Soliz v. Stephens
Memorandum Opinion and Order: The Court denies Petitioner Mark Anthony Soliz's amended petition for a writ of habeas corpus. The Court GRANTS a certificate of appealability with regard to claim 20. If Soliz files a notice of appeal, he may proceed in forma pauperis on appeal. This case is DISMISSED with prejudice. (Ordered by Judge Ed Kinkeade on 9/6/2017) (ash)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
MARK ANTHONY SOLIZ,
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional Institutions
Cause No. 3:14-CV-4556-K
MEMORANDUM OPINION AND ORDER
DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS
Mark Anthony Soliz, a Texas prisoner sentenced to death for capital murder,
petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A jury
convicted Soliz for shooting Nancy Weatherly in the head during a home invasion and
robbery. See State v. Soliz, No. F-45059 (413th District Court, Johnson County, Texas,
Mar. 23, 2012). The Texas Court of Criminal Appeals (“CCA”) affirmed the judgment
on direct appeal and denied habeas corpus relief. Soliz v. State, 432 S.W.3d 895 (Tex.
Crim. App. 2014), cert. denied, 135 S. Ct. 1154 (2015); Ex parte Soliz, No. WR-82,429-01
(Tex. Crim. App. Dec. 17, 2014) (order). Soliz has filed an amended federal petition
raising twenty-one grounds for relief.
All of the claims except one were previously presented in state court. The claims
in large part involve trial counsel’s strategy to “front load” aggravating and incriminating
evidence at the guilt phase of trial. Soliz also challenges counsel’s use of experts,
counsel’s decisions not to object to evidence and argument, the admission of his
confession, counsel’s choice of claims on appeal, and the constitutionality of the Texas
death penalty statute.
A claim adjudicated on the merits in state court may not be relitigated in federal
habeas court unless it (1) is “contrary to” federal law then clearly established in the
holdings of the Supreme Court or “involved an unreasonable application of” such law,
or (2) “is based on an unreasonable determination of the facts” in light of the record
before the state court. See § 2254(d); Harrington v. Richter, 562 U.S.86, 100 (2011).
This standard will be discussed further where necessary below.
In the following discussion, the record is cited as follows, with each abbreviation
preceded by volume number, if any, and followed by the page number:
State Habeas Clerk’s Record. Pages 740 to 750 are out of order.
trial court clerk’s record (12 volumes)
trial court reporter’s record (74 volumes). Volumes 58 through 74
are not paginated, so the .pdf pagination is used.
trial exhibits of the State and the Defense, respectively.
I. FACTUAL BACKGROUND
The opinion on direct appeal contains the following summary of facts, which are
presumed correct under 28 U.S.C. § 2254(e)(1):
[The Crime Spree:]
The instant offense was one of numerous offenses that appellant and his
accomplice, Jose Ramos, committed during an eight-day crime spree that
ended when appellant and Ramos were arrested. Most of these offenses
were committed in the Fort Worth area, but the instant offense took place
in Godley, which is in Johnson County. This offense was discovered when
Ramos mentioned it in response to a Fort Worth police detective’s question about another offense that appellant and Ramos had committed.
Appellant’s and Ramos’s crime spree began with a June 22, 2010 burglary
in which they took several long guns and a Hi–Point 9–millimeter
semiautomatic handgun, among other items. Later that evening, appellant
showed the stolen weapons to a potential buyer, Ramon Morales. Morales
wanted to buy all five weapons, but appellant was not willing to part with
a rifle and the handgun. Appellant told Morales that he had plans for
them. Morales bought the three long guns and pawned them the following
On the morning of June 24, 2010, appellant approached a stranger, Justin
Morris, in the parking lot of a shopping mall, pointed a gun at him, and
demanded his wallet. Morris complied, and appellant took Morris’s wallet
and left. Appellant was later videotaped by a convenience-store security
camera as he attempted to use Morris’s debit card at an ATM.
Later that morning, after witnessing an argument between Luis Luna and
a female friend of appellant’s, appellant asked his friend if she wanted him
to “get [Luna] wet,” which was street talk for drawing Luna’s blood or
killing him. Appellant fired the gun in the direction of Luna’s head, but the
bullet passed through Luna’s ear lobe without seriously injuring him.
That afternoon, appellant and Ramos held Jorge Contreras at gunpoint in
a store parking lot while they stole his green Dodge pickup truck. Later
the same day, appellant approached Sammy Abu–Lughod in a different
store parking lot as Abu–Lughod was getting into his green Dodge Stratus.
Appellant pointed a black handgun at Abu–Lughod and demanded his
wallet, cell phone, and car. After taking Abu–Lughod’s personal items,
appellant told him to walk away. Abu–Lughod complied while appellant
drove away in the Stratus.
Around 2:00 a.m. on June 28, 2010, appellant and Ramos approached four
people who were leaving a bar and demanded their money and wallets.
The victims complied. After taking their wallets, appellant and Ramos left
in the Stratus.
At 3:30 a.m. on June 29, 2010, Ramos and appellant committed a
“drive-by” shooting. Ramos drove the car while appellant fired shots into
a house where they thought a rival gang member might be staying. At
about 5:00 a.m., appellant and Ramos approached Enrique Samaniego as
he was walking to his pickup truck to leave for work. Either appellant or
Ramos shot Samaniego four or five times in the stomach. Samaniego
sustained life-threatening injuries, but he survived.
Around 5:30 a.m., appellant and Ramos approached Ruben Martinez, a
delivery truck driver who had just completed a beer delivery at a Texaco
gas station, as Martinez was walking back to his truck. Appellant pointed
the gun at Martinez and demanded his wallet. Martinez complied, offering
his cell phone as well. Disappointed that Martinez’s wallet contained only
ten dollars, appellant shot him in the neck. Martinez later died from
complications of this injury.
Less than an hour after shooting Martinez, appellant approached Kenny
Dodgin as Dodgin was exiting his car in the parking lot of a Lowe’s store.
Appellant pointed a gun wrapped in a blue bandanna at Dodgin. Upon
seeing appellant, Dodgin locked his car and ran toward the store. He heard
three gun shots behind him.
Around 7:00 a.m., appellant burglarized two homes in Benbrook, a town
southwest of Fort Worth. Later that morning, appellant and Ramos drove
to Weatherly’s home and committed the instant offense.
The Fort Worth Police Department’s Communications Division received
the call when appellant robbed Abu–Lughod of his green Stratus, as well
as later calls reporting robberies and shootings involving a green or teal
sedan. A 9–1–1 call-taker supervisor informed detectives that the stolen
Stratus might be the green or teal sedan involved in the later offenses.
Detectives subsequently reviewed offense reports and compared notes.
Based on the close physical and temporal proximity of some offenses as
well as similarities in the descriptions of the suspect, weapon, vehicle, and
modus operandi, they determined that approximately thirteen burglaries,
aggravated robberies, and shootings in the Fort Worth area, dating from
June 22 to June 29, were likely to be connected. Because of the escalation
of violence in the Samaniego and Martinez offenses, all Fort Worth police
officers were instructed to be on the lookout for the stolen Stratus.
Around 10:30 p.m. on June 29, officers in an unmarked vehicle established
surveillance on the house of a known gang member, Arturo Gonzales,
which was near the last known location of the Stratus. Eventually they
observed the Stratus leaving Gonzales’s house, closely following a Jeep
Liberty. The two vehicles appeared to be traveling together. Officers
identified the Stratus by its license plate as the vehicle they were searching
for and radioed for a marked patrol unit to initiate a stop. With lights and
siren activated, a marked unit began following the Stratus. Instead of
stopping, however, the Stratus accelerated and passed the Liberty. After a
brief pursuit, the Stratus crashed into a parked eighteen-wheeler.
Appellant exited through the passenger side window and ran through
parking lots and across a freeway before officers stopped and arrested him.
The other occupant of the Stratus, Elizabeth Estrada, exited the Stratus
and ran behind the eighteen-wheeler, where officers quickly arrested her.
The stolen handgun and the blue bandanna were found inside the Stratus.
Meanwhile, police officers stopped the Liberty for an equipment violation
and transported its occupants, including Ramos, to the police station for
[Police Interviews and Investigation:]
Ramos admitted his participation in some of the offenses and provided
useful information about them. However, when detectives questioned
Ramos about the aggravated robbery in which Contreras’s green pickup
truck had been stolen, Ramos provided information that was inconsistent
with the information detectives had already obtained about that offense.
Specifically, Ramos indicated that the offense had ended badly and stated
that it did not have to “end that way.” This statement puzzled detectives
because no one had been hurt and no shots had been fired during the
offense. Ramos also referred to a female victim rather than a male victim.
After some initial confusion, detectives ascertained that Ramos was
describing a previously unknown offense committed in Johnson County.
Ramos indicated that a female victim had been shot during a burglary or
robbery and her green Toyota Tundra pickup truck had been stolen.
Ramos provided directions to the stolen Tundra, which detectives found
parked about a block from Gonzales’s house. Detectives checked the
truck’s registration and obtained the name and address of its owner, Nancy
Weatherly. They then contacted the Johnson County Sheriff’s Office and
drove to Weatherly’s house. A sheriff’s deputy joined them at the house.
They observed that the gate and garage door were open, and the back door
of the house was partially open. The interior had been ransacked.
Weatherly’s body was lying in the kitchen area next to a table and chair.
She had been shot once in the back of the head.
The investigation of this offense was ongoing when Fort Worth Detectives
William “Danny” Paine and Thomas Boetcher began questioning appellant
at the police station. The interview was recorded. Boetcher advised
appellant of his rights and appellant stated that he understood them.
When asked if he was willing to talk about the offenses, appellant
answered, “All right.” Paine and Boetcher initially questioned appellant
about the Fort Worth offenses. Later, as they received information about
the Johnson County investigation, they questioned appellant about that
offense as well.
Paine and Boetcher also obtained two typed and signed statements from
appellant that summarized his oral statement. The first typed statement
concerned the Fort Worth offenses. In it, appellant admitted his
involvement in the Abu–Lughod, Contreras, Morris, Martinez, Dodgin,
and bar patron robberies, as well as the Luna shooting. He also
acknowledged that Ramos did not participate in all of these offenses.
Appellant’s second typed statement concerned the instant offense. In it,
appellant admitted that he and Ramos had driven to Godley, where
appellant had threatened Weatherly with a gun and had burglarized her
house. Appellant denied shooting Weatherly, stating that after he and
Ramos had loaded what they wanted into the Tundra, appellant left the
gun inside with Ramos and went outside to start the car. He then heard
a shot and saw Ramos walking out of the house. With Ramos driving the
Tundra and appellant driving the car, they returned to Fort Worth.
After appellant signed the second typed statement, detectives questioned
him further. Appellant wavered about whether he or Ramos was the
person who shot Weatherly. Eventually, appellant stated that he would
confess to the shooting just to “get this over with,” and admitted that he
shot Weatherly. He also wrote and initialed a sentence at the end of his
second typed statement: “It was me that shot that wom[a]n!!!”
Appellant’s statements were not the only evidence that appellant
committed the instant offense. Estrada, who was riding in the Stratus with
appellant when it crashed, testified that appellant bragged to her about
killing an “old lady” in a house in Godley. Appellant told Estrada that he
knocked on the door, and when the lady opened it, he pointed the gun at
her. The lady backed up, and appellant made her sit down. Appellant told
Estrada that he killed one of the lady’s horses, which made the lady cry.
She begged for her life and prayed. When appellant showed the lady that
he was stealing her jewelry box, she asked him not to take it because it had
been a gift from her mother, who was now deceased. Appellant then told
her to go with her mother and shot her in the head. He demonstrated for
Estrada how he held out the gun and fired. He laughed about the incident
and ridiculed the lady’s “country” accent. He said that later, while taking
methamphetamine, he had flashbacks about killing the lady and “seeing
her brains go everywhere.”
Weatherly’s neighbor testified that she passed Weatherly’s house around
10:30 a.m. on June 29 and saw a green Stratus parked by the house, facing
the road. The next day, when she watched the news, she recognized the car
that had been recovered in Fort Worth as the car she had seen at
Weatherly’s house. Further, a law-enforcement officer testified that, while
he was transporting appellant and Ramos from Fort Worth to Johnson
County for pretrial proceedings, he overheard appellant telling Ramos that
all they needed to do was “play dumb,” and authorities would “get” the
man who pawned the guns (presumably a reference to Morales) on capital
Forensic evidence also connected appellant to the instant offense. Jennifer
Nollkamper, a forensic scientist with the Fort Worth Police Department
crime laboratory, determined that the shell casing recovered from
Weatherly’s home had been fired through the Hi–Point 9–millimeter
semi-automatic handgun recovered from the Stratus. Nollkamper testified
that the bullet recovered from Weatherly’s home was too damaged for her
to state affirmatively that it was fired from the recovered weapon, but she
could state affirmatively that it was fired from a Hi–Point 9–millimeter
semi-automatic handgun. Lannie Emanuel, a tool mark and firearm
examiner for a private forensic laboratory, agreed with Nollkamper’s
determination that the shell casing had been fired through the recovered
weapon. Emanuel, however, did not think that the bullet was too damaged
for a positive comparison. He testified affirmatively that the bullet
recovered from Weatherly’s home was fired from the recovered weapon.
William Walker, a fingerprint examiner with the Tarrant County Medical
Examiner, positively identified a latent fingerprint on an audiocassette case
in Weatherly’s spare bedroom as appellant’s fingerprint. A trace analyst
from the Tarrant County Medical Examiner’s Office identified gunshot
residue on appellant’s clothing and hands, the interior of the Stratus, and
a blue bandanna and towel that were recovered from the Stratus.
Soliz, 432 S.W.3d at 896-900.
II. COUNSEL’S DECISION NOT TO RETAIN A
FALSE-CONFESSION EXPERT (CLAIM 1)
Trial counsel moved to suppress all of the oral and written the statements made
by Soliz. 2 CR 264-67. The trial court denied the motion after a hearing. 9 CR 1746.
In his state habeas corpus application, Soliz argued that trial counsel were ineffective for
failing to present testimony from a false-confession expert during the suppression
hearing. He supported the claim with an affidavit from psychologist Gregory DeClue.
SHCR 36-48, 169. The state court overruled the claim. See SHCR 730, 749-50
(Respondent’s proposed findings of fact and conclusions of law), 771 (Order adopting
Respondent’s proposed findings and conclusions).
A. Clearly established federal law
The clearly established law for ineffective-assistance claims begins with Strickland
v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must demonstrate
that counsel’s representation was deficient, meaning that it fell below an objective
standard of reasonableness. Id. at 687-88. A petitioner must also demonstrate preju8
dice, meaning a reasonable probability, sufficient to undermine confidence in the
outcome, that but for counsel’s unprofessional errors the result of the proceeding would
have been different. Id. at 694. The failure to prove either deficient performance or
actual prejudice is fatal to an ineffective-assistance claim. Strickland, 466 U.S. at 700.
In addressing Strickland claims that have been adjudicated in state court, “[t]he
pivotal question is whether the state court’s application of the Strickland standard was
unreasonable,” not whether trial counsel’s performance fell below the Strickland standard.
Richter, 562 U.S. at 101. This review is “doubly deferential,” meaning the Court takes
a “highly deferential” look at counsel’s performance through the “deferential lens of
Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
Here, Soliz must
demonstrate, based on the state-court record, that it was unreasonable for the CCA to
conclude (1) he did not overcome the strong presumption of competence and (2) he did
not undermine confidence in the verdict. See id. at 190; § 2254(d)(2).
Facts before the state court
Soliz’s confession was admitted in audiovisual format, such that the trial judge
could see and hear the interview as it took place.
5 RR 200-201.
suppression hearing, counsel addressed suggestibility through cross-examination and
highlighted multiple risk factors for a false confession. See 5 RR 120-26, 149-51, 169-70
and 6 RR 30-35, 47-49, 55-56, 66 (drug use, drug withdrawal, mental health history,
and suggestibility); 5 RR 84-90, 127-35, 140, 153-55 and 6 RR 19-22, 24 (interrogation
techniques), 5 RR 142, 147-48 and 6 RR 26-29, 63 (sleep deprivation).
The habeas record included Dr. DeClue’s affidavit, in which he stated he would
have identified the following risk factors for an involuntary confession: Fetal Alcohol
Spectrum Disorder (“FASD”), suggestibility, and sleep deprivation in Soliz, plus interrogation techniques that included minimizing the offense, pressuring Soliz to change his
story, and failing to ask Soliz details that only a person who had witnessed the shooting
would know. SHCR 175-80. Dr. DeClue said he would have testified about these
factors, and he would have provided research, literature, and “an expert opinion to aid
the trial judge’s evaluation of the confession,” but he did not opine that Soliz’s
confession was false. SHCR 180-81, ¶ 42.
Trial counsel Michael Heiskell also provided an affidavit to the habeas court. He
said that the case-in-chief “painted a picture of overwhelming guilt,” and that a falseconfession expert was “totally unnecessary in light of the totality of the circumstances
surrounding the confession and the corroborating evidence that existed connecting Mr.
Soliz to the crimes.” SHCR 443, ¶ 2, 3. Trial counsel otherwise spent $193,737.23 on
experts in this case, according to the Johnson County Auditor. See 12 CR 2328. Three
experts on FASD and a prison classification expert testified at the punishment phase, in
addition to the following consulting experts: $7,500 for Dr. John Roache (1 CR 47);
$30,000 for mitigation specialist Dr. Jolie Brams (1 CR 48; 4 CR 721); $5,000 for Dr.
Raymond Singer (1 CR 112); $12,900 for Dr. Emily A. Fallis (1 CR 149; 12 CR 2213);
$5,000 for DNA expert Robert Benjamin, Ph.D. (4 CR 650); $13,008.88 for mitigation
specialist Mary Burdette (12 CR 2213); and $2,500 for jury consultant Bret Dillingham
(10 CR 1797). Counsel even used an expert, Dr. Brams, to coordinate his many
mitigation experts. 4 CR 719.
Counsel’s alleged deficiency
A reasonable argument exists that trial counsel met Strickland’s objective standard
of reasonableness. Counsel was clearly capable and willing to acquire expert assistance
when he believed it was necessary. Given the strength of the State’s case and the
circumstances of the confession, counsel could reasonably conclude that a confession
expert was not worth the expense and that expert fees were better spent on punishment
mitigation. Counsel did not overlook the suggestibility issues, but adequately developed
false-confession risk factors through cross-examination. He could reasonably conclude
that the trial judge’s ability to view the police interview in audiovisual format also
reduced the need or impact of an expert opinion. See 6 RR 116 (counsel’s argument that
the trial court “clearly heard and saw the demeanor of the Defendant”). Further, the
expert offered by Soliz, Dr. DeClue, did not opine that his confession was false. Such
an expert could be harmful to the defense in that the factfinder might presume that the
expert withheld his opinion because it would not support the defense. Soliz fails to
demonstrate that the state court’s ruling as to counsel’s choice of experts was
unreasonable. See Richter, 562 U.S. at 107 (holding that counsel is entitled to balance
limited resources in accord with effective trial tactics and strategies).
Strickland prejudice analysis
The state court also reasonably rejected Soliz’s assertion of prejudice. The expert
upon whom this claim is based did not conclude that Soliz’s confession was false. Dr.
DeClue states that, “proving conclusively that a confession is, in fact, false requires the
existence of verifiable contrary evidence,” but DeClue does not discuss any evidence that
contradicts Soliz’s confession. See SHCR 171, ¶ 11, 180 ¶ 40-42. The expert’s opinion
would have simply been cumulative “risk factor” evidence, albeit somewhat more
detailed than what trial counsel established through cross-examination without an
expert. And given that the trial judge viewed the confession for himself, the state court
could reasonably conclude that more “risk factor” information would not have changed
the outcome of the suppression hearing.
The confession aside, trial evidence includes testimony from Elizabeth Estrada
that Soliz bragged about shooting an “old lady” in the head in Godley. 44 RR 194-97.
Soliz gave Estrada details about the crime and told her he had flashbacks about killing
the lady and “seeing her brains go everywhere,” which describes the crime scene
43 RR 43-45 (description of crime scene); 44 RR 276-77 (Estrada’s
testimony). Weatherly’s neighbor also testified that a green Stratus was parked at
Weatherly’s house, facing the road, on the day her body was discovered. 44 RR 91-92.
A law enforcement officer who transported Soliz and Ramos to Johnson County
overheard Soliz tell Ramos that all they needed to do was “play dumb,” and authorities
would “get” the man who had pawned the guns (presumably, Ramon Morales) on capital
murder. 38 RR 123-24 (Morales’s testimony); 43 RR 226 (officer’s testmony). The
physical evidence included a shell casing and a bullet recovered from Weatherly’s home
that had been fired through the handgun recovered from the Stratus that Soliz used to
flee the police. 42 RR 121; 45 RR 139, 149-50. Soliz’s fingerprint was found on an
audiocassette case in Weatherly’s spare bedroom. 44 RR 126. Gunshot residue was
found on Soliz’s pants and hands, the interior of the Stratus, and the bandanna and
towel recovered from the Stratus. 45 RR 117. This evidence of guilt corroborates the
confession and is overwhelming.
The state court could reasonably reject the assertion that counsel’s failure to hire
an expert to provide more “risk factor” information undermines confidence in the
verdict. E.g., Leal v. Dretke, 428 F.3d 543, 549 (5th Cir. 2005) (finding no Strickland
prejudice where expert’s testimony was “not definitive” and State produced overwhelming evidence of guilt). The Court denies claim 1.
III. COUNSEL’S DECISION TO OFFER THE
CONFESSION INTO EVIDENCE (CLAIM 1A)
Soliz challenges trial counsel’s decision to offer his recorded confession into
evidence. Trial counsel offered the confession without qualification and for all purposes
on the fourth day of trial, during the recross-examination of Detective Paine. 41 RR
134-35. Soliz contends trial counsel were ineffective for doing so because they waived
any error in its admission for purposes of appeal. Pet. 26-30. Soliz acknowledges that
this claim was not raised in state court and is subject to procedural bar. He argues,
however, that state habeas counsel’s failure to raise the claim amounted to ineffective
assistance that excuses any procedural bar under Martinez v. Ryan, 566 U.S. 1 (2012)
and Trevino v. Thaler, 133 S. Ct. 1911 (2013). See Reply 1-2.
The absence or ineffectiveness of initial-review state habeas counsel can establish
cause for the procedural default of an unexhausted ineffective-assistance claim against
trial counsel. Martinez, 566 U.S. at 17; Trevino, 133 S. Ct. at 1921. To establish this
procedural-bar exception, petitioner must show (1) he had no initial state habeas counsel
or his initial state habeas counsel was ineffective under Strickland, and (2) the underlying
ineffective-assistance claim against trial counsel is “substantial,” meaning it has “some
merit.” Martinez, 566 U.S. at 14.
The claim against trial counsel
Soliz asserts “there can be no tactical justification whatsoever for trial counsel
offering Soliz’s confession into evidence.” Pet. 28. As noted in the previous discussion,
however, trial counsel believed, “[a]fter a thorough and exhausting review of all the
evidence,” that the evidence “painted a picture of overwhelming guilt.” SHCR 443, ¶ 2.
Counsel identified the mitigation issue as paramount in the “all but certain punishment
phase.” Id. With counsel’s mitigation strategy in mind, the Court turns to the record
to “affirmatively entertain the range of possible reasons” trial counsel may have had for
introducing the confession. See Pinholster, 563 U.S. at 196 (internal quotes and citations
omitted) (holding that federal court is required not simply to give the attorneys the
benefit of the doubt, but to entertain the range of possible reasons they may have had
for proceeding as they did).
The record demonstrates that trial counsel offered the confession to introduce the
defense theory that Ramos was the leader of their week-long crime spree, while Soliz,
due to cognitive deficits and FASD, was the “dumb criminal” who allowed himself to be
used and then confessed in writing. Counsel introduced this theory during opening
remarks when he said that Soliz “went on a crime spree” due to fetal alcohol syndrome,
which he described as “a brain damaging medical diagnosis,” mixed in with neglect and
drug abuse. 38 RR 42. Counsel said that FASD is a medical condition associated with
“law breaking” and “aggressive behaviors.” 38 RR 43. He asked the jury to pay close
attention to the role that Ramos played during the offense because the jury would hear
evidence that Soliz, due to his medical disorder, was “a follower.” 38 RR 43. Counsel
said that, while some of the crimes committed are unspeakable and heartbreaking, the
jury would see evidence of an “unspeakable, heartbreaking childhood,” and that Soliz
“is what he learned,” “is what he lived.” 38 RR 43-44. Trial counsel then developed this
theory during cross-examination of Detective Paine by showing:
Ramos and Arturo Gonzles were in the same gang and had known each other
longer than Ramos had known Soliz (41 RR 64);
Ramos sold or gave the murder weapon to Soliz (42 RR 32-33);
Ramos’s girlfriend, Maria Rivera, owned the car used in the first burglary, where
the murder weapon was procured (41 RR 79-80);
Ramos subsequently distanced himself by calling the police and reporting Rivera’s
vehicle “borrowed and not returned” (41 RR 81-82);
Ramos refused to sign a written statement and invoked his right to counsel (41
Soliz’s cohorts described him as psychotic and said he “wasn’t all there mentally”
(41 RR 90-91);
Ramos was very familiar with the criminal justice system and had prior
convictions for burglary, theft, evading arrest, solicitation of prostitution, assault
of a family member, and possession of a controlled substance (41 RR 92-94);
Ramos took possession of the jewelry proceeds from their crimes (41 RR 97);
Ramos made significant decisions during the Weatherly robbery, including
electing to drive Weatherly’s truck, and used his acquaintances to pawn stolen
items (41 RR 98-100); and
sometimes, criminals take advantage of and cause others to act on their behalf in
order to insulate themselves from liability (41 RR 100).
Trial counsel then introduced the confession and continued his cross-examination
of Detective Paine, contrasting Soliz to “smart criminals” who do not flee the police, do
not waive their rights, and do not implicate themselves on videotape. At the end of the
examination, Detective Paine admitted that sometimes “smart criminals” use “dumb
criminals” to do their dirty work. 41 RR 140.
During closing argument, counsel reminded the jury that the defense, not the
State, had introduced the confession. 47 RR 57. He argued that, because of Soliz’s
many impairments and the police tactics, the confession did not rise to the level of
evidence expected in a capital murder trial. 47 RR 58-59. He asked the jury to convict
Soliz of murder, not capital murder, because Soliz was “not the smart one here,” and the
because the State had failed to prove he had the intent to kill. 47 RR 60-62.
A reasonable argument exists that trial counsel met Strickland’s objective standard.
Reasonable counsel could have decided that the chance of success on appeal was slim
given the circumstances of the confession and other, strong evidence of guilt. See Arizona
v. Fulminante, 499 U.S. 279, 296 (1991) (establishing that erroneous admission of
confession is harmless if State can establish beyond a reasonable doubt that it did not
contribute to the conviction). By offering the confession rather than waiting for the
State to do it, counsel diluted its negative impact and presented himself to the jury as
forthright and honest. In doing so, counsel did not give up his adversarial role, but used
the confession to support the mitigation theory, undermine the reliability of the
confession, and argue for a murder conviction.
There are “countless ways” to provide effective assistance in any given case.
Strickland, 466 U.S. at 689. “Attorneys representing capital defendants often face
daunting challenges in developing strategies, not least because the defendant’s guilt is
often clear.” Florida v. Nixon, 543 U.S. 175, 191 (2004). In such cases, “avoiding
execution may be the best and only realistic result possible.” Id. (internal quotations
and brackets omitted). Such strategic choices, made after a thorough investigation of
the law and facts relevant to plausible options, are “virtually unchallengeable.”
Strickland, 466 U.S. at 690. “Such tactical decisions, made on an informed and reasoned
basis, do not fall below Strickland standards simply because they do not succeed as
planned.” See Jones v. Butler, 837 F.2d 691, 693-94 (5th Cir. 1988).
While Soliz takes issue with counsel’s chosen strategy, he does not address the
reasons for it that are obvious in the record and does not show that counsel’s approach
was inconsistent with the standards of professional competence. Moreover, Soliz does
not attempt to show he would have prevailed on an appeal of the suppression issue but
for trial counsel’s alleged error. Pet. 29. He states that “a confession by its nature
creates more potential for harm” than other types of evidence (Reply, p. 2-3), but does
not argue harm under the facts of this case. Accordingly, Soliz does not show that the
ineffective-assistance claim against trial counsel has “some merit.”
State habeas counsel’s alleged deficiency
Soliz was represented in state habeas proceedings by the Office of Capital Writs
(“OCW”), a Texas public defender’s office that specializes in post-conviction capital
litigation. OCW filed an application raising eighteen claims for relief supported by an
extra-record investigation. SHCR 8-439. Asserting that the confession was “powerful
and ultimately devastating” evidence, Soliz concludes that OCW’s failure to challenge
trial counsel’s waiver of the suppression issue resulted in a “total deprivation of Mr.
Soliz’s right to counsel under the Sixth Amendment” that satisfies Martinez. Pet. 29-30.
The record does not, however, support the assertion that Soliz was “totally deprived” of
counsel – at either at trial or on habeas review. As for showing prejudice, the amended
petition concludes without explanation that this very high burden is met. Pet. 30.
In an all-too-common approach, Soliz assumes that if he can show some merit to
the claim against trial counsel, then he has met his burden under Martinez to show that
state habeas counsel was ineffective in failing to challenge trial counsel’s representation.
This approach improperly pretermits a discussion of habeas counsel’s representation,
which would include the facts known to the attorneys at OCW and the reasons they had
for proceeding as they did. Soliz’s failure to address OCW’s representation under the
first prong of Strickland is fatal to his Martinez argument. Matthews v. Davis, 665 F. App’x
315, 321 (5th Cir. Nov. 3, 2016) (holding that procedural default is not excused under
Martinez simply because the ineffective-assistance-of-trial-counsel claim is substantial;
petitioner must show state habeas counsel was ineffective for failing to bring it).
Claim 1A is procedurally barred because the claim against trial counsel has no
merit and, alternatively, because Soliz does not attempt to show that OCW was
ineffective. See Martinez, 566 U.S. at 17. In the alternative, the Court finds the record
is sufficient to address this claim on the merits. For the reasons discussed de novo above,
claim 1A against trial counsel is denied on the merits. See § 2254(b)(2).
IV. ADMISSION OF SOLIZ’S CONFESSION (CLAIM 20)
Claim 20 challenges the trial court’s ruling to admit Soliz’s confession. Pet. 194200. Soliz raised this claim on direct appeal. He argued that the confession was
involuntary because he did not affirmatively waive his Miranda rights, and he made a
request to terminate the interview that the police ignored. See Appellant’s Opening
Brief, 32, 41-42 (points of error 3, 4); Miranda v. Arizona, 384 U.S. 436 (1966). As
discussed in the previous claim, the CCA ruled that Soliz waived any error with respect
to his confession when trial counsel offered it into evidence. Soliz, 432 S.W.3d at 90203.
A federal court will not review a question of federal law decided by a state court
if the state court decision rests on a state-law ground that is independent of the merits
of the claim and adequate to support that judgment. Coleman v. Thompson, 501 U.S. 722,
729 (1991), modified by Martinez, 566 U.S. 1. Respondent contends this claim is
procedurally defaulted because the state court ruling was based on a version of the
contemporaneous-objection rule, which is an independent and adequate state procedural
bar precluding federal habeas relief. The CCA ruling is repeated below:
By offering his oral statement into evidence, appellant waived error
concerning the trial court’s ruling on his motion to suppress this statement.
See Decker v. State, 717 S.W.2d 903, 908 (Tex. Crim. App. 1986) (stating
that, when appellant offered his confession into evidence before the jury
and the trial court admitted it as a defense exhibit, appellant waived his
objection to the admission of his confessions); see also Ex parte Moore, 395
S.W.3d 152, 157 (Tex. Crim. App. 2013) (stating that when a defendant
affirmatively asserts during trial that he has “no objection” to the admission of evidence, he waives any error in its admission despite a pre-trial
ruling denying his motion to suppress).
Appellant’s written statements were offered by the prosecutor and
admitted into evidence after appellant’s oral statement had been admitted
and published to the jury. These written statements were summaries of
the oral statement. Because appellate waived error with respect to his oral
statement, the admission of his written statements does not constitute
reversible error. See Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App.
Soliz, 432 S.W.3d at 903.
The contemporaneous objection rule, if that is what the CCA applied, is adequate
to preclude federal review. See Allen v. Stephens, 805 F.3d 617, 635 (5th Cir. 2015), cert.
denied, 136 S. Ct. 2382 (2016). The CCA did not, however, cite Texas Rule of Appellate
Procedure 33.1, which is the contemporaneous objection rule for preservation of error
on appeal. See Grado v. State, 445 S.W.3d 736, 738-39 (Tex. Crim. App. 2014). To the
extent the opinion appears to rest on trial counsel’s assertion that he had “no objection”
to the written confessions, the record does bear this out. Trial counsel actually stated,
“No additional objections” to the written statements. 41 RR 150 (emphasis added).
Neither did the CCA rely on the fact that trial counsel did not assert the particular
Miranda objections upon which the claim is based. Rather, it was counsel’s decision to
offer the oral statement into evidence that “waived” the appellate claim.
Based on the trial record and the CCA reasoning, it appears that the CCA might
have applied the invited-error doctrine. See Woodall v. State, 336 S.W.3d 634, 644 (Tex.
Crim. App. 2011) (“the law of invited error provides that a party cannot take advantage
of an error that it invited or caused, even if such error is fundamental”). But see Prystash
v. State, 3 S.W.3d 552, 531 (Tex. Crim. App. 1999) (explaining that invited error is a
type of “estoppel” not “waiver”). Like the contemporary objection rule, the invited-error
doctrine qualifies as a state procedural bar which may preclude federal review. See
Druery v. Thaler, 647 F.3d 535, 545-46 (5th Cir. 2011), cert. denied, 565 U.S. 1207
Whichever procedural bar the state court applied, Soliz may overcome it by
showing cause for the default and actual prejudice, or demonstrating that the failure to
consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S.
at 750. Soliz does not make an argument to overcome the default. Pet. 194-200; Reply
1-3. It is therefore barred. See Druery, 647 F.3d at 545 (refusing to address alleged error
in omission of jury instruction where Druery’s attorney rejected the instruction at trial
and Druery did not show trial counsel was ineffective in doing so).
Alternatively, the invited-error doctrine applies on federal habeas review as well.
Id. at 545 (citing United States v. Green, 272 F.3d 748 (5th Cir. 2001); Fields v. Bagley,
275 F.3d 478 (6th Cir. 2001); Parker v. Champion, 148 F.3d 1219 (10th Cir. 1998);
Wilson v. Lindler, 8 F.3d 173 (4th Cir. 1993)). Regardless of any state-court ruling, this
claim is procedurally barred in this Court under Druery because trial counsel invited any
error by introducing the oral confession at trial.
In the alternative, the Court addresses the merits of the claim de novo. Soliz
contends his confession was inadmissible because the police did not comply with
Miranda, 384 U.S. 436. Under Miranda, a statement made by a person during custodial
interrogation is not admissible unless the person was informed that he has the right to
remain silent, that any statement he makes may be used against him, and that he has
the right to the presence of an attorney. Id. at 444. The accused may waive these rights
provided the waiver is made voluntarily, knowingly, and intelligently. Id.
Soliz first complains that, while he stated he understood his Miranda rights and
wanted to talk, he did not state specifically that he “waived” those rights. Pet. 198.
But federal law does not require a formal or express statement of waiver. Berghuis v.
Thompkins, 560 U.S. 370, 383 (2010). A waiver of Miranda rights may be implied
through “the defendant’s silence coupled with an understanding of his rights and a
course of conduct indicating waiver.” Id. at 384 (citing North Carolina v. Butler, 441 U.S.
369 (1979)). Soliz explicitly stated he was willing to talk to the detectives after
confirming that he knew his rights, and he participated in the interview. 58 RR 8-9 (SX
1A, interview transcript). This course of conduct sufficiently shows that he understood
and knowingly waived his rights. See Thompkins, 560 U.S. at 388-89 (holding that
suspect who has received and understood Miranda warnings and has not invoked his
rights, waives the right to remain silent by making an uncoerced statement to police).
Soliz next contends that his confession was involuntary because the police ignored
his request to terminate the interview when he said, “I wish I could get up and leave . . .
but I can’t . . . guys got me shackled here.” 58 RR 21. As Soliz asserts, the accused’s
right to cut off questioning must be scrupulously honored or his statement will be
inadmissible. Michigan v. Mosley, 423 U.S. 96, 104 (1975) (citing Miranda). The
invocation of the right to remain silent must, however, be unambiguous. Thompkins, 560
Were the record limited to the portion of the written transcript relied upon by
Soliz, his argument might hold some sway. 58 RR 21-22. But the recording shows that,
thirty minutes into the interview, Detective Paine was running out of patience. He said
that, if he were Soliz, he would want people to know if he felt sorry for what he did.
Paine stated, “[B]ut you know what. . . if you don’t feel sorry for it, Mark. . . then I’d
just as soon get up and leave . . . because I don’t . . . I don’t waste time with people who
don’t feel sorry. . .” (DVD time stamp 5:44:00) (emphasis added). Soliz then made the
statement: “I wish I could get up and leave . . . but I can’t . . . guys got me shackled
here,” with an emphasis on “could.” In response, Paine clarified that he said “I,” not
“you,” would get up and leave. Soliz replied, “Oh,” and the interview continued. After
about twenty minutes, Soliz agreed to sign a statement admitting to several of the
extraneous offenses. This was followed by another forty minutes of interview and
another written statement about Weatherly’s murder.
The recording shows that Soliz misheard the detective say that he, Soliz, could
get up and leave. Soliz’s response that he wished he could get up and leave – with an
emphasis on “could”– was not a request to terminate the interview. It was a statement
regretfully acknowledging that he was shackled and under arrest. Soliz did not say that
he wanted to stop talking. The fact that he immediately continued his conversation with
the detective supports the interpretation that he simply misheard the detective say he
could get up and leave if he was not sorry. See Davis v. United States, 512 U.S. 452, 462
(holding that the statement, “Maybe I should talk to a lawyer” was not a request for
counsel); Hopper v. Dretke, 106 F. App’x 221, 231-32 (5th Cir. 2004) (holding that
question, “Can I go back and think about it?” was ambiguous invocation of right to
remain silent and did not require cessation of questioning). Because the underlying
factual assertions are not supported by the record, claim 20 is denied.
Certificate of Appealability
The Court concludes, however, that jurists of reason could debate the Court’s
application of a procedural bar. The Court also concludes that reasonable jurists might
differ in their interpretation of Soliz’s comment, “I wish I could get up and leave.” The
Court therefore grants a certificate of appealability as to claim 20. See 28 U.S.C.
§ 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
V. TRIAL COUNSEL’S IMPEACHMENT OF
ELIZABETH ESTRADA (CLAIM 2)
As discussed, Elizabeth Estrada testified for the prosecution about incriminating
statements made to her by Soliz, particularly regarding the murders of Weatherly and
Martinez. In her testimony, Estrada admitted that she gave the police a statement in
June of 2010 that had omitted this incriminating information. 44 RR 179-80. Estrada
then explained how she came to agree to testify for the State. She said she had been
subpoenaed by the grand jury but failed to appear, resulting in a criminal misdemeanor
charge. 44 RR 209. She then entered into a plea bargain agreement with the prosecutor
in exchange for testifying in this case. In October of 2010, Estrada met with the
prosecutor as part of the plea agreement and told the prosecutor the same incriminating
information that was in her trial testimony. Estrada was then placed on probation but
she violated her probation and disappeared. She was re-arrested on a felony charge,
which was pending at the time she testified. 44 RR 209-14. Estrada stated she was
testifying to make good on a promise she had made to the prosecutor to do the right
thing. When asked if it was a “safe thing” for her to testify, Estrada replied, “Hell, no.”
44 RR 215. It is apparent from the prosecutor’s closing argument that Estrada was
handcuffed and shackled during her testimony. 47 RR 27.
On cross-examination, trial counsel emphasized that Estrada had a motive to
please the prosecutor for various reasons, including maintaining her current probation,
obtaining a favorable disposition of the pending felony, and regaining custody of her
children from CPS. 44 RR 216-17, 222-25, 234-37, 255-56. Estrada admitted under
cross-examination that she had been angry with Soliz during the October interview with
the prosecutor because he had disrespected her and Ramos. 44 RR 272-73. Counsel also
established that Estrada did not tell the prosecutor about a letter Ramos had written her,
reminding her of their friendship. 44 RR 226-28, 252-54.
In state habeas court, Soliz argued that trial counsel was ineffective for failing to
further impeach Estrada with inconsistencies in the October statement. SHCR 48, 5154. The state court misconstrued the claim, however, as pertaining to inconsistencies
with the prior statement she made to the police in June of 2010. SHCR 750-51. The claim
before this Court is ineffective assistance for failing to impeach Estrada with her October
statement. Pet. 37; SHCR 257 (Ex. 8, Estrada’s statement to prosecutor). Thus, this
claim was presented in state court but not decided on the merits. The AEDPA standard
therefore does not apply, and the Court addresses the claim de novo. See Rompilla v.
Beard, 545 U.S. 374, 390 (2005) (citing Wiggins v. Smith, 539 U.S. 510, 534 (2003));
Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003) (holding that AEDPA standards
do not apply to claims not adjudicated on the merits in state court).
Counsel’s alleged deficiency
Soliz acknowledges that trial counsel (1) cross-examined Estrada about her desire
to testify in exchange for favorable treatment on the felony charge, (2) highlighted how
she was better friends with Ramos and may have been protecting Ramos at Soliz’s
expense, (3) attacked her credibility based on her criminal history and drug abuse, and
(4) noted that none of Estrada’s testimony matched her initial statement to the police.
Pet. 35-36. Soliz nevertheless argues that counsel should have done more to identify
discrepancies between her testimony and what she told the prosecutor in October of
2010. Pet. 38-39. The discrepancies are identified as follows: (1) whether Soliz told
her about the Ruben Martinez murder in person or by telephone, (2) the extent of
Ramos’s participation in Martinez’s murder, as told by Soliz, (3) whether Soliz and
Ramos verbalized their intent to “get Ruben [Martinez],” (4) whether Soliz said he shot
Martinez in the head or in the neck, (5) whether Soliz told Estrada about the Weatherly
murder and the Martinez murder in one conversation or two, (6) whether Soliz told
Estrada that they killed Weatherly’s horse or that he only told Ramos to “get” the horse,
(7) whether Soliz was “busting” on Weatherly’s door or simply knocked, (8) whether
Estrada knew “Tat Man,” the man found in possession of Weatherly’s television, and
(9) who fired the gun in the drive-by shooting on Pearl Street. See Pet. 38.
Soliz relies on case law holding counsel to be ineffective when, as Soliz describes
it, counsel “declines to cross-examine a witness at all or in near entirety.” Pet. 40. As
he recognizes, this is not a case where counsel declined to cross-examine a witness. Pet.
35-36. Counsel’s approach to impeaching Estrada was comprehensive, and Estrada’s
motivation to please the prosecution was made apparent by her handcuffs and shackles.
Trial counsel could reasonably decide that there was no benefit to be gained from
additional impeachment based on the October statement because the inconsistencies
enumerated above pale in comparison to the potential harm. Specifically, Estrada’s
October statement contained evidence of Soliz’s retaliatory nature that could have been
emphasized through re-direct examination and would have undermined the defense
theory that Soliz was just a follower in the crime spree. The October statement discusses
Soliz’s reputation for killing people who snitch, Estrada’s estrangement from her family
due their fear of her association with Soliz, and Estrada’s belief that Soliz caused her
house to be “shot up” while her children were there. SHCR 261, 269, 289.
Furthermore, trial counsel used Estrada to benefit the defense. Estrada was a
contemporary of Soliz; her upbringing on the north side of Fort Worth was similar to
his. Estrada described her experience with ice, marijuana and inhalants, joining a gang
at age twelve, dropping out of school, and living on the streets. 44 RR 218-22, 248-49,
251. This testimony lent credibility to defense testimony later presented at the punishment phase that would echo these same themes regarding Soliz’s childhood. 50 RR 136263; 51 RR 6-31. Estrada related other helpful information that Soliz was mentally sick,
“tripping,” having flashbacks, and beating his head against the wall before his arrest,
which tended to support the theory that Soliz struggled with mental health problems.
44 RR 237-39. Given this useful information, counsel could have reasonably decided
that attempting to destroy Estrada’s credibility by quibbling about minor inconsistencies
with her October statement would yield little benefit. This strategy was reasonable, and
“[s]peculating about the effect of tinkering with the cross-examination questions is
exactly the sort of hindsight that Strickland warns against.” See Castillo v. Stephens, 640
F. App’x 283, 292 (5th Cir. Feb. 8, 2016) (citing Strickland, 466 U.S. at 689). Soliz fails
to overcome the presumption that counsel’s cross-examination was sound trial strategy.
Strickland prejudice analysis
The Court alternatively considers the question of prejudice de novo and concludes
that the inconsistencies Soliz contends counsel should have emphasized are not the type
that would alter the trial outcome. Some of the inconsistencies concern details that are
insignificant or possibly even harmful if highlighted through impeachment (whether
there was one conversation or two, whether Soliz shot Martinez in the head or the neck,
whether the horse was shot, whether they busted on Weatherly’s door or knocked).
Other inconsistencies relate to extraneous offenses (the Martinez murder, the drive-by
on Pearl Street) which, other than their minimal impeachment value, would not have
yielded a benefit in the guilt phase of trial. To the extent impeachment would have
highlighted Estrada’s inconsistent statements about what Soliz told her, it would have
emphasized the fact that Soliz could have cleared up these inconsistencies by testifying,
but did not do so.
Finally, as noted, impeachment would have revealed harmful
information in the October statement about Soliz’s violent, retaliatory nature.
Soliz fails to demonstrate a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel’s alleged error the result of the proceeding
would have been different. See generally Leal, 428 F.3d at 549 (finding no Strickland
prejudice when evidence of guilt is overwhelming). The Court overrules claim 2.
VI. COUNSEL’S FAILURE TO LODGE HEARSAY
OR CONFRONTATION CLAUSE OBJECTION (CLAIM 3)
Trial evidence showed that, by the time they were arrested, Soliz and Ramos had
been connected to multiple crimes in and around Fort Worth, including an aggravated
robbery involving Jorge Contreras and his green Dodge pickup. 39 RR 249; 40 RR 60,
188. When Detective Paine questioned Ramos about the Contreras robbery, Ramos
confused the offense with a previously unknown offense involving a Toyota truck. Based
on information he provided, the police located the Toyota truck and identified the
owner as Nancy Weatherly. 38 RR 269; 41 RR 27-29, 31-35. They contacted the
Johnson County Sheriff, who went to Weatherly’s home and discovered her body. 41
RR 35-36; 42 RR 56.
In state habeas proceedings, Soliz argued that trial counsel rendered ineffective
assistance when he failed to make a hearsay or confrontation-clause objection to
Detective Paine’s testimony describing this interview with Ramos. The state habeas
court denied the claim on the merits. SHCR 55, 751-52. The state court appears to
have held that the testimony was “technically” hearsay “in the academic sense,” but
non-prejudicial, even as it concluded it was not offered for the truth of the matter
asserted. SHCR 752. As discussed below, the Court concludes that the testimony was
not hearsay precisely because it was not offered to prove the truth of the matter asserted.
See Tex. R. Evid. 801(d) (defining hearsay). But this disagreement does not change the
reasonableness of the state court’s ultimate ruling denying the claim. See Charles v.
Stephens, 736 F.3d 380, 387-88 (5th Cir. 2013) (holding that AEDPA review involves
only the state court’s ultimate legal determination, not every link in its reasoning).
In claim 3, Soliz asserts the state court unreasonably analyzed the facts against
Strickland. Pet. 43. Citing Crawford v. Washington, 541 U.S. 36 (2004), he contends that
counsel should have objected to Paine’s testimony on hearsay or Confrontation Clause
grounds because Paine relayed testimonial, out-of-court statements by Ramos. Soliz
argues that counsel’s failure was highly prejudicial because Ramos’s statements were the
first link in the investigation tying Soliz to the capital murder. Pet. 46-49.
The trial judge would have properly overruled an objection under Crawford
because Crawford applies only to out-of-court statements that are used to establish the
truth of the matter asserted. Id. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414
(1985) (non-hearsay use of co-defendant’s confession raises no Confrontation Clause
concerns)); see Williams v. Illinois, 567 U.S. 50, 79 (2012) (noting Crawford proviso that
Confrontation Clause applies only to out-of-court statements used to establish truth of
the matter asserted). Detective Paine’s brief description of Ramos’s statements were not
hearsay and did not violate Soliz’s confrontation rights because they were not used to
prove the truth of the matter asserted, i.e., to prove that the crime “should not have
ended that way” or that the Toyota truck was located on a certain street. Paine’s
testimony was used to show how the Weatherly murder came to the attention of the
police. See United States v. Smith, 822 F.3d 755, 762 (5th Cir. 2016) (no Crawford
violation where out-of-court statements were introduced to show how law enforcement
developed suspects, rather than for the truth of matter asserted). Further, while the
complained-of testimony led to the discovery of Weatherly’s body, it did not on its face
incriminate Soliz. See Richardson v. Marsh, 481 U.S. 200, 208 (1987) (statement of nontestifying co-defendant admissible where it does not implicate defendant on its face and
any implication required linkage with other trial evidence).
A reasonable state court could have denied this ineffective-assistance claim against
trial counsel based on the conclusion that the complained-of testimony was not hearsay
and did not violate the Confrontation Clause and that, therefore, a trial objection would
have been futile. See Koch v. Pucket, 907 F.2d 524, 527 (5th Cir. 1990) (recognizing that
counsel is not required to make futile motions or objections). Alternatively, because the
complained-of testimony did not, standing alone, incriminate Soliz but only led the
police to a previously unknown murder, the state court could reasonably conclude there
was no Strickland prejudice. The Court overrules claim 3.
VII. APPELLATE COUNSEL’S REPRESENTATION
REGARDING RAMOS’S DECLARATION (CLAIM 4)
Claim 4 also relates to Detective Paine’s testimony about how Ramos
inadvertently informed him of Weatherly’s murder. During cross-examination of Paine,
trial counsel sought to inquire about a plea bargain that Ramos allegedly made with the
prosecution eighteen months later, whereby Ramos received a life sentence in the case.
Trial counsel argued that the existence of the plea bargain was admissible under Texas
evidence rule 806 to show Ramos’s lack of credibility and bias at the time he was
interviewed by Detective Paine. 42 RR 5-11.
Rule 806 provides in pertinent part:
When a hearsay statement–or a statement described in Rule 801(e)(2)(C),
(D), or (E) [including a coconspirator’s statement made during and in
furtherance of the conspiracy] . . . –has been admitted in evidence, the
declarant’s credibility may be attacked, and then supported, by any
evidence that would be admissible for those purposes if the declarant had
testified as a witness. The court may admit evidence of the declarant’s
statement or conduct, offered to impeach the declarant, regardless of when
it occurred or whether the declarant had an opportunity to explain or deny
it. If the party against whom the statement was admitted calls the
declarant as a witness, the party may examine the declarant on the
statement as if on cross-examination.
Tex. R. Evid. 806 (emphasis added). The trial court overruled “without prejudice” the
request to cross-examine Paine about the existence of a plea agreement. 42 RR 11.
Appellate counsel, John Stickels, did not challenge this particular ruling on appeal,
and the habeas petition asserted that this was ineffective assistance. SHCR 61. The
state court rejected the claim because (1) there was no evidence that Paine had personal
knowledge of any plea agreement, as required by Texas evidence rule 602, and (2) a plea
agreement made in December of 2011 was irrelevant in that it had no bearing on the
truthfulness or credibility of a statement made by Ramos in June of 2010. SHCR 753.
In claim 4, Soliz assumes Ramos’s declaration is hearsay and argues that proof of
bias, including pending criminal charges, is always relevant. Pet. 51-52. Soliz asserts he
was harmed by Mr. Stickels’s ineffective representation because Paine’s testimony that
Ramos said “it was wrong that–how it ended, it didn’t have to end that way,” implies
that Soliz shot Weatherly. Pet. 52.
For Strickland claims of ineffective assistance against appellate counsel, Soliz must
show (1) that appellate counsel unreasonably failed to discover and brief a nonfrivolous
issue and (2) a reasonable probability that, but for counsel’s unreasonable failure, he
would have prevailed on his appeal. See Smith v. Robbins, 528 U.S. 259, 285 (2000).
This Court may grant relief only if the state court was unreasonable in making this
Factual and legal analysis under Strickland/Robbins
The amended petition does not articulate a clear argument to surpass the bar to
federal review in § 2254(d). To the extent Soliz is complaining that the state court’s
determination of the relevant facts was unreasonable in light of the evidence, Soliz does
not meet his burden to rebut the factual findings by clear and convincing evidence. See
§ 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013). The record shows that Ramos
inadvertently alerted the police to Weatherly’s murder by confusing Weatherly’s Toyota
truck with Contreras’s Dodge truck. 41 RR 29 (“He indicated that he thought we were
talking about the same truck, but he kept saying ‘she’”). There is no suggestion that
Ramos intentionally told Detective Paine about Weatherly’s murder, let alone that he
did so in order to reap the benefits of a future plea bargain. And since Ramos’s
statements were not offered to prove the truth of the matter asserted, but only to show
what was said to Paine, Ramos’s credibility was not an issue at trial. Thus, Soliz fails
to demonstrate that the state court made an objectively unreasonable determination of
the facts in ruling that the plea bargain agreement was irrelevant.
To the extent Soliz may be complaining that the state court unreasonably applied
Strickland/Robbins, the Court notes that the error that Mr. Stickels is alleged to have
overlooked on appeal is grounded in Texas evidence rule 806, which allows the
impeachment of a hearsay declarant. The trial judge observed that there were no hearsay
statements identified that would trigger rule 806. 42 RR 11. The state court’s ruling
was also based on Texas evidence rule 602, which requires a testifying witness to have
personal knowledge of the matter about which he testifies. See 42 RR 8-9; SHCR 753.
The state court’s interpretation of its own rules may not be overruled by this
Court. See Charles v. Thaler, 629 F.3d 494, 500-01 (5th Cir. 2011) (holding that federal
habeas court lacks authority to rule that a state court incorrectly interpreted its own
law). Because the state court ruled there was no error in the trial court’s application of
the Texas rules, it follows that Soliz cannot show that appellate counsel overlooked a
nonfrivolous issue on appeal. Alternatively, because the state court concluded there was
no state-law error, Soliz cannot demonstrate Strickland prejudice, that is, a reasonable
probability of success on direct appeal.
Soliz fails to demonstrate an unreasonable determination of facts or an
unreasonable application of Strickland/Robbins. See Amador v. Quarterman, 458 F.3d 397,
412 (5th Cir. 2006) (ruling that, because state habeas court held evidence admissible
under Texas law, the result of petitioner’s appeal would not have been different had
appellate counsel raised the claim, and the state court’s rejection of ineffective assistance
claim against appellate counsel was not unreasonable); Young v. Dretke, 356 F.3d 616,
628 (5th Cir. 2004) (holding in context of Strickland claim that court could not review
correctness of state court’s interpretation of state law).
Other federal law
The Court has addressed this claim as a Strickland claim against appellate counsel
for failing to raise an allegation of trial error under the Texas evidence rules. To the
extent the amended petition relies on a Constitutional right to inform the jury that
Ramos was a suspect in the offense on trial (Pet. 51), the Court rejects this claim as well.
The jurors knew that Ramos was a suspect in the crime spree, a co-defendant in
Weatherly’s murder, and a gang member with an extensive criminal history. They
learned this from the opening statements (38 RR 27, 29, 35, 36, 42-43) and from the
trial testimony (38 RR 153, 192-94; 39 RR 19, 30-33, 55, 70-71, 97, 106; 40 RR 40,
52, 125-26, 185; 41 RR 10, 91-94). Defense counsel even gave a hypothetical closing
argument for the State’s case against Ramos. 47 RR 40-41.
Soliz’s citation to Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) does not
avail him. There, the Supreme Court held that it was error under the Confrontation
Clause to deny counsel’s request to cross-examine a witness about his agreement to
testify in exchange for the dismissal of a criminal charge. Id. at 679-80. The Court
explained that an important and proper function of the confrontation and crossexamination right is to expose a witness’s motivation in testifying. Id. at 678-79. Unlike
the witness in Van Arsdall, Ramos’s potential bias was not relevant because he did not
testify and his statements, as related by the witness Detective Paine, were not used to
prove the truth of the matter asserted. See Williams, 567 U.S. at 79 (holding that, if trial
judge did not rely on statement for its truth, there is no way around the proviso in
Crawford that the Confrontation Clause applies only to out-of-court statements used to
establish the truth of the matter asserted). Also unlike Van Arsdall, there is no evidence
that Ramos agreed to cooperate with the police in exchange for a life sentence. Indeed,
a ruling by the trial court allowing the requested “impeachment” of Ramos as a hearsay
declarant would have conflicted with circuit law by improperly informing the jury of
Ramos’s life sentence. See Cordova v. Johnson, 157 F.3d 380, 383 (5th Cir. 1998). Soliz
fails to show an unreasonable application of federal law or an unreasonable determination of facts. The Court denies claim 4.
VIII. COUNSEL’S STRATEGY FOR THE ADMISSION OF
GANG EVIDENCE DURING THE GUILT PHASE (CLAIM 5)
At the guilt phase of trial, the prosecution presented testimony from Officer
Alaniz with the Fort Worth Gang Unit indicating that the police had connected a rash
of robberies to a gang member with the street name, “Kilo.” 39 RR 53. Alaniz learned
that both Soliz and Ramos used the street name Kilo, although they belonged to
different gangs. 39 RR 55. With defense counsel’s agreement, Alaniz also described
photographs of Soliz’s gang tattoos. 39 RR 77-84.
In state habeas proceedings, Soliz argued that counsel were ineffective for failing
to object to this testimony under Texas evidence rule 404(b), which restricts the use of
crimes, wrongs, or other acts to prove a person’s character. SHCR 65, 67; see Tex. R.
Evid. 404(b). The state court disagreed, finding the evidence was relevant for a noncharacter purpose because it was through his gang name “Kilo” that Soliz became a
suspect. The court also reasoned that the gang evidence supported counsel’s overarching
mitigation theme regarding Soliz’s character and upbringing. SHCR 754. In claim 5,
Soliz contends the state court unreasonably denied the claim. Pet. 53-59.
Counsel’s alleged deficiency
Soliz reasserts the state-law based argument that he made in state court. SHCR
67-70. This Court lacks authority, however, to conclude that the state court incorrectly
applied its own law. See Charles, 629 F.3d at 500-01. Because the state court concluded
the gang evidence was admissible under Texas evidence rule 404(b) for a non-character
purpose, it follows that reasonable trial counsel could choose not to object. Koch, 907
F.2d at 527 (counsel is not required to make futile motions or objections).
The amended petition also includes a citation to United States v. Hamilton, 723
F.3d 542, 546 (5th Cir. 2013), a federal authority that was not cited or argued in state
court. Pet. 57, 58; SHCR 65-70. Hamilton holds that testimony by an arresting officer
elaborating on the defendant’s probable, but unproven, current gang membership was
inadmissible under the federal evidence rules. Respondent contends the argument based
on Hamilton is unexhausted. The Court agrees and concludes that relief under Hamilton
is precluded by the failure to exhaust. See § 2254(b)(1)(A). Alternatively, Hamilton is
a circuit court opinion based on circuit precedent and provides no basis for habeas relief
under § 2254. See White v. Woodall, 134 S. Ct 1697, 1702 n.2 (2014)(stating that
clearly established federal law for purposes of § 2254 is the actual holdings of the
Supreme Court, not circuit case law).
Furthermore, the record upholds the state court’s conclusion that the gang
evidence supported the overarching defense mitigation theme. Trial counsel wanted to
“set the stage” for the mitigation evidence early in the case, and that mitigation evidence
included “intense negative characteristics” from a very young age due to FASD, “exacerbated by his mother’s highly dysfunctional lifestyle and habits.” See SHCR 443-44;
e.g.,53 RR 84-88, 205. One of those characteristics was an early fascination with gangs.
51 RR 206, 212; 55 RR 219-20. Through cross-examination of Officer Alaniz, trial
counsel identified the risk factors for gang membership that the defense would later
show applied to Soliz: lack of a father in the home, older sibling in a gang, childhood
neglect, lack of parental attachment, a need for protection, and mental health issues.
Alaniz discussed the prevalence of gangs in north Fort Worth where Soliz grew up, why
people join gangs, and how gangs prey on vulnerable young males and entice them with
drugs, alcohol, and guns. 39 RR 84-87, 109-13, 119-21. Alaniz, who also grew up on
the north side, never joined a gang. He attributed his good fortune to the fact that his
father worked and his mother stayed home, in stark contrast to Soliz’s childhood. 39
RR 87-88, 95. The discussion of gangs also provided trial counsel with the opportunity
to inform the jury of Ramos’s gang membership, specifically, his affiliation with the gang
house they were in immediately prior to arrest and his association with “the biggest gang
within the Texas Department of Corrections.” 39 RR 97-101, 107, 110.
Trial counsel’s cross-examination of Alaniz provided a sympathetic explanation
for Soliz’s gang affiliation. It also supported the theory that Ramos was the person in
charge. Soliz provides no clearly established federal law demonstrating that this strategy
was in any way outside the wide range of reasonable professional assistance.
Strickland prejudice analysis
Alternatively, Soliz fails to demonstrate an unreasonable ruling regarding
prejudice. Soliz contends the gang testimony harmed him because of the likelihood that
the jury presumed he was acting in conformity with his bad character by killing
Weatherly. Pet. 58. But the trial court’s charge contained the following instruction,
which did not allow the jury to consider the gang testimony as character evidence:
You are instructed that if there is testimony before you regarding the
defendant having committed offenses, wrongs, or acts other than the
offense charged in the indictment in this case, now on trial before you, you
cannot consider said testimony for any purpose unless you find and believe
beyond a reasonable doubt that the defendant committed such conduct,
if any were committed, and even then you may only consider the same in
determining the motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident of this defendant now on trial before you, or
rebuttal of a defensive theory, and for no other purpose.
11 CR 2082-83 (emphasis added); see Tex. R. Evid. 404(b). Juries are presumed to
follow their instructions. See Blueford v. Arkansas, 132 S. Ct. 2044, 2051 (2012).
Moreover, given the strong evidence of guilt previously discussed, the state court
could reasonably conclude that the gang evidence did not cause Strickland prejudice. See
Henderson, 333 F.3d at 603 (admission of gang evidence at guilt phase did not prejudice
Henderson where evidence of guilt was overwhelming). The Court overrules claim 5.
IX. COUNSEL’S STRATEGY FOR THE ADMISSION OF EXTRANEOUSOFFENSE EVIDENCE AT THE GUILT PHASE (CLAIM 6)
Claim 6 concerns evidence of the week-long crime spree that was introduced
during the guilt phase of trial. Prior to trial, the parties stipulated under Devoe v. State,
354 S.W.3d 457, 469-70 (Tex. Crim. App. 2011) that three unadjudicated extraneous
offenses – Soliz’s evasion of arrest, the robbery of Sammy Abu-Lughod, and the burglary
of the Circelli home – were admissible as “same-transaction contextual evidence” under
rule 404(b). 38 RR 12-14. The Circellis first testified that they lost several guns in a
home burglary on June 22, 2010. 38 RR 47-108. Ramon Morales bought some of those
guns from Soliz, who refused to sell a 9-mm handgun, saying he had plans for it. 38 RR
116-21. Witnesses testified about the aggravated robbery of Sammy Abu-Lughod, in
which his green Dodge Stratus and cell phone were taken. 38 RR 191. Abu-Lughod
testified that he replaced his stolen phone and received a call on the new phone from a
woman looking for “Kilo.” 38 RR 218. This information was relayed to the police, who
connected the street name Kilo to both Soliz and Ramos. 38 RR 191-92. Abu-Lughod
identified Soliz from a photographic lineup with ninety-percent certainty that he was the
individual who had robbed him. 38 RR 195-96. Later, a 9-1-1 employee suspected that
a “teal four-door sedan” reported in a carjacking on June 29th was the green Stratus
stolen from Abu-Lughod. 38 RR 251-52. When the police spotted the Stratus, they
initiated a traffic stop and eventually arrested Soliz. 38 RR 256-67; 39 RR 128-57.
This was the general extent of the prosecution’s extraneous-offense evidence.
During the cross-examination of Detective Cedillo, however, trial counsel asked the
detective about the robbery of Justin Morris in a mall parking lot, the shooting of Luis
Luna through the ear, the attempted robbery of Kenny Dodgin in a Lowe’s parking lot,
the robbery of Jorge Contreras’s pickup, a drive-by shooting at the Ramirez residence,
a robbery of two couples outside a bar, and the Samaniego and Martinez shootings. 39
RR 15-24. On redirect examination, the prosecution elicited more details regarding the
circumstances of the extraneous offenses plus two burglaries in Benbrook, for a total of
thirteen separate events. 39 RR 26-35; 45 RR 196, 204-05.
In the state habeas proceedings, Soliz complained that trial counsel’s strategy not
to object to and to affirmatively introduce the extraneous offense evidence was ineffective assistance. Soliz argued that counsel opened the door to what would have been
inadmissible evidence at the guilt stage and that the jury convicted him based on a
perceived propensity for violence. Soliz argued that counsel misread Texas case law
regarding same-transaction contextual evidence and that counsel’s strategy of “frontloading” damaging evidence at the guilt phase has been deemed unreasonable by Texas
courts. SHCR 78. The state court rejected the claim because the evidence was either
admissible under evidence rule 404(b) or served the defense theory that FASD plus the
lack of parental supervision had a devastating effect on Soliz’s physical, mental, and
psychological development. SHCR 755-56. In claim 6, Soliz contends the state court’s
ruling was an unreasonable application of Strickland. Pet. 59-71.
Counsel’s alleged deficiency
To the extent this claim is based on a disagreement with the state court’s
interpretation of state law governing the admission of “same-transaction contextual
evidence,” the Court lacks authority to conclude that the state court incorrectly applied
its own evidentiary law. See Charles, 629 F.3d at 500-01. Trial counsel is not ineffective
for failing to object to evidence deemed admissible as same-transaction contextual
evidence by the state court under state law. Koch, 907 F.2d at 527 (recognizing that
counsel is not required to make futile motions or objections).
The record also supports the reasonableness of counsel’s “frontloading” strategy,
whereby counsel introduced the remaining extraneous offenses. As previously noted,
when the defendant’s guilt is clear, the best and most realistic strategy available to
counsel may be avoiding execution. See Nixon, 543 U.S. at 191. Such “conscious and
informed” decisions on trial tactics and strategy cannot be the basis for constitutionally
ineffective assistance “unless it is so ill-chosen that it permeates the entire trial with
obvious unfairness.” Woodward v. Epps, 580 F.3d 318, 329 (5th Cir. 2009).
Because trial counsel believed the evidence against Soliz and Ramos was more
than sufficient to convict, he decided to focus the jury on the compelling and overwhelming nature of his mitigation evidence. SHCR 443. Counsel used the extraneous
offense evidence at the guilt phase to “set the stage” for the mitigation theory and
prevent the prosecution from diluting the defense presentation at punishment. See
SHCR 444, ¶ 4. During opening remarks, counsel prepared the jury to hear this defense
theory by stating that his client went on a crime spree with Ramos as a result of brain
damage caused by FASD “mixed in with neglect . . . mixed in with his drug of choice at
this time, methamphetamine or ice. . . mixed in with alcohol.” 38 RR 42. Counsel then
used the State’s witnesses to develop the defense theory during the guilt phase.
His cross-examination of Officer Alaniz about risk factors for gang membership
is one example. 39 RR 84-121. Counsel also elicited testimony about Ramos’s and
Soliz’s original desire to trade the guns for “ice.” 38 RR 133. Counsel questioned
Detective Cedillo about the increased use of methamphetamine in the Fort Worth area.
39 RR 12-13. Cedillo agreed that the extraneous offenses occurred in the early morning
hours, when methamphetamine would cause “a person to be delusional and up all night.”
39 RR 37. Counsel elicited testimony from Detective Paine that people under the
influence of methamphetamine can appear delusional and psychotic, which is exacerbated in people with mental health issues. 41 RR 130-31. Counsel questioned Estrada
about growing up, like Soliz, in north Fort Worth, with access to methamphetamine,
inhalants, and marijuana, and about how, unlike Soliz, she had received counseling to
cope. 44 RR 221-22, 243, 279-80. Estrada also supported the defense theory of mental
disability by testifying that Soliz beat his head against the wall and had flashbacks
before his arrest. 44 RR 237-38. A second aspect of the defense strategy was to
demonstrate that Soliz was not as smart or savvy as Ramos and that Ramos had used
Soliz. The testimony supporting this strategy was enumerated in claim 1A and will not
be repeated here. See 41 RR 64, 79-82, 89-94, 97-100, 140; 42 RR 32-33.
Trial counsel could reasonably conclude that a strategy focused on obtaining a
not-guilty verdict would be fruitless, given the strength of the State’s evidence and the
availability of the law of parties. See Tex. Penal Code Ann. § 7.02(a) (parties) and
7.02(b) (parties-conspiracy); 11 CR 2079-80 (jury charge). Trial counsel presented
mitigation evidence that painted a vivid and sympathetic picture of Soliz as a child
whose upbringing left him no chance for a normal life. Its impact was due not only to
its content, but to the fact that the prosecution’s most aggravating evidence had been
presented days earlier, at the guilt phase. In doing so, counsel re-characterized what was
arguably the State’s most aggravating evidence – Soliz’s criminal history – into a
symptom of his medical diagnosis. This strategy allowed counsel to introduce the jury
to his mitigation theory early in the case, and it established a foundation to argue that
Soliz was Ramos’s pawn, while explaining and desensitizing the jury to his extensive
criminal history. Soliz presents no authority condemning this strategy as “so ill-chosen
that it permeates the entire trial with obvious unfairness.” See Woodward, 580 F.3d at
329. In truth, counsel presented a comprehensive narrative in support of the case for
life that connected both the guilt phase and the penalty phase, while minimizing the
inconsistencies between them. See Nixon, 543 U.S. at 191-92 (holding that counsel may
reasonably focus on penalty phase rather than put on a “he didn’t do it” defense and a
“he is sorry he did it” mitigation case at sentencing). Thus, a reasonable argument exists
that counsel satisfied Strickland.
Strickland prejudice analysis
Soliz contends he was harmed because the jury convicted him based on the
assumption that he acted in conformity with his character for violence. As noted earlier,
the jury was instructed otherwise, 11 CR 2082, and juries are presumed to follow their
instructions. See Blueford, 132 S. Ct. at 2051. Further, the evidence of guilt was
overwhelming. The state court could have reasonably rejected Soliz’s assertion of
prejudice. E.g., Wilson v. Cockrell, 75 F. App’x 983, *13-14 (5th Cir. 2003) (affirming
that admission of extraneous misconduct at guilt was harmless, given the substantial
evidence supporting conviction). The Court denies claim 6.
X. PROSECUTOR’S CLOSING ARGUMENTS (CLAIM 7 & 13)
In his state habeas application, Soliz asserted that trial counsel rendered
ineffective assistance for failing to object to the prosecutor’s argument (1) calling for the
jury to meet the expectations of the victim’s family and the community, (2) referring to
Soliz as “that,” and (3) insinuating he was a womanizer. SHCR 80-86; 126-29. The
state court held that the complained-of arguments were proper under state law and
denied the claims. SHCR 756 (claim 7), 763 (claim 13). Soliz disagrees and argues that
the remarks violated Texas law by asking the jury to “lend its ear to the community and
the victim’s family,” arguing facts outside the record, and engaging in argument
calculated to inflame the passion and prejudice of the jury. He asserts counsel was
ineffective for failing to object. Pet. 75-81.
Appeal to the community and victim’s families(both phases of trial)
Soliz argues in claim 7 and 13 that, at both phases of trial, the prosecutor
improperly asked the jury to consider the expectations and desires of the community and
the victim’s family. Pet. 75-76. The Court disagrees with this characterization of the
prosecution’s argument and concludes the state court ruling was reasonable.
Most of Soliz’s crime spree occurred in and around the city of Fort Worth,
Tarrant County. But Weatherly’s murder and, therefore, the trial, occurred in rural
Johnson County. A Tarrant County assistant district attorney, Elizabeth Jack, was
deputized to assist Johnson County officials in prosecuting the case. 1 CR 49, 76. In
his jury argument, defense counsel implied that Ms. Jack had to come from Fort Worth
to assist the Johnson County district attorney because the State’s evidence was weak.
47 RR 52 (“It’s not just a matter of bringing the best Prosecutor. You’ve got to bring
the best evidence.”), 59-60, 63.
Claim 7 involves the rebuttal to this argument, wherein the Johnson County
prosecutor explained that they do not have a lot of capital murders in Johnson County,
that Soliz’s crimes were problems for both counties, and that the jury got the best effort
from both counties. 47 RR 68-69, 74-75. He did not argue that the community or the
victim’s family expected a guilty verdict, but rather, he asked the jury to “do what the
law and the evidence demand.” 47 RR 69. Claim 13 involves the continuation of this
theme at the punishment phase. 57 RR 29-30, 90. But again, the prosecution did not
assert that the community or the victim’s family expected a death sentence. The
complained-of arguments were legitimate responses to the defense argument criticizing
the use of another county’s “best” prosecutor.
To the extent the state court concluded the prosecutor’s arguments were
permissible under state law, this Court may not overturn its decision that counsel was
not ineffective. See Koch, 907 F.2d at 527 (recognizing that counsel is not required to
make futile motions or objections); Charles, 629 F.3d at 500–01 (holding that federal
court lacks authority to conclude that the state court incorrectly applied its own law).
Further, the arguments are permissible under circuit law. See Jackson v. Johnson, 194 F.3d
641, 655 (5th Cir. 1999) (holding that the prosecution may appeal to the jury to act as
the conscience of the community and emphasize the importance of deterrence and
seriousness of the charges). Soliz does not demonstrate that the state court’s ruling was
an unreasonable determination of the facts or an unreasonable application of clearly
established federal law. See Pet. 75–76 (claim 7), 80 (claim 13).
Passing girls around “like party favors” (guilt phase of trial)
In claim 7, Soliz complains that Ms. Jack argued irrelevant facts outside of the
record and inflamed the jury by speculating that Soliz was a womanizer. Pet. 76-77.
Soliz cites to state law and to Johnson for support, which holds that the prosecution “may
not appeal to the jury’s passions and prejudices.” Johnson, 194 F.3d at 655. Again, the
record does not support Soliz’s characterization of the argument.
While processing Nancy Weatherly’s truck for evidence, the police collected a
drinking straw, a beer bottle, and a compact disc from the CD player. A fingerprint on
the compact disc and DNA profiles on the straw and beer bottle were all connected to
Arturo Gonzales. 44 RR 48, 63-64, 133. In closing argument, Ms. Jack argued that
Gonzales had nothing to do with Weatherly’s murder. To explain how his fingerprint
and DNA ended up in Weatherly’s truck, Ms. Jack stated, “What did Pipa [Estrada] tell
you? Stolen cars, and I imagine sadly like girls, get passed around like party favors.” 47
RR 33. This was an overt reference to Estrada’s testimony that stolen cars get passed
around and also to her testimony describing her romantic relationships with both Ramos
and Soliz. 44 RR 200-29, 233, 266, 272-74, 278-79. If anything, the comment
portrayed Estrada, not Soliz, as a person who enters into casual sexual relationships.
The argument was based on testimony in the record, and the state court could
reasonably conclude it did not condemn Soliz as a womanizer.
“That” (guilt phase of trial)
In claim 7, Soliz asserts that the prosecutor’s reference to him as “that” rather
than by his name attempted to dehumanize him and improperly inflamed the jurors to
base their verdict on emotion rather than evidence. Pet. 77-78. However, the trial
evidence supports this characterization. In response to Weatherly praying, begging for
her life, and pleading Soliz not take her deceased mother’s jewelry box, Soliz told her to
join her mother and shot her in the back of the head. He laughingly retold the story to
Estrada while making fun of Weatherly’s “country” accent and embellished it by suggesting he had killed Weatherly’s horse. Given the cruel nature of the crime and Soliz’s
inability to empathize with his helpless victim’s terror, the state court could reasonably
conclude that the prosecutor’s colorful reference to Soliz as “that” rather than by name
was a reasonable deduction from the evidence.
Further, this claim relies on an unpublished state-court opinion; it fails to identify
an unreasonable application of clearly established Supreme Court law. Circuit law, in
fact, compels the denial of relief. See United States v. Ebron, 683 F.3d 105, 147 (5th Cir.
2012) (holding that pejoratives like “shark” and “grim reaper” are not plainly improper);
United States v. Malatesta, 583 F.2d 748, 759 (5th Cir. 1978) (holding that unflattering
characterizations of defendant as “con man” and “hoodlum” do not require a new trial
when supported by the evidence); see also United States v. Bourgeois, No. C-02-CR-216,
2011 WL 1930684, *104 (S.D. Tex. May 19, 2011) (holding that Government’s
isolated reference to capital murder defendant as a “thing” was not improper).
Strickland prejudice analysis
Alternatively, Soliz fails to demonstrate that the state court’s rejection of
Strickland prejudice was unreasonable.
Assuming the foregoing arguments were
improper, the jury was told that the lawyer’s statements were not evidence. See 11 CR
2084 (“it is only from the witness stand that the jury is permitted to receive evidence
regarding the case, or any witness therein” ). Further, the arguments were made, in part,
as a response to defense counsel’s arguments. They did not misstate the evidence. The
Court disagrees with Soliz’s assessment of the strength of the evidence against him at
the guilt stage, nor was this a close case at punishment, considering the sheer amount
of violent conduct committed by Soliz in a week’s time (including another capital
murder) and his extensive criminal history. The state court could reasonably conclude
that Strickland prejudice was not shown at either stage of trial. See Darden v. Wainwright,
477 U.S. 168, 182 (1986) (holding that prosecutor’s argument, while improper, did not
render trial unfair where argument did not misstate the evidence, did not implicate a
specific right, was responsive to the defense, and the jury was instructed that counsel’s
arguments were not evidence, and the weight of evidence against defendant was heavy).
The Court denies claims 7 and 13.
XI. VICTIM-IMPACT EVIDENCE CLAIMS (CLAIMS 8 & 10)
Claims 8 and 10 are based on the alleged improper admission of victim-impact
evidence at both phases of trial.
Claim 8 - assistance of appellate counsel
At the guilt phase of trial, the State introduced testimony from Mary Smith and
her niece, Kila Davis, who was married to Weatherly’s son. Defense counsel lodged a
“relevance” objection to their testimony, but the trial court overruled it. 46 RR 9, 17.
Smith described going to Weatherly’s home and talking to police during the murder
investigation. Smith said the police left Weatherly’s house in her care when they
completed the investigation because Weatherly’s son was on vacation with his family.
Smith and her husband cleaned the home prior to the family’s return. 46 RR 6-16. Kila
Davis described Weatherly, her mother-in-law, as her best friend. She provided personal
information about Weatherly and identified items missing from her home and truck.
Davis said her family left for vacation two days before Weatherly’s murder, and she
described how her family heard the news of Weatherly’s death. Davis identified a
picture of Weatherly in life, posing with her grandchildren. 46 RR 17-27.
In his state habeas application, Soliz argued that appellate counsel was ineffective
for failing to appeal these two rulings because they improperly allowed victim-impact
testimony at the guilt stage. SHCR 86-92. The state court denied the claim because the
issue was not preserved for appellate review as required by Texas Rule of Appellate
Procedure 33.1 and Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). It also
held that the testimony was not victim-impact evidence because it did not speak to the
effect that Weatherly’s murder had on others. SHCR 757-58. Soliz contends the state
court unreasonably denied the claim because the trial rulings were preserved for
appellate review and because victim-impact testimony is inadmissible at the guilt stage
under Texas law and Payne v. Tennessee, 501 U.S. 808 (1991). Pet. 83-88.
As noted previously, Soliz must show that appellate counsel unreasonably failed
to discover and brief a nonfrivolous issue and show a reasonable probability that, but for
counsel’s unreasonable failure, he would have prevailed on his appeal. See Robbins, 528
U.S. at 285. This Court may grant relief only if the state court was unreasonable in
making this determination.
State law analysis
Strickland does not require counsel to make futile arguments. See Koch, 907 F.2d
at 527. Therefore, if the claim was not preserved for appeal, it follows that appellate
counsel would not be ineffective for failing to raise it on appeal. The state court here
ruled that the relevance objections did not preserve the issue under Texas appellate rule
33.1 and Pena, which states that the complaining party must clearly convey to the trial
judge the particular complaint, “including the precise and proper application of the law
as well as the underlying rationale.” Pena, 285 S.W.3d at 463-64. Soliz does not
elucidate why this ruling is incorrect, and this Court is not authorized to conclude that
the state court incorrectly applied its own appellate rules. See Charles, 629 F.3d at 50001. The state court could reasonably decide that appellate counsel was not deficient in
foregoing the unpreserved claim on appeal.
Federal law analysis
Alternatively, the state court could reasonably decide that appellate counsel was
not ineffective because any error in the admission of the evidence would have likely been
deemed harmless on appeal. Soliz references Payne v. Tennessee, which lifted the per se bar
against victim-impact testimony under the Eighth Amendment and delegated to the
states whether to admit such evidence at sentencing. Pet. 83. The Supreme Court
reasoned that victim-impact testimony may be admitted at sentencing to counteract the
mitigating evidence that the defendant is entitled to present by “reminding the sentencer
that just as the murderer should be considered as an individual, so too the victim is an
individual whose death represents a unique loss to society and in particular to his
family.” Payne, 501 U.S. at 825. The Supreme Court described victim-impact testimony
as testimony “about the victim and about the impact of the murder on the victim’s
family.” See Payne, 501 U.S. at 827.
Soliz does not provide any clearly established federal law regarding the admission
of such evidence at the guilt phase. But to the extent that the testimony imparted
details about Weatherly as a person and to the extent that Davis described her family’s
reaction to the news of Weatherly’s death, this testimony was probably admitted at the
guilt phase in error. Though such testimony is often necessary as a preliminary matter
to explain the facts and circumstances of the crime, in the broadest sense, it was testimony “about the victim and about the impact of the murder on the victim’s family.” See
id. But see Mosley v. Quarterman, 306 F. App’x 40, 46 (5th Cir. 2008) (affirming district
court ruling that testimony describing wife receiving news of husband’s death, feeling
“numb” and falling apart, and going to the hospital to see her husband was not victimimpact evidence).
Nevertheless, the descriptions of Weatherly were brief and closely tied to the
investigation of the murder scene. The testimony describing her family’s reaction related
what happened only at the time the family learned of the murder; it describes how any
family might react. The testimony did not have the same effect or purpose as the victimimpact testimony contemplated by Payne, which is to show the family’s loss due to the
uniqueness of the victim. Payne, 501 U.S. at 823. By way of contrast, the victim-impact
testimony Davis and her sons provided later, at the punishment phase, discussed details
of Weatherly’s childhood, her battle with cancer, and the activities she enjoyed with her
grandsons. 56 RR 42-59. Furthermore, the prosecutor did not rely on the complainedof testimony during her guilt-phase argument. 47 RR 23-40, 63-75.
Under these circumstances, a state court could reasonably conclude that any claim
of error asserted on appeal would have been deemed harmless. In other words, a state
court could reasonably decide that there was no reversible error under Payne, and that,
therefore, appellate counsel could reasonably decide not to press such a claim on appeal.
See Jones v. Barnes, 463 U.S. 745, 751 (1983) (defendant has no right to compel counsel
to press non-frivolous points on appeal if counsel, as a matter of professional judgment,
decides not to present those points); Mosley, 306 F. App’x at 46-47 (denying COA where
district court held that failure to object to similar testimony did not cause prejudice due
to overwhelming evidence of guilt); see generally Cantu v. State, 939 S.W.2d 627, 637
(Tex. Crim. App. 1997) (holding that erroneous admission of extraneous victim-impact
testimony at punishment was harmless beyond a reasonable doubt where testimony
comprised less than 20 pages out of 700 pages of testimony, the state did not mention
the testimony during argument, and the overwhelming focus during punishment phase
was on Cantu’s behavior and the circumstances of the offense). Because Soliz fails to
show that the state court ruling involved an unreasonable application of clearly
established federal law, the Court denies claim 8.
Claim 10 - assistance of trial counsel
Soliz next complains that trial counsel failed to object to punishment-phase
victim-impact testimony about Ruben Martinez, a murder victim not named in the
Specifically, Arnold Dominguez, a lifelong friend and co-worker of
Martinez, testified that Martinez was driving the delivery truck that he should have been
driving that day. Dominguez also said that Martinez’s family was important to him,
that Martinez was expecting another child, and that he visited Martinez in the hospital
every day until he died. Martinez was paralyzed and could only communicate by
blinking. Dominguez identified a picture of Martinez in his hospital bed. 49 RR 73-93.
Martinez’s wife, Lisa, testified at punishment as a rebuttal witness. She described
meeting and marrying her husband, the occasion she last saw him, her pregnancy, their
extended family, and how she learned of the shooting. She said her mother drove her
and her son to the hospital, where she visited her husband every day. He communicated
by moving his eyebrows and blinking his eyes. The doctors told her almost immediately
that her husband would die, but she refused to believe it at first. During this time, she
was numb with shock, “basically just a zombie.” She showed the jury a family picture
and described their childhood in north Fort Worth, his work ethic, the importance of
family to him, and how she missed him every day. 56 RR 30-38.
In his state habeas application, Soliz argued that trial counsel were ineffective for
failing to object to the foregoing testimony on the ground that it was improper
“extraneous victim-impact testimony” because Martinez was not the victim named in the
indictment. SHCR 95-101. The state court overruled the claim, holding that the
evidence was relevant under the Texas capital punishment statute because it had some
bearing on Soliz’s personal responsibility and moral culpability and rebutted the
defensive mitigation evidence. The state court did not address the fact that Martinez
was not the victim named in the indictment. SHCR 758-60.
In claim 10, Soliz asserts that no reasonable jurist could countenance the state
court’s conclusions. There are two problems in the presentation of this claim, however.
First, the argument relates only to the testimony regarding “the effect of an offense on
people other than the victim.” Pet. 92. The claim does not differentiate the medical
testimony describing Martinez’s injuries, which is permissible under Texas law. See
Garcia v. State, 126 S.W.3d 921, 929 (Tex. Crim. App. 2004) (holding that medical
records of injured bystander were not improper victim-impact evidence); Guevara v. State,
97 S.W.3d 579, 583-84 (Tex. Crim. App. 2003) (distinguishing Cantu because third
party testimony only described unindicted victim’s head injuries and resulting mental
impairment); Mathis v. State, 67 S.W.3d 918, 927-28 (Tex. Crim. App. 2002). The
claim also does not differentiate the “victim-character” testimony, which may have
different rules of admissibility due to the fact that Texas allows such testimony from
unindicted victims who survive. See Mays v. State, 318 S.W.3d 368, 393 (Tex. Crim.
App. 2010) (unindicted victims injured in same transaction may testify about their own
injuries, losses, and changes in their lives that resulted from shoot-out with police
officers); Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007) (extraneous
robbery victim may testify about impact of robbery on her life); Mosley v. State, 983
S.W.2d 249, 262 (Tex. Crim. App. 1998) (noting that jurisprudence in this area has
been inconsistent and confusing but holding that the introduction of victim-character
evidence is admissible at a capital sentencing proceeding). In short, the claim requires
the Court to sift through the evidence and identify the offending testimony using
“inconsistent” and “confusing” state law which was not addressed by the state court in
the first instance.
Second, other than Payne, Soliz cites no federal authority. Soliz acknowledges
that Payne left the states to decide what, if any, victim-impact statements may be made
during the punishment phase of a capital trial. Pet. 89-95. Payne does not address the
circumstances where a witness testifies about a victim who is not named in the indictment. Although Soliz states that Payne forbids such testimony, he does not explain how.
Pet. 92. The Court will not make Soliz’s arguments for him. Because of the problems
in the presentation of this claim, Soliz has not met his burden to show the state court’s
“prong 1” ruling under Strickland was unreasonable. See § 2254(d).
Alternatively, Soliz does not demonstrate the prejudice ruling was unreasonable.
When assessing prejudice, “the question is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether it is possible a reasonable doubt
might have been established if counsel acted differently.” Richter, 562 U.S. at 111. The
question is whether it is “reasonably likely” the result would have been different. Id.
“The likelihood of a different result must be substantial, not just conceivable.” Id. at
Soliz contends that, but for a proper objection by trial counsel, the jury would not
have heard the inflammatory testimony and would have voted in favor of a life sentence.
He also points out that the prosecution highlighted Mrs. Martinez’s
testimony by saving it for rebuttal and emphasizing it during argument as follows:
When I think of Ruben Martinez, and you heard from his—from Lisa
yesterday. Oh, what hard testimony to listen to. You saw the video. The
word I think of when I think of Ruben, “Daddy”, “Dad.” A daddy, dad,
father. You know there was no chance to really effectively say goodbye.
You know that he was locked in, encased in that body that didn’t work
anymore. You recognize, I know, the agonizing, suffering that took place,
trying so hard to communicate, just being able to blink. But Daddy. You
know those children. You know there are two. Daddy. They’ll never be
able to run to the hugs of their daddy. They will never be able to see his
proud smile. They’ll never be able to hear his words of comfort. They’ll
never be able to learn from his words of wisdom. All because of this man
over there. His choices. A thief who comes in the night. A coward, a
bully, who comes to steal, a few pieces of silver, a few dollars. Thank you.
57 RR 28-29.
Soliz also complains that the prosecution argued that the friends and family
members “who loved Ruben Martinez . . . await your justice and they await your
verdict.” 57 RR 30.
Soliz’s assertion of prejudice relies on Haley v. State, 173 S.W.3d 510, 518 (Tex.
Crim. App. 2005), which held that the admission of victim-impact evidence relating to
an extraneous murder offense was harmful error. This case is vastly different from Haley,
however. Haley was convicted of cocaine possession in a joint trial with a co-defendant.
Haley and her co-defendant had previously participated in an unrelated murder that the
State introduced at the punishment phase of their drug trial, including victim-impact
testimony from the murder victim’s mother. Haley received a 65-year sentence for
cocaine possession. Id. at 512, 517. In reversing the sentence, the CCA noted that the
cocaine indictment did not name a victim. The CCA concluded the victim-impact
testimony was harmful because the State made an extended argument concerning the
suffering of the murder victim’s family, and it was a “prominent piece” of the State’s case
for a weighty sentence in the cocaine trial. Id. at 518-19.
In contrast, the offense in this case is capital murder, a more serious and violent
crime than drug possession, not a “victimless” crime. Unlike the jury in Haley, which
heard no victim-impact testimony related to the crime on trial, the jury here heard such
testimony from Weatherly’s daughter-in-law, Davis, who testified at the punishment
phase (as well as at the guilt phase, as previously discussed). Davis provided significant
victim-character and victim-impact evidence regarding Weatherly’s difficult childhood,
the loss of Davis’s husband’s business due to grief and depression, Weatherly’s loving
relationship with two grandsons, and the fact that Weatherly had survived a rare form
of cancer only to be murdered six weeks after being declared cancer-free. 56 RR 42-49.
Weatherly’s 18- and 13-year-old grandsons also testified about their relationship with
Weatherly and what they would miss without her. 56 RR 50-59.
The complained-of testimony from Mr. Dominguez and Mrs. Martinez was brief,
comprising about fourteen pages out of seven volumes of punishment-phase testimony.
And while the State mentioned the testimony in its argument, it was not the focus of the
State’s punishment case. The State’s punishment evidence focused on the week-long
crime spree which included, in addition to the Martinez murder: three home burglaries,
a drive-by shooting at a residence, an attempted shooting of a Lowe’s employee, two
carjackings, the aggravated robbery of four people at a bar, the shooting of Luis Luna
through the earlobe, the attempted capital murder of Mr. Samaniego, and, of course, the
capital murder of Nancy Weatherly.
Nor was Mr. Martinez the only extraneous victim the jury heard about. Kenny
Dodgin, the Lowe’s employee, tearfully testified to being shot at multiple times and
thinking he would never see his family again. 49 RR 14. The jury saw pictures of Mr.
Samaniego recovering from life-saving surgery in the hospital, including graphic pictures
of his wound from sternum to naval. 49 RR 70-71. They saw pictures of the hole in
Mr. Luna’s ear lobe. 48 RR 164-65. None of this testimony is challenged by Soliz.
The State’s punishment case also rested on Soliz’s juvenile history, including
burglary of a coin-operated machine, theft, attempted burglary of a motor vehicle,
burglary of a habitation, burglary of a building, and criminal mischief, as well as a
history of aggressiveness, sexually inappropriate behaviors, conduct disorder, and
substance abuse. 48 RR 32-33; SX 404, 405, 406. The State introduced his adult
criminal history, including unauthorized use of a motor vehicle, four vehicle thefts,
evading arrest or detention, felony theft, burglary of a motor vehicle, criminal trespass,
burglary of a habitation, unlawful restraint, and possession of a prohibited weapon. 48
RR 34-37; SX 407-424. The State introduced testimony of Soliz’s misbehavior in jail,
including possession of sharpened metal, possession of a shard from a broken coffee cup,
flooding his cell on multiple occasions, refusing to allow his hands to be cuffed behind
his back, threatening a jail officer, breaking the telephone, and “bumping” the officers
who escorted him to court. 48 RR 54, 58, 62, 69-70; 49 RR 131-32, 160-67, 191-97.
The jury viewed jail recordings of him being subdued with pepper spray. 48 RR 60, 62,
65. A jail officer testified that Soliz had trapped her hands by pulling his hands through
the food slot in his cell door while she was tightening his handcuffs. 49 RR 149-52.
Another jail officer testified that Soliz broke his cell light, wrestled with an officer,
played with his penis during a medical visit, and slipped out of a handcuff during a
medical visit, which caused the jail to invest in new handcuffs with a box cover. 48 RR
135-53. On the second day of trial, Soliz freed himself from the box and laughingly
admitted it to the guard. 49 RR 175-86.
Unlike Haley, where the state relied primarily on the extraneous murder to get a
65-year sentence for drug possession, the complained-of testimony in this case was a very
small part of the overall case against Soliz that supported a death sentence. The state
court could reasonably conclude that Soliz did not show a substantial likelihood of a
different result at sentencing. The Court overrules claim 10.
XII. CUMULATIVE DEFICIENT PERFORMANCE (CLAIM 9)
Soliz argues that claims 1, 2, 3, 5, 6, and 7 collectively deprived Soliz of
constitutionally effective counsel during the guilt phase and create a reasonable
probability that, taken as a whole, they affected the trial outcome. Pet. 95-99; Strickland,
466 U.S. at 686. The state habeas court denied this claim. SHCR 758.
The Court has denied these claims individually, based on a lack of Strickland
deficiency or prejudice, under the applicable standard. Accordingly, there is nothing to
cumulate. See United States v. Hall, 455 F.3d 508, 520 (5th Cir. 2006) (recognizing that
ineffective assistance cannot be created from the accumulation of acceptable decisions
and actions). It bears repeating that most of these claims implicate counsel’s strategy
to offer at the guilt stage of trial aggravating information about Soliz because it
supported the overarching mitigation theme of FASD and counsel believed a guilty
verdict was a foregone conclusion.
The Court agrees with this assessment of the
evidence, and counsel did not lose anything by this strategy.
Counsel used the
mitigation theory to undermine the reliability of the confession and argue for a lesserincluded murder conviction. Counsel gave the jury a preview of his mitigation case and
forced the State to present a significant portion of its punishment case at guilt, thereby
leaving Soliz’s punishment presentation substantially “undiluted” by the State’s
In other words, counsel presented a comprehensive narrative in support of the
case for life that connected both the guilt phase and the penalty phase, while minimizing
the inconsistencies between them. See Nixon, 543 U.S. at 192 (holding that counsel
cannot be deemed ineffective for attempting to impress the jury with his candor and his
unwillingness to engage in a useless charade by presenting a run-of-the-mill strategy
challenging the prosecution’s case at the guilt phase). Claim 9 is denied.
XIII. SOLIZ’S LETTER TO A PROSPECTIVE JUROR (CLAIM 11)
During its rebuttal case in punishment, the prosecution offered a letter Soliz had
written to a prospective juror who had been excused during jury selection. The State
offered the letter to refute a defense expert who testified that Soliz had deficits in
adaptive and mental functioning and that he was equivalent to a child under six years
of age in some respects. See 54 RR 37-40, 46-47, 53-62; 55 RR 5-6 (testimony of Dr.
Connor); 56 RR 11-13. Defense counsel objected to the letter in part because it might
force counsel to testify on the issue of how Soliz had obtained the prospective juror’s
mailing address. 56 RR 10, 12, 15.
The trial judge stated that he did not want to end up in a situation where counsel
had to testify. 56 RR 13. The State agreed not to present testimony that the addressee
was a prospective juror, and the parties agreed to redact the portion of the letter
identifying the addressee as a prospective juror. 56 RR 16-17. The redacted letter was
admitted without further objection. 56 RR 17. The redacted letter states:
Hey, how are you doing? But first let me start this letter off by
sayin that you get this letter In da Best of Health & Highest of Spirit, that
you and your love ones are in good hand.
Well, as you know you don’t know me but my name is (Mark
Anthony Soliz). [redaction] At da same time, I was caught up in that
smile of yours. Had me smileing myself on which I uselly don’t. There
was something about you that got my attention. You keep wavein your
hand up I don’t know if that was a sign to say that you was married or it
was a Engagement Ring. I don’t know. So I’m asken R U with anyone?
You said something about your a missionary. What kind of work
do you do? In how far R U into it? As of me self I’m Catholic. I do
understand why you left da Catholic Religions. I’m kind of been thinken
about taking da same path as you. Been thinken about it for some years
now. I’m sorry but I’m 30 years old. Just turn 30 this year. Any
suggestion on it? I’m in to readen alot of book that got to do with
scientific term of da bible. If you don’t understand, there is this person
that write books. His name is Jame P. Gill. That write [illegible] Religion
but in Scientific terms. I would like to know if there any way that you can
send me any booklet that will help me cause here at the Jail they don’t
have much info. We just read with we got. Its hard for me to put what I
got to say in words. Cause I’m not good at spelling that [illegible].
I realized that I’m taken up to much of your time. You probably got
to much Responsibility on your hand to be worrien about some Inmate
that lock up. By any way, if you do answer back I would like to keep a line
of Communications [illegible] to get more knowledge on da word of God.
Thank you for readen this letter!
Hope to hear from you!
In God name!
[Mark Anthony Soliz]
P.S. Take care & God Bless You & your love ones. I’m out!
SHCR 300; 62 RR 84-85; Ans. 110, n.33.
In his state habeas application, Soliz argued that trial counsel were ineffective for
failing to object to the letter under Texas Evidence Rule 403, which states:
The court may exclude evidence if its probative value is substantially
outweighed by the danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.
Tex. R. Evid. 403. The state court overruled the claim, concluding that the evidence
would have survived a rule-403 analysis under state law. SHCR 760.
In claim 11, Soliz reasserts his state court argument that a rule-403 objection
would have been successful in excluding the evidence at trial. He argues that the
probative value was substantially outweighed by the risk that the jury would panic about
Soliz’s ability to contact them and base their verdict on emotions rather than the
evidence. The argument is based on Soliz’s assertion that, despite the redactions, it was
“clear from its face that the letter was sent to a prospective juror.” Pet. 108.
First, to the extent the state court concluded the evidence would have survived
an objection under Texas evidence rule 403, a federal habeas court may not conclude
otherwise. See Charles, 629 F.3d at 500-01. And as noted in previous claims, Strickland
does not require counsel to make futile objections. See Koch, 907 F.2d at 527.
Second, Soliz’s argument that it is “obvious” the letter was sent to a prospective
juror is unpersuasive. In support, he notes that it (1) was sent by Soliz from his prison
address, (2) to an apartment address, (3) during the voir dire phase of trial, and (4)
states that the addressee does not know Soliz and (5) makes it apparent that Soliz could
see and listen to the addressee speak about personal religious matters. These facts could
fit a number of possible addressees, however, including any employee or visitor at the
jail or courthouse. It would not have been unreasonable for the state court to find that
the jury did not know the addressee was a prospective juror. After all, that was the
purpose of the redaction and the State’s withdrawal of the live testimony.
As an alternative argument, Soliz points to a juror affidavit obtained by his habeas
counsel, which states:
4. Soliz wrote a love letter to one of the potential jurors during jury
selection. I was shocked when I found out about it. We were told about
this letter during the punishment phase. I was very concerned about how
he got that juror’s address. It made me think Soliz was more dangerous.
SCHR 185. Soliz argued in state court that the above affidavit indicates the jury was
“actually aware” that the addressee was a prospective juror. SHCR 110. Here, he
asserts that it proves the letter made the jury believe Soliz was more dangerous. Pet.
Absent certain exceptions that do not apply here, a juror may not testify about
(1) any statement made or incident that occurred during the jury’s deliberations, (2) the
effect of anything on that juror’s or another juror’s vote, or (3) any juror’s mental
processes concerning the verdict or indictment. See Fed. R. Evid. 606(b)(1); Young v.
Davis, 835 F.3d 520, 529 n. 44 (5th Cir. 2016), cert. denied, 137 S. Ct. 1224 (2017)
(holding that the district court may exclude juror affidavits that are offered to challenge
the punishment verdict in a capital murder trial, citing Summers v. Dretke, 431 F.3d 861,
873 (5th Cir. 2005)). This Court may not consider the affidavit as evidence of what the
juror believed during deliberations, as Soliz proposes.
Soliz fails to demonstrate that the state court unreasonably applied Strickland or
made a ruling based on an unreasonable determination of facts. Claim 11 is denied.
XIV. FOSTER-CARE EXPERT(CLAIM 12)
Soliz contends trial counsel were ineffective for failing to present expert testimony
to explain the effects of the foster care system on him and to expound on the CPS
records introduced. Pet. 111. The following is a summary of the relevant evidence.
The punishment evidence
The State’s evidence at punishment is summarized in claim 10 and will not be
repeated here. As for the defense, trial counsel first presented testimony from two of
Soliz’s older female cousins who described a chaotic life growing up with ten aunts and
two uncles and thirty-five cousins in various homes, apartments, and housing projects.
50 RR 138-43, 148, 164, 166-67, 174, 191, 249-51; 51 RR 14. The adults would sniff
paint, drink, and party in front of the children, and go to clubs from Thursday to
Sunday. 50 RR 144-49, 163, 248; 51 RR 8. Their aunt Cynthia was a “bootlegger” who
sold beer and cocaine out of her house, where the family regularly congregated. 50 RR
191-92; 51 RR 7. Cynthia’s daughter was once taken by her father at gunpoint and held
hostage. 51 RR 8-9. Their aunt Vicky was stabbed to death by her boyfriend in
Cynthia’s house. Vicky died in front of Soliz, who was seven. 50 RR 194-96, 228, 23132, 241; 51 RR 11-12. One of the cousins described a vicious attack on her mother and
stepfather by a drug dealer to whom Soliz’s mother, Donna, owed money. 50 RR 23941. High from sniffing paint, Donna once took off her clothes and walked around the
house saying “goo-goo” and “ga-ga,” and splashed around in the bathtub like a baby. 50
RR 260-61. Eleven of the thirty-five cousins had been to prison, all of them had sniffed
a “fair share” of paint, and only a couple of them knew their biological fathers. 50 RR
197, 211; 51 RR 29-31. One of the cousins testified she had lost her vision and became
paralyzed from abusing paint since the age of thirteen. 50 RR 145, 207. Soliz started
sniffing paint when he was ten. 50 RR 183.
Donna and her husband, Gene, were always moving from place to place until
Gene left, and Donna lost the apartment. Donna once sold all of her furniture to buy
crack cocaine. She also prostituted herself for drugs. 50 RR 171-72. Soliz had a halfbrother who did not live in Donna’s house because of the drugs, prostitution, and lack
of furniture. 50 RR 170, 178. Donna did not discipline Soliz, and he would often run
through the woods and streets, play on freeway signs, jump onto moving trains, and
leave for days at a time when he was eight or nine. 50 RR 179, 254-59; 51 RR 17-19.
For fun, the cousins would swim in the water gardens in downtown Fort Worth, steal
money from parking meters, and break into cars. Donna had a relationship with a
woman who helped them cut the locks off of parking meters, and they would share the
proceeds with Donna. 50 RR 168-69, 177, 182. Soliz was allowed to come along
because he had small hands and could reach into cars. They would use the money to
buy food. 50 RR 237. They would also sneak off to the park, which had a lot of gang
activity. 50 RR 175. They avoided a nearby vacant school building, however, because
girls were raped there and thieves used the property to strip stolen cars. 50 RR 176.
Dr. Prema Manjunath testified next. She was the Child and Adolescent Psychiatrist at John Peter Smith Hospital (“JPS”) when Soliz was admitted at age ten for
“completely out of control behaviors.” Those behaviors included stealing from parking
meters to buy junk food, selling crack-cocaine, breaking into cars, shoplifting, sniffing
paint, and drinking whisky. 51 RR 49, 51; 71 RR 39 (DX 69). Soliz was brought to the
hospital by his mother and his MHMR caseworker, Kevin Walling, and he stayed for six
weeks. 51 RR 78-79, 88; 71 RR 50. Dr. Manjunath explained information in the
records indicating that Soliz was small for his age, that Donna drank heavily during her
pregnancy, that Soliz was acting out sexually, and that he was reportedly the victim of
sexual abuse from an older male cousin. 51 RR 53, 56; 71 RR 30, 35. Soliz had been
taking Ritalin for hyperactivity, was involved in a gang, had a poor sense of danger,
wandered the streets “at all hours of nights,” fought and associated with older boys, was
often allowed to stay home from school, was arrested three times for stealing and
running away, smoked marijuana, and carried a gun. 71 RR 29-38. Dr. Manjunath
testified that, after Soliz had completed his initial treatment at JPS, Donna was
hospitalized for an overdose and her involvement in his treatment waned. 51 RR 59,
82. Donna never attended family therapy and did not meet Soliz’s emotional needs.
As a result, he sought attention and affection through manipulative and impulsive
behaviors. 51 RR 69, 82.
Dr. Majunath diagnosed Soliz with conduct disorder mixed with substance abuse,
mild attention deficit hyperactivity disorder, antisocial traits, developmental reading
disorder, possible borderline intelligence, possible fetal alcohol syndrome, and “psychosocial stressors moderate with a chaotic home, drug abuse and dependence in the
mother.” 71 RR 31-32; 51 RR 57-58, 63-64, 66. She suspected fetal alcohol syndrome
because of Soliz’s various behavioral problems, concentration difficulties, and the fact
that his mother drank during the pregnancy. 51 RR 67. She recommended that Soliz
be discharged to a long-term care facility, but he was nevertheless released to his
mother’s care. 51 RR 54, 71. Dr. Majunath also testified about how brain development
and resiliency is affected by neglect and alcohol. 51 RR 108-19.
MHMR caseworker Kevin Walling testified next. Soliz was referred to him at age
ten because there was a report that he was living with drugs and prostitution. 51 RR
134. The report stated that Donna was “turning tricks” on a bed she shared with Soliz,
that Soliz had broken into parking meters, acted as a lookout for drug dealers, and was
carrying a gun. 51 RR 135-37, 157-58. Walling said that, at any given time of the day
or night, Donna might not know where he was. 51 RR 137-38. Walling attended
meetings at Soliz’s school, made sure he had food and clothes, and visited the home
often. 51 RR 138-42. Walling worked with Soliz for two years, until Soliz moved into
Buckner Baptist Children’s Home (“Buckner”) in 1994. 51 RR 144. Walling described
Soliz as a follower. 51 RR 144. He had only one other child on his caseload who was
in more need than Soliz. 51 RR 149.
Soliz’s juvenile probation officer, Leanna Judd, also testified. She met Soliz in
1994 when he was detained for a burglary. It was a month before Judd could reach
Donna. 51 RR 164-67; 52 RR 6–8. Judd explained the probation records showing that
Soliz had been referred to probation three times in 1992 for burglary of a coin-operated
machine, attempted burglary of a motor vehicle, and burglary of a habitation. 51 RR
176-79. The records showed that Donna did not appear for an intake interview, fell
asleep during another interview, and did not sign placement paperwork. 51 RR 182-84.
According to the records, Soliz did well when he was placed with his Aunt Sharon for
a period time but went “haywire” when Donna spent time with him. 51 RR 185-86.
While on probation, Soliz was diagnosed with conduct disorder, cultural familial
delinquency, substance abuse history, residual attention deficit disorder, and mixed
developmental disabilities. 51 RR 191. Judd described Soliz as a follower who craved
adult attention. 51 RR 193-94. The records showed that Soliz had set fires and
accidentally burned the upstairs of his aunt’s home, burglarized a school building, took
walkie talkies from a classroom, and admitted affiliation with two gangs. 51 RR 195-96.
Donna physically abused Soliz and gave him access to paint, beer, and whisky, and Soliz
possibly suffered sexual abuse by an uncle. 51 RR 197-99. Judd described Soliz as “very
much a follower looking for a place.” 51 RR 200. The records discussed Soliz’s
excessive school absences, his academic performance below grade level, his special
education classes, a therapist’s fear that his behavior would deteriorate rapidly if he
returned home, his ability to do well in a structured residential setting, and the fact that
he followed an older brother and cousin into criminal activities. 51 RR 201-09, 212.
Judd said that, after some progress at Buckner, Soliz became worse between the
ages of twelve and thirteen. He was treated for depression, hallucinations, aggressiveness, sexual acting out, and suicidal gestures. 51 RR 209-17; 52 RR 17, 21. Donna used
heroin and cocaine, engaged in crime, missed court dates, and repeatedly failed to follow
through on plans to visit him or make changes that would allow him to visit her at
home. 51 RR 216-18; 52 RR 9-13, 19-23, 29. At one point, Donna discussed giving up
Soliz for adoption. 52 RR 13. Judd believed that CPS should have been involved in the
case, but they refused. 52 RR 11-12, 39. Judd described occasions when Soliz ran away
from Buckner for a couple of hours, tried selling road salt as crack-cocaine, and threw
gang signs in church. 52 RR 14-16. He was moved to a lock-down facility in April of
1995, and for a six-month period of time, he did not see his mother and became angry.
52 RR 24-27. Donna ignored a subsequent court order to visit her son and lied about
attempts to visit him. 52 RR 28, 31.
Judd acknowledged Soliz’s good qualities, saying he was playful and charming and
loved to eat. But he had suffered a “death by a thousand cuts” from his mother’s
repeated neglect. 52 RR 32-34. At the end of his probation and two-year stay at
Buckner, a judge ordered him into CPS care and CPS arranged for his continued
placement at Buckner. 52 RR 38. Judd cried when she spoke about the capital murder
charges against Soliz, because she “never expected it from him.” 52 RR 41.
The defense called prison classification expert Larry Fitzgerald to testify,
essentially, that the Texas prison system is in good operating condition and in good
operating hands. 52 RR 92-119. The last three defense witnesses were a team of mental
health experts, psychiatrist Richard Adler, neuropsychologist Paul Connor, and
psychologist Natalie Brown. Together, they are in private practice as F.A.S.D. Experts
and, at the time of trial, were the only practice of its kind in the country. 53 RR 131-32.
Dr. Adler diagnosed Soliz with Partial Fetal Alcohol Syndrome (“PFAS”), a subdiagnosis of FASD. 53 RR 59-61, 86. The diagnosis was based on confirmed maternal
alcohol exposure, some evidence of facial deformity, and a complex pattern of behavior
or cognitive abnormalities not explained by family background or environment alone
(such as difficulties in school or learning, poor impulse control, problems in social
perception, deficits in receptive and expressive language, poor capacity for abstraction
or metacognition, deficits in math skills, and memory, attention or judgment problems).
53 RR 66-67; 74 RR 94 (DX 84, p. 76). Soliz was found to have all seven of these
impairments, but only three are required for the diagnosis. 53 RR 111, 114; 55 RR 109.
Dr. Adler also diagnosed cognitive disorder, “polysubstance abuse v. polysubstance
dependence,” physical abuse of a child, sexual abuse of a child, neglect of a child, and
prenatal exposure to alcohol, toluene, cocaine and, likely, nicotine. 53 RR 87. Dr. Adler
testified that a diagnosis of antisocial personality disorder is often improperly given to
people with FASD, and that FASD is a medical condition and not a personality or
mental disorder. 53 RR 84-85, 205. He testified that children with PFAS are “hit the
hardest” in the spectrum because, lacking the classic facial features of FASD, they are
not identified, diagnosed, or treated until later in life. 53 RR 91-92. On average, people
with FASD have the adaptive functioning of seven-year-olds and, like Soliz, the majority
do not have IQ scores in the mentally retarded range. 53 RR 98-101. He said that
alcohol-affected kids have problems with intellectual development, delinquent behavior,
and psychosis, and that Soliz suffered from all these issues by age ten. 53 RR 101-03.
He emphasized that this was not a “close case” and that Soliz’s prenatal exposure, due
to his mother binging on alcohol, huffing paint every day, shooting cocaine, and smoking
cigarettes, was more than he had ever seen in his career. 53 RR 104, 115.
Neuropsychologist Paul Connor testified about the difficulties that FASD victims
face, such as a lower IQ and difficulties with academic functioning, learning and
remembering information, paying attention, impulsivity, problem-solving, and applying
what they know to day-to-day life. 54 RR 16-19. Dr. Connor described a 28-point
difference between Soliz’s verbal IQ score and his non-verbal IQ score, a rare pattern
that was also present when Soliz was tested at age eleven and thirteen. 54 RR 37-38.
Dr. Connor described Soliz’s test scores, most of which were below the fifth grade level
or below the tenth percentile, although Soliz also did very well on some of them. 54 RR
38-40, 43-60. Dr. Connor explained that fetal alcohol exposure leads to frustrating
discrepancies in brain functioning, depending on the brain’s stage of development when
alcohol is introduced. 54 RR 42-43, 53. He also explained that Soliz, like most people
with FASD, had an “okay-ish” IQ, with lower academic skills (especially in math), and
adaptive skills that are within the range of mental retardation. 54 RR 66-67.
Psychologist Natalie Brown testified last. She conducted a lifelong functional
assessment, which she described as a “comprehensive, meticulous process of examining
every bit of information you can about life history that’s been documented.” 55 RR
139. Soliz had a full-scale IQ of 92, which is average. 55 RR 159. His achievement
tests were well below average as early as age six, which ruled out drugs and head injuries
as a cause for his problems. 55 RR 166-67, 199. Dr. Brown concluded that Soliz was
born with seven areas of biological or cognitive deficits due to PFAS, including hyperactivity, attention problems, and learning disabilities. 55 RR 167-68 174-75. His
executive-function deficits manifested as antisocial and disruptive behaviors and evolved
into “secondary disabilities” of substance abuse and legal trouble. 55 RR 172-73. Dr.
Brown discussed his other secondary disabilities, including mental health problems, a
disrupted school experience, incarceration and/or hospitalization, inappropriate sexual
behavior, dependent living, and problems with employment. 55 RR 181-83, 198.
By age ten, Soliz had adjustment disorder, conduct disorder, depression,
psychosis, and hallucinations. 55 RR 189-90. At 23 and 28, he was diagnosed with
psychosis and depressive disorder. 55 RR 192. He had truancies and disrupted school
experiences. 55 RR 194-95. Soliz used alcohol, cocaine, and marijuana at age nine, his
mother taught him how to sniff paint at age ten, and he used crack and methamphetamine as an adult. 55 RR 195-96. His legal troubles began at age ten, and he had more
problems at age eleven, twelve, thirteen, and fifteen. There was evidence of inappropriate sexual behaviors and sexual aggression in some of the residential placements; Soliz
was also sexually abused. Soliz had no real job history and no ability to live independently. 55 RR 197-98. Soliz tested as “hyper-suggestible,” which resulted in his
manipulation by gangs at an early age. 55 RR 220. Dr. Brown discussed his placements,
including the hospitalization at age ten, Buckner home at age twelve through fifteen, the
Azleway agency, drug treatment at “Choices,” the Desert Hills residential treatment
center, and finally, the Contreras Home, a therapeutic group home. At age seventeen,
he was placed with a relative. 55 RR 196.
Dr. Brown described the protective factors that can prevent the development of
these secondary disabilities. 55 RR 184-88. On the other hand, she explained the
effects of the severe, continued neglect that Soliz endured, including Post-Traumatic
Stress Disorder and Complex Post-Traumatic Stress disorder, development delay, odd
eating habits and self-soothing behaviors, emotional problems, indiscriminate attachment, empathy deficits, inability to relate to people, and aggressive behavior. 55 RR
208-13. Dr. Brown described missed opportunities to help Soliz, where CPS should
have gotten involved but did not and counselors made observations that no one pursued.
55 RR 221-22, 224-26, 227.
Dr. Brown described more missed opportunities at
MHMR, his school, Bucker, Azleway, Choices, and Desert Hills. 55 RR 227-28. She
stated that CPS was finally awarded conservatorship at age thirteen, and Soliz continued
in their care through his eighteenth birthday, when the case was closed while he was on
runaway status. 55 RR 228. She said children always respond better to structure, that
Soliz “was no exception,” and that he did relatively well when he was in a structured
environment. 55 RR 222-23. In fact, Soliz’s home life was so deprived that Soliz
preferred the placement facilities. 55 RR 223. While at JPS, Soliz said, “I want to live
in a place just like this.” 55 RR 223-34. Dr. Brown concluded that Soliz was born with
brain damage and suffered more brain damage from his childhood environment and lack
of intervention; she had never seen a more tragic case. 55 RR 229.
Defense exhibits included: prison classification procedures, policies, and photographs (50 RR 68-69, 85-89); photographs of Soliz’s family and the places they grew up
(50 RR 141, 152, 155, 166, 173, 185); a photograph of Soliz and his MHMR caseworker, Kevin Walling (51 RR 135); prison crime statistics (52 RR 90); a study on Fetal
Alcohol Syndrome (53 RR 54; DX 84); 1,451 pages of records from Buckner’s Children’s
Home (DX 62); records from JPS hospital (DX 63); 1,488 pages of records from CPS
(DX 64A-D); records from Harris Methodist Hospital (DX 61); special education records
from Johnson County Shared Services Arrangement (DX 65); and records from MHMR
(DX 66). See 51 RR 32-33, 77; 52 RR 72 (exhibits admitted).
The state court claim
In his state habeas application, Soliz argued that trial counsel should have
presented expert testimony to walk the jury through the CPS records, especially as they
relate to his time in foster care after leaving Buckner. SHCR 111. Soliz argued that
counsel should have hired a foster care expert to inform the jury about the “harrowing
aspects of foster care” that lead to post-traumatic stress disorder, the effects of moving
frequently between placements, the effects of substandard foster facilities, including
abuse and neglect in care, and the realities of “aging out” of the foster care system. Soliz
asserted that an expert could have explained these hardships on Soliz in light of the
traumatic early childhood that led to his removal from the family in the first place, and
that the failure to do so left the jury without little or no explanation of how this
traumatic time in Soliz’s life affected him. SHCR 112-13. He argued that defense
counsel at least could have called his CPS caseworker, Laura Flores, to explain the CPS
records. SCHR 126. Soliz presented an affidavit from Flores stating that she was Soliz’s
CPS Conservatorship Caseworker from January 1997 to October 1999 and that, if she
had been asked by trial counsel, she would have testified to the contents of the CPS
records and her personal knowledge. SHCR 438 (Ex. 19).
Trial counsel presented an affidavit to the state court explaining that he did not
seek to retain any foster care expert because he wanted to keep the jury’s eyes on the
main mitigation evidence, FASD. Counsel believed that the FASD, exacerbated by his
mother’s highly dysfunctional lifestyle and habits, were two paramount factors demonstrating a lack of moral blameworthiness that should have resulted in a life sentence.
SHCR 444. The state court rejected the claim, concluding that Soliz failed to show both
deficient performance and harm. SHCR 761-63.
Counsel’s alleged deficiency
Citing counsel’s duty to “consider and investigate the basis for all possible legal
claims” under the ABA Guidelines as well as the Supreme Court opinion in Wiggins, 539
U.S. 510, Soliz reasserts his state-court argument that counsel should have presented a
foster-care expert or at least his caseworker to explain the CPS records. Pet. 113-14,
115-130. The ABA Guidelines are not the controlling constitutional standards for
ineffective-assistance claims, however. See Bobby v. Van Hook, 558 U.S. 4, 8 (2009)
(appeals court erred by treating ABA Guidelines “as inexorable commands with which
all capital defense counsel ‘must fully comply’”).
They are only guides to what
reasonableness means, not its definition. Id. (citing Strickland, 466 U.S. at 688). “No
particular set of detailed rules for counsel’s conduct can satisfactorily take account of the
variety of circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89.
The Constitution imposes one general requirement: that counsel make objectively
reasonable choices. Van Hook, 558 U.S. at 9. A court must determine whether, in light
of all the circumstances, counsel’s alleged error was outside the wide range of professionally competent assistance, keeping in mind that counsel’s function “is to make the
adversarial testing process work in the particular case.” Strickland, 466 U.S. at 690.
Judicial scrutiny must be highly deferential and strive to eliminate the “distorting effect
of hindsight.” Id. at 689.
The Court begins by noting that, to the extent this claim is based on counsel’s
failure to call Laura Flores to testify, it does not allege a failure to investigate. Flores was
known to trial counsel. Flores was listed as a possible expert witness on the Defendant’s
Preliminary List of Experts. 9 CR 1630 (expert no. 25). Further, approximately 1,500
pages of CPS documents and nearly 1,500 pages of records from Buckner’s Children’s
Home were admitted into evidence by the defense, many of which were case notes
written by Flores. This is not a situation where counsel overlooked an area of investigation, as in Wiggins. See Wiggins, 539 U.S. at 534 (holding that counsel’s decision to
limit his investigation of Wiggins’ background was unreasonable).
This is also not a situation where counsel overlooked the use of experts. As
discussed in claim 1, trial counsel was unquestionably capable of acquiring expert
assistance when he wanted it. Rather, this claim involves a strategic choice not to
expound with live testimony the foster care records that were in evidence. Such strategic
choices, when made following a thorough investigation, are “virtually unchallengeable.”
Strickland, 466 U.S. at 690; see also Richter, 562 U.S. at 106 (recognizing that counsel is
not limited to any one technique or approach and that appeals court erred in holding
counsel ineffective for failing to consult blood experts). Counsel conducted a thorough
investigation into Soliz’s various hospitalizations, residential placements, foster care, and
his time with CPS. His witnesses discussed most of the early records admitted in
evidence. Counsel’s strategy in presenting the foster-care records to the jury without
discussing them through an expert witness is, therefore, virtually unchallengeable.
Nevertheless, the record supports the reasonableness of counsel’s strategy to keep
the jury’s focus on FASD as the mitigation theory. Soliz argues that highlighting his
time in foster care and its accompanying disabilities would have mitigated his criminal
conduct in the jury’s eyes and humanized his teenaged years. But Soliz’s delinquent
behavior began long before he was placed in foster care. Foster care could not explain
his multiple arrests prior to entering foster care, including three arrests and other “out
of control” behaviors before his psychiatric placement at age ten. Defense counsel’s
chosen theory, on the other hand, explained the early onset of antisocial behavior as a
result of prenatal brain damage, as well as postnatal brain damage caused by neglect,
which resulted in many secondary disabilities that eventually led to his life of crime. A
strategy to highlight the teenaged foster-care years could have undermined this strategy:
A jury could view delinquent acts committed when he was between six and ten years old
as symptomatic of his FASD and home environment and therefore mitigating. But
criminal behavior committed by Soliz as a teenager, while in the structured and
therapeutic environment of a foster-care facility, would not likely evoke the same
response. There are many instances of damaging information in the foster-care records
that could have been highlighted on cross-examination of an expert.
For example, during his time in foster care, he was on probation or facing charges
in at least four different counties (including felony unauthorized use of a motor vehicle
in Johnson County, leading Dallas police on an 85-m.p.h. car chase, and assaulting staff
at the City House Shelter in Collin County).
SHCR 321, 326-28, 338-39, 409.
Attention on Soliz’s connection to Johnson County alone risked undermining counsel’s
attempts to show that Soliz was a mere follower in Weatherly’s murder which, unlike
the rest of the crime spree, occurred in Johnson County. The records also show that an
aunt changed her mind about having Soliz come live with her because, while visiting her
home, Soliz made $200 worth of calls to a “phone-sex” telephone number and ordered
$80 worth of Playboy channel movies, which caused her great financial strain. SHCR
354-56. Such behavior shows that he took advantage of the only person who was willing
to help him.
As for the mitigating value of multiple school transfers, at least one change in
school attendance was due to Soliz being discharged for bringing a knife on campus.
SHCR 399. Likewise, the mitigating impact of Soliz having lived in multiple foster
residences could be readily undermined by showing that, with the exception of the
Desert Hills facility that was shut down, Soliz’s transfer from facility to facility was due
to his defiant attitude, fighting, lack of remorse, and repeated running away and/or
getting arrested. See SHCR 321 (theft of Buckner car and other Dallas County charges),
327 (notation that outcome of Dallas County charges is uncertain and caseworker “will
continue to search for a placement that can adequately address Soliz’s anti-social
behaviors”), 330-31 (Buckner to Azleway Boys Ranch), 338-39 (Azleway to Choices
Adolescent Center), 340-41 (Choices to Desert Hills), 372 (Desert Hills to CASA
emergency shelter), 374 (Soliz goes “AWOL” from emergency shelter). While Soliz
emphasizes two incidents of illegal restraint against him at Desert Hills that resulted in
the discharge of an employee, Soliz at the time told Flores “that he actually tried to kill
the staff member and wants to go to another placement.” SHCR 356. The notes also
show that, when Desert Hills closed, Soliz was so attached to some of the staff that he
wanted to move with them to a new facility, Los Hermanos, and keep them on his
visiting list. SHCR 373. This information dilutes the allegations of mistreatment at
Desert Hills and would be a likely subject for cross-examination of any expert.
Soliz’s proposed strategy would have required counsel to contend with the fact
that Soliz’s placements became more structured as time went on, and yet Soliz could not
follow the facility rules. This would have refuted the testimony that Soliz did well in
a structured environment, and it would have neutralized counsel’s argument that Soliz
could behave in a prison environment if given a life sentence. See SHCR 328 (notation
that “New Encounters” cannot accept Soliz because he may need more structure), 340
(note that Flores told Soliz that Choices has more structured setting than Azleway), 344
(note that Desert Hills appears to be appropriate because his needs are being met in a
therapeutic and structured setting), 348 (note that placement at Desert Hills should be
maintained to address Soliz’s defiant and aggressive behaviors and provide him with a
structured environment), 404 (note by Flores that Contreras Foster Home provides Soliz
with a structured environment).
The records show that his final placement at the less-restrictive Contreras home
was a positive experience. He was in a program (“PAL”) to prepare him for independent
adult living and expressed an interest in attending college. See SHCR 393, 397, 401,
403, 425. Nevertheless, Soliz ran away, absconded from probation, and never returned
to foster care. SHCR 420, 422-25. The prosecution would likely argue that such
behavior indicates a willingness to make wrong choices, even when the right choice is
repeatedly made available, and suggests an inability to conform to a structured prison
Soliz’s theory that foster care is an overall harmful, damaging experience that
mitigates his life of crime could have also been refuted by specific instances in his own
records. The records show, for example, that foster care offered Soliz psychiatric
therapy, karate lessons, driver’s education, a GED, and vocational training. He also flew
on an airplane for the first time, visited a university, and was encouraged by his
caseworker to plan for the future. SHCR 348, 352, 397, 403, 420-21. In other words,
the prosecution could have readily argued that, while foster care was not perfect, it was
better than his family home, and he chose to reject every opportunity to overcome the
disadvantages of his early childhood.
This would have undermined Dr. Brown’s
testimony blaming the adults in his life who missed or ignored opportunities to help
him. 55 RR 221-24.
In sum, the proposed strategy is a double-edged sword at best. It would have
exposed his inability to conform to a structured environment and undermined the
mitigation theme that Soliz’s criminal behavior was not a product of choice. Soliz has
not shown that the state court was unreasonable in its conclusion that trial counsel was
not deficient for failing to hire a foster care expert. See Rector v. Johnson, 120 F.3d 551,
564 (5th Cir. 1997) (tactical decision not to present potentially mitigating evidence on
grounds that it is double-edged in nature is objectively reasonable).
Strickland prejudice analysis
Alternatively, Soliz fails to demonstrate that the state court’s ruling as to a lack
of prejudice was unreasonable. To prevail upon a claim based on an uncalled witness,
the petitioner must demonstrate prejudice by showing that the witness was available to
testify and that the testimony would have been favorable to the defense. Alexander v.
McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Soliz’s claim fails to the extent he does
not identify a foster-care expert, state their availability, and proffer their proposed
testimony. Day v. Quarterman, 566 F.3d 527, 538-39 (5th Cir. 2009) (rejecting uncalled
expert witness claim where affidavit does not show expert would have testified or that
his testimony would be in accord with the opinion stated in his affidavit).
Even assuming that the jury had heard the opinions proposed by Soliz, such
additional information does not create a reasonable probability of a different outcome
when compared to the evidence actually presented at sentencing. See Kunkle v. Dretke,
352 F.3d 980, 991 (5th Cir. 2003) (holding that court compares evidence actually
presented at sentencing with additional mitigating evidence presented in habeas
proceeding to determine prejudice). As discussed, trial counsel presented evidence of a
chaotic early childhood, marked by transient housing accommodations, physical and
sexual abuse, severe neglect, and drug abuse, and accompanied by prenatal brain damage
due to extreme exposure to alcohol, toluene, and other substances, which resulted in
cognitive and adaptive disabilities. The anecdotal evidence included witnessing the
murder of a beloved aunt, having to steal money for food, exploitation by gangs, and a
mother who prostituted herself for drugs and was complicit in his downfall. Cf. Wiggins,
539 U.S. at 534-35 (describing the following as “powerful” mitigation evidence: severe
privation and abuse while in the care of an alcoholic and absentee mother, physical
torment, sexual molestation, and repeated rape in foster care, periods of homelessness
and hunger, and diminished mental capacities). The defense experts described a myriad
of secondary disabilities they believed were caused by this combination of brain damage
and severe neglect that led to a life of crime. Nevertheless, the experts believed Soliz was
able to thrive in a structured environment.
Emphasis on the foster care years would have risked focusing the jury on Soliz’s
development into a dangerous teenager with no remorse, who repeatedly chose to reject
help, defy the rules and structure, and run away when things were not to his liking.
Such evidence would have undermined the defense by showing his potential for future
dangerousness and inability to live in a structured environment. E,g., Brown v. Thaler,
684 F.3d 482, 499 (5th Cir. 2012) (concluding that counsel’s decision not to offer
evidence of defendant’s disadvantaged background was reasonable because it could
suggest he was a product of his environment and therefore likely to be dangerous in the
future). Difficulties imposed by foster care paled in comparison to what Soliz had
experienced before foster care. Indeed, Soliz said he preferred the placement facilities
to his home environment. Considering the evidence in its totality, Soliz has not
demonstrated that it was unreasonable for the state court to conclude that trial counsel’s
alleged deficiency did not undermine confidence in the jury’s sentence of death. Claim
12 is denied.
XV. FASD AS A BAR TO EXECUTION (CLAIM 14 & 19)
In claim 14 and 19, Soliz seeks to expand the Supreme Court holding in Atkins
v. Virginia, 536 U.S. 304 (2002) to bar the execution of people with FASD. Pet. 136153; Pet. 192-94. The state court rejected variations of this claim on direct appeal and
again in state habeas proceedings. Soliz, 432 S.W.3d at 903-04; SHCR 764.
Soliz does not attempt to show that the state court ruling was an unreasonable
application of clearly established federal law; rather, he seeks to expand federal law.
Soliz points to no Supreme Court decision barring the execution of people with FASD.
The Court has no basis upon which to conclude that the state court unreasonably
applied clearly established federal law.
The Court denies claims 14 and 19. See
XVI. THE 12/10 RULE (CLAIM 15)
In claim 15, Soliz argues that the Texas death penalty statute misleads jurors
about their individual ability to give effect to mitigating evidence while answering the
special punishment issues, in violation of the Eighth and Fourteenth Amendments and
Mills v. Maryland, 486 U.S. 376 (1988). This claim was denied by the CCA on direct
appeal. Soliz, 432 S.W.3d at 904. Respondent contends the claim is foreclosed by
precedent and that any extension of existing precedent would be an improper retroactive
application of a new constitutional rule, in violation of Teague v. Lane, 489 U.S. 288, 310
(1989) (holding that, with certain exceptions, new constitutional rules of criminal
procedure will not be applicable to those cases which become final before the new rules
are announced). Ans. 166-68.
In Mills, the Supreme Court held invalid a capital sentencing statute that required
juries to disregard mitigating factors not found unanimously. See Mills, 486 U.S. at 371,
378-79. The 12/10 Rule is the threshold voting requirement for the Texas special
punishment issues. Specifically, the jury cannot answer the special issues in favor of a
death sentence unless all twelve jurors agree. They cannot answer in favor of a life
sentence unless ten jurors agree. See art. 37.071, § 2(d)(2) and § 2(f)(2). If the requisite
number of jurors fail to agree, the default sentence is life imprisonment, but the jurors
are not told this. See art. 37.071, § 2(a)(1) and § 2(g). This claim focuses on the
mitigation issue, which was added to the statute in 1991 following the Supreme Court
ruling in Penry v. Lynaugh, 492 U.S. 302 (1989).
Soliz acknowledges Fifth Circuit precedent rejecting this argument both on the
merits and as Teague-barred. He asserts, however, that the post-1991 precedent relies
upon pre-1991 case law without addressing the 1991 statutory amendment that added
the mitigation special issue. He contends that the mitigation special issue is much closer
to the sentencing scheme struck down in Mills than the previous statute because it does
not allow each juror to consider and “give effect to mitigating evidence when deciding
the ultimate question whether to vote for a sentence of death.” Pet. 164-70 (citing
McKoy v. North Carolina, 494 U.S. 433 (1990)). Specifically, he contends it misleads
jurors in favor of a life sentence into believing that their vote is immaterial unless they
are able to persuade nine of their fellow jurors that their view is correct.
For support, he presents two cases from the Sixth and Seventh Circuits, Davis v.
Mitchell, 318 F.3d 682 (6th Cir. 2003) and Kubat v. Thieret, 867 F.2d 351 (7th Cir.
1989). Pet. 161-62. The Fifth Circuit has, in fact, rejected Soliz’s argument based on
this Sixth and Seventh Circuit precedent in Allen, 805 F.3d at 632-633 n.3.
Furthermore, the 1991 amendment (enacted after the opinion issued in Mills)
specifically requires the jurors to be instructed that they “need not agree on what
particular evidence supports an affirmative finding” on the mitigation issue. See art.
37.071, § 2(f)(3). The jury was instructed accordingly that they need not agree on what
particular evidence supports an affirmative finding to Special Issue Number 3. 11 CR
2127. And they were told, “[D]o not give up your honest beliefs as to the weight or
effect of the evidence solely because of the opinion of your fellow jurors, or for the mere
purpose of answering the special issues.” 11 CR 2128 (emphasis added). In light of these
instructions, the Court is not persuaded that the jury was induced to change their votes
because they were misled into believing a “life” vote was immaterial without the
concurrence of nine fellow jurors.
Despite his assertion to the contrary, Soliz’s arguments are substantially the same
arguments that have been rejected in this Circuit on multiple occasions. E.g., Blue v.
Thaler, 665 F.3d 647, 670 (5th Cir. 2011) (holding that Jones insulates the 12/10 Rule
from constitutional attack); Druery v. Thaler, 647 F.3d 535, 543-44 (5th Cir. 2011)
(rejecting argument that 12/10 Rule violates Sixth and Eighth Amendments and Due
Process and stating that Mills is not applicable to Texas sentencing statute). Soliz fails
to show that the state court unreasonably applied federal law. Alternatively, expanding
Mills to invalidate the Texas statute would violate Teague. See Druery, 647 F.3d at 543
(citing Hughes v. Dretke, 412 F.3d 582 (5th Cir. 2005)). Claim 15 is denied.
XVII. THE ADMINISTRATION OF THE DEATH PENALTY
IN TEXAS (CLAIM 16)
In claim 16, Soliz asserts that larger Texas counties with larger budgets are free
to pursue the death penalty in circumstances where smaller counties cannot. He argues
that this difference renders the administration of the death penalty in Texas arbitrary
and capricious, in violation of Gregg v. Georgia, 428 U.S. 153 (1976). Pet. 172-77. Soliz
then asserts, however, that he was tried in a relatively small Texas county where, under
this theory, he would have been less likely to face the death penalty.
nevertheless that his harm is clear because “his chances of being sentenced to death were
greater than a similarly situated defendant who was charged in a larger county where
death penalty prosecutions are more common.” Pet. 176. As such, the law presented
in this claim pertains to the constitutionality of injecting funding considerations into the
county’s “selection process,” but Soliz’s actual complaint is that small town juries are
more likely to assess death, which is not a “selection process” complaint. The claim was
denied by the CCA on direct appeal. Soliz, 432 S.W.3d at 905.
There is no factual support for the claim that the Johnson County jury was more
likely to impose the death penalty due to the size of Johnson County. There is also no
budgetary information in the record to support Soliz’s assertion that larger counties seek
the death penalty more because they have more financial resources. Moreover, “no
Supreme Court case has held that the Constitution prohibits geographically disparate
application of the death penalty due to varying resources across jurisdictions.” Allen, 805
F.3d at 629 (rejecting claim under Gregg that lack of uniformity in prosecutorial discretion across Texas counties due to disparate state funding violates the Constitution).
Soliz fails to show that the state court ruling involved an unreasonable determination
of facts or an unreasonable application of clearly established federal law. See § 2254.
The Court denies claim 16.
XVIII. CONSTITUTIONALITY OF THE
MITIGATION SPECIAL ISSUE (CLAIM 17)
Soliz contends that the Texas definition of “mitigation evidence” is unconstitutionally narrow and prohibited the jury from considering evidence he had offered in
mitigation, specifically, his disadvantaged background. Pet. 177-86; see Tex. Code Crim.
Proc. Ann. art. 37.071, § 2(f)(4).
This claim was raised in Soliz’s state habeas
application and rejected. SHCR 767-68. The relevant portions of the jury charge are
SPECIAL ISSUE NUMBER 3: Whether, taking into consideration all of
the evidence, including the circumstances of the offense, the defendant’s
character and background, and the personal moral culpability of the
defendant, there is a sufficient mitigating circumstance or circumstances
to warrant that a sentence of life imprisonment without parole rather than
a death sentence be imposed.
In deliberating on Special Issue Number 3, you shall consider mitigating
evidence to be evidence that a juror might regard as reducing the defendant’s moral
11 CR 2126, 2127, and 2132 (verdict form) (emphasis added).
The first instruction unquestionably requires the jury to consider Soliz’s
background when answering the mitigation issue. The question presented therefore is
whether the subsequent definition of mitigating evidence as “evidence that a juror might
regard as reducing the defendant’s moral blameworthiness” nullifies the prior instructions to consider the defendant’s background.
Circuit precedent has repeatedly
answered this question in the negative. Blue, 665 F.3d at 666 n.92. Soliz has not shown
that the CCA’s ruling unreasonably applies clearly established federal law. To the extent
that Soliz urges this Court to adopt a new rule requiring a different definition of
mitigating evidence, such a rule would violate Teague. See Teague, 489 U.S. at 310.
Claim 17 is denied.
XIX. THE FUTURE DANGEROUSNESS SPECIAL ISSUE (CLAIM 18)
In claim 18, Soliz argues that the future dangerousness special issue violates the
Eighth and Fourteenth Amendments because it is a de facto determinant of deatheligibility that fails to appropriately narrow the class of death-eligible defendants. The
future dangerousness issue asks the jury: “Do you find from the evidence beyond a
reasonable doubt that there is a probability that the Defendant would commit criminal
acts of violence that would constitute a continuing threat to society?” 11 CR 2130; Tex.
Code Crim. Proc. Ann. art. 37.071, § 2(b)(1). Soliz asserts that its key terms are
unconstitutionally vague and that “every person has a non-zero probability of committing future acts of violence.” He also complains that the jury must decide this issue
before it considers the mitigation special issue. Pet. 187-92. This claim was rejected by
the state habeas court. SHCR 768. Respondent asserts that the claim lacks merit and
is Teague-barred. Ans. 173-75.
Circuit precedent has repeatedly rejected such challenges to the future dangerousness issue. See Sprouse v. Stephens, 748 F.3d 609, 622-23 (5th Cir. 2014) (holding that
Texas does not run afoul of Maynard v. Cartwright, 486 U.S. 356 (1988) or Godfrey v.
Georgia, 446 U.S. 420 (1980) by not explicitly defining terms in the future dangerousness issue); Turner v. Quarterman, 481 F.3d 292, 299-300 (5th Cir. 2007) (recognizing
that Texas juries make the eligibility decision at the guilt phase and the future
dangerousness terms are not invoked until after the defendant has been judged death
eligible); James v. Collins, 987 F.2d 1116, 1119-20 (5th Cir. 1993) (acknowledging that
future dangerousness terms are not so vague as to require clarifying instructions and
“[t]o the extent that the words strike distinct chords in individual jurors, or play to
differing philosophies and attitudes, nothing more is at work than the jury system”)
(quoting Milton v. Procunier, 744 F .2d 1091, 1096 (5th Cir. 1984)).
Soliz has not shown that the CCA’s ruling unreasonably applies clearly
established federal law. To the extent that Soliz urges this Court to adopt a new rule
requiring Texas to define terms in the future dangerousness special issue, such a rule
would violate Teague. See Teague, 489 U.S. at 310. The Court denies Claim 18.
The Court denies Soliz’s amended petition for a writ of habeas corpus. In
accordance with Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253(c),
and after considering the record in this case, the Court GRANTS a certificate of
appealability with regard to claim 20, as discussed above. See Miller-El, 537 U.S. at 338;
Slack, 529 U.S. at 483–84. If Soliz files a notice of appeal, he may proceed in forma
pauperis on appeal. 18 U.S.C. § 3006A(7). All relief not expressly granted is denied, and
this case is DISMISSED with prejudice.
Signed September 6th, 2017.
UNITED STATES DISTRICT JUDGE
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