Trevino v. Thaler

• Decision Date: 21 December 2009
• Docket Number: Civil No. SA-01-CA-306-XR.
• Citation: 678 F. Supp.2d 445
• Parties: Carlos TREVINO, Petitioner, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Western District of Texas

678 F.Supp.2d 445

Carlos TREVINO, Petitioner, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil No. SA-01-CA-306-XR.

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

December 21, 2009.

Warren Alan Wolf, Law Office of Warren Alan Wolf, San Antonio, TX, for Petitioner.

Fredericka Sargent, Office of the Attorney General Assistant Attorney General, Austin, TX, for Respondent.

MEMORANDUM OPINION AND ORDER

XAVIER RODRIGUEZ, District Judge.

Petitioner Carlos Trevino filed this federal habeas corpus action pursuant to 28 U.S.C. Section 2254 challenging his July 1997, Bexar County capital murder conviction and sentence of death. For the reasons set forth at length below, petitioner is not entitled to federal habeas corpus relief from this Court but is entitled to a Certificate of Appealability.

I. Statement of the Case

A. Factual Background

On the evening of June 9, 1996, while on a trip to buy beer for a party he had been attending,¹ Santos Cervantes enticed fifteen-year-old Linda Salinas to get into a car driven by Cervantes' friend Brian Apolinar, with the assurance Apolinar would take Salinas to a nearby fast-food restaurant.² Traveling with Apolinar, Cervantes, and Salinas that evening were Carlos Trevino (petitioner herein), petitioner's teenage cousin Juan "Tati" Gonzales, and Seanido "Sam" Rey.³

Instead of driving to the restaurant, Apolinar drove the group to Espada Park, where Cervantes, Apolinar, and Rey sexually assaulted Salinas while she unsuccessfully struggled to escape.⁴ Gonzales overheard Apolinar, Cervantes, and the petitioner discuss their mutual desire not to leave any witnesses behind.⁵ At that point, Gonzales returned to the group's vehicle; when the other four men returned, Cervantes and the petitioner had blood on them.⁶

During the group's ensuing drive away from the Park and back to the Mata residence, Cervantes made a comment that it was "neat" or "cool" about how her neck had snapped and also made a comment about a knife; petitioner responded with the comments "I learned how to kill in prison" and "I learned how to use a knife in prison."⁷ When the group returned to the Mata residence, Cervantes burned Salinas' cloth backpack, which she had left in Apolinar's car when the group stopped at Espada Park.⁸ When Gonzales asked Cervantes why he had killed the girl, Cervantes responded "mind your own business."⁹ While Gonzales never saw the petitioner or anyone else with a knife at the scene of the murder, a few days before Salinas' murder, Gonzales had seen Cervantes with a knife and, two days after the murder, Cervantes told Gonzales he had broken the knife and thrown it into a river.¹⁰ The petitioner thereafter told Gonzales not to say anything to the police about the incident.¹¹

Salinas' partially nude body was discovered in Espada Park the day after the murder, i.e., on June 10, 1996, in the tall grass along a trail leading down to a nearby creek.¹²

An autopsy revealed (1) Salinas suffered two stab wounds to the left side of her neck, one of which was fatal, (2) the fatal stab wound, to the back of the left side of Salinas' neck, partially severed her carotid artery, resulting in massive bleeding, accompanied almost immediately by a rapid decrease in blood pressure and shock, (3) Salinas sustained soft tissue hemorrhaging and bruising in her vaginal area, as well as bruising, hemorrhaging, and a laceration at her anal opening, (4) a small quantity of a metabolite of marijuana was found in Salinas' blood stream but at an insufficient level to suggest she was intoxicated at the time of her death, (5) Salinas sustained no internal injuries to her neck other than those caused by the two stab wounds, (6) there was no physical evidence anyone had attempted to "snap" her neck, and (7) there were scratches on Salinas' legs and fresh bruises to her breasts.¹³

B. Indictment

On April 8, 1997, a Bexar County grand jury indicted petitioner in cause no. 97-CR-1717-D on a charge of capital murder, to wit, intentionally and knowingly causing the death of Linda Salinas by cutting and stabbing her with a deadly weapon while in the course of committing and attempting to commit the aggravated sexual assault of Salinas.¹⁴

C. Unsuccessful Plea Negotiations

Petitioner's original trial counsel, attorney Mario Trevino (no relation to petitioner) negotiated a plea bargain on petitioner's behalf in which petitioner would enter a plea to the capital murder charge and receive a life sentence without having to testify against any of his co-defendants.¹⁵ During an emotional debriefing with personnel from the Bexar County District Attorney's office, petitioner broke down and, when the de-briefing resumed a week or two later, petitioner had changed his mind and refused to accept the plea bargain offered.¹⁶

D. Guilt-Innocence Phase of Trial

The guilt-innocence phase of petitioner's trial commenced on June 19, 1997. In addition to the evidence outlined above, the jury heard testimony from DNA and forensic experts establishing (1) the examination of a pair of blue women's shorts and a pair of white women's panties found at the crime scene, both identified by Linda Salinas' mother as belonging to Linda, revealed the presence of polyester and cotton fibers which were consistent with a pair of slacks owned by the petitioner,¹⁷ (2) a blood stain found on Linda Salinas' white panties contained a mixture of the DNA from at least two persons, with DNA testing eliminating all but Linda Salinas and the petitioner (from among those identified by Juan Gonzales as present at Espada Park on the night of the murder) as possible sources of the DNA included in that mixed bloodstain,¹⁸ and (3) the oral, vaginal, and anal swabs taken from Linda Salinas' body during autopsy failed to reveal the presence of sperm or seminal fluid.¹⁹ On July 1, 1997, after deliberating less than six hours, petitioner's jury returned a guilty verdict.²⁰

E. Punishment Phase of Trial

The punishment phase of petitioner's trial commenced on July 2, 1997.

The prosecution presented evidence establishing (1) petitioner was first referred to the Bexar County juvenile probation office at age thirteen, (2) as a juvenile, petitioner was adjudicated on charges of evading arrest, possession of up to two ounces of marijuana, unauthorized use of a motor vehicle, and unlawfully carrying a weapon (identified as a nine millimeter handgun), and (3) petitioner was convicted as an adult of operating a motor vehicle while intoxicated, burglary of a vehicle, and burglary of a building.²¹ The jury also heard uncontradicted testimony establishing (1) petitioner had identified himself to a juvenile probation officer as a member of a street gang²² and (2) petitioner was a documented prison gang member whose body bore the tell-tale tattoos indicative of petitioner's membership in the violent prison gang La Hermidad y Pistoleros Latinos ("HPL").²³

The defense presented a single witness, petitioner's aunt, who testified (1) she had known petitioner all his life, (2) petitioner's father was largely absent throughout petitioner's life, (3) petitioner's mother "has alcohol problems right now," (4) petitioner's family was on welfare during his childhood, (5) petitioner was a loner in school, (6) petitioner dropped out of school and went to work for his mother's boyfriend doing roofing work, (7) petitioner is the father of one child and is good with children, often taking care of her two daughters, and (8) she knows petitioner is incapable of committing capital murder.²⁴

On July 3, 1997, after deliberating approximately eight hours, petitioner's jury returned its verdict at the punishment phase of trial, finding (1) beyond a reasonable doubt, there is a probability the petitioner would commit criminal acts of violence which would constitute a continuing threat to society, (2) beyond a reasonable doubt the petitioner actually caused the death of Linda Salinas or, if petitioner did not actually cause her death, the petitioner intended to kill her or another, or the petitioner anticipated a human life would be taken, and (3) taking into consideration all of the evidence, including the circumstances of the offense, the petitioner's character and background, and the petitioner's personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment be imposed upon petitioner.²⁵ In accordance with the jury's verdict, the state trial court imposed a sentence of death.²⁶

F. Direct Appeal

Petitioner appealed his conviction and sentence. In appellant's brief filed September 4, 1998, petitioner presented nineteen claims for relief.²⁷ In an opinion issued May 12, 1999, the Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence. Trevino v. State, 991 S.W.2d 849 (Tex.Crim.App.1999). Petitioner did not thereafter seek further review of his conviction or sentence via a petition for certiorari directed to the United States Supreme Court.

G. First State Habeas Proceeding

On April 19, 1999, while his direct appeal was still pending, petitioner filed an application for state habeas corpus relief in which he urged forty-six grounds for relief.²⁸

The state habeas trial court held an evidentiary hearing on July 10, 2000, during which petitioner called a single witness, his former trial co-counsel, attorney Mario Trevino, who testified, in pertinent part (1) he had no difficulty communicating with petitioner, (2) the defense team contacted Juan Gonzales prior to trial and knew what testimony Gonzales would give, (3) he negotiated a waiver of the death penalty for petitioner but, after initially accepting same, petitioner later rejected this plea bargain offer, (4) petitioner never denied participating in the offense and admitted he was present when Salinas was killed, (5) whenever defense counsel pressed petitioner about the facts of...