Hernandez v. Thaler

• Decision Date: 13 May 2011
• Docket Number: Civil No. SA–08–CA–827–OG.
• Parties: Ramon Torres HERNANDEZ, Petitioner,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Western District of Texas

787 F.Supp.2d 504

Ramon Torres HERNANDEZ, Petitioner,
v.
Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil No. SA–08–CA–827–OG.

United States District Court, W.D. Texas, San Antonio Division.

May 13, 2011.

[787 F.Supp.2d 509]

Robin R. Norris, Jr., Attorney at Law, El Paso, TX, for Petitioner.Tomee Morgan Heining, Office of the Attorney General, Austin, TX, for Respondent.MEMORANDUM OPINION AND ORDER DENYING RELIEF ORLANDO L. GARCIA, District Judge.

Petitioner Ramon Torres Hernandez filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his October, 2002 Bexar County conviction for capital murder and sentence of death. For the reasons set forth hereinafter, petitioner is entitled to neither federal habeas relief nor a Certificate of Appealability from this Court.

I. Background A. The Cold Case

On the evening of December 16, 1994, a pair of middle school girls, cousins Sarah Gonzales and Priscilla Almares, disappeared while walking together not far from Sarah's residence in the Timber Creek area of San Antonio.¹ On December 17, 1994, a group of employees from an automobile

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dealership and their families out delivering Christmas baskets to needy families discovered the lifeless bodies of Sarah and Priscilla lying in the high brush along side a road.² The medical examiner testified both girls' bodies showed signs of severe sexual assault and asphyxiation by strangulation, possibly either manual or ligature.³ Sarah's sexual assault kit revealed no sperm.⁴ Priscilla's vaginal slide did not reveal any sperm but her anal slide did show the presence of sperm.⁵ DNA testing employing the techniques available in 1995 managed only to exclude two gang members whom law enforcement officers were investigating at that time. ⁶ The trail of Sarah and Priscilla's killer quickly grew cold until DNA testing performed in 2001 showed petitioner's DNA to be a match for the sperm fraction of Priscilla's anal swab.⁷B. The Disappearance of Rosa Rosado

On the evening of March 31, 2001, Rosa Maria Rosado disappeared while en route to work.⁸

C. The Confession of Asel Abdygapparova

On April 5, 2011, Asel Abdygapparova met with a San Antonio Police Homicide

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Detective and gave a five-page written statement detailing her knowledge of Rosado's abduction, robbery, sexual assault, and murder by petitioner Ramon Hernandez and Santos Minjarez.⁹ On April 6,

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2011, Abdygapparova led police to a clearing near the University of Texas at San Antonio campus off 1604 and Chase Hill Boulevard where police found Rosado's body-buried in a shallow grave.¹⁰ Abdygapparova also led police to the motel where she informed police petitioner and Minjarez had held Rosado during her final hours.¹¹D. Petitioner's Arrest and First Interrogation (April 6, 2001)

San Antonio Police arrested petitioner during the early morning hours of April 6, 2001.¹² From approximately 2:25 to 5:00 a.m. on April 6, 2011, San Antonio Police Detectives John Kellogg and Andrew Carian interviewed petitioner after giving petitioner his Miranda warnings.¹³ Initially, petitioner denied knowing either Minjarez or Abdygapparova.¹⁴ Petitioner eventually admitted he knew Minjarez but then asked for an attorney and his interview promptly halted.¹⁵

E. Petitioner's Second Interrogation (April 7, 2001).

Around 11:45 a.m. on April 7, 2001, petitioner met with Bexar County Adult Detention Center social worker Kim Robinson and, shortly thereafter, with BCADC intake and release supervisor Rogelio

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Contreras.¹⁶ Deputy Contreras notified the San Antonio Police Department's homicide office that petitioner wished to speak with detective Carian.¹⁷ Later that same date, detectives Carian and Kellogg met with petitioner at the BCADC and, after again being given his Miranda warnings, petitioner agreed to be transported to the San Antonio Police for the purpose of giving a formal written statement.¹⁸ Petitioner thereafter gave a nine-page, written statement which petitioner reviewed and edited very carefully.¹⁹ In his written statement executed April 7, 2001, petitioner stated (1) he and Minjarez decided to rob Rosado when they spotted her near a bus stop, (2) he drove the vehicle during Rosado's abduction, but (3) Minjarez was the person who actually sexually assaulted and murdered Rosado.²⁰ Petitioner does not claim there was any factually inaccurate information contained in his written statement.²¹F. Indictment

On March 12, 2003, a Bexar County grand jury indicted petitioner in cause no. 2002–CR–1613 on a single Count of capital murder, alleging four different theories of that offense.²² More specifically, petitioner was charged with (1) having intentionally and knowingly murdered Rosado while in the course of committing and attempting to commit the predicate felonies of aggravated sexual assault, kidnaping, and robbery upon Rosado and (2) having committed more than one murder (i.e., the murders of Rosa Rosado, Sarah Gonzales, and Priscilla Almares) during different criminal transactions but pursuant to the same scheme and course of conduct.²³

G. Petitioner's Motion to Suppress His Statement

On March 20, 2002, the state trial court held an evidentiary hearing on petitioner's motion to suppress, as involuntary, his written statement. Petitioner did not testify during the hearing on his motion to suppress.

The social worker with whom petitioner spoke on the morning of April 7, 2001

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testified (1) petitioner appeared anxious when she spoke with him, (2) when petitioner indicated he wanted to get something off his chest, she halted her interview of petitioner and had the booking sergeant take petitioner away, (3) while petitioner was anxious and upset, she did not consider him suicidal, and (4) petitioner's exact words to her were that he would feel better if he got something off his chest.²⁴

A San Antonio Police detective testified (1) on April 7, 2001, he received a call from the jail around 11:40 a.m. saying that a person arrested in a homicide wished to talk regarding the case, (2) he paged Detective Carian, and (3) the day before, i.e., on April 6, 2011, petitioner's interview with Detective Carian had terminated as soon as petitioner asked for an attorney. ²⁵

The detective who took petitioner's written statement on April 7, 2001 testified (1) he had contact with Asel Abdygapparova on April 6, 2001 and Abdygapparova furnished information which led to the discovery of Rosado's body and the arrests of petitioner and Minjarez, (2) Abdygapparova identified petitioner as her boyfriend and identified a motel from which evidence was recovered, (3) after petitioner's arrest on April 6, 2001, he personally read petitioner his rights off a printed card, (4) petitioner claimed initially that he didn't know Minjarez or Abdygapparova, (5) petitioner later admitted he knew Minjarez but denied any knowledge of the offense and then requested a lawyer, (6) the following date, April 7, 2001, while in Austin, he received a page shortly before noon indicating the petitioner wanted to speak with him, (7) when he arrived at the BCADC, he once more read petitioner his rights, (8) petitioner indicated he was willing to talk with police and to go to the police homicide office, (9) petitioner claimed Minjarez actually committed the offense, (10) petitioner carefully edited the first and final drafts of the written statement, making many changes thereto, (11) no promises or threats were made to petitioner to induce petitioner's statement, (12) petitioner indicated he understood his rights, (13) petitioner was furnished with drinks and snacks and given restroom breaks during his interview, (14) the detective was unaware petitioner was taking any prescribed medications for depression or that petitioner had been in contact with the BCADC's mental health department, (15) petitioner's demeanor during his April 7, 2001 interview was “serious,” not emotional, (16) he did confront petitioner with the statements of both Abdygapparova and Minjarez, and (17) petitioner appeared to have a rational understanding of the facts of the case, made sense, and did not appear to be “out of it” or to be unaware of what was going on.²⁶

At the conclusion of the hearing, the state trial judge denied petitioner's motion to suppress petitioner's written statement.²⁷

H. Additional DNA Testing

More sophisticated DNA testing revealed that (1) petitioner could not be excluded as a possible donor of the sperm fraction of the anal swab from Priscilla Almares' rape kit ²⁸ and (2) Minjarez could

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not be excluded as a possible source of semen found on a carpet stain in the motel room to which Abdygapparova led police.²⁹I. Guilt–Innocence Phase of Trial

The guilt-innocence phase of petitioner's capital murder trial commenced on October 1, 2002.

1. The Prosecution's Case

In addition to the evidence summarized above, including petitioner's written statement which was read in open court, the jury also heard testimony from the Bexar County medical examiner who testified (1) Rosado died as a result of asphyxiation, (2) Rosado's body showed indications that pressure had been applied to the back of her neck, causing hemorrhaging into the whites of her eyes, (3) he was unable to determine the precise manner in which Rosado had been asphyxiated, (4) both Sarah Gonzales and Priscilla Almares were strangled but he was unable to determine if the precise method of strangulation was manual or a ligature, (5) to cause death by strangulation, it would be necessary to apply pressure for somewhere between ninety seconds to two and a half minutes, (6) unconsciousness can be achieved in the average adult by applying pressure to the neck for ten to fifteen seconds, (7) Rosado suffered reddish and greenish bruises on her face, forehead, chin, the bridge of her nose, and...