Ex Parte Martinez

• Decision Date: 28 June 2006
• Docket Number: No. AP-75086.,AP-75086.
• Citation: 195 S.W.3d 713
• Parties: Ex Parte José Noey MARTINEZ, Applicant.
• Court: Texas Court of Criminal Appeals

195 S.W.3d 713

Ex Parte José Noey MARTINEZ, Applicant.

No. AP-75086.

Court of Criminal Appeals of Texas.

June 28, 2006.

Alexander L. Calhoun, Austin, for appellant.

Theodore C. Hake, Asst. Crim. Dist. Atty., Edinburg, Matthew Paul, State's Attorney, Austin, for the State.

OPINION

HOLCOMB, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, PRICE, and COCHRAN, JJ., joined.

In 1996, applicant José Noey Martinez was convicted of capital murder and sentenced to death. On direct appeal, we affirmed the conviction and sentence. Martinez v. State, No. AP-72,704 (Tex. Crim.App.1999) (not designated for publication). In 1999, applicant filed a writ of habeas corpus, claiming, inter alia, that he received ineffective assistance of counsel at the punishment phase of trial because (1) "trial counsel failed to investigate and present a statutorily recognized mitigating defense of temporary insanity resulting from drug intoxication," and (2), "trial counsel failed to conduct an adequate investigation of mitigating evidence in the form of physical, emotional, and sexual abuse and neglect in applicant's background." We ordered these claims filed and set.

Procedural Background

The convicting court issued an order designating the following issues, i.e., whether trial counsel:

a. were ineffective at the punishment phase of Applicant's trial for allegedly failing to investigate and present a mitigating defense of temporary insanity resulting from drug intoxication;

b. were ineffective for allegedly failing to investigate and present evidence that Applicant's use of rohypnol, and possibly alcohol, cocaine, and marihuana, on the evening in question had affected his mental condition at the time of the offense;

c. were ineffective for allegedly failing to investigate and present evidence in support of a claim that the amount of rohypnol ingested by Applicant on the night in question caused him to not understand or appreciate the wrongfulness of the conduct at the time he committed the offense;

d. were ineffective for allegedly failing to investigate and present evidence in support of an argument that Applicant had been intoxicated on rohypnol at the time he committed this capital murder and that this should be a factor which mitigated against imposition of a death sentence;

e. were ineffective for allegedly failing to investigate and present evidence in support of a claim that Applicant had suffered heightened aggressive tendencies, or a rage reaction, from taking rohypnol on the night in question;

f. were ineffective for allegedly failing to develop evidence concerning, and question the witnesses about, the extent of Applicant's intoxication on the night in question;

g. were ineffective at the punishment phase of the trial for allegedly failing to conduct an adequate investigation of mitigating evidence in the form of physical, emotional, and sexual abuse and neglect in Applicant's background;

h. were ineffective for allegedly failing to conduct sufficient investigation and locate evidence allegedly showing that Applicant and his brother had been sexually abused as children;

i. were ineffective for allegedly ... locating and presenting only a small part of the available evidence about his family background and circumstances which had allegedly been available;

j. were ineffective, in particular, for [] locating and presenting only a small part of the alleged evidence that Applicant had been the victim of severe physical and emotional abuse and neglect, as well as possible sexual abuse by his father and mother;

k. were ineffective for allegedly not contacting the witnesses who could have testified about these matters or not asking them the appropriate questions to discover this information;

l. were ineffective for allegedly not utilizing these witnesses, who were allegedly available and willing to testify on Applicant's behalf;

m. were ineffective for allegedly not discovering or presenting evidence that Applicant and his brother Brian had been physically beaten and suffered emotional abuse from their step-grandfather; that the Harris County Child Protective Services had been involved with the family for several years; and that his mother had also beaten him and his brother and been verbally abusive[;]

n. were ineffective for allegedly not doing anything to substantiate the extent of the abuse; for not presenting any testimony by relatives who had personally observed the abuse; and for conducting an investigation, and presenting a case, which did not uncover or present any evidence of the abuse which Applicant's mother allegedly inflicted on Applicant and his brothers or present any evidence of any alleged sexual abuse at all.

In order to resolve these issues, trial counsel, Roberto Flores and Fela Olivarez, were ordered to file affidavits. After considerable delay, the affidavits were ultimately filed in 2003. Thereafter, the convicting court entered findings of fact and conclusions of law and recommended denying relief. Upon our review of the writ and the convicting court's order, we were not satisfied that the affidavits of counsel were adequate to resolve the factual issues, and we ordered a second evidentiary hearing on applicant's Sixth Amendment claims. The convicting court heard live testimony from applicant's trial attorneys and considered additional affidavits from some of applicant's family members and an investigator. The convicting court entered supplemental findings of fact and conclusions of law and again recommended denying relief. Based on the affidavits filed by trial counsel, all the affidavits in support of and in response to the writ, the evidence presented at the live hearing, and the evidence presented at the trial proper, we conclude that trial counsel did not render ineffective assistance and deny the relief sought.

The Trial Proper

The evidence at trial showed that in the early morning hours of February 19, 1995, applicant broke into the home of Esperanza Palomo with intent to steal a TV and some stereo equipment. Esperanza, who was 68 years old at the time of the offense, was babysitting her blind five-year-old granddaughter, Amanda, while Amanda's parents went out.

Earlier in the day, Amanda and her parents, Oscar and Patricia Palomo, visited and had lunch with Esperanza in her home. Later that evening, Oscar and Patricia went out for a night of dancing. When Amanda's parents returned to Esperanza's house, they knocked on the door, but no one answered. Oscar entered through a side window and discovered his mother's and daughter's bodies.

Both Esperanza and Amanda were lying in pools of blood and had been stabbed multiple times with a knife. Esperanza had been raped. Esperanza's night clothes were pushed up around her neck, and her underwear had been removed. Amanda had been wearing underwear, but they also had been removed.¹ In vain, the hysterical couple administered CPR to Amanda and called 911.

Not more than one hour after the murders, applicant told several of his friends, including his cousin Roberto Galvan, that he had killed two people. He repeatedly said to them, "I killed her; I can't believe I killed them." Another acquaintance, Michelle Foley, who saw applicant after the murders, testified that applicant said he could not believe he had killed two people and that he wanted to go back and get the knife he left at the crime scene. Then, on his way to his father's house, applicant encountered his paternal aunt, Lisa Martinez, and told her that he had killed two people. When applicant arrived at his father's house, he told his father and his father's girlfriend that he had robbed and murdered two people. Applicant's father called police after applicant discarded the bloody clothing he was wearing and said that he was going to return to the scene of the murders to dispose of evidence and retrieve his knife. Applicant was apprehended on his way back to Esperanza's home. Once arrested, and while en route to the sheriff's department, applicant indicated that he wanted to confess to the murders, saying that he "really f____d up this time" and "want[ed] to tell [the officer] everything ...." Applicant later made oral and written statements to police, confessing to both murders. Blood, hair, and semen samples identified applicant as the perpetrator. Police recovered several pieces of jewelry and a telephone identified as Esperanza's from applicant; Applicant's fingerprint was found on the telephone.

In his written confession, which was admitted before the jury, applicant provided details of the offense. Applicant stated that he was at his grandparents' house before committing the offense. He explained that Esperanza's house was located across the street, and he went there with the intent to rob her. Applicant broke in through the front door by cutting through the outer screen door, unlatching it, and shoving open the front door with his shoulder. Once inside, he explained, Esperanza came toward him swinging a baseball bat. Applicant stabbed her, and she fell to the floor immediately.² Applicant then "got on top of her," "pulled up her gown" "past her breast," and "began to rape her." Applicant stated that, initially, Esperanza "wasn't fighting me because we have been seeing each other for a while"; that he had "been with her earlier that afternoon about 2:00 p.m."; that "[e]verytime I would go to her house, she wanted me to make love to her"; and that "[s]he is the type of lady that goes to bars and sleeps around with a lot of men." Applicant said he stabbed Esperanza several times. After killing and raping Esperanza, applicant heard Amanda "yelling and crying" from the bedroom. He then went into her room and

climbed on top of her. I hit her once in the face and I thought she had fallen asleep. I then began to play with myself on top of the little girl. I played with myself until I came on top of the girl. I think I came on her stomach or on her...