
he had seen driving the Buick around the neighborhood ji at 720
-37-
101 On cross-examination Vega testified that he had not seen the faces of the
two men at 724 but insisted that at the time of the shooting the driver was closer to
Harris while the passenger who had hair that was not long shot from right behind the
driver at 727-3 736
Jose Heredia
102 The defense next called Jose Heredia who testified that while he was out
walking with his brother Armando Heredia and Ms Galvan on the night of the
shooting at 739 he saw Guerra driving black and red car at 742 Later he saw
the same car parked on Walker blocking the street at 743 The police car pulled
up and Harris got out of his car Harris spoke to Guerra who went to the police
car and placed his hands on the cars hood at 744 With Harris standing next to his
car door the passenger approached the police car and shot Harris The shooter was
Werro the light-colored one at 744
103 Shortly after the shooting Heredia gave the police statement describing
the events of the evening that was consistent with his trial testimony at 746 see
at 769
104 On cross-examination the State questioned Heredia at length regarding an
alleged killing that took place at cemetery roughly 40 minutes before Harris was killed
at 747 The prosecution knew that no such incident in fact had occurred and also
knew that the false rumor was not connected in any way with Guerra or the shooting of
Harris and Armijo Nevertheless the prosecutor implied that the perpetrators were the
-38-
same and promised to spell out the relevancy at 747 but he never did The judge
erroneously permitted this line of questioning despite defense counsels objection on
relevancy grounds at 746-47
Jose Manuel Barrosa Esparza
105 The defense also called two witnesses Jose Luis Torres Luna and Jose
Manuel Barrosa Esparza who lived at 4907 Rusk at the time of the shooting S.F Vol
24 at 774 813-14 Both testified that they were at home when CaTrasco ran into the
house and confessed that he had killed police officer Ji at 784-85 814-15
106 Mr Esparza testified that at approximately 1000 or 1030 p.m on July 13
1982 he heard gunshots from his home at 4907 Rusk at 784 Three or four minutes
later Carrasco whom he knew as Antonio came into the house agitated and out of
breath and said that he had just killed policeman jç at 784-85 and showed Mr
Esparza the police officers gun jç at 785
107 Antonio held gun in his hand and had another gun in his belt He
removed clip from the pistol in his hand and replaced it with loaded clip jç at
785-86 Shortly after Antonios arrival at the house Guerra came running up to the
house from the direction of Dumble Street Id at 786 After Guerra arrived Mr
Esparza asked both men to leave at 791
iDumble is one block west of Edgewood If Guerra had turned south at Lenox then
west on McKinney the straightest path home without running back to the crime scene
would have been to turn north on Dumble App 181 F1566 map
-39-
108 short time later police arrived at the house took Mr Esparza and Mr
Luna outside and made them lie on the ground at 791 There were roughly seven
police officers most had their guns drawn
109 On cross Mr Esparza stated that Guerra and Antonio had left 4907 Rusk
earlier that night in car owned by Jacinto Lopez icL at 796
110 He told the police nothing because of fear resulting from the way that the
police had treated him at 801
Jose bus Torres bina
111 Mr Torres Luna testified that after the shooting tWerro came running into
the house at 4907 Rusk and excitedly said that he had killed policeman jç at 815
Werro took the police officers revolver from his belt and offered it as present to Mr
Tones Luna which he refused Id Werro then loaded the other pistol with clip
at 816
112 short while later Guerra arrived from the direction of Dumble and told
Mr Tones Luna that Werro had just killed policeman jç at 817 Werro announced
that he was going to defend himself and that he preferred death to surrender at 817-
18 Both Werro and Guerra then left through the rear door of the house at 818
113 Mr Tones Luna admitted to telling the police none of the substance of his
testimony because he was scared at 834-35 839
-40-
Ricardo Aldape Guerra
114 Finally Guerra took the stand His trial testimony was consistent with the
statement he gave to police on the night of the murder He testified that he had known
Carrasco whom he knew only as Werro for two or three weeks at 842 On the
night of July 13 he and Carrasco borrowed car from Jacinto Lopez and went to the
store to buy some soda at 843 Carrasco was carrying his nine-millimeter pistol
115 After going to the store Guerra drove around the neighborhood driving fast
and spinning his tires at 843 The car stalled out at the intersection of Walker and
Edgewood at 844 Guerra got out of the car and asked two girls standing nearby if
they had any jumper cables at 845
116 police car arrived Guerra heard the police officer say something
but the only words he understood were Come on at 846 On hearing that
command Guerra walked over to the police car and placed his hands on the hood of the
car Id
117 Harris had his gun out at 847 He was telling Carrasco to come on
Guerra was unable to see Carrasco Suddenly Guerra heard shots almost in
my ears He saw Harris drop to the ground Jci Carrasco walked up to Harris and
took his gun Both men then ran at 848
118 Guerra ran down the right side of the street heading east toward the
cemetery on Walker Street He heard shots behind him and panic stricken fired his
own gun twice in the air jjj at 849 When he got to the first intersection Lenox he
-41-
turned right then ran to the next block McKinney turned right again and ran to
Dumble Street at 850 He ran along Dumble until he arrived at Rusk Street where
he turned and ran into his house at 851 see generally App 181 P1566
119 When he arrived at 4907 Rusk Carrasco was already there Carrasco
said that he had shot at another car Id at 853
120 Guerra left the house through the rear door and hid behind horse trailer
jç He heard shots and shortly thereafter police found him in his hiding place behind
the trailer Guerra had taken his pistol and placed it underneath the trailer within
arms reach
121 Upon Guerras arrest at 1130 p.m he was handcuffed placed in squad
car and driven back to the original scene of the crime S.F Vol 20 at 27 Around that
time there were at least one hundred interested onlookers and witnesses within the
immediate vicinity of the intersection of Edgewood and Walker at 13 At least one
State witness George Brown saw Guerra sitting in the patrol car App 39 F133
The Prosecutions Rebuttal
122 On rebuttal the prosecution called only one witness police officer Jerry
Robinette Robinette testified that he had interviewed Mr Torres Luna and Mr Esparza
near their house at about 1130 p.m S.F Vol 24 at 878-79 shortly after Carrasco had
shot Trepagnier Robinette first saw them approaching 4907 Rusk with two other men
On cross-examination Guerra explained that he had been carrying the gun for his
own protection because there was lot of crime in the area S.F Vol 24 at 869
-42-
at 879-82 He claimed that he had been told by Mr Torres Luna and Mr Esparza
that they and the two other men had left home together shortly after the departure of
Carrasco and Guerra earlier in the evening and had not returned until Robinette saw
them Id at 884-86 Robinette insisted that he had seen no one pointing gun at Mr
Torres Luna and Mr Esparza as they were talking to any police officer and that neither
man had said anything about Carrasco admitting to killing Harris at 887-88
aosing Argument
123 In closing argument the prosecution speculated that while driving around in
the Buick Guerra and Carrasco must have taken their guns out of their belt placed them
on the seat picked up the wrong gun as they got out of the car and somehow exchanged
guns after the murder S.F Vol 25 at 907-08
124 The prosecutors described the testimony of each so-called eyewitness as
follows Jose Jr saw Guerra shoot policeman whom Jose Jr viewed as superman
and then saw Guerra shoot his father jç at 920 Ms Galvan testified that she saw Guerra
pull gun and shoot Harris and shoot at the Armijo car ici at 927 the girls
Ms Garcia and Ms Flores said that Guerra shot Harris at 927 and Ms Diaz said
she could come close to identify him and saw him make gesture at 928 The State
insisted that all five people -- Jose Jr Galvan Diaz Garcia and Flores -- immediately
Fhe only testimony that either man ever removed his gun while riding in car came
from Guerra who testified that he had removed his gun on the afternoon of the shooting
at friends request as he was leaving car to enter store at 875-76 He insisted
that while driving he always kept his pistol tucked in his pants at 870-71
-43-
went to the police station gave written statements without having chance to confer
viewed the lineup while being told not to discuss what they saw were asked individually
whether they recognized anyone and pointed out Guerra JiL at 932-33
125 The defense argued generally that each witness had changed what was in
his or her statement in numerous ways and described some of the discrepancies among
witnesses at 937-38 954-56 They pointed out that Carrasco was violent had done
all the shooting outside 4911 Rusk even though Guerra had loaded gun within easy
reach and was the kind of man who would kill policeman at 958
126 On rebuttal the prosecution asked for verdict fair to Harris and his family
at 968-69 insisted again that five witnesses had said without reservation that Guerra
killed Harris Id at 969-70 that all five had identified Guerra at lineup without
consultation at 972 that the scientific evidence was inconclusive at 975 that
Torres Luna and Esparza were liars at 977 that Heredia was probably under the
influence of alcohol or narcotics jçI at 981 and that Harris was good man good
member of the community ici at 986-87
127 After reviewing testimony of Galvan describing who shot Harris and of Jose
Jr describing who shot Harris and his father at 990-91 and 15 minutes after the judge
asked to be told the jury vote which was then 11 to at 991-93 the jury returned
verdict of guilty at 994
-44-
The lineup and Evolution in the Witnesses Recollections
128 As the States witnesses inconsistent and varying trial testimony revealed
these individuals were confused and uncertain about what they had seen of the shooting
The police force conducted their investigation overzealously -- or at least without the
ordinaiy safeguards for suspects rights because the most likely suspect was already
dead and the only other suspect was an undocumented non-English speaking man from
Mexico
129 Close to midnight at least 16 witnesses were taken to the police station to
give statements about their knowledge of the shooting App 134-35 F620-21 Both
before and after they were questioned the witnesses remained together in the police
station for the entire night Recent investigation reveals that during that night at least
one eyewitness saw Guerra in handcuffs being led by police officers into the police
station Before the lineup police informed witnesses that they had captured one of the
men responsible for the shooting and that witnesses would be given the opportunity to
identify him
130 All 16 witnesses viewed the 6-person lineup as group Qf As group
they were asked if they could identify anyone in the lineup Several witnesses in voices
audible to others present identified Guerra in position number four few saying he was
-45-
the shooter others the driver still others merely recognized him See e.g S.F Vol 23
at 753 Well as everybody was saying Its the fourth one note 101 infra
131 On July 22 1982 six police officers firearms expert and the two prose
cutors assembled the group of witnesses at the intersection of Walker and Edgewood and
orchestrated walk through or reenactment of the shooting App 90-91 F374-75
It was during and after this walk through that two of the most significant eyewitness
accounts underwent major transformation
132 In her statement to police at 1240 a.m on July 14 Ms Flores stated
dont think can identify the two persons saw and have never seen them before
App F18 At the lineup several hours later Ms Flores did not identify Guerra
App 135 F620 Yet after detectives interviewed her at the July 22 walk through she
suddenly regained her memory of the shooter App 92-93 F376-76A Detectives
then showed her photo array from which she selected the picture of Guerra at 376
At that time she told police detective that she knew Guerra because he was regular
in the neighborhood App 91-93 F375-76A Ms Flores informed the detective
that she had not identified Guerra in the lineup because she thought enough people had
already picked him out This contrasts dramatically with her trial testimony where
At an evidentiary hearing Guerra will prove that the witnesses not only viewed the
lineup as group but also spoke to each other and identified Guerra audibly as either
the shooter the driver or someone they recognized In addition Guerra will show that
one of the witnesses before during and after the lineup tried to pressure others into
identifying Guerra as the shooter
she had claimed fear as the reason for not identifying Guerra in the lineup S.F Vol 22
at 518 The same detective then took second statement from Ms Flores at the
homicide division of the Houston Police Department App 10-11 F19-20
133 At the July 22 walk through Ms Galvan who had previously described the
shooter as blond man wearing dark brown or black shirt and dark brown pants
App F8 told police that she had recognized Guerra because he had been in the
neighborhood for several months and was regular in her store App 92 F376 The
coincidental similarities between the statements of Ms Flores and Ms Galvan were not
explained
134 Two days before trial the State assembled its witnesses once again this time
to show them the mannequins of both men State witnesses Jose Jr Ms Armijo Diaz
Perez Garcia Flores and Galvan all viewed the mannequins at that time On that date
Marie Estelle Armijo first told prosecutors that her son Jose could identify the shooter
S.F Vol 23 at 636
135 The States mannequins remained in the courtroom throughout the
presentation of the States case despite defense counsels strenuous and repeated
objections S.F Vol 22 at 374-75 431 447 Vol 25 at 900 The mannequins assumed
prominent position in the courtroom in full view of both jurors and witnesses According
to one reporter the courtroom took on the unsettling air of wax museum with the
The mannequins were wearing the same clothing that the two men had worn on the
night of the shooting including Carrascos bloody bullet-ridden shirt on his mannequin
-47-
presence of the mannequins App 163 F1433 Houston Chronicle article dated Oct
1982 at p.11 and frequently scared even the artist who had sculpted them App
162 F1432 Houston Post article dated Oct 1982 at 14A According to the sculptor
All the D.A.s were very smirky they brought the models into the courtroom They
figured they really put something over
ARGUMENT
GUERRA IS INNOCENT AND THE EIGHTH AND FOURTEENTH
AMENDMENTh TO THE U.S CXNST1TUTION REQUIRE
MECHANISM FOR REVIEW OF NEW SUBSTANTIAL EXCULPA
TORY AND MITIGATING EVIDENCE IN GUERRAS CASE
Guerra did not commit the crime for which he was convicted and sentenced
to death The trial evidence does not support the conviction neither does logic
First eveiy so-called eyewitness placed Guerra south of the drivers open door and
south or west of Harris while the physical evidence conclusively establishes that Harris
was shot at close range from east to west App 182 P1567 map
fhe following witnesses indicated that Guerra was standing south of Harris
Garcia on the night of the shooting see App PlO and at trial see S.F Vol 22
at 476-80 Flores on the night of the shooting see App P18 at the reenactment
see App 92 F376 and at trial S.F Vol 22 at 510-11 527-31 543-44 Galvan at
the reenactment see App 91 F375 Patricia Diaz although not clearly on the night
of the shooting see App 12 F21 and at trial see S.F Vol 21 at 312-13 329-30 and
Jose Jr on the night of the shooting see App P7 and at trial see S.F Vol 21
at 282-85 On the night of the shooting and at trial Galvan inferred that Guerra fired
from west to east App P7 S.F Vol 22 at 584-85 To the extent any witness
testimony is unclear Guerra will demonstrate at an evidentiary hearing what that witness
meant
-48-
Second the ballistics evidence points conclusively to Carrasco as the culprit
His right hand and abdomen contained trace metal from Harriss gun which witnesses saw
the shooter take from Harris after the shooting at 172 Guerra will prove that the
trace metal on Carrascos left hand came from the murder weapon In contrast Guerras
hands and abdomen had no such tracings at 187-88 197
Third Guerras fingerprints were not found on the murder weapon App
89 F368
The totality of the States own evidence strongly suggests that the States
witnesses were simpiy wrong whether confused or influenced in concluding that it was
Guerra who did the shooting Rather the fact that most of these witnesses could not
recall seeing Carrasco at the scene supports Guerras defense that Carrasco fired the shots
that killed Harris The witnesses confusion in part is attributable to the fact that virtually
all witnesses admit it was dark the critical events all occurred in matter of minutes and
all on-lookers feared for their own safety pp 183-89 infra Loftus Witness for
the Defense 53 189 195 1991 ed discussing fallibility of eyewitness testimony when
incident was stressful and biased instructions are given for lineup
Most witnesses testimony and the physical evidence support the theory that
Carrasco with his nine-millimeter gun in his waistband got out of the passenger side of
his car the Buick stood in the dark where most of the witnesses could not see him and
pulled the gun from his pants as he moved between the Buick and the police car While
Harris told Guerra to put his hands on the police car hood -- and Guerra did so -- it
-49-
appears that Carrasco may have continued around the back of the Buick and kept moving
eastward Instead of stopping to put his hands on the police car hood Carrasco from
position east of Harris shot his own gun at Harris at close range Carrasco after grabbing
Harriss gun ran east on the north side of Walker Guerra after hearing the shots and
seeing Harris fall to the ground also ran east but on the south side of Walker
The States witnesses unreliability also is demonstrated by their confusion
concerning the shooting of Mr Armijo None of the States witnesses could reliably
identify Mr Armijos killer either Except for Mr Armijos 10-year old son Jose Jr not
one State witness who attempted to blame Guerra revealed under questioning at trial that
he/she had seen the Armijo shooting at all Most merely heani the shots pp 19-32
supra
The only witness who contended consistently that the shots were fired by
Guerra was Jose Jr who testified definitively that on hearing or seeing the shooting of
Harris he hid under the dashboard of his fathers car until the men passed on either side
of the car S.F Vol 22 at 302-03 He could not jxssibly have seen who shot his father
since the bullets were shot through the windshield from in front of the car
Jose Jr.s confusion -- and possibly sincere belief that he had identified
Harriss shooter correctly must be viewed in light of that boys failure to identify the
shooter at the lineup S.F Vol 21 at 290 see App 134 F621 and his unexpected
identification subsequent to numerous conversations with the police and prosecutors
at trial id at 303 only after he was exposed to relentless pressure by one of the
-50-
other so-called eyewitnesses to identify Guerra as the shooter ii repeated hints by the
State about what was considered the correct answer and iii the macabre mannequins
that facilitated making distinctions between the two men
The prosecutions theory without any foundation in the trial record that
Carrasco and Guerra had placed their guns on the front seat of the Buick then somehow
retrieved each others gun by mistake and switched guns again after the murder is
illogical contrary to the most likely inferences from the States expert witnesses and
contrary to Guerras trial testimony as well as his and others statements during the
investigation
10 The irrationality of this theory is demonstrated by the following
It makes no sense that men would drive around with stolen guns lying
on the car seat
ii Even if the guns were on the seat it is inconceivable that Carrasco
and Guerra would pick up each others gun without noticing the mix-up and exchanging
guns before replacing them in their waistbands as they sat in the Buick The guns -- one
with longer and much heavier clip holding more than twice as many bullets compare
App 185 P270 itii App 184 P257 App 183 P200 establish that they were
sufficiently different in appearance and feel to make the mistake vezy unlikely
Guerra must have emerged from the car with his gun concealed under his shirt
since otherwise Harris could have spotted it
-51-
iii Moreover Jacinto Lopezs statement given to police during the
investigation corroborated by Guerras statements and trial testimony established that
Guerra earlier the day of the shooting had taken his gun from his pants pocket when he
left his car to go into store App 19-21 P34-36 Obviously Guerra generally drove
with his gun in his waistband and would not have placed it on the seat that night where
Carrasco could have picked it up by mistake
11 Guerras innocence is also supported by the States conduct Aware that the
available evidence was weak both police and prosecutors overreached as demonstrated
by the failure to disclose exculpatory evidence and the States unlawful investigative and
trial tactics Hampered by lack of time resources experts and the States withholding of
evidence Guerras defense attorneys unfortunately failed to adequately develop their
clients defense
12 Had the State properly disclosed all exculpatory evidence the jury would
have heard -- as this Court will at an evidentiary hearing witnesses describe seeing
Guerras empty hands on the police car hood as Harris was being shot ii Carrasco
running down the north side of Walker and carrying gun that appeared to be nine-
millimeter pistol and iii one of the witnesses pressuring others to identify Guerra as the
shooter
13 Finally Guerras defense was hampered by serious prosecutorial misconduct
in violation of Brady Maryland 373 U.S 83 1963 in the investigation and at trial
as well as by numerous procedural errors caused by the Court described herein
-52-
14 Guerras conviction must be reversed to prevent travesty of justice Since
the time of Guerras conviction at trial and the direct appeal therefrom substantial new
evidence has been obtained concerning both Guerras actual innocence and circumstances
mitigating against the imposition of the death penalty At an evidentiary hearing
Guerra
will present newly discovered evidence concerning withholding and
concealment of
exculpatory evidence improper coercion of witnesses unconstitutional line-up procedures
prosecutorial misconduct during voir dire and trial presentation of flawed analyses
of the
physical evidence by the States experts ineffective assistance of counsel that deprived
the
jury of evidence of Guerras innocence and of circumstances from Guerras life mitigating
against the imposition of the death penalty and other items set forth elsewhere in
this
Application all of which supports Guerras claim that he is innocent of the crime for
which he was convicted
15 Current Texas law provides no procedure for review of new evidence
discovered after the expiration of the time period in which defendant may move for
new trial See Herrera Collins 954 F.2d 1029 1034 5th Cir cert granted 112 Ct
1074 1992 Ex parte Binder 660 S.W.2d 103 Tex Crim App 1983 en banc The
United States Supreme Court has granted certiorari in Herrera to determine
whether the execution of an innocent person convicted of murder
violates the Eighth and Fourteenth Amendments of the Constitution
ii if so whether Texas and other state courts must provide meaningful
mechanisms for hearing claims of actual innocence in capital cases
and
-53-
iii the necessary federal procedures for adjudicating such claims
Petition for Writ of Certiorari to the U.S Court of Appeals for the Fifth Circuit at
Herrera No 91-7328 112 Ct 1074 U.S Feb 25 1992
16 In light of the substantial exculpatory and mitigating evidence that was
discovered after the expiration of Guerras time to move for new trial either an
evidentiary hearing should be granted in this habeas proceeding to allow the presentation
of such evidence or Guerra must be granted stay of execution pending the ultimate
disposition by the U.S Supreme Court of the issues presented in Herrera
IL GUERRAS CONVICflON WAS BASED ON INSUFFICIENT
EVIDENCE IN VIOLATION OF THE FilTH AND FOURTEENTH
AMENDMENTS TO THE U.S CONSTiTUTION AND ARTICLE
SECflONS 13 AND 19 OF THE TEXAS CONSTITUTION
criminal defendants federal due process rights are violated if after
viewing the trial evidence in the light most favorable to the prosecution no rational trier
of fact could have found the essential elements of the crime beyond reasonable doubt
Jackson Virginia 443 U.S 307 319 1979 This is such case
As demonstrated in other portions of this brief see pp 48-54 163-189 the
physical evidence pointed to Carrasco and the testimony of the so-called eyewitnesses
contradicts the physical evidence and the testimony of each other The only witness for
the State who claimed to see the shooting was 10-year-old boy who was in shock
after seeing his father shot ii unable to identify the shooter on the night it happened
and iii claimed to have seen from position that made it impossible to see the same
-54-
man shoot his father In contrast the defense presented three witnesses including Guerra
who gave the only testimony consistent with the physical evidence demonstrating
the
location of the gunman as he shot Harris
Although Ex parte Williams 703 S.W.2d 674 681-83 Tex Crim App 1986
held that under Texas law sufficiency of the evidence cannot be raised on collateral attack
where the defendant pleaded guilty1 the court in Williams explicitly stated that sufficiency
of the evidence may be argued where as here the defendant pleaded not guilty and the
State bore the burden of proving guilt beyond reasonable doubt at 683 The court
then cited case Parker Procunier 763 F.2d 665 5th Cir cert denied 474 U.S 855
1985 in which the Fifth Circuit suggested that the Texas standard of reviewing
insufficiency of the evidence on habeas corpus is identical to the federal
standard
Although some language in earlier Texas cases indicates that the Texas standard of
review is more stringent than the federal standard the Texas Court of Criminal Appeals
has recently stated that the two standards of review are ultimately identical
Carisen
State 654 S.W.2d 444 449-50 Tex Crim App 1983 on other grounds
Geesa State 820 S.W.2d 154 161 Tex Crim App 1991 763 F.2d at 666 n.1
Because the Texas Court of Criminal Appeals has embraced the view that
the federal and state standards of review are ultimately identical this Court should
Ex pane Brown 757 S.W.2d 367 368 Tex Crim App 1988 stands only for the
narrow proposition that collateral attack is not permitted on the sufficiency of the
evidence to prove the proper sequence of enhancement allegations
-55-
perform review of the sufficiency of the evidence based on the standard announced in
Jackson Virginia 443 U.S 307 317 1979
ilL FLAGRANT PROSECUTORIAL M1SCONDUC BEFORE AND
DURING TRIAL VIOLATED GUERRAS RIGH1S UNDER THE
FIF1H SIXTH EIGHTH AND FOURTEENTH AMENDMENTS TO
THE U.S CONSTiTUTION AND ARTICLE SECFIONS 10 13 AND
19 OF THE TEXAS CONSTITUTION
Introduction
Prosecutorial misconduct is no simple violation It appears in many forms
What follows are numerous examples of prosecutorial misconduct that resulted from the
States overzealous efforts to convict person for crime the police and prosecutors
desperately wanted to see punished Their desire for punishment unconstitutionally
skewed their exercise of fair judgment
This section includes discussions of at least 18 djffereu violations of Guerras
constitutional rights before and during each phase of trial due to prosecutonal misconduct
Each of these violations is explained separately and each alone warrants reversal of
Guerras conviction and sentence pp 58-110 infra
Alternatively reversal is mandated by the cumulative effect of this grotesque
series of wrongs that pervaded the investigation and trial This unusually severe
accumulation of prosecutorial violations so infected the States case that Guerras
L21he Jackson standard set out in the first paragraph of this section was derived
from the Fourteenth Amendment and is binding on state court performing its own
habeas review See Carlsen 654 S.W.2d at 449
-56-
conviction and death sentence cannot stand when viewed in the light of the U.S and
Texas Constitutions pp 277-79 infra
The Fifth Circuit has held that prosecutorial misconduct violates
constitutional guarantees when the prosecutors comments so infected the trial with
unfairness as to make the resulting conviction denial of due process Derden
McNeel 938 F.2d 605 615 5th Cir 1991 citation omitted The test for whether such
conduct makes trial fundamentally unfair is whether there is reasonable probability
that the verdict might have been different had the trial been properly conducted
Kirkpatrick Blackburn 777 F.2d 272 278-79 5th Cir 1985 cert denied 476 U.S 1178
1986 The Fifth Circuit has also held that where properly preserved improper
comments constitute reversible error if they affected the defendants substantial rights
United States Wicker 933 F.2d 284 292 5th Cir cert denied 112 Ct 419 1991
In determining if substantial rights were affected the Court considers the magnitude
of the prejudicial effect of the statements ii the efficacy of any cautionary instruction
and iii the strength of the evidence of the defendants guilt jç at 290 The
prosecutors remarks must be considered in the context of the entire trial to determine
if
they resulted in miscarriage of justice United States Hatch 926 F.2d 387 394 5th
Cir cert denied 111 Ct 2239 and 112 Ct 126 1991
Like the Hydra slain by Hercules prosecutorial misconduct has many
heads United States Williams 112 Ct 1735 1749 1992 Stevens Blackmun
OConnor and Thomas JJ dissenting quoting Berger United States 295 U.S 78
-57-
1935 Examples include misstatements of fact putting into the mouths of such
witnesses things which they had not said and persistently cross-examining
the witness
upon that basis improper insinuations
and assertions calculated to mislead the
jury Williams 112 Ct at 1749 quoting Berger 295 U.s at 84-85
These serious and continuing acts of misconduct made the trial so
fundamentally unfair that Guerra is entitled to new trial even though
his counsel failed
to object to some of the conduct described
here
Pretrial Investigative and Prosecutorial Wrongdoing
The Prosecution Failed to Disclose and Affirmatively Concealed
Material Exculpatory Evidence
Under Brady Maryland 373 U.S 83 87 1963 the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where
the evidence is material either to guilt or to punishment irrespective
of the good faith or
bad faith of the prosecution To establish Brady violation the defendant must prove
the prosecution suppressed evidence ii the suppressed
evidence was favorable to
the defense and iii the suppressed evidence was material
to the defense Derden
McNeel 938 F.2d 605 617 5th Cir 1991 The Texas Court of Criminal Appeals has
expressly adopted this standard Butler State
736 S.W.2d 668 670 Tex Cnm App
1987 en banc The suppressed evidence is material if there
is reasonable
1Moreover there should be no waivers in capital case pp 290-93 infra
-58-
probability that had the evidence been disclosed to the defense
the result of the
proceeding would have been different United States Baglev 473 U.S 667 682 1985
see also Ex parte Adams 768 S.W.2d 281 Tex Crim App 1989 adopting Bagley
materiality test in cases involving exculpatory evidence reviewing court may
consider
any adverse effects the prosecutors failure to release
information might have had on the
defendants preparation and presentation of the case Derden 938 F.2d at 617
Texas courts have held that conviction must be reversed if the
prosecution actively suppresses evidence or negligently or inadvertently
fails to disclose
evidence which may exonerate the defendant Butler 736 S.W.2d at 670 citing Brady
and Crutcher State 481 S.W.2d 113 Tex Crim App 1972 It has further been held
that reversible error exists even though the accuseds counsel is not diligent in his
preparation for trial with the focus being upon the essential fairness of the procedure
and
not on the astuteness of either counsel Ham State 760 S.W.2d 55 58 Tex App.--
Amarillo 1988 no writ
The actions constituting Brady violation in Derden case involving
failure to disclose certain evidence vital to impeachment of key state witnesses bear great
similarity to the facts here In Derden the prosecution failed to produce radio log in
response to Brady motion filed by the defense
The Fifth Circuit concluded that the
sheriffs radio entries were relevant to impeach state witnesses and to prove that the
testimony of certain of the States witnesses was possibly incorrect 938 F.2d at
617
key witness testified that he called the police at 100 a.m but the log sheet reflected that
-59-
no call had been made until 205 a.m The court held that if the call was not made until
205 a.m as reflected on the radio log the time frames given by co-conspirators were not
credible The court held that where the crux of the defense was that the events as
descnbed were chronologically impossible failure to disclose the log was error contributing
to due process violation at 618
10 Similarly in Adams the court granted the petitioners application for writ of
habeas corpus on the basis of Brady violations The state was found to have knowingly
suppressed prior inconsistent statement made by key state witness and ii evidence
that witness had failed to identify the applicant in police line-up and that police
officer had advised her that she had not identified the applicant and told her which
person she should have identified The court found that the witness had given
statement to the police that the police had intentionally failed to disclose The statement
was the diametric opposite of the witnesss trial testimony and would have provided
basis for impeachment 768 S.W.2d at 290-91
11 Like the foregoing cases the States failure to reveal key information
constitutes the withholding of exculpatory evidence material to Guerras defense and
warrants reversal of his conviction
12 On August 13 1982 pursuant to Articles 39.14 and 26.10 of the Texas Code
of Criminal Procedure Guerra filed Motion to Produce Evidence seeking production by
the prosecution of all material inconsistent with guilt or lawful arrest including written or
recorded witness statements police reports the prosecutors work product and lab tests
-60-
Tr 17-18 Pursuant to Article 39.14 and the due process clause of the Fourteenth
Amendment and Article section 19 of the Texas Constitution Guerra filed on the
same day an extensive Motion for Pre-trial Discovery and Inspection
Tr 20-22
requesting inter alia all photographs moving pictures or videotapes all tangible objects
obtained in connection with the investigation of this case any document reflecting the
prior criminal record if any of all State witnesses and the names
addresses and
telephone numbers of all prospective State witnesses who may have knowledge of some
of the facts of this case and who may testify for the State during any stage of the trial
13 The Motion also sought this information on everyone interviewed by the
State or its law enforcement agencies even if the State did not intend to call the
individuals as witnesses during the trial The court granted almost every request in both
motions after the State represented that it had provided Guerras lawyers with access to
the entire prosecution file S.F Vol at 12-20
14 At an evidentiary hearing Guerra will prove that numerous pieces of
evidence were withheld by the prosecution in violation of Guerras rights under the Sixth
Eighth and Fourteenth Amendments to the U.S Constitution and Article section 19
of the Texas Constitution Guerra will show that on the night of the shooting police
investigators prepared several witness statements that deliberately distorted beyond
recognition the witnesses comments and omitted exculpatory information
-61-
One witness saw Guerra with his hands on the police car and
Carrasco east of Harris at the time of the shooting but was given statement to sign
that said nothing about either fact
ii second witness described to the police Guerras movements just
before the shooting in manner that supported Guerras story that at the time
of the
shooting his hands were on the hood of the police car but the witness was pressured
and
these words were twisted in order to create the impression that either Guerra was the
shooter or the witness had seen nothing helpful to Guerras defense
iii third witness told police about seeing Carrasco running on
the
north side of Walker and carrying gun that looked like nine millimeter pistol but the
police omitted these facts from the statement prepared for
the witnesss signature
iv Additionally number of witnesses were interviewed and tape-
recorded on the night after the shooting either at the crime scene or subsequently
at the
police station None of these tape-recordings was ever turned over to
defense counsel
and the offense report fails to reveal that Anguiano provided exculpatory information
App 74.75 F267-68 Hector Anguiano neighborhood resident recently stated
that he was interviewed and tape recorded by police officers at the scene of the shootout
with Carrasco Police reports made at or around the time of the shooting confrm this
fact and reflect police tape-recorded interviews with others as
well At an evidentiary
According to statement given by officer G.L Bratton certain individuals who
continued..
-62-
hearing Guerra will provide proof that Anguiano witnessed and gave statement that he
saw Carrasco running west on Rusk carrying gun and coming from the direction of
Lenox Street shortly after Anguiano heard the shots that killed Harris The detail in
Anguianos statement supports Guerras testimony and defense that he was not the
shooter and was thus innocent of the crime for which he was convicted and sentenced to
die According to the prosecutors office those tapes cannot be found
The State on information and belief never gave the defense copy
of the report of the trace metal test on Carrascos hands Defense counsel were informed
orally that the test results for Guerra were negative they were told the results for
Carrasco were positive as to Harriss gun and inconclusive as to the murder weapon
App 141 F690 Defense counsel however because of the absence of the full report
does not recall knowing before trial that the pattern on Carrascos rghz hand matched
Harriss gun and that the pattern on his left hand was inconclusive If defense counsel
had seen the report they would have known they needed to conduct their own test on the
murder weapon and compare the results to the States
...continued
heard gunshots from the rear of 4911 Rusk and saw officers return fire spoke only
Spanish App 72 F263 report prepared by Officer M.E St John recites that he
recorded interviews with these individuals on mini-cassette recorder he obtained from
Assistant District Attorney Terry Wilson with Officer Robinette acting as translator
App 74-76 F267-69 see App 111 F457 The police report describing these interviews
says nothing about what Anguiano saw App 74-75 F267-68
-63-
15 Guerra will show at the requested hearing that the States conclusions
as to its own test were wrong as to the trace metal from the nine millimeter gun on
Carrascos left hand ii Carrasco was left handed and iii testimony by an expert that
the trace metal pattern on Carrascos left hand was consistent with the pattern left by the
murder weapon This evidence seriously would have impeached Jose Jr.s identification
of Guerra as the triggerman since Jose Jr stated to police with certainty that Harris was
shot by someone holding the gun in his left hand
16 Because Guerra will prove that the police had knowledge of the witness
statements described above the prosecutors actual knowledge is irrelevant It is of no
consequence that the facts pointed to may support only knowledge of the police because
such knowledge will be imputed to state prosecutors Adams 768 S.W.2d at 292
quoting Williams Griswald 743 F.2d 1533 11th Cir 1984 see also United States
Antone 603 F.2d 566 569 5th Cir 1979 declining to draw distinction between
different agencies under the same government focusing instead upon the prosecution
team which includes both investigative and prosecutorial personnel
17 The undisclosed information was critical for the defense because it discredits
the testimony of those witnesses identifying Guerra as the shooter Testimony from these
witnesses would have at least placed before the jury greater evidence of Guerras
innocence and thus contributed to the existence of reasonable doubt Moreover the
statements both written and taped given by other witnesses that were withheld from
the defense as described above could have provided additional exculpatory information
-64-
18 An evidentiary hearing is required to demonstrate that the State was in
possession of this evidence If any of these statements were suppressed this violation of
Guerras rights under the Sixth Fifth Eighth and Fourteenth Amendments to the United
States Constitution and Article section 19 of the Texas Constitution mandates that his
conviction and sentence be reversed
The Pretrial Intimidation of Witnesses by Police and Prosecutors
Deprived Guerra of His Due Process Rights
19 Actions by both the police and the prosecutors have resulted in deprivation
of Guerras due process rights under the Fifth and Fourteenth Amendments to the U.S
Constitution and Article sections 13 and 19 of the Texas Constitution At an
evidentiary hearing Guerra will prove that the police engaged in course of conduct
designed to intimidate various witnesses to the crime in order to induce cooperation and
change testimony First the police jailed one witness who described seeing Guerra with
his empty hands on the police car south of Harris and Carrasco east of Harris at the time
of the shooting Second the police and prosecutors twisted another witnesss words to
make them sound more incriminating than was intended using threats to deprive the
witness of custody of child if the witness did not cooperate
Intimidation by the prosecution to dissuade witness from testifying or to persuade
witness to change testimony may violate defendants due process rights Davis
State 831 S.W.2d 426 437 Tex App.--Austin 1992 no pet. Police actions that
intimidated witnesses can be imputed to the State in its prosecution Fulford
-65-
Maggio 692 F.2d 354 358 n.2 5th Cir 1982 overruled on other grounds 462 U.s 111
1983 States duty of disclosure is imposed not only upon its prosecutor but also on the
State as whole including its investigative agencies Therefore if the confessions were
held by the police constructively the States attorney had both access to and
control over these documents.
20 In Davis the prosecutor had threatened the witness with grand jury
indictment for perjury if her testimony were found to be false 831 S.W.2d at 436 The
witness testified outside the presence of the jury that she had changed her testimony
because of the prosecutors threat had been intimidated by his attitude and
manner by his having come unexpectedly into the apartment complex property one day
and by police officer who had tried to get her to ride out in the country one day to
talk about the case The prosecutor in Davis also had questioned the witness
individually in his office which the appeals court found to have occurred outside the trial
court and the protection of judicial supervision was personal interview in the
district attorneys office setting clearly conducive to intimidation at 438
21 At an evidentiary hearing Guerra will show that he can meet the Davis test
Evidence of Other Improper Police Procedures
22 At an evidentiary hearing Guerra will prove that at the police station
late on the night of the shootings witnesses were allowed to discuss the events among
themselves and several saw Guerra in handcuffs wearing bags on his hands ii during
the lineup early on the morning after the murder witnesses were allowed to view it
-66-
together discuss it amongst themselves and identify Guerra in each others presence iii
one witness was permitted to attempt to pressure others into identifying Guerra as the
triggerman all in the presence of police and member of the prosecutors office see also
S.F Vol 23 at 753 and iv just before trial the prosecutors showed several witnesses
pictures of Carrasco and Guerra and descnbed Carrasco as dead and Guerra as the man
who shot the cop See pp 161-62 infra
23 To hide this flagrant violation of proper and fair lineup procedures the
police deliberately inserted into many of the witness statements an inaccurate description
of the lineup to make it seem as if proper procedure had been observed App Fli
App 14 F23 see note 92 infra If the police had properly disclosed the lineup
procedures actually followed this would have provided basis to challenge the lineup
pp 144-53 infra The failure to do so constitutes the failure to disclose exculpatory
evidence in violation of Brady
24 Moreover at trial the prosecutors perpetuated this charade in closing
argument by insisting that the witnesses gave written statements without conferring with
each other and that proper lineup procedures had been followed See e.g S.F Vol 25
at 932-33 972
-67-
Prosecutors Improper Trial Conduct
The Prosecutors Improper Remarks During Voir Dire Deprived
Guerra of His Constitutional Rights
Appeals to Prejudice Against I1egal Aliens From Mexico
25 The prosecutors improperly appealed to prejudice by telling some jurors that
they could consider Guerras undocumented status in evaluating his character at the
punishment phase of his trial This clearly is unconstitutional argument and should not
be allowed See pp 126-31 infra
Juror Was Told that the Testimony of Police Officers Is
Entitled to Greater Credibility than that of Other Witnesses
26 During voir dire prosecutor told one juror in essence that if police
officer testified in his capacity as policeman his testimony was entitled to more
credibility than that of other witnesses This is an erroneous statement of the law that
was left uncorrected in trial in which most of the States experts worked for the Police
The prosecutor stated
police officer is not accorded in the eyes of the law any more or
less belief than any other witnesses Certainly if his job or experience enters
into his testimony certainly his job can enter into his testimony but unless
he testifies as police officer you are not to believe him any more or less
than any other witness
S.F Vol at 962-63 Kellogg emphasis added see also S.F Vol 17 at 2917-18
Busby S.F Vol 15 at 2607 Brumley
Department and six other police officers testified about events
at the scene Moreover
the testimony of at least one police officer Robinette was
contradicted by information in
the States own file and was extremely prejudicial pp 42-43 supra This is improper
See generally United States Murmah 888 F.2d 24 26 5th Cir 1989
Juror Was Told that Life Sentence Did Not Mean Life
27 One juror was told by the prosecution during voir dire not to consider how
long person would have to serve life sentence in determining punishment
and that the
decision concerning how much of life sentence would be served was made by the Board
of Pardons and Paroles based on formula S.F Vol at 1085-87 Monroe Defense
counsel did not object even though this was improper argument in violation of the
Fifth Eighth and Fourteenth Amendments to the U.S Constitution and
Article sections
10 13 and 19 of the Texas constitution McKay State 707
S.W.2d 23 38 Tex
Crim App 1985 en banc cert denied 479 U.S 871 1986 see also Rose State 752
S.W.2d 529 532 536-37 Tex Crim App 1987 statute requiring instruction on parole
is unconstitutional prosecutor must not invite jury to consider the parole
law in
assessing punishment Consequently at least one juror knew during
the punishment
S.F Vol 20 at 61 106 116 Vol 21 at 158 179 199 211 250 Vol 23 at 643
665 Vol 24 at 878
Additionally the State repeatedly emphasized during voir
dire that person given
life sentence may well serve less by reminding several jurors not to
consider how long
person will serve life sentence
with possibility of parole S.F Vol at 683
Douthitt Vol 19 at 3471 Petty 3536 Whiteford Defense counsels
failure to object
should not be fatal pp 290-93 infra
-69-
phase that giving Guerra life sentence did not necessarily mean he would remain in
prison for life
The Prosecutors Misstated the Law of Parties in Manner that
Misled Most of the Jurors into Thinking They Could Sentence
Guerra to Death Even if They Believed that He Was Not the
Triggerman
28 During you dire of many of the jurors one of the prosecutors Robert Moen
used hypothetical to illustrate an issue arising in the sentencing phase The facts of this
hypothetical set forth theory of guilt based on the law of parties suggesting that the jury
could answer the first sentencing issue affirmatively and find that Guerra had committed
the offense deliberately with sufficient intent to be sentenced to death even if he was
only an accomplice and not the triggerman The prosecutions hypothetical contained
For example in the you dire of Donald Paul Kellogg Mr Moen states
question Question No is not automatically
answered yes just because someone has been found guilty of capital murder
because there are as many fact situations as the mind can think of --
where the jurors answers might be no
Let me give you an example Imagine the ex-con goes in and
asks the seventeen-year-old to go with him The seventeen-year-old
owns no such pistol or loaded gun but he is given one by the ex-convict
They go to the Seven-Eleven store The seventeen year old is outside
watching as lookout He doesnt know the ex-con is going to kill woman
and the ex-con kills woman However under our law of parties they cant
come and say they were surprised by something another person did By
committing the crime together they agreed to commit it Our law says if
you act together to commit crime and other felonies are committed that
should have been anticipated by you during the course of committing that
continued..
-70-
two fundamental errors that render Guerras conviction and sentence unconstitutional
First the prosecutor misstated the law since non-triggermans sentence must be based
on his own deliberateness and future dangerousness not on that of the shooter
Nichols Collins CA No H-92-36 Slip Op at 8-9 S.D Tex Sept 1992 Lane
State 743 S.W.2d 617 619 Tex Crim App 1987 en banc cert denied 112 Ct
1968 1992 Green State 682 S.W.2d 271 Tex Crini App 1984 cert denied 470
U.S 1034 1985
29 This prosecutorial error also was fundamental since Guerra was neither
prosecuted nor tried nor was the jury charged on the law of parties Thus this
inapplicable hypothetical that in effect misstated the law caused confusion in the jurors
minds by suggesting that Guerra could be convicted or possibly sentenced to death even
if the jurors believed he was not the triggerman
30 The erroneous hypothetical was particularly harmful in this case because the
central issue was whether Guerra was the shooter The prosecution left the jurors --
...continued
crime then all the parties are responsible regardless of the parts they played
in the commission of the crime
So that seventeen-year-old could be tiled and convicted for the offense
of capital nwder even though he did not pull the trier that caused the death
of the cashier
S.F Vol at 939-40 emphasis added The prosecutor provided similar hypothetical
to most of the jurors S.F Vol 13 at 2379-80 2423-24 Brown Vol 15 at 2617-18
Brumley Vol 12 at 2065 2096 Martenis Vol at 1062-63 1110-11 Monroe Vol
18 at 3242-43 Smith Vol at 845 Woods
-71-
incorrectly -- with the impression that no matter how they came out of this issue during
the guilt-innocence phase they could sentence Guerra to death in the punishment phase
even if some jurors doubted that he was the triggerman
31 Nevertheless an instruction not to apply the law of parties was given neither
at the guilt-innocence phase of the trial nor at the punishment phase S.F Vol 27 at
163
32 Thus absent specific charge that the law of parties does not apply during
the punishment phase Special Issue No improperly permits the jury to apply the law
of parties to the nontriggerman Nichols Slip Op at 9-10 Accordingly the Guerra
courts failure to instruct against application of the law of parties is fundamental error
and thus is not waived by failure to object in violation of the Fifth Eighth and
Fourteenth Amendments to the U.S Constitution and Article sections 10 13 and 19
of the Texas Constitution and the conviction and sentence must be reversed at 10
Many Jurors Were Told Guerra Would Be Crazy Not to
Testily
33 During voir dire the prosecutors repeated comments on Guerras failure to
testify violated Guerras constitutionally-protected right against self-incrimination The
State repeatedly commented that in the event Guerra did not testify it would be
permissible to speculate about why he did not testify
rhe prosecutions error was so fundamental and thus reviewable by the court despite
defense counsels failure to request court instruction during the guilt/innocence phase
pp 290-93 infra as to non-waiver of issues in capital cases
-72-
34 With almost every member of the venire including fully half of those
selected for the jury one of the prosecutors stated that the judge would instruct that the
defendants failure to testify could not be considered as evidence of guilt and that only
evidence from the witness stand should be considered However the prosecutors then
improperly embellished this warning in maimer calculated to focus the jurors suspicions
on any failure to testify suggesting that the defendants failure to testify on the most
important day of his life would be crazy and that they could wonder why he did not
testify
QfrFhe prosecutors made the following comments
That doesnt mean you cant as juror decide in your mind and heart you would
have liked to have heard his version That doesnt mean you cant wonder why he didnt
testify S.F Vol 15 at 2594-95 Brumley emphasis added
But as crazy as it may seem if person doesnt want to testify he can remain
totally silent At one of the most important days of his lJŁ he can remain seated at the
counsel table and never get on the stand to testify if he decides for whatever reason that
is what he wants to do S.F Vol at 948 Kellogg emphasis added
The Defendant has the right to remain silent even at his trial which may be
the most seious day in his life he may have but he has the right to remain silent if he
chooses S.F Vol at 1073-74 Monroe emphasis added
might want to hear from the defendant That is natural reaction but
wzfortunately in criminal trial the defendant doesnt have to testify unless he wants to
S.F Vol 19 at 3473-75 Petty emphasis added
The defendant has right to remain silent at his or her trial Now that
soundc crazy guess Our natural reaction obviously whether we are jurors or just
ordinary everyday people we like to get as much of fact situation as we can to reach
decision at 3538 Whiteford emphasis added
continued..
-73-
35 Guerra testified during the guilt-innocence phase of the trial He did not
testify during the punishment phase however deciding to rest on his Fifth Amendment
rights in response to the States evidence concerning gun store robbery in which he had
been accused of participating
36 By deliberately making derogatory comments during voir dire about the
prospect that Guerra might remain silent the prosecutor placed enormous pressure on
Guerra to testify and heightened unfairly his election not to do so in the punishment
phase This deliberate attempt to circumvent in advance the courts express instruction
forbidding the jury to consider on punishment Guerras failure to testify Tr 328-30
violated Guerras rights under the Fifth Eighth and Fourteenth Amendments of the U.S
Constitution Anicle section 10 of the Texas Constitution
37 Both the State and Federal Constitutions prohibit prosecutorial comment on
defendants failure to testify Owen State 656 S.W.2d 458 459 Tex Crim App
continued
That does not mean you wouldnt wonder why hefaile4 to testify S.F Vol
at 854 Woods emphasis added
The prosecutors repeated their pattern of discussing the defendants failure to
testify even with those members of the venire not chosen For example Moen told Dan
Laverne Ward Jr that the judge would tell him that he is not to consider the Defendants
failure to testify as evidence of guilt but that it doesnt mean you cant wonder why the
Defendant didnt testify or you wished he had said something or you didnt wish to hear
the Defendants side of the story S.F Vol 14 at 2474
No charges were ever filed and witnesses were divided about whether Guerra even
was present note 167 infra
-74-
1983 en banc Prosecutorial comment on an accuseds failure to testify constitutes
reversible error See Griffin State 380 U.S 609 615 1965 Such comments violate
the privilege against self-incrimination contained in Article section 10 of the Texas
Constitution and the express provisions of the Texas laws of criminal procedure In
addition comment on the defendants failure to testify constitutes violation of the self-
incrimination clause of the Fifth Amendment made applicable to the states by the
Fourteenth Amendment Montoya State 744 S.W.2d 15 34 Tex Crim App
1987 cert denied 487 U.S 1227 1988
38 The prohibition against comment on the defendants failure to testify is
mandatory and the adverse effect of any reference to the accuseds failure to testify is not
generally cured by an instruction to the jury Owen 656 S.W.2d at 459 accord Lopez
State 793 S.W.2d 738 741 Tex App.--Austin 1990 pet dismd improvidently granted
810 S.W.2d 401 Tex Crim App 1991 see also Hicks State 815 S.W.2d 299 303
Article 38.08 of the Texas Code of Criminal procedure provides
Any defendant in criminal action shall be permitted to testify in his own
behalf therein but the failure of any defendant to so testify shall not be
taken as circumstance against him nor shall the same be alluded to or
commented on by counsel in the cause
NormalIy such comments are made in closing arguments But the test as articulated
can certainly be met by comments during you dire See generally Allen State 536
S.W.2d 364 367 Tex Crim App 1976
-75-
Tex App.--Houston Dist 1991 This kind of error is rarely harmless Litaker
State 784 S.W.2d 739 749 Tex App.--San Antonio 1990 pet ref
39 Moreover testimony by defendant during the guilt-innocence phase of his
trial waives his constitutional and statutory privilege against sell-incrimination only for
that proceeding and not for any subsequent proceeding such as the punishment hearing
Stewart State 666 S.W.2d 548 Tex App.Dallas 1984 pet refd Owen 656 S.W.2d
at 459 See also Brown State 814 S.W.2d 477 481 Tex App.Dallas 1991 pet refd
improper prosecutorial argument on failure to testify requires reversal if there is
reasonable possibility it might have contributed to conviction or punishment Marable
State 802 S.W.2d Tex App.--Texarkana 1990 writ refd
40 Thus the prosecutors comments about Guerras need to testify violated the
Fifth Eighth and Fourteenth Amendments to the U.S Constitution and Article section
10 of the Texas Constitution and require reversal of his conviction and death sentence
The test to determine whether or not the error is harmless error is not whether
conviction could have been had without the improper argument but twhether in light of
the record as whole there is reasonable possibility that the argument complained of
might have contributed to appellants conviction or punishment Orona State 791
S.W.2d 125 128 Tex Cnm App 1990 Brown State 814 S.W.2d 477 480 Tex
App.--Dallas 1991 pet refd dicta Litaker 784 S.W.2d at 749 There is no need to
show that the july based its verdict on the fact that the defendant did not testify Hicks
815 S.W.2d at 304
Article 38.08 is not rendered inapplicable by the fact that Guerra testified at the
guilt/innocence phase of his trial Since Guerra did not waive his right against self-
incrimination in the punishment phase by testifying during the guilt phase he did not
forfeit the protections of Article 38.08
-76-
The Prosecutors Use of Known False Evidence Deprived Guerra of
His Right to Fair Trial
41 The use of known false testimony by the prosecution violates Guerras due
process right under the Fifth and Fourteenth Amendments to the U.S Constitution and
Article sections 13 and 19 of the Texas Constitution new trial is required when
false testimony could in any reasonable likelihood have affected the judgment of the jury
Davis State 831 S.W.2d 426 439 Tex App.--Austin 1992 n.w.h.
42 Guerra will show two types of false testimony one in each phase of the trial
that almost certainly affected the jurys judgment evidence that Guerra had committed
an unrelated murder and evidence that one of Guerras roommates had participated in
robbery
False Accusation that Guerra Committed an Unrelated Murder
43 During direct examination by defense counsel Mr Heredia testified that on
July 13 1982 he was walking back from cemetery where they had killed woman
Guerras lawyer immediately clarified that when Mr Heredia said they killed woman
he was not referring to Guerra
Let me backtrack little bit When you say they killed woman you
are not saying this man killed woman are you
No sir
Okay wanted to clarify that
S.F Vol 23 at 739 From this account there is no evidence either that Mr Heredia
or Guerras lawyer knew that there had been no cemetery murder or that Guerras counsel
anticipated Mr Heredias response
-77-
S.F Vol 23 at 739
44 During cross examination of Mr Heredia the State pursued line of
questions that portrayed the rumored murder as fact even though the puseciaor knew
it to be faLse The prosecutor insisted that the cemetery murder was relevant to the trial
of Guerra for the murder of Officer Harris thus implying that Guerra was involved in
that purported incident Mr Moen questioned Mr Heredia as follows
When was this woman killed at the cemetery that you went down to
check on
The day they killed the policeman
There was woman killed down at the cemetery too
Ye
Was that the same time that the police officer was killed or was that
few minutes earlier
It was first Before then
How long before the police officer was killed was this woman killed
down there in the cemetery
COUNSEL Objection Your Honor dont see the material
relevancy of this line of questioning
MR MOEN WelL can spell it out for them
THE COURT Go ahead
How long before the police officer was killed was this woman killed
down at the cemetery
Well dont know
Well give me your best guess
Well something like thirty or forty minutes
-78-
And did you go down there and see the womans body when the police
officers were down there as well
Well we didnt go there You see they only told us they had killed
lady down there at the cemetery
Who told you they had killed woman down there at the cemetery
Some boys
at 746-47 emphasis added During this exchange the State three times used the
phrase the woman killed once used the phrase they had killed woman and once
referred to the womans body At the time of this questioning during trial however
the State knew that no woman was killed in the cemetely on the night of the Harris shooting
or any other night
45 This rumor -- that an elderly woman living in house on the cemetery
grounds was killed on the night of July 13 1982 -- circulated through the neighborhood
surrounding the intersection of Edgewood and Walker App 93 F376A On July 21
1982 Houston police Detective LE Webber learned of the rumor drove to the cemetery
to investigate and called for patrol unit to assist him They located Mrs Hooper
the subject of the rumor and the supposed murder victim and found her unharmed
Indeed she was not even home the night of the shooting Detective Webber
prepared report dated July 22 1982 describing these findings and concluding that the
so-called cemetery murder never occurred App 93 F376A
-79-
46 Thus by the time of Mr Heredias testimony the State had known for over
two months not only that Guerra had not been involved in cemetery murder the night
of Officer Harriss death but that there had been no such murder
Prosecutorial Use of Material False TestimonyViolates
Criminal Defendants Rights Under Both the US
and Texas Constitutions
47 The principle that state may not knowingly use false evidence including
false testimony to obtain tainted conviction implicit in any concept of ordered
liberty Napue Illinois 360 U.S 264 269 1958 That principle governs whether
the prosecution actively solicits or passively fails to correct false or misleading testimony
Any conviction obtained by the knowing use of false or misleading evidence deprives the
defendant of the right to due process under the Fifth and Fourteenth Amendments of the
U.S Constitution and due course of law under Article section 19 of the Texas
Constitution Ex parte Adams 768 S.W.2d 281 293 Tex Crim App 1989 Granger
State 683 S.W.2d 387 391 Tex Crim App 1984 In this case the prosecutions
Even if the prosecuting attorneys did not have in their immediate possession the
HPD Report or did not recall its contents both of which are unlikely the knowledge of
the Houston Police Department may be imputed to the prosecution Texas courts have
declined in the past to distinguish different agencies under the same government focusing
instead upon the prosecuting team which includes both investigative and prosecutorial
personnel Ex parte Brandley 781 S.W.2d 886 892 n.7 Tex Crim App 1989
denied 111 Ct 611990 For this reason courts impute knowledge obtained by police
investigators to prosecutors Adams 768 S.W.2d at 292 citing Williams Griswald 743
F.2d 1533 1542 11th Cir 1984 The HPD Report was prepared as part of the
investigation of Harriss death and was among the evidence in the States possession during
its prosecution of Guerra
-80-
knowing emphasis on prejudicially inaccurate and misleading testimony about an alleged
cemetery murder one that never occurred during its cross examination of Mr
Heredia requires reversal of Guerras conviction
48 The U.S Supreme Court has long held that the deception of
court and jurors by the presentation of false evidence is incompatible with the
rudimentary demands of justice and requires new trial Giglio United States 405
U.S 150 153 1971 quoting Mahoney Holohan 294 U.S 103 112 1935
same result obtains when the state though not soliciting false evidence allows it to go
uncorrected when it appears Giglio 405 U.S 153 quoting Napue 360 U.S at 269 In
Napue the Supreme Court reversed conviction that was based on the principal state
witnesss untruthful testimony that he had received no consideration in return for his
testimony 360 U.S at 272 By failing to correct the false testimony the Court reasoned
the prosecution prevented the jury from fairly deliberating the merits of the case which
turned in part on the credibility of the witness and his reasons for testifring 360 U.S at
272
49 Texas courts too impose duty on the state to refrain from buttressing the
merits of its case with false testimony The purpose of imposing this paramount
constitutional duty is not to punish the prosecutor or the trial court for the error
committed but rather to avoid an unfair trial to the accused Duggan State 778
S.W.2d 465 469 Tex Crim App 1989 citing Burkhalter State 493 S.W.2d 214 218
Tex Crim App cert denied 414 U.S 1000 1973
-81-
50 Where the prosecution prompts false testimony by posing misleading
questions the interference with the julys truth-seeking function is even more egregious
in United States Barham 595 F.2d 231 242 5th Cir 1979 cert denied 450 U.S
1002 1981 the court emphasized that the defendant is entitled to jury that is not
laboring under Government-sanctioned false impression of material evidence when it
decides the question of guilt or innocence with all its ramifications As in Napue
Barhams conviction rested in part on the prosecutions failure to correct false testimony
regarding agreements the witness had made with the government at 243 The court
specifically noted that the prosecution compounded the due process violation by
affirmatively reinforcing the deception through misleading questions at 243 n.17
51 Moreover defendants right to due process is also violated if prosecutor
although not actively soliciting false evidence passively but knowingly allows it to go
uncorrected or allowc the jwy to be presented with materially faLse frnpression United
States Anderson 574 F.2d 1347 1355 5th Cir 1978 emphasis added Nor does
evidence adduced by the defense to contradict the falsehood cure the taint caused by the
prosecutions conduct Granger 683 S.W.2d at 391
ii The Prosecution Intentionally Misled the Jury by
Knowingly Eliciting and Falling to Correct Misleading
Prejudicial Testimony
52 In light of these principles conviction obtained through the presentation
of false testimony violates due process where testimony is false or leaves materially
false impression ii the prosecution knows the testimony is false and the false
-82-
testimony is material to the deliberations of the jury May Collins 955 F.Zd 299 315
5th Cir cert denied 112 Ct 1925 1992 United States Lochmondy 890 F.2d
817 822 6th Cir 1989 see also Anderson 574 F.2d at 1355 materially false
impression The cemetery murder testimony solicited by the prosecution at Guerras
trial clearly meets these tests
53 As in Barham the prosecution bolstered that false impression of another
murder by posing leading questions to Mr Heredia that precipitated dialogue between
the prosecutor and the witness in which the fact of another murder was emphasized
Mr Moen then compounded the falsity by failing to correct the misleading insinuations
that cemetery murder had occurred and ii Guerra was involved
54 Mr Moen clearly intended the knowing flagrant injection into the trial of
deceptive information to serve one purpose only to color the jurys subsequent
deliberations with the impression that another murder had occurred the night Harris was
killed perhaps by Guerra
55 In cases such as this the Court has applied strict standard of materiality
not just because they involve prosecutorial misconduct but more importantly because they
involve corruption of the truth-seeking function of the trial process United States
Agurs 427 U.S 97 104 1976 new trial is required if the false testimony could in
any reasonable likelihood have affected the judgment of the jury Granger 683 S.W.2d at
391 emphasis added Adams 768 S.W.2d at 293 conviction which rests on
mistaken identification is gross miscarriage of justice In applying this standard in
-83-
habeas corpus proceedings Texas courts also have analyzed the use of false or misleading
testimony under Texass codification of the harmless error rule at 292 Under Rule
81b2 of the Texas Rules of Appellate Procedure court must reverse an errant
conviction unless it determines beyond reasonable doubt that the error made no
contribution to the conviction or to the punishment
56 The false impression that Guerra participated in separate murder the
night of Harriss death is material under either standard There is certainly reasonable
likelilzood that the testimony and Mr Moens misleading questions affected the jurys
judgment
57 There is no excuse for the prosecutions conduct In response to defense
counsels objection Mr Moen promised to spell out the relevancy of this line of leading
questions S.F Vol 23 at 747 -- but he never did and never could since there was no
such murder and the prosecution knew or is attributed with knowledge of it
58 Accordingly the testimony violated Guerras rights to due process under the
Fifth and Fourteenth Amendments of the U.S Constitution and under Article section
19 of the Texas Constitution and he must be granted new trial Granger 683 S.W.2d
at 393 Adams 768 S.W.2d at 293 Smith State 683 S.W.2d 393 Tex Cnm App
1984
-84-
False Accusation that Guerras Roommate Committed
Robbery and Use of This Evidence in Support of Argument
for Imposing Death Penalty
59 During the punishment phase of the trial two prosecution witnesses
identified Enrique Torres Luna spectator at the trial as participant in gun store
robbery in which many weapons had been taken S.F Vol 26 at 86-88 115 including an
Uzi submachine gun at 55-57 64 The State knew that one of the robbery witnesses
who did not testify could not identify Torres Luna App 142 F700 and that Tones
Luna could not have participated in the robbery because he did not meet the suspects
description In police report dated July 1982 witnesses to the robbery described this
suspect as having uniquely distinguishing feature tattoo of Mexican caballero
cowboy on his right arm bicep App 114 P486 Tones Luna had no tattoos
60 Even though Tones Luna did not fit the description of this suspect the
State actively encouraged its witnesses to identify Tones Luna during their testimony as
one of the robbers The jury already knew that Guerra had identified Tones Lunas
brother Jose crucial witness for the defense as long-time friend with whom Guerra
had come to Houston from Monterrey S.F Vol 24 at 854-55 see Vol 25 at 976-77 and
that Jose and Enrique Tones Luna had been Guerras roommates S.F Vol 24 at 794-
95 823 856 The State took every opportunity to remind the jury that Enrique and Jose
The prosecution expected this testimony because both witnesses had identified
Tones Luna as one of the robbers outside the presence of the jury before being asked
to do so in the jurys presence Compare S.F Vol 26 at 18-19 28-29 jç at 86-88
115 see also App 186-191 P703-08 App 192-193 P728-29
-85-
Torres Luna were brothers S.F Vol 26 at 86-87 S.F Vol 27 at 196 Then in closing
arguments the prosecution implied that these friends and former roommates of Guerras
were crooks and encouraged the jury to look at friends as way of telling
what kind of person he is at 199-200 presumably referring to the special issue on
future dangerousness.2
61 At an evidentiary hearing Guerra will show that after he was sentenced to
death the State dropped all charges against Tones Luna because of insufficient evidence
By then however Guerras trial was already completed and it was too late for him to
undo the following three types of damage caused by the accusation First this deception
allowed the State to unfairly impeach by association the testimony of Tones Lunas
brother Jose one of only two witnesses who were at 4907 Rusk when Carrasco followed
by Guerra arrived at the house following the Harris murder Since Jose Tones Luna
testified that Carrasco admitted to having murdered Harris S.F Vol 24 at 809-10 he was
crucial witness for the defense Second by repeatedly reminding the jury that Guerra
and the Tones Luna brothers were long-time friends and that Enrique Tones Luna was
crook see S.F Vol 27 at 199-200 the State falsely portrayed for the jury the type of
people with whom Guena associated The State created false record of association by
For example one of the prosecutors argued that Enrique brother of one of the
defense witnesses Jose Tones Luna participated in gun store robbery S.F Vol 27
at 196 that one way to determine whether Guerra rnigbt pose future threat was to look
at his friends specifically Enrique at 200 and that by its verdict the jury should let
the other residents of 4907 Rusk know what they think of this conduct jç at 179
-86-
Guerra with violent individuals so that the july would reject Guerras plea that he did not
constitute continuing threat to society and thus impose the death penalty Finally the
States false accusation in effect impeached an individual who never testified at the trial
and by association tainted Guerras mother and father whom Guerra will show were
escorted to the trial by and sat next to Enrique Torres Luna throughout the trial The
State thus explicitly relied on testimony that it knew or should have known was false and
deceptive in its appeal to the jury to give Guerra the death penalty
62 Moreover the States proffer of evidence during Guerras sentencing
proceeding to show the type people with whom Guerra allegedly associated was
extremely prejudicial and thus further violated Guerras rights under the First and
Fourteenth Amendments Dawson Delaware 112 Ct 1093 1097 1992 and
Article sections 13 and 19 of the Texas Constitution The State clearly sought to show
that because Guerra shared house with someone who had committed frightening
crime the jury could conclude that Guerra was continuing threat to society and
deserved the death penalty Since Enrique Torres Luna did not commit the gun store
robbery and the State otherwise did not show he was of bad character Guerras
association with Torres Luna was free from taint and his freedom to associate with
Torres Luna was unconstitutionally infringed where the State used that innocent
association to obtain death sentence As in Dawson Guerras association with Torres
Luna had no relevance to the sentencing proceeding and one is left with the feeling
that the Luna association evidence was employed simply because the jury would
-87-
find association morally reprehensible at 1098 As such the States conduct
was constitutionally impermissible
Prosecutors Display of Mannequins Throughout Trial
63 The prosecutors took the highly unusual step of producing two life-like
mannequins of Guerra and Carrasco at cost of $7000 App 163 P1433 Houston
Chronicle Oct 1982 at 11 and over defense objection -- placed them on
display directly in front of the july during the entire trial S.F Vol 25 at 899 The
mannequins were startlingly life-like For added effect they were clothed by the
prosecutors in the same garments worn by the two men on the night of the crime The
clothes worn by Carrascos mannequin were stained with blood and ripped with bullet
holes conveying an atmosphere of violence surrounding both Guerra and Carrasco
App 163 F1433 Houston Chronicle Oct 1982 at 11
S.F Vol 20 at 44 Vol 22 at 375 431 447 Vol 25 at 900 Vol 26 at 48
result the trial took on the unsettling air of wax museum when the
prosecutors brought mannequins into evidence App 163 F1433 According to
the artist who sculpted the mannequins the D.A.s were very smirky They figured
they really put something over App 162 F1432 Houston Post Oct 1982 at 14A
The prosecutors would not explain why they felt it so important to impress the faces and
stature of Guerra and Carrasco on the jury at 1A
-88-
64 The State used the mannequins to remind the jury constantly see S.F Vol
25 at 899 that Carrasco who died violent death and Guerra were two of kind both
Mexican both violent both to be feared
65 The State clearly intended to overwhelm the jurys dispassionate
consideration of the evidence
66 This prosecutorial objective was accomplished In her affidavit submitted
with Guerras Motion for New Trial juror Donna Monroe said that the mannequins
affected her tremendously ttThey were eerie mannequins which were positioned right at
the jury They remained in our presence staring straight at me during the whole time
Tr 348 see also App 166 F1447 Houston Chronicle Oct 26 1982 at 8.- Away
from the mannequins omnipresent gaze Monroe later began to realize that Guerra was
innocent Tr 348
The State undoubtedly also hoped to assist its witnesses who were all confused and
inconsistent in their identification testimony
Ms Monroe had nightmares about the life-like mannequins especially the blood
stained one the Carrasco mannequin which was like dead man staring back at me
Tr 348 App 166 F1447 Houston Chronicle Oct 26 1982 at
The artist who sculpted the mannequins said that they frequently scared her
during the four weeks she worked on them App 162 F1432 Houston Post Oct
1982 at 14A
Guerra does not offer this affidavit evidence in order to impeach the jurys verdict
-- which admittedly is unacceptable -- but instead as evidence of actual prejudice that
the jury process was so tainted that Guerra was unable to receive fair trial Guerras
counsel objected to the use and presence of the mannequins repeatedly 47 supra
-89-
67 Ms Monroes statement manifestly demonstrates that the use of the
mannequins not only had the potential to interject impermissible factors into the trial but
actually did so This prejudicial effect was induced by the prosecutors not for any
evidentiaiy purpose but for other impermissible reasons Holbrook Flynn 475 U.s
560 570 1986 The way the State employed the mannequins presented an unacceptable
risk impermissible factors coming into play fatally prejudicing Guerras right to
receive fair trial Woods Dugger 923 F.2d 1454 1459 11th Cir 1991
Eliciting Irrelevant Testimony that Witnesses Feared Guerra
68 The State reinforced the notion that Guerra was dangerous by repeatedly
encouraging witnesses to give hearsay testimony about the totally irrelevant and prejudicial
fear that they and others had of Guerra or of testifying S.F Vol 22 at 592-93 Galvan
says she and others were afraid to testify at 434-35 Perez says some people were
afraid to testify This testimony particularly when coupled with the presence of
uniformed police officers in the courtroom see pp 123-25 infra undoubtedly created
An assessment of the jurors state of mind is of little consequence since
though practice may be inherently prejudicial jurors will not necessarily be fully
conscious of the effect it will have on their attitude toward the accused Flynn 475 U.S
at 570 Due process requires the courts to safeguard against this subversion of the trial
process even all the forms of trial conformed to the requirements of law.
Woods 923 F.2d at 1456-57 citing Estes Texas 381 U.S 532 561 1965
Jose Jr and Ms Flores also testified about fearing Guerra S.F Vol 21 at 290 293
Vol 22 at 518 which was supported by hearsay testimony from others at 592-93
Vol 23 at 617-20 632-33 Whether or not admissible to explain their failure to identify
Guerra at the lineup this testimony nevertheless reinforced the impression created by the
police officers presence see pp 123-25 infra that the witnesses fear was justified
-90-
perception that Guerra was violent and dangerous person and made it more likely that
the jury would find Guerra guilty and answer yes to the special issue on dangerousness
during the punishment phase Here again the prosecutors went too far and violated
Guerras rights under the Fifth and Fourteenth Amendments to the U.S Constitution and
Article sections 10 13 and 19 of the Texas Constitution
The Prosecutors Improper Jury Argument and Repeated Statements
of Personal Opinion and the Introduction of Evidence Outside the
Record
69 In violation of Guerras due process rights under the Fifth and Fourteenth
Amendments to the U.S Constitution and Article sections 13 and 19 of the Texas
Constitution the prosecutor improperly used jury argument during the guilt-innocence
phase of the trial to mischaracterize the evidence in the record and to knowingly
introduce evidence outside the record The prosecutor sought to impermissibly bolster
the credibility of key State witnesses to discredit testimony of the defendant and other
key defense witnesses and to inflame the passions of the jury through appeals to
prejudice and references to inadmissible evidence
70 The nature of the evidence and the issues presented to the jury in the trial
magnify the harm caused by the prosecutors improper argument The jury was in the
position of having to evaluate an array of conflicting purported eyewitness testimony
both between the witnesses offered by the State and by the defense as well as among the
States own witnesses The physical evidence also contradicted many of the States
purported eyewitnesses Against this backdrop the prosecutors consistently ignored their
-91-
witnesses testimony -- and most of the physical evidence -- and injected their personal
opinions or evidence outside the record to insure that their version of the events of
July 13 1982 was presented to the july
71 Generally proper jury argument must be confined to one of four areas
summation of the evidence reasonable deduction from the evidence answer
to argument by opposing counsel and plea for law enforcement Harris State 784
S.W.2d 12 Tex Crim App 1989 cert denied1 494 U.S 1090 1990
72 The prosecution may not interject personal opinions that lack support in the
evidence United States Herberman 583 F.2d 222 230 5th Cir 1978 may not go
outside the record Fuentes State 664 S.W.2d 333 338 Tex Crim App 1984 may
not misstate the law Rogers Lynaugh 848 F.2d 606 610 5th Cir 1988 may not seek
to inflame the jury see Hess State 328 S.W.2d 308 309 Tex Crim App 1959 and
may not engage in various other improper acts see e.g Herberman 583 F.2d at 230
73 Although prosecutor can express his opinion or knowledge if it is plain
they are derived from the evidence any other expressions of personal opinion are
improper Foy Donnelly 959 F.2d 1307 1318 5th Cir 1992 Such comments
especially if not isolated instances but characteristic of the whole trial can be grounds for
reversal of conviction Fuentes 664 S.W.2d at 335 338 n.1 prosecution argued
that defense objections were in bad faith like usual and garbage see Herberman 583
F.2d at 230 general an attorney may not inject into his argument any extrinsic or
prejudicial matter that has no basis in the evidence citation omitted
-92-
74 Because of his standing as public official prosecutors allusion to
extrinsic evidence and interjection of his own opinion may be given undue weight by the
jurors Hence he is held to high standard of care Jci at 231 The harmful
effect of repeated failures to stay within the record and to conduct proper july argument
often cannot be cured by an instruction to disregard Bennett State 677 S.W.2d 121
129 Tex App.--Houston Dist 1984 no pet.
75 From volt dire to closing argument Guerras trial was rife with just such
improper comments by the prosecutors The prosecutors injected personal opinions about
the veracity of key defense witnesses and sought to discredit Guerra and other defense
witnesses by mischaracterizing evidence in the record and knowingly interjecting false
information from outside the record Each comment separately and all cumulatively
violated Guerras rights under the Fifth and Fourteenth Amendments to the U.S Consti
tution and Article sections 10 13 and 19 of the Texas Constitution
The Prosecutors Repeatedly Improperly Bolstered the
Testimony of State Witnesses with Imaginary Facts or
Impermissible Opinions
76 Although prosecutor may not go outside the record to bolster the
credibility of witness by unsworn testimony Menefee State 614 S.W.2d 167-68 Tex
Crim App 1981 Harkey State 785 S.W.2d 876 882 Tex App.--Austin 1990 no
pet the prosecutors in this case did so repeatedly in closing argument
77 First one of the prosecutors Mr Richard Bax improperly bolstered the
inconsistent testimony of the States purported eyewitnesses by insisting that five of the
-93-
States witnesses had identified Guerra as the man saw shoot and kill Officer Harris
and then run down the street and shoot into the car that Mr Armijo was driving
S.F Vol 25 at 916 Mr Bax later argued that this was not case of mistaken identity
because he contended five eyewitnesses individually had identified Guerra as Harriss
killer S.F Vol 25 at 933 see at 927 On rebuttal Mr Moen repeated that all five
eyewitnesses had picked the same man in the lineup as the killer of both Harris and
Mr Armijo and that none said they were unsure at 969-70
78 Yet the witnesses written statements and the results of the police lineup
refute Mr Baxs mischaracterization of the evidence and demonstrate that only Jose Jr
consistently testified that he believed he saw Guerra shoot both Harris and Mr Armijo
Jose Jr.s father Galvan originally claiming to have seen Guerra shoot Harris revealed
on cross-examination that she had not even seen the gun None of the other witnesses
claim to have seen the shooting of Mr Armijo 50 supra
79 Second Mr Bax injected his own opinion and introduced evidence outside
the record to bolster the testimony of the States key witness Jose Jr In closing
argument Mr Bax began his discussion of Jose Jr.s testimony by describing him as
little boy who knew that God would get after him if he told lie S.F Vol 25 at 918
none of which was in the record or even asked during the trial
80 The purpose of this unsworn opinion testimony was clearly to bolster Jose
Jr.s testimony about why he had failed to recognize or identify Guerra in the police
-94-
lineup Defense counsels objections were overruled or did not receive ruling S.F
Vol 25 at 918-19
81 Finally the prosecution presented as fact the speculation that Jose Jr.s
stated reason for refusing to read his own statement -- that he did not have his glasses
was really an excuse for his shyness and inability to read at 925 Jose Jr.s clear
perception of the events that night were critical to the States case Thus Mr Bax
provided unsworn testimony to preclude impeachment of the poor eyesight of key
witness
The Prosecutors Gave False Unswom Testimony in an
Attempt to Unfairly Impeach Two Crucial Defense Witnesses
82 The prosecutors consistently gave unsworn testimony and went outside the
record in argument concerning the defense witnesses
The Prosecutors Falsely Accused Guerra of Lying About
How He Ran Back to 4907 Rusk
83 Mr Bax also expressed personal opinions during Guerras testimony
concerning his actions following the shooting of Harris Guerra stated at trial that after
running down Edgewood he turned right at an intersection ran to the next block turned
right again and continued straight until he reached Dumble Mr Bax interjected --
incorrectly -- that Guerra could not reach Dumble based on those directions The
Court sustained an objection to the prosecutors testifying S.F Vol 24 at 849-51 In
effect however the effect was worse because the prosecutor was falsely accusing Guerra
of perjury
-95-
ii Without Evidence the Prosecutors Accused Key
Defense Witness of Being High on Drugs or AlcohoL
84 Mr Moen used mere personal opinion during cross-examination of key
defense witness Mr Heredia to seriously undermine the witnesss credibility The
prosecution asked Mr Heredia without any foundation if he had been drinking alcohol
or smoking anything S.F Vol 23 at 747-48 In concluding his cross-examination of Mr
Heredia Mr Moen remarked that he would let Mr Heredia go back to sleep at
758 Subsequently in closing argument Mr Moen referred to Mr Heredia as Rip Van
Winkle from Sleepy Hollow and stated that think he was probably under the influence
of some type of alcoholic beverage or narcotic drug S.F Vol 25 at 981 These
comments based on personal opinion and clearly outside the record were highly
prejudicial attacks on key defense witness
85 prosecutors statement during argument that the defendant was coming
down from an addictive drug was held to be reversible error in Reynolds State 505
S.W.2d 265 267 Tex Crim App 1974 There the court concluded that similar
comments amounted to injecting new unsubstantiated evidence where there was no
evidence that the defendant was under the influence of an addictive drug and ii it was
unlikely that such state would unlikely be recognizable absent expertise the
prosecutors comments amounted to injection of new evidence
Recent experiments have shown that demeanor alone such as apparent sleepiness --
which is not reflected in this record -- does not assist in identifying either honesty or
-96-
accuracy in testimony See generally Olin Weilborn III
Demeanor 76 Cornell
Rev 1075 1991
86 The prosecutors observations however biased the jurors evaluation of
Heredias demeanor By expressly imputing to the witness condition that would
diminish his accuracy as well as suggest dishonesty the prosecution improperly injected
new evidence into the proceedings Such an unfounded and personal attack on
defense eyewitness particularly in case in which conviction was obtained in large part
by contradictory testimony of other purported eyewitnesses severely prejudiced
Guerras
right to fair trial
iii In Flagrant Contradiction to Material in the Prosecutors
Files Prosecutors Wrongly Accused Two Defense
Witnesses of Lying
87 In blatant example of improper conduct Mr Moen impeached two
defense witnesses Jose Torres Luna and Mr Esparza by arguing that they had either
lied in their testimony or lied to police officer Robinette S.F Vol 25 at 977-78
Mr Moen knew or should have known that the testimony of Mr Tones Luna and Mr
Esparza that they were at 4907 Rusk when Carrasco came in the house with two pistols
and said that he had killed policeman S.F Vol 24 at 784-85 815 was consisient with
an earlier statement to Police Officer Palos Nevertheless the prosecutor accused the
defense witnesses of lying in artificial reliance on Officer Robinettes testimony that
Tones Luna and Esparza had told Robinette that both of them had been out of the
house until he saw them after Carrasco had been killed in the police shootout at
-97-
884-86 In an interview taken at Mr Tones Lunas house by Officer Palos minutes after
Harriss shooting and before Carrascos death Mr Tones Luna had stated that he had
remained at the house when his brother Enrique had left 30 minutes earlier App 35
F92 This statement was in the prosecutors files at the time of trial
88 Based on the foregoing it is clear that the prosecutor had no basis to assert
that the two witnesses lied on the stand Accordingly the prosecutors statement was
merely personal opinion about the veracity of two key defense witnesses which is
prohibited United States Murrah 888 F.2d 24 26 5th Cir 1989 prosecutor
may not give personal opinion about the veracity of witness
iv Prosecutors Impeachment of Defense Witnesses
Through Questions Without Underlying ProoL
89 During cross-examination of Mr Vega who testified that he saw Carrasco
shoot Harris Mr Moen asked if it was not true that the previous weekend Mr Vega had
told Mr Moen that the shooter was the one closest to the police officer S.F Vol 23
at 726-27 Moen introduced no evidence that Vega made any such prior statement
90 Similarly during his cross-examination of Mr Heredia Mr Moen first asked
if it was not true that at the reenactment Mr Heredia told Mr Moen that Heredia could
not identify the shooter at 751-52 Moen then attempted to induce Mr Heredia to
admit to the absurd notion that Heredia had told policeman or an assistant District
2Mr Moen was trying to prove Guerras guilt since Guerra had previously been
placed closest to Harris by several witnesses
-98-
Attorney that Guerra was not present the night Harris was shot at 753 There is no
support for either prosecutorial assertion Heredias statement on the night of the
murder says only that the officer put the driver against the car and was about to search
him while the passenger got out of the car walked behind Harris and shot him App
28 F55 It says nothing about Mr Heredia claiming that Guerra was not present or
that Mr Heredia could not identify the shooter
91 It is reversible error where the form of question -- such as those posed to
defense witnesses Vega and Heredia -- has the effect of asserting as fact matters
unsupported by evidence in the record See e.g Sisson State 561 S.W.2d 197 199
Tex Cnm App 1978 reversing conviction in part because the prosecutor asked
Have you heard that on August the 7th 1976 this defendant did in fact smoke
marijuana Dakin State 632 S.W.2d 864 Tex App.--Dallas pet refd 1982
reversing conviction based in part upon the prosecutors unsupported statements made
in the form of questions to witnesses The prejudicial effect on the jury is so severe that
it cannot be cured by instructions to disregard from the court Sisson 561 S.W.2d
at 199-200 Dakin 632 S.W.2d 864
92 Similarly in this case in the guise of questioning certain witnesses the
prosecution made statements of fact unsupported by the record thereby unconstitutionally
tainting the conviction
-99-
The Prosecutors Repeated Pleas to Community Expectations
93 Arguments by the State referring to expectations of the community for
conviction constitutes reversible error Porter State 226 S.W.2d 435 Tex Crim App
1950 The prosecutor made just such an argument when he exhorted the jury to return
speedy verdict in the punishment phase and to let the other residents at 4907 Rusk and
the people who have the rest of those weapons out there somewhere know just
exactly what we as citizens of Harris County think about this kind of conduct S.F
Vol 27 at 179
94 These arguments are unconstitutional and require reversal of Guerras
conviction
Use of Irrelevant and Inflammatory Victim Impact Testimony from
Mrs Harris and Mrs Armijo Violated Guerras Rights
95 The States unrelenting strategy of inciting and inflaming the jury against
Guerra is further demonstrated by the prosecutions attempts to substitute sympathy for
the victims in lieu of evidence of guilt The prosecution began this tactic during voLr dire
and continued through trial and closing argument
96 Recognizing the evidentiary infirmities of its case against Guerra the State
adopted strategy of creating contest for the jurys sympathy between the defendant
and the victims of the tragic events on the night of July 13 1982 This was contest
Guerra was bound to lose
-100-
97 The State initiated its strategy by impressing on the jury that the prosecutors
represented the family of Officer Harris in the trial proceedings Throughout the voir
dire the prosecutors announced that they represented both the State and the family
of
Officer Harris Of course they had no such responsibility the prosecutors representing
the State and otherwise ostensibly acting as officers of the Court served solely to present
evidence to the jury for the jurys determination whether Guerra was guilty of the murder
of Officer Harris beyond reasonable doubt Instead the prosecutors sought to create
the impression that the proceeding was merely contest between two disputants Officer
Harriss family and Guerra between whom the jury must express preference
98 Next the prosecution presented its case in way designed to obliterate its
evidentiary weaknesses by focusing the jurys attention in riveting laser-like intensity on
the victim of the crime rather than on questions about the actions of the alleged
murderer In the penultimate stage of its case the State introduced five grisly autopsy
photographs of Officer Harris The last three showed rods entering one side
of Harriss
face and exiting the opposite side S.F Vol 23 at 691 Then -- immediately following
the display of Harriss mutilated head and with the mannequins gazing remorselessly at
the jurors -- the prosecution dramatically called Mrs Harris to the stand
S.F Vol 13 at 2366 Brown Vol 15 at 2574 Brumley Vol 17 at 2896
Busby Vol at 659 Douthitt Vol 12 at 2054 Martenis Vol 13 at 2192 Phillips
Vol 19 at 3452 Petty at 3518 Whiteford They continued this tactic during closing
arguments Vol 25 at 968-69 986-87 Vol 27 at 204 102 infra
-101-
99 Mrs Harris recounted her life with her dead husband and his qualities as
father and husband S.F Vol 23 at 701-10 She described meeting her husband jç. at
702-03 and how he regularly worked extra jobs so that she could devote full time to
raising their children at 710 In moving testimonial to close family relationship
maintained by dedicated officer she recalled that he was good father She testified
that he was good to his children when he was there at 709-10 it was just Sundays and
Mondays on his days off that he was able to be with the children and he did as much as
possible for them and with them at 710 in fact just the weekend before
had taken little out-of-town trip just to get away so the kids took them to San
Marcos id and she couldnt have asked for better husband or better father for her
children She described how excited he had been leaving for work the day of his
murder because he had new patrol dog at 708 Over objections of Guerras
counsel the prosecutor coaxed from Mrs Harris the couples parting words
What happened after that
He kissed me and he said love you and he left
Was that the last thing you ever heard him say to you
Yes sir
at 709-10
100 In his closing argument in the guilt-innocence phase the prosecution also
stated that it represented Officer Harris Mr Arniijo and their families S.F Vol 25
at 904 For example in closing Mr Bax stated that he and Mr Moen have clients in
this case and will represent them with all the vigor and ambition that
-102-
counsel will be representing his client with at 913-14 Mr Moen reassured the
jury that he acted to represent Officer Harris to the best of his abilities -- just as they
would represent any of the jurors or loved ones at 968-69 Then the
prosecutor seized on this incendiary portrait of the victim and his wife fanning the
testimony into blazing plea for retribution Bitterly contrasting the poignant image of
virtuous husband and father with the type of person is Mr Moen vehemently
exclaimed
You know trials like this murder cases like this make me angry little bit
as lawyer as far as the law is concerned because you are presented just
the briefest biographical sketch of what type of person Jim Harris really was
and it is not really fair It is not fair to Jim or his family that you know so
little about what kind of person he was
Throughout the trial he is characterized as being police officer just
police officer He was person working as police officer He was not
just another statistic murder statistic here in Houston He was good man
Put it out of your mind he was police officer Sure it enters into this
case but he was not just police officer not just distant figure we can
write off He was man good man good member of this community
Id at 986-87
101 This emotional appeal alone was sufficient to crumble the objectivity of even
the most conscientious juror But the State did not stop with evidence of the impact of
Officer Harriss death The prosecutors also elicited victim impact testimony from Mrs
Armijo in the guilt-innocence phase of the trial even though the State was not trying
note 58 supra for similar characterizations in voir dire
-103-
Guerra for Mr Armijos murder In response to the prosecutors questions Mrs Armijo
described how her son Jose Jr.s behavior changed after the death of her husband
Jr used to go out to play lot and he would ride his bicycle on the
sidewalk and going around the block He played lot of baseball yes sir
And he would play lot and he was quite happy and he used to play lot
of baseball with his father and now he doesnt want to go out to play and
he just comes home and he wants to lie down and sleep and he doesnt
even want to eat
S.F Vol 23 at 633-35
102 Once again Mrs Armijos testimony over the objection of Guerras counsel
about the emotional condition of her son did not tend to prove or to disprove any of the
elements of the crime with which Guerra was charged Like Mrs Harriss testimony its
sole purpose and effect was to inflame the jury against Guerra replacing the jurors
dispassionate consideration of the evidence or lack thereof with an overwhelming desire
to avenge the deaths
103 As Guerra demonstrates elsewhere see pp 13 1-44 infra under Texas Rule
of Criminal Evidence 402 and established principles of United States and Texas
constitutional law such victim impact evidence presented during the guilt-innocence stage
of Guerras trial was fundamentally unfair in violation of Guerras rights under the Fifth
and Fourteenth Amendments to the U.S Constitution and Article Sections 10 13 and
19 of the Texas Constitution This alone constitutes grounds for the granting of writ
-104-
The Prosecution Attempted to Invoke Religion to Persuade the Jury
to Give the Death Penalty
104 In the punishment phase the prosecutor made several inflammatory and
improper appeals to religion He told the jury that the Bible commands the july to
impose the death penalty on Guerra
105 This was deliberate improper attempt by the prosecutor to destroy the
objectivity of the july and remove the responsibility from the jury for their verdict
Commonwealth Chambers 599 A.2d 630 Pa 1991 cert denied 112 Ct 2290
1992 It is improper for the prosecutor to interject religious law as the source of the
jurys obligation to impose the death penalty rather than their duty to determine whether
the death penalty is appropriate based on the laws enacted by the legislature of the State
The prosecutor argued
Where do we ge the death penalty from Where does this inhumane law
come from Where do we receive our direction for the death penalty
Have any of you forgotten or is it possible we have put aside our directions
on where we get the death penalty from Have any of us forgotten what
God told Moses two thousand years ago Thou shalt not kilL What did
God tell Moses when he was telling Moses his commandments laying down
his law What did he tell him twenty-five verses later Twenty-five verses
later after he told Moses to tell everyone it was Gods law Thou shalt not
kill he said tIe that smiteth man so that he die shall surety be put to death
hfrnse/ Twenty-five verses later That is where we get this inhumane law
from the death penalty It is not something we thought up It is not
something we arbitrarily decided upon Our direction comes from someone
little bit higher than us someone little bit smarter than us That is where
this inhuman law comes from
S.F Vol 27 at 192-93 emphasis added
-105-
Id see also Miller North Carolina 583 F.2d 701 704 n.3 4th Cir 1978 disapproving
of this type argument North Carolina Morse 313 S.E.2d 507 519 N.C 1984 same
By telling the july that the Bible commands them to return death penalty verdict the
prosecutor attempted to inflame the jurors emotions in rendering their verdict rather than
their judgment based on the evidence
106 The prosecutors punishment phase argument thus denied Guerra his due
process rights pursuant to the Fifth and Fourteenth Amendments of the U.S Constitution
and Article sections 10 13 and 19 of the Texas Constitution and his right to reliable
capital sentencing proceeding pursuant to the Eighth Amendment
The Cumulative Effect of Prosecutorial Misconduct Throughout Guerras
Trial Deprived Him of Fair Trial and Deprived Guerra of His Due Process
Rights Under the Fifth and Fourteenth Amendments to the US Constitution
and Article Sections 3A 10 13 and 19 of the Texas Constitution
107 Each of the foregoing instances of prosecutorial misconduct constitutes
violation of Guerras right to fair trial Each incident and comment by itself constitutes
error of constitutional magnitude that deprived Guerra of due process of law and rendered
his conviction and sentence invalid as established above Moreover although each
individual instance of prosecutorial misconduct so seriously undermined fundamental
fairness that it deprived Guerra of his due process guarantees consideration of those acts
1Prosecutors
arguments that regardless of any other evidence and regardless of the
law the death penalty is mandatory whenever one man kills another has long been held
to be unconstitutional Woodson North Carolina 428 U.S 280 292-93 1976
-106-
cumulatively and in the context of the trial as whole including closing arguments makes
clear that Guerra was denied fair trial United States Herberman 583 F.2d 222 231
5th Cir 1978 see Kirkpatrick Blackburn 777 F.2d 272 281 5th Cir 1985
108 It is clear that where prosecutor acted improperly in many instances
though any single instance might not have resulted in reversal we
are convinced that the sum of all these errors prevented appellant from
obtaining fair and impartial trial The prosecution made too many
improper suggestions introduced too much improper evidence and denied
the existence of evidence on too many occasions What inferences were
planted in the minds of the jurors we cannot determine We hold however
that their verdict could not have been based solely upon proper
consideration of relevant and admissible evidence
Herberman 583 F.2d at 231 emphasis added
109 Texas law provides similar rule Where pronounced and persistent
prosecutorial misconduct permeate the entire record even though no single instance
of misconduct seems likely to have required reversal the totality of the misconduct denied
the defendant due process Rogers State 725 S.W.2d 350 360-61 Tex App.--Houston
Dist 1987 no pet see also Dakin 632 S.W.2d at 869 holding that when an entire
record such as the one before us is permeated with prosecutorial misconduct the
verdict reached by the jury must necessarily be based upon consideration of such factors
and thus must constitute an impermissible denial of due process
110 The numerous acts of prosecutional misconduct including but not limited
to intimidation of witnesses ii failure to disclose material exculpatory evidence iii
cover-up of improper lineup procedures iv improper remarks during voir dire including
-107-
improper references to using Guerras status as an illegal alien when deciding if he would
live or die use of known false evidence vi interjection of improper jury argument
personal opinions and matters outside the record vii repeated pleas to family and
community expectations viii emphasis on victim impact evidence and improper assertions
that the prosecutors represented the victims families ix misstatements of the law and
attempts to invoke religion to persuade the jury to give the death penalty -- each
alone and certainly accumulated deprived Guerra of fair trial in violation of the Fifth
Sixth Eighth and Fourteenth Amendments to the U.S Constitution and Article
sections 3A 10 13 and 19 of the Texas Constitution
The Serious and Continuing Prosecutorial Misconduct Alleged Here Resulted
in Deprivation of Fundamental Fairness that Cannot Be Waived By
Failure to Object
111 Generally where error is not preserved during trial that objection is
considered to be waived unless the conduct in question constitutes plain error
United States Hatch 926 F.2d 387 394 5th Cir cert denied 111 Ct 2239 and
112 Ct 126 1991 Similarly under Texas law failure to object to improprieties in
prosecutorial argument or conduct constitutes waiver Borgen State 672 S.W.2d 456
457 Tex Crim App 1984 en bane
112 Defense counsel in fact objected at trial to many of the acts of prosecutorial
misconduct set forth above For some others however counsel did not object But as
to the bulk of those the States actions were so egregious and created condition of such
-108-
fundamental unfairness that the failure to make contemporaneous objection should result
in neither the denial of review by this Court nor in the application of the relatively strict
plain error standard As the Supreme Court has explained
Where there is serious and continuing prosecutorial misconduct that
undermines the reliability of the fact-finding process or even worse
transforms the trial into farce and mockery of justice as occurred here
resulting in deprivation of fundamental fairness and due process of law the
defendant is entitled to new trial even though few objections have been
perfected
Berger United States 295 U.S 78 88 1935 accord Ruth State 522 S.W.2d 517
Tex Crim App 1975 Kerns State 550 S.W.2d 91 Tex Cnm App 1977 Reversal
is justified to reaffirm the critical importance of convicting the accused based only on the
evidence presented without attempting to inflame or prejudice the minds of the jurors
Boyde State 513 S.W.2d 588 593 Tex Crim App 1974 Stein State 492 S.W.2d
548 551 Tex Cnm App 1973 Rogers State 725 S.W.2d 350 Tex App Houston
Dist 1987 no pet.
113 Indeed under Texas law failure to object will not waive the error where
the prosecutors argument is so prejudicial that an instruction to disregard would not cure
the harm Borgen 672 S.W.2d at 458 Other applicable federal and state cases recognize
that the failure to make contemporaneous or proper objection need not be considered
waiver where the prosecutors conduct is particularly improper or prejudicial
See e.g United States Dorr 636 F.2d 117 5th Cir 1981 Fuentes State 664
S.W.2d 333 336-37 Tex Crim App 1984 United States Edwards 576 F.2d 1152 1154
5th Cir 1978 Bovde State 513 S.W.2d 588 593 Tex Crim App 1974
-109-
114 Sensitivity to this matter is especially important in capital cases As courts
from other jurisdictions have recognized where death penalty is applicable
Supreme Court will notice all possible errors even thougJi not properly raised State
Smith 554 So.2d 676 678 La 1989 see also State Bay 529 So.2d 845 852 L.a 1988
cert denied 111 Ct 2865 1991 holding that potential deprivation of life
warrants that we make the extra effort to review the record and see if we can develop
viable argument for the defendant even if the defendant fails to do so himself Special
consideration should be afforded before life is taken
115 Even absent de novo review of trial error the many instances of
prosecutorial misconduct considered individually and in the context of the entire trial were
so egregious that they must be found to have deprived Guerra of his fundamental rights
even under plain error standard Under Texas law it is clear that the prosecutors
conduct so prejudiced the trial that no instruction to disregard could have cured the
multiple errors See Thomas State 693 S.W.2d Tex App.--Houston Dist
1985 pet ref
IV THE HOSTILE ENVIRONMENT SURROUNDING GUERRAS TRIAL
AND THE PROSECUTORS CXNDUCF IN EXACERBATING THE
HOSTILE ENVIRONMENT SUBVERTED THE TRIAL PROCESSAND
VIOLATED GUERRAS RIGHTS UNDER THE FWfl-1 SIXTH
EIGHTh AND FOURTEENTh AMENDMENTS TO THE U.S
CONSTiTUTION AND ARTICLE SECHONS 10 13 AND 19 OF THE
TEXAS CONSTITUTION
The julys objectivity was destroyed by the unusually hostile environment that
surrounded Guerras trial -- due to
-110-
record number of unrelated police killings and
ii inordinately inflamed prejudicial attitudes towards illegal aliens
-- as group -- that had been the subject of several recent
events
Shockingly the State pandered to these improper emotions and thereby
created hostile environment to surround and unfairly color jurors consideration of the
evidence at trial Guerra was thus denied his right to fair trial as guaranteed under the
Fifth Sixth Eighth and Fourteenth Amendments to the U.S Constitution and Article
sections 10 13 and 19 of the Texas Constitution
Central to the right to fair trial is the principle that one accused of
crime is entitled to have his guilt or innocence determined solely on the basis of the
evidence introduced at trial Holbrook Flynn 475 U.S 560 567 1986 quoting
Taylor Kentucky 436 U.S 478 485 1978 emphasis added practices pose
such threat to the fairness of the fact finding process that they must be subjected to
close judicial scrutiny Flynn 475 U.S at 568 quoting Estelle Williams 425 U.S 501
503-04 1976 Due process requires that the courts safeguard against the intrusion of
factors into the process that tend to subvert its purpose Woods Dugger 923
F.2d 1454 1456-57 11th Cir 1991
To prevail on claim of denial of fair trial criminal defendant must
show either actual or inherent prejudice Woods 923 F.2d at 1457 citing Flynn and Irvin
In some instances trial counsel failed to object to events contributing to the hostile
environment but this should not constitute waiver pp 290-93 infra
-111-
Dowd 366 U.S 717 1961 The test for inherent prejudice is not whether jurors
actually articulated consciousness of some prejudicial effect but rather whether an
unacceptable risk defendants right to fair trial is presented of impermissible
factors coming into play flynn 475 U.S at 570 quoting Estelle 425 U.S at 505
quoted in Woods 923 F.2d at 1457 risk becomes unacceptable when there is
probability of deleterious effects Williams 425 U.S at 504 quoted in Woods 923 F.2d
at 1457
Although each impermissible prejudicial factor standing alone may be
insufficient to render verdict constitutionally unfair each factor must be viewed in the
context of the complete trial Woods 923 F.2d at 1459 In other words the totality of
circumstances must be examined to evaluate the fairness of the trial at 1457 citing
Sheppard Maxwell 384 U.S 333 352 1966fti
The State benefitted from vast negative pretrial publicity -- seen by several
members of the jury -- about this case and used the surrounding circumstances to
encourage unfounded generalizations from this incidentft
Moreover when there is an unacceptable risk that defendants trial processes
have been subverted harmless error analysis is not applicable Woods 923 F.2d
at 1460 This reflects the reasoning of the U.S Supreme Court in Irvin Dowd 366 U.S
717 722 1961 in which the important threshold issue for the Court was whether the
defendant was afforded fair trial not whether he was innocent See also Satterwhite
Texas 486 U.S 249 256 1988 Here where the evidence of guilt is borderline at best
it would be almost impossible to demonstrate that errors like those described above were
harmless
See also Section on references to illegal alien at pp 127-28 infra
-112-
Pretrial Publicity and Prejudicial Feelings Toward Illegal Aliens
Record Number of H.P.D Officers Killed
As reported in major Houston newspaper several times in mid-July 1982
Harris was the fourth Houston police officer to die in the line of duty that year the
highest number killed in the line of duty for any frill year since 1917 App 156 F1423
App 152 F1297 Houston Chronicle July 14 1982 at and July 16 1982
at 10 and number that tied Chicago for the U.S city with the highest number of slain
officers App 160 F1429 Houston Chronicle July 17 1982 at 16 Houston police
officers led by Police Chief Lee Brown were alarmed and concerned over the
unprecedented number of deaths and injuries to our officers and were concerned that
they were losing too many App 159 F1428 App 160 F1429 Houston Chronicle
July 16 1982 at 10 and July 17 1982 at 16 Harriss funeral received major
attention from the news media as 500 gathered for the funeral which drew fellow police
officers from as far away as Fort Worth App 160 F1429 Houston Chronicle July 17
1982 at 16 The day following Harriss death flags throughout the city were flown
at half-mast by order of the Mayor App 157 F1426 Houston Chronicle July 15 1982
at 12 Most of the articles about the trial were on the front page of the Houston
Chronicle and Houston Post with constant barrage of incendiary publicity
-113-
Many members of the jury had followed the investigation in the press
Attitudes Towards Illegal Aliens
Harris Murder Trial and Guerra as Illegal Alien
Press and newscast reporting was extensive during the days immediately
following the Harris murder and during the trial 2-1/2 months later At an evidentiary
hearing Guerra will prove that the citys three major television stations carried nearly 100
reports covering the incident and the trial Numerous newspaper stories referred to
Guerra as the suspected illegal alien or suspected undocumented alien App 156
F1423 App 157 F1426 App 1059 P1428 App 163 F1433 App 158 F1427
Houston Chronicle July 14 1982 at July 15 1982 at 12 July 16 1982
at 10 and Oct 1982 at 11 Houston Post July 16 1982 at 7A and Oct 1982
at 14A At an evidentiary hearing on this Application Guerra will show that these terms
have negative and prejudicial connotation that appeals to ethnic prejudice
Anti-Lllegal Alien Attitudes in Houston
10 Also Guerra will demonstrate that during the time period when he was
arrested and brought to trial for the Harris murder many Houston residents especially
S.F Vol at 659-60 Douthitt Vol at 832 878 Woods heard of murder
on radio and t.v Vol at 974 Kellogg heard the murder coverage in all the
channels for several days Vol 21 at 3453 Petty Vol 19 at 3519 Whiteford Only
Juror Busby Vol 17 at 2896 claimed that he had not heard media coverage of the case
According to the voir dire transcript two jurors were not questioned about the pretrial
publicity Monroe and Smith and four were uncertain Brennan Brown Brumley and
Martenis Of the 60 members of the veni.re questioned on this issue only 18 stated that
they had heard no media coverage
-114-
non-Hispanics exhibited strong bias against immigrants and illegal aliens blaming
them for increases in crime displacement of American workers and excessive reliance on
public welfare programs With unemployment at record-breaking 9.4% App 174
F1457 Houston Post May 1982 at 6GG Guerra will show that generally speaking
residents of Houston viewed immigrants and undocumented aliens usually Mexican
nationals in terms of illegal status or on the basis of an alleged negative impact on the
U.S economy crime and society Perhaps these attitudes could have been tempered
by the presence of one or more Mexican Americans on the jury but there were none
Letters to the editor published in Houston newspapers reflect that some people
believed that illegal immigration was causing national crime wave App 153
F1311 Houston Chronicle July 27 1982 at see also App 150 F1453A
Houston Post May 1982 at 3GG crime in the city has advanced greatly because
aliens have nothing to lose Others compared undocumented Mexican
immigrants to roaches in the night who slither across the border snatching up
jobs Americans so desperately need App 155 F1375 Houston Chronicle Nov
1982 at 14
This is not to suggest that all or even most Houstonians shared these obnoxious
views But the selection of only one juror of similar persuasion would infect the entire
panel
There were at most two Mexican Americans among the 90 questioned during vofr
dire see S.F Vol at 17 Anita Hemandez Vol at 1375 Marshall McDonald Both
were struck by the State S.F Vol at 1417 Hernandez Vol at 1377 McDonald
The potential for racism to enter jurors deliberations in inter-racial homicides which the
Supreme Court has recognized see Turner Murray 476 U.S 28 33-37 1986 should
not be discounted pp 127-28 infra illegal alien comments
-115-
Supreme Court Decision on Education of the Children of
Illegal Aliens
11 Many also blamed illegal aliens for placing an unprecedented financial
strain on the U.S school system In June 1982 the Supreme Court held that Texas
statute discriminated against and deprived of public education children who were not
legally admitted into the United States Plyler Doe 457 U.S 202 1982 The U.S
District Court for the Eastern District of Texas had made extensive findings of fact
regarding the issues involved in that case at 207 Those findings concluded that
undocumented children were disadvantaged as result of poverty lack of
English-speaking ability and undeniable racial prejudices at 208 emphasis
added The Court observed that
permanent caste of undocumented resident aliens encouraged by some to
remain here as source of cheap labor resulted in the existence
of such an underclass who are virtually defenseless against any abuse
exploitation or callous neglect to which the state or the states natural
citizens may wish to subject them
at 218-19 n.17 This decision was bitterly criticized by Texas public officials See e.g
App 168 F1453 Houston Post June 16 1982 at A20 quoting Secretary of State
Strake saying the ruling will hurt the people of Texas
Immigration Reform Debate
12 At the time of Guerras trial the U.S Congress was considering
controversial bill the Immigration Reform and Control Act of 1982 that according to
then Texas Governor Bill Clements would change the direction of this state if it
-116-
becomes law App 169 F1454 Houston Post Sept 19 1982 at 15A The most
controversial provisions of the bill which because of Texas proximity to Mexico was
expected to have significant impact on Texas were stiff penalties against employers
who knowingly hire illegal aliens ii modest increases in the temporary worker program
and iii an amnesty program that would offer permanent resident status for millions of
illegal aliens App 171 F1455A App 176 F1458 App 154 P1356 Houston Post
Sept 26 1982 at 5GG and Sept 23 1982 at 11C Houston Chronicle Sept 30 1982
at 30 One of the bills sponsors argued that uncontrolled immigration can result
in harm to American values traditions customs our public culture institutions and way
of life and was creating an American with hostility cooking in his bosom out of fear he
will lose his job to illegal immigrants App 167 F1452 Houston Post May 29 1982
at 8B
13 Hispanic organizations opposed the bill fearing that penalties against
employers would lead to discrimination against all Hispanics U.S citizens as well App
171 F1455A Houston Post Sept 26 1982 at 5GG The most controversial provision
of the bill was addressed by House Majority Leader Jim Wright of Texas who apparently
recognizing the prejudice illegal aliens face in Texas said public is not prepared
to support total permanent blanket amnesty for aliens who can establish that
they have managed to evade the law for five or six years and thus claim some right of
status App 171 F1455A Houston Post Sept 26 1982 at 5GG Texas
Gov Bill Clements said am absolutely opposed to that bill and am doing everything
-117-
know how to do to see that bill never comes to vote in the U.S House App 169
F1454 Houston Post Sept 19 1982 at 15A He also was quoted saying that Texans
could wake up some morning and find millions of additional Mexican nationals and other
aliens living in their midst and dramatically altered quality of life if the bill passed
So you are talking about enormous pressures on our housing on our public
services on our social programs on our hospitals on our schools Theres
hardly anything that wouldnt suffer under pressures of this kind
And you know its not right for Texas It amnesty provisions
would change our quality of life in Texas Itll change the direction of this
state We just dont want it
see also App 149 F1065 Houston Post May 1982 at 2C syndicated columnist
GA Geyer argues that massive uncontrolled immigration from Mexico and Central
America weakens and may perhaps eventually destroy the fabric of nationhood that
holds the American people together
14 Other well-known personalities made even more explicitly prejudicial
comments One of the most graphic publicized in Houston only three days before jury
selection began in Guerras case was by Dare Booth Luce former U.S Ambassador to
Italy and widow of the founder of Time and jff magazines who warned that invading
aliens posed greater threat than the atom bomb and continued
Soon there will probably be as many Mexicans in Texas as there are
natives
Now vast majority of these are illegal Theyre coming in with wives
and sLster5 and nieces who get pregnant immediately because they can then
become American citizens and go on relief do not know how much more
we can absorb
-118-
the influx of aliens could be stopped there are bound to be
dreadful clashes in our society
In the 19th centwy the United States absorbed something like 40
million frnmzgranLi.. But the vast majority were of fundamental culture
and they were all white They were not black or bmwn or yellow And even
then we had problems ethnic discrimination
App 172 F1456 Houston Post Aug 28 1982 at 42E emphasis added quoting
interview in GED magazine
Study Claiming Illegal Aliens Burden the Welfare System
15 Just before Guerras trial began in articles published on Oct and Oct 11
1982 the Houston Chronicle reported on study warning that illegal aliens are growing
burden on the welfare system App 161 F1430 App 164-65 F1437-38 Houston
Chronicle Oct 1982 at and Oct 11 1982 at emphasis added The
study claimed to have evidence indicating that illegal aliens pay less in taxes then they
get in benefits and are applying for and receiving hundreds of millions of
dollars worth
of services -- at the same time these prognims are being cut back for disadvantaged
Americans App 161 F1430 Houston Chronicle Oct 1982 at emphasis
added The organization that conducted the study whose motives were suspect since
This study reinforced widely held view of undocumented immigrants as freeloaders
See e.g App 151 FlilOHouston Post June 15 1982 at 3B
Only few months earlier GAO report described in the Houston press claimed
that illegal aliens and other questionable cases collect $180 million in social security
benefits App 175 F1457A Houston Post June 1982 at 5A see also App 177
F1458A Houston Post May 23 1982 at Bi
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its members strongly opposed immigration reform App 164 F1437 Houston Chronicle
Oct 11 1982 at insisted that hemorrhage of our social welfare system could
result unless legislation was passed to clamp down on illegal immigration This report
flew in the face of extensive evidence cited in Plyler suggest that illegal aliens
underutilize public services while contributing their labor to the local economy and tax
money to the state fisc 457 U.s at 228
Ku Klux Klan Demonstration
16 Indications that the jurors were infected by the publicity surrounding this
trial and alleged consequences of having illegal aliens Mexicans in the community is
reinforced by the occurrence of Ku Klux Klan demonstration outside the Harris County
Court building following Guerras sentencing Guerra will show that three or four KKK
units marched and carried number of signs saying Houston will not tolerate illegal alien
crimes Guerra Got Justice and No Sympathy for Cop Killers
17 This is the type of prejudicial hostile environment that confronted Guerra
when he was arrested and convicted for the shooting of Harris The State took full
advantage of every opportunity from voir dire through closing argument to put the jury
on notice that Guerra was an illegal alien whose status could be considered by the jury
when deciding what type of person he is pp 127-28 infra
Union officials exhibited mixed reactions towards undocumented workers Some
Houston area unions attempted to organize them while others shared the attitude of one
prominent union leader Wed like to organize them workers in bunch
and send them back App 173 F1456A Houston Post Aug 1982 at Bi
-120-
The Jurors Were Aware of Antinlllegal Alien Issues Discussed in the
Media
18 Many of the jurors were aware of the Plyler decision the immigration and
reform debates in Congress and throughout the country as well as other issues concerning
illegal aliens in Texas Several citizens selected for the jury honestly expressed their
reservations concerning Guerras illegal status and the Supreme Courts decision in
Plyler.21 Although they insisted that they believed they could give Guerra fair trial they
expressed sentiments casting serious doubt on their true objectivity For example one
juror said that he disagreed with the Plyler decision and felt that one should be citizen
in order to qualify for free education S.F Vol at 296-97 Brennan Another juror
candidly admitted that Guerras status as an illegal alien would affect her view of the
type of person he is S.F Vol 21 at 3552-53 Whiteford.2
The Prosecutors Repeatedly Focused Jurors Attention on Illegal Aliens
During Voir Dire and Subtly Incited Prejudices Among the Jurors
19 During jury selection the State incorporated the negative connotations
associated with the term illegal alien into its questioning of numerous members of the
S.F Vol at 296-97 Brennan Vol at 693 Douthitt Vol 18 at 3276-77
Smith Vol at 874-75 Woods
Several people not picked for the jury candidly admitted bias and the belief that
illegal aliens should not have the same rights as citizens S.F Vol 10 at 1745-46 1763-66
Cook Vol at 414-17 421 436 439-40 Deckert Vol 11 at 1973-75 Grant Vol
at 1028-29 Matthews Vol 13 at 2230-34 Phillips Vol 10 at 1672-73 Sadler Vol
at 1175-79 Wilkinson
-121-
venire including several who were selected for the jury As described in notes 76 and 77
infra the State repeatedly mentioned that Guerra was an illegal alien to induce negative
feelings toward him The State then reinforced that patent appeal to
ethnic prejudice by
suggesting that knowing someone is an illegal alien gives some indication
of the type
person he is and that the jury could take
Guerras status into consideration during the
punishment phase of the trial The State thus inferred either that illegal
aliens are more
likely than others to commit acts of violence in
the future or that illegal aliens are more
deserving than others to receive the death penalty
At an evidentiary hearing Guerra will
show that the jurors discussed these matters during deliberations These circumstances
clearly violated the principle that one accused of crime is
entitled to have his guilt or
innocence determined solely on the basis of evidence introduced at trial Holbrook
Flynn 475 U.S 560 567 1986
Presence of Uniformed Officers in the Courtroom
20 At an evidentiary hearing Guerra will demonstrate that throughout the trial
up to 10 off-duty police officers in full uniform constantly
attended the trial assuming
prominent positions on the front rows of the gallery
Some officers would leave the
courtroom during recess or break only to be replaced by
other officers also in uniform
At an evidentiary hearing Guerra will show that during two critical stages
-- the first and
Guerra is not required to show that the jury was consciously affected however
Flynn 475 U.S at 570
-122-
last days of the guilt phase and the last day of the punishment phase -- 20-30 uniformed
police officers apparently attended representing as much as 50% of the spectators in the
gallery
21 The number of police officers present on the first day before any evidence
had been introduced in the trial branded the defendant with guilt The police officers
presence en masse heightened the hostile environment against Guerra Police epitomize
citizens concept of authority figures and their constant group presence during most
peoples work hours sent clear message to the jury that members of the police force
took special interest in this trial and sought to create the impression that they believed
Guerra was dangerous and untrustworthy see Flynn 475 U.S at 5692 and that they
were opposed to any finding that Guerra was not guilty compare Norris Risley 918
F.2d 828 830 9th Cir 1990
22 These uniformed police officers were not present to maintain courtroom
security Compare Caraway State 550 S.W.2d 699 Tex Crim App 1977 Chappell
State 519 S.W.2d 453 Tex Crim App 1975 Indeed there was no such threat
23 Instead the officers attending on their own time were present for one
reason they hoped to show solidarity with the killed officer Woods Dugger
flie officers in the gallery were not subjected to cross-examination of their opinion
that Guerra had committed the murder Thus though far more subtle than direct
accusation the message was all the more dangerous precisely because it was not
formal accusation not susceptible to traditional methods of refutation Norris
918 F.2d at 833
-123-
923 F.2d 1454 1459 11th Cir cert denied 112 Ct 407 1991 They were there to
communicate message to the jury they wanted conviction followed by the
imposition of the death penalty at 1460
24 By their presence particularly in uniform the officers at Guerras trial
violated his Sixth Amendment right to be tried by an impartial july interfered with his
presumption of innocence and deprived him of the right to confront and cross-examine
these silent accusers Compare Norris 918 F.2d at 831 833
25 Guerras counsel inexplicably failed to object to the presence of the officers
in the courtroom during the trial nevertheless the risk of jury intimidation by their
presence when viewed in the context of the entire trial including the egregious conduct
of the State throughout the trial process resulted in the deprivation of fundamental
The court should have permitted only spectators who were not wearing uniforms
For example in United States Yahweh 779 Supp 1342 S.D Fla 1992 the
court concerned about possible intimidating effect and influence on the july recognized
its duty to permit only spectators who were not wearing uniforms Spectators barred
included not only the defendants supporters who were prohibited from wearing their
religious garb in the courtroom but also Department of Public Safety witnesses
at 1344
In Norris the presence in the courtroom of only three women wearing buttons that
read Women Against Rape created an unacceptable risk of impermissible factors coming
into play by depriving him of both the presumption of innocence and his right to confront
and cross-examine his accusers Although the court recognized that it would never fully
know the extent to which the buttons influenced any juror it ruled that any consideration
of the buttons by the jurors would have been impermissible and that the risk that the
buttons affected the jurors thus tainted the defendants constitutional right to fair trial
918 F.2d at 834
-124-
fairness and due process of law Thus Guerra should be entitled to the relief requested
even though contemporaneous objection was not made pp 290-93 infra regarding
the preservation of error during trial
Conclusion
26 The cumulative effect of the negative pretrial publicity the negative and
prejudicial feeling held by some Houston residents toward illegal aliens
that was fanned
by the prosecution and the numerous uniformed police officer spectators
sent thinly
veiled message to the jury that it was the julys duty to find Guerra guilty
based not on
the evidence but on prejudice intimidation and fear
27 None of these factors were subject to the constitutional safeguards of
confrontation and cross-examination they are clearly the sort of impermissible factors
that courts must ensure receive no weight Norris 918 F.2d at 830 Yet these
extraneous factor intruded into the process influenced the jurors during both the
guilt-innocence and sentencing phases of Guerras trial and posed an unacceptable
risk
that the jurys deliberations were infected by impermissible factors
-125-
THE PROSECUTORS APPEAL TO ETHNIC PREJUDICE BY URGING
JURORS TO CONSIDER GUERRAS STATUS AS AN ILLEGALALIEN
WHEN ASSESSING PUNISHMENT VIOLATED HIS RIGH1S UNDER
THE FW1H SIXTH AND FOURTEENTH AMENDMENTS TO THE
U.S CONSTITUTIONAND ARTICLE SECflONS 3A 10 13 AND
19 OF THE TEXAS CONSTiTUTION
The prosecution against Guerra had the perfect case to appeal to the
communitys prejudice Guerra was an undocumented Mexican
national who spoke little
English and had been in the United States less
than two months Moreover Guerra was
charged with killing white Anglo police officer It remains an
unfortunate fact in our
society that violent crimes perpetrated against
members of other racial or ethnic groups
often raise reasonable possibility that racial prejudice would
influence the jury
Turner Murray 476 U.S 28 35 n.7 1986 quoting Rosales-Lopez United States 451
U.S 182 192 1981 bracketed phrase in original
The prosecution could not resist an appeal to prejudice to bolster its case
Throughout voir dire prosecutors repeatedly emphasized that
Guerra was an illegal
alien Moreover prosecutors expressly instructed three members of Guerras jury that
during the punishment phase of trial the jury could
consider his status as an illegal alien
as factor in evaluating his character and assessing what type
of person he is S.F
2See e.g S.F Vol 13 at 2397-98 Brown Vol 15 at 2603-04 Brumley Vol at
965 Kellogg Vol 12 at 2077 Martenis Vol 19 at 3489 Petty
Vol 18 at 3253-54
Smith Vol 19 at 3552-53 Whiteford Vol at 864-65 Woods
-126-
Vol 15 at 2603-04 Brumley S.F Vol 18 at 3253-54 Smith S.F Vol 19 at 3552-54
Whiteford
During closing argument in the punishment phase the prosecution again
invoked prejudice as its ally The prosecution stated answers
will demonstrate
what type of person Guerra was while he was in our community
for less than two
months after coming here from Monterrey Mexico S.F Vol 27 at
165 emphasis
added The prosecutor continued his closing the other residents
of 4907 Rusk
know just exactly what we as cisizens of Harris County think about
this kind of conduct
S.F Vol 27 at 179 emphasis added
This repeated encouragement by the State with court approval permitted
the jury to consider its emotions passions
and prejudices against illegal aliens which
meant Mexican nationals to Guerras neighbors App 15 F24 This prosecutorial
iProsecutors told juror Leah Brumley that the fact Guerra was an illegal
alien
was information that the jury can consider in deciding what type of person
he is S.F
Vol 17 at 2603-04 Prosecutors informed juror Tommy Ray Smith that Guerras status
as an illegal alien might help in answering the sentencing questions
that would determine
whether Guerra would be executed S.F Vol 18 at 3254 Defense counsel failed to
object in either instance but these comments
are fundamental error that cannot be waived
as Guerra will demonstrate pp 131 290-93 infra
Finally despite the objection of defense counsel prosecutors
were allowed to
instruct juror Constance Whiteford that the fact that person
is in someone elses
country unlawfully or has come into country illegally
could be evidence the jury could
consider about what type of person he is S.F Vol 19 at 3552
Not only did these thinly veiled appeals to prejudice induce the jury to sentence
Guerra to death but they won the apparent approval of the Ku Klux Klan Guerra will
continued..
-127-
conduct -- particularly in the context of hostile environment
awards illegal aliens as
detailed at pp 113-21 supra -- created strong appeal for the jury to rely principally
on
ethnic prejudice
Prosecutorial appeals to prejudice are constitutionally prohibited See e.g
McCleskey Kemp 481 U.S 279 309 n.30 1987 see also McFarland Smith 611 F.2d
414 416-17 2d Cir 1979 United States Sanchez 482 F.2d 5th Cir 1973
Appeals to prejudice distort the search for truth and drastically
affect jurors
impartiality United States Doe 903 F.2d 16 25 D.C Cir 1990 see United States
ex rel Haynes McKendrick 481 F.2d 152 157 2d Cir 1973 The racial ethnic and
ancestral fairness of judicial proceedings is an indispensable ingredient
of due process and
hallmark of justice 903 F.2d at 25 see Batson Kentucky
476 U.S 79 89
1986 Vasguez Hillerv 474 U.S 254 262 1986 Thus considering
the context any
reference to race ancestry or ethnic background can constitute an appeal
to prejudice
903 F.2d at 25 see also United States Chase 838 F.2d 743 750 5th Cir
cert denied 486 U.S 1035 1988 Indeed the line between permissible argument
and
an appeal to prejudice is crossed anytime the argument shifts its emphasis
from evidence
to emotion Doe 903 F.2d at 25
2...continued
show that on October 16 1982 after he was sentenced several Klan
units paraded outside
the Harris County Court building carrying signs emblazoned
with slogans eerily similar to
the prosecutions closing argument HOUSTON WILL NOT TOLERATE ILLEGAL
ALIEN CRIMES and GUERRA GOT JUSTICE
-128-
The prejudicial effect of the prosecutions instructions cannot be
underestimated In trial for crime of interracial violence the prosecutions statements
present special danger Turner 476 U.S at 36 n.8 And the risk of racial prejudice
infecting capital sentencing proceeding is the most serious risk of all
because of the
complete finality of the death penalty at 35
Under Texas law the only issue during the sentencing phase to which
Guerras character is relevant is future dangerousness whether he will constitute
continuing threat to society There was no evidence -- and could be none
-- associating
undocumented Mexican nationals per se with bad character or proclivities to
commit
violent acts Accordingly Guerras immigration status was totally irrelevant to the
As one court observed
Undeniably prosecutorial remarks kindling racial or ethnic predilections can
violently affect jurors impartiality Comments of that sort are especially
egregious because of the possibility that the jury will give special weight to
the prosecutors arguments not only because of the prestige associated with
his office but also because of the fact-finding facilities presumably available
to him Just how much influence the prosecutors summation exerted upon
the jury is of course incapable of precise measurement but its portent for
harm is ominous
Doe 903 F.2d at 28 footnotes omitted The average juror indeed some lawyers do not
know that many of our constitutional protections extend to aliens as well as citizens
United States Herrera 531 F.2d 788 790 5th Cir 1976
signal the jury that defendant is more deserving to die because he is an illegal
alien denies undocumented persons basic humanity Undocumented persons are entitled
to the same fundamental constitutional rights of due process and equal protection of the
laws that are guaranteed to all persons within the territorial jurisdiction of the United
continued..
-129-
sentencing proceeding The prosecutors transparent and pernicious
motive was to appeal
to the basest prejudice in any juror who viewed illegal aliens as dangerous
class to be
feared simply because of their ethnicity and status
The appeal to prejudice during the prosecutions closing argument
was plain
error Viereck United States 318 U.S 236 248 1943 prosecutor is the
representative not of an ordinary party to controversy
but of sovereignty whose
obligation to govern impartially is as compelling
as its obligation to govern at all and
whose interest therefore in criminal prosecution is not that it shall
win case but that
justice shall be done
In their quest for victory Guerras prosecutors lost sight of
their role as truth
seekers and turned to constitutionally impermissible prejudice as their ally
10 Neither Guerras sentence nor his conviction can stand against the
prohibition of appeals to prejudice in violation of
Guerras rights under the Fifth Sixth
...continued
States Plyler 457 U.S at 213 Yick Wo Hopkins 118 U.S 356 369 1886 II the
state legislature had imposed different and higher punishment
on Guerra than is
prescribed for all for like offense this would have been clear
violation of the Fourteenth
Amendment at 367-68 People Arellano 524 P.2d 305-06 Cob 1974
Dawson Delaware 112 Ct 1093 1097-98 1992 Even if there had been
some minuscule relevance the exclusionary rules of evidence apply at the punishment
phase of criminal proceeding Rumbaugh State 589 S.W.2d 414 415-16 Tex Crim
App 1979 Under these rules the prosecutions appeals to prejudice are inadmissible
Tex Crim Evid 403
-130-
and Fourteenth Amendments to the U.S Constitution and Article sections 3A 10 13
and 19 of the Texas Constitution
VL THE ADMISSION OF iRRELEVANT INFLAMMATORY VICflM
LMPACF EVIDENCE DURING THE GUILT-INNOCENCE PHASE
VIOLATED GUERRAS RIGHTS UNDER THE FW1F1 EIGHTH AND
FOURTEENTH AMENDMENTS OF THE US CONSTiTUTION AND
ARTICLE SECFIONS 13 AND 19 OF THE TEXAS CONSTiTUTiON
Admission of the Victim Impact Evidence During the Guilt-Innocence Phase
Violated the Fifth and Fourteenth Amendments to the US Constitution as
Well as Article Sections 13 and 19 of the Texas Constitution
As detailed at pages 100-01 supra in the guilt-innocence phase of the trial
the prosecutors repeatedly pleaded with the july to consider
the prosecutors as
representatives of the victims families and repeatedly sought sympathy for the
victims by
showing in graphic detail the grisly autopsy photographs of Officer Harris
The
prosecutors then obtained graphic descriptions from
Mrs Harris of the last days of her
husbands life with her and the children Finally to enhance the potently emotional
arguments being made to the july the prosecutors invited Mrs Armijos testimony about
how her son Jose Jr had changed for the worse since his fathers death death for
which Guerra was not being charged
-131-
The Victim Impact Evidence Was Irrelevant and Inadmissible Under
Texas Law
Only relevant evidence is admissible in criminal trial Tex Crim Evid
402 Evidence is relevant if it has any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable
or less probable than
it would be without the evidence at 401 Hardships faced by victim as result of
crime or the after-effects of crime on its victim are not relevant and are inadmissible
during the guilt-innocence phase of bifurcated trial Miller-El State
782 S.W.2d 892
895 Tex Crim App 1990 Brown State 757 S.W.2d 739 740-41 Tex Crim App
1988 Garrett State 815 S.W.2d 333 336-38 Tex App.--Houston Dist 1991 pet
refd Similarly it is reversible error for the trial court to permit the State to introduce
evidence of murder victims good character Armstrong State 718 S.W.2d 686 695-
96 Tex Crim App 1985 Both types of testimony cause extreme prejudice
Guerras counsel objected to the testimony of both Mrs Harris and Mrs
Armijo but was overruled S.F Vol 23 at 633 635 709 The prosecution made no
Justice Cohen pointed out in Brown the harm and prejudice that result from the
introduction of victim impact testimony during the guilt-innocence phase of
criminal trial
can not be underestimated 692 S.W.2d 146 154-55 Tex App 1985 dissent affd 757
S.W.2d 739 1988 agreeing with Justice Cohens conclusion that the victims emotional
testimony regarding the after-effects of the rape was inadmissible
There is little doubt
that testimony by victim about the suffering caused by the commission
of crime
prejudices jury against defendant at 154 Victim impact testimony
of this nature
is unquestionably used by the prosecution solely to mislead
the jury from the
issue of guilt by creating justifiable sympathy for an injured victim Focusing the
jurys attention on the victims severe injuries is winning trial tactic for the
State in
criminal action because it tends to distract the jurys attention from weaknesses in the
case 155 Justice Cohen correctly concluded that there was no place in the
guilt-innocence phase of criminal trial for the use
of victim impact evidence at 154
-132-
effort to justify either womans testimony as
relevant to the sole issue before the jury --
whether Guerra was guilty of Officer Harriss murder Indeed the State
could not have
made such showing since the nature and effect of the testimony
-- in addition to being
highly inflammatory -- unquestionably
had no tendency to make the existence of any fact
of consequence to the determination
of guilt more probable or less
probable The trial court therefore clearly
committed reversible error in admitting
the testimony over Guerras objection Moreover that error was
of fundamental
constitutional consequence
Given the centrality of the testimony to its case the State obviously could not prove
beyond reasonable doubt that
the error made no contribution to the conviction
Tex App Proc 81b2 Arnold State 786 S.W.2d 295 297 Tex Crim App 1990
Indeed the constitutional nature of the error
here so fundamentally undermined the
fairness of the trial that it was harmful as matter of law Arnold
786 S.W.2d at 297
n.6 citing Satterwhite Texas 486
U.S 249 253 1988 Inexplicably Guerras appellate
counsel on his direct appeal apparently failed to raise
the error Neither the majority nor
the dissent mentions the testimony See generally Guerra State 771
S.W.2d 453 Tex
Crim App 1988 en banc cert denied 109 Ct 3260 1989
Signiflcantly the prosecutions use
of victim impact evidence at Guerras trial if
done today would violate Texas law and evidentiary
rules After balancing the danger of
prejudicing jurys verdict in the guilt-innocence phase against
the public interest in
considering victim impact evidence during
the sentencing phase the Texas legislature in
the Victim Impact Statute Tex Code Crim Proc Ann art
56.03 Vernon Supp 1992
precluded consideration by jury of
either victim impact statement or victim impact
witness testimony art 56.03f and permitted limited use
of victim impact statement
by court but only during the sentencing stage
of trial Under the statute the court
may not inspect victim impact statement
until after finding of guilt or until deferred
adjudication is ordered The statute
allows defendant but not the State the right
to attack with witness testimony the accuracy of victim impact
statement art
56.03e
-133-
Victim Impact Evidence During the Guilt-Innocence Phase of Guerras
Trial Rendered the Trial Fundamentally Unfair and Violated Guerras
Right to Due Process of Law Under the U.S Constitution
The Fifth and Fourteenth Amendments require States to ensure maintenance
of the fundamental elements of fairness in criminal trial Spencer State of Texas
385 U.S 554 563-64 1967 This is particularly true in capital case When
defendants life is at stake the Court has been particularly sensitive to insure that every
safeguard is observed Gregg Georgia 428 U.S 153 187 1980 Accordingly when
violation of states evidentiary rule results in the denial of fundamental fairness the
defendants right to due process is violated and federal habeas relief must be granted
Dudley Duckworth 854 F.2d 967 970 7th Cir 1988 cert denied 490 U.S 1011
1989 Cooper Sowders 837 F.2d 284 286 6th Cir 1988
If person is to be executed it should be as the result of decision based
on reason and reliable evidence Gholson Estelle 675 F.2d 734 738 5th Cir 1982
In evaluating whether violation of state evidentiary rule rises to constitutional
dimensions the issue is whether the probative value of the evidence outweighs the
prejudice to the accused United States ex rel Palmer DeRobertis 738 F.2d 168 171
7th Cir 1984 cert denied 469 U.S 924 1984 Dudley 854 F.2d at 970 DeRobertis
explains that
When it must be said that the probative value of such evidence though
relevant is greatly outweighed by the prejudice to the accused from its
admission then the use of such evidence by state may rise to the posture
of the denial of fundamental fairness and due process of law
-134-
738 F.2d at 171
government should not have the windfall of having the jury influenced
by evidence against defendant which as matter of law they should not consider but
which they cannot put out of their minds Bruton United States 391 U.S 123 129
1968 cert denied 397 U.S 1014 1970 finding Sixth Amendment violation It defeats
defendants constitutional right to the selection of jurors who possess mental attitude
of appropriate indifference United States Wood 299 U.S 123 145-46 1936 where
once trial begins the prosecution destroys that indifference by inflaming the jurys emotions
through appeals to act in sympathy for the victims family
In Dudley the state elicited testimony from codefendant who had agreed to testify
against the petitioner that the codefendant had received anonymous phone threats to his
life the night before testifying The court determined that the threat testimony in Dudley
was irrelevant to the defendants guilt or innocence 854 F.2d at 969-72 Further the
court found that the testimony prejudiced the petitioner even though the threats were not
traced to him or his co-defendants except by innuendo at 972 The resulting
prejudice was of such magnitude that the result denial of fundamental fairness
and mandated habeas relief Id
Similarly in Cooper the Sixth Circuit granted writ of habeas corpus because
several errors by the trial court combined to deny Coopers right to due process 837 F.2d
at 286-88 These errors included admitting police officer testimony that there was no
evidence to justify the arrest of any suspects other than Cooper suggesting that Cooper
was guilty and that the other suspects were innocent ii calling the police officer an
expert when under state law he was not and iii allowing police informant to testify
concerning his own reliability in other cases when this testimony was irrelevant and
prejudicial The cumulative impact of these evidentiary errors rendered the trial
fundamentally unfair
Arguments that the prosecutors represent the family of the deceased are error
compare Rougeau State 738 S.W.2d 651 657 Tex Crim App 1987 cert denied 485
U.S 1029 overruled on other grounds Harris State 784 S.W.2d Tex Cnm App
1989 since the prosecutor represents not the familys interest in retribution but the
sovereigns interest in fair trial Viereck 318 U.S at 248
-135-
In Guerras trial the State was no mere passive recipient of windfall
The
prosecutors orchestrated an emotional
assault specifically designed to burn irrevocably into
the jurors minds the profound tragedy of both the
murder for which Guerra was being
tried and another one for which he was not This conduct fails the
constitutional test
articulated in such cases as Dudley and DeRobertis
Guerras conviction was impermissibly obtained through the use of victim
impact evidence He thus was deprived of due process
under the Fifth and Fourteenth
Amendments to the U.S Constitution
The Victim Impact Evidence Also Rendered Guerras Trial
Fundamentally Unfair Under Article Sections 13 and 19
of the
Texas Constitution
The Texas Constitution also bars the fundamentally unfair prosecution
strategy and tactics employed to convict
Guerra of Officer Harriss murder The
introduction of the testimony of Mrs Harris and Mrs Armijo and the States relentless
emphasis on the victims from voir dire to closing argument
violated Guerras right to due
course of law under Article sections 13 and 19 of the Texas
Constitution
10 Texas constitutional due process rights are at least as broad as those
provided under the U.S Constitution.M The Texas Constitution
like its federal
Siegel State 814 S.W.2d 404 409 Tex App.--Houston Dist 1991 pet
refd accord Webb State 278 S.W.2d 158 160 Tex Crim App 1955 McMurrin
State 239 S.W.2d 632 633 Tex Crim App 1951 cert denied 342 U.S 874 1951
Price Junction 711 F.2d 582 590 5th Cir 1983 Moore Port Arthur
Indep Sch Dist 751 Supp 671 673 E.D Tex 1990 compare Heitman State
815
S.W.2d 681 Tex Crim App 1991 en banc Texas Constitution Article section
affords broader rights than Fourth Amendment see pp 279-87 infra discussing broader
due process guarantees in Texas Constitution
-136-
counterpart requires that an accused be accorded
that fundamental fairness that is
essential to the very concept of justice Siegel 814 S.W.2d at 410 denial of due
course of law occurs in criminal trial whenever an absence of fairness fatally
infects the
proceeding and renders it fundamentally unfair Webb 278 S.W.2d at 160 McMurrin
239 S.W.2d at 633
11 The prosecutions conduct in this case is quite similar to actions that resulted
in the reversal of conviction in Stahl State 712 S.W.2d 783 Tex App.--Houston
Dist 1986 749 S.W.2d 826 Tex Crim App 1988 In overturning Stahls conviction
the Texas Court of Appeals held that the mothers outburst during her
identification of
her son the victim and the prosecutors closing argument that emotionally appealed
to
the jury on behalf of the mother and family requesting that justice
be done at
791-92 interfered with the jurys verdict by inflaming and prejudicing the minds of
the
jury at 792 The Court specifically criticized the State for neglecting
to exercise its
responsibility to maintain the evidence and argument within proper
bounds
12 Similarly during Guerras trial the prosecution orchestrated strategy
of
focusing the jury on the victims both living and dead Worse neither
the trial court nor
the prosecutors even attempted to justify the testimony
of Mrs Harris and Mrs Armijo
as relevant or to otherwise restrict that testimony and the prosecutors closing arguments
to issues of guilt or innocence As such the State violated
Guerras right to due course
of law under Article sections 13 and 19 of the Texas Constitution and the conviction
and sentence must be reversed
-137-
The Admission of Prejudicial Victim Impact Testimony at the
Guilt-Innocence Phase of Guerras Trial Violated the Eighth and Fourteenth
Amendments to the U.S Constitution
The Victim Impact Testimony Resulted in the Arbitrary and
Capricious Imposition of the Death Penalty
13 The Eighth Amendment prohibits the infliction of cruel and unusual
punishment Punishment for crime must be graduated
and proportioned to the offense
Gregg Georgia 428 U.S 153 172 1976 In addition the Eighth Amendment requires
that punishment should be directly related to the personal culpability
of the criminal
defendant and the sanction imposed conduct must not be so totally
without
penological justification that it results in the gratuitous
infliction of suffering Penrv
ynaugh 492 U.S 302 319 1989
14 The Supreme Court in analyzing Eighth Amendment concerns has
recognized that the death penalty is an extreme punishment
suitable to only the most
extreme of crimes Gregg 428 U.S at 172 Moreover because of the uniqueness
and
finality of the death penalty it may not constitutionally
be imposed under sentencing
procedures that create substantial risk
that it will be inflicted in an arbitrary and
capricious manner The Eighth and Fourteenth Amendments do not permit
the wanton
or freakish imposition by states of the death penalty Rather any decision to impose
the death sentence must be and appear to be based on reason rather than caprice or
emotion Booth Maryland 482 U.S 496 508 1987 quoting Gardner Florida 430
U.S 349 1977 overruled on other grounds Payne Tennessee 111 Ct 2597 1991
Accordingly capital jury is constitutionally required
to make an individualized
-138-
determination of whether defendant should be assessed the death penalty based on the
character of the individual and the circumstances of the crime Zant Stephens 462
U.S 862 878-79 1983 emphasis in the original Rushing Butler 868 F.2d 800 804
5th Cir 1989
15 The admission at trial of highly inflammatory victim impact evidence as
described earlier in this petition see pp 100-05 supra -- testimony with no probative
value regarding the existence of single element of the offense
with which Guerra was
charged -- caused the jury to sentence Guerra to death in an arbitrary
and capricious
manner This emotionally charged and wholly irrelevant testimony was purposely
introduced by the prosecutor to inflame the jurys passions to create clamor
for
accountability for the death of Officer Harris regardless of whether
the accused was guilty
beyond reasonable doubt The nature and presentation
of the evidence was contrary
to any notion of rational individualized assessment
of whether Guerra was guilty To
the contrary it was blunt appeal to sorrow and anger divorced
from any element of the
crime It is impossible that Guerras jury remained dispassionate in the face of
Mrs
Harriss and Mrs Armijos testimony performing their constitutional obligation to
determine Guerras guilt based solely on the evidence of his alleged actions
16 The Supreme Court recently reiterated the constitutional requirement that
sentences of death be based solely on determinations of individual culpability
In Dawson
Delaware 112 Ct 1093 1992 the State introduced evidence of the defendants
In Rushing the Fifth Circuit relied in part upon Booth decision recently
overturned by the Supreme Court on other grounds pp 142-44 infra
-139-
membership in violent white supremacist organization during
the sentencing phase
following defendants murder conviction On First Amendment grounds the Court
reversed the Delaware Supreme Court finding that such evidence had no relevance to
the sentencing proceeding and instead seemed intended solely to appeal to jurors sense
of outrage at 1098
17 Guerra like Dawson stands to die based on guilt by association -- here
mere association with the events leading to the crime The Eighth Amendment requires
that the determination of guilt in capital trial be accomplished without blatant
State
appeals to emotions rather than relevant evidence because
the jury failed to make an
individualized determination of Guerras guilt writ must be issued
The Use of the Victim Impact Testimony During the Guilt Phase
Unconstitutionally Destroyed the Bifurcated Capital Trial Procedure
Mandated By the Eighth Amendment
18 The Eighth Amendment which applies to the States through the Fourteenth
Amendment further places substantial restrictions on the manner in which States may try
and sentence capital defendants See generally Gregg 428 U.S at 188 The death
penalty cannot be imposed under procedures that create
substantial risk of arbitrary and
capricious sentencing
19 In Gregg the Court discussed the special problems that arise and that must
be addressed by acceptable sentencing procedures when single jury both determines the
guilt or innocence of the accused and if guilty his sentence at 191
The Court
approved the constitutionality of the bifurcated capital
trial procedure which completely
separates the determination of guilt or innocence from the
determination of sentence
-140-
at 162-63 191-92 but emphasized that if one jury is used to determine both guilt
and
sentence prosecutors must isolate prejudicial evidence solely
relevant to death sentence
questions from the guilt-innocence phase of the trial at
190 Texas law mandates such
bifurcated capital trial Tex Code Crim Proc Ann art 37.071 Vernon Supp 1992
Jurek Texas 428 U.s 262 267 1976
20 The Gregg Court emphasized that of the information that is relevant
to the sentencing decision may have no relevance to the question of guilt or may even
be
extremely prejudicial to fair determination of that question 428
U.S at 190 emphasis
added Significantly the sole rationale given by the Court for its approval of the
bifurcated capital trial procedure is the fact the such procedure would prevent juriesfrom
hearing highly prejudicial evidence relevant only to sentencing prior to determining
the guilt or
innocence of defendant at 190-92 According to the analysis
of the drafters of the
Model Penal Code which is cited by the Court the prior criminal record of the accused
is an example of the type of unfairly prejudicial evidence that must
be kept from the jury
until after guilt or innocence is determined Jçi
21 If as Gregg suggests admission of capital defendants prior criminal record
is too inflammatory for jury to hear before weighing the evidence of guilt or innocence
then the same must certainly be true for victim impact evidence Such evidence is surely
less relevant than prior record it has no probative value on the issue of the guilt or
innocence of the defendant and it can serve only to arouse the jurors sympathy and
indignation Thus the admission of victim impact evidence at Guerras trial
in addition
-141-
to its irrelevance breached the constitutional wall erected by Gregg and by Texas law
between the guilt-innocence and sentencing phases of Guerras trial
22 Under the Eighth and Fourteenth Amendments Texas law and the rationale
of Gregg Guerra was entitled to have jury decide his guilt or innocence without
exposure to highly prejudicial evidence that was relevant only
if at all to the question of
an appropriate sentence
23 The trial court deprived Guerra of that right The prosecutors asserted that
they represented the victims family and they relied on
the victim impact testimony in
making highly emotional appeal for guilty verdict during closing argument
The
States conduct with respect to the victim impact testimony as permitted by the trial court
resoundingly defeated the very purpose of the bifurcated trial procedure required by
Texas
law and ratified by the Supreme Court Accordingly Guerras trial violated his Eighth
Amendment right to be free of an arbitrary and capriciously obtained capital sentence
Payne Tennessee Permits Victim Impact Testimony at the Sentencing
Phase Only
24 Because of profound concern that victim impact testimony could never be
employed in manner that did not violate capital
defendants due process and Eighth
Amendment rights the Court until recently even barred the use of such testimony during
the sentencing phase of capital trials South Carolina Gathers 490 U.S 805 810-
12 1989 Booth 482 U.S at 502-09 In Booth and Gathers the Court ruled that the
introduction of such evidence created constitutionally unacceptable risk that the jury
might impose the death penalty in an arbitrary and capricious manner
Gathers 490 U.S
-142-
at 810-11 Booth 482 U.s at 509 Implicit in Booth and Gathers was
the constitutional
principle that the introduction of prejudicial victim impact
evidence not relevant to issues
of guilt or innocence during the guilt-innocence phase
of capital trial also violates the
Eighth Amendment
25 Recently in Payne Tennessee 111 Ct 2597 1991 the Court explicitly
overruled Booth and Gathers but only insofar as those decisions barred victim impact
testimony from use in the sentencing phase of capital trials Nothing
in Payne addressed
or can be read to imply that the Court now allows use of victim impact testimony during
the guilt-innocence phase of such trial Payne
111 Ct at 2605-10 compare
Gathers 490 U.S at 810-12 and Booth 482 U.S at 502-09
26 Indeed the Court admonished that its opinion must be construed narrowly
The majority in Payne cautioned that holding today
is limited to the
holdings of and to the effect that
evidence and argument relating to the
victim and the impact of the victims death on the victims family are
inadmissible at
capital sentencing hearing 111 Ct at 2611 n.2 emphasis added Thus by its own
terms Payne only applies to the use of victim impact
evidence at the sentencing phase of
capital trial
The recent Fifth Circuit decision in Black Collins 962 F.2d 394 408 5th Cir
1992 is not at odds with this analysis The habeas petitioner in Black argued
that the
admission of inflammatory prejudicial victim impact evidence during
both the
guilt/innocence phase and sentencing phase of
his trial violated his Eighth Amendment
rights The Texas Court of Criminal Appeals
had concluded that the petitioner was
procedurally barred from complaining of the
States closing argument to the jury for
failure to object at trial jç The Fifth Circuit examined the merits of only the claim that
the introduction of victim impact evidence during the sentencing portion
of his trial
continued..
-143-
27 Guerras trial was fundamentally unfair because victim impact testimony was
introduced and relied on by the State during the guilt-innocence phase thus violating his
rights under the Fifth Eighth and Fourteenth Amendments to the U.S Constitution and
Article sections 13 and 19 of the Texas Constitution
VII THE TOTALITY OF THE CIRCUMSTANCES SURROUNDING THE
INVESTIGATION AND TRIAL DENIED GUERRAS RIGHT TO DUE
PROCESS OF LAW UNDER THE FIF1H AND FOURTEENTh
AMENDMENTS TO THE UNiTED STATES CONSTiTUTION AND
DUE COURSE OF LAW UNDER ARTICLE SECHONS 13 AND 19
OF THE TEXAS CONSTITUTION
Guerra was found guilty of capital murder due solely to severely tainted
witness testimony -- testimony that changed materially over time was materially
inconsistent among the witnesses and was in virtually all respects contrary to definitive
physical evidence that the prosecutors ignored With no evidence physical or otherwise
to support its highly suspect gun switch theory the State21 relied on highly improper
police procedures to manipulate witnesses until they finally identified Guerra as the
...continued
violated the Eighth Amendment In accordance with Payne the Fifth Circuit found
that the claim lacked arguable merit The Black court did not evaluate the properly
preserved claim asserted here -- that victim impact evidence introduced in the
guilt-innocence phase is unconstitutional
2111n determining whether due process violation exists the Texas Court of Criminal
Appeals has declined to distinguish different agencies under the same government
focusing instead upon the prosecuting team which includes both investigative and
prosecutorial personnel Ex parte Brandley 781 S.W.2d 886 892 n.7 Tex Cnm App
1989 cert denied 111 Ct 611990 appeal filed Accordingly references to the
State will include the prosecution and/or the police
-144-
shooter Improper pretrial procedures used by the State included police intimidation
of witnesses allowing witnesses to see Guerra in handcuffs an unnecessarily suggestive
lineup jointly viewed during which witnesses were allowed to converse identify Guerra
and subject each other to pressure attempts by police to skew the lineup against Guerra
police-orchestrated reenactment of the crime at the scene the pretrial witness viewing
of mannequins and pictures with the prosecution describing Guerra as the shooter and
the use of the mannequins in the courtroom to aid State witnesses with their in-court
identifications of Guerra and to elicit coached testimony from State witnesses
Guerras counsel did not request pretrial hearing regarding the suggestiveness of
the pretrial lineups probably because at that time the State had concealed evidence that
the lineups were impermissiblysuggestive Landano Rafferty 670 Supp 570 575
D.N.J 1987 856 F.2d 569 3d Cir 1988 cert denied 489 U.S 1014 1989 basis
for petitioners argument that he suffered deprivation of his due process right to fair
trial as result of the improper admission of tainted identification testimony resulted from
information discovered subsequent to the underlying trial pp 204-06 infra as to
ineffective assistance claim Ms Diazs post-lineup statement misleadingly suggests that
the lineup was conducted properly where it states that witnesses were asked to identify
Guerra separately App 14 F23 Ms Garcias statement was equally misleading where
it states After viewing the lineup was called outside the lineup room and asked by
if recognized anyone App Fil Ms Galvans statement provides that
she identified Guerra attending the lineup App F9
Counsels failure to object did not waive this issue for three reasons First waiver
should not be permitted in capital cases pp 290-93 infra Second failure to object
should not be treated as waiver when the evidence necessary to be aware of that claim
was withheld by the State Cf Landano 670 Supp at 575 Finally this is fundamental
constitutional error See Johnson State 486 U.S 578 587-91 1988 compare Ake
State 470 U.S 68 74 1985 habeas court can reach merits if state court has
fundamental error exception to its regular procedural default rules and fundamental
federal constitutional error is encompassed therein jjh Williams State 773 S.W.2d
525 529-35 Tex Crim App 1988 cert denied 493 U.S 900 1989 Fuller State 829
S.W.2d 191 209 Tex Crim App 1992 pet filed and Porter State 623 S.W.2d 374
384-85 Tex Crim App 1981 cert denied 456 U.S 965 1982
-145-
Under the Texas Constitutions broad due process protections Article
sections 13 and 19 279-87 infra or under the Court of Criminal Appeals
interpretation of the federal due process provision the States blatant misuse of
investigative procedures should require the automatic exclusion of the putative
identifications in this case Even using the more restrictive totality of the circumstances
test articulated by the United States Supreme Court in Manson Brathwaite 432 U.S
98 1977 it is difficult to imagine more compelling case requiring exclusion of the
tainted eyewitness testimony
The Applicable State and Federal Constitutional Legal Standards
The Federal Standards
The ReliabilitylFotality-of-Circumstances Test as Interpreted
by Manson
The United States Supreme Court has expressly adopted totality of the
circumstances test that purports to allow admission of identification testimony if it
appears reliable even if it has followed improper police behavior
Manson
Brathwaite 432 U.S 98 114 1977
In United States Wade 388 U.S 218 1967 the Supreme Court recog
nized the dangers inherent in pretrial identifications The Wade Court understood that
when an eyewitness identifies the suspect for all practical purposes the case is over
The trial which might determine the accuseds fate may well not be that in the
courtroom but that at the pretrial confrontation with little or no effective appeal from
the judgment there rendered by the witness -- thats the man at 235-36 More
-146-
importantly the Court has noted the risk that the innocent may be convicted based on
witnesss mistaken identification The vagaries of eyewitness identification are well-
known the annals of criminal law are rife with instances of mistaken identification Id
at 228
Accordingly the consequences of mistaken identification are most harmful
in cases where the conviction rests heavily on eyewitness identification Manson 432
U.S at 1O7 The frailty of human perception and memory often lead to mistaken
identification of the accused Wade 388 U.S at 228
Procedures that induce witness to identify particular individual will
magnify this potential for error Dispensa Lynaugh 847 F.2d 211 218 5th Cir 1988
The 1977 Manson case is the most recent exposition by the Supreme Court of the
analysis to be used when prisoner files writ of habeas corpus alleging the use of
improper identification procedures by the police and the introduction of tainted evidence
While Manson involved the use of photo array for identification purposes the Court
framed the issue as whether the Fourteenth Amendments due process clause compels
exclusion of pre-trial identification evidence obtained by police procedure that was both
suggestive and unnecessary or whether reliability should nonetheless be considered 432
U.S at 99 Because of the broad language pre-trial identification evidence Manson has
been applied to pretrial identification procedures generally as well as to photographic
identification procedures United States Williams 592 F.2d 1277 1281 5th Cir
1979 The same bipartite inquiry regarding photographic spreads is applicable to
other types of confrontation procedures such as the line-up.
Persuasive procedures need not be overt and may be subtle Exposure and even
false information about an event through means of questions containing presuppositions
can supplement or even transform memory Neil McCabe The Right to Lawyer at the
Lineup Support from State Courts and Experimental Psychology 22 md Rev 905 909
1986 Memory it appears is extremely fragile and can be supplemented altered or
even restructured by as simple an instrument as strong verb imbedded unnoticed in
question about the event concerned quoting Loftus Ketcham The Malleability
of Eyewitness Accounts in Evaluating Witness Evidence Lloyd-Bostock Clifford
eds 1983
-147-
Loftus Witness for the Defense 53 1991 ed. As the court recognized in Neil
Biggers 409 U.s 188 198 1972 Suggestive confrontations are disapproved because
they increase the likelihood of misidentification and unnecessarily suggestive ones are
condemned for the further reason that the increased chance of misidentification is
gratuitous In fact where an eyewitnesss identification is the product of an impermissibly
suggestive pretrial procedure the admission into evidence of such identification can result
in denial of due process Manson 432 U.S at 106 Stovall Denno 388 U.S 293 301-
02 1967 the conduct of confrontation may be so unnecessarily suggestive and
conducive to irreparable mistaken identification that it denies due process of law
Nevertheless unnecessarily suggestive identifications are not subject to per
se exclusion Manson 432 U.S at 114 Instead admissibility of identification evidence is
governed by the two-step analysis enunciated in Manson at 107 The initial inquiry
is whether the identification procedure was unnecessarily suggestive Second the
court must determine if the identification was so unreliable that the defendants due
process right to fair judicial procedure should have precluded an identification at trial
at 114 identification found to be reliable will be admitted even though the
confrontation procedure was suggestive Passman Blackburn 652 F.2d 559 569 5th
Cir 1981 cert denied 455 U.S 1022 1982 480 U.S 948 1987.2
While the State may argue that evidence of the reliability of an identification must
go to weight rather than admissibility such an argument should be rejected
Such arguments in identification cases generally both beg the question and
misapprehend the issue The evidence of reliability court looks to in
determining if an identification may be admitted into evidence is if it is
continued..
-148-
To measure whether an in-court identification is reliable despite an earlier
impermissibly suggestive and usually out-of-court identification is to determine whether
under the totality of the circumstances the suggestion connected with the earlier
identification was so corrupting that it led to substantial likelihood of irreparable
misidentification Id see 409 U.S at 188 Simmons United States 390 U.S 377
384 1968 on remand United States Garrett 395 F.2d 769 7th Cir 1968 The same
standard with the deletion of irreparable also applies when the issue is the admissibility
of testimony as to the earlier identification Rodriguez Young 906 F.2d 1153 1167 7th
Cir 1990 cert denied 111 Ct 698 citing ii409 U.S at 198 This requirement
of minimally acceptable reliability has obtained constitutional stature because of the great
evidentiary impact and statistically questionable validity of an eyewitnesss identification
from the stand of defendant as the perpetrator of criminal act Napoli 814 F.2d at
1156 see Wade 388 U.S at 228 n.6 citations omitted noting unreliability of
eyewitness testimony
Noting that reliability is the linchpin in determining the admissibility of
identification testimony the Manson Court listed several factors to be considered in
2...continued
otherwise admissible to large extent the same evidence jury looks to in
determining whether to rely on the identification once it is admitted
Citations omitted The analyses are quantitatively similar The difference
and it is crucial difference is between the degree of reliability required to
admit the evidence on the one hand or to credit it once it is admitted on
the other
United States ex rel Kosik Napoli 814 F.2d 1151 1156 n.9 7th Cir 1987 see Stovall
388 U.S at 928
-149-
determining the reliability of eyewitness testimony 432 U.S at 114 citing jj409 U.s
at 199-200 These factors include the witnesses opportunity to view the criminal
at the time of the crime ii the witnesses degree of attention iii the accuracy of
the witnesses prior description of the criminal iv the level of certainty demonstrated
at the confrontation and the time between the crime and the confrontation jci.
Against these factors is to be weighed the corrupting effect of the suggestive identification
itself Isit2
10 When analyzing these factors the burden is on the prosecution to establish
by clear and convincing proof that the in-court testimony is not the fruit of an earlier
unnecessarily suggestive identification procedure Herrera State 682 S.W.2d 313 318
Tex Crim App 1984 cert denied 112 Ct 1074 1992 state must demonstrate the
independent origin of in-court identification following an improper or illegal lineup by
Psychological studies demonstrate that improper pretrial procedures that affect
witnesss identification of suspect as the criminal permanently taint the witnesss mind
and destroy the reliability of the later in-court purported identification McCabe
supra note at 909 It is difficult to imagine how courts in hindsight can purport to
be able to determine the source of witnesss identification based on Mansons simplistic
five factor test particularly where counsel for the defendant has no means to recreate the
pretrial confrontation Manson 432 U.S at 114 Undeniably the complexity of the
human mind makes determining the effects of outside influences difficult if not entirely
impossible Guerra urges Texas not to indulge legal fiction that undoubtedly has
resulted in the denial of Guerras due process rights
The phrase clear and convincing evidence has been defined as clear explicit and
unequivocal so clear as to leave no substantial doubt and sufficiently strong to
command the ofi unhesitating assent of every reasonable mind Martinez
State 437 S.W.2d 842 849 Tex Crim App 1969 citing In re Jost 256 P.2d 71 74
1953
-150-
independent origin of in-court identification following an improper or illegal lineup by
clear and convincing evidence Finally in applying the factors each case must be decided
on its own facts Simmons 390 U.S at 384
11 Under the case law then the Court is asked to evaluate each State
investigative procedure to assess if it amounted to denial of due process In addition
the court may evaluate the States collective procedures to determine if these attempts to
manipulate its witnesses testimony coupled with other prosecutorial misconduct have
resulted in the denial of the defendants right to due process
The Totality of Circumstances Test as Interpreted by Brandlev
12 In Ex parte Brandley the Texas Court of Criminal Appeals in habeas case
recognized that the states investigative procedures as whole may be so improper that
they may result in the denial of the accuseds rights to due process of law 781 S.W.2d
886 891 Tex Crim App 1989 citing Foster California 394 U.S 440 1969
Dispensa 847 F.2d at 218 The court in Brandley reading the United States decision
in Foster expansively noted that Foster involves impermissible State conduct
in an identification procedure the Due Process Clause of the Fourteenth Amendment is
not limited to the States action in that narrow context The Brandley court added
that while individual incidents of improper investigative procedures might not affect the
outcome of trial the cumulative effect of investigative procedures judged by the totality of
cfrvum.ctances may result in deprivation of applicants right to due process of law
by suppressing evidence favorable to the accused and by creating false testimony
and
inherently unreliable testimony at 894 For example due process is not satisfied
-151-
where the State contrives conviction through the pretense of trial which in truth is
but used as means of depriving defendant of liberty at 891 citing Mooney
Holohan 294 U.S 103 112 1935 States use of perjured testimony
13 As result the court adopted totality of the circumstances test to
determine whether the states investigation techniques lead to denial of due process and
fundamental fairness at 892 citing Ex partc Adams 768 S.W.2d at 293 Foster 394
U.S at 442 Further new trial is required the false testimony could in any
reasonable likelihood have affected the judgment of the jury Adams 768 S.W.2d at 292
citing Giglio 405 U.S at 154 emphasis added
14 As noted by the Court of Criminal Appeals process of law is the
cornerstone of civilized system of justice Our society wins not only when the guilty are
convicted but when criminal trials are fair our system of justice suffers when an accused
is treated unfairly at 894 citing Brady 378 U.S at 87
The Texas Standards
15 In light of the States misconduct Guerra urges Texas courts to uphold the
Texas Constitutions broad due process protections under Article sections 13 and 19 by
enforcing an exclusionary rule when police use improperly suggestive pretrial identification
procedures particularly in cases such as this one where the cost of requiring the State to
conduct fair lineups is minimal No Texas case has yet adopted this interpretation but
Guerra urges the court to do so pp 279-87 infra
-152-
Harmless Error
16 Even if this were not fundamental error which it is see note 92 supra this
would constitute reversible error under the harmless error standard Where the States
use of pretrial identification procedures posed substantial likelihood of tainting the State
witnesses identifications of the defendant and their in-court identifications are not shown
to be independently reliable the court must determine if admission of the identifications
into evidence was harmless Young Herring 917 F.2d 858 864 5th Cir 1990
superseded by 938 F.2d 543 5th Cir 1991 citing Chapman California 386 U.S 18
23 1967 The beneficiary of the error has the burden of proving that the error was
harmless beyond reasonable doubt Thigpen Cory 804 F.2d 893 897 6th Cir 1986
cert denied 428 U.S 918 1987 citing Chapman 386 U.S at 24
17 In determining if the error was harmless the focus is on whether the
process was fair rather than on whether the State had strong case.2 The court should
As succinctly expressed by one court
reviewing court should focus not on the weight of the other evidence
of guilt but rather on whether the error at issue might possibly have
prejudiced the jurors decision-making it should ask not whether the jury
reached the correct result but whether the jurors were able properly to
apply the law to facts in order to reach verdict Consequently the
reviewing court must focus upon the process and not on the result In other
words the reviewing court must always examine whether the trial was an
essentially fair one If the error was of magnitude that it disiupted the jurorY
orderly evaluation of the evidence no mailer how overwhelming it might have
been the conviction is tainted
Gaines State 789 S.W.2d 926 941 Tex App.--DaIlas 1990 no pet citing Harris
State 790 S.W.2d 568 587 Tex Crim App 1989 emphasis added
-153-
also determine whether declaration that the error was harmless would encourage the
state to repeat the error with impunity
The State Identification Procedures Were Impermissibly Suggestive
18 The State used host of improper identification procedures in their effort
to manipulate the witnesses memories Notably suggestive were police intimidation at
the crime scene ii allowing witnesses to see Guerra in handcuffs before the lineup iii
impermissibly suggestive lineup iv impermissible suggestive reenactment the
viewing of the mannequins prior to the trial and vi the use of the mannequins at trial
The following paragraphs analyzing the suggestive events can lead to only one
conclusion -- the states identification procedures were unnecessarily suggestive
Police Intimidation
19 Police began intimidating witnesses at the crime scene and before the
witnesses began providing their initial police statements In fact Guerra will prove that
at least two witnesses were handcuffed at the scene and at least one witness was
threatened by police Arguably where witness statements may have been the product of
United States Russell 532 F.2d 1063 6th Cir 1976 identification which
violated due process not harmless in view of dearth of other evidence Escalera
Coombe 826 F.2d 185 194 2d Cir 1987 Moreover we cannot conclude that admission
of Nieves and Torres identification of Escalera was harmless beyond reasonable doubt
Their testimony was the sole evidence linking Escalera to the crime The state simply had
no case without it and its erroneous admission would be extremely harmful vacated and
remanded 484 U.S 1054 1988 Dickerson Fogg 692 F.2d 238 247 2d Cir 1982
erroneous admission of identification not harmless even though robbery defendant also
was found in non-exclusive possession of stolen goods
-154-
State intimidation there is substantial likelihood of misidentification warranting the
exclusion of such testimony
Guerra in Handcuffs
20 Guerra will show that police officers allowed Guerra handcuffed and with
paper bags over his hands to be seen by the States eyewitnesses before the lineup This
suggestive viewing tainted any subsequent identification by the States witnesses
Archuleta Kerby 864 F.2d 709 710 10th Cir 1989 state conceded that allowing
eyewitnesses to see defendant while handcuffed in police car among uniformed police
officers was suggestive Dispensa Lynaugh 847 F.2d 211 220 5th Cir 1988 rape
victims identification of defendant at restaurant was unduly suggestive where defendant
was walked through restaurant accompanied by police officer
The Lineup
21 At an evidentiary hearing Guerra will prove that the States witnesses viewed
an impermissibly suggestive lineup of six men on July 14 1982 eight hours after the
shooting At the lineup Guerra was the only participant to have collar length hair
which was the description of the shooter given initially to police by both Diaz and Galvan
App 13 F22 Diaz App F8 Galvan Clearly the lineup was unnecessarily
suggestive where it was designed to highlight an unusual identifying feature in the initial
police statements of these two crucial witnesses As the Fifth Circuit has clearly stated
identification of defendant in manner that suggests whom the witness should
identify is denial of the defendants right to due process of law at 218
-155-
22 Police records further reveal that the State made other efforts to skew the
lineup against Guerra Soon after the shooting police acquired from several witnesses
other than Diaz and Galvan an initial description of the shooter that was entirely
inconsistent with Guerras appearance that night Armed with the inconsistent
description police tracked down and arrested man named Alex Sanchez App 138
F660 who was then brought back to the intersection of Edgewood and Walker for
one-person showup before the witnesses App 140 F662 Based on the failure of any
witnesses to identify Sanchez at that time the police concluded that he was not the
shooter Yet Sanchez was placed in the lineup viewed by the States witnesses later
that evening App 80 F323 which left only Guerra and four others in the six-person
lineup
23 Further Guerra will prove that during the lineup several witnesses verbally
identified Guerra in manner that was audible to all the other witnesses present.121
24 In addition Guerra will show that in at least one instance an HPD detective
openly solicited an identification in the presence of other witnesses that several witnesses
were pressured by another witness to identify Guerra as the shooter and that the in
In fact Officer Arochas statement notes that witnesses at the scene described
the suspect as Latin American male in his 20s having short hair and wearing light
colored T-shirt and blue jeans App 36 P99
121While we cannot know exactly what each witness said during the lineup it is clear
from the statements given on the night of the shooting that not all of the witnesses were
identifying Guerra as the shooter For example George Brown and Danny Joe Martinez
merely identified Guerra as the passenger in the Buick App 31 F69 Brown App 16
F27 Martinez Jacinto Vega identified him merely as the driver App 27 F54 S.F
Vol 23 at 719-20 Jacinto Vega
-156-
court identification testimony of at least one of the States witnesses was not only the
product of hearing other witnesses identify Guerra at the lineup but of one of the
witnesses coercing others to identify Guerra during the lineup in the presence of several
police officers as the shooter
25 It would be difficult to imagine case where lineups were more suggestive
than here case where witnesses were allowed to see Guerra handcuffed and in police
custody ii then gathered in room for joint viewing of the lineup and iii allowed
not only to share their individual opinions of the shooters identity but in some instances
to exert influence over each other The practice of allowing two identifying witnesses to
be present during each others identification has been severely criticized because it is
procedure said to be fraught with dangers of suggestion United States ex rel
Pierce
Connor 508 F.2d 197 200 7th Cir 1974 cert denied 423 U.S 841 1975 quoting
Wade 388 U.S at 234 Escalera Coombe 652 Supp 1316 1326 E.D.N.Y 1987
-The prosecution may argue that the pre-identification activities in this case were not
unduly suggestive because in some instances it was not the police that caused the improper
suggestion Admittedly it could be argued that several of the witnesses offered their
opinion of the shooters identity voluntarily while viewing the lineup However it was the
police who walked handcuffed Guerra in front of the witnesses corralled all the
witnesses together to view the lineup and allowed them to communicate with each other
during the lineup Moreover whether the verbal identifications were solicited by police
is not the issue the chief concern is the reliability of witness identifications not police
deterrence Thigpen 804 F.2d at 895 409 U.S at 198-99 Green Loggins 614
F.2d 219 222 9th Cir 1980 Because it is the likelihood of misidentification that
violates the defendants rights to due process citation omitted only the effects of rather
than the causes for pre-identification encounters should be determinative of whether the
confrontations were unduly suggestive Thipen 804 F.2d at 895 quoting Ii 409 U.S
at 198 see also Green 614 F.2d at 223 court is obligated to review every pre-trial
encounter accidental or otherwise in order to insure that the circumstances of the
particular encounter have not been so suggestive as to undermine the reliability
of the
witnesss subsequent identification
-157-
revd 826 F.2d 185 2nd Cir 1987 appeal filed noting that dangers of suggestion are
compounded when the witnesses view showup together see also Note Pretrial
Identification Procedures -- Wade to Gilbert to Stovall Lower Courts Bobble the Ball 55
Minn Rev 779 795 1971 The reason for the criticism is justified given the
enormous suggestive power of group pressure to modify recollections
26 Federal courts are united in their condemnation of joint identification
procedures- Texas cases also condemn joint identification procedures-
2As several experts explained
Changes in perception occur readily in response to information from social
sources The enormous suggestive power of groups in modifying perceptions
attitudes and norms was first illustrated experimentally by Sheriff and then
by Asch
Both experiments however demarcate the potency of group pressure
in modifying judgments despite awareness of conflict between sensory and
social information While the usual conditions of social suggestion are not
always as extreme as those represented by the Sheriff and Asch
arrangements clearly some witnesses to identical phenomena may markedly
tailor their reports to the majority position And in the case of criminal
identification this tailoring could occur among witnesses at the scene of the
crime in subsequent communication with or without police knowledge and
at the lineup itself
Levine Tapp Psychology of Criminal Identification The Gap From Wade to Kirby
121 Pa Rev 1079 1110-11 1973
Pearson United States 389 F.2d 684 688 5th Cir 1968 The fairness of
the pretrial lineup depends upon number of factors Its result could be tainted if
the witnesses were allowed to view the lineup together and discuss among themselves their
conclusions or if they were allowed even accidentally to see the defendant in police
custody just prior to the lineup United States ex rel Pierce Cannon 508 F.2d 197 201
7th Cir 1974 cert denied 423 U.S 841 1975 would seem to be no excuse
continued..
-158-
27 Further joint viewings are criticized because they unnecessarily decrease the
reliability of the identification made Swicegood State 577 F.2d 1322 1325 5th Cir
1978 noting that police may take relatively simple precautionary measures to guard
against communication between witnesses In most situations the purpose that the State
seeks to accomplish can be achieved without increased burdens or decreased efficiency
while at the same time making any lineup identification more accurate Thus given
the potential for error caused by group pressure and the minimally increased burden
created by requiring all identifications to be made separately there is no excuse for
allowing procedure that permits two or more witnesses to jointly view lineup and
discuss their identifications
1...continued
for allowing procedure which permits two or more witnesses to discuss their
identifications Escalera Coombe 826 F.2d 185 191 2d Cir 1987 an uncontrolled
joint selection renders photographic identification suspect United States Wilson 787
F.2d 375 385 n.h 8th Cir cert denied 479 U.S 857 1986 suggesting that allowing
witnesses to view photographs together with the opportunity to discuss their perceptions
before making decision and pressuring or leading witnesses toward particular selection
would be unnecessarily suggestive United States Bridgefourth 538 F.2d 1251 1253 6th
Cir 1976 We do specifically disapprove of any consultation of witnesses engaged in
inspecting displays of photographs during police attempts to identify an offender
Powell State 466 S.W.2d 776 778 n.1 Tex Crim App 1971 We recommend
that exhibition of photographs be shown to witnesses separately and apart Robinson
State 502 S.W.2d 819 820 Tex Crim App 1973 suggesting that allowing parties who
are observing lineup to converse while viewing the lineup is improper were
twelve to fifteen feet apart while the lineup was being conducted and their identification
of appellant by number was made by them separately after leaving the room where the
lineup was conducted Jackson State 682 S.W.2d 692 695 Tex App.--Houston
Dist 1984 pet ref witnesses failure to view suspect individually was factor in the
courts finding that identification procedure may have been unnecessarily suggestive
-159-
28 The identifications of Guerra were fundamentally unreliable because the
lineup procedures used by police were irreparably tainted by the witnesses group viewing
and discussions and therefore denied Guerra due process
The July 22 Walk-Through
29 At 1000 a.m on July 22 1982 nine days after the night of the shooting
police gathered together several of the States witnesses to conduct walk-through or
reenactment of the shooting Witnesses known to be present include Galvan Garcia
Flores and Perez App 90-92 F374-76 S.F Vol 22 at 432-33 436-37 492-93 542
What happened at the reenactment is sketchy however Perez described the scene as
spectacle with people coming and going to see what was going on S.F Vol 22 at
437 In the presence of these other witnesses Galvan radically changed her version of the
shooting see pp 172-73 infra and Flores identified Guerra as the shooter for the first
time App 91 F375
30 It is clear that the walk-through was another step in the States attempt to
manufacture false testimony Ex parte Brandley 781 S.W.2d 886 893 Tex Crim
App 1989 cert denied 111 Ct 611990 suggestive walk-through contributed to
due process violation by creating false testimony The jointly attended reenactment was
highly improper For these reasons this Court should hold that the admission of the State
witnesses identification testimony denied Guerra due process
Guerra only has become aware of the specifics of what occurred at the reenactment
since obtaining police records years after his trial in preparation for Guerras filing of his
original application pursuant to request under the Texas Open Records Act
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The Mannequins and Prosecutorial Suggestiveness
31 There can be little doubt that the State confronted with no physical
evidence to support their ugun switch theory and extremely weak witness identifications
was in dilemma Unable to manipulate the physical evidence the State endeavored to
influence the minds and bolster the testimony of their eyewitnesses through the use of the
mannequins On the Saturday before trial several of the States witnesses viewed the
mannequins in conference room at the District Attorneys office S.F Vol 22 at 425
Present together at that mannequin showing were Mrs Armijo Trinidad Medina Diaz
Garcia Frank Perez Galvan Jose Jr and several other State witnesses S.F Vol 21 at
303 332-33 S.F Vol 22 at 430-31 494 539 who were allowed to discuss the facts of the
case in each others presence at 430-31
32 The States use of the wax-museum quality mannequins dressed in the
original bloodied bullet-riddled unwashed clothes of Carrasco and Guerra grossly tainted
the testimony of the States witnesses The inescapable non-verbal message being sent
continuously throughout the trial was that Carrasco with the bloody bullet-riddled dark
maroon or brown shirt was the dead man and the witnesses were to focus on the
other man Guerra By dressing and grooming the life-like mannequin of Guerra as he
appeared on July 13 the prosecutors ensured that the witnesses could easily frame their
identification testimony to correspond to the mannequin of Guerra and avoid the
confusion that the witnesses earlier statements had revealed Guerra will prove that
1-Moreover after seeing Carrascos bloodied shirt and knowing from the night of the
shooting as well as subsequent television reports that one of two men present at the
continued..
-161-
the prosecutors left nothing to chance They showed several of the witnesses pictures of
Carrasco and Guerra identified Carrasco as dead and described Guerra as the man who
shot the cop
33 Undoubtedly allowing the States witnesses to examine the mannequins
before trial as well as to use the mannequins during trial violated Guerras rights to due
process under the Fifth and Fourteenth Amendments of the U.S Constitution as well as
under the Texas Constitutions due process safeguards in sections 13 and 19
Repeated Viewings
34 By the start of trial none of the State eyewitnesses had yet attended
properly conducted lineup and had been subjected to
intimidating and coercive police interrogation at the scene of the shooting
continued
shooting had been killed by police it took no effort for the witnesses to realize that they
were expected to identify Guerra as the shooter Chaisson State 761 S.W.2d 77
81 Tex App.--Beaumont 1988 no writ Furthermore the police had told the witnesses
so much about the photographs of the two suspects all that remained for the witnesses
to determine which of the two men drove the car and which one entered the service
station wielding the knife
Thus the pretrial use of the mannequins for all practical purposes was the
equivalent of one-person showup or at best two-person lineup The use of one-
person showups has been widely condemned Wade 388 U.S at 229 Herrera Collins
904 F.2d 944 947 n.2 5th Circerl denied 449 U.S 985 1980 cert denied 111 Ct
307 1990 see also Babers Estelle 616 F.2d 178 5th Cir one-on-one showups are
inherently more suggestive than lineups and we have purposely not encouraged their use
Rodriguez 906 F.2d at 1162 n.6 Showups will almost always lead to undue
suggestion Jackson State 682 S.W.2d 692 695 Tex App.--Houston Dist 1984
pet refd 1985 practice of showing suspects singly to crime witnesses for identification
has been widely condemned Escalera Coombe 652 Supp 1316 1326 E.D.N.Y
revd 826 F.2d 185 1987
-162-
ii exposure to handcuffed Guerra at the police station only hours after the
shooting
iii an impermissiblysuggestive lineup that the police attempted to skew against
Guerra and that allowed witnesses to identify Guerra in each others
presence and to persuade other State witnesses to identify Guerra
iv jointly attended reenactment of the shooting and
discussion of the case in the presence of the mannequins and comment
by one of the prosecutors branding Guerra as the man who shot the cop
After repeated viewings of Guerra under circumstances implicating him in the shooting
it is not surprising that several so-called eyewitnesses became convinced that Guerra was
the shooter Even when each of many pretrial viewings has been properly conducted
repeated exposure to defendant inevitably will be unduly suggestive-
The State Witnesses Identifications Were Fundamentally Unreliable
35 The State must prove by clear and convincing evidence that its witnesses had
identified Guerra in-court as the shooter based on recollections free from suggestion and
that the identifications were therefore independently reliable before the identifications are
Herrera Collins 904 F.2d 949 947 n.2 5th Cir 1990 What occurred
between this initial uncertainty and the eventual certitude Hernandez expressed at the
second photographic display the live lineup and the trial was the display to Hernandez
of Petitioners picture uncomplicated by any accompanying array Thigpen Cory 804
F.2d 893 6th Cir 1986 citing United States Ballard 534 Supp 749 752 M.D Ala
1982 defendant seen at lineup and related court proceeding United States ex rel
Johnson Hatrak 417 Supp 316 327 D.N.J 1976 defendant seen at lineups and
unrelated preliminary hearing affd mem 564 F.2d 90 3d Cir 1977 cert denied 435
U.S 906 1978
-163-
admissible Manson 432 U.S at 114 The State cannot meet its burden in light of
the grossly mishandled pretrial investigation and practices
The Witnesses Testimony Was Inconsistent
36 Before evaluating the Manson reliability factors scrutiny of the witnesses
testimony itself is enlightening The in-court identifications especially when viewed in
connection with the other State evidence were patently incredible and worthy of little or
no weight The harmful effect and significance oi the States improper pretrial procedures
are apparent when the stories of the prosecutions so-called eyewitnesses are reviewed
These stories were wholly unreliable in three respects First and most importantly their
stories contradicted the irrefutable physical evidence Second each witnesss story
changed over time Finally their stories contradicted each other
The Stories of the States So-Called Eyewitnesses
Contradicted the Irrefutable Physical Evidence
37 The State witnesses testimony contradicted the physical evidence in nearly
all respects First Jose Jr the only person who testified that he saw Guerra shoot his
father and Harris told police that the shooter fired with his left hand App 7-8 F16-17
At an evidentiary hearing Guerra will show that Guerra is right-handed -- but Carrasco
is left-handed It is inconceivable that Guerra shot Harris with his left hand
38 Second the physical evidence -- including blood spatter patterns the
recovery of bullets from the house on the northwest corner
of Walker and Edgewood the
location of spent nine millimeter hulls on the northeast corner of that intersection
and
the polke own interpretation of that data -- all conclusively establishes that the shooter
-164-
fired in mostly westerly direction with the bullets entering the left side of Harriss head
and exiting the right S.F Vol 20 at 87 see pp 11-12 18 supra Thus the shooter
must have been standing close to and east of Harris at the time of the shooting But the
statements and trial testimony of each of the States so-called eyewitnesses place Guerra
south or west of Harris when the shots were fired note 29 supra
39 Third even though the lighting was poor and the nearest street light was
34 feet west of the Buick and on the south side of Walker App 67 F229 Flores
Garcia and Galvan all claimed to see blond-haired shooter Their dubious explanations
for describing the shooter as blond-haired also defied the physical evidence-
40 Fourth Galvan claimed at the reenactment that the impact of the bullets
lifted Harris off his feet App 91 F375 An examination of the angles that the bullets
traveled however as they entered Harriss head reveals downward trajectory the
bullets struck Harris on the left side of his head and exited the lower right portion of his
neck App 133 F601 Thus Guerra will show that it was physically impossible for
Galvan to have seen the bullets lift Harris off his feet
41 Finally Floress testimony that the shooter ran east down the middle of
Walker as he fled the shooting S.F Vol 22 at 514-15 is inconsistent with the path ran
by the man who shot and killed Armijo Sr The physical evidence reveals that Armijo
Sr was shot from the north side of Walker with the bullets travelling in mostly
-Garcia claimed that distance in the dak the shooters hair looked like it was
blond S.F Vol 22 at 460 Galvan testified that light reflecting off the street caused
glare that made the shooters hair appear light-colored even though the shooter was in
the car at 569 Despite being at different vantage point Flores similarly described
the shooter as blond because of the reflection of the light at 520
-165-
southeasterly direction S.F Vol 20 at 104-05 145-46 App 62-63 68 103-106
F224-25 245 439-42
42 In short the stories of each of the States eyewitnesses are incredible in
light of the physical evidence and the testimony was irremediably
confused These
witnesses identifications of the shooter were therefore wholly unreliable and were legally
of insufficient weight to permit Guerras conviction resulting in the death penalty
--
particularly in light of the totally exculpatory testimony of
Guerra and others
43 In sum the witnesses initial descriptions of the shooter even taken
collectively and ignoring inexplicable inconsistencies among the witnesses and within
the
physical evidence could generate at best description that the shooter was
Latin
American male in his twenties with collar length hair Clearly such broad description
is so lacking in detail that it is wholly inadequate
The Stories of the States Principal So-Called Eyewitnesses
Changed Over Time
44 The trial testimony of the prosecutions witnesses was patently unreliable
also because each witness changed his or her testimony dramatically from their initial
statements
11See Velez Schmer 724 F.2d 249 252 1st Cir 1984 have seen no case
with such total absence of description of the individual Rodriguez 906 F.2d at 1163
witnesss description would fit dozens of men in Milwaukee and elsewhere
and the fact
that it offers no details as to facial features or other more distinguishing characteristics
than age build and complexion is troubling Thigpen Cory 804 F.2d 893
897 6th Cir
1986 cert denied 482 U.S 918 1987 Accuracy also refers to how particularly
description matches suspect and robbery victim and
sole witness were unable even
to describe the robbers weights builds hairstyles or facial hair emphasis added
-166-
Patricia Diaz
45 Patricia Diaz who cannot be counted as witness who saw the shooting
recalled more detail as she got further away from the night of the murder On the night
of the shooting she told police that she had seen man standing by the Buick and
pointing at the police car S.F Vol 21 at 312-13 316 329-30 She said that the man
whom she had never seen before had collar-length black hair and was wearing
long-sleeve dark-colored shirt App 12-13 F21-22 Her statement confirms that she
never saw Harris or any pistol although initially it mentions that the man appeared to
be pointing gun Further her statement on the night of the shooting says nothing
about facial hair See id
46 At the lineup she identified Guerra as the man she had seen with his hands
outstretched App 14 F23
47 At trial she testified on direct that the pointer had long beard
moustache brownish hair and short-sleeve green shirt S.F Vol 21 at 316 324-25
She acknowledged on cross-examination that she had not recalled the shirt color on the
night of the murder j4 at 324-25
48 Finally Diaz admitted at trial that she did not know who shot who id at
331 340 and that she actually had seen Guerra for the first time at the lineup at
316 In fact Diaz admitted that it was dark at 326 that she had only seen the
Ui/Prosecution witnesses concluded based on gunpowder on Harriss face that the
shooter was one or two feet from Harris at the time of the murder S.F Vol 23 at 685-
86 691 Vol 20 at 148-52 It is difficult to imagine that Diaz was able to see the shooter
shoot Harris but was unable to see Harris being shot
-167-
pointers shadow at the time of the shooting at 313 and that she had ducked before
hearing the shots that killed Harris jç at 313 318
49 At an evidentiary hearing Guerra will demonstrate that when Ms Diaz told
the police on July 14 and the jury at trial that she had seen man pointing she meant
not that he appeared to be pointing gun but that his hands were outstretched with
palms down about foot apart in manner consistent with lifting his hands off of the
car hood
ii Herlinda Garcia
50 Herlinda Garcia who finally admitted that she had not witnessed the
shooting likewise substantially changed her description of what had occurred On the
night of the shooting Ms Garcia told the police that as the two men who had emerged
from the drivers side of the Buick walked with raised hands toward Harris who had told
them to put their hands on the hood of the police car the man with blond hair brown
shirt that was open all the way down and brown pants reached into the front of his
pants pulled out pistol and shot Harris App FlO She mentioned nothing about
long hair or facial hair in her statement
51 By the time of trial Ms Garcia had become uncertain about what one of
the men had pulled out of his pants S.F Vol 22 at 449-50 She testified for the first
time that the other man had his hands on top of one of the two cars jc1 recanting her
testimony that both mens hands were raised immediately before the shooting at 478-
-2Not mentioned at the trial was her husbands statement to police on July 14 that
she had been drinking beer shortly before the shooting App 17-18 F28-29
-168-
79 When pressed on cross examination she finally admitted that she saw neither the gun
nor gunfire after seeing man pull out something she turned and ran hearing gunfire as
she was running at 479-82
iii Vera Flores
52 Vera Flores who likewise did not witness the shooting underwent dramatic
transformation in her recollection between the night of the shooting and the time of trial
On the night of the shooting she told the police that after the Buicks driver and
passenger put their hands on the hood of police car while standing on the side near
the
cars left front fender the blond-haired driver pulled pistol from somewhere in his front
shot Harris and then ran toward the cemetery eastward App F18 She mentioned
nothing about long hair facial hair or clothing color Indeed she said that she did not
think she could identify either man and had never seen them before
53 At the lineup the next morning she identified no one App 135 P620
S.F Vol 22 at 518 525
54 Mysteriously however by the afternoon of the reenactment on July 22 she
was able to provide much more detail At that point she claimed for the first time that
the driver had spoken to her before the shooting.11 She further claimed that the driver
had long hair beard and mustache She described the driver thereafter standing near
the front of the police car with the passenger standing closer to the driver door of the
police car and Harris standing on the inside of his open car door She told police that
1-She said that the driver got out of the car and asked her for boost App 10-11
F19-20
-169-
she saw the driver turn take his hands off the car and begin to shoot while backing up
App 10-11 92-93 F19-20 see F376-76A She even claimed for the first time to
remember seeing the driver shoot Armijo at 10-11 93 F19-20 F376A curious
omission from her first statement and claim that she recanted at trial see S.F Vol 22
at 516
55 In direct contradiction of her statement on the night of the shooting that she
had never seen the suspects before Ms Flores also claimed for the first time at the
reenactment that she knew the suspect because he was regular in the neighborhood
App 92 F376 Ms Floress confusion like Ms Galvans continued when she identified
the shooter as El Guerro nickname belonging to Carrasco not Guerra App 95
F386
56 Finally for the first time nine days after the shooting she identified Guerra
as the shooter App 92 F376 She told police that she had recognized Guerra at the
lineup as the driver and shooter but insisted that she had told
HPD at the lineup that
she did not identify anyone because figured enough people had already identified him
App 10-11 92 F19-20 F376
57 Ms Floress trial testimony not unexpectedly was so confused that it was
virtually worthless- By the time of trial Ms Flores claimed that the Buick drove south
li.Not mentioned at trial was her brother-in-laws statement of July 14 that she had
been drinking beer shortly before the shooting App 17-18 F28-29
-170-
on Edgewood to Walker S.F Vol 22 at 521 which is completely inconsistent with the
version she described at the reenactment that the suspects made u-turn on Walker
58 At trial Ms Flores also had developed new recollection that the driver
wore green shirt S.F Vol 22 at 542 in addition to having long hair beard and
moustache jç at 517 When confronted with her prior description of blond-haired
shooter Ms Flores testified that she had seen blond hair because of the reflection caused
by streetlight S.F Vol 22 at 519-20 This description is inconsistent with her claimed
recollection at the reenactment that she knew the driver as regular in the neighborhood
App 92 F376
59 However she admitted that the only reason that she had accused the drive
of being the man who shot and killed Harris was that after Harris had been shot she had
seen the driver shooting down the street S.F Vol 22 at 513 Moreover at trial she
was unsure if she had seen the passenger again after he got out of the car initially she
claimed that she never saw him again at 528 even after being reminded of the
contents of her initial statement to the contrary jj at 529 then she insisted that she had
seen both men put their hands on the patrol car at 529-32
iv Hilma Galvan
60 Hilma Galvan who finally admitted that she had never seen Guerra holding
gun at 560 gave various statements and testimony that were so internally
inconsistent as to be fundamentally without credibility On the night of the shooting Ms
iflAt the reenactment she claimed to have seen the Buick heading down Walker not
Edgewood until the car attempted to do doughnut in the middle of the street and died
App 10-11 F19-20
-171-
Galvan told the police that from her vantage point on the sidewalk in front of her house
App 91 F375 S.F Vol 22 at 556 she could only see one man from the Buick App
F8 The second man she reported was on the other side of the Street and she could
not see what he was doing since her view was obstructed by tree in her yard and the
Buick She said she never got good look at him She told police that the first
man had shoulder-length straight blond hair and wore dark brown pants and dark brown
or black shirt She saw him take some steps towards her and the two Heredia boys
then step back towards Harris She told police that she saw Harris push that man
up against the police car and then saw the man turn and begin shooting at
Harris
Despite her description of the shooter as blond she claimed to know him by sight but
not by name
61 During the lineup she identified Guerra as the man she saw shoot Harris
adding in statement given shortly after the lineup that at the time of the shooting
Guerra had been standing underneath Street light App F9
62 police report dated July 26 1982 App 91-92 F375-76 however reveals
that Ms Galvan gave dramatically different version of the shooting at the July 22
reenactment First she claimed for the first time that she saw both suspects out of the
black car when the officer came up behind them App 91 F375 which is inconsistent
with her recollection on the night of the shooting that both men were already out of the
Buick by the time she arrived App F7 S.F at 579
-172-
63 Second despite her admission on the night of the shooting that she could
not see what the non-shooter was doing by July 22 she claimed to recall with great
clarity the non-shooters movements See App 90-92 F374-76
64 Third she claimed that she saw both men walk in single file from the Buick
to the police car with Carrasco in front closer to Harris and put their hands on the
police cars hood with Carrasco closer to the drivers door She claimed in this
version that as soon as Guerra put his hands on the hood of the police car he turned and
started shooting moving from left to right then began running down the sidewalk in front
of her house App 91 F375 Gone was any reference to being accompanied by
the Heredia brothers ii the shooter walking towards her before the shooting iii Harris
pushing one of the men or iv her inability to see the other man
65 Fourth Ms Galvan made the bizarre and obviously fabricated claim for the
first time that she had seen Guerra shoot Armijo Sr App 91-92 F375-76 even though
she told police on the night of the shooting and told the jury at trial that she had learned
that Armijo Sr had been shot only after being told by Jose Jr App F8 S.F Vol 22
at 562-66
66 Finally despite having stated on the night of the shooting that she did not
know the shooter by name App F8 on July 22 she claimed that she knew the driver
of the Buick as UE1 Guero regular customer of the neighborhood grocery store where
she once worked App 92 P376 In actuality the nickname El Guero belonged to
Carrasco due to his light skin
-173-
67 At trial for the fimt time she remembered that the killer had beard see
S.F Vol 22 at 561 ii placed Harris even with his driver door at 558 and iii finally
admitted that she had never seen gun at 560 Moreover she merged and confused
her two previous renditions of Guerras movements between the cars see at 579-83
and attempted to soften her earlier statement that Harris had pushed Guerra against the
police car at 585-u
Jose Armijo Jr
68 The statements and testimony of 10-year old Jose Armijo Jr are even more
inconsistent This 10-year-old child obviously in shock on the night of Harriss murder
after seeing his father mortally wounded is the only witness who testified that he saw
Guerra pull gun and shoot Officer Harris S.F Vol 21 at 284 On the night of the
shooting shortly after midnight he told the police that after his father stopped his car
Jose Jr saw Harris get out of the police car and stand behind his door saw two men get
out of the Buick while others stayed inside saw the two men walk up to Harris standing
next to each other saw the man on the outside tap the hand of the man standing next
1The trial testimony contained other inconsistencies with her prior statements In
her initial police statement Galvan recalled Harris exiting his car and telling the guy
coming toward us to stop The officer yelled again App F7 Later she recalled
Harris yelling at the men to come over to the police unit before Harris
exited his police
car App 91 F375 Galvan testified at trial that Harris only yelled at the man that was
by the sidewalk after exiting his patrol unit S.F Vol 22 at 557
Further Galvan later admitted that she had subsequent opportunity to see
Guerras true hair color as he ran toward her at 589-90 Why she chose to describe
the shooters hair as blond is therefore perplexing Finally Ms Galvan never explained
her inconsistencies regarding her explanation of the shooters clothing her description
matched Carrascos clothing not Guerras
-174-
to the police car and saw the man next to the police car reach around his
back as if to
scratch it pull out gun and shoot with his left hand App 7-8 F16-17 Then he saw
the two men run toward his fathers car which his father had begun to back up with one
man on each side of the car Jose Jr told police that he then saw the man on his side
shoot through the front windshield
69 As for description of the two men he didnt seen the men who shot the
policeman too good and not remember what they looked like or what they were
wearing App F17 Six hours later he could not identify Guerra in the lineup
App 134 F621
70 By the time he testified at trial his story had changed dramatically in
numerous respects First he testified that when his father stopped the car Harris was
already out of his car behind the open driver door S.F Vol 21 at 282-83 not just getting
out and ii the two men were already standing next to the police car at 282 not just
getting out of the Buick Second he testified that he saw both men from
the Buick put
their hands on the hood of the police car with one man the shooter standing closer to
Harris at 283-85 not standing next to each other with one man the shooter standing
closer to the police car Third he said nothing at trial about one man tapping
the hand
of the shooter or about the shooter using his left hand Fourth in the presence of the
mannequins and in response to leading questions he suddenly
remembered that the
1-The prosecutor was careful not to ask Jose Jr to indicate
which hand the shooter
had used At an evidentiary hearing Guerra will prove that he is right-handed while
Carrasco was left-handed and that the prosecutors knew or should have known this
-175-
shooter had long hair moustache and beard and wore green shirt at 289
291-92 He conceded that he had told the police at the lineup that he could not identify
anyone He never explained why he had told the police in his first statement six houm
before the lineup that he did not know what the two men looked like or what they were
wearing because he had not seen them veiy well at 295 301
71 Finally while continuing to insist that he had seen Guerra shoot his father
Jose Jr admitted at trial that after hearing the shots that hit Harris he had ducked
hidden under the dashboard and stayed there until the two men ran past him to the
corner of Lenox and Walker at 302-03 307-08 The likely cause of the
inconsistencies in his story became apparent on cross-examination when he revealed how
much his memory had improved after discussions with prosecutors and the police1
11-FIe testified that he previously had lied because he feared Guerra S.F Vol 21
at 290 even though he knew that the people in the lineup could not see him and were
in jail at 296 298
1Jose Jr testified at trial
Has anybody talked to you about this case
Yes
The prosecution the prosecutors Mr Bax and Mr Moen
Yes
Have the police talked to you
Yes
Yesterday
Yes
Did they talk to you on Saturday
Yes
continued..
-176-
vi Other Prosecution Witnesses
72 Other prosecution witnesses experienced similar transformations from what
they told police on the night of the shooting to what they testified at trial
73 Jose Gelasio Saucedo whose house was on the northwest corner of Lenox
and Walker told police on the morning of July 14 few hours after the lineup nothing
about the hair length of the man he saw running past his house and north on Lenox
App F2 By trial time he was certain that the mans hair was long S.F Vol 21
at 276-77
74 George Lee Brown who was near Lenox south of Walker told police shortly
after the murder that he saw man running south on Lenox and that this man had short
wavy hair beard and mustache App 40 F134 At trial the prosecutor was careful
112...continued
Did they talk to you today
Yes
Who talked to you
forgot his name
Mr Bax
Yes
And Mr Moen
Yes
So after you talked to these people you have changed your complete
version of the facts and they are completely different from what you
told the police back on the night of the incident isnt that correct
Yes
at 303-04 emphasis added
-177-
not to ask Mr Brown about the mans facial hair see S.F Vol 22 at 387 which would
have supported Guerras explanation of the route he ran after the shooting
vii Defense Witnesses
75 The only witnesses whose initial statements were consistent with the physical
evidence and their own and Guerras trial testimony were two defense witnesses Jacinto
Vega and Jose Heredia Mr Vega told police shortly after midnight on the night of the
murder before speaking to Guerras lawyer or hearing Guerras testimony that he saw
Harris get out of his car and stay behind his door App 41-41A P181-82 He saw one
of the Mexican dudes get out of the Buick and put his hands on the hood of the police
car as if under arrest Meanwhile he saw the other Mexican dude came walking up
to him also behind the first dude acting real cool get within two feet of Harris pull
hidden pistol from somewhere in the back shoot Harris run down Walker shoot Armijo
in front of Galvans house run to Lenox and turn left north At the lineup six
hours later Mr Vega identified Guerra as the driver App 27 F54 Mr Vegas trial
testimony was virtually identical to his statement except that he specified the first man
from the car as the driver see S.F Vol 23 at 718-19 727 729-31 except that he added
that the passenger had regular not long hair at 718 and had
fired the gun while
holding it with both hands ic at 719 the omission of neither of which is surprising
Acknowledging his prior statement that he could not identify either men because he had
seen neither face jç at 723-24 he nevertheless insisted that when he saw the two men
-178-
he thought he knew who they were at 725 since they were standing side-by-side
at 72223
76 Mr Heredia told police on the night of the killings that the driver got out
of his car and came to where Harris was standing by the door of the police car App 28
F55 He said that Harris put the driver against the car and was going to search him
Meanwhile the passenger whose face he did not see got out of the Buick walked
behind Harris on the east side pointed shot and took off running and shooting
His trial testimony is essentially identical Guerra went up to the police car where
Harris was standing by his car door and put his hands on the hood of Harriss car S.F
Vol 23 at 744 next to Guerra to the north was Carrasco who shot Harris at 744
755 759
The Witnesses Stories Contradicted Each Other
77 The States five so-called eyewitnesses not only changed each of their
stories over time but their stories were materially inconsistent with each other The
witnesses stories differed in the following ways
where the Buick had come from
He conceded that since he was not asked he had not told the police on the night
of the murder or at the lineup that the driver had long hair and the shooter had short
hair at 732-34 and that the first time he told anyone was when Guerras lawyers came
to his house to visit id at 734
1-.VDespite reporting on the night of the shooting that the Buick was stopped with its
motor off at the time she saw it in the intersection App F7 Galvan recalled at the
reenactment that she saw the suspects arrive at the intersection from Lenox App 91
F375 After the reenactment Flores too recalled that the Buick traveled West down
Walker from Lenox and attempted to do doughnut in the middle of the Street and
continued..
-179-
how many people were in the Buick
where the witnesses were located before the shooting
where the non-shooter started moved and ended before the
shooting
2i...continued
died App 10 F19 At trial however she testified that the Buick arrived at the
intersection after traveling straight south down Edgewood S.F Vol 22 at 521
On the night of the shooting Garcia stated that the Buick turned onto Lenox when
police officer driving down Lenox pulled in behind the Buick as the Buick was getting
ready to back up App PlO Diaz and Jose Jr never stated how the Buick arrived
at the intersection
On the night of the shooting and at trial Jose Jr reported seeing other people in
the Buick aside from Carrasco and Guerra S.F Vol 21 at 307 App F16 Galvan
Diaz Flores and Garcia never mentioned seeing anyone other than Carrasco and Guerra
in or near the Buick In fact on the night of the shooting Galvan who was so close she
could have thrown rock and hit them testified that she never saw anyone other than
the shooter and Harris near the Buick App F7
Ga1van recalled that at the time of the shooting she was standing on the sidewalk
in front of her house accompanied by Jose and Armando Heredia S.F Vol 22 at 555-56
At an evidentiary hearing Guerra will offer proof that Galvan was actually alone on her
front porch and that she immediately ran into her house once the shooting started
On the night of the shooting Garcia claimed to be in position to see the shooting
App FlO Flores however claimed that Garcia was running home and thus
had her back to the intersection at the time of the shooting S.F Vol 22 at 527 App
F18
-Galvans recollection changed over time regarding the non-shooters location On
the night of the shooting she stated that she could not see the non-shooter because tree
in her yard and the Buick blocked her view App F8 Yet at the reenactment she
provided detailed description of the non-shooter and placed his hands on the hood of
the police car near the drivers door App 91 F375 Garcia on the night of the
shooting reported that the mans hands were in the air before the shooting App F7
Garcia and Flores recalled at trial that the non-shooter had his hands on the police car
before the shooting S.F Vol 22 at 478 Garcia S.F Vol 22 at 530 App 92 F376
continued..
-180-
where shooter was located immediately before the shooting
1-...continued
App F18 Flores
That Gwrias Galvans and F7oress recollections suddenly matched is not surprising
since as Guerra will prove they spoke constantly at the police station before and after
giving their statements during the lineup and presumably thereafter
in an attempt to
make their stories consistent They were also the only witnesses on the night of the
shooting to erroneously describe blond-haired shooter wearing brown pants
and brown
shirt App FlO Garcia App F8 Galvan App F18 Flores On the night
of the shooting Jose Jr recalled that the non-shooter was standing next to the shooter
who was nearest the police car App P16 Diaz never saw the non-shooter S.F
Vol 21 at 318 App 13 F22 By the time of trial Diaz Galvan Garcia and Flores all
testified that they did not see or did not pay attention to the non-shooter pp 19-32
supra
On the night of the shooting Jose Jr stated that the shooter was in front of the
police cars open drivers door App P16 Galvan said the shooter was being pushed
against the police car when he turned and fired App F7 Garcia reported that the
shooter and non-shooter were walking toward Harris with raised hands when the blond
haired shooter reached into his pants and pulled out something and shot Harris App
FlO Flores said that the shooter removed his hands from the left front fender of the
police car pulled pistol from his front and started shooting at Harris App F18
Diaz initial police statement fails to specify where the shooter was located at the time
of the shooting App 12 P21
At trial Jose Jr again testified that the shooter was in front of the police car
drivers door but added that the shooter had his hands on the hood of the police car just
before the shooting S.F Vol 21 at 283 Diaz testified that the shooter was standing next
to the drivers side of one of the cars at 313 Galvan testified that the shooter was
walking from somewhere near the sidewalk on the south side of Walker when he turned
to Harris and began shooting S.F Vol 22 at 556-59 Flores initially testified that after
hearing Harris say stop both the shooter and non-shooter approached Harris and then
the shooter shot him Harris at 511-112 later in her testimony she recalled that the
shooter and non-shooter had their hands on the police car before the shooting at 529
Diaz testified that after hearing Harris say hold it both the shooter and non-shooter
exited the Buick walked toward Harris and then the shooter turned toward Harris
while
pulling something out of his pants and shot him Harris at 448-49
-181-
where Harris was located immediately before the shooting
what the shooter looked like
where the shooter reached to pull his gun
the location of Guerras hands just before the shooting
seeing the Browning nine millimeter pistol before the shooting and
On the night of the shooting Galvan stated that Harris was in front of the police
cars drivers side door pushing the shooter App F7 at the reenactment she stated
that Harris was behind the open drivers side door App 91 F375 at trial she stated
that Harris was standing even with the open drivers side door S.F Vol 22 at 558 At
trial Flores maintained that Harris was behind the police cars open drivers door
S.F
Vol 22 at 510 Diaz never saw Harris until after the shooting S.F Vol 21 at 313
App 12 F21 Garcia also testified that she did not see Harris at the time she heard the
shots S.F Vol 22 at 479-80 App 11 F20 On the night of the shooting and at trial
Jose Jr placed Harris behind his driver door App F16 S.F Vol 21 at 282-83
pp 167-77 supra for innumerable inconsistencies in the descriptions of
shooters clothing facial hair and hair length and color
12Jose Jr said that the shooter pulled the gun from his back App F16
Although at trial they admitted that they never saw gun Flores and Garcia testified that
they thought they remembered the shooter had pulled the gun from his front S.F Vol 22
at 543-44 App F18 Flores S.F Vol 22 at 479-80 App FlO Garcia
-2Diaz told the police and the jury that she saw the shooters hands pointing in the
direction of the police car App 20-21 F21-22 S.F Vol 21 at 312-13 Galvan recalled
for the first time at the reenactment that the shooter had placed his hands near the front
of the police car App 91 F375 At trial Jose Jr also recalled for the first time that
the shooter put his hands on the hood of the police car closer to Harris S.F Vol 21 at
283-84 On the night of the shooting Garcia claimed that the shooter and non-shooter
both had raised hands App FlO fact she denied at trial S.F Vol 22 at 484
At trial Galvan Diaz Flores and Garcia all testified that they never saw the gun
at the time of the shooting S.F Vol 22 at 560 Galvan Vol 21 at 314 Diaz Vol 22
at 513-14 545 Flores id at 479-80 Garcia Ten-year-old Jose Jr was the only State
witness who maintained that he actually saw the gun S.F Vol 21 at 284 although his
testimony is questionable for many reasons as described above
-182-
statements made by Harris before the shooting
78 The stories of each of the States principal witnesses were thus rife with
internal inconsistencies and inconsistencies among them Guerras death penalty conviction
cannot stand in view of these inconsistencies plus the fundamental fact that of the five so-
called eyewitnesses the State argued saw the shooting of Harris four
admitted at trial
they never saw the gun and were unsure who actually had shot Harris see pp 19-32
supra These witnesses -- each frightened for
their own safety and shocked by the fleeting
violent events that sped by them -- did not have clear perceptions and obviously lack clear
recollections of the shooting of Harris
The Manson Reliability Analysis
79 Similarly under the Manson reliability factors the States witness
identifications fail miserably The State must prove by clear and convincing evidence
under five-factor test -- that when the factors are weighed against the corrupting effect
-On the night of the shooting Diaz claimed to have heard someone yell stop three
times App 12 F21 Flores heard the driver say in Spanish need this and then she
heard Harris tell the Buick driver and passenger to put their hands on the police car
App F18 Galvan reported that Harris told the shooter to stop Harris yelled at the
shooter second time when the shooter kept walking and finally Harris told the shooter
to come toward him App F7 Garcia stated that Harris merely told the occupants
of the black car to put their hands on the hood of one of the cars App FlO Jose
Jr did not report hearing anyone speak prior to the shooting At the reenactment
Galvan
did not mention hearing anyone speak before the shooting App 90-92 F374-76 Flores
recalled that the driver said something to her in Spanish that she did not understand
App 92 F376
At trial Diaz heard someone yell stop twice S.F Vol 21 at 312 Garcia
remembered Harris saying Hold it S.F Vol 22 at 448 Flores testified that Harris said
stop and that one of the men said No no at 512 Galvan testified that Harris aid
Come here twice and then said Hey you come back at 22 at 557
-183-
of the suggestive identification itself each witnesss identification was independently
reliable Manson 432 U.s at 114
80 The factors to be evaluated are the opportunity to view the criminal
during the crime ii the witnesss degree of attention iii the accuracy of his prior
description of the criminal iv the witnesss level of certainty and the time
between the crime and the confrontation Id
The Opportunity to View the Criminal at the Time of the
Crime
81 The crime here was the shooting of Harris All agree that the shooting
occurred in matter of seconds and that lighting conditions were poor Young
Herring 917 F.2d 858 864 5th Cir 1990 There is no dispute that Guerra was
present at the scene of the shooting The real issue is
who shot the gun to kill Harris
82 Each of the States eyewitnesses either ducked or fled for cover upon
hearing the initial shots In fact three of the five State eyewitnesses Garcia Flores
-21In fact Galvan testified to the fact that the shooting occurred so sudden and
everything happened so soon The shots were fired there and then S.F Vol 22 at 559
585
Jose Jr Diaz and Garcia all admitted that it was dark the night of the shooting
S.F Vol 22 at 441 Garcia S.F Vol 21 at 326 Diaz In fact Diaz admitted that she
could only see shadows could see pretty good the shadows didnt get to see that
good the people around and everything saw the shadows but saw the shadow
of one
person then at 313 Police reports also indicate that lighting
conditions were poor
App 67 F229
Diaz admitted ducking into her car seat prior to any shooting because she was
scared S.F Vol 21 at 314 In fact she later admitted that she closed her eyes when
the shooting occurred at 330 Jose Jr similarly laid
in the floorboard of his fathers
car with his little sister at 302 Flores ducked behind or hid under nearby car
S.F
continued..
-184-
and Diaz admitted at trial that as result of their attempts to seek cover they did not
see who shot Harris Galvan Flores Diaz and Garcia admitted they did not see the
gun While Galvans version changed over time she insisted at the reenactment that
she saw both Carrasco and Guerra moving around the stopped cars App 91 F375
Thus she easily could have inadvertently merged or confused the actions of the two men
The likelihood is that the actions of the two men blended in her mind This is supported
by her initial impossible description of the shooter as person in dark clothes like
Carrasco but with long hair like Guerra App F8 Her later revision of the story
was her attempt with police helpt to reconcile the obvious inconsistencies in her
original version and to make her version even possible Also Guerra will show that the
lines of sight of Galvan and Jose Jr were probably obstructed at least in part by crepe
myrtle tree that was located between each of them and the place where Harris was
shot
App 182 F1567 see Marsda Moore 847 F.2d 1536 1546 11th Cir 1988 reliability
weakened when witness had only two brief glimpses of suspect neither from front
...continued
Vol 22 at 537 Mrs Galvan said that she ran screaming in the house because he was
still shooting at 562 Finally Garcia also admitted running towards her house before
the shooting jç at 480-81
S.F Vol 22 at 479-80 482 484 Garcia at 516 535 Flores S.F Vol 21 at
313 Diaz
S.F Vol 22 at 479-80 Garcia id at 560 Galvan id at 512 Flores S.F Vol
21 at 318 Diaz
1At trial however she denied having seen the passenger at all S.F Vol 22 at 581
-185-
Thigpen Cory 804 F.2d 893 896-97 6th Cir 1986 cert denied 482 U.S 918 1987
reliability weakened when witness barely looked at the suspect during the robbery
The Witnesss Degree of Attention
83 None of the States witnesses had an opportunity to study the men at the
scene The incident was momentary and chaotic S.F Vol 22 at 559 585
Galvan All the States witnesses were fearful for their own safety and ran or ducked-
For example Diaz testified to being scared and stunned S.F Vol 21 at 314
Similarly Galvan testified to being nervous S.F Vol 22 at 565 Additionally Flores
and Garcia had been drinking beer App 17-18 F28-29 which inevitably affected their
ability to concentrate
84 The witnesses fear likely affected their ability to concentrate on or even
perceive who shot Harris The stress suffered by the States eyewitnesses probably
accounts for the failure of any witness to provide correct identifying features of
None of the witnesses were trained observers Manson Brathwaite 432 U.S
98 115 1977 police officers were trained observers Herrera Collins 904 F.2d 944
948 5th Cir cert denied 111 Ct 307 1990
note 43 supra
Young Herring 917 F.2d 858 864 5th Cir 1990 concluding that it was
unlikely that witness had high degree of attention as to the description of identity during
robbery because it was an intensely stressful and brief situation United States Russell
532 F.2d 1063 1066 6th Cir 1976 stress or excitement may significantly affect the
reliability of an identification Thigpen 804 F.2d at 897 Jackson was obviously affected
by such stress for at trial he repeatedly indicated that he was too scared during the
robbery to pay too much attention to the robbers
-186-
Guerra including his clothing beard and mustache or ii to recall the second man --
which by the time of trial they assumed was Carrasco--1
The Accuracy of His Prior Description of the Criminal
85 As noted above not one of the initial descriptions given by the States
witnesses of the men at the scene before the States use of improper techniques of
persuasion was accurate Three of the States witnesses initially
described the shooter as
blond-haired two described him as wearing brown pants and brown shirt and none
recalled the shooters mustache or beard The States so-called eyewitness identifications
therefore were wholly unreliable United States Dring 930 F.2d 687 693 9th Cir
1991 petition for cert filed 60 U.S.L.W ____ U.S May 11 1992 No 91-8200 one
element that detracts from the reliability of the agents eyewitness testimony was that none
of the agents mentioned in their initial reports that Dring had worn beard see Peoples
Fulcomer 731 Supp 1242 1245 E.D Pa 1990 noting the lack of witness testimony
referring to the defendants unique features-
iaDiaz Galvan Garcia and Flores all testified that they did not have an opportunity
to see or that they did not pay attention to the non-shooter S.F Vol 21 at 318 Diaz
S.F Vol 22 at 559-562 Galvan id at 478 Garcia id at 529 Flores
Accord Dispensa 847 F.2d at 220 Overwhelmingly more significant are those
features that witness failed to include in her description of the assailant particularly
his mustache his general hirsuteness and the striking tatoos This pronounced incongruity
between the assailant described and the suspect identified leads us to conclude that the
identification was unreliable and should have been suppressed Jiminez State 787
S.W.2d 516 Tex App.--El Paso 1990 no writ
-187-
The Witnesss Level of Certainty
86 The Manson court includes witnesss level of certainty as factor in
assessing the reliability of witness identifications 432 U.s at 114-15 This factor has been
greatly criticized Determinations of the reliability suggested by witnesss certainty
after
the use of suggestive procedures are complicated by the possibility that the certainty may
reflect the corrupting effect of the suggestive procedures Rodriguez
Young 906 F.2d 1153 1163 7th Cir 1990 cert denied 111 Ct 698 1991 Experts
studies refute the idea that there is correlaticn between witnesss level of confidence
in his identification and his or her accuracy in identification McCabe 22 md Rev at
910 see at 908 n.23 citing Wells Lindsay How Do People Infer the Accuracy of
Eyewitness Memory Studies of Performance and of Metamemory Analysis In light of
the experimental studies the common but erroneous notion that there is close
relationship between the certainty of witness and the accuracy of the identification
should be expunged from our jurisprudence McCabe 22 md Rev at 911
87 In light of the remarkable changes in the witnesses descriptions of the men
at the scene the group discussion at the lineup before most witnesses were able even to
make any identifications and other pretrial suggestive procedures by the police any claims
of certainty of the identifications at the trial are baseless Moreover the States use of
the mannequins to suggest the right answer to the State eyewitnesses before and during
trial undercuts any reliability argument the State may assert
1It is matter of common experience that once witness has picked out the
accused at the confrontation he is not likely to go back on his word later on
Manson 432 U.S at 130-31 Marshall dissenting
-188-
The Time Between the Crime and the Confrontation
88 Admittedly the time between the crime and the lineup in the present case
was relatively short However it is significant to note that the greatest memory loss
occurs within hours after an event Manson 432 U.S at 131 Marshall dissenting
Further the State witnesses were forced to attend the lineup at 600 a.m on the morning
following the shooting after having been interrogated at length Arguably having to make
their identifications after being deprived of sleep may have affected the recollections of
the State witnesses
89 In sum the powerful suggestive impact of the States identification
procedures far outweigh any indicia of reliability contained in the identifications by the
States so-called eyewitness To have allowed any of the State eyewitnesses to testify
resulted in the denial of Guerras due process rights under the Fifth and Fourteenth
Amendments of the U.S Constitution and Article sections 13 and 19 of the Texas
Constitution Accordingly this Court should grant Guerra new trial
The Court Should Adopt the AU Guidelines for Pretrial Identification
Procedures
90 As noted by the Seventh Circuit Some form of control even an
exclusionary rule for showups would be desirable Rodriguez 906 F.2d 1153 1163 n.6
citing United States ex rel Kirby Sturges 510 F.2d 397 409 7th Cir cert denied
In any event this factor becomes insignificant where all the other factors
demonstrate substantial likelihood of misidentification by each witness United
States Watkins 741 F.2d 692 695 5th Cir 1984 The only factor supporting reliability
is the short span of time between the robbery and the showup. Taken as whole the
overall factors suggest substantial likelihood of misidentification.
-189-
421 U.s 1016 1975 see also A.L.I Model Code of Pre-arraignment Procedure 160
1975 both protects the integrity of the truth-seeking function of the trial
and discourages police use of needlessly inaccurate and ineffective investigatory methods
Manson 432 U.S at 127 Marshall dissenting
91 Guerra also urges this Court to hold that the States failure to make visual
or sound recordings during the identification procedures in this case violates Guerras
rights of due process under both the United States and Texas Constitutions In light
of long existing inexpensive recording technology it is shocking to note that audio and
video technology has not been employed to ensure the fairness of pretrial identification
procedures In fact police reports show that the State had audio and video equipment
available but that they used the equipment selectively Compare App 74 111 F267
-At least one Texas court has recognized the significance of police deterrence
stating that the purpose of the rule excluding evidence of unnecessarily suggestive
and
unreliable identification procedures is to deter police from using less reliable procedure
where more reliable procedure is available Chaisson State 761 S.W.2d 77 81 Tex
App.--Beaumont 1988 no writ citing Jackson State 657 S.W.2d 123 128 Tex Crim
App 1983 For the U.S Supreme Court police deterrence is no longer chief
consideration jç at 111 As result state enforcement agencies unchecked by an
exclusionary rule continually engage in procedures designed to deny defendants their due
process rights Rodriguez 906 F.2d at 1163 n.6 As the Seventh Circuit has stated
we note with distress that we continue to review cases showups
omitted and other suggestive police procedures
1Members of the Manson Court expressly invited states to experiment in the
development of rules governing pretrial identification procedures Manson 432 U.S at
118 Stevens concurring Federal Constitution does not foreclose experimentation by
states in development of such rules see also at 128-129 Marshall dissenting It
is therefore important to note that the state courts remain free in interpreting state
constitutions to guard against the evil clearly identified by this case
-190-
457 witness statements audio taped yj App 88 F367 reenactment not video
taped App 70 F250 videotapes taken at 4911 Rusk
92 Guerras request is consistent with recommended pretrial identification
procedures by adopting the guidelines proposed by the American Law Institute Model
Code of Pre-arraignment Procedure which provide as follows in Section 160.4
Voice Photographic and Personal Identifications General
Requirements written record shall be made of any identification
procedure conducted pursuant to section 160.11a setting forth in
detail the names and addresses of the persons sent the circumstances
of the procedures and what took place at the procedure and
record or reference to any record of any prior identification procedure
and of any prior statements by any witness regarding the identification
of the person who committed the crime under the investigation
written record shall include any statements by or to any witness
unless those statements are contained in sound record of the
procedure
Identification of persons in custody are pursuant to an order to
appear In addition to the written record required by subsection
visual and sound record shall be made of any identification
procedure involving hearing the voice of or viewing person in
custody or sent pursuant to an order to appear except such visual
and sound record may not be made where
confrontation is arranged pursuant to section 160.21a
promptly after conviction of crimel
counsel is sent and consents to such admission or
the procedure takes place in the presence of judicial officer
In photographic identifications the written required by subsection
shall have appended to it copies of any photographs or other representations
made by witness with an indication of the sequence and circumstances
under which they were reviewed or reference to such photographs or other
representation which would permit reconstruction of procedure
or sound record shall be made of any statements made by or to the
witness in the course of the procedure
-191-
Proposed Official Draft Complete Text and Commentary 1975
Vifi GUERRA WAS DEPRWED OF HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH EIGHTH
AND FOURTEENTh AMENDMEN1S TO THE UNiTED STATES
CONSTiTUTION AND ARTICLE SECTION 10 OF THE TEXAS
CONS11TUTION
Guerra has the Constitutional Right to Receive Effective Assistance of
Counsel
The Sixth Amendment guarantees criminal defendants the right to competent
counsel The Sixth Amendments guarantee of competent counsel is binding upon the
States through the Fourteenth Amendment Anders California 386 U.S 738 742
1967 citing Gideon Wainwright 372 U.S 335 1963 This right is fundamental to
our criminal justice system Competent counsel for the defendant is critical to the
adversarial system in order to produce just results and ensure that the trial is fair
Strickland Washington 466 U.S 668 685 1984
142The Texas Constitution also guarantees right to counsel Tex Const art 10
Should the court be unwilling to find the constitutional support under the U.S Constitution
needed to save this innocent man from death it can find Guerras rights were violated
under the Texas Constitution See pp 279-87 infra discussing broader interpretation of
the Texas Constitution
-192-
The right to counsel includes the right to effective assistance of counsel
at 680 emphasis added The benchmark for judging an ineffective assistance claim
is whether counsels conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced just result jj
Demonstrating ineffective assistance requires proving that defense
counsels performance was deficient and ii that deficient performance prejudiced the
defense jQ at 687 In other words the test requires that defendant show that
counsels errors were so serious that they deprived the defendant of fair trial trial
whose result is reliable Id
The Norm for Professional Competence
Strickland suggests that courts look to the range of competence demanded
of attorneys in criminal cases or reasonableness under prevailing professional
norms in
determining whether counsel was effective 466 U.S at 687-88 legal professions
maintenance of standards is key to ensuring that counsel will fulfill the role in the
adversary process that the Amendment envisions at 688
For guidance in establishing that range of competence by which counsels
performance should be judged the U.S Supreme Court and Texas courts have looked to
the standards set by the American Bar Association Strickland 466 U.S at 688 Nealy
i.WFhe Sixth Amendment requires the assistance of counsel not merely the provision
of counsel United States Cronic 466 U.S 648 654 1984 The special value of the
right to the assistance of counsel explains why has long been recognized that the right
to counsel is the right to effective assistance of counsel citing McMann
Richardson 397 U.S 759 771 n.14 1970 Further Sixth Amendment mandates
that the State bear the risk of Constitutionally deficient counsel Kimmelman Morrip
477 U.S 365 379 1986
-193-
Cabana 764 F.2d 1173 1178 5th Cir 1985 The most current ABA Standards for
Criminal Justice hereinafter ABA Standards urge defense counsel to conduct prompt
investigation of all avenues relevant to guilt-innocence and punishment The ABA
Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
hereinafter ABA Guidelines place an even stronger emphasis on prompt investigation
of mitigating evidence for the punishment phase.12 Although these guides are not to be
rigidly applied when evaluating the adequacy of trial counsels performance they provide
1-The ABA Standards provide
Defense counsel should conduct prompt investigation of the
circumstances of the case and to explore all avenues leading to facts relevant
to the merits of the case and the penalty in the event of conviction The
investigation should include efforts to secure information in the possession
of the prosecution and law enforcement authorities The duty to investigate
exists regardless of the accuseds admissions or statements to defense counsel
of facts constituting guilt or the accuseds stated desire to plead guilty
ABA Standards 4-4.1 49 Crim Rep BNA 2017 April 10 1991 emphasis added
1-The ABA Guidelines provide
Counsel should conduct independent investigations relating to the
guilt/innocence phase and to the penalty phase of capital trial Both
investigations should begin immediately upon counsels entry into the case
and should be pursued expeditiously
The investigation for preparation of the sentencing phase should be
conducted regardless of any initial asertion by the client that mitigation is not
to be offerecL This investigation should comprise efforts to discover all
reasonably available mitigating evidence and evidence to rebut any
aggravating evidence that may be introduced by the prosecutor
ABA Guidelines 11.4.1 February 1989 emphasis added
-194-
professional norm by which counsels effectiveness can be judged In this case trial
counsels performance fell far short of that norm
Need to Show Prejudice Resulting from the Defense
In United States Cronic 466 U.S 648 1984 the Supreme Court
recognized that in certain situations counsel may be rendered ineffective through actions
of the State that deprive counsel of the opportunity to put the prosecutions case to fair
and adequate adversarial testing thus rendering counsel ineffective In such
circumstances unlike Strickands test the defendant need not prove prejudice rather
prejudice is presumed In addition to the due process violations arising from the States
repeated non-disclosures of material exculpatory evidence to the defense as described
earlier herein the failure of the State to make such disclosures rendered trial counsel
ineffective Counsel was prevented by the State from putting the prosecutions case to
true adversarial test easing the States burden to obtain conviction at 658-62
accompanying notes
Even if prejudice were required it is present here and the Strickland
standard is met
To show prejudice against the defendant under the Strickland standard the
defendant must show that there is reasonable probability that but for counsels
unprofessional errors the results of the proceeding would have been different at
694 In the criminal trials guilt phase the question is whether there is reasonable
convicted defendant making an ineffective assistance claim must identify the
counsels acts or omissions that are alleged not to have been the result of reasonable
continued..
-195-
probability that absent the errors the fact finder would have had reasonable doubt
respecting guilt at 695 In the punishment phase the question is whether there is
reasonable probability that absent the errors the sentencer -- including an appellate
court to the extent it independently reweighs the evidence -- would have concluded that
the balance of aggravating and mitigating circumstances did not warrant death
reasonable probability is probability sufficient to undermine confidence in the outcome
Id at 694
The defendant does not have to show that the deficient conduct more likely
than not altered the outcome of the case jj at 693 emphasis added
10 In making determination of ineffectiveness the court must look to the
totality of the evidence at 695 Moreover verdict or conclusion only weakly
supported by the record is more likely to have been affected by errors than one with
overwhelming support at 696 These principles are not mechanical rules -- they are
guides for decisionmaking process whose ultimate focus must be on
the
fundamental fairness of the proceeding whose result is being challenged at 696 The
result is unreliable if there was breakdown in the adversarial process
11 In Guerras case the facts and the totality of the evidence indicate the
adversarial process indeed broke down due the ineffective assistance of counsel At
virtually every stage in his capital murder trial Guerras lawyers failed to provide
representation that meets with the constitutionally guaranteed
minimum effective
1-11...continued
professional judgment and thereby resulted in ineffective assistance Strickland 466 U.S
at 690
-196-
assistance of counsel often because of actions by the State that deprived Guerras lawyers
of crucial exculpatory evidence But for their errors Guerra would have been neither
convicted nor sentenced to death He was therefore deprived of his constitutional right
to effective assistance of counsel and his conviction must be reversed
12 The following facts outline the acts and omissions of Guerras attorneys
amounting to ineffective assistance and indicate that he is entitled to new trial
Guerras Counsel Rendered Ineffective Assistance Throughout the Entire
Trial Process
13 Defense counsel while making sincere efforts failed to adequately investigate
and prepare Guerras case in large part due to improper actions by the police and
prosecutors Counsel failed to
utilize the very limited time available to ascertain the facts
hire an investigator promptly to locate crucial witnesses
use the court-appointed investigator effectively
interview important witnesses
recreate the scene to determine the viability of the witnesses stories and the
impact of the physical evidence
hire expert witnesses
investigate and attack the lineup and other identification procedures
object to improper comments by the prosecution during voir dire
-197-
raise numerous issues during the guilt-innocence phase including the
contradiction between the witness testimony and the physical evidence
concerning Guerras location when Harris was shot and
prepare for and present mitigating evidence during the punishment stage
These failures are not the result of any reasonable trial strategy In sum counsel failed
to even try to obtain available evidence that would have demonstrated the inconsistencies
in the States case and would have proven Guerras innocence
Inadequate Pretrial Investigation and Preparation for the
Guilt-Innocence Phase
14 Defense counsel failed to conduct prompt and adequate pretrial
investigation personally or through the court-appointed investigator and failed to analyze
the States evidence to ascertain the inherent inconsistencies between and among the
States witnesses and the physical evidence
15 No strategic considerations account for the failure to promptly find witnesses
talk to those identified by the prosecution and spend the time necessary to discover and
expose the incredible deficiencies and inconsistencies in the States investigation Much
of this can be explained by the States careful tailoring of witness statements to eliminate
certain exculpatory information and by other conduct described elsewhere designed to
prevent defense counsel from discovering helpful evidence.1-
1-See pp 58-65 supra describing inter alia police withholding and concealment of
exculpatory evidence and witness intimidation It is difficult to blame counsel for failing
to investigate leads that the State deliberately conceals The States abuse of its role as
justice seeker undoubtedly hindered the ability of Guerras attorneys to effectively defend
their client
-198-
16 By July 15 1982 the trial court had appointed two attorneys to defend
Guerra Tr 355 Jury selection was scheduled to begin on August 30 1982 at
Thus Guerras lawyers had at best 6/2 weeks to prepare the defense in this much
anticipated and highly publicized capital murder trial at which Guerras life was at
stake.1
17 Unfortunately Guerras counsel did not face the best of circumstances when
preparing Guerras defense The senior attorney had another trial that began on
August 1982 at 24 At an evidentiary hearing Guerra will show that that trial
lasted approximately four or five days That same attorney had second trial set to
begin on August 16 1982 jç Although the second trial apparently never occurred the
first cases trial and the other setting undoubtedly required weeks of work preventing
Guerras lead attorney from focusing on Guerras defense and necessary investigation
This left barely month at best to prepare for Guerras capital murder trial
18 In the meantime Guerras junior attorney was in no position to begin
investigating on his own At the time of trial Guerras junior attorney had only practiced
law for three years and had never tried capital case He understandably viewed his role
as subordinate one that required guidance from co-counsel
19 Indeed the States file reveals that defense counsel did not review the police
files until August 19 more than month after their appointments and only 11 days before
For detailed account of the publicity and notoriety surrounding this trial and the
effect these factors had on the trial see pp 110-26 supra
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trial began App 141 F690 Nor did they receive the exculpatory trace metal test
results until that day
20 Defense counsel did not file motion for the appointment of an investigator
until Friday August 13 1982 Tr 45 almost month after the appointments The trial
court granted this motion on Thursday August 19 1982 at 46 only 11 days before
trial
21 Guerras counsel filed Motion for Continuance on August 13 1982
at 24-26 The reasons as stated in the motion for needing the continuance were as
follows the August 1982 trial ii the second trial setting of August 16 1982 iii
the numerous witnesses involved in the case iv the shortage of time between the date
on which counsel had been appointed and the start of trial The motion insisted that
force defense counsel to go to trial within six weeks after he has been appointed
could and would work to the detriment of the Defendant at 24 By August 19
Guerras lawyers had decided not to seek ruling on the motion S.F Vol at 20 The
resulting shortage of time made imperative the need for prompt and intensive
investigation by counsel and extensive use of an investigator and experts
22 Jury selection began as scheduled on August 30 S.F Vol at The
jury was impaneled on October S.F Vol 19 at 3567 The State announced ready
to begin its case-in-chief on October 1982 see S.F Vol 20 at 3-4 but the defense filed
another motion for continuance based on the recent receipt of information that one or
two witnesses exist Tr 101-03 The Court denied the motion but indicated the defense
could use an investigator to assist counsel in contacting witnesses S.F Vol 20 at
-200-
23 At an evidentiary hearing Guerra will show that his trial counsel apparently
hired an investigator but used him sparingly to question only three or four witnesses due
to financial constraints Moreover Guerra can find no indication of any lawyer follow-
up of those witnesses or efforts to contact number of other crucial witnesses
24 thorough investigation and extensive preparation were essential in order
to effectively prepare and defend Guerra against this capital murder charge As
confirmed by counsels belated second motion for continuance filed after jury selection
the short time between the date of the crime and the start of trial in August 61/2 weeks
prevented counsel from completing all the investigation required to even approach
adequate trial preparation
25 Guerra will prove that if counsel had thoroughly investigated they would
have found additional witnesses who support Guerras account of the shooting
competent crime scene investigator with adequate defense counsel guidance would have
exposed the remarkable deficiencies in the States investigation of the case and its
witnesses
Failure to Consult and Retain Other Experts and to Prepare
26 The State presented the testimony from several Police Department forensic
experts to introduce circumstantial evidence supporting its theory of the case Numerous
items of physical evidence were available for review before and during trial yet defense
counsel never hired -- and never sought -- their own independent experts to evaluate this
-41As the motion inferred defense counsel was unable to engage in meaningful
investigation during jury selection presumably because they needed to be in court day
after day and other matters needed some attention as well
-201-
material This omission is glaring and was undoubtedly prejudicial to Guerra For
example
ballistics and firearms expert would have examined the location of
the blood spatters bullets and shell casings to determine the
location
of the shooter when he was shot and thereby refuted the testimony
of every so-called eyewitness
trace metal expert could have determined that the pattern on
Carrascos left hand was consistent with the pattern left by the murder
weapon thereby suggesting that Jose Jr.s description of left-handed
shooter might have been referring to Carrasco and ii the murder
weapon leaves pattern much sooner than the 21/2 minutes claimed
by the States expert
fingerprint expert might have determined whether the print
found on the police car belonged to Guerra and thus verified whether
Guerra was closer to the driver door or the front of the car and ii
whether the shooter had left print on Harriss holster when Harriss
gun was taken
chemist could have determined whether nitrite was present on the
right rear shoulder of Guerras shirt which would have substantiated
Guerras claim that he heard the sound of Carrascos gun over his
right shoulder
lighting expert would have examined the amount of Street light
close to cars where Carrasco and Guerra were located to determine
how easily witnesses could discern clothing color hair length and
color and movements
It appears that due to apparent financial constraints
defense counsel never consulted with
any experts to evaluate the possibilities
of rebutting or at least questioning the States
assertions Defense counsel therefore had no independent evidence to use or to help
Guerra will present expert testimony at an evidentiary hearing proving the veracity
of these allegations
-202-
impeach the States experts all of whom with only one minor exception were Police
Department officials or employees S.F Vol 20 at 61 106 116 Vol 21 at 158 179
27 Defense counsel has duty to conduct an independent investigation into the
facts.1- Counsels duty to investigate may not be sloughed off to an investigator
is counsels responsibility Flores State 576 S.W.2d 632 634 Tex Crim App 1978
28 Here neither counsel nor an investigator made an adequate investigation of
Guerras case As in Baldwin there is no way that defense counsel could have provided
effective assistance to Guerra since there was no reasonably substantial investigation No
reasonable trial strategy would leave out independent expert consultation in preparation
of the defense to case about the shooting of police officer
-Butler State 716 S.W.2d 48 54 Tex Crim App 1986 citing Ex parte Ewing
570 S.W.2d 941 947 Tex Crim App 1978 see also Bell Watkins 692 F.2d 999
1009 5th Cir 1982 cert denied sub nom Bell Thigpen 464 U.S 843 1983 Baldwin
Maggio 704 F.2d 1325 1332-33 5th Cir 1983 cert denied 467 U.S 1220 1984
unless counsel undertakes reasonably substantial independent investigation into the
circumstances and the law for which potential defenses may be derived he cannot provide
effective assistance emphasis added
1Guerra was denied access to evidence not introduced at trial at the hearing on
his Motion for Discovery on July 28 1992 Many crucial items have not been examined
to date For example Guerra cannot
test-fire the murder weapon to determine how quickly it leaves
trace metal pattern when held tightly enough to fire it and how
far and in what direction its shell casings are thrown which would
allow more accurate placement of the shooter
ii attempt to computer-enhance the smudged fingerprint from the hood
of the police car which would place Guerras location near the time
of the shooting and confirm that he could not have fired the shots at
Harris from the east and
continued..
-203-
29 Defense counsels failure to request funds for expert assistance could have
had no strategic basis This lack of pretrial preparation caused Guerra to receive
ineffective assistance of counsel
Failure to Attack the Lineup and Other Prosecution Pretrial
Investigative Techniques
30 As Guerra will show at an evidentiary hearing the lineup that gave rise to
several witnesses purported identifications of Guerra as the shooter was grossly suggestive
The suggestive lineup caused confused witnesses to adopt the States party line and
grievously prejudiced Guerra pp 166-83 supra The police and prosecutors
subsequent investigation by the use of the July 22 group walk-through and the pretrial
mannequin viewing were also highly and unfairly suggestive
31 To camouflage its use of improper procedures the police inserted into
several witness statements lineup descriptions carefully phrased to leave reader with the
impression that proper procedures had been followed and that all potentially relevant
witnesses had participated in the July 22 walk-through Defense counsel failed to
1-...continued
iii test the back of Guerras shirt for gunpowder the presence of which
though only remotely likely after 10 years would if nitrite is found
demonstrate that Carrasco fired the gun near Guerras shoulder as
Guerra has claimed
Guerra again renews this request since independent experts analysis of such material is
crucial to complete evaluation of the prejudice worked on Guerra Moreover the
importance of the absence of the defense experts at the time of the original trial is
heightened by the courts denial of this request
note 92 supra
-204-
investigate the lineup and walk-through and thus failed to learn of the wrongdoing and to
attack their constitutionality either at preliminary hearing or at trial
32 Even though certain defects in investigative procedures were hidden defense
counsel nevertheless should have inquired in detail about the procedures from cooperating
witnesses See e.g S.F Vol 23 at 753 Heredia testimony about the lineup problems
On learning at trial that the police used improperly suggestive identification techniques
it was incumbent upon trial counsel to seek Wade-Gilbert hearing Counsels failure to
request such hearing amounted to ineffective assistance of counsel in violation of
Guerras Sixth Amendment rights Cronic 466 U.S 648 Rodriguez Young 906 F.2d
1153 1160 7th Cir 1990 cert denied 111 Ct 698 1991 defense counsels failure
to move to suppress identification testimony was objectively unreasonable and outside
the
wide range of professional competent assistance
33 The result of not raising the issue was possible waiver of Guerras federal
constitutional rights and conceivably his state constitutional rights as well It is
inconceivable that such an omission can be attributed to trial strategy of
basic threshold responsibility is the antithesis of considered strategy Sanders
State 715 S.W.2d 771 775 Tex App.--Tyler 1986 no pet citing Ex parte Dunham 650
S.W.2d 825 827 Tex Crim App 1983
pp 290-93 infra for why this failure should not waive Guerras state
constitutional rights
Although Sanders involved the failure to attack the voluntariness of the defendants
confession it is analogous to the failure to attack the suggestiveness of the lineup The
State contended in Sanders that defense counsels strategy had been to attack the
continued..
-205-
34 Defense counsel had threshold responsibility -- especially in highly
publicized and emotionally charged case such as this -- to determine whether the lineup
had been conducted improperly If counsel had requested such hearing and had
questioned the States witnesses the identifications at the lineup and subsequent
investigative procedures almost certainly would have been suppressed at trial pp
163-92 supra Without the prosecution being able to assert in closing
in its rebuttal that
five witnesses had identified Guerra as the shooter see 166-77 supra no conviction
would have occurred since the physical evidence the initial statements of the States
witnesses and two defense eyewitnesses pointed to Carrasco as the gunman
35 Thus defense counsels failure to investigate the lineup and other
investigative procedures was not only prejudicial but probably critical
Acts and Omissions During Voir Dire
36 Defense counsel failed to object when the prosecutors repeatedly misstated
the law during voir dire by telling people who became jurors that Guerras status as
an illegal alien was relevant at the punishment stage see pp 126-28 supra with defense
counsel objecting only once see S.F Vol 19 at 3552 ii that police officers are entitled
to more credibility than other witnesses see 68 supra and iii that the length of
prison term actually served by person given life sentence
is determined by formula
continued
voluntariness of the confession at trial 715 S.W.2d at 775 n.1O But the court noted that
defense counsel failed to request charge on the issue citing Burnworth State
698
S.W.2d 686 690 Tex App.--Tyler 1985 pet ref Moreover the defense could have
raised the issue both at preliminary hearing and at trial Sanders 715 S.W.2d at 775
n.10 citing Harris State 465 S.W.2d 175 177 Tex Crim App 1971
-206-
used by the Parole Board see pp 69-70 supra No reasonable trial strategy envisions
defense counsels acquiescence to these tactics
37 To pass over the admission of prejudicial and arguably inadmissible evidence
may be strategic to pass over the admission of prejudicial and clearly inadinissible
evidence has no strategic value Lyons McCotter 770 F.2d 529 534 5th Cir 1985
emphasis added The same must be true of prejudicial and inappropriate comments
during voir dire Since there is no strategic reason for defense counsels failure to object
to these prejudicial statements that failure amounts to ineffective assistance
Defense Counsels Acts and Omissions During the Trials
Guilt-Innocence Phase Resulted in Ineffective Assistance
Failure to Mention the Impossibility of Someone in Guerras
Location at the Scene Could Have Been the Shooter
38 The physical evidence unequivocally demonstrated that the shooter when he
fired at Harris was standing east of and close to Harris S.F Vol 20 at 73-74 87
Vol 23 at 685-86 All the States witnesses placed Guerra south or west of Harris
note 29 supra Defense counsel never once mentioned this contradiction
In-Court Identifications Were Not Attacked
39 Although Guerras trial counsel had an indication of the States use of
improper identification and investigative procedures they failed to request pretrial
hearing at which they could expose the unreliability of the purported eyewitness
Guerras attorneys did not object but Guerra submits that separately and in totality
he was denied fair trial objection to which cannot be waived pp 277-79 290-93
infra
-207-
identifications Furthermore defense counsel failed to object to the in-court
identifications of Guerra by State witnesses This does not illustrate reasonable trial
strategy
40 Had defense counsel sought to suppress the in-court eyewitness
identifications on the basis that the States pretrial identification procedures were
impermissibly suggestive the States case would have collapsed
Without the in-court
identifications of Guerra the State had no evidence on which to base conviction
Nevertheless defense counsel failed to request Wade-Gilbert hearing which would
have
demonstrated the inherent unreliability of the so-called eyewitnesss testimony and
identifications
Omissions in Cross-Examination of Fingerprint Expert
41 Trial counsel also failed to bring out crucial exculpatory evidence on cross-
examination of fingerprint examiner L.L Cooper As revealed in his report App 89
F368 Cooper discovered no fingerprints on the murder weapon matching Guerras
fingerprints Yet defense counsel inexplicably failed to
cross-examine Cooper on this
critical point S.F Vol 20 at 116 As result the jury was not provided with clearly
-2The key to the States case against Guerra was the testimony of so-called
eyewitnesses that albeit in an inconsistent and misleading manner
identified Guerra as
the shooter Defense counsel knew that Guerra had been placed in lineup without
counsel present At this lineup some witnesses identified Guerra Defense counsel knew
that the prosecutorial team of lawyers and police went to the
crime scene and ii
walked through i.e reenacted the events of the shooting as police interpreted
the
events -- all in the presence of the group of witnesses Defense
counsel also knew that
most of the States witnesses had been shown the mannequins of Carrasco
and Guerra
prior to trial thus giving these
witnesses ample opportunity to examine their appearance
For detailed account of the specific problems with this testimony see pp 161-62 163-83
supra For detailed account of specific problems
with the line-up see pp 155-60 supra
-208-
exculpatory evidence that was material to Guerras defense No reasonable trial strategy
would omit bringing out this critical evidence
Defense Counsels Conduct During the Penalty Phase Resulted
Ineffective Assistance
42 In the penalty phase of the trial the State has the burden to show beyond
reasonable doubt that the defendant committed the crime deliberately and with the
reasonable expectation that death would result and ii there is probability that the
defendant would commit criminal acts of violence that would constitute continuing threat
to society Compare Tr 331 yjh Tex Code Crim art 37.071b The defendant then
is expected to controvert this proof by adducing mitigating evidence
43 The entire defense case at the punishment hearing consisted of the following
testimony by Guerras mother
Tell the jury your name please
Francisca Guerra de Aldape
And are you related to Ricardo Aldape Guerra
He is my son
Where do you live Mrs Guerra
Monterrey
And when did you come to the United States
Right now
How long have you been here
month that is the 12th of September have been here month
How many children do you have
Four
Do you know when your son Ricardo Aldape Guerra came to the
United States
-209-
Yes
When
In May
Of this year
Yes
How old man is he
Twenty years
Prior to his coming to the United States in May of 1982 had he come
here previously
Never
Where did he live when he lived in Mexico
Right now since have been here have been living there one year
and have lived at Caracas 410 Caracas San Nicolas de los Garza
Nuevo District of Monterrey
Where did your son live when he lived in Mexico
With us
Had he ever been convicted of any felonies
Never Never
Are you here in visa
Yes We have permit permit Here it is for you to see
And when does your permit expire
It says right here the 31st of October
S.F Vol 26 at 158-60 The defense put on no other witnesses
44 The prosecutors used this paucity of proof in closing argument with piercing
effectiveness Mr Bax wondered rhetorically how to interpret defense counsels failure to
ask Guerras mother what her son had been like growing up S.F Vol 27 at 177 Mr
Moen was more biting Pointing out that defense counsel had offered no evidence from
anyone about Guerras character he noted that many people could have provided insight
-210-
on Guerras reputation for being peaceful at 200-03 He then argued that the lack
of evidence left the jurors with no alternative but an affirmative finding on future
dangerousness at 203
45 The Supreme Court has held that the adversarial nature of the punishment
phase of capital case is sufficiently similar to the guilt-innocence phase that defense
counsels role in the two proceedings is similar Therefore ineffective assistance of
counsel claims arising out of either phase are governed by the same standards Burger
Kemp 107 Ct 3114 3123 1987 Strickland Washington 466 U.S 668 686-87
1984 The Eighth Amendment mandates that the punishment phase of capital
proceeding focus on the defendant as uniquely individual human being and allow the
jury to make reasoned decision about whether death is an appropriate sentence
Woodson North Carolina 428 U.S 280 304 1975 This individualized assessment of
the appropriate sentence is to be made through the jurys consideration of the particular
characteristics of the defendant and the circumstances of the crime Penrv Lynaugh
109 Ct 2934 2946 1989 Eddings Oklahoma 455 U.S 104 112 1982 Gregg
Georgia 428 U.S 153 198 1976 To do this the jury must hear facts about the
defendants background and defense counsel must of course have knowledge of those
facts in order to present them
46 It follows then that just as defense counsel has duty to conduct
reasonable investigation of the facts of the crime reasonable investigation must also be
conducted into the defendants background for possible mitigating evidence Middleton
Dugger 849 F.2d 491 493 11th Cir 1988 It would be violation of the Sixth
-211-
Amendment standard of effective assistance under Strickland for counsel to fail to make
any investigation relevant to the punishment phase Knighton Maggio 740 F.2d 1344
1350 5th Cir cert denied 105 Ct 306 1984 counsel must make
significant effort based on reasonable investigation and logical argument to ably present
the defendants fate to the jury and to focus the attention of the jury on any mitigating
factors may not treat the sentencing phase as nothing more than mere
postscript to the trial Kubat Thieret 867 F.2d 351 369 7th Cir 1989
47 Capital sentencing is in catgory apart from all other sentencing
proceedings due to the qualitative difference in the penalty that may be imposed
Turner Murray 476 U.S 28 35 1986 qualitative difference of death penalty requires
greater scrutiny Therefore capital case the attorneys duty to investigate all
possible lines of defense is strictly observed Osborn Shillinger 861 F.2d 612 627
10th Cir 1988 citing Coleman Brown 802 F.2d 1227 1233 10th Cir 1986 fl.
denied 482 U.S 909 1987 When assessing counsels performance the seriousness of
the death penalty is factor that must always be considered Magill Dugger 824
F.2d 879 886 11th Cir 1987 seriousness of charge is factor to be considered in
assessing counsels performance
Defense Counsel Failed to Investigate Guerras Background for
the Punishment Phase
48 If defense counsel had engaged in only minimal investigation into Guerras
background they would have found wealth of strong favorable evidence At hearing
Guerra will show the following through sworn testimony from numerous witnesses
-212-
49 Guerra had just turned 20 when he came to the United States in May 1982
He was born in Monterrey Mexico on April 1962 His father stapled cardboard boxes
together on the assembly line at local carton factory for 33 years His mother was
housewife Guerra lived with his parents until he left Mexico in early 1982 looking for
work
50 Guerra is the youngest of four children all of whom remain close to their
parents in Monterrey His family although very poor is close-knit and supportive His
parents are still married His family regularly makes the arduous trek from Monterrey by
van to visit him on Death Row
51 Guerra attended primary and secondary school in Monterrey but dropped
out at the age of 17 to take job at the factory with his father He worked at variety
of tasks at the factory from loading cartons to running errands Guerra worked full time
and earned roughly $35 per week He turned his entire paycheck over to his mother
every week she in turn would provide him with an allowance and use the rest of the
money to purchase food and clothing for Guerra and the other children
52 Guerra was valued employee at the carton factory for two and one-half
21/2 years An avid soccer player he starred on the factorys soccer team Yet Ricardo
longed for better job one which would allow him to support his parents in their old
age When two of his friends told him that they were going to the United States to find
work Guerra spontaneously decided that he would accompany them
53 After he arrived in Houston Guerra worked installing sheetrock for
subcontractor He was paid little by American standards only $3.00 per hour but still
-213-
managed to save some money which he intended to send back to his mother
in
Monterrey Indeed when he was arrested for the capital murder of Officer Harris
his
property consisted of $14.00 cash and money order made out to his
mother in the
amount of $300.00 -- his total savings after two months of work
54 Guerra had never been arrested charged or convicted with any crime
before the incident in this case Had defense counsel requested documentation from the
Government of Mexico they could have introduced official proof of his clean criminal
record Defense counsels failure even to request that documentation was violation of
the ABA Standards note 149 supra
55 An investigation also would have led counsel through Guerras parents to
psychologist who tested Guerra when he was 16 and who would have testified that he was
follower not leader and that she found no indication that he possessed criminal or
violent tendencies In his home town of Monterrey he was known as quiet calm man
who helped support his parents with the meager wages he earned at the factory His
friends remember him as gifted soccer player whose tolerance for strict discipline
exceeded that of his teammates His teachers remember him as quiet boy who
respected authority and interacted well with other children
56 Even the most cursory investigation of Guerras background and character
therefore would have uncovered plethora of mitigating evidence
in the testimony of his
friends teachers employers and family
57 Defense counsel made no effort to learn any facts about Guerras character
and present these facts to the jury In fairness adequate investigation
into and
-214-
presentation of this evidence would have required traveling to Monterrey .and bringing
witnesses to trial which required funds that the trial court might not have authorized
But such request should have been made
This Failure to Investigate and Present Mitigating Evidence
Constituted Ineffective Assistance of Counsel
58 It should be beyond cavil that an attorney who fails altogether to make any
preparations for the penalty phase of capital murder trial deprives his client of
reasonably effective assistance of counsel by any objective standard of reasonableness.t
Blake Kemp 758 F.2d 523 533 11th Cir cert denied 474 U.S 998 1985 emphasis
added Here counsels failure to present the readily available mitigating evidence
described in the previous nine paragraphs reflects failure to interview Guerra about his
background or other potential mitigating evidence Defense counsel also failed to conduct
social history interview of Guerra social history interview is fundamental to
developing mitigating evidence and should be conducted by defense counsel within 24
hours of entering the case ABA Guideline 11.4.1D2
59 Other courts have held that failure to investigate and present mitigating
character evidence falls short of the Sixth Amendment guarantee of effective assistance
of counsel See e.g Blake Kemp 758 F.2d 523 11th Cir cert denied 474 U.S 998
1985 King Strickland 748 F.2d 1462 11th Cir 1984 cert denied 471 U.S 1016
1The type of mitigating evidence that was available in Blake and was presented at
the petitioners habeas hearing was the testimony of four persons who had known the
petitioner to be man who was respectful toward others who generally got along well
with people and who gladly offered to help whenever anyone needed something
Martinez Collins Slip Op at 534 There were others who would have testified on
continued..
-215-
1985 counsels failure to present available character witnesses combined with his weak
closing argument constituted ineffective assistance of counsel Martinez Collins
88-0961R-01 Slip Op W.D Tex Nov 1991
60 Clearly counsels failure here to seek out mitigating evidence was ineffective
assistance because strong mitigating evidence would have been discovered The failure to
seek out and interview potential witnesses is ineffective where the result is that any
viable defense available to the accused is not advanced Butler State 716 S.W.2d 48
54 Tex Crim App 1986 citing Ex parte Lilly 656 S.W.2d 490 Tex Crim App 1983
It is ineffective assistance of defense counsel to fail to investigate sources of evidence that
may be beneficial to the defense Jones Thigpen 555 Supp 870 879 S.D Miss
1983 788 F.2d 1103 5th Cir 1986
61 In capital sentencing proceeding the jury is called upon to make highly
subjective unique individualized judgment regarding the punishment that particular
person deserves Turner Murray 476 U.S 28 33-34 1986 citation omitted It is
essential therefore that the sentencer consider those compassionate or mitigating factors
stemming from the diverse frailties of humankind Woodson North Carolina 428 U.S
...continued
Blakes behalf but they had died since the time of the trial This is the same type of
mitigating evidence that could have been presented at Guerras trial had counsel conducted
an investigation
In Martinez slip op an unpublished decision which is nevertheless instructive the
court applied Strickland Washington 466 U.S 668 1984 and concluded that trial
counsels performance was deficient in part because of counsels failure to investigate and
present evidence from family members regarding the defendants good character traits
The district court found that trial counsel failed to interview family members in
preparation for the sentencing phase of the defendants capital murder trial
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280 304 1975 Due to counsels ineffective assistance at the punishment phase the jury
was prevented from rendering an individualized decision because their attention was not
focused on the particular characteristics of this defendant Evidence tending to show
good character might well have been beneficial to the defense Harris
Dugger 874 F.2d 756 763 11th Cir 1989 Testimony about the appellants good
character constituted the only means of showing that was perhaps less
reprehensible than the facts of the murder indicated at 764 Where no mitigating
evidence is introduced the jury is provided with no counterweight to the evidence of bad
character which was in fact received Blake 758 F.2d at 535
Defense Counsels Failure to Investigate Mitigating Facts Was
Not the Result of an Informed Strategic Decision and
Therefore Was Unreasonable
determining whether counsel was ineffective for failing to put on62 In
mitigating evidence
First it must be determined whether reasonable investigation should have
uncovered such mitigating evidence If so then determination must be
made whether the failure to put this evidence before the jury was tactical
choice by trial counsel If however the failure to present the mitigating
evidence was an oversight and not tactical decision then harmlessness
review must be made to determine if there is reasonable probability that
but for counsels unprofessional errors the result of the proceeding would
have been different
Middleton 849 F.2d 491 493 11th Cir 1988 emphasis in original
63 The State may not credibly argue that given course of conduct by defense
counsel was within the realm of trial strategy unless counsel made the necessary legal and
factual investigation that could enable him to make an informed rational decision
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parte Welborn 785 S.W.2d 391 393 Tex Crim App 1990 Bouchillon Collins 907
F.2d 589 597 5th Cir 1990 An attorney is not necessarily required to investigate
every evidentiary lead decision to limit the investigation may be reasonable under the
circumstances Harris Dugger 874 F.2d 756 763 11th Cir 1989 However such
decisions must flow from an informed judgment
64 It is inconceivable that Guerras defense counsel could claim it was trial
tactic not to conduct even cursory investigation for mitigating evidence to use in the
punishment phase No reasonable professional judgment could support such decision --
particularly when the trial court has approved defense counsels request for an investigator
Any decision made by Guerras defense counsel not to investigate and not to put on
mitigating evidence was unreasonable because counsel did not possess enough facts to
make an informed strategic choice not to investigate mitigating evidence
In Baldwin Maggio 704 F.2d 1325 5th Cir 1983 cert denied 467 U.S 1220
1984 the court stated that
obligation to investigate in the context of capital sentencing proceeding
requires defense counsel to undertake reasonabv thorough pretrial inquiry into
the defenses which might possibly be offered in nutigation of pwzichment and
to ground the strategic selection among those potential defenses on an
informed professional evaluation of their relative prospects for success
counsel for criminal defendant is not required to pursue every
path until it bears fruit or until all conceivable hope withers neither
effective asrittance given by decision tantamount to an abdication of the
defendants cause not to investigate potential defenses at alL
IL at 1332-33 citations omitted emphasis added
1The failure to interview witnesses or discover readily available mitigating evidence
is an error in trial preparation not trial strategy Kenley Armontrout 937 F.2d 1298
1304 8th Cir cert denied sub nom Deleo Kentucky 112 Ct 431 1991
continued..
-218-
65 These omissions are patently not harmless Indeed the facts in this case
supporting finding of prejudice are similar to the facts that supported the finding of
prejudice in Ex parte Guzmon 730 S.W.2d 724 Tex Crim App 1987 As in Guzmon
the jurys finding of Guerras future dangerousness is only weakly supported by the
evidence Conclusions only weakly supported by the evidence are more likely to have
been affected by the errors Strickland 466 U.S at 696 Guerra was barely 20 years old
at the time of the offense Although he did not have wife or children Guerra was
helping support his family in Mexico This fact could have been shown by Guerras
mother and corroborated by the money order made out to her that was found on Guerra
at the time of his arrest App 82 P333 Guerra had not been in the United States
long enough to establish an employment history here but as we will show he did have
such history in Mexico Moreover in Guzmon the court emphasized the defendants
lack of prior criminal record 730 S.W.2d at 735 and as we will show Guerra here
similarly had no previous criminal record
66 The only evidence that the State offered to support finding of future
dangerousness was prior uncharged and unadjudicated robbery in which Guerra was
allegedly involved If defense counsel before trial had questioned the eyewitnesses to
that offense he would have discovered fundamental flaws in their recollections that would
...continued
Consequently any choice that flows from lack of diligence in preparation and investigation
is not protected by the presumption in favor of counsel Where the failure to
investigate was due to lack of thoroughness and preparation can hardly be
said to have made strategic choice against pursuing certain line of investigation when
s/he has not yet obtained the facts on which such decision could be made at 1308
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have called into question the only evidence of future dangerousness offered by the State
during the punishment phase Further had the jury known of Guerras prior good
conduct and had stronger evidence been offered regarding his clean criminal record it
would have tipped the scale away from death sentence and cast additional doubt on
whether he had been involved in the incident on which the State was focused
1-fhe only evidence offered by the State during the punishment phase was testimony
by two of the four witnesses to store robbery Robert Dawson and Steve Earhardt
one of whom Earhardt claimed that Guerra was one of the robbers S.F Vol 26 at
116-17 along with Carrasco and Enrique Luna at 102-03 115 and ii police expert
that Guerras fingerprint was found on canister of adhesive tape used to tie the hands
of the store employees and customers during the robbery at 149 see at 82-83
107-08 128-30 137 156
But initially none of the witnesses identified Guerra when they saw his picture
App 79 131 F286 598 And one of the witnesses Dawson did not identify Guerra at
trial as one of the robbers see 85-89 although he did identify Enrique Luna as
participant at 86-88 Moreover when questioned more closely by the police months
after the trial Dawson identified the third robber as man with tattoo named Mata
App 145-46 F762-63 In any event one of the two store employees who had seen the
robbery but did not testify told police that the only robber with beard was Carrasco
App 147 F765 and he identified Luna and Mata from photo array as the other two
robbers compare App 145 P762 App 143-44 F738-39 photo array The second
employee was uncertain App 142 148 F700 801
The presence of Guerras print on the tape canister could have been explained in
myriad of ways For example he might have innocently bought the tape at
Carrascos
request or handled it briefly at home or in the car trunk of these acquaintances or
neighbors
In sum defense counsel -- because of lack of investigation and preparation for the
punishment phase -- was unaware of how shaky the States proof was and thus was unable
to attack it on cross-examination or in closing argument or to produce countervailing
witness
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Even if No Single Error Constituted Ineffective Assistance the Totality of
the Errors Amounts to Ineffective Assistance and Justifies New Trial
67 Although each isolated error of counsel may not have amounted to
ineffective assistance the standard of review is the totality of the representation
Trvbule State 737 S.W.2d 617 621 Tex App.--Austin 1987 pet refd emphasis
added In Texas defendant has received adequate assistance is to be
judged by the totality of the representation rather than isolated acts or omissions of trial
counsel.t Wilkerson State 726 S.W.2d 542 548 Tex Crim App 1986 citation
omitted Butler State 716 S.W.2d at 54 see also Bridge State 726 S.W.2d 558 571
Tex Crim App 1986 In Guerras case unlike in Trvbule the defendant challenges not
only the sentence but also the determination of guilt both of which were only weakly
supported by the evidence
68 In Ex parte Welborn 785 S.W.2d 391 Tex Crim App 1990 the court
found ineffective assistance and reversed the trial courts judgment based on errors similar
to the ones alleged by Guerra including failure to interview the States witnesses failure
to object to statements made by the prosecution in closing argument that were
fundamental error and failure to demand hearing on the voluntariness of the statement
in the present case hearing on the propriety of the lineup at 396 The court
1In Trybule the court found that even though there may have been ineffective
assistance of counsel based on the totality of the circumstances the defendant was not
harmed because the appellant was only challenging the severity of the sentence and due
to the overwhelming evidence of guilt the court concluded that he probably would have
received the maximum penalty anyway at 620-21 In reaching that conclusion the
court used the rule from Strickland Washington that verdicts only weakly supported by
evidence are more likely to have been affected by errors Strickland 466 U.S at 696
-221-
stated that no error standing alone was sufficient proof of ineffective assistance the
defense counsels performance taken as whole however compelled such holding
After reviewing the expansive list of errors cited herein many induced by the State it
cannot reasonably be said that the totality of the errors does not undermine confidence
in the outcome of the trial But for the totality of the errors there is reasonable
probability that at the least Guerra would have received life sentence instead of death
and if justice prevailed at best he would have been found innocent
69 Similar to the totality of the circumstances test is the cumulative error
analysis The Fifth Circuit recognized the cumulative error analysis in habeas corpus
appeals in Derden McNeel 938 F.2d 605 609 5th Cir 1991 Cumulative error
analysis in habeas appeals is done on case-by-case basis and the sole dilemma for the
reviewing court is whether the trial taken as whole is fundamentally unfair citation
omitted When trial is fundamentally unfair there is reasonable probability that the
verdict might have been different had the trial been properly conducted citation
omitted Cumulative error analysis is Fourteenth Amendment Due Process inquiry and
the fact whether one or several errors caused the trial to be fundamentally unfair is not
important Içi at 610 Just as one error can violate defendants due process rights
under the Fourteenth Amendment several errors taken together can violate those rights
In Derden the court noted that courts review habeas petitions for
constitutional infraction of the defendants due process rights which would render the trial
as whole fundamentally unfair 938 F.2d at 609 citation omitted To determine
whether trial error makes trial fundamentally unfair is whether there is reasonable
probability that the verdict might have been different had the trial been properly
conducted Id citation omitted
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and cause the trial to be fundamentally unfair Since it is the accumulation of errors
that results in the deprivation the entire proceeding must be analyzed at 610-11
The foregoing numerous points establish that this standard is met
In Capital Cases Texas Should Follow the Same Test of Ineffective
Assistance that It Uses in Noncapital Cases
70 As the law presently stands in Texas the Strickland two-pronged test is the
proper standard for gauging the effectiveness of counsel at the guilt-innocence phase of
non-capital trial and at the guilt-innocence and punishment phases of capital murder
trial Craig State 825 S.W.2d 128 129 Tex Crim App 1992 In the punishment
phase of non-capital case however the standard is different at 129-30 In that
instance the test is first whether counsel was reasonably likely to render effective
assistance and second whether counsel reasonably rendered effective assistance at
130 see also Ex parte Walker 794 S.W.2d 36 37 Tex Cnm App 1990 Ex parte Duffy
607 S.W.2d 507 514 n.14 Tex Crim App 1980 showing of prejudice is nor required
Id at 524 Because the punishment phase of capital trial is sufficiently like trial in its
adversarial format the Supreme Court has held that the same standard for effective
assistance applies to both phases Strickland 466 U.S at 686-87 Thus it is the
adversarial nature of the punishment phase in capital case that constitutionally requires
the application of the Strickland test
71 In Texas the punishment phase of non-capital case is similar to the
punishment phase of capital case in that both are adversarial in nature At the
punishment phase of non-capital case in Texas witnesses may be called to testify and
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be cross-examined regarding aggravating and mitigating circumstances that may be
considered in determining punishment The main differences in non-capital case are
procedural defendant may elect for the judge to assess punishment and punishment is
not based on special issues and evidentiary evidence of prior unadjudicated crimes is not
admissible
72 The Supreme Court declined in Strickland to address the role of counsel in
non-capital cases for two reasons Id. at 686 The first was that such proceedings may
be informal The Texas system in non-capita1 cases however is formal adversarial
process The second reason was that the process may involve standardless discretion
in
the sentencer Since the sentencer in non-capital cases in Texas has discretion in assessing
punishment defense counsels duty and thus the standard by which
his performance is
judged should be higher Where there is discretion in the decisionmaker counsels
advocacy should be all the more stringent in order to have some chance of influencing the
discretion in his clients favor Further in regards to Texass special issue No the
decision of whether it is probable that defendant would commit criminal acts of violence
and be continuing threat to society involves some discretion by the jury
73 The reasonably effective assistance standard used in Texas in non-capital
punishment proceedings covers greater range of errors by counsel than
does the
fundamental fairness standard Ex parte Ewing 570 S.W.2d 941 944 Tex Crim App
1978 citing Fitzgerald Estelle 505 F.2d 1334 5th Cir 1974 en banc cert denied
422 U.S 1011 1975 Thus Texas holds defense counsel to higher standard of assistance
non-capital punishment proceedings than in capital punishment proceedings This
situation
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is illogical and should be changed Where defendants lif4 not just his freedom is at
stake counsels performance should be judged by the highest standards Further there
is no rational basis for the distinction The distinction drawn by the Supreme Court was
based on the possible difference in the adversarial nature of capital and non-capital
punishment proceedings -- distinction that does not exist in Texas Since there is no
rational basis for the distinction the difference in treatment violates the Equal Protection
clause of the Fourteenth Amendment and Article section of the Texas Constitution
74 Before Strickland the test of the adequacy of counsels representation was
whether it was reasonably effective assistance Duffy 607 S.W.2d at 516 showing of
harm was not required ineffective assistance of counsel could never be treated as
harmless error Id at 524 citations omitted In Hernandez State 726 S.W.2d 53
Tex Crim App 1986 the court held that the Texas Constitution does not create
standard for effective assistance that is more protective of defendants rights than the
Strickland standard and stated that it would follow the two-pronged Strickland test
at 56-57 Since Hernandez Strickland has been the law in Texas See e.g Ex parte
Walker 777 S.W.2d 427 Tex Crim App 1989 Ex parte Cruz 739 S.W.2d 53 Tex
Crim App 1987
75 Three of the reasons the Hernandez court gave for adopting Strickland and
holding that the Texas Constitution provided no greater protection were the following
the Texas Court of Criminal Appeals had consistently and consciously applied federal
12Compare Thompson Lynaugh 821 F.2d 1054 1062 5th Cir 1987 different
procedures for capital and non-capital cases must meet rational basis test
-225-
constitutional standards in all ineffective assistance cases ii the language of Article
section 10 of the Texas Constitution was modeled on the Sixth Amendment and
iii Texas case law has never provided higher standard than Strickland 726 S.W.2d at
55-56 After noting in his concurring opinion that the issue of whether to adopt Strickland
was not before the court Judge Clinton argued that it has never been properly
demonstrated that Article section 10 was modeled on the Sixth Amendment and that
this is irrelevant even if true at 60-61 Clinton concurring Judge Clinton also
argued that to say that this Court has consistently and consciously applied federal
constitutional standard in all effectiveness cases is misleading at best Jc at 61
Judge Clinton also noted that the cases cited by the majority were not entirely supportive
of the proposition that Texas has never had higher effectiveness standard.m
76 One of the problems with the Strickland test is that it is difficult to apply
at 63 after adopting test majority misapplied it Another problem with
Strickland is the nebulous standard it adopts for judging effectiveness the Supreme Court
did not provide meaningful standard to review counsels performance While adopting
the new reasonable competency language the Strickland Court wrote the opinion in
manner which ensures that the courts will still apply the underlying elements of the farce
and mockery test jçj at 75 Teague concurring and dissenting The Strickland test
is problematical and purely speculative Cruz 739 S.W.2d at 61-62 Duncan
dissenting Judge Duncan asserted that the first prong of the test is fallacious because
rn/The weakness of the Hernandez decision is further reflected by the fact that it was
5-4 decision
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the proposition that counsels performance was so deficient that he was not functioning
as the counsel guaranteed the defendant by the Sixth Amendment simply asserts the
very point it establishes in the conclusion at 62 Further the second prong is
fallacious because it is purely speculative it is proposition premised upon possibility
disguised as fact this part of the Supreme Courts standard is based upon what
might have been which can never be proven absolutely and thus can only be the
subject of speculation with varying degrees of reliability Based on this reasoning
Judge Duncan urged as Guerra does that the Court readopt the Duffy test which does
not suffer the same problems as Strickland
IX THE COURTS REFUSAL TO EXCUSE FOUR VENIRE MEMBERS
FOR CAUSE DENIED GUERRA HIS RIGHTh TO FAIR AND
IMPARTIAL TRIAL AND TO AN IMPARTIAL JURY iN VIOlATION
OF THE FWH-I SIXTH AND FOURTEENTh AMENDMENTh TO THE
U.S CONSTITUTION AND ARTICLE SECIIONS 10 13 AND 19 OF
THE TEXAS CONSTITUTION
The trial court denied Guerra his right to fair and impartial trial and his
right to an impartial jury rights that are guaranteed by the Fifth Sixth and Fourteenth
Amendments to the United States Constitution and by Article sections 10 13 and 19
of the Texas Constitution by not excusing at least four members of the venire for cause
following an appropriate challenge by defense counsel Those four individuals were
Jack Lee Jerry Thagard Cynthia Matthews and Tommy Smith Defendant was
forced to strike the first three with peremptory challenges following unsuccessful challenges
for cause S.F Vol 12 at 2053 Vol 17 at 3013 Vol 17 at 3130 Mr Smith actually
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served on the jury following another unsuccessful challenge for cause since Guerra had
already exhausted all of his peremptory challenges
As to Mr Lee Ms Thagard and Ms Matthews defense counsel preserved
the courts error by stating on the record that he found two jurors Tommy Smith and
Ma Petty unacceptable S.F Vol 18 at 3289-90 S.F Vol 19 at 3514-15 and that he
would have stricken them if his preemptory challenges had not been exhausted
Felder State 758 S.W.2d 760 766-767 Tex Crim App 1988 For Mr Smith the
error was complete and preserved when the court overruled Guerras challenge for cause
and Mr Smith was subsequently sworn in as juror S.F Vol 19 at 3287.m
While the granting of challenges for cause generally is left to the sound
discretion of the trial judge that discretion is certainly not unbounded The bias
prejudice or lack of impartiality of potential juror may be so plain that it removes the
matter from the discretion of the judge and requires dismissal for cause as matter of
law The judges discretion is limited by the essential demands of fairness Knox
-Frevino State 815 S.W.2d 592 Tex Crim App 1991 stated the test as follows
In order to present reversible error appellant must show that he was forced
to exercise peremptory challenge to excuse prospective juror to whom
his challenge for cause should have been sustained He then must show that
he exhausted his peremptory challenges and was later forced to accept
juror whom he found to be objectionable
Id at 611-12 n.5
-Guerras attorneys requested extra peremptory challenges S.F Vol 17 at 3130-31
S.F Vol 19 at 3514-15 The court granted Guerra only one extra peremptory challenge
S.F Vol 17 at 3130 As result Guerra ran out of challenges and could not strike Smith
and Petty from the jury S.F Vol 18 at 3287 S.F Vol 19 at 3515
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Collins 928 F.2d 657 661 5th Cir 1991 citing Aidridge United States 283 U.S 308
310 1931 Thagard Lee Matthews and Smith were so manifestly unable to serve
impartially that the court was compelled to disqualify them as matter of law
Detective Jack Lee
At the time of Guerras trial in 1982 Detective Lee had been police
officer for 32 years S.F Vol 17 at 3002 He spent 24 of those years as detective in
the burglary and theft division of the Houston Police Department at 2995
3002
These facts alone created an impermissible level of doubt that Detective Lee could have
been impartial while sitting on jury to decide the fate of man charged with the murder
of Detective Lees fellow police officer who was killed in the line of duty in trial in
which many of the witnesses were Police Department employees
Many States Recognize the Inherent Partiality of Police
Officer/Juror
Throughout the United States courts recognize the inherent unfairness of
allowing police officers to serve as jurors in trials in which police officers are the
victims
Some states even disallow police officers as jurors in any case At the very least the
presence of police officer on the jury in case involving the
murder of fellow police
officer casts an intolerable doubt over both the actual impartiality and appearance of
impartiality of the jury and thus over the integrity of the entire procedure Unfairness
in jury selection harms not only the accused even the perception
of unfairness
undermine the public confidence in the fairness of our system of justice Batson
Kentucky 476 U.S 79 87 1986
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In response to such concerns the Supreme Court of Georgia has established
an automatic bar to police officers serving on criminal juries regardless of the nature of
the crime Colorado created similar bar by statute People in re R.A.D 586
P.2d 46 Cob 1978 In support of this statute the Colorado Supreme Court stated
who is employed by law enforcement agency is likely to favor the group with
whom he comes in daily contact and upon whom his livelihood depends at 47 The
highest courts of other states agree-
Like the Fifth and Sixth Amendments the Texas Constitution guarantees
fair trial by an impartial jury Shaver State 280 S.W.2d 740 Tex Crim App 1955
An impartial jury is one that is unprejudiced disinterested at 742 compare United
States Wood 299 U.S 123 145-46 1936 jurors must possess mental attitude of
appropriate indifference While Texas has not established per se rule against service
The Georgia Supreme Court has explained the rationale for this prohibition
Jurors should be above suspicion citation omitted It is inherent in the
nature of police duties and the closeness with which such officers are
identified with criminal procedures that questions regarding possible bias
fairness prejudice or impermissible influence upon jury deliberations
inevitably arise These questions cannot be erased by mere subjective
albeit sincere declaration by the officer that he or she can be fair and
impartial as to defendant The constitutional test of impartiality however
does not turn on the subjective declaration of the individual jurors
citation omitted
Hutcheson State 268 S.E.2d 643 644 Ga 1980
State Cooper 353 S.E.2d 441 442 S.C 1986 State Simmons 390 So 2d
1317 1318 La 1980 State Beckett 310 S.E.2d 883 889 Va 1983 çf Jackson
United States 395 F.2d 615 D.C Cir 1968 holding that juror situated similarly to
the victim in manner that would create an emotional identification with the victim was
disqualified under the Sixth Amendment
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by police officer on criminal jury apparently neither has Texas appellate court ever
confronted the situation presented by Guerras challenge to Detective Lee the potential
service on capital crime jury by police officer one of whose fellow officers was the
murder victim and several of whose friends and fellow officers were potential prosecution
witnesses In these circumstances there was natural inference that the juror will not
act with impartiality notwithstanding Detective Lees statements to the contrary
Powers Palacios 794 S.W.2d 493 496 Tex App.--Corpus Christi 1990 revd on other
grounds 813 S.W.2d 489 Tex 1991 Compton Henrie 364 S.W.2d 179 182 Tex
1963
Detective Lees Familiarity with the Lawyers and Witnesses of the
Prosecution Team and His Status as Police Officer Disqualified Him
as Matter of Law Under the Facts of this Case
Guerras counsel challenged Detective Lee for cause but that challenge was
rejected by the court S.F Vol 17 at 3013 This was reversible error
Detective Lees partiality in this case was not speculative here the specific
facts made it certain Detective Lee actually knew both of the attorneys for the
prosecution S.F Vol 17 at 2995 and he had known for many years 25 in one case at
least seven of the police officers subpoenaed by the prosecution to be witnesses in the
case Two of these officers actually testified at Guerras trial L.L Cooper testified in
his capacity as fingerprint technician with HPD S.F Vol 17 at 106-07 Detective Lee
1Mr Lee stated that he had known J.K Newman for 25 years S.F Vol 17 at 3004
L.L Cooper about five years at 3007 D.R Bostock around 20 years at 3008
J.G Burmeister 10 years id at 3009 John Donovan five or 10 years J.T Neely 10 or
15 years and A.T Hermann 10 years at 3010
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had known Officer Cooper for five years and had relied on Officer Cooper for assistance
in fingerprinting analysis on some of his own cases at 3007-08 Vol 22 at 106 Vol
28 at 146 Officer J.T Neely whom Lee had known for 10 or 15 years S.F Vol 17 at
3010 also testified S.F Vol 22 at 61
10 At minimum these long-standing relationships would have put Detective
Lee in the untenable position of being asked to judge the veracity of the people with
whom he associated daily in professional life and on whom he periodically relied
11 Clearly Detective Lees status as Houston policeman -- especially when
considering the emotional issue of the murder of fellow police officer in year of an
unprecedented number of such deaths -- raises questions about Detective
Lees
subconscious ability to approach the case with the necessary mental attitude of
appropriate indifference Wood 299 U.S at 145-46 even if he thought he could do so
12 In addition Detective Lees acquaintance with the prosecutors as well as
several of the prosecutions subpoenaed witnesses increased the risk that Detective Lee
would consciously or unconsciously identify himself with the prosecution team whose
attorneys witnesses and victim were part of the law enforcement agencies
of Harris
County with which Detective Lee worked day-to-day It is difficult to conceive how
Detective Lee would not identify with and be persuaded by his own co-workers
13 All of these facts considered together give rise to clear presumption that
Detective Lee lacked the impartiality to which Guerra was entitled under the Sixth
Amendment and Article section 10 of the Texas Constitution In short the facts and
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the U.S and Texas Constitutions compelled Detective Lees disqualification for cause and
the court erred in refusing to do so
Jeny Thagard
14 Ms Thagard repeatedly stated her belief that person who killed police
officer should be sentenced to death She began during questioning by the prosecutor
in the killing of policeman the death penalty should be the sentence S.F Vol
12 at 2026 She repeated this view several times See e.g at 2029-31
15 Under further questioning Ms Thagard tried to backtrack suggesting that
her answers to the two questions at the punishment phase would not necessarily
automatically be affirmative But even then Ms Thagard clearly reversed the burden of
proof requiring Guerra to produce evidence that death was not the appropriate penalty
j4 at 2031-32 2035-36
16 Ms Thagard later removed all doubt about her fundamental predisposition
to vote for death
All right Would you answer question no automatically yes because
he was found guilty in the first stage of intentionally and knowingly
causing the death of the police officer Would you automatically
answer it yes
With the way number two is worded
Right
Yes
Id at 2038
17 At this point Guerras counsel challenged Ms Thagard for cause
Before ruling the court allowed further questioning by the prosecutor and defense
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counsel and she repeated her reversal of the burden of proof UJ would not be
prejudgmental to say no should be yes could arrive at no answer the evidence
were there at 2045-46
18 The United States Supreme Court recently reiterated that the due process
clause of the Fourteenth Amendment prohibits juror expressing an intention to vote
automatically for the death penalty as Ms Thagard repeatedly did here from serving on
capital sentencing jury Morgan Illinois 112 Ct 2222 1992 Based on Ms
Thagards unequivocal and as least as to punishment question number two
unrehabilitated statements of her intention to answer automatically the punishment
questions yes following guilty verdict as well as her repeated and improper imposition
of the burden of proof on Guerra at the penalty phase the trial court clearly erred by
refusing to excuse Ms Thagard for cause
Cynthia Matthews
19 Ms Matthews established her bias against Guerra in two ways First she
indicated that she felt that the beyond reasonable doubt burden on the prosecution
was inappropriate Second she indicated that if Guerra failed to testify she would hold
that against him Because of her clear and multifaceted bias against Guerra Ms
Matthews should have been excused by the court for cause
She Would Have Difficulty Requiring the Prosecutor to Prove Guilt
Beyond Reasonable Doubt
20 During Ms Matthews voir dire questioning the following exchange took
place
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What do you feel about the heavy burden they prosecutor have
Do you think that is right or wrong Just how do you feel
Sometimes it is wrong because of the things that are happening and
people are getting away with things and because you have to prove
it to such an extent it seems like they are getting away with things
And like say all want to know is how you feel about this Do you
think the State should have that heavy burden
Sometimes no dont feel like they should
Do you think the State should have the burden of proving this case
beyond reasonable doubt or do you think its too much of burden
and they ought to prove it by preponderance of the evidence the
greater weight of the credible evidence
would say no dont think they should have to prove it beyond but
then again yes It depends on the circumstances
The Court Is that definite maybe
The Juror guess
What do you mean circumstances
Depending on what the crime was and what was done and the
evidence and the record
S.F Vol 17 at 3106-08
21 Ms Matthews later made her feelings on the burden of proof even clearer
and more specific in the following exchange
You would want him the defendant to at least get up and
explain to you or to your satisfaction why he is not guilty
Right
Or prove his innocence to you
Right
at 3112
-235-
22 Later in response to various hypothetical questions Ms Matthews
tentatively and equivocally indicated that at least in those hypothetical situations she would
hold the State to its burden of proof beyond reasonable doubt at 108-10 but even
then she hedged saying that dont think could give you an honest at
3109 and that she wouldnt know what her verdict would be if she had not been
convinced beyond reasonable doubt at 3109 even though she had been told that the
law would require an acquittal in such situaticn
23 Nothing that Ms Matthews said subsequently served to modify her expressed
feelings that sometimes and depending on what the crime was and what was done the
States burden of proof beyond reasonable doubt was too onerous or that the
Defendant would have to explain why he is not guilty and prove his innocence to
her Defendant challenged Ms Matthews because of her opinions on the burden of
proof at 3125 but the Court overruled that objection at 3129
She Would Hold Guerras Failure to Testify Against Him
24 As the above exchange demonstrates Ms Matthews extended her bias
against Guerra to include disagreement with his right not to testify at his trial She
repeatedly made clear that if Guerra chose to remain silent she would imply that he was
guilty
Would you want him to testify
Yes probably would would
What if he didnt testify at all Would you wonder about what he
might have said or done
-236-
Yes would wonder would wonder
Would you hold it against him
Yes think probably would hold it against him
You would or probably would
would
You would hold it against him
Yes would
Of course this would be the most important day of his life
If it was mine would want to defend myself
Sure
That is only right you know
You would want him to at least get up and explain to you or to your
satisfaction why he is not guilty
Right
Or prove his innocence to you
Right
And so you would want him to testify
Yes would
And if he didnt testify that would be strike against him
It would be doubt in my mind yes it would be
It would be strike against him right
Yes
Id at 3111-13
25 Defense counsel challenged Ms Matthews on the basis of her opinion
regarding Guerras exercise of his right not to testify at 3125 but again the
Court
overruled this objection at 3129
-237-
26 Following an attempt by the prosecutor to rehabilitate her Guerras attorney
again questioned Ms Matthews regarding Guerras right not to testify At this point Ms
Matthews expressed opinions that directly contradicted her initial statements
So then if he didnt testify you wouldnt hold it against him in any
way shape form or fashion
No wouldnt hold it against him
Id at 3129
27 Yet given the certainty with which Ms Matthews made and repeated her
initial statements that she would hold Guerras failure to testify against him Ms
Matthewss sudden change of heart is at the very least suspect The Supreme Court
has said that imposition of the death penalty must be and appear to be based on reason
Gardner Florida 430 U.s 349 358 1977 Given this heightened need for both
impartiality and the appearance of impartiality in capital
murder trial the Court should
have excused Ms Matthews for cause
28 When Ms Matthewss opinions regarding Guerras right not to testify are
viewed in conjunction with her objection to the prosecutors burden of proof it becomes
clear that had Ms Matthews sat on the jury the trial would have lacked fairness both in
appearances and reality
Tommy Smith
29 The harm presented to Guerra by Tommy Smith extended even beyond that
of the other three members of the venire discussed above Unlike those three people
-238-
Mr Smith actually served on the jury Having already exhausted all of his peremptory
challenges Guerra was unable to remove Mr Smith from the panel after the judge
overruled his challenge for cause S.F Vol 18 at 3284-85
30 Mr Smith unequivocally admitted that he would favor the death penalty over
life sentence
Do you believe in an eye for an eye and tooth for tooth
An eye for an eye and tooth for tooth
Explain that
Punishment for revenges sake
Revenge because he killed somebody
Uh-huh am not revengeful person if that is what you are asking
Im just saying in case where the facts are given and man took
another mans life and it is without doubt reasonable doubt or
whatever you call it if he took another mans life believe in the
death penalty
Hypothetically do you have preference in capital murder
case Would you prefer life as punishment or death as punishment
You told me you strongly believe in the death penalty
would prefer death
Id at 3282-84
31 Mr Smith thus made it clear that he would begin his deliberations with
preference for death Such presumption in the prosecutions favor fatally undermines
the constitutional protection provided to defendant by the prosecutions burden of proof
beyond reasonable doubt Mr Smith never stated that he would set aside this
predisposition and view the evidence from the neutral position required by the Sixth
Amendments guarantee of an impartial jury Because of Mr Smiths bias against the
-239-
imposition of life sentence he did not possess the constitutionally required mental
attitude of appropriate indifference United States Wood 299 U.S 123 145-46 1936
The presence of such biased juror on Guerras jury clearly deprived him of his right to
fair trial by an impartial jury
Conclusion on Refusal to Excuse for Cause
32 The jury that decided Guerras guilt and punishment lacked the
constitutionally-mandated impartiality to which he was entitled The conviction and
sentence should be reversed
THE ARTICLE 35.13 REQUIREMENT THAT PEREMPTORY
CHALLENGES BE EXERCISED AFTER QUESTIONING EACH
PROSPECTIVE JUROR VIOLATED GUERRAS RIGHTh UNDER THE
FW1H AND FOURTEENTH AMENDMENTh TO THE U.S
CONSTITUTION AND ARTICLE SECTIONS 3A 13 AND 19 OF
THE TEXAS CONSTITUTION
The Texas Code of Criminal Procedure Articles 35.13 and 35.25 requires
that parties to capital murder trial exercise peremptory challenges at the time
each
prospective juror is qualified Thus unlike defendants who are charged in non-capital
cases Texas law barred Guerra from waiting to exercise his peremptory challenges until
after the entire venire had been examined Grijalva State 614 S.W.2d 420 Tex Crim
App 1980 This arbitrary limitation placed on the exercise of Guerras peremptory
challenges denied him equal protection and due process of law in violation
of the Fifth
and Fourteenth Amendments to the United States Constitution and of due course of law
-240-
and equal protection under Article sections 3a 13 and 19 of the Texas
Constitution
The U.S Supreme COurt has made c1ear that both equal protection and
due process emphasize the central aim of the entire judicial system -- all people charged
with crime must so far as the law is concerned stand on an equality before the bar of
justice in every American Court Griffin Illinois 351 U.S 12 17 1956 quoting
Chambers Florida 309 U.S 227 241 Due process is denied by circumstances
creating the likelihood or the appearance of bias Peters Kiff 407 U.S 493 502 1972
overruled on other grounds by Taylor Louisiana 419 U.S 522 1975 and our
system of law has always endeavored to prevent even the probability of unfairness
Ui1Guerras trial counsel preserved this issue On August 30 1982 Guerras counsel
filed Motion to Exercise Challenges to Juror After the Entire Venire has been
Examined and Objecting to the Constitutionality of 35.13 V.A.C.C.P Tr at 87 Article
35.13 V.A.C.C.P violates the equal protection and due process clauses of the State and
federal constitutions The trial court denied the motion the same day at 88
Guerras counsel renewed his objection with the exercise of virtually every
peremptory challenge that he exercised See e.g S.F Vol at 62 Bridges Vol at
442 Deckert Vol 10 at 1622 Krezinski Vol 15 at 2729 Langdon Vol at 1030
Matthews Vol 13 at 2240 Philips Vol at 1321 Oliver Vol at 181-82 Reifel
Vol at 385 Rister Vol 10 at 1675 Sadler Vol 13 at 2364 Smith Vol 12 at 2053
Thagard Vol at 537 Zadroga
After the selection procedures had been completed and before the panel was
sworn Guerras counsel made clear that had he been permitted to exercise his
peremptories in the same manner permitted non-capital defendants he would not have
stricken Charles Krezinski Wanda Oliver or Charles Gougenheim and would have
stricken instead Larry Douthitt Stephen Busby and Ma Petty S.F Vol 19 at 3570
Thus Guerras equal protection and due process challenge is fully preserved
Sanne State 609 S.W.2d 762 767 Tex Cnm App 1980 cert denied 452 U.S 931
1981 harm must be demonstrated by showing that the defendant would have exercised
peremptory challenges differently
-241-
Brown Rice 693 Supp 381 390 W.D.N.C 1988 affd in part and revd in part 891
F.2d 490 4th Cir 1989 quoting In re Murchison 349 U.s 133 136 1955
Capital defendants are not suspect class for equal protection purposes
Thompson Lynaugh 821 F.2d 1054 1062 5th Cir citing Williams Lynaugh
814 F.2d 205 208 5th Cir cert denied 484 U.S 935 1987 Nevertheless to meet
constitutional requirements the state must show that the differing procedures for jury
selection for capital and non-capital defencants rationally promote legitimate
governmental objective jç
In Janecka State 739 S.W.2d 813 Tex Crim App 1987 the Court of
Criminal Appeals held that the different procedures used in capital and non-capital
cases
did not violate due process or equal protection because that
Court deemed the rules
overall to be more favorable to capital defendants than to others except in this one
instance which the court characterized as minor disadvantage at 834 After
having acknowledged the discriminatory effect of Code of Criminal Procedure
Article
35.13 the Court of Criminal Appeals then concluded that legislatures should
be free to
make some classifications and discriminations in gradually dealing with societal issues
1-WIn Pierce State 777 S.W.2d 399 Tex Crim App 1989 cert denied 496 U.S
912 1990 another appellant argued that the differential treatment of capital and non-
capital defendants with regard to the exercise of peremptory challenges
denied him the
equal protection of the law Instead of simply citing
Janecka as dispositive the court
rejected the claim solely on the procedural ground that the error
had not been preserved
and declined to consider the merits of the claim at 413 This curious disposition
suggests that the Court of Criminal Appeals might reconsider
its holdings in Janecka when
the issue is properly presented
-242-
The Janecka court failed to identify any state interest that is advanced by
preventing capital defendant from using peremptory strikes after examining the entire
venire The court simply pointed to other procedures that are reasonably necessary to
promote selection of jurors who can properly consider the death penalty In contrast to
those procedures the restriction on the timing of peremptory challenges furthers no such
interest
To the contrary proper analysis shows that the distinctions drawn between
the use of peremptory challenges in capital and non-capital cases lacks any grounds that
are properly related to the functions of the jury selection process The right of
peremptory challenge in capital cases which existed at common law has been spoken of
as one of the most important rights secured to the accused Frazier United States
335 U.S 497 506 n.h 1948 quoting Pointer United States 151 U.S 396 408 1894
The peremptory challenge represents an important perhaps even vital safeguard of the
right to an impartial trial right guaranteed by the Sixth Amendment and one which lies
at the heart of the right to due process Hines Enomoto 658 F.2d 667 672 9th Cir
1981 partys right to an impartial trial is implemented principally through the system
of challenges exercised during the voir dire of prospective jurors United States Nell
526 F.2d 1223 5th Cir 1976
voir dire procedure that effectively impairs the defendants ability to
exercise his challenges intelligently is ground for reversal irrespective of prejudice
Knox Collins 928 F.2d 657 661 5th Cir 1991 These principles may be found in
equal or greater measure in the guarantee to trial by due course of law afforded by
-243-
Article sections 13 and 19 of the Texas Constitution See Heitman State 815 S.W.2d
681 690 Tex Crim App 1991 The decisions of the Supreme Court represent
the minimum protections which state must afford its citizens The federal constitution
sets the floor for individual rights state constitutions establish the ceiling see pp 279-87
infra
The Texas venire system forces capital defendant to gamble juror by juror
when the stakes are highest when he is literally betting his life on each draw Clearly
capital defendant cannot choose intelligently if the State does not disclose
the
alternative until the alternative is unavailable This disability is more than an incidental
or minor disadvantage The state thus engages in brutal form of gamesmanship
reserved only for those who may die should their individual choices of jurors prove
mistaken
There simply is no legitimate state interest in discriminating against capital
defendants in the timing of their peremptory challenges Because the discriminatory Texas
scheme prevented Guerra from striking jurors who would have been stricken had non
discriminatory procedures been used he was denied due process and equal protection
of
the law in violation of his rights under the Fifth and Fourteenth Amendments to the
United States Constitution and under Article sections 3a 13 and 19 of the Texas
Constitution
-244-
XI THE COURTS INQUIRY INTO THE NUMERICAL DWISION OF THE
JURY DURING DEUBERATIONS DENIED GUERRA HTS RIGHTS TO
DUE PROCESSOF LAW AND TRIAL BY IMPARTIAL JURY UNDER
THE FJFIH SIXTH AND FOURTEENTH AMENDMENTS OF THE
U.S CONSTITUTION AND ARTICLE SECFIONS 13 AND 19 OF
THE TEXAS CONSTITUTION
During the jurys deliberations in the guilt-innocence phase of the trial the
trial court asked whether the jury had yet voted S.F Vol 25 at 991-92 After receiving
an affirmative response the trial court further asked for the numerical division of the jury
at 992 The foreman responded that the split was 11 to without indicating whether
the majority favored conviction or acquittal The trial court asked whether further
deliberations that evening would be productive The foreman requested an additional
hour and the court agreed The july returned 15 minutes later with unanimous guilty
verdict Id at 992-93
The Supreme Court and the Fifth Circuit have long held that such an inquiry
in federal court into the numerical division of jury is per se reversible error Brasfield
United States 272 U.S 448 1926 superseded by statute as stated in United States
Fiorilla 850 F.2d 172 3d Cir cert denied 488 U.S 966 1988 Cook United States
254 F.2d 871 873 5th Cir 1958 The Supreme Court condemned such an inquiry as
inherently coercive
We deem it essential to the fair and impartial conduct of the trial that the
inquiry itself should be regarded as grounds for reversal Such procedure
serves no usejid purpose that cannot be attained by questions not requiring the
juiy to reveal the nature or extent of iL division Its effect upon divided jury
-While trial counsel failed to object this should not be waiver pp 290-93
infra
-245-
will often depend upon circumstances which cannot properly be known to
the trial judge or to the appellate courts and may vary widely in different
situations but in general its tendency is coercive It can rarely be resorted
to without bringing to bear in some degree seriow although not measurable
and improper influence upon the jury from whose deliberations every
consideration other than that of the evidence and the law as expounded in
proper charge should be excluded Such practice which Ic never useJid
and is generally harmful Ic not to be sanctioned the error affects the
proper relations of the court to the jury and cannot be effectively remedied
by modification of the judges charge after the harm has been done
Brasfield 272 U.s at 450 emphasis added
Although the Brasfield Court did not explicitly base its holding on
constitutional grounds the Court employed language that sweeps broadly and closely
resembles that found in other due process holdings notably those that have extended
federal constitutional guarantees to the states via the Fourteenth Amendment Cornell
State 628 F.2d 1044 1049 8th Cir 1980 Bright dissenting cert denied 449 U.S
1126 1981 Most notably the language in Brasfield reflects that found in Duncan
State 391 U.S 145 149 1968 trial by jury in criminal cases is fundamental to the
American scheme of justice and Gideon Wainwright 372 U.S 335 342 1963 right
to counsel is fundamental and essential to fair trial Further
the question of numerical division of jury Ic asked from the bench
in the context of an inquiry into the progress of deliberation it carries the
improper suggestion that the state of numerical division reflects the stage
of the deliberations It has the doubly coercive effect of melting the resistance
of the minority and freezing the determination of the majority
People Wilson 390 Mich 689 213 N.W.2d 193 195 1973 emphasis added The
nature of the language used and the nature of the problem addressed improper coercion
of jury in Brasfield thus indicate that while the Court may have explicitly stated only
-246-
federal procedural rule its holding reflects fundamental notions of fairness embedded
in the due process guarantees of the U.S and Texas Constitutions
The Texas Court of Criminal Appeals apparently never has addressed the
question whether the due process guarantees of either the U.S or Texas Constitutions
preclude inquiry into the numerical division of the july The matter was briefly addressed
in Odom State 682 S.W.2d 445 Tex App.--Fort Worth 1984 pet refd There the
defendant failed to object to the jury poii and to the jury foremans voluntary disclosure
of the numerical division at 448 Because of that failure on appeal the Odom court
held that the defendant was limited to arguing that the poii and response constituted
fundamental error and ii Brasfield did not require finding fundamental error because
it stated only rule of procedure not binding on the states Odom did not involve
capital offense and that court did not address whether the Texas Constitution protects
capital defendants from such jury inquiries
In contrast given the highly charged atmosphere surrounding Guerras trial
and in the context of all of the prejudicial actions and circumstances described elsewhere
in this brief the trial courts inquiry into the numerical division of the jury followed by
verdict within 15 minutes rises to the level of constitutional error
The effect of the Guerra courts improper inquiry into the numerical division
of the jury is magnified by the greater reliability required in capital cases because of the
-247-
nature of the sentencing process and the difference between the death penalty and
prison sentence of any length
The speed with which Guerras jury returned its verdict after the courts
inquiry also suggests an improper invasion of the secrecy of the jury Jones Norvell
472 F.2d 1185 1186 6th Cir cert denied 411 U.s 986 1973 speedy return of jury
after court inquiry is factor in totality of circumstances test
Any criminal defendant and especially any capital defendant being tried by
jury is entitled to the uncoerced verdict of that body Lowenfeld Phelps 484 U.S
231 241 1988 There simply is an unacceptable danger that the Guerra courts inquiry
into the numerical division of the jury improperly coerced the jury into reaching
unanimous guilty verdict That inquiry invaded the secrecy of the jurys deliberations in
violation of Guerras constitutional rights to due process and to fair and impartial trial
by jury as guaranteed by the Fifth Sixth and Fourteenth Amendments of the U.S
Constitution
Moreover as discussed in this brief at pp 279-87 infra those federal
Constitutional provisions merely establish the minimum protection due capital defendant
in Texas In the circumstances here Texas should afford more than the minimum
-In Lowenfeld Phelps 484 U.S 231 1988 case in which the Court found no
jury coercion partly because the trial court had not asked the jury for its numerical
division id at 240 see id at 234-35 Justice Marshall in dissent pointed out the need for
greater reliability in capital sentencings at 248 and the heightened potential for
coercion inherent in the volatile nature of the inquiry of whether the defendant should
live or die id at 254-55 see also Lockett Ohio 438 U.S 586 604 1978 the
qualitative difference between death and other penalties calls for greater degree of
reliability when the death sentence is imposed Woodson State 428 U.S 280 305
1976 plurality opinion same
-248-
guarantee of fairness established at the federal level Rather this court should recognize
higher standard as found in Article sections 13 and 19 of the Texas Constitution
guarantee to Guerra that due course of law precludes any taint of coercion of jury
weighing life-or-death decision
XII THE JURY WAS PRECLUDED DURING SENTENCING FROM
CONSIDERING GUERRAS MITIGATING EVIDENCE OF GUERRAS
YOUTh AND THE INAPPUCABILITY OF THE LAW OF PARTIES IN
VIOLATION OF THE EIGHTh AND FOURTEENTH AMENDMENTh TO
THE U.S CONSTITUTION AND ARTICLE SECI1ONS 13 AND 19 OF THE
TEXAS CONS1TFUTION
Mitigating Evidence of Youth
Guerra had just turned 20 years old in April 1982 see Tr shortly before
the offense for which he was sentenced to death In his closing argument at the penalty
phase of Guerras capital murder trial Guerras counsel pleaded with the jury to consider
Guerras age as factor that weighed in favor of life sentence S.F Vol 27 at 181
But this plea was for naught under Texas law the jury that sentenced him to die was
unable to give full effect to his mitigating evidence of youth Thus Guerras death
sentence violates the Eighth and Fourteenth Amendments and the due process of law
clauses of Article sections 13 and 19 of the Texas Constitution Penry Lynaugh 492
U.S 302 1989 Franklin Lynaugh 487 U.S 164 1988 Mayo Lynaugh 893 F.2d
683 5th Cir 1990-
Additionally on January 1992 the U.S Court of Appeals for the Fifth Circuit
in close decision to held that youth and other mitigating evidence could
adequately be taken into account by the jury in answering the Texas Special Issues
Graham Collins 950 F.2d 1009 1033 5th Cir 1992 The Supreme Court granted
continued..
-249-
Evidence of Guerras youth at the time of the offense had mitigating value
beyond the scope of the special issues submitted to the jury While the jury may have
considered that Guerra was less morally culpable because of his age the jury had no
vehicle to express its reasoned moral response that life imprisonment rather than death
was justified Franklin Lvnaugh 487 U.S 164 185 1988 Texas clearly regards those
in their early 20s as sufficiently youthful for their age to be considered mitigating
circumstance
...continued
writ of certiorari on that issue to the petitioner in Graham 112 Ct 2937 1992
Guerras execution should be stayed pending the Supreme Courts determination of the
constitutionally of the Texas statute where mitigating evidence of youth is presented -- the
precise question that Guerra presents to this court
-2tFor example the jury may have concluded that due to his age Guerra was unable
to control his impulses or evaluate the consequences of his conduct See e.g Eddings
State 455 U.S 104 115-16 1982 young people are less mature and more susceptible
to influence than adults
The sentencer in capital case must be permitted to consider and to give effect
to the mitigating qualities of youth and to the chronological fact of youth itself jç
Eddings distinguished the chronological age of minor which is itself relevant
mitigating factor of great weightt from the background and mental and emotional
development of youthful defendant and concluded that the Constitution required that
the sentencer be permitted to consider and give independent mitigating weight to both
aspects of youth It follows that sentencing scheme that precludes the sentencer
from giving independent mitigating weight to evidence of youth violates the Constitution
Justice OConnor noted that of course the relevant Oklahoma statute permits the
defendant to present evidence of any mitigating circumstance 455 U.S at 118 emphasis
added Because the sentencer could not consider and give effect to this evidence
however the young defendants death sentence violated the constitution OConnor
concurring
1See e.g Lackey State 819 S.W.2d 111 129 Tex Crim App 1989 revd 112
Ct 1547 1992 describing as mitigating circumstance that the appellant at the time
continued..
-250-
The Supreme Court has confirmed that in particular cases the Special Issues
of the Texas sentencing statute preclude the jurys consideration of constitutionally
protected mitigating evidence Penry 492 U.S 302 1989- Penry held that the Texas
capital sentencing statute is unconstitutional as applied in cases in which the Special Issues
provide the jury no vehicle for expressing its reasoned moral response to the
defendants
mitigating evidence Id at 328 In Guerras case jurys reasoned moral response could
have been that while Guerras youth did not make his actions any less deliberate or his
...continued
of the offense was of youthful age 23 Trevino State 815 S.W.2d 592 622 Tex
Crim App 1991 There is also mitigating evidence of appellants youth appellant was
twenty-one years old at the time of the offense Madden State 799 S.W.2d 683 694
Tex Crim App 1990 cert denied 111 Ct 1432 1991 Appellant introduced
substantial mitigating evidence He was only twenty-one years old at the time of
commission of th offense
In Penry the Court held that the Texas statute was inadequate to permit the
consideration as mitigating of evidence of mental retardation and childhood abuse 492
U.S at 324
With respect to the second Special Issue the Court observed that Penrys intuitively
and constitutionally mitigating evidence of mental retardation and an abused childhood was
relevant only as an aggravating factor because it compelled yes answer to the
question of future dangerousness 492 U.S at 323 emphasis in original As the Court
put it
Penrys mental retardation and history of abuse is thus two-edged
sword it may diminish his blameworthiness for his crime even as it indicates
that there is probability that he will be dangerous in the future
The second special issue therefore did not provide vehicle for the
jury to give mitigating effect to Penrys evidence of mental
retardation and
childhood abuse
492 U.S at 324
-251-
future threat to society any more or less probable he did not deserve the death penalty
because at the age of 20 only three months older than teenager he was less
able to
control his impulses or to evaluate the consequences of his conduct Thus as in Penry
the major mitigating thrust of the evidence of Guerras youth went beyond the scope
of
the Special Issues Because the jury had no vehicle in which to express
their reasoned
moral response Guerras death sentence like Penrys cannot stand
Inapplicability of the Law of Parties
On September 1992 Hon David Hintner United States District Judge for
the Southern District of Texas granted writ of habeas corpus on grounds directly raised
by Guerras petition -- that the trial court failed to instruct the jury that the
law of parties
did not apply in the punishment phase of the trial Nichols Slip Op at 9-10 The federal
court held that it was fundamental error and thus not waivable due to defense counsels
failure to object for court to fail to give this instruction to capital murder jury
In Guerras case in the punishment phase defense counsel requested
charge on mitigation of punishment S.F Vol 27 at 163 and ii the role
of Guerra
in relationship to the role of the co-defendant in light of the testimony
at 163-64
Clearly these were requests for mitigation charge on
Guerras status as non
triggerman and an instruction on the inapplicability
of the law of parties to the sentencing
questions The courts refusal to charge the jury on
either issue resulted in the
unconstitutional application of Special Issue No to Guerra Nichols Slip Op at 10
-The co-defendant to which defense counsel referred was obviously Carrasco
-252-
In Penry Lynaugh 492 U.s 302 319 327-28 1989 the Supreme Court
held that the Texas sentencing statute mandates that jury be able to consider and give
effect to all evidence that mitigates against the death penalty
In applying Penrv the Fifth Circuit concluded that Penry does not invalidate
the Texas statutory scheme in instances where no major mitigating thrust of the
evidence is substantially beyond the scope of all the special issues Graham Collins
950 F.2d 1009 1027 5th Cir en banc cert granted 112 Ct 2937 1992 The
Nichols court held that evidence that the petitioner did not kill the deceased constitutes
just such mitigating evidence Slip Op at emphasis added
In Texas the law of parties may not be applied to the special issues in the
punishment phase Green State 682 S.W.2d 271 287 Tex Crim App 1984 en
banc cert denied 470 U.s 1034 1984
the death penalty may be imposed against one convicted as party
to capital offense it may not be imposed on capital defendant for the
deliberate conduct of another or the future dangerousness of another without
regard to the individual conduct of the defendant whose fate is being
determined
Nichols Slip Op at 8-9 citing Green 682 S.W.2d at 287 emphasis in original see also
Tr 331
In construing Special Issue No the Nichols court observed
Special issue number one inquires into the deliberateness of the
conduct
of the defendant that caused the death of the deceased The conduct of
the defendant convicted of capital murder under the law of parties is
deliberate when the defendant is deliberately party to the capital crime
With such imprecise inquiry into conduct special issue one allows jury to
answer in the affirmative more easily for the -triggerman than for the
triggerman Thz special issue number one permits the jury to appiv the law
-253-
of parties to the non-triggerman unless the juzy ic specifically instructed at the
punishment phase that the law of parties does not appiy
Nichols Slip Op at underlined emphasis in original italics emphasis added
10 In Guerras trial the prosecutions oft-used hypothetical and repeated
explanations of the law of parties during voir dire see pp 70-72 supra introduced the
legal concept to the jurors and they arrived at the punishment phase informed of the
law
of parties Nothing in the courts charge informed those jurors
that this doctrine could not
be applied
11 Particularly in this case -- where Guerras entire defense was that he was not
the triernan the prosecutors misstated law of pies in voir dire and evidence creating
any lingering doubts in jurors minds would have constituted mitigating
evidence -- the
courts failure to explain the inapplicability of the law of parties caused
the
unconstitutional application of Special Issue No to Guerra
XIII THE TRIAL COURTS REFUSAL TO DEFINE THE OPERATIVE
TERMS OF ARTICLE 37.071 IN PUMSHMENT SPECIAL ISSUES NO
AND VIOlATED GUERRAS RIGHTS UNDER THE FW1H SIXTH
EIGHTH AND FOURTEENTh AMENDMENTS TO THE U.S
CONSTiTUTION AND ARTICLE SECflONS 10 13 15 AND 19 OF
THE TEXAS CONSTiTUTION
The trial court neither defined reasonable doubt when it instructed the jury
during the guilt-innocence phase of the trial nor defined
that term -- nor any of the
operative terms -- in the Special Issues when it instructed the jury during
the punishment
-254-
phase Instead the jury instructions pertaining to the Special Issues tracked the language
of Article 37.071b verbatim The trial court told many of the jurors during voir dire
that it would not define reasonable doubt thus forcing the jurors to invent their own
definitions of that term and the operative terms in the Special Issues because the court
would not do it for them Additionally while certain terms were not defined by the
iWfhe court instructed the jury to answer the first Special Issue by deciding from the
evidence beyond reasonable doubt that the conduct of the defendant Ricardo Aldape
Guerra that caused the death of the deceased was committed deliberately and with the
reasonable expectation that the death of the deceased or another would result The jury
was instructed to answer the second Special Issue by deciding from the evidence beyond
reasonable doubt that there is probability that the defendant Ricardo Aldape Guerra
would commit criminal acts of violence that would constitute continuing threat to
society 14 at 331
-At the time of Guerras trial Art 37.071b of the Texas Code of Criminal
Procedure read as follows
On conclusion of the presentation of the evidence the court shall
submit the following issues to the jury
whether the conduct of the defendant that caused the death of
the deceased was committed deliberately and with the reasonable expectation
that the death of the deceased or another would result
whether there is probability that the defendant would commit
criminal acts of violence that would constitute conthuiing threat to society
and
if raised by the evidence whether the conduct of the defendant
in killing the deceased was unreasonable in response to the provocation if
any by the deceased
Texas Crim Proc Code Ann 37.071 Vernon 1981 emphasis added
-The trial court told one of the jurors while out of earshot of the others many
terms will be defined for you but one which will not be defined for you is beyond
reasonable doubt To me it means that you will bring with you your common sense
continued..
-255-
court the prosecution attempted to impose its own definitions on the jury during voir dire
for reasonable doubt deliberately and continuing threat to society
The courts post-trial jury instructions violated the due process clauses of the
Fifth and Fourteenth Amendments to the United States Constitution and Article sections
13 and 19 of the Texas Constitution pp 285-86 infra and the right to reliable jury
verdict as guaranteed by the Sixth Eighth and Fourteenth Amendments to the United
continued
and you will listen to what goes on in the courtroom and if you are convinced that
the
individual charged with the crime committed that cime then if you believe that the State
has met its burden of proof If you are not convinced they have nor met their burden of
proof To me it is that simple It may not be that simple to other folks and may be
more simple to other people but that is the way my definition is S.F Vol 13 at 2139-
2140 Brown substantially similar statement was made by the court to many of the
other members of the venire who became jurors S.F Vol 15 at 2566 Brumley Vol 17
at 2886-87 Busby Vol at 645-46 Douthitt Vol at 1036 Monroe Vol at 814-
15 Kellogg Vol 19 at 3444-45 Petty Vol 13 at 3140 Smith
fhe prosecution advised many of the jurors that beyond reasonable doubt was
not proof beyond all doubt and is not proof beyond shadow of doubt S.F Vol
13 at 2393 Brown Vol 17 at 2915 Busby Vol at 672 Douthitt Vol at 950
Kellogg Vol at 1074 Monroe Vol 19 at 3477 Petty Vol 18 at 3251 Smith 19
at 3541 Whiteford Vol at 853 Woods
With respect to the term deliberately the prosecution told some members of the
jury that to some people may mean the same thing as intentionally S.F
Vol 13 at 2376 Brown Vol 12 at 2062-63 Martenis Additionally the prosecution
told one juror that it is hard for me to see difference between intentional
and
deliberate although in my mind what is intentional means what is intent on your mind
what your thought processes were deliberately speaks of it in terms of conduct
What
was your conduct like rather than thought process.t S.F Vol at 665-66 Douthitt
With respect to the definition of society the prosecution told some jurors that
convicts at the penitentiary should also be considered members of society prison society
S.F Vol 15 at 2588-89 Brumley Vol 17 at 2907 Busby Vol at 669 Douthitt
Vol at 942-43 Kellogg Vol 12 at 2067-68 Martenis Vol 19 at 3534-35 Whiteford
Vol at 843 Woods
-256-
States Constitution and Article sections 10 13 15 and 19 of the Texas Constitution
because the terms reasonable doubt deliberately reasonable expectation criminal
acts of violence and continuing threat to society were void for vagueness on
their face
and as applied
Additionally Guerras death sentence violated the Eighth and Fourteenth
Amendments to the United States Constitution and Article sections 13 and 19 of the
Texas Constitution because the vague terms in the Special Issues do not genuinely
narrow
the class of persons eligible for death and reasonably justify
the imposition of more
severe penalty Maynard Cartwright 486 U.S 356 374-75 1988 Godfrey Georgia
446 U.S 420 433 1980
Reasonable Doubt Must Be Defined
At both the guilt-innocence and punishment stages of trial
the courts charge
to the jury at the close of the evidence failed to define the term
reasonable doubt The
omission of this necessary charge violated Guerras rights under the Fifth Sixth Eighth
and Fourteenth Amendments to the United States Constitution and Article sections 10
LGuerras counsel raised these issues at trial Guerras counsel filed pretrial
motion to find unconstitutional Article 37.071 of the Texas Code of Criminal Procedure
on its face and as applied The motion stated that Article
37.071 is so vague and
indefinite as to be incapable of interpretation by reasonable men
and is therefore facially
void as it violates the defendants rights to due process of law and fundamental
fairness
guaranteed by the Fifth and Fourteenth Amendments of
the Constitution of the United
States Tr 48 The motion also contended that the terms contained in Article 37.071
such as deliberately can have no meaning for the average juror and consequently
death could result for the defendant without any true or reasonable version
of due process
or fundamental fairness Id The court denied the motion at 49 and instead merely
instructed the jury in the bare terms of the statute
-257-
13 15 and 19 of the Texas Constitution As result Guerras conviction and sentence
cannot stand
Until recently the term reasonable doubt was not defined by statute
in
Texas and earlier judicial pronouncements criticized trial judges for attempting to define
that term See e.g Massey State Tex App 563 570 1877 Young State 648
S.W.2d Tex Crim App 1983 Onion C.J concurring Recently the Texas Court
of Criminal Appeals expressly adopted definition of reasonable doubt and held
that the
instruction shall be submitted to the jury in all criminal cases even in the absence of an
objection or request by the State or the defendant whether the
evidence be circumstantial
or direct Geesa State 820 S.W.2d 154 162 Tex Crim App 1991 emphasis
added-
Geesa further directed that this requirement was one of only limited
prospectivity claiming that the rule did not confer any greater constitutional protections
Geesa adopted the following definition
reasonable doubt is doubt based on reason and common sense after
careful and impartial consideration of all the evidence in the case It is
the kind of doubt that would make reasonable person hesitate to act in
the most important of his own affairs
Proof beyond reasonable doubt therefore must be proof of such
convincing character that you would be willing to rely and act upon it
without hesitation in the most important of your own affairs
820 S.W.2d at 162
This definition requires much stronger proof than the trial courts explanation to
some of the jurors that the State has met its burden if you are convinced
that
defendant committed that crime see note 188 supra -- and thus makes it even more
important to find the charge inadequate and reverse
Guerras conviction on this issue
-258-
than existed before at 165 Guerra contends nevertheless that the failure
of the
charge to define the term reasonable
doubt in this case violated his rights to due process
of law as guaranteed by the Fifth and Fourteenth
Amendments to the United States
Constitution the right to reliable jury verdict as guaranteed by
the Sixth Eighth and
Fourteenth Amendments to the Constitution of the United States and Article sections
10 13 15 and 19 of the Texas Constitution
Section 2.01 of the Texas Penal Code and Article 38.03 of the Texas Code
of Criminal Procedure require proof beyond reasonable doubt before an
accused may
be convicted of crime Article 37.071 similarly requires proof beyond
reasonable
doubt before an affirmative answer to any of the Special Issues may be returned to assess
death sentence These provisions represent an attempt to comply
with the federal
constitutional requirements prescribed in In re Winship
397 U.S 358 1970
In Taylor Kentucky 436 U.S 478 1978 the Court held that even when
charge defining the term reasonable doubt is given charge
on the presumption of
innocence is also mandated by the due process clause in order to safeguard against
dilution of the principle that guilt is to be established by probative
evidence beyond
reasonable doubt at 486 In so doing the Court noted that the
definition of
reasonable doubt given by the trial court in Taylor was
not model of clarity and
might have itself been reversible error j. at 488-
-The trial courts charge in Taylor defined reasonable doubt to mean substantial
doubt real doubt in that you must ask yourself not
whether better case might have
been proved but whether after hearing all the
evidence you actually doubt that the
defendant is guilty at 481 n.7
-259-
Thus the Supreme Court plainly indicated that an incorrect definition could
violate the right to due process If an incorrect definition could violate that right by
leaving the jurors misinformed concerning the constitutionally mandated standard of proof
then indisputably the failure to give any definition and thereby allowing up to twelve
different personal and potentially erroneous definitions to be employed fails to meet
minimal due process standards
10 Furthermore the failure to define he term reasonable doubt also renders
jury verdicts at the guilt-innocence and punishment stages unreliable because when certain
terms are left undefined the juror has the discretion to disregard them The need for
reliability is even greater in capital cases because of their finality Woodson North
Carolina 428 U.S 280 305 1976 see also Mills Maryland 486 U.S 367 383-84
1988 Beck Alabama 447 U.S 625 637-38 1980 Lockett Ohio 438 U.S 586
604-05 1978
11 The term proof beyond reasonable doubt is not commonly
understandable It must be defined to ensure that all twelve jurors are using the same
standard process jury deliberations allowing use of twelve different personal and
potentially incorrect definitions of such decisive term plainly fails the standard of
heightened reliability Moreover not only is the process inherently unreliable but
fortiori the results of the guilt-innocence and punishment stages are likewise unreliable
-260-
The Terms in the Special Issue Questions also Must Be Given limiting
Constructions During the Punishment Phase of the Trial
12 Article 37.071 of the Texas Code of Criminal Procedure requires that the
sentencer in death penalty case be adequately informed of what it must find in order
to impose the death penalty Maynard Cartwright 486 U.s 356 1988 Because the
operative terms of this statute are vague and the trial court failed to define those terms
for the jury Article 37.071 of the Texas Code of Criminal Procedure was applied to
Guerra in violation of the Eighth Amendment Additionally the verdict obtained by the
jury is not rationally reviewable because the deliberative process was tainted with vague
standards Thus the Eighth and Fourteenth Amendments were violated in that there was
no rational process justifying the imposition of death sentence on Guerra in comparison
to those cases in which life sentence has been imposed
The Language of the Special Issues Must Provide the Jury with
Specific Guidance
13 In Godfrey Georgia 446 U.S 420 1980 the Supreme Court held that
the Eighth Amendment requires that the discretion of the sentencer in death penalty
case must be channeled by clear and objective standards that provide specific and
detailed guidance jj at 428 citing Gregg Georgia 428 U.S 153 198 1976 and
Proffitt Florida 428 U.S 242 253 1976
14 In channeling the sentencers discretion states that choose to impose the
death penalty must provide two-step process in determining which persons will receive
that ultimate sentence the first must narrow the class of those eligible for the death
penalty and ii the second must select from that class those who shall actually be
-261-
sentenced to death Zant Stephens 462 U.S 862 876-79 1983 requirement of
aggravating circumstances performs the first of these functions by narrowing the class of
death-eligible defendants jç at 878 The most important factor in the second process
is an individualized determination on the basis of the character of the individual and the
circumstances of the crime at 879 The jurys consideration of the evidence at the
guilt-innocence stage of the trial its consideration of mitigating and other factors about
the character and background of the defendant at the sentencing stage and appellate
review of each death penalty case perform the second function
15 Guerra was tried under two-step process before the imposition of his
death sentence jury first convicted him of capital murder which is defined by Texas
Penal Code 19.03 as narrow class of aggravated murders- After additional evidence
At the time of Guerras trial Texas Penal Code 19.03 read
person commits an offense if he commits murder as defined under
Section 19.02a1 of this code and
the person murders peace officer or fireman
who is acting in the lawful discharge of an
official duty and who the person knows is
peace officer or fireman
the person intentionally commits the murder in the
course of committing or attempting to commit
kidnapping burglary robbery aggravated rape or
arson
the person commits the murder for remuneration or the
promise of remuneration or employs another to commit
the murder for remuneration or the promise of
remuneration
continued..
-262-
was adduced at the sentencing phase the sentencing jury then returned unanimous
affirmative answers to the two Special Issues The court then sentenced Guerra to die
16 Texas courts have recognized that while the first step Texas Penal Code
19.03 is intended to narrow those eligible to receive the death penalty the Special
Issues provide further narrowing and are therefore aggravating circumstances
function of Article 37.071 to further narrow the class of
death-eligible offenders to less than all those who have been found guilty of
murder as defined under 19.03 Texass capital murder statute
Smith State 779 S.W.2d 417 420 Tex Crim App 1989 Roney State 632 S.W.2d
598 603 Tex Crim App 1982 facts of crime themselves do not provide death-
eligibility otherwise every capital murder in the course of robbery would warrant death
and destroy the purpose of punishment stage in Texas capital cases which is to provide
reasonable and controlled decision concerning imposition of death penalty and to prevent
capricious and arbitrary imposition of sanction
i2...continued
the person commits the murder while escaping or
attempting to escape from penal institution
the person while incarcerated in penal institution
murders another who is employed in the operation of
the penal institution
An offense under this section is capital felony
If the jury does not find beyond reasonable doubt that the
defendant is guilty of an offense under this section he may be
convicted of murder or of any other lesser included offense
Tex Penal Code Ann 19.03 Vernon 1989
-263-
17 In imposing death sentence it is impermissible for state to use
aggravating factors that are inherently vague or imprecise The Supreme Court recently
reiterated this constitutional mandate
State uses aggravating factors in deciding who shall be eligible for the
death penalty or who shall receive the death penalty it cannot use factors
which as practical matter fail to guide the sentencers discretion
Although our precedents do not require the use of aggravating factors they
have not permitted State in which aggravating factors are decisive to use
factors of vague or imprecise content vague aggravating factor employed
for the purpose of determining whether defendant is eligible for the
death
penalty fails to channel the sentencers discretion
Stringer Black 112 Ct 1130 1139 1992 emphasis added
18 If an aggravating circumstance contains vague and imprecise terms it is
imperative that the state apply limiting construction on such terms
When jury is the final sentencer it is essential that the jurors be properly
instructed regarding all facets of the sentencing process It is not enough to
instruct the jury in the bare terms of an aggravating circumstance that is
unconstitutionally vague on its face
Walton Arizona 110 Ct 3047 3057 1990-
1The Court emphasized the same principle in Lewis Jeffers 110 Ct 3092
1990
Our decision in Walton thus makes clear that if State has adopted
constitutionally narrow construction of facially vague aggravating
circumstance and if the State has applied that construction to the
facts of the particular case then the fundamental constitutional requirement
of channeling and limiting the sentencers discretion in imposing the
death penalty Cartwright has been satisfied
at 3101 citing Maynard Cartwright 486 U.S 356 362 1988
In Walton and Jeffers the Supreme Court held that Arizonas aggravating
circumstances though facially vague were not unconstitutional because the state had
continued..
-264-
19 In Gregg Georgia 428 U.S 153 1976 the Supreme Court initially upheld
the Georgia death penalty scheme against challenge that one of Georgias statutory
aggravating circumstances which contained the words outrageously or wantonly vile was
unconstitutional on its face at 201 Nearly four years later however the Court held
that the Georgia Supreme Court had adopted such broad and vague construction of
those words that the scheme violated the Eighth and Fourteenth Amendments Godfrey
446 U.S at 432
20 In Maynard the Supreme Court affirmed the Tenth Circuits holding that
certain words contained in one of Oklahomas statutory aggravating circumstances --
heinous atrocious and cruel -- did not on their face sufficiently guide the jury to
satisfy the Eighth Amendment The lack of any limiting construction on such words
therefore constituted failure to cure this Eighth Amendment violation 486 U.S at 364
21 As discussed below the Texas statute contains the same flaw found in the
Oklahoma scheme The key standards -- deliberately criminal acts of violence that
would constitute continuing threat to society -- contained in the Texas statute do not
on their face provide sufficient guidance to the jury in determining whether the death
penalty should be imposed Furthermore the Texas courts have failed to cure this Eighth
...continued
adopted and applied valid limiting construction Specifically the Supreme Court upheld
the constitutionality of the construction given by the Arizona Supreme Court to the
cruelty aspect of the aggravating circumstance of especially heinous atrocious or cruel
The Arizona Supreme Court had determined that murder is committed in an especially
cruel manner when the perpetrator inflicts mental anguish or physical abuse before the
victims death Walton 110 Ct at 3053 The trial court which is the sentencer in
Arizona capital cases was presumed to have applied this limiting instruction
-265-
Amendment violation by providing limiting construction on such words Thus the Texas
scheme as applied in Guerras case was unconstitutional
The First Special Issue Question Provides No Guidance
22 The first Special Issue requires finding that the conduct of the defendant
that caused the death of the deceased was committed delibemtely and with the reasonable
expectation the death of the deceased or another would result Tex Crim Proc Code
Ann 37.071b1 Vernon 1981 emphasis added The use of the bald term
deliberately without more deprived Guerras jury of clear and objective standards that
provide specific guidance regarding the limited meaning and application of the first Special
Issue Godfrey 446 U.S at 428 Penry Lynaugh 492 U.S 302 1989 Moreover as
with the second Special Issue Texas courts have neither created nor applied
constitutional limiting construction to the Issue
23 The term deliberately lacks any clear and objective meaning It can
connote many things to many people For example legal thesaurus lists numerous
synonyms for deliberate including intended and
words synonymous with intentional
Wests Legal Thesaurus Dictionary at 219 1986- Yet the court never defined the
term for the jury that sentenced Guerra to death in spite of his counsels objection to
the
vague application of these terms
24 The absence of viable definition of deliberate is constitutionally
impermissible because there is no difference in common usage
between deliberate as
1The synonyms are aforethought carefully considered calculated well advised
considered conscious designed dispassionate intended intentional planned plotted
premeditated purposeful studied thought-out volitional
willful
-266-
used in the first Special Issue and the term intentional as used in the guilt-innocence
phase instructions In criminal law both terms denote form of mens rea Guerras july
had to find intent in order to convict him of capital murder They were not instructed
that deliberateness requires something greater than mere intent They could easily have
equated intent and deliberateness More importantly they were not told what in addition
to intent they had to find in order further to determine that Guerra acted deliberately
25 The fact that the jury most likely equated intentional from the
guilt-innocence phase and deliberate from the punishment phase is of constitutional
magnitude because of the second step of the Godfrey test 261 supra and because
the Court of Criminal Appeals has repeatedly held that the word deliberate as
employed in the Texas death penalty statute means something different from intentional
See e.g Lane State 743 S.W.2d 617 628-29 Tex Crim App 1987 cert denied 112
Ct 1968 1992 Heckert State 612 S.W.2d 549 552-53 Tex Cnm App Op
1981 So far the Court has sought to define what deliberately is not in specific cases
12Indeed members of the Court of Criminal Appeals have over the years commented
on how misunderstood confusing and unclear the meaning of the term deliberate is to
judges juries and lawyers throughout the state See e.g Lane State 743 S.W.2d 617
cert denied 112 Ct 1968 1992 Duncan concurring Nevertheless the Court has
consistently refused to require trial courts to instruct capital sentencing jury on the
meaning of deliberate in the first Special Issue Cannon State 691 S.W.2d 664 677-78
Tex Crim App 1985 cert denied 474 U.S 1110 1986 see Penry Lynaugh 492
U.S 302 326 1989 the Texas Legislature nor the Texas Court of Criminal
Appeals have defined the term deliberately
-267-
it has never defined what deliberately is by providing general limiting construction for
the phrase-
26 The first Special Issue is thus unconstitutionally vague because it fails to
fulfill its requirement of narrowing the class of death-eligible persons by rationally
channeling the jurys discretion Truly person of ordinary sensibility could fairly
characterize almost every intentional murder as being deliberate Godfrey 446 U.S at
428-29
For example prior to Guerras trial the Court of Criminal Appeals had indicated
that one need not act with premeditation to act deliberately Granviel State 552
S.W.2d 107 123 Tex Crim App 1976 cert denied 431 U.S 933 1977 Likewise the
court stated that deliberately embraces more than will to engage in conduct and
activates the intentional conduct Fearance State 620 S.W.2d 577 584 Tex Crim
App 1980 cert denied 492 U.S 927 1989 and cert denied 454 U.S 899 1981
Nevertheless by merely stating that the phrase embraces more than will to act
the
court has failed to provide the term with any limiting or reviewable principle
Years after Guerras trial the court stated that find the act of deliberateness
there must be the moment of deliberation and the determination on the part of the actor
to kill Cannon 691 S.W.2d at 667 Tex Crim App 1985 Of course Guerras jury
received no such instruction But even if they had such tautological definition of
deliberateness using the word deliberation provided no meaningful guidance
concerning the nature of the first Special Issue Clearly such definition
is not
constitutionally sufficient Moreover the determination of the part of the actor
to kill
reflects nothing more than the formation of intent to kill Unlike the limiting instruction
that the Arizona Supreme Court applies to the especially heinous cruel or depraved
aggravating factor see Walton 110 Ct at 3057 the Texas Court of Criminal Appeals
does not provide narrowing construction in its appellate review
The Courts lack of limiting principle is further evidenced by the fact that it has
relied on non-exclusive list of possible factors that underlie any determination of
deliberateness See e.g Livingston State 739 S.W.2d 311 339 Tex Crim App 1987
cert denied 487 U.S 1210 1988 considering various factors in its determination of
sufficiency of evidence for affirmative answer to the first Special Issue
-268-
27 Consistent with Court of Criminal Appeals precedent and despite the lack
of clarity in the word deliberately members of Guerras jury first were told on voir dire
to use their own definition of deliberateness and then were given the bare standardless
charge requiring them to apply that vague term Given the diverse meanings of
deliberate the determination of the first Special Issue thus was left to the uncontrolled
discretion of basically uninstructed jury at 429 Consequently because the jury
received no clarifying limiting instruction there is no way to determine whether Guerras
jury defined deliberately in manner consistent with other Texas capital sentencing
juries -- and especially to determine whether his jury interpreted deliberate to require
state of intent no greater or even less than that required for conviction of the crime
in the first instance Having received no specific and detailed guidance as to the
meaning of this vague term the jurys finding of deliberateness is not rationally
reviewable and therefore unconstitutional at 428 citing Proffitt 428 U.S at 253
and Woodson 428 U.S at 303
The Second Special Issue Question also Provides No Guidance
28 The terms in the second Special Issue also are indisputably vague The
phrase criminal acts of violence that would constitute continuing threat to society
has
no clear and objective meaning The various words and phrases in the second Special
Issue when viewed individually and considered as whole do not provide the sentencer
clear and objective standards that provide specific and detailed guidance and that
make rationally reviewable the process for imposing sentence of death Godfrey 466
U.S at 428 citing Gregg 428 U.S at 198 and Proffitt 428 U.S at 253 They do not
-269-
limit the sentencers discretion because person of ordinary sensibility could fairly
characterize almost every person convicted of capital murder as having some probability
of committing criminal acts of violence that would constitute continuing threat
to
society at 428-29
29 Given that the terms of the second Special Issue are unconstitutionally
vague the next inquiry under Godfrey Maynard and similar cases is whether the Texas
courts have applied valid limiting construction that cures the lack of clear
and objective
standards They have not To the contrary the Texas Court of Criminal Appeals has
rejected any limiting construction on the terms Holland State
761 S.W.2d 307
Tex Crim App 1988 cert denied 489 U.S 1091 1989 Cannon State 691 S.W.2d
664 Tex Crim App 1985 cert denied 474 U.S 1110 1986
30 Cannon is particularly instructive on the absence of limiting construction
of the second Special Issue In Cannon the Court merely recited the facts surrounding
the crime and then characterized them as showing on the part of the appellant total
lack of regard for the ownership of property sanctity of life and respect for the personal
dignity of individuals who had gone out of their way to help him at 678 The Court
acknowledged in passing that Cannon was only 17 years old and illiterate but then
concluded that there was sufficient evidence to support the jurys finding The courts sole
rationale for this conclusion was that of these cases must be decided on its own
merits Id at 678-79
31 Texass construction of the second Special Issue as stated in Holland and
Cannon thus is no construction at all the decision whether the evidence supports the
-270-
second Special Issue in any given case is governed by no rational objective standard but
instead rests on the Courts independent judgment when it views the facts See e.g yles
State 755 S.W.2d 98 123 Tex Crim App 1988 cert denied 488 U.S 986 1988
Livingston State 739 S.W.2d 311 341 Tex Crim App 1987 cert denied 487 U.S
1210 1988 Santana State 714 S.W.2d 8-9 Tex Crim App 1986 Earvin State
582 S.W.2d 794 Tex Crim App cert denied 444 U.S 919 1979
32 The lack of limiting construction in Texas is highlighted by the consistent
assertion of the Court that circumstances of the offense itself can sustain yes
answer if they are severe enough or can fail to support it if they are not and are
unsupplemented by other evidence Muniz State 573 S.W.2d 792 795 Tex Crim
App 1978 cert denied 442 U.S 924 1979 citations omitted By stating that an
affirmative answer is justified if the circumstances are severe enough the Court has
simply substituted one vague standard for another again impermissibly relying on
the
invalid principle that particular set of facts surrounding murder can itself support the
death penalty Maynard 486 U.S at 363
33 In fact in neither Muniz nor any other case has the Court employed any
limiting construction for determining when the facts of crime are severe enough to
warrant an affirmative answer The arbitrariness inherent in the Texas courts practice is
evident from the fact that the brutal murder in Muniz supported an affirmative finding
while the brutal murder in Garcia State 626 S.W.2d 46 Tex Crim App 1981 did
-271-
not Simply put Muniz was struck by lightning Furman Georgia 408 U.S 238 309
1972 Stewart concurring while Garcia was not Such standardless appellate
consideration of vague aggravating circumstances was expressly condemned in both
Godfrey Maynard and subsequent cases reaffirmed in Walton and Jeffers-
34 Just as in Godfrey and Maynard Texass unconstitutionally vague second
Special Issue has not been cured by the Texas courts The Texas Court of
Criminal
Appeals like the Georgia court in Godfrey and tie Oklahoma court in Maynard adheres
12The Court of Criminal Appeals has likewise stated that there are no limitations on
what can be considered in determining the sufficiency of evidence under the second
Special Issue Keeton State 724 S.W.2d 58 Tex Cnm App 1987 providing
nonexciusive list of factors underlying inquiry of sufficiency of evidence under Special Issue
two Indeed in numerous cases the Court has found sufficient evidence to support an
affirmative answer to the second issue by upholding affirmative answers based on factors
never mentioned in Keeton including such amorphous factors as the total lack of regard
for the ownership of property Cannon State 691 S.W.2d 664 678 Tex Crim App
1985 cert denied 474 U.S 1110 1986 see Crawford State 617 S.W.2d 925 933
Tex Crim App 1980 cert denied 452 U.S 931 1981 considering fact that greed
motivated the crime Duffy State 567 S.W.2d 197 Tex Crim App 1978 cert denied
439 U.S 991 1978 considering fact that victim would not have been threat to
defendant Smith State 540 S.W.2d 693 Tex Crim App 1976 cert denied 430 U.S
922 1977 considering fact that defendant made no effort to rehabilitate himself
22 The Supreme Court in Godfrey plainly rejected the submission that particular
set of facts surrounding murder were enough in themselves and without some
narrowing principle to apply to those facts to warrant the imposition of the death penalty
Maynard 486 U.S at 363 state courts conclusion that on th facts the jurys verdict
that the circumstance was supportable not cure the constitutional
infirmity of the aggravating circumstances at 364 see also Godfrey 446 U.S at 432
unconstitutional aggravating circumstance not cured by appellate
courts assertion that the
circumstance was factually substantiated
Maynard itself acknowledged that the conclusion of the Oklahoma court that the
events recited by it adequately supported the jurys finding indistinguishable from the
action of the Georgia court in Godfrey which failed to cure the unfettered discretion of
the jury to satisfy the commands of the Eighth Amendment 486 U.S at 364
-272-
to the standardless practice of simply considering the facts of case to assess the
propriety of an affirmative answer to the Special Issue
35 Capricious results are inevitable in these circumstances For instance the
Court of Criminal Appeals held in Smith that the evidence did not support an affirmative
answer to the second Special Issue even though Mr Smith had raped and killed woman
by entering her home tying her to the headboard of her bed and repeatedly stabbing her
with scissors The evidence also suggested that Smith had been plotting for several weeks
to commit rape The offense was described by the States forensic pathologist as
over-kill 779 S.W.2d at 419
36 On the other hand the Court of Criminal Appeals in different case held
that precisely such forethought is probative of persons propensity to commit future
acts of violence Hawkins State 660 S.W.2d 65 82 Tex Crim App 1983 In
Hawkins the Court of Criminal Appeals found that Hawkins had been looking around
for somebody to rape and that eventually he walked into the victims home raped
her and stabbed her repeatedly Nearly identical evidence was sufficient to support
an affirmative finding of future dangerousness in Hawkins but not in Smith
37 In yet another contrast to Smith the Court of Criminal Appeals held in
Earvin State 582 S.W.2d 794 Tex Crim App 1979 rehg denied 444 U.S 985
1979 that the evidence of the crime alone supported an affirmative answer to the
second Special Issue at 799 The Court so held despite the fact that Earvin had shot
man at gas station who had made sudden movement as if to reach for gun Mr
Earvin then had thrown down his gun in terror and fled When arraigned he cried
-273-
before the magistrate and confessed to the shooting but insisted that he had not intended
to kill the man He was 18 at the time of the offense and had no prior criminal history
38 Yet in Huffman State 746 S.W.2d 212 Tex Crim App 1988 the
appellant killed his neighbor by applying pressure to her heart beating her about the face
kicking her repeatedly and strangling her After killing her he stole her car and led the
police on high speed chase in which he rammed two police cars He attacked two
officers before being taken to court At the hospital he became uncontrollable and had
to be restrained by leather cuffs He had two prior convictions for burglary the latter
while on parole for the former He had repeatedly beaten his girlfriend and had bragged
to both his girlfriend and neighbor that he knew how to kill person by pushing the
nose bone up into the brain or hitting them hard enough in the chest to flood the heart
Remarkably -- particularly when weighed against the evidence in Earviin -- the court found
this evidence insufficient to support an affirmative answer to the second Special Issue
at 225
39 In Green State 682 S.W 2d 271 Tex Crim App 1984 cert denied 470
U.S 1034 1985 the Court of Criminal Appeals found the evidence sufficient to support
an affirmative answer to the second Special Issue even though appellant was not the
triggerman j.ç at 289-90 There was no evidence that Green helped plan the burglary
that led to the killing that any of the perpetrators expected murder to be committed
or that Green had either prior felony convictions or prior unadjudicated violent conduct
In addition Green introduced the testimony of four work associates each of whom
testified that he had known Green many years and had never heard of him being in
-274-
trouble and that he was professional reliable cement mason Two witnesses testified
that notwithstanding Greens conviction for capital murder they would rehire him if he
were released
40 If there is any distinguishing factor to explain these cases it could only be
that the evidence in Green and Earvin did not appear to support an affirmative answer
to the second Special Issue while the evidence in Huffman and Smith was manifestly
sufficient Yet the Court of Criminal Appeals decided them in exactly the opposite
fashion Further the Court has stated that precisely the same evidence -- i.e forethought
and planning in connection with rape/murder -- supported finding of future
dangerousness in Hawkins but not in Smith
Conclusion
41 In Jurek Texas 428 U.S 262 1976 plurality of the Supreme Court
conditionally upheld the Texas capital punishment statute while specifically noting that the
Texas Court of Criminal Appeals had not yet define precisely the meanings of such
terms as criminal acts of violence or continuing threat to society in the second Special
Issue at 272 plurality opinion Fourteen years later the Texas Court of Criminal
Appeals still has not defined those and other vague terms in the second Special Issue
In Texas there is simply no rational way to determine the definition of the terms in the
question by comparing the cases determined to be deserving of death with those deserving
of life This failure has converted the second Special Issue into macabre instrument of
caprice sending men to death in random circumstances
-275-
42 Thus Guerra did not receive the constitutionally required specific and
detailed guidance concerning the meaning and application of the aggravating second
Special Issue See Godfrey Georgia 446 U.S 420 428 1980 Moreover as in
Godfrey and Maynard the Texas Court of Criminal Appeals has provided absolutely no
limiting construction to save the second Special Issue from its constitutional infirmity
Accordingly Guerras death sentence is unconstitutional
Xlv EVIDENCE CUSTODIANS LOSS OF STATE EXHIBiT THE MAP
OF THE SCENE DEPR WED GUERRA OF DUE PROCESS IN
VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENT
AND ARTICLE SECTIONS 13 AND 19 OF THE TEXAS
CONSTiTUTION
Despite Guerras attempts to obtain all trial exhibits which the Court
authorized at hearing on July 28 1992 the evidence custodian cannot find State
Exhibit -- map on which the States witnesses extensively relied to indicate the
locations of the cars the shooter Officer Harris relevant lighting and others The map
is essential to adequately review the events at trial and in particular to Guerras actual
innocence argument Guerras inability to review the eyewitnesses testimony with the aid
of the only map detailing the movements of the triggerman and Officer Harris denies
Guerras due process rights under the Fifth Sixth and Fourteenth Amendments to the
U.S Constitution Gardner California 393 U.S 367 369-71 1969 noting that
prisoner seeking habeas corpus relief needed to have transcript of the relevant
evidentiary hearing for the effective presentation of his case United States
Valenzuela-Bernal 458 U.S 858 867-72 1982 holding that states pretrial deprivation
-276-
of material evidence that was favorable to defendant violated the Fifth and Sixth
Amendments The rationale underpinning the doctrine controls here state cannot
deny defendant the means to rebut the prosecutions case whatever the stage
of
proceedings Rheuark Shaw 628 F.2d 297 302 5th Cir 1980 cert denied 450
U.S 931 1981 noting that the inability of defendants to receive trial transcript for
appeals violated their due process rights This principle is at the very concept
of justice
Valenzuela-Bernal 458 U.S at 872 citing Lisenba California 314 U.S 219 236 1941
Guerra was denied this evidence on appeal The Constitution thus requires that his
conviction be reversed
The same argument should apply under Article sections 10 13 and 19 of
the Texas Constitution
XV THE CUMULATWE EFFECT OF THE ERRORS AT GUERRAS
TRIAL DENIED HIM HIS CONSTiTUTIONAL RIGHT TO
FUNDAMENTALLY FAIR TRIAL
writ of habeas corpus should issue where the cumulative effect of errors
produce trial setting that is fundamentally unfair Walker Engle 703 F.2d 959
963 6th Cir 1983 cert denied 464 U.S 951 962 1983 Errors that alone might not
suffice to support writ nevertheless may together offend sense of justice Conner
Deramus 374 Supp 504 516 M.D Pa 1974 or render the trial taken as whole
so fundamentally unfair that there is reasonable probability that the
verdict might have
been different had the trial been properly conducted Derden McNeel 938 F.2d 605
609 5th Cir 1991 quoting Kirkpatrick Blackburn 777 F.2d 272
278-79 5th Cir
-277-
1985 cert denied 493 U.s 105 1990 and cert denied 476 U.s 1178 1986 rehg en
banc granted No 90-1230 5th Cir Oct 31 1991 see also Guidroz Lynaugh 852
F.2d 832 835 5th Cir 1988 we must evaluate any possible unfairness in the context of
the entire proceedings Bowers Coiner 309 Supp 1064 1071 S.D Va 1970
errors were so damaging as to deprive of fair trial
THIS IS THAT CASE WHERE THE CUMULATIVE EFFECT OF THE
ERRORS SET FORTH IN THIS APPLICATION DEMONSTRATE THE
FUNDAMENTAL UNFAIRNESS OF GUERRAS TRIAL AND SENTENCING
As the Bowers court stated
does not help society to deny the defendant due process of law and to
let him linger in doubt as to whether he was denied the fair trial which our
institutions our laws and our constitutional guarantees demand The far
wiser course is to make it possible for defendant to have new
trial according to the precepts of due process
309 Supp at 1072 In this case it is society not Guerra that will long linger in doubt
if he is executed in spite of the gross repeated errors that permeated his trial denying
But see United States Taylor 814 F.2d 172 175 5th Cir cert denied 484 U.S
865 1987 and United States Birdsell 775 F.2d 645 5th Cir 1985 cert denied 476
U.S 1119 1986 In both Taylor and Birdsell Judge Jones rejected the concept of
cumulative error at least on the facts of those cases In her dissent in Derden however
Judge Jones clarified that she did
not necessarily disagree that habeas corpus might be granted for
series
of trial court errors not individually reversible that so poisoned the state
trial court atmosphere as to cause on the whole record questionable
guilty verdict
938 F.2d at 618 citing Taylor Kentucky 436 U.S 478 1978 Judge Jones thus
dissented in Derden on the grounds that the few circumstances of which
the defendant
was entitled to complain in that case did not amount to harmful error
that could be
cumulated
-278-
him the due process to which he is constitutionally guaranteed Based on
the facts and
arguments set forth in this petition writ must issue to afford
Guerra chance to stand
trial in capital proceeding free from taint
XVI THE TEXAS CONSTITUTION PROVIDES BROADER GUARANTEES
OF INDIVIDUAL RIGHTS AND UBERTIES THAN THOSE FOUND
IN THE U.S CONSTITUTION
Many of the arguments raised by Guerra under the Texas Constitution such
as the standard governing lineup procedures and effective counsel call on this court to
fulfill its earliest function as the primary guarantor of individual rights and of liberty
in criminal cases Heitman State 815 S.W.2d 681 686 Tex Crim App 1991
opinion on appellants petition for discretionary review en banc citing LeCroy
Hanlon 713 S.W.2d 335 338 n.3 Tex 1986 citing Linde First Things First
Rediscovering the States Bill of Rights Bait Rev 379 380-83 1980 and
Comment Rediscovering State Constitutions for Individual Rights Protection 37 Baylor
Rev 463 474-75 1985 Thus decisions of the States Supreme Court
represent the minhnwn protections which state must afford its citizens
The federal
constitution sets the floor for individual rights state constitutions establish the ceiling
Heitman 815 S.W.2d at 690 citing LeCroy 713 S.W.2d at 338.12
Opinions from the Texas Supreme Court are relevant because the Texas Court of
Criminal Appeals has looked to that court for assistance in interpreting the
Texas
Constitution See e.g Heitman 815 S.W.2d at 687
See also Olson State 484 S.W.2d 756 762 Tex Crim App 1969 opinion on
motion for rehearing finding that federal constitutional safeguards establish
minimum
standard for state courts but that such courts are not limited to those standards
in
construction of federal or state rights
-279-
Indeed courts frequently have observed that the Texas Constitution affords
greater degree of individual liberties and rights than the
U.S Constitution generally
Davenport Garcia 35 Tex Sup Ct 894 899 June 17 1992 declining to limit the
liberties of Texans to those found in the Federal Constitution Heitman 815 S.W.2d at
689 noting that the guarantees in the Texas Bill of Rights are generally more expansive
and solicitous of peoples liberties than the federal Bill of Rights The framers of the
Texas Constitution did not intend for its guarantees necessarily to mirror that of the
federal government Heitman 815 S.W.2d at 690 Consequently it is axiomatic that
Texas courts may reject federal precedent and find more expansive rights when
interpreting the Texas Constitution Heitman 815 S.W.2d at 682 Under our system of
federalism the states are free to reject federal holdings as long as state action does
not fall below the minimum standards provided by federal constitutional protections
The U.S Supreme Court has recognized the importance of states developing
their own constitutional law and accordingly has refused to interfere with state
constitutional interpretations that are more protective of individual rights than federal
precedent See e.g City of Mesquite Aladdins Castle Inc 455 U.S 283
293 1982
PruneYard Shopping Center Robins 447 U.S 74 811980 Moreover this Court is
Accord OQuinn State Bar 763 S.W.Zd 397 402 Tex 1988 noting that the
Texas Supreme Court has often held that Texas Bill of Rights affords protection beyond
that provided by the Constitution LeCroy 713 S.W.2d at 339 claiming
that the
Texas Constitution has independent vitality and urging the protection of
additional state
guaranteed rights State Morales 826 S.W.2d 201 204 Tex App.--Austin 1992 writ
dismissed w.o.j The Texas Constitution has meaning independent of the United States
Constitution and in number of cases Texas courts have relied on the state
constitution
to find more expansive rights than those granted by the
federal courts.
-280-
not bound to find that Texas constitutional provision has the same limits as
federal
provision merely because the two provisions have been read as equivalent
in the past In
Heitman for example the Court remanded the case to the Court of Appeals
after the
latter court had disposed of an Article section claim solely by construing
section in harmony with the Fourth Amendment even though the Court of Criminal
Appeals had repeatedly recognized that article
and the Fourth Amendment
are the same in all material aspects 815 S.W.2d at 682 emphasis added
The Texas Bill of Rights Should Be Construed Broadly
The Constitutional Language Calls for Broad Construction
Not only can the Court construe the Texas Constitution more broadly
than
the U.S Constitution the Court should do so The very language and structure of the
Texas Constitution explain why Texas courts often construe its provisions more broadly
than comparable provisions of the U.S Constitution
First the states constitutional guarantees are often
worded in terms that
allow far broader interpretation than the corresponding federal constitutional provision
See generally Heitman 815 S.W.2d at 688-89 Travelers Ins
Co Marshall 76 S.W.2d
1007 1009 1934 noting that the Texas Bill of Rights consists of eqress limitations of
powel Moreover even where the wording in the two constitutions is similar the
provisions need not be interpreted as equivalent Initially using similarity
of wording as
the foundation for the theory of harmonious interpretation assumes that state
-281-
constitutional framers desired that this be done We believe this assumption to be
erroneous Heitman 815 S.W.2d at 685
Second the prominent position that the Bill of Rights occupies at the
beginning of the Texas Constitution shows its preeminent character
at 690 is
significant that our Bill of Rights is the first article
in our state constitution and that it
held this position in each of Texass five state constitutions
Finally Article section 29 specifically provides that the Texas Bill
of Rights
shall prevail over even other constitutional provisions Davenport
35 Tex Sup Ct
at 895 citing Article section 29 for support that Article
section shall forever
remain inviolate James Harrington The Texas Bill of Rights Commentary and
Litigation Manual 24 1987 hereafter Harrington Texas Bill of Rights arguing that
section 29 underlines the elevated position of the Bill of Rights
Juridical Advantages of Broader Construction
Texans benefit from the Court of Criminal Appeals summons to explore
Texass unique constitutional protections Texas courts act as
laboratories of
constitutional law guiding future constitutional decisions of state courts
the Supreme Court Heitman 815 S.W.2d at 686 and respond with more
innovative
and responsive approach to local interests than the Supreme Court whose
decisions bear
the onus of nationwide applicability jç at 687
The federal system of government draws strength from independently drawn
and interpreted state constitutions at 687 The power of state courts
to review and
-282-
rethink federal constitutional decisions ensures that their citizens will have the double
security the federal constitution was intended to provide jç
10 When court fails to independently interpret the state constitution it
effectively repeals or renders moot the state constitutional provisions and ignores
our
own constitutional history Heitman 815 S.W.2d at 688 Both the powers restricted
and the individual rights guaranteed in the Texas Constitution reveal Texass values
customs and traditions LeCroy 713 S.W.2d at 339 To consider the Texas Constitution
merely as restatement of the Federal Constitution both insults the dignity
of the
state charter and denies citizens the fullest protection of their rights Davenport 35 Tex
Sup Ct at 899
11 Finally in interpreting the Texas Constitution this Court must remain aware
that the dimensions of our constitutionally guaranteed liberties are continually evolving
Davenport 35 Tex Sup Ct at 898 In the Texas Constitutions two distinct due
process provisions Article sections 13
and 19 this Court must refrain from blindly
follow the Supreme Courts decisions Heitman 815 S.W.2d at 690
See also The Federalist No 51 at 240-41 James Madison Hollowell ed 1842 In
the compound republic of America the power surrendered by the people
is first divided
between two distinct governments... Hence double security arises to the rights of the
people Davenport 35 Tex Sup Ct at 901 By enforcing our constitution we provide
Texans with their full individual rights and strengthen federalism citing LeCroy 713
S.W.2d at 339
-283-
Specific Texas Constitutional Provisions Provide
Broader Protection of
Individual Rights and Liberties than Current Interpretations of the Federal
Constitution
Article Section 13
12 Article section 13 of the Texas Constitution provides in relevant part J1
courts shall be open and every person for an injury done him in his lands goods person
or reputation shall have remedy by due course of law One commentator contends that
this provision which is quite plainly due process guarantee promises
to be one of the
marked distinctions which sets the Texas Constitution apart from its federal counterpart
Harrington The Texas Bill of Rights 102 1987 citing Sax Votteler 648 S.W.2d 661
664 Tex 1983
13 Courts have recognized the breadth of protection offered by section 13 for
over century For example in Dillingham Putnam 14 S.W 303 1890 the Supreme
Court invalidated supersedeas bond statute because it effectively prevented
certain
parties from securing an appeal The court held
under Article section 13 that law
which practically takes away from either party to litigation the right
to fair and impartial
trial in the courts provided by the constitution for the determination
of given
controversy denies remedy by due course of law at 304
14 Comparing section 13 to the federal constitution Texas courts
have
repeatedly held that it provides defendants with additional rights
See e.g LeCroy 713
S.W.2d at 338-41 648 S.W.2d at 664 finding that because Article section
13 does
accord Texas citizens additional rights we choose not to decide this case on the
basis of
the United States Constitution see also Pennzoil Co Texaco Inc 481 U.S 11-12
-284-
1987 finding that Article section 13 of the Texas Constitution appears to address
Texacos claims more specifically than the Due Process Clause of the Fourteenth
Amendment.
15 Similarly Guerras access to the courts is effectively denied when court
refuses to review all constitutional errors raised in habeas corpus proceedings in capital
trial see pp 290-93 infra or when case is riddled with error such as here
16 The government bears the burden of showing that legislative purpose
outweighs the interference with the individuals right of access LeCroy 713 S.W.2d at
341 Glass Glass 826 S.W.2d 683 687 Tex App.--Texarkana 1992 writ filed
it might be appropriate to determine whether any state purposes outweigh
Peggy Glasss constitutional right to access to the courts Here however no state
purpose or policy is shown to be served that might
be weighed against the right to open
courts.
Article Section 19
17 In addition to section 13 section 19 of Article of the Texas Constitution
requires the state to afford due course of law in its actions
No citizen of this state shall
be deprived of life liberty property privileges or immunities
or in any manner
disenfranchised except by the due course of the law of the land Section 19 differs from
the federal Fourteenth Amendment in that it confers affirmative rights directly on the
people and is not limited to restricting government activity as is the
fourteenth
amendment and the fifth amendment for that matter Harrington The Texas Bill of
Rights 102
-285-
18 Article section 19 thus also provides broader guarantees than the U.S
Constitution Aladdins Castle 455 U.S at 293 It is first noteworthy that the language
of the Texas constitutional provision sections and 19 is different from and
arguably significantly broader than the language of the corresponding federal provisions
Ex parte Patterson 740 S.W.2d 766 770 Tex Crim App 1987 overruled by Ex parte
Beck 769 S.W.2d 525 528 Tex Crim App 1989 We need not define liberty for
purposes of due course of law analysis under Article 19 of the Texas Constitution in
accordance with the entitlement doctrine that has developed in federal due process
jurisprudence and we decline to define it in those terms Long State 742 S.W.2d 302
319-20 Tex Crim App 1987 cert denied 485 U.S 993 1988 overruled by Briggs
State 789 S.W.2d 918 Tex Crim App 1990 noting language in Mesquite that Texas
Constitution has arguably significantly broader language than the United States
Constitution
19 Even though sections 13 and 19 are both called due process of law
provisions they need not be interpreted as offering identical guarantees Each provision
provides distinct constitutional protections Logically our constitutions have included both
provisions sections 13 and 19 because they serve different purposes The open
courts provision must have been intended to provide rights in addition to those in the due
process provision or the former would be surplusage LeCroy 713 S.W.2d at 340 see
Nelson Krusen 678 S.W.2d 918 921 Tex 1984 Although sections 13 and 19 of
article both guarantee due process the two Texas due course of law provisions are not
coterminous.
-286-
20 Under either section 13 or section 19 of Article the Court will find the
guarantees of liberty that must be vindicated in order to prevent the execution of an
innocent man
XVII JUDICIAL REVIEW OF ALL CONSTiTUTIONAL ERRORS RAISED IN
HABEAS CORPUS PROCEEDINGS INVOLVING CAPiTAL CASES IS
REQUIRED BY ARTICLE SECTION 13 OF THE TEXAS
CONSTITUTION
Article Section 13 of the Texas Constitution Requires Review of all
Constitutional Errors Even if Unpreserved in Capital Cases
In various places in this Application Guerra noted objectionable conduct to
which Guerras trial counsel did not object In most instances the conduct both
separately and cumulatively was fundamental error which requires no objection to be
preserved But even where the error was not fundamental it should not be treated as
waiver in capital case
Where the death sentence -- life extinguishing and irrevocable -- has been
imposed the Texas Constitution requires review of all constitutional errors alleged to have
occurred in both the guilt and punishment phases of the trial even if the defendants
attorney did not preserve the errors Article section 13 of the Texas Constitution
provides in part All courts shall be open and every person for an injury done him in
his lands goods person or reputation shall have remedy by due course of law This
section specifically guarantees all litigants the right to redress their grievances the
right to their day in court LeCroy 713 S.W.2d at 341 see also Nelson 678 S.W.2d at
-287-
921 648 S.W.2d at 664 Hanks 48 S.W.2d at 946-47 see
discussion of Article
section 13 PP 284-85 supra
Texas courts have held repeatedly that section 13 provides defendants
with
protections in addition to those afforded by the
U.S Constitution pp 284-85 supra
Under the Open Courts provision of section 13 the Legislature cannot
arbitrarily or unreasonably interfere with litigants right
of access to the courts because
substantial right is involved LeCroy 713 S.W.2d at
341 The Open Courts
provision calls on the court to balance the legislatures
actual purpose in enacting statute
against that laws interference with
the individuals right of access to the courts at
341 Sax 648 S.W.2d at 665-66
Under section 13 the burden is on the State to show that legislative
purpose outweighs the interference
with the individuals right of access LeCroy 713
S.W.2d at 341 Glass Glass 826 S.W.2d at 687 Through its
constitution and various
laws and in the development of its common law
Texas has developed comprehensive
scheme for prosecuting and sentencing capital crimes
for conducting appeals of such
cases and for permitting habeas corpus
review of the results Little burden falls on the
State in first habeas review of such claims Surely whatever
burden exists is vastly
Although most cases discussing the breadth of section 13 arise in civil court
LeCroy Nelson and Hanks certainly nothing in section 13 limits
the broader
due process rights to civil litigants On the contrary section 13 applies
to courts
emphasis added
See also Neagle Nelson 685 S.W.2d 11 12 Tex 1985 holding statute
unconstitutional under Article section 13 where it abridged plaintiffs right
to sue before
he has reasonable opportunity to discover the wrong and bring suit Nelson 678
S.W.2d at 922 Sax 648 S.W.2d at 664 Hanks 48 S.W.2d at 946-47
-288-
outweighed in this case by Guerras right to have his guilt or innocence
determined and
his sentence rendered -- his right to life preserved -- only in full compliance with
the
applicable constitutional principles Indeed the Texas
Court of Criminal Appeals has
overlooked procedural rules to reach defendants claims where
the death penalty has been
imposed
Failure to preserve constitutional error here is no greater procedural failing
than similar omissions overlooked in such cases as Holland Vigneault and Earvin
All
rest on the fundamental balance presented in this habeas proceeding
the gravity of the
possible miscarriage of justice if the errors are
dismissed on mere procedural grounds
See e.g Holland State 761 S.W.2d 307 312 Tex Crim App 1988
denied 489 U.S 1091 1989 noting that although appellants point of error is
multifarious and presents nothing for review the court
would deal with each of
appellants claims because of the gravity of the sentence Vigneault State
600 S.W.2d
318 323 Tex Crim App 1980 en banc noting that although ground of error was
multifarious and not in compliance with procedural rule it would be reviewed
in the
interest of justice Earvin State 582 S.W.2d 794 797 Tex Crim App en banc
cert denied 444 U.S 919 1979 noting that although specific page numbers of the
record were not provided to support ground of error given that the extreme penalty
was
assessed the court made an independent search of the record
But see Russell State 665 S.W.2d 771 777 Tex Crim App 1983 cert denied
465 U.S 1073 1984 finding in capital murder case that to object can even
waive an error involving constitutional rights Hovila State 562 S.W.2d 243 247 Tex
Crim App 1978 cert denied 439 U.S 1135 1979 finding in capital murder case that
to object to the improper exclusion of veniremen waives that right
and such
exclusion cannot be considered on appeal These cases however apparently did not
consider the constitutionality of the denials under Article section 13
-289-
Other Courts Allow Review of Unpreserved Errors in Capital Cases
Interpreting provision of its Constitution that is nearly
identical to Article
section 13 the Louisiana Supreme Court held it would ignore waiver in capital cases
because of its Open Courts provision
Where the death penalty is applicable this court will notice all possible
errors even though not properly raised Failure to recognize this duty on
our part would be inconsistent with the mandate of our
constitution that
courts shall be open and every person shall have an adequate remedy
by due process of law and justice adminis.ered without denial partiality
or
unreasonable delay for injury to him in his person property reputation or
other rights
State Smith 554 So 2d 676 678 La 1989 citing La Const Art 22 Smith
The similarity between the Texas and Louisiana constitutions is not
accidental The Texas
Court of Criminal Appeals has already recognized that the framers
of the Texas
Constitution consult other State constitutions such as Louisiana when drafting the
Texas Constitution Forte State 759 S.W.2d 128 135 Tex Crim App 1988 partially
overruled on other grounds by McCambridge State 778 S.W.2d 70 Tex Crim App
1989 cert denied 495 U.S 910 1990
The Louisiana Supreme Court recently reaffirmed its holding in State
Smith 600 So 2d 1319 La 1992 Smith II In Smith II the trial attorney failed to
object to an error made during the guilt-innocence phase of the
trial at 1325 The
court refused to dismiss the appeal because of this error Relying on Smith
the court
found that because this is capital case we consider issues to which no objection was
raised at the trial but which have been assigned as error on appeal
-290-
The reasoning of Smith and Smith II is equally applicable to cases arising
under Article section 13 It is appropriate to look to the Louisiana Supreme Court for
guidance not just because Louisiana has similar constitutional provisions
but also because
it is generally helpful to look to precedent from sister states when determining the full
breadth of rights under the Texas Constitution Davenport 35 Tex Sup Ct at
906
citing Pollock Adequate and Independent State Grounds as Means
of Balancing the
Relationship Between State and Federal Courts 63 Texas Rev 977 992 1985
10 Other jurisdictions to varying degrees also have held that where the death
penalty has been imposed the appellate court has duty independently
and with
greater degree of scrutiny to review the entire
record for prejudicial error
See e.g United States Cramer 137 F.2d 888 895 2d Cir 1943 revd on other
grounds 325 U.S 1945 the death penalty is applicable court will notice
all possible errors even though not properly raised Stephan United States 133 F.2d
87 89-90 6th Cir 1943 cert denied 318 U.S 781 1943 noting that while some
assignments of error raised questions not presented
to the court below and others of
which are not discussed in the brief nor called to our attention in the oral argument the
court would proceed upon the exception to the general rule
and shall notice possible
error although the questions may not properly be raised because
the case involves
penalty of death for appellant State Hickock 363 P.2d 541
546-47 Kan 1961
dismd 373 U.S 544 1963 same Russell State 85 So.2d 585 585 Miss 1956
examining record to see that the appellant received fair
and impartial trial although
there was no assignments of error or brief filed State Payne 402
S.E.2d 582 592 N.C
1991 By failing to object or move for mistrial in regard to the unsworn deputy
defendant has waived his right to have this issue considered on appeal Nonetheless
since
this is capital case we will address the issue citations omitted
State Swilling 155
S.E.2d 607 611 S.C 1967 cert denied 389 U.S 1055 1968 The questions presented
by the exceptions all relate to alleged error in
various ru1ings of the trial judge which it
is charged deprived the defendant of fair and impartial
trial Since this is death case
these questions are decided without regard to whether they are properly
before us under
the usual rules of appellate procedure
-291-
11 The argument that section 13 requires judicial review of all constitutional
errors applies as forcefully in habeas proceedings as it does in appellate
review The
principle is the same -- life should not be extinguished before court has
assured itself
that all phases of the trial afforded the accused his constitutional rights
Alternatively the Court Should at Least Review Errors in the Punishment Phase
12 In the alternative if the Court is unwilling to reach arguments not based on
objections during the guilt-innocence phase of the trial it should
still be willing to address
errors that were not preserved during the punishment phase of the trial One justice in
Smith advanced this view although the Louisiana Supreme Court rejected it in favor of
even more comprehensive review
consider that in death case we should review all assignment of errors
whether or not filed with the trial judge or briefed or argued in this court
However the assignment of errors should be based upon an objection at the
time of the occurrence except that during the penally phase any prejudicial or
other aggravating factor is reviewable whether or not objected to in order to
determine if the sentence of death is excessive
Smith 554 So.2d at 687 Marcus concurring citation omitted emphasis added
Should the Court find that it would be too burdensome to address unpreserved errors in
the guilt-innocence phase of the trial Guerra urges the Court to find that
it has duty
to address the errors in the penalty phase of the trial because of the gravity of
the
sentence involved
-292-
Conclusion
13 Guerra asks the Court to hear his claims and recognize that
law which would undertake to deprive man of his life
without giving him hearing or in any manner affect his rights without
hearing would necessarily be vicious and unconstitutional Ours is country
of law and whenever man is affected in his life he has the right to
resort to some legal tribunal where those matters can be honestly and fairly
adjudicated
Ex parte Farnsworth 61 Tex Crim 342 135 S.W 535 538 1911 courts
unwillingness to address errors because defendants attorney did not properly preserve
error denies meaningful hearing to the defendant Whether this should be tolerated
where lesser sentences are given is not question before this court Here the defendant
is sentenced to die If Texas is to take an individuals life Article section 13 of the
Texas Constitution requires that the Court assure itself that all constitutional arguments
are meritless Anything less provides no meaningful access to Texas courts meritorious
constitutional claim that cannot be invoked to protect defendant from lethal injection
is no constitutional claim at all
PRAYER FOR RELIEF
WHEREFORE PREMISES CONSIDERED Applicant RICARDO ALDAPE
GUERRA prays that this Honorable Court
withdraw the Order setting Mr Guerras imminent execution for
September 24 1992 and delay his execution pending final disposition of this Application
ii order and conduct an evidentiary hearing at which additional proof may be
offered supporting the allegations of this Application
-293-
iii grant full discovery in this matter including but not
limited to access to all
physical evidence to allow analysis by independent experts
and disclosure of the full
prosecution files in this case full disclosure of any and all records
wherever and however
maintained concerning agreements made by the State promising its witnesses favorable
or lenient treatment in exchange for testimony or in the alternative inspection
of this
evidence in camera to determine whether it is or should have been properly subject
to
disclosure
iv vacate Mr Guerras conviction for capital murder and sentence of death
issue writ of habeas corpus releasing Mr Guerra from custody or
alternatively release Mr Guerra from custody unless the State grants him new trial
vi allow Mr Guerra reasonable period of time and an opportunity to submit
memorandum of law briefing all of the issues in this Application following an evidentiary
hearing and an opportunity for oral argument and
vii grant such other relief as law and justice require
Respectfully submitted
VINSON ELKINS L.L.P
BY___________
SCOU ATLAS
Texas Bar No 01418400
2500 First City Tower
1001 Fannin
Houston Texas 77002-6760
713 758-2024
FAX 713 758-2346
ATTORNEY FOR APPLICANT
RICARDO ALDAPE GUERRA
-294-
STATE OF TEXAS
ss
COUNTY OF HARRIS
AFFIDAViT OF VERIFICATION
SCO1T ATLAS upon oath state that have read the foregoing First
Amended Application for Writ of Habeas Corpus am familiar with its contents and to
the best of my knowledge and belief the matters set forth therein are true and correct
Scott
Subscribed and sworu to before me this day of September 1992
My
DiN FE GOiiN
Nty Stt
My Comm Eopmres 4iyga
Notary
-295-
CERTIFICATE OF SERVICE
The undersigned hereby certifies that true and correct copy of the foregoing
pleading was served by mail/delivery on Roe Wilson Assistant District Attorney of Harris
County on the
____
day of September 1992
Scott tias
a\guerra-Zbrf
-296-
IN THE COURT OF CRIMINAL APPEALS
STATE OF TEXAS
AT AUSTIN
EX PARTE IN THE DISTRICT COURT OF
HARRIS COUNTY
RICARDO ALDAPE GUERRA 248TH DISTRICT COURT
INDEX
VOLUME III
PLEADING DATE FILED
19 First Amended Application of Writ of Habeas Corpus and Appendix 09/16/92
End of Volume III
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FAX 713 758-2346
www.velaw.com
ScottJ Atlas
Direct Dial 713/758-2024
Direct Fax 713/615-5399
satlas@velaw.com
June 24 2004
Natalie Wortley
Texas Defender Service
412 Main Street 150
Houston TX 77002
Re Ricardo Aldape Guerrª
Dear Natalie
As you requested am enclosing copy of the application for writ of habeas corpus that
we filed in the Aldape case in September 1982
Please call if you have any questions
Very truly yours
Scott Atlas
Enclosure
1686506_1.DOC
AUSTIN BEIJING DALLAS DUBAI HOUSTON LONDON MOSCOW NEW YORK SINGAPORE WASHINGTON D.C
Atlas Scott
From Natalie Wortley
Sent Thursday June 24 2004 1015 AM
To Atlas Scott
Subject Request for information on behalf of the Texas Defender Service
Dear Mr Atlas
am barrister from England currently undertaking placement at the Texas
Defender Service Im doing some research on the Ricardo Aldape Guerra case
and wondered if you might be able to help me out
have read the cases and note that prosecutorial misconduct only really
became an issue at the federal stage when you were involved wondered how
you found out about the intimidation of witnesses the conduct fo the
identification procedures and the non-dsiclosure of material evidence Was
it by interviewing witnesses or did you come accross any documents At what
stage in the proceedings did these issues become apparent Why didnt the
trial lawyers state lawyers find out about them
The District Judge was clearly very critical of the prosecutors conduct Do
you know whether any disciplinary proceedings were ever taken against them
by any of the relevant authorities They both subsequently left the DAs
office for private practise Do you know whether their leaving was in any
way connected with this case Needless to say no one have spoken to so
far has been very forthcoming about these matters
Given the strong criticisms of the prosecution by Judge Hoyt have been
looking to see whether can find any admission of error by the prosecuting
authorities So far havent come across anything just wondered whether
you were aware of anything
Best regards
Natalie Wortley
Make the most of your family vacation with tips from the MSN Family Travel
Guide http//dollar.msn.com
IN THE TEXAS COURT OF CRIMINAL APPEALS
AND
IN THE 248TH JUDICIAL DISTRICF OF HARRIS COUNTY TEXAS
Ex Parte RICARDO ALDAPE GUERRA
CaseNo
______
Applicant Harris County
Cause No 359805
_______________________________
APPENDIX TO
FIRST AMENDED
APPLICATION FOR WRiT OF HABEAS CORPUS
RICARDO ALDAPE GUERRA IS CURRENTLY SCHEDULED TO BE EXECUTED
SEPTEMBER 24 1992 AT 1201 AM
Scott Atlas
Attorney in Charge
Texas Bar No 01418400
Theodore Kassinger
OF COUNSEL VINSON ELKINS LLP
Stanley Schneider 2500 First City Tower
Schneider McKinney 1001 Fannin
11 Greenway Plaza Houston Texas 77002-6760
Houston Texas 77046 713 758-2024
713 961-5901 FAX 713 758-2346
IN THE UNITED STATES DISTRICI COURT
FOR THE SOUTHERN DISTRICF OF TEXAS
HOUSTON DIVISION
RICARDO ALDAPE GUERRA
Petitioner
CivilActionNo
JAMES COLLINS
Director Institutional Division
Texas Department of Criminal Justice
Respondent
_____________________________
APPENDIXTO
FIRST APPLICATION FOR WRIT OF HABEAS CORPUS
RICARDO ALDAPE GUERRA HAS NO PENDING EXECUTION DATE
OF COUNSEL Scott Atlas
Stanley Schneider Attorney in Charge
Texas Bar No 17790500 Texas Bar No 01418400
SCHNEIDER McKINNEY Theodore Kassinger
11 Greenway Plaza Richard Morris
VINSON ELKINS LLP 2500 First City Tower
Houston Texas 77046 1001 Fannin
713 961-5901 Houston Texas 77002-6760
713 758-2024
FAX 713 758-2346
Thomas Gibbs Gee
Texas Bar No 07789000
BAKER BOTFS LLP
3000 One Shell Plaza
910 Louisiana
Houston Texas 77002
713 229-1198
STATEMENT
STATE OF TEXAS DATE 7-14.82
COUNT OF HARRIS TIME 140 A.M
Before as the undersigned authority personally appeared
PATRICIA ANN FLORES DIAZ who
after being duly sworn on his/her oath depose and says
My case is PATRICIA ANN FLORES DIAZ
and am 11 years of age having been born on 9-1764
__________________
My hose address js 4430 CLAY
_______________________________
teleDhone nusber i-b9J
as employed at uf1EMPLOYE
________________
telephone number
____________
can
also be reached at 9210410 AUNT IHRINA MEDINA
My Driver License number is NUNt and my
Social Security number is
________________________
TONIGHT ABOUT 1100 P.M MY AUNT THRINA MEDINA ASKED ME IF WOULD DRIVE HER OVER TO HER
UNcLES HOUSE ON RUSK STREET HER UNCLE IN NAIlED FRANCISCO1 BUT DO NOT KNOW HIS LAST NAME
OR HIS ADDRESS
WE WERE GONE ABOUT 30 MINUTES BECAUSE NOONE WAS HOME OR THEY JUST DID NOT ANSWER THE DOOR
SO WE CAME BACK TO MY AUNTS HOUSE All NOT SURE BUT THINK MY AUNT LIVES AT 3904 WALKER
ALSO HAD MY BABY WITh ME WHO IS YEAR OLD GIRL BY THE NAME OF ELIZABETH
WE WERE GOING DOWN WALKER STREET AWAY FROM TOWN AND WAS DRIVING MY 75 CHEVRELETNOvARED
WHEN WE CAME UP TO INTERSECTION WITH WALKER ST WALKER GOES EAST AND WEST AND THIS STR
GOES OFF OF WALKER TO THENORTH ONLY IT DOES NOT CONTINUE ON THRU WALKER DO NOT KNOW
WHAT THE NAME OF ThIS STREET IS AT ThIS TIME
WHEN WE GOT TO THIS INTERSECTION .1 SAW BLACK CAR CAR PARKED CROSS WAYS IN Tk MIDDLE
OF ThE STREET ACROSS WALKER AND SAW ONE MEXICAN MALE STANDING THERE BY THIS CAR ALSO
SAW NAT POLICE CAR HAD STOPPED THERE TOO AND THE POLICE CAR HAD ITS RED LIGHTS FLASHING
BUT DID NOT SEE THE POLICE OFFICER AT THIS TIME
WE GOT REAL CLOSE TO THE CAR THAT WAS PARKED ACROSS WALKER AND THE POLICE CAR BEFORE
REALIZED ThAT ANYTHING WAS FIXING TO HAPPEN ABOUT THIS TIME HEARD SOMEONE YELLSTOP
ON THREE DIFFERENT TIMES RIGHT IN ROW COULD NOT TELL WHO WAS YELLING THIS IF IT WA
THE MEXICAN MAN ORIGINALLY SAW STANDING BY THE BLACK CAR OR IF IT WAS THE POLICE OFFICER
WHO HAD NOT SEEN YET
JUST AFTER HEARD SOMEONE YELLSTOP SAW THIS MEXICAN MAN WHO HAD ORIGINALLY SEEN BY
THE BLACK CAR POINTING GUN IN THE DIRECTION OF THE POLICE CAR.AND SAW HIM SHOOT FOUR
TIMES AT THE POLICE CAR STILL HAVE NOT SEEN ThE POLICE OFFICER AT THIS POINT
WHEN THE MEXICAN MAN GOT THRU SHOOTING HE RAN DOWN WALKER GOING AWAY FROM DOWNTOWN AND THA
WAS THE LAST.TIME THAT SAW THIS MAN TONIGHT
WHEN ThIS HAPPENED MY AUNT AND GOT OUT OF THE CAR TO SEE WHAT HAPPENED AND HEARD
SOMEONE YELL FOR SOMEONE TO CALL AN AMBULANCE THAT THEY HAD SHOT THE COP MY AUNT AND
G3T UP TO THE POLICE CAR BEFORE FINALLY SAW THE OFFICER LAYING ON THE STREET AND COULD
TELL THAT HE HAD BEEN SHOT BECAUSE HE HAD BLOOD ALL OVER HIM AND HE WAS ON ThE GROUND
BY THAT TIME THERE WERE SEVERAL PEOPLE AROUND THE POLICE CAR AND MY COUSINS HUSBAND
JOHNNY MATAMORAS WAS TRYING TO HELP ThE OFFICER AND TELLING SOMEONE TO CALL THE ANBULANCE
STAYED THERE ABOUT TEN MINUTES BEFORE LEFT TO 00 LEAVE MY BABY AND MY AUNT STAYED THERE
ALTHOUGH DID NOT SEE IT MY COUSIN TOLD ME THAT THE SAME MAN WHO SHOT ThE POLICE OFFICER
STARTED SHOOflNG AT EVERYONE AFTER THAT AND HE ALSO SHOT ANOTHER MAN JUST DOWN THE STREET
hay completed years of school/c and can
________________
read and write the English Language have read this PETITIONERSstate..nt and it is true and correct to the best of my
knowledge Ihave given this statement to DET K.R.WILLIAMSON
_____________________
of my ovn free viii This statement 30
was typed by DET K.R.WILLIAMSON
SIGNEDj
Subscribed and sworn to before me this j.day JUL
SIGNED Lic..JQ Lb.
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
Page of 2pages
117AM
Form CI30004 0000
Incident
Page _2 of statement of PATRICIA ANN FLORES DIAZ
FROM WHERE THE POLICE OFFICER WAS SHOT THIS MAN WAS DRIVING RED AND WHITE CAR AND Sw
HIM IN THE CAR AND HE WAS BLEEDING TOO BUT DO NOT KNOW IF HE WAS ALIVE OR NOT DO NOT
KNOW WHAT ACTUALLY HAPPENED TO HIM EITHER
ONLY SAW ONE MEXICAN MALE AROUND THE BLACK CAR THAT WAS PARKED ACROSS WALKER ST AND
ONLY SAW HIM FROM ThE SIDE BUT HE LOOKED LIKE HE WAS IN HIS 20s ABOUT 510 THIN BUILD
COLLAR LENGTH BLACK HAIR AND WAS WEARING LONG SLEEVE DARK COLORED SHIRT
THE CAR THAT HE WAS AROUND WAS BLACK CAR THAT HAD RED TOP AND RED INTERIOR AND IT WAS
2dr THINK ThE CAR WAS AN OLDSVBILE BUT AM NOT FOR SURE IT WAS MEDIUM SIZE CAR
THOUGH
ALSO DID NOT ACTUALLY SEE THE PISTOL THAT THE MEXICAN MAN USED TO SHOOT THE POLICE OFFICER
BUT THINK THAT IT WAS BLACK IN COLOR
HAVE NEVER SEEN EIThER THE MEXICAN MAN WHO SHOT THE POLICE OFFICER BEFORE OR THE BLACK CAR
THAT HE WAS DRIVING AT THE TIME DO NOT THINK CAN ABSOLUTELY IDENTIFY THE MEXICAN
.AN
WHO SHOT THE OFFICER IF EVER SAW HIM AGAIN BUT THINK THAT COULD GET PRETTY CLOSE
WAS LATER BROUGHT TO THE HOMICIDE DIVISION AT ThE POLICE STATION WHERE WAS ASKED TO
MAKE WRITTEN STATEMENT TO WHAT SAW AND THIS IS WHAT AM DOING AT THIS TIME
have completed year of can
read and write the English Language have read this
statement and it is true and correct to the best of my
knowledge have given this tatment to nrr K.P WTLLIAMSON
__________________________
of my own free will This
statement was typed by flFT K.R WTIITAMSflN
SIGNED
Subscribed and sworn to b.fors me this 14 day of lIlLY 19
SIGNED LJ
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
Page of pages
230 NI
Form CIB0004
000022
-4
DATE 7i82
TIM 620 AM
Sefore ne the undsrsign.d authority personally appearedPATRICIA A1 0PS DT.AZ
after being duly svorn on his/her oath deposes and says
iy sane is Patiricia Ann Plores Dia.
and years of age having been born on
______
_________________
My hone address is 4143O CLAY
telephone nunber9.-o9
as enployed at TiDTiWPfl
_______________ telephone nunber can
also be reached at Q2i...ok Auwr piwrv
My Driver License nusber is NONX and ny
Social Security nusb.r is 65sil6U
On Wednesday July 1982 at approximately 610 AM attended lineuc 00 the third
floor of the Houston Police Department vu asked to sit and look at six men who were
standing in front of me and vu told that after the lineup would be taken outsde and
would be asked if recognized any of the man
After the lineup was taken outside of this room and asked if recognized any of the
sen that were standing before me told the Dot that the man that was standing fourth
from the left was the sans man that had seen on Walker just before the officer was shot
recognized this mans hair and profile When was in car drove down Walker St
and this was the first tins that saw this man standing on the side of car say
this man with his hand outstretched and guess he had gun in his hand
have co.pietsd years 6f scboolfIUi1b and can
read and vrits the English Language have read this
statement and it is true and correct to the beet of up
knoviedge have give this statanest to Det Gatevood
_____________________
of ovn free viii This statenest
vas typed by Dot Gatevood
SIdED
Subscribed svorn to before me this
____
SIGNED
1IOTAZY PUIL1
TI STAT OP TEXAS
Page of 000023
STATE OP TEXAS
Zncident
-__________
COUNTY OF EAlII
After the lineup was taken back to the Homicide Office where gave Det Gatewood this
statement
PETITIONR
EXHIBIT
1OAN
eases
Incjd.t No
STATEMENT
STATE TEXAS DATE JULY 14th l9
COUNTY HAUlS TIME
lefore cc the un4ersigued authority personally appeared
ELENA GONZALEZ HOLGEN who
after being duly sworn on his/her oath deposes and say
My name is ELENA GONZALEZ HOLGEN
and years of age having been born on
______722JU My ho. address is 4938k RUSE
____________________________ telephone number 9236964
employed at
__________________________________________
_______________ telepbone number
____________
can
also be reached at
______________________________________
My Driver License number is
______________________Social Security au.ber i._____________________
Tonight there was a.car that kept passing by burning the tire and driving
real fast This car pass by several times and every time that it passed
byit had the lights turned of
was getting ready to go to bed and was praying when Itheard four4
gunshots real rapitt Then my son Jose Angel came running into the house
and into my room and told me that the same men that were burning the tire
eariler tonight had just shot Policemen and for me to call the Police ad
tell then
then asked my son Jose Anger where his brothers were jose Angel told
that they were with one of his brothers girlfriends mother So went out
side to see where my sons were at When walked outside saw that the
Policemen walked to the other side of the Police car and fell to side of the
street and toward the ditch
then ran up to where the Policeman was lying and saw that he was still
moving and that he had been dhot While was standing by the Policeman
heard three more gunshots so turned and saw two men running towa.rd
the cemetery couldnt see who they were but it had to be the men that
were in the car that the policeman stopped
When was standing by the policeman that had been shot heard car slag
it brakes and turned and saw that the car ran into the ditch and it almost
hit pole stayed by the officer until he was picked up and taken awayAftert they took the officer walked to the car that had slamed the brakes
and looked inside the car on the drivers side
then saw that the driver had been shot at first thought that he had
been shot on th head becatse he had alot of blood on one side Then not.tc
that he had been shot on his right shoulder The man was shouting for his
but told him to sit still because the anmbulance was already coming to
help him and that way he wouldnt loose any more blood
then stood and talked to one of the Mexican officers and asked him if he
knew where the owner of the car lived then told the officer that knew
where the owner of the car lived The officer then asked me if would scw
him where the hous was at and told him thAt would take him there
have co.pleted
.years of school/college and cam PETITIONERS
read and write the English Languag. have read this
statement and it is true and correct to the best of my
knowledge have given this statement to
____________INV U.P HERNAND3Z of my ovn free will This statement
was typ.d by INV U.P HERNANDEZ
tONED
.tv-4jfa.i.ty
Subscribed and sworn to before me this jaypf JULY
TC IN AND FOR
THE STATE TEXAS
Page of pages
Form Ct3OOO4 000088
Incident
Page of
.tatsne of ELENA GONZALEZ HOLGEN
When we got to the house where the owner of the car lived the Mexican office
told me to wait while they went inside the house The officers then came
outside and the Mexican Officer had several pictures and showed them to me
then showed the Mexican officer who the owner of the car was from one of
the pictures Then the officers heard police with the siren on and the
officers ran around the house and that when the shooting started One of
the officer yelled at us to lie down on the ground so we did
After the shooting stopped me and this other lady got up and walked to the
corner house where on of my sons girlfriends mother lives and stayed there
Then This officer walked up to me and told me that nebd to go with him to
the Police Station and give statement which did
This is allthat saw tonight do not read or write the English languagc
gave this statement to Inv U.P Uernandez in Spanish and he has read it
back to me in Spanish and it is true and correct as gave it
have co.pl.t.d years of scbooi/coll.g and can
read and write the English Language have read this
.tat..ent and it is true and correct to th best of nyknowledge have given this statnent to
_____________TNV np iiND of sy ova free will This
atat.sent was typed by INv U.P HERNANDEZ
SIGNEDL4iL. Al
Subscribed and sworn to before as this 14th day of JULY 1982
OTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
Page of pages
Form CI50004
000089
tOCjd.55 He
STATEMENT
STATE Of TEXAS DAT__ 1982cou Of lAths TIME 955 A.M
lefor the Vadersiloed authority Personali appearedIs SAUCEDO
after being duly vor en his/bet oath depois iduaysusa is GELA5IO SAUCEDO
and years of age having bein born on
______
OVG 21953 My ho. addres is WAL
t.leph nuaber 9215Ia eap bed WITH AR3O
telepbo Iuub.r N/A
calalso be reached at N/A
NyDtjve License auuh.r is 09173315
s.d sySocial Security nuabe is N/A
ASOUT 10 OOp.. MAYBE 10 3Op.n LAST NIGHT WAS INSIDE MY ROUSE WAS GECrREADY FOR BED If SHAH GUM SHOTS IM NOT SURE ROW MAlI MAYBE ORMT WL LO01 OUT TB WINDOW AND SAID TO ME THAT THERE WAS MAN WIT GUNOUTSIDE TRER LOO OUT AND SAW SHORT MA RUNNING PAST TB ROUSECOULD NOT SB TB GUN BUT MY WI SAID TEAT TB GUN WAS SMALL wEr Ct1512EAS RAN tJlVDB TEE STRI LIGHT SAW TEAT WAS ICA3 MAN WEARINGEIT 3W OR GR I-SHIP IM NOT SUB WEAl COLOR LOO DOWNTB STRB AND SAW MT FAI-IP..LAW CAR IN BTGop YARD RAN TO THE CARTZ WERE PEOPLE LOONG INSIDE TB CAR NOTICED TEAT MT BROTIN LAW WAS IN TB CAR WAS DRIVING TEE CAR lRIED TAIJCNG TO H4 BUT FlWAS RUB APItR TEAT TE WAS WI OF CCN7USION
ha coupleted of school/c and casread aud ens the Language ha. read this SPANISHscaee..nc and it is true and correct to the best ofkneeled1 have $i..s this tateuent 0FFI 3ARBJ
oLyova roe viii This statiujutvss typed by
SI GM ED
Subscrtb.d and scorn to before this ofi CLv
IGMED
NOtbI FUI
TEE STATE ZEAl
of pales
000002For CIl0004
Ipp
Incident No
STATEMENT
STATE OF TEXAS DATE
COUNTY OF HARRIS TIME 1205 AM
Before me the undersigned authority personally appearedHILI4A SAMANIEGO GALVAN
after being duly sworn on his/her oath deposes andays
My name is HILMA SAMANIEGO GArvJ
and am 43 years Of age having been born on21338 My home address is 4925 WAT.TeFp
telephone number rn
am employed at HOUSEWIFE
telephone number can
also be reached at
My Driver License number is
_______________________
and mySocial Security number is
_________________________
TONIGHT AT ABOUT 930 or 945 PM WAS INSIDE MY HOUSE WATCHING TVMY DAUGHTER PATRICIA CALLED TO ME THAT MY OTHER DAUGHTER CATHYWENT TO GO SEE WHAT AN AMBUI.ANCE THAT WAS DOING AROUND THE CORNERCATHY IS 15 AND PATRICIA IS 21 WAS MAD AT PATRICIA FOR LETTINGCATHY GO WENT TO GO GET CATHY TWO OF THE NEIGHBOpjjo BOYSWENT WITH ME ONE JOSE ANGEL LAM16 HE LIVES BEHIND ME ON RUSHTHE OTHER ONE WAS HIS BROTHER ARMANDO LAM 16
WE WALKED TOWARD LENNOX ST LOOKING FOR MY DAUGHTER WE WENTALL THE WAY TO LENNOX WE SAW TWO LAM IN BLACK AND RED CARTHINK IT WAS MOThE CARLO OR CUTLASS THEY WERE COMING TOWARDUS FROM THE DEAD OF LENNOX ON WALKER THEY STARTED TO TURN ONDELMAR BUT THERE WAS rpOLICE CAR WITH SPOT LIGHT THEY STOPPEDAND BACKED UP REAL FAST AND CAME BACK TOWARD US ON WALKERBOTH TIMES THEY CAME PAST US WE HAD TO GET OUT OF THEIR WAYOR THEY WOULD HAVE RUN OVER US THE POLICE CAR CAME AFTER THE\BLAcx AND RED CAR BUT THE POLICE CAR TURNED ON RUSH
THE TWO BOYS AND WERE COMING BACK TO MY HOUSE WHEN WE SAW THEBLACK AND RED CAR THE MOTOR WAS OFF IT WAS IN THE MIDDLE OF THE STREETTHE POLICE CAR CAME UP AND STOPPED BEHIND TIE CAR THE TWOGUYS THAT WERE IN THE CAR WERE OUTSIDE OF THE CAR ONE WAS COMING TOWARDUS AND THE OTHER ONE WAS ON THE OTHER SIDE OF THE CAR ANDCOULD NOT SEE WHAT HE DOINL THE OFFICER GOT OUT ANDTOLD THE GUY COMING TOWAhD US..- STOP THE GUY KEPT WALKINGTHE OFFICER YELLED AGAIN/HE GUY STOPPED AND LOOKED AT THE OFFICER
THE OFFICER TOLD THE G4O COME TOWARD HIM THE OFFICER ALSO MOTIQEDFOR THE GUY TO COME.21E OFFICER WAS JUST GETTING OUT OF HIS CARTHE GUY CAME TO TH/bFFICER THE OFFICER DIDNOT NOT HAVE HISGUN OUT THE OFFER PUSHED THE GUY UP AGAINST THE POLICE CARWHEN THE OFFICE PUSHED THE GUY AGAINST THE CAR THE GUY TURNEDAND S1ARTED SOOTING THE OFFICER THE OFFICER NEVER HAD CHANCETHE GUY SHOT ABOUT FOUR TIMES SAW THE OFFICER FALL WAS SOCLOSE TEAT COULD HAVE THROWN ROCK AND HIT THEM THE GUY KEPT SHOQrNGAT EVERYONE THAT WAS OUT WATCHING EVERY STARTED RUNNING AND DUCKINGTHE GUY WAS SHOOTING AT ONE OF MY NEIGHBOR WHO AND HER BABY IN HERARMS SE STARTED RUNNING THERE WAS CAR RED AND WHITE FORDhave completed ii years of school/college and cam
read and write the English Language have read this
statement and it is true and correct to the best of
knowledge have given this statement to
_____________pT pTTMTJ of my own free will This statement
was typed by PT1MmT
SIGNED
Subscribed and sworn to before me this 14 of JULY 192
SIGNED t-s-.4_
TART PUBLIC AND FOR
THE STATE OF TEXASP.L.T 71482 1257 AMPage_______ of pages
Form CIB-0004
flflflfl
App 0002
XfCtdn h..1
of statenent of
_ftILMA SAI0 GALVNA
THERE WAS MAN WITH MIS OSN AND DAUGHTER THE BOY IS ABOUT 10 ANDTHE GIRL Is THEY LIVE BEHIND ti ON RUSH THE MAN IN THECAR GOT SHOT IN THE HEAD LEARNED THIS WHEN THE LITTLE BOY RAN TOME AND ASKED ME FOR HELP THAT HIS FATHER GOT SHOT RAN OUT ANDGOT THE LITTLE GIRL THE CAR HAD RUN INTO TREE IN FRONT OF MY HOSUE
THE OFFICER FELL AGAINST THE CAR THE CAR WAS BLUE AND WHITE POLICECAR WITH OUT RES LIGHT ON TOP OF IT MY HUSBAND WAS TRYING TOGET TO THE POLICEMAN BUT THE GUY KEPT SHOOTING MY HUSBAND SAID THATTHE GUY HAD SHOT SEVEN TIMES SOME ONE ELSE SAID THAT THENOTHER GUYWAS SHOOTING SHOTGUN COULD NOT SEE THE OTHER GUY BECAUSE OFTREE IN MY YARD AND THE BLACK AND RED CAR
KNOW THE ONE TEAT SHOT THE OFFICER BY SIGHT BUT DO NOT KNOW HISNAME NEVER GOT GOOD LOOK AT THE ONE ON THE PASSENGERS SIDEOF THE BLACK AND RED CAR THE GUY SAW SHOOT THE OFFICER LIVESWITH SEVERAL OTHER ILLEGAL ALIENS THEY ARE ALWAYS SHOOTING CUTTING ANtBEATING PEOPLE IN THE AREA THEY ALSO ROB PEOPLE THEY ALL CAUSETROUBLE AM AFRAID THAT THE OTHER PEOPLE THAT HE LIVES WITHHIM WI LI COME AND TRY TO SHOT MY FAMI LEY
THE GUY THAT DID THE SHOOTING WAS WEAR.tNG DARK BROWN PANTS AND DARKBROWN OR BLACK SHIRT HE IS ABOUT 20 YEARS OLD HE TALL AND THINAND HAS SHOULDER LENGTH STRAIGHT BLOND HAIR HE IS AN ILLEGALALIEN
14h118i
have co.plst.d years of school/college and can
read and vrit the English Language have read thu
.tste.eat and it is true and correct to the best of ay
knoviedge have given this stacaent to
______________P.L TRUMBLE of own free viii This
staceent Vs typed by P.L TRUMBLE
SIGND7.L.LjiÆ .J
Subscribed and sworn to before this 14 of JULY
SIGNED
MOlAR PUBLIC I-D FOR
THE STATE OF TEXAS
Page If pages P.L.T 71482 109 AM
000008
App oo3
STATEMENT
STATE TEXAS DATE jt1 14 1982
COUNTY HARRIS TIME
Sefore se the undersigned authority personally appeared1itTh TV
vhoafter being duJ.ivern on his/her oath deposes and laysfly nan is HIIZ.P SNPN GALVPN
aid 43 years of 151 having been born on021338 My hose address 4925
telephone nunber
__________e.pioyed at
________________
ts1epon nuaber canalso be reached at
My Driver License nusber is
______________________Social Security nusber is
mj SNW GALVPN is JY 14 1982 AT 620 PMM% LDW AT DlJ POLI
LINEjpOF SIX LATIN PICN 19L SJCi Fl NtPE OF sIx pcpLATIN AICPN STPit FRII LEr TO RIQT AS .n spiq stxTI AS SItw H4 AND AND1 LATIN CJ TRAFFIc SAW TiS LE IN
THE JR SHOT LI OFFI AND TI4 ABLE
TO THIS LE IN NtJPP FtXJR IN THIS LINFUP BALJSE srLI TI HE RAN TtPfl IS WHILE THIS PN IS HE WAS
STILL FIfl HIS PISTOl ABLE 70 1S IZ AS swrOFFI BJEE WJ HE 3T THE TI THIS Z.E WAS SND t14
LIGfI AND SAW HIN CLEAJ.y THIS PJ2 WAS ALSO SAZ rEAr
WAS DRIV CAR Wg IT WAD SI
.- OF
THIS WAS ALSO TE TE WIN T1 LI OFFI PAP HIS CAR sai STALCAR IT WAS TH 1T DRIVE ALSO iN IN LINP SIVr LI CFF
P14 PIrIVE THIS
.IS WAN SM SIOl LI CWTI
SIGNED c. 2tj44...1.4_
Subscribed and svorn to before me this
.L.day of .7Zy .i
D___________
NOTARY U3LC IN AND FOR
THE STATE TEXAS
Page
of
_____page- 00u4
have completed years of school/college and canread and vrtts the English Language have read thi
statement and it is true and correct to the best of syknoviedge have given this tate..nt to
____________________
of sy ova free viii This state.enc
vas typed by INV YBA
Torn CII0004 000009
STATEMENT
STATE OF TEXAS DATE1 l9
COUNTY OF HARRIS
Before usthe undersigned authority personally appearedWry TJrL flTNA ris vhoafter being duly sworn on his/her oath deposes and saysMy na. is HERLINDA NEDINA OARrTA
and 14 years of age having been born on
______08/31/67 My ho.e address iS415jy
telephone nu.ber
___________e.ployed at
_________________
telephone nu.ber can
also be reached at
My Driver License nu.ber
______________________
andSocial Security nu.ber is
THIs vENflc SO1TIME AFTER 10 OOPM NT SISTER AND WERE COINO TO TPE STORE ON THECORNER OF WALKER AND DUMBLE NAMED PATS GOCERY STORE MY SISTER A1Th WAS WALKjo DOWNTHE SIDEWA Wl RR.ED THAT HAD LEFT MONEY AT THY HOUSE TOLD MY SISTERTO WAIT RIGET THENZA.Nl RAN HOME TO GET MONET WHEN COT THE tNEy CANE OPT OFTHE ROUSE AND WAS RONNING TOWARD MY SISTER WREN COT TO MY SISTER WE SAW TRI BLkcCAR TURN OFF OF WALKR ON TO LENEX STREET REAR PAST IN FRONT OF US AS THE CAR WAS ETflNrREADY TO BACK UP POLICE CAR COqNc DOWN LENEX PULLED IN BEHIND IT
WHEN THE POLICEM PULLED BEHIND THE CAR HE TURNED ON THE SPoIT HEOF HIS CAR AND RE TOLD THE HEN IN THE BLACK CAR TO CET OUT OF THE CAR AN PUT THEIR HANDSON THE .HOOD THERE WERE WO MEN IN THE CAR BOTH MEN CANE OtTT OP THE CAR ON THE DRIVELcSIDE OF THE CAR THE POLICr4AN TOLD THEN TO PUT THEIR HANDS OW THE HOOD BOTH MENS HANDSWERE IN THE AIR THEY WERE WALKING BACK TOWARD I1tE POLICEMAN WHEN RE TOLD THEN TO PTTTHEIR HANDS OW THE HOOD AS THEY WERE WALKING THEY flRNED AND LOOKED TOWAj AND MYSISTER TOLD MT SISTER LETS CO
--
BEFORE GOT CEANCE TO MOVE SAW THIS CU WITH THE BLOND Icj INTO THE FRONT OF HISPANTS AND PULL OUT PISTOL AND SHOOT THE POLICEMAJI MY SISTER COT DOWN PNnER THE 3LACKCAR STARTED RUNNING THE MAN WITH BLOND HAIR CAME AFTER ME SHOOTINC AT HE AS WASRUNNING THIS MAN IN RED CAR GOT BETWEEN MY AND THE MAl WITH THE BLONDE HAIR THE WANWITH THE BLOWDE HAIR TEEN SHOT THE MAN
.NI141 READ CAR THE CAR RAN INTO TRIE PADMADE IT TO THE ROUSE BY THIS TIME AND CALLED MY HUSBAND AND TOLD HIM THAT M.AN HADSHOT POLICEM
MY HUSBAND RAN OUT 00 THE HOUSE AN RAN TOWARD THE POLICEMAN AND PICKED HIM tP NY CS3QiECCED TO SEE IF THE OFFICER WAS STILL BREAT1INo HE THEN COT ON THE AND STARTEDASKING ThR HELP THE POLICEYQJl ACROcS THE STREET FROM MY HOUSE CAME OUT AND GOT MY HTS3kDAND TOLD HIM TO PVE AND HE THEN GOT ON THE
THE MAN WITH TEE BLONDE HAIR WAS SHOOTING EVERYWHERE HE WAS SHOOTINC AT ALL THE HOrSESDID NOT GET TO SEE THE OTHER MAN ANT DO NOT ENOW WHAT HAPPENED TO RLMTHE MAN 1W SHOT THE POUCEN AND THE MM IN THE RED e.AR HAD BLONDE HAIR T4S ABOUT58 TALL HE WAS WEARING BROWN PANTS AND BROWN SHIRT THAT WAS OPEN ALL THE WAY DOWN
SAW THE MAlI AGAIN THAT SHOT THE OFFICER THINK CAN ITENTIFF HIM
have Coupleted years of schoo1/3fl and can
read and write the English Language have read this
cace.ent and is true and correct to the best of myknowledge have liven this statement to nprrrpANDERSON of my own free viii This statement
was typed by DETECTIVE ANDERSON
A/
SIGNED
Subscribed and sworn to before me this 0fJLRTLY l92
SIGNED_____________________________
NOtARY PUBLIC IN AND FOR
HE STATE OF TEXAS
Page_______
For CIB-0004
000010
STATEMENT
Ifljd
_____
STATE OF TEXAS DATE July 14
COUNTY OF HARRIS TIME 626 A.M
Sefore as the undersigeed authority personally appeared
whoafter b.iug duly sworn on /hsr oath deposes saysMy name is fl
and 14 years of age having been born on
My home address is 4938 .Jcer
telephone Dumber 21U4IU
employed at
te1epone number
____________
canalso be reached at
My Driver License number is and mySocial Security number is
thi.s data via line at the police stia tt viein the linewas e1Ja1 oots.lde the line ru and asked by tective if recognized anyaein the line told the Dethotj tiat did in fact reccgnize the Suct thetdid -the shooting pidced the peco in the line as the subject thet shottia polio officer is no dDbt In my mine an pceitive that he wasthe that shot the police officer Also after this subject shot the police officerhe started rmznizq td Lancac seet As he was r.rmirg he was sIting atand at this tine ran to my hcxme with my baby in my ame got inside my ha.senoticed this ine in red car driving dcae the seet This man had two childrsin the car sa the subject that pidcad oot of the line this ild be thesubject this shoot the man in the red car thinjc that he shot thetwi. This subject was the driver in the black car did not see the passgerofthecar
have completed years of schooL/ and can
read and write the English Lanuage have read this
statement and it is true and correct to the best of myknowledge have given this statament to tectiveE.T Yanak of my own free will This statement
was typed byteCtiE.T Yandk
SIGNED/..4
_______________
19
Subscribed and sworn to before me this
SIGNED
IC IN AND FORNOTA PURL
THE STATE OF TEXAS
Page of 1pagee
Form CIB0004
Oflflh1
Iflcidet No
STATEMENT
STATE OF TEXAS DATE July 14 1982
COUNTY OF HARRIS TIME 1215 AM
Before me the undersigned authority personally appeared
Jose Francisco Arneo
after being duly jworn on his/her oath deposes and lay
iy name Jose Francisco Armejo
and 10 years of age having been borlon
______
flrrth.r 2fl O7fl My home address is 2Mg 492 USk
_______________________________
telephone number
__________
employed at
____________________________________________
________________
telephone number
____________
can
al.o be reached at
My Driver License number is-
_______________________
and my
Social Security number is
_________________________
Around 1000PM tonight me and my sister and my father went to the auto parts store
and the store where you can buy gas We went to the auto parts store first and bought
something for the car Then we went to the store to get some gas and Fritos and cokes
On the way back from the store we were going home and we saw the police had car stopped
My father couldnt turn on our street because the car the police had stopped was blocking
the street My father stopped the car and said that he was going to have to go straight
because the car was blocking the street dont rementer what Street we were on but
we were close to my house on Rusk While we were stopped saw the police car parked
behind theother car The policeman got Out and stood behind his door and two men got
out of the other car One man got out from the drivers side and the other one came
from the other side saw that there were some other people in the car that the police
iad stopped but they stayed inside The two men that got out of the car walked up to
the policeman The policeman was still standing behind his door when they walked uo
The two men were standing next to each other and saw one man tap the other man who
was standing next to police car He tapped the other man on the hand but the policeran
couldnt see him because of the door Then the man next to the
police1 cr.reached
around his back like he was going to scratch it and pulled out gu4holicernan
in the face The man shot the gun hand nd think he shot about four
times The policeman fell on the ground and the two men started shooting all over the
place They were shooting at houses and then they saw us and my father said that we
needed to get out of there father put the car in reverse and we started going
backwards and the two men were chasing us There was one man on each side of the car
and the man on my side of the car shot through the front glass of the car heard
father yelT and thought he had been shot because the seat of the car and his back
have completed years of schoo1/eXB4g and can
read and write the English Language have read this
statement and it is true and correct to the best of my
knowledge have given this statement to
_____________
Det F.S Dobyanskl of my own free will This statement
was typed by Uet F.S Dobyanski
SI ON ED
Subscribad and sworn to before me thtyey of
SIGN tD AQi.v4..iMt 44jARrPuL.IC IN AND FOR
THE STATE OF TEXAS
Page of
_jpeges
App
Form ctOOO flUflULb
Pate of statement of Jose Francisco Arnvjp
_____
had blood afl over them My father then put the car in drive and we went little ways
up the street and the car went into the ditch My father was laying over In the middle
of the seat so put the car in park and turned the key off
The men that shot the policeman came running by our car and ran past us to the curve
down the street They were still shooting when they went nast us but they stopped when
they got to the curve
After the men had gone out-ef the car and ran to Mrs Galvans house and told
her to call an anEulance because they had shot
father.4J
her that had to
go back and get uw little sister but she told ma to stayAher Woe and she would go
and get sister Then after that dont know what happened
Also when the policeman got shot the other people in the car got out and ran and went
all over the place
didnt see the lien that shot the policeman too good and dont rementer what they
looked like or what they were wearing
dont read very well yet so Peggy Howell read this statement to ma Everything that
was read to me was everthing could remenber to the best of knowledge
Subscribed and sworn to before me this
Page of page.
vors Ct$0004 000017
have ce.plsted y.sr of school/na Lgc and cam
read and write the Zngli.h Language have read this
statement and it is true and correct to the best of myknowledge have given this tat.eet to
____________Det F.S Dobyanski of my own free viii This
statement was typed by Det F.S Oobyanski
App oioe
Ioctdent No
STATEMENT
STATE OF TEXAS DATE 7-14
COUNT OF UARIS TIME 0040 A.M
Sefers me eh undersigned authority personally appear.4IPA FL
whoafter being duly sworn on his/her each deposes and saysMy name is UJA FL
and lb years of age having been born on3-4bb
My home address is 4938 Walker bistaTcas
telephone number 92104j0
employed at
celepbone number
____________
can
also be reached as
fly Driv.r License number is
_______________________
and mySocial Security number is 45037JJ.59
Lerlier taught 71382 an not sue of the tire walking vest auWal.ker Street was au anjed by my ymger sister whcse is r.jnda Gartiaand she is 14 years old was several hm dn frau where Live whan sevCa go.ng fast au street that orauses Walicer Street This street is ji.et vest ofwhere Live car as south au the street arid the car was 1aze bladVehicle with red strices au it car pulled into the intersectiau at WjŁ2Stxee-stped in the mi1e of the intersectiai tu noticad that there was
.j busta Polica Car directly behind the b.a car arid that the poilca vehicle had/r- its flashing lights or These are the red lights that are or the roof of the polica carThere ware two persaus in the bladc vehicle but orly noticad that the driver of thebLar vehicle had bsxud oolored hair arid that he was Ithi/erj ma.le in histuties Both of ecpIe in the bladc vehicle than the car 1e wasorly ore polica offi in the polica car and he got olt too o.uld hear the birdhaired driver saying sarething in uanish like need or sarething like that
-- The polire off icar told the two gs to put their hands or the polica cartwo persaus had bean talking ief1y with the polica of ficar before he told than to cothat Both the driiwith bird hair and the passanger of the blade vehicle theu puttheir hands or the polica car The left fraut fander By this tire my yorugersister had stexted btirdour horse felt their might be troubleAt this tire the bicrid haired driver 1a_pistol fran sauewhere to his frort andsirted shooting at the The polica of ficar fell irurediately to thean not suret think the driver of the car orly shot ore tire at the policaof ficar arid the .uhot several tires as he began to nru away dai cua where the
passanger of the bl vehicle want because juiçued urudsrneath car dziL
can idantiythe..persa sai arid ha never seen than before iTblaud haired latin/Pcerican male Last as he was ruiuning taard the caretazy After the
shooting was aver sa my brother-in- trying to help the suded poiica off icer
olpleted7yesrsof5chool/I
read and write the English Language have read this
statement and it is true and correct to the best of myknowledge have given this statement to xl D.D.SIaBLEY
______________________
of my ova free will This statement
was tyed by D.D.S1L
SIGNED f\A4
Subscribed and sworn to before me this l4th auly l9j
SIGNED l1-ep
4OT4yRf PU5LIC IN .ND FOR
TE STATE OF TEXAS
Page_______
App
Form C13-0004
000018
.1
Incident No AC
STATEMENT
SZATZ 07 TEXAS DATE 7-22-82
COUNT OF HARkIS TIME l53pm
LfIRT M%N 5ned autbÆrity personally appeared
after being duly sworn on his/her oath deposes aidsayMy sane is ELVIRA MEDINA FLORES
and am 16 years of age having been bore on
_3-4.6S
My hone address ii 921-0410
telephone number
__________an employed at unemployed
________________ telephone number canalso be reached at GUIFWAY VILLAGt APARTMEMfl ON DIMUKESTREET APT19
My Driver License number is
______________________
and mySocial Security number is Acn.17..Ilco
On July 14 1982 brought to the Homicide Division where gave statement
to Detective concerning the shooting of police officer want to givethis second statement because would to like up some events that did
not mention On July 131982 myself and my sister were walking west on WalkeSt going to Pats store My sister is Herlinda and she have already given
the Detectives statement As we were walking to the the store that is
on the corner al Walker and Dumble saw this this black car with two
LA/males inside The car was going west on Walker at high rate of speed
As the car pass us the driver of the car tried to do doughnut in the middi
of the street but the car stopped The car died right there When the
.driver tried to do this doughnut Is when the car fell dead in the middle of
the street The car was in the same position when the police came to
where the police officer was shot
When the car 1ae to .a stop the driver got out of the car and asked me for
boost he kept askingme for boost
had started walk back because saw the police officer drive up behind
the black car The police officer was coming down Edgewood to Walker street
There were two LA/males inside of the car and they both had gotten out of the
car did not pay that must attention to the other one just the driver
The driver had long hair and beard and mustache
When the dfficerdroye upthe officer got out of his car and called for the
two IA/als to come back to his car When this all happen was standing in
front of thi black car that the two LA/males were driving When the officer
called the wo LA/males over to his car The officer had the two LA.males
have completed itp year of and can
read and write the Engliek Language have read this
statement and it is true and correct to the best of npknowledge have given this statement to
_____________DET L.E.WEBBER of my own free viii This statement
wag typed by DIT L.E.WEBBER
ICUD
Subscribed and sworn to before me this .day of JULY
SI GNED i_..-1L
NO1A1Y qE.IC IN AND FOR
TEE STATE OF TEXAS
Page of
..g......page App 001
Form Ct3-0004 000019
Incjd.t U614582
Pag of statement of ELVIRA MEDINA FLORES
to place their hands on the police car The two LA/males walked up to the
the police car and placed their hands on the hood of the police car
with the other LA/rn placing his hands on the police unti near the drivers
door of the police car and the driver of the black ca placing his hands
on th hood near the front The police officer was standing on the Inside
of his car door The officer had his car door open on the drivers side
and had the two LA/males standing betweeen him and the door
As th driver of the black car was placing his hands on the hood of the
police car the officer was saying something to him and the driver was
saying In Spanish No No we necd boost The driver of the black car
thin turned from the police car and took his hands off the car the
driver of the black car thin starting shooting at the officer did not
see where the LA/rn got the gun from He was just shooting The LA/males
did not go back to the black car The driver of the black car was
backing up shooting at the officer After the driver of the the black
had shot the officer the driver left running down the Street and he
was still shooting the driver ran east on Walker street The man that
was In the red car was going west on Walker when the driver of the black
car was running and shooting saw the driver of the black car shoot the ma
that was in the red car as he was running
After the driver of the black car had shot the the officer the officer just
fell to the ground did not see where the other LA/rn went to later
dove Into ditch to keep from being hit by the ballets never did see
the officer take out his gun
On July 141982 took par in lineup while at the police station
recognize the man standing in the nurnber posItion as the driver of the
black car and the man that saw shoot the officer told that the
Detectives on that day that did not recognize anyone because figured
enough people had already identified the man in the position On today
talked with Detective Webber and some District Attorneys and gave the-fl
my story as to what saw on the night the officer was shot told them tha
did recognize the man as the driver of the car and the one that shot the
officer So want to gave this statement to make everything straight
have cotpi.t.d years of schoo1/M4 and can
read and writ the English Language have read this
statement and it is tru and correct to the best of
.yknowledge hay given this statuent to
____________DET L.E.WEBBER of my own free viii This
stataasnt vss typed by DET.L.EWEBBER
GNED
Subscribed and sworn to before .e this Z2ndday of JULY
SIGNED
NOTARY U$LIc IN AND FOR
TUE STTE 07 TEXAS
Page of pages
cpp 0011
Ferrn CI30004
OOOOO
STATE 01 TEXAS
COUNTY 01 HARRIS
Before us the undsrsl$nsd authority personally appeared
PATRICIA ANN FLORES DIAZ
who
aftsr being dull sworn on his/her oath deposes
sad says
Ify nsa is
PATRICIA ANN FLORES DIAZ
TT years of age having been born on 9-17-64
_________________
Ily ho. address is 4430 CLAY
teiehon nu.ber 9Lb9i
Tu .ploysd st uENPLOYED
tsl.pbone nuaber ____________ CU
also be reached st 9Z104l0
ALIIT ThNINA PD1NA
My Driver License nu.ber La ________
and ny
Social Security nuaber is ________________________
TONIGHT ABOuT 1100 P.M MY ALJ4T THRINA MEDINA ASKED IC IF WOULD DRIVE HER OVER TO HER
UNCLES HOUSE ON RUSK STREET HER UNCLE IN NAMED FRMCISCO
BUT DO NOT KNOW HIS LAST NAME
OR HIS ADDRESS
WE WERE GONE ABOUT 30 MINUTES BECAUSE NOOME
WAS HOlE OR THEY JUST DID NOT ANSWER THE DOOR
SO WE CAME BACK TO MY AUNTS HOUSE All NOT SURE BUT THINK
MY AUNT LIVES AT 3904 WALKER
ALSO HAD MY BABY WITh ME WHO IS YEAR OLD GIRL BY ThE NAME OF ELIZABETh
WE WERE GOING DOWN WALKER STREET AWAY FROM TOWN
AND WAS DRIVING MV 75 CHEYRELET NOVAED
WHEN WE CAME UP TO NTU INTERSECTION
WITH WALKER ST WALKER GOES EAST AND WEST MID THIS STRI
GOES OFF OF WALKER TO THEI4ORTH ONLY IT DOES NOT CONTINUE ON
THRU WALKER DO NOT KNOW
WHAT THE NAME OF THIS STREET IS AT THIS TIME
WHEN WE GOT TO ThIS INTERSECTION SAW BLACL CAP CiA
PARKED CROSS WAYS IN ThE MIDD
ACROSS WALKER A4tM SJI1C STNIDINS ThER BY ThIS CM LSOfl$htSF1iTOPNPil- IOG Söi SLIU C$ Iii if-s L1I
Bt .TDEf
WE GOT REAL CLOSE TO THE CAR THAT WAS
PARKED ACROSS WALKER AND THE POLICE CAR BEFORE
REALIZED THAT ANYTHING WAS FIXING TO HAPPEN ABOUT
THIS TIME SCOIi YLL.STOP
ON ThREe
JU AIj YttS1OP SWTTS MEXICM MAN WHO HAD ORIGINALLY SEEM BY
TH 5fl CAR.MS Mu ST FDUTI IMEN .$SLT4I POUE QF1cER POUCh
WHEN THE MEXICAN MAN GOT ThRU SHOOTING HE RAN DOWN
WALKER GOING AWAY FROM DOWNTOWN AND TH
WAS ThE LAST TIME THAT SAW THIS MAN
TONIGHT
WHEN THIS HAPPENED MY AUNT AND GOT OUT OF ThE CAR
TO SEE WHAT HAPPENED AND HEARD
SOMEONE YELL FOR SOMEONE TO CALL AN AlULANCE
THAT THEY HAD SHOT THE COP MY AUNT AND
GOT UP TO THE POLICE CAR BEFORE FINAU.Y
SAW THE OFFICER LAYING ON ThE STREET
AND COULD
TELL THAT HE HAD BEEN SHOT BECAUSE HE HAD
BLOOD ALL OVER HIM AND HE WAS ON THE
GROUND
BY THAT TIlE .THERE WERE SEVERAL PEOPLE AROUND
THE POLICE CAR AND MY COUSIN HUSBAND
JOa4NY MATAItRAS WAS TRYING TO HELP ThE OFFICER AND
TELLING SOMEONE TO CALL THE ANBULANCE
STAYED ThERE ABOUT TEN MINUTES BEFORE
LEFT TO GO LEAVE MY BABY AND MY AUNT
STAYED THERE
ALTHOUGH DID NOT SEE IT MY COUSIN TOLO ME THAT
NE SAME MAN WHO SHOT THE POLICE OFFICER
STARTED SHOOTING AT EVERYONE AFTER
THAT AND HE ALSO SHOT ANOThER MAN JUST
DOWN THE STREET
have cospieted .yesrs of school/c
and can
read and writs the English Langusle have
r.sd this
siateaent sad it is true and correct
to the best of
knowledge Ihsve given this stateneat
to DET K.R.WILLIAIISON
of ova free viii This etste.eat
vs typed by D1 K.R.WILLIAIISON
SIGNED
Subscribed and sworn to beforese this j_dsy of
JULY 82
SI OilED .L._J
NOTARY PUBLIC IX AND FOR
TIE STATE 01 TEXAS
000021
TATEMENT Incidents
DATE 7-14-82
TIME 140 A.M
A4
LJZa.cr arr4
.5
vo M-O
App 1012
Incident
Pass of sttsent of PAIPIrTA ANN FLflPFS flTA7
ocJ HAVE MEYER SEEN EIThER iii 1CM MM WHO SHOT ThE POLICE OFFICER BEFORE OR THE BLACK CAR
________________
Thi TD_ 00 THINS CM MS.UTELY INTIFY THE 111CMN2WI lW ThI flT ILO 6ET PTrY CLOSE
WAS LATER BROUQIT TO ThE HOMICIDE DIVISION AT ThE POLICE STATION WHERE WAS ASKED TO
MAKE WRITTEN STATEPENT TO WHAT SAW AND ThIS IS WHAT AM DOING AT THIS TIME
have co.pisted ysars of schooi/ IMXand can
read and writs the Enitsh Langua$5 have read this
ItatUeSt and it is true end correct to the best of .y
kneviedge have 5iven this statsent to nfl R.wTLLIAj.ON
__________________________
of own free viii This
.tat..ent warn typed by flT YP WtI TAIflN
lOUD
Subscribed and sworn to bafer as this j4 _day of JULY 19..2
lOUD
NOTARY PUILIC IN AND FOR
THE STATE OF TEXAS
Pate of PS5 App 0013
MAN WAS DRIVING RED AND WHITE CAR AND SAW
DO NOT 1040W IF HE WAS ALIVE OR NOT DO NOT
kZ TO I0Ot POLl FFICER
230 AN flOO2
Incident
__________
STATEMEIIT
STATE OF TEXAS DATE 7-1-82
court or SARRI TIME 620 AM
-4
isfore no the undersigned authority personally appeared
PATRICIA AN LOPIS DIAZ who
after being duly sworn on his/her oath deposes and says
My nane is Patiricia Ann fibres Dias
and as years of age having been born on
______
_________________
My bos address CLAY
telephone nusber1O9
euployed at
telspbon nusber
___________
can
also be reached at Q21.okln Tiwr PFRTA TNA
My Driver License u.ber is NON and sy
Social Security nusber is 6lsl56ii
o4
On Wednesday Ju1 1982 at approxinately 610 AM attended lineup on the third
floor of the u.uton Police Depsrtaeat was asked to sit and look at six men who were
standing in front of ms and vu told that after the lineup vou.ld be taken outside and
vou.ld be asked if recognized any of the nan
After the lineup via taken outside of this racs and asked if recognized any of the
nen that were standing before me that was standing fourthT1 .dseen am IbIsufter ma sbo
PT J_ -- ............-......L.. When via in car drove dovt Walker St
and this was the first tine that saw this nan standing on the side of car
.J snØl se is his haM
After the 1ineu was taken back to the Homicide Office where gave Det Gatevood tbs
statasnt
have cospleted years schooiÆ1Sb and can
read and write the English Language have read this
stats.ent and it js true and correct to the best of sy
knowledge have given this statesent to Det Gatevood
_____________________
of sy own free mill This staCenent
was typed by Get Gatevood PP
SIGN
.ç.
.QlIrn
Subscribed and sworn to before ne this 11da
____________
SIGNED___________________________
6loAM IIOTALT PUSLIC Ill AND TO
TEE STATE OF TEXAS
Page of asses 000023
___
Incident
STArEHENT
STATE OT TEXAS
DATE July 14 19
COUNT Of HARRIS TIME
IOOan
Before us the undersigned authority personally appeared
OANNI JOE MARTINEZ
who
after being duly sworn on his/her oath deposes
and says
iv name is
DANNY JOE MARTENIZ
and am __Lysars of age having been born on ______
S1365 My home address is 24Ic ppyi
_____________________________
telephone number pN
employed at STEVE nosE lny Unit At on
Sroadwav telephone number tnrr
can
also be reached at Oleta Perez Grandother 2274613
My Driver License number is NONE
sad my
Social Security number is _______________________
Tonight saw police
officer that had been shot Ths was around 930 tonight on
July 13 1962 The person who shot
the police officer lives nest the Eastvood
Park
Earlier today went to EastwOOd Park go there from
time to time to play some
basketball There is house on the corner of
Rusk and Dumble and there is always
black car there have seen this black car
before with Wet Backs in it These
Wet Backs are the ones who own the car and stay at the house on the corner
of
Rusk and Dumble have seen then before and in fact
once saw then beat up man
real bad at store called Pats on Dumble and Walker
saw the black car at the house on
Husk aad Dumble today when played basketball
After played basket ball then
went home and ate Later was going to go to
girl friends house looked out
of the front door and looked at the A.AA which is
store and gas station The AM is located on Polk and Dumble always look
over there from my front door
because want to know what is going on
before leave
The reason look is because prople are always getting
rolled and hurt there Tonight
when looked over there saw the black
car at the gas pumps and saw
that the driver
was pumping gas The passenger in the car did not get
out The passenger was wearing
green shirt and had
black moustache His hair was parted down the middle
and cane
to his shoulders There was also two people
in the back seat then left my house
which Is located at 4926 Polk and started down
Polk towards Altic in order to get
to my girl friends house At this
time was jogging as always do When got
to Altic street turned left and was going up
the street when the black car came
up behind us It had headlight
out heard the coing up behind me when they
turned
the corner was jogging in the middle of the
street and when heard them went
to
here completed years of school/U II
and can
read and write the English Language have
read this
statement and it is true and correct
to the best of my
knowledge have given this statement to
DETECTIVE
C.S MACAN of my ova free
viii This statement O1
was typed by _DETECTIVE C.S MACAN __
PP
SICNEDfl...11
Lfll
Subscribed and sworn to before me
this jj...day of JULY
SI GNED 4.a._.P1ttL
NOTARY PUBLIC IN AND FOR
THE STATE Of TEXAS
Page_J of pages r4
STATE TEXAS
COUWTY HAUlS
STATEMENT
DATEjjy
TIME
.flflAM
-- ....
Sefere vs the undersigned authority personally appeared
flANWf Tfl MARTT7 vho
after being duly svorn on his/her oath depose and sayMy na.e is 1MNY 1fl 14AWrrNV7
and year of age having been born on
_______
5_13_65 My hove address is
__________________
telephone nuaber
evployed at
_________________
telepbone nuvbsr
Ny Driver License nu.b.r is
Social Security au.b.r is
and vy
July 14 1982 about 60OAN viewed show up and
Positively identified the man who was in the nber positthonin the show as the man saw in black with red vynal topRegal on July 13 1982
The first time saw him in the car was about 900PM to 930PM
July 13 1982 at the and store on Polk and D.ble
This man was setting in the passengers seat
have COvpleted
school/college and canread and vrite the English Language have read thisStetevent and it is true and correct to the best ofhseviedg
yen this statevent to
______________
vy ova free viii This statevent
ICR ID
D.ri__u.._4.t$ebscrlbed
to bef this
SlCNID
IN AND TogNO Pullpsg_J TIE STATE TEXAS
cI.eoeti
also be reached at
_____________
can
App 0016 000027
STATEMENT
STATE OF TEXAS
Before me the undersigned authority Personally appearedJohn ReyesMatatnoros
ayname is John Reyes Matamoros
and am 19 years of age having been born5118/63 My home address is
üiiknown Walker
telephone numberam employed at not emOloved
telephon number
____________ canalso be reached at
My Driver License number is
_____________________ andiySocial Security number is
am John Reyes Matamoros and have just moved in with my wifes motheron Walker Street but am not Sure of the numbers just moved in there
last Friday was born here in HOuston and have soia1 SŁurity card
but do not have it with me
Tonight sometime before 1030PM my wife myse1fM siSter-in-law and mysister_jn..laws boyfriend were outside We ran out of beer and my sister_in_lawand my wife were going to the Store to get some more wife had our baby withicr My sister_in_1awsbogfjfl and myself went inside the house as soonas they left walking toward the store As soon as we cot inside the house my
wffe came running inside and she had the baby with her and she said there was
alot of shooting going on outside went outside the door and saw mysister_in_law in the ditch and saw red and white car going by and thecar was going toward where the officer got shot also saw man with gun
and he was running away from whej.e the officer qot shot The man had gun
and he was still
shooting crajj he was shOotjng everywhere Thered and white Car just start going real slow and it headed off into ditchand then hit tree Then the horn In the car started loing off sawlady take kId-ut of the car krew the man In the car had been shot
ran over to my sister_in_law in the ditch to see if she was okay She grabbed
me and told her to let me go because police officer had been shot could
see the officer laying on the ground right beside his car The police officer
was laying across the street from where was and about two and half hoLses
down from where the red and white car was seen big hole in the officds
head and he was bleeding got on his CB radio and started saying breaker
19 get me police officer police Officer has been shot Then
my sister.th_1
carhΠover and she saw that the Officer had been shot and She Started
screaming
Mother Houston Officer came up and he must have thouqht was involved because
he asked inc what was doing and thid him was trying to helpthe officer and
that he had been shot told him he should get sonic help fast cause it didnt oclike he was breathing too good Then the Other officer got on the CS and startedgetting help
The mawpn aw q_with the gun was mexican american about 20 or 21 yearsold ic had sou1 er ength hair that was not as dark as mine and it looked morelike hair that white person would have He was wearing button Shirt andbran pants He may have had on hat but am not sure All saw was fire coringhave completed _J2.._ years of school/toll.1 and canread and write the English Language have read thisstatement and it is true and correct to the best of
myknowledge have given this statement to Det C.MHoffmaster
of
my own free will This statementwas typed by Det7.M Hoffmaster
StGNED
Subscribed and sworn to before me this of July 1932
SI ON
IN AND FOR
THE STATE OF TEXASPage
pages
App .17Form CIB-0004
000028
DATE
1982COUNT OF HARRIS
TIME 12 10pM
Pag of statement of John Rovoc
from the gun and he must have had gun with 16 shots because know he shot
ntre than times did not recognize the guy as anyone know think
might be able to recognize him if saw him again by his hair and how tall
he is just Saw the side of his face as he ran by
My wifes name is Herlinda but do not know my sisterin-laws name lfl Englishand just met her boyfriend so dont know his name either We had been
drinking but know what happened tonight If it had not been for the man in
the red and white Car dont think my wife and baby would be here now becausethink they would have been shot
This is all that saw that happened tonight This statement was read to me
by Peggy Howell and it is true and correct
\-
Xhav completed years of school/collage and cam
rssd and vriee the English Language hav read thia
statement and it is tru and correct to ths best of my
knowledge have given this statment to Dot C.M Hofaster
__________________________
of my ova free viii This
aestament via typed by Oct CM Hoffmaster
IGNZh
Subscribed and sworn to before me this
_______day of Julr
GE
U3EtC IN AND FOPTX STAT OF TEXAS
PIg of pages App O18
OOQO9
T.br CII0004
Incident q42614582
STAT TEXAS DATE July 14 j82
COURT 07 HAulS TIM 1045 a.m
undersigned authority personally appearedJacinto Banda Lopez vhs
after being duly svorp on hisjher oath deposes and saysMy name Jac2.nto Banca Lopez
and 26 years of age having been born en
______
Aoril 16 My hose address is 5517 Broc Houston
telephone nuaber 21 3951
s.ployed at Brown and Root Marine Diyigicn nflBayou Road t.lepbene nuaber 678 1356 can
also reached my Brother Guaajupe Maitiji Lopez4801 Mckinney apt 928 2157
fly Driver License nuaber is 09373517 and sySocial Security nusb.v is fl9 80 4572
On Tuesday July 13 1982 at approximately 900 p.m was at
my friend Enriques house Enriqu live at 4907 Rush Also there at
thi time were Roberto Onofre Jose Manuel whos last name dont know
Jose Luis Tories Guero and P.icardo
Sometime after 900 p.m Ricardo asked to borrow my car so that he
could go run an errand told him he could if he did not delay bringina
the car back then gave the car key to R.icardo Ricardo and Guero
then left My car is 1977 Buick Regal red/black in color
had seen Ricardô earjer this date at approximately 300 p.m At
this time took Ricardo toemos Record Shop located at 75thand Canal
Street Ricardo wanted to ehange sbme exican money for American money
.hen we got to Memos asked R.icardo if he was armed The reason asked
Ricardo if he was armed was because had seen Ricardo carrying .45 caliber
automatic trtol chrome plated on previous occasajons
Ricarde at this time took this same automatic pistol from out of his
from waist and laid th pistol up on the front seat then concealed
tha pistol littl better by bring the front seat middle arm rest down
coverirW the pistol R.icardo then went inside Memos and conducted his
business Once he came back to the car drove him to an apartment on
Avenue nearby Pith
and jth Street
Jt3L
When Ricardo was leaving Enrigues house with my car saw that there
was an impression of what appeared to be him automatic pistol protrudinç
have cotDeted
.ye.rs of schqpl/collgg.e and can
readan4.4r cc Ejlistpnguagw\I hpG rad this
st j4 is tm and coy cc he be4t of
hi dge I/have iv chi ate. to _j_
wa typed
free YiiiUijatjient
SIGRIDA.JI
Subscribed and sworn before us this
.Ld..\o/ L11 182
SIGHED
lIOtAJ tVIL1N ARD FOR1100 a.m Ti STAT TEXAS
Page
_____pages App 0019
000034
42614582
Peg stetesent of JACINTO BANDA LOPEZ
out from the front of his shirt
remained at Enriques house for approximately 45 minutes waiting
for Ricardo to come back with my car Enriqus had wanted me to go with
him to visit his landlord Pat We decided not to wait on my car any
longer so we walked over to Pats house Pat lives about minutes away
walking distance Pat lives in the 4800 block of Walker but do not
no the correct numbers
AsMe were nearing Pats house heard what appeared to be three
gunshots Seconds later what appeared to be six more gunshots All
of the gunshots appeared to be coming from the east side of Dumble Street
Shortly after the gunshots we arrived at Pats house While we were
at Pats House we saw several police cars and an ambulance go by Pat
asked if we knew what wag going on triad telling Pat that We had heard
some gunshots just east of Dumble Street Pat asked if it was near his
store on Dumble and told him that it was not the the shots were coming
from little farther eaet After we got thEough talking with Pat we
went on back home
As we near Enriquea house saw that there vera police cars around
the area tried going to Enriques house but some officers told ire to
get back then heard from some people around there that the persons
involved in the shooting were in black car At that time told Enrique
that was going to my brohers house near Harrisburg Street and have
him help me look for my car
Once got to my brothers house had my sister in law take inc to
look for my car We drove around the inmediate vicinity but were not
allowed to go into am area that the police officers were at We then went
back my brother house
Approximately minutes after returning to my brothers house again
heard gunshots dont know how many shots there were but there were
SIC DyJ s.ti Lipea
Subscibsd and sworn to before cc this July
--k
SIGHED ._ 7N 4--
leoltAIl PU114c IH AND FOR1120 a.m TE STATE OP TEXAS
Pigs of
_______pages
Vera C130004
pp 0020
0flfl035
Incident 426l4582
Pals of ststsae of JACINTO BANDA LOPEZ
Sontime later another brother who live 4801 Mckinney apt
called on the telephone and advised that it was my car and that Guero
and Ricardo had been involved in the officers shooting
then went to my house and was there until Enrique came looking
for me Enrique told me that needed to go to the Homicide Division
and talk with Detective Castillo
After Enriqu had given me this information we both went to Enrique
house and asked police officer for Detectivq Castillo
have known Ricardo for approximately two months do not know
his last name but can be decribd as being Mexican male 20 yrs59 slender 147 pounds light brown hair straight shoulder length
has brown colored mustache some beard
have known Gueroa approximately one month do not know his real
name have general idea where he was living never saw Guero
with pistol but he did tell me that he had automatic pistol
Also Guero had mentioned to me that he had at one time killed an oriental
male After telling this to me he simply laughed about it Also his
physical appearance was what considered strange
.tt
hay completed 10 years of school in Mexico and can not read or write
the English language This statement was read back to me in Spanish by
Detective J.M Castillo and it is true and Correct to the best of my
knowledge have given this statement to Detective J.M Castillo of ry
Wtlr This statement was typed by Detective J.M Castillo
lags and can
rsfl
t1 of
state.ent vs typed by
SIGNEDe.p Lcpet..
Subscribed and avers to before as this dpf July 1982
SIGN
___________________________
1140 a.m
1N AND FOR
tHE STKTE TEXAS
Page of
_______pages Ap c1
For CB0004 000036
x_I Ar-
Incident
__________
STATIXEIT
STATE OF TEXAS DAT_71482
COUMTY OF HAUlS TIME 35
1sf ore us the undsrsigned authority psrsonaiiy app.ar.d
Axando Heredia vhs
after being duly sworn en his/her oath depoass and say
My is Armando Heredia
and 16 years of age having been born 33064
_________________
My ho. address ii 4938 Rusk
_____________________________
teisphons ousb.r 9236964
.aployed as unemployed
________________
telephone nuaber
____________
can
also be rsach.d at home
My Driver License nuaber is and up
Social S.curity nu.ber is none
Th day that Speak about is last night The day was tuesday night The
date was the 13th day of july The time was around 1000Pm or 1100 Pmw1r0o he fends
The time was around 930 Pm when we went to this house When we arrived at
this house on Walker we played volley ball outside We played for long
time we stopped playing around 1000Pm After we finished playing we
all sat at the steps and talked It wan me the lady named Irma Galvan her
sons and my brother that were sitting out ther talking We talked for about
30 Minutes After thai me my brother and Irma Galvan decided to look
for another son of Irma Galvan We were walking down on Walker It at this
time that dark car passed by us real fast Then the car kept going
The car made the corners Then we decided to wik on the grass because
we did not want to run over us We continued to walk and this same car
passed by us again WheX5saw that this car had passed us two tine we decided
to walk back home
We were walking on the street named Walker As we were walking we saw
that police car had stopped the car that hid passed us twice The Officer
had shined his light on the car so it could stopped The car stopped and
the police Officer parked his car his car behind this car The policeman
stepped out of the car The passenger of the car stepped out of the car
The policen told the passenger corn here It was then that the passenge
walked over to the police man The driver of the car stayed in the car
The polic..an told the passenger to put his hands on the car The man was
placing his hands on the roof of the car It was then that the driver of the
car got out of the ear real slow as to not let the Officer know that he was
have coapisted years of sehooibM3 and ca.ot
read and write the English Language have read this
stasesent aid it true and correct to the best of ny
knowledge have given this staee.ent to Mosqueda
____________________
of up own free viii This state.ent
was typed by Mosqueda
SIGIIEDIQ1
Sub.cribed and sworn so before us this ljda July
ED________
OTAZY PUILIC ZN AND TOE
THE STATE OF TExAS
Page of pages 000040
App 0æ22
Pat of stateseet Armando Heredia
getting off When the driver of the car got out he had pistol in his
hands He was holding it with his two hands The driver with the pistol
got up to the Officer and pointed the pistol at the Officer It was then tha
the policeman looked up and saw the man with the pistol The Officer tried
to get hii pistol The officer ducked down trying to avoid the pistol
that was being pointed at him It was then that the driver shot the policema
about three or four times around the neck Officer was shot
both th driver and the Passenger ran at diffix directions
The man that shot the Officer ran down Walker and then turned on Rusk
It was then thna and Irma Galvan her husband and sons ran inside the
house Before1sa that the man was running and shooting his pistol.This
was the reason that we ran inside
About ten minutes later we walked outside This was when we sawthis man that
we know by face was shot in his car The car car was on Walker street
We stapysd at the house About 25 minutes later the ambulance picked up
the man in the car and took him away
Later on the police cane and talked to us and brought us to the police
station
Th man that shot the police Officer know him as Wedo have known him
about month As soon as he got out of the car recognized him He was
also th man that drove th car and shot the Policeman
Today July 14 1982 was in showup room saw line of six mexican
men in this line picked out the number four man from left to right as
the man know as Wedo and also the man that shot the policeofficer He waa
also the driver of the car am positive that it was him
am from Mexico have been here in Houston for two years do not speak
nor write English Today Officer Mosqiieda took my statement in Spanish
Officer Mosqueda read my statement back to me in Spanish and it was the
way .1 gave it to him It is true and correct as saw it happen last night
have six years if school back in Mexico Ilived in the city Of Juarez Mcxi
have coapletsd years of schoel/Zttii sod csoot
reed and write the Ze$lish Laogu.ge have r.ad this
.tscesest med it is true and correct to th
knovisd$e have gives this statmest to
__________________________
of owe free viii This
stsze.eet was typed by Mosaueda
StGND/viein4 i.ivç4tc
Subscribed med swore to before me this 14 of July 1982
$ED 2..m.
TIE STATE OP TEXAS
FOR
Page of pages pp 0113
Tore CIl0004 000041
Incident No 4614582
TATEMENT
STATE OP TEXAS DATE_JtTLY_16 l9
COUNTY OP HARRIS TIME llO4pin
Before me the undersigned authority personally appearedAifredo Maldonado Jr
after being duly sworn on his/her oath deposes and says
My Aifredo Maldonado Jr
and li-ysags of age having been born on
______O7-28..3 home address 713 Ave
snhlYw HflhIcTrhN telephone number 94J-8096
employed at Tn1ap41 Tr.nl Supply2711 Miignat telepbone number 79c_gpp can
also be reached at
8502 Glenview-jnptners aacress- Ninfa Munoz
My Driver License number is 71il153 and mySocial Security number is pj 3jQ
On June 191982 was at Carters Country Gun store in Pasadenarexas
was there with my wife and my two kids My wife name is Loura This was
sometime around 600pm had gone to the store to buy little Charter
AR7
.22 rIfle for my little girl went tO the counter and was looking at
the rifle that was on th_e rack behind the counter While was at the
counter this LA/rn caine up to the counter This LA/rn asked me if could
speak Spanish told him yea and asked him Whats up.The LA/rn then asked
me in Spanish if would buy him gun told him no the first time He
then asked me again and he then started to explain to me why he needed
one This LA/rn then started to tell me that his family was having problems
with another family down in Mexico He did not tell where he was from in
Mexico This LA/rn told inc his name but only remember his first name
and that Is Lois He shook my hand
told him no againtold him that didnt know ifrmight go and shot
somebody or get into hassle He sworn to me that he was not going to
load it and that he was going to take it back to Mexico as soon as he
can He sworn that he would go straight to Mexico then started to walk
around the store and was thinking about it told my wife about the LA/rn
wanting me to buy him gun My wife told not to do it because it was not
worthy It
During th time thIsLA/m was asking me to buy him gun the LA/rn was
looking at the guns in the guns case He pointed at the gun he wanted
h. completed
.yeers of IiXfco11ege and can
read and write the English Langusge have read this
statement and it is true and correct to the best of my
knoviedje have given this statement to
_____________DET L.E.WEBBER of my own free viii This statement
was typed by L.IUVR
St GNED
Subscribed and sworn to before me this l6tPfday of JUL
GNEDa1
NOTARY PUBLIC IN AND FOR
THE STATE TEXAS
Page__1 of
_____
___pages
Form CI3-0004 000012
App 0024
Incident ..6l4582
Page of statement of MALDONADO ALFRDO JR
said to him the Browning and he said yea During the time was talking
to my wife about buying the gun for this LA/rn the LA/rn was walking around
also looked back at him and he came up and asked me if was going
to buy it or not thenasked him if he was going back to the border with
It and he said that he was The LA/rn then told me that he was going to give
me $550 to buy th gun with The gun cost about $485.oo The LA/rn told me
to keep what was left think there was about $30.00 left from buying
the gun now feel like JUDAS also bought him box of shells and the
gun came with case The LA/rn wanted an extra clip for the gun but
the store had no extra clips in stock
The gun that bought for this LA/rn was Browning 9mm When bought this
gun for this LA/rn gave him the receipt and everything The only thing
keep was the $30.00
told the salesman that was not buying the gun for myself but that
was buyinh for the LA/rn The saleman told me that after buying it from
him It my business what do with the gun The LA/rn was standing behind
me when this was going on had already given the salesman my drivers
license so that he could write up my purchase for the Charter AR7 rifle
was putting this rifle in layaway then told the salesman after had ma
up my mind about ouying the gun for the LA/rn to write up the Browning also
So bought the Browning 9mm in my name for the LA/rn with the money he
had given me After had bought the gun for the LA/rn we then walked outsi
and stood to the side then handle the gun to the LA/rn and he told me
not to worry about it because he was going to take the gun back home as soon
as possible After had given him the gun then got into my truck and
drove off The LA/rn stood at the front of the store and watched until
drove off and then he walked to the side of the store did not see him
get into vehtcle
do not know this guy and have never seen him before At ftrst thought
knew thi guy because he looked familar asked him if he had ever worked
for Brown and Root and he told me no use to for for Brown and Root
worked there for seven years and thought the LA/rn was one of the guys that
have completed year of /coiiege and can
read and write the English Language have read this
statement and is true and correct to th best of myknovedj ve given this tataent to
____________DEi WBOR of my own free viii This
stat..ent vas typed by nrr
tONED
_________________________
Subscribed and sworn to before me this 16t day of
_____________
1982
tONED a4.M1_.4Q
NOTARY PUBLIC IN AND FO
THE STATE OP TEXAS
Page of pages
App 025
7orm CII0004
000013
Incident 42614582
Pegs of stitesent of ALFREDO MALDOMADO JR
use to work with me
On tonight went to Carters Country to pay on my layaway While was
at the store so Pasadena Pblice Officers came into the store and asked
me for some identifeation gave them my drivers license The manager
of the store told the police that gun had bought had been traced back
to the store and the records shows that had bought the gun The manager
told the Pasedena Police Officer thaT the gun had bought was used
in the killing of Officer Harris The Pasedena Officer took me to the
Pasedena police department and some Houston Police officers later came
and picked me up at the Pasedena police sttion and brought me to the
Homicide Office where am now giving this statement
The LA/rn that bought the gun for was aprrox 2832 years old 5lOtall
140 pounds slim light complexion hairy eyebrows hair cut close clean and
neat short sleeve short that was gold or beige and pair of Levi type
slacks that was brown in color
After had come to the Homicide Office was shown si color photos
of LA/males by Detective Webber The man itthº position is the one
that picked out as the man that bought the gun for
think the salesman at the Carters Country gun store that sold me the
gun was name MIKE he is tall red head white male with freckles and
think he had beard
This is all have to say Im just sorry bought the gun saw the Story
on the TV about the Officer being shot and feel bad about it
have co.pleted years of 1flUXcoll.ge and can
read and vrit th English Language have read thu
statemese and it is tru and correct to he best of ayklst 44ve giv.n this sCateat to
____________UI
of
.y own free viii This
statement was typed by DEl L.E.WEBBER
ONED y24i
Subscribed and sworn to before me this 16 day of JULY 1982
GED
N0TAT PUSLIC
THE STAT TEXAS
Page of ___ pages App O2
Term CI3-0004 000044
IftCjd.t
STATE OP TEXAS
COUIITY 01 UARLIS
STATEMENT
DATE July 14
TIME 630A.M
19 82
lifer ne the undersigned authority personally appeared
Saeinte Vees who
after being duly sworn on his/her oath deposes and says
My aae is S.cnto Vega
and 16 years of age having been born on
______91165 My hone address is 44O Walker Street
Houston Texas telephone nunber 926.4460
.1
.ployed at Attend Jackson Jr Hi
_______________
telepbone .u.bsr
___________ can
also be reached at-
ha. ceupieted years of schoo1/cje and can
read and write cbs English Language have read this
cate.enc and it is true and correct to the best of ny
knowledge have given this statenent to Officer .1
Selvera of ny own free viii This statenent
was typed by Off leer Josa Selvera
SlG$EDqL.JA4 hh4
Subscrb.d and ever to before ne this
..4jjday of j92
SIGNED ..L jia44_
NOTARY PlLIC AND Tflt
TIE STATE OP TZ7.AS
My Driver license nu.ber is and
Social Security nunber is
________________________
ta.st night at about 1115 P.M saw police officer get ihot The man that
shot the police officer was Me.cano
was beoubtte the police station and nade written station After made
statnt was then taken to roe on the third floor where was line up
The line up consisted of men that ai looked sinilar
picked out the ntber nan in the line up Es was the man with the beard and
long hair The ntber nan that piaked out is the nan that have seen drive
the car that the police officer that got shot had stopped
have seen thu sane naber nan around the neighbor hood several tines before
Page______ of
_____pages App t27
For CIl-OOO4 000054
Incident
STATEMENT
STATE OF TEXAS DATE__1Y 14
COUITY OF AIRIS TIME 415AM
lefore cc the undrsigned authority psrsoaslly appearedJose Angel Keredia who
after being duly sworn on his/her oath deposes and saysMy Jose Angel Meredia
and 14 years of age having been born on
______101265 My ho.e address is
___________________4Jp
telephone nu.ber 923b9b4
enployed at
_______________ tslepbone ounber canals be reached .t
My Driver License nu.ber is
______________________
and sySocial Scnnrity nu.ber is
________________________
Me and this ether lady who dont know her nane vent to lookfor ny brother
We then saw this car that kept passing by real fast They keptsining the whesi and driving real fast
The lady then told ne that we should go to her house becausethe nen in the car night do us sonethingSo we vent to the ladys housi and set on the brick type railsto the step. Then saw that the black car that was passing by reelfast was stepped and then the polic.a stepped behind the black carThe pelicesan got out of his car and told the nan that was drivingto cone outside The nan that was driving the car cane out of the carand to where the policecan was at
The policenan was standing by the do.r to his car
So when the nan walked up to where the policenan was at thepolicecan put the nan against the car and was going to start tosearch hi.
dont know if the nan that the policenan was searching calledthe other nan in the carbut he cans out of the car and walked upbehind the policenan and hot hi. dont know where he hit thepolicenan because was littl far away but could see that he waspointing and shooting at the policenan
After he shot the policenan he took off running and shootingthe gu ap in the air didnt.ee where the other man ran toAfter saw this ran into the ladys house to call the
police but since she didnt have telephone ran across the yardand junped the fence
ran inside the house and told her to call the police because
soneonahad shot and killed the policenan and that they had also shot
the nan in the red car
After sy nether called the police ran back to the ladyshouse and stayed
This is all that saw and did didnt get to see the nansface that was shooting the policenan
-I do not read or write the English language gave this
stataent to tnvestigator Eernandez in Spanish and he read it
back to ne and it is true and correct as save it
have eocpleted years of school/co11a and can
read and write the English Languege have read this
statenent and it is true and correct to the best of np
knowledge have given this stste.ent to
_____________Inv Hernandas of own free will This state.snt
was typed by howell
sIGiiEJ9 4vqi cai-.
Subscribed and sworn to before cc thi 4day of July 82
SIC ED___________________________
ILI IN AND 101
TEE STATE TEXAS
of 1__pages 000055pp 0028
Incjd
STATEMENT
STATE OT TEXAS DATE JULY 14 1982
COUNTY HAUlS TIME 305A1
Before as the undersigned authority personally appearedOfficer G.A Clark 60565
whoafter being duly avorn on him/her oath deposes and saysMy name is G.A Clark
end am years of age having be. born on
______My hos address is
telephone number
am employed at ouston Police Departenut Southeat Diviaioqtelephone number canalso be r.ach.d at
My Driver License number is
_______________________
and ijSocial Security number is
Officer G.A Clark Badge 3098 Payroli 60565 am assigned to the South Patrol BureauS/K Divisiou 3PM-liPfl Riding emit 11D23
On 71382 at approximately 2145 hrs nyself and Officer J.C Worton riceived shootingcall to Dble at Altic Of ficer met ambulance 1118 while in route Officers andambu1ac cruised the area but found no shooting Officers and ambulance 1U8 were atapproataly 200 Lathem When we heard over the radio that an officer wag down at 4900Walker We then stopped the ambulance and advised then of the location this was atapproximately 2205 hr. We then proceeded to 4900 Walkar with ambulance 1118 Wearrived at 4900 Walker approximately 30 seconds later observed am unmarked blue andwhite on Edgeveod facing south at Wa.lkar then want to the drivers aide of the vehicleand observed an officer laying on the ground with his face and feet facing toward the roeof the vehicle His feet were partially under the vehicle and his upper body jutting outfrom the vehicle At this tine ambulance drivers brought the stretcher to the scene andhelped load him onto the stretcher and take him to the ambulance then went back tosec the scene The ambulance driver then told us to move our car which was stoppedon Waj.ksr just vast of Edgevood facing east moved the car to position just pastEdgeveod As was getting out of the patrol car observed an ambulance attendant drivethe unmarkad imit straight ahead into the intersection so the ambulance could exit thescans The drivers door of the unmarkad unit was open upon ny arrival and headlights wereon and spotlight was on and angled toward the ground Another vehicle vu stopped longwayacross Walker facing south The vehicle was not moved to ny knowledge then heard overthe radio that the suspects ran east towards the cemetary remained at the scene andOf fleer Worton ran toward the cemetary also observed upon arrival that the officersholster vms unsnapped and hi gun missing could not find his gum at the scene
continmed to secure the scene until homicide arrived and myself and Officer Worton tookthree vitne_sams to Homicide
have couple_ted
______
years of school/college and canread and write the.Eugljsh Language have read thi
statement and it is true and correct to the best of myknovl.dg. have given this statement to
_____________
______________________
of my own free viii This statementwas typed by Maureen Lincoln
tONED____________________________
Subscribed end sworn to before me this 14 ay JULY
SIGNED J14_J
NO iT UBLIC IN AND OR
STATE TEXASPage1 of
_____pages
App 0029 000057
lefoys the undersigned authority personally appearedOfficer J.C Wertom
whoaft.r being duly sworn en hia/her oath deposes and saysMy anne is J.C Woreom
cud
_______years of age having bee born on
ISp ho. address is
telephone nunberan enployed at Houston Police Denartment Southeast D1telep eu.b.r
canalso be reached at
My Driver License number is
and
.ySocial Security nu.b.r is
Officer Vorton Payroll 76105 riding lI.D23 received call to Dueble Altit
concerningshooting
at approuat.l 945PM The above address v.a not good and requestedbetter location from dispatcher Dispatcher gave us 4900 Curtain During the search forthe shooting location Officers were with Ambulance who also had same call Officerslearnod from ulance driver that shooting victim was at Cemetary figured out atthis tin that it must be located at dead end of Latham Street approximate 200 blockUpon arriaj at cametary enrance with HYD ambulance Officer found no shooting victimWe talked with ambulance driver and decided ti was hoax started to get into patrolcar to leave and heard the call go out that officer via shot on Walker ran back toambulance behind our patrol car and told them an officer had bean shot on Walker Theambulance followed our unit 11D23 to Walker
Upon arrival at Walker shooting scene heard dispatcher request location and told herWalkar Edgevood twice then bailed out of the car following the paramedic Theparamedic ran ahead then turned and ran back toward the ambulance female officer yelledat me to meve the police car reached for the drivers door but the door was lockedyelled at Clark to muve the patrol car and started for the scene approached the sceneand observed police officer laying on the pavement next to his patrol car The officershot was on the corner of Walker Edgevood It appeared to me he had been shot in thehead because he was in pool of blood His face vaa looking toward my direction aspassed going east on Walker The officer was laying directly outside the driver side withthe door open rnember the area to be ligbted up possibly from patrol car of shotofficer lit up At this time looked up and saw Officer Rodriguez up the Street on Walkeran towards Officer Rodriguez and we proceeded up Walker looking for suspects andRodriguez searched the area and then was mat by Officer Delahandro and continued to search
have coepletea
______ years of school/college and canread and write the English Language have read this
staee.enc and it is true and correct to th best ofknowledge have given this scate.emt to
_____________
_____________________
of up own tre will Th Jstate enwas typed by Maureen Lincoln
Subscribed and sworn to before ne this 1hJL.LY
RY PUSLIC IN AND FOR
THE STATE TEXAS
rage_______ of pages
Incident S________________
STATEMENT
STATE TEXAS DATE__ 19
COUNTY HAUlS TIME_______________
App 0030
OOOOZS
Incident o.__________________
STATEMENT
STATE TEXAS DATE JULY 14
COUNTY UAIZIS TIME 635
lefors the undersigned authority personally appeared
GEORGE LEE BROWN
t.55 d_ vEr.ahis/her oath deposes sad .sys
and at 19 years of age having been born on 4-21-63
My ho. address is 5004 MC KINNEY
______________________________ telephone suaber 921-1b1Z
e.ploy.d at UNtIIILUYtLF
________________ telephol nuaber
____________
can
also be reached at
My Driver License nuaber is
______________________
sad
Social Security au.b.r is
________________________
On July 14 1982 viewed police lineup This lineup consisted of
six persons All of the persons in the linup were similar In appearance
identified the man that was in the nisnber four4 position in the line
The person that Identified was the passenger in the car that had made
statenent about earlier
have cospleted
_____
years of school/colleg and cat
read and write the English Langnage have read this
statseent and it is true and correct to the best of
knowledge have given this state.est to Detective Frank
_____________________
of sy ova free viii This scatessut
vs typed by Detective Frank
.1
Subscribed and sworn to before this 14 day of jULY 82
SIGLIEDT
NOTAIT PUiLic IN AD ro
TEE STATE TEXAS
Page pages
App 0031 000069
Incident No 4261452
STATEMENT
STATE OF TEXAS DATE JULY 16 l9
COUNTY OF HARRIS TIME 1104pm
\jt Before me the undersigned authority personally appearedAifredo Ma.donado Jr
after being dul vorn on his her oath deposes and says
My name is Aifredo Maldonado Jr
and am lA.ysars of age having been born en
______O728j My home address is 713 Ave
OU1i4 MflhITflN te1ephne tiumber 94-8O95
am employed at ri
7fl1 Mgn1 telepboue number 799 can
also be reached at
________________________________________8502 Glenv1ew-mptnerg acoress- Ntnfa Munoz
My Driver License number 71621s3 and mySocial Security number is 455PI 3519
On June 191982 was at Carters Country Gun store in PasadenaTexas
was there with my wife and my two kids My wife name is Loura This was
sometime around 600pm had gone to the store to buy little Charter
AR7 .22 rIfle for my little girl went tO the counter and was looking at
the rifle that was on the rack behind the counter While was at the
counter this LA/rn came up to the counter This LA/rn asked meif could
speak Spanish told him yea and asked him Whats up.The LA/rn then asked
me in Spanish if would buy him gun told him no the first time He
then asked me again and he then started to explain to me why he needed
one This LA/rn then started to tell me that his family was having problems
with another family down In Mexico He did not tell where he was from in
Mexico This LA/rn told me his name but only remember his first name
and that is Luis He shook my hand
told him no againj.told him that didnt know if/iight go and shot
somebody or get Into hassle He sworn to me that he was not going to
load it and that he was going to take It back to Mexico as soon as he
can He sworn that he would go straight to Mexico then started to walk
around the store and was thinking about it told my wife about the LA/rn
wanting me to buy him gun My wife told not to do it because it was not
worthy It
During thetime thjsLA/m was asking me to buy him gun the LA/rn was
looking at the guns in the gons case He pointed at the gun he wanted
have completed years of IflI/cellee and can
read and write the English Language have read this
state..nt and it is true and correct to the best of my
knowledge have given this statement to
_____________DEl of my own free will This statement
was typed by nET
St GNED
Subscribed and sworn to before me this l6t day of JULY 1982
IGNED cfae__I ..LL.
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
Page__1 of
_pagss
000077
App .1032Form CI10004
Incident
....42614582
Page of statement of MALDONADO ALFRED0 JR
said to him the Browning and he said yea During the time was talking
to my wife about buying the gun for this LA/rn the LA/rn was walking around
also looked back at him and he came up and asked me If was going
to buy It or not thenasked him if he was going back to the border with
It and he said that he was The LA/rn then told me that he was going to give
me $550 to buy the gun with The gun cost about $485.oo The LA/rn told me
to keep what was left think there was about $30.00 left from buying
the gun now feel like UJUDASU also bought him box of shells and the
gun came with case The LA/a wanted an extra clip for the gun but
the store had no extra clips In stock
The gun that bought for this LA/rn was Browning 9mm When bought this
gun for this LA/a gave him the receipt and everything The only thing
keep was the $30.00
told the salesman that was not buying the gun for myself but that
was buyinh for the LA/rn The saleman told me that after buying it from
him it my business what do with the gun The LA/rn was standing behind
me when this was going on had already given the salesman my drivers
license so that he could write up my purchase for the Charter AR7 rifle
was putting this rifle in layaway theii told the salesman after had ma
up my mind about buying the gun for the LA/rn to write up the Browning also
So bought the Browning 9mm In my name for the LA/m Wtth the money he
had given me After had bought the gun for the LA/rn we then walked outsi
and stood to the side then handle the gun to the LA/rn and he told me
not to worry about it because he was going to take the gun back home as soon
as possible After had given him the gun then got into my truck and
drove off The LA/rn stood at the front of the stere and watched until
drove off and then he walked to the sdde of the store did not see him
get into vehtcle
do not know this guy and have never seen him before At farst thought
knew the guy because he looked farnilar asked him if he had ever worked
for Brown and Root and he told me no use to for for Brown and Root
worked there for seven years and thought the LA/rn was one of the guys that
have compi.eed years of and can
read and vrite the English Language have read this
stae..ett and it is true and correct to the best of my
knovsd$ jy given this .tat..nt to
____________DEi Lt WEBnti of my own free viii This
statement was typed by nc WRRFR
ZONED
__________________________
Subscribed and sworn to befor this 16t day of
_____________
19_
ZONED LLM1..4Q Q-
NOTAEY PUBLIC IN AND FOR
THE STAT OF TEXAS
Page of pages
App ot33
Term C130004
000078
426 14582
Incidsat
._______
Pag of statement of AIFREDO MALDONADO JR
use to work with me
On tonight went to Carters Country to pay on my layaway While was
at the store so Pasadena Pblice Officers camu into the Store and asked
me for some identlfcatlon gave them my drivers license The manager
of the store told th police that gun had bought had been traced back
to the store and the records shows that had bought the gun The manager
told the Pasedena Police Officer thaT the gun had bought was used
In the killing of Officer Harris The Pasedena Officer took me to the
Paseddna police department and some Houston Police officers later came
and picked me up at the Pasedena police stion and brought me to the
Homicide Office where am now giving this statement
The LA/rn that bought the gun for was aprrox 2832 years old 5lOtall
140 pounds slim light complexion hairy eyebrows hair cut close clean and
neat short sleeve short that was gold or beige and pair of Levi type
slacks that was brown in color
After had come to the Homicide Office was shown sii color photos
of LA/males by Detective Webber The man -iiutithe position is the one
that picked out as the man that bought the gun for
think the salesman at the Carters Country gun store that sold me the
gun was name MIKE he is tall red head white male with freckles and
think he had beard
This Is all have to say Im just Sorry bought the gun saw the story
on the TV about the Officer being shot and feel bad about It
have completed
_______
years of UUXcoil.gs and can
read and writs the English Language have read this
statement and it is tru and correct to the best of myk9 44ev givee this statm.nt to ____________UI 1%
of my ova free viii This
statement vii typed by DEl L.E.WEBBER
SI GNED 72.4a
Subscribed and svora to before me this 16 day of JULY 1982
ICNED is ü1 ..E
NOTARY PUILIC IN AND FOR
TUE STATE OP TEXAS
Page of
_______pages App 0034
Form CI3-0004 OOOO9
meld a._________
STATEMENT
STATE 01 TEXAS DATE 3t7L 14 1982
COUNTT OP IAREIS TIME 230A14
lifer the undersigned authority personally appearediiOPM who
after being duly sworn on his/her oath deposes and says
My ea.e La TlPAI
and aa 25 years of age having been bore on
_______
________________
My hose addres is 8915
_____________________________
telephone nuaber b4Oi.J7
esployed at DET1 AL
________________
telepbone nusber
____________ c.sn
also be reached at
________________________________________
N7 Driver License nusber Is
______________________
and Ry
Social Security nusber is
________________________
YI rIOPAI 3135 PR 60599 Q3.UfflX SSIQ TOTPM PAT UI TR4 10PM TO 6OQNI JUIX 13 1982 QiS SSIQ
TO 2A20 wrz PA LD TIEEI BA 2293 PR 61595
AT APPWX 10 1t GYI iD Z.DG BbIO PP
TO CTI S1IG IP1 C1YIRS DJI BY DIM
TO TO 4900 TO TRPZ TIS WE PJI TODI TT PISH tICT MDY WEVI DI WE LD AI UI
.--.-
AT OOPM FI VIA RADIO
LIVUG AT 4911 SK AND tE AT XL IIQ4TI 2A20 1I Wl DIA WE UI 7TE TO TT
zaiaq ivx urr
AT PODIT NJ AV AND PiS JI LLS 4907
lT Sl FRPi JW LIVE TI
SNE AWI T818 WiD ALDY ND
WE T4 MG writ SQ4 GIVI PCSSII TO
AT 4911 1S IE tII GIVEI TI
PcSsIa TO aacY ALSO UP ND
WE WElT TO 4907 29IL PtZ STNUG UI FR2ITAF DlJIDt iT PS LER iIT nwc om LIVE IE
.S DE lLi DI TUS UIFO lATIN AMRI4 ZQIZ
WED LIV AT 4907 ALSO TED EIS
LAN AJI TO AND
ND 1O P3ID DI PS DIG IS WI7IFt W.ISI PA TO F1 VAN
TO TO xcm NO yR WElT TO SAY TT 1S
PIz AIQG tTE wrs PS TO .JID TO TRA TO
have coapleted 13 years of school/college and can
read and write the English Language have read this
stateseet and it is true and correct to the best of
knowledge have given this statesent to J.C
_____________________
of sy ova fri will This statesent
was typed by
tGWEDVk ILJ2C
Subscribed and sworn to before se this day .tiix 1982
SIGNED____________________________
NOTARY U5LIC IN AND FOR
THE STATE TEXAS
las
______
of
_____pages
hi APP 0035 000092
STATE 07 TEXAS
C0UTT 07 HAulS
STATEMENT
Inctdent
DATE
.T1TV 14 lgg2 19_
TIM .A
Before the undersigned authority personally appeared
.rru ir vbo
after being duly svora on his/her oath deposes and says
My nue is .rr AyV
and years of age having been born on
______
WI aQc hose address is TY1I
_______________________________
telephone nusber
__________
sa esploysd at w.rv
________________
telephone number Ap ccp C5
also be reached at
________________________________________
My
Social Security nusber is
and sy
AM aix 10 PM 3L1 SWfl 10PM P44 3ULY 13
1952 fll0 917flAST 3STIQ1 10 LAR IUJR L7I AT
APPC 955 PM ALQG WI DflO fl .tL
.Y TL AT 10 PM EV4 IL
IL DIO flT AN AT TD
__
cLL SGP SGT LL.PEJ EVE sr10 flR
AND ar 10 urIND ND lL ID
J.E ZflW AND PMI 10 CTJR ASSIQl 6036 AND IC
AT 4900 twa Iv AT AE 10ria EMLY ORIVDG
AS 141 US 20S LIf co z-
nas Lk2LQ bOS ORfl VAL TI AT SE AND BPST 1L
t1 AVAL AT SE AEJ 10 10 15 irrAL AT fl SE MT
tPIITS AND AN AT APP 1030 PM
LB4IT 11D21 AN EVDX3 srTI11T AU flAT flEBD AT QR LOT
__
LZ4 AND IS3 OR 5400
HAdjiG VL OD WIS AND tNIT 11D21 AND VI PA AND SE
PtD NDflDG AT TE lTP lAd ThI AIR AND ALVIS
0TIa4 flT AT 4911 AT 10 Vi PA AND
rr10 LOTIa1
iVAL AT APP 1110 PM __ WT1f IO 1IVS
AND_A tECJII 10 S10 flEE AT 4907
491 PS iII ST 4907 som rivAJEA UiAT BIG 1OE AND flT ND
tIVE lEOTIVE NQ4_AND E21WD Sr PVlfl OC TIVESPIAPE AF PCIAP Fa.ND 1ITJE AND
1Q4A FlT IT WIS AT TIJE APP 1130 PM .T
AT 4911 RPZ4 7ST
4911 REX AND 1E RtIWG STflL FI FTAP 10 giVE RI AZ71TIC_VL RPP SSICN
AS ._ S7ST ia SAM rT DISO.G WN
1IIL YI DISODG ._
10 ia BY NDT DISO PQ4 FOR FR MITTG
have coupleted ii years of school/college and can
read and vrite the English Language have read this
scat..ent and it is true and correct to the best of
knoviedge have given this statenent to
_____________________
of
.y eve free viii This statecent
vas typed by
Subscribed and svorn to before
Page of pages
App 0036 OoOO9
Pate of stateient of
Iacjde
1S YP PiBIZ LV TX
10 ND DE TD
DT ELI2 10 15 Di DJ3nrn_SL LDfl WP 10 FI ND liTD ziD1 DT
--
iuS 10 wd NQ4 Di LZAayr nas is
Wi LV Di
have ce.piet.d 1$ year of scbooi/coii.e aid coo
read aid vrite the Zuiish Laouage have road this
stae.u.st aid it is true aid correct to the best of oy
kooviedge have gives this statseso to 3.t
__________________________
of sy ova free viii This
stace.est vas yped by
$IC1ZD\
Subscribed aid svore to before this
______
of
$ICBZD___________________________
LIC III AND
STATE TEXAS
Elge of poses
1982
App 0037 000100
LOCt4 No
STATEMENT
STAT OF TEX.tS DATE 19
COUNTY OF HARRIS TIME__l24OAm
Sefore ie the undersigned authortty personally appeared
George Lee Brown vho
after b.tng duly sworn on his/her oath deposes and says
My sass is George Lee Brown
and 19 years of age having bean born on 421-
_________________
My hose address 5004 McKinney
telephone nusber 92116I2
as esployed unenoloyed
telephone nuaber
_____________
can
also be reached at home or at 5n iji
My Driver Lie.nse nusber is and 57Social Security nu.ber is 449134459
The day that Ispeak about is on Tueday nioht around 945Pm to lOOornThe data was the 13th day of July remember that was at my home watchjnotv the all star game It was around 930 Pm when heard an ambulance
coning down my Street looked out the front door and saw the ambulancecoming down Mckinney but by that time the ambulance had turned of the
siren and only had the emergency lights on The ambulance past my houseand walked out my house to see where the ambulance had stonned
When cot out of the house walked down Mckinney When cot to the cornerof Mckinney and Delrnar turned left on Delmar and started walkina towardsWalker Street which was only about half block When cot to the cornerof Deler and Tqalker stopoed so could let this Black over bu.roanjv
cutlass supreme could pass so could cross the street Thouah the csr did
not pass me but took richt on er Street remember that this car had it
music real loud and it was occup.ea by four rexicans rememeber this because
as the car turned the corner it almost went into someones yard
continued walking after the car pass and did not nay to much 3ttenti the
cutlass after it had past me took right on t4alker street end startedtowards Altio Street remember as was walcina down talker in between
Delnar and Altic street heard this car tvrn the corner-behind and was
heading towards me could hear that the cz.r had sDun its tires and had
Stepped on the gas and was ging about 45Z.PH towards me tned aroundand this same Cutlass that had seen before was trying to rux over my d.-a
dog got out of the way Then the Cutlass cane at me about 40 to 45 rh
juz.ped of the street unto ditch trying to dodge the car AS the car -ast
me was able to see the passenger and the driver real cood once acain ad
they were the sameones that had past me before also saw that there
.zastwo other perons in the back seat The Cuttass got to the corner waLker
and Altic street Then it took left on Altic street
As soon as the the car had taken the left turn on Altic the officer in ..e
and white police shined his liaht on me flacaed the nicdr over and trid
him that black and burqandy Cutlass was tryina to ne over and it had
circled twice around already Th Officer and his doen rove of The of firer
took left on Altic street This was the same thee the Cutlass had
continued to walk to the corner of alker and flt.m looked both ways
down Altic street ama saw neither the ambulance nr cutlass nor the .ce
car and thourht that it was nothing
have cespieted years of school/college and can
read and write the English Language have read this
state.enc and it is true and correct to the best of
knowledge have given this tace.ent to Mosaueda
_____________________
of sy own free will This statesent
was typed by Plosa.ieda
StGNED\
Subscribed and sworn to before this 14
dayçf
SIGNED at
NOT Puitic IN AND F0
TE STATE OF IEXAS
Page_1 of
__pages
flflfljr
App 0038 ik5Tori C130004
Page statement of George Lee Bro
So turned back and was walking down on Walker towards my house out
midway the block in between the streets of Altjc and Delmar-I heard
seven to eight gun shots pretty close to the area The shots soundedj
had come towards Dumble street then started joqing down walker sassDelmar street As was jogging down Walker saw this mexican man in
whit TShirt and blue jeans running This mexican man was turning around
as he ran The mexican man was running down on Lenox Street towards Mckinney
When got to the corner of Walker and Lenox could see the same solice car
and the same cutlass parked in the middle of the street in the corner of edgewood and Walker This was about half block where was standing saw thatthe mexican man that was running had daappeared somewhere and did know
where he had gone
At this point wFien saw the police car ran towards the police car thinkingthat the police officer had caught the men that had tried to run me overWhen got near the police car saw that th police car was right behind the
same Cutlass that had tried to run me over The police car had its soot licht
shinng on the Cutlass while it was parked behind it It was then that saw
that the police Officer was lying on the ground near the drivers side Thedrivers door of the police car was wide open The Officer was lying on his
right3ide on the street
As got nearer made sure that there was no one near that might been involin the shooting saw no one in the cutlass or no one near then saw that
there was mexican man leaning into the police car and using the police
radio At that time asked this man w1ahe was doing and this was when
he told me that he was an of duty sa.rat then checked the officers
pulse in his neck could see that thb Officer had been shot in the left sjd
of the head and was bledig The officer did have pulse but did not resoor.c
to anything. Ik.ept my je on the-police Officer until the anbulace arrived
The ambulance took abouf three minutes to get there and the officer was still
alive when Ambulance arrived
.The paramedics placdd the officer on the stretch
and started giving him aid It was about that time that lot of Officers
arrived
When the Officers arrived tolda group of Officers where possibly the suse
could be hiding So me and about three Officers on foot and police cars
began locking around So we ran on Walker towards Altic street near the
cemetery When we got to Altic we took left Two Officers and oolice dog
entered the cemetery .and came out after tey had searched the cemetery The
cemetery was heavily wooded Me and the Otficers had gathered at the correr
of Rusk and ic and were talking about the differet ways to get in out
of the cemetery There was two other oeople ththis whole time
As we were talking ther it was then that we saw this mexican guy running
towards the back of Lendx Bar Que Officers and my self gave chase and were
able to arrest this mexican man was able to see this man and It was
neither the driver nor the passenger that had seen in the Ctlass After the
man was arrested we all heard about 12 to 15 shots fired near by This was
about half block away Police Officers did not let us see who had been sho
ing this time -was able to see one of the men that har5 cotten arrested and
he was the man that was sitting in the front rassenger seat.in the cutlass and
the same ones that had tried to run me and my dog over Later we were asked
to corns to the police station
have coupleted 11 years of school/college and can
read and write the nglish Language have read this
cats.ent and it La true and correct to the best of my
knowledge have given this statment Moscueda
___________________________
of my own free will This
statement was typed by
SIGNED \O
Subscribed and seers to before me this
_______
July 19
SIGNED ---AiAC
NOTARY PUSLIC IN AND FOR
TM STATE OP TEXAS
Page of
_______page.
Form C130004 000133
Page of statement of Georqe Lee Brown
The man that saw driving the cutlass was mexican man He vpeared to
about 20 years of age slim built about lSOlbs short wavy hair which he
comb back in neat fashion Me had beard and mustache wearing whiteTShirt and blue jeans This was the same guy that had seen runniri
down on Lenex after had seen the Police unit that had stoced the cutlass
to say that saw this man carrying something in his right arm- closetobody did not know what ha was carrying
Th man that saw as th passenger was also amexican man about 18 yrs
of age green Tahirt had long strinqy hair parted in the middle This
was the same one that the Officers had arrested after the second set of
shots
was not able to see the two mexican men that were in the back seat
This is all know and saw
Form C130004
000131
have copleted 11 year of school/eoHwge and can
read and write the English Language have read this
statement and it is true and correct to the eg.t of my
knowledge have given this statmeut Mosaueda
__________________________
of my own free will This
statement was typed by
SIGNED\.\
Subscribed and sworn to bifore me this 14 da July
SIGNED It
NOTARY PUSLIC IN FR
THE STATE OF TEXAS
Page of pages
pp 004
IncIdent
._________________
STATEMENT
STATE OF TEXAS DATE 71582
COUNT 07 IARRIS TIME__1210_AM
Safer ufldsrgj54 authorIty personally app.arsdJACINTO VITA.S VEA
vhoafter being duly avorn on hia/h.r oath dip... and saysMy nani is JACINTO VITALES VEGA
and years of age having been born on 91165
My ho. address Ia 4940 WkLE
telephone na.ber 9bJ4bO
a.e.ployed at 1UR HIH 9th GRADE
telephone
___________
assalso be reached at
My Driver License nu.bar
--
and sySocial Security nu.b.r is
TONIfET ABOUT 1115 P9 fAR ACROSS THE STREET FROM WHERE LIVE AND E7HOUSES DOWN AND WAS TALXIW TO LADY TEAT LIVES DOWN THE STREET WASON HER PORCH TALKING TO HER AND NOTICED TWO LATIN AMERICAZ4 GIRLS WALXfljDOWN WALKER STREET ON THE SIDEw ONE THE GIRLS WAS HOLDING BABY ANDTHE OTHER GIRL WAS WALKING BEHIND HER ONE WAS NAMES ELVERA AND THE OTHER GIWAS HER SISTER THEY LIVE ON TUE SAME STREET AS DO NEXT TO MY ROUSETN UOTICED CAR COME DOWN IRE STREET AND II HAD TWO MEXICAN MALES INIT THE CAR AS RED WITH BLACK VINL TOP AND THINK IT WAS MONTE CARLOOR 2UIC THINK IT 1976 or 1977 MODEL CAR BUT AM NOT FOR EURE
WHEN THE CAR GOT NEAR THE TWO MEXICAN GIRLS WHO WERE WALKING DOWN TUE 5IDEATHE CM MADE HALF U-TURN WHERE SIDE STREET COMES INTO WALKE IT IS LIKEAT TEAT INTERSEcTION AND THE CAP WAS PARKED ACROSS WALKER ST BLOCKLJGTHE STREET THIS IS ALL TAXING PLACE IN THE 4900 BLOCK OF WALKER
WHEN THE CAR MADE HALF U-TUpN THE TWO MEXICAN
.DUDES GOT OUT OF THE CARAND WALKED OVER TO THE TWO GIRLS TO EITHER TALE TO THEM OR MAKE THEM GO WITHTHEM SOMEWHERE ABOUT THI$ TME POLICE CAR CAME DRIVING UP THE SIDE STP.EEAND PARKED BEHIND THE RED AID BLACK CARTEE POLICE OFFICER GOT OUT OF HIS POLICE CAR BUT STAYED BEHIND THE DOORTEE CAR AND HE TOLD TEE MEXICAN DUDE5 SOMETHING
.WERN THE POLICE OFFICERSAID SOMETHING TO THE_14 ONE Op TEE MEXICAN DUDES CAME OVER TO THE POLICE CARAND PUT HIS HANDS ON THE HOOD OF THE POLICE CRE AS IF HE WAS UNDER ARRESTHE OTEE MEXICAN DUDE CAME 1IAIIN UP TO HI ALSO BEHIND TEE FIRST DUDEAND HE WAS ACTIW REAL LIKE NOTHING WAS GOING ON THIS SECOND DUDEWALKED UP BEHIND THE FIRST MEXICAN DUDE WHO HAD HIS HANDS ON THE HOOD OF THEPOLICE CAR AND THE FIRST DUDE TURNED AROUND AND LOOKED AT HIM AND ALL OFSUDDEN THIS SECOND DUDE PtJLLD PISTOL OUT FROM SOMEWHERE AND SHOT AT THEPGLICE OFFICER ABOUT POUR TIMES WAS NOT ABLE TO TELL WHERE HE PULLEDTEE PISTOL FROM BUT IT WAS SOjwRERE IN THE BACK WHERE HE HAD IT BIDDEN BEFOPHE FULLED IT OUT
WEAN THE SECOND MEXICAN DUDE WRLED UP TO TEE OFFICER RE WAS ONLY ABOUTTWO FEET FROM TB OFFICER tBEN HE PULLED HIS PISTOL AND SHOT AT THE OFFICERAND COULD TELL THAT HE HIT THE OFFICER FROM THE WAY THE OFFICER ACTED THEOFFICER DID NOT HAVE CHANCE TO DO ANYTHING OR SHOT BACK BECAUSE IT WAS SOQUICE AND SUDDEN
AFTER THIS SECOND DUDE SHOT THE OFFICER HE TOOK OFF RUNNING DOWN WLKRAllAY FROM TOWN
have conpieted years of schoel and can
read and vrlte the English Language ha. read this
stateseet and It is true and correct to the best of
knovl.dge have given this state.ent to DEl K.R.WILLIAMSON
_____________________
of sy ova free viii This state.en
vas typed by nwr vwyy.y.raMcn
SIGN1DrAAj
Subscribed and svorn to before vi this 1day JULYIPfj9I1LT PUILIC IN AND FOR
THE STATE OF TEXAS
Page of page App 0041
12 2AM
onnici
tocideot
Pj of Itat.ent of JAC INTO VITALS VEGA
HILE THIS SHOOTING WAS GOING ON MAN HAD DRIVEN DOWN WALXR ST.TOWAP.D THE..NTERSECTION WHERE THE SHOOTING WAS GOING ON THIs MAN STOPpED BEFORE THEINTERSECTION BECAUSE THINK HE SAW THE MAN SHOOT THE POLICE OFFICER WHENTHIS MAN SAW THIS HE STARTED BACKING UP HIS CAR WHICH WAS RED FORD TORINO
WHEN THE TORINO GOT ABOUT IN FRONT OF THE HOUSE WHERE WAS STANDING ON THEPORCH THE MEXIc.1 DUDE WHO HAD FIRST SHOT THE POLICE OFFICER THEN RAN UP TO
HIM AND SHOT HIM FOR NO REASON KNOW THE MAN WAIT BECAUSE OP THE WAY HEWAS ACTING AND BECAUSE HE THEN RAN HIS TORINO OFF INTO THE DITCH THE DUDEWHO WAS DOING THE SHOOTING THEN RAN OFF DOWN WALKER TO THE NEXT INTERSECTION
AND TURNED LE WHICH WOULD BE NORTH ON THAT STREETAFTER THE SHOOTING STARTED DID NOT SEE WHAT TR FIRST MEXICAN DUDE DIDHE WAS THE ONE WHO HAD HIS HANDS ON THE HOOD OP THE POLICE CAR AND HE WOULDRAVE BEE1 TIlE DRIVER OF THE THE OTHER DUDE THE ONE WHO SHOT THE POLICERWAS THE PASSENR OF THE CAR AND HE WAS THE ONE SAW RUNNING DOWN WALKER ANDTHEN TURN NORTH IN TEE NEXT BLOCK
NEVER DID ACTUAIIy SEE THE PISTOL THAT THE MEXICAN DUDE HAD BUT IT SOUNDEDLIRE BIG ONE FROII TEE NOISE IT MADE THIS MEXICAN DUDE WAS TUE ONLY ONEDOING ANY SHOOTING BECAUSE HE DID NOT GIVE THE POLICE OFFICER CHJi1CE TO DO
ANYTHING
AS FAR AS THE MEXICAN DImES ARE IT WAS LITTLE BIT DARK OUT ON THE STREETTONIGNY AND NEVER GOT TO SEE THEIR PACES SO CAN NOT RECOGNIZE THEM IFEVER SAW TEEM AGAIN CAN NOT REMEMBER WHAT THEY LOOKED LIKE AND CAN NOTREMEMBER WHAT EITEEM ONE WAS WEARING CAN REMEMBER SEEING TEE CAR THEY WEREDRIVING IN THE NEIGHEOPEOOD BEFORE BUT DO NOT KNOW WHO OWNS IT OR WHO WASDRIVING IT AT THE TIME SAW IT
SIGNED
__________________
Subscribed aDd svor to before this day of JULY 198j
NED
ART PUBLIC IN AND POR
THE STATE OF TEXASPage
_______
115 AM
For CI10004
-----
Lfl4
CC1
have ceUpieted years of school/dBJIJQJj asd cccread aed vrite the Ecgljsb Language have read thisstate.ent sod it is true and correct to th best of syknowledge have gives this statsent to DET K.R.WILLIAMSON
of
.y ovo free viii Thisstateseot V5 typed bf OH K.R.WILLIAJON
--
OUSTON POLICE DEPARTV-TOFFICERS SUPPLEMENTAL FIELD NOTES
INcIoEprjNO 4261.4592
OFFENSE_IT MURDER OF POLICE OFFICE0 4900 Walker
COMPLAINANT .7 flIIc DATEOFOFFENSE 7/1 VR2
OAT $UPPIIMENrMADE
..7Jl4/82
SI4ORT FOAM St.9t.EMii P4FO4ATONCONTACTED COLJNANT CONTACTED S1ThESSjS U3750 LPMEU TO CONTACT CO.jNANTNO orN AflON AiQe uswNO AOOTIONAI INFOMATON
DATE T145
DATE TIME
RECOVREDSTOLNvEHIcy
______ MAKE
_______ MODEL UCYR.ftATEINO
_________coNomoNoryENIc DAMAGED WRECkED tURNED AMOupiroroaNjoes
___________$TRIPP LIST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE ICLOW
RECOVERY LOCATiON__________________ DI
SEAT__________________
yEN RELLASED TO TOWED TO rv
______________________
CALLR$ NAME
__________________________
PHONE
_________________________
up._5Th84
DIVISION/5TATNON
Homicide
EUP SHIFT OMIION/STAT1ON Homicide
ONM NO tC.CCC7
If.I Jun 27 tUC
pp 0042
Ooo.O4
PROGRESS OF INVESTIQArlOpi AOOmONA INFORMATION ElO
_____________________________________
SCENE SUMMARY
The scene of this offense is the intersection of Walker and Edgewood
_streets in Housto Harris County Texas This intersection is located
in the near east end of town in mostly residential area The intersectjc
is lust east of Duxn1e and WalkLr The area contains mostly smaller houses
accuojed largely by MexjcpnAnericans citizens Walker street is general
east/west et and is two-way with one lane in each direction in the
4900 binek Edpewpgd Street is aenerally north/south Street and is alsotwn1ne with one 1rj in each direction The 700 blrgk of Edoewood dead
4.ha dgnfl ru-k nf WA1er fn.iilng type in rsection with
ti pu Soth streets are tyPical asohalt
rejdpntj1 tr.tg nd are ungurbed in this arep Both streets are approx
the same width with Walker being approx 18 ft wide and Edeewood aprox
19 ft wide
Small woodframe residences occupy the south side of the 4900 block
of Walker the south end of the intersection. 4922 Walker and 4928 Walker
are the twohpui.s on the south end of the intersection that face into
_Edgewood Similar wood frame houses occupy the north Side of Walker Street
___________
SUP MENr COUPLE CONTINUED
OFFICERI R.W.Holland
Wee
OFFENSE CAPITAL MURDER OF POLICE OFFIC.ON 4OO Walker
COMPLAINANTS J.D.Harrjs OATS OFOFFEN35_.Ll382
OATS SUPPLEMENT MADE
SlGRT FOSU SIC.5MT MATlONCOAC COTED ESS/S AaU TO COA COTNO AOOfT1ONAI INFORMATION NO IONA INFORMAT1ON NOOR WITNESS/S U51DATE TIME
DATES
DATE TiME
RECOVEREoSToLENvEHIcLEy
______ MAKE MODEL UC.Yt5TANO
_________CONDmONOvHICLE DAMAQED WRECKED SURNED AU0WIyorAG5S__________
STRIPPED LIST ITEMS STRIPPED AND ThEIR VALUE AT STARE OF NARsAnvl I.LOW
RECOVERY LOCATiON
_________________ DI$T_ SEAT_________________
VEH RELEASED TO
___________________TOWED 10 SY
OFFICERI R.W.Holland
OFFICER2 G.T.Neely
.--
--
CALLERS NAME
____________________________
PlIONE
_________________________
OOL05
USTON POLICE DEPARTVT
OFFICERS SUPPLEMENTAL FIELD NOTES
INCIDENT NO 42614582
PROGRESS OP INVESTiGATION AOOmQNAL INFORMATION srcSCENE SUMMARY Contd.
There is red brick house on the northeast corner of the intersection
one of the few brick houses in the area This house is 4921 Walker and
there are more woodfrarne residences farther east down Walker on the north
_side There is woodframe residence on the northwest corner of the inter
Section and this is 4919 Walker Woodframe residences continue farther
west on the north side of the street As mentioned before there is no
curb on either steet around this intersectip shallow ditch runs beside
ach Street on both sides of the streets running parallel to the stree
rhic hs11çj earth ditch is several feet from the edge pf the opvemerit of
.he ct-o omnon ft sidewalk runs along the north side of Walker and
sigo on th south side of Walker Darpilel to Walker Driveways from the
djffy-n- residences along Walker extend out to Walker with small culverts
the shsI1 ditch On the west side of Edgewood
voreh of Walker grass conies up to the edge of the street On the east
side of Edgewood there is one to two feet of dirt and gravel between the
of th Street snei thp crass
For purPoses of this scen sunniiary there are several points of
reference at th intersection of Walker and Edpewpod which will be used
_j forthcoming maaeurelnentI There is typical Posted Street sign on the
______-
SUPPLEMENT COMPLETE CONTINuID
sup 57884 SHIrT
_DIV1SION/5yAfloN Homicide
SHIrT DIVI5ION/$TATON Homicide
FORM NO KIC.0007
RWId J.A 27 1510
App t043
USTON POLICE DEPARTVTOFFICERS SUPPLEMENTAL FIELD NOTES INCIoENO 42614582
OFFENSE CAPITAL MURDER OF POLICE OFFITIoN 4900 Walker
3.D.Harrjs 7/13/82COMP.AINAwrm DATE OF OFFENSE
OATE5UPPLEMENTD__7/14/82
SNORT FORM S4..PP4Ep4T
NO oomo NO Acomo OflON ANR WrNESS U5150
COAC0sAff COACTWES US UNASU COACT CONT
fl
DATE TE
RECOVERED STOLEN VEHICLE YEAR
______ MAKE
_______ MODEL UC YR STATES NO
CONDrnON OF VEHICL DAMAQE WRECKED BURNED AMOUNT OF DAMAGE S___________
STRIPPED UST TENS STRIPPED AND THEIR VALUE AT START OF NARRATIVE ICLOW
RECOVERY LOCATION___________________ DUST SEAT___________________
VIM RELEASED TO
________________ TOWED TO BY
PROGRESS OF INVE5TIQoN ADDmONAL INFORMATION ETO
_____________________________________SCENE SUMMARY Contd..
northwest corner of the intersection This signpost is on the corner in
the yard of 4919 Walker inside the beforementjoned ditch line The other
_poirlt of reference is concrete sign post that is located on the northeas
corner of the intersection This is standard short concrete street sign
post and is positioned approx 10 ft east of the east edge of Edqewood And
_pprox ft north of the north edge of Walker These two sign posts will
be used in some measurements recorded later in this sulTmary
There wag large ouddle of wet blood on the east edge of FdcTewood
ctreet just north of Walker This was approx ft area of blood righthe esadge of Edgewgod and ayprpx 14 ft north of the north edge of
We1.r proy ft north of the concrete sign post.on the northeast
-one Mogt of the bipod was on the asphalt road surface and some was on
the dirt area next to the roadway This was the only area of blood noted
on the Street with the exceptign of some blood dripoings that were left
whn peraonne1 had loaded the wounded citizen aboard the ambulance
Dets noted no skid marks in the intersection of Walker and Fcigewood
during the niahttima scene investigation
____________
SUPPLEMENT COMPLETE CONflNUE
.FFICERI R.W.Helland IMP 57884 $HIPT..2 D$IQN5TATlON.Hom1ci
OFFICER2 aTNeelv IMPs 48473 SHIFT OIVUSION/STATIQN 5Homicide
CAU.RS NAME
_______________________
PHONE
NO IC-OOe7
.vI.d Jun 27 1SSO
000..06
..-.-
App 0044
USTON POLICE DEPARTMTOFFICERS SUPPLEMENTUL FIELD NOTES INCIDENT NO 42614582
OFFENSE CpA1 M... police Officer LOCATION 4Q
COMPI.AIHANTS
J.D Harris
DATEOFOFFENSE 07-13-82
DATE SUPPLEMENT MADE 07-14-82
SHORT FORM StPDWTj
CONTACTED COMPLAINANT CONTACTED WTTNESSS U3TED UNA5 TO CONTACT COSAJNAiTNO ADOTIONA INFORMATION NO oorno ANOR rNESS/5 LiSTED
DATE TiME DATE TiME
DATE TiME
RECOVEREDSTOLENVEHICLEYEAR MAKE MODEL UCYR.ITATEANO
_________
CONOrTION OF VEHICLE DAMAGED WRECKED SURNED AMOUNT OF DAMAGE $___________
STRIPPED LIST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE OLLOW
RECOVERY LOCATION Diet_______________________ SEAT___________________
yEN RELLASED TO TOWED TO
$UENTcopt CONTINUED
OFFICERI G.T Neely EUPC 48473 SHIFT DIVISION/STATION Homicide
OFFICERS R.W Holland EUP 57884 SHIrT OIVISION/STATION Horn
CALLERS NAME
___________________________
PHONE QRM PlO RIC.0007
R.I J.ns 37 1IOI
OOLLLy7
App 45
PROGRESS OF INVESTIGATION ADOmONAt INFORMATION ETCi
r-i-i-i or JO II CLC1- C...a/4
When viewed by detectives both the suspects vehicle and the vehicle of the slain
officer were parked in the 4900 block of Walker facing South The vehicles were
positioned parallel to one another with the front tires in close proximity to the
South edoe of Walker Street This intersection consists of Walker Street running east
and west while dgewood Street runs north to South dead ending at its intersection
with Walker Street Both vehicles when viewed faced the south edge of Walker Street
with the rear bumpers of the vehicles facing back tgards Edgewood
Liu
It should be noted that the suspect vehicle was viewed In Its original oosltipn.in
regards to this offense while detectives were advised that the oo ice vehicle had
been moved from ite
orlçinal oncition by MihulAnre nercnnnel
The Dolice unit shop 6217 LIcense 360 015 VIM TH42L9A215711 was oositiàned to the
left or east of the suspect vehicle The unit was noted to be parked with its enaine
running and the headlights on iith the lights In the high beam position There were
pair of blinking red lights functioning these being Positioned at the front of the
vehicle behind the grille This vehicle Is whltenyer blue in color being 1979
Chrysler 4dr And is not with IRrrIrv Onir.m.4 on the rnof nf thn vehicle
DUSTON POLICE DEPARTV
OFFICERS SUPPLEMENTAL FIELD NOTES
42614582
LOCATION 4900 Walker
DATE OF OFFENSE
_____________________________
0714-82
SHORT FOeIs
CONTACTED COMPlAINANT CONTACTED WITNESS/S LISTED UNAILE To CONTACT COMP...aJNJy
NO ACOTiONAI INFO4ATION NO AOOmCNAJ INFOATOM iD/OR WITNESS/S LISTEDDATE TIME
DATE TIME
DATE TIME
RECOVERED5TONyEHICt.Iy
______ MAKE MODEL__ UC.YR.$TATIHo
_________CONDmOPd OF VEHICLE DAMAGED WRECKED SURNED AMOUNT OF DAMAGE
___________STRIPPED LIST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE BU.Ow
RECOVERY LOCATION
01ST ECAT__________________
VEH RELEASED 1O TOWED TO BY
_____________________
PROGRESS OF INVESTIGATION ADOmOPIAL INFORMATION ETC
_____________________________________Jfie vehicle is also equipped with an exterior spotlight on the drivers side which is
Positioned and switched through control handle inside the vehicle This botTight
was found in an on condition with the spot of the light beam being pointed downward
and rearward The beam of this light focused on the pavement at position roughlçi
even with the center door post on the drivers side of the vehicle distance of four
and one half feet out from the side of the vehicle
The passenger side doors of the ool Ice vehicle were lacked and the windows rolled
fully up The drivers side doors of the vehicle were unlocked and both windows rolled
down aoorox inches The rear Dortjpn of the oplice vehicle did not have seats
_but rather had Piece of carget-cpyered hardbpprd of some tvoe for level floor
An adult German Shephard dog which was Officer Harris newly assigned canine oartner
was seen lying on this floor in the back Eeat
The left front driver side tire of the oolice vehicle was resting on the south edge
of the asohalt roaqay while the right front Daccenger cide tire rected aoornx one
and one half Ieet north of the south
edge of the Asphalt rnark.iay The vehirle Itceif
_was very closely plliORed with the oravel driveway front of the residence at 4928
Walker this driveway being located on the west side of the residence The vehicle
was not howeverparIpd In or on this driveway
SUPeLEMENT COMPt.fTE CONTINUED
OFFICER G.T Neely EMPI 48473 SHIFT OIVISIONS1ATION Homicide
OFFICER2 R.W Holland Eupe 57884 SHIFT DIVISION/STATION Horn
CALLERS NAME
PHONE QU NO AIC.0007
J4s Jn 57 tug
OOOOS
App 0046
OFFENSE Capital Murder Police Officer
COMPLAINANTS James Harris
USTON POLICE DEPARTrf
OFFICERS SUPPLEMENTAL FIELD NOTES
INCIDEpy NO 426 14582
OFFENSE Capital Murder Police Officer LOCATIONLP Walker
COuPLAINAPdi James Harris
DATE OF OFFENSE 07-13-82
OATS SUPPI.EMEHr MADE
SNORT FORM 5.WPt.D.4dT 4FOPMATOId
0aTE0
TO COMNANTNO cmow OTION NO ACOmONAL FOAflON ANOR WESsJS
L__ DATE TIME
DATE
LISTED
RECOVERED STOLEN VEHICLyEA
_______ MAKE MOOE LIC.YR STATES NO
__________CONDmONOVEHICLE OAMAQ5 WRECKED BURNED AMOUNTOFOAMAGE
__________STRIPPED lUST ITEMS STRIPpED AND ThEIR VALUE AT START OF NARRATIVE BCLOW
RECOVERY LOCATION
__________________ OUST BEAT
yEN RELEASED TO TOWED TO WV
_____________________
PROGRESS OP INVESflQATION ADOmONAL INFORMATION ETC
Prior to viewing the interior of the police vehic1_ the exterior was examined for any
trace evidence The following were observed on the drivers Side of the vehicle
Loose hair adhering to the side of vehicle roofline apprpx inch above the
drivers window frame and 19 inches reanard of the junction of the rooflje and top
corner of the windshield frame This hair located by Neely recovered by Smith of
the HPD Crime Lab
Blood spItters these soatters were several in number and ranoed in size from small
to mist-like Thece were sratte.ed over the roof or th passenger sidle of the
orowino smaller in size and conrentratlon towards the opposite side of the roof The
direction of the
coattering appeared to hp arross the roof tnwrd the passenger ddefrom position In the approimat rents- of the etrivors Ile
cpttev.c 1nitd towards
the front of the yeh4plp approd hv he.n finn9 th .nnf twrdc th
side and slightly frnntward This was deternlnpd by
observing the Keyhole effert ofShec taken by the spatters And also the heavier ronrentratlon of the blood toward the
passenger def thp dropi ets
Blood cflatter lorategi over the rear driyer Sidle wheel well At height 7R inrhec
from fhp
roattiay and Inrh.t fre.Ii oitjdrf the rpa- hie1pe Weight hyp the
..........wheelwell
onening ItL.lf was app Inrhes The direction of this spatter appeared to
___________
$UPPt.1MgNTCoMpy5 CONTINUED
OFFICERI G.T Neelv MP.A8473 SHIFT2 OUVISUON/5TAflON Homicide
OFFICER _R.W Holland Eupe 57RR4 SHIFT DUVISION/STATION Hnm
CALLSRS NAME
___________________________
PHONE
POCU NO RIC.C0o7
P.Id Jun 27 SIOI
OOOO9
App 0047
.OUSTON POLICE DEPARTV 7TOFFICERS SUPPLEMENTAL FIELD NOTES INCiDEp0 42614582
OFFENSf Coitl Murder Pnljep 0fficer LOcATION 4900 Walker
COMPL.JNAPii$ fl Hrrjc
DATE OFOFFENS 0713-8
DATE SUPPLEMENT MADE .Qjj-82
SNORT FOAM
COHTACTW COIUJNANT
C0NTAçy wmgusi tJA8L TO CONTAcT CO_ajeNO AflOflONAL WJO.4ATON NO AOOm OAfl0N Aaoop wrrNEssI usDATE TlMt DATES TM
DATE TIME
MAKE
_UOoL_ UC.YR.gIAiENQ
_________CONDmONOFvEHIc DAMAGED WRECKED SURNED AMOUNIOFDAUAOE_STRIPPED UST ITEMS STRIPPED AND ThEIR VALUE AT START OF NARRATIVE 2CLOwRECOVERy L0CATION DIST._
VIM RELEASEO TO TOWED TO
PROGRESS OF INVESTIGATION ADOmONAL INFORMATION ITO
toward the rear of the police vehicle also showing si Ight upward direction
OFFICERI G.T Neely EUP 48473 SMIFT_L
_DfVI$ION/$yAyN Homicide
OFFICER R.W Holland EMPa 57884 SHIP __2 DIVISION/STATION Horn
CAI.LER$ NAME
PHONE
OM NO IC.0007
A.4d Jufli iSS
OOO.1O
.SY
Blood spatter on the left rear fender driver side fender 29 inches up from
the roadway 41 inches from the Outside of the rear bt.riper Rearward direction
Blood spatter 36 irkhes up from the roadway 42 inches from the outside of rearbmioer rearward direction
Blood spatter located at the top edge of the left rear driver side fender
inches uo from the roadway 40 inches from the outsfde of the rear bumper This
direction rearward and slightly across the vehicle east to west
Th
SUPPt.juy COMPijr
isted of bl
CONTINUED
App 0048
INCIDENT NO 42514582
LOCATiON 4900 Walker
DATE OF OFFENSE ._P713-82
DATE EUPpI.EMENT MADE 07-14.82
SHOPT FOPU S1.PPI4EN5 eIFORUATIQNCONTACTED COhIPI.AINANr coNrAco WTTNESS$ USTED UNAU TQ CONTACT COtJJNyNO AComoNAL INFOAT
UsToOAT TIME
-_ OAT TIME
OAT TIME
RECOvEREDSTOLENvExIcLEy
______ MAkE
_______ MODEL UC YR $rATElpio
_________CONDONOF VEHICLE DAMAGED WRECkED BURNED AMOuN1OFDAUAQE$
___________STRIPPED lUST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE B.LOW
RECOVERY LOCATION 01ST
__________________yIN RELEASED TO
____________________TOWED T0
____________________ BY
PROGRESS OP INVESTIGATION ADDmOj INFORMATION ETC
Was
roughly nrhpc wide from top to hottoun nd norox 9_Jnchec front to rear
This smear was located at the rpar edge of the drivers door of the vehicle extending_
onto the front or leading edge of the rear drivers Side door The of the crnear
began aoprox inches from the roaay extending anorox inches unward The rear
the cm.ar bpgan apnrox 99 inches fonard of the nuitjde edge of the rear
hurnpr otndlog fom.ari approv irurhos at its longest point
_Adrent tO this u.uas u.uhat apparcd to he olul ttamagA to the front driverc door
this heing ocrent.shaped rpease in th eta1 Innng terally from posttfonfnm..j of_fh sa This is
rhpuught ul uunag r4uu Pn fh rue jtj rh hae
fruu-mcr4 on th ruot5l of th uir u.uflor tho pain missing
buet dairaga wag neted an thg palice phiclp rpr wac9thprg any hplnentrpt
of b1ood-npt en the eaterier ef the BeliEe vehicle The interjpr ef the pauseu1
.p et v4ewad utl the 9g Skipard rajsd f. b.-L
çgt pf tIp
u5h15 by Opg a4car h5 sagne At that Latg D4..t pt_sa.uelLL Coope.rwere in the rsspgs af dusting the vtar1r af tlg ehia1g f4gspr4ti
Det neely then had the drivers door opened and at that time viewed the interior of
the vehicle The mileage was noted as 58682 mIles with the resettable trip odometer
reading 837 miles The engine was running as mentioned above and the gearshift of
______________
$UPPt.EMT COMPL.jye CONTINuEp
OFFICER Neely EMP 4P.571 SHIFT _2 OIVISION/$TATION.4rimii
OFFICER2 EMPs 57A SHIFT DIVI5IONSTATI
CALlERS NAME
______________________
PHONE
P0CM NO RIC.C007
IC..I.I Jur. ISO
000.11
App 0049
OUSTON POLICE DEPARTr-ITOFFICERS SUPPLEMENTAL FIELD NOTES
OFFENSE Capital Murder Police Officer
COMPLAINANT James Harris
.USTON POLICE DEPARTVT
OFFICERS SUPPLEMENTAL FIELD NOTES INCI0Ny NO 42614582
OFFENSE Capital Murder Police Officer WCTION 4900 Walker
COMPLAINANTS James Harris DATE OF OFFENSEOi-13-82
OATESUPPLEMENTMADE__ 07-14-82
SNOPT FORM SLm.ele4T lFORMAT
CONTACTED COMP..AiNANT CON7ACT5 WITNESS/S uS1W
.JIAeLE TO CONTACT COjNA1TNO AOOflONA NFQRMATION NO ADOrnONA INFO4AflON AND/OR WrIMESSIS USTED
DATE TIME DATE TIME DATE TIME
RECOVERED5TOLENvEHICLEy
______ MAKE
_______
MODEL UC YR $TATENO
_________
CONDm0NOFvEI4ICLE DAMAGED WRECKED SUPPlED AMOIJP4TOFOAMAGE$ __________
STRIPPED USi ITEUS STRIPPED AND THEIR VALUE AT START OF NARRATIVE BCLOW
RECOVERY LOCATiON
___________________ 01ST SlAT___________________
VEH RELEASED
____________________
____________________
OFFICER Naoly
OFFICER2
CALLERS NAME
PHONE
EMP AR-471 SHIFT OIVISION/ STATION jpi ci de
EMP 57B1 SHIFT DIVISION/ STATiON ci dc
FORM NO RIC.G007
CR..i ns 27 uSC
OOQ12
App 005i
TOWED TO
PROGRESS OF INVESTIGATION AODITIONAL INFORMATION ETC
___________________________________
hA nemnn .. 4h Dp.4 p1t4o l..p2nIp.j Vop keYs
nrtd nn ri-r1r k.y ring t.ith tha ky inI hrui rrlHrC .diP1A
21cr hung fy-m thR kRy ring
Thnrnigh invQnnu.y np pf ha
th print cPpll f0r fnth. proess4g At tc tlc of ta v4cng
fr1nu.uing
R4 cof-
clropArty flr revarppd ...4th flat ad Carpet
vrt seat area
Driver side On viewing this area no property or other articles were noted on the
surface of the drivers seat itself The sun visor above thl seet showed the followinp
Sunglasses with brown plastic frames inserted under rubber band on visor
Black Bic ballpoint pen also held by rubber band
Work card showing last call as an alanii call 3250 Telephone Time received
845 P.M.1 time cleared 855 P.M Disposition unfounded
Work card recovered at print stall is retained with this casd
the centernst surface of the drivers seat was leather dog leash which was rolled
SUPPLEMENT COMPLETE CONTINUED
OUSTON POLICE DEPARTV-T
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDENTHO
42614582
OFFENSE Thpit1 Mirla Pnlir 1ffrr LOCATON1tu1
COMPLAINANT5 ari
DA1EOFOFFENSE_Q7_1_92
DATE SUPPLEMENT MADE 17.1 d2
SNORT cORu SUPP%5M94T INFORMATCONTACT COMPLAINANT CONTACTED WflNESAJS US1ED
UNABLE TO CONTACT C0MPIjNANTNO ACOmONA1 INORMATI0N NO A0Omo.A INPORMATJd iOIOR WITNESS/S LJ$TWDATE TIME CIrE TIME
DATE TIME
RECOVERED STOLEN VEHICLE YEAR
_______ MAKE
________ MODEL
__________ UC YR STATE NO
__________
CONDITIONOFVEHICLE DAMAGED WRECKED EURNED AMOUHTOFDAMAGE$
__________STRIPPED iUST ITEMS STRIPPED AND THEIR VALUE AT START or NARRATIVE BCLOW
RECOVERYLOCATION
_DIST_____________________ BEAT_________________
VIII RELEASED TO
_..._
TOWED TO BY
___________________
EUP48473 SHIFT DIVISION/ITAnON HOflflcide
IMP 57884 SHIFT _2 DIVISION STATION Hnm
P0CM P40 AIC.0007
IRIMd J..ns 27 IPSO
OOO13
...
PPOORESS OF INVESTIGATION ADDITIONAL INFORMATION fTC
______________________________________
up and Inserted under the backrest of the seat near the split between the benchstyle
front seats black alumin flashlight was Inserted between the two upright back
cushions of the seat with the head of the flashlight facing forward This flashlight
was between the Passenger side seat back and the folding armrest which was folded up
Passenger Side
The passenger side of the seat had the following items on too of the bottom seat Cushion
Black stdndard City of Houston Key Map
Brown woodend clipboard with chrome clip containing offense rePort formc
Department publications and Derspnpl correspondence
Biue binder containing Papers Later found to be oaners In rfarenrp fri ling
_________
training exercises critiques
The floorboard area of the front seat was covered with gold-colored carnet the
Drivers side of the floorboard no Property was noted Ineated tnp the trnsmiccjnn
hump in the center of the front seat area was Citizens Band radio with the micrnnhrine
extended to lie in the floorboard of the Dascenger dde fl-e2m
cnntllghi wc ririfed
lying facedown in the Passenger side flnnrbir with the hndlp pnlnieti tnwrrI fh
_assenger side door This light was plugpd Into the dash-iytpd rigArette lighter
$UPPt.EMENTCOUPLTE XCONTINUED
OFFICERI G.T Neely
_________
OFFICICA R.W Holland
CALLERS NAME _________________________________
PHONE
______________________
App I1
OUSTON POLICE DEPARTT
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDEN NO 42614582
OFFEN5E_CaDit1 Murdpr Pnllr Iffirerl LOCATION d1t1fl W4lfrer
COMPLAINANT .imç fl ri DATE OF OFFENSE 4L43
DATE SUPPLEMENT MADE
SNORT 0Ru pFOpMAT0NCONTAcTED COMPLAiNANT
CONTACTED WITNESS/S USTEO LfrAU TO CONTACT COuJWdTNO AOOflONAi INFORMATION NO ACOITIONAA NFORMAT AND/OR w.sj5 USTEDDATE
DATE fluE os TIME
RECOVERED STOI.EN VEHICLE YEAR
_______ MakE UC YR STATE NO
__________CONDm0N OF vici.e DAMAGED WREcKED BURNED AMOUNT OF DAMAGE $___________STRIPPED UST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE BCI.OW
RECOVERY LOCATION DIST_______________________ EAT__
VEH RELEASED TO
________________ TOWED TO BY
PROGRESS OF INVE5TtQTION ADOmONAL INFORMATION ETO
______________________________________receptacle paper drink CUP and another piece of paper trash lay in this area of thefloorboard
The Sun Visor over the Passenger side seat Contained several personal papers departmentforn and court slip in the name of the complainant Also present were TexasOperators License nuyther 9646720 John Ralph Emerson and conlion Identificationcard as is
This card is in the name of Isabel MartinezLAF 08-04-51 810 Fair Oaks Niether of these pieces of identification are thought tQbe involved in this case
SUSPECT VEHICLE
The vehicle driven by the suspects in this case was Parked nerallel tn th priciHnn rifthe deceased Officers Vehicle and wac ineateil tn the wed Ph finliPo yohi-1Distance between the two vehicles at the front bumpers was measured 10 1/2 feet whilethe separation at the rear bumpers was measured feet Suspect Vehicle is 19778uick Regal 2qjd over black License 82 TX YTX47g VIN41c7.1771ng41%
This vehicle was also found facing South and was allioned with the drlvay rif the
residence at 4922 Walker althpimh not In this driveway The 1ef frnn drivor ch4tire of the Vehicle rested at the edge of the asnhalt dway whjlp the iht frnnr
SUPPLEMENT COMPLETE
OFFICERI G.T Neely EUP48473 sHIFT DIVISION/STaTION Homicide
OFFICER2 R.W Holland IMPs 57884 SHIFT OIVISION/STAYION Horn
CALLERS NAME
_________________________
PHONE
poew No CIC000
Rn.I Jun 27 1110
OOO14
App
OUSTON POLICE DEPARTr
OFFICERS SUPPLEMENTAL FIELD NOTES
INCIDENT NO 42614582
OFFENSE Capital Murder Police Officer
LOCAT1ON_900_Walker
COUPLAINAWT James Harris DATEOFOFEpI3EO713-82
OAT SUPPt.EMENT MADE 07-14-82
r0 coa coAcTo wE$s/s usiw ae TO coci coNT
SHORT Oeu StPUtfl IFORMAT
NO AO0NA wFaT No DQmNA FOAO ANoR WS USTDATE TIMa 0.41 TrNE OAT 1UE
RECOV1R STOLEN VEHICLE YEAR
_______ MAKE MODEL UC YR STAT NO
__________CONOmONOvEHICLE DAMAGED WRECKED BURNED AMOUPflOFOAMAOE$
___________STRIPPED LIST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATiVE BELOW
RECOVERY LOCATION
___________________ 01ST SEAT___________________
VE14 RELEABEDI TO
___________________TOWED T0 BY
PROGREsS OF INVESTIGATION ADDrflONAI INFORMATION ETC
_______________________________________tire of this vehicle rested on the dirt shoulder approx foot south of the edge of
the asphalt roaav
The rear of this vehicle was approx 19 feet south of the metal street sign in the
Intersection of Walker and Edgewood this sign being located In the northwest corner
_of the intersection The measured distance from the lift rear corner of the rear
bunper of the vehicle to the concrete sign post at the northeast corner of the intersecti
_was 25 feet inches The rear of the susoect vehicle was also found to be distance
of 26 feet southwest of the large ouddle of blood on Edpewogd Street where the deceased
officer_fell_after_being_shot
_____________________________________________________
The suse vehicle was noted to have its frgn wheels turned to the left and wac not
running when viewed Both windnwc of thic vehirip were rolled fully tiown and hoth
doors unOcked Th veflirle was nntod tn hpve romo.rD..A
.hoplt arid raetDrl
white_letter tires on the rear and had whitewall tlrc and standard tJrrjrp Ruirk
rally tvoe wheels at the front
The vehicle did not have front gril1e this leaving the radiator of the vphile
exoosed The front of the hood was also noted hpve old damage thp Hr end
Ac the exterior of the vehirle was being insported it Foinvi that the vehirlo ha1
.jpall blue oalnt ser oresent on the tin of the left rear bianper
____________
SUPPLEMENT COMPLETE CONTiNuED
OFFICERI G.T Neely EMPe 48473 SHIFT DIVISION/STATIONC Homicide
OFFICER2 R.W Holland EUP 57884 SHIFT DIVISION/STATiON Homiride
CALLERS NAME
PHONE
FOCU NO lC.e007
Mfd J... 27 1110
OOO13
4pp J53
...
--
USTON POLICE DEPARTM
OFFICERS SUPPLEM ENTAL FIELD NOTES
OFFENSE Caoital Murder Police Officer
COMPLAINANTS JAmec Hprris
SNORT FORI SPPLDmIT IFORHATIOIi
CONTACT COI.IPIJJNANT CONTACTED WTTNESSJS UST LeAeLE TO CONTACT COSeLI4ANTNO LOCII1ONAI INFORMATiON NO ITIONAL INcO.IATlOw AND/OR WNESS/S IJSTED
DATE TIME DATE TIME DATE TiME
RECOVERED STOLEN VEHICLEYCAR
_______ MAKE MODEL
__________ UC YR STATES NO
__________
CONDrnONOFVEHICLE DAMAGED WRECKED BURNED AMOUNTOFDAUAGES__________
STRiPPED LIST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE eL.ow
RECOVERY LOCATION
___________________ 01ST SEAT___________________
yEN RELEASED TO
_______________ _.......TOWEDTO
___________________ BY
OFFICER N1y
OFFICER2 1.1 Wcllpnd
CALLSRS NAME
_______
PHONE
______
EMP SRA7 SHIFT DIVISION /STATION Wnmrir1
EMP 5784 SHIFT DIVISION /$TAT1ON
FOAM NO IC.0CO7
R.N.d JA 27 IUO
OUO1
INCIDENT NO 42614582
LOCATION 4900 Walker
DATE OF OFFENSE Oifl-82
DATE SUPPLEMENT MADE 07-14-82
POGRES3 OF INVESTIGATION ADDITIONAL INFORMATiON ETC
___________________________________
This paint smear was light blue in color and appeared to cosely match the color of
the paint on the police vehicle This smear is very thin in width and is located on
the left rear point of the bumper at point 22 3/4 Inches from the ground This
smear runs distance of approx 1/2 inches and is parallel to the ground The
direction of the smear appears to be front-torear
Inriediately below this paint sIiear black rubber protective strip runs laterally around
the bi.rper The portion of this strip ininediatØly below the paint smear was noted to
have small amount of what appearred to be abrasive damage This damage appeared
to be fresh as there was still feathered edge present on the damaged area
No other fresh damage was noted at the scene in the lighting provided
Upon looking into the suspect vehicle Det noted that the keys the vehicle were
still in the ignition however the ignition was not on The gearshift lever of the
automatic transmision was in the Drive position Mileage on the odometer was noted
to be 81011.6 miles
The floorboard of the vehicle had clear plastic mats front and rear which extended
from driver to passenger side The front Passenger floorboard was also covered in
what appeared to be an additional black rubber mat which was rumpled when viewed
SUPPLEMENT COMPlETE XC CONTiNUED
i4pp OO4
______
USTON POLICE DEPART
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDEp NO 26i4582
OFFENSE Canitl MurdRr Pl1cp Officer LOCATION 4900 Walker
COMPI.AINANTm DATEOFOFFENSE 07-13-82
DATE SUPPLEMENT MADE 07-14-82
SHORT FORM S4 PID4Dt I4PORMATIONCOACCO1lA COACTED WESSI3 eu To co cOwrHO AcomowAl INFORMATiON Aoomow INFORMATiON ANOIQR wrrNEsss LISTED
OATS TlM DATE TIME DATE TiME
REC0VEREDSTOLENVEHuCLIy
______
MAKE
_______ MODEL UC.YR.1TATENO
__________
CONDmONOVEHICI OAMAOED WRECKED BURNED AMOUNTOFOANAGES__________
STRIPPED UST ITEMS 11RIPPED AND THEIR VALUE AT START OF NARRATIVE BOI.OW
RECOVERY LOCATION
___________________ 01ST SEAT___________________
VEH RELLASEO TO TOWED T0
____________________ BY
SUPPlEMENT COMPLETE CONTINUED
OFFICERI G.T Neely EUP 48473 SHIFT DIVISION/UTATION Homicide
OFFICER3 R.W Holland
_____ EMPS 884 SHIFT DIVISION/STATION Horn
CALLERS NAME
___________________________
PHONE
__________________________ o.u NO P1C.000
RIm J.As 37 11101
Ooo11
App oo
PROGRESS OF INVESTIGATION ADDITIONAL INFORMATION TC
_______________________________________
Lying on the front passenger seat of this vehicle was fired cartridge casing
This cartridge case was located in the crease formed by the junction of bottom and back
seat cushions distance of approx inches from the outermejdg of the front
passenger
_II1i ii
..i 11L
8.Z ArL lTt f1IiIlIff i_i -t
....
.-
set of keys were also noted in the vehicle with the ignition key Inserted Into the
ignition switch off These keys were also left in the vehicle and the interior not
entered as the vehicle was towed to the HPD print stall for processing by latents and
crime lab personnel
It should also be noted that an additional vehicle was parked In the vicinity of
the two above vehicles This vehicle 1975 Chevrolet Maroon Chevrolet Nova 2dr
82 TX License ZQV725 VIM 1X27G5L118922 was parked on the South side of Walker
Street facing east Both windows of this vehicle were rolled down ana the doors
unlocked This vehicle was parked with its front bmioer approx 1/2 feet west of
the right front fender of the suspect vehicle
This vehicle was pointed out by witnesses later in the investigation as belonging to
witness who had pulled to stop as the shooting began and had witnessed the entire
--
USTON POLICE DEPARTP
OFFICERS SUPPLEMENTAL FIELD NOTES INCIOENTHO 42614582
OFFENSE Capital Murder Police Officer
LOCATION 4900 Walker
COMPI.AINANTS James Harris OATEOFOFFENSE_7l3-82
OAT SUPPLEMENT MADE 07-14-82
sNOqT OA SPFTcOA COAIff Coiao ES8wo Aocmo FOMAON NO AComow US
DATE 12M1 DATE
DATE Tille
RECOVEflEDETOLENVEHy
______ MAKE
_______ MODEL UC YR $TATNo
_________
CONOmON OF VEHICLE DAMAGED WRECXED SURNED AMOIJpry OF DAMAGE
___________
STRIPPED UST liENS STRIPPEo AND THEIR VALUE AT ITAET OF NAAT7vE SLOW
RECOVERY LOCATION
___________________DIET SEAT___________________
yEN RELLASED TO TOWED T0
___________________WV
OFFICERI G.T Neely
OFFICERS R.W Holland
CALLERS NAME
PHONE
OOO1S
PROGRESS OF INVESTIDATION ADOmONAL INFORMATION TC
_____________________________________
incident This witness was later indentified as Trinidad Medina L.AF11 who was
transported to the Homicide Division for written statemeft This vehicle was left
at the
scene_as_it_was_not_directly_involved_in_this_incident
______________
-t j2
SUPPLEMENT COMPLETE CONTINUED
EMPS 48473 SHIFT DIVISION STATiON Homicide
EUP 57884 SHIFT OIVI$ION/$iATION Horn
P0mM NO 10-0007
l..1 h.. 27 IS$C
App OOo
USTON POLICE DEPARTPJ
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDENTN0.42614582
OFFENSE CAPITAL MURDER OF APOLICE OFFICF.R 4900 Walker
COMPI.AINANTS D.Harris
SHORT FORM SuPota4elT IFORMAT1ON
TACTED COMP.At4ANT CONTACTED WITNESS/S LISTED IJIASI.E TO CONTACT COeLA1NANTNO ACmONA INFORMATiON NO AD IONA1 INJOAT At4OIOR WITNESS/S LISTED
DATE TI.I DATE IE DATE TSE
RECOVIREOSTOLENVEHICLIYEAR
______ uaE
_______
MODEl UC.YR.STATiapiO
_________
coNomoNorvEHIcLE DAMAGED WRECKED BURNED AUOWITOF DAMAGES___________
STRIPPED LIST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE SCLOW
RECOVERY LOCATiON
__________________ 01ST SEAT__________________
yEN RELLASED TO
OFFICERI R.W.Holland
OFFICER2 G.T.Neely
CALLERS NAME
_________
PHONE
________
oow19
OATEOFOFFENSE 7/13/82
OATS SUPPI.EMENT MAr Al
_TOWEDTO
__________________BY
__________________
PROGRESS OP INVESTIGATiON ADDITIONAL INFORMATiON ETC
_____________________________________
SCENE SUMMARY Contd
Spent Cartridges Found on Northeast Corner of Intersection
During the scene investigation Oats and lab personnel located four
spent 9wn cartridge casings One of these spent cartridges was found in th
Suspects vehicle front seat and three other spent cartridges-were found
in the northeast corter of the intersection not far from the blood
puddle The spent cartridges were located as follows
located on the ground lust east of the blood ouddle approx ft
east of the east edge of Edoewood and approx ft nS north of
the concrete jg post
located in the shallow ditch east of the blood puddle acorox
ft ins east of the east edee of Edgewood and approx 10 ft
north of the concrete sian oost
lôe.ed on the ground under boxwood bush in the front yard of
4921 Edcewopd at the ilortheast corner of the intersection
aoorox 13 ft east of the east edge of Edgewood and 13 ft ins
nQrth of the concrete sign post
Bullet Holes and Sluas Recovered at 4919 Walker
During the scene investigation it was learned that several bullets
...Jad struck the house on the northwest corner of the intersection of Walker
SUPPlEMENT COMPLETE CONTiNUED
IMP 57884 SHIFT OIVBIONISTATION Homicide
Sup 48473 SHIFT DIVISION/STATION Homicide
___________
POM NO IC0OO
Rld Jw. 27 tielI
App ti7
SlOQT FOPM SCUMefT
cONTACIW cow.wr CONTACtED wTThEsS$ LISrED UNAa.E TO CONTACT CO.IJwrHO oomo NO INFOAAT1Ol wThEss uSTwQAtET_ oTEayiE
COVERED TOLfNvEHIcT.gy
______ MAKE _______ MODEL UC.YR.$TATESNO
_________
CONOmONOFVErnCLE DAMAGED wRECKED SURP4ED AUOWrTOFg__________
STRIPPED UST TEM$ STRIPPED AND ThEIR VALUE AT START OF NARRATIVE BLLOW
RECOVERY LOCATION__________________ DI ST SEAT__________________
VEH RELEA3ED TO
_________________
TOWED T0
_____________________
57884 SHIRT DIVISION/STATIONs Homicide
EMPS 48473 OIvI5ION/STATII Homicide
POSM NO SeCOOC
R4 Jv. 27 ISSC
OOO2O
4pp O5B
--.------------
USTON POLICE DEPARTrT
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDp4Tp4o 42614582
CAPITAL MURDER OP POLICE OFFITION 4900 WalkerOFFENSE
_________________________________________
_________________
COMPLAiNANTS J.DHarrjg DATEOFOFFENSE 7/13/82
OATESUPPLEMENTUAnS 7/14/82
PROGRESS OF INVESTIGATION ADomoldAl INFORMATION ETC
_____________________________________
SCENE SUMMARY Contd
and Edgewood This is the house at 4919 Walker It is white woodframe
house on raised blocks There is ft wide raised wooden porch around
the house on part of the east side and the south side This porch is appr
ft ins up from the around level There are two windows and door
on the east face of the house that side which faces out to Eewood
There is another door on the south face of the house that side which
faces out to Walker There were three apprent bullet holes noted
on the outside of the east wall the house These holes were near the
area of the window and door on that side of the house and were located as
follows
aoparent bullet hole located ft from ocreb level and
ft ins south of the south door frame of the door on the east
cio of th houcp
aoparent bullet hole located at the base of the east wall near
the oorch level and approx ft ins south of the south door
_frame of the doer on the east side of the house
apparent bullet hole located approx ft ins up from porch leve
and aorpx ft 10 ins south of the south door frame of the door
on the east side of thehouse
SUPPLEMENT COuPLET gCONT1NuSo
OFFICERI R.W.Holland
OFFICER2 G.TNeely
________ _______ ____________
CALLERS NAME
__________
__________
PHONE
_________
IUSTON POLICE DEPARTVT
OFFICERS SUPPLEMENTAL FIELD NOTES INCIOENTNO 42614582
OFFENSE CAPITAL MURDER OF POLICE 0FICE.1 4900 Walker
COMPI.AINANTS DATEOFOFFENSE 7/13/82
DATISUPPLEMEPITMADE 7/14/82
SsOeT FOPH SLe4T NFCATIO.4
OONTACTW COJJNANT CONrAgTs WITNESSJ5 USTW UJABU 70 CONTACT gy
NO ACOfl0NA OATON NO AOOflIO OATPOI AND/OR WTTNESSs u3750
DATEITII.4E DATETME
RCCOVERED$TOLNVEHICLEYEAR
______
MAKE
_______
MODEL
________ UC.YR.STATNO
_________
CONDITION OF VEHICLE DAMAGED WRECKED BURNED AMOUNT OF DAMAGE S___________
STRIPPED UST TTTMS STRIPPED AND ThEIR VALUE AT START OF NARRATIVE BCLOW
RECOVERY LOCATION
__________________ 01ST SEAT__________________
YEN RELEASED TO ___________________TOWED TO
___________________ BY
___________________
SUPPLEMENT COMPLETE CONTINUED
OFFICER
OFFICER
CALLERS NAME
PHONE
EMPC 57884 SHIFT DivISiON/tTATIONe Homicide
.EUP 48473 SHIFT DIVISION/STAT1ON Homic.de
____________
FOPU NO IC-OOO7
s1.d J.I 27 ISSO
fffvJJ..
App OO
PROGRUI OF INVESTiGATION ADDITIONAL INFORMATiON
_____________________________________
SCENE suiir.t Contd...
It is noted that the porch of the house at 4919 Walker on the east side
of the house is approx 22 ft from the west edge of Edgewood and is directi
west of the location where Officer Harris is said to have stopped his
patrol vehicle
Of the three3 bullets that struck the a5t outside wall of 4919
Walker only one of the bullets completely pierced the wall and ended up
in the southeast bedroom of that house One of the other rounds lodged in
the basboard and the other round broke the inside surface of the wall but
did rIOt exit the inside wal1
The southeast bedroom of the house at 49.19 Walker is the front bedroc
rn th gie nf the hnu elosest to Edgewood StreCt This is apparently th
taster bedroom of the house and there is large lengthy dresser sittirtc
against the east wall of the room in front of the northern of the two
uindôwc that side of the romm The room is aporox lSft by l9ft and
houees king size bed and tvical bedroom furniture There was bullet
hole located in the east wall of this bedroom approx ft uo from the 100
and ft 6in south of the north wall of the bedroomr This hole will
cr.A exterior bullet hole at the same hejg
RW Holland
JIJSTON POLICE DEPARTpOFFICERS SUPpLEMEN.L FIELD NOTES
INCIOEftNO 42614582OFFEN$
4900 WalkerCOUP JHANT
or OF OFFENSE
DAlE SUPPLEMeNT MADE 7/14/82
ON UStED
OA
OARECOVEACO $TOI VEHC YEAR
__ MODEL
__ 1.10 YR S1AT NO
CONDrtjo OF VEHIcj DA WflCxio SURNID AMOUPflO DAME$TRIpp Us fllMS STJIIpptD AND THEIR VAW AT START OF NARltVERECOVEAY
.OCy7oN_________________ 01ST
-- SEAT
VEIL REI1A5E.y
IVPROORIU OF INvE1TIO.ON ADDmo INFORTION rrc
1-
App 0060
_4.__
OFFICER
EMP
___ SHIFT
-. DIVISION STATION jdOFFICER up
SHIFT
__L...._
DIVI$ION/ STATION HomicideCALLERS NAN5
PHONE
OM NO EC.00o7
OFFENSE APT1AT MTJPflRR OP POLICE OFFICbAT1ON 4900 Walker
COMPL.MNApcr5 Mric DATEOFOFFENSE 7/11/82
OA1ESUPPI.EuENTMAD 7/14/82
$HOT FOAM tENT IWOPuATION
COTACTW COI..LlaNT cicrw WIThESSJS usyo LAI TO CONTACT COjMO AOOITION NFOATION NO AO7IONA INFO.4ATI ANWOR WITNESS/S LiSTED
DATE TiMe DATE TIME DATE TIME
RECOVERED TOLNVEHICLfy
______ UAKE
_______
MODEL
_________ LIC.YR.$TATEINO
_________
cONDmoNoFvH OAAOED WECXED BURNED AUOUPTOP DAMAGES
__________
STRIPPED UST ITEMS STRIPPED AND THEIR VALUE Ar START OP NARRATiVE BLOW
RECOVERY LOCATION
_____________________ 0151
OFFICERI R.W.Holland
OFFICER2 G.T.Neely
CALLERS NAME
_______________________
PHONE
_________________________
USTON POLICE DEPARTr-7
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDENT NO
VEH RLUSED TO TOWED T0 BY
____________________
PROGRESS OF INVESTIGATION ADOmONAI INFORUATON TC
____________________________________
SCENE SUMMARY Contd.
copper jacketed slug lodged in the east wall of the southeast
bedroom Saiie location as previously described area where the
bullet fractured the paneling but did not enter
copper jacketed slug lodged in the baseboard of the east wall
outside of the house
It was noted that glass cup mounted on an ornate candle holder that was
hanging on the north wall of the -bedroom had been broken There were
several pieces of the broken glass lying on the floor near the bed This
glass candle piece was near the appare.t bullet scrape on that wall
The preceding portion of this scene suiTuTIary has concerned itself with
the iiwnediate area and evidence pertaining to the shooting of Officer
Harris The fpllpwjncT portion of the scene summary will pertain to the
scene farther east on Walker where the uninvolved citizen
-was shot by
the Suspects while they were fleeing the scene
Scene of Jose Armijes Shooting and Evidence Farther East on Walker
The car in which Jose Arinijo was shot was located east of the location
where Officer Harris was shot on the north side of the 4900 block of
Walker Armijes vehicle is 1976 Ford Elite 2dr White over REd in
SUPPlEMENT COMPLZTI CONTINUED
EUPS
57884
--
Homicide
SHIFT DIVISION/ STATIONS
______________
EMPS 48473 HomicideSHIFT DIVISION/STATION
POM NO EC.OOO7
...Id Jn 27 tESS
oo1
OFFENSE CAPITAL MURDER OF POLICE OFFICE4yIoN 4900 Walker
couptiwr Harr is DATE OF OFFENSE 7/13/82
DATE SUPPtEMENT MADE 7/14/82
SHORT FOPU S4DAENr 4FQRMAT1ONCOAO COA1ff COTEO WESS USIW AS TO COACT COANTNO AOOTIONAL tNFOATION OOTIONAi INFORMATION MID/OS wrTNESS/s U$TEC
DATE TIME DATE TiME Oit iiu
RICOVEREOSTOLENvEHIcy
______ MAKE
_______
MODEL
_________ UC.YR.5TATEANO
_________
coNDmoNoFvcHIcLE DAMADED WRECKED BURNED AUOtJPTOFQAMAGE$
__________
STRIPPED UST ITEMS STRIPPED AND THEIR VALUE AT START NARRATiVE I..L.OW
RECOVERY LOCATiON__________________ DIST BEAT__________________
VEN RElEASED
________________ TOWED TO
57884 Homicide
EUPI
_________ SHIRT
_________
DIVISION STATION
48473 HomicideEMF SHIFT DIVISION STATIONS
OSM NO SIC.0007
S...4d JvrN 27 ISSO
OOO24
App
USTON POLICE DEPARTr1
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDEPftNO 42614582
By
__________
PROGRESS OF INVESTiGATION ADOmOMAI INFORMATION ETC
___________________________________
SCENE SUMMARY Côntd.
color bearing Tx license plates .YYN-576 VIN 6C21H174311 The vehicle
was stoooed on the north side of Walker in front of thehouse at 4925
Walker This is the second house east of Edaewood on the north side of
Walker The car was positioned at an anale with the front of the car
gAner1ly tn the west sni the bsek nf the ear generally to the east but
the front of th car was angled inhe ditch on the north side of the
cteet Ihe iar gave the appearance of having been westbound on Walker
an4 swerving nff the road to the north The front of the car was resting
frnt wheel of the car was restia in
a1lrw it-t-h Appriw ft nrirth of the elçe nf Wa1ker The right front
wPie1 was resting nn the grass uct gritith nf th girlewalk running in front
rç j-isc nn ph nnrt1 sine of Jalker The left rear wheel was approx
mor ys- rg wI1 r.ci..ing on the gra
was apprn Ft east of the -on--ete signpost at the
of Walker .anl ilgewrinA
Both of the doors of the veh.c1e were closed with both windows down
The keys were in the ignition arid appeared to be in the off position The
gear Shift lever was in the PARK position and the headlights were on
Oct noted blood en th back of the drivers seat particular around the
SUPPlEMENT COMPLrF CONTINUED
OFFICER .W Holland
OFFICER G.T.Neely
CALLERS NAME _________
PHONE
_________
USTON POLICE DEPARTr.T
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDENTHO 42614582
OFFENSET1T MT1nfl.R PnT.rr FICOCATION 4OO Walker
COUPLAINANTS .T fl I4rrig DATE OFOFFENSE 7/13/82
DATE SUPPLEMENT MADE 7/14/82
SHORT FORJ.1 $.PDLD.ledT PWOPMATION
CONTACTED COMPt.AJNANT CONTAT WITNESS/S u$T LAEU 10 CONTACT COMPLAgNAJTHO ADOmOHAI INFORMATION NO ADOfflONA INFORMATION AND/ON WITNESS/S LiSTED
DATE 11Mrn DATE TiME DATE TIME
RECOVOTOLINVEHICLYA
______
MAKE
_______ MODEL
_________
UC.YR.$TATENO
_________
coNomoNorvsuIc DAMAGED WRECKED SURNED AU0UJTOFDAMAQ$
___________
STRIPPED US ITEMS STRIPPED AND THEIR VALUE AT START OP NARRATIVE ECLOW
RECOVERY LOCATION
___________________
DIET_______________________ SEAT__________________
VEH RELEASED TO __________________TOWED TO
__________________
__________________
Jose Armilos vehicle wag otherwise unremarkable
There were two additional spent cartridge casings found in
SUPPLEMENT COMPLETE CONTINUED
OFFICERI RW.Holland
OFFICER G.T.Neely
________ _______ ____________
CALLERS NAME
_________
__________
PHONE
_________
OOOi
App oo3
PROGRESS OF INVESTIGATION ADDITIONAL INFORMATION ETC
_____________________________________
SCENE SUMMARY Contd
headrest and also blood on the back floorboard behind the drivers seat
There wag also fii.eS cold Lite beers and one cold can of Hawiian
punch in the back seat behind the drivers seat There was an apparent
bullet hole in the front windshield of the car approx in in width
This bullet hole was near the bottom of the windshield located
approx ft in from the passenger side of the windshield and approx
ft down from the top of the windshield There was gouge in the
front dashboard of the car just inside this bullet hole where the bullet
apparently scraped the dashboard after coimng through the windshield
No slugs were found in the vehicle What appeared to be possible point
of bullet impact was noted on the base of the radio antenna mounted on
the passenger side of the car
There was yellow Michelob baseball cap lying on the ground in front
of the left rear wheel There was small childs slip on shoe lying on the
ground near right rear wheel bloody crumpled up paper sack was lying
in the street approx ft away from the back bumper of the car
SUP 57884
Homicide
_________
SHIFT
________
DIVISION STATION
EMPS 48473 SHIFT OIVISION/STATION
Homicide
_________
POPU NO RIC.0007WI J..n 27 1110
DUSTON POLICE DEPART
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDENYNO 42614582
OFFENSE CAPITAL MURDER OF POLICE OFFICEoN 4900 Walker
COMPLAiNANTS .J.D.Harris
SNORT F0U SPOLEM9fT PIFOPMAT1ON
CONTACTED C0AJ4ANT CONTACTED WTTNESSS USTED lAaL1 TO CONTACT COIeJJNANtNO aOOmOt N.FOA11CN NO 1OMAJ INFO4ATION ANWO WrTNESSS USTED
DATET1M DATEITIUE DATE ITIUE
RECOVEREDSTOLENVEHICLIYEAR
______ MAKE
_______
MODEL
_UC.YR.ITATISNO
_________
coNomoNoFvEHIcLz DAMAGED WRECKED BURNED AMOUNTOPDAMAGE$
__________
STRIPPED US ITEMS STRIPPED AND ThEIR VALUE AT START OP NARRATIVE SELOW
RECOVERY LOCATION
__________________ 015 SEAT__________________
yEN RELEASED TO
____________________TOWEOY
____________________
____________________
57884 SHIFT OIVISIONF$TAT1ON Homicide
48473 SHIFT OIVISION/STAflON Homicide
PalM NO ISC.0007
P.id Jn 27 tISO
a-
DATE OF OFFENSE
________________
DATE SUPPLEMENT 7/14/82
BY _
PROGRESS OF INVESTIGATION ADOmONAL INFORMATION ETC
_______________________________________
SCENE SUMMARY Contd
driveway on the north side of Walker east of Arrnijots vehicle Two
9mm spent cartridge casings were lying in the driveway of the house at
4929 Walker near the streets One cartridge casing was approx ft ins
north of the north edge of Walker and approx ft ins east of the west
edge of the driveway The second cartridge casing was approx 10 ft north
of the north edge of Walker lying on the west edge of the driveway The
driveway is composed of shell and is approx ft in width The shells
were approx ft ins apart from one another and the one closest to the
street was approx 53 ft behind east of the back of Arn1os vehicle
hat be1eved to have possibly been dropped by the fleeing su..oects
was found in driveway at the east end of the 4900 block of Walker The
brown felt western hat was found in the driveway of the house at the
northwest corner of Walker at L.enox 4937 Walker The hat was laying in
the middle of the driveway on the east side of the house approx 29 ft
north of the north edge of Walker
Dets are to return to the scene in davliciht hours to search for any
evidence that may have been missed during the nightjme scene investigatior
OFFICER RW.Holland
G.T.Neelv
SUPPLEMENT COMPLETE CONTiNUED
CALLERS NAME
PHONE
App O4
USTON POLICE DEPART IT
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDENT NO 42614582
OFFENSE
CAPITAL MURDER OF POLICE OFFICER 4900 Walker
LOCATION_________________________________
COMPt.AINANT5
J.D.Harris
OATEOFQFFENSE 7/13/82
7/14/82OAT SUPPLEMENT MADE
SHORT FORM SLPPI.94V4T IFORMAnOi
CONTACTED CO47
4A5LE TO CONT4C COANTNO omo RMAnON NO omo ANOR WE3S USTED
DATEtlI.4 DA1E$Ta15 DATE4T5g
RECOVEREDSTOLENVEHICLIyW
______ MAKE
_______
MODEL UCYR.IThTEHO
_________
CONDON OF VEHICLE DAMAGED WRECKED SURNED AMOUNT OF DAMAGE
___________
STRIPPED U$T ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE IELOW
RECOVERY LOCATION 0157 SEAT_________________
VEH EASED TO
____________________TOWED TO
____________________
OFFICERI R.WHolland
OFFICER2 G.T.Neely
________
CALLERS NAME
__________
__________
PHONE
__________
OoO27
PROGRESS OF INVESTIGATION ADOm0NAL INFORMATION ITO
SCENE SUMMARY Contd.
The position of Officer Harris when he fell is unknown to these Dets
as he had been removed from the scene prior to Dets arrival Information
.s that Officer Harris fell to the ground beside his patrol vehicle
immediately after being shot
The position of Jose Armijo the uninvolved citizen after he was
shot is unknown as he also had been removed from the scene prior to the
Dets arrival It is known that Armijo was operating the Ford vehicle when
he was shot
The Complainant in this case Officer J.DHarris was wearing
blue Houstonpoljce Officers uniform at the time of the shootina complet
with badge and identifing patch
It is unknown at this time what the wounded citizen was wearina when
he was shot
The Complainant was identified at the scene by Officers present as wel
as by Polthe Department ID.
--..-.-
SUPPLEMENT COUPLET CONTINUED
57884 HomicideEMPI
_________ SHIFT DIVISION STATION
EMPS
48473 Homicide
SHIFT DIVISION STATION
FORM NO RIC-QC7Rd Jfls 27 IUSO
USTON POLICE DEPARTS
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDENTNO 42614582
oese CAPITAL MURDER OF POLICE 0FFICE.ToN 4900 Walker
COLAffi NTS J.D.Harris DATEOFOFFENSE 7/13/82
DATE SUPPLEMENT MADE 7/14/82
SNORT FORt SI..ENT AFOATJON
CONTACTED CO..AwANT CONTACTED WTNESSIS LiSTED AEU TO CONTACT COI.AJNANtNO ADOmONAL NO ADCmONAL NFOflON OA WmESS
DATE DATE ui DATE
ECOVEAEDSTOLENvEHICLEy
______ MAKE
_______
MODEL
_________ LIC.Y5.$TATEANO
_________
CONDITIONOF VEHICLE DAMAGED WRECKED BURNED AMOUNTOFDAMAGES
__________
1TfiIPED lUST ITEMS STRIPPED AND ThEIR YAW AT START OF NARRATIVE BELOW
RECOVERY LOCATION
__________________ 01ST BEAT__________________
YEN RELEA3ED TO
____________________ TOWED TO
____________________ BY
____________________
EMP 57884 SHIFT DIVISION/STATIONC Homicide
EUPI 48473 SHIFT DIVISION/STATION Homicide
___________
POU NO IC4OO7
27 11101
OOO2S
..-.-
PROGRESS OP INVESTIGATION ADDITIONAL INFORMATION ETC
______________________________________
SCENE SUMMARY Contd
Wounds of Victims
Officer Harr.g sustained three apparent gunshot wounds to the
head during this incident The wounds were oenerally to the left side of
the head For details as to exact location see Dets Slovd aid Roberts
Supplement
Jose Armjjg sustained single aoarent gunshot wound to the back of
the head For details see Det Burmesters suolement
There were no aovarent signs of struacle at the scene
Disorder noted at the scene was as follw
The P-e vehirle nl l1Rpe-t yh4t1e in yille of the inerectic
The large cuddle of blood on tile east side of Edgewood lust north of
Walker
The spent 9mm cartridge casings found at the scene
The bullet holes in the east side of the house at 4919 Walker
Jose Armilos vehicle hieh lied nn jpo iho A-h ..A hn
OFFICERI R.W.Holland
OFFICER2 G.T.Neely
CALLERS NAME
________
PI4ONE
_________
SUPPlEMENT COMPLETE CONTINUED
pp 0066
3USTON POLICE DEPARTS
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDENTNO 42614582
OFFENSE CAPITAL MURDER OF POLICE OFFICE%CATI0N 4900 Walker
COMPLAINANTS JD.Harris DATOPOFFENSE_11l3/82
DATE SUPPLEMENT MADE 7/14/82
SNORT OPU SuPCtDIOdT ORMATION
coHrAcT co..wwr CONTACTED W$$4 .ISTED TO CONTACT COajNNTNO omc PMAON NO orno AflON W55S uS
DATE TIME OATS T1wE TIME
RECOVEREDSTOLENVEHICLIYEAR
_______ MAKE
________
MODEL UC.VR.STATELNO
__________
CONDITIONOF VEHICLE DAMAGED WRECkED IURNED AMOUNTOFOAMAGES
__________
STRIPPED UST ITEMS STRIPPED AND ThEIR VALUE AT START OF NARRATIVE SELOW
RECOVERY LOCATION
__________________ 01$T_______________________ SEAT__________________
yEN RELEASED TO
___________________TOWED
PROGRESS OF INVESTIGATION ADDONAL INFORMATION ET
______________________________________
SCENE SUMMARY Contd
All weapons believed to have been used in this incident have been
recovered AT this time the murder weapon is believed to be BrowninC
HiPower 9mm auto pistol Serf 245PZ87l28 Another suspect weapon
Detonics
.45cal auto combat master pistol Serf CR16126 was also
recovered Officer Harris weapon Colt 357Mag rvo1v.r _erS 21267
has also been recovered
The weather at the time of this incident was hOtr humHM and partly
elcudy having rainel ai arir in 4Pte uning\ 14ghs.$n 4n
the intersection of Wa1kr at F.fIgewro1 fat.r rr as ho smo of s-he
shooting and scene investigation There was sprees- IIgsi- on 5-ho sots-h
side of Waliter nss wee- of ho $nS-o-.orpr n.4 ry IA ft .es- of
s-he 1c rs-c ho.-
----- c-r.vt pç I1I
east of th interstion on s-h north side of Wa1kp- Ther was also
large light on the front of one of s-h honsec on s-he south side of
WAlker near 1-ho iaa-s.4-un J4sjhjl1-$-y as- Ph Po of -ho
T-- .-.
Fire Dept Rescue Truck provided high inl-ensit-y Hght-s\
SUPPLEMENT COMPLETE CONTINUED
EMPS 57884 SHIFT DIVISION /$TATION Homicide
EMFE 48473 SHIFT DIVISIONIITAflONC Homicide
10PM NO PEC-0007
P04_ J. hUe
OO0-
was fair ArPifi4a .AU n5no Fl hl4nöo is-
OFFtCERI RWHolland
orgu. GT.No1v
CALLERS NAME
PHONE
App 00D7
LIP LE rt
tOOOO6
OFFENSE CAPITAL MURDER
STREET LOCATION INFORMATION
NUMBER 4900 NAME-WALNER TYPE- SUiFIX
DATE OF OFFENSE07131$2 DATE OF SLPPLEMENT0721/82
COr1PLCS LASTARMIJO FIRST-JOSE MIDDLEFRANCISCO
LAST
RECOJRED STOLEN VEHICLES INFORMATION
NONE
OFFICERiL.E.WESBER ENPO43133 SHIFTI DIV/STATIONHOiICIDE
SUPPLEMENT NARRATIVE
PROGRESS REPORT072082
DETECTIVE AFTER RECEIvING INFORMATION CONCERNING THE DEATH OF THE COMPL LJNT
TO THE HARRIS COUNTY MORGUE TO VIEW THE AUTOPSY OF TH COIIPL DETECTIVE CONFERR
ED WITH DR rIATTIOLI AD DR ESPINOLA ThE DOCTORS IN CHARGE OF THE AUTOPSY
DETECTIV SAW THAT TH COMPLS HEAD HAD BEEN SHAVED OF ITS HAIR AND THAT THERE
IS AN APPROX SURGICAL SCAR TO THE RIGHT TOP SIDE OF THE COrPLS HEAD
UPON EXAMINING THE COPIPL FURTHCR ALONG WITH DR MATTIOLI DETECTIVE SAW THAT
PORTION OF kE SIULL CBONE AND TISSUE HAD BEEN REMOVED FROM THE AREA OF THE
SURGICAL SCAR THEREFORE ELIMINATING ANY POSSIBLE EVIDENCE SUCH GLASS PARTICLES
DR.IATTIOLI UASA8LE TO DETERMINE HE POSIBLE LOCATION OF THE CONPLS UOUND
ONE OSU WOUND TO THE HEAD AT THE TOP RIGHT SIDE.WOLND APPROX FROM
THE TOP OF THE TIP OF RIGHT EAR AND APPROX RIGHT OF TRE MIOLINt
SURGICAL SCAR TO THE RIGHT OUTSIDE PORTION OF THE RIGHT LEG IT IS
UNNOIJN AT THIS AS TO THr REASON OF THIS SURGICAL SCAR UNTIL HOSPITAL
RECORDS ARE CHECRED. BUT DR.MATTIOLI SPECULATES THAT THE SURGICAL SCAR
IS PROaABLY DE TO THE REMOVAL. OF BLOOD VEIN FROM THC COMPLS LEG BY
DOCTORS DURING SURGERY TO PLACE IN THE COMPLS HEAD
DETECTIVE TOOI PHOTOS OF THE COMPL WHILE AT THE MORGUE
EVIDENCE COLLECTEDzu
ONE VIAL OF 81000 RECEIVED FROM DR MATTIOLI AT THE HARRIS COUNTY r1DGUE
THE BLOOD WAS SUBMITTED TO THE HOUSTON POLICE DEPARTMENT CRIME LAB TO
CHEMIST RIJGER FOR COMPARSION WITH BLOOD STAINED ITEMS RECOVERED FROM THE
SCENE
Ooo15
pp
Ia
JIJSTON POLICE DEPARTMENT PAGE 1.001
OFFENSE REPORT INCIDENT NO 042669492
..u
INCIDENT NO 042ó69482 OFFENSE REPORT PAGE 1.002
DETECTIVE RECEIVED NO HAIR FROII THE COrIFLS HEAD SINCE ALL HIS HAIR HADSEEN SHAVED OFF
INVESTIGATION TO CONTINJE
SUPPLEMENT ENTERED 81 43433
DATE CLEARED 07/43/82
OOO..1
ENO PAGE TWO 10
APP OO9
INCIDENT NO 02667682 CURRENT INFORMATION REPORT PAGE 1.O0
.fl.......fl. ..._..
NO- 03 DISPOSITIONEVIDENCE PROPERTY TAG P400000000 COMPLAINANT NOCl
ITELiYPE8ULjT_.LACKET UCR CLA$jQ0
DESCRIPTIONFOUND AT 915 WUIK BY ANSON TO FIREARMS
RECOVERY OATE07/IN/52 RECOVERY VALUES 0.00
NO OISPOSITIONEVIDENCE PROPERTY TAG P400000000 COMPLAINANT NOCl
ITEM TYPEl..12A WOT1JPJ HULL UCR CLASSDO
C1121J Q.kLQ_L ARM.S LA BY_C NjjS ON
RECOVERY OATE07/13/82 RECOVERY VALUES 0.00
N0 OS oIspQ5rTToNFVInNcE PROPERTY TAB NO0000000 eOMPLINANT MOni
ITEM TYPE3e5 HUij.S UCR CLASSCO
DESCRIPTIONTO FIEARMS LAB BY ANDERSON
RFCOVERY DATE07/1I/A2 PFCOVERYvILUi C_nfl
NO 06 OISPOSITTONEVIDENCE PROPERTY TAG P400000000 COMPLAINANT NOCl
ITrM TTPHPfl HAT RAOtE JINIL 11CR CL
DESCRIPTIONTO CRIME LAB BY_JI SMTTH
RECOVERY OATE07/13/82 RECOVERY VALUES 0.00
NO 07 OISPOSITIONEVIDENCE PROPERTY TAG P400000000 COMPLAINANT NO-Cl
ITEM TYPESCENE PHOTOS UCR CLASSDO
141TR-fl .CI4ULTS
RECOVERY DTEO7/13/82 RECOVERY VALUES 0.00
CB_Disp..os1.UGNrvT PENCE PROPERTY TA_O..flflflflOQ COMPL_Alp1AlLLJOfl1
ITEM TYPEVIDEO OF SCENE UCR CLASSDO
DESCRIPTIONBY BRAOSHAW OF PHOTO LA
REQ.YRY DATE07/13/R2 RECOVERY VAgUES fl_nfl
NO 09 OISPOSITIONEVIOENCC PROPERTY TAG P400000000 COMPLAINANT NOCl
ITEM TYPFTRFPAj.ITFR CIflTwr 11CR CI Acnn
DESCRIPTIONFROM WOSP BY OOLLINS TO CRIME LAB
RECOVERY DATE07113182 RECOVERY VALUES 0.00
NO 10 DISPOSITIONEVIDENCE PROPERTY TAG P400000000 COMPLAINANT NOCl
ITEM TYPEOUCOMPL5 CLOrMf$ UCR CLASSCO
DUcCRTPTIONFRDJja1auLaR0SLOCN TO tRtM tAR
RECOVERY DATE07/13/$2 RECOVERY VALUES 0.00
11 fl1SPOSIS1OrVTflFMCE PROPERTY TAG NQjOflflflD4PI ATMANT MO-ni
ITEM TYPEFIRtD_BULjjSMOGU UCR CLASS00
DESCRIPTIONSHOTGUN_PEjt AND SLUG REC BY B0STOC
QrpvrRY VAt U..S fl.fln
NO 12 OISPOSITIONEVTDENCE PROPERTY TAG P400000000 COMPLAINANT NOCl
Ij1pLL1RfflRULLfT IJCR_CLAcGfln
DESCRIPTIONFROM 9jj RttK SflTO FIREARMS
RECOVER OATE07/l/$2 RECOVERY VALUES 0.00
SgISSSSSSSOISSSSSSI.ISSS.ss$.$...s..
OO-
1071
122 ADOITIOPdAL BULLET STRIKE INTO THE BOTTOM OF THE TREE AT POINT SOUTH OFRIGHI_FOOT OF TI4F COMPL
$23 TO $25 FIRED
.S HULLS II FOUND DURING NIGTH SCENE AND FOUND DURING DAYLIGZARCJfFTtrp Pu RYM_JJwF
WHEN HE FIRED HIS WEAPON AT THE COMPL
311 INCHES WEST OF THE FENCE AND ON LINE WITH THE FRONT OF THE HOUSE
23 J.EE.L.Li NCNL IOJL.CQ2 Nf ii tE D..OSL ND_..IN CLi.Fi.o Ff
25 FEET INCHES FROM CORNER FENCE POST AND 20 INCHES FROM FENCE
_126.AND I2LJIJLLF KE TNT OIJIHIIOL.GL_Ga R.A.GL..P1 Y5j 8LflO 00 WFcBULLET STRIKES WERE FOUND TO BE IN THE FIFTH AND SEVENTH BOARDS FROM THEGROUND THE STRIKE IN THE SEVENTH BOARD IS VISABLE BUT THE ONE IN THEIF IIL.8 PD_i .L....C AL ST Tj JJJ4PIJ_I N_.BOA Ra........J..p L...L.LH3_SLA1CU_F TM
INSIDE OF THIS GARAGE WAS FRUITI.E5THERE BEING MUCH STORED PROPRTY INTHIS GARAGE AND AFTER SEARCH OF 30 MINUTES WERE NOT ABLE TO FIND THE SLUG
128 HPD SHIELD 138 FOUND ANGING ON TREE NEXT GARAGE OUR THE SCENEINVEST TION REGULATION OUSTON LICE DEPT CAP 114 SHIE 131138 WASP0 UN D.JJ
_PN_IklL...SID.L..o
.__1H13_J4AL..flI.NO PP iD_H WE_S FFNIN THIS TION LONG THE WAS DUSTY BUT THE CLO AS RELATIVELYCLEAN ITHIS PD HAT REPORTE STO IN BURG OF M.V 3318 BY OFFICERV_RUSQ4_EaM 7nr ewuijuci cync
$29 AND $30 BLOOD ON THIS SCENE THERE WAS SMALL AMOUNT OF BLOOD FOUND ONTHIS SCENE AND EACH AREA OF BLOOD WAS WHERE UI THE WOUNDED OFFICER WASBC1NG_JRZAtED4...ADJ2 WHERF TJLE_COliPL
OF BLOOD IN RELATION TO EITHER OF THESE PEOPLE IT POSSIBLE THAT OFFICERTREPANGIER MAY HAVE BLED AWAY FROM WHERE HE FELL BUT THE CONDITION OF THE
GROUND 1M0 THr cool TPAFFTr ouYfEy Opsrruprn wHAT MAY 144VF AFFIJ Y4FPr
THERE WERE SIX WEAPONS INVOLVED ON THIS SCENE AND ARE DESCRIBED A5 FOLLOWS
_L19LBR0WNINGHIGH POwFP RLUE STFL SEP I211SPlfl2E THTS YS IMF WEADOM
FOUND EMPTY UNDER LEG OF COMPL$2 .15 DETONICS AUTOMATIC PARKERIZED CHROME FINISH SER ICRIGIZ6 FOUNDOADEDLI1L3._1t0LW POT 1I Tb UflflSF TM tWAMRfj_5fl.t
$3 OFF HAMMER DOWN.357 OFFICER TREPANGIERS WEAPON 5CR 1112121E IALL ROUNDS FIRED
_3S1_P1INO..JLYDLWFP OFFTtFQ MAbQTS WAPMn TM PFIT fF flciri rnWDI
BLUE STEEL SER $21267ELOAOD WITH LIVE ROUNDS
45 COLT SEMIAUTOPIATIC SER 11430167O9OFFICER PALOS WEAPONII.I C4JJ PF MtI tD -- onrDftIrISS_.a Am OFF
--
SCIENTIFIC AIDSjZ_fOJ.jJjjR PfPLF WFRE PRFSFNT ANO ONQ1j O_LXIL TvF cE.ARC.HLSIOR
EVIDENCE IN THIS CASCi
III FIREARMS LABs ANDERSON
121 CRIME LABs SMITH
HEETEP
III PHOTO LAB IPAUSHAy WHO TOOK VTbL_F TwF SCENE
HAIR
OflO9
llpp 0071
INCIDENT NO 0112667682 CURRENT INFORMATION REPORT PAGE 2.012
INCIDENT NO 02667682 CURRENT INFORMATION REPORT PAGE 2.016tLtSAS SSSSS 5555 US
IJ EDWARDS CENTRAL PATROL
THIS OFFICER WAS WITH OFFICER TREPAGNIER WHEN THEY STARTED TO CHECK THE REAR OF91I RuSh O3SLRVED TRrP1NTrR FYfjiJ HflUF Nfl pjç AgJMFN
HEARD GUNSHOTS WAS NOT ABLE TO SEE THE OFFICER OR ANY GUN FLASH AFTER THESHOOTING STOPPED HE WENT AND FOUND OFFICER TRPA6HIR ON THE GROUNUDIO HOTfjRFS WEAPON
$2 61 BRATTON RECRUITING DIVISION
RESPO$DED TO THE SCENE OF THE SHOOTING FROM AN TRA JOB WHYLE IT 5fl7 Pu$K
HEARD SHOTS FROM THE REAR OF 93 RUSK AND RAN TO THE EAST SIDE OF THE YARD AT912 RUSK OBSERVED AN OFFICER WITH SHOTGUN IWILL BE RODRIGUEZ AT THE FENCE
PQSLA O.LWP_DjH E.B.OfjjCLR AT THE CRJf.JJiEJ.QUSE.A.L..B iU
_RE.P_Q TED
THAT THE SUSP BEGAN FIREXNG AT OFFICERS AND THAT FIRE WAS RETURNED AND THE SUSP
HIT AND FELL TO THE GROUND WHEN HE APPROACHED THE SUSP HE FOUND GUN NEXT TO
HIM AND THE BREECH WAS OPEIJ.DTfl NOT FIRED HIS WEAPON
$3 CA DEALEJANORO SOUTHEAST PATROL
TIlE SCENE AFTER THE SHOTS WERE FIRED AND FOuND OMPL ON TIlE R0ukfl AND
HANDCUFFED HIM DID NOT FIRE HIS EAPON
RODGRYGuJE SOIITWVFIST DIYDII
RESPONOED TO THE ORIGINALSI400TING CILL ON WALKER TALKED TO WITH WHO TOLD
HIM THAT THE SUSP LIVED AT 911RU5K HE WENT TO THAT LOCATION WITH SEVERAL1.DFTICfRS AND OFT TOOK HIS SI4OTGIJN WITH HIM AcJ1.LCONDUCTTNG THE SEARCH
WITH NEG RESULTS STARTED TO WALK BACK TO WALKER STREET ON HEARING THE GUN
SHOTS FROM THE REAR OF 711 RUSK RAN TO THE SOUTHWEST CORNER OF THE CHAIN LINK
FENCE ON THE EAST SIDE OF THE PROPERTY SOMEONE SHINED FLISHI TRIll ON THE
SUSP WHO WAS ON THE EAST SIDE OF THE HOUSE AND SAW HIM WITH PISTOL IN HAND
AND HE FIRED HIS SHOTGUN FOUR TIMES AND SAW NIH FALL TO THE GROUND
US ANTONIO PALOS II CENTRAL PATROL
WAS ON RUSK AND HEARD SHOTS FROM THE REAR OF q911 RUSK WENT TO THE SOUTHEAST
_QNER OF THE RESIDENCE AND OBSERVED THE SUSP OW Twr slnr nr Tiic wiiutr rtj
AT OFFICERS OFFICER PALOS THEN FIRED TIMES AT THE COMPL WITH HIS q5
$6 KD TEMPLETON CENTRAL PATROL
ON FEARING THE GUNSHOTS FROM THE REAR OF 911 RUSK WENT TO THE SOUTHEAST
CORNER OF THE HOUSE ANO SAW LATIN MALE IN THE DARK CLOTHING COMING TOWARD HIM
THIS LATIN MALE BEGAN TO FIRE HIS GUN AND TOOK rOVER REWIND SOME TREES STATED
THAT HE DID NOT RETURN THE FIRE OF THE COMPL USED HIS FLASHLIGHTS TO LIGHT UP
THE COMPL FOR OTHER OFFICERS WHO FIRED AT THE CONPL SAW THE COMPL FALL AND
THEN HANDCUFFeD
$7 TG WILSON O.A OFFICE
ON Tit .SNE AFTER THE SHOOTING AND PARTICIPaTEn IN TIlE ARREST Ar TIlE MO
SUSP IN THE MUROER OF OFFICER HARRIS
CIVILIAN WTTNS TO THE ACTUAL SHOOTINjlEj ON RUjLjJ.RET OFT
ST JOHN TALKED TO SEVERAL WHO WERE ACROSS THE STREET AT NI6 AND 916 1/2 RUSK
AND WHO REPORT SEEING THE OFFICERS ARRIVE AND THEN HEARING GUNSHOTS FROM THE
_Afl.QF THE HQjJ5E_.AT 911 RUSK AND THEN_.hwFFIctRs R.EIURN_EJP TO THE..fiEAR OF
OoO3
App X72
.-.--
-.-.-.___-
r.
THE HOUSE THESE WITNS SPEAK ONLY SPANISH AND THEIR INTEVIEW AS RECORDED BY
INCIDENT NO 0426676B2 CURRENT INFORMATION REPORT PAGE 2.017
ST .JOHN AND INTERPERTEO BY HPD OFICER ROBENETTE SEE SUPPLEMENT BY ST JOHNFOR FULL DETAILS
INTERROGATION OF SUSPECTS
THIS COMPL WAS ONE OF TWO SUSPS IN THE MURDER OF POLICE OFFICER WHO WAS KILLED
_tiX_SIPFFT OVF
RICARDO ALDAPE GUERRA LAM 1.13/62 4911 RUSK
_J1415 ISTH_2NDlJSP NYOLVEO TN TUF MURDFR OF TMF POLTCF OE.EFp ON WAEKfP
GUERRA WAS ARRESTEO IN THE REAR OF 1.911 RUSK HIDING BEHIND HORSE TRAILER AFTER
THE SHOOTING OF OFFICER TREPAGNIER AND THE DEATH OF THE COMPL
GUERRA MADE AN ORAL STATEMENT WHICH WAS REDUCED TO WRITTING ON COFESSION FORMBUT AFTER IT WAS TYPED GUERRA REFUSED TO SIGN IT
BRIEF DETAILS OF THE STATEMENT BY GUERRA
WITH WITH THIS COMPL WEDO WHEN STOPPED BY THE OFFICER ON WALKER STREET SAW
_LWLCO_.S..0OTIN Tl æFY4rD i1 TTN Jf1 TM 1115 GU.N AMt THEII f14Y.3ftYw
RAN OFF ADMITS TO FIRCING HIS PISTOL IN THE AIR COUPLE OF TIMES AS HE RANFROM THE SCENE
WAS HIDING IN THE REAR OF 1.911 RUSK IN THE HORSE TRAILER WHEN HE SAW FLASH
LIGHT AND FIGURED IT WAS OFFICERS STATED THAT WEDO WAS HIDIN6 IN THE GARAGE
_jJW_IIIjjJ4FHFARO SFVFRII SHOTS AkO FTIJR.D...JT WFfO AW.flTHF P01 YrF wror
SHOOTING AT EACH OTHER REMAINED WHERE HE WAS UNTIL OTHER OFFICERS ARRIVED AND
THEN HE WAS SEEN BY OTHER OFFICERS AND HE WAS ARRESTED MAINTAINS THAT lIE DID
J1 ST PF FT TN THL.J LCL.YARD
GUERRA WAS SUBSEQUENTLY CHARGED WITH CAPITAL MURDER OF POLICE OFFICER IN THE
N1IflFR OF WPO 0FFTFR Jfl MAPPTS
DISPOSITION
CASE TO BE REFERRED TO GRAND JURY
App
DET DL DOLLINS I.5936 TOOK POSSESSION OF THESE ITEMS
SJJPL.EnEN LEN TXZE..y______
REPORT REVIEWED BYv WEST
COPIES ALSO SENT TO RP1/
DAtE_CLEARED n7IIIa
EMPLOYEE NUMBR..030529
ACTION DUE DATE
NOCOQ3
OF11WSEDLajj_ IJlOTIJft
STREET LOCATION INFORMATION
TYPE SUFFIX
FIRST MIDDLE
FIRST MIDDLE
cnI.I ur..p..
NONE
OFFICERIME ST JOHN EMPI060607 SIIIFT3 DIV/STATIONHOMICIDE
SUPPLEMENT NARRATIVE
UPiLliNT_DATrn 7/14/12
THIS CASE IS RELATED TO THE ATTEMPT CAPITAL MURDER OF POLICE OFFICER CASE1.5.2.661382 15FF OThER RFPORT
THIS DATE OCT ST JOHN WAS ASSIGNED THE DUTY OF INTERVIEWING VARIOUS0I.ENILAj..1INS IN T14E NEWpRMppfl flF THE 4fl.OCX.oc RU3K STRFFT bETST JOHN ARRIVED AT THE SCENE WITH DETS KENT AND WALTMON AND CONTINUED THEINVESTIGATION ALREADY BEGUN BY DETS BOSTOCK AND WEST
DET ST JOHN OBTAINED MINICASSETTE fiECORDER FROM ASSIST O.A WILSON ANDALONG WITH OFFICER ROBIWETTE 165656 UNIT 229 BEGAN INTERVIEWING THEWIINL_IN_tME RrSIDrNtr OF 4911 RIJSt NOY OF THF
____ ______ENGLISH AND SO OFFICE ROBINETTE SERVED AS THE INTERPRETER OURING THE INTERyIES
I.L_JLL.0KLNGsr Al NTTNS LYVE AT 9t1 RUK AN...WLRLJREFNT AT 7487LOCATION ASLEEP WHEN THE SHOOTING OCCURRED IN THEIR BACKYARD ALL SIXPERSONS WERE INTERVIEWED IN SPANISH KO THEIR RESULTING CONVERSATION WASLAP..LD_fiY TWF 5SSrTTr ANO THE tAS4rYT T1rn AAy ALI PrDcjpWERE ADVISED THAT THEY WERE BEING TAPED AND ALL CONSENTED THE WITHS ARC ASFOLLOWS
0O026
App I74
INCIDENT NO 042667682 CURRENT INFCRMATION REPORT PAGE 2.020
-1
NUMBER 4911 NAMERUSK
DAT..JFQFFCN07/ 13182
COMPLISI LAST-VEDO
LAST
Ill ANADA ARTEAGA ANGuIAN0 LAM4Z 4911 RUSK 0086/1841 HOME 19255163TOL 11037902
4911 111 JJ0u.gist II TEE131 RMA TREVINO AN6UIAN0 LAFI4 491 RUSK 005 12/22/67 IOAUGTHERI141 HECTOR TREVINO ANGUZANO LAMI9 4912 RUSK 008 5/12/62 ISONISI AMADA ANGUIANO L1c 4911 RUSK 005 2/21/72 ICAUGIHERI
INCIDENT NO 042667652 CURRENT INFORMATION REPORT PAGE 2.0215S$$SSSSSSSss$S$$.$$..SStSSS$SSssp..
TRANQUILINO ANGUXANO LAMB 4911 RUSK SON
ALL OF THE ABOVE WITNS STATED THAT THEY WERE AWAKENED BY THE SHOTS AND POLICE
SURROUNDING THEIR HOUSE SHINNING FLASHLIGHTS NONE or THESE WITNS ACTUALLY
SAW THE SHOOTING AND NONE OF THEM KNEE WHO FIRED FIRST OR HOW MANY TIMES
SEVERAL OF THESE WITHS STATED THAT THEY KNEW THE MAN NEYT DnnQ iwn ATfl THAI
THEY WERE TROUBLEMAKERS AND WERE ALWAYS SHOOTING THEIR GUNS THESE WITNS ARE
ON SIDE OF THE CASSETTE TAPE ANO AT THE BEGINNING OF THE TAPE NONE OF
THESE WITNS WERE BROUGHT DOWN TO THE HOMICIDE OFFICE FOR STATEMENTS
THE NEXT GROUP OF WITNS To BE INTERVIEW LIVED ACROSS THE STREET FROM 4931 RUSK
THE SHOOTING OCCURRED AND THEY HAD WITNS PART OF THE TNrTnrwT pwF
AGAIN MOST OF THESE IITNS WERE INTERVIEWED IN SPANISH AND THEIR CONVERSATION
IS ON SIDE A5 AND OF THE CASSETTE TAPE THESE WITNS WERE ALSO ADVISED
THAT THE CONVERSATION WOULD RE TAPED AND ALL CONSFNTEfl TIiF wTwS Af AS
FOLLOWS
II NARCISO GONZALES 1AM34 4916 PUSK 008 3/21/46 TDL 105644722 H1M9261992
NO ORK PHONE
21 MARYLOU GONZALES LAF36 4916 RUSK 008 10/3/46 HI9261992 WI UNKNWON AT
ASSOC BLOB SERVICE WIFEl
bINAH GONPALFS LAF wc pusx non icg wIpig4 w.g1inc
DAUGTHZR
III CARLOS GONZALES LA$14 4916 RUSK 008 10/23/67 ISONI
SI JE.S.U..J0N2A1rc LAM7 491h DUck fl0R2 117175 cnwi
61 LINDA MARIE PEDROSA LAF21 4916 1/2 RUSK 008 6/16/63 HI NONE II NONE
TRANQUILINO ARTEAGA ANGUIANO LA134 4916 3/2 RUSK 008 9/23/45 HI NONE
WI UNKIJWON VEt COkS1RutTTON IBEECHNUTI IROYFRIENOI
ALL OF THESE WXTNS WERE ON THE PORCH OF THE 4936 RUSM RESTOENCE WHEN THE
_SHQI1PtG..Q.CCuRRED MOST WITMS SPOKE SPANISH DuRTNG TYHE TIE1TrW co
TRANSLATION OF THE CASSETTE TAPE WILL BC NECESSARY FOR FULL DETAILS OF THE
INTERVIEW THE ESSENCE OF THE INTERVIEW AS THAT THE WITHS WERE ON THE PORCH
.Lfl_sAw THE POLItE CARS DRIVE UP TO 4011 1.15K IACPOSc THE STREET AND ONE
OFFICER GO TO THE DOOR WHILE SEVERAL OTHERS WERE ALONG THE SIDES TO THE HOUSE
.iEM.ERtLJF THE WTTNS STATED THAT THEY HEARD SFVFRL I1flYS lONE WTTN STATED ii
COME FROM THE REAR OF THE HOUSE THEY ALL SOUNDED LIKE THEY WERE FROM THE SAMEGUN THEN THE WITHS STATED THAT THE OFFICERS BEGAN TO RETURN FIRE DIRECTING
THEIR FIRE TOARflc THE rip or wr wn.icr THE WITH STATED Twit THE
STOPPED WHEN ONE OFFICER YELLED TO STOP ALL FIRE THAT AN OFFICER HAD BEEN SHOT
THE WTNS STATED THAT THEY COULONT SEE THE OFFICER SHOT OR THE SUSP BUT THEY
_K1tLjHA1_BflLH.LDJFrw 5W0T NONE DE THE W75 STATED j1klFY4_ANyflJlE DIIW
FROP THE SCENE ALL WITNS STATED THAT THEY INITIALLY HEARD FEW SHOTS FROM
THE SAME WEAPON AND THEN THE MASSIVE SHOOTING FROM THE OFFICERS NONE OF THESE
_IIHS_KNEW_T.$c SIJSPS RYNF OR Afl wrADn AHY_TMTHl ARDu._JFU All TTwc wERE
COOPERATIVE AND KNEW THAT THEY WERE BEING TAPED
._.0LT_SS_.4CW AND OFETtER ROITMETYF TwrNNntNrn nil SEuDAI nrwr nnns TN IN
EFFORT TO FIND ANT OTHER WITNS
_D11._SP.0KE WITH ANflA tUNA AFI floli 5/IlL Rjj.Jj$071fl79 AND
THIS WITN STATED THAT SHE WAS ALONE AT THE RESIDENCE AND HEARO SOME SHOTS BUT
NEWER SAW ANYTHING OR ANYONE SHE STATED THAT SHE WAS TOO SCARED TO LOOK OUT
OF
OUS
App
OCT SPOKE WITH GRACE MAClAS LAF3O .008 5/2/52 HI NONE WI NONE AT 4919 RUSK
OCT ALSO CHECKED ALL OTHER RESIDENCES ON THE BLOCK AND THEY WERE EITHER VACANTOR NO ANSWER AT THE DOOR OCT WAS UNABLE TO FIND ANY OTHER WI.TNS AT THEIRO1LES
OCT HAD RECEIVED INFORMATION AT THE SCENE THAT POTENTIAL WITH LIVED AT 7351StfiULL..y KNflCKED TNt 000R OFT RFCTFVFO NO
IS APPROX TWO BLOCK AWAY FROM THE SHOOTING AND IT IS UNKNVON IF THE WITH LIVESTHERE OR NOT OCT HAD NO NAME FOR THIS POTENTIAL WITNS
OCT ST JOHN AND OFFICER ROB1NETTE ALSC LOCATED FOUR LAMS WALKING OOWN THE 9OOBLOCK OF RUSK AND WE LEARNED THAT THESE MALES LIVED AT THE HOUSE NEXT TO sgIR..USLLNO....E.W_9ILE OF THE ucpc THEsE VITNS t.yr AT 1907 Ru5ci ARE icFOLLOWS
III ENRIQUE TORRCS I.AMZD DOB 7/1/62 9O7 RUSK NO PHONES
L1_JDBER.10..flNflt9r1 15N711 flflR /7Al lQf7 Ptsv.....Np DuflNr531 JOSE LOIS TORRES LAM22 008 8/25/60 9o7 PUSK NO PHONESIN JO5EMAN BARROCIO LAN19 DOB 6/1.1/63 1907 RUSK NO PHONESJ
ALL OF THESE WXTNS STATEO THAT THEY J.IVE AT THE RESIDENCE NEXT TO WHERE THESHOOTING OCCURRED BUT THAT NONE OF THEM WERE HOME AT THE TINE OF THE SHOOTINGU.IT.NS_ERtKptJyf TO tHETLfihI r37Qppçn OFIS kMO_1NLE1fEn TNSPANISH THESE WITH WERE SHOWN PHOTO OF THE COMPL AND THEY RECOGNIZED 141w ASFRIEND OF THE OTHER SUSP TMRICARCO ALOAPE THEY STATED THAT THE COMPL WASLI TJjLJII. 7y UN
TIlE WTTN rIIcIr nr RFI .tco Ti.r C1I IRTUf----
WHEN HE LEFT THE RESIDENCE AT 1907 RUSK THE SUS RICAROO ALDAPE AND THE COMPLWERE STILL AT THE HOUSE AND WERE DRIVING THE SUSPS VEHICLE BLACK BUICK REGALLQtCLS_J.I.gR THE WITN HEARD THE SHO.A SO
ALOAPE AND THE COMPL WERE PROBABLY THE SUSPS IN THE CASE WITN TORRES STATEDTHAT RICARDO ALOAPE HAD BROUGHT THE SUSPS VEHICLE FROM JACINTO LOPEZ ANDLTOJJJ4 HE 0TDNJçJW THE AODRf% NE IlL SOW nETS NWERF IT wac TIijt WTTkwAS BROUGHT TO THE HOMICIDE OFFICE TO MAKE STATEMENT TO THE ABOVE
ONL_DT_IHLSE WTTPIS TATEO THAT THEY SAW THE
THEY WERE NOT TAPED
O_OTHf1fllSLc 1TFO AT THIS TINE THE rlcccyr T1.pONTATNT_1wEONVERSATION OF THE ABOVE WITHS WILl BE TA6GCO ALONG WITH THE OTHER EVIDENCE OF
r145 CASE REFER TO EVIDENCE DISPOSITION UNDER THIS CASE NUMBER FOR DETAILS
U1.EjLJj4LEREO BY 60607
PORT REVIEwED BYV WEST EMPLOYEE NUM8ER030529oPis ALSO SENT TO RPI/ ACTION OUt DATEATE_CLCAED 07113/62
OflOAG9
4pp 7b
as as sass as sIsal. .ssW.a5555511.555 aa.saa_W.a...sa.aasa....5 sass asINCIDENT NO 0i12667682 CURRENT INFORMATION REPORT PAGE 2.022
_S ass as ss. aaassm
s_s sa t3 S6s_ S5.I55
AND SHE STATED THAT SHE NADNT HEARD ANYTHING ALL NIGHT THIS WITH WAS ALSO BYHERSELF AT THE HOUSE
sss.ss.s.s.s...e.ss.ss.s.s..sa.sINCIDENT NO 04266762 CURRENT iNFORMATION REPORT
PAGE 2.025
DEAD MAN ISHOOTIN
STREET LOCATION INFORMATIONi4U1
DATE OF OFFENSE..07jI2
DATE OF SUPPLEMENT..07/ZO2
COMPLfSI LAST.-VEOO
FIRST MIDOLE
RECOVERED STOLEN VEHICLES INFORMATION
NONE
QFEIC
OFFICER2CW KENT EMPu02778 SHIFT3
VF
SUPPLEMENT DATED 7/24/82
MORGUE INVESTIGATION CONTINUED
TION MADE OUT
AROUND GUNSHOT WOUND AND FOREIGN PATERIAL ON/IN BODY ALSO FINGERNAIL SCRAPINGSTHERE WAS HOMICIDE AUTOY REQUEST FORM MADE OUT ON THE UNKN SUSP WHO WAS SHOT
BY OFFICR5 REQUEST WERE MADE FCR TRACE METAL TET CLOSE UP PHOTOS OF WOUNDS
LIN GERfI
_CLD
DJA1L.5GUNSHOT WOUNDS FOREIGN MATERIAL ON/IN BODY ANO FINGERNAIL SCRAPINGS
OFF1eFSWOUND TO THE RIGHT SIDE OF THE READ AND THREE EXIT WOUNDS TO THE LEFT SIDE OF
r-NT-UNOT WOUND TO THE LZFT
WAS 3/q UP FROM THE
LEFT EAR AND 2/2 AROUND FROM FRONT CENTER LINE OF HEAD-llJ__E1TRIL..GUN5QJ47Ij0 THE LEFT LTRJ
.J$ Fjpp THFLEFT BOTTOM OF CAR AND 3/q FROM CENTER LINE OF FACEIi ENTRY GUNSHOT WOUND TO LEFT LATERIAL SIDE OF CHIN AREA WHICH WAS 2/2 LEFT__OLCLT1R_LINHIN EXIT WOUND TO THE RIGHT LATERIAL SIDE OF HEAD AND NECK AREA WHICH WAS 1/2TO THE REAR AND IN LINE WITH THE IOTTON RIGHT EAR LOBELçp HFAD APJfl cx1/2 DOWN AND IN LINE WITH RIGHT EAR LOSE16 EXIT WOUND To
LATERIAL SIDE OF LOWER HEAD AND NECK AREA 214
ALL THREE
UNKNOWN SUSPECT
AND THRU TYPE WOUNDS TO THE HEAD AREA
II ENTRY TYPE GUNSHOT WOUND TO THE RIGHT LATERAL SIDE OF THE HEAD WHICH WAS
TH RI FAR
I- f%nf-Mr
.i.
App Oi77
INCIDENT wo 042667682 CURRENT INFORMATION REPORT PAGE 2.032S. SSSssg_s 3_ss$ss
.._
THIS OCT CONTACTED HEPMANN HOSPITAL ON 7/16/82 AND REQUESTED THAT HPO OFFICERS
WORKING SECURITY THERE CHECK WITH THE NURSE ATTENDING OFICER TREPAGNIER TO
JC.IE.Rh1.NE1L1..TQitn PoclTPiF TO Tiix WITH HIM
.LFp HALl tAt Fb in
REl ATE THAT IT WOULD BE POSSIBLE AND PROVIDED ME WITH THE NAME OF THE NURSE
MS CASIMANO 17972765 CALLED THIS NURSE AND SHE RELATED THAT SHE HAD TOLD
FF1CER .1.RLPA5.IE Lilt fl FT YEn
_______
HE DID NOT WANT TO TALK TODAY DID NOT FEEL LIKE DOING SO THIS OET THEN LEFT
WORD THAT WHEN HE 010 FELL LIKE TALKING TO HAVE SOMEONE CALL THIS OFFICE AND
JALJ4L..iOill..D.J.1w COME RY AND TALK TO HIM
THIS DATE SATURDAY JULY 27 2982 CALLED MS TREPAGNIER AND ADVISED HER
JA.LEDEDJ0_IAL1L TO HF LJjAN L..AkD_SliL SlAif 1iAL..wHEJ SHE
_____
HOSPITAL TODAY THAT SHE WOULD TALK TO HIM AND IF HE FELT LIKE TALKING WOULD CALL
ME BACK IN HOMICIDE
WHILE WAS OUT OF THE OFFICE AN ATTORNEY CALLED TO SAY THAT HE WAS
REPRESENTING OFFICER TREPAGNIER AND REQUESTED THAT WE NOT TALK TO HIM FOR
SfYtRAL MflF flAYS IJNTTI TilE ftCtffR SAyS THAT IT IS OK Tfl On cn
MS TREPAGNIER RELATED THAT HER HUSBAND HAD BEEN MOVED THIS DATE TO ROOM A1S797Alt
SUPPLEMENT ENTERED BY 30529
.MPORL.RLII.EWFO RYV WEST FMPI nyr N1J3ERflncc
COPIES ALSO SENT TO RPI/ ACTION DUE DATE
DATE CLEARED 07/13/82
MOOpt
OFFNS EAQ MAN ISHOOTINGI
STDFFT IneATInIJ TIJFflQMATTOM
NUMBER 4911 NAMERUSK TYPE SUFFIX
DATE OF OFFENSC07/13/82 DATE OF SUPPLEMCNTO7/20/82
flPLlcI LASJFIPES FTPSTRORFRTO MTOLItAPRASCO
LAST FIRST MIDDLE
RECOVERED STOLEN VEHICLES INFORMATION
NE
OFFICER1LE lBBCR EMPI03133 SHIFTI DIV/STATIONHOMICIDE
SLIPPI ENFIIT NAPDATTvF
SUPPLEMENT DATED 7/20/82
PROGRESS REPORTs
ON THIS DATE AT NzNSPN OCT RECEIVED CALL FROM CECIL WINGO OF THE HARRIS
..LOUMTY ORSliF WYTII TOPMATTOM Till THE DEAD cusp tw THE SHOOT OFFYtEP
TRCPAGNXER INC 1N26673$2 HAS SEEN IDENTIFIED CECIL WINGO STATED THAT THE
SLISPS WAS IDENTIFIED FROM FINGERPRINTS THAT WERE SENT OFF TO OPS LATENT
1E.LNTS TN AUSTIN THE DEAD MAN WAS IOENI.i.fjEfl FROM PRINTS AS REIN 2tt
ROBERTO CARRASCO FLORES LAM DOS 11/27/SN TDL IOSBONO13 LAST KNOWN ADDRESS
310 S.E ATH AVE PERRYTON TEXAS 79070 CECIL W1NGO ALSO ADVISED OCT THAT THE
D1DJtAN_SHOWS ONE ARREST WITH THE PERRYTON POLICE DEPT ON R121e/79 FflR_.PIJRLIC
INTOXICATION
f4pp u78
--
UFT AFTER PECFTVTNI THIS TNFORMATTON tAUn TuE PFPRyTO pnlTtE PET AT AREA tOtE
OCT 1E88R ARRANGED FOR ALFPEDO MALOONADO TO TAKE POLYGRAPH IN REGARDS TOHIS STATEMENT THIS WAS DONE ON 11752 AND THE RESULTS WERE THAT MALOONADO
...WA TEjIj THE TRUTH TN Nrc STATEMENT UTTII REIRDS TO Al Fl
ADDITIONAL INVESTIGATTON BY nT WEPREP WITH DFRARflc TO 11.115 nrp rnNpl
OCT WEBBER RECEIVED INFORMATION FROM IT CP8ELL OF PRCT SM CONSTABLEOFFICE THAT THAT OFFICE HAD SHOWN PHOTO LTkEUP TO WITHEcSES TN TH1 COUNTYROBBERY AND THAT THEY HAD MADE POSITIVE ID OF ROBERTO FLaRES AS ONE OF THEPEOPLE INVOLVED IN THAT ROBBERY BUT THAT THEY WERE UNSURE ON GUERRA
IN ADDITION PRINTS WERE GIVEN TO OCT WBBER BY IT CAMPBELL FROM THE SAMEROBBERY WHERE FLaRES WAS ID THESE PRINTS WERE TAKEN BY WEBBER TO LATENTPRINTS ANDCjIECMED BY COOPER ONE OF THE SUEMTTTED PRINTS lAS FOUND TOBE THAT OF THE ARRESTED SUSPECT RICARCO ALOAPE GUERRA
SUPPLEMENT ENTERED BY 30529
...1EPRJ_JjyjEWEO BYV WST EMPLOYEE NLLNBERO0c29
COPIES ALSO SEIT TO RP2/ ACTION DUE DATEDATE CLEARED 07/13/52
OFFENSE DEAD MAN ISHOOTING
_____________________
SIDE lAtæu
NUMBER Mcli NAMERUSH TYPE SUFFIXDATE OF OFFENSZ071352 DATE OF SUPPLEMNT07/2q/52
CQJ.PLISI LASTELOPES FYRSTRORERTO M1flDLECtRP.Cn
LAST FIRST MIDDLE
RECOVERED STOLEN VEHICLES INFORMATIONwnwr
OFFICER1v WEST EMPI030529 SHIFTi DIV/$TATION-HOpjj
SIIPPLFWEWY NARRITTVF
IDENTIFICATION OF ROBERTO FLORES aWEDO AS ROBBERY SUSPECTCASF f.A.5 QO PTcSOInjFTT
THIS OCT WENT TO THE NONE OF THE CORPL IN THIS CASE JIM KOSMERL AND HADOr RHO TO OF FL OPESMR KOSMERL MACE AN IMMEDIATE IDENTIFICATION OF FLORES AS THE MAN WHO
RCBeED HIM AT GUN POINT ON 62M12 IT 3M00 BTSSONNCTT IN WHICH HE LOST
.1.SCAa...CRI.DIT CARDS AND OTHER PAPERS AND CASH
IT WAS JIM KOSMERLS DRIVERS LICENSE WHICH WAS TN THE POCKET OF FLORES WHEN
ooo
AS 555 555
...
.W
INCIDENT NO DM2667682 CURRENT INFORMATION REPORT PAGE 2.039
_S.$j5.$$55
pp o79
jjSSS.SSSSM$SS$SS S$U4ssu.as
NCIOENT NO ON261482 CURRENT INFORMATION REPORT PAGE 2.C31
.TMeRNO.HPD CENTRAL PATROL PR 170319
OFFIeEP ORENQ WAS RIDING UNIT 121 WITH OFFICER P.R PLJ1H WHEN VOICE
iTäERrI.fC POLICE PAOIO ADVISING THE POLICE DI SPATCHER THAT AN OFF CER wAS.4
OiN MOPENO STATES THAT THEY ARRIVED MINUTE LATER .JUST BEHIND UNIT lANjd
ND SAW THAT AN OFFICER LYING SHOT NEXT TO AN UNMARKED POLICE UNIT OFFICER
ORNO STATES THAT FEW MINUTES LATER LAM CAME RUNNING UP SCREAMING AND
OINTINC EAST ON WALKER AND STATING THAT THE SuSPS HAD RUN IN THE DIRECTION
iE WAS POINTING OFFICER MORENO STATES THAT SHE GOT BRIEF DESCRIPTION OF
THE SUSPS AND STARTED TO COMB THE NEIGI4BORH000 FOR THE SUSPS OFFICER
ORENO AND HER PARTNER APPREHENDED THE SUSP AFTER THEY HAD OBSERVED THE SUSP
RUNNING BETWEEN SOME HOUSES ON LEP4OX_AND TEXAS ACCORDING TO OFFICER MORENO
TilE SUSP WAS EXTREMELY NERVOUS AND SWEATY THE SUSP WAS LATER TRANSPORTED TO
THE HOMICIDE OFFICE WHERE HE WAS INTERVIEWED BY OCTS IN THE CHICANO SCUAO
THE SUSR WAS ALSO PLACED IN SHOWUP WITH THE ARRESTED RICARDO ALDAPE GUERPA
Ai.EiCHEZiAS NOT IDENTIFIED AS SuSP IN THE SHOOTING OF OFFICER HARRIS
3FFTCEP MORENO AND HER PARTNER LATER FILED CHARGE OF EVADING ARRET5 ON ALEXSfZ_ cHAPGES HPD INCIDENT 1N267O152
OFFICER PR RUTH CENTRAL PATROL PRIT67AA
OFFICER WAS RIDING WITH OFFICEP MORENO AT THE TIME THE CALL WAS RECEIVED
VIA POLICE PADIO THAT AN OFFICER WAS DOWN IN THE W900 BLOCK OF WALKER OFFICER
RUTHS STATEMENT IS BASICALLY THE SAME AS HIS PARTNER HOWEVER OFFICER RUTH 010
STATE THAT AT THE TIMC THEY ARRESTED ALEX SANCHEZ SANCHEZ WAS WEARING PINK
COLORED SHIRT AND BROWN PANTS
__________________
SOUTHEAST DIVITöii1c
OFFICER WOPTON A5 RIDING UNIT 12D23 WITH OFFICER CLARK AT THE TIME THE
CALL WENTCUT VIA PCLICE RADIO THAT ATFICEP WAS SHOT ON WALKER STREET
OFFICER WORTON STATES THAT THEY WERE AbOUT TO GET IN SERVICE AFTER RUNNING
SHOOTING AMBULANCE CALL AT CEVETERY IN THE 200 BLOCK OF LATHAM OFFICER_
WORTON STATES THAT AN AMBULANCE UNIT WAS WITH THEM AT THAT TIME AND THAT THE
SHOOTING CALL TURNED OUT TO BE UNFOUNDE AFTER THE CALL WENT OUT THAT AN
OFFICER WAS SHOT WORTOPd STATES THAT HE STOPPED THE AMBULANCE UNIT AND TOLD
THt PARAMEDICS TO FOLLOW lIEN TO SHböTINj WHERE AN OFFICER WAS DOWN
OFFICER WORTON STATES THAT WHEN THEY ARRIVED AT THE SCENE ON WALKER HE SAW
OFFICER HARRIS LYING NEXT TO HIS PATROL UP4IT ON THE PAVEMENT AND IT APPEARED
THAT OFFICEP HARRIS HAD BEEN SHOT IN THE HEAD SINCE THERE WAS LARGE POOL OP
BLOOD AROUND THE OFFICERS HEAD
FPTrFR tARK SOUTHEAST PATROL HPO PRUAOSGS
OFFICER CLARK WAS PAIRED UP WITH OFICERWORTON OFFICER CLARK STATES
THIT HE HELPED THE PARAMEDICS LOAD OFFICER HARRIS ON THE STRETCHER AND LATER
SECURED THE SCENE FOR OCTS OFFICER CLARK STATES THAT HE OBSERVED UPON
ARRIVING AT THE SCENE THAT OFFICER HARRIS HOLSTER WAS UNSNAPPED AND THAT
OFFICE HARRIS WEAPON VAS MISSIN7 OFFICER CLARK STATES THAT HE SEARCHED HE
SCENE FOR THE WEAPON AND HE COULD NOT FIND THE WEAPON
HPO CANTRAL PATpOL-PR332j9 --
OFFICER GRANT STATES THAT lIE ARRIVED_AT THE SCENE SHORTLY AFTER THE CALL
CAME ACROSS PCLICE RADIO THAT OFFICER WAS DOWN AT Q900 WALKER OFFICER GRANT
STLTES THAT HE LATEP ARRIVED AT THE SCENE AND AFTER THE WOUNDED OFFICER WAS
31
00032
PP 0080
INCIOCUT NO C4261e582 CURREp INFORMATION REPORT
2.C35ess..
wERE CORING AND RAkING THEIR WAY TO THE AREA HPE THE SHOTSERE CCMING FROM BY THAT TIME MOST CF THE OFFICERS HAD POSITIONED TI.MSELVESAT THE EASTERN FRONT CORNER OF TH HOu AT 4Q11 PUS NEAR TREE AND FENCEON OFFICER WAS HEARD TO SAY THAT THERE HE IS HES GOT GUN AT THAT TIMEANOTHER SHOT CAME FROM THE EAST SIDE OF THE HOuSE AND THE OFFICERS THAT WEREPOSITIONED IN THE AREA RETURNED THE HOSTILE FIRE FROM THE SUSPECT IN THE AREATH SHOOTING CEASED ABOUT 10 TO 15 SECONDSAFTER THE SHOOTING HAD CEASED OFFICER M.R EDWARDS PR P70880 WHO WAS STANDINGON THE LEST SIDE OF THE HOUSE YELLEC UT THAT AN OFFICER WAS DOWN TO THE REIiOF THE HOUSE AT 4911 PIj5 DETECTIVES AND OFFICERS CHECKED AND Si THAT OFYICERL.D TREPAGNIER WAS LYING ON HIS BACK WITH 65W TO THE 3OOMEN AND CHEST THESUSPECT THAT WAS SHOOTING WAS OBSERVED TO BE LYING TO THE EAST SIDE OF THE HOUSEA4O WASThEAD FROM APPARENT GSW TO VARIOUS AREAS OF THE BODY AN AMBULANCE WASCALLED TO THE SCENE FOR THE WOUNDED OFFICER 0tTOTIyF HAD THE SUSps HAQBIOCED ANO HANOCIJEFFO DETECTIVE ALSO NOTICED THAT THERE WAS GUNTHE ROLNO NEYT TO THE OFID SUS TtEGUN APPEARED TO BE BROWNING QMMDETECTIVE PRESERVED THE SCE.E UNTIL HELP ARRIVED
FOR FURTHER DETAILS SEE DETECTIVE WESTS REPORT UNDER INCIDENT 142667382
THE SCENE AT THE RLjSK STREET LOCATION WAS TURNED OVER TO DETECTIVE WEST FORINVESTICATION DETECTIVE RETURNED TO THE SCENE AT 4900 WALKER TO CONTINUETHE INJESTIGATICN THERE
NOTE tA SECOND SUSPECT BY THE NAWE OF RICHAROO ALDAPE GUERQ$ WAS ARE SlEDAT THE SCENE AND LA.TER TRANSPORTED TO THE HOMICIDE OFFICE Fok INTERROGATION SEE DET GITEW000S SUPPLEMENT REGIRDING THE STATEMENT OFTHE SUSPECT RRCSTED AT THE Ru5K STREET SCENE
DETECTIVE UPON ARRIVING BACK AT THE WALKER STREET SCENE INTERVIEWEC THE TWOPARAMEDICS ON AMBULANCE uNIT 1118 THE PARAMEDICS ARE SANCHEZ PRIS 5799AND .J.A ESCOBAD PR6537 BOTH PARAMEDICS STATE THAT WHEN THEY ARRIVEDTHE SCENE THE OFFICER uA5 LYING TO THE LEFT SIDE OF HIS PATPCL UNIT ANC WASiLEDIN PROFUSELY FROMTIE LEFTSOECF THEMEAD AD THE RIGHT SIDE OF THENECK CL_SANCHEZ INEORM tETECTVE TI-AT HE AQTH1EMAN BY THE NAMEOF JEPRy MELCMER TO MOVE THE POLICE OFFICER
.5
-4-LB PRESENT LCCAfTNA_1 THE sç THE PARAMEDICS LATER CAKE TO TW HCMICDE OFFICE AND GAVE WRITTENSTATEMENTS
SUPPLEMENT ENTERED BY 43133REPORT EVIEWEO BYDsF
______
EMPLOYEE NUMBER.057123IT7ACTIONThUE OAT 7/DATE CLEARED 0711382
35
OOO32
App OBi
INCIDENT C261M582 CURRENT INFORMATION REPORT PAGE 2.Ce1
s.s.s$SSSUSs....S.s$ss....S...s....
THESUSPSCLOTIIING wAS RETAINED BY THIS OCT ANt WAS SUBMITTED TO THE IPD CRIME
A3 THE CRIME LAB NUMBER IS LBZSeC6 DET PEOuESTED THAT THE CLOTHING BE
XAHIHED FOR BLOOD AND OTHER FOREIGN EVIDENCE RELEVENT TO THIS CASE ANC
INCIDENT 1442667362
V1OENCE SuBMITTEO
_________________________________________________
GREEN MILITARY FATIGUE LONG SLEEVE JACKET THE RIGHT FRONT BREAST
ROCKET_CONTAINED 5.21 IN CHANGE SIC TYPE CIGARETTE_LIGHTER THAT IS
7EREO WITH i9itvER METAL CASE WITH AN EAGLE ATTACHED AND FOuRTEEN
DOLLARS IN CURRENCY I51s.CO TWO FIVE DOLLAR BILLS AND FOUR ONE DOLLAR
BILLS
PAIR OF SEMIFADED LEVI BLUE JEANS WITH ONE DOLLAR AND THIRTYEIGHT CENTS
IN COINS IN THE RIGHT FRONT POCKET 151.38
PAIR OF w141Tt HIGHTOP TENNIS SIDES ALL STAR BRAND
IR OF wHITE UNDER BRIEFS
PAIR OF hI4ITE CREW SOCKS WIH GREEN STRIPPINGS AT THE TOP
OCTECTIvE ALSO COLLECTED HAIR SAMPLES FROM THE SUSP
THE SUSPECT WAS LATER PLACED IN THE CITY JAIL AT 8CDIM OETS WEBBEP AND
3OSTOCK SPOKE fTM SGT WFAYEP OF THE .AIL DIVISION AND REQUESTED THAT THE
SUSP BE NEPT SEPARATE FROM ILL OTHER PRISONERS
ARRESTEC AND NOT YET CHARGED RICARDO ALDAPE GUERRA LAM/20
911 RUSK Doe 4362
HOLD CARCI SHOWS OCT GTEW000 AND OFFICER
YSARBO AS THE ARRESTiNG OFFICERS
bTE bUAL5O Hö YRIHT BRAST POk TN HEAS WEAR ING
UNITED STATES POSTAL SERVICE MONEY ORDER MADE OUT TO FRANCISCA
LLOAPE IN MONTERREY MEXICO MONEY ORDER 127912975033 FOR THE AMOUNT
OF S3CD.Cd OATED 7ifU PO5 OFFICEi77O111 MAIL TO FRANCISCA
GUERPA CARACAS 4410 VALLE DC VOGALAR SUSPECT LIST AN ADDRESS IN
HOUSTON AS 6617 AVE
____________________________________________
SUPPLEMENT ENTERED BY 413133
REPORT REVIEWED BYDSF EMPLOYEE NUNBRO57123
COPIES ALSOSErT RP1/ ACTION DUE DATE
DATE CLEARED C7113/52
qi
000333
1pp 0082
INCIDENT NO Cu2614582 CURRENT INFORMATION REPORT PAGE 2.CS8
DETECTIVE WHILE IN THE HOMICIDE OFFICE RECEIVED CALL FROM HFD ARSON INVCABQCLLC PHONC_122_23274 IFOR ptTE_CTIvc THAT HE HAD_CONSULTED SEVERALOF HIS CIS IN THE EAST END AND THEY ALL WERE TELLING HIM THAT THE SUSP THAT
wAS SHOT AND K1L.EO BY OFFICERS AT THE PUSK STREET SHOOTOUT WAS FROM ELSALVADOR AND THAT THE_SUSPECT ALCNG WITH THE ARRESTED SUSP WAS PULLING LOTOF ROBBERIES IN THE EAST END AND AROUND THE CITY CABRELLO STATED THAT THECI FURTHER TOLD HIM THAT THE SUSP$ HAD ROBBED STOP GO STORE IN HOUSTONABOUT MONTH AGO AND THAT AN ORIENTAL MALE WAS SHOT_Y THE SUSPS CA8PELLOSTATES THAT THE CI INFORMED HIM THAT THE SUSPS WERE USING 9MM CAPRELLOFURTHER STATES THAT HIS CT RELATED TO HIM THAT THE SUSPS WERE GOING TO GO ANDPULL JOB THE NIGHT OFFICER HARRIS STCPPED THEM CAPRELLO STATED THAT HIS CIDID NOT KNOW WHAT STOP GO THE SUSPS HAD HIJACKED BUT THAT HE WILL KEEP INCONTACT WITH DETECTIVE AS HE RECEIVED INFORMATION FROM HIS CI
DETECTIVE LATER CONFERRED WITH DETECTIVE ROMAN OF THE ROBBERY DIVISION DCIROMAN HAD BEEN ASSIGNED BY HIS LT TO CHECK POPBERY CASES IN HOUSTON WHERE LAMSlAO BEEI INVOLVED A_S USPS DETCTy.C_.ALso ASKED DETECTIVE ROMAN TO CHECK ONTHE STOP GO ROBBERIES SINCE INFORMATION WAS RECEIVED BOUT THE SUSPS BEINGINVOLVED IN STOP GO ROBBERY DETECTIVE ALSO CHECKED THE HOMICIDE MURDER300K AND FOUND NO MURDER CASE INVOLVING LAMS AS SUSPS AND THE COMPL ANORIENTAL
DETECTIVE ALSO CHEcKED WITH THE C9R_PRATE LCSS DIVISION OF STOP GOS727411 DETECTIVE WAS TOLD THAT THE PERSON IN CHARGE OF THIS DIVISICN ISBILL SAUERS AT THE TIME DETECTIvE CALLED BILL SAUEDS WAS NOT IN HISDFFICE DETECTIVE LEFT WORD FOR HIM TO CALL._________
DETECTIVE ALSO CHECKED WITH CRIME ANALYSIS OFFICER C.L TUCKER AT THE PARKLACE SUBSTATION CONCERNING THE INFORMATION ABOUT THE ROBBERY SHOOTING OFORIENTAl AT STOP GO OFFICER TUCKER CHECKED HIS RECORDS AT PARKLACE AND FOUND NO REPORT OF THAI TYP OF OFFENSE OETECTIvE WILL CHECK WITHTHE OTHER CRIME ANALYSIS OFFICERS AT THE OTHER STATIONS
DETECTIVE LATER CONFERRED WITH LATENT PRINT EXAMINER COOPER CONCERNING THERINTS THAI WERE LIFTED FROM OFFICER HARRIS POLICE UNIT AND THE VEHICLE THAT
--THE SUSPS WCRE DRIVING COOPER TNFOPp.EU OFTFCTTVE THaI TwRr WFQF SF
INGEQPPINTS FOUND ON TH PASSENGER SIDE OF THF VFWTfI THAT rwr ic iirDr
DRIVIUG AND THAT TwE PRINTS THAT WERE LIFTED WERE COMPARED TO THOSE OF BOTHUSDS AND THE PRINTS ON TM PASSENGER SIDE OF THE VEHICLE WILL BE THAT OF THEEAQ WAN IStJSP KNOWN AS owrnou COOPQ AL STATrr THAI SMEARED SWEATY PALMRINT AS LIFTED FRCM THE AREA OF THE LEFT FRONT FENDER NEAR THE HOOD OF THEOLICE UNIT COOPER STATED THAT THERE WERE NOT ENOUGH GOOD CHARACTERISTICSRC THF PALM PRTNTS TO MAKE oFFINITE
oPErL5o 5TATETHAT THE PRINTS THAT WERE LIFTED FROM THE TRUNK OF THE POLICE
JNIT WERE THOSE OF OFFICER HARRIS
.ITH THE FINDING OF PRINTS OF THE DEAD MAN SUSPI ON THE PASSENGER SIDE OF THE3USPS VEHICLE WILL GIVE SOME VALIDITY TO THE EYEWITNESS ACCOUNT OF SEVERAL
.ITNESSES STATING THAT THE SUSP THAT WAS DRIVING THE VEHICLE SHOT OFFICERIARRIS
ETECTIVE ALSO CONFERRED WITH PEGGY JM5 OF TUE AUTOMATED FINGERPRINT SYSTEMND SHE INFORMED DETECTIVE THAT SHE HAD RUN BOTH SUSPS FINGERPRINTS ON THE0MRuTER AND THERE WAS NO HIT ON THE FINGERPRINTS
OOO3o
pp o83
ssss.aassss SS$SSSS isass as ss as.. sasas
NCIOENT NO cl.2614582 CURRENT INFORMATION REPORT PAGE 2.065
..sss sass.. sasssssssssssaasaa... ssssssaa.s55 ass as
OR RUNNING RED LIGHT IN PEARLANO AND FOR FAILURE TO APPEIR IN PEARLAND ON1081 DETECTIVE ALSO CHECKED FOP CRIMINAL HISTORY AND WANTED AND FOUND NOCORO ALCON DO LpCNAO WAS ALSO CLEAR WITH THE r.o DIVISION AND
Ilk THE HARRIS coUNTY SHERIFFS OFFICC NO TRAFFIC WARRANTS EITHER DETECTIVE
.ATER CIECKED FOR ANY POSSI9LE POLICE OFFENSE REPORTS UNDER MALDONADOS NAME TOEZ IF HE HAD REPORTED THE WEAPON STOLEN OFAw
FFc.NSE REPORTS FOR AUFREDO MALDONADO DETECTIVE CR155CROSSED THE BLENVIEWDDRESS AND SAW THAT THE RESIDENT THERE HAS PHONE NUMBER OF 6493406 AND ISLL1.LILFMUNOZ qBERANOGOT NOANSWCR
900PM DETECTIVE RECEIVED CALL FROM OFFICER WHEAT OF THE PASADENA POLICEEPRTMtNT DISPATCHERS_OFFICE_INF I.G_OEjjCJ%C A1_THE.MaNAGR OF CARTERS
OUNTRY GUNS IN PASADENA CALLED THE POLICE DEPARTMENT AND REPORTED THAT
iUBJECT BY THE NAME OF MALDONAGO WAS IN THE GUN STORE AND THAT HE WAS WANTED IN
rHE SHOOTING CASE OF OFFICER HARRIS OF THE HOUSTON POLICE DEPARTMENT DETECTIVE
rHEN INFORMED OFFICER WHEAT THAT MALOONADO W5 NOT WANTED BUT THAT WE 00 NEED
TO TALK TO HIM OFFICER WHEAT THEN REPLIED THAT PASADENA UNIT WAS AT THE GUNTOR AND HAD NALDONADO ZN CUSTODY DETECTIVE ASKED OFFICER WHEAT TO HAVE HIS
JNIT TRANSPORT MALOONAGO TO THE PASADENA POLICE STATION AND WILL HAVE
IOUSTON UNIT COME AND PICK HIM UP AS WITNESS
1015PM HRD UNIT 13D41 MANNED BY OFFICEP N.J ROPER PP157729 AND OFFICER4.0 CLIFTON PR176051 ARRIVED IN THE HCMLCIDE OFFICE WITH ALFREOO MALDCNADO JRETECTIVE PLACED MALDONADO IS THE MOSTROSE SQUAD OFFICE WITHIN THE HOMICIDEFFICE AND READ MALDDP4AOO HIS LEGAL RIGHTS FROM THE D.A.S BLUE CARD AT 1025PM
3EFORE DETECTIVE COULD COMPLETE READING MALDO4A00 HIS RIGHTS MALOONADO STARTED
TO TALK ABOUT KNOWING THAT THE MEXXCN HALE WA GOING TO KILL POLICEMANETECTIvC MANAGED TO COMPLETE THE READING AND MALDONADO STATED THAT HE UNDERSTOOD HIS RIGHTS AND WANTED TO TELL WHAT HE KNEW ABOUT THE BPOWNING GUN AFTER
IALOONADO HAD MADE ENTION ABOUT THE BROWNING GUN DETECTIVE THEM ASKEC
IALDONACO HOW HE KNEW ABOUT WHAT WE WANTED TO TALK TO HIM ABOUT AND HE STATED
THAT THE MANAGER AT CARTER COUNTRY WAS TELLING THE PASADENA OFFICER WHY HE HAD
ALLED THE POLICE
MALDONAOO WAS ASKED TO GIVE STATEMENT ABOUT THE BROWNING WEAPON THAT HE
URCHASED ON 61982
_____ _______
MOTE ALFREDO MALOONADO INFORMED DETECTIVE THAT HIS WIFE WAS WITH HIM AT THE
TIME HE PURCHASED THE GUN AT CARTERS COUNTRY LAURA MALDONADO LATER
CALLED THE HOMICIDE OFFICE TO CHECK ON ALFREDO AND DETECTIVE INFORMED
HER THAT STATEMENT WAS NEEDED FROM HER ALSO SHE CAME TO THE HOMICIDE
OFFICE AND DETECTIVE DUNN TOOK WRI_Ti
WRITTEN STATEMENTS
ii ALFPEDO MALDONAOO JR LAM/28 713 AVE SOUTH HOUSTON TEXAS P51943-8096
EMPLOYED WITH INTERNATIONAL TOOLS SUPPLY 2701 MAGNET TOL107162453
ALFREDO STATES THAT HE HAD GONE TO CARTERS COUNTRY GUN STORE IN PASADENA
TEXAS ON 61982 TO HUE PURCHASE OF CHARTER ART
.22 RIFLE FOR HIS YEAR
OLD DAUGHTER ALFREOO MENTIONED THAT HIS WIFE LAURA WAS WITH HIM ALONG WITH
HIS TWO KIDS WHILE IN THE STORE ALFREDO STATES THAT HE WENT TO THE COUNTER
TO LOOK AT THE RIFLES THAT WERE OW PACK BEHIND THE COUNTER DURING THE TIME
ALFREDC WAS AT THE COUNTFR ALFRCOO STATES THAT LA CANE UP TO THE CCUNTER
AND WLS LOOKING AT SOME HANDGUNS TN THE GUN CA SE THE LAM ACCORDING TO ALFEDC
ASKED ALFRCDO IF HE ALFREDO3 COULD SPEAK SPANISH ALFREDO PLPLIEC THAT HE
OOO37
App 0084
INCIj-T NO 042614582 CURRENT INFORMATION REPORT PCSt.S$$$$$$$$$f$$S$. SSSSSSf$.... see..COULD AO ASKED THE LAM WHATS AT THAT TIME THE l.AM REPLIED BY A$KIALFRDO TO PURCHASE HIM GUN ALFPEDC STATES THAT THE LAM TOLD HIM THAT HEOULP GIVE ALFREDO THE MONEY TC BUY THE GUN
_ALFREDO AT THAT TIME TOLO THE LAMTH AT THAT TIME STARTED TELLING ALFREDO THE REASON WHY HE ANTEO THEGUN ALFREDO STATED THAT THE LAP TOLD HIM THAT HIS FAMILY IN MEXICO WAS HAVINGPROBLEMS WITH ANOTHER FAMILY INC THAT HE WANTED THE GUN TO AKE BACK TC MEXICOALRECO STATES THAT THE LAM NEVER MICE MENTION WHERE IN MEXICO HE WAS FROMALFREDO STATES THAT THE LAM SHOOK HIS ALFREDOS HAND AND TOLD ALFPEOC THATHIS NAME AS LUIS LFPCOOCL$s IIATHE DOES NOT REMEMBER THE LAM LASTNAME
ALFREDO STATES THAT THE LAM ASKED HIM AGIN_ AHO AIFREDO AGAIN STATES THAT HETOCb THE LAP NO ILFREDO STATEfTHAT HE THEN WALKED AWAY FROM THE COUNTERAND TOLO HIS WIFE ABOUT THE LAM WANTING HIM TO PURCHASE GUN ALFREOC STATESTHAT HIS WIFE TOLD HIM NOT TO CO IT BECAUSE IT WAS NOT WORTH IT ALFREDO STATESTHAT THE LAM TOLD HIM THAT IF HE CAIFRECO WOULD eu THE GUN HE PROMISED TO GOSTRAIGHT TO MEXICO WITH THE GUN AND NOT GET INTO ANY TROUBLE WITH THE GUN WHILEIN TM STATES ALFREDO STATES TNT THE LAM KEPT SWEARING THAT HE WOULC GOSTRAIGHT BACK TO MEXICO ALFPEDO CONTINUED BY SAYING THAT WHILE AT THE GUN0uNTER THE LAM POINTED TO GUN HE WANTED ALFPEOO THEN SAID TO THE LAM3RQWNING AND THE LAM SAID Y5 ALFEDO STATES THAT THE LAM THEN ASKED HIMAGAIN IF HE WAS GOING TO BUY THE GUN OR NOT ALFREDO THEN ASKED THE LAM IF HEAS GOING SACK TO THE BOROEP AND THE LAM REPLIED THAT HE WAS ALFREDO STATEDTHAT THE GUN COST SN AND THAT TUE LAM TOLD HIM THAT HE CLAM WOULD GIVELFPEDC S55C TO BUY THE GUN AND WHAT WAS LEFT ALFPEOO COULD KEEP
LFREDO STATES THAT NE LOdMED AT THE GUN INC TOLD THE SALESMAN TO WRITE UP THEPOwNING ALSO ALFPEOQ STATES THAT THE SALESMAN WAS TN THE PPOCE5 OF WRITINGjP THE CHARTER .22 RIFLE FOR HIM SO HE JUST ASKED THE SALESMAN TO WRITE UP THEROWNINC ALSO ALFPEOO STATES THAT HE AND THE LAM STEPPCD AWAY FROM THE COUNTERPdD THE LAM GAVE HIP THE 355U.CD TO PURCHASE TH GUN ALFREOO STATES THAT HELSO BCUGHT TWO BOXES OF AMMUNITION FOR THE LAM THE LAM ACCORDING TO ALFREDOANTED AN EXTRA CLIP FC TME BR9_NINft_euT THE STORE HAD NO EXTRA CLIPS INITOCK
LFREDC STATES THAT HE PURCHASED TM IkowNNG FOR THE LAM IN HIS ALFPEDOS
.AME AND AFTER PURCHASING THE BROWNING HE GAVE THE LAM THE RECEIPT FOR THE
.ROWNING AND EVERYTHING THAT CAME uITH_IT ALFREDO STATES THAT THEY WALKEDUTSIOE OF THE STORE AND WALKED TO THE SIDE OF THE STORE AND THIS IS WHEN HEAVE THE LAN THE BAG CONTAINING THE BROWNING ALFREDO STATES THAT THE LAMHANKED HIM AND LEFT ALEREDO STATES THAT HE 010 NOT SEE THE LAM GET INTOEHICLEHE JUST WALKED OFF
LEPEDO STATES THAT WHILE HE WAS IN THE STORE AND WAS ABOUT TO PURCHASE THEPOWNING ALFREDO STATES THAT HE TOLD THE SALESMAN THAT HE WAS NOT BUYING THE
UN FOR HIMSELF BUT FOR THE LAM ALFREOO STATES THAT THE SALESMAN TOLD HIMALEPEOC THAT AFtER THE GUN IS PURCHASED ITS HIS CALFREDOS BUSINESS WHAT
DOES WITH THE GUN ALFPEDO STATES THAT THE SALESMAN THAT SOLD HIM THEUNS NAME IS MIKE ALFREOO THINKS ALFREDO STATES THAT THE SALESMAN iAS
ALL RED HEADED WHITE MALE WITH FRECKLES
LFPEOO CLAIMS NOT TO KNOW THE LAM BUT THOUGHT AT FIRST AFTER SEEING THE LAM
HAT WE WAS SOMEONE THAT USED TO WORK FOR BROWN AND ROOT DURING THE TIME
LFPEOO WAS WORKING FOR BROWN AND ROOT
OOUi
App OO8
s..s
...ss is ss...sss iii isis suits suususs sit ...s its is
NCIDENT Ce2614582 CURRENT IFORMATION REPORT PAGE 2.067
SSSSSS$S..5uuui5SsS5.sissiSs.55555uuuuuuuuuttuuuuus iissssssSu555
LFREDCADE LNTIO THAT THERE 115 $ZC.O0 THIPTY DOLLARS LEFT FROM PURCHASING
ME 0RGNING ALFREDO EXPRESSED REMORSE BY SAYING THAT HE FELT LIKE .JUDAS
EE WRITTEN STATEMENT ATTACHED TO THIS REPORT FOR FURTHER DETAILS
LFREOO MALDONACO WHILE IN TH HOMICIDE OFUCE WHOWN PWOL_RALO LAM S__
HA MAC BEEN PUT TCGETHER BY THIS DETECTIVE THE PHOTO ARRAY CONTAINED Ti.E
HOlD OF THE SUSPECT THAT WAS SHOT AND KILLED BY OFFICERS AT 4911 RU5K AND THERuSP LHEP.HOTS INFORucO
ElECTIVE THAT THE SUBJECT IN THE IA POSITION WAS THE LAM THAT HE ALFREDO 4o
URCHASED THE BPOWNING FOP ALFREOO WAS ASKED TO LOOK AT THE PHOTO OF RICARDO
OF THE GA SUJP.CtAP_ALfREP5TATED THAT HE HAD___
.EVER SEEN THE PERSON IN THE PHOTO ALFREDO ALSO STATED THAT THE LAM THAT HE
URCHASED THE BROWNING FOP WAS IN THE STORE BY HIMSELF ALFREDO STATES THAT NE
NW_ THIS EECAUSC THE STOPE WAS ABOUT TO CL F_AND ONLY ONES
NSDE OF THE STORE
.J_1ALL MkkDOAO_WF/.Z LATER APRIVED A.T..YHL HOMICIDE OFFICE WITH AN
.TTORNY THE ATTORNEY IS LUIS MARTINEZ LAM STATE BAR LICENSE NUMBER 131N2785
.11 NORTH SIMPSON PHONE 2235106 DR 5107
LAURA DALE MALDONADO WF/28 008 56SN TOL 105215715 SSI44658426
LAURA STATES THAT SHE HAD GONE TO CARTERS COUNTRY GUN STORE WITH HER
USGANC IN PASADENA TEXAS TO PICK UP GUN IN LAYAWAY WHILE IN Ti4 STORE
AURA STATES THAT AN ILLEGAL ALIEN LOOKING MAN CAME INTO THE STORE AND STARTED
SPANISH TO HER HUSBANU ILFREDO LAURA STATES THAT SHE HEARC THIS
AM ASK HER HUSBAND IN SPANISH TO BUY HIM GUN LAURA STATES THAT SHE THEN
SKED HER HUSBAND WHAT THE LAM WANTED AND AL.FPEDO TOLD HER THAT THE LAP WANTED
4tH TO BUY HIM LAN GUN LURA STATED THAT SHE THN ASKEC ALFRDO IF WE WAS
TC Do THIS INC ALrREOO OLO LAURA THAT HE DIDNT KNOW LAURA STATES THAT
THIS WAS ALL TAKING PLACE IN rRONr OF TE COUNTER GUN3 AND THE SALESMAN WAS
ISTENING TO WHAT WAS BEING SAID LAURA STATES THAT ALFREDO TOLD THE SALESMAN
THAT HE DIDNT HAVE TO 00 THIS SELL THE GUN IF HE DIDNT WANT TO LAURA
STATES THAT THE SALESAd TOLD LFREDO THAT IF YOU HAVE THE MONEY ILL SELL
YOU THE GUN THIS IS WHEN ALFREDO TOLD THE SALESMAN TO WRITE IT UP ACCORDING
TO LAURA
.AURA STATES THAT THE LAM AND ALFREDO WALKED OFF FROM THE COUNTER AND THE LAM
3AVE ALFREDO THE MONEY ALFRCDO BOUGHT THE GUN AND TWO BOXES OF AMMUNITION
ND LATER WALKED OUTSIDE AND GAVE THE PURCHASED GUN TO THE LAM LAURA STATES
THAT SHE DOES NOT KNOW WHAT KIND ALFREDO 8OUGHTfOR tHE_LAM BUT STATES
THAT SHE DOES KNOW THAT IT WAS AM AUTOMATIC BECAUSE THE LAM WANTED ANOTHER CLIP
OR THE GUN LAURA STATES THAT THE GUN WAS EXPENSIVE AND LOOKED TO BE SILVER
LAURA WAS LATER SHOWN THE SAME PHOTOS OF THE SUSPS AS ALFREDO IN PHOTO ARRAY
AND LAURA WAS NCT ABLE To MAKE POSITIVE IDENTIFICATION OF THE SUSPS LAURA
ALSO PRESENTED TO DETECTIVE DUNN OUPING THE TAKING OF HER STATEMENT COPY OF
SALCSRCEIPT FROP CARTERS COIINTPv SHOWING THAT ALFREDO HAD PLACED CHARTER
AR7
.22 RIFLE IN LAYAWAY DATED JUNE 19 1982 THE INVOICE NUMBER ON THE
RECEIPT IS 307662 LAURA ALSLPRES.Jd1cD_.A CUSTCMER IDENTIFICATtON STUB FOR
LAYAWAY WITH THE TICKET NUMBER BEING Ci2 ALSO DATED JUNE 19 1982 THE
SALES RECEIPT AND THE LAYAWAY STUB SHOW THAT THE RIFLE WAS SOLD BY SOMEONE
WITH THE INITIALS OF B.R.
DETECTIVE LATER ASKED AIFREDO MALDOP.ACC IF HE WOULD TAKE POLYGRAPH TEST AND
OOO39
App
j...S...SSSSSS s..iss ssis $$ SSS$S$S.$S 55 555
NCTDCNT NO CV261V82 CURPEPIT INFORMATION REPORT PACE 2.C75SS.SS.SSSSS5SSSSSSSSSSSSSSS$S$SSSSS
CC
FFENSC- CAPITAL MUPCER or AöLc OFFICER
STREET LOCATION INFORMATION
UMBER N9CC NAPEhALKER TYPE SUFFIX
PT O-0 NAME TYPE SUFFIX
ATE OF OFFENSEC7/13/82 DATE OF SUPPLEMENTO7/2i/B2
OMPLS LASTHARRIS FIRSTJAMES MIDDLEC
LAST FIRST MIDDLE
RECOVERED STOLEN VHICLCS INFORMATION
NONE
________________
FFICER1V WST EMPIC3529 SHIFTi DIV/STATIONHOMI
SUPPLEMENT NARRATIVE
HIS OCT THIS DATE CHECKED THE BELOW WEAPON OUT THE POLICE PROPERTY ROOM
NO SUMITTEO IT TO THE CRIME LAB FOR REUIRED LAB WORK
EAPON_SUPBMITTD .357 COLT REVOLVER BLUE STEEL 121267E
UPPLEMENT ENTERED BY 30529
EPORT REVIEwEC BYV VEST EMPLOYEE NUMBER030529
.OPIES ALSO SENT TO RP1/ ACTION DUE DATE
ATE CLEARED 07/13/82
O-0C31
TSE- CAPITAL MUPOER or POLICE OFFICER
STREET LOCATION INFORMATION
.UMBCR e9DC NAMEWALKER TYPE SUFFIX
PT NOC NAME TYPE SUFFI
ATE OF OFFENSEO7/13/82 DATE OF SUPPLEMENT07/21/82
OMPL5 LASTHARRIS FIRSTJAMES MIDDLEC
_______
_____
LAST FIRST MIDDLE
RECOVERED STOLEN VEHICLES INFORMATION
NO P1
_________________
FFICER1OM CTFW000 MPI036193 SHIFTi DIV/STATIONHOMICIDE
SUPPLEMENT NARRATIVE
______
7i-82 DEl GATEW000 ALONG WITH ASST DISTRICT ATTORNEY DICK SAX HAD THE
3USPECT TAKEN TO CAPTAIN LOANS OFFICE HOMICIDE DIVIStON WHERE WE HAD TWO
IVILIAN WITNESSES eRouiHT TO THIS oFFIcE so THAT THEY COULD WITNESS THE SIC
ATURE CF THE SUSPECT
rHE TWO FE1TLC1TNESSES ARRIVED AND ONE OF THEM WAS ASKED TO READ THE SUSPECTS
ONFESSION BACK TO HIM THE FEALE WITNESS READ THE CONFESSION TO THE SUSPECT
75
OOO3b
App 0087
INCIDENT NO 042614582 CURRENT INFORMATICH REPORT 2.C76
AND THE SUSPECT WAS THCN ASKED IF HE UNDERSTOOD EVERYTHING TjiT HAD BEEN
TO 441w
THE SUSPECT TOLD THE CIVILIAN WITNESS THAT HE UNDERSTOOD WHAT HAD BEEN READ TO4IM AT THIS TIME CA $AX TOLD THE CIVILIAN TO READ THE SUSPECTS RIGHTS THATiCRE ON TOP OF THE PAGE J1JST BFP.PE THE CONFESSION BEGAN
FR THE READING OF EVERY RIGHT THE SUSPECT WAS ASKED IF HE UNDERSTO0C WHAT4AD
çC__READ TO HIM WHEN 4E__S_L w_S.READT4E PART WHERE IT STATESTHAT HAS THE RIGHT TO HAVE LAwYER PRESENT DURING ANY QUESTIONING HE AT THISTIPE ASKED IF HE COULD HAVE LAWYER
THE SUSPECT TOLD THE CIVILIAN WITNESS THAT HE WOULD SIGN THE CONFESSION BECAUSE
IT WAS THE TRUTH AS TO WHAT HAD HAPPENED STATES THAT HE NEEDED LAWYER SOTHAT HE COULD TELL HM WHAT TO DO
HEN THE SUSPECT EXPRESSED HIS DESIRE TO HAVE AN ATTORNEY ASST OA BAX AT THISTIME SAID_THAT THE SUSPECT WOULD 4OT QUESTION ANY FURTHER MR BILL HARERQM THE PHOTO LAB HAD BEEN TAPING THE READING OF THE CONFESSION AND AFTER THEUSPECT ASKED FOR AN ATTORNEY THE TAPING WAS STOPPED
1IE SUSPECT i5 PLACED IN OCT WEBBERS CUSTODY
NVEsTICATI0N TO CONTINUE...
ENTERED RY 361
EPORT PEVIEwED BYV WEST EMPLOYEE NUHBER030529
OPIE5 ALSO SENT TO RP1/ ACTION DUE DATEATC CLEARED 07/13/52
OC032
FFENSE- CAPITAL MURCER OF POLICE OFFICER aa
STREET LOCATION INFORPATIONUMBER 49CC NAMEWALSEP TYPE SUFFIX
PT NOC HAKE
______
TYPE SUFFIX
ATE OF OFFENSE071352 DATE OF SUPPLEMENT072152OKPLIS LASTHARRIS FIRSTJAKES MIDDLEO
LAST- FIRST MIDDLE
_______RECOVERED STOLEN VEHICLES INFORMATION
NONE
F_FICjRjL.L COOPER EMPI03N365 SHIFT DIV/STATION5825
OUU3b
App O8e
S$SS $S$
NCIDENT NO C426146Z CURRENT INFORMATION REPORT PAGE 2.077
SUPPLEMENT NARRATIVE
oifciorofvIitaN THIS OFFICER
tNT TO 49CC WALKER TO CONDUCT AN EXAMINATION FOR LATENT PRINTS UPON
PRIVAL THIS OFFICER ROPED OFF TIlE SCENE AND XAMTNED THE OUTER ORrvERS
IOL AND TRUNK AREA OF POLICE VEHICLE SHOP 6271 THIS OFFICER THEN WENT
4911 RUSK AND EXAMINED ONE 1BROWNING NIPOWER 9MM/.SEPI 24SPZ8712e
ND ONE 11LS CAL DETONICS PISTOL$ERICRI612Ô FOR LATENT PRINTS THERON1G PISTOC WAS EMPTY THE CCTOiICS PISTOL WAS CHAMBERED WITH .145 BAL
NO THREE LIVE .15 iMPS THE FIREARMS IERE VOID OF SUITABLE PRINTS
HE AeOVE FIREARMS WERE RELESASED TO OFFICER CC._AR5O IREAPMS EXAMINER
THE SCENE
THIS OFFICER THEN FOLLOWED THE SUSPECTS VEHICLE AND POLICE VEHICLE TO
HE VEHICLE EXAMINATION BUILDING AND coPpyçEO_AjaTIoN..jfJHExTzRIoP
EACH VEHICLE LJTFP1 PPTNT FRF fFVFtOPFfl ON THF TOIJNK ARFA GNE PALM
PINT NOT SUITAPLE FOR roEp.TIFICATOIN hAS DEVELOPED ON THE DRIVERS FRQNT FENDER
pn rr yFI.rt pO PRINTS PF rVEOPED ON THE ROOF OF POLICE
rI.lTLE ONE LATENT PRINT CEVELCEf Oh THE TRUNK OF POLICE yEN WAS
DENTIFTED AS TWE LEFT RIG FINGE OFFICER J.0 WAPRIS.
IATE4T PRINTS CEVELOPED ON SUSPECTS VEHICLE 77 BUICK EGAt
ICA YTX 479 RE FROM TH OUTSIDE CPIVERS DOOR AND OUTSIDE PASS
000AhD RPCP ATFNT PRINT OEVELOPFD ON THE OP WAS IONTIF TED
THE LEFT PALM OF UNK DECD MALE CUIOO ONE LATENT FINGERPRINT
EvELPFO Oh PSFNr-P POOP OLITSrF WAS TrFTTFTEn AS THE RTcHT TOFX
INEP CF OUTDO CNE_PALM PRTNT fEVLOPED ON THE DIVEPS 000R BELOW
fIITSTflF AS rt.TTFIF AS .E LEFT PALM CF PICAPDO ALOAP
.P.O.I 383339 THE LATENT PRINTS TLL BE RETAINED IN THE LATENT LAB
LEONARD COOPER 34365
--
LATENT PRINT EXAMINER
UPPLENENT ENTERED BY 3431465
_____PORT PEVIEIED BYV WEST EMPLOYEE NLJMBR330529
OPICS ALSO SENT TO RP1/ ACTION DUE DATE
ATE CLEARED C7/13/82
400033
FFENSC- CAPITAL MURDER OF POLICE OFFICER
________________
STREET LOCATION INFORMATION
UMBER 4900 NAMEWALKER TYPE SUFFIX-
PT NOC NAME TYPE SUFFIX_
ATE OF OFFENSEO7713e2 DATE OF SUPPLEpiENT07/21/e2
OMPLS LASTMARRIS FIRSTJAMES MIDDLED
LAST FIRST MIDDLE
RECOVERED STOLEN VEHICLES INFORMATION
NONE
FFICER1L.L COOPER EMPI0314365 SHIFT DIV/STATION5825
77
OOO3b
App t089
NCIDENT NO 042614582 CURRENT INFORMATION REPORT PACE 2.083
EY GfVEN THE I.CIDENT NUEER TCTHE AGGRAVATED ROBBERY A5 41589082
ESCRIPTION OF SUSP IILL BE LAM SiC TALL THE REPORT SWCVS THAT THE
ITNS STATED Thu THE SUSP AS USING BLUE STEEL REVOLVER DATE OF REPORT
/9/82
HIS SUPPLEMENT TO ENTERED UNDER INCIDENT NU4BS__
_____2667382 AND 41589082
VIDENCE SUBMITTED_________
__________________
ONE SPENT HULL CASING SPEER 9VM LUGER
UPPLEMENT ENTERED BY 3133
EPORT REVIEIED BYV VEST EMPLOYEE HUM9ERQ3OZ9
OPIES LSO SENT TO- RPI/ ACTION DUE DATE
ATE CLEAREO 07/13182
00037
FFENSE- CAPITAL MURDER OF POLICE OFFICER
SIRELTLOCATION INFORMATION
UMBER 49CC NAMEwALKER TYPE SUFFIX
PT NOC NAME TYPE SUFFIX
ATE OF OFFENSE07/13/82 DATE OF SUPPLEMENT07/26/82
OMPLS LASTHARRIS FIRST.jAMES MIDOLE0
LAST FIRST MIDDLE
RECOVERED STOLEN VEHICLES INFORMATION
NONE
_______FFICEP1L.E.WEBBR EMPI043133 SHIFTi DIV/STATIONHOMICIDE
SUPPLEMENT NARRATIVE
ROGRESS PEPQPT0722a2
ETEtTIVE wAS ASSIGNED TO CONTINUE THE INVESTIGATION INTO THIS CASE ON 072182
RRNGEWENTS HAD BEEN MADE FOR THE SYCYVITNESSES IN THIS CASE TO MEET CETECTIVE
THE 9OC BLOCK OF VALKER STREET FOR AN REENACTMENT OF THIS CASE THE RE-EN
CTMEHrwAs SCHEDULED FOR tCOCAM THIS DATE
iiiTPERSONNEL PRESENT AT REENACTMNT
DETECTIVES VE8BEP NCCLY HOLLAND MONTERO SELVERA AND GONZALES OF THE
HOMICIDE DIVISION
CHARLIE ANOEPSON OF THE FIPEARUS_EXAMINER OFFICE
000374
App 009
INCIDENT NO Oe26INSS2 CURRENT INFORMATION REPORT PAGE 2.C84
Tw ERACS CF TH PHOTO LAB
OFICP WILLIAMSONOF 7i.i PRi PLACE_SUBSTATION
OICK BAZ BOB MOPEN AND STEVE MOPPISOF THE DISTRICT ATTCRNyS OFFICE
ETECTIvE ALONG WITH ASST OAS BA AND MOREN REINTERVTEWED THE WITNE55 AT THESCENE AND WERE ABLE TO CLARIFy SOME UNCLEAR DETAILS WITNESS $3 HILMA GALVAN4ALKED CETECTIVE AND ASST DAS BAZ AND MOREN THROUGH THE NEIGHBORHOOD IN OROERro POINT OUT WHERE SHE HAD FIRST OBSERVED THE SUSPECTS IN THE BLACx VEHICLE ANDJI4ERE SHE HAD OBSERVED OFFICER HARRIS MR5 GALVAN STATED THAT SHE WAS WALKINGNAST OP ALKER TOWARD LENOX STREET WHEP TWE SUSPECTS IN THE VEHICLE FIRST DROVEASS HER AT HIGH RATE OF SPEED MRS GALVAN STATES THAT THE SUBJECT THAT WASRIVING THE VEHICLE IS THE SAML ERSO SHE PICxO OUT OF THE SHOWUP AS THEEHICLE SPED PASS MRS GALVAN STATES THAT THE DRIVER OF THE VEHICLE MADEIGHT TURN ONTO DELMAR STREET AND AS SOON AS THE VEHICLE HAD MADE THE RIGHTURN THE VEHICLE CAME BACKING OUT FROM DELMAP ONTO WALKER AND PROCEEDEDAST MRS GALVAN STATES THAT THE DPIVER WAS IN HURRY AND SHE WAS OP.DCRINGHAT WAS GOING ON BUT LATER SAW POLICE UNIT COMING UP DELPIAP TRAVELLINGORTH TC WALKER THE POLICE UNIT ACCORDING TO PIPS GALVAN THEN FELL IN BEHINDHE BLACK VEHICLE AND BOTH WERE TRAVELLING EAST ON WALKER MRS GALVA STATESHAT THE BLACK VEHICLE MADE LEFT TURN ON ALTIC STREET AND THE POLICE UNITAS STILL IN PUPSUE MRS GALVAN STATES THAT SHE TUPHED AROUND AND WA.KED BACKOHER kOUSE AFTER ARRIVING BACK TO HER HOUSE MRS GALVAN STATES THAT SHEAS STANDING IN HER FRONT YARD NEAR TREE WHEN SHE SAW THE TWO LA/MALES INHE BLACK GOWN WALKER STREET AND LATER TRYING TO TURN THE VEHICLE AROUND IN THEtODLE OF TH STREET MRS GALVANSTATES THAT THEY STOPPED THE VEHICLE IN THEWALKER STREET AT EDGEWOOD THE SPECTS WERE TRAVELLING WEST ON WALKER FROMENOX STREET AT THIS TIME MRS GALVAN STATES THAT THE POLICE UNIT LATER CAMEPBEHPD THE BLACK VEHICLE FROM EOGEOOO MRS GALVAN POINTED OUT TO DETECTIVEHE LOCATION IN WHERE SHE WAS STANDING AND THE POINT IN WHICH THE POLICE UNITAME TO STOP MPS GALVAN WAS STANDING DIRECTLY IN FRONT OF HR HOUSE ON THE3RTH SIDE OF WALKER STREET ON TH SIDEWALK MRS GALVAN STATED THAT SHE3ULD SEE CLEARLY BECAUSE OF THE STREET LIGHT THAT WAS ON THE STREET LIGHT IS3CATED ON THE CPPOSE SIDE OF THE STREET IN FRONT OF 922 WALKER THE POLICEIT CAME TO STOP WITH ABOUT HALF CF THE POLICE UNIT IN THE MIDDLE OF WALKERTREET AND TO THE EAST SIDE OF EDGEWOOD MRS GALVAN STATES THAT BOTH SUSPECTSRE OUT OF THE BLACK CAR WHEN THE OFFCER CAME UP BEHIND THEM ACCORCING TOGALVAN OFFICER HARRIS CALLED OUT FOR TWYE TWO LA/MALES TO COME OVER TO THE3LICE UNIT MR5 GALVAN STATES THAT THE OTHER LA/MWHO WAS PASSENAGER INSIDETHE BLACK CAR WAS THE CLOSER_OF THE_TWO TO THE OFFICERWITH THE DRIVER BEHINDALKIPIG BEHING THE PASSENAGER AS THEY APPROACHED THE POLICE UNIT THE OFFICERAD THEM TO PLACE THEIR HANDS ON THE POLICE UNIT THE OFFICER ACCORDING MRSALVAN WAS STANDING TO THE INSIDE OF TH RIVERS DOOR OF THE POLICE UNIT THEASSENAGER PLACE HIS HANDS ON THE HOOD OF THE POLICE UNIT NEAR THE DRIVERS DOORTHE DRIVER CAME UP AND PLACE HIS HANDS ON THE HOOD NEAR THE FRONT OF THE3LICE LNIT MRS GALVAP4 STATES THAT AS SOON AS THE DRIVER OF THE BLACK VEHICLEPLACED HIS HANDS ON THE POLICE UNIT THE DRIVERIIDENTIFIED SUSPECT TURNEDSTARTED SHOOTING OFFICER HARRIS MRS.GALVAN STATED THAT SHE DID NOT SEE4ERE THE SUSPECT GOTJN GUN FROM MRS.GAL VAN STATES THAT THE SUSPECT WAS MOVIG LEFT TO RIGHT FIRTNG AT THE OFFICER WHEN THE OFFICER WAS SHOT MR5 GALVANATES THAT THE OFFICER WAS STANDING UPRIGHT AND AFTER BEING SHOT THE CFFICERIL FELL STRAIGHT BACK LIKE THE TMPLCT OF THE BULLETS WAS LIFTING THE OFFICERHIS FEET MRS.GALVAN STATES THAT THE SUSPECT THEN LEFT RUNNING FROM THE
ENE DCWN THE SIDEWALK IN FRONT OF HER HOUSE MR5 GALVAN TCLD DETECTIVE THAT
OOO35
App t9t
/2/i jg
HCIDEIT NO C2o1SSZ CURRENT INFORMATION REPORT PAGE 2.C$S
RAN INTO ECAUSk THE SUSPECT WAS STILL SHOOTING MRS RALVANLSO INFORMED ETCT THAT SHE WAS ABLE TO SEC THE SUSPECT AS1HOT T-H CU T14 WAS DRIVING wEST ON WALKER STREET
15 GALVIN STATES THAT SH WAS NOT ABLE TO SEE WMCR THE TONER LA/N ItN TOSTATCS THAI SHE LATER AE QF_ENOusavi WENT TO WHERE THE OFFICERAS AND Su THAT WAS SHOT Ii THE HO AND THE LEFT SIDE OF THE FACE MRSALVAN ALSO INFORMED DETECTIVE THAT SHE KNOW THE DRIVER OF THE VEHICLE bv..ELGUCRO BECAUSE HE HAS BEEN IN THE i.lQ.q.QII__souTBmJA1yTHIS YEAR MPS.GALVN TATED THAT SHE ONCE OPERATED PATS GROCERY STORETHE COINER OF DUISLE AND WALKER AND THAT GIRO WAS REGULAR CUSTOMER
Lir.s4 fleJi .rETtCTrrALso INTERVIEWED uEIpda MEDINA GARCIA AND ELVIRA MEDINA FLCRCS THCYrJ fl J/ FIrmRE SISTERS AWO WERE WALKING pA
.-- -vy uRE WHEN THEY SAW THE SHOOTINGOFFICES HARRIS HERLINDA ORIGINALLY IDENTIFIED THE ARRESTED SUSPECT IN SHOWPROCEDURE ON O7-1s52 AND IS STILL ABLE TO MAKE POSITIVE IDENTIFICATIONME ONLY THING HPLIDA IS SAYING DIFFERENTLY FlOP HER STATEMENT IS THE VEHCILEHERC HER SISER ELVIPA Ho_uN.p. THE EHICLE.WZLL_Nv SE THE SUSPECTS VEHICLE
--ORIGAy THOUGHT BUT WILL BE AN ABANDON BLACK VEHICLE THAT IS PARKEDFRONT OF 932 WALKER
UIN6 THE INTERVIEW WITH ELVIRA WEDIHA FLORES ELVIRA INFORO DETECTIVEHAT SHE 010 NOT IOCp.IZFy INC SUSFLVrlN rw-5HOW-Up BECAUSE SHE THOUGHTNOUGN PEOPLE HID ALREADY PICKED HI CUTTHEREFORE SHE TOLD THE DETECTIVEiOLING TH5H0w.UpVNAT SHCCOULD NOT IDENTIFIY THE SUSPECT ELVIRA ISHE 113 WITNESS IN THIS CASE ELVTRI WAS SHOWN PHOTO OF THE SUSPECT WITHHOlDS OF OTHER LA/MALES IN PHOTO ARRAY AND ELVIRA STATED THAT SHE KNOW
_____EGuLAP It THE NEIGHBORH000 LVIRA ALSOAVE THE REASON OF FEAR FOR HER NOT TELLING THE DETECTIVE WHO SHE HAD SEEN SHOOTrFICER HARRIS ELVIa STATES TI4AT SHE WAS FEARFUL THAT EL 6UERO WOLtD GETUT OF JAIL ON BOND AND COME LOOKING FCR THE PEOPLE THAT TURNED HIM IN
LVIII WAS LATER TRANSPORTED TO HOMICIDE BY THIS DETECTIVE WHERE SHE GAVE_
________MOTHER SfTUMtii itvrr iTffxvt AT THE sTc THAISNE WAS STANDINGTHE SOUTH SlOE OF OF WALKER STREET AT EDGEW000 IN FRONT OF THE POLICE UNITTHE TIME OF THE SHOOTING AND TO THE DRIVERS SIDE OF THE SUSPECTS VEHICLE
.LVIRA STATES THAT SHE FIRST SAW THE BLACK VEHICLE TRAVELLING WEST ON WALKERTREE APPROACHING EDGEWOOD AT HIGH RATE OF SPEED WHEN THE VEHIE GOT TOOGw000 II u.KR ELVIRA STATES THAT THE DRIVER EL GUERO TRIED 10 MAKE
ôGHNuT TURNCC THE BLACK CAR BUT THAT TE VEHICLE STALLED OUT ON HIMLVIRA STATES THAT EL GUERO TRIED STARTING THE VEHICLE SEVERAL TIMES BUT ITOULO NCT START ELVIRA STATES THAT BOTH EL GUERO AND THE PASSENAGER GOTUT OF THE CAR AND CAME UP 10 HER ELVIRA STATES THAT CL GUCRO WAS SAYINGOMETNINC TO HER IN SPANISH THAT SHE OIONT QUITE UNDERSTAND ELVIRA STATESHAT SHE HID STARTEC WALKING BACKWARDS INO EL GUERO KEPT TALKING ELVIRATATESTHAT SHE FINALLY UNDERSTOOD EL GUERO TO SAY THAT NE NEEDED BOOSTNO WAS ASKING HEP FOR BOOST AT THAT TIME OFFICER HARRIS PULLED UP ANDALLED OUT FOR EL GUERO AND THE OTHER LAIN TO CONE OVER TO THE POLICE UNITLvIRSTATES THAT 5NE010 NOT PiTüAT MUST ATTENTION TO THE OTHER LAIN
LVIII STATES THAT THE OFFICER MAO BOTH LA/WALLS TO PLACE THEIR HANDS_ON THEobOr TH TMiiYHFjcrNG SOMETHING TO
HE LA/PALES AND EL GUEDO REPLIED BACK SAYING NO NO WE NEED BOOSTLVR STATES THAT AT THIS TIME EL GUERO TURNED AND STARTED SHOOTING ATNE OFFIcER ELVIRA SIATD THAT AFTER EL GUEQO HAD SHOT THE OFFICER EL CUEROLEFT RUNNING FROP GOING EAST ON WALKER STREET ELVIRA STATES THAT SHE SAW
000376
App o92
pp
Ht
r1II
ri 61iIpO
1yp VL.r4
4hht RifvQ.44
a.e.4iei
1r.Hve4
ssSss SS5 SS4SNCIOpy NO uZ61I5I CURRENT INFORMATION REPORT cESSUS....S. SSSS SSS.s SSSSS.SSS S5S SeSse SSSS. 5S SSCL URO SHOT THE CITIZEN THAI WA ORIbNS PLO CAR
ELVIKAS STATEMENT AYACHE Tk7R
THE UhMAPEED POLICE UNIT THaT OFFICER HARRIS WAS DRIVING IT 1w TT.E orSHOOTING WAS RROUGI4T TO THE SCEi iv OFFICER VApO AND IS flLaCO3ENERAL AICA AS OESCR5Eo ST INC WITN55 sEMrirrwe RE-ENACTMENT TwVEHICLE DRIvEN THE SUSPCCTS VER
uSED....LT_THE E-EWACTENT THIS vMrcLc
45 SP ST HPO WRECKER EACH WITNSSf5 WAS ASKED GIvEIS OR HER ACCESSNENT OF WHAT THE SAW EACH WITN55 GAVE HIS OR HER CYCwICCOUN1Y.E$ALL AND TH
Nfl AT TH RLCNACTNCNT FEMALE CITIZEN CAP UP TOi OETECTIVC 1TIO NOT SEC TN SHOOT1N OF THE OFFICE...L.SUT WAD EARLIER Sp TN SQ5CCTRIVING THE VEHICLE THE CITIZ IDENTIFTED R5 AS.AIFLS AOOR55 SOO NCKIWNCYPHOWE21_237 RACHEL STIT5 THAT SHE 51wtHE PHOTO OF Ts SUSP ON TV AND RECOGNIZED THE SUSPECT AS TH ORIvEpTH RED AND SLACK VEHICLE RACHEL STATED THAT SHE WAS ALKNS VITwLLA4 AT TH TIME SHE SAW TH SUSPECT ORIV5 THE VEHICLE THE SANE NIGHT ortHE SHOOTING RACHEL WAS SNOUW PHOTO OF THE ARRESTED SLSPECT ALOkO.CVCRCOTHIR LA/MALES IN PHOTO AbRAy iTbjüj IDENTIFIED THE ARRESTED sus.5 THE PERSON SH SAW ORIVIiaç INC RED AND SLACK VEHICLE
TN55 WAS NOT PRESENT IT THE TIME OF TN REENACTMENT CETECTIVE LEA.ATER FROM THE VTTM5$ THAT Tw VITN55 GEORGE Lr MAD LEFT WCTJST5.EORGE OWN ORI INTCVIFV
._LLsC.Ec OF THE SHOOTING 01
-I3-5OLó ElECTIVE NECy THAT THE SUSPECTS MAO HIT OFFICER HARRIS POLICE UIT urITH TN HC THEY WERE DRIVING GEORGE LEE SROWN Tb HIS WRITTEh STart.AV NO DETAILS OF THE ACCIDENT
MTH OF THE CRIPE LAS CONOIJCTCD COKPIRSXON TST wrTANTEO LIFTED FROM IWj1y REAR SUMPR OF THE SUSPECTS VEHICLE TO THAT OFFICER HARRISS POLICE UNIT ANO VHf PAIWIS MATCHED UP
TR DETECTIVE MAO TRANSPORTED Lv FLORES TO HOMICIDE rODTATCWENT ELVIRA TOLO DETECTIVE THAT RUMOR RCULATIWG IMAT THSLACK VEHICLE HAD EARLIER THAT NIGHT SHOT AND KILLED AN OLD i.aC TsâtIESIN THrCEPCNTAI OFF TCXA ANrATHAM AFTER LEAVING INC HOMICIDE OrrcEIlK ELVIRA ANO NCR SOYFRIENO NROUT KoC ELVIRA POINTED OUT TO DETECTIvECEMENTARY DETECTIVE AFTçP QIOPPING OF LVPA AND HE SOYFRICHO OROvACK TO THE CEMENTARY AND CALLED FOR PATROL UNIT TO ASSIST IN CHTNGUT TN LOCATION OFFICERS UI ON UNIT 11025 RESPONDED TO TwEMCNTART OCTCTIVC ILONI WITH O. ICERS VU AND KILLER SENT TO MrMIT I1tbCAYIÔN YfYMIN THE 5l5 WALLS OF THE CEMENTaRY THE CEMENTAIY ISOCATED IN TNt 5000 ILOCK OF TEXAS IT LAYMAN DETECTIVE KNOCKED ON THE001 TO INC $IN$4.t STORY WHEYt WOODEN FIAM MOUSE AND ANCLOERL WHITE rEMILENSicRtrooo Z0ihTIfrIiFRSTF AS MRS NOOil MRS MOGPI SrrcMIT SHE WAD NCARD THE RUMOR ALSO AROUT THE SUSPECTS SHOOTING HER MRS l4OOPCCLATtOTO OCTCCTIVE MT $__I1.1.4O2NS.QS.LL ON INC NIGHT CF
--
MOlTING MRS HOOPI LIVES ALON AT TNt HOUSE
NVE$TIGATIOR TO CONTIKIgg11 zzzzu as
Oo371
App 093
INCIDENT NO Oe2667632 uRRCNT INFORMATION REPORT PAGE 1.005
DETAILS OF OFFENSE
_____
THIS COMPL INVOLVED IN MURDER OF OFFICER AT R900 WALKER ST AND THEN FLED SCENE
wITH THE ii SUSPECT AND WHILEThOING SO SHOT AND SERIOUSLY WOUNDED CITIZEN
FULLOWING SEARCH FOR THIS COMPL AND THE OTHER SUSPECT THIS CONPI SHOT AND
SEVERLY IOUNOED ONE OFFICER AND THEN FID AT OTHER OFFICERS THOSE OFFICERS
NZ6I5822b6982.26b7382
OFFICERI NAMEV WEST EMPLOYEE N0030529 SHIFT
OFFICERZ NAMEi EMPLOYEE N0000000 SHIFT
DIVISION/STATION IMOM UNIT 12236
tALL PCCEIVEO DATE07/13/e2TINE2330PEPORT MADE DATtQ7/i/82 TIME1500
QOO3b
wD OrPAGEThNC --
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cpp
INCIDENT NO 0N26676$2 CURRENT INFORMATION REPORT PAlE 2.027
ass ass ss as SS ass ss sea sass 55 $5 55555 55 55 s$555
NOCOOG
OFtN5 DtAfl4APrlS14OVTTT
STREET LOCATION INFORMATION
NUMBER e911 NAMERUK TyPe SUFFIX
OAT TFoFFENsE57j378
COMPLISI LASTwEDO FIRST MIDDLE
LAST FIRST MIDDLE
RtCVTbTtDLEN VETIICLES IFORgATTOi
NONE
OTFICERIGL DOLLINS EMP$0R5936 SHIFT2_DIV/STATIQNHOMICIOEPIC5OOOTHIT2
SUPPLEMENT NARRATIVE
SUPPLEMENT DATED 711$/al
OETLDOLUNSANOJKNEW$ANHaETWTHEI4OMICIDE FFICC ERC APPROACHED By
OFFICER NJ MCMAHON PR $59096 ON UNIT 1750 MCMAHON ADVISED THAT HE 140
POSSESSION OF THE PERSONAL EFFECTS AND CLOTHING BELONGING TO OFFICER TREPAGNIER
FE T5VIStD THAi ADE flVDThStSTES FROM CE I4ENBERS OTHE LIFE
FLIGHT HELICOPTER HE DID NOT GET THEIR NAMES 015 RECIEVED THE FOLLOWING
ITEMS FROM OFFICER NCMAHON AT 1210AM
11ffDUNTrOHSIT-SAOGIA5REMOVE BYMCMAI4ON -----
WHITE TSHIRT
H.P.O UNIFORM PANTS
1TOiiITESOCKS -_____________
UNIFORM BELT
61 ONE PAIR BLACK BOOTS
TYEMPTYNOI.STE ANDSAM 8ROiNECT
BLOODY GAUZE
BELT
WERE PLACED IN ONE BAG AND BOOTS AND SAM SOWN RIG IN ANOTHER BOTH BAGS THEN
LOCKED IN THE EVIDENCE CLOSET IN HO DIVISION TO BE TURNED OVER TO CRIME
tABPZWSONNEL ______
IN ADDITION TO THE ABOVE ITEMS DETS RECEIVED FROM MCNAI4ON THE FOLLOWING
PtR5O1T CTSWUrH RAD BEEtURCMOVCDTROMTHCOFFICEps CLOTHING
1.0 FOLDERALLT COMBINATION CONTIANING HIS M.P.O 1.0 MINIATURE BADGE
TEXAS DL PERSONAL PHOTOTS CREDIT CARDS AND $107.00 IN CASH
THES1TMSWADBEWREHOVIDTORM7HEPTGHT PEARPANTS POCKET
21 COMBREMOVED FROM RIGHT REAR PANTS POCKET
SI.55 IN LOOSE CHANGE REMOVED FROM THE RIGHT FRONT PANTS POCKETT7PTADG ET3TTRI CH Brr R0W7 HE 1JN ro RN SHI
THESE ITEMS WCRE PLACED IN LARGE EVIDENCE ENVELOPE AND ALSO LOCKED IN THE
tVIDZNCttLOSF.T 117AMTgEOTFTCERSUPERVISOR CAMETOThOM1CDEDIVISON wHERE
HE TURNED OVER TO OCT OOLLINS THE OFFICERS STREANLIGHT 20 FLASHLIGHT BEARING HIS
NAME AND BADGE TIlTS FLASHLIGHT WAS ALSO PLACED IN THE LOCKED EVIDENCE CLOSET
27
__
OOO4O
App 0096
INCIDENT NO 042667682 CURRENT INFORMATION REPORT AGC 2.028
THE DETS THEN TURNED THE ENVELOPE CONTAINING THE OFFICERS PERSONAL EFFCT5 TO
HIS SUPERVISOR SGT DA STRAuGiiAN PR 140930 WHO IS ASSIGNED TO CENTRAL PATROLNIGHTS SQl STRAUGHAN ADISEO THAT THE DID NOT KNOW THE NAME OF THE OFFICER
FPiq AN OFFICER AT
THE SCENE HE FURTHER ADVISED THAT THE OFFICER TOLD HIM THAT ANOTHER SERGEANTSGT STEWART ION LOAN TO I.A.D.i HAD TOLD HIM TO GI VE THE FLASHLIGHT TO SQl
AT OtT DOLLINS TURNED THE TWO PAPER BAGS CONTAINING THE CLOTHING AND
FORM
WAS MADE BY DET AND COPY IS ATTACHED TO THE REPORT MS SMITH ADVISED THAT
SHE MADE THE SCENE OF THIS OFFENSE AND KNEW WHAT TEST WERE NEEDED ON THE
OF THE
SUBMISSION FORM
36
REPORT REVIEWED BYV WEST EMPLOYEE NUMBER030529
COPIES ALSO SENT TO RD1I ACTION DUE DATE
DATE CiEARED 07113/82 --
NODOD
OFFtNSEDEA3 MAN1SHDOTING1 -- --.-
STREET LOCATION INFORMATION
NUMBER 4911 NAMERUSk______________ TYPE SUFFIX
DATE OFTFFENS 07713T/82 bTTEOF SUPPt.EMENTO7z0Bz
COMPLISI LASTFLORES FIRSTROBERTO MIDDLECARRASCO
LAST
______
FIRST MIDDLE
RECOVEREDTOLUVEHIcLESINFORMATION
NONE
OFFICERIJG BURFMESTER CMP$492q SHIFT2 DIVISTATIOIiHOHCIDIE
SUPPLEMENT NARRATIVE
SUPPLtMENTDCTtD7/I4B2 ____________ --- --
OCT BURFMESTER WAS SENT TO THE MORGUE TO CHECK ON THE COMPL JOSE FRANCISCO
ATRM I30 EIk266948.TkIçtoMpL HAD BEEN
REPORTED TO HAVE DIED AT BEN TAUB HOSPITAL UPON ARRIVAL AT THE MORGUE IT WAS
FOUND THAT THIS COMPL WAS SILL ALIVE
HAD ALSO BEEN INSTRUCTED TO RECOVER CERTAIN ARTICLES THAT HAD BEEN TRANSPORTED
TO THE MORGUE WITH THE BODY OF OFFICER HARRIS ISAM BROWN HOLSTER AND BELT
IDEHTTrttrTmATdo-SHIrr-rouR-flmyTkE-sE-ITEMS-HAO-8ECN-RELCASCO TO
OFFICER HUDSON SGT MCSWAIN or THE FAMILY ASSISTANCE DETAIL
I4ADFUTHEEtN THIS CASE --
JAMES JOSEPH KOSMERL WHILE AT THE MORGUE RECEIVED TELEPHONE CALL FROM OCT
CW KENT INFORMING ME THAT THE TCL THAT HAD BEEN USED TO IDENTITY THE COMPL
WoSMCLYADBEtrrTtRtDv1T-A-pHoyoGRApwoyHE-coMpL TAPED OVER THE ACTUAL
KOSMERL AND iHAT THE COMPL WOULD NOW BE UNKNOWN DEl KENT THEREFORE REQUESTED
THAT OBTAIN SET OF DEAD MEN PRINTS OF THE UNKN HISPANIC MALE THAT IS THE
COMPL1NTHIS CASEAFTER TAKINGIZ PHOTOGRAPHSOFTNE COMPL AND THE COMPLS
WOUNDS WiTH PENTAX 35MM CAMERA TOOK SETS OF DEAD MAN PRINTS FROM THE
COMPL
000409
097
JOSEPH JAGI4IMCZYK M.D. JO
.O.In..C ATAOLOT
A0RN1V At LAW
-- CAC CDCALCAAnCS
OFFICE OF THE MEDICAL EXAMINER
OF HARRIS COUNTY
1700 HOLCOMUC
SUITE tOO
1713 7917214
7131 791-7568
HOUSTON TEXAS 77030
AUTOPSY REPORT
Case 82 4300
July 14 1982
PATHOLOGICAL DIAGNOSIS ON TEE BODY
OF
James Donald Harris
1931 winding Creek
Pearland Texas
Gunshot wounds of head face
and chin through and through
OPINION
It is our opinion that the decedent
James Donald Harris came to his death
as result of gunshot wounds oi
head face and chin through and
through Homicide while at work
O4 D\
Jo$ih .Thchicmzyk/ M.D J.D
Chef Medical Examixfer
Aurelio Espinola
Deputy Chief Medical
M.D
Examiner
I. OOO4
App r98
POSTMORTEM EXAMINATION ON THE BODY OF
James Donald Harris
1931 Winding Creek
pearland Texas
HISTORY This 29 year old white male was shot while on duty as
Houston Police Officer in the 4900 block of Walker Street
Houston Texas and was dead at the scene at 1050 p.m on July
13 1982 See Companion Cases 82 4304 and 82 4434
The autopsy was performed by Deputy Chief Medical
AureliO Espinola M.D at the request and in the
of Chief Medical Examiner Joseph Jachimczyk M.D
at 130 p.m on July 14 1982 in the Harris County
EXTERNAL APPEARANCE The body was that of well developed well
nourished Caucasian man measuring 71 inches in length and
weighing 198 pounds and appearing to be the stated age
of 29
years The body rigidity was fully developed There was
unfixed
posterior lividity The scalp was covered with moderate amount
of dark brown hair measuring inches in length There was
gunshot wound âf entrance over the left
side of the head The
eyes were hazel with round and equal pupils There
was marked
hematoma involving both upper and lower eyelids The ears were
unremarkable The nose showed scratch mark over the left side
There was gunshot wound of entrance over the
left side of the
face and another gunshot wound of entrance over the left
side of
the chin There were few scattered stippling over the left
side
of the face moustache was present and there was stubble of
beard The mouth contained natural teeth The neck was
symmetrical with no palpable masses or scars
There were three
gunshot wounds of exit two over the right side
of the neck and
one was located at the back of the right ear
The chest was
symmetrical with normal adult male
breasts There were
resuscitation marks present over the upper and left lower
chest
The abdomen was symmetrical with no palpable masses or scars
The
external genitalia were those of an uncirctcised male with
both
testes palpable within th scrotal sac The lower extremities
were unremarkable The upper extremities showed
fresh needle
puncture marks on both antecubital fossae There were
no needle
tracks present There wasa hospital band aioubd
the left wrist
The back showed no deformity or sign of injury The cerebrospinal
fluid was bloody
Case 82 4300
AUTOPSY
Examiner
presence
beginning
Morgue
INTERNAL EXAMINATION
thoracoabdomiflal incision
removed The subcutaneous
the level of the umbilicus
Section The usual yshaped
was made and the chest plate was
fat measured inches in thickness at
There were no abnormal collections of
App 099
James Donald Harris Case 82 4300
fluids or adhesions in any of the body cavities The domes of the
diaphragm were normally situated and the visceral organs were in
their normal anatomical position and relationship
HEART The pericardial sac contained small amount of blood
stained fluid The heart weighed 350 grams The surface was
smooth and glistening with moderate amount of epicardia fat
On sectioning the chambers were of normal size and contained
very small amount of fluid blood The endocardium was smooth and
glistening The myocardium was redbrown throughout with no
scarring The valves and papillary muscles were unremarkable
The coronary arteriea were patent throughout with no
arteriosclerotic changes The coronary ostia were widely patent
The pulmonary artery and great veins were unremarkable The aorta
and its major branches showed no remarkable findings
LTJNGS The right lung weighed 520 grams and the left lung weighed
470 grams The pleural surfaces of both lungs were smooth and
glistening There were scattered areas of subp.eural ecchymoses
On serial sectioning the parenchyma was congested and
hemorrhagic It exuded moderate amount of frothy fluid There
were no areas of consolidation The tracheobronchial tree
contained moderate amount of thick brown mucus The lining
mucosa was unremarkable There were no foreign materials present
The pulmonary vessels showed no remarkable findings
LIVER The liver weighed 1820 grams The surface was smooth and
glistening with sharp inferior margin On serial sectioning
the parenchyma was yellowbrown There was no injury or any type
-of lesion The gallbladder was intact and contained cc of
bile The -cystic duct and -comon bile ducts were patent and
unremarkable
Pancreas The pancreas weighed 240 grams with normal
configuration On serial sectioning the parerichyma was light
yellowbrown soft and lobulated
Adrenals Both adrenali were of normal size and configuration and
on serial sectioning showed no remarkable findings
SPLEEN The spleen weighed 160 grams The surface was smooth
slate gray and glistening On serial sectioning the parenchyma
was congested and friable
GENITOURINARY TRACT The kidneys together weighed 300 grams The
capsules stripped with ease leaving smooth
and glistening
surface On sectioning the parenchyma was redbrown Tere was
good demarcation between the cortex and
medulla The calyces
and pelves were unremarkable The ureters were of normal caliber
00043-
App
James Donald Harris Case 82 4300
and patent The urinary bladder contained 40 cc of clear urine
The mucosa was pinktan and glistening The prostate gland and
both testes were of normal size and configuration and sections
were unremarkable
GASTROINTESTINAL TRACT The esophagus had smooth and glistening
bluegray mucosa The stomach contained 80 cc of dark
greenblack mucoid material with fragments of partially digested
food material consistent with ground meat There was retention
of the normal rugal pattern There were no erosions or
ulcerations The pyloric valve duodenum jejunum and ileuiu were
unremarkable The appendix was prisent and the large intestine
showed no remarkable findings
BONES The skull showed bullet hole involving the left parietal
bone There were also two bullet perforations involving the
facial bones
NECK There was extensive hemorrhage involving the strap muscle
on the lateral aspect of the neck The hyoid bone was intact
The larynx and vocal cords were unremarkable except for
laceration of the right side of the epiglottis with ireas of
submucosal hemorrhage There was laceration at the base of the
tongue The tongue was otherwise unremarkable On serial
sectioning there was extensive tissue destruction involving the
base of the tongue The thyroid gland was of normal size and
configuration and sections were unremarkable
HEAD The scalp was incised and reflected There were focal
areas of subgaleal hemorrhage covering the left parietal and
I-temporal areas The skull showed bullet hole involving the left
parietal bone measuring 1/4 inch in diameter with internal
beveling and radiating linear fractures There were also linear
fractures involving both anterior cranial fossae There was
bullet hole of exit involving the base of the skull at the right
posterior cranial fossa This measured 1/2 inch in diameter with
external beveling and radiating fractures There was
corresponding dural defect There was no extradural hemorrhage
There was small amount of diffuse subdural hemorrhage amounting
to approximately 20 cc The brain was symmetrical with flattening
of the gyri and weighed 1530 grams The cerebral vessels at the
base of the brain were unremarkable There was bullet track
involvinc the left temporal lobe toward the brain stem There
were areas of contusion involving the posterior aspect of the
right temporal lobe measuring inches by 13/4 inches in
diameter There was similar area of contusion over the inferior
aspect the temporal and occipital lobes measuring 21/2 inches
in widest dimension serial coronal sectioning no other types
of injuries were present There was extensive tissue destruction
and hemorrhage along the wound track
OOO13.
App 0101
James Donald Barns Case 82 4300
DESCRIFrION OF INJURIES Multiple gunshot wounds On the left
parietal area 23/4 inches above the left tragus and 43/4 inches
to the left of midline there was gunshot wound of entrance
The wound measured 1/4 inch in diameter with marginal abrasion
The autopsy showed that the bullet entered the cranial cavity
perforated the brain and exited through the right posterior
cranial fossa and through the back of the ear This exit wound
was located inches to the right of midline and inches below
the top of the head This exit wound appeared to be laceration
measuring 1/4 inch in diameter The wound track was from left to
right downward and toward back
On the left side of the face 13/4 inches below and anterior to
the tragus inches below the top of the head there was
gunshot wound of entrance The wound measured 1/4 inch in
diameter with marginal abrasion The autopsy showed that the
bullet perforated the facial bone lacerated the epiglottis the
base of the tongue lacerated the external jugular vein and common
carotid artery and exited the left side of the neck located below
and the ear. This was located 61/2 inches to the right of
midline and inches below the top of the head This wound
appeared to be laceration measuring 5/8 inch in length The
wound track was from left to right and downward
On the left side of the chin 11/2 inches to the left of midline
and 91/2 inches below the top of the head there was gunshot
wound of entrance The wound measured 1/4 inch in diameter with
marginal abrasion The autopsy showed that the bLu.let perforated
the base of the tongue and exited over the right side of the neck
located 53/4 inches to the right of midline and 83/8 inches
below the top of the head This exit wound appeared Po be
laceration measuring 5/8 inch in length The wound track was
from front to back downward and toward right
There were few powder stippling over the left side of the face
scattered over diameter of by inches
00043
fpp 0102
JOSEPH JACHIMCZYK M.D. JO
pAT.OLOGIT
LYtOSNI At LAW
COCAL CAUNC
AUTOPSY REPORT
73 791.7214
713 791-7569
PATHOLOGICAL DIAGNOSIS ON THE BODY
OF
Jose San Francisco Armijo
4924 Rusk Street
Houston Texas
Gunshot wound of the head
OPINION
It is our opinion that the decedent
Jose San Francisco Amijo came to
his death as result of gunshot
wound of the head Homicide delayed
death
Chi Medical Examiner
Aurei.O Espinola Rb
Deputy Chief Medical Examiner
$ftrtha Mattioli M.D
Assistant Medical Examiner
000439
OFFICE OF THE MEDICAL EXAMINER
OF HARRIS COUNTY
1700 HOI.COMC
SUITE 00
HOUSTON TEXAS 77030
Case 82 4434
July 20 1982
App 13
Case 82 4434
POSTMORTEM EXAMINATION ON THE BODY OF
Jose San Francisco Armijo
4924 Rusk Street
Houston Texas
HISTORY This 33 year old white male was brought to Ben Taub
General Borpital at 1046 p.m on July 13 1982 with diagnosis
of gunshot wound to the head He was pronounced dead at 908
a.m on July 20 1982 The bullet was recovered during surgery
See Companion Cases 824300 and 824304
AUTOPSY The autopsy was performed by Deputy Chief Medical
Examiner Aurelio Espinola M.D and Assistant Medical Examiner
Martha Mattioli M.D at the request and in the presence of Chief
Medical Examiner Joseph Jachimczyk M.D beginning at 230p.m on July 20 1982 in the Harris County Morgue
EXTERNAL APPEARANCE The body was that of well nourished well
developed thin white man measuring 671/2 inches in length and
weighing 130 pounds There was fixed rigor mortis and fixed
posterior dependent lividity The head was asymmetrical The
right parietotemporal area was soft and bulging and showed an
inch anteropoatØrior incision with back stitches which extended
up to the back of the head Also on the parietotemporal area at
point inches superior to the tip of the right ear and inches
to the right of the midline there was gunshot wound of entrance
The characteristis of the wound could not be determined due to
surgical procedures The hatr had been shaved There was small
skin nodule on the left cheek The eyes were brown The pupils
were rourtd and equal The conjunctivae were clear There was an
area of ecchymoses on the right upper eyelid The nose was
intact There was decubitous ulceration on the left nostril
The mouth contained natural teeth in good condition The ears
were symmetrical and unremarkable There was black goatee and
moustache The neck was symmetrical There were no palpable
masses or scars The chest was symmetrical The breasts were
adult maletype There was no hair in the anterior portion of the
chest The abdomen was flat There was an ecchymoses on the
right inguinal area There were no scars or marks present The
pubic hair was black and male in distribution The external
genitalia were those of circumcised male Both testes were
palpable within the scrotal sac The lower extremities were
symmetrical and equal the lateral aspect of the right thigh
there was sutured incision measuring inches The lower
extremities were otherwise unremarkable The toenails were short
The nail beds were markedly cyanotic There was name tag
attached to each great toe The upper extremities were
symmetrical and equal There were no needle tracks present The
000440
App o14
Jose San Francisco Armijo Case 82 4434
hands were slightly swollen There was hospital flameband
attached to the left wrist The back showed at the back of the
neck large area of ecchymoses with swelling extending from the
occipital to the superior aspect of the neck It was otherwise
unremarkable The spinal fluid could not be obtained
INTERNAL EXAMINATION Sectiun The usual Yshaped incision was
made The subcutaneous tissue was bright yellow measuring inch
in thickness at the level of the umbilicus The pctora1 muscles
were beefy red The rib cage was intact The thoracic viscera
were in their usual anatomic relationships The free edges of
both lungs were blunted The pleural surfaces were smooth and
glistening There were no pulmonary adhesions There was no free
fluid within either chest cavity The pericardial sac contained
several milliliters of clear light amber fluid The hearts
blood was both fluid and clotted Both leaves of the diaphragm
were intact The abdominal viscera were in their usual anatomic
relationships The serosal surfaces were smooth and glistening
There were no adhesions There was no free fluid within the
peritoneal cavity The peritoneum was smooth light gray and
glistening The appendix was present
HEART The heart weighed 330 grams There were no thrombi in any
of the four chamber4 The foramen ovale was not patent The
cavities were normal The valves were intact The epicardium
myocardi and endocardium were uniformly tanredbrown and beefy
rIa papillary pectinate and trabeculae carneae muscles were
i.itact The coronary ostia were patent The coronary artery
walls were smooth thin glistening and pliable and their lumina
were widely patent throughout The aorta was elastic and showed
mild fibrolipid deposition in the ascending portion The great
veins were collapsed
LUNGS The lungs were similar in size shape and appearance
together weighing 2220 grams The pleural surfaces were smooth
and glistening The crepitance of both lungs was diminished The
cut surfaces were edematous and congested The bronchi were lined
with an intact grayyellow mucosa The luxnina contained
moderate amount of gray frothy fluid There was no foreign
material present There were no pulmonary thrombi or emboli
LIVER The liver weighed 1620 grams The capsule was smooth and
glistening section the cut surfaces revealed homogeneous
redbrown lobulated appearance The gallbladder and biliary tree
were not remarkable The gallbladder contained 30 milliliters of
green bile There were no calculi
Pancreas The pancreas was of normal size and on sectioning it
was unremarkable
000441
App ijii5
Jose San Francisco Armijo Case 82 4434
Adrenals The adrenals were similar in size and appearance and on
sectioning there was good demarcation between the cortex andmedulla
SPZEEN The spleen weighed 190 grains The capsule was smooth andglistening On section the cut surfaces revealed soft dark
red parenchyma The Malpighian corpuscles ere prominent
GENITOURINpRy TRACT The kidneys were similar in size shape and
appearance together weighing 320 grams The capsules strippedwith ease revealing smooth brown surface On section the grossrenal architecture was not remarkable The ureters and urinarybladder were intact The urinary bladder The testes weresimilar in size shape and appea.rance The tunica was intact On
section the tubules strung with ease The epididymides were not
remarkable
GASTROINTESTINAL TRACT The esophagus was lined with art intactbluegray mucosa The stomach contained 10 milliliters ofbrowngreen fluid There were few petechial hemorrhages in the
niucosa The remainder of the gastrointestinal tract was not
remarkable The appendix was present
REkt The scalp was reflected in the usual coronal fashionThere was massive subgaleal hemorrhage and there were stitches
corresponding to the sutured incision On the right parietal areathere was an entrance hole which showed inward beveling Thehole measured 3/8 inch From this there were lines of frture
extending posteriorly and superiorly There was small gap ofthe parietal bone due to surgical procedures The brain weighed1360 grams There was massive subarachnidal hemorrhage There
was marked destruction of the right ceebral hemisphere which
showed necrosis The wound track could not be completely traceddue to necrosis of the tissue There was also necrosis Of the
right cerebellum The brain stem was intact The neck was
palpably intact
DESCRIPTION OF INJURY Th bullet entered the head on the right
parietotemporal area fractured the skull and lacerated the right
cerebral hemisphere and cerebellum The direction of the wound
track was front to back and right to left No bullet was
recovered
OOO11
pp 0106
zai
._
4OC
I1 42t5
Is
IS
My uià3S_
IC
CCC 54
flit
II CCI
Ppp 0107
0004i
42667682
C0A14I INCs
42667382---ATTD CAPITAL MURDER P.O
OFFICER TREPAGNIER
SCENE IVESTICATION
_____
A. Aerial Photographs
____
Video
5TATEENTS pj AS PAGE
_____ Offipcrs
.Writte1No Orilr_____
_____ Cizans ./Vri t.e1 No._______
..aDfendarJ.
.Writt/n No Ora1
H.P.D OFFICERCCLAINANT /ULTRRpAT
COZ.L INC$ 42667382
N/A Autopsy Viewed Vicd
NO Blood Sample
YES
Clothes
NA
ID County Clerk on Pcnding Cases
NA D.P.S
NA
File Check in olhcr fljvjnjons
Cornputor Name Check
Index Name Cards
NA Fingernail Scrapings
NA 11 hair Serrplcs
_____
Identjfjcjon DSvimion Cmcck ITfl CS3
NA
..J LC.I.C./T.C.I.C
--
v.e DOLLINSNE
_____
Pcr.onal Propcrty eLiincd
NO Iwtus
NA
1rinrs 11
9ST
ItONIC1DE lNVESTIg.jIQ
CHEC LIST
DATE 72782
DT
SANE AS PAGE CE
18
Page L2 ltonicida In/estigation Clicck Li
.4.2667682 DEw MANL ROBERTO FLORES CONTD
T.M.D.T SMITH CRy
NO Toxicology Results
YES Wound Chart
SUSPECT/DEFZDANT
_____
Autopsy Viewed No Vied..
_____
h1
________
_____
Identificatjon Djvijo Cliz
_____
N.C.I.C./T.C.I.C
_______
____________________
_____
Toxic logy Resuli
________________
_____
Wound Chr
WEAPONS CHECK
YES W0
___Dfncin WEESER/WEST
YES A.T.p.X iFs__Ccmp1 WEBBER
Resuirs Rccctcd WEBBER
_________
Fo1hr.up ccu1c on WEBSER
_________________
OJ
App 1o9
age homicide Irr.estigotion Lit
42667682
OR INC 42667382 OFFICER TREPAGNIER
NO T.H.D.T
_________
NA Toxicology Results
____
Wound Chart BOSTOCK
SUSPECT/DFEDMT
_____
Autopsy Viewed Nut Vit-d..._________________
_____
Blood Sam le
____
_________
_____
Personal Property retncd
_________________
_____
Photos
____________
_____
Prints
_____
Slugs
_____
T.N.D.T
_____
Toxicolo Results
_____
Wound
WEAPoNs CIECK OFFICER TREPAGNIERS WEAPCt
NO 14 Cuinj.linint TCfld.nt
____________________
NO ATF Compltiiru Dcfcndit
Results 1ccjvcd
______
_________
Fo11o.rup Rccilt on
ii
OOO46
App Otlu
geL3 of Homicide Invrsci1b_Licm Lj-
42667682
COANION CASE INC4
42667382--ATTD CAPITAL MURDER P.o
EvIDECE
Laboratory Results
YES Crice Lab
HZ ATER
Distance Dctexjnatjor HEArR
Other Tests
YES Latent Print Lab L.COOPER
Suspect weapon COOPER
Vehicle
Other items
YES Lab
ANDERSON
Suspect weapon
.ANDERSCN
Other weapon
C._ANDERSON
CASSETT TAPES NAD
Police Departaent rapes
_____
Car to Dispatchcr
_____
Telcphne clcrk
____
WITZSSINTERvIEw__ SPANISH--YES IntervJs/staLscW0
COflIO CASES SENT TO OThER DIVISIQ5 FO TI1IoN
IncidentU Division Cc Offcns
42614582 1.HQIICIDE CAPITAL MURDER P.O
42669482 H4ICIDE CAPITAL MURDi
37977582 ROBBERY AGO ROBBERY EANDLED BY HCMIC
82006775PRCT $4 bbt437il2 4.gTryfl TD CAP P.OCOPIES OF REPORT MADE FOR
YES D.A Civil flihrs 5cctjo- WEST
_______________
D.A werc ch.rcs f1cc1
YES I.A.D WEST
YES CAPTAIN WEST
______________
WESTHonjcdo
YES ALSUP--SOtJTREAST PATROL
ytorS Is
Prc ared WESTy___
JITtOr rrNr
000457
cpp 0111
SUPPLEMENT REPORT Cas Ne 82006775
IRRlS COUNTY CONSTASLES DEPAATW jp No
PRECINCTg4
NAME OF DEFENOANTISI --
___________________________
COMPLAINANT ILUS Frt MddIi1
LOCATION OF OFFENSEPFF tlt4S
OFFENSE CHARGE OR INCIDENT ON ORIGINAL REPORT
1P.AVATD POBFPY IcHAnGEo1O
11
CORRECT OFFENSE OR NCI3ENT CLASSIFCATQi
MULTIPLE CLEAR LIP LI. Other CIII fl.smDIr1
YES NO
and Ce-Of.nd.-
EVIDENCE OR PROPERTY RECOVERED IN PROPERTY ROOM TAG NO TO CRIME LAB
YES IDhcr NO YES NO YES NO
INSTRUCTIONS R.coj Schlviry in _- Iubuaij.n 50 liii agoqj sin iam.i iOdr.u d.a slid tim 01411 ParSon ntigrIj jr 5Uwumsu llSsffi.nhl if any Ricoid ttItan.sti uflfiwab1i I.Cle oI IDOliN of d.fsndant
ITEM NO EPLLOW UP INVESTIGATION
______
On 79-82 Mr JAMES DAPS.ELL witness to tho offos
_______
Vntanery County her1ffs Onpren t.ith iri1 cjIderIt1fiptj Divicirm fnr the prrieiee ricj1i rr.c1tr rrc
_______
susoects in the ahove offpncco
______
Uion r1jjrn of tI jrto.-yj..i ie r.n4o
M.
rsnly fi jj.I lnfr.n- Iliri
..
71CIP7 It ct114 rfiyiFij r.iri fli rrriri
r.g.lic af fIt ce.v prMP InrlrIPt
r5 7_7.1_%t yf 14.I lfl i.I
rrn.rrf rfn TEIr Iv II.M
eTIf
TPRrcTTrfi7nf TI CrIPITIIJIc
REPORTING DEPUTY BADGE STATUS Chick on
rI r4hpN1 OPEN YYYYvCLOSEO SLISPENOEDSECOND DEPUTY BADGE SUPERVISOR NO
iA
vv
OOO4S
App 0112
SMOWUP MAGISTRATE OR LEGAL WARNING
YES NO IA51c2 lam tim Diowly
II
PRECIc1
CONTINUATION FORM Cce
PS.AL EVIDENCE
Two2 spools of white ad1esive tape
One1 black CLOSED sign red letters and white border 7xll
Three3 sets of partial finger prints
Onel True Value browm paper beg
One1 envelop of Strips of white adhesive tape used to bourd reortees
and two customers harids
DETAILS OF OBTENSE
Repertees Zastrow and Carrell both employees of Rebel Guns located at 25443
Xuykendahl stated to this deputy L.E Shiflet 453 that at aopox.ratey7882 three Mexican males walked into the store the oldest as carry.ng
paper bag and walked to the counter where Mr Zastow was sitting ard taljrthe phone As the other two moved to th back of the store the suspect vith
paper bag removed blue steel Russian revolver .45 caliber with an eeie
magazine from the bag pointed same at Mr Zastrow and said This is htd
The other two suspects ustled the two customers to the back room and te
Zastrow was taken to the back room where all four were bound wth strjs
white tape Only the hands were bound behind each victims back Ssecs
placed closed sign on the coor and removed eeral automatic weapons ai fe
the ent Drction unknown and mode of travel urknown
security guad for Sal alked into the Otore and did not see anyone ie
around and opened the door to the back rooe and found the four en wh
bound behind their becks The guard helped the nan get free and as-aO-
of the room this deputy arrived on the scene
Thy security guard was later identified as DC7NIS ROSINGTON Te staed oao
not see the fleeing suspects The two custoners were identfied as
STEVEN GORDON 11911 .2ane Lane Tcrnball Texas W/M DOS 2359 Phone
work phon 4437590 and DAWSON ROBERT DANIEL 9718 Largs Spring axr
DOS 62350 Phone 3761663 work phone 376-4180 x38O
All reportees and witnesses can identify all three suspects
LOSS On.l Detonics .45 calibsr stainless steel pistolCautorati sea
nu.iber CR16126 valued at $550.00
One M.lAl Thompson Cubmachine gun .45 caliber blue steel
number 539390 valued at $1500.00
OnsCi MAC 10 Ingram .45 caliber automatic pistol blue stee
number available valued at $700.00
One1 MAC Suspressorsilencer blue steel for .45 calier no er_
number available valued at $250.00
34 REPQRTC DEPUTY UNIT BADGE 35 STATUS Chuck
2c
L.E Shiflet 453 LJNOUNDED CPSN XXXX
_________________________________________________
CLOSED SJSPENQEO
SECOND DFPUIY UNIT BADGE
__________
38 SUPERviSOR APPROVING ur SiGE
M-II
In
pp 1113
Oif5
poge___ of i____
iIARRI5 COUNTY CONSTA8LES DEPAJ4ENTPRECINCT
CONTINUATION FORM
DEAILS OF OFFENSE CONTINUED
LOSS CONTINUED
One M2 Carbine automatic
.30 caliber inland brand blue steel -a sernunber valued at $500.00
Onel Srowning Hi Power 9mm serial nunber 245Pz56343 valuec at $6COnel Lama .45 caliber automatic pistol blue steel serial r.ur.er 7t5valued at $325.00
Onel model 459 9mm blue steel serial number A73595l vale at S4Onel model 539 9mm blue steel serial number A766489 va.ue at $4
DISPOSITION
SUSPECTS WANTED
11 Mill Nt 55 NT 125130 lbs approximately 3538 years old slenderunshaven trimmed mustache speaiUng broken english wearing dark brcand blue jeans and high top dark brown running shoes Has dark brgray streaJs dark brown eyes and dark complexion
Mill Nt SlO Wt 185 lbs medium build light skin dark brawn haj c.cbrown eyes .edium length hairstylcd trimmed mustache wearing lig.rT-chirt with eao on front blue knit pnnts blue tennis shoes speaks -aenglish liss iI.oo of M2xican Cabslle-. on rijht arm bicep approxiaey 3x4Z.pproximatily Li21 years of age
03 ri/H Nt 5S 120130 lbs approximately 1517 years old dark sk.blue Tshizt powder blue slacks with pink tennis shOes speacs crakerdark brown hair dark brown eyes
NONE OF THE SUSPECTS WERE EARINC ANi TYPE OF .JEWELRY
031 OPEN PENDING FURTHER INVESTIGATION
34 REPQRTiPjG DEPuTY UNIT BADGE 35 STATUS iCheck ons
fliZ.Lat 43 UNFOUNDED OPEN XXXX
SUSPENDED
37 SECOND DEIUIY UNIT aAoc.E 38 SUPERVISOR APPROVING UNIT SACCE
App 0114
0004b6
Co3e
________
NIIUIF
1DUSTON POLICE DEPARTMENT PAGE l.ocCURRENT INFORMATION REPORT INCIDENT NO O379772
OFFENSE AGGRAVATED ROBBERY CDW3THEFTCAUIOCFELONY
PREMISES PK LOT WEATHER CLEARUARM
LOCATIONz STREET NO 003400 NAME BISSOP4NET
DIST47 BEAT47A60
BEGIN DATE TN 06/24/82 TIME 1350 END DATE TIME-
RECEIVED/EMPLOYEE NAMEME GILCHRIST NO.0748f8 DATE06/25/82 TIMZC
COMPLAINANTS
NOOf BUSINESS NAPIEAUC INC
ADDRESSf68SO TITAN DR
PHONEs HOME000 0000000 BUSINESS713 4865800 EXI
NO02 NAMEs LASTKOSNERL FIRSTJIM MIDDLE
RACEU SEXM AGE28 HISPANIC
ADDRESS8343 SHADOW WIND DR
PHONE NOP1E713 4668015 BUSINESS7133 4865800 EXT
--- WITNESSS
NONE
REPORTEECS
NONE
VEHICLES
NO Of TYPESTOLEN COMPLAINANT NO DISPOSITIONCLEARED
YR82 MAKEBUICK MODEL SKYLARK STYLE20R
LICENSE NOZVH58O STATETX YEAR82 MONTH-00 TYPEPC
yIN COLORS ISTDBLU 2NDSILVER
VALUES 10000.00 SPECIAL FEATURES
RECOVERYsLOCATION 5420 HARRISBURG DIST00 BEAT-0000
DATE06/2S/82 TIME0715 VALUE-s 0.00
RELEASED TO-COMPL
App 115
OOft.03
$UIN
INCIDENTNO 037977582
....URRENT INFORMATION REPORT PAGE 4.O
SECURITIES
NO 01 DISPOSITIONSTOLEN PROPERTY TAG NO-0000000
DENOMINATION TYPE CASH
ISSUERUS GOVERNMENT VALUES 80.00SECURITY DATE COMPLAINT NO .02 SSN000/00/0000
NO 02 DISPOSITIONSTOLEN PROPERTY TAG P400000000DENOMINATION TYPE CREDIT CARDS
SECURITY DATE COMPLAINT NO 02 SSN000/00/0000
OWNER-VARIOUS CREDIT CARDS
ARTICLES
NO 01 DISPOSITIONSTOLEN PROPERTY TAG P400000000 COMPLAINANT NO-OlITEM TYPETEXAS DRIVERS LIC UCR CLASSIl
DETAILS OF OFFENSE
SUSPECT PULLED PISTON ON COPIPL AND STOLE HIS VEH
OFFICER Ii NAMEME GILCHRIST NE EMPLOYEE NO-071818 SHIFT-2
OFFICER2s NMERN STISO EMPLOYEE P40071922 SHIFT2
DIVISION/STATION ICENTRAL UNIT I17A6
CALL RECEIVEDi DATE06/24/82 TIME1433 REPORT MADEs DATE06/24/82 TIMEISIS
END OF PAGE ONE
OOOjO4
App 0116
muis
INCIDENT NO 037977582 _..URRENT INFORMATION REPORT PAGE 2.OC
SUSPECTS
NOOl DISPOSITIONPOSSIBLE /CHARGED HPDNO000000
NAME LASTFLORES FIRSTROBERTO NIDDLECARRASCO
ALIASCNICKNAPIE3UEDO
ADDRESS3i0 S.E 4TH AVE PERRYTQ4 TX
RACEU SEXPI AGE270O HISPANICH DATE OF BIRTHI 4/27/54
HEIGHTSil TO UEIGHT47S TO
HAIR COLORBU TYPECURLY LENGTH-PIED
COMPLEXIONMED FACIAL HAIR
SPEECH/ACCENT-BROKEN ENGLISH EYE COLOR
DRESSSTRIPED SHORT SLEEVE SHIRT LIGHT BLU SHIRT
WEAPON USEDSTAINLESS STEEL AUTOMATIC LARGE
MISCSUSPECT POSSIBLY MIDEASTERN
SUSP KILLED BY POLICE 74382
INJURED TAKEN TOMORGUE BY
CONDITION-DEAD
M.D SUMPIAY
REPORT ENTERED BYBROOKS EMPLOYEE NLJNBER077477
STATUS OPENX CLEARED INACTIVEX UNFOUNDED
REPORT REVIEWED BYV WEST EMPLOYEE NUMBER030529
COPIES ALSO SENT TORPI/ ACTION DUE DATE
NARRATIVE
ORIGINAL REPORT NOT ENTEREDDESIGNATED PAGES ENTERED TO MAKE SUPPLEMENT
App 01t7
a_
INCIDENT NO 037977582
....URRENT INFORMATION REPORT PAGE .oc
SUPPLENENICS
ND000I
OFFENSE AGGRAVATED ROBBERY CDU3THEFTAuToCFELoNy3
STREET LOCATION INFORMATIONNUMBER 3400 NAPIEBISSONNET TYPE SUFFIXDATE OF OFFENSE06/24/92 DATE OF SUPPLENENT06/25/82COPIPLCS3 LASTAUC INC FIRST MIDDLE
RECOVERED STOLEN VEHICLES INFORMATIONYR-52 MAKEBUICK MODEL COLORs TOP-DBLU 2ND SILVERLICENSEs YR82 STTx NOZVHSBO VIN IG4AB69X8CT42j2gRECOVERY LOCATION5420 HARRISBURG DISTRICT BEATRELEASED/TOWED TOCONPL JIM KOSMERL TOWED BYOFFICERIVERSHAVE JT EPIPU078392 SHIFTI DIV/STATIONMETROOFFICER2CONrRERAS RD EMPU-025538 SHIFTICALLERS NANEVERSHAVE JT PHONED C000 0000000 EXT0000
SUPPLEMENT NARRATIVE
OFFICERS ON PATROL RIDING 1A22 WERE DISPATCHED AT 0715 TO5420 HARRISBURG ON AN ABANDONED VEH CALL UPON ARRIVAL OFFICERS DISCOVEREDTHE KEYS WERE IN THE VEH AND THE OWNER OF THE BUSINESS WHERE THE VEH WASPARKED TOLD OFFICERS THE VEH HAD BEEN THERE SINCE APPROX 1500 062482THROUGH INVESTIGATION OFFICERS DISCOVERED OWNERS NAME AND PHONE D.COP1PLNOTIFIED COIiPL THEN GAVE OFFICERS THE INCIDENT 37977582 WHICH WASAN AGGRAVATED ROBBERY THEFT CAUTO3CFELONY COMPL MET OFFICERS AT 5420HARRISBURG AND AT THIS TIME OFFICERS RELEASED VEIf TO THE COMPL
COMPL STATED HIS WALLET IS STILL -PIISSING CONTAINING DRIVERS LICENSES VARIOUSCREDIT CARDS AND $80 CASH NOTHING ELSE APPEARED TO BE MISSING
NO PRINTS WERE TAKEN DUE TO THE FACT THE VEH WAS TOO DIRTY-NO SUSPECTS-NOWITNESS
SUPPLEMENT ENTERED BY 77477
REPORT REVIEWED BYI FLORES EMPLOYEE NUMBER044773COPIES ALSO SENT TO RPI/
DATE CLEARED 07/24/82
OOUO
App 0118
INCIDENT NO 037977582
..URRENT INFORMATION REPORT PAGE 2.OC
NO0002
OFFENSE AGGRAVATED ROBBERY CDWTHEFTCAUTO3CFELONY
STREET LOCATION INFORMATIONNUNBER 3400 NANEBISSONNET TYPE SUFFIXDATE OF OFFENSE062482 DATE OF SUPPLEPENTO7/2782CONPLCS3 LASTAIJC INC FIRST MIDDLELAST
RECOVERED STOLEN VEHICLES INFORMATIONNONE
OFFICER 1V WEST EMP03o529 SHIFTI DIV/STATIONHONI
SUPPLEMENT NARRATIVE
THIS DEl TOOK PHOTO OF ROBERTO CARRASCO FLORES LN 27 ALONG WITH OTHERPHOTOS AND SHOWED THEM TO THE fl2 CONPL IN THIS CASE ON SATURDAY JULY 24 1982JIM KOSIIERL MADE AN IMMEDIATE AND POSITIVE ID OF FLORES-AS THE PERSON WHOROBBED HIM AND TOOK HIS PROPERTY IN THIS CASE
ROBERTO CARRASOC FLaRES LM 27
-IS DECEASED BEING KILLED ON 71382 BYPOLICE OFFICERS AFTER SHOOTING AND SEVERELY WOUNDING ONE OFFICER AND KILLINSSECOND
SUSPECT CDECEASED3
ROBERTO CARRASCO FLORES LM 27
CASE CLEARED BY DEATH OF SUSPECT AND PARTIAL RECOVERY OF PROPERTYCCOMPLS VEHIC
SUPPLEMENT ENTERED BY 30S29
REPORT REVIEWED BYV WEST EMPLOYEE NUMBER030529COPIES ALSO SENT TO RPI/
DATE CLEARED 07/24/82
END OF PAGE TWO
OOOO7
pp 0119
CITY
1NTEA DICE CSE50eEr.CE
113 A55T TERRY
.JLSON tk UET oIECTIVECIVIL RIGr4TS DIVISION
DISTRICT AITORrEY5 O7FICE
..L1 25 H52
CLICE TCESIC
.j
.2 13-
..Qj rL.rCGr.t CASE
ATTD CAPITAL PjR
ci.r.A.cr CASES oo LALvE
IJC2..1AS32 CAPIIAL rsER p.oIrCz3 CAPITAL rLPOE
AT APPROX 1130PM TUESDAY JILT 13 ic ROBERTO CARRA5CrJ L3RES 27EXICAN NATIONAL WEDO WAS SkOT AtJO ILLE0 BY LINIF0P HCUSTCi PCI ICETEPAGNIER-A PALOS It AND fl CflPIOjE7 AT 4c14 RIjSK IN TETH YARD FLORES OEDC WAS EVADING APPPEN5tOtj FOR THE CRIrES OFCAPITAL MURDER OF POLICE OFFICER AD THE ATTEP ED CAPITAL UPDER CFCITIZEN WHICH HAD OCCLJEO 90 Itr4.TES PREVIOuS AT 4900 4ALwER ST THE LTACF 4900 WALKER IS ONE BLOCK SOUTH OF 4911 PLISK ST
FLORES ANO 2ND SUSPECTRICARDO ALDAPE SHOT ArJO KILLEDHOUSTON POLICE OFFICER KARRTS rOLLCTr5 TRAFFIC STOP Ai Tr4SHOT AND FATALITY WCUtCED JOSE AIJO AN IWOOEt4T CITIZE AS HE JA5DRIVTtG BY WITH HIS FAnILY IN Tk CAR CIJO CTO JL-LY 20
-i2 r-4BEN TAL HOSPITAL
SECONDS EEFORE flING ShOT BY THE ABOVE iENTICiED oFrcE FLCESAN SEVPELy WOUNOED OFFICER TPZPAINIEP FtDPSS OLFOC TH6N RAt AflpCTE CORNER tF THE HOUSE FROM ikE RACK YARD AT A91 C1Sk fl Au tlHcR TrtAND FIRED AT THcM FIRE WAS RETLI.EO AND FLOPES VAS HIT SEVE TIrES OilCr4 THE SCENE
THE SHCOTIN OF OFFICER TPZPAO OCCUED FLLoIe4s THE sEAF- CF APATCJSE AT 07 RUSK BY OTER OFFICERS UD DETECTIVES FOR iE flo EuSECTeTHE EARLIER SHOOTINGS OFFICER TREPAIER At. OICER EDLA7CS kA SEE ATnE SIDE OF 4911 RUSK OBSLRVItJG THE PEAR OF AC7 USK AFTER O1E 3F rz3HAD CLEARED FROM 4907 RLS. OFFICER TPEAOJi AtD ECUAROS OECIC5rGARAGE AREA CARS AD BACK tRD AT 49I PUSK OrFICEROFFICER EDWARDS AND ENTflEO TkE BACK YAAO Ar.fl WAS SHOT TIrE FLr
2ND SJSPECT Ir4FORAT IONAT THE TIr OF THE SHroIr CF OICER TRA TE SECr CLEARLIER SHOOTINGS WAS ALSO IN THE BACK YARD RICARDU GUERFA 2ND S5-H -0ARRESTED HIDING BEHINU HORSEIPAILER IN TH SAC 2ACflRD FEW
--HEE1hE SHOOTING OF TREPONrER
.sS SEI-AU1OATIC EAPCrl WAS PECJr4ER ThE TRAILER WITHIt4 FEW FEET oF UE5 GLSSA WAS APRESTEO THAS LATER IDENTIFIED AS COnING FROn AN AG5RAVATED JPERy IN
WHICH SEJERAL GUNS WiPE TANf1J ACOITiCN WS LATFP rrr7FrIN LINEUP AS BEING THE t5Ow R0T KTILFfl r.rrTrFp 7tc
AT THIS TIrE THERE IS NC INc.ICATICN THAT O..ERRA TO-iS PAT ir 5r71rOFFICER TREPAGr4IER VI
000534
4pp 0120
HOOTIPJI3 nr Fi.oPrs iFrWnE14 THE Sr1fl3TIN3 OF OFFICER TEPAG4iraecCLc OPFIcE ELADS CZCPPLGROLUD ON THE LEST SIE OF A9j1 RL OTER OFFICERs TE FRONT07 AF4Q 11 RLSK RAN T0 THE SCrEt. CCRu OP THE YARD ArL HCCSEPOSITIONS HERE WERE Si OFFICERS TN NIS L3CATICP4 P5JT1 7A
Cl SCUIHEAST CCRNiR OP RESIDENCE
OFFICER FALDS cJsrNo
.-.5 AN FIRED IES
OFFICER TELET
.357 NOT FIRE LSED FLASHLIGr TO LIOkT
SOUTHEAST CORNER OF YARD 5Y ED OF ECE .D CAR PARVEQ NEAR
OFFICER RODRIGuEZ CUSIN3
.10A SHCTGL AL F1E TInESOFFICER BRAITON Cfl
.OT PIRED STOOD BY CAR ARvED p3 rpy IAOFFICER DEALEJApo c.sr NOT FPEC TOC PoITzC EAST SICE OF CcEOFFICER AROCHA DID NOT FtFL LN TOC CU EA5T Tr
PACK YARD OF 4911 RUSK
OFFICER TREPAGUIER
.357 FIED TTEsi____u
FIPEAP5 EVIDENCE COf4SISTIG OP FIPO
.45 Atfl SPCTr.i ULL5r..RTRIcrGE CASES IN TPAnNpq tn RIMFT TPT Ann FprFROM TH DEAD COP1PLAIiMr OLN IiCATES ThE FCLLOLINO CCCRRD
FIRItJG BY C0PL UEDOFOLR fl FIRED HULLS FOjto ThE F.CK Y.Rfl IJP NEXT TO THE CL3ONE IN THE DETATOIED 5AAOE 11c.Io..TE TT WAS sTAfDxnTHE GAGE OR JUT OLISICE IT WrRtJ HE PIEC Or flPFICE TPEPAOUIELIKELY STA40146 BY THE LARGE TEE EAT TO 7- GAAGE
SIXTH FRED HCLL WAS HLLAT FTLETh WER O7ICE TErrFELL AT THE NORTHEAST COR.ER CF SRJT OUT CF SIONT OF crcTHE FPCJIANU WHERE WEDO FELL WrEN SHIJT DISTACE OP APROX FEET
FIRING By OFFICERS AT COPL OWEDO
OFFICER TNZPAGNIEiYS .337 REVOLyp LAS FOwJ WITH ALL ROUNDS PIBULLET STRIKES WERE FOUND IN THE WEST SiDE OF 4q15 RUSK HE HO.FEEAST CF 4911 ONE CF THESE STRIFES ENIERED THE HCLSE At O.ECORE WAS FOUND IN AN IUt.ER RO OF ThIS rOLSE THERE AS TR.jrOF TOE TO HEAD A40 LEST TO EAST ONE Ci CORPEP JACKET WAS FCtTHE BULLET STRIKE IN THE PRICK
THIS WCLLD INDICATE THAT THESE SHOTS CANE FROr THE PE OF THE NC EESINCE ONE .3S7 WAS FOPD IT WOULD INDICATE ThAT OFFICER TEF3IETHESE 5T5 IT LCijtfl A5 Tr.rTrATF ThAT IT uC1 MAFOR OFFICER TREPu TO HA. pFrJ ThP ip TkHF FIRFO TrFCF cHCT FI TI-F TO cTMrpr UrFPC Trlry
SEVERAL FEET FROO FII
ooO35
App 0121
OFFICER A. PALOS FIRED TTIFS AT THF r.r.P1 flH kc
.41 AND LL9WERE RECCUERED OFFICER PALOS FIRW AT THE CCrPL FRC THE 5OjrA ccOF THE RESIDENCE FOfl BEHIND TRE THE DISTANCE EC1 OFICER ALOS IDTHE COi1L LAS APPROX 32 FEET
OE .45 ROUND WAS RECOcERED FOi THE LFTtT rJkLF AT AUTOPSY OF Er1o
WHAT IS BELIEVtO TO BE BULLET HOLE rACE BY
.45 SLUG US Fi i. Ir THESIDE OF GARAGE APT LOCATED MTRUSS THE FuCE BEHIND 3j RUSE
OFFICER RODRIGUEZ FIRED TIrES AT THE CCrLATPAjT WITH HT .r.ASHOTGUN WITH FIRED 12 HULLS PCIT.UEPED OFFIR rIraRIHF7 FpEDCOMLAINACJT FROII THE SOUTHtTST CctFR OF TH YAD rJAR THE END OF THEAND AT DISTNCE OF APKX EET
SEVEL WOUc.5 WERE FCUNO IN THE SCOY CF TE OCr LAINArr LHICH LEE
SHOTI5UN PELLETS
THIPTYSIx 36 STR IhES WtF COCHTEC IN TH STOE OF THE HOUSE AN T2EEI
ONE SIR IKE rC..D IN THE SiDE OF ThE PPEVIOIJSL 1E.4TIONEDAND THIS LAS SHOTGUn PELLET
INFORrATION ON COflPLAINANT ArD j3WEAPON
I5 CCPLINANT WHILE AT THE SCEE 3J rJ5 4A0 Iai rOCE EESAFETi rEASUE FOR CFICERS TLE SCr4 Ar PAPER 33 HAD BEErON HIS HA.DS TO PROTECT IME1 SO TAT T.n.D.T CLD BE UN LATERThPOLt WHEN THE CCL4IA4T LAS LCAE AT THE sc LcDa
-.D
.O AITrr WAS lADE TO SEARCH -1
r4 ACOITION LAYING NEXT IC HIS LEFT LEG LAS 2SOLNI3 9Th SErIALTOrATISTOL WITH THE SLIDE LOCKED BAN I.DICATING THAT THE LEAON LS EPTtTHIS WEAPON LAS PRIN AT THt SCE4E AN Ar A.T.F CHECK LS Per Cr TI5
AJtj LATER TO DETERIINE TE OLNER AS TkEE UAS .i STOLEN ON THIS GL.
ON ARRIVAL AT THE rICRGU GDO WAS SEAPCr.O IN THE PRZSE CF rET
J.ZL1NOPI OF HOITCIDE AND IHE FOLLCUTNG ITElS FrjtjDCi OFFICER HARRIS .357 CCLT PYTHrPJ SERn477E FOUND STUN THF FRrZ7WEDOS TROUSERS
crrt CLIP WITH 20 RCUNDS 7N IIILITARY TYPE POUCH
II LIVE 9JI RDS IN PDCkT
14 ANOTHtR HOLSTER
iS DRIVERS LICENSE IN NAE OF JA1ES JOSEPH KOSNEL UIJH THE PHOTO CF
OVER TH ORIGINAL PHOTO
IHS LICENSE FOND TO HA CLIME FROM RTflERY VICTIm IN UHICH
CAR AND PAPERS LiRE TAEU
HEtR3jIN5 911 SEIAUTOflATIC ISTL SEP2S37 28 WAS CHECED
TC HAVE BEEP SOLD TO CArE COtJTR
çJn STOP In PAS.Lr
.RTHER CHECK FOUND THAT ALFRrn ALN3 .R HAr PjRCkAE HT
1q52 FOR LATIN rALE UNC HO APR CtC HIr TE IN ThE
..O ASVED ALDNADO TO Sir T.i .J Pill -ono I4nE TO
UEC AS ThE flA4 HE BCLOrT GU FOR TZ1 AT CAPTERS CCW.T
fl/I
__
App 0122
000536
LJITJEtr CASEFLL_r rEFICEP
..
..r
aLAPDS CE.t7AL ..rr
WITH FFcER TE.E
-sTh
ELIT DID NOT SEE HE ET
.ER LrflTL AFTER TE TcEAN Tr CCCPL hA BCTH
RATTON
.ZS JTh7 E.rT2A_ At HEArD 5F 1EH53.GOFFICER HARRIS ON HIS FCLICE C7C -1r TO TE SCar Ar TkrTO A9ItRUSK AT ThE TE nE n.J1iG A3 AT TEIN TH YAW AND DID PCI FIRE HI LA 5AiSE OICECtJT SAW IHE COflPL trPr.o AT CFiCEFS C9SERED AaL.E 3ELAJTCTlC BY CCrPLS LEa
DEALEJANDRO S3uiHEAST
APRIVD ON SCEr4 SHCTLt ATE TH 5C3TZrfl CFIE NAI At_SEARCHED FOR SUSPECT5 ETJIn TO TF CE.EFErALE HO TCLD HIr TH.T SE .iL LSFTS UP rr
THEY LIVED UET TO r.f.EL A.D AT _C7 lLC ADHC uITkcr FIP
STARTED AT 4i RSC ZAc 1W.Tjr ATTHE OU5E SAU iTTr Ai Ti 775LDCIFFED TH 73LA7..T EF .z TrFLUE STEZL At rri4IO -i CS
O-FCR DD7ItLiFZ ikfl
UrE ThE 5-.CrTTrz TAP7r AT T.7t r7E53JHAST CORFR Tr t.P
_- .. Tr.4
.L-1POIrrruG TO T.E RE.7i k1..5 .. ATPFAR 2.JD hE SA.J LATu .LE JITh T7
..pAP4r Hc FIPED j47 r.flTz .r TE ri..r THrT nr-tTIrES AND SAW TE cJB..trT 7T3i FALL
-Err HAt BEEN CPCU.rr
.src
oF ii C7.
LAfrT4c.p 7L
hE SaTItG L- fl r-rTHE REAP CF RL3 ujjr
AT 491j jr iP TTIJ c_ s.iccEAno rpj SAL rFr7EFS
BEEN HIT U45 TLD rrCER 71CE-.j I4AT THE .EPEFEAR THE HCUSE LCCr7 APJL ET JITP DLOFFICERS EED THIS
.5
.-5FRr THE LEFT ALE OF TH rcrL AT ATc1
OICER TEPLETOJ CF TP3L
Lr4EJ TPt FR3 B-tA AT A11 U.T
..D SAW St5ECT WITH G.J rTrQ.nT rrrr
CFF1CES T-. SLSCT LCCAT1C Ar.- LI.-7
CICER ARCCA St5 OL
WrEN TH FP 9TAATE PAn FP C5
AT SUSPECT ua Si33T3 AT il.E ro CT FE
r.p IX
App 123
000537
-IITTJNG OTHER OFFICERS
UILSC ASST D.A
AS PRESENT IN THE AREA DAPD HE SPOTS GOr TO HE ECEAH UHILE SEURP THIS SCENE FP IrSTIr.ATI FOW THE 2D LPE2ThcOLVED ThE .URDER
ÜFFICER AR5
-4IDItJf3 IN TE S.z YAFSDBEHIND HORSE TRAILER
CIVILIAN URITTN STATEMENT
ALFREDO r1LDOUAOO JR. PERSON PLMiA5INO 9ir LED THt
CAJE TO HO1ICIE At.D I1AOE Pi.4OT II.ETtF1CATIOtl OF THIS CIAS THE PERSON UO APPROACHED HIM ON JrE 19 %932 AT CARTE COtAND UO HAD HIM PURCHAsE 5ROU4p ISTGL FOR HIM CLAIaDHE DID NOT IOU THE MAN AN HAD NEVER SEEN HM BEFORE
LRITTEN CONFESSIN STATEENT
RICHARDO ALDAPE OLiERRA LII 20 AND 2ND SUSPECT IJCLVD IN THE MUPDEOFFICER HARRIS MADE CWFE5SIQu STIZTErIENT Ai.D STATEDTT
UEDO UERE HIDIN.3 IN THE BAC YARS LN T4 SHOOTING RE
THCUHT THAT UEDO AD 1E OFFICER FPE E-OOTING AT EACH 1kR
EVIDEt4CE THIS CASE
Ci FIPE.RriS CHARLIE AERSON C- FIEARS LAB Cr
AT TfTS SCEE NtJIIEROUS ITErS CF FE..P- IE LA COUEPEC LjCirri 45 AND 42 GA CASES AD FIRED .7 HLLS Fri EAPON CF OFICF2TPEPAc.NE IN ADDITION SERL FT PI.LLE1 REc.REAPONS INVOLVED UERE ALSO PECOEED Ef OF FIREA-
FOR EAIPJATIOi4
OE FIRED
.455LU6 AND SEVERAL 5OTC.II PELLErS ERE RECCVEED ArTH COIIHLAINAN
AS OF THIS TIr.E NO BULLETS HAVE BEEN FRM OFFICER TPpAIE
CRIrE LA An HET SCENE
RECCVERED iHE CLOTHI OF ThE C.PLaIuA4T OFFICER TREPEXArIND AP4L DISTANCE TESTS RUN
C33 LATENT PRINT LAB CL COOPER OF LATENT PRINT LAB ON SCENE
PRINTED HE SEVERAL WEAPONS ON THIS SCENE
PHOTO LAB CT B.RADSAU AND HAIROF PHOTO LAB
SCEtJ PHOTOS WERE TAIE14
BRADSHAW tIADE VIDEO OF THIS SCENE
CS CPIM SCENE DRAUI MACE LESTNOT TO SCALE
OOO3S
App 0124
CR HAL RECORD ON COMPLA NANT
AP THIS TINE NO LOCAL CRIMIRAL REC.DRD4 BE FCUD ON TWIS CCrPLAINANT
AT TIrE OF HIS DEATH HE HAt DRIVERS LICZK5E TAKEN FROM P.OBBEPYCCPLAINANT ON UHICH THIS COr1PLAINUT HAD PLACED is PHOTO HE CDrPLAA4TTHEN 8ECAr.E KNOWN ONLY AS ODO
AFTER SNDItJG MIS PRINTS TO DPS IT WAS FCLr.D HAT HE HAD BEbti HAhOLD 14PERRYTcN TEXAS BY TH P.O THflE FOR PUBLIC INIOXICATION AFTER BEING FCrwTN CAR WITH TWO OTHER LATIN nALES IN UHIC1 .8 flU AND
.22R6 ERE FutTHIS CCIPLAINANI ONLY FILED ON FO 9LLIC INOcICAFION DPS PROUICED THE
JAME OF ROBERTO CARRASCO FLOPES 1127-54 1DL ES4O13CATE OP ARREST IN PERRYTCN WAS 62479
CU 72482 JIM KOSPiERL COiL tJ AC RCBEEPv 62452 24r.O 21SCwET
AtJL THE PESCN WHOSE DRIVERS ICEE FLCR HAC rh NI PEP5.tJ LK VILL ErATjE POSITIVE IDFNTIFiCATi GJP CF PQS AS TE prpc Lrj
i-..D FCPE HIr AT 6UrIN OF ppry AT TM3 0IY 0r
4A3 ibcCLED
LACK CF STATErFr1T FROMOFFICER TP.FPAI3NIER
OF-THIS DATE JULY 24 1S NC ONE FO TR HOrICIDE DIVISIOt HASLE TO TALK TO OFFICER TREPAOUE AND OETEPMfl.E FROM HIM sHAT TPAI.r
IN THE PEAR OF 4911 RUSK LEN HE LAS SCT PkSICAL CCrITICtJ OF
CFFICER TRtPAGP1IER COUPLED WITH TkE ATTtTE OF HIS WIPE AS NOT nr
NIERvIE POSSABLE
TE FOLLOWING QUESTIONS NEED TO BE ASKED OP OFFICER TREPA3.JI Er4BLE TO AS3IST IN THIS INJESTIOATICU ANC LIlrIL THEY APE AUSLEREO THE
mc-ESTIOATION UTLL BE CONSIDEPED TI400-IPLEE BY IHIS DETECTIQETE SEOJEJCE OF EVENTS LEAOIO LIP TO AIJO TH ACTUAL SHOOTING CF cc
LOCATION CF OFFICER WHEN HE W45 SHOTCE SEE THE PERSO4 WrO SCT Hir
HEFE WAS THE SSPEtT STAF.DIr.G WEr4 HE C5PECT rpflCS DID dE SEE TWO SUSPECTS I4 THE BACH APCOIC THE 2w S5PECT AIC
DEAD COMPLAINANT IN SNDOTI.G TPPAP4IER__-IF THIS HAPPE.ED
ç.3R
SHOCLC BE FILED ON THIS 2tO SVPECT
DID PEPADNIER FIRE ALL IS HOTS AT HE CCiPL. OR DID TH rr
HIS WEAPON AtU USE IT TO FIE AT Tkc C1CER5 IN THE FRONT IAPC
r7 DID OFFICER TREPAGNIER EVER COE FOM AOLiD ikE PACK OF HE -jE
TO THE SIDE WrERE HE MA HAE 2EEJ It THE LIE OF FIRE OF TE
IN FRONT
DID EITHCR HE OP THE SUSPECT ELER SAY At.THIrO TO EACH TNg3
Cfl DID HE SEE THE ACTICUS CF EIER S.EcT AFTER HE_TPPFlTER__.S
4Ati OTHER INrORATIiTh LrCH .Ai HAI Lri UZJJ..O HEFL
COr4CLDIfG THIS IU.EST C-AT ON
_______
XI
____
000539
App 0125
LEST
JOHN
ULLTrC
KENT
DCLLItg
1EL.1Aj4
8LRrjsTEp
BCSTOCg
DCDuAu
LEBEER
ArJCEP30j4
P1 JOPD.u
HEATER
HAIR
DFt.H
II MCPcjj
DEffOTIVES Af.D
-.t
DETECT Ic
DETECTZIQE
DETECT Its
DETECTIvE
DETECTIVE
DETECTIJE
DETECTIVt
DEl ETçJ
DETECTv
DETECTIVE
FIREARr
CRIrE LAe
PHOTO 1A8
PHOTO LA3
PATROL OrrIcEp
PATROL DFICE
SCFtJE
SCENE
fl ri æ7
ii
App ia
00031
ZrS.s
i-7SEj FCLJ.
Ltt A.t 4L_ t.5TIf2ATrcj4 CCrPLii.cE5rrFrE PC.Et1cE
..ETAri.Jpp4r.R Fryrrj
.czzArTntj CC-LPrTAL 4.-.vEsTrAr1o
.-ICER
EUiDErr.r re
FGLtjjj_ip L.cr.ATIoN
INCIDENT426 14 582
OFFENSE CAPITAL MURDER OF POLICE OFFICER
LOCATION 4900 WALKER AT EDGEW000
DATE/TIME TUESDAY JULY 131982 1l OOam
COMPLAINANT JAMES HARRIS HOUSTON POLICE OFFICER P/R456129
SUSPECTS RICARDÔALDAPE GUERRA akaEL GUERO and ROBERTO CARRASCO FLORESaka 1WEDO
NARRATIVE
On Tuesday July 131982 at approx 1000pm Officer James Harris Houstc
Police Officer was fatally shot by Ricardo Guerra after stoooing Guerra
and second suspect on traffic in the 4900 block of Walker at Edqewoo The
second suspect was later idenified as Roberto Flores
NOTE THE APPARENT MOTIVE THAT LEAD TO THE SHOOTING OF OFFICER HARRIS 41L1
BE ESTABLISHED LATER IN THIS SYNOPSIS
Officer Harris assigned to the Canine Division of the Houston Police Deart
ment riding unit 11K90 was on routine patrol in the southeast sector of the
city of Houston when the shooting occurred Sometime around 950pm Officer
Harris was flagged down by citizen in the vicinity of Walker and Delmar wn
reported to Officer Harris that several LA/males In black and burundy
Cutlass had tried to run him the citizen down The citizen later identified
as George Lee Brown and Is now listed In this investigation as witness
reportted seeing the LA/males in the vehicle on Walker Street between Altic
and Delmar Street The vehicle was been driven by LA/rn that Brown later
picked out of show-up that took place at Police Headouarters on 7-14-32
this being Ricardo Guerra As the vehicle soed pass Brown Brown recred
that he had to jump into ditch in order to avoid betng hit by the vehicle
Brown was out walking his dog at the time these events had started to ur.fol
.1
App 0127
000594
Soon after the vehicle sped off Browlater saw blue and white police un
being driven by Officer Harris pull upthe the 1-shaped intersection of
Delamar and Walker It was at this tfrne that Brown stopped Officer Harris
and informed Officer Harris of the incident Involving the Cutlass occupied
by the LA/males Several other witnesses that were walking in the area at
same time as Brwon also gave statements about seeing the .yehicle occupied
by the LA/males speeding and driving erratic Officer Harris after being to
of this Incident drove off in the direction of travel as the black and bura
Cutlass.
Sometime later other witnesses in the area of the 4900 block of Walker repor
seeing black and red vehicle occupied by several LA/males driving at
rate of speed down Walker street from Lenox travelling west As the vehi
occupied by the LA/males appraoched the 1-shaped Intersection of Walker at
Edgewood the driver of the vehicle tried to make U-turn in the middle of
Walker The vehicle at this time stalled out on the driver and the vehicle
to stop in front of the house at 4922 Walker with the front of the vehic
facing to the south and blocking off the entire street of WAlker at Edgewo
After trying several times to start the vehicle the occuoants got cut of
vehicle and approached two LA/females that were walking west on Walker stre
Witnesses at this time reported that there were rily two LA/males in the
vehicle One of the LA/females that later Identified herself as Elvira
Medina Florasstated that the driver of the vehicle appraoched her and asKe
harm Spanish she would give him boost During this time Officer HAr
was travelling south on Edgewood approaching Walker street Uoon arriving
at the 1-shaped Intersection of Walker at Edgewood witnesses states that
Officer Harris stopped his blue and white unmarked police unit to the east
side of Edgewood street and to the left of the vehicle that was occuple4
by the two LA/iales According to the witnesses at the scene the front half
of the police unit was in the partially in the middle of Walker street 4her
Officer Harris exited his police Unit Officer Harris position himself by
standing inslde.the drivers door of the police unit At that time as the
LA/males were out of the vehicle Officer Harris called for the two LA/male
to come to the police unit It Is reported that Officer Harris had the two
LA/males to place their hands on the hood of the oollce unit on the left
The passenager in the black and red vehicle was the closes of the two LA/ma
to Officer Harris with the driver walking directly behind the passenager
passenager accrding to witnesses placed his hands on the hood of the 201iC
unit nearest the drivers door and the driver near the left front Before
_J. L........
-.-
..
OOO95
App 0128
LA/males had placed their hands on thvehicle witnesses reported seeing
the pas.senager from the vehicle use left hand to go to his back like he
was going to scratch his back and hard the driver of the red and- black vehic
handgun As the driver of the vehicle approached the police unit and was
placing his hands on the police unit witnesses standing in the area could
heaYjthe driver talking to Officer Harris in Spanish Wltnsses states that
they were not able to fully understand everything that was spoken by the
driver but did hear the driver say NO NO boost
As soon as the driver was heard to say this the driver just instantaneously
burned from hispQ5Jtlon at the police unit with gun in hiand star
firing upon Offi cer Harris hitting the Offi cer three times to the left si de
V___
of the head Witnesses reported that Officer Harris had no chanct6 react
to the shooting The impact of the bullets striking Officer Harris accordinc
to witnesses lifted Officer Harris off his feet and he fell to the ground
on the left side of his police unit
After shooting Officer Harris the driver the red and black vehicle fled
scerie dlscharing the weapon several more times citizen that was drivino
red and white Ford Torino Elite vehicle on Walker heading west was shot
by the driver of the red and blacl vehicle as the driver was fleeing the
scene The driver of the red and black vehicle fired Into the windshield
the citizens vehicle hitting the citizen in the head The citizen was later
identified as Jose Francisco Arinijo LA/m33 address 4924 Rusk Also in the
vehicle with Jose Armijo was hls10 year old son Jose Jr who was not
injuried and his year old daughter Guadalupe who was struck on the right
side of the neck with flying glass The bullet entered Joee Armijos
vehicle from the right side through the windshield Jose later died as res
of the GSW on 0720-82 at Ben Taub Hospital
When the shooting started individual witnesses states that they started
for cover and no one saw where the passenager from the red and black ven
fled Some witnesses did reort seeing the other suspect fleeing the scene
running east on Walker the same direction as the driver
Syt Cavazos of HPD was visiting his parents on Walker street at the te
the shooting and report hearing the shots but thought at first that te Sh
were fireworks being discharged There were other shots so Sgt Cavazos we
to invest1gte and was told by several witnesses that an Officer had been
_______________________ ________
____________
-- ---
_..____-.
App 0129
O0O9
----r
--
sgt Cavazos ran to the scene of the 5booting and got 0ffiEcHarrjss walk
talke and called inthatanOff1ceri.s down at Walker and Edgewood Sgt
Cavazos states that he does not recall seeing Officer Harriss service we3o
however other units responding to the call states that Officer Harriss
service weapon was nbt In his holster
Jiouston Fire Department ambualnce unit 1118 arrived on the scene and trans3
Officer Harris to Eastwood Park so that Life Flight Helicopter could fly
Officer Harris to Herrnann Hospital however Officer Harris was pronounced
dead by Life Flight doctorDr Malone Officer Harriss body was then trans
ed to the Harris County Morgue by HFD ambulance 1118 with police escort
Detectives upon arriving at the scene conferred with Sgt.Cavazos who relate
to Detective that he had gotten information that the suspects involved in
the shooting lived in two story white house on the corner of Dumble and
Rusk behind Nicks Lounge Detective went to that location and upon arrivi
conferred with several uniform officers that were already at that location
The-officer Informed this Detective that search of the house was made and
the search turned up nothing Detective at that time requested that anote
search be conducted Detective and officers first went to 4911 Rusk and sea-
this location At the 4911 Rusk location there were at least fifteen Mexica
Nationalists inside of the house Officer Palos Snanish speakina Officer
interviewed individuals and all claimed not to know anything Detective
and Officers later went to 4907 Rusk and searched this location Officer
along with Detective Gatewood who had arrived at the location interviewed
several Mexican Nationalist that were sitting outside One of the Mexican
Nationalist reported that subject by the name of JAcinto Lopez had loaned
his vehicle which Is red over black Buick Regal to subject he knew as
EL GUEROTM During this Interview with the Mexican NAtionalist gunshots
heard coming from the rear of the house at 4911 Rusk Detectives and Office
ran to the area of the gunshots and ther were several other shots being
fired
An exchange of gunfire ensued between Officers and LA/rn on the east sd
the house at 4911 Rusk and the LA/rn was shot to death.Officer L.D.Treo3ye
ihtbythe LA/rn assliant at the rear of thehouse at 4911 Rusk
to he assjant being shot to death by officers Officer Trenagnr
shot_several times to the abdomen the chest and the artp.hile
ªY the
scene of the Ruskitreet shootout second suspect was arrested by ASSt
...-. --
OOOiI7
0130
-.----
-9
rict AttorneJT2rr14USOfl This suspect was found hidinn in horse trair
.-
in ere of the house at 4911 Rusk.Detectives in charge of the scene at
lfll recovered aBrowning 9mm automatic handgun lying neIr thbodyof
thedead suspect and Detonic 45 caliber automatic handgun under the trailer
where the second suspect was arrested The Detonic .45 was wrapped in red
bandana handkerchief
The dead suspect was identified by the live suspect as WEDO The dead suspec
was later Identified by fingerprints being Roberto Carrasco Flores
Mexican Nationalist that once lived In PerrytenTexas The Perryton Police
Department show Flores to have one arrest in 1979 for Public Intoxication
The lived suspect identified himself as Ricardo Aldape Guerra
Ricardo Guerra was placed in showup and was identified by nine eyewitne
as the driver of the red and black vehicle and suspect that shot and killed
Officer Harris and the citizen Jose F.Armijo Ricardo Guerra was later fi
on in the 248th D.C for Capital Murder of Police Officer Cause 359805
Upon examining the dad suspect body at the morgue Homicide Detectives
Kent and Waltmon recovered from the front waist of the suspect Officer arris
service revolver Colt 357 magnum
Further Investigation into this case revealed that the Detonics .45 caliber
automatic handgun with serial number CR15126 was taken in robbery at ebel
Gun store located at 18448 Kuykendahl in the county Constables Precinc4
made the report on 7882 The dead suspect Roberto Floreswas identife as
one of the hijackers The live suspect Ricardo A.Guerra was not identiiei 5y
witnesses at the robbery but prints were taken at the gun store robbery
were submitted to thi HPD Latent Prints LAb by this Detective The exaaii
of the prints revealed that the prints lifted at the robbery matched
Ricardo Gverra Detective was able to trace the Browning 9mm to .l-o
Maldonado LA/m28 address 713 Ave in South Houston Maldonado was arac
by the dead suspect.on 61982 at Carters Oountry Gun Store in Pasadena aid
asked laldonado to purchase the weapon for him Maldonado agreed to buy tie
Browning 9mm fov the suspect The dead suspect gave Maldonado $550 in casi
purchase the gun Maldonado bought the Browning 9mm in his name and gave ie
gun to the dead man Maldonado was givem the change left from the $550 aer
buying the gun for the dead suspect The change amounted to $30.00
Ii
..- .... .1 --.---
Omfl
tpp
At the scene of the shooting of Offlcr Harris at least six spent 9mm hull
casings.were recovered at the scene h.ere were three Spent bullets removed
from the house at 4919 Walker The bullets had exited Officer Harris and
lodged in the walls at the house at 4919 Walker The bullet that was extract
from the citizens head was also 9mm bullet The spent hulls recovered at
the scene were Speers and Winchesters Several other spent Jiulls were recover
at the shooting t4911 Rusk and they too were Winchesters
In statement given to Detective Gtewood by Ricardo A.Guerra Guerra is
alleging that the dead suspect Roberto C.Flores had shot and killed Officer
Harris Ricardo Is quoted as saying That he had the .45 automatic and that
he discharged several shots in the air but never shot the Officer However
all witnesses present during the shooting related to investigating Detectives
that the suspect that shot the Officer had long shoulder length hair
beard and mustache and wearing green shirt ot jacket and jeans When
Ricardo was arrested1 he was observed by Detectives to have long shoulder le
hair with beard and mustache Ricardo was dressed in green Army fatigue
shirt and blue jeans The dead suspect had close cut hair style and
weafng brown pants and purple looking shirt The dead suspect had no hair
on his face
Witnesses present during the shooting also reported knowing Ricardo as EL
and states that Ricardo had been in the neighborhood since about February of
this year
AP..PA.RENT MOTIVE
From the information that has been gather during the investigation of this
case Detective can opinionate and state the only apparent motive for the
shooting of Officer Harris This opinion being that the suspects since
having been invoived in the robbery of the Rebel Gun store and the dead suse
in possession of drivers license belonging to citizen that was robbed
on 62982 the suspects apparently thinking that Officer Harris was on
to them because of their criminal actiyitytherefoe shot and killed Officer
faciliate their not been captured Other Information was recieved concern
the criminal activity of the suspects and all the Information was checked mt
but nothing was substantiated
.._- Ji_..
.__
__ ___
-_
----.-
-.-- 1i
OooJ9
pp 0132
-r
HOUSTON POLICE DEPARTMENT
MICDE HEAD WOUND CHART SERALNo 426145-82
.i
CAPITAL MURDER OF POLIr J.D.HARRIS
61 REISNER
4900 WALKER 71482
EXTERNAL
OF THE
Z1
Head Left Lateral Head Right Lateral
lead Posterior Head Supericr
CHARTED BY J.L.A.--
1ENTRY GUNSHOT WOUND TO THE LEFT LATERAL HEAD WHICH WAS .13/4 INCHES
UP FROM THE LEFT EAR AND INCHES AROUND FROM FRONT CENTER LINE
HEAD
2ENTRY GUNSHOT WOUND TO THE LEFT LATERAL HEAD WHICH WAS FOWARD
OF THE LEFT BOTTOM OF EAR AND 3/4 INCHES FROM CENTER LINE OF
FACE
3ENTRY GUNSHOT WOUND TO LEFT LATERAL SIDE OF CHIN AREA WHICH WAS
LEFT OF CENTER LINE OF FACE AREA
4-EXIT WOUND TO THE RIGHT LATERAL SIDE OF HEAD AND NECK AREA WHICH
WAS 2TO THE REAR AND IN LINE WITH THE BOTTOM RIGHTEAR LOBE
5-EXIT WOUND TO TN RIGHT LATERAL SIDE OF LOWER HEAD AND NECK AREA
WHICH WAS 1DOWN AND IN LINE WITH RIGHT EAR LOBE
6EXIT WOUND TO THE RIGHT LATERAL SIDE OF LOWER HEAD AND NECK AREA
DOWN FROM THE NUMBER WOUND AND TO LEFT WOUND 000601
App 0133
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HOUSTON POLICE DEPAI .CNT- OFFCRS FIELD NOTES INCIDENT NO
EI4T SUUO.I ______________ IN5TUNINT USID
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OFFICER SI MAKING REPORT
/j1 /77 EMP.72.f/ SHIFT DIV/STATION UNIT _____ TYPE
________________
EUPI /- TYPE
CALL RECEIVED DATE 7/P TIME ___________ REPORT MADE DATE CL. TIME __
NAME LAST S/IAJHEZ FIRST 22Z MITIDLE_ ALIAS NICKNAME f_____
WANTED ADDRESS J_./-.L 1.__ DOD _1 HPD ______
ARRESTED RACE _..L SEX AGE HISPANIC HEIGHT -/- wcr
RELEASED HAIR COLOR TYFE LENGTH COMPLXION
CHAROED FACIAL HAIR LiJ.LJL SPEECH AcENT__ EYE COLOR _2_
POSSIBLE -LLL WEAPON USED __________ __________
MISC DEsCRIPrIONPpyzicALocrnITIcS__._.._
INJURED- TAKEN TO.....______ BY ________________________
CONDITION
____
12 HAME LA.T ___________ FIMST_ MDDLE ________ ALAS NICKNAME_
WANTED ADDRESS _.._ _..__ DOD _______HPDa__ ______
CD ARRESTED RACE
__
SX ACE HISPANIC HEIGhT______ WEIGHT________
Lu
RELEASED HAIR COLOR TE __LENGTH__ COMPLEXION _____
CHARGED FACIAL HAIR -- SPIECt4 ACCENT ______________ EYE COLOR _______
PCSSIDLE DRESS___ WEAPON USED
MISC DECF.PTION PHYSICAL OCDITIES
INJURED- TS.KEN TO -- ______BY
CONDITIOU
AOIONAL SUSPfCTI NANRATVF
_______________
WAIJ.ATIYI ICQP.fTI OrTAnJ NCI..UDIN C/rNOPOII or TP4CS $TCt.CNIS NytIA
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CONTINUED ON SUPPLEMENT .YENOZ
_o NAP
____________________
RELLTED CASES
OTHER OFFICERS
_________________
OOO61
App oie
USTON POLICE DEPARTM
OFFICERS SUPPLEMENTAL FIELD NOTES INCIDENT NO 7/
OFFENSE tit LOCATION
COMPLAINANT 7- DATE OF OFFENSE 7/
DATE SUPPLEMENT MADE
SHORT FORM SUPPLEMENT IFOHATjON
CONTACTED COLAA CONTACTED wITNEss USTED uNE TO CONTACT CMPNAN
NO ADDITIONAL INFORMATION NO ADDrTIONA INFORMATION ANDOR WITNESSC SE
DATE TIME DATE TIME DATE TIME
RECOVERED STOLEN VEHICLE YEAR
________ MAKE
_________
MODEL
__________
tiC YR STATE NO
___________
CONDITION OF VEHICLE DAMAGED WRECKED BURNED AMOUNTOFDAMAGE$
___________
STRIPPED LIST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE BELOV
RECOVERY LOCATION
____________________ 01ST BEAT__________________
yEN RELEASED TO
_____________________
TOWED TO
____________________
BY
_____________________
PROGRESS OF INVESTIGATION ADOrnONAL INFORMATION ETC
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SUPPLEMENT COMPLETE CONTINUED
OFFICER /7T ei.tc EMP./LC SHIFT ..- DIV1SION/STATION
OFFICER EMPS SHIFT DrVISION/STATION
CALLERS NAME
_______________________________
PHONE
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POPU kO tC.TOC7
A.IA 27
-.--..----
--
----
OOOI.b1
App 0139
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ME OF DEFENOANTSI Last First Middle
SUPPLEMENT REPORT
HARRIS COUNTY CONSTABLES DEPARTMENT
PRECINCT
CaseNo
______________
.JP No
EVIDENCE OR PROPERTY
YES Describe NO
SECOND DEPUTY BADGE SUPERVISOR
TOCRIME LAB
S.S NO
Ipi 1142
COMPLAINANT Last First Middle LOCATION OF OFFENSE DATE
OFFEJSE CHARGE OR INCIDENT ON ORIGINAL REPORT CORRECT OFFENSE OR INCIDENT CLASSIFICATION
CIIANGEDTO
SHOWUP MAGISTRATE OR LEGAL WARNING MULTIPLE CLEAR UP Use other case numberl
YES NO Attach forTn tim Deputy YES NO and co-defendants riamel
INSTRUCTIONS Record activity in case iubesusnt to last report give
witness statements if any Record stasemenu of unfavt
TAG NO
atu and time of aD
.ronaI intsrv.ws and attach
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ITEM NO ...
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App 0144
EARBIS COUNTY DISTRICT TrORNtYB OPY1CE HOUSTON TELLS
INVESTIGATOR ZEPLY
DEFENDA1r LUMA Enrjcue Torres Cause 366l8
Q00762
85 Claitoitte was asked by take
compi in this case Dennis Zastow
had beer received of subect by the nane of Efren Marques Mata to the
taken photo of Mata to Zastrow and he had ID the tattoo on the upoer
He said that the defense attorney had
richt arm of the subject MATA as being the same as one of the susoects ir
nature on his upper right arm
this case The Defendant in this case Luna does not have tattoo of th
called the phone niiber given for Zastr 443 2083 and learned that
Dennis Zastrow the photo
was the Denrow Guns at l8 FM1960 went to this location and showed
He was unahle to see the
that had received of the L.A/H with the Tattoo
face of the person with the tattoo on and he sad
that the tattoo locked like the tattoo that one of the suspect had when he
was robbed He said that he could not be certain of this in the photo bt
would like to see the tattoo in person to make the final decision
Dayton said that he felt that both of th subjects were involved in the
Zastrow was then shown the photo spread that was attached to the fiie and
he picked out n.er is the defendant in tb-is case and
is Efren Marqies Mata Zastrow said that he is sure that was the man
with the tattoo and that was photo that he had been shown before
Zasirow then asked that take the photos to another witness in tb-s case
and agreed to meet with me
Dan Dawson who works at the Klein School District Dawson was ccr.tacted
Klein School District and
went to 7200 SpringCupress Rd to the Asinistrative Offices of te
he had ever seen tattoo
talked with R.D Dan Dawson He was asked
Dawson picked out Mate and tuna both
during the robbery and he said that he had nOt
then ihowed Dawson the photo spread that had previously shown Zasrow
App 0145
PAGE PAGES Xnvs.tig.tor .w clari
ARRI8 COVWI1 DISTRICT TrORNIYS OFFICE EOLTSTON TEXAS
INVESTIGATOR IZPLY
DEFtNDANT Torres Cause 366178
robbery at the Rebel un Store He said that he felt that Mata was the
stocky one that was rough with everyone and that Luna was the younger oe
who held gun on them in the back room while the other two went throuch th
store He said that he did not feel that the subject who had been previou
conv.cted for Capital Murder R.icardo Guerra was one of the persons that
corenitted the robbery awson said that during Guerras trial he never
said that he was one of the robbery suspects He said that he felt that
third xsan was Roberto Flores
awsor says that in additioj to not recogiizing Guerra that he saw ptr
of Guerra when he was arrested five days after the robbery He said that
wher he saw the photos of Guerra that Guerra had beard that was possibv
weeks old and that during the robbery none of the suspects had beard
awson said further that when he came to trial on one of hs agteara.-.es
he saw Luna sitting in the front of the court room and inedately knew
him as one of the suspects
Dawson is sure that the first robbery suspect into the store was Robert
Flores who had the pistol to Zastrows head The there was Enrue Luna
who got gun from inside the store to jse and was larger and rougher
person than Efren Mata who was supposed to be younger and held on
them in the back room while Luna and Flores went through the store
Dawson has new home phone which is unlisted and is 376 4ll and
rk phoen is 376 4180 Ext 380
called bak and talked with Zastrow afther talking with Dawson ar.d he
said that he was not in agreement with Dawson on Luna being one of the
suspects as he believes Guerra is one of them although he has never see
Guerra He feels as if another of the witnesses should see the photos an
UUU763
PAGE 01 aPACES Inv.stiptor J.W Claapitte-
App t14
%ib4Ii UL%JL aA.Ab
INVESTIGATOR ZPLT
was probably back in Mexico told him that if anything changed at we
pp 0147
DEFENDANT En.rique Torres Luna Cause 366178
called and talked with Prudential Maintenance which is also knows as I.S
and learned that Apolinia Loredo had worked for then but had been terminate
on 8/18/84 She gave her home address as 4627 Woodside Apt P4 This
is the sane address as had checked out previously She said that she
did nnt have forwarding address or new place of employment for her
19
85 Clanpitte talked with witness Dan Dawson again about his Idertifir-atj
of Mata Luna in the photosread had shown him He said that he was
still sure that both of them were involved in the robbery told him that
Guerras fingerprints had en found at the_gun store at the tine of the
robbery and he said that he remembered that and felt that Guerra had been
in the store earlier and lef the prints then He said that he thoucht
Guerra may have cased the store as well as Floes He again reiterated
story that the only one of the hijackers which had beard was the one that
had gotten killed by the police Dawso says he is willing to testify in
court about his beliefs
tried to get hold of Zastrow but he was out sick left word for hixr
to call me
115
85 Clanpitte contacted the C/W Dennis Zastrow again and talked with him
about the case He was told that since the ID on the subjects was not too
good that it was
çood possibility that the case against Luna would be
dropped and tat Mata would not be charged either He said that it was
fine with him becuase he would not like to see the wrong man to to the
Pen for the robbery and that Mata was probably too hard to find since he
would be in cont act with him later Oo75

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of their studenLs
Reagans partial return of their taxes to those who
keep God Ii their schooLs Is long overdue
J.hs Reaps
1997 Campbell Road Houston Texas 77080
Unfairness
Tk Tmniigr.tn ru1 Itr2liatInrI u4 ha
my vote Its about time the jobo were given back to
the ones they were taken from Its about time the
citizens of the UNITED STATI stop letting
not just from Mexico but from all other countris walk
on them
They scream their rights are being violated What
about our rights as taxpayers am United States
citizen Its my husband that has been out of work It
is in the field that many Illegals are working
dont think another country would let us go
to work and let their natlve.born go jobless In my
honest opinion its the citizens of the United States
that are getting the dirty end ofthe-stlck
Usda MeC.rmlØk
11915 Pompano Houston Texas 7707
Overdue
wish to thank whoever IS responsible for the drive
on sending the Wegs.l aliei back to where they be-
As the secretary of housing and urban eveLop
mont want you and your readers to know tht the
study made by the General Accounting Office on the
collection of defaulted home Improvement loans
noted inyourartlcle...Jan.31...coveredaperl
od that reflected manigement deficiencies and an
tnadequate Oversight program by the previOus
Ildrea Is ache
long It Ii long overdue They have taken ovcr the job
market homsdng stores rude and pushy crime In
the city has advanced greatly because of them be
cause they have nothing to lose They thin1 they
should have the same privileges that the It liens
have education free johe and when anything Is done
about It the group LUL..C-comes to their defense as If
they good up.tanaing citisens also think the
people who hire them which Is treason In my book
should be fised soch heavy fines that they would not
get anywhere hiring them...
they want to come Into this country legally learn
to speak .gUsh Instead of wanting us to hire specialtt$ to teach them so they can continue to speak
the language of cosmtr7 that they dont think enough
of to stay in fteat the citizens as people instead of
animals then would say they would be welcome but
to come aaJkera then that Is another
if Ps.nea
to reduce the number claims tar innarance benefits
on the department We will soon be Implementing new
ruls that wID require security on 11 loans above
5OO end will be requiring lenders to obtain commer
cial credit report on all borrowers We expect that
th.e
__
criteria will Improve considerably the qual
Ity of ioi made in the futureand If rye1
mnre In the collection of debts from defadlIne
healthy diversity in thinking and values4 Encouraging
private schooLs will help protect freedom of thought
ThsfluO.Mse1Iet
4307 lone Bellaire Tetas 77401
One of your questions in your editorial of April fl
At homewas whether taxpayers should help pay the tuition for
private schools Surely you see that average people
who for conscience sake send their children to P11 am writing in regard to bilingual education Thisvate schooLs now have to pay double Th tax credit Is
Is the United States where English is the No Ian-an attempt to correct this unfairness It is certainly no a.ge do not believe in teaching Spanish to children
subsidy It seems that the money that the public In elementary schools as do believe this only hln
school would save by handling fewer students should dire the children and slows down their learning procbe_channeled back to reIIeveJe who choose other Mxlcsn.Amertcans have no right to Inflictmeans of düIt ion
Your point of comparing public and private eduea/ thelr.heritage on my
children
Let them teach their children their Language attion to public and private gardens and Parks Is Well home or as an elective later in schooltaken But walkisj in the park Is voluntary and casu-
al whereas schooling Is obligatory and of profound Mre gins Schmidt
implication Should not pluralistic society protect 146 White Cedar Houston Texas 77015
Vt
The illegal alien qizetion
P.O Box 61l7 Houston Texas 77208
FOC1OSO
collecting debts to
as
Id seem the law entoremeflt agencies are ai /ttJe Houston Tex 77063
ruflcane season thoughts
ure that anyone who Is interested In Gulf
noticed that the first one coming up it
erto If it were spelled A.L-B-E-R-T-A then
rush to their storm shelters
Alberta MeCwi
uregard Alvin Texas 77511
-.pickey Nails
During hurricanes ..and_other_ violent_storms some
people have to board up windows for protection Get
ting the nails out afterwards is much easier and less
damaging if they use duplex two-headed nail
Jim Reid
espondingtO columnist
fl 1IWU
itly others
iO161óE Sith HotoiTexaSi7587
Think
App 0151
Robert Ros.ih
FOC111O
Mare edf%
Now LS4 Pcs4- %e
Now we name hurricanes after IaM This oughta
tell the INS something
Catherine Covlngton
10020 Ocean Drive Baytown Texas 77520
wnlt.plckey -can people get Every- other
has to have masculine name This Is ridi
ould like to know of anyone has ever heard
me
Petrssky
Lane Houston Texas 77080 9802 Rockhurst Houston Texas 77080
eorgle Anne Geyers column Post June
not sensele dont recall the officers
Is wer was ass
Et fits Geyers column as well
ht1ng which presume to mean war Is
which Is usually started by stupid old men
they are smart and fought by stupid young
hink .the.old men are smart._____________
lightening He exposed the greed for profitof one cor
poration He knows and know there are too
many others doing the same thing
Our LawmaKers cannot ketp th eorporal1
from vacating our country and setting up shop where
cheap foreign labor is so abundant but they have the
power and should use it t.o make them wish they
hadnt
solution to all war Lets
.rrange bind
mtlonal agreement that all future wars shall
by men 55 years of age or older Never by
unger and no exceptions period Bingo No
Orville Wailsee
nont Parkway No 1605 Padena Texas
icer whose name you could no recall was
nthony McAulifee who made the terse
nswer to demand to surrender when 0ev-
had his troops surrounded at Bastogne
Its time to stop and think Re new role in Afri
ca Dues U.S-Moroccan base accord outweigh the
risks by Geoffrey Godsell Post June
Will centuries of Northwest Africa-European wi-an
gles get mixed with centuries of Middle East wrangles
with the U.S.A as mixmaster
Yaadeli W..dy Bostner Jr
804 Fannin No 714 Houston Texas 77002
Reeves coDzmn Post June is very en
Write S.usdOff The asides Post Houston
Texas 77801 SIgs y.ur letter nd list your mailing ad
dress sad dayUme telephone number Aid please keep
Itsiert
cdc Circvc_____
_____________
EditoriaIs Op
os pay trIbute tod
to James Donald rris
.mday let the entire city
of Houston form p1 on their badge
and strap on
pay.tribUte to
Patrolman James .Don- their eapon
telling their family eign
a1dHarrLS
the be home after work
conflrrne
Lloyd
ery police officer and every mem-
far this year in Houston four p0
the prirx
berof his family lives with
the knowl-
icemen have died in the line of duty House ur
ede that routine event can
suddeni
Three others have been killed in
traffic
in ger
turn savage Officer
Harris stop
accidents One other has died of gun dent Re
car for reckless driving
and wit sses
shot wound They did not return
to their te coni
say be was
shot to death by of the
homes and their families. Harris
leaves manY
erwise.
tw men he was arresting he men
wife and two daughters
scarcelii
fledÆnd one later
shot icer 1gw-
Earlier this year Chronicle edito- tells us
iŁiceJ Trepagnier five mes
and was
rial about the deaths and injuries
of proach
then shot to death hi
elf The other
HoustOflPO1iCeme11 cited
the words of ogrnzes
party
maTr was caught charged
with the
John Paul Jones höin1778 said he
muider of Officer
wanted fast ship because
intend to party
.-
go in harms way
the leac
This is the angerous environment
We as community asked Officer This
weas co unity ask our policemen
James Donald Harris to go in harms
ple in
seldom
a4.po1iCeWOmefl to enter each day
to way Let us today and forevermore
mstT
enfozve our laws They put on their
uni- honor his name F001297 eignRicha
.i Rockef
App aschai
._CounCll
..viet economy
is vulner
Reagan
mefltS
At the heart of the dispute
between for the ruble In
actual value Soviet
partisa
thi United States and its allies
over the imports and exports
have almost three becausi
line the Soviets want to build
from times as much impact on
the Soviet but
bec
Hisiito Western Europe is the economy as previously estimated abOUt
amint of trade leverage that can
be
International trade the Qenstis
Bu- differer
aroUnd
.L.. -.i rflf 2n41 Ttalv reau says amouflt to about
27 percent
think
exerted against the Soviet Union.
....e
to help the mentally ill
flow The liberals and ethnic groups
seem to oppose all attempts
to enforce
We want to say thank you to the
donor of an eye cornea
which my hus
band received on July 1982
This is
ths hP nrnprmc vev
viewei with dsrrav and horrnr
_________
Julyl byJa OC
which showed among other things
four dead or dying horses The Irish WEEKS
Box fl187 Republican Army
Irishmen say tion economic
From Mary Cagney 1ttest-Versailles
It is highly commendable
of Mrs by bombing bandstand bodies relations among
Eu
______________
epicCut in-weh g-throtigft-
---- andJapv di at
research in the field of
mental retar- the air
recent history some
dation.-1S there anyone orthere
who An Irish broadcaster made state- in postwar soryT
would like to match that amount
fo mont on television for all to hear
Seldom has the fat
research on the causes
and possible .There..wtllbe_moreoLtht5_T0daYT__ __nual economic
ritual
_curesfor_LheChr0ma11Y.mefhay illam ashamed of myirish ancestry -stratedthanifl
warfare before they-- T- 2-T
participants square
munique is even dry
Illegal immigration responsible So harsh is the to
principal economic
r-uchoflal-b nakime-wa-ve- ir-oid4o
laws._Labor-On _the_work.farrnS_Will_
administratiOfl may
h-est-orseturrg1nemp
ter_into.a_chflge
FrnmRusSIUrfleCB01
ngalacaL it
Many people think
___________________ with the Carnegie Endc
wave The taxpa yirgit t0
is
aIQyriscausin
hiIdfe
challenge for many em
onpl-Peacis-a
it Inc government must come UoWn
sirflhiar to an earlier
on these lawbreakers as prionty .Eyewitness testimony
not trol policy
to heaa
with Europe If so
measure The alternative is for citi
zens to arm themselves to protect
reliable piece of evidence
case of ideology yie
their lives and properties
Late last year
The government sh.uld establish
From James Brown P.O Box 585 bargoed
U.S comp
work farms along the borders with Pearland
General Electric
Mexico Instead of returning illegalr
equipment worth
to their country they should first be
Regarding the article by Frank viet Unions
naturai
incarcerated on the work farms Their
Klirnko entitled An angry freedom em Europe Consid
_J.errnc chnulLbe commensurate with
Chronicle July about Thomas since he returned
the _p._e who was treec on LeCrifli- _president to Europe
in breaking the immigration
cality rather thiidØiFii1itan- _____.jjnitedSta
other man coniessed to the crirnef6 nese employees
of
f1rrns acusgThe
Houston and its doctors information in the story it appears
he panics in general
of
was convicted only upon eyewitness Washington
irr
respn_sibieJor
_on.U.S.-SubSidiarie5
case then he never shuld have been _rope_to_keep_them
the pipeline proec
Cuernavaca Mortlos Mexico Since persons
recall is subject to tng the legaiity of
feel very strongly about your
beau-
degree of alteration
from new input Washington ar
it could be that the police might have pean and Japanese
tiful city and would like to express my accidently influenced the victims ness under Americ
admiration The first time saw Hous
ton was in 1932 when arrived as
memory Eyewitness testimony
with- General Electric
merchant marine At the time Hous-
out corroborating evidence
does not allowed to Fill or
ton was for Americans very likely
constitute proof beyond reasonable merit made under
small town but for me coming from
doubt France and
Silesia Germany it gave an impres-
would defy the An
lation setting the
sion of greatness and adventure
and
Sight was gift of young _aiongand
.5 itterd
major European ccwas truly.asignPOSt-Oi theNewWOrld
returned to Houston in 1979 seri
ously ill with little hope
of surviving
Houston accident victim pipeline FranceGermanndIta
Mrs Cyrus Lyon 238 Guava States
was inspriflgJ9UgLLF little
ltas my time was taken
and consultations in your imposing
Texas Medical Center
returned repeatedly for checkups
nrl ot to know 4oiiqtrn h.tter
Of App 153
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border patrolman leads group of illegal aliens down the hillside
toward waiting vans which will take them to holding center
Larger border patrol
needed tq stop illegals
From Stepbeo Hartsellasad.
Its no secret that the Mexican econ rn-ia shambtsBuithat shouldnt
mean we Americans should have to fe and provide free education to da4s
who slip past our badly undetafTed border patrols like roaches in the night
Arnerican.s are experiencing some of the toughest times in history Many are
without jobs or even enough money to buy food Yet massive number of
slither across the border uflo our country every day snatching up jobs Ameri
cans so desperately ned.r
They add to our crime problem sub
stantiaUy They apply for government seems auto theft now
bene1iL like food stamps and even get
free education in our schools All this big problem in Houston
is paid for by Americans of course
think much larger border patrol Frou Patricia AtklnsoD Houston
needed and soon The result of this
would be obvious less crime arid My husband and are retired He
more jobs for American workers was fireman
for 34 years was
Times are tough all over but in our registered nurse We have
saved for
country we .Amercans should come trip
around our great country for
1.rst many years We set out in our traiier
and pickup truck with camper
shell Our trip was great until Oct
If autoworkers unhappy While dining at restaurant in Hous
let others have their jobs ton after seeing the Johnson Space
Center we fotd our truck had beenrf
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bJ CHcUtcL.t
Study says illegals
growing burden
to welfare system
WASHINGTON UP new study warning ille
gal aliens arent bargain says undocumented unmi
grants are making growing use
of Ameran welfare
and unemployment benefits
The Federation for American Immigration Reform
said this weekend that unless legislation is passed to
c1ampdown on illegal immigration the nation auld
face hemorrhage of our social welfare system
Concluding that illegal imniigrant.5 arent bar
gain federation study said evidence indicates illegal
aliens pay less in taxes than they get in
benefits
fliegal aliens are applying for and receivuw
bun
dreds of millions of dollars worth of servicesat the
same time these programs are being cut back for disad
vantaged Americans the report said
Illegal immigration was not
free lunch it hai een
charged to our account and payment
is coming due
The report Breaking Down the arriers The
Changing Relationship Between lilegl Imxmgrauon
and Welfare was written by the federauons executive
director Roger Conner
Amonghlsfindiflo
About 18.5 percent of undocumented men of Mex
ican descent in Los Angeles interviewed
after giving
birth at county hospitals said their families
rived
welfare according to one survey
In study of illegal aliens in
New York City wto had
not been caught 13 percent of Haiti.ane and percent
of
Dominicans said they received unemployment
ur
ance
California survey found nearly 35 percent of tile-
gal aliens surveyed received unemployment
benefits
An illinois survey still under way suggests illegals
collect more than iO million in unemployment benefits
and 46 percent to 51 percent
of aliens apIatioes are
from illegal aliens
Conners wrote that although
earlier studies showed
illegal aliens used few government
services the illegal
population
has grown since then new
studies use more
accurate methods and the illegal population
has
changed
Not only are illegals now more likely
to be intact
family nuclear groups than transient
Mexican work
ers but todays illegal
aliens are more aggressive in
seeking benefits the report
said
4PP 0161
14A /The ko4json postiTue. Oc
1982
-City
Life-size dummies add vivid
twist to murdertrial
%y MARY FLOOD
j.s$ Reporter
States exhibits 19 and
20 stared at the jury
--urthg most
of the testimonY in capital
murder
ÆialMonday
The exhibits in state
District Judge Henri
OnckenS court are two
83.500 dummieS made in
The Wrenese of the man on trial and
his dead
compafilOit
The anneqUin1 purchased
by the Harris
County district
attorneys office are
meant to
show the jury how illegal
aUens RicardO Aldape
Cuerra and the late
Roberto Carra.S floceS
ooked July 13
when Flores policeman
and
were shot to death
and another officer
was criticallY
wounded
The models are wearing
the clothes Guerra
and Flores wore that night Flores double
wears
purple shirt
that has bullet holes in
the back
and is heavily stained
with blood The manne
quin has
oclock shadow and chest hair
is
visible at the opening of Its shirt
The model of Guerra 20
has nuch longer
hair than now worn by
the man whose likeness it
mirrors The Guerra mannequin
also has long
mustache beard and
the high cheekbones and
prominent
Adams apple of the man on trial
ProsecutOrs said both models
are made to
reflect the melts height
and weight the night
the chain of shootingS
When assistnt district attorneyS
Dick Bax
and Bob Moe lugged the models into
view Mon
day afternoon
there wasnt poker face in
the
courtroom
AJi the DA.s were very srnirky
They figured
they reaUY put
something over said
Melba
CharnPOlt the artist
who sculpted the precise
busts
And the defense attorneY looked like
he was
really surpriset
Champion worked
with her husband Jack of
United Scale Models Southwest
Inc to rra
Die-size images She said the pair
teq-e
scared her during the four weeks
she aorei
them Sh said shed forget they
were ut
workroom and suddenly see their Outines
think someone was there
She made the faces frnm death
scene
morgue pictures of Flores
but she got cr.a
to see Guerra before sculpting him
Th defense attorneys oblected to the ad
sion of the exhibits saying they
acre lr..a
tory and would just bolster
the witnesses
ney Joe I. Hernandel said
the mes.-
no purpose but to
Inflame the ury beca..se
blood-stained shirt and
the 5pocy nats
likenesses
Defense attorney
Candetarto Ei.o
trier proeeCl.ItOr himseli
said he asrl
prtsed though Im used to a.rncst
with these guys
Harris County District Attcrey
said the total $7000 bill for the model will be
picked up with money
collected the worthless
check division not tax money He said he
thinks
the money is well spent
None of the prosecutors would explain
why
they felt it so important
to impress
the faces and
stature of Cerra and fleets on the jury
But
defense attorneys izondo and Hernandel said
they plan to argue that fls fired all the shots
and not the4r client-
The modela are likely to be
used by the state
to have the many wtUieS involved point out
the difterences they saw
between the two mis
PICU who they thought
did the shooting
The case began when Houston policeman
James Harris pulled over speeding
car
Investigators speculated that Guerra
and Fiord
wanted to hide evidence of robbery
and wound
up shooting Harris when they were stopped
at
Edgewood and Walker
Witnesses told police that after
Harris was
shot the suspects ran east on
Walker and one
raised pistol and tired at Jose
Francisco Ar
mlo of the 4900 block of who was
driving with two young children
In his car He-
died several days later of the gunshot wound
Pollee said FIord was killed
when the rwo
suspects were
cornered in the 4900 block
ol
Rusk Fibres allegedly shot Houston policeman
Lawience TrepagtUet who was
crttIcaUY
wounded and hospitalized for weeks
Flores was then shot by
other officers at the
scene pollee said
Monday jurors beard testimony from Assis
tant District Attorney
Terry WflSOIL who hap
pened on Guecra at
the scene of Flores death
Wilson said he was marking of
the crime scene
when he spotted crouching man pulled
his
pistol and eventually got
Guerra to lie on the
ground
The state Is scheduled tO continue presenting
testimony Tuesday
F00143
tiopoIitan
Th capital murder trial of an aieged tlayer of
policeman tna us the unsettling air of wan mu-
seum when prosecutors bcout.i Into evidence two
life-size mannequins resembling he defendant arid
Ise alleged accompOcu
Courtroom servers said accused killer Ricardo
Adape Cuerrl sat agapa Monday the tirst day of
ttimooy in Pu trial when assistant district attor
says Bob Mosss and Dick Baa showed the ur the
idrtkuigjy accurate models of Cuerra and Rob-
eisa Carrasc Fiores
The manswqwssa which coet the Harris County
District Attorneys Office about $7XO stood in
place in troek of 11w jury and state
District Judge
Henry icken throughout Use day as police oTicers
ttdiud ai1 the scutheut Houston scene where
Houstoo patrolman Jasr Donald Harris was
Pulled as sk wilk Iwo miapecta July t3
Frsa wu killed and Doputy ShsntT James Ire
gnwr via critically wounded in resulting mars
bose that nik passer-by Joe Armruo also
dad in related those
District Attorney John Holmes Jr said the
idea of using the rnarrieoutns to brtrig alive
de
scriptiv testimony riighty unuauai inc was con
ceived by Moen and Baa
The prosec-itors apparently intend to use
the
mannequins to clear up cnfuson about eewimnesa
testimony oo the behavior of Plots-s and Ciierrs
Cuerra claims Fiores shot llama but witnesses
say Guerra was the killer police say Cosirtap
pointed defense attorneys Canoelario Elizorido arid
Joe Hermsaridez objected tO use of the manneouimn
contending they were introductd only to inflame
the rrurids of the jurors
Elizondo said tne mannequins have Pigfjy
emotional effect Fibres clothes stained with
blood and ripped with bullet holes coer Pus like
ness The model of Guerra is cowered with Use
clothes he wore the mgM he was arrested
The Cuerna mannequin includes wigs slowing
his heavy facial Plait the night of Isis arrest Cuerra
is rio cleanshaven Production of the mannequins
inciuded mØasuremenu of Florse body
Plastic molds connirt.tcted
with the help of photo
graplss and drais rigs
uf he SUSPICIS were used to
fahicfl he mannequin heads
A3SiSUII Drscu titorney er-
nuesligaise sltngs .isoiviflg ..e cr
ified Pulonday 1w win wa Lr war -w a-
Harris as alse tries -w icec ns
near OrT trailer ton sa11 e-
and arrested Guerra .rc isa .i
Plandguit
The defe mainiani hat Pie 9r
io shoot Ha-rn Arrnlo son Trera
in Fibres Pa
Harris ta routine patrol suo w-s
Flores for tactless rig
ne w.v
Walker Cuw-re alegv-lv idiot MJr3
Arrnulo tie 04poC4 IC tO LiW5
block awa
sa or W5J wrt
FtOreI was astleo by gr.fre
rsr Ss
afler he ru from 1asge fir.r4 sL
Detective tPwbr.ze at 14.arrts
es sr .-
Cern aid Foi-s rosgse to sa wgs
.ere esital of being ise-viiriCId
.r
with rotbefy Pie pm esa
cam ing redeery ic dtt
tilled
If Cued SuCIC scJOi2i
nr
be -enitfim to iii pr ui 1eaL
F0C1433
eua ct- 912 OuStn 3S.CI a-i i-
issv os C-.c 50
prosecutors Bob Moert left and
Dick Bax fank mannequtns re
sembling capttai murder defen
ant Ricardo Guerra and his
alleged accompltce Roberto
Fiores who suas slain by police
The real Guerra above had
beard and moustache when ar
.Mannequins used in trial of alleged police killer
BY ALAN BERNSTEIN
Cbsuide biaS
Ape iilbJ
Houston Chronicle Mondiy OoheriSection
.11
by iiiegai aliens on we
favoring tighter clamps on immigration
cepts such as legalization for perhaps millions of illega
aliens being considEred by Congress
It seems to be FAIRs standard sticklooking publi1
cation that on its face has lot of material but is JUStI
another slim dounent to be added to the side of he
restrletiorusts said Enrique Valenziela an imirugra
tion
pecIalist for theezican American Legal Defense
and kducatioc Fund
The FAIR repoat does nat inchide oriprial research
but is survey ofrecent studies wtuch Conner said have
not rceived enougl attention
FAiR said newerswds show for example that al
most 35 percent of group of illegal aliens in Califorma
received unemployment beneftts that 29 percent of ille
gal Dominicans inNer York CIty received welfare that
its percent of undocumented women ui Los Angeles
received welfare and that 46 percent to 51 percent of aU
unemployment ineurence applications by aliens in illi
nois were from illeg.J aliens
Like most of the earlier studies those cited by FAIR
are generally analyes restricted to certain types ot
illegal aliens in one program in one state or county
during one limited time period But FAIR said they
F00143
WIESSLER
Washisgtoo Bureau
ASHINGTON group that favors tight clamps on
immigration has pubh.thed report disputing earlier
reseanch that indicated illegal aliens are not drain on
government social programs SUCh as welfare
The report was immediately criticized by Hispanic
pip advocates who argue that most aliens here ille
are boon to rather than drain on the economy
aid should be allowed to stay here legally
.The Federation for American Immigration Reform
Ii goes by the acronym FAIR is trying to dispel the
ethonal wisdom garnered mostly from studies in
srly to middle 1970s that illegal aliens pay taxes
make little use of public services
idea is myth that could lead to hemorrhage
oWsoclal welfare system unless illegal immigration
sbstancLally stopped said the report by Roger
executive director of FAIR who has back-
as an environmental lawyer
pthnp of the report dovetail with FAIRs advocacy
gration restrictions and its opposition to con-
App o14
earner reearcfl
point
to change in welfare use by illegal
aliens
The first evidence on the subjtct drawn
primarilY
from surveys of apprehended illegal
aliens suggestEd
minimal utilization of income
transfer piogrITIL Con
ner wrote Later more reprseatauVe
eviderice
though largely ignored by
the media and politicianS
indicateS much greater utii2atiOfl
He contended earlier studies sefloUSlY
underemi-
mated the use of social programs by illegal
alleni and
that correction
of the false impressiOn is
matter of
some importance
David North one of the leading
researchers who did
some of the
earlier studies sa4 he generallY
thinks
FAiR has point although he
did 7pot analyze
the FAIR
report in
detail think theres
omethifl to it be
said but added that much more
research is needed to be
definitive
North said his own pioneering
studies of the 19705
that
showed most of sampling
of apprehended illegal
ahees
paid taxes
arid did not take
social benefits have been
somewhat misused
He said he cautioned at the time
as Conner does UI
the current report that
sampling of illegal aliens
who
were mostly young previouSlY
employed males
would
naturally have been
expected to be payuig
taxes de
ducted from their paychecks
and not to be using
wel
fare programs North
said he always kneW
that the
whole story could
not be told by looking 3ust
at this
group of husky though
unlucky men who got
them
selves apprehended
Cc.iner said malor weakness
of the earlier studies
was that government records
were not used Three
recent surveys of illegal
lmzTiigrants and six
recent
studies of government records
indicate that some
ille
gal-alien populations
are making extensive use
of t.u
supportedprograms
he wrote
The FAIR report cited these findings
from the studies
it surveyed
irvey of illegal aliens
who sought legal help ats
Los Angeles immigratiOn
center showed that
12.4 per
cent of the study group
indicated they were receiving Oc
had received some form of
welfare
1191 survey of women
who iad live births
at Los
Angeles County hospitals
showed at least 13.2 percelfl
were illegal immigrants
of Mex itt and about
one-fifth of the
undocumented women reported
theiE
families used welfare-
food stant and Medicaid
small survey of nofl4PPrec
Haitian illegals in New York City
howed that 13 p5
of the Haitians and percent
ofhe DonwUcans
viewed had received unemplOYU4tt
ilisuraliCt
Los Angeles County
huntaft resources
recent years identified
about
month seeking welfare
each year by denying
California study On
showed 41 percent of grouP
benefits and percent re
An illinois study con
that more than i0 million in
has been paid annuallY to
stata
fare claimed
Ilenges
pp C15
f.TiAi4ilY c-or OjSffl
thatl
ItAmo
idge todayrejectad request for
In the capital urder cIaso
srdo Guerri who urb.r%his ITwoth we questioned after
Cuoo despite jurors
aantthi
sthe kiIkç
dec
they1T dmyvsrthct.i
ut stat diP.r1Jidge Henry
courlappothiad defer
r1alarlo E1lido ssid.L.
Jtat the stat.rwnt was rtoper
trial hearing but osuid be iIude met tag
--e appeal at the death sentw9 orys .a
7.uerri 90 An appeil ats Jr..lo tu
dsath penalty cases.
.- thatTb d.ferwe niaintatned in the trial pay the.s
Robeo Floras
..
hailed Officer James Donald Harris in M.v ffi-I
the 4900 block of Walker on July13
In her SWOtlI $tatetylentM3 Monroe esouerth.tawh
saId also dont beheve that Ricardo tary Masioo started dsfr
Guerra wa the actual killer Ibolie the
.hLscane. andMexicanew
other man was evn.tupI beLaVI.Charg.d baths osnvictO was
Guerra.dapatnatiomebewIUnd.rt.w osuid
r.bsen noovlctad ot U.aiosa2du a1i
P121
_____
___4 It
sen piion
__uerra wouWI PCOSCU ry
.i
ytGueria was the trigger man...----9005-
Flares was killed by guriflre from v-
ersI police officers an ____ the .veict aX sperad picketIng It
aspecu who killed Rarrl the Harris County nun.J Co .he5e
Five pros.cuioa w1tns hidcetedby Houston aq aq4tUy saw Guerra st.thsposf the ajaüietthh.a and several Mid Guetra Arding timiIy Harris stopçsd
also was the gunman whq killed piu-1 Guerra sed flares on wplclon of ceck
ar-by Tb trial isok an wwual irn WI. drivIng odwuCwbAle ssarçhag
when PCOeeCvo1 Bob Moon and D4dC 1the wispects ouUtrr.Th.1.I
lst eta uw
a.qwas ree.mbllng Guerrajed I..-IIIO the car otJoe Azo 33bo
res appsrenU 4g 5l .4
1_Uie eyewitness mony..f.1e Dortng theuiasm thatoiglit flOjÆher affidavit Ms Monroe sa ob sv Uon1lywoed Hotoo
J.1hose two mannequin alTectnd tmi lice Offlcer LanyTrepegnler Ileres ..
especially the bleed then was dint by syeral ors
stain one which was the qlanosquin of Harris gun and 9mm pIstol used to
riores They were eerie tanosquin...st him we found no the bedy of Fb
blch were positioned right at the jury ies Guerra was found hiding nest tqa
p..-hey remaIned is our presence alar- horse trader sear his beuon is the 49
IUiistraagbL at me during ha w1e blockoR .L.
-cq
-At the arid of the trial Ms Monroe told fore Flares was skilled be said
.hs defense attorneys that Lb mat.4hauled snofflosr and bad his gwi
.-y.quX gave her nightmares It was lAke Pmusc.ators thori tbaLHarrtowaa
dead man was staring back at me IbS shot becau Guerra and Flares tested
cpp O16
jjgerefU
to force government to resume
Ut
me aM me
ci- toil
to$7 Ufl
_____
the isto 1W
at
fl ast ltoh to
vIU to -- me
c57 mePivlsis1 roW
liVº 2Ziæö dad
S.AiVR Sajvad JP1 guames
t.as Lawyers hissj
Saivadors atis politCl
iOi northeco .abiiT A1C N1
ctiid st victims tiludM
ilathe Wd rmso 1111 stIllS DemiCft
legIslator
urb thOttt sad wttftiU
said
COto$ermesaSaAS1uI
saId II
tile oiLL sponsors
.-.
--
TU tIUAT to mis UMIOWI partner In
country .tisUOiWd
hi bitt Rep Romine
hiasisil 0-Ky. finslig
said It ci result iia1414
the egmeiit
harm ii Amleicis nS tIle iiidiitlco that vu
tridilisto clS sur hIN tM Imail$TsUOli
publIc ciltlel
tisItVtIis PIICSis
He hid he iitd
sad way
SIanl had sotud hard
Slinpais itod
nwwI to
mUI il the bill ii
bets the Alliriti
1101 raCibl Ilo attv2t
tmmilltiif L.vyerINP14
1101 mist
AstoClitliS thai itleisi
Hi sri Simtl isv
or list vito
slrdY had to overcome
enter 51 stu11tS with II
other conrelImtlu
InteiICl l.svtt$ ire
niqId stttu toward
t1kU lobs thet cii to
iHito itid they
1110 viOl
to obumed bl to reconciled 01th tIle
ether todi me
The Inflel Imoni
raftu be 1114 is Si grants
eriattal zea.iblC
wIth them
Amend with Wty l4y tItomtlT
coohtoS It his bSto are
whe tests Ito viM is hIS
I1 Urd5hto1 de
liS tO .mnigT$I
vised Pliffluji toU
itappett not
to 1u
in tills eoun
TM MULTI try tiMid 9ut
CTD simpaoiHi c.wstry is sot large
immilraliOfl bill would en5.411 to
SM every iw
give tIIlpOrstY
ciii It
status $i million
sliest .ito Mv beeli In
tills csutltll for
orveral
______
years
aliovilil tIlIM II
e$ ctttW11liP ftwtois
also impoSe cr11111551
peniltIts is
empilyisi
to
to
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Tdi.Y apis
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sail or reisgil 115ti5C1
slid so
Atl ctiis to MuL tiiedlil.51
Thd Ito he
to me ci IS
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ia moo rebefeiS
iS reid
.to
is as ttol JTlS1pr aa
L.
SAN ANIONIC UPI
tInMlll$tll lawyers
hised
the ImIldiTlilis
Cistrol .14 Ma10rI
Mt
ttot is marcillill tlwagli
Congress despite the
sei asursoos met
bill is aM rictot
ContrOI mIntTS
ion is auwot
Ir.iis
trsdlil0ll .id Sen 15th
Slmli RWyO
who toislilty to
Tho 141015 liti
the bill 4ler
speCifiCS sad the
qsSOfI said they ire
flghUU agi is
isflto mat vule muM
me blU mm reiiiedvlb
Ii is IIedwlId
or st
bato Is tile Sesiuw
In JUst
is ettU at the rem
mitts evil IS the
hoist
Wall Storage
Not Just For Books
more
J.
.D
SALE S299
ccrrIete white wall storage
from West Germany
irciCeS atl seCIlOS plus
cCeSSOrIe5 The reaOy
to
asserfDIe unit is
142 99 wiCe
71 high
Sti
3C6 30
u5 iSO0
Mile Cei
s86 Wesiee
ai
13.2513
CIAML POST El
me immir
ties lawyer erganuli
sato me
had mi feelisgi aat
bill
Wi agciute the
IisUtothe1adi ThrO
lS7 parts
the
bilL to mid Butw liii
me ii gis tar
UI re
vIig unmAc
ive there is
mtddto groned In petittil
tim to e1umP
beth
tdvit5It1 grdui tO
remain the
SlateS ii you
ewad ahe1
uuilfl.d
10
4pp 0167
.
.
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By Fg BONLVITpt Liiti
_______________
AU_Tezasc0 up some morning
and nd addiUOl millions of
Mexican nationals
ot aliens living in their midst and aznaticflY
altered qualitY of UXe
proposed changes In
federal
jjnlçadO@ laws are approved by
the Congresa Ccv
Bill Clesnenu SYL
Jj
SpeakiZ with reporterS
before going to twot
meeting with other governors
om both sides of thà
U.S..MexiCO border
begtnflin SundaY ClementS
said
he m1 lon..re0r measure as passed
recentlY
by the Senate
would change the direction of this
state It becomes law
am ao1UtelY opposed
to that bill and am
doing everything
tOW how to do to see that bill never
comes to volt in the
u.s House Clemnents said
He said be reflects the
feelings of governors
of states
along Mexicos side
of the border
And VU make further prediction
tO you that it
wont come to vote he said
EE SLU BE as ENLISTED
THE AiD of three
_Texas DemOCrats
two of them in powerful positions
in the House leadershiP
to help leep the
measure
from reaching the
Hoie Cour for vote The
House is
settoadiournPct.S
The governor Identi1ed
them as u.s Reps
Wright the Hse majoritY leader
from Fort
Wor.h
Jack Brooks of Beaumont
the ranking Democrat on
the House JudiciarY
Committ which considered the
____
bill last week and Sam Hafl
of
Marshall memnbeV
of that committee
Cements said mnigrati0n changes
and the
valuatiOn of the peso
would be the main topics
at the
Third Internati003
Border Governors Conference
set-
for T1UaU Mexico and
San Diego Calif The gather
Ing will bring
together
the four u.s governors
and
their six
Mexico counterpart-S
whose states Canic the
2T.lle tine een the two
nations
An aide to the Texas governor
said President
Jo
Lopez PortillO
the outgoing
head of state In Mexico
might attend the
SundaY dinner for
the governors in
T1uana
WOEING LBEAD TO TUE governors
meeting
Cements said he expects
the seOC to confroSt direCt-
ly the serious probltl
the neighboZ n.e
tio especiallY the peso
devaluation and Its
effects omt
the economies on
both sides of
the border That
je
likely will
consume more
than any other
he said
But second to It will
be the proposed
imnrnigration
F0c1454
reform bill now
woridng Its way through
the Cdrce
Saying repeatedlY
that his feelings
aeShY App 1o9
vaiuatOfl of the peso OtG be uie rnan toptcs
Third Intentional Border Conference
set-
for Tijuana Mexico and San Diego calif The gather
ing will bring together
the four U.S governors and
their sin Mexico counterPaFt wh states flank the
2O.miIe line betWeel the two nations
An aide to the Texas governor said President
Jose
portillo outgoing
head of state in Mec
rnigbt attend the
SundaY dinner for the governors In
T1jua
fl4 LOOKING aHIFAD TO THE governors meeting
Clements said he expects the session to
confront dlrecr
Iy the serious probiem.S
between the neighboring na
ticns especially the peso
devaluation and its effects Ott
the econOmieS on both
sides of the border That tue
likely will consume
more time than any other he said
But second to it will
be the proposed imrn.igradon.
reform bill now working its way through
the Cqngrees.
Saying repeatedlY that
his fee Ungs are shad by the
governors om Mexico but stopping sort
of corn
mItng his teUow U.S governors of
whkb he is the
only Republican
Clements sharply criticized provi..
sion In the bill that
would grant amnestY to aliens
now
In this counTY U1egailY and
allow them to remain
Part of the amnestY provisi Cements
continued_
would let those aliens bring members
of their imrr.dl
ate families to ccwiLry
to live Given the fact there
are at least
500.000 Illegal aliens in Texa.s
anumberi
_l_eorproeCted to beiirthThlillions but wtilcPr
he now says Is unverth.able that
could mean at lea.t
millIon addiona.l redent.S
in the stattPe s.ald
.zr
that does not Include the
rnilJ.ion that we are 1Iim
about said the governor So you axe
about
enrn.J pse1res on our bouxing on
ow public
vices os ow octal pcogTazn.L on
our hospitals on
h1i TbereS hardly anything that you can taflc....
about that wouldnt suffer under pressures
of this kli
ND YOU KNOW ITS NOT RIGHT for Tezu
quality of UIeJn TeuS Itll cbaa1t
the retOQ of this state We dont want it
Saying be and the Mexican governors
have talked
about the flow of illegal
aIie north acroes the
Cemen ciais also want the
He .id Mexican odals do not
want to lose.
the poi_laOn
They are as opposed In Mexico
to amnestTL5l
t1ght In ew..Cme0ts said hear this
the bigt levelS and down through these gove1
While co governOrs are not likely tO join
reso1uOn on the
egis1atiOn at the-
conference .1d Cements that
d%t oecerJ
applyt0 the u.s governors
Iti enre1Y pble that we will make our
very ggly cwn he said
ry Purchase
13-pc
ill System
-Hd desk and t.vO
storage celow glass
yes above Eacn iS
--
ry
PurÆhase
rary Sofa
Seat
pcs
vih an Crental influ
cr nylon wt ttOW
F001453
App 0170
Haaang chief regiu
GALVmN ees
ds
athw1 ha he to
1V5W n.j masiiettda
be rmshied isa
hi he
to iA II
he cs
--
hel he..U.4 the ale the hiq
INla told
he
hool borrowing OKd
the aIsUto to heu
to aI le
a.ry bs delays
hi Iii CCOi..laIsi
dhe Ja told the his
CEflto too he
he herd It
ma na sad
Sfl
n__is as iot.slad oa it
UWist1 he he thelt
jsr so ss id muds is II
scnuths Is idsu
17 t0le The ss..m rp1 on
hi
he rsrnt ...is4
yuac hi I$l aa ap
rt tIy bwIs $d.2 ethIa to13 sad ivwa
fr 01 sto hi 112.3 dths. The
lsziis hersois Is narct uU$
he hi the Codsir SC
shen fr O5
his yr to IILJ .jas hi ASCICIL
heal trCh cs.Oed to had the bet
sIde IOJ .torty 11 mtlbes
at toilSa u9 It old
Is sad L1...CiU Ut 01 aIds. up
Tex offtcisl resIgn.i
Lato Vii Ella ha
ma
he cds ec
she sorbed hi he Iii othc
.0 he
isIS esIl7 as vud Iros billad prtacl to
she he Mt he asald
Vs ta abes ieWd
he
.pposd emplOY
the they old
sot be UsWVUd hi sad
to srtorI hes .111 Bad to
aphe an besld
ctMs is sit
It hi isisity bo.tver 11151 1151
she cUiriy so the hUhi ivolvid Sam the pus hi- 75521
Rop his Ilall D.Tsma aid tolls
he Jtadclary Cosheltee aid hat
to spSs he WI till CtI55e the
is AmsrBw He made theCs so he osbe aipport he
mods. whIch tnouiy laded to ha
ha he bulled
LTIOVOI TIC psusd the
Ha psisI Ito More hi
La she to islillo toid it sW be
.Iorla It the mTwds toU isr
bra hi he Homo isere os is
lIst he .ad sire sot lutereoted In
10 he 5A5l si.ld IS
Isdeid Wrtat wta mIned si ttts
heorto to pseIs.Il cainey hIS 0St
he to he ssw bohr the iidBIsrY
CotomInto ose
The Tuess elSe rise as it_slority
Ispuct lscsntlY the hid
hit to Rap Petoc Root..
N.J. JudIciary Cosmlttse elislrmss
ultiSe CSeecs 5btot
he sad or that toe mesair not
bSrtohIdtkis4U
Is toy hes the publIc is not pen
psrid to .apust total peI-vnaMlIt
hIm
he IU thee who can utah
that they Iiis mss.4ud to SVidl the
he fts or do petit aid ha claim
moms nIh is iseheity Wright
told
Roth.
Wrlttt saId IbtU
II wisid tie
usr m5bl to try to etad aoaielhtflO
thrm hi the hays is oor isgisis
Us sdthtoat asking sun that it
his bees tVs the SitrilDIly Sr IOU-S
cCC$ that mattel is thuS mat
bltllds d%
That hiatoSeW tosr$l cs.çeislOI1
acme hi I.dicLtiOS
that
he low priXtly ill
he sUs CnSrl taCIr4 Cosgiels in
-----5mm
__
JERGENS
LIQUID SOAP
WPIi Qusniuqiss list NO r5N-
Chicks L.m4 pIssis
__
.-
--
.r has Las
La he he he to
the tsi aga laWd to
purl Vhe
55 is
he
Immigrationbill
takes low priority
Pus 0_ heas
___
WLOTOt4 or he is
Ulepi shea hetruid to ha cs.cmSritod
hi sad other borhe stahe hops
he 150557 may ha Indl ii limo nuso
for he till Cosçes
The Hs JudIet7 Cammfttie the
.....4111W1 aisle the ..-n_lIVel
ohi taisIçhe ithra hilL 51kb cads
be aa7 he ahe lb Sisahi
proaud ImIIir s.e the to
toot the iheos sloop sill the lease
pIsalop to reeSe at he sad is sat
sad heahthl the leaCstha
Is hes is ectsd revs
by he tIS Ethocallos sad Labor Corn
hehe .adps to he her he vut.is he
__he he wish
toe a5 the saue
he 11he bes to go Is ra
hitmea cml to he he trIS
batTles he 5ea aid
Mar he It small reborn eatS ehes
forhe1sppsleUl
alt het saal 5045 to
he he is
she tmhra50 smoop isy Hhe ao
sialdy Maotity LASOS
is Tens to the bill pea
the is Co
TIete sill be limo
Cs.50 hiheto the Mhelshe else
he pl rtows slier Ths
hal Badge hi he Has sad
heists agised Is Isa mciii sates
is
lops is- dss.liop
esehadvisy sill irs
IU heOCAllOI cads for
pessids ijalris
ebI010yltI she
inesioply he dlepJ aUSe modheci hi he CisTeot timporttY ember
sad so smahey pbs
the smut
p.i rdetl is5ta or l1
she he bsiale Jss Lit aid
mourn for thee she saThid
bahee iii
heim roor eWlot2 repriebot
al7 saustis Ilthtoa
he nihe rosin
IrSe the cosipIll
Each is the inthtbluitlJ
have SlYid msor oppudtlOi het his
thriS50l he 121 pumol
BaShes is HlipsRk
FU1455L-1
GOING
II.. lisa
I.. ilotŁi.I4 hihtt lb.
ARD
App 0171
TMNrTIiYE TI
H.lp You Grow
ARMSTEAO
UtT PICOII AIMAD 24 41.0 Awgws
1912 Mi wes bW
jy 26 193$ md
nd.d euiI PI.G
t..is Mr Ansstled
oöj.tod front l.o
M.s ScSte and Mt
..ItPp of M.sOn MS
nt..nbsr
p.1500 ChvrcSt
.4 .nsploysd by
toa.g 5tnvent
.d enonIs Mr end
St Ant5lOd
oth. Ssiar illor .I MOæCY
yen JwUS ucCwIIowqM
-.ndnIOI Mrs I.e
Sc. nd MrI Z.ll
stj.d Pvt ric.s
h.fd 1.30 nt
o.ay wqusI 30 1912
jt Ssfs.its ED scooc
St.vcSt ...tiI tiss I. i.l
o.f.s of.Ct.sg
.5At folo of forust
SdeIs Ci.nitey
LEWIS SOPdS
130 Sos load WSI
ô2-6300
AXTELL
AFW AXIEI.I. 72 of
W000i Dr
d.sd Tksoay
bolts MptOl
M5 55
P.t Ar1tU and 01
lInens is
.cInonc .1 ng.ns..
...nenI ..sclwde w.l
o.y A.t.d of Pert Ar
4Os4ler WI
erv T..s of AwsS.n and
as. Th.l M.i
ott lOde
sg of Pt ArSt end
nsr.A4c111en fwt
c.c.s .n..l SwldlyOt
O.nt Mndly SoM.y
of It Clt.
er AtIhUr lw.el .Il
iI
.he...S erh UCIOnC
..tOSr15bY th.Pert
LSdqO 1264
.f AM NUIIdLLY
UP4IIAL
-tOMI 3727 L.w.s Or.
ert 915.5322
EARLE
SAMMII LOU IAILI 71
ed ThiÆiy Aws 26
912 MIntIS f.rst
.j.w.d MsffiSt CIStcSt
MSw5tS nt.l.le .4
__d .4 tffiISV
EDMOND
MIS MYITLI ID
MOP4O 41.0 Swndsy
S.sns oa dsaqIWwl
it II
we S1IISYI end live
eSt5ri W.k w..cS
Stud Thitsdly
Sen4 -csI Sosdv
p.nt jw
Ci.gei SsIel Meusten
MofUeriSi Q.dSn
JOHNSON FUNIIAL
MOMI 5730 Csils.wn
Id. 7g7.9444
HAYES
MIS IAIIAIA lost
HAYES 4$ pen..d
on TPs.dy Asqset
1912 AndWt.A
MSiitOi M5itiIe
Sbere M.poa wet bans
Fiend en J.y
1934 SIse it been
oadenf of H.mteri Mt
_10 ws
l%p1 I. JS
M.755 he desalllmrs
Wi Sbsery Werhw.en
and Ws TerrI WIe
her son Lewis
MOySS lilt penI
Woltet IsIO end
Modilino 1. her
.pen WSter I..
ill her s.sw..e.iew Mr SJ
WerStntsA end Mr Jan
Wilt.. UenerS wv.c
.1 held he
M..d Dr..s
CIitch 12211 Me.el
Or.. Houten es p..
on Senwy AI$t 211St
1912 lerberss lens.ly
he vow
lf. her lee end hen
s..snrh detsWtq 55
SarI. let M5yes
uenen Pt.nd Un.vensPy
of Yeset
_6723 b.IO.r Mets$en_ --PHOENIX
ric VERNON PHOIP4IX 49
LEWIS SOPS 2330 ...0 Ait.tt 23 1912
S.f l..d M.uten Swr.ves Nsrs LienP.ai tw --tnt MrS
NtW YOK UP1 idersl
eMail -.- ud Fit7 Ig%i
BroaL7 mM icc.a.d at ag Ut tvisu
Dlii DLI IIOI DY midLI3 hor bombtIlIX hot MVII re-Momid by
4ev YoU City poitci is homicIde
eMail
YOg ray eiree7
roa R.ejvt Y.i
DII dieth prar4
ccsnD.y eou i4Vf
to rewi 1.r
Sxta.I Saer1ty lc.LJ
aM Z...jaiy 1L$
mtstt eer7 JAY
maltJlI boTt.J
TM SociAl Soc.r
bo dJCIitlOIt$Y cI
CI.OilaI J1II
d.ci4n be.d 35 I.Cf
Zxtv 10a4 I-I_.Jri
9i4xe 1110.1
Pt. II it v.IIid .1111 Stil I9rwy
the at the 0Uu1e1
Ii hol1L 0U.1311I DLIL.CI
CheS Moi1%aN slId
-42 $.u.iis Poit/1o9 Asig 21 1q12
Dsa DII
IitcN
SN 2U
tü Sa7S aliens pose
ALLISON KESLER bigger threat to U.S
CHAID ALLISON ORACI TAOOAIY Its
.di5dAJss 1912 LII DentAl1
listen
UntY August 27th
elwnid than A-bomb doesII of Me.stOn Lent
.uqhters end lens..n
I..Sd H.$en
.r.elI and Mt5e M.PSt .4 FidsIs
54 Ldss Cheri. Li 3y CJe NW YORX YPT Ohs IslIhe dui xsuIt In 9t bib
.d Merty .id Sh.D UMled
M.fMratI CisdI V.3 to Ito mat 19 It 1110$ II
a.. end llf..lsnq SIO aM at at 1mi aM At.IC$0 05 119 il
55 onlctst..ln hhela Ced AiCm Au.m ..u.iU 3.00 ISIt __ G.au.- rn __
August 21 Hglsts Isbe Si.
WeunjeA
__
Ci9t WIiI II Y0 fr
.AsrCf Chap. Is. dssls OerwW auvUIpsHiu 40w cgItwij dtflete.u
Ir.r sf ficio.ng
Dint sen O..rqe TL ._ MILICO
nteit 200 pan 5i beth .4 WeusL9g1 aM s.s EDit
Aitgwet 29 lock en
D.mo sv eI t_ a..
.11 City C...tery .n FRAZER Cft.sdea VIdcIl5ion ______
..iweI Tea.s SlIGHTS MIS SILLIE PIAXII _LI Elan WiltIss UI LOis.4 SI$U
filIAL MCMI 1317 died Thgsdp Au5iti$ 26 KerPV
II M3.gw. at LOis.4 yes more ooocered
..sN 11.0. $621114 1992 In Meusten l.ddent
IstIlatis absit tholeto mo Uthial thIJI IIresJ
.4
ices 1030 5.t Mestey Ill abs Ii bun i4blIfr aLIosd boI did thirg
si sir Gee Lesss Sent Nat wig mIU1V at hot $19 Mt illthe Unitid States or the
U.fed MSfIdi5$ OIsC$I
Id Otis .th Sel The71l col aeer the bdor ui-cU UIbs vmsld stali welae.r war
of Meusln
ien elfictotlng lhey9 Ii vt she rat tD that it Out
fw5nd Clauds Pre Swr.el M.nlor.eI Oaks she mm-ut wl1laI It.aMI1%I ogpod It vlfl ho mmi nu.t iauon
MOulton deughtSPi
C....y is soamm they isa thou it tIvmi Mt t.l WSU tl11ce
Ciom.oie Sientt Meuslen
Olin O1.II I4vlsn CtO isa atholt aM 3s iulbs he ism t$og is atT the map ay
ford Jerk Joist los
_-_ mo shoarD yell me
Noisy l.n.att Arlington C.W Hut.i Or ws Mt st fast Mt It will oat ho ill Se.IITn stsors Aitne ves.i
tcItfi.d
MereroryLockt Vs. lbbe HIS at sui astat as Uatis or the Usitad Statos .M isa
Au5tn Vs. M.t4e $eyle
Ph... ArTvIS vrgt Dens of Sidsiji Sunday
to Di eii5tisbo morlde pon IPILM It tay he
ScItsIfier Nerdisnt Ts
Schsel Os In lieu NCW When L.sice vu rent1 that .acaar borsho vdl ho .ooed 35
fl.weni f.n..iy rsquest AmeItea IIU aLWITI beet the great hheiam yean bum 11G
brother Cobs MOIVOS
AuIIIA
censObss Is nod.t melting pot site uld the timei hid mist at paruoi Itnlty Mt t.tzetd upon
dren nows AnscSn Olsbetss
As ettatlgsd hiKe fCntflt.i1 begs moving Mivwnaa rice
.iesseu PittiS
soci.bon GO LEWIS American shorn is great MimbIlL Lime mee 11 satas-ed politIcs
Sottdey 30 p.ns Por SONS 2330 Sags Id. ii lb 151 ceatury the Vatted vMs she vu elocted 10 Cn.gTees
rem
621-4500 Stabs ahoorhsd wstdlt0$ Is mu Cuet.ut wsud Two 1i II IAis Park W.slhSntSr
F.n.i. Chisel wtS Dr MaCDONALD los ImMAsnU iii mId the Hm and altar an unaac
Orsel Sr..g and IS. VI saortty -_ at tuMameuLitM U. Setata Ow err.n Ihe.a
Froni Dish fflc.5.n.5 MIS GLADYS Uec she afl shell Thee doe to Italy durtog he eo
Uslere F.r.st Perk DONALD 74 41.4 bIa hoisi AM sdsfliatiZttiCt sirved 311 11T1
W.tkeinte C.n.ei.y Prldsy.Augut 27 1Q12 10 dwu had oWarsa rememhor Ntzoss Foreign tntelIlgttc t3rv
FOREST PAlE WIS lecel ho.tel I5sld5
gtt-t to New Ysit .1154 5111w that Board visieb later vu UC.P 3y
TM El MIs FUN ERA of Meuten SuvlvOl mid No hub Ranted or -No l.liiait Presidint CI5JtJ When Pl-v1.eent i.I
HOME 13130 W.s dsteri.Mfl.OenSMIYLlWtd Wisted or No Jet Wanted Well ye gia reinstated the board Ii
tha.ner at Oowy Ashferd Mrs Jent.s Suleck beth strides aid it was Thea l.Mcg to IWIIWII and Lw cepIPd
97.2333 of MeititsO .lunterswi
we. .id nissn and
hsst .4 fr.ends Ptisrel
sere Usildey August
30 1Q12 I.30p.nt Pest
Pork Let.ndele Pitney0i ..tt.-..enl Forest
Perk Ies C.s.ery
____________________________________________
POlES PAIl LAWN
DALI PUNIRAI HOME OMAHA Nib AP Sin Edward Zorthaty .JU4
6900 Lswndell A.S. oset ft.agu Friday to help widow wIle sas
991.314 es si.asud to returs bar PtuaheMI itay SocIal Si
ewity duct b.ea Ito dIed mInute betare the
PETIIES lagdayatthsmosthefbdid __
M/SOY.VANCI PtYIIS
died August 23 1Q12 In Roy CiUlisia eUNd
aliiln mechanic from
Teroms We. Sitwrb.eno David city and vitirta at World War died at
ffiSIhaF 0515 Pestlet WO pm Day fl AltMagD miii toay Social Security
lients i..eIle YeIeI_ eIwck or .3 hal 111947 blest tCtdIVigtld
wIfe City P.54 tot the ntps hohe acemunt the 5oct11 Security
D.wgiei .nd .ht Adedatads Ms demanded flat it be reruiltod
Pestles Teens We..
VeIs Kay GtIlte igist the mosty on tumwIeJ rnWeAW 1.5
.4 Ideustan sissts Teleds
pImIS sat Ma reftd to give it beet
Si Wrote to
lust.41 M.ult.n MsIsA
ZorUMY 0-Nib. SmIJ4 iwit to Psip
her gilt the
Denden Cendsn T.uet gavitT4JnistS
deorsand far tile Msti
ViOtetlen S.ttde 3449
p.nt. Duncen PunssI
Het 54owen Punel
12 beck
will UnlSn ChurchZe Yen.. intl
Ieckwefl Cente.v
DUNCAN PUNIIAL
MCMI 5106 Nerth
Pr..yy 672.17S2
Reagan askedto aid wido
Man accused of killing mom witi
aWU eilatgrd .4th t.c-..-
gyye murder and ruun .0
mm
..s.p and lists --
Craig Ktpp was arrested by va stitlt.lumua tar ing
.fectivel root Sh prediiKt abmat The charges $SIM Ktpp i-rv
FOC145f 4pp 1172
Undocumented workers
vp Ivu top_ ISN1 eis aid tato thePiliit it toeflZ tri etb.CU
.1Ai ii orpa
-- at ui A.B QiCb.p Iab.r steallal Jobs from settled
_____
ac aid WaTh quu bs4 sd la dt
ak.ittidid- Naids si- j_ Nobody bowjUMtIC list Si SiWik ecUftlJat tolt as dlii lbs AOS VWIOfU ii esresimg tiao iid iid1Cti U5t tto.Li Naxan atbot at tow Thlma YflIG to mpais iXjxem iUIi ad aid ri COSOSI O$i5vn
__ iididL_
as orpa Vito to Na iCCld adpa _a ad
vim botat boâd LJ Wi
Ciasdl.r vi directs effort to.rgs.Iu to iCtoi viWiI4I isa iid ali
____
ad oCto vi acu wulato hum The hd is aid
55$ l0 Uiimted vaIlrsir major ooim ito
is atior lbs lit usids tbsp maii up maiat
Va ad to ad the wortei islidil ta ismtoo ota
mi lii wal fOrt a.uo
V7 ar Mt
to aidis-.- aid COrpowi isa
ml ad art is bs Lidi jit tfl
-u5 remarti ad isle IflheLlis Like sa 4__J ad ati at Vito siim vire IL
1is aSL mid it W1 is UTiI Vii C%_.d
5iia that allow thto to qim We
VCtTi aIS VIid iiai
_______ to
IS toe
-_Is aid ii AFL.aO xlto we isis ordaUL at sbot.poj iietj mili aidrEk isi to to M4JIT WiI5it ua11 501 ooJ.ciis wt to toda isie
--Jvon isvsis aiw is id is awd to pi altos run Sr iAdid
-- is to to ao aidpisu toPQ ALJO is is aI ajisis a411 im.re vie ilr ladocmaai.d Wis is vito islqa latoriaiaai lialvi vie isisru toisw itola lbs isis msaa to 1.a
---.--d miss
toisid i7 to is toWs to toIa 4. to aaJ suis vois or idis sid mlii is7L twd run
isisliaw orp im isto. Uriskv vii ad vuis. Tie ou Vtodrtm mao is .-- ad mar isa
-_Wi is or toe ._ is DS ULis aid 57 to st aid Naeis 3uvie to re4 is
aid is vi ist is aidIa istoM ii iiidçsis 1av7u vie isa rutaid is rut mumbo id vii l4
___
aid makU Is is aid is id iru M.o aid CeJrun r.an star.I as ia1 isis sir cmhaie aid
as is is va
FU1436R
tpp 0173
bieaag i.i ftVcg 1wem that ca
ikrpulad ii alM
Ora1 at Ood.psytag
Joke would
somg
et1 from 4ke puhSicgiand pbly hail
little latarom Ia kemigra
cu r01mme now he
fore S..at
At the campaign
had equal measures 01
alcei and fiasco Intel
ilgeace lad stupidity
uerioinea and
alrty
Naturally the INS
wanted to center atLant
00 the felgilter aid 01 the
IN FI final report the
agency said it rounded tap
mon than UCO aliesai
depcrted percent 01
tbce apprehended aad
made mar than Job
r01uie.Ls It also painted
out te were long lime
01 Americana applying far
Johe at Curtain raided Job
Site
Juet as naturally ttai
wants to forget the
bitter controversy the
complaints ai rights
vIOlatIôai tflajtek 01
appiata far mom 01 the
jobs and the bootllity it
created the ranlU of
Mezican.Amerjcaai ccm
munity loadera
Vii there why some
new jobs opened for
Am.flcaij hecaus of the
raid. But getwvalIy the
raldedempioyetlrported
ther was little any
iatent in the untlled or
s.miskill.d jobs that
were vacated by the
raid
Scm even esitlaig
aftxisly Or the return of
the aMino so that od.c
Uou cs return to aOrmaJ
Many 01 the e1wployi
extolled the vIrtues 01
undocumented workel
Over American wonton
noting they are hard
worker punctual and
nililag to do the metial or
manual Iabm that mom
noisy deun
ft Mould be the gool 01
Project Jobs to monitor
the raided job sits for at
Janet year an4 deter
mists if Americana are
wolht.g the vacated
Jobs
ONCE AND for all
America are enUtted to
find out whether alleiw are
really lskittg johe away
from them or whether
AInI1ICxtw nave to Coitie
to accept the tact that
ails are integral to maI
hh... 4.-f ..Ih....l1
accoinodated
Eaplo has little hope
that the JS will sorvy
the Iobsite and report the
finding year from now
Barring an economic
catastrophe INS know
and well that the
aMino sWreciaim mom it
not all 11w jobs
Former INS cvmmLa
Sioiw LeOI Castitloike
pointed oit that the ra
eth poorly timed
It really hurt iii in
Latin ASTIIIICI he uid
The raida were ivu
front page coverage
raised conOiderabli
animouty in Mexico the
chief LS ally South of the
Rio Grand River
Thai coupled ltPt he
LS
oupport of Brittan In
the Faitland Lilande dl
puce has IOWCed
prestig and will tter the
sttl.Latno Image that
President Reagan is
developing in the aoiathern
hemisphere
4D RATl not to
mTItboit the antiLatino
intag that Reagan ii
developing in tills country
The ra alainated mt
01 the country Hispatuc
are Lhetaijj
tumbri of Chicanos TIO
Mexican oet-a
an ia fliflIl
Tiwy douak her he
canoe the Mexican ase
real pride in Metio
thetr culture and her
Language pride ha
gratii C1ticai
identify rore ilti
AITisaT traditime ITSi
110 ftta.macre the Soania
language
Moreo.er
cans are mm icr mu
amtaIioia and IT ge.wr
ally oui.ori Ctiuo
Vim ISv 501
tbe....generai 4mrictn
Hiapatuc leaders Il
ta that he
iupnt rong Id
rester rime boi II
nic$Uy and pouticaJly
They also realIze tiat
masy of
ed ale to may
All 11w wailIng
aid lautru frtm
American acladiag
some Chicaaoa
iIterigfjhe fact tat
isamue
owut ueed the rtj
tuna 01
4WII w.e
Wmt5 Sila list 0-
asasg ii3
and terhasca x-wn led
Asha is ilmillIng
do
I1S raids show unresolved dilemmaThe 1watln aid ProJect Job but the undocumented workerstShEp.dO Service is revurheradme front that aid replac them Vithiid fleal NPOft 00 campalga round up Amsoicuwaimpioyedare
being felt om only in
Waahl.gtoa aad Ike
___
southweatr halted
Slime feat lalgrnadonafty
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____
City
-HLTD-policy Jetsillegais
draw hoimingubsidies
1ttt tiisIItUStWflitHT
Py LOI ANCE 1rI old provet Man who said it
camet he doao ma1d not Interrupt man who Ii doingitaidMo me pei ig.f with one hand
.uheilu1wmeadmi UI.soaaAs cd XaJu In paying up the bill to pick illegaia
ama hebing hen oe at In Vtomam and cart bsck home and so the other bandIUP Be V.1 Dspii lag to pauvide them with standard place to live
____________ while ddso waited In Price soldsed Urhea D.
_____
-- -- Galcn boiming clg aba P4tpdcvtt to
are able to sw bot.ng In cUh the ale U.S clso or Ings rdeota It they
l4iwme sad other Belt ddso while Aaern ctd are lthet they are astud to prcv$.ie documen
mao 111 IC or 7uszgi he tol. of leL rcy
sousa the federal government will not veCa
of daohip dana or app l_l .1 sad I1 AN AsoA MV P1TT is
with American cidaeao sold Caud
Thit ch flilideral aa pulsy lvee%cw uUagAuthort flve director
ay revemi U.S artment of Hotadag and Urban ew had some illeple living to projects would re
Development ective lutted during the Christ Port to the peeper oæcldia
adinUsuahso that ferbade public borofug aut1dse Bet Lazed. Pun San Antonio and La Angeles
base verityisi it .ppli.r loriederalpgLbdi bmndngau1ty director sold that at IitDs last
dba were legal reddents
HUD ciclale In Hom theicy to remeve question on tOw applicauon tot
too said they have re If the head of the household was
celved Complaints iboot legal U.S resident despit the objectiorn of esectxtlve
the Houston Houding Au direetor Homer Smith
battys attempts to black Ida not think It right to live In pjb hotos
tar it privilege Smith said thInk any
omemable person should realize that its govern
efforts to verify legal meat Ldy and should he provided to residenta
Ida alL think iLJq pare onerous to aboutlepoint yon dot ddmaoblp staliw than to ado an applicant they are
reqidre them to submit wortng or are receiving welfare Smith said
documentation said But some Hlr-ar.c leader said the ne..v policy
Fuente three Tonic-open door to Invasion of tiw privicy of
tar of lOlATfnrso hhiAirk sid w1d be tusli Impomtble
program We IuL sal tOenforce
applicanta if they axe fltoeey aherd and adinlae sold Joittmy Mats
citizen or iegal redident deputy stats director of the Lasgue of Lnited Latin
We axe limited to that American is burden that will Impose
IRJDs policy on vet lot of hardobip and emherrauinent on the Hispanic
Ilcatica baa awa- aldciem from the Gesoral Ac- cornmimlD.
counting Olnce the Investigative arm of Coogr We already are experiencIng many problemsinuf authority dIrecto and from erivate dUng the number of discrimination complaints coming
citizens who believe subeldies ghould be llnifld to into out emc MatS SIG
citizens ivador Canchola executive director for the El
lngreso tonded-ihe-ertoc when It pasaed Pun Hosdong Authority said be doe riot expect the
the 981 federal budget which stipulated that wi- __ policy to cause slgnlant eha.nges hlegat aliens
dies be rnltod to cectaill clime of allem who po will eanitnist to live inibmdlzed housing beCaUse
vided tAilfl that they were legal residents they will om forged documents he said
Thi flew hdmlhfstielbon to moving ruif --
only me uwu-bIw A..S -S gso haada. ICVi.I1VE._WdE too more
ald Rogelio Ssntot deputy supervisor for bosndng- heportani ifin-todetMa servy aLCan
management In HUDs Houston office As they say chola said We cannot do CiS U.S Immigration
It pinyr welt hr Pearto and Nali5ilUdOn Services work for them
Hotdong oIBcials should not expect much enforce
LTT YOU-CANIOT-PtCT IOl1iG odicials meat staxe from L4S because the services cur
to ve as lmmratlon agents Santon said He on rent policy prohibits document checks at projects
has ti reooaom ew nies will get go public sold Vlacent Henderson asoltant district director
play but they wont solve thing tor Houston office
________
w_rules_wq puof ewUer_this Baddes he said With the number of people
-oThTbVeraI Rgfetr HUD wIn accept pub base we aie ean awtuuy mm just tgomg wjnh
tic rrnt on the ts we4Ucy change tiadl June sites
but probably VU not- adopt new egelatious all Anrasaso sttuex k. execrmetrector of the
early fail.
Laredo Hoidong Authority asked Is this going to be
Several hoidong authority director in rena and asoolar loIn for bosading authorities checking viola
California said the proposed policy change is long tICIT of Immigration 1w would Imagine there are
overdue An informal survey of asea housing autl butt Ulepia UvOtg In projects here
itiel ahowed interpretatlont or nuux lfkk-. Ap .vwnIve director of the San Anto
directive has varied widely aid Housing Authority said he also is concerb
In Corpus Christi housing authority officials the policy change foresee some lawsuits
Ignored HIJDs objection to their policy of adoing for People
win soy bodo biwn and have
documentatIon of legal residency said executive
to prove cldzenahlp whereas the blond blue-eyed guy
director Ruth Mary Price donest have to do thingFC145
1_._
App I177
-
4
it 4-$ec1on Houston Chronicle
1egal aliens on we
favoring tighterc/amps on irnrnigralion cbDY WIESSLER
cept sucj as legaJit0 for perhaps mihionofuleg
Chloacle Washiagtoa
aliens being Considered by Con
up that favo tight clamps on cation that on its face his of materl but jus
It
seems to be FAIRs stand
sIIck.Iooig publi1inmigraon has published report disputing earlier anoUr slim doCut to be added to the side of the
reseath that indicated Wegal aliens are not drain on
Enrique Valeneja
social programs such as welfare tion
specialist for the dexican
erican Legal fense
The report was irntnethately criticized by Hispanic and ucation Fundadvocates who argue that most aliens here ilie The FAIR
report does nat include
orj.naj research
are boon to rather than drain on theeconomy but is
survey ofrecent
studlis which Conner said have
should be allowed to stay here legally not
received enough attenUon
Federt for American Immigration Reform FAIR id newer studies show for
eran.lple that al
tich goes by the acronym FAIR Is
trying to dispel the most 35 percent of group of illegal aliens in California
ention wisdom garner mostly from studies in received
unempjont benefits that
percent of ifle
daily to middle I97O that illegal aliens pay taxes gal minjcajj injVew York City received weifijie that
make little use of public services
18 percent of undocwnp women in Lo Angeles
idea is myth that could lead to
hemorrhage received welfare and that 46 percent to 51 percent of all
-cuIsocial welfare System unless illegal Immigration unemployment urance
applicaUons by aliens in 1li-
9bstantially Stopped said the report by Roger nois were from illegal aliensexec1tive director of FAIR who has back Like most of the earlier studies those cited by FAIR
as an environmental lawyer
are generajjy analyses restricted to certa types of
iiJodzngsof
report dovetail with FArRs advocacy illegal aliens in one program in one state or county
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HOUSTON POLICE DEPARTMENT OFFENSE REPORT SUPPLEMENT incident No2l4582
OFFENSF CAPITAL MURDER POLICE OFFICER LOCATlONk9OO Wa1eL
COMPLAINANTS 1-n- ____________________________DATE OF OFFENSE
DATE SUPPLEMENT MADF 9-1-8
Sirs Firearms Case No
495-82
Examinations were completed on this data 91-82
by the Firearms Section of the Identification Division of the
following Received from
.9mm Browning HiPower semiautomatic
pistolseriaiI245PZB7l2B From Scene by C.E Anderson FirearmS 714-82
.45 caliber Dettonics combat master
semiautomatic ptstolseriallCRl6l2G From Scene by C.E Anderson Firearms 714-82
fired cartridge cases ECC1 thr Prom Scene by C.E AndersonFirearms 714-82
fired cartridge case ECC9 From Front Seat of Vehicle 714-82
fired jacketed lead bullets EBl3 From Scene by C.E Anderson Firearms 714-82
These examinations revealed seven fired cartridge cases 5CC-i thr6 59 were fired in the above
described 9ivsi Browning semiautomatic pistol W8 FAI4BB82 and two2 fired cartridge cases
ECC-78 were fired in the above described .45 caliber Detonics semiautomatic piatolW9
FAI4SB82 The three fired jacketed lead bullets ESi thr contain insufficient definite
and consistent individual cIaracteriatics to effect an identification However the three f.r
jacketed iced bullets were not fired in the above described .45 caliber Detonica semi-automatic
pistol
FooOZOO
App 0183
71182
TRIGGER PUW Single Actlon Double Mtlon
COND1ONOFE\IDENCF WeaDon Good Cartridae cases Good Bullets Fair
The aforementioned evidence will be
Retained In Firearms SectionXX Returned to Weapons
FAI4BB82
Firearms Examiner Anderson 820483 EtHP No Firearms Exi.miner Ernp No
Firearms Section Firearms Section
Identification Division Identification Division
9MM HULL WHILE OFFICER TREPAGNIER WAS BEING TREATED THIS DET NOTICED
Lk4IiII IAYTNI 1PPfl hAl FWAY RVTwfl Ysir rrry
HEAD OF THE DEAD CONPL THIS HULL WAS IN THE PATH ALONG SIDE THE HOUSE FROM
THE FRONT TO REAR THE HULL WAS ABOUT PACES OUT FROM THE NORTHEAST CORNER
OF_1lOI13L.._JLCAucF OF Thc HAVY TRAFTC TN THTS A1L..14j3._JLjAs
RECOVERED BY ANDERSON FIREARMS TO PREVENT IT FROM BEING LOST IN THE
REMOVAL OF THE OFFICER BY NFD
LOCATION OF DEAD COMPL IN RELATION OT THE OFFICER THE DEAD COMPL AS HE LAY
WITH HIS HEAD TO THE NORTH TOWARD ICOMPLS HEAD TO OFFICERS FEET WHERE THE
WQUNDLD_O.ELLC.L.w55flG IRFATED IS AIjjANcE O_AP.PJ.OX
RID HORSE TRAILER AT PEAR OF HOUSE WHERE 2ND SUSP AND WEAPON FOUND THIS TWO
lORLJ.RAILil Tc fOATffl TN Thr IPPROI rrflf_.fl JA50 TTI4 THF
HITCH PORTION OR FRONT OF TRAILER TO THE SOUTHEAST AND THE REAR TO THE
NORTHWEST THE TRAILER IS GOLD OR LIGHT BROWN COLOR THE TRAILER APPEARS
TOJIA.yE BEE L.111llNGZRE FOR SOME TTMF IT iLSO..Ap.p.EA.REIJ3.OME.O.NE.jj
HAVE BEEN SLEEPING IN THIS AT ONE TIME OR ANOTHER THE RIGHT REAR OF THE
TRAILER IS APPROX 39 SOUTH OF THE FENCE AND APPROX 2/2 FROM WHERE
OFf EpJrPAII1Trp RrrrTyrn wT TDFATMIIJT AT YWF crrr
$11 .S DETONICS AUTOMATIC LOADED WITH H.P RDS IN CLIP AND ROUND NOSE ROUNDTNABLP.APPED UP TN RED PANDANA THE ALQVL...WLALON RE11VFD TO RE
CARRIED BY RICARDO ALDAPE GUERRA WAS FOUND UNDERNEATH THE HORSE TRAILER
MENTIONED ABOVE AND MATTER OF INCHES FROM WHERE GUERRA WAS CAPTURED AS
STATED PREVIOUSLY THE TRAILER WAS APPROX 39N FROM TF FENCE AND THE PISTOL
WAS UNDER THE RIGHT REAR OF THIS TRAILf APPROX 22 AS MEASURED FROM THE
REAP_OF II4..JJILER IT SHOULD NOTED REEN
PLACED HERE IN DELIBERATE MANNER AND NOT IN HURRIED ATTEMPT TO THROW
IT UNDER THE TRAILER
$12 9MM HULL FOUND IN DETATCHED GARAGE WHILE CONDUCTING SEARCH OF THE
DETATCHED GARAGE ONE ADDITIONAL 9MM HULL WAS FOUND IN THE EXTREME NORTHWEST
CRNEPjj.jIj$ARAI APRPO FROM THE NB114fIDRJJFR OF Twr HOUSF
BULLET STRIKES IN HOUSE AT 915 RUSK FOUND DURING DAYLIGHT SEARCHI
$13 ONE BULLET STRICK WAS FOUND IN THE BRICK SIDE OF THE HOUSE AT 91S RUSK AND
TO THE EAST OF THE SHOOTING SCENE THIS STRIKE WAS FOUND TO BE FROM THE
GROQA.N NORTH OF THE SOUTHWcT rORNFP OF THE wnucr
I1 ONE BULLET HOLE IN WINDOW IBOARDED UP ON THIS SAME SIDE OF THE HOUSE AT
PIjT FDON 6ROLINfl AND A.T NORTH OF TIlE SOUTHWEST tnRNFR OF 7W Hn1cr
THIS BULLET CONTINUED THRU 1st BOARDED UP WINDOW AND INTO THE HOUSE IN AN1Ip_IK AND YNQII fur Rh YNO TNcTnr iL.wr 1Y_t1T 7W RrhTON OF TuF
WINDOW CASE THEN UP TO HIT THE CEILING AND THEN GLANCE DOWN TO HIT THE
ouo
S. s.SSSt ..s.sSS....p.... 5..SS
INCIDENT NO O2o676$2 CURRENT INFORMATION REPORT PAGE 2.010
OFFICERS 357 HAD BEEN FIRED SIX TIMES WHEN CHECKED BY ANDERSON PISTOL WAS
NEXT TO OFFICER THE OFFICER WAS LAYING APPROX 36 FROM THE REAR OFH9S TPATIIR wWFPE THE 17 SLJSP AWfl THE fWTONTtS Sc_..AIJTO WERE FOUND
pp 0184
NO0004
OFFENSE DEAD MAN ISHOOTINGI
STREET LOCATION INFORMATION
.JIUHBER 9i2 NAMERUSK TYPE
DATE OF OFFENSE071382 DATE OF
COMPLISI LASTWEDO FIRST MIDDLELAST FTDT MTflflIF.
RECOVERED STOLEN VEHICLES INFORMATIONNONE
EMPI02A776 SHIFTI bTv/STLTyflOMTCIflEOFFICER2JL WILTMOH ENPlO32iO2 SHIFT3
SUPPLEMENT NARPtTIVE
SUPPLEMENT DATED 7/i/a2
MORGUE INVESTIGATION
OET KENT AND WALTMON WHILE IN THE HOMICIDE OFFICE RECEIVED THE ASSIGNMENT TOASSTST DET VW WEST AT Twr StEJF OF THE OFFTD cHon T1r At 4411 Dicc Tr1nFwyNUMBER 42667682 DETS RECEIVED THIS ASSIGNMENT FROM LT WAGNER AT 23O HOURSAND DETS ARRIVED AT THE SCENE AT 2350 HOURS
UPON ARRIVAL DET OBSERVED THE DEAC SUSP LAYING ON THE EAST SIDE OF THE RESIDENCEAT 4911 RUSK THE SUSP $480 BEEN SHOT BY POLICE OFFICERS DUIN6 SHOOT OUT AFTERTHE SUSP HAS SHOT AND KTLtFO THE CFFTEFP Tii Tpj i42Igcg itn I4aDRTcl Ar ciinrAND WOUNDED OFFICER LR TREPAGNER IN INCIDENT 842667382
flZ1LRjjThD TO GO TO THE MORGuE AND CHART THE W0JPiOS .iF THE DEAn OcFrrAND THE DEAD SUSP M.E.I BRIGHT HAD THE DEAD SUSP TRANSPORTED TO THE MORGUE
STATING THAT HE WOULD TAKE AN INVENTORY OF THE SUSPS PROPERTY THERE RATHER THANAT THE SCENE
DETS DROVE TO THE MORGUE AND THERE WHILE CHARTING THE DEAD SUsPS WOUNDS DETS
.JEC.OMERLD.Q.f.LLCEAS HARRIS SERVICE RtQJJpj THE SUSPS LL$L3AJxT TO $415STOMACH THE RECOVERED PISTOL WAS COLT PYTHON .357 REVOLVER BLUE STEEL
SER 121267E THE PISTOL WAS FULLY LOADED WITH LIVE ROUNDS OF WI SUPER SILVER
_TP ROUNOc OF .Tc7 AMMO OFIt 151 prrrvrDrr lEATHER PTAIJCIIT IWcTflF WAIST
BAND HOLSTER FROM THE SUSPS WAIST BAkD NEXT TO HIS STOMACH DETS ALSORECOVERED MILITARY WEB MAGAZINE POUCH IDOUBLEI ON THE SUSPS BELT WHICH HAD ONE
..EJJLLY OADLfljjHj POWER MIGA2INE TN YT THJA2I.LJAn fl LTVES RDUNDS Or
AMMO IN IT 14SPEER 9MM LU6AR 36NW 9MM LUGARI DET WALTMON TOOK POLAROID
PHOTOS OF THE RECOVERED EVIDENCE IS LISTED AND OET KENT RETAINED THE PROPERTY
...AO TAGGED YT TtL THE DOt ICE PROPERTy ROOI uno Twic or-r_Nsr Twr a.pciOCT KENT ALSO RECOVERED BLACK MENS WALLET FROM THE SUSPS LEFT FRONT PANTSPOCKET IN THIS WALLET OCT KENT FOUND DRIVERS LICENSE WITH THE SUSPS PHOTODN
.IL _.LDL sJ01D3 781 T.liLf ONy jF WAS iN JOSfp _.j14FPl
WITH DOG 8/26/53 OCT NONTERO CHECKED ON THIS NAME AND LEARNED THAT THIS
PERSON WAS COMPL IN AN AGGRAVATED ROBBERY INC 837977582 UPON EXAMINING THE
.DLYE.R_SLICENSE OFT KENT FOUND THAT THE DEAD SucP wAD PLkEED IllS PHOTO OfJ_jHF
OOO7O
ipp 0185
j_s
INCIDENT NO 042667682 CURRENT INFORMATION REPORT PAGE 2.023
_$S
.ss
/f C.- rz
-c
-ueuori
__________
OFFICERS SUPPLEMENTAL FIELD NOTES
INCIDENT NO
OFFENSE j/11 LOCATION Jciy/e
COMPLAINANT5..4e.L -vc DATE OFOFFEN$E2
DATE SUPPLEMENT MADE 3-
SHORT FORM SUPPLEMEI4T INFORMATION
TACTED COMPLAINANT CONTACTED WITNESSS LISTED UNABLE TO CONTACT COMPLAJNA.NTNO AODrnONAL INFORMATION NO ADDITIONAL INFORMATION AND/OR WITNESS/S LISTED
DATE TIME DATE TIME
DATE TIME
RECOVERED STOLEN VEHICLE YEAR
_______
MAKE MODEL
__________ UC YR STATE NO
___________
CONDITION OF VEHICLE DAMAGED WRECKED SUED AMOUNT OF DAMAGE $___________
STRIPPED UST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE SELOW
RECOVERY LOCATION
____________________ DIST_________________________ SEAT___________________
VEH RELEASED TO
__________________TOWED TO
__________________
IV
EMP
_________
SHIFT
________ DIVISION STATiON
EMP
_________
SHIFT DIVISION STATION
000703
PROGRESS OF INVESTIGATION ADDITIONAL INFORMATION ETC
______________________________________
lVg Di7c y- /3-
-/3 7Z eI-zr rs7 .-
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__________j3 rvccge pc -2 /-
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L44 99R I7 .ife -/ 1/5 Ti.v vc
AP7 ci- iQ c-% 5/Wi- 7c5
SUPPLEMENT COMPLETE CONTINUED
OFFICER
________________________
__ _ __ __ _ __
OFFICER
________________________
__ _ __ __________
CALLERS NAME
__________________________
PHONE
_______________________
pp 11186
PPOGPESSOFINVESlIGATIONADDITIONALINFORMATIONETC
LBtOddj
71b2P7
SUPPI.EMENTCOMPLETECONTINUED
FOOO7O
REPORTING OEP.TTY BADGE STATUS cMc on DATE TIME
h1S OPEN CLOSED SUSPENDED
101482
SECOND DEPUTY siDGE SUPERVISOR S.S NO
SUPPLEMENT REPORT
HAP1S UNTY CONSTABLES DEPARTMENT
PRECW4CT
No S2OO675
I..
NAME OF DEFENDANTS Lw Fit UddliWM R.tQU 7162
COMPLAINANT Lt FirSt Middis t.OCATIOd OF OFFENSE DATE
stri8L 05 1U4 101.3S2
OFFENSE CHARGE OR INCIDENT ON ORIGINAL REPORT CORRECT OFFENSE OR INCIDENT CLASSIF ICATION
CHANGED TO
10-U-U at 80 Aj14 r4rtta dspsty I. L1T9 Of fleer
La 248th District Ort to beatify on rr aee At 31u30 A.L -U42
vi thesasa Li above ease isd.psndsatly intiftad sp.ctator La rt ron as St
that rebbad ms W2 at aipxiaats1j 3s40 PL
With... Ld.ntifisd tM riapset to both ffLeari ptLng 1sp sdris.d District
Attori.ys office i.diabely
Th DLsiot Attorn.y than put tM viti.s.ss on stand and snMr oath Both vithasssa
point.d cet uap.ct 1i eourtron as. St bs i.. --
port.ing daçty filed charges threeçh V.A. latika sad zrsat for f.ndant ia
iasu.d iz 171th District urt cause $316178 for Iqgmvsbed sry But set at
820000.00 -5
Bspsct plao.4 Harris CtyL1
uap.ct vaa rsid hi rights at 11i52 A.L 10-3382 is spanish attorn.y and vith.ssM
by B.P.D officer 1. Narise
Both vith.s..u vhi3s on vito.s stand alec ind.ntif Lad the fsndant Gueia io is
on trial for Capital Murder St LP.D Offiosr Harris as onset the bandits wbo robbsd
Rabsi Gms 18448 rizyksndah .78.12
-V... ii V.
$r
_...
App ol8B
-4
LI
.1Ii
72379
ooorr4
App 0189
___
____
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d9/
1azy- .ct_ ec4Cf4Y4-
Z.Jo
/// WJQ
..-----.-
--
.---.-
F0007o7
4pp 0190
I1OVEpED STOLEN VEHICLE YEAR
_______
MAKE MODEL
_.__ LIC YR STATE NO
_____CONOflONOFVEHICLE DAMAGED WRECKED BURNED AMOUNTOFDAMAGE$STRIPPED LIST ITEMS STRIPPED AND THEIR VALUE AT START OF NARRATIVE BELOW
RECOVERY LOCATION
____________________ DIST
BEAT..._
VEW RELEASED TO
____________________TOWED TO
____________________ BY
--
_f.- ...-
OOOYo8
PROGRESS OF INVESTIGAoN ADDITIONAL INFORMATION ETC
d7g
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921
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ppy iTe-72 Tx /4c-.%f//5/
4/1/3
SUPPLEMENT COMPLETE CONTINuED
OFFICER
OFFICER
_______________________
CALLERS NAME
_____________________________
PHONE
__________________________
EMPs
__________ SHIFT
_________ DIVISION STATION
_______________
EMP SHIFT DIVISION STATION
_______________
FORM RECC007
R.sd
.Jjn 27 198
0191
57 /922- d4 ALJ1
a4l
ouo7Z
pp 0192
///3//3 isl
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///
OOZ
App 0193
7/14/82 600 p.m
Ward Good evening friends tragedy has str.ick the
ranks of the Houston Police Dpartment againLast night wild shootout took the life of one
officer left another critically injured with gunshot wounds to the chest and abdomen A.ninnocent passerby was also shot and criticallyinjured One of the Suspects was shot andkilled The other is now behind bars It was
tragedy that had an innocent beginning as Sylvan
Rodriguez reports
Rodriguez Respondthg to routine traffic complaint Officer
Harris ordered the two Hispanic suspects
out of their car One obeyed placing his hands
on the patrol unit in the search position The
other began moving away and then pulled 9mm
pistol hitting Officer Harris three times in the
face The officers canine partner could onlybark from inside motorist Jose Armijo was
returning home with his two children when the two
suspects ran from the scene of the shooting The
suspect with the 9mm pistol shot into the car
Armijo slumped over the wheel with gun shot
through his head His three-year old daughter
Lupita and nine-year old son Jose Junior could
only watch
App 0194
F0014G3
Jose
Armijo Jr He took out his gun and shot the police and then
he took the police gun away and he started
shooting inaudible and then they shot myfather Inaudible my sister but he shot my
father
Rodriguez As paramedics worked in vain to save Officer
Harris life 50 officers aided by th helicopter
searched for the susp9cts In all the confusion
Jose Armijo remained bleeding in his car for 45
minutes Originally investigators thought he had
shot Officer Harris Then within the hour shots
rang out again just block and half awayTher at the 4900 block of Rusk the two hiding
suspects surprised polics hitting Officer
Trepagnier three times in the chest and stomach
Male
Polics Officer Shots were fired Th of fic.r was hit several
times The officer returned irs along with
numerous other officers and the suspect was DOA
on the scene
Rodriguez The second suspect was found hiding behind the
trailer 45 caliber pistol was found beneath
that trailer The 29year old Officer
Harris is survived by his wife and two small
children He had keen with the Houston police
force since 1976 the last three years assigned
to the Canine Corps Tuesday night had been his
first night out with new dog named Texas The
not he left his Sergeant said Nsergeant
everything is going smooth for the first day
Sylvan Rodriguez Eyewitness News
Ward Officer Trepagnier now listed in critical
condition at Hermann Hospital The motorist Jose
Armijo is also in critical condition at Ben Taub
Funeral services for Officer Harris have been set
for 1030 Friday morning at the Forest Park
Funeral Home in the 6900 block of Lawndale
App 19s
FG014G3
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s.em to mumble or talk too fast Do youhavs
dlflicultyiaflderetendlnq In nolyplaceeThen your hearing may have sllppd ouv of
focus You mayUe candidate for the marvel
ous Electronic Ear Mold For Information caRDavld Dean 52223O8-eenlngs-7744253-
wrfte CustomAids of Houston.3818 So Shepherd HOto rexas 77098 Please include
.yphone number Home Welts to.100 miles
sfrport TrtTQ
e1öuEIbyii LL--anes
anotIieT253T
17sfWE4up
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leUtiui iftNh
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____
.- v_ ji_ e.g
______
______
_____________ -iU4fl Os
__ bs rusdmd
Osur_srr yin .ads eucdss sits
IS Burdur5T is si Prst sttsI sss
is inpsy uM
Au_a
____
this vs vi
at svinp si at
Jssiluy 1bu et dkictin si Tspki.t
rsiurrid iiisp vedi uE Mel rvi
I-rig
flU aJsrtk si Jib vi
mad aid tym
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mad 1yy
Sris
ma iatsLI..da- iJp
-i maps
M55 ai Al Tviisssiat sat
Pnsl tdkI rWssd to at17 bits Me____
nt.. tsmlcstlo agis sd raid atss runt wore Wsd.md aid rod.d
saUdaat
tteJ its at.Ta Smart flai oSes si
aid H.tsaOS Sints
___
----..-
.-
WARDROBE
SPRING SALE
op
TH
Cam
FOOlGIS Sp
App 0203
r0 iJfUUIttWp
snares 1112
JlL 1L
at 4-.arsId hey misslug
___
ensetsacIta
Detectives said James Corrigan
was diicored u.hli mother vs
diagonal
Lynn Ashby/page ZC
By JIM SIMMON
Pest R.psrter_
JSOLE
Project Jobs the teleral1over1n1entfl1Ueh.pubiiT-
cisad roundup of megal allees came to close In
Houston Friday afternoon with the arrest of the last cl
1.112 andocumetted wucke netted here in five-day
sweep
Agents of the Immigration and Nturallzatlon Serv
Ice who made the arrests in Houston and eight other
ge-citlsa.-prouaed-theoceratlon succe
BUT THE MASS AERTS have aroused thi ire of
VALilY EILINGFAU
CA COLOR TV
.Vinter Easy Installa
ward airflow Fancy
Blades Reversible
ss this buy now
FRk REMOTE CONTROL TV 98
tzaom rising unemployment and blame Mexican sadoo
ala whoaccountad for most of Those
lack of oppc
-- rred
agentsi
ton Friday said they
whire arrest weret
hire iUep.lallev..
Pràject Jobs so named because It was
btvlneeses thatemploy large numbers .1
jobs that DJS officials said might
by U.S citizens marked the first time the fliS DayIilIes gorgeous
--has Informed employment agencies of
iob.vacancip
for the sun 6potS495
created by the large-scale arrests of lli.galallses
Vincent Henderson INS director of investigations
in Houston said those arrested Friday .Inluded 71 Maid of Orleans
workers at East West Pipe Threaders Inc. 7431 iel
don Read the largesslnglehaul of the clay Jasmine evergreen
In normal month thcHouston.INS office arrests withintensely fragrant bi
between and 500 Illegal al1Ims in its 30-county 1k
trictHenderson said 6ot S5.751S4.31
OF THE NUMB ARRTED in Houston 982
were Mexicans-and the-rest -were -mostIy-ElSalvado.--
-Chrysanthemums
rasu along with smattering of other
nationtIesHeiderson said Florist variety perfect for
__HendersondismLssed-critIclam-that-the-OPeratiOn
-Mothers Day giving
involved selective enforcement against Mexican
aliens r.g it was to be expected that most of those
were Mexican since the vast majority of the
is population tn.Houston Is Mexican
-y mIdafternoon Friday the Texas Employment Calafms..jcrcob
nmlssion had referred 52Job.eekersjajusinesse$
......t lost workers in the raids-but only three of the
talIVefilI-6porS5.7
refetrala had been hired said Lavonns- Thomas as
sistant manager of the TECs main Houston office
Thomas said however that some of the businesses
Shade Trees
.inciu
contacted by the TEC reported they had received CypressPurple Plum and
numerous applications from wilk-in joh hunters who
-flearnedof-the -openings-4hEough the heavy- media
ifl 10 pots S-i 7.50-S 27.50
Ij
attention the INS raids have received
Cash and carry whlLe..supç
raR1rrux-mosrtr inc open- i4 gpodihróugh May
ings referred to the TEC ranged from $4 là $450 an
hour MQstot the joho lnvotvedmanuaLlabor.she
ja1d -- iAtflHsàn acknowledged-thAt the majority dfar- ...
rested aliens were being paidbetwcen $4 and an LÆndvu eshour butsaid only six or seven were making less than
os ty inter$3 -an hourwhichis 10 centsbelow_the_minlmUm
Wage North-f
r-He-ttiiWSSes hit in ihe.ProJect-.Job-ratOs
_..ivi\
were selected because the INS -has arrested workers .oo Slsact
at those job sites in the past with some of the comap-
nies yefiding up to 150 illegal aliens year.to
the INS.
App 0204
____________________________________
_________________________________
-3-
J.
IINGS -HR
SSETTE RECORDER
.riic start stop tim-
controls7RenlOte
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now-see4 late --
6-HR VIDEO TAPE
...
UTHWEST HOUSTON AREA OEALERStV91mimdedeStJ.
eiPi1255SWFrwy 47548eschnu1 Fjm TV
933-8888 665-0885 7999 Fondren
RedTag
784M010
.ueU Dawson TV Apgliaoces -Uzuck
nct 6409i4illCrOft 872$ Westpark
--
OA5.7Ofl Q74 t7_
FOU161
dies be limited to certalit domes of wou
vided documexiation that theywure legal ridente
The Umthlstrsdon is isoving swiftly so that
only the tie-bIue American gut ag
sold Rogelte Siam deputy -v for hoiadag
masagemeat HUDs-Hosotos omee As they U7
-- ltplayla-Psarla
WFTOU CANNOT PRC IOCNO amIals
to meve so Isorniratton agunte Santes said No me
play bet they wont solve thing
The prupood nov rules were publiabed metier this
month to the Ledersi Registir HUD will accept pub
tic comment on the propceed policy change until June
but probably will sot adopt sow rvgvladono until
earlyfa
Sr.erj housing authority directors In Twa sad
Callfooida said the proposed policy change Ii long
overdue An Ioforinai ourvey of are hotadng author
ities showed InterpretatIon of HUDs verification
directive baa varied widely
Ta Corpus Chrlstl housing authority officials
Ignored HUDs objection to their policy of aIog for
documentation of legal residency said executive
director Ruth Mary Price
is old tIie Mu who sold it
wiot be doe idnot ma who is doing
ltssold
We thought It war rlr1
the texpss is P.1W to up
sad cart them b.ch home sad the oth pay
lag to provide them with emrd ice to lie
while valid Ii Price esId
Galveston housing omcak ate
certily they isv U.S cithono or Wal r.ti- they
are not eltisen they art said to provide dxumen
tattonoIsgilreacy
A1 474 AICAN MT .a D1TUT
with American cittesno mid nd IL Dolto Jr.
Galveston Hosadna Aijtlty ejftve
knew had some Uvt to projects ld1D
portthemtothe 4k
Bet Lar Peso San Antoelo sad Les Angeles
houelng authority .ctors sold that at IWO tadot
once they so lxgur sob questloce about cIsohlp
states
HUD ML4 ordered the Lss Angeles Homing Au
thortty1iiio b.appocatlos
luholdy aobtag head of bosmeheld was
legal U.S raddent d$t the objections of
director Homer Ith
di not thI it right to live to pk bem By BI BOLTON
lag It tea privilege Smith tidob PmiRopsrt.r
person thoeld realise that Its gomrw
meat suholdy sad obmid be provided to residents of
this couniry th
do not thlob ft is say more ooce to sob about
cithesaip stem then to sob an lithey as
wortlng or are receiving welfare Smith sold
Bet some Hlspc leaders sold the sew policy
would opea the door to tension of the privacy of
to.4u.Amerlcass sad would be vktsafly tmpbI
tO IflfOFte
is very ahewd and asinine aid Joy Mats
deputy stem director of the Lisgee of Usited Latin
American Othens It isa tor that will Impem
lot of harip sad embsiTamueat so the HWside
____
We airesdy are experiencing maay prolisms boa
I1flg the crtm1sodon comp coming
ww
opeetor elf you and
opeatothem.theydpFM OUR PrECTIVZ wrv gut morV front door
Important dingo to do than worry Can When questioned sorr
chute soldWe -w.ot--do-U U3.-Imulgrsttoneostomers said they oni
and Na doe$ervices Work lx them the 1O
Homing tale should not expect meck saiarce customers vehicle had
msot sistane from ThIS became the rvleVs cur- for minutes
rent policy prohibits document chodm at projects woman said she
erector car at Memorial City
for The Houston oBee cause she needed topici
he aid With the number ofpsoplel after having had foot mi
have we are spread awfully thin nt going to job was waiting to pick up
.-
the Eumwly Plaza
Abraham Rothigues Jr. seacutive director of the Another woman said
Laredo Homing Authority said Is-this gothtobe an DstaY Plaza store
another role for homing authorities cbsddag viola ai vii afraid sOfYleon
dons of Immigration laws would igm there elsewhere in the parking
lots of Uvteg Iaprojsàts.hurs Others claimed they
ApIo Thres executive director of the San Ant.. dgtv which rime Flr
nb Housing Authority sold he ale is concerned about
the policy change foresee some lawitit. MALL MANAGERS
People will soy look brown and therefore have fighters are not sympat
to prove cltbesaip whereas the blond btoe.eed guy They lsue pote warn1n
doesot have to do thIag. italfic citations and hay
.irawhousing-subsidies.
while citizens must wait
pLGIrnacLr4cR
___
1Mve auaim. And would he Iad4guant
aIkeii 1f_ aWd was an Amera cR1-
afta hivIng ntot at in Vlem
lanha U.S Dspszhomi of liming
____
and Urban D.v.Iii mp.rt.sr
alieno are to draw bosi In ____
Ifiunton and other Sin Belt cities while American citi
sea wait me or years for similar 5d be-
canoe the federal government will not aisw verifica
floe of dt-4 emt.m of iifeditiJ and
local homingontclals soy
Sit proposed change In federal housing policy
may reveres U.S Department of Housing and Urban
Development directive Issued during the Cirter ______
adnistratlos that forbade public housing authoritiesfroverifying if applicants for federal homing subS-
dlsswere legal residents
74130 fIe4I sold the verIScatios procedure could
_____
______
IWO omclate ii Rotor-
ton said they -have se
ceteed complaint about _____ _____
the Hotorton Housing Au
thOritys attempts to block
ubsidIsofcrl aliens
and at-dared RItA to stop-
efforts to verify legal
residency
Us battng the
whole point is yes cannot
require them to submit
documeatatloa said
____ Fusates direr
tar of XMAs rest aidy
_____program We just ask
appants If they are
citisen or legal resident
We are limited to that LW
HUD policy on Vr1 ___
flcatlon baa drawn criticism from the General Ac
Office the Investigative arm of Congrees
from housing authority directors and from prtvate
motorists Igno
It susie them the fac
___ The lane slgne ins
_____
mese are being
centers throughout
County
The lawbreaking mot
________
tbeest the safety of
tomers authorities say
One can hardly utim
white fire lane alga in
thg centers yet th
Houston-area centers
the law at every center
SlOPPING CENTEI
citsees fire deps.rtment officiaL
SSISdOF his hod delivery vehicle driven
Congre responded to the eritichon when It pemed _.Paso Homing Authority sold he does not esped the_the 2D-oot wide fire lane
-1JS-iedsr hn1toP lsted that subsi- nov policy to ue galficÜlchsngft 1slienePecpiearetoodar
-II mUst face unto cii
FOOIB3G
App 0205
nation
lIcOinpap kin tIiit Iern
Tft-ln oppuor
3cratj alia nominated former
30ev Anaya their gvber
1aLIe form.t state Sen John
ibincan race The Oemocrauc
ng cannot succeed himielt
ta Sen Mike OCornor won
nanorIorgaveroor and will
alset the Republican liactam
alto vu unopposed In the
2.101 of 2.120 precInct re
ut-old dean of the Senate
to Sen Otarle Pttunan had
io statler owner Color John
eid. wIth 2.011 precIncts In
me GOP worker and an suer
fir ahead of Highway Corn
aror di recest convert
.0.531 tes
--L- -- lfl.aLL..
.1 Messier P../W 1gm
s-aeve order allows CAT sºan evi
in the Oefeom lawyer se beoss ar ersflir The meom asd LiNhyofiod- nuar7resse- er- HiacIl
-1-oom ovs.-e the-sea esssfta lA-stintlar Ii time fated le asoy peu aid iediins aot .a... XlIeys behavlYard agTII1.w-er_ .iocj ie llsyso. 15diol La which pp Uodet or alaby AseEtair Ns.e mp.__pltai lacla emodonal ezpr sod fo vie- U.S Attirwy Refer A4w beuover iied ie
...ytold tim to Put unpuj Prmeevtir sb4e uas-j
withie asromlli
peared to hive lain than one other rioleisgiot medlagral omaaiiy sees that uw wnjbu Utat CAT leans eiuclvdd the surface Adsima forther pepmed WiovjA u7 the of ida lTv the haag MML Wofabiri
_yi .__rea and that the toi or tue iealnt aariace The doctor Mid CAfinano iss bª 1h4a7 e01 PIIof called paId were very omliwnt Is In minds .ve
head think It
very un1 che aid 1173 1174 tad there no proves liii -- CAT ass dsui ta omputa As mahltlio Ms said thethttin._ hM.d4 vi To ngrapby sdvwd X.ra aicuw tamost people of hi sic m.snjtIubev
_____ _____
Questionable benefits cited L.
GAO Social SuritysavmgiWASHNC4 I- I-3d 1201 mllon ia ha
cufle.p omp IbM t0æ7Mv 1101 millIon thatgh 1010 by deopplog cade-diom Social 2eetwi oner heidi she serw esrvtvsn sod recover thee v.a.Social Secwlty provider that scro estimatid
___tiler led other qusodoosids ca Csct
.-psaof 01 psrdbenefits the General Accomng OhMs Mid fully bared provinier under wild moot fors the previjTbeday worker become eligible vu enacted as InequityThe GAO report urged Congrer se op bscUtop protectbse hi prureeri cr.fty
_- I-the currently flared provbsloo vtlch deys but Is no losger seeded. the
rtITeItly lW but do set qSapplies to len than 0.5 percent of wont Worker can become cwr.utly bmewod beostiti GAO aid .Iwho dl each year The previjiol allows by being employed In covered for Ms
survivor benefits for their ehlhaer sad Ibsee quarter dining the ISquaner period erag ails ho wonted the Usibed ha dscaring for them In death Is II 3.100 out of the inillion quaa
seIt serve ovine wake circum- winkeri VII died beesme eilglbls under the iw aa UP- he JiMs vMsstances apparently ne.er eovd by Ctm prevision ier hegreO nld lieui as To become hilly lasred worker mom
-sse4In aovMsor___ alle ovine sell-employed pee ha one quarter of coverage Itr each yr I-
dipper and others 01 osly brief wont death or age 00 The maidmum rpeulred hi
pie filing
rwouacdiveIpen-eet
bee after 1010 or age 12 sad before the
1001 vu 30 quarter Sicwlty lass ofthe Ia- tst redIpi The report Mid
iETJ.TIT
P1
-i--i-
ftVvftat$4
am.rawlIh
nswfIa
rtirnwsteind heI.gshà
App 0206 F001647
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BaæoidoreiU1itefl8aI._
MVCICO rriAP The goverwnbnt IOu at the Mexican Embassy In
partially lifted .a ban on foreign currency
Waihlngton confirmed that Silva erzog
soles Vndky but kept.all dollar accounts in_ went
two days last wee
____
banks frosen the counll7 considered
aeek cjiid to give any details
ing outside help to .cope
with its economic fliT approvJ
of government austerity
cmli plan to
revive the economy wOuld enable
Mexico to obtain bali.out loans from Interns
awaywith ROvemnmeitt sebal
ohilgatines .d provIly and 11iueuied
by itiffistftudms for eoIlect abroad
isiun nsnts when
ft derid all fOreign
on Friday to try stop by people
ana
1mm to buy dollars faring the peso will sink
even mote
iii
lion in dollar accouts In Mexican banks
where people had bse depositing their say
au u-w eaiavy n- 5C IfrNd rvic wjlu
nM be kitlfled
1K heI5 iiui .sut
hi wW jAILaIlvvi wifv
Mx1cos leading newapaper El Excelsior
An anso ement Sunday night by the and Other prtxtpdexPOFu cut heavily
in
.Jd Ties... Secretary Jason Slivi llerasg
PP PflII MW1 Mev t.r.Lrl rt quntry thp
quietly traveled to Wasblngton on priday for
abroad 41 they deposit an equivalent amount worlds tbird.lartest
oil exporter with
twa days of talks with international Mane-
of dollars in cash with Mexican bank Mcxl- major part of the exports going to
the United
omeiais can
banks can also honor dollar ctwchi and States
taryFwi1
freeae no dollar tradIng at Mexican ba -dea
sep taken to prevent panicky Mexicans of the devaluation made
themselves known
from changing their pesos Into mote stable Sector
omeeti arrested 3.506 mepI aliens
US currency The freeso was partially lifted doting the Iru eIght days of the month Four
ii laytAIsflkstOoflOr4OreIda75mbethad4W%Pedb0$O
-currency drafts and checkfptesettted forol UITy Rkbach1I of the Border Pa
i_I ..1A ik ... ....t .i t..vn. lIt tIr 2VP
cOUJWflPffiaJhePm
For_a..couple of monthe there we were
totally on the devaluation But Alan Ellason These stepo may betrightenlng some averagth
between 50 and 100 arrests
io
Lion certainly is actor get out and eone over here In search of days
of thin month weve been averaging 140
The peso Jropped4rom-about-45-OlhE dpi- ..a.L slJ Jaf
Yields bills pluü met
-i
__
WASHINGTON UP keasurY bill__lags certifIcate The intee Jhejic_blL0rU.aVetage.of the last.four week dis
yields dropped sharply bfil a..rtlncati4vlUabfl ttIaAiilI%atLOfl 01 u.t-riaS
centage point at the governments
auction $7500 or mote will be 8.616 percent at soy- The actual return to the invet on
the
lag ft a.h itoh rceR
point less $366 petcent at commercial for six-month bill 16.so ptTh1t
The government sold $5.5 billion of three-
banks effective Tuesday
-month bills-at--an- average dlscoun of 8.616-..__The rate had been iO.0$5 percent
for thrifts The actal T-bfll yields to the investor
percent down from
1O pet-cent last week and 8.775 pirceÆt far banks. be higher after adding the benefit
of
The government also sold $5.5 billion The latest tour-weeIt average
six-month their exemption from state
and local taxes
worth of r-bills at an average dis T.billratoa olus noint Is 10.502 tier- llieceWni rate for the 234 year small
.ai.wn
of 9.1 percent down trom 1U.54Q the highest rate
banksind thrift lciutitu-
iw mInimum ucpndI
jjpstweek .Jjon5 mai tQp1-10flth
The latest rates were uie wwci three- markeiOtitICatfl lucd in uenominanoi
ISV .--.I 1w _I UBflJ.3 flV
Iba 5vvuwui Jl115 fub1b atncc
ilpmonth money markst ceitlficate Is a- year
certificates on which individuals can
11atest three.mantiiSCOUnt rate Isquarter poitt more
than whichever IS mgner .1.4 Iv $L i. u.afrvv
lr1tetrot
d.air.--L.al.-u.-iI 1.4.I t-4ay t-L-tl..-l-U.t ...-.-t.LI
If s-IIp SilagisiMias asIU
4rop
EL PASO AP their hr was low as 50 to the doLlar last ci
buying power Virtually cut in half by the lowing the governments Aug
devaksatloa of the peso are streaming Into announcement
that it could no longer napport
Twa sad New Mexlco-Ia-searO nork the peso in International trading- -___
--4W arrrau in aiiu .w
Mexico juped dramatically immediately
altar the Mexican governments latest dOval-
nation of the peso Border Patrol officials
in
_A n
-ieeajchaawge. crg
Raiat ta f. .a.av
In the El Paso sector wmclt encompasses
WTexes and southern New Mexico at
rd1flepi afar in August are up
26 percent over the same jierlod last year
12 iIII. .i..ha a-t.U
-4
Rlnrk-naintR briht --
--
FOO1632
App 0209
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5
IN THE COURT OF CRIMINAL APPEALS
STATE OF TEXAS
AT AUSTIN
GINA BENCH
Certified Court Reporter
248th District Court
Harris County Texas
LED
KATHERINE TYRA
District Clerk
EX PARTE IN THE DISTRICT COURT OF
HARRIS COUNTY
RICARDO ALDAPE GUERRA 248TH DISTRICT COURT
POST-CONVICTION WRIT
Capital Murder
10
11
12
13
14
15
16
17
18
19
20
22
23
24
25
OCT 1992
q3o
By
Al
App 021
CAUSE NO 359805A
THE STATE OF TEXAS IN THE 248TH DISTRICT COURT
VS HARRIS COUNTY
EXPARTE
RICARDO ALDAPE GUERRA AUGUST TERM A.D
APPEARANCES
FOR THE STATE OF TEXAS Ms Kari Sckerl
Assistant District Attorney
Houston Texas
11 FOR THE DEFENDANT Mr Scott Atlas
And
12 Mr Richard Morris
VINSON ELKINS
13 2500 First City Tower
1001 Fannin
14 Houston Texas 77002
And
15 Mr Stanley Schneider
11 Greenway Plaza
16 Suite 311
Houston Texas
17
18
BE IT REMEMBERED that upon this 21st day of
19
Septebe192the above entitled and numbered cause came
20
._t- jtJG
for cn-Diue-ry before Woody Densen JUDGE of
21 iIi
the 248th District Court of Harris County Texas and the
22
State appearing by counsel and the Defense appearing by
23
counsel announced ready to proceed and all preliminaries
24
having been disposed of the following proceedings were
25
had viz
App 0213
SEPTEMBER 21 1992
THE COURT For the record
this is Ex Parte Ricardo Aldape Guerra And Mr
Scott Atlas you filed motion You may proceed
MR ATLAS Your Honor we
filed motion to withdraw the order setting the
execution date pending the consideration and
disposition of the Application for Writ of Habeas
10 Corpus proceeding Were asking that the September
2.1 24th 1992 execution date be withdrawn completely
12 pending final disposition of our Amended Application
13 for Writ of Habeas Corpus both final disposition by
14 this Court and if necessary by the Federal Courts
15 And let me give the Court the reasons for
16 our request First as the Court will recall .t the
17 hearing last July when we asked for discovery the
18 Court asked for some indication of whether there was
19 any reason to believe that the trial in this case
20 had been conducted unfairly or in other words
21 conversely if in fact Mr Aldape Guerra had
22 received fair trial
23 Last week late Wednesday night we filed
24 296-page Amended Application for Writ of Habeas
25 Corpus had offered Ms Sckerl or sent portions
App 02V
to her earlier but it took awhile and by the time
offered them she said might as well go file the
final version which did
In that application we raised literally
dozens of meritorious claims with numerous fact
issues and were requesting an evidentiary hearing
to resolve those fact issues
Let me give the Court some of the
allegations in the application We are alleging
10 police intimidation and manipulation of witnesses
11 Were alleging concealment of exculpatory evidence
12 by both the police and the prosecutors Were
13 alleging literally think seventeen or eighteen
14 other examples of police or prosecutorial
15 misconduct improper appeals to ethnic prejudice on
16 the part of the jury insufficient evidence at trial
17 as well as new evidence some of it was suppressed
18 by the State showing that Mr Carrasco Flores not
19 Mr Aldape Guerra was in fact the person who shot
20 the police officer Officer Harris
21 We have raised several claims that are
22 literally identical to the claims in Herrera and
23 the Graham case In addition we have raised
24 claim that is literally identical to claim in
25 which Judge Hittner in Federal District Court here
App 0215
in the Southern District ruled granting an
Application for Writ of Habeas Corpus just few
weeks ago and we maintain at the minimum that the
Court ought to have the execution date delayed until
final disposition of those cases Because if those
cases are resolved in our favor particularly if
Judge Hittners opinion is affirmed on appeal then
we think it will follow virtually automatically
that we are entitled to issuance of Writ of Habeas
10 Corpus
11 Secondly if the Court agrees to our
12 request for an evidentiary hearing Your Honor both
13 sides are going to need time to prepare for the
14 hearing and to let the court reporter prepare and
15 file transcript and to submit briefs and proposed
16 findings of fact The Court will then have to sift
17 through the hearing and pleadings to come to its
18 conclusion and we think to continually change the
19 trial date will be waste of the Courts time
20 Thirdly we think withdrawal of the date
21 will eliminate the artificial crisis atmosphere that
22 would inevitably surround the Court would eliminate
23 both turmoil for this Court considering future
24 appeal prison officials for both sides and my
25 client Mr Aldape Guerra and his family This
p216
would allow the attorneys to predict their time
dmands between deadlines Frankly Your Honor we
think fairness requires the attorneys in this first
Post-Conviction Writ of Habeas Corpus Application to
have period of time after court denies relief to
prepare pleadings and brief for the next appeal and
this can be done in one of two ways either by
having period of time after relief is denied
before new execution date will be set until the
10 next application is filed or to wait until the
11 State Court denies relief if that should happen
12 and then schedule the execution date more than 30
13 days in advance so theres enough time for the
14 attorney to file the next appeal Continuing to
15 have an execution date even one delayed four
16 months as Ms Sckerl will apparently request would
17 impose significant administrative burdens on the
18 Texas Department of Criminal Justice
19 As Im sure the Court knows before the
20 Court set an execution date Mr Aldape Guerra was
21 participant in the Death Row Work Capable Program
22 which was set up to comply with the Ruiz Estelle
23 case Its the only one in the United States that
24 lets inmates who qualify after being reviewed by
25 classification board work in the garment factory at
App 0217
the Ellis Unit pending an execution date no
mitter how far distance the prisoner is ineligible
to participate in that Work Capable Program The
program has been tremendous success Your Honor
It is the most efficient garment factory in the
entire TDC system They sold literally more than
million and quarter dollars worth of goods to
other state agencies in the most recent years which
found the statistics in 87 Im sure that number
10 has gone up since Prisoners who qualify for this
Work Capable Program receive limited privileges
12 they dont have any wire mesh on their bars they
13 are not handcuffed they are not stripsearched when
14 leaving their cells they are fed from tables they
15 are allowed to at in their cells or in the day
16 room they can shower in the general prison
17 population bath house and theyre permitted out of
18 their cells 14 hours day on weekdays and 10 hours
19 day on weekends In other words except for
20 contact visits which they are denied theyre
21 treated like general inmate population
22 They have found that inmates who qualify
23 and participate in this program are better behaved
24 and have better attitudes than those in segregation
25 They have fewer disciplinary violations less
App 0218
stress They need fewer guards per prisoner because
these people frankly have something to lose if
they misbehave And they need fewer cells because
they dont need to have one cell for prisoners as
you do when someone has an execution date
In summary the presence of an execution
date even one four months or six months or year
off deprives Mr Aldape Guerra of few small
privileges arid frankly complicates the States
10 offer to comply with the Ruiz ruling on prison-cell
11 requirements and imposes an unnecessary and
12 artificial urgency on this court proceedings and
13 frankly doesnt contribute to the fair and full
14 presentation of Mr Aldape Guerras argument in this
15 case The Court can still control the filing-
16 docketing hear.r.g matters without an impending
17 execution date If the Court denies relief this
18 Court can promptly schedule his execution 30 days
ii
19 away So the case will not lie dormant but the
20 attorneys will still have an opportunity to file
21 Federal Habeas Corpus Petition
22 So in summary we would argue both to
23 relieve the administrative burden to this Court to
-1 24 the attorneys to the prison system and to allow
25 Mr Aldape Guerra the few privileges that someone on
App 0219
death row is entitled to We would ask that the
eiecution date be completely withdrawn
THE COURT Does the State want
to respond
MS SCKERL Yes Your Honor
While certainly understand the viewpoint
of habeas counsel the fact is that Mr Guerra had
valid sentence that was found by the jury in 1982
convicting him of capital murder and sentencing him
10 to death
11 The Court of Criminal Appeals has already
12 affirmed that conviction it was statutorily denied
13 by the Supreme Court therefore we have valid
14 conviction Theres absolutely no reason that we
15 cannot go forward with an execution date
16 Because of the filing of the Amended Writ
17 of HabEas Corpus which they actually filed late
18 Wednesday and received it on the 17th of
19 September there is no possible way that we the
20 State can respond to the allegations made prior to
21 the Thursday execution date and were requesting
22 that the execution date be modified for
23 approximately four months January 28th of 1993 and
24 that four-month time frame should give us enough
25 time to answer the allegations and to have any
App 0220
hearings that are necessary for consideration by the
Court of Criminal Appeals
THE COURT Ms Sckerl and Mr
Atlas you filed your writ back in May We had an
extensive hearing on your motion for discovery The
execution date was delayed for four months and
dont believe another four months is going to serve
justice in this case This case is ten years old
am denying your motion to withdraw the
10 order setting the execution date am going to
11 leave the execution date as it is at this time
12 MR ATLAS Your Honor let me
13 be clear While we would like the execution date
14 withdrawn we do not oppose the four months --
15 THE COURT understand what
16 both sides are do...ng but this case is being
17 litigated to death and if you want to take it to
18 another court youre welcome to do it but am
19 denying your motion to set aside the execution date
20 So you will be excused at this time
21
22
23
24
25
10
App 0221
THE STATE OF TEXAS
COUNT2 OF HARRIS
Gina Bench Certified Court
Reporter for the 248th District Court of Harris County
Texas do hereby certify that the foregoing pages of
typewritten material contain true and correct
transcript of all evidence adduced and admitted at the
POSTCONVICTION WRIT in the case shown in the caption
10 hereof that was present in open court and reported
11 said testiinonj in shorthand and that later transcribed
12 same into typewriting
13 IN TESTIMONY WHEREOF witness my official
14 signature on this the 3day of
________________
1992
GINA ENCH
17 Certified Court Reporter
248th District Court
18 Harris County Texas
19
Certification Number 221
20 Certification Expires 123192
Business Address 248th District Court
22 301 San Jacinto
Houston Texas 77002
22 Te1ehone Number 713 7557094
23
11
App 0222
-r crc_r.- r-
----
PTE RICARDO ALDAPE GUERRA Habeas Corpus Application
NO 24021-01 FromHARRIS County
OR ER
mis is post conviction application for writ of habeas corpus filed pursuant
to the
provisions of Article 11.07
V.A.C.C.P
On October 12 1982 Applicant was convicted of the offense of capital murder
After
the jury returned affirmative answers to
the special issues submitted
under Article 37.071
V.A.C.C.P punishment was assessed at death Applicants conviction was
affirmed on direct
appeal Guerra State
771 S.W.2d 453 Tex.Cr.App 1988 ccii den 492 U.S 925 109
S.Ct 3260 1989
In the instant cause applicant presents seventeen allegations in which he challenges
the
validity of his conviction and resulting sentence
The trial court did not hold hearing nor did
it enter findings of fact and conclusions of law See Article 11.07
V.A.C.C.P The
failure to take action within the statutory
time allowed for such is deemed to be finding that
no controverted previously unresolved facts material to
the legality of Applicants confinement
exist Article 11.07 2c supra The trial court recommended that relief be denied on
September21 1992
This Court has reviewed the application briefs and record
with respect to the allegations
made by applicant including both of the briefs
of amid curiae which were received and
considered by the Court The finding and recommendation
to deny made by the trial court is
fully supported by the record and upon
such basis the relief sought is denied
IT IS SO ORDERED THIS TEE 13TH DAY OF JANUARY 1993
PER CURIAM
EN BANC
DO NOT PUBLISH
Clinton and Maloney JJ dissent
Baird concurs in the result as to Allegations UI IV VII and VIII believing Applicant
failed
in his burden of proving allegaæons which entitle him to relief Exparte
Emiy 757 S.W.d
771 775 Tex.Cr.App 1988 and the verification by Applicants attorney
was not sufficient
parte Jackson 616 S.W.2d 625 Tex.Cr.App 1981 and
otherwise joins the Order
App 0243
FILED
XI TEE UNITED SAES DISTRICT COU
YOR TEE WESrzm DISTRICT OP TEXAS NOV
PASO DIVISION
w.VNERCerk
YEDEXCQ iRTfli3Z-XaCM1 By Deputy
T.zae D.parant of Coectiofl
Death Row Zat No 771
P8S-Ck473E
880961ROl
J3S A. Direator
Tzaa Depa.r.nt of CrI
Justice Institutional Division
CEDER
BEFORE ThIS COURT is p.tition.ri pplicatLcn for Writ of
Iabsav Corpus pursuant to 20 U.S.C 2254 in th aov.-caption.d
cause Petitioner timely filed written ob3.ctiona P.aspondant
timely filed written objections and P.titionen Responded After
consideration of the Petition and Report and R.ccandation of
Nagiatrate Judge Janet Rucech this Court La of ta opinion the
Jagistrata Judge Report and Recommendation should be ADOPTED and
the Petition for Writ of Rabeu Corpus should be aRANTZD
The s.gLatrate Judge limited her constitutional error
examination to the ineffectiv assistance of counsel at th guilt
and sentencing phases of Petitioner trial Pursuant to
Strthklandv.waahthqto 466 U.S 166 1li4 t.MistrateJUd
concluded Petitioners trial counsels perioirvs fell outsid the
wide range of reasonable professional Conduct and Petitioner was
prejudiced by counsel hortccmfngs There ii reasonahie
probability Petitioner would have received life sentence in
prison in lieu of the daath senteno he vecoiv.d for the murders
of Robert and Naomi Kaney on which occurred on December 1983
App 0224
The Report and Raco2m.ndetion and the pa.rtiei briefing ic
zteaiv Magistrate Judge Ru.sch painataicinqly addressed the
facts and extensively applied th law thus this Court dasms
unneceseazy an extensive rehash Cons.qu.zttly this Court will
nrilyaddres the parties objections in order to B%2pplsznent
the record
RKSPONDENT
1._ Pr.sttyfItion of Corrsctn
Respo dent obecV.a to the Xaqistrate Judge concluding the
State court failed to conduct full and fair avidentiary hearing
as required by Thwnserid Rain 372 U.S 293 963 UAJ fsdaral
vidantiary hearing is rsqu.ir.d unless the B3tata-court trier of
fact baa after full h.erin.g reliably found the relevant aotu
at 312-13 The Magistrate Judge correot3.y Conc.ud.d the
prsumption of correctness under 28 U.S.C 2254d was not
applicable
Respondent contends Petitioner failed to offer sufficient
reaBorig justifying the evi.dntia.ry hearing conducted by the
Mgistrate Judge capital POC.ed.thqe generally the 3upr.e
Court ha. dsa.nded that actf1-iding proosdurea aspire to
hQight.rd sta4rd of reliability lord Wainwright 477 U.S
399 411 1986
Section 2245d provides the presumption does not apply in
eight circue At least eu.r apply here as Petitioner
contends 28 u.s.c 2245d3 Generally
App 0225
To full and fair evidsntiaxy hearing ha occurred if
Nthe mat.rial facts were riot adequately developed the
8tata court hearing. Material fact are thou
facts crucial to fair rounded consideration of
petitioners slain Material fact have not been
adequately developed where the petitioner alleges
undeveloped evidence sufficient to call into question the
reliabili.ty of the SJtste courts detenination of
PetLtionero federal cla-
StrejYni% Ivnauçnh Si.2 Y.2d 950 958 5th Ci.r 1957 quoting
Townsend citations omitted
The Stat court ted to adequately devaloped the material
facts necessary at either the guilt or eent.ncing phase of
Petitionre trial As reault of the deficiencies the
Magistrate Judge correctly decided hearing was required to permit
the full development of material facts ncs..ary for Pstition.rs
f.daral claims Both aides were given full and fair opportunity
to develop tle facts As result of the h.aring an expansLv
record was developed whish provided fL basis for the Magistrate
7udqes decision
2-.- CounselsStrat.qy Reardina Alibi
Respondent ebect to the Magistrate Judge concluding
disinterested witriee5 was available at the time of trial Mario
Carreo who could have provided Petitioner an alibi for the day
the crimes in question were coitted At trial the only evidence
placing Petitioner at the scene of the crime was Pedro Tuevanoa
the alleged acoamplic who tastif Led pursuant to plea agreent
Ptitioner was charged with the assault on and robb.zy ran3c
Rolenber in California in September 1982 The State did not
App 0226
introduce evidence of th xolenbarg of fQfte Mowever P.titioners
counsel feared any alibi t.stimony would open the door to the
Kolenberg of en.. an extraneous offense for which Petitioner had
not been convicted
Respondent contsnda Petitioner counsel acted teas onably by
not taicing the rik of psning the doer to presentation of the
extraneous xolsnberg incident However the Magistrate Judge found
Petitioner1 counsel never rei.arohad whether the Kol..nberg crime
was sufficiently .itflr to the murder in question to be
introduced As the aqistrate Judge reasons cauneel research
OS Texas law would hay proved incorrect his assumption regarding
the edeissibility of the xolenberg offenses Ther.f ore the
Kaqistrat Judge concluded trial coimule failure to use Mr
Ci.rreozt an alibi witness was not reasonable strategic
deaiion and the failure connt.tut.d deficient perfcance
Texas lw .xtt which ofense counsel could have relied
for the proposition the Moleob.rg crime was not adniseibi at the
guilt phase Xn order for the extraneous offense to be admissible
for the purpose of proving identity the extraneous offense at
so similar to the ons at Lime ic as to be the iiqnature of
the Petitioner eodus oparaldi As the Icagistrate Judge
delineated the differences between the o3.enberg crime and the
crimes at bar fer outweigh the similarities thus precluding the
Xolsnborg crimes from being introduced to proy identity As
PititJ.oner Contends dentity was pt into Laue by the trial
App 0227
counsel The use of fl. Carrofl as an alibi witness would not have
increased the risk
Respondent further claints the danger of opening the doer to
the extraneous Ko2enborg of ens. existed as trial counsel could
not account for petitioners whereabouts on December 1983 the
possibl dat of th crimes which Petitioner was convict.d
Cuns.l investigation tended to plac Petitioner in the company
of xr Lu.vanos and counsel was unable to sufficiently confirm the
possibilityof an amed second person having coitted the crime
however Petitioner correctly points to Respondents attempt to
majce the introduction of the alibi contingent on th defense being
able to provide unnecessary information By te time Mr Carreon
could have been called as witness the Stat held th position
the crime occuzred on December 1983 Furthero Petitioners
sole defense at trial was ha did not coit the crime Mr
Carrsonr alibi testimony wap powerful .vid.nc in smpport of
Petitioners defense Under these cLrcstanoes couxis.1e failure
to call Kr Caxr.on fell outsid the range of professionally
cap.tnt assistance concluded by the Kagistrate Judge
Counsel failur to put on an alibi dsfena prejudiced Petitioner
and undaod the confidence of the outcome
Rebuttal of Jennifer Plor
Respondent objects to the Magistrate Judge finding that
Petitioners ti.2 counsel eawi unraaeoztably in failing to present
testLwny from either d.fsn iuv..tigator Cecil King or
App 0228
Petitioners dauqterB rebut Jennifer flcras teatimony
Jennjf.r and her moth.r Lucy Ploree wara surpri. witnea.a
announced by the State whoae taitinony th Uagiitrate Judge called
deva.tating Jennifer t.itified at trial ehe cay Petitioner in
the bathroon of hi trailer one at.rnoon with blood on hi hBnde
and ahirt The aftrnoon in qu..tion yea prior to Jennif.r etaying
at Petit iona.re house with hi daughters Lucy testified about the
.p.cific date J.nnifr law Petitioner and the qu..tionahility of
Jennifer a.nory
Trial counael never interviewed Petitioner daughters who
could have provided valuable testimony to refute the -tsitimony of
13.nnifer King could have provided valuab.b evidence casting
further douht en the t..stny of Jnnifsr and Lucy Floro aa the
Xagietrat Judçr concluded IqiThLng the witnea aes to refute the
devastating trial tea provided no atatagi.c advantage. The
3lagiatrate Judge corrctly concluded counr.la failur to talk to
Petitioner daughters and to us either th children or Mr ICing
to rospoud to this testimony conatituted ineffective aasiataitc of
couniel Piarther counaal failure to r.fute the devastating
testimony pr.judi.c.d Petitioner and undermined the confidence of
the outcom.
.Co sela ŁtiânRegdinç-Ptiniahment
The Ugtat .nc1udd P.ti.tionar counsel ahould
h.w..atigtd and vidsria fo f.iLy mab.r
r.garding...titionor..qod character traits ..pond.nt Objects
App 0229
and claims the additional t.stl.mony
gould have been duplicative
floVev.r petitioner counsel
failed to interview the family
mbera in order to nako proper detaiination Mditionafly
couni.la failure to praparO Janst Itactas Petitioner wile for
testimony at the sentencing stage of the trial
added to the
agietrate Judges finding of ineffMtivO assistance of
counsel
The Ragietrate Judge further detoin.d Petitioners counsel
abould have iiw.tigated and pr...nt.d evidence from .zpert
testimony regarding PetitieztsrI d.prLv.4 social backqioufld
and
Petitioner counsel failed tO uti4E records fr the California
Rehabilitation Center CRC tO dmrntrat Pstitionsrs good
behavior and attnpts to rehabilitate while in aiito4y Respondent
objecta and argues th failure by trial coinael to inveStigate or
present such evidence was reasonabl tactical decision
based on
counsels belief that any evidence about Petitioners drug use
would not be considered mitigating iLdenc. Petitioner correctly
reasons however Respondents argument rests on the assumption
that any possible n.gative reaction of jury to evidence of drug
abuse or violent chij.dbOod e16B counsel failur to
investigate TbeCRC recorda wr xadily availabl to trial
couniel but the evidence vr wtted to the jury because
counsel neGr .dLlcove i.t h.Tabeaa barLng Dr Cecil
Whiizg an .dqatLon psychologist prestfltOd itrilcing picture
of child who grow up facing serious disadvantages and
adversities yet becam loving son hu.bsnd and father
App 0230
-picture the jury received at the sentencing haj
very negative and truncated compared to the habeas hearing
which established more complete picture of Petitioner Tb
State case would naturally acorn xtr.ly strong at the
puniibrn.nt ph.. without Petitioner counsel introducing any
available mitigating vid.nca Contrary to Raspond.nt
Cont.ntiona Dr Whiting testimony u.s not of -4-nil value
because of the lack of any causal link betws.n the crime and
Pstjtjaer background The Kagiotrat Judge correctly concluded
Petiticn.r received ineffective ai.istance of counsel at the
aont.ncing phase of his trial Purtherore Petitioner was
prsjudic.d by hi trial counsel rspr.s.nt.ticR a1 the Sentencing
phase
PXPOWBR2
.YBTXONS
Petitioner make thra brief obectiori.i which this Court will
briefly address First the faqi.trate Judge correctly concluded
the trial counsel failure to reuost continuanc when the stat
announced it would call Jennifer Flares as witness WAS flOt
ioffectiv assistance Although counsel learned at late date
Jennifer would testify her being call.d was not an unexpected
occurrence and the eubstans of her testimony was not surprising
failur to request continuance did not constittte
deficient perfornc.
Second the Magistrate Judge correctly COflludad cQunel
failure to put Dr Walker child psychologist on the stand to
App 0231
testify about the cradibility Of childrens eyewitness testimony
did not constitute ineffective assistance Al the Magistrate Judge
correctly explains Dr Walkers testimony would have bean used to
impach the testimony of witnego bocausa such testimony was
Lnathniesibl in this case
Third Petitioner objects to the aqiatrata Judgei finding
it highly unlikely any El Paso court in 1984 would have authorized
the payment of $11599 the federal government paid Whiting for
his testimony at the hab.aa heaxing Petitioner concedes Texas law
provided for payment of only $500 for investigators and experts
The Magistrate Judge reached the reasonable and Correct conclusion
IT IS ORDERED the R.port and R.conmieadaion of Magistrate
Judge Janet aueech filed April 26 1991 in the above-captioned
cause is hereby APPROVED ND ADOPTED
SIGNED this day of Novsmb.r 1991
lET JUDGE
App 0232
3z88CVO473
RANDAlL TE COflJE ESO GS
LThIVMXTY OF OlJ.OA
COLLEGE 11w
300 wcT
b10RlN Oic 73019
________________________
App 0233
IN IHE TEXAS COURT OF CRIMINAL APPEALS
and
IN THE 248TH JUDICLAL DISTRICT OF HARRIS COUNTY TEXAS
EX PARTE RICARDO ALDAPE GUERRA
Case No
_______
Harris County
Cause No 359805-A
ORDER
On this day came on to be considered the Motion of Scott Atlas to be
substituted and appear as counsel for Ricardo Aldape Guerra in the above-styled and
numbered cause The Court having examined the foregoing motion and being of the
opinion that good cause has been shown finds the motion should be granted and that
the following Order should be entered
It is ORDERED that the motion of Scott Atlas to be substituted and appear as
counsel in the above-styled and numbered cause be and is hereby GRANTED
It is further ORDERED that the motion of Scott Atlas to prepare an Amended
Application for Writ of Habeas Corpus to replace the application currently on file Should
be and is hereby GRANTED
Signed and entered this
____
day of July 1992
PRESIDING JUDGE FOR THE
248TH DISTRICT COURT
cusriasubs.d
App 0234
IN THE TEXAS COURT OF CRIMINAL APPEALS
and
IN THE 248TH JUDICIAL DISTRICT OF HARRIS COUNTY TEXAS
EX PARTE RICARDO ALDAPE GUERRA Case No
_________Harris County
_______________________________
Cause No 359805-A
ORDER DENYING APPLICANTS PETITION FOR
WRIT OF HABEAS CORPUS
On this 21st day of September 1992 it is hereby
ORDERED that applicants petition for writ of habeas corpus
is DENIED It is further ORDERED that applicants motion
to withdraw the setting of applicants execution date and
the States request for modification of the execution
date to January 28 1993 are both hereby DENIED
EPSigned thi aay of September A.D 1992
\Th
HONORABL WOODTR DENSEN
JUDGE 248TH DISTRICT COURT
HARRIS COUNTY TEXAS
T..C1\DjN
DISTflICT
SEP 21______________
App 0235
Sc A22ALt Ar
Liç ICL
4/
IT \AkcQc
THE TOTALITY OF THE CIRCUMSTANCES SURROUNDING PETITIONERS TRIAL SO
SUBVERTED NORMAL TRIAL PROCESSES THAT IT DENIED HIS RIGHT TO DUE fr
PROCESS AND FAIR TRIAL k9
In his habeas corpus petition filed in this Court on May
44M ty
1992 at 62-64 petitioner cited 1991 decision of the U.S IL
Eleventh Circuit Court of Appeals Woods Duciger 923 F.2d 1454
1456 11th Cir 1991 to support his claim that various
circumstances surrounding his trial so subverted normal trial
processes that it denied him due process and his right to fair
trial Woods is merely logical permutation of Irvin Dowd 366
U.S 717 1961 the Supreme Courts leading statement about
criminal defendants inviolable right to fair trial one free
from prejudicial influences
While Irving specifically involved prejudical pre-trial press
publicity its rationale easily lent itself to the cumulative
totalityofthecircumstances approach taken by the Eleventh
Circuit in Woods Dugger Thus discussion of the totality of
factors that subverted petitioners trial is in order
Petitioners Controversial Status as an Illegal Alien
The first extraneous factor injected into petitioners trial
was his wellrecognized status as an illegal alien from Mexico
juxtaposed with the fact that the slain police officer was white
American Feelings of racism and xenophobia were underscored in the
minds of all those in the courtroom by the presence of large
contingent of Ku Klux Klans.man who marched outside dur
ing thistrial poss
formly described in the
ispani Mexic or as an illegal alien e.g Houston
Chronicle October/5 at p.1 Houston Post July 15 1982
at p.1 even of twelve of petitioners jurors were nonHispanic
During voir d1ifJxe ros ipted1y made known to jurof
etitioner was gal alit least one juror who was
ultimately seated let her true sentiments surface Although she
.t she would not allow pe ioner ien
statunterfere with her determ ation of guilt or innocence she
candidly admitted that it wo affect her view of the type of
person he is V.D 01 21 355253
Moreover during the time surrounding petitioners trial his
case stirred strong feelings in the Latino community both here and
abroad about ethnic injustice in the American criminal justice
system e.g UPI wire service November 1982 in reaction
to petitioners closely followed case Mexican inmates in Mexico
threatened to retaliate by killing all U.S nationals in Mexican
prisons The racial atmosphere surrounding petitioners case was
hardly amenable to fair trial Moore Dempsey 261 U.S 86
._ 1923 minority habeas petitioners trial was ta resence
of racist mob at ere The potential for racism to ent
rors deliberations in interracial homicides klJ
uW...i he Supreme cognizp.a.iI ia
476 US 28 33-37
V.D vol 86364 vol 1205 vol 2397
The Presence of Uniformed Police Officers at Petitoners Trial
and the Pre-trial Publicity Generated by the Killing of Police
Officer
Another extraneous prejudicial factor interjected into
petitioners trial just as in Woods Dugcfer was the regular
presence of throng of uniformed peace
oj.crs whttende
trial in an expression of solidarity for
j- irs in ijj-1 Although discussed in
petitioners prior Applicaion for Writ of Habeas Corpus at 62-64
Petitioner has since discovered very recent decision of this
Court Sterling Texas 1992 Tex.Crim.App LEXIS 103 April 22
1992 relevant to the issue
Sterling involved capital murder trial in which seven
uniformed deputies sat in the courtroom during the trial The
defendant claimed that the seven uniformed peace officers were an
armed camp which prejudiced his presumption of innocence and
right to fair trial In rejecting his claim this Court cited
Holbrook Flynn 475 U.S 560 1986 case precisely on point
This Court noted that the seven officers were present for the
purpose of providing security just like the four uniformed
officers in Holbrook and that their presence did not constitute
the type of inherent prejudice that denied the defendant due
process Since the Sterling defendant not show any
actual prejudice his claim was denied at 8_10.2
This Court also ed Carrasguillo State 742 S.W.2d 104
112 Tex.App 1987 another case in which defendant
unsuccessfully argue he presence of uniformed officers prejudcied
his right to fair rial in which the Court of Appeals required
showing of actual prejudice by the defendant
The present case is readily distinguishable from Holbrook
Sterling and Carrasguillo Furthermore as noted in petitioners
prior petition his case is considerably more in point with Woods
Dugger in which the Eleventh Circuit explicitly distinguished
Holbrook In series of cases following the Holbrook rationale3
courts have regularly held that defendants claims were untenable
in view of the legitimate security needs justifying the presence of
the uniformed peace officers
This security rationale was entirely lacking in petitioners
case as it was in Woods Dugger The fifteen or so policeman
.2egularly attended petitioners trial were off duty they were
merely spectators To aptly quote the court in Woods they were
there for one reason they hoped to show solidarity with the killed
correctional officer the instant case police officer
part it appears that they wanted to communicate message to the
-jury 923 F.2d at 1459 emphasis added There is no reasonable
interpretation of the Houston police officers presence at
petitioners trial except that they were intentionally or
otherwise evincing motive identical to the correctional
officers in Woods
The Woods court noted that message of the officers is
clear in light of the extensive ial publicit office
wanted convic 11 by the imposition of the death
penalty at 1460 ertainly the same ue in petitioners
See e.g State Lankford 747 P.2d 710 Idaho 1989 Hunt
State 540 A.2d 1125 JMd.App 1988 People Ainsworth 755
1017 Cal 19889 see State Franklin 327 S.E.2d 4491985
deputies guarding courtroom
wife of of the policeman shot although
ly during the mci She beamed when the death
nce was announced Im ye leased
as much or more than anywhere in the country5 the
Lth of police officer in the line of duty is considered the
gravest of public concerns Petitioner does not intend to diminish
this gravity in arguing that the general sentiment of outrage
tainted the fairness of his trial Rather he has strongly
maintained from the outset of his case that it was his compatriot
who killed Officer Harris Petitioner simply contends that his
cherished right to fair trial was tainted by
outrage which spilled over into the trial when theunifoed
officers sat in on the trial
The jury should be resumed to have been receptive the
officers message
.embers of the jury had followed the mur
Apparently this peace officer sery6d security function at
trial nevertheless the fact that oneof the guards was the wife
of policeman injured in the same see- in which the
purported kictim of petitioner was killed itself raises problem
of possibe prejudice if this fact was known by the judge or jury./
Petitioner has no way of knowing at this date whether this was in
fact the case but the fact that the officers wife served as
bailiff is strong evidence of the sense of peace officer solidarity
marshalled against petitier at his trial
As one example oIis sentiment the recently announced
Houston Police Officer Memorial which will cost approximately
$1000000 when completed is reported to be the largest of its
kind in the nation See Houston Chronicle May 12 1992 at A13
/October 15
imposed
at
One of se
Thursth
-..ci reporte
ioners death sentence was
ress.6n the interim between the officers death and
petitioners trial as well as during the trial the local press
wa ratedwTthstoriabout the death and about the
growing alarm at the number of police officers being killed inine
of duty.7 The day after officers Harris death flags throughout
the city were flown at half-staff on the order of the mayor
Houston Chronicle July 12 1982 at sec p.12 Moreover at
least one of the jurors stated that she
think death penalty should be used than it is
have had friends involved where her father was
policeman .so my feelings toward the death penalty are strong
think it should be used
V.D vol 1050 comments of Juror Monroe
Surely as in Woods the presence of shir%
during petitioners trial posed an unacceptable risk that the
jury would feel compelled to convict to vindicate the death of
fallen police officer whether or not there was reasonable doubt
in their minds about whether it was petitioner or his compatriot
SeeL/Vl 8ft65g-6O Juror Douthitt Vol.32 Juror
Woods heard of murder on radio and t.v ol 874 Juror
Kpllogg heard of murder on all the channel for several days
Vol 2143453 uror Petty Only Jurors Brennan Dl.3280
and Lee
-D-.tVol 1183 claimed that they ha not heard media
coverage of the case According to the voir dire transcript the
other jurors were apparently not questioned about the prettrial
publicity of petitioners case
See e.g Houston Chronicle July 14 1982 sec
July 15 1982 sec 10 July 16 1982 sec 10 July
17 1982 sec 10 October 1982 sec 11 Houston
os sec Oc er sec Co er
12 1982 sec UPI wire service October 12 1982 There
was also extensive radio arid television cover of the case
uor
Kelloggs comments during voir ire it did make coy ra in
all the channls for several da vo 832 juror
Woods commen uring voir ire ou radio and t.v coverage
with which he was familiar
who pulled the trigger Thus there is no need to show actual
prejudice when such inherent prejudice existed Woods 923
F.2d at 1457 Holbrook 475 U.S at 570 And inherent prejudice
exists when there is probability of deleterious effects in
trial process Woods 923 F.2d at 1457
The Prosecutions Use of Mannequins
In addition to the pretrial publicity the presence of the
uniformed officers and the supercharged racial atmosphere there
was yet another factor that is relevant under Woods Ducicrer
analysis Namely an unrelated factor that influenced the jury was
the presence of two vividly lifelike mannequins of petitioner and
his deceased compatriot As noted in petitioners prior petition
one of the jurors submittted an affidavit after trial noting that
the two manneqins affected me tremendously They were eer
mannequins which were positioned right at the jury during the
whole They made me nervous and they influenced my verdict
dont believe that Ricardo Guerra was the actual killer
believe the other man was
Petitioners Application for Writ of Habeas Corpus 63
The man ns were incredibly life-like -- mannequin
has oclock shadow and chest hair visible at the opening
of its shirt See Houston Post October 1982 at 14 weve
while life-like the dummies served caricaturize th defendant
dehumanizing him in front of his jury.8 In an interracial case
It sould no that the mannequins were entir
nnecessary to ser th function that they State claimed the
served For witness tification purposes the State could have
constitutionally requir etitioner to don the clothes he wore at
the scene and kept his be dhair length for the trial
such as petitioners this particular danger of prejudice was even
greater
There have been numerous cases in which criminal defendants
have at trial ght to exclude mannequins and other props under
the applicable rul of evidence In ostpftbse cases appeals
courts have affir ecrial ef-usal
evidence otherwise relevant on ground that its prejudicial
ve outweighed its robative va See generally Propriety in
Trial of Criminal Case of se of Skeleton or Model of Human
Body or Part 83 .R.2d 1097 including supplement
Admissibility in Ho cid Prosecution of Deceaseds Clothing
Worn at Time of Killing A.L.R.2d 903 including supplement
But see Peo le Fletcher 509 N.E.2d 625 Ill.App 1987
These cases raise
implicated the law of
evidence which is not issue Unlike those
cases petitioner is presen ly claiming that from an ex ante
perspective the trial udge erre in allowing öhe introduction
of the mannequins on ground tha they posed too great of risk
of undue prejudice Thus
SIvt
petitioneçia-i1aec rd1iW1o the tra itional abuseof-discre
-ffisis used in evide ce cases Rather petitione that
the use of the mannequins in fact tainted the jurys ability to
effect of the mannequins is anothe
United 218 U.S 245 1910 defendant may be
ed to don cloth trial United States Valenzuela 722
F.2d 1431 9th Cir defendant may be required to shave for
trial 419 F.2d 166 4th Cir 1969
fake ial Ivy
mL UI1UL LI1
analysis is not applicakm1 -s-
-r.1it
i1DtL LLtien there is an unacceptable risk that defendants
processes have been subverted ere is ther
4ielming evidence of guilt
of the U.S Supreme Court in
Irvin Dowd in which the important threshold issue for the Court
was whether the defendant was afforded fair trial not whether he
V.t.QL/b c1iitt
dterr.fCvej
under the Woods/v uuger analysis that si3ulgo into this
Courts calculu/for determining in the aggregate whether there was
inherent
an//or actual prejudice within the meaning of the
Sixth and urteenth Amendments as opposed to the rules of
evidence standarcILevjew in such case is novo since
is mixed questioi fact and constitutional
involved See t_Jhe unequivocal statement of Juror
Monroe is strong evidence of the unacceptable risk that the
mannequins posed with respect to the remaining jurors.9
.2
it
Yet11jke the defendants in Ducger and
case is one where there ciues ion or nis actual innocence The
States case against him was by no means overwhelming
discussion of petitioners Jackson Virginia claim in his
Application for Writ of Habeas Corpus 6467 and as reflected
in the admission of Juror Monroe Moreover common sense compels
the conclusion that the State sought death sentence for
petitioner because the only other party whose capital conviction
would have vindicated the fallen police officer was dead and thus
unavailable for trial and punishment.10 Thus in case where the
processes for proving defendants actual innocence has been
subverted the reasoning in Woods and Irvin is LQtjor.j.h1 But
for the cumulative effect of the pretrial publicity the
supercharged racial atmosphere the large numbers of Officerqrmki
Harris comadfesatarms--rur1 sitting on the sidelines and the
errie mannequins sta7inhe jury
_i..4.throughout
trial
it cannot be gainsaid that such prejudice may have tainted the
jurys decisions in either the guilt or punishment phases Under
the totalityof-cirmstances approach of Woods Dugger this
Court should grant petitioner new trial
10 This tactic apparently worked at least in the case of Juror
Monroe who implied in her affidavit that she was willing to find
petitioner guilty and sentence him to death because believed
that he had part in it somehow and thus deserved some
punishment for the death of policeman even if he was not the
triggerman See Petitioners Application for Writ of Habeas
Corpus7at 63 Note that it was also Juror Monroe who admitted
during voir dire that she had predisposition toward imposing the
death penalty where policemen were victims V.D vol 1050
She doubted the guilt of the petitioner but she was ne
IN THE TEXAS COURT OF CRIMINAL
Case No.______________
Harris County
Cause No 359805A
I.IIIAMENDED APPLICATION FOR WRIT OF HABEAS CORPUS
Petitioner RICARDO ALDAPE GUERRA incorporates all of these
claims in his original applicatioi..are not specificallyset
forth as amended below
AMENDED CLAIMS
Claim XIV of Mr Aldape Guerras original application for writ
of habeas corpus is amended by the following claim
and
IN THE 248TH JUDICIAL DISTRICT OF HARRIS COUNTY
EX PARTE RICARDO ALDAPE GUERRA
XIV
MR ALDAPE GUERRA WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH EIGHTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ANALOGOUS PROVISIONS OF THE TEXAS
CONSTITUTION
Mr Aldape Guerra hereby amends this claim by deleting
paragraph 291 and adding the following text and references to
attached exhibits1
Maria de la Luz Valero Elizondo Mr Aldape Guerras sixth
grade teacher at the C.P.A Francisco Sarabia primary school still
remembers him for his sweetness of character She describes him as
an outstanding young man who was always polite friendly
student simple but happy and playful that is likeable and nice
sports lover exhibited good behavior and good
development of his subjects See Appendix at
Likewise Mr Aldape Guerra is remembered by former high
school teachers at the Dr Gabino Barreda High School as model
student Teachers Arteniio Villagomez Lozando and Gamaliel Garza
Ramos found young Ricardo to be kind attentive and happy young
man who was good classmate and always very respectful of the
established disciplinary rules See Appendix 4A at
This characterization is echoed by others who taught
Ricardo at the Dr Gabino Barreda High School Former teachers
Attached to this Amended Application are translations of the
affidavits contained in Appendices and STbf the original
Application for Writ of Habeas Corpus as well as translations of
records procured from the Government of Mexico attesting to Mr
Aldape Guerras clean criminal record
Alicia Guadalupe Saldivar Saavedra and Enedina Gamez Lopez describe
him as wellmannered
ounan
who provided no disciplinary
problems and always LtUQ wit1 th8 e5ni.e the
rules Professor Lopez remembers Ricardo
perfectly...since he was different from the rest due to
the fact he was very attntive and respectful to his
teachers and
.7t very correct young man who
was never disrespectful to his instructors and always
observed the disciplinary rules imposed by the school
which at that time were very strict... always
behaved as an attentive hardworking student who even
if he did not have the highest grades he had regular
average grades
Appendix 4B at
The impression created by Mr Aldape Guerras teachers
that he is gentle and kind man who would not commit the violent
crime for which he has been convicted finds support in the
professional opinion of psychologist who evaluated him at
4i6 Lucia Villarreal Garza is psychologist who was
employed by the Dinamica S.A company to undertake psychological
evaluation of Mr Aldape Guerra Her evaluation was conducted in
order to determine if Mr Aldape Guerra possessed the requisite
good character and personality to work at Empaques de Carton Titan
the factory where his father worked She employed the Thurstone
personality test and concluded on the basis of her test results
that Mr Aldape Guerra
tends to behave in stable manner and as the capability
of making friends is ver passive man that
is with very low impulsivity th high emotional
Appendi2t2 iks WttQJJ434.44t47
jq ov be iote %r daMs arza recommended Mr Guerra for employment and in
pi% AvtI0
recent statement confirmed that
her4
analysis revealed nothing in
Mr Guerras character that would indicate capacity for violence
Appendix at Indeed there is nothing in Mr Aldapes
Guerras historyh11ould indicate that he is in any way violent
or dangerous
When he left high school Mr Aldape Guerra sought
employment at the Empanaques de Carton Titan carton factory Those
acquainted with him enthusiastically recommended him for
position Mr Rufino Gamez Barela -Manager of IBM Computers
echoed the impressions of Mr Aldape Guerras teachers
He is good and responsible young man very much into
sports He has always behaved well and believe that he
will continue to do so His father is very correct
person fully recommend the applicant Appendix at
Mr Andro Solis Carranco the owner of Relojes
Industriales also recommended Mr Aldape Guerra
The applicants family has left me with very good
impression they are very correct in everything with
good habits The applicant is good boy and have
never known him to have problem therefore recommend
him fully Appendix at
Mr Aldape Guerra was hired for the job He was
conscientious employee at Empaques de Carton Titan and never
exhibited any sort of combative or violent behavior His
supervisor Mr Reginaldo Montemayor Martinez describes him as
serious and responsible Mr Montemayor Martinez remembers that
Mr Aldape Guerra
was normal young man obedient hardworking who never
caused problems who was not absent from work who
got along well with co-workers Appendix at
For nearly twoand%1 years Mr Aldape Guerra worked
at the Elupaques de Carton Titan carton factory He eventually
decided to leave the factory in order to pursue other activities
Appendix at
ADDITIONAL CLAIMS
10 Mr Aldape Guerra amends his petition for writ of habeas
corpus by adding the following claims
XXIV
THE PROSECUTORS REMARKS DURING VOIR DIRE THAT THE JURY
COULD CONSIDER MR ALDAPE GUERRAS UNDOCUMENTED STATUS IN
EVALUATING HIS CHARACTER AT THE PUNISHMENT PHASE OF HIS
TRIAL DEPRIVED MR ALDAPE GUERRA OF HIS RIGHTS UNDER THE
FIFTH SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S
CONSTITUTION AND ANALOGOUS PROVISIONS OF THE TEXAS
CONSTITUTION
11 During voir dire prosecutors expressly instructed three
of the members of Mr Aldape Guerras jury that they could consider
Mr Aldape Guerras illegal status in evaluating his character
during the punishment phase of his trial Other jurors were
informed that Mr Aldape Guerra was an illegal alien2 and were
questioned as to whether his illegal status would affect their
Throughout voir dire prosecutors repeatedly emphasized Mr
Aldape Guerras status as an illegal alien See e.g S.F vol
at 864 65 S.F vol at 1205 S.F vol 15 at 2397 98 S.F
Vol 17 at 2603 04 S.F Vol 20 at 3253 54 S.F Vol 19 at
3489 S.F Vol 19 at 3552 53
deliberations at the guilt phase of his trial
12 Mr Aldape Guerras trial began with jury that had
been informed that his very presence in the country was
illegal Ex Parte Guzmon 730 S.W.2d 724 727 Tex Cr App
1987 Prosecutors encouraged jurors to consider his illegal
status as fundamental character flaw something that the jury
could consider an aggravating factor in determining whether Mr
Aldape Guerra deserved to live or die Juror Leah Brumley was
told that Mr Aldape Guerras status as an illegal alien was
information that the jury can consider in deciding what type of
person he is S.F Vol 17 at 2603-J4 Prosecutor Robert Moen
instructed juror Constance Whiteford that the fact that
person is in someone elses country unlawfully or has come into
country illegally could be evidence the jury could consider about
what type of person he is S.F Vol 19 at 3552j3 Finally
juror Tommy Ray Smith was informed that Mr Aldape Guerras status
might benefit in answering special issues S.F Vol
20 at 3254
13 In his summation at Mr Aldape Guerras punishment
hearing prosecutor Dick Bax once again encouraged jurors to
consider Aldape Guerras illegal status answers will
demonstrate what type of person Ricardo Aldape Guerra was while he
was in our community for less than two months after coming here
from Monterrey Mexico in May S.F Vol 27 at 165
emphasis added
14 Unequal treatment on the basis of race or alienage is
anathema to the principles on which the Fourteenth Amendment is
based In the area of criminal justice where racial
discrimination strikes at the fundamental values of our judicial
system and our society as whole Rose Mitchell 443 U.S 545
556 1979 the Supreme Court has consistently articulated
strong policy of combatting racial discrimination at
558 Prejudicial inflammatory comments pertaining to
defendants ancestry and undocumented status are no less
pernicious based upon ancestry are as odious
and suspect as those predicated on race in practical terms
appeals to either threathen the fairness of trial U.S Doe
903 F.2d 16 2122 D.C Cir 1990 Likewise the Court has
condemned discrimination on the basis of immigration status
Plyler Doe 457 U.S 202 1982
15 To signal to the jury that defendant is more deserving
of the death penalty because of his immigration status de ies the
undocumented person as basic humanity Undocumented persons
are entitled to the same fundamental constitutional rights of due
process and equal protection of the laws that are guaranteed to all
persons within the territorial jurisdiction of the United States
Yick Wo Hopkins 118 U.S 356 369 1886 Plyler 457 U.S at
213 defendants undocumented status bears no relation to his
criminal culpability future dangerousness or moral worth
16 Millions of undocumented aliens live and work
with/n the
borders of the United States many of whom migrated to thisjountry
in search of work To allow prosecutors in a/criminal
prosecution to argue that undocumented workers should be more
harshly treated as result of their illegal status constitutes
that castebased and invidious classbased discrimination that
the Equal Protection Clause was specifically designed to eliminate
Plyler 457 U.S at 214
17 Further the prosecutors prejudicial appeals provided
the jurors with authority for indulging any ethnic or racial animus
they might have felt toward Mr Aldape Guerra as an undocumented
Mexican worker The trial court endorsed the prosecutorial teams
message that illegal status could be considered in assessing
punishment When defense counsel objected to prosecutor Robert
Moens assertion that illegal status was relevant to an assessment
of the defendants character the court overruled the objection
S.F Vol 19 at 3553
18 The prosecutors comments and the trial courts
endorsement of those comments warrant reversal of Mr Aldape
Guerras conviction Within the context of courtroom surrounded
by parading Ku Klux Klan members protesting against the presence of
undocumented workers in Texas and trial at which the evidence of
Mr Aldape Guerras guilt was far from overwhelming it cannot be
said that the remarks constituted harmless error Even if brief
racially inflammatory remarks or allusions are enough to distort
the fairness of trial See Doe 903 F.2d at 26 citing Brooks
Kemp 762 F.2d 1383 1413 11th Cir 1985 see also State
Wilson 404 Sofd 986
970 La 1981 single appeal to racial
prejudice furnis1s grounds for mistrial Despite trial
counsels objection to the prosecutors comments at voir dire the
court failed to correct the prosecutors highly prejudicial
misstatement of the law This failure on the part of the trial
court is critical in evaluating the harm that resulted from the
prejudicial comments See Dues State 634 S.W.2d 304 Tex Cr
App 1982 The flimsiness of the states case against Mr Aldape
Guerra is another factor that weighs heavily in finding reversible
error See e.g 903 F.2d at 28 Derden McNeel 938 F.2d
605 5th Cir 1991
The prejudicial effect of the prosecutors instructions cannot
be underestimated
Undeniably7rosecutorial remarks kindling racial or
ethnic predilections can violently affect jurors
impartiality Comments of that sort are especially
egregious because of the possibility that the jury will
give special weight to the prosecutors arguments not
only because of the prestige associated with his office
but also because of the factfinding facilities
presumably available to him Just how much influence
the prosecutors exerted upon the jury is of
course incapable of precise measurement but its portent
for harm is ominous
Doe 903 F.2d at 28 citations omitted
conviction tainted by appeals to racial or ethnic animus
cannot be allowed to stand Mr Aldape Guerras conviction must be
reversed
Other claims we may want to add
Claim that the cumulative error in the case rendered his trial
fundamentally unfair See Derden McNeel 938 F.2d 605 5th Cir
1991 rehrg granted in October 1991
Juror misconduct claim based on their use of the guns in their
deliberations See the note they passed to the judge which is in
the transcript the volume with all of the motions and jury
instructions look in the index to find it
10
IN THE TEXAS COURT OF CRIMINAL APPEALS
and
IN THE 248TH JUDICIAL DISTRICT OF HARRIS COUNTY TEXAS
EX PARTE RICARDO ALDAPE GUERRA
Case No.______________
Harris County
Cause No 359805-A
AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS
Petitioner RICARDO ALDAPE GUERRA incorporates all of these
claims in his original appiicatioii..are not specifically set
forth as amended below
AMENDED CLAIMS
Claim XIV of Mr Aldape Guerras original application for writ
of habeas corpus is amended by the following claim
XIV
MR ALDAPE GUERRA WAS DEPRIVED OF HIS RIGHT TO EFFECTIVEASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH EIGHTHAND FOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION AND ANALOGOUS PROVISIONS OF THE TEXASCONSTITUTION
Mr Aldape Guerra hereby amends this claim by deleting
paragraph 291 and adding the following text and references to
attached exhibits
Maria de la Luz Valero Elizondo Mr Aldape Guerras sixth
grade teacher at the C.P.A Francisco Sarabia primary school still
remembers him for his sweetness of character She describes him as
an outstanding young man who was always polite friendly
student simple but happy and playful that is likeable and nice
sports lover exhibited good behavior and good
development of his subjects See Appendix at
Likewise Mr Aldape Guerra is remembered by former high
school teachers at the Dr Gabino Barreda High School as model
student Teachers Artemio Villagomez Lozando and Gamalie Garza
Ramos found young Ricardo to be kind attentive and happy young
man who was good classmate and always very respectful of the
established disciplinary rules See Appendix 4A at
This characterization is echoed by others who taught
Ricardo at the Dr Gabino Barreda High School Former teachers
Attached to this Amended Application are tranfilatjons of theaffidavits contained in Appendices and S7àf the originalApplication for Writ of Habeas Corpus as well as translations ofrecords procured from the Government of Mexico attesting to MrAldape Guerras clean criminal record
Alicia Guadalupe Saldivar Saavedra and Enedina Gamez Lopez describe
him as well-mannered young an who provided no disciplinary
problems and always rLthith e5nuil1.5_e the
rules Professor Lopez remembers Ricardo
perfectly .since he was different from the rest due tothe fact he was very atntive and respectful to histeachers and classmate very correct young man whowas never disrespectful to his instructors and alwaysobserved the disciplinary rules imposed by the schoolwhich at that time were very strict... alwaysbehaved as an attentive hard-working student who evenif he did not have the highest grades he had regular
average grades
Appendix 4B at
The impression created by Mr Aldape Guerras teachers
that he is gentle and kind man who would not commit the violent
crime for which he has been convicted finds support in the
professional opinion of psychologist who evaluated him at 1ge
Lucia Villarreal Garza is psychologist who was
employed by the Dinamica S.A company to undertake psychological
evaluation of Mr Aldape Guerra Her evaluation was conducted in
order to determine if Mr Aldape Guerra possessed the requisite
good character and personality to work at Empaques de Carton Titan
the factory where his father worked She employed the Thurstone
personality test and concluded on the basis of her test results
that Mr Aldape Guerra Of11 M1 /Z44e
tends to behave in stable manner and as the capabilityof making friends
.and is ver passive man thatis witk very low impulsivity th high emotional
Appendix at e4 tr AdajQeMs arza recommended Mr Guerra for employment and in
cv Ptr Avrjt
JA
recent statement confirmed that
her4
analysis revealed nothing in
Mr Guerras character that would indicate capacity for violence
Appendix at Indeed there is nothing in Mr Aldapes
Guerras historyould indicate that he is in any way violent
or dangerous
When he left high school Mr Aldape Guerra sought
employment at the Einpanaques de Carton Titan carton factory Those
acquainted with him enthusiastically recommended him for
position Mr Rufino Gamez Barela Manager of IBM Computers
echoed the impressions of Mr Aldape Guerras teachers
He is good and responsible young man very much intosports He has always behaved well and believe that hewill continue to do so His father is very correctperson fully recommend the applicant Appendix at
Mr Andro Solis Carranco the owner of Relojes
Industrjales also recommended Mr Aldape Guerra
The applicants family has left me with very goodimpression they are very correct in everything withgood habits The applicant is good boy and havenever known him to have problem therefore recommendhim fully Appendix at
Mr Aldape Guerra was hired for the job He was
conscientious employee at Empaques de Carton Titan and never
exhibited any sort of combative or violent behavior His
supervisor Mr Reginaldo Montemayor Martinez describes him as
serious and responsible Mr MontŁmayor Martinez remembers that
Mr Aldape Guerrt
was normal young man obedient hardworking who nevercaused problems who was not absent from work whogot along well with co-workers Appendix at
For nearly two..and%TiT years Mr Aldape Guerra worked
at the Empaques de Carton Titan carton factory He eventually
decided to leave the factory in order to pursue other activities
Appendix at
ADDITIoNAL CLAIMS
10 Mr Aldape Guerra amends his petition for writ of habeas
corpus by adding the following claims
XXIV
THE PROSECUTORS REMARKS DURING VOIR DIRE THAT THE JURYCOULD CONSIDER MR ALDAPE GUERRAS UNDOCUMENTED STATUS INEVALUATING HIS CHARACTER AT THE PUNI5HJ PHASE OF HISTRIAL DEPRIVED MR ALDAPE GUERRA OP HIS RIGHTS UNDER THEFIFTH SIXTH AND FOURTEENTH AMENDMENTS TO THECONSTITUTION AND ANALOGOUS PROVISIONS OF THE TEXASCONSTITUTION
11 During voir dire prosecutors expressly instructed three
of the members of Mr Aldape Guerras jury that they could consider
Mr Aldape Guerras illegal status in evaluating his character
during the punishment phase of his trial Other jurors were
informed that Mr Aldape Guerra was an illegal alien2 and were
questioned as to whether his illegal status would affect their
Throughout voir dire prosecutors repeatedly emphasized MrAldape Guerras status as an illegal alien See e.g S.F volat 864 65 S.F vol at 1205 S.F vol 15 at 2397 98 S.FVol 17 at 2603 04 S.F Vol 20 at 3253 54 S.F Vol 19 at3489 S.F Vol 19 at 3552 53
deliberations at the guilt phase of his trial
12 Mr Aldape Guerras trial began with jury that had
been informed that his very presence in the country was
illegal Ex Parte Guzmon 730 S.W.2d 724 727 Tex Cr App
1987 Prosecutors encouraged jurors to consider his illegal
status as fundamental character flaw something that the jury
could consider an aggravating factor in determining whether Mr
Aldape Guerra deserved to live or die Juror Leah Brumley was
told that Mr Aldape Guerras status as an illegal alien was
information that the jury can consider in deciding what type of
person he is S.F Vol 17 at 26O3J4 Prosecutor Robert Moen
instructed juror Constance Whiteford that the fact that
person is in someone elses country unlawfully or as come into
country illegally could be evidence the jury could consider about
what type of person he is S.F Vol 1.9 at 3552-53 Finally
juror Tommy Ray Smith was informed that Mr Aldape Guerras status
might benefit in answering special issues S.F Vol
20 at 3254
13 In his summation at Mr Aldape Guerras punishment
hearing prosecutor Dick Bax once again encouraged jurors to
consider Aldape Guerras illegal status answers will
demonstrate what type of person Ricardo Aldape Guerra was while he
was in our community for less than two months after coming here
from Monterry Mexico in May S.F Vol 27 at 165
emphasis added
14 Unequal treatment on the basis of race or alienage is
anathema to the principles on which the Fourteenth Amendment is
based In the area of criminal justice where racial
discrimination strikes at the fundamental values of our judicial
system and our society as whole Rose Mitchell 443 U.s 545
556 1979 the Supreme Court has Consistently articulated
strong policy of combatting racial discrimination at
558 Prejudicial inflammatory comments pertaining to
defendants ancestry and undocumented status are no less
pernicious Distinctjons based upon ancestry are as odious
and suspect as those predicated on race in practical terms
appeals to either threathen the fairness of trial U.S Doe
903 F.2d 16 2122 D.C Cir 1990 Likewise the Court has
condemned discrimination on the basis of immigration status
Plyler Doe 457 U.s 202 1982
15 To signal to the jury that defendant is more deserving
of the death penalty because of his immigration status de les the
undocumented person a2is basic humanity Undocumented persons
are entitled to the same fundamental Constitutional rights of due
process and equal protection of the laws that are guaranteed to all
persons within the territorial jurisdiction of the United States
Yjck Wo Hopkins 118 U.s 356 369 1886 Pivier 457 U.s at
213 defendants undocumented status bears no relation to his
criminal culpability future dangerousness or moral worth
16 MiLlions of undocumented aliens live and work within the
borders of the United States many of whom migrated to this country
in search of work To allow prosecutors in criminal
prosecution to argue that undocumented workers should be more
harshly treated as result of their illegal status Constitutes
that castebased and invidious classbased discrimination that
the Equal Protection Clause was specifically designed to eliminate
Plyler 457 U.S at 214
17 Further the prosecutors prejudicial appeals provided
the jurors with authority for indulging any ethnic or racial animus
they might have felt toward Mr Aldape Guerra as an undocumented
Mexican worker The trial court endorsed the prosecutorja teams
message that illegal status could be considered in assessing
punishment When defense counsel objected to prosecutor Robert
Moens assertion that illegal status was relevant to an assessment
of the defendants character tie court overruled the objection
S.F Vol 19 at 3553
18 The prosecutors comments and the trial courts
endorsement of those comments warrant reversal of Mr Aldape
Guerras conviction Within the context of courtroom surrounded
by parading Ku Klux Klan members protesting against the presence of
undocumented workers in Texas and trial at which the evidence of
Mr Aldape Guerras guilt was far from overwhelming it cannot be
said that the remarks constituted harmless error Even if brief
racially inflammatory remarks or allusions are enough to distort
the fairness of trial See 903 F.2d at 26 citing Brooks
emp 762 F.2d 1383 1413 11th Cir 1985 also State
Wilson 404 So4d 986 970 La 1981 single appeal to racial
prejudice
furnisls grounds for mistrial Despite trial
counsels objection to the prosecutors comments at voir dire the
court failed to correct the prosecutors highly prejudjcja
misstatement of the law This failure on the part of the trial
court is critical in evaluating the harm that resulted from the
prejudicial comments See Thies St 634 S.W2d 304 Tex Cr
App 1982 The flimsiness of the states case against Mr Aldape
Guerra is another factor that weighs heavily in finding reversible
error ee e.g 903 F.2d at 28 Prden McNeel 938 F.2d
605 5th Cir 1991
The prejudicja effect of the prosecutors instructions cannot
be underestimated
Undeniab1y7rosecutoj1 remarks kindling racial orethnic preditlectjons can violently affect jurorsimpartialitytt Comments of that sort are especiallyegregious because of the Possibility that the jury willgive special weight to the prosecutors arguments notonly because of the prestige associated with his officebut also because of the factfinding facilitiesPresumably available to him Just how much influencethe prosecutors
exerted upon the jury is ofcourse incapable of precise measurement but its portentfor harm is ominous
903 F.2d at 28 citations omitted
Conviction tainted by appeals to racial or ethnic animus
cannot be allowed to stand Mr Aldape Guerras conviction must be
reversed
Other claims we may want to add
Claim that the cumulative error in the case rendered his trialfundamentaliy unfair
.g rden McN 938 F.2d 605 5th Cir
1991 rehrg granted in October 1991
Juror misconduct claim based on their use of the guns in theirdeliberations See the note they passed to the judge which is inthe transcript the volume with all of the motions and juryinstructions look in the index to find it
10