Fierro v. Lynaugh

Decision Date14 August 1989
Docket NumberNo. 88-1507,88-1507
Citation879 F.2d 1276
PartiesCesar Roberto FIERRO, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Bruce J. Ponder, El Paso, Tex., for petitioner-appellant.

William C. Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, KING, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In 1980 Cesar Roberto Fierro was convicted of capital murder and sentenced to death by the state of Texas. He now appeals the federal district court's denial of his petition for writ of habeas corpus. We affirm.

I

In 1980 Fierro was convicted in a state court in Texas of committing murder during the course of a robbery, and sentenced to death. By 1987, Fierro had exhausted all opportunities for state relief. In September 1987, he filed a petition for writ of habeas corpus in federal district court. The district court entered a judgment in June 1988, denying the petition and withdrawing its stay of execution. In July 1988, Fierro obtained a certificate of probable cause for appeal and a further stay of execution from the district court. He now appeals the denial of his petition.

II

The facts underlying Fierro's conviction and sentence are reported in Fierro v. Texas, 706 S.W.2d 310, 312 (Tex.Crim.App.1986). In brief, Cesar Roberto Fierro and Geraldo Olague hailed a taxi at 2:15 a.m. on February 27, 1979, in El Paso, Texas. The driver was Nicolas Castanon. Olague, aged sixteen, sat in front, Fierro in back. Castanon was told to take Olague to an address in El Paso, and then take Fierro across the border to Juarez, Mexico. As they neared the first destination, Fierro yelled, "Stop." As Castanon turned around, Fierro shot him in the back of the head. After the car stopped, Fierro drove, with Olague in the back seat, to Modesto Gomez Park. There, Fierro dragged Castanon's body some distance, shot him again, and took his wallet, watch, and jacket. The jacket was discarded on the road to Juarez, and the watch was discarded in a dumpster. Fierro abandoned the cab in Juarez. These facts were established primarily by Olague's testimony and Fierro's confession and are not substantially in dispute at this time.

In July 1979, Olague contacted the El Paso police and told his story. He also took two police officers to Juarez and pointed out the residence of Fierro's mother and stepfather. They were accompanied by Juarez police officials, who later informed the El Paso officers that Fierro was in the El Paso county jail for an unrelated probation violation. The El Paso officers checked Fierro out of jail. He was warned of his rights and was told that his family had been questioned. Fierro claimed at a hearing on his motion to suppress his confession that he was told by an El Paso detective that his mother was in jail in Juarez and would not be released until Fierro signed a written confession. Fierro also testified that the detective showed him letters written by Fierro and his brother to Fierro's mother, suggesting that the detective himself had, in fact, had some contact with Fierro's mother. Fierro's parents testified that they had been arrested by the Juarez police early in the morning before Fierro gave his confession, and that they were released later that afternoon. The El Paso detectives denied Fierro's allegation, although they did admit that Fierro spoke to the Juarez police by telephone before signing his confession.

III

Fierro challenges his conviction for murder in the course of committing a robbery. Tex.Penal Code Ann. Sec. 19.03(a)(2) (Vernon Supp.1988). Fierro advances two arguments. First, he argues that the conviction violated his right to due process because the evidence of his guilt of this offense was insufficient. Specifically, he claims that the articles were removed after the murder, so that evidence of murder during the course of a robbery is lacking. Second, he argues that an expansive reading of this statute as encompassing his conduct violates the eighth and fourteenth amendments by expanding the class of criminals subject to the death penalty in Texas.

On testing the sufficiency of evidence under a petition for writ of habeas corpus, we view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In this case, the state was obligated to prove that Fierro intentionally murdered Castanon in the course of committing or attempting to commit a robbery. Texas Penal Code Ann. Sec. 19.03(a)(2) (Vernon 1989). A murder is committed in the course of committing or attempting to commit robbery under section 19.03(a)(2) if the murder occurs during an attempt to commit, during the commission, or in immediate flight after the attempt or commission of the robbery. Riles v. State, 595 S.W.2d 858, 862 (Tex.Crim.App.1980). Even though Castanon may have been dead when Fierro removed the wallet, watch, and jacket, we have no doubt that the simple facts of this case are sufficient for the jury to infer that the killing took place during a continuous sequence of events constituting the robbery or, at least, at a time when Fierro intended and was attempting to rob Castanon. Since the evidence therefore supports the conviction under this statute, Fierro's right to due process has not been violated.

Similarly, the conviction and sentence under this statute do not violate the eighth amendment's prohibition on cruel and unusual punishment. The state court found that Fierro's conduct fits within the statutorily defined offense of capital murder. On a petition for writ of habeas corpus, a federal court defers to the state court's interpretation of state law. Seaton v. Procunier, 750 F.2d 366, 368 (5th Cir.1985). The federal court searches only for violations of federal law. 28 U.S.C. Sec. 2254(a); Smith v. McCotter, 786 F.2d 697, 700 (5th Cir.1986). Since we cannot find that the conviction under this statute was improper as a matter of state law, we have no reason to hold that the state has enlarged the class of persons subject to the death penalty. Accordingly, we find no federal constitutional violation in applying this statute to Fierro's conduct.

IV

Fierro next attacks his conviction on the grounds that his confession was obtained by coercion in violation of the fifth and fourteenth amendments. Fierro claims his confession was involuntary, and that he confessed only because the detectives in El Paso told him that his mother was being held by the police in Juarez, Mexico, and would not be released unless Fierro confessed.

At a hearing in the trial court, Fierro testified to this effect, and also that the detectives showed him letters that were previously in his mother's exclusive possession. Fierro's mother and stepfather testified that they had, in fact, been arrested by Juarez police early on the morning Fierro confessed, and that they were released later that day. Furthermore, detectives from El Paso had been in contact with Juarez police when the detectives were in Juarez with Olague, and the Juarez police told the detectives that Fierro was at that time in the El Paso county jail. The detectives testified, however, that they did not know that Fierro's family was in custody, and had no recollection or knowledge of any letters. They knew that the Juarez police had questioned Fierro's parents, and they allowed Fierro to speak with the Juarez police by telephone, but both detectives testified that Fierro voluntarily waived his rights and that no one coerced him to confess.

The state court, faced with this conflicting evidence, found that no threats or promises were made to Fierro with respect to members of his family, and that the Juarez police were acting neither as agents for, nor at the direction of, the El Paso police. These findings, which are subsidiary to the ultimate determination of whether the confession was voluntary, are supported by the record and so are entitled to a presumption of correctness. 28 U.S.C. Sec. 2254(d); Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985). Given these subsidiary findings, we cannot conclude that Fierro's confession was coerced.

V
A.

Fierro next maintains that his right to due process was violated when lay witnesses were allowed to testify as to the probability that Fierro would commit criminal acts of violence in the future. The question of future violence is one of the special issues submitted to the jury in capital cases in Texas. Under Texas law, a properly qualified lay witness is permitted to state an opinion on this question. Esquivel v. State, 595 S.W.2d 516, 527-28 (Tex.Crim.App.1980). Fierro argues that allowing such testimony is inconsistent with other Texas evidentiary rules regarding lay opinions. Specifically, the Texas Court of Criminal Appeals has held that whenever a jury is in possession of the same information that forms the basis for the witness's opinion, and the jury is fully able to understand the matter and to draw proper inferences and conclusions from the facts, the witness's opinion is unnecessary and inadmissible. Steve v. State, 614 S.W.2d 137 (Tex.Crim.App.1981). Furthermore, asking a witness whether a criminal defendant is guilty is, of course, not allowed under state law. Boyde v. State, 513 S.W.2d 588 (Tex.Crim.App.1974). According to Fierro, by allowing lay opinion testimony on the ultimate issue of future dangerousness, the state sets less rigorous standards of evidence in capital cases than in any other kind of criminal case. Fierro argues that this distinction for capital cases is not rational and deprived him of a...

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