Opinion
WR-65 784-05
01-26-2022
EX PARTE JOHN ALLEN RUBIO, Applicant
Do Not Publish
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 03-CR-457-B IN THE 138TH JUDICIAL DISTRICT COURT CAMERON COUNTY
ORDER
PER CURIAM.
This is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071, § 5.
Unless we specify otherwise, all references in this order to "Articles" refer to the Texas Code of Criminal Procedure.
Applicant was convicted of capital murder and sentenced to death in 2010 for murdering the three young children of his common law wife and co-defendant, Angela Camacho in 2003. At trial, Camacho testified that she had three children: J.Q., a girl who was three years and one month old; J.R, a boy who was one year and two months old; and M.J.R, a girl who was about two months old. Applicant was the biological father of M.J.R. only, but he acted as a father to all three children. In 2002, Child Protective Services ("CPS") removed J.Q. and J.R. from the home. The couple was ordered to find suitable housing and take parenting classes, and Applicant was ordered to obtain employment and submit to periodic drug testing. The couple eventually complied. However, shortly after CPS returned the children, Applicant lost his job and resumed his abuse of spray paint and other substances. At one point when Camacho was pregnant with M.J.R., Applicant asked her what she would do if he killed the children. She thought he was "playing."
We vacated Applicant's original capital murder conviction and death sentence for the children's deaths. See Rubio v. State, 241 S.W.3d 1, 11 (Tex. Crim. App. 2007) (reversing the conviction due to a Confrontation Clause violation).
Camacho testified that they received a notice informing them that J.Q.'s food stamp benefits would be terminated because of a problem with her social security number. On the day before the offense, the family went to the hospital to get a copy of J.Q.'s records, but the hospital did not provide the records. Their rent was due the next day and they did not have enough money to pay it.
Camacho stated that, in the early morning hours, Applicant nailed the back door shut. He killed their pet hamsters with a hammer and bleach. He began talking about the anti-Christ and he told Camacho that he was one of the seven good men. He told her that the children were possessed and that he was going to kill them. He ordered her to go into the bathroom. She complied. He then decapitated their two-month-old baby, M.J.R., and screamed for Camacho. Camacho came out of the bathroom and saw that Applicant was trying to stab and decapitate J.Q., but the child was screaming and struggling. Applicant told Camacho to hold J.Q.'s legs. Camacho held J.Q.'s legs while Applicant stabbed and decapitated her. Applicant then washed the girls' bodies in the kitchen sink and put them into trash bags. He put the girls' heads into a bucket.
Camacho recalled that, when Applicant came out of the kitchen, he told her to have sex with him, stating that he would call his friends to come over and rape her and then he would kill himself if she did not comply. They had sexual intercourse and took a shower together. Baby J.R. was asleep in his crib during these events. When J.R. woke up crying, Camacho went to the bedroom to change his diaper. Applicant came into the room and told her that J.R. was possessed. She told Applicant "no," and she picked J.R. up and held him. Applicant grabbed the baby from her, took him into the kitchen, and stabbed and decapitated him. When Camacho saw J.R.'s decapitated body on the kitchen floor, she asked Applicant to kill her. He tried unsuccessfully to break her neck, then he placed J.R.'s body onto a bed, and he put J.R.'s head into a plastic bag.
The couple then walked to the store and bought milk. Applicant told Camacho that they would go to prison forever. They discussed plans to bury the children's bodies and flee to Mexico. While they were sitting in the apartment, Applicant's brother and a friend arrived for a visit and saw J.R.'s body on the bed. The visitors left the apartment screaming and then flagged down a passing police office to report the crime.
When the investigating officer arrived at Applicant and Camacho's home, Applicant admitted him into the apartment. Applicant gestured toward the back of the apartment. The officer testified that, as he moved toward the back of the apartment, he saw the headless body of a child, which he at first mistook to be a plastic doll. He asked, "What happened here?" Applicant then stood, held out his hands together towards the officer, and said, "arrest me." Other officers arrived and eventually found the decapitated bodies of all three children. Applicant was taken to the police station, where he confessed to killing the three children, stating that he believed that the children were possessed by the spirit of his dead grandmother.
In Camacho's second statement to police, she told a different version of these events. In this statement, Camacho said that the reason that she and Applicant decided to kill the children was because of money problems and not because they believed that the children were possessed. She said that they decided that it was better for the children to die than for them to suffer. At Applicant's second trial, Camacho admitted making this statement to police, but insisted that it was not true and that the officers tricked her by telling her that Applicant had changed his story.
Applicant pled "not guilty by reason of insanity," but a jury nevertheless found him guilty of the offense of capital murder. The jury also answered the punishment phase special issues submitted pursuant to Article 37.071, § 2, in a manner requiring the trial court to sentence Applicant to death. See Art. 37.071, § 2(g). We affirmed the conviction and sentence on direct appeal. Rubio v. State, No. AP-76, 383 (Tex. Crim. App. Oct. 10, 2012) (not designated for publication). We also denied relief on Applicant's initial Article 11.071 application for a writ of habeas corpus, and we dismissed his first subsequent Article 11.071 application as an abuse of the writ. Ex parte Rubio, Nos. WR-65, 784-02 and -04 (Tex. Crim. App. May 23, 2018) (not designated for publication).
In this, his second subsequent writ application, Applicant raises eleven claims for habeas relief. In Claim 1, Applicant alleges that the State violated his right to equal protection under the Fourteenth Amendment when it pursued the death penalty against him because of his indigent status and based on a public survey. In Claim 2, Applicant asserts that the State violated his right to due process under the Fourteenth Amendment by engaging in a flagrant and ongoing pattern of misconduct.
In Claims 6 and 7, Applicant argues that the State violated his right to due process under Napue v. Illinois, 360 U.S. 264 (1959) (Claim 6), and Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) (Claim 7), when it elicited false and misleading testimony from guilt phase witness Dr. Michael Welner. In Claims 8 and 9, Applicant contends that the State violated his right to due process under Napue (Claim 8) and Chabot (Claim 9) when it elicited false and misleading testimony from punishment phase witness A.P. Merillat. In Claim 10, Applicant asserts that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose Merillat's false punishment phase testimony in Velez v. State, No. AP-76, 051 (Tex. Crim. App. June 13, 2012) (not designated for publication).
In Claims 3 through 5 and 11, Applicant asserts that his trial counsel rendered constitutionally ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), because they failed to: include a person with qualifying mental health expertise as a member of the defense team (Claim 3); investigate and prepare for Applicant's guilt phase defense (Claim 4); investigate and use evidence related to Applicant's mental health during his prior incarceration (Claim 5); and prepare for and rebut Merillat's allegedly false punishment phase testimony.
We have reviewed the subsequent application and find that Applicant has failed to satisfy the requirements of Article 11.071, § 5(a). Accordingly, we dismiss the subsequent application as an abuse of the writ without considering the claims' merits.
IT IS SO ORDERED.