909 F.Supp.2d 578 (W.D.Tex. 2012), Civ. SA-09-CA-528-OG, Garza v. Thaler

Docket Nº:Civil SA-09-CA-528-OG.
Citation:909 F.Supp.2d 578
Opinion Judge:ORLANDO L. GARCIA, District Judge.
Party Name:Manuel GARZA, Jr., TDCJ No. 999434, Petitioner, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
Attorney:Michael Clark Gross, Law Office of Michael C. Gross, San Antonio, TX, for Petitioner. Ellen Stewart-Klein, Office of the Attorney General, Austin, TX, for Respondent.
Case Date:December 18, 2012
Court:United States District Courts, 5th Circuit, Southern District of Texas
 
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909 F.Supp.2d 578 (W.D.Tex. 2012)

Manuel GARZA, Jr., TDCJ No. 999434, Petitioner,

v.

Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil No. SA-09-CA-528-OG.

United States District Court, W.D. Texas, San Antonio Division.

December 18, 2012

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Michael Clark Gross, Law Office of Michael C. Gross, San Antonio, TX, for Petitioner.

Ellen Stewart-Klein, Office of the Attorney General, Austin, TX, for Respondent.

MEMORANDUM OPINION AND ORDER

ORLANDO L. GARCIA, District Judge.

Petitioner Manuel Garza, Jr., filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his October, 2002 Bexar County conviction for capital murder and sentence of death. For the reasons set forth hereinafter, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.

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I. Background

A. The Offense in Petitioner's Own Words

There is no legitimate doubt as to the events of February 2, 2001 that resulted in the death of San Antonio Police Officer John " Rocky" Riojas. Within hours of his arrest on February 4, 2001, petitioner gave a voluntary, written statement in which he gave two, slightly different, accounts of how he fatally shot officer Riojas while violently resisting an otherwise lawful arrest on outstanding warrants.1

Two days later, on February 6, 2001, petitioner gave a second written statement concerning his fatal shooting of officer Riojas.2 In this second statement, in addition to furnishing additional background information,

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petitioner gave a third, more elaborate, account of his fatal shooting of officer Riojas which, in pertinent part, states as follows:

After I called Gilbert, I was walking back to the apartments and I seen the cop. The cop was in a marked car but without the lights. The car had the San Antonio Police Department markings on it so I knew he was a cop. I walked across the street and I saw the cop go by and I saw the cop make a U-turn. I knew the cop was gonna stop me because I was wearing all black. I knew the cop was gonna arrest me because I knew I had outstanding warrants. I knew I had an MTR for Escape and some other warrants for Burglary of a Vehicle and warrants for possession of marijuana.

* * *

The cop stopped me when he got out of his car about two feet from his car. The cop asked me to come to him and he asked me if I lived there and I told him no. The cop asked me my name and I gave him a fake name of Manuel Garcia. Once I gave him the fake name I seen the cop look towards his car, he was still standing by his door and I thought at that point that the cop was gonna check on me. I knew he'd find out about the warrants and I didn't want to go to jail so I just ran. Right before I ran the cop told me to put my hands on the car. I knew that that was it and I ran. I never put my hands on the cop's car. I gave the cop the false name so he wouldn't find the warrants. I had my wallet but my wallet had a fake ID in it under another name.

* * *

As I started running the cop was telling me to stop. I just wanted to get away. I knew I was gonna go to jail and I didn't want that. Who wants to be in jail? The cop was on my ass chasing me. The cop was close to me the whole time. He only told me to stop once though. I continued to run through the apartments until I got by some mailboxes. I finally stopped running because I was tired. The cop was right there and he grabbed my right hand and he punched me in the mouth. I grabbed the cop in a hug and I put both my arms around him and we started wrestling and we both fell to the ground. When we fell to the ground I was on the bottom and the cop was on top of me. I was on my back and the cop was on top of me his stomach to me. We started rolling around on the ground fighting. I was getting the officer on the ground and the officer was getting me on the ground. I was fighting so hard with the officer that the next day my whole body hurt. I was so sore I couldn't hardly move. I don't recall if we were saying anything or not.

Finally I seen the officer get his gun out. I was on my back on the ground and the officer was kneeling over me and he had his hand on me holding me down and I saw the officer pulling his gun. When the officer pulled his gun out. I was able to get my hands on his gun. I was able to twist around and the cop fell on his back. I had my hand on his gun and he had his hand on the gun and the gun was out in front of us. I had my left hand on his gun and the cop had his gun in his right hand. I grabbed the cop's right wrist with my right hand and I grabbed the gun in my left hand. I was pulling forward with my left hand and pulling the cops right hand back away from the gun. The cop was trying to hold me down but he was trying to keep his gun too. I had a

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better angle and position and I was able to pull the gun out of the cop's hand.

I was able to crawl away a few feet and I got up on my knees. The cop came up behind me and he reached around and he grabbed my arm that had the gun in it. I still had the gun in my left hand and the cop was still trying to get the gun. I wanted to get away and the cop was holding me to where I had to reach over and the gun was pointing his way over my right shoulder and the gun went off as the cop was grabbing it. When I pulled the trigger the cop's body was against mine. When the gun went off I couldn't hear nothing. My face didn't burn but my ear hurted bad in the inside. My ear was ringing so bad that when the guy that took me home was trying to talk to me I couldn't hear him. After I shot the cop fell right down. I only fired one shot. I didn't fall but he did. I got up and I never even looked at the cop. I ran back into the apartments to where I was at before. I think I went to Albert's first but I know I went to Tonya's.

* * *

I want to say to the media and to the officer's family and everybody out there that this wasn't intentional and I truly think this was the cop's fault. I don't see why he wanted to pull out his gun. I want to say to the judge and the jury to please do justice and please have mercy on me and give me the benefit of the doubt. I don't think I should get death or life in prison. I think I deserve something under that. I need a lot of help about how to do life. I wasn't raised right.3

B. Indictment

On April 11, 2001, a Bexar County grand jury indicted petitioner in cause no. 2001-CR-1877 on a single Count of capital murder, to wit, intentionally and knowingly causing the death of officer Riojas by shooting Riojas with a deadly weapon, i.e., a firearm, while Riojas was in the lawful discharge of an official duty and petitioner knew Riojas was a police officer.4

C. Appointment of Defense Counsel

The state trial court appointed attorneys Raymond E. Fuchs and Edward Camara, Jr. as counsel for petitioner.5 On July 11, 2002, attorney Fuchs filed a motion to withdraw as counsel for petitioner.6 The state trial court granted said motion.7 On July 19, 2002, the trial court appointed attorney Vincent D. Callahan as counsel for petitioner.8

Petitioner filed both an unsuccessful objection in the trial court and an unsuccessful mandamus action in a state appellate court challenging the ex parte the substitution of attorney Fuchs with attorney Callahan.9 In re Manuel Garza, 2002 WL 1856712 (Tex.App.-San Antonio, August 14, 2002).

D. Guilt-Innocence Phase of Trial

The guilt-innocence phase of petitioner's capital murder trial commenced October 15, 2002.

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1. The Prosecution's Case

In addition to petitioner's statements excerpted above, the prosecution presented testimony from (1) various law enforcement personnel regarding communications officer Riojas had with other officers immediately before his fatal shooting and the evidence collected following the discovery of officer Riojas' body immediately after the fatal shooting,10 (2) a pair of civilian eyewitnesses to the fatal shooting,11 (3) two

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acquaintances of the petitioner regarding petitioner's appearance and conduct immediately after the fatal shooting,12 (4) the medical examiner who performed the autopsy on Riojas' body,13 (5) petitioner's brother-in-law and sister regarding petitioner's disposition of the murder weapon and petitioner's behavior and statements in the days after the murder, 14 (6) a forensic

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serologist regarding the presence of DNA consistent with Riojas on petitioner's clothing and a necklace found at the crime scene,15 (7) a firearms examiner regarding the safeties and trigger pull on Riojas' Glock police pistol,16 (8) the San Antonio

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Police Detective who took petitioner's written statements,17 (9) a pair of San Antonio Police Officers who witnessed petitioner make post-arrest threats against other officers.18

2. The Defense's Case

The defense called (1) a civilian employee of the San Antonio Police Department who testified, at the time petitioner executed his first written statement, the petitioner said his shooting of Riojas had been accidental, 19 (2) a trace evidence analyst regarding the absence of gunshot residue on petitioner's jacket/trench coat,20 (3) an acquaintance of petitioner who saw petitioner

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the evening of the fatal shooting, 21 (4) a second trace evidence analyst regarding the presence of gunshot residue on Riojas' clothing,22 (5) a friend of...

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