Gutierrez v. Dretke, CIV. SA-01-CA-1033FB.
| Decision Date | 27 September 2005 |
| Docket Number | No. CIV. SA-01-CA-1033FB.,CIV. SA-01-CA-1033FB. |
| Citation | 392 F.Supp.2d 802 |
| Parties | Vincent GUTIERREZ, TDCJ No. 999262, Petitioner, v. Douglas DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Western District of Texas |
Alexander L. Calhoun, Law Office of Alexander L., Austin, TX, for Petitioner.
W. Erich Dryden, Office of the Attorney General, Austin, TX, for Respondent.
Petitioner Vincent Gutierrez filed this federal habeas corpus action pursuant to Section 2254 of Title 28 United States Code challenging his Bexar County conviction for capital murder and sentence of death. For the reasons set forth at length below, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.
There is no genuine dispute about the operative facts surrounding Vincent Gutierrez and Randy Arroyo's capital offense. On the evening of March 10, 1997, Randy Arroyo, Vincent Gutierrez, and several other persons met at the residence of Christopher Suaste to discuss Arroyo's desire to steal a Mazda RX-7 automobile for the purpose of obtaining parts for a similar vehicle Arroyo had recently acquired.1 The following morning, Suaste drove Arroyo and Gutierrez to the residence of Miguel Riojas, Arroyo's cousin.2 Riojas conversed briefly with Arroyo.3 Arroyo then returned to Suaste's car and directed Suaste to drive to a nearby apartment complex where a red Mazda RX-7 owned by Air Force Captain Jose Cobo was parked.4 Arroyo directed Suaste to park his vehicle a short distance from Cobo's red Mazda.5 As soon as Suaste did so, Gutierrez exited the vehicle and ran to the driver's side of the red Mazda.6 Arroyo followed closely behind Gutierrez.7 Suaste watched as first Gutierrez, then Arroyo, entered the driver's side of the red Mazda, and then watched the Mazda drive out of the apartment complex's parking lot.8 Suaste drove his vehicle back to his home.9 Along the way, Suaste saw Captain Cobo lying on the shoulder of the highway with blood stains on his shirt.10
Several hours later, Suaste received a pair of telephone calls, first from Arroyo and then from Gutierrez, asking Suaste to come to a location in South San Antonio to pick them up.11 Suaste and Sean Lowe drove to the location in question and picked up Arroyo and Gutierrez.12 When Lowe and Suaste arrived, Gutierrez was wearing a brown tee shirt, a pair of black gym shorts bearing the USAF logo, but the same boots he had worn when Suaste dropped off Arroyo and Gutierrez at Captain Cobo's apartment earlier that day.13 When Suaste criticized Gutierrez's strange apparel, Gutierrez explained his clothes had blood on them and he had obtained the clothes he then had on from the back of the red Mazda they had stolen earlier that day.14
When Lowe and Suaste questioned Arroyo and Gutierrez about what had happened, Gutierrez laughingly explained: (1) he had forced Cobo at gunpoint to move to the passenger seat of the red Mazda and then climbed into the rear of the vehicle, (2) Arroyo drove the vehicle from the apartment complex, (3) when Cobo begged for his life and offered his wallet, Gutierrez reassured Cobo he would be released, (4) nonetheless, Cobo attempted to exit the vehicle but was restrained by a seat belt, (5) at that point, Gutierrez grabbed Cobo to prevent him from leaping from the moving vehicle, (6) Arroyo yelled (7) Gutierrez fired his pistol twice, striking Cobo in the back, (8) Cobo began choking and coughing up blood, (9) as the robbers drove on, Gutierrez informed Arroyo he did not want to drive around with a "dead man" in the car with them, (10) Gutierrez directed Arroyo to slow the vehicle and, (11) when Arroyo did so, Gutierrez opened the passenger door, grabbed Cobo, and shoved Cobo out of the moving vehicle onto the shoulder of the highway.15 Gutierrez also displayed two spent shell casings he identified as having come from the fatal shots.16
Later that evening, when a television news report about Cobo's murder was broadcast on the local news, Gutierrez again described his fatal shooting of Cobo and laughingly told others at Suaste's apartment that Cobo got what he deserved for trying to escape.17 Later still that same evening, Arroyo voluntarily confessed his involvement in Cobo's murder and led police to the .357 caliber handgun Gutierrez had used to kill Cobo, as well as the .25 caliber handgun Arroyo had carried during Cobo's robbery and kidnaping.18
On May 28, 1997, a Bexar County grand jury indicted Arroyo, Gutierrez, and Suaste on charges of capital murder arising from Captain Cobo's murder.19
At a hearing December 1, 1997, the prosecution announced it had reached an agreement to sever the case against Suaste from that of Arroyo and Gutierrez.20 Arroyo and Gutierrez both moved for severance of their joint capital murder trial.21 During the course of that hearing, the prosecution expressly and specifically represented it had no intention of presenting any testimony at a joint trial establishing that either of the remaining two codefendants had made any oral statements implicating the other defendant unless the trial court first authorized the admission of such testimony at a hearing outside the jury's presence.22 Based on those representations, the state trial court denied both motions for severance.23
At a hearing held January 16, 1998, both defendants re-urged their motions for severance and the state trial court denied same but admonished the prosecution that it would not admit any oral statements made by either of the co-defendants which implicated the other defendant in Cobo's murder.24
The guilt-innocence phase of Arroyo's and Gutierrez's joint capital murder trial commenced on February 23, 1998. In addition to Suaste's testimony, summarized above,25 the jury heard testimony from Sean Lowe substantially corroborating Suaste's account of Gutierrez's purported narrative of Cobo's robbery, kidnaping and murder.26 The medical examiner testified Cobo died from two gun shot wounds to the back, either of which would have independently proven fatal.27 The prosecution introduced testimony from law enforcement officers and others regarding the recovery of Cobo's abandoned vehicle and Gutierrez's blood-stained clothing, both from locations near where Suaste and Lowe had picked up Gutierrez and Arroyo shortly after the murder.28 Several other prosecution witnesses testified they had observed either Cobo's struggle to exit the red Mazda or Cobo's limp body being pushed from the moving vehicle during morning rush hour traffic.29 A prosecution ballistics expert testified the .357 handgun to which Arroyo led police on the evening of the murder had fired both a bullet that fell out of Captain Cobo's chest when an Air Force flight surgeon attempted cardiopulmonary resuscitation at the scene where Cobo's body had been thrown and another bullet recovered from the floorboard of Cobo's red Mazda.30 A prosecution DNA expert testified that the blood found on Gutierrez's clothing in a dumpster matched that of Captain Cobo.31 Another prosecution witness identified the black USAF gym shorts and brown tee shirt worn by Gutierrez when Suaste and Lowe picked up Arroyo and Gutierrez shortly after the murder as similar to exercise clothing Captain Cobo kept in his vehicle.32
While Arroyo offered no evidence at the guilt-innocence phase of trial, Gutierrez presented a single alibi witness and argued that Sean Lowe was the person who actually shot Cobo.33
On March 2, 1998, the jury returned its verdicts, finding both Arroyo and Gutierrez guilty of capital murder.34
After Arroyo and Gutierrez unsuccessfully moved for severance of the punishment phase of the joint trial,35 the trial continued on March 3, 1998. The prosecution's punishment phase witnesses testified regarding (1) an incident on July 15, 1996, in which Arroyo grabbed a 13-year-old boy in a headlock and repeatedly punched the boy in the mouth, causing the boy extensive injuries,36 (2) Arroyo's association with a violent gang,37 (3) Arroyo's persistently violent behavior and threatening conduct during pretrial detention,38 (4) an incident on September 23, 1995, in which Arroyo was a passenger in a car from which Miguel Riojas fired numerous shots into the home of rival gang members,39 (5) an incident in November, 1994, in which Arroyo and several other youths stole a car and drove it to a fast-food restaurant,40 (6) an incident in which Arroyo and others fired shots at a pair of vehicles in which members of a rival gang were riding,41 (7) an incident on June 16, 1996, in which Arroyo fired a gun just outside a pool hall after an altercation inside the establishment involving Arroyo's father,42 (8) an incident on March 6, 1997, in which Arroyo held a gun to the head of a 13-year-old girl and demanded she engage in sex with him, Gutierrez, Suaste, and Lowe,43 (9) numerous instances of violent, threatening conduct by Arroyo at school,44 and (10) numerous incidents of violent conduct by Arroyo at the apartment complex where he lived with his alcoholic father.45
The prosecution also presented testimony (1) from several witnesses regarding a string of burglaries to which Gutierrez pleaded guilty,46 (2) concerning Gutierrez's leadership role in the Puro Mexican Kings gang,47 (3) regarding an incident on November 9, 1997, in which Gutierrez fought another jail inmate,48 (4) about numerous instances of misbehavior by Gutierrez at...
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