Holberg v. Davis

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
PartiesBRITTANY MARLOWE HOLBERG, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division Respondent.
Docket Number2:15-CV-285-Z
Decision Date13 August 2021


LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division Respondent.

No. 2:15-CV-285-Z

United States District Court, N.D. Texas, Amarillo Division

August 13, 2021



Brittany Marlowe Holberg (“Holberg”) is a Texas prisoner sentenced to death for capital murder. In March 1998, a Texas jury convicted Holberg for the November 1996 death by stabbing of A.B. Towery, Sr. (“Towery”), in his home. See State v. Holberg, 38 S.W.3d 137 (Tex. Crim. App. 2000).[1] She now petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In relevant part, Holberg filed an amended federal petition alleging:

▪ Prosecutorial Misconduct
▪ Ineffective Assistance of Trial Counsel
▪ Insufficient Evidence
▪ Improper Jury Argument
▪ Voir Dire Error;
▪ Improper Exclusion of Evidence;
▪ Jury Charge Error;
▪ Cumulative Error; and
▪ Challenges to the Texas Death Penalty Statute.

For the reasons stated below, Holberg is not entitled to federal habeas corpus relief or a certificate of appealability from this Court. The following sections will restate relevant background information that the record contains elsewhere.[2]

I. Guilt-Innocence Phase

The guilt-innocence phase of Holberg's capital murder trial began on March 3, 1998. The prosecution and defense presented the following evidence and arguments:

A. Prosecution's Evidence

On the morning of November 14, 1996, A.B. Towery, Jr. (“Towery, Jr.”), traveled to the Princess Apartments to check on his father Towery because Towery was not answering the telephone. Towery, Jr., found his father's body on the floor with a lamp protruding from his mouth and a paring knife in his abdomen. Towery's pants pockets were inside out, and his billfold, which contained $1 in cash, lay open on his body. 18/28 RR 54-56, 61-62, 308-10, 315-16, 319; 19/28 RR 35-36; 27/28 RR 82 (SX SP26A); 28/28 RR 52 (DX 19). Towery suffered 58 sharp-force injuries to his head, face, and body, as well as a chipped skull and a “pulverized” nose. 19/28 RR 289-300. Holberg forced a lamp down Towery's throat nicking his carotid artery while he was still alive. 19/28 RR 302-03, 316; 27/28 RR 41; 7 CR (2010-2012) 1740. Towery was 80 years old, measured 5 feet and 6 inches, and weighed 162 pounds. 19/28 RR 287. The police recovered the following bloodied items at the scene: a hammer, three forks, a butcher knife with hair on it, a grapefruit knife, a cast-iron skillet, and a steam iron. 18/28 RR 105, 108-14. A $10 bill lay next to Towery's body, a $20 bill was on the bathroom floor, and a $100 bill and another $20 bill were in the bedroom. 19/28 RR 55, 65, 67. Nine bloody palm prints or fingerprints at the scene matched Holberg's fingerprints. 18/28 RR 94-103, 151-53.

Law enforcement arrested Holberg three months later in Memphis, Tennessee. 18/28 RR 172-75. Holberg told the Memphis police that she had killed Towery in self-defense. She stated that she had been using cocaine for ten days prior to the murder. She further stated that a friend told her that Towery was a “good trick.”[3] This prompted her to travel by cab to his apartment, knock on his door, and tell him that she had to use the telephone. Once inside, she asked Towery if he wanted to have sex. Towery agreed to have sex and gave her $200. She further told the police that while she was removing her pants, Towery began to beat her severely on the head without provocation. Holberg and Towery then fought for forty-five minutes.

Ultimately, Holberg claimed she killed Towery using a knife and a pan in self-defense. Holberg dressed in Towery's clothes, traveled to a truck stop, and left town. She could not remember the name of the apartment complex where Towery lived. Contrary to what she would later testify at trial, Holberg stated that she met Towery for the first time on the day that she killed him. Holberg denied taking any of his money other than the $200 that he paid for sex. 18/28 RR 180-83, 191-200; 27/28 RR 28-31 (SX 167).

On February 20, 1997, a Randall County deputy sheriff and an Amarillo police officer transported Holberg back to Texas. During the drive, Holberg again related that (1) a friend had set up the date with Towery, (2) she used a pretense about needing to make a telephone call to gain access to his apartment, (3) she killed him in self-defense, and (4) he had given her two $100 bills. 19/28 RR 68-72, 89-92. Holberg asked the officers rhetorically why she would “kill a man for $1, 400” when she was making $2, 000 daily and had a drug addiction costing her $900 each day.[4]19/28 RR 69-73.

1. Testimony of Towery's Relatives

Towery's relatives testified at trial that Towery had between $1, 200 to $1, 300 in $100 bills in his wallet before he died. 18/28 RR 291-92, 308-10; 19/28 RR 32. They also testified that he suffered from ulcers and gout in both knees, shuffled slowly when he walked, and abused pain medication - as evidenced by the dozens of prescription pill bottles littering his apartment. 18/28 RR 289, 300-301, 305-06; 19/28 RR 6, 13-14, 17-20, 23-24, 32. Towery's sons testified that their father previously abused alcohol but stopped drinking about ten years before his death. They further testified that Towery did not invite female visitors or possess sexually explicit material in his apartment. 18/28 RR 293-97, 310-14. Towery, Jr., testified that his father's doorbell at the Princess Apartments did not work at the time of his death and had not worked for quite some time. 18/28 RR 316-17.

2. Testimony of Donald Owens and Jamie Tietz

Taxi driver Donald Owens (“Owens”) testified that he transported Holberg via taxi to the Princess Apartments on November 13, 1996. Holberg told Owens that her boyfriend lived at the apartment complex and would pay the cab fare. Owens stated that he had never seen Holberg prior to that day. At Holberg's request, Owens stopped at a grocery store where she unsuccessfully attempted to fill a drug prescription. When Owens and Holberg arrived at the Princess Apartments shortly before 5:00 p.m., Holberg exited the cab and proceeded to ring the call buttons for every apartment, “hoping somebody would open the door.” 19/28 RR 47. When this plan failed, Holberg instructed Owens to drive her to the manager's office in a different building so that the maintenance man could grant her entrance. Holberg exited the cab, entered the office, but never returned to the cab. The apartment manager Jamie Tietz (“Tietz”) later told Owens that Holberg had walked through the door leading to the apartments' interior courtyard. 19/28 RR 40-49.

Although Tietz could not identify Holberg at trial, Tietz testified that a young lady had asked to use the bathroom that day. Tietz requested the assistance of maintenance personnel because the situation seemed “strange.” 19/28 RR 132-38. The two maintenance men assisting Tietz watched Holberg exit the office. These men testified that Holberg walked toward an access gate in the courtyard. At the same time, Towery approached the gate from outside the courtyard with groceries in hand. Towery and Holberg spoke briefly, and Towery pointed in the direction of his apartment. Holberg walked in that direction, went around the corner, and entered the apartment building. 19/28 RR 114-18, 155-58.

3. Testimony of Misty Votaw's and Cody Mayo

At about 7 p.m. that evening, a couple in a nearby apartment complex, Misty Votaw (“Votaw”) and Cody Mayo (“Mayo”), agreed to drive Holberg to a different destination. They testified before the jury that Holberg identified herself as “Brittany, ” stating that her boyfriend had physically assaulted her. Votaw and Mayo noticed blood on the corner of Holberg's mouth and offered to summon medical attention, but she declined their offer. Holberg paid them with two $100 bills, one of which had blood on it. Holberg had at least ten additional $100 bills that she counted in front of them. 19/28 RR 164-99; 21/28 RR 64.

4. Dimitris Pettus's Testimony

Dimitris Pettus (“Pettus”) observed Holberg exit Votaw's car near a residence used in the illicit distribution of crack cocaine - colloquially known as a “crack house.” Pettus would later tell the police that Holberg had a deep cut on her thumb, bruises on her knuckles, and scratches on her face, neck, and chest. Holberg had initially told Pettus that random girls had physically assaulted her but later stated that she had been in a fight with a “trick.” Pettus testified that Holberg had $100 bills and some twenties on her person. Holberg spent between $900 and $1, 000 dollars on cocaine and paid for a motel room that evening. 19/28 RR 204-21.

5. Vicki Kirkpatrick's Testimony

Vicki Kirkpatrick (“Kirkpatrick”) testified that she and Holberg discussed the murder while incarcerated together in the county jail. Kirkpatrick's testimony is the source of several claims raised in Holberg's petition and discussed below. Kirkpatrick testified that Holberg described the victim as one of her “sugar daddies” who had given her money for years. Additionally, she testified Holberg told her that Towery refused to give her money. Holberg told Kirkpatrick that they fought after she reached for money in his shirt pocket and he grabbed her arm in response. Kirkpatrick testified that Holberg described the blood issuing from Towery as “pretty, like a fountain” and described the stabbing as “fun and amazing.” Kirkpatrick also testified that Holberg told her she jammed a lamp down his throat because he would not stop gurgling, and then Holberg showered and left the apartment without taking all of Towery's money. Kirkpatrick stated Holberg expressed no remorse and said that she would do it all over again for drug money. 19/28 RR 231-49.

6. Pamela Schwartz's Testimony


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