[Deathpenalty]death penalty news----TEXAS

[Rick Halperin]

March 24


TEXAS:

Foster death sentence overturned


As reported last week, San Antonio federal District Judge Royal Furgeson
on March 3 overturned the death sentence of Kenneth Foster, convicted as
the getaway driver in the 1996 murder of Michael LaHood Jr., outside the
LaHood family residence north of downtown. Foster was one of four
implicated in the alleged botched robbery attempt that led to LaHood's
death; though he was not the triggerman, and played no direct role in
LaHood's murder, he was convicted for the crime under the state's law of
parties. In invoking that statute, prosecutors had to prove that Foster
and his cohorts agreed to commit armed robbery, and that they should've
anticipated that their risky behavior might cause LaHood's death. In
Foster's case, the jury agreed that Foster should've foreseen that the
reckless actions of his acquaintance, Maurecio Brown, could result in
LaHood's murder. As such, they convicted Foster and sentenced him to die.

In a 95-page opinion, Furgeson denied each of the claims Foster made in
connection to his underlying guilt - including that the evidence was
insufficient to determine that he should've anticipated LaHood's death -
still, he determined that Foster's death sentence is unconstitutional.
While evidence of Foster's tangential involvement in the crime was proof
enough to convict him, Furgeson wrote, it was not sufficient to warrant a
death sentence. "There was no evidence - before Foster's sentencing jury
which would have supported a finding that Foster either actually killed
LaHood or that Foster intended to kill LaHood or another person," he
wrote. "Therein lies the fundamental constitutional defect in Foster's
sentence." The jury could've reached the decision that Foster harbored
some intent to kill LaHood, but they "were not asked to do so," he wrote.
"Therefore, Foster's death sentence is not supported by the necessary
factual findings mandated [by the U.S. Supreme Court] and, for that
reason, cannot withstand Eighth Amendment scrutiny."

In denying Foster's earlier appeal, the state's Court of Criminal Appeals
"attempted to side-step the - Constitutional defect in Foster's death
sentence, suggesting that the jury's finding of Foster's guilt under the
Texas law of parties necessarily implied a finding that Foster intended to
kill LaHood," he wrote. But while there was ample evidence to suggest that
Foster intentionally "aided and abetted" Brown's attempt to rob LaHood,
there was "no evidence showing Foster intentionally encouraged, directed,
aided, or attempted to aid Brown's murder of LaHood," as required in order
to pass constitutional muster. In Foster's case the state allowed the jury
to impose death without making a determination about Foster's intent, the
judge wrote. "Foster's death sentence can be justified only by jury
findings that Foster both played a major role in the criminal conspiracy
that resulted in LaHood's murder and acted with reckless disregard for
human life." Because the Supreme Court has consistently ruled that only a
jury may make factual determinations related to punishment, Furgeson
wrote, "the Eighth Amendment precludes the State of Texas from executing
Foster."

Furgeson's ruling gives the state 90 days to either offer Foster a new
sentencing trial, with a new jury, or to vacate his death sentence and
impose a life sentence. In the meantime, the state is expected to appeal
the decision to the 5th U.S. Circuit Court of Appeals in New Orleans.

(source: Austin Chronicle)

**********************

Truck Driver Spared Death in Smuggling of Immigrants


A jury on Wednesday convicted a trucker on human smuggling charges in the
suffocation deaths of 19 illegal immigrants in South Texas in 2003, but
spared him the death penalty by deadlocking on questions of how he was to
blame.

On their 3rd day of deciding the fate of the driver, Tyrone M. Williams,
34, a Jamaican from Schenectady, N.Y., the jury of 7 women and 5 men found
him guilty on 38 of 58 counts in Federal District Court here. But it also
deadlocked on the other 20 counts, including conspiracy resulting in
death, which carried possible capital punishment.

Judge Vanessa D. Gilmore declared a mistrial on the unresolved counts,
leaving it up to the government to decide by next month whether to retry
Mr. Williams, perhaps with 3 other defendants coming up for trial.

Government and defense lawyers declined to speculate how Judge Gilmore
might sentence Mr. Williams on the 38 counts of transporting illegal
immigrants.

The charges stem from a bungled scheme by a smuggling ring that filled the
trailer of Mr. Williams's 18-wheeler with at least 74 people from Mexico
and Central America for transport through a Border Patrol checkpoint and
deeper into Texas on the night of May 13, 2003.

With the truck's refrigeration unit turned off and the trip extended by
hours because relief trucks were stopped at the checkpoint, desperate
passengers clawed holes for air but succumbed to asphyxiation, heat and
thirst. Mr. Williams abandoned the trailer with the bodies in Victoria and
fled in the cab to Houston, where he sought medical treatment and claimed
surprise that people had sneaked into his truck.

The confusing verdict, finding him guilty of smuggling but not determining
his culpability in the deaths, left lawyers and the judge arguing over
whether it was valid at all. But the judge ruled it was, declaring, "They
took the death penalty off the table for not finding that he's a
principal."

The verdict seemed to please Mr. Williams and his lawyer, who argued
during the nine-day trial that the government had singled out his client
as the 1st smuggling defendant to face the death penalty because he is
black.

"He gave us all a big hug and thanked us," the lawyer, Craig Washington,
said of Mr. Williams, who sat through the day's proceedings in a beige
suit and orange tie. Mr. Williams's mother, Dorothy Williams, who attended
the trial last week but then returned home, "has been praying for a
miracle," Mr. Washington said outside court. "I'd say her prayers have
been answered."

Mr. Washington, who presented only a single defense witness, a
meteorologist who testified about the temperature and moonlight the night
of the fatal ride, conceded in court that Mr. Williams had transported
illegal immigrants. But he argued that greedy ringleaders had overloaded
the truck.

The chief prosecutor, Daniel C. Rodriguez, an assistant United States
attorney, put on the stand 21 survivors who gave harrowing testimony of
failed 911 calls and screaming and banging to attract the attention of the
driver and other motorists. The government's position was that Mr.
Williams was in a crucial position to open the doors and save his
passengers.

The deadlock was signaled in midmorning when the jury sent the judge a
note that she read in court. It said the jury was "hopelessly deadlocked"
on counts 1 through 20. It also said that on counts 21 through 58, jurors
had agreed on guilt or innocence but were also hopelessly deadlocked on a
series of questions they were supposed to answer after each finding of
guilt.

Count 1 charged Mr. Williams with conspiracy to harbor and transport
illegal immigrants, resulting in a person's death. Counts 2 through 20
were not death-penalty counts but charged him with harboring immigrants
for commercial gain.

Verdict sheets handed out to the jurors called on them to find first
whether Mr. Williams was guilty or not guilty of the count. If he was
found guilty, jurors had to answer a series of questions, including
whether Mr. Williams was a principal, or an aider and abettor or both, and
whether injury or death resulted from his actions. On those first 20
counts, the jury could not come to any agreement.

On counts 21 to 39, which charged him in the transporting of people who
survived, and 40 to 58, involving the riders who died, jurors agreed he
was guilty. But they could not marshal the required unanimity in agreeing
on the questions about Mr. Williams's role and whether he was responsible
for injury or death.

(source: New York Times)

*****************

Ex tells of prior beating----Witness: Wilson had violent streak


Dawn Holmberg sat in the witness chair in 117th District Court Wednesday,
stared directly at ex-boyfriend Bevy Wilson and recounted how he beat her
and locked her in a bedroom for four days while they were dating in the
early 1980s.

Wilson "beat me to a pulp," Holmberg told Judge Sandra Watts. One beating
was so bad, Holmberg said, that she suffered a concussion, a broken nose
and black eyes.

Wilson, 46, goes on trial Tuesday on charges of capital murder in the
February 2003 death of Richard Carbaugh, 34, and his son, Dominic
Carbaugh, 10.

The father and son were beaten to death with a claw hammer in their Barton
Street apartment in Flour Bluff. In a police affidavit, one witness said
their killer had accused the elder Carbaugh of being a child molester
before beating him to death.

Wilson was on probation for an earlier aggravated assault charge at the
time of Carbaugh's death. He is now being held in the Nueces County Jail
on a $1 million bond. If convicted, Wilson could face the death penalty.

During the past 2 days, attorneys in the case have been arguing about
evidence and pretrial matters. Holmberg is one of several women Wilson
dated who prosecutors expect to call to testify about his violent past.
Pretrial testimony will resume at 9 a.m. today.

Holmberg said she dated Wilson for about a year in the early 1980s and he
repeatedly beat her before she left him. Holmberg recounted the worst of
the beatings - the one that convinced her to flee - as she tightened her
lips, looked directly at Wilson and stared him down.

She said the beating began after he picked her up at a bar and began to
drive to his mother's house in Flour Bluff. Before he reached the first
stop sign, Holmberg said, Wilson struck her on the head and pulled her
over the gearshift. When they got to the house, Wilson shoved his mother
out of the way and continued beating Holmberg, she said.

Holmberg said during her court appearance that Wilson then locked her in a
bedroom for 4 days, where she slipped in and out of consciousness.

"I couldn't go to the hospital because I couldn't leave the bedroom," she
said.

On the 4th day, Holmberg said she sneaked out of the house, fled to a
nearby lounge and hid under the bar for 6 hours.

Under cross-examination, Holmberg said she didn't call police because she
thought it would be fruitless.

"Back then, the police didn't do much," she said.

Asked by prosecutors if Wilson hit her once or several times, Holmberg
said, "He don't hit you just one time."

Holmberg also said the beatings were exasperated by Wilson's drug use.

"Bevy's a good man when he's not on drugs," she said. "When he's on drugs,
he's a monster."

(source: Corpus Christi Caller-Times)

*******************

Tri-City Bomber captain sentenced for murders


Humberto "Gallo" Garza III had hoped that the religion he found during the
2 years he spent waiting for his capital murder trial would save his life.

Instead, a 12-member jury on Wednesday took 3 hours to send the suspected
Tri-City Bomber captain to death row for planning the murders of 6 men on
Jan. 5, 2003.

One day earlier, the same jury found Garza, 30, guilty on of 1 count
murder and one count of capital murder on charges he planned and
coordinated a drug raid at 2915 E. Monte Cristo Rd. in Edinburg.

Garza pleaded not guilty to the charges that he planned to steal a large
amount of marijuana thought to be in the house, called a group of gang
members together and drove them to the house. Police said he waited in a
vehicle nearby as the masked men charged the home with assault weapons and
shot each of the six men several times.

Family members of Garza and the victims, and even some jurors cried as
370th state District Judge Noe Garza formally sentenced Garza to death
row, explaining the sentence allows for an automatic appeal, and Garza
will be appointed two new lawyers to help his case. As deputies places
handcuffs on Garza, he hugged his attorneys, Ralph Martinez and Keno
Vasquez, thanking them.

He then turned around and faced family members who filled the courtroom
sobbing.

"I want to tell my family I love them. I love them deeply and I didnt kill
nobody," he said. "Dont worry. I have faith in God that Ill be back and I
will win this case."

As deputies escorted him out of the courtroom, he smiled at his family
members and told them not to worry and to "keep the faith."

They answered that they loved him and that God would have the final say.
Martinez gave Garzas mother a handful of letters Garza had written for his
relatives.

Jurors had decided that Garza was a continual threat to society and had
caused or intended the deaths of the six men. They also did not find any
mitigating circumstances to justify giving him a life sentence.

Garza is the 2nd man to receive the death penalty in connection with the
slayings. In December, a jury sentenced Juan Raul Navarro Ramirez to die
for the slayings. Another man charged in the murder, Robert Gene Garza, is
already on death row for killing four Donna women in 2002. That slaying
was also connected to the local gang, the Tri-City Bombers. There are six
other waiting separate capital murder trials in Hidalgo county jail and
two others charged have not been caught.

During the sentencing, Garzas attorneys had argued that Garza had a change
of heart and given his life to God while in prison. While others around
him argued the fate of his life, Garza spent most of the day with his head
bowed, resting on his folded arms.

But Hidalgo County Assistant District Attorneys Murray Moore and Joseph
Orendain outlined Garzas criminal history to prove he remained a threat.

Garza first entered the Texas Youth Commission at age 16. In July 1991, he
was again arrested 4 days before his 17th birthday for stabbing a man. He
was released 3 months later on bond. He pleaded guilty to the stabbing,
claiming it was in self-defense against a high school rival who started a
fight with him.

He was in prison from 1992 until 2002 on those charges as well as with
burglarizing a house.

In April 2002, Garza was released from prison but was to be on parole
until 2010.

Jesusa Farias, Garzas parole officer, testified that Garza performed well
during his parole up until his arrest and had found a job, started alcohol
and substance abuse treatment and had begun paying restitution.

Garza had identified anger problems, a need for companionship and
associations with negative influences but never mentioned being a member
of a gang or asked for help getting out, she said.

Hidalgo County Detention Center Lt. Jack Alaniz testified that Garza did
not identify himself as a gang member and was not classified as a gang
member in the detention center. He said Garza frequently participated in
Bible studies and prayed with prison ministers.

Moore asked if he had heard the saying that "Jesus and Elvis live at the
jail."

Alaniz said it was a familiar phrase to describe inmates who "go to jail,
they start reading the Bible and get religious. Thats common."

But Garzas religious devotion appeared sincere, testified several
ministers that met with him in the jail. Garza studied the Bible often and
had begun a correspondence course learning about scripture, said the jails
rehabilitation counselor, Juan Parro.

Baptist minister Eduardo Luna said he met with Garza often to discuss
scripture and felt Garzas religious interest was genuine.

"I tend to pull away if I dont see a sincerity," he said.

Even before his arrest for the Edinburg murders, Garza had been attending
church, alone or with his mother, said Elodia Davila, who counseled Garza
at the substance abuse program required for his parole.

Throughout the trial, Garzas mother, Lydia, prayed for her son outside the
courtroom and was allowed to see him briefly before the sentencing
hearing.

She testified that she was married to his father, Humberto Garza Jr. for
15 years, most, of which Garzas father spent in prison. Her son did not
have a good relationship with his father and did not see him very often.

"He was in prison. I was a single parent. He died in the hospice in a
prison," Lydia Garza said. "He wasnt around much for my son or for me."

Lydia Garza said her son was "devastated" about his fathers death, which
occured a year before the Edinburg murders.

She said her son went to prison at 16 and was 27 when he came out. She
knew his friends before he was jailed and did not know him to be a member
of any gang.

"Ive always had a good relationship with him," she said.

Under cross-examination, Lydia Garza said she had tried to obtain
counseling for her son when he was in trouble in high school. She allowed
him to live with her when he was released from prison and helped him pay
for half his payments on a pickup truck.

After his mother testified, she told Garza that she loved him as she
exited the courtroom. He looked back with tears in his eyes as she left.

In his closing arguments, Martinez asked the jury to give Garza a life
sentence that would make him 71 years old before he would be eligible for
parole.

He noted that during the decade Garza spent in prison, he had few behavior
problems, and none after 1996. Martinez also pointed out that Garza helped
police after his arrest and gave them information that helped them arrest
other people involved.

"Maybe the Bible study is a Jesus and Elvis con game, but maybe he feels
the moral responsibility," Martinez said.

Prosecutors argued that Garzas religious study made him a hypocrite
because he knew right and wrong, yet he went along and planned the Monte
Cristo raid.

"Hes worse than the man who pulled the trigger. He executed the plan and
he executed the 6 individuals," Orendain said, showing jurors pictures of
the victims: brothers Jerry Hidalgo and Ray Hidalgo; half brothers Juan
Delgado Jr. and Juan Delgado III; Ruben Castillo and Jimmy Almendariz.

Graciella Delgados son and stepson were killed in the murders. She
attended most of the trial.

"Im very content (with the verdict.) Thank God," she said in Spanish.

(source: The Monitor)

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Suspect indicted for capital murder in daughter's death


The father of a baby who died in August has been indicted for capital
murder in connection with her death.

A Potter County grand jury indicted Matthew Ray Watson, 25, on March 16
but the indictment remained sealed until Monday, when Watson was informed
of the charge, said 47th District Attorney Randall Sims.

Watson allegedly caused the injuries that led to 8-week-old Averial DeAn
Buie's death Aug. 17 at Baptist St. Anthony's Hospital. The infant, who
lived at River Falls Apartments, 6040 Belpree Road, had been hospitalized
in critical condition since Aug. 6, when she was taken to BSA with
injuries to her upper body, according to information from the
Potter-Randall Special Crimes Unit.

The indictment alleges that Watson injured his infant daughter by striking
her with an object or causing her to strike an object.

Special Crimes investigators had worked on the case since Buie's death,
but Watson was not charged prior to his indictment last week.

Sims said Watson already is serving time in a Texas Department of Criminal
Justice facility after being convicted in an unrelated case of aggravated
assault of a public servant.

He said Sims was to be transferred from Tulia to the William P. Clements
Jr. Unit in Amarillo.

(source: The Amarillo Globe-News)