Moore v. Quarterman, Civil No. SA-03-CA-405-RF.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtRoyal Furgeson
Citation526 F.Supp.2d 654
PartiesFrank MOORE, Petitioner, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
Docket NumberCivil No. SA-03-CA-405-RF.
Decision Date20 December 2007
526 F.Supp.2d 654
Frank MOORE, Petitioner,
v.
Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
Civil No. SA-03-CA-405-RF.
United States District Court, W.D. Texas, San Antonio Division.
December 20, 2007.

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David K. Sergi, David K. Sergi & Associates, P.C., San Marcos, TX, Larry Warner, Law Office of Larry Warner, Brownsville, TX, Richard Emil Langlois, Langlois & Snyder, San Antonio, TX, for Petitioner.

Baxter R. Morgan, Kelli L. Weaver, Thomas M. Jones, Assistant Attorney General, Tomee Morgan Heining, Office of the Attorney General of Texas, Austin, TX, for Respondent.

MEMORANDUM OPINION AND ORDER DENYING RELIEF

ROYAL FURGESON, District Judge.


Petitioner Frank Moore filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his July, 1999 Bexar County conviction for capital murder and sentence of death. For the reasons set forth below, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability.

I. Statement of the Case

A. The Events of January 21, 1994

There is no genuine dispute over the facts that (1) during the early morning hours of January 21, 1994, petitioner took an assault rifle and shot several times into a vehicle occupied by Patrick Clark (age 15) and Samuel Boyd (age 23) and (2) both Clark and Boyd died as a result of multiple gunshot wounds they each sustained in that incident.

B. Indictment

On April 13, 1994, a Bexar County grand jury indicted petitioner on a charge of capital murder, to wit, intentionally and fatally shooting both Clark and Boyd with a deadly weapon during the same criminal transaction.1

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C. Petitioner's First Trial, Appeal, and State Habeas Proceeding

On June 20, 1996, a Bexar County jury convicted petitioner of capital murder.2 On June 24, 1996, the same jury found (1) beyond a reasonable there was a probability petitioner would commit criminal acts of violence constituting a continuing threat to society and (2) there were insufficient mitigating circumstances to warrant a sentence of life imprisonment for petitioner.3 The state trial court imposed a sentence of death.4

Petitioner appealed his conviction and sentence.5 In an opinion issued June 10, 1998, the Texas Court of Criminal Appeals reversed petitioner's conviction, holding the state trial court had erred in denying petitioner's requests for jury instructions on the lesser-included offenses of voluntary manslaughter and murder. Moore v. State, 969 S.W.2d 4, 10-13 (Tex.Crim.App.1998)(holding the trial testimony of petitioner's half-brother Tyron Parks raised questions regarding whether petitioner was acting under the influence of sudden passion when he shot Clark and Boyd and that there was evidence (again Parks' testimony) from which a jury could conclude petitioner had acted in self-defense with regard to the fatal shooting of Clark).

On June 20, 1997, petitioner filed an application for state habeas corpus relief.6 On January 27, 1999, the Texas Court of Criminal Appeals dismissed petitioner's first state habeas corpus application. Ex parte Frank Moore, App. no. 40,046-01 (Tex.Crim.App. January 27, 1999).

D. Retrial

1. Guilt-Innocence Phase

The guilt-innocence phase of petitioner's second capital murder trial commenced on July 6, 1999.

a. Prosecution's Evidence

As it had at petitioner's first trial, the cornerstone of the prosecution's case against petitioner consisted of the eyewitness testimony of Angela Wallace.7 At petitioner's second trial, Ms. Wallace testified in pertinent part that (1) she had observed Boyd and petitioner shake hands and greet each other amicably inside the club several hours before the shootings, (2) she observed nothing exceptional about either Boyd's or Clark's demeanor while they were inside the club, (3) as she exited

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the club, she observed several men, including Boyd, Clark, and another man, engaged in a confrontation during which one participant in the confrontation shoved another person, (4) at that point, the men engaged in the confrontation scattered, (5) a white vehicle drove into the club's parking lot and stopped, (6) the white vehicle did not strike petitioner and did not back up, (7) she neither saw nor head anyone threaten petitioner, (8) the petitioner walked to the rear of the white vehicle and Ivory Sheffield tossed petitioner a rifle, (9) once he received the rifle, petitioner aimed and began shooting directly into the white vehicle, (10) she neither saw nor heard any shots being fired prior to petitioner opening fire with the rifle, (11) she observed no immediate threat to petitioner at the time he began shooting into the white vehicle, and (12) after he stopped shooting, petitioner passed the rifle back to Sheffield, got into his vehicle, and drove away from the scene.8

The medical examiner testified (1) Clark died as a result of a total of five, non-close-range, gunshot wounds to the head (two) and upper back (three), all of which traveled from the back to the front, (2) any one of these five gunshot wounds would have been fatal, (3) Boyd died as a result of six, non-close-range, gunshot wounds to his head, neck, chest, arm, shoulder, and thigh, (4) Boyd's head, neck, and chest wounds were all fatal wounds but wounds to Boyd's arm were not life-threatening, (5) all of the gunshot wounds to both victims were consistent with someone standing outside the left rear, i.e., the driver's side, of their vehicle firing a rifle into their vehicle from a distance of at least three and a half feet, (6) Clark's blood screen and vitreous alcohol levels indicated he was acutely intoxicated on alcohol and muscle relaxants at the time of his death, and (7) Boyd had a blood alcohol level of 0.28 g/deciliter and was also acutely intoxicated at the time of his death.9

Police recovered six spent shell casings and two spent bullets from the crime scene from locations which were consistent with Wallace's description of petitioner's location at the time he fired into the white vehicle, i.e., outside the rear of the vehicle's driver's side.10 All of the spent shell casings and bullets the police recovered at the crime scene were later matched to a rifle police recovered during their subsequent investigation of the crime.11 Police recovered no other weapons, spent shell casings, or bullets linked to either victim.12

Barbara J. Boyd, who was Patrick Clark's older sister and Samuel Boyd's sister-in-law, testified (1) Angela Wallace, whom she had never seen before, arrived at her residence and drove Barbara and other members of her family back to the

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crime scene shortly after the shooting, (2) they arrived at the club before any police, (3) when they arrived, Clark was laying on the ground and Samuel Boyd was still inside the white car but no one else was inside or near the white car, (4) she called out to Samuel to wake up but he never did, (5) she then entered the club and called EMS and the police, (6) she next went back outside and flagged down a police vehicle, and (7) at no time did she see anyone going through the white car or touching Clark's or Boyd's body.13

b. The Defense's Evidence

The defense presented the disjointed testimony of Robert Mays, Jr., who testified (1) around closing time, he went outside the Wheels of Joy club on January 21, 1994, (2) he heard some guys say they were going to get their stuff, which he construed as meaning they planned to get guns and return to the scene, (3) he heard angry words exchanged between individuals outside the club, (4) two-to-three men with guns, including a rifle, in a white car tried to run over Mays and his cousin Tyron Parks in the parking lot, (5) earlier that evening, several of the individual inside the white car had calmly spoken inside the club of shooting Mays, (6) after unsuccessfully striking Mays the first time, the white car backed up and tried to run down Mays three or four more times, and (7) he left the scene and had been gone from the scene for five-to-ten minutes before he heard shooting coming from the direction of the club's parking lot.14 Mays' testimony was full of contradictions. For instance, Mays claimed the petitioner was still inside the club when the white vehicle attempted to run Mays over but he then contradicted himself, testifying the petitioner was outside the club when that happened.15 Mays also testified he left the scene before any shots were fired but then claimed the individuals inside the white car fired at least six shots at Mays as he fled the parking lot.16 Mays claimed he went inside the club to seek sanctuary after the white car tried to run him down but then left the club and ran away as three or four individuals inside the white car got out of that vehicle and fired shots at him.17 Mays claimed he never saw petitioner fire into the white car because he had been gone from the scene for five or ten minutes before he heard (presumably more) gun shots.18

c. Waiver of Lesser-Included Offense Instructions

Both at the close of the prosecution's case and during the charge conference at the guilt-innocence phase of trial, petitioner expressly advised the trial court that, despite his own trial counsel's advice to the contrary, petitioner did not want the trial court to include any instructions on lesser-included offenses in the trial court's guilt-innocence phase jury instructions.19

d. The Verdict

On July 8, 1999, the jury returned its verdict, finding petitioner guilty of capital murder.20

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2. Punishment Phase

The punishment phase of petitioner's capital trial commenced on July 9, 1999.

a. Prosecution's Evidence

The prosecution...

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16 practice notes
  • Jasper v. Thaler, CIVIL NO. SA-08-CA-735-FB
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • January 19, 2011
    ...and opinions of this Court rejecting the same arguments contained in petitioner Jaspers's ninth claim); see Moore v. Quarterman, 526 F. Supp. 2d 654, 720-21 (W.D.Tex. 2007)(Judge Furgeson discussing the long line of Fifth Circuit opinions, as well as numerous opinions from district courts i......
  • Garza v. Thaler, Civil No. SA–09–CA–528–OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 18, 2012
    ...opinions and opinions of this Court rejecting the same arguments contained in petitioner's fifth claim herein); Moore v. Quarterman, 526 F.Supp.2d 654, 720–21 (W.D.Tex.2007) (discussing the long line of Fifth Circuit opinions, as well as numerous opinions from this Court, rejecting the same......
  • Hernandez v. Davis, EP-15-CV-51-PRM
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • May 23, 2017
    ...there is no constitutional right to have a capital sentencing jury informed of the effect of a hung jury); Moore v. Quarterman, 526 F.Supp.2d 654, 729-30 (W.D. Tex. 2007).Page 145 Likewise, Petitioner's reliance upon the Supreme Court's holdings in McKoy v. North Carolina20 and Mills is unp......
  • Young v. Stephens, CIVIL NO. MO-07-CA-002-RAJ
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 7, 2014
    ...there is no constitutional right to have a capital sentencing jury informed of the effect of a hung jury); Moore v. Quarterman, 526 F.Supp.2d 654, 729-30 (W.D. Tex. 2007)(holding there is no constitutional requirement that a capital sentencing jury be informed of the consequences of a hung ......
  • Request a trial to view additional results
16 cases
  • Jasper v. Thaler, CIVIL NO. SA-08-CA-735-FB
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • January 19, 2011
    ...and opinions of this Court rejecting the same arguments contained in petitioner Jaspers's ninth claim); see Moore v. Quarterman, 526 F. Supp. 2d 654, 720-21 (W.D.Tex. 2007)(Judge Furgeson discussing the long line of Fifth Circuit opinions, as well as numerous opinions from district courts i......
  • Garza v. Thaler, Civil No. SA–09–CA–528–OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 18, 2012
    ...opinions and opinions of this Court rejecting the same arguments contained in petitioner's fifth claim herein); Moore v. Quarterman, 526 F.Supp.2d 654, 720–21 (W.D.Tex.2007) (discussing the long line of Fifth Circuit opinions, as well as numerous opinions from this Court, rejecting the same......
  • Hernandez v. Davis, EP-15-CV-51-PRM
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • May 23, 2017
    ...there is no constitutional right to have a capital sentencing jury informed of the effect of a hung jury); Moore v. Quarterman, 526 F.Supp.2d 654, 729-30 (W.D. Tex. 2007).Page 145 Likewise, Petitioner's reliance upon the Supreme Court's holdings in McKoy v. North Carolina20 and Mills is unp......
  • Young v. Stephens, CIVIL NO. MO-07-CA-002-RAJ
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 7, 2014
    ...there is no constitutional right to have a capital sentencing jury informed of the effect of a hung jury); Moore v. Quarterman, 526 F.Supp.2d 654, 729-30 (W.D. Tex. 2007)(holding there is no constitutional requirement that a capital sentencing jury be informed of the consequences of a hung ......
  • Request a trial to view additional results

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