Opinion
Civil Action No. 3:01-CV-2245-D
February 7, 2003
MEMORANDUM OPINION AND ORDER
Petitioner Jimmy Fernandez Garcia, Jr. ("Garcia") participated with three other persons in the brutal and senseless murders of David Moran ("Moran") and Jimmy Lynn Garza ("Garza") during a transaction in which the perpetrators intended to rob and kill their victims rather than sell them drugs. The State of Texas obtained indictments that charged Garcia with capital murder in each killing, and he was tried for each offense separately. In the first trial, the jury found Garcia guilty of the lesser-included offense of murder in the killing of Moran. The jury in the second trial convicted him of the capital murder of Garza. The dispositive question presented by Garcia's habeas petition is whether the collateral estoppel component of the Fifth Amendment Double Jeopardy Clause precludes Garcia's conviction for the capital murder of Garza. The court holds that it does and therefore conditionally grants the writ.
I
The court recounts the background facts favorably to respondent ("State") and sets out the relevant procedural history. Decedent Moran agreed to purchase about 25 pounds of marihuana from Steven Wayne Stokes ("Stokes"), Ishmael Mendez ("Mendez"), Raymond Bursiaga ("Bursiaga"), and Garcia for $12,000. Moran was unaware that the four (collectively, "defendants") intended to rob him rather than to sell him marihuana. Defendants' plan changed from robbery to murder when another person — an intermediary involved in the drug deal — brought Moran to the house where Mendez and Stokes lived. Defendants concluded that they could not rob Moran because he would retaliate since he knew where they and their families resided. They decided to rob Moran and murder him. Because decedent Garza accompanied Moran to the fast food restaurant where defendants arranged to meet Moran, they decided that Garza must also die. Bursiaga would kill one of them, and Mendez the other. Garcia would furnish the weapons, and he and Stokes would help Mendez and Bursiaga, if needed.
Mendez and Stokes are cousins.
Stokes finalized the transaction during a meeting with Moran at the restaurant. The two agreed that the deal would take place at a remote location. The four defendants departed from the restaurant in Garcia's automobile. Mendez (the driver) and Bursiaga sat in the front seat. Stokes and Garcia hid in the trunk, in possession of a shotgun and revolver. While en route, Stokes and Garcia passed the weapons to Mendez and Bursiaga. Moran and Garza drove in a separate car.
Once defendants and Moran and Garza reached the purchase location, Mendez and Moran exited their respective vehicles. Garcia and Stokes emerged from the trunk. As they did, Bursiaga almost immediately shot Garza with a revolver. Mendez tried to shoot Moran with a shotgun, but the weapon jammed. Moran attempted to hide under his vehicle, but emerged and handed Mendez the money, which Garcia retrieved and placed in the trunk. Mendez then gave the weapon to Garcia. Mendez restrained Moran while Stokes and Bursiaga tooks turns hitting him. The shotgun discharged, and Mendez released Moran. Mendez then tackled Moran, and Mendez, Stokes, and Bursiaga began beating him. Garcia hit Moran twice in the head with the shotgun. Moran escaped briefly to his car, but Stokes and Bursiaga pulled him from the vehicle, and they, along with Mendez, beat him. Garcia provided Bursiaga a tire iron that he, Mendez, Stokes, and Garcia each used to hit Moran. As the four were leaving the scene in Garcia's car, they observed Moran crawling to his vehicle. Bursiaga then used Moran's car to run over Moran, then Garza, then Moran a second time, after which they left the crime scene.
Garcia was charged in Cause No. F-98-00240-NL with the capital murder of Moran. He was charged in Cause No. F-98-00239-NL with the capital murder of Garza. The grand jury alleged that Garcia was guilty of the capital murder of Moran, under Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 1994), because he had committed murder while in the course of committing a robbery or attempted robbery of Moran. The grand jury alleged that Garcia had committed the capital murder of Garza under § 19.03(a)(2) because he had committed murder while in the course of committing a robbery or attempted robbery of Garza. In each case, the State sought to prove him guilty under the law of parties, that is, to prove that "acting with intent to promote or assist the commission of the offense, he solicit[ed], encourage[d], direct[ed], aid[ed], or attempt[ed] to aid the other person to commit the offense." Tex. Penal Code. Ann. § 7.02(a)(2) (Vernon 1994)
Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 1994):
A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and . . . the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation[.]
Tex. Penal Code. Ann. § 7.02(a)(2) (Vernon 1994):
A person is criminally responsible for an offense committed by the conduct of another if. . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.]
Although Garza was shot first, and the indictment concerning his murder was docketed first, the State tried Garcia first for the capital murder of Moran. The jury found him guilty of the lesser included offense of murder, thereby acquitting him of the offense of capital murder. It sentenced him to prison for 45 years. Several weeks later, the State tried Garcia for the capital murder of Garza. This time, the jury found him guilty of capital murder and sentenced him to life in prison, to be served consecutively to the sentence for the murder of Moran.
The jury did not return a verdict as to the lesser-included offense of aggravated robbery. See R. 48.
Garcia appealed. The state court of appeals affirmed his conviction for the murder of Moran, and the Texas Court of Criminal Appeals denied his petition for discretionary review. See Garcia v. State, No. 05-98-00774-CR, 1999 WL 455519 (Tex.App. July 7, 1999, pet. ref d). The court of appeals also affirmed his conviction for the capital murder of Garza, and the Texas Court of Criminal Appeals denied his petition for discretionary review. See State v. Garcia, No. 05-98-00982-CR, 1999 WL 455523 (Tex.App. July 7, 1999, pet. ref'd). Garcia argued in the appeal from the Garza murder that the conviction for capital murder was barred by collateral estoppel because of the close connection between the Garza and Moran cases and the murder conviction in the Moran trial. Appellant Br. at 5-11. In its entirety, the court of appeals' opinion states as follows:
Jimmy Fernando Garcia complains his conviction for the capital murder of Jimmy Garza was barred by collateral estoppel because of his earlier conviction for the murder of David Moran, another victim arising from the same incident. Garcia contends the failure of the jury in the first case to find that Moran was murdered in the course of a robbery estopped the State in this case from seeking to prove Garza's murder occurred in the course of a robbery. In determining whether or not an issue in a subsequent trial is barred by collateral estoppel the question is whether, after examining the pleadings, evidence, jury charge, and other relevant material in the record of the first trial, a rational jury must have grounded its verdict upon the issue in question. See Ladner v. State, 780 S.W.2d 247, 254 (Tex.Crim.App. 1989). Garcia has not met this burden because he has not shown that the jury in the Moran case necessarily found that Garza's murder occurred during the course of a robbery of Garza. Garcia urges us to review the record in the Moran case as it is also before us on appeal. We decline to consider the Moran record. See Salinas v. State, 542 S.W.2d 864, 867 (Tex.Crim.App. 1976). The judgment is affirmed.Garcia, 1999 WL 455523, at *1.
Garcia sought habeas corpus relief from the Moran and Garza convictions in state court, and the Texas Court of Criminal Appeals denied his petitions, without written orders. See ex parte Garcia, Nos. 50, 415-01 and 02. He then sought habeas corpus relief in this court under 28 U.S.C. § 2254 concerning his convictions for the capital murder of Garza and the murder of Moran. In the instant petition, he maintains that he is entitled to relief based on collateral estoppel and ineffective assistance of counsel.
Garcia sought relief with respect to his convictions for the murders of Moran and Garza. The parties and the court have not been able to determine from the record which habeas number was assigned to which conviction. The court, like the parties, refers to both numbers.
The habeas petition related to the Moran murder was assigned to Judge Lynn and docketed as Civil Action No. 3:01-CV-2261-M. Judge Lynn denied all relief in a judgment filed June 25, 2002. Garcia did not appeal the judgment.
The magistrate judge considered the petition initially and filed his findings and recommendation in which he recommended that relief be granted based on collateral estoppel and denied based on ineffective assistance of counsel. After the State objected to the collateral estoppel recommendation, the court re-referred the matter to the magistrate judge for consideration of the objections. The magistrate judge filed his supplemental findings and recommendation in which he adhered to the recommendation that relief be granted based on collateral estoppel. After the State again objected, the court scheduled oral argument. Following de novo review, the court adopts the recommendation and supplemental recommendation, although, with respect to Garcia's collateral estoppel claim, it does so on different reasoning than that recommended by the magistrate judge.
The court will not discuss in detail the claim of ineffective assistance of counsel. First, the court's decision granting habeas relief based on collateral estoppel renders this ground moot. Second, the court agrees with the result the magistrate judge reached and with his analysis of this claim.
II
Because Garcia filed his habeas petition on November 8, 2001, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, applies. Section 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
This court's determination requires deference to the state court's adjudication of Garcia's claim unless the adjudication is flawed under at least one of these provisos. See Kutzner v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001); Wheat v. Johnson, 238 F.3d 357, 360 (5th Cir.), cert. denied, 532 U.S. 1070 (2001).
"Under the `contrary to' clause [of § 2254(d)(1)], a federal habeas court may grant [a writ of habeas corpus] if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "A `run-of-the-mill state-court decision applying the correct legal rule' would not fit within this exception as `diametrically different' or "opposite in character or nature' from Supreme Court precedent." Beazley v. Johnson, 242 F.3d 248, 256 (5th Cir. 2001) (quoting Williams, 529 U.S. at 406 (emphasis added)), cert. denied, 534 U.S. 945 (2001).
"Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id at 409. "A state court's decision will be based on an unreasonable application of clearly established federal law when it is objectively unreasonable." Kutzner, 242 F.3d at 608. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
"Factual findings of the state court are presumed to be correct[.]" Gardner v. Johnson, 247 F.3d 551, 557 (5th Cir. 2001). A federal habeas court must "defer to them unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id. (internal quotation marks and footnote omitted) (quoting Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000)). "When challenging a state court's factual determinations, a petitioner must rebut this presumption of correctness by `clear and convincing evidence.'" Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir. 1998) (quoting 28 U.S.C. § 2254 (e)(1)).
In Ashe v. Swenson, 397 U.S. 436 (1970), the Supreme Court held that the Fifth Amendment Double Jeopardy Clause incorporates the concept of collateral estoppel. As such, "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future [proceedings]." Id. at 443; see also United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997). Collateral estoppel may affect subsequent criminal prosecutions in two ways: first, by completely barring prosecution of crimes where an essential element of the offense was necessarily determined in a previous prosecution; and second, by barring litigation of factual issues that were necessarily determined in the previous case. Brackett, 113 F.3d at 1398 (citing United States v. Deerman, 837 F.2d 684, 690 (5th Cir. 1988)).
The court recognizes that Supreme Court precedent controls the proper AEDPA evaluation of existing federal law. The court cites circuit court cases in this opinion only to the extent they illuminate Ashe, not to expand or extend Ashe. See Hawkins v. Alabama, ___ F.3d ___, ___, 2003 WL 169908, at *4 (11th Cir. 2003) ("The decisions of other federal circuit courts (and our decisions for that matter) are helpful to the AEDPA inquiry only to the extent that the decisions demonstrate that the Supreme Court's pre-existing, clearly established law compelled the circuit courts (and by implication would compel a state court) to decide in a definite way the case before them.").
In evaluating whether there has been a double jeopardy violation due to collateral estoppel, the court engages in a two step process. Neal v. Cain, 141 F.3d 207, 210 (5th Cir. 1998) (citing Brackett, 113 F.3d at 1398-99). It must first determine what facts were necessarily decided in the first prosecution. The court decides second whether these facts were essential elements in the subsequent prosecution. Id.
The most difficult and most often contentious determination is of the facts that were necessarily decided in the initial prosecution. See De La Rosa v. Lynaugh, 817 F.2d 259, 263 (5th Cir. 1987) ("`[i]n principle, the law of collateral estoppel is clear, in application, it can be a slippery concept indeed.'" (quoting United States v. Mock, 604 F.2d 341, 343 (5th Cir. 1979))). This is true because juries generally return general, not special, verdicts in criminal cases. See id. at 267 ("A special verdict would prevent, or at least help prevent, the necessity of a reviewing court attempting to deduce the rationale underlying the first jury's determination; unfortunately, we are not, and perhaps may not ever be, provided with that luxury." (footnote omitted)). In making this determination, a court must examine multiple factors:
Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.Ashe, 397 U.S. at 444 (citations and internal quotation marks omitted).
"Where there is more than one possible reason for the jury's verdict, and the court "without extrasensory perception . . . cannot say that any one is necessarily inherent in the verdict,' the doctrine of collateral estoppel is inapplicable, and a second prosecution [based upon those facts]. . . is not barred." United States v. Irvin, 787 F.2d 1506, 1515-16 (11th Cir. 1986) (quoting United States v. Gonzalez, 548 F.2d 1185, 1192 (5th Cir. 1977)). Nevertheless, courts must be willing to delve into the case to understand properly what facts were necessarily determined in the first trial. The court must "make a realistic and practical inquiry into the jury's verdict," De La Rosa, 817 F.2d at 261, that is, this court must not apply the rule with "the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." Ashe, 397 U.S. at 444.
The Ashe standard erects a sufficient bar to habeas relief that it satisfies the deference requirements of AEDPA. If this court, in interpreting the facts in a light most favorable to the State, determines that a reasonable jury must necessarily have determined facts that preclude a subsequent prosecution, the state appellate court's conclusory holding that Garcia did not meet his burden under the Double Jeopardy Clause constitutes an unreasonable application of Ashe to the facts of this case. Ashe places the court in a deferential mode that is sufficient under AEDPA. In the context of today's habeas petition, if Garcia's capital murder conviction must be vacated under Ashe, he is entitled to relief under AEDPA.
III A
The court must decide, with realism and rationality, what facts were necessarily determined in the Moran trial and decide whether any of these facts was an essential element in the Garza trial. Collateral estoppel will not apply unless an issue of fact was necessarily decided in Garcia's favor in the Moran trial. The court must make a realistic and practical inquiry into the jury verdict by examining the Moran record, taking into account the pleadings, evidence, charge, and other relevant matters, and concluding whether a rational jury could have grounded its verdict upon an issue other than that which Garcia seeks to foreclose from consideration. In particular, the court must determine whether the jury necessarily acquitted Garcia of the theft of the $12,000 that was to be used to pay for the marihuana. This is so because the underlying theft is the only issue that is also an element common to both capital murder charges. It is the only fact that, if litigated and found against the State in the Moran prosecution, would preclude Garcia from being prosecuted for the capital murder of Garza.
B
In this case, to find Garcia guilty of capital murder, the jury was obligated to find that he was guilty, directly or under the law of parties, of the offense of murder, as defined in § 19.02(b)(1), and that, directly or under the law of parties, he intentionally committed the murder in the course of committing or attempting to commit robbery. To be guilty of robbery, it was necessary that Garcia be found guilty, directly or under the law of parties, of theft, because robbery requires that, in the course of committing theft and with intent to obtain or maintain control of property, a person intentionally, knowingly, or recklessly cause bodily injury to another or intentionally or knowingly threaten or place another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a) (Vernon 1994). A person commits the offense of theft "if he unlawfully appropriates property with intent to deprive the owner of property." Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2003). Attempted robbery requires that someone, with specific intent to commit the offense of robbery, do an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Accordingly, without being guilty of theft or attempted theft, one cannot be guilty of robbery or attempted robbery. See id. § 29.02(a). To be guilty of the offense of murder, however, it was not necessary for the jury to find that Garcia was involved directly or under the law of parties in robbery or attempted robbery. Cf Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 1994) ("A person commits an offense if he . . . intentionally or knowingly causes the death of an individual[.]").
Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 1994):
A person commits an offense if he . . . intentionally or knowingly causes the death of an individual[.]
Tex. Penal Code Ann. § 29.02(a) (Vernon 1994):
A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
Appropriation of property is unlawful if: (1) it is without the owner's effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or (3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another. Id. § 31.03(b).
Tex. Penal Code Ann. § 15.01(a) (Vernon 1994):
A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
Consistent with Texas law, under the trial court's instructions, the jury was obligated to find Garcia guilty of murder rather than of capital murder if it found beyond a reasonable doubt that he
did intentionally cause the death of David Moran, an individual, by striking said David Moran with a tire iron, a deadly weapon, or a shotgun, a deadly weapon, but [the jury had] a reasonable doubt as to whether the defendant was then and there engaged in the commission of robbery or attempted robbery of David Moran at the time of the said striking of David Moran with a tire iron, a deadly weapon, or a shotgun, a deadly weapon[.]
R. 40. The trial court also instructed the jury concerning the meaning of robbery:
A person commits a robbery if, in the course of committing theft, as defined hereinafter, and with intent to obtain or maintain control of the property, he (a) intentionally, knowingly, or recklessly causes bodily injury to another; or (b) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.Id. at 31 The trial court defined theft as follows:
"Theft" as used herein is the unlawful appropriation of the corporeal personal property of another, with the intent to deprive such other person of said property.Id.
The State presented evidence that Garcia, directly or under the law of parties, robbed or attempted to rob Moran and participated in murdering him. It urged the jury to find Garcia guilty of capital murder on that basis. The State adduced testimony from Mendez that everyone knew a robbery was going to occur, and each of the four was prepared to go through with it:
Q: So, the plan was to rob them [Moran and Garza] of $12,000.00.
A: Yes.
Q: Did you agree to do this?
A: Yes.
Q: Did Steven Stokes agree to do this?
A: Yes.
Q: Did Jimmy Garcia agree?
A: Yes.
Tr. 149. Mendez testified that Garcia was intricately involved in all of the planning of the crime:
Q: What happened next?
A: Well, we were at the house and we were talking.
Q: Who's talking?
A: Me, [Garcia], [Bursiaga], and my cousin, [Stokes].
Q: Okay, what are you talking about?
A: Talking about, you know, who's going to do what.
Q: And what was decided was going to happen?
* * *
Q: You were going to drive. What was —
A: And [Bursiaga] was going to sit passenger and [Stokes] and [Garcia] were going to ride in the trunk.
Q: Why was [sic] [Stokes] and [Garcia] going to ride in the trunk?
A: Because [Moran and Garza] only wanted two people to be at the deal.Id. at 152-53.
The State also presented evidence that Garcia provided a partial written confession. In his statement to police, Garcia seemed to imply he had knowledge of the upcoming theft and robbery and that he helped to participate in the robbery to some extent:
David Moran pulled up at [Stokes'] house in Balch Springs, TX. the day before the brutal slaying. The two talked about doing a drug deal (weed) with the person asking for a total of 30 pounds. The two then talked the night of the accident, and added the total up (so they would know how much it was going to be.) So [Stokes] told them to meet us at McDonald's. So we agreed to let [Mendez] drive. They asked if I co[u]ld get a gun from someone so we could make some money. I then said let me check. So later on I asked my neighbor down the street if I could borrow a gun. He then said O.K. (didn't tell him for what) He gave me a 357 revolver. I then took it to [Stokes'] house and he talked to [Moran]. Then we got in the trunk (me and [Stokes]) and [Mendez] was driving with [Bursiaga] in the front passenger seat. So they told them to follow them, took them out in Seagoville somewhere.Id. at 133-34. Mendez also testified that Garcia participated in beating Moran.
A. [Garcia] has the shotgun and he comes up to [Moran] with the shotgun and he hits him over the head with it.
Q. With what part of the shotgun?
A. With the butt.
Q. With the butt, okay. How many times does he hit him, or do you know?
A. Probably like three times.
Id. at 169.
Q. [Garcia] goes to the car and gets a tire iron?
A. Yes.
* * *
Q. What does [Garcia] do with the tire iron?
A. He hits [Moran] a couple of times, too.
Id. at 171-72.
Garcia denied any involvement in the crimes apart from his mere presence at the scene. He testified that, in his statement to police, he was simply relaying information he had learned about the planning of the robbery. Garcia attempted to demonstrate a lack of any involvement in the beating, theft, or robbery, essentially arguing that although he was present in the trunk, he simply found himself in the wrong place at the wrong time. He averred that he was surprised to discover at the last minute that there was a robbery planned, and that he hid in the trunk to stay out of the way:
Q: Was it your understanding then, that you were to take some marijuana in your car, along with those guys, so they could do a dope deal?
A: Yes, sir. At first I was going to let them borrow my car, but — you know, I didn't know if they was going to go joy-riding or what, so I went along with them.
Q: Now, at some point in time did they begin to talk about ripping the people off?
A: In the progress of supposedly doing the drug deal, yes, sir.
Q: So, how did that happen? Who was talking about that and what did they say and what was your reaction to it?
A: Well, I let [Mendez] drive because he said he knew the people. I said, "All right" and then, on the way to get the drugs or whatever, they was talking about — they said something about robbing the people. I was like, "You all don't need to do it" and they still insisted on doing it. I told them I didn't want to be seen or have nothing to do with it, so that's why I got in the trunk.
Q: So did this seem to you to be Mendez' deal? Who was putting this deal together?
A: It was really all three of them, sir.
Q: So, you said that you didn't want any part of being seen at a robbery and you got in the trunk; is that —
A: Yes, sir.
Id. at 248-49.
Q: You're telling this jury that you were just an innocent bystander and were just merely present; is that correct?
A: Yes, sir, I was.
Id. at 274.
Q. Today you're saying that's [the written statement to the police] all wrong?
A: No, sir, I never stated that it was all wrong.
Q: Well, the part about you being involved in the robbery, that's not —
A: No, sir, that's not true.
Q: You were just there?
A: Yes, sir, I was just there.
Id. at 277.
Garcia also adduced evidence from his mother, brother, and a friend that each had been told by the other three defendants that Garcia was not involved in the theft, robbery, or murder, but was instead a "coward" who had remained in the car during the commission of the crimes. Garcia's mother testified:
Q: What was it that [Mendez] told you?
A: He told me not to worry — well, he started out telling me that the other boys had been picked up on murder charges and that they were afraid that they were going to be picked up. He said at least one thing that [Garcia] had going for him was at least he did not do anything and he would come home to me.Id. at 226. His brother, Dustin, testified:
Q: What was it that [Mendez] said to you about this offense, Dustin?
A: I had went over to [Stokes'] house and when I walked in [Mendez] and [Stokes] had started laughing. They started telling me about how they beat him and all that. Then there was a knock at the door and it was [Bursiaga]. [Bursiaga] came in and [Mendez] had told me, "Why don't you go ahead and tell Dustin how we beat that guy a couple of weeks ago and how his brother was acting all scared and everything, he stayed in the car, he wouldn't even get out."
* * *
A: He sit there and he said, "Your brother is a little pussy. He wouldn't even get out of the car. He was acting like a ho. He's nothing but a little bitch. The only thing they used him for was his car."Id. at 236.
Q: What was [Mendez] saying?
A: He was talking about [Garcia] because he said something about that he didn't want to help them or anything, that he didn't get out of the car, so he was talking badly at him.Id. at 242-43.
This defense evidence was intended to cause the jury to have a reasonable doubt about Garcia's culpability by suggesting that he was simply a victim of circumstances who never intended to be involved in the crimes.
The question the court must decide is whether the jury necessarily determined that Garcia was not involved in the theft or attempted theft. The court holds that it did necessarily make this determination. The jury found Garcia guilty of murder but not of capital murder. Considering the trial court's charge to the jury, the evidence presented, and the issues contested during the Moran trial, the jury necessarily determined that Garcia was not guilty of capital murder because he was not involved in theft or attempted theft. Robbery requires theft and assaultive behavior, i.e., conduct by which a person intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Because the jury found Garcia guilty of the murder of Moran, directly or under the law of parties, it necessarily found that the assaultive element of robbery had been proved. The only other element of robbery that the jury could have found absent was that Garcia, directly or under the law of parties, committed theft or attempted theft. This is the only realistic, practical, and rational understanding of the jury verdict.
There was ample record evidence on which the jury could reasonably have found assault (i.e., testimony that Garcia hit Moran twice in the head with a shotgun and beat him with a tire iron).
The jury could conceivably have acquitted Garcia because it found that no theft of any type had occurred. Not only would this be contrary to the State's theory at trial, and to substantial evidence that the four defendants obtained and spent some of the $12,000 they obtained, it would not assist the State in this habeas matter, because the absence of any theft would simply bolster the court's conclusion that the jury necessarily acquitted Garcia of theft in the Moran trial.
The question now becomes whether this fact was an essential element in the Garza trial. The court holds that it was. To prove Garcia guilty of capital murder, the State had to establish beyond a reasonable doubt the predicate act of robbery or attempted robbery. To prove robbery or attempted robbery, it had to satisfiy the element of theft or attempted theft. The State conceded at oral argument before this court that the only property in either trial that was the object of a theft or attempted theft was the sum of $12,000 that Moran thought he was paying for 25 pounds of marihuana. If only this single sum of money was to be stolen, only one theft could have occurred. Because the Moran jury necessarily determined that Garcia was not guilty of the single underlying theft or attempted theft of $12,000, he could not have been convicted of robbing or attempting to rob Moran or Garza, nor, in turn, convicted of the capital murder of either one under § 19.03(a)(2).
C
Neither Garcia nor the State has adequately comprehended the way in which the theft issue permeates both murder prosecutions. Nor has either side properly parsed the relationships among capital murder, robbery, and theft. Garcia argues that the Texas capital murder statute requires that a murder occur in the course of committing a robbery, or other specified felony, and that due to the expansive view of the statutory words "in the course of," the murders of Moran and Garza either both occurred in the course of a single robbery or neither did. Although the court acknowledges that the concept of in the course of' is expansive under Texas law, there is nothing about it that dictates conceptually that there cannot be one capital murder and one murder in the same criminal transaction or within the same time frame. It is not illogical, inconceivable, or even unlikely that a defendant's involvement in a crime could change between two murders based upon separate assaultive crimes. No intervening flight would necessarily be required to enable the State to prosecute a defendant for separate and independent capital murders with differing verdicts. Garcia's argument does not carry weight without a more perspicacious understanding of the relationship between robbery and theft and a recognition that the only litigated issue common to both crimes was whether Garcia was guilty of the theft or attempted theft of the $12,000.
Garcia contends:
As the Magistrate correctly noted . . . the alleged "course of committing robbery" was one act, if any. Texas law defines "in the course of committing" as "conduct occur ring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense." Garrett v. State, 851 S.W.2d 853, 856 (Tex.Crim.App. 1993). Therefore there cannot be two courses of robbery without flight from the first. If a person approaches two victims together and murders them both without having fled between the two murders, as here, he cannot complete a murder of the first victim in the course of robbing the first victim without also murdering the second in the course of robbing the first.
P. Reply to R. Objs. at 1-2.
Robbery is a crime of assault. See Exparte Hawkins, 6 S.W.3d 554, 560 (Tex.Crim.App. 1999). It is possible to envision multiple capital murder prosecutions based on assaults like rape, arson, or kidnapping arising from the same criminal episode, which allow for differing verdicts without collateral estoppel concerns.
Conversely, the State argues that the Moran verdict does not preclude a capital murder conviction in the Garza case because Garcia murdered two separate victims in two separate criminal acts. According to the State, it is immaterial that these offenses occurred during the same criminal episode. The State rests this argument on the correct assertion that the allowable unit of prosecution for robbery is the same as assault: each victim. See Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex.Crim.App. 1999) ("Since robbery is a form of assault, the allowable unit of prosecution for robbery should be the same as that for an assault. And in Texas the allowable unit of prosecution for an assaultive offense is each victim."). Because this is the unit of prosecution, there can be multiple convictions for robbery, just as there can be multiple convictions for assault. The State contends that a verdict that necessarily found that Garcia did not rob Moran does not mean that he could not have robbed Garza, just as a verdict finding that Garcia did not assault Moran does not mean that he could not have assaulted Garza.
Presumably, directly or under the law of parties.
Each party's argument overlooks the relationship between the offenses of robbery and theft. As the court notes above, robbery is assault in the course of theft. Robbery cannot exist without theft. Theft is not an assaultive offense and does not lead to multiple prosecutions. If only one sum of money is stolen, only one theft can occur. Although multiple robberies can stem from a single theft, a defendant innocent of the single underlying theft cannot be guilty of any of the separate robberies. Because Garcia was necessarily acquitted of the underlying theft or attempted theft in the Moran trial, he could not be guilty of robbing or attempting to rob Moran or Garza, and the State is collaterally estopped from prosecuting him for the capital murder of Garza.
A hold-up with multiple assault victims would allow multiple robbery prosecutions.
IV
The State argues that there are other reasons the Moran jury could have found Garcia guilty of murder but not of capital murder. It maintains that the jury could have found that the robbery of Moran was completed before he was murdered and, therefore, Moran was not killed during the course of the commission of robbery or during immediate flight after robbery, but instead was murdered to prevent him from acting as a witness to the prior murder of Garza. Although the jury could conceivably have reached its verdict on this basis, the conclusion that it did so would be unreasonable, because the timing of Moran's murder was not at issue in the Moran trial. Moreover, the State presented neither evidence nor argument to suggest that Moran was killed because of his potential as a witness.
The State argues that evidence in Garcia's statement to the police provides a basis for the jury's rational conclusion that Moran was murdered as a witness:
The whole process was to get the two scared and jack not kill them for their money. . . . We had no intentions of killing these guys but one got killed so both got killed. They always told that we was going to jack not kill these guys for their money.
Tr. 135. The State used this part of Garcia's statement to cross-examine him during trial and to demonstrate that he was involved in the robbery and murder, not to suggest that he killed Moran to prevent him from acting as a witness.
Q: In your statement [to the police], you said, "The whole process was to get the two scared and jack not kill them for their money."?
A: Yes, sir.
Q: Is that it?
A: Again, sir, that's what they said that's what had happened; they was going to get the two scared on the way to pick up the weed. I guess they changed their mind or something. I'm not for sure.
Q: "We had no intentions of killing those guys but one got killed so both got killed."
A: That's what they said. I asked them —
Q: That's what they said?
A: I asked them why they killed both of them. Yes, sir, I know I said `we.'Id. at 288-89.
The defense was equally silent on the issue of Moran's murder as a witness, despite the fact that the information could have been used to deflect capital murder culpability. This question was not a disputed issue, and it is not reasonable to conclude that the jury reached its verdict on this basis.
More important, a finding that the assault and murder of Moran were not in the course of stealing the $12,000 he possessed would be contrary to the legal definition of capital murder. Capital murder is defined in the context of this case as a murder in the course of robbery or attempted robbery. `In the course of' is defined very broadly:
This Court has defined "in the course of committing" an offense listed in § 19.03(a)(2) [the capital murder statute] as conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense. Evidence is sufficient to support a capital murder conviction if it shows an intent to obtain or maintain control of property which was formed before or contemporaneously with the murder.Garrett v. State, 851 S.W.2d 853, 856 (Tex.Crim.App. 1993) (citations omitted). There is no rational basis to conclude from the trial record that the murder of Moran fell outside this expansive definition of capital murder as murder in the course of robbery. Moran was murdered immediately following the taking of his money, as he fled from his attackers. The attackers feared retaliation from Moran. The State's theory at trial was that the defendants, including Garcia, had planned to rob and murder those present at the drug deal. There is no reason to conclude from the Moran trial materials that murdering him under these circumstances amounted to anything but murder in the course of robbery or attempted robbery, assuming the defendant in question was involved in the theft or attempted theft.
If the prosecution had any indication that Moran had been killed as a witness to the Garza murder or as a witness to the robbery, it could have sought an indictment on this basis. Texas law includes in the definition of capital murder those murders that are committed in the course of murdering a witness. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 1994) (providing for capital murder charge if "[person] intentionally commits the murder in the course of committing or attempting to commit. . . obstruction or retaliation"); Tex. Penal Code Ann. § 36.06(a)(2) (Vernon Supp. 2003) (a person commits obstruction "if he intentionally or knowingly harms or threatens to harm another by an unlawful act . . . to prevent or delay the service of another as a: (A) public servant, witness, prospective witness, or informant; or (B) person who has reported or who the actor knows intends to report the occurrence of a crime[.]").
In Ashe, as in the present case, the Supreme Court could conceivably have constructed a hypothetical scenario in which defendant Ashe was not guilty of robbing the first victim, even though he was one of the men who broke into the home and robbed the poker players. The Court could have hypothesized a set of facts in which the jury found that the first victim was not a crime victim, but was instead an insider who had criminal complicity (e.g., informed the others of the place and time that the poker game would be played and of the amount of money that could be obtained). Such a scenario, however, was not supported by the trial evidence. What was determinative was that "the record [was] utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery." Ashe, 397 U.S. at 445. In the present case, the record is devoid of evidence to support an acquittal for capital murder, and a conviction for murder, that does not exclude Garcia from any involvement in the theft or attempted theft of the $12,000 that was to be paid for the marihuana.
At oral argument, the State presented a slightly different version of the same position. It argued that the jury might have thought that Moran was killed by being run over by the fleeing car, an event that occurred after the four defendants had already returned to Garcia's vehicle and begun to drive away. Under this scenario, Garcia could have been convicted of murder, but not capital murder, because the robbery was complete and the murder thus did not occur in the course of or attempting to commit robbery. Just as with the killed-as-a-witness theory, however, neither side presented evidence at trial that would suggest this was a contested issue. Moreover, the State adduced uncontroverted forensic evidence that the assault with the automobile was not the cause of Moran's death. Tr. 87-88. Finally, the jury charge and closing arguments in no way suggest that Garcia's involvement in the use of a car to run over the victims was even an issue for the jury to consider. The jury was asked to determine "whether the defendant was then and there engaged in the commission of robbery or attempted robbery of David Moran at the time of the said striking of David Moran with a tire iron, a deadly weapon, or a shotgun, a deadly weapon." R. 40 (emphasis added), not at the time Moran was run over by a car. Reviewing the trial materials realistically, practically, and rationally, there is no merit to the State's theories regarding the timing of Moran's death in relation to the robbery or attempted robbery or theft or attempted theft.
V
The State attempts to rely on two other grounds to refute Garcia's collateral estoppel claim.
First, it argues that the conviction in the Moran trial was not final and therefore could not serve as a basis for collateral estoppel. The State's reasoning fails because an acquittal, as here, with the acquittal for theft, always constitutes a valid and final judgment regardless of what results from an appeal. Green v. United States, 355 U.S. 184, 188 (1957) ("[I]t has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant's jeopardy"). Garcia's partial acquittal in the Moran case can bar subsequent prosecutions despite its status on appeal.
The State relies upon a single decision of the Texas Court of Criminal Appeals, Garcia v. State, 768 S.W.2d 726 (Tex.Crim.App. 1987). The Southern District of Texas, however, granted habeas relief in that case, holding that the decision of the Texas Court of Criminal Appeals was clearly erroneous in view of long-standing Supreme Court precedent. Garcia v. Garza, 729 F. Supp. 553, 554 (S.D. Tex. 1989) (citing Green v. United States, 355 U.S. 184 (1957) (holding that acquittal for first degree murder bars further prosecution for first degree murder even if the first conviction is later overturned on appeal)).
The State also argues that the verdict in the Moran case may simply have been the result of the jury's confusion concerning the jury charge. There is nothing incorrect in the pertinent parts of the jury charge, nor should the court speculate that the state trial jury did not understand and follow the trial court's instructions. See Penry v. Johnson, 532 U.S. 782, 799 (2001); Galvan v. Cockrell, 293 F.3d 760, 765-66 (5th Cir. 2002).
VI
Under AEDPA's unreasonable application clause, a federal habeas court may grant a writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. A state court's decision will be based on an unreasonable application of clearly established federal law when it is objectively unreasonable. Under § 2254(d)(1)'s unreasonable application clause, this court may not issue a writ simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. The application must also be unreasonable. For the reasons set out above, the court holds that the Texas court of appeals unreasonably applied the governing legal principles of Ashe to the facts of Garcia's case and he is therefore entitled to habeas relief for his capital murder conviction of Garza.
* * *
Accordingly, Garcia's petition for a writ of habeas corpus is granted unless, within 120 days of the date this judgment becomes final, the State re-sentences or re-tries Garcia in accordance with Texas law. See, e.g., Moore v. Johnson, 194 F.3d 586, 622 (5th Cir. 1999). The court hereby stays its judgment. If the State appeals the court's judgment, the stay shall remain in effect until all appeals by the State are exhausted, or until a higher court vacates the stay.