Hernandez v. Davis

Decision Date23 May 2017
Docket NumberEP-15-CV-51-PRM
PartiesFABIAN HERNANDEZ, TDCJ No. 999553 Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
CourtU.S. District Court — Western District of Texas

On this day, the Court considered Petitioner Fabian Hernandez's "First Amended Petition for a Writ of Habeas Corpus" (ECF No. 34)1 [hereinafter "Amended Petition"] filed on January 27, 2016; Respondent Lorie Davis's "Answer with Brief In Support" (ECF No. 46) [hereinafter "Answer"], filed on June 8, 2016; and Petitioner's "Reply to Respondent's Answer" (ECF No. 49) [hereinafter "Reply], filed on July 28, 2016, in the above-captioned cause.

Pursuant to 28 U.S.C. §§ 2241(d), 2254, Petitioner challenges the death sentence that the state trial court imposed in his case after a jury found him guilty of capital murder. The Texas Court of Criminal Appeals affirmed his conviction and sentence,2 and denied his petition for state habeas relief.3 For the reasons discussed below, the Court concludes that Petitioner is entitled to neither federal habeas corpus relief nor a certificate of appealability.

A. Guilt-Innocence Phase of Trial

Evidence presented during the guilt-innocence phase of Petitioner's trial revealed the following factual scenario.

Petitioner became romantically involved with Rene Urbina (Urbina Hernandez)4 and together they had two children. 66 Rep. R. 63. Petitioner and Urbina Hernandez had a tumultuous relationship,which led to several brief periods of separation. 66 Rep. R. 303-305; 67 Rep. R. 68-70; 69 Rep. R. 15-17, 28. Petitioner and Urbina Hernandez eventually married on March 23, 2004. 66 Rep. R. 67; 69 Rep. R. 17; 69 Rep. R. 12. Their relationship remained tumultuous, however, and they permanently separated in April of 2006. 66 Rep. R. 61; 67 Rep. R. 68.

On November 2, 2006, Petitioner encountered Diesta Dee Torres, an acquaintance of over twelve years, at an El Paso bar at approximately 10:00 p.m. 66 Rep. R. 271, 275. Petitioner, who had been consuming alcohol, confided in Torres regarding his deep sadness about the course of his life, and his concern for his estranged wife and their children. 66 Rep. R. 276-77; 67 Rep. R. 8. Petitioner and Torres left the bar together, and Petitioner asked Torres to drive him to a nearby hotel, where Petitioner planned to spend the night. 66 Rep. R. 278-80. As Torres drove Petitioner to the hotel, Petitioner asked Torres to let him exit the vehicle at an intersection within walking distance from Urbina Hernandez's home. 66 Rep. R. 272, 280-92, 294; 68 Rep. R. 14. At that time, Urbina Hernandez lived with her mother and two children. 66 Rep. R. 272, 294; 68 Rep. R. 14.

That same evening, Urbina Hernandez's sister, Cynthia Estevez, was waiting at the Urbina Hernandez residence for Urbina Hernandez to return home. 66 Rep. R. 38-44. A little after two o'clock in the morning of November 3, 2006, Estevez heard three gunshots in fairly rapid succession outside of the house. Id. at 46, 66-67. When Estevez went outside to investigate, she saw the body of her sister's friend, Arturo Fonseca, lying prone on the ground at the curb between two parked vehicles. Id. at 57-58, 129-30. As Estevez rushed back inside to call for emergency-medical assistance, her mother passed by her and exited the house. Id. at 49. When Estevez returned outside, she saw her mother crying over another body lying supine on the road, which she recognized as her sister, Urbina Hernandez. Id. at 49-52.

A neighbor, Isela Cordero, woke up at approximately 2:20 a.m. that morning to care for a sick child. Id. As she returned to her bedroom, she heard some "pops" outside, peered out her living room window, and saw a white, two-door Honda driving away slowly. 66 Rep. R. 95-99.

Crime scene technicians from the El Paso Police Departmentarrived at the scene and recovered three shell casings coated with an unusual green lacquer sealant. 66 Rep. R. 156; 67 Rep. R. 120-22. The Medical Examiner confirmed during an autopsy that Urbina Hernandez died from a gunshot to her forehead, fired at point blank range, which killed her almost immediately. 66 Rep. R. 167-79. The Medical Examiner also confirmed that Fonseca died from a close range gunshot to the back of his head, which exited through his left temple. Id. at 182-92.

At approximately four o'clock that morning, Petitioner arrived at the trailer home of his life-long friend, Sergio Carrasco; Carrasco lent his car keys to Petitioner and provided Petitioner with some blankets before going back to sleep. 67 Rep. R. 39-43, 51-53, 57-58. Petitioner left the trailer home before Carrasco arose again to get ready for work. Id. at 82, 92.

Carrasco went to work that morning, but he returned home during his lunch break. When he did, he noticed a white, two-door Honda parked behind his trailer, covered with the same blankets that he had provided Petitioner earlier that morning. Id. at 56. After Carrascoreturned to work, detectives contacted him and asked him to return to his trailer home. Id. at 63. When Carrasco arrived, law enforcement officers had already determined that the car parked behind the trailer belonged to Fonseca. 66 Rep. R. 209, 218, 225.

Law enforcement officers were also dispatched to Petitioner's father's residence, where they found Petitioner. 26 Rep. R. 14-18, 20-31, 38-63; 27 Rep. R. 55-56, 65. Based on information that Petitioner provided, officers also discovered a .380 caliber semi-automatic handgun and a box of ammunition with a distinctive green sealant over the primer in Petitioner's father's house. 66 Rep. R. 236-41; 67 Rep. R. 120-22; 68 Rep. R. 50-55. A Department of Public Safety forensic firearms examiner confirmed that all of the shell casings discovered at the murder scene were fired from the same weapon recovered from Petitioner's father's residence. 67 Rep. R. 101-25.

At the conclusion of the guilt-innocence phase of trial, the jury found Petitioner guilty beyond a reasonable doubt of the capital murders of Urbina Hernandez and Fonseca, as charged in the indictment. 68 Rep. R. 152.

B. Punishment Phase of Trial

The prosecution sought a death sentence in Petitioner's case.5 To secure a death sentence, the prosecution relied on Petitioner's affiliation with the Barrio Azteca criminal enterprise.6 69 Rep. R. 60-74; 70 Rep.R. 94-158. A gang intelligence officer with the El Paso County Sheriff's Department, Officer Jose Soria, testified that Petitioner was a confirmed Barrio Azteca member. 69 Rep. R. 64, 71-72. The prosecution also relied on a letter Petitioner wrote while in jail and awaiting trial, which called for fellow Barrio Azteca members to murder prosecution witnesses Torres and Carrasco—both of whom were also Petitioner's long-time friends. 69 Rep. R. 81-91; 70 Rep. R. 7, 27-35, 150-56. Officer Soria explained that the letter was addressed to another known Barrio Azteca member and was signed "Spook," Petitioner's gang moniker. 69 Rep. R. 83, 89-90. In addition to this letter, the prosecution introduced other letters in which Petitioner sought to have other individuals assaulted in retaliation for their actions against the Barrio Azteca. 70 Rep. R. 124-49.

The prosecution also presented evidence that Petitioner had a prior conviction in New Mexico for manslaughter when he was eighteen years of age, and two prior convictions in Texas for misdemeanor theft. 70 Rep. R. 124; 71 Rep. R. 41-49; 72 Rep. R. 89-90, 109, 116, 124-33, 173.

In an effort to avoid a death sentence, defense counsel presented evidence explaining the circumstances of Petitioner's manslaughter conviction. 71 Rep. R. 41-49; 72 Rep. R. 125-33. Petitioner's sister, Diane Hernandez Valdez, testified that the conviction resulted from an altercation in which she was involved with other individuals. 71 Rep. R. 41-45. She testified that Petitioner only became involved in response to a direct challenge. 71 Rep. R. 41-45. Hernandez Valdez claimed she fought until she heard a gunshot. Id. at 46-47. She explained that Petitioner had shot someone in the throat. Id. at 92.

A Bureau Chief in the New Mexico Department of Corrections, Colleen McCarney, testified about Petitioner's non-violent behavior during his incarceration for manslaughter from July 1994 through June 1996. 72 Rep. R. 42-106. An inmate-classification expert, Frank AuBuchon, explained that the Texas Department of Criminal Justice ("TDCJ") would likely be able to control Petitioner's actions in prison. 73 Rep. R. 5-84. A forensic psychologist, Dr. Mark Douglass Cunningham, testified, based on his statistical analysis and review of Petitioner's records, that there was a "very low risk" that Petitionerwould commit acts of violence while in prison. 74 Rep. R. 217-29, 274-306.

Defense counsel also presented testimony from several family members and friends regarding Petitioner's disadvantaged childhood, which included evidence that his father was an alcoholic who failed to provide guidance during Petitioner's formative years and was verbally abusive toward Petitioner's mother. 71 Rep. R. 29-35, 120-23, 145-56, 185-86, 205-12, 238-40, 268-80; 72 Rep. R. 20-24; 74 RR 237-58.

Petitioner's family and friends also testified that Urbina Hernandez was verbally abusive toward Petitioner. 71 Rep. R. 51-57, 175, 224-27, 237-42; 72 Rep. R. 24-31, 140-43; 74 Rep. R. 260. The defense presented testimony that Urbina Hernandez was condescending toward Petitioner and would insult, embarrass, and humiliate him in front of his family; specifically, Urbina Hernandez would call him names in front of his family, yell obscenities at him in front of their children, throw items, and mistreat Petitioner in front of his mother. 71 Rep. R. 57, 224-26; 72 Rep. R. 142-43; 74 Rep. R. 260.

Another major component of Petitioner's mitigation case involvedhis alleged impaired intellectual development and deficiencies. Petitioner's mother...

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