Arzate v. Davis

• Court: U.S. District Court — Southern District of Texas
• Writing for the Court: SIM LAKE UNITED STATES DISTRICT JUDGE
• Decision Date: 07 September 2017
• Docket Number: CIVIL ACTION NO. H-16-3782
• Citation: Arzate v. Davis, CIVIL ACTION NO. H-16-3782 (S.D. Tex. Sep 07, 2017)
• Parties: FRANCISCO ARZATE, TDCJ #01821766, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.

FRANCISCO ARZATE, TDCJ #01821766, Petitioner, v. LORIE DAVIS, Director, Texas Department ofCriminal Justice - CorrectionalInstitutions Division, Respondent.

CIVIL ACTION NO. H-16-3782

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ENTERED: September 8, 2017

September 7, 2017

MEMORANDUM OPINION AND ORDER

Francisco Arzate has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1), seeking relief under 28 U.S.C. § 2254 from a capital murder conviction that resulted in a sentence of life imprisonment. The respondent has filed a Motion for Summary Judgment with Brief in Support ("Respondent's Motion") (Docket Entry No. 18), along with a copy of the state court records (Docket Entry Nos. 14-17). Arzate has filed Petitioner's Reply to Respondent's Motion for Summary Judgment with Brief and Affidavit in Support ("Petitioner's Reply") (Docket Entry No. 19). After considering all of the pleadings, the state court record, and the applicable law, the court will grant Respondent's Motion and will dismiss this action for the reasons explained below.

I. Background

A grand jury returned an indictment against Arzate in Harris County cause number 1317247, charging him with capital murder for killing his father-in-law, Guillermo Valdez, by shooting him with a deadly weapon, a firearm, while committing burglary of Valdez's habitation.¹ The state presented evidence that Arzate shot his father-in-law and his mother-in-law, Maria Valdez, multiple times during the same incident,² which stemmed from a dispute with his wife, Patricia, from whom Arzate was separated.³ On November 12, 2012, a jury in the 232nd District Court of Harris County, Texas, found Arzate guilty as charged in the indictment.⁴ Because the state did not seek the death penalty, the trial court automatically sentenced Arzate to life without parole pursuant to § 12.31(a)(2) of the Texas Penal Code.⁵

On direct appeal Arzate challenged the legal sufficiency of the evidence to support his conviction.⁶ An intermediate court ofappeals rejected that argument after summarizing the evidence presented at trial as follows:

Arzate was married to Maria and Guillermo Valdez's daughter, Patricia, for almost ten years, but he and Patricia had separated two years before the incident. Patricia and Arzate had five children. Patricia testified that she and Arzate had an unstable relationship and often fought and that she moved to her parents' home upon her separation from Arzate. In August 2011, Arzate was upset because he had recently learned that Patricia was in a relationship with another man. Arzate had called Patricia upset about her boyfriend and threatened that he would take action if Patricia did not end that relationship.

Patricia testified that on the day of the incident, August, 19, 2011, she talked to Arzate about paying school tuition, but they did not fight, and it was a "normal day." Arzate left a voicemail on Patricia's phone around 11:30 p.m. that night saying that "he was suffering so [Patricia was] going to suffer the same way that he was suffering." Patricia was at the hospital with her oldest son that night, but she called her sister because the voicemail worried her. A few minutes later, Maria called Patricia and told her that Arzate had shot Maria and Guillermo.

Although Patricia was not at her parents' home at the time of the shooting, several others were. Maria testified that she and Guillermo were in their bedroom watching television with the door closed late at night when Maria heard a noise. Guillermo opened the bedroom door, Maria heard Arzate say "he was going to kill us," and Arzate began shooting at Maria and Guillermo. Maria testified that she had heard Arzate's voice on many occasions and immediately recognized it. Maria also testified that she saw the side of the shooter's body and it looked like Arzate. On the night of the shooting, Maria told police that she saw only the shooter's shadow, and not the shooter's face.

Guillermo and Maria's other daughter, Elizabeth, was also at the scene. She had fallen asleep in one of the bedrooms a little after midnight, but she woke up when she heard Arzate screaming in Spanish from the living room several times, "where's the bastard?" Elizabeththen heard gunshots and Maria screaming, so she ran to the living room and saw that the front door, which had been closed and locked, was open and appeared to have been forced open. She saw that Guillermo was lying on his back — shot more than once — and Maria was bleeding. When Elizabeth saw Maria, Maria was screaming, "why Francisco, why?" and Elizabeth believed that Maria was referring to Arzate. Elizabeth did not see the shooter, but she testified that there was no doubt in her mind that the voice she heard yelling "where is the bastard?" was the voice of Arzate.

Elizabeth's thirteen year old son, Heron, was also home and sleeping on the living room couch when the shooting took place. Heron testified that he also heard Arzate yelling, "where was the bastard at?" Heron did not see Arzate on the night of the shooting, but recognized his voice because he had often visited Arzate's house. Heron also testified that he heard Maria say, "why Francisco, why?"

By the time police and EMS arrived, Guillermo was dead from four gunshot wounds. Arzate called Patricia after the incident, but she did not answer.

The day after the shooting, Arzate called his employer, Richard Gonzalez, and told him "that he wasn't going to be coming in because he had an issue, something happened with his family and he doesn't know if he's ever going to come back." Gonzalez testified that during the same phone call, Arzate also said, "what happened happened."

The police suspected Arzate was the shooter and that he had fled to Mexico shortly after the shooting. Arzate's brother and sister testified that Arzate went to Mexico but added that the trip was a planned vacation to visit family. Patricia testified that this was Arzate's first trip to Mexico and that he would not have vacationed there because he did not have documentation that would allow him to re-enter the United States.

A few months after the shooting, Arzate sent Patricia a text message that said, "I'm sorry. Are you guys okay. Are my kids okay." Patricia testified that Arzate also called her from Mexico. In one such call, Arzate, who had said he was angry that Patricia was not taking his calls, threatened Patricia by saying that "The same thing that he did to [her] dad he was going to do it to [her]grandma, that he knew where she lived and he was going to go over there and get her also."

Patricia also testified that Arzate attempted to have her create an alibi for him. In a letter, Arzate wrote: "do it for our children and for the love we had between us. You know it wasn't my fault about your father. Why do you want to take your children's father away." The letter continued: "If you feel something in your heart you tell the lawyer that I was in Mexico."

Arzate also called Gonzalez and threatened that Gonzalez would suffer the same fate as Guillermo. When Arzate left for Mexico, Arzate had left his car and tools with Gonzalez. Gonzalez testified that Arzate told him that if Gonzalez did not pay Arzate's brother for the vehicle and his tools, that he "was going to kill me and come after my family." Gonzalez testified that Arzate added, "If you don't believe me you saw what happened to my in-laws."

Arzate v. State, No. 01-12-01074-CR, 2013 WL 6670854, at *1-2 (Tex. App. — Houston [1st Dist.] Dec. 17, 2013). The Texas Court of Criminal Appeals refused Arzate's petition for discretionary review.⁷

Shortly after Arzate's conviction was affirmed on direct appeal he received a letter from the Harris County DistrictAttorney's Office.⁸ That letter, which is dated May 20, 2014, advised Arzate that Sergeant Ryan Chandler of the Houston Police Department ("HPD") Homicide Division, who investigated Arzate's case, had been fired on April 4, 2014, for (1) falsifying an offense report by documenting a conversation with an Assistant District Attorney who advised him to refer the case to a grand jury for review while never forwarding the case to the District Attorney's Office; and (2) making untruthful and misleading statements during an ensuing investigation of that incident by the HPD Internal Affairs Division ("IAD").⁹ At a press conference about the termination, then-HPD Chief Charles A. McClelland, Jr., commented that Chandler was fired because he was "lazy" and he was "a liar."¹⁰

In a state habeas corpus application filed on June 20, 2016, Arzate argued that he was entitled to relief from his conviction because Chandler conducted an inadequate investigation.¹¹ Arzate argued further that he was denied effective assistance of counsel at his trial and that one of the state's key witnesses "violatedthe witness rule" by discussing the case with another person who had been in court listening to the testimony.¹² The state habeas corpus court, which also presided over Arzate's trial, entered findings of fact and concluded that he was not entitled to relief.¹³ The Texas Court of Criminal Appeals agreed and denied relief without a written order on the trial court's findings.¹⁴

Arzate now seeks a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge his capital murder conviction.¹⁵ Arzate raises the following grounds for relief:

1. The state violated his right to due process by suppressing evidence that the lead homicide investigator (Chandler) was fired for dishonesty and incompetence.

2. There was insufficient evidence to support his conviction.

3. He was denied effective assistance of counsel when his trial attorney failed to impeach Richard Gonzalez.

4. He was denied due process when the trial court failed or refused to strike the testimony of a witness who violated Rule 614 of the Texas Rules of Evidence.¹⁶

The respondent moves for summary judgment, arguing that Arzate is not...