Garcia v. Director, TDCJ–CID, CIVIL ACTION NO. 1:08–cv–720

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
Writing for the CourtThad Heartfield, United States District Judge
Citation73 F.Supp.3d 693
PartiesGustavo Julian Garcia, #999018, Petitioner, v. Director, TDCJ–CID, Respondent.
Docket NumberCIVIL ACTION NO. 1:08–cv–720
Decision Date10 November 2014

73 F.Supp.3d 693

Gustavo Julian Garcia, #999018, Petitioner
Director, TDCJ–CID, Respondent.

CIVIL ACTION NO. 1:08–cv–720

United States District Court, E.D. Texas, Beaumont Division.

Signed November 10, 2014

73 F.Supp.3d 707

James Wesley Volberding, Attorney at Law, Tyler, TX, Seth H. Kretzer, Law Office of Seth Kretzer, Houston, TX, for Petitioner.

Fredericka Searle Sargent, Attorney General's Office, Austin, TX, for Respondent.


Thad Heartfield, United States District Judge

Petitioner Gustavo Julian Garcia (“Garcia”), an inmate confined in the Texas prison system, filed the above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Garcia is challenging his capital murder conviction and death sentence imposed by the 366th Judicial District Court of Collin County, Texas in Cause Number 366–80185–91, in a case styled The State of Texas vs. Gustavo Julian Garcia . For reasons set forth below, the Court finds that the petition is not well-taken and that it will be denied.


On December 17, 1991, Garcia was convicted of the offense of capital murder for shooting and killing Craig Turski in the course of committing a robbery at a liquor store where Turski worked. Tex. Penal Code § 19.03(a). After granting the State's motion for rehearing, the Texas Court of Criminal Appeals (“TCCA”) upheld Garcia's conviction and death sentence. Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App.1996) (Garcia I ). Garcia did not file a petition for a writ of certiorari.

Garcia filed his first application for a writ of habeas corpus in state court in 1997. On December 31, 1998, the state trial court issued findings of fact and conclusions of law. The TCCA denied the application without written order. Ex parte Garcia, No. WR–40,214–01 (Tex.Crim.App. Feb. 10, 1999) (unpublished).

Garcia filed his first petition for a writ of habeas corpus in this Court on August 23, 1999, which was supplemented on August 16, 2000. Garcia v. Director, TDCJ–ID, Civil Action No. 1:99cv134. In response, the Director confessed error as to Garcia's claim that the trial court allowed improper testimony by the State's expert witness during the punishment phase of the trial. On September 6, 2000, as a result of the response, the Court issued a conditional writ of habeas corpus, requiring the State to conduct a new sentencing hearing.

A punishment retrial was begun in January 2001. Based on the jury's answers to the special issues, Garcia was sentenced to death a second time on March 23, 2001. The Texas Court of Criminal Appeals affirmed the judgment.

73 F.Supp.3d 708

Garcia v. State, No. AP–71,417, 2003 WL 22669744 (Tex.Crim.App. Nov. 12, 2003) (unpublished) (Garcia II ). The Supreme Court denied his petition for a writ of certiorari. Garcia v. Texas, 543 U.S. 855, 125 S.Ct. 267, 160 L.Ed.2d 91 (2004).

Garcia then filed a second application for a writ of habeas corpus in state court. On February 12, 2008, the state trial court issued thorough findings of fact and conclusions of law. The TCCA denied relief. Ex parte Garcia, No. WR–40,214–02, 2008 WL 4573962 (Tex.Crim.App. Oct. 15, 2008) (unpublished).

Garcia began the present proceedings on November 27, 2008. He filed a petition for a writ of habeas corpus (docket entry # 5) on October 11, 2009. The petition contains sixty-six claims, many of which overlap and are repetitious. Related claims will be grouped together for purposes of discussion and analysis. The Director filed an answer (docket entry # 31) on August 1, 2012. Garcia filed a reply (docket entry # 37) on April 26, 2013.


The TCCA summarized the facts of the offense as follows:

The evidence at trial established that on December 9, 1990 [Garcia] and Christopher Vargas entered a liquor store, Beverage Warehouse, in the city of Plano. [Garcia] was armed with a single shot .20 gauge sawed-off shotgun and had additional shells in his possession. [Garcia] ordered the clerk, Craig Turski, to give him the money from the cash register. At the same time, Vargas took beer from the store and put it in their car. A female customer walked in the store, saw [Garcia], and immediately left.
[Garcia] shot Turski at close range in the abdomen. Turski fled outside the store, pursued by [Garcia]. [Garcia] then reloaded the shotgun and shot Turski in the back of the head. The female customer, Donna Delozier Sawtelle, subsequently returned to the store with her husband. Finding the store deserted, they called the police. Turski was found and was transported to the hospital, where he later died from gunshot wounds.
On January 5, 1991 at about 12:30 a.m., Vargas, [Garcia] and [Garcia's] girlfriend (Sheila Phanae Loe) stopped at a Texaco station in Plano. While Loe pumped gas, [Garcia] and Vargas entered the station with the same .20 gauge shotgun used to kill Turski. The clerk, Gregory Martin, was on the phone with his girlfriend. As he saw them enter, he informed her he thought he was about to be robbed and asked her to call the police. Martin was taken into a back room and shot at point blank range in the back of the head. He died at the scene.
[Garcia] claimed Vargas shot Martin. Evidence introduced at trial, however, indicated Vargas was carrying beer to their car (as he did in the earlier robbery) while [Garcia] shot the clerk. In addition, the shotgun was found near the freezer in close proximity to [Garcia] at the time of his capture. Two firearms experts testified at trial that the shotgun found at the scene of Martin's murder was the same weapon used in Turski's murder.
Alerted by Martin's girlfriend, the police arrived at the scene to find [Garcia], Vargas and Loe still present, Vargas was found, unarmed, standing over Martin's body. He claimed to have just entered the store and found Martin lying there. [Garcia] was found hiding in the freezer area close to where the shotgun was found.
[Garcia] was transported to the Plano Police Department. He was read his
73 F.Supp.3d 709
“Miranda” warnings repeatedly. He subsequently confessed, both orally and in writing, to the murders of both Turski and Martin. His confessions were videotaped, and a separate written confession was prepared for each offense.
[Garcia's] written statement regarding the killing of Turski in its entirety reads as follows:
Det. Wilson is writing my statement. Approx. 3–4 weeks from today's date, Chris Vargas & I robbed a liquor store & I killed the clerk. The liquor store was behind a 7–11 store at Plano Pkwy. & Ave. K. I was driving Sheila's Chev. Monza. We waited in the liquor store parking lot until the customers all left. Both Chris & I pulled a 20 ga. sawed-off shotgun on the clerk. I had the clerk give me the money out of the cash register & it was about $500. Chris was grabbing up beer. Chris went outside to pull the car up to the front door. I had the clerk go into a little room next to the cash register & I had him get on his knees. A customer, a white woman walked in the store & saw me & she walked back out. I then panicked and I shot the clerk with the shotgun. The clerk started coming at me & threw a chair at me and then he ran outside. I loaded the shotgun & shot the clerk again outside the store. The clerk had jumped over the fence & was in some grass when I shot him the 2nd time. I then ran to the car & we drove off. I told Sheila my common-law wife about the robbery after we did it. End—G.G.
The statement was completed at 9:05 a.m. on January 5, 1991. Each page is signed by [Garcia] and two witnesses. The statement was taken by Det. David Wilson of the Plano Police Department....
At trial, an acquaintance of [Garcia], Bobby Flores, testified he was at Vargas' house the night of the Turski murder. Flores testified that Vargas and [Garcia] left the house and subsequently returned with beer and a lot of money. Flores asked [Garcia] where he got the beer and money. [Garcia] in response stated he went into a store, took the beer and money, shot the clerk and left.

Garcia I, 919 S.W.2d at 383–85.


The petition was filed in 2009, thus review is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, a petitioner who is in custody “pursuant to the judgment of a State court” is not entitled to federal habeas corpus relief with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

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