Thompson v. Johnson, No. Civ.A. H-97-1118.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: Crone
• Citation: 7 F.Supp.2d 848
• Parties: Ray Patrick THOMPSON, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Docket Number: No. Civ.A. H-97-1118.
• Decision Date: 03 April 1998

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7 F.Supp.2d 848 Ray Patrick THOMPSON, Petitioner,
v.
Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. No. Civ.A. H-97-1118. United States District Court, S.D. Texas. April 3, 1998.

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Ray Patrick Thompson, pro se.

Jennifer M. Owens, Office of Attorney General, Austin, TX, for Respondent.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

I. Introduction

Petitioner Ray Patrick Thompson ("Thompson") challenges his 1993 conviction for first degree murder and sentence of life imprisonment. Having reviewed the pending motion, the submissions of the parties, the state court record, and the applicable law, this court is of the opinion that Gary L. Johnson's Motion for Summary Judgment (# 8) and Supplemental Motion for Summary Judgment (# 14) should be granted and that Ray Patrick Thompson's Petition for Writ of Habeas Corpus (# 1) should be denied.

II. Procedural History

On November 15, 1993, a jury convicted Thompson of murder and assessed his punishment at life imprisonment plus a $10,000 fine. See State v. Thompson, No. 654919 (230th Dist. Ct., Harris County, Tex., Nov. 15, 1993). The Texas First Court of Appeals affirmed his conviction on August 17, 1995. See Thompson v. State, ___ S.W.2d ___, No. 01-93-01123-CR, 1995 WL 489110 (Tex. App. — Houston [1st Dist.] Aug.17, 1995), withdrawn. Upon a motion for rehearing, the First Court of Appeals affirmed the judgment of the district court on January 11, 1996. See Thompson v. State, 915 S.W.2d 897 (Tex.App. — Houston [1st Dist.] 1996, writ ref'd). On August 28, 1996, the Texas Court of Criminal Appeals refused Thompson's petition

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for discretionary review. See Thompson v. State, No. 871-96 (Tex.Crim.App. Aug. 28, 1996).

Thompson subsequently filed a state application for a writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order on February 12, 1997. See Ex parte Thompson, No. 32,690-01 (Tex. Crim.App. Feb. 12, 1997). Thompson filed the instant petition for a federal writ of habeas corpus on April 3, 1997.

III. Claims

Thompson raises the following claims in support of his petition for habeas corpus relief:

A. the trial court erred when it failed to conduct a competency hearing sua sponte;

B. trial counsel rendered ineffective assistance by:

1. referring to Thompson's guilt during voir dire and closing argument;

2. failing to raise the issue of insanity/incompetency and to request a psychiatric evaluation; and

3. failing to prepare adequately for trial.

IV. Factual Background

Thompson and Betty Jane Thompson ("Betty") were married on August 23, 1985. Betty Thompson brought with her four children from a previous marriage — Eugene, Steven, Richard, and Susan. Thompson and Betty had one child together — Brian. At the time of the marriage, Thompson worked for the Diday Funeral Home and co-owned Arrow Pest Control in Pasadena, Texas.

By 1991, Thompson and his wife had formed Thompson Pest Control. Betty quit her job at Entex to do the paperwork for the business, while Thompson did the exterminations. Although the business thrived, the marriage soured. Thompson and Betty increasingly fought about money and about the business. They also argued about the children and about Betty's involvement in the Pentecostal Church. These fights sometimes resulted in violence, with Thompson pushing and shoving Betty, and, on one occasion, Betty receiving a black eye. As the marriage continued to deteriorate, Betty's distrust of Thompson led her to keep a journal on him. Betty also checked Thompson's truck in an attempt to monitor his actions. Thompson filed for divorce but did not pursue it because he did not want Betty to receive the house and half of the business in a property settlement.

The Thompsons' marital problems were not a secret. As early as 1990, Betty began to confide in Willard Kirby, a police officer with the South Houston Police Department, regarding her unhappiness. Angel Flores ("Flores"), a neighbor, heard Betty and Thompson fighting three or four clays a week. On one occasion, he saw Thompson slap Betty. Later in 1991, Thompson told Flores that he wished "something would happen" to Betty now that she was working nights as a reserve police officer at the South Houston Police Department. Thompson also stated in that conversation that he wished "somebody would get rid of her or something." In mid-1992, Thompson informed Frederick Connell ("Connell"), a fellow Jaycee and customer, that Betty was "ruining his business" by "following him around" and checking his telephone calls. In April of that year, Thompson told James Paige ("Paige"), a friend and former coworker, that "[h]e wished the bitch would die or leave."

In November 1992, Thompson discussed his marriage with Arnold Corbett ("Corbett"), a Pasadena police officer. He characterized his relationship with Betty as "intolerable." During that conversation, Thompson accused Betty of having a "volatile temper" and of becoming "intrusive and suspicious." Thompson also stated that "if he could find a way and if he thought he could get away with it, ... he would kill her." The following month, however, Thompson told Corbett that he "really wouldn't do such a thing." He added that "it would be foolish for [him] to ... make such a remark as that, and knowing that [Corbett] would suspect him first above all others if anything happened to her."

Also in November 1992, Thompson discussed his marriage to Betty with Randall Thompson ("Randall"), a bail bondsman whom he had recently met, and confided that

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"[h]e wished she were dead." In December 1992, while exterminating Randall's ex-wife's house, Thompson told Randall that his marriage was "terrible" and "[t]hat he was going to have to have that bitch killed and it was going to be soon and d[id][he] know anybody that does things like that." The also inquired whether Randall wrote murder bonds and asked how much they cost. Randall advised Thompson, "if they don't have a body, they don't have a case." A few days after Christmas 1992, Thompson told Julie Banks ("Banks"), whose home he was exterminating, that he "was miserable in his marriage." He also advised Banks that Betty "had found the Lord" and was "driving him crazy." He further admitted that "he would not be happy until his wife was six feet under."

Toward the end of 1992, Fred Allen ("Allen"), a funeral director who had known Thompson since 1980, received a telephone call from him. During their conversation, Thompson asked Allen if the funeral company still transported bodies for the medical examiner. Thompson followed up that question by asking where the bodies were being stashed. On January 3, 1993, Thompson telephoned Allen at the Crystal Ray Funeral Home. regarding the purchase of a "disaster pouch," more commonly known as a body bag. Allen telephoned Jimmy Dean Donahoo ("Donahoo") at Escort Funeral Services, another establishment he owned, and informed him that Thompson would be coming by to buy the bag. After purchasing the body bag, Thompson asked Donahoo if he had any lime, a dissolving agent. Donahoo telephoned Allen and informed him that Thompson wanted some lime. Allen advised Thompson that he did not have any lime, but he did have a hardening compound, which could decrease the odor of decomposition. Thompson replied that he wanted lime.

In the afternoon of January 5, 1993, Thompson visited Apache Oil Company, where he spoke with Eric Martin Rothgeb ("Rothgeb"), a salesman and warehouseman. Thompson explained to Rothgeb that he wanted an open-lid barrel to use as a trash can for his shop. Rothgeb stated that he only had closed-top barrels but that Thompson could have the top cut off one of them. Thompson left in his truck with an "Exxon blue" fifty-five gallon closed-top drum, which Rothgeb gave him. On January 6 or 7, 1993, Thompson took the barrel to Sexton's Welding and Fabrication where he spoke with the owner, Robert Sexton ("Sexton"). Thompson told Sexton that he wanted the top removed from the barrel, explaining that he was going to use the barrel to discard pesticide powder.

During a conversation between Thompson and Connell on January 7, 1993, the two men complained about their wives' recent involvement in religion. During the conversation, Thompson told Connell, "I'll be glad when I get rid of that fucking bitch." On the following day, James Masters ("Masters"), the owner of a Pasadena auto repair shop, received a telephone call from Thompson. Thompson informed Masters that his truck, a Dodge with a tommy lift, needed carburetor work. When Thompson brought the truck over, Masters noticed two bags of cement mix in the back.

On January 9, 1993, Thompson ran into Robert Washburn ("Washburn"), a retired Pasadena police officer, at a gun show. During this brief encounter, Thompson mentioned that he was at the show to buy a gun for his wife. According to Thompson, the gun would be a "surprise" for his wife. Later, Washburn again saw Thompson and told him that he had a Taurus .38 special that he would sell for $175. Thompson agreed to purchase the gun and picked it up that same day at Washburn's residence. While there, Thompson commented that he needed bullets for the gun. Washburn opened a box of shells and gave Thompson five of them. The forensic evidence revealed that the bullets in the box matched those that were found in Betty's body.

On the morning of January 11, 1993, Thompson and Betty had an argument about money, which Richard Thompson ("Ricky") overheard. Before the argument ended, Ricky left the house to make a bank deposit. When he returned, Thompson gave him some extermination jobs to handle. Later that morning, Thompson telephoned Masters to inform him that he needed to use his truck to

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"pick up something heavy." Thompson also telephoned Sexton and...