Sorto v. Stephens

• Decision Date: 30 September 2015
• Docket Number: H-10-CV-613
• Parties: WALTER ALEXANDER SORTO, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

WALTER ALEXANDER SORTO, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

H-10-CV-613

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

September 30, 2015

MEMORANDUM AND ORDER

In 2003, a Texas jury convicted Walter Alexander Sorto of capital murder and sentenced him to death. After unsuccessfully availing himself of Texas' appellate and habeas remedies, Sorto petitions for federal habeas corpus relief. (Docket Entry Nos. 1, 15, 31.) Respondent William Stephens has filed an answer arguing that procedural limitations and substantive federal law make habeas relief unavailable. (Docket Entry No. 36.) Sorto has filed a reply. (Docket Entry No. 37.) After considering the record, the pleadings, and the applicable law, the Court finds that Sorto has not shown an entitlement to habeas relief. Accordingly, the Court will DENY Sorto's petition.

BACKGROUND

On the morning of June 1, 2002, the police received a report of a vehicle sitting in the middle of the street in an industrial area of Houston, Texas. Tr. Vol. 27 at 145-47, 152.¹ The police found two female bodies inside the vehicle. Id. at 152. Blood stained the rear interior ofthe vehicle and the area around the rear passenger door. Id. at 147, 155, 162, 167. The police identified the deceased women as Maria Rangel and Roxana Capulin, both of whom had been missing since leaving their jobs at El Mirado restaurant the night before. Id. at 219.

Ms. Rangel, who was still wearing her apron from work, had duct tape binding her hands, mouth, and eyes. Id. at 162-63, 219-20. Ms. Capulin had duct tape over her eyes and mouth. Tr. Vol. 27 at 162. Both corpses bore signs of sexual trauma. Tr. Vol. 30 at 44-45; Tr. Vol. 33 at 79-99. Ms. Rangel had been shot twice in the head. Tr. Vol. 30 at 43-44. Ms. Capulin died from a single gunshot wound. Id. at 43-44.

Ms. Rangel and Ms. Capulin had been working until closing time on May 31, 2002. Tr. Vol. 27 at 75. Other than a witness who saw the women talking to two men outside the restaurant after closing, no one had provided the police with any information about what had transpired.² The police were stymied in their investigation for more than two months. Id. at 224; Tr. Vol. 29 at 52.

On August 20, 2002, a confidential informant contacted Harris County Sheriff's Deputy Miguel Gonzalez with information about the killings. Tr. Vol. 28 at 17. Deputy Gonzalez and Detective Alejandro Ortiz arranged to meet the informant at a hotel that evening. Id. at 19-20. Sorto was with the informant at the hotel when the officers arrived. Sorto told the police officers that he had information about the murders. Id. at 22-23.³ Sorto told the officers that, although he was not a participant in the offense, he had seen Edgardo Cubas and Eduardo Navarro, ateenager, abduct the two women. Id. at 23-25. He claimed to have left, however, when he heard gunshots. Id. at 25.

Considering Sorto a witness to a double murder, Detective Ortiz asked him to continue the interview at the Harris County Sheriff's homicide office. Tr. Vol. 24 at 16-18; Tr. Vol. 28 at 43-44, 54-56. The police and Sorto traveled there in separate vehicles. Tr. Vol. 24 at 16-17; Tr. Vol. 28 at 58. At the homicide office, Sorto first repeated the story he had told the officers at the hotel. Compare Tr. Vol. 28 at 23-25 with Tr. Vol. 41, State's Ex. 1A at 5-23. After an hour of discussion, Detective Ortiz left Sorto "kind of stunned" by asking for a saliva sample. Tr. Vol. 34 at 61. Sorto asked: "What is this exam? Is it pretty good, 100 percent or what?" Tr. Vol. 29 at 10. According to Detective Ortiz, Sorto then began to "change the story." Tr. Vol. 24 at 56. He said that, after Cubas had shot the two women, Cubas forced Sorto to return to the scene and have sex with Ms. Rangel's corpse. Tr. Vol. 41, State's Ex. 1A at 49-52.

After learning that Sorto had an outstanding arrest warrant, Detective Ortiz took him into custody. Tr. Vol. 24 at 33. In a series of subsequent interrogations, Sorto admitted to committing several crimes, many of which also involved Cubas. Tr. Vol. 41, State's Ex. 5B; Tr. Vol. 42, State's Exs. 6, 7, 8. Importantly, in an interview beginning at about 8:25 a.m. the following morning, Sorto gave the police a different version of the murders of Ms. Rangel and Ms. Capulin, this time admitting to having participated in sexual assault. Tr. Vol. 41, State's Ex. 5B at 32-45. The Texas Court of Criminal Appeals summarized Sorto's confession as follows:

Cubas picked [Sorto] up in his Honda Accord at about 8:30 p.m. and they picked up fourteen-year-old Navarro. [Sorto] and Cubas went to a few bars while Navarro waited in the car; then they went looking for a bar that would admit Navarro. Cubas, who was in possession of a 9-millimeter Beretta pistol, said that he wanted to commit a robbery because he needed money to pay rent. They were driving on Canal Street when they saw two women coming out of a restaurant. Cubas parked in a nearby parking lot, got out of the car, and approached thewomen from behind as they were walking toward the Durango. Cubas motioned for [Sorto] to come over to them, and Cubas made Roxana Capulin give [Sorto] the keys. Ms. Capulin sat in the back seat with Cubas, Maria Rangel sat in the middle seat, and [Sorto] drove the vehicle. As [Sorto] drove to an area near "Dixie and Wayside," Cubas placed tape over the eyes and mouths of the women and bound Ms. Rangel's hands with tape. Cubas wanted to sexually assault Roxana Capulin, so he told Ms. Rangel "to get down from the truck" when they stopped. Ms. Rangel fell out of the car onto the ground. [Sorto] also got out of the car, and Cubas stayed inside with Roxana Capulin. When Ms. Rangel later got too close to the car, Cubas pointed the gun at her and told her to take her clothes off. He told [Sorto] "to fuck her by force," and [Sorto] "gave her like 3 thrusts" and ejaculated. [Sorto] then "fixed . . . her pants" and put her back inside the Durango, where Cubas was forcing Ms. Capulin to perform oral sex on him.

Sorto v. State, 173 S.W.3d 469, 474 (Tex. Crim. App. 2005). Although he confessed to kidnapping and rape, Sorto still maintained that he was not involved in the murders. He told the police that, as Cubas continued the sexual assault of Ms. Capulin, he:

told Cubas to let the women go. He drove the car a short distance, then turned it off, left the key in the ignition, got out, and started walking away. As he was walking to the Accord where Navarro was waiting, he heard three shots coming from the direction of the Durango. Cubas then came running toward him, and they got into the Accord with Navarro and left. When [Sorto] asked Cubas what happened to the women, he said, "I killed them whores." Cubas said he had taken money and jewelry from the women, and he showed [Sorto] a chain that belonged to one of them. Cubas dropped [Sorto] and Navarro off at the apartment complex where they both lived at about 12:05 a.m.

Id.

The State of Texas charged Sorto with capital murder for intentionally and knowingly killing both women during the course of the same criminal transaction. Clerk's Record at 6. The State soon thereafter gave Sorto notice that it intended to seek a death sentence. Clerk's Record at 7.

Trial counsel⁴ moved to suppress Sorto's police statements. Clerk's Record at 78-80, 102-105, 319-22. The defense maintained that, when the police interviewed Sorto at the police station, they considered him a suspect, not a witness. Tr. Vol. 25 at 51-52. The defense argued that Sorto was in custody long before the police read him the Miranda warnings. Id. at 52-53. Even then, the defense contended that Sorto did not understand the constitutional rights he waived. Id. at 55. The trial court held a lengthy hearing. See generally Tr. Vol. 24; Tr. Vol. 25. The police officers present during Sorto's statements testified that he voluntarily confessed to his involvement in the various crimes. See, e.g., Tr. Vol. 24 at 17-18, 43, 97-100. Sorto explained that, while he understood the words in the Miranda warnings, he did not comprehend the concepts they represented. Tr. Vol. 24 at 169-72. The trial court refused to suppress Sorto's police statements. Tr. Vol. 25 at 70-71.

Although the State had both Sorto's confession and the DNA evidence from the saliva sample taken by the police which conclusively linked him to the crime, it lacked any objective evidence that put the murder weapon in either Cubas's or Sorto's hand. The only suggestion as to who actually shot the two women came from Sorto's statement. The State, therefore, did not commit itself to a specific narrative. The jury instructions provided for Sorto's conviction if: (1) he actually shot the victims; (2) he was a party to the offense; or (3) he conspired to kill them. Under the latter two theories, the State argued that, even if Sorto did not pull the trigger, he knew that Cubas would.⁵

The State supported its argument that Sorto knew Cubas would kill Ms. Rangel and Ms. Capulin by pointing to another crime Cubas and Sorto had committed together. On January 18, 2002—only months before the crime at issue—fifteen-year-old Esmeralda Alvarado was raped and murdered. DNA evidence linked Sorto and Cubas to Ms. Alvarado's rape. Tr. Vol. 33 at 106-10. Sorto had confessed to involvement in the rape of Ms. Alvarado, though he had fingered Cubas as the shooter. Tr. Vol. 42, State's Ex. 6A. The State argued that Sorto knew Cubas would kill Ms. Rangel and Ms. Capulin after the sexual assaults, just as he had done in the past with Ms. Alvarado, and, as such, Sorto was a party or conspirator to the murders of Ms. Rangel and Ms. Capulin.

The defense adopted a strategy that would maintain credibility with the jury while still undercutting the State's case for a capital conviction. To that end, Sorto pleaded guilty to sexual assault and kidnapping, but not guilty to capital...