Cortez v. Director, CIVIL ACTION NO. 4:13cv83

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
PartiesRAUL CORTEZ, #999543, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
Docket NumberCIVIL ACTION NO. 4:13cv83
Decision Date29 March 2016

RAUL CORTEZ, #999543, Petitioner,



March 29, 2016


Petitioner Raul Cortez, 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. Cortez is challenging his capital murder conviction and death sentence imposed by the 416th Judicial District Court of Collin County, Texas in Cause Number 416-82415-07, in a case styled The State of Texas v. Raul Cortez. For reasons set forth below, the Court finds that the petition is not well-taken and that it will be denied.

Procedural History of the Case

On February 2, 2009, Cortez was convicted of the offense of capital murder for shooting and killing Austin York in the course of committing the offense of robbery and burglary, in violation of Tex. Penal Code § 19.03(a)(2). The Texas Court of Criminal Appeals ("TCCA") affirmed the conviction and death sentence. Cortez v. State, No. AP-76101, 2011 WL 4088105 (Tex. Crim. App. Sept. 14, 2011) (unpublished). Cortez did not file a petition for a writ of certiorari.

Cortez filed an application for a writ of habeas corpus in state court on May 31, 2011. An evidentiary hearing was conducted beginning on April 30, 2012. The state trial court issued extensive

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findings of fact and conclusions of law on November 2, 2012. The TCCA subsequently denied relief based on the trial court's findings and conclusions and on its own review. Ex parte Cortez, No. WR-78666-01, 2013 WL 458197, at *1 (Tex. Crim. App. Feb. 6, 2013) (unpublished).

Cortez began the present proceedings on February 14, 2013. He filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 4, 2014 (Dkt. #24). He filed an amended petition on May 6, 2014 (Dkt. #26). The Director filed an answer (Dkt. #38) on January 26, 2015. Coretz filed a reply (Dkt. #44) on July 11, 2015. Pursuant to an order of the Court, Cortez filed another amended petition for a writ of habeas corpus (Dkt. #49) on September 30, 2015. The parties were placed on notice that the latter amended petition is the operative petition in the case (Dkt. #48). The Director filed an answer (Dkt. #50) on November 20, 2015. Cortez did not file a reply.

Factual Background of the Case

The TCCA thoroughly discussed the factual background of the case as follows:

Cortez, his brother Javier, and Eddie Williams developed a plan to take money from Rosa Barbosa, who worked as a cashier at Cliff's Check Cashing. The plan ended on March 12, 2004, at Rosa's house, with quadruple homicide—Rosa, her nephew Mark Barbosa, and Mark's two friends York and Matt Self each died after being shot in the head.

Several individuals confessed to the murders over the course of approximately three years, but all of them were eventually excluded as suspects by investigators. The murders remained unsolved until May 2007, when Williams's common-law wife informed police that Williams knew who committed the offense. After Williams's father died, Williams told his wife that Javier and Cortez committed the murders. Williams had been friends with Javier and, in the past, Williams had sold marijuana for him. Javier had introduced Williams to his brother Cortez. Williams voluntarily accompanied investigators to the police station, where his confession began. Williams informed investigators that he and the Cortez brothers were involved in the offense. At first, Williams minimized his role but, in the end, he took responsibility for two of the murders.

At Cortez's trial, Williams testified about the events surrounding the execution-style murders. Williams was charged with capital murder and did not have any agreement with the State in exchange for his testimony.

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About two weeks before the offense, Williams accompanied Cortez to a pawn shop where Cortez purchased a chrome .25 caliber automatic handgun. They also stopped at a nearby "spy shop" where Cortez purchased handcuffs. Williams returned to the pawn shop with Cortez to pick up the gun after the requisite waiting period passed. At some point before the offense, Cortez tested the gun by shooting it at the ceiling in his house. Javier was stationed outside in the back yard to determine if he could hear the shot.

On the day of the offense, Javier and Cortez picked up Williams at home in Javier's white, four-door Cavalier and went to Cortez's house. Cortez took out a black pistol-grip shotgun, a .38 caliber revolver, and a chrome .380 automatic handgun. Cortez gave the .380 to Williams and told him that it did not work. The three hung out and smoked marijuana. Javier then asked Williams if he wanted to go with them to a woman's (Rosa's) house and rob her. Javier told Williams that he had been watching Rosa for a while and knew that she would take a blue money bag home from Cliff's Check Cashing to cash checks for illegal immigrants from Mexico. Javier had followed Rosa home the night before the offense and knew that she had a car, which Williams indicated would be used as a getaway car. Javier and Cortez instructed Williams about his role—Williams was to knock on Rosa's door and inquire about a lost puppy. Williams explained his reasons for participating in the offense—he believed that Rosa would have "thousands," and he needed money.

The three set out for Rosa's house on foot. Javier and Williams took one route while Cortez took a separate route. Cortez carried the .38, the .25, plastic zip ties, latex gloves, duct tape, and masks in a black gym bag. Cortez was already at Rosa's house when Javier and Williams arrived. Javier and Cortez then started to put on the latex gloves and masks. Williams noticed that they also put on black gloves over the latex gloves. Cortez carried the .25, Javier had the .38., and Williams had the .380. Williams knocked on the door and, when Rosa answered, he asked her if she had seen his lost puppy. Cortez and Javier ran around Williams and pushed Rosa down inside the house. Williams observed that Rosa was handcuffed when Javier closed the door. Cortez and Javier then picked up Rosa, took her to her bedroom, and pushed her onto the bed. Rosa's head hit the bed, and she fell to the floor. Cortez taped Rosa's hands behind her back and removed the handcuffs. When Javier asked Rosa where the money was, she told them she did not have any money. Javier then asked Rosa for her alarm pin number and keys to Cliff's Check Cashing. Williams testified that Rosa gave them the keys and code. Williams heard a "pop" after Cortez "disappeared" into Rosa's room.

When Cortez returned to the living room, the three boys-Mark, York, and Self, unexpectedly entered the front door. Cortez "opened fire." Two of the boys headed towards Mark's bedroom, while one went out the front door. Cortez brought the boy back in and put him in Mark's room. Cortez gave Williams the .25, took the .38 from Javier, and ordered Williams to shoot the boys. Williams shot Mark once in the head and shot the other boy twice-once on the shoulder and once in the head. Williams handed the gun back to Cortez, and Cortez shot the third boy in the head. Williams and Javier headed out to Self's truck, which was in the driveway, and heard more shots coming from the house before Cortez exited.

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Williams testified that, at some point during the offense, Cortez had taken Williams's latex gloves because Cortez's got "busted."

Javier drove the three to Cliff's Check Cashing in Self's truck. Javier went inside and ran back outside when the alarm sounded. Javier could not find the safe. Javier told them that Rosa gave them a false alarm code.

Javier then drove them to Cortez's house. Javier and Williams got into Javier's car and followed Cortez, who took over driving Self's truck. Williams asked Javier to drop him off at home, but Javier continued to follow Cortez. They headed south towards Dallas on Highway 75. Javier said, "[W]e'll take this to our grave." Cortez then abandoned the truck in an apartment complex after wiping his fingerprints from the truck. Cortez sat behind Williams in Javier's car and, while they were on the highway, Cortez broke the guns down and threw the pieces out the window. Javier then took Williams home.

Mark's brother and his friend arrived at Rosa's house shortly after the offense and discovered the bodies. Rosa was in her bedroom lying face down on the floor. She had red duct tape around her mouth and a tightened zip-tie around her neck. Her hands were not bound. Mark, York, and Self were in Mark's bedroom. Mark was on his bed with his head hanging toward the floor. York was slumped over at the end of Mark's bed. Self was on the floor near York. Mark's brother observed that Self had a gunshot wound to the head, which dislodged one of his eyes from the socket. Self was still breathing, however, and the paramedics were able to transport him by helicopter to Baylor Hospital. Self later died after his parents decided to remove him from life support.

The Collin County medical examiner testified that there was evidence that Rosa's hands had been bound and that she had been strangled. He stated that Rosa had a blunt-force injury to the left side of her face. She had a gun-shot wound at the back of her head on the left side. The medical examiner also discovered pieces of latex glove stuck to the duct tape that had been wrapped around her head and mouth. The medical examiner testified that York had three gun-shot wounds. One was located at the back-left of York's head. The medical examiner recovered an intermediate caliber bullet that had a blue coating. The second wound was on the right back-side of York's neck, and the third wound was on York's back-right shoulder area. The medical examiner testified that the bullets from those wounds were from a smaller caliber gun. The medical examiner discovered two wounds on

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