Valdez v. Johnson

• Decision Date: 28 September 1999
• Docket Number: No. CIV A C-98-040.,CIV A C-98-040.
• Citation: 93 F.Supp.2d 769
• Parties: Alberto VALDEZ, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

93 F.Supp.2d 769

Alberto VALDEZ, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

No. CIV A C-98-040.

United States District Court, S.D. Texas, Corpus Christi Division.

September 28, 1999.

Jeffrey Scott Levinger, Carrington Coleman, Sloman & Blumenthal, LLP, Dallas, TX, William D. Underwood, Waco, TX, for Petitioner.

Erik E. Cary, Minter Joseph & Thornhill, PC, Austin, TX, Gregory S. Coleman, Austin, TX, for Respondent.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

JACK, District Judge.

On this day came on to be considered Petitioner Alberto Valdez's ("Valdez") petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the Court GRANTS Petitioner's writ. The State of Texas (the "State") is hereby ORDERED, within the next 90 days, either to: (1) conduct a new trial on the issue of sentencing, as permitted by Tex.Code Crim.Proc. art. 44.29(c); or (2) vacate Petitioner's sentence and impose a sentence less than death.

I. JURISDICTION

The Court has jurisdiction over this habeas petition pursuant to 28 U.S.C. § 2254(a).

II. FACTS AND PROCEEDINGS

In May 1988, a Texas jury found that Valdez had shot and killed a police officer, Joseph D. Bock ("Bock"), with the officer's own gun while attempting to escape arrest. In the sentencing phase of Valdez's trial, the jury answered affirmatively both of the special questions posed to it pursuant to Article 37.071(b) of the Texas Code of Criminal Procedure,¹ thereby subjecting Valdez to the death penalty. In light of these two answers, the trial judge sentenced Valdez to death. Texas appellate courts uniformly denied Valdez's appeals, and the United States Supreme Court denied certiorari.² In January 1990, Valdez was appointed new counsel to pursue collateral review of his conviction, and subsequently Valdez filed a state habeas petition. In 1990, the Texas state habeas court held an evidentiary hearing to consider Valdez's petition. Over six years later, in 1997, that Texas court denied his request for habeas relief. Valdez timely filed the instant § 2254 petition in this Court.

Officer Bock's death was both needless and senseless. It was a tragedy of the sort that shatters lives, hardens hearts, and leaves many painful questions unanswered. In all reasonable probability, however, Valdez himself would not be on death row today but for his trial counsels' complete and utter failure to investigate and present available and compelling mitigating evidence to the jury during the sentencing phase of his capital murder trial. Almost everything the jurors learned about Valdez in sentencing was what the State told them: that Valdez had an extensive but non-violent criminal record. The jury was never provided the following available evidence: that this murder was the only violent episode in Valdez's life; that Valdez is mentally retarded; that Valdez was a positive influence on the lives of the people around him despite his childhood of physical and emotional abuse; and that Valdez had an exemplary record of good conduct while in prison and jail.

Clearly, Valdez deserved a punishment of severe magnitude for this heedless crime. Nonetheless, had his trial counsel discovered and presented the mitigating evidence about Valdez, there is a reasonable probability that the jury would not have found that Valdez "would commit criminal acts of violence in the future" and, thus, would not have given him the death sentence. Moreover, withholding this information from the jury was not the result of any informed judgment or strategic decision by trial counsel. As the evidence showed during both the state habeas hearing and this Court's evidentiary hearing, the jury did not learn who Valdez was before deciding whether he should die as trial counsel did not take the time to learn who Valdez was. Trial counsel had done no investigation in preparation for the sentencing phase, and thus never bothered to learn about the critical mitigating evidence that any reasonable defense attorney should have and would have uncovered and presented.

For these compelling reasons — and with the utmost sympathy, respect, and concern for all those persons who yet mourn for Joseph Bock — this Court must GRANT Valdez's application for writ of habeas corpus.

III. FINDINGS OF FACT

Valdez had a turbulent childhood hallmarked by neglect, deprivation, and abuse. At home, Valdez was frequently subjected to wanton beatings by his alcoholic father. (Evid. Hrg. Trans. Vol. I, at 290-91, 322-26.) Valdez was targeted for these beatings more often than his other siblings because he was perceived as "his mother's favorite." (Id. at 294.) When Valdez's father was not punishing his son physically, he was devising strange and embarrassing punishments for Valdez and his siblings (such as stripping them of all their clothes for hours), (id. at 293), and prohibiting their friends from visiting the house, (id. at 298). Valdez was annually taken out of school to work in the beet fields of Colorado. (Id. at 297-98.)

At school, Valdez failed consistently, and, when entering sixth grade at 13, was administered the Wechsler Intelligence Scale for Children by a certified school district examiner. (Evid. Hrg. Trans. Vol. I, at 57-59; Pet.'s Ex. 3.) On this test, Valdez received I.Q. scores of 60 Verbal, 74 Performance, and 63 Full Scale.³ (Id. at 58.) Due to these low scores, Valdez was recommended for special education classes. (Id.) However, Valdez, who was failing every academic subject, dropped out of school before attending these classes. (Id. at 59.) Also, beginning at around age 14, Valdez frequently abused alcohol, marijuana, amphetamines, barbiturates, and a variety of inhalants. (Evid. Hrg. Trans. Vol. II, at 78; Pet.'s Ex. 2.)

In 1974, at age 18, Valdez was arrested in Hockley County, Texas for auto theft. (Pet.'s Ex. 2.) Valdez's court-appointed attorney recognized that Valdez may suffer from a mental deficiency of some sort, and so he obtained a court-ordered psychiatric evaluation. (Evid. Hrg. Trans. Vol. I, at 49-50.) The State's doctor diagnosed Valdez with "borderline intelligence" and "very mild signs of organic factor," attributing the latter to Valdez's long term abuse of inhalants. (Id. at 52; Pet.'s Ex. 2.) Like the school district, the doctor administered a Wechsler examination on Valdez. On this test, Valdez scored 64 Verbal, 65 Performance, and, again, 63 Full Scale.⁴ (Id.) The doctor noted that Valdez's "fund of information" was poor, citing Valdez's inability to state the number of months in a year and to describe a thermometer. (Id.) The doctor also opined that Valdez's "judgment is impaired," that "his social skills are poor," and that his "chief defense is denial." (Id. at 52-53.)

Despite this harsh upbringing, history of academic failure, and habitual substance abuse, Valdez grew into some emotional maturity in his adulthood, as related by the friends and family members with whom he developed stable and loving relationships.⁵ He was a positive influence on the children of his siblings, pushing them to obey their parents, stay in school, and keep out of trouble. (Evid. Hrg. Trans. Vol. I, at 275-76, 279-80; id. Vol. II, at 180-82, 205-06, 210, 224-25.) His family testified to a history of non-violence, an aversion to confrontation, and devotion to family. (Id. Vol. I, at 245-46, 275-76, 301; id. Vol. II, at 181-82, 206-07, 223-24.)

In September 1986, Valdez was arrested on suspicion of burglary of a Corpus Christi bar. (State's Trial Ex. 100.) By that time, he had previously been convicted of five crimes (the aforementioned auto theft, two forgeries, burglary, and receipt of a firearm by a felon).⁶ (State's Trial. Ex. 94-98.) The Judge of the 117th State Judicial District released Valdez on bond. In December 1986, he was arrested again on suspicion of a separate burglary. (State's Trial Ex. 99.) The same judge again released Valdez on bond, apparently not aware that there was also a federal warrant out for Valdez's arrest (for parole violations) at that time. (Trial Trans. Vol. XI, at 570.) In January 1987, Valdez appeared before the Judge of the 117th State Judicial District for arraignment, who allowed him to remain free on his bond. On September 9, 1987, while out on bond, Valdez was arrested on suspicion of murdering a police officer. This is the charge at the root of this petition.

A. The Offense

On September 9, 1987, Sergeant J.D. Bock of the Corpus Christi Police Department was issuing a traffic citation on the roadside, when a car driven by Valdez passed by at a high rate of speed.⁷ Bock shouted at Valdez and then pursued him in his squad car. An eyewitness testified at trial and indicated that Valdez was alone in his car when he passed Bock. Bock chased Valdez at speeds topping 100 m.p.h., and the chase apparently lasted until Valdez's vehicle blew a tire at the edge of a field outside of town. A driver who had followed the chase and then lost sight of the vehicles for about 30 seconds soon arrived at the scene. He saw Bock and Valdez wrestling, heard a gun discharge, and saw Bock bend over and fall down. The driver ran back to his own truck, heard a second shot, and then a third that went through his own rear window. As he drove away, the driver heard two more shots.

After a manhunt in the area, police officers found Valdez hiding in a field after running through a nearby farmhouse. The owner of the farmhouse, who spoke briefly with Valdez, was unharmed. In the farmhouse, underneath the cushions of a sofa, the police found Bock's service revolver. Bock's autopsy revealed that he was killed by four shots from his own gun, a .357 revolver.

Bock was only the third police officer killed in Corpus Christi history, and his shooting came as a staggering blow to the community. Local newspapers published over thirty stories about his tragic death, and the city dedicated a park...