Opinion
NO. WR-65,784-02 NO. WR-65,784-04
05-23-2018
EX PARTE JOHN ALLEN RUBIO, Applicant
ON APPLICATIONS FOR POST-CONVICTION WRITS OF HABEAS CORPUS IN CAUSE NO. 03-CR-457-B IN THE 138TH JUDICIAL DISTRICT COURT CAMERON COUNTY
Per curiam. ORDER
This case involves both an initial application for a writ of habeas corpus and a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 Section 5.
Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.
Applicant's common law wife and co-defendant, Angela Camacho, testified at his second trial that she had three children: Julissa Quesada, who was three years and one month old; John Rubio, who was one year and two months old; and Mary Jane Rubio, who was about two months old. Applicant was only the biological father of Mary Jane, but he acted as a father to all three children. In 2002, Child Protective Services ("CPS") removed Julissa and John 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 Mary Jane, applicant asked her what she would do if he killed the children. She thought he was "playing."
Camacho testified that they received a notice informing them that Julissa'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 Julissa'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, Mary Jane, and screamed for Camacho. Camacho came out of the bathroom and saw that applicant was trying to stab and decapitate Julissa, but the child was screaming and struggling. Applicant told Camacho to hold her legs. Camacho held her 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 John was asleep in his crib during these events. When the baby woke up crying, Camacho went to the bedroom to change his diaper. Applicant came into the room and told her that John was possessed. She told applicant "no," and she picked John up and held him. Applicant grabbed the baby from her, took him into the kitchen, and stabbed and decapitated him. When Camacho saw John's decapitated body on the kitchen floor, she asked applicant to kill her. He tried unsuccessfully to break her neck, then he placed John's body onto a bed, and he put John'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 the boy'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.
In November 2003, applicant pled "not guilty by reason of insanity," nevertheless, a jury found him guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071 Section 2 in such a way that the trial court sentenced applicant to death. See Art. 37.071 § 2(g). This Court reversed applicant's conviction and sentence on direct appeal, holding that the admission of Camacho's out-of-court statements violated the Confrontation Clause. Rubio v. State, 241 S.W.3d 1, 11 (Tex. Crim. App. 2007) (citing Crawford v. Washington, 541 U.S. 36 (2004)).
Upon retrial in July of 2010, applicant again pled "not guilty by reason of insanity." Again, the jury found applicant guilty of capital murder and answered the special issues submitted pursuant to Article 37.071 Section 2. The trial court, accordingly, set applicant's punishment at death. See Art. 37.071 § 2(g). In applicant's second direct appeal, this Court found his four points of error lacked merit and affirmed his conviction and death sentence. Rubio v. State, No. AP-76,383 (Tex. Crim. App. Oct. 10, 2012) (not designated for publication).
In August 2010, the trial court appointed David A. Schulman to represent applicant in his post-conviction writ of habeas corpus under Article 11.071. In November 2011, applicant filed a motion in the trial court requesting funding to retain experts to investigate the possibility that applicant has Fetal Alcohol Syndrome (FAS) or Fetal Alcohol Spectrum Disorder (FASD). The trial court granted up to $13,000 in funding for this purpose in January 2013. Counsel three times asked this Court for more time to file applicant's writ application pursuant to Article 11.071 Section 4A. The Court granted his first two motions, but denied the third, giving him 30 days to file an application. Ex parte Rubio, No. WR-65,784-02 (Tex. Crim. App. Sep. 26, 2012); Ex parte Rubio, No. WR-65,784-02 (Tex. Crim. App. Apr. 17, 2013); Ex parte Rubio, No. WR-65,784-02 (Tex. Crim. App. Sep. 11, 2013) (all not designated for publication).
Applicant filed his original Article 11.071 application for a writ of habeas corpus in the trial court on October 15, 2013. He raised six claims for relief. The trial court held an evidentiary hearing on August 8, 2016. Applicant presented a stipulation-signed by the State's attorney-to certain expert testimony. He also offered the live testimony of five witnesses, including a trial consultant with expertise in jury selection, two attorneys with expertise in capital murder trial work, a mitigation specialist, and applicant's second-chair trial attorney who had organized and directed the defense's "team of experts." Applicant filed a subsequent application-which he labeled a "supplemental" application-on November 9, 2016, alleging four additional grounds for relief.
When this Court had not received a record in this case by March 2017, we ordered the trial court to finish its work in the case and have the clerk transmit the complete record to the Court within 30 days of the date of our order. Ex parte Rubio, Nos. WR-65,784-02 and WR-65,784-04 (Tex. Crim. App. Mar. 29, 2017) (not designated for publication). We also ordered the trial court clerk to immediately forward applicant's subsequent writ application to this Court. Id. On April 18, 2017, the trial judge signed findings of fact and conclusions of law recommending that this Court deny applicant the relief he requested in his initial application.
We have now reviewed applicant's two applications for writs of habeas corpus, his exhibits and briefing, the evidence in the record, the testimony and exhibits from the evidentiary hearing, the habeas court's findings of fact and conclusions of law, and portions of the direct appeal record relevant to applicant's allegations. We find that applicant is not entitled to relief on the six claims raised in his initial application, and we find that the claims in applicant's subsequent application do not satisfy the requirements of Article 11.071 Section 5.
In applicant's first and second claims for relief in his initial application, he argues that his trial counsel were constitutionally ineffective for failing to investigate and discover that he suffers from FAS/FASD and temporal lobe epilepsy. Applicant has failed to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984). In light of the assessments of experts and medical knowledge available to trial counsel, applicant has not demonstrated that counsel's representation fell below an objective standard of reasonableness. See id. at 689. Further, in light of the heinous nature of the crime and the mitigating evidence trial counsel presented, applicant has not demonstrated that the result of his trial would have been different but for counsel's decision not to further investigate FAS/FASD or epilepsy. See id. at 694.
In applicant's third claim for relief in his initial application, he complains that the trial court failed to timely and completely fund his habeas investigation into the effects of his mother's prenatal alcohol abuse. He argues this failure restricted counsel's ability to adequately develop evidence that he suffers from FASD and epilepsy and violated his right to due process of law. Even assuming applicant could show that he has a constitutional right to expert witness funding on habeas, he has not adequately supported his claim that the failure to authorize additional funds presented a due process violation.
In applicant's fourth through sixth claims in his initial application, he argues that aspects of Texas's death penalty sentencing scheme contained in Article 37.071, including the so-called "10-12 Rule," violate the Eighth and Fourteenth Amendments and due process principles. On direct appeal, applicant unsuccessfully challenged the 10-12 Rule concerning the jury's decision on the mitigation special issue. To the extent that he raises the same arguments as he did on direct appeal, his claims are not cognizable on habeas review. See Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006). Applicant's other challenges to the statute are procedurally barred because they could and should have been raised on direct appeal. See Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004). Also, we have rejected similar constitutional challenges to the statute. See, e.g., Soliz v. State, 432 S.W.3d 895, 904 (Tex. Crim. App. 2014); Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005); Threadgill v. State, 146 S.W.3d 654, 672 (Tex. Crim. App. 2004); Cantu v. State, 842 S.W.2d 667, 692-93 (Tex. Crim. App. 1992); Draughon v. State, 831 S.W.2d 331, 337-38 (Tex. Crim. App. 1992).
We find that the record supports the trial court's findings of fact and conclusions of law, with the exception of finding twenty-two and the first paragraph of finding fifty-four. Based upon the trial court's findings and conclusions and our own review, we deny relief on the claims raised in applicant's initial application for a writ of habeas corpus.
In addition, we conclude that applicant's November 2016 "supplemental" filing containing four additional claims for relief is a subsequent application that must satisfy one of the requirements set out in Article 11.071 Section 5(a). To satisfy Section 5(a)(1), applicant must show that: (1) the factual or legal basis for his current claims was unavailable on the date he filed his previous application; and (2) "the specific facts alleged, if established, would constitute a constitutional violation that would likely require relief from either the conviction or sentence." Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007). A factual basis of a claim is unavailable for the purposes of Section 5(a)(1), "if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date." Art. 11.071 § 5(e).
Sections 5(a)(2) and 5(a)(3) respectively allow a court to consider the merits of the claim when: (1) by a preponderance of the evidence, but for a constitutional violation no rational juror could have found applicant guilty beyond a reasonable doubt; and (2) by clear and convincing evidence, but for a constitutional violation no rational juror would have answered a punishment issue in the State's favor. Art. 11.071 §§ 5(a)(2), 5(a)(3). Additionally, we have held that "an original or subsequent application for a writ of habeas corpus must state specific, particularized facts which, if proven true, would entitle [an applicant] to habeas relief." Ex parte Staley, 160 S.W.3d 56, 63 (Tex. Crim. App. 2005).
In his first claim in his subsequent application, applicant argues that he was denied Equal Protection by the State's refusal to discuss the possibility of a plea bargain. He contends that the State's attorney's refusal to offer a plea bargain for a life sentence was part of an illegal, ongoing bribery scheme perpetrated by the local district attorney. The record shows that the information forming the basis for this argument was known to applicant's trial attorney since the time of applicant's trial. Thus, the factual basis for the claim was ascertainable through the exercise of reasonable diligence on or before the date applicant filed his initial application. See Art. 11.071 §§ 5(a)(1), 5(e). Further, trial counsel's theories about the impact of the bribery scheme were speculative and applicant has not shown by clear and convincing evidence that, but for a violation of the United States Constitution, no rational juror would have answered in the State's favor one or more of the Article 37.071 special issues. See Art. 11.071 § 5(a)(3).
In applicant's second claim in his subsequent application, he argues that a "breakdown" in his case occurred when trial counsel did not discover or present to the jury "mitigating evidence which may have altered the ultimate outcome of the case." Applicant has not shown specific, particularized facts which, if proven true, would entitle him to habeas relief. See Staley, 160 S.W.3d at 63. He has not demonstrated by clear and convincing evidence that, but for a violation of the Constitution, no rational juror would have answered the mitigation special issue in the State's favor. See Art. 11.071 § 5(a)(3).
In applicant's third claim in his subsequent application, he argues that his right to the effective assistance of counsel was violated when the district attorney improperly seized evidence from his jail cell before trial. The trial judge held a hearing prior to trial and ruled that: (1) the seized evidence must be returned to applicant; and (2) nothing the State seized from applicant's cell would be admissible at trial. Applicant has not demonstrated that his current claim could not have been presented in his initial application because the factual or legal basis for the claims was unavailable and was not ascertainable through the exercise of reasonable diligence. See Art. 11.071 §§ 5(a)(1), 5(e). In addition, applicant's argument involves multiple levels of conjecture. He has not stated specific, particularized facts which, if proven true, would entitle him to relief and has not satisfied the conditions set out in Article 11.071 Sections 5(a)(2) or 5(a)(3).
In applicant's final claim, he contends that the trial court's failure to properly fund the defense team denied him effective assistance of counsel by causing trial counsel to conduct a deficient mitigating evidence investigation. The new factual bases stated in this ineffective assistance of counsel claim-compared with claims applicant raised in his initial writ application-appear to be trial counsel's statements at the hearing. The trial court considered this testimony in the context of evaluating and rejecting applicant's first and second grounds for relief brought in his initial writ and so have we. See Art. 11.071 § 5(a)(1). Further, applicant has not made a prima facie showing that he would prevail on either prong of the Strickland test. See Strickland, 466 U.S. at 689, 694.
In sum, after reviewing applicant's subsequent application, we find that he has failed to satisfy the requirements of Article 11.071 Section 5(a). Accordingly, we dismiss his subsequent application as an abuse of the writ without reviewing the merits of the claims raised. See Art. 11.071 § 5(c).
IT IS SO ORDERED THIS THE 23RD DAY OF MAY, 2018. Do Not Publish