Magner v. Gallagher Brief Amicus Curiae
Public Court Documents
January 30, 2012
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Brief Collection, LDF Court Filings. Buck v Davis Joint Appendix, 2016. 36930c0d-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/de6ddff3-458e-42c6-9b7b-99cd7f5ebbdb/buck-v-davis-joint-appendix. Accessed May 03, 2025.
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No. 15-8049
In the
Supreme Gkmrt of tlto United BtnUs
Duane E dward Buck,
Petitioner,
v.
L orie Davis, D irector,
T exas D epartment Of Criminal Justice,
Correctional Institutions D ivision,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
JOINT APPENDIX
Scott A. K eller
Counsel o f Record
fo r Respondent
A ttorney General’s Office
for the State of Texas
Capitol Station
P.O. Box 12548
Austin, TX 78711
scott.keller@
texasattorneygeneral.gov
(512) 936-1400
Sherrilyn Ifill
Janai Nelson
Christina A. Swarns
Counsel o f Record
fo r Petitioner
Jin H ee L ee
Natasha M. Korgaonkar
Natasha M erle
NA ACP L egal D efense
& E ducational F und, Inc.
40 Rector Street, 5th Floor
New York, N Y 10006
cswarns@naacpldf.org
(212) 965-2200
(For Additional Counsel fo r Petitioner See Inside Cover)
PETITION FOR CERTIORARI FILED FEBRUARY 4,2016
CERTIORARI GRANTED JUNE 6,2016
266783
mailto:cswarns@naacpldf.org
Kathryn M. K ase
K atherine C. Black
T exas Defender Service
1927 Blodgett Street
Houston, TX 77004
kateblack@texasdefender.org
(713) 222-7788
Samuel Spital
Benjamin R. W ilson
Holland & K night LLP
31 West 52nd Street
New York, N Y 10019
samuel.spital@hklaw.com
(212) 513-3200
mailto:kateblack@texasdefender.org
mailto:samuel.spital@hklaw.com
TABLE OF CONTENTS
Relevant Docket Entries
Relevant Docket Entries from the U.S. Court
of Appeals, Fifth Circuit [No. 14-70030]...............la
Relevant D ocket Entries from the D istrict
Court for the Southern District of Texas
[No. 4:04-cv-03965]...................................................6a
M aterials from D istrict Court
Defense Exhibit 1 (Dr. Quijano Report Redacted),
March 8,1997 ............................................................14a
D efense E xh ib it la (Dr. Q uijano R ep ort
Unredacted), March 8,1997 ..................................24a
T ra n scr ip t o f P ro ce e d in g s , M ay 1, 1997
(Officer Paul McGinty)................................... ,41a
T ra n scr ip t o f P ro ce e d in g s , M ay 1, 1997
(Harold E bnezer).....................................................50a
T ra n scr ip t o f P ro ce e d in g s , M ay 1, 1997
(Phyllis Mary Taylor)...............................................72a
T ra n scrip t o f P ro ce e d in g s , M ay 2, 1997
(Phyllis Mary Taylor) ............................................ 88a
T ra n scrip t o f P ro ce e d in g s , M ay 2, 1997
(Devon Green)........................................................... 93a
Page
Table o f Contents
T ra n scr ip t o f P ro ce e d in g s , M ay 2, 1997
(Shennel G ardner)................................................. 109a
T ra n scr ip t o f P ro ce e d in g s , M ay 2, 1997
(Marilyn M urr)........................................................119a
T ra n scr ip t o f P ro ce e d in g s , M ay 6, 1997
(Vivian Jackson)..................................................... 124a
T ra n scr ip t o f P ro ce e d in g s , M ay 6, 1997
(Deputy D. R. W arren ).........................................130a
T ra n scr ip t o f P ro ce e d in g s , M ay 6, 1997
(Dr. Walter Quijano and Closing Statements) . 137a
All Jury Notes, May 6-7,1997 .................................. 207a
Press Release, Office of the Texas Attorney
General, U.S. Supreme Court Grants State’s
Motion in Capital Case, June 5 ,2 0 0 0 .................211a
Press Releases, Office of the Texas Attorney
G e n e ra l, S ta te m e n t fro m A t to r n e y
General John Cornyn R egarding Death
Penalty Cases, June 9,2000 ................................ 213a
Memorandum and Order from the District Court
for the Southern District of Texas (Houston
Division) Granting Respondent’s Motion for
Summary Judgment and Denying Petitioner’s
Writ of Habeas Corpus, July 24,2006............... 219a
Page
I l l
Table o f Contents
Memorandum and O rder from the D istrict
Court for the Southern D istrict o f Texas
(Houston Division) D enying Petitioner’s
Motion for Relief from Judgment pursuant
to FRCP 60(b)(6), August 29, 2014.....................249a
Opinion of the District Court for the Southern
District of Texas (Houston Division) Denying
Petitioner’s Motion to Alter or Amend Judgment
pursuant to FRCP 59(e), March 11, 2015 .........269a
Materials from Circuit Court
Opinion of the Fifth Circuit re: Petitioner’s
Motion for a Certificate of Appealability,
August 20, 2015....................................................... 274a
Opinion of the Fifth Circuit en banc re: Petitioner’s
Motion for a Certificate of Appealability,
November 6, 2015................................................. 288a
Material from Supreme Court
S aldano v. T exas: R esp on d en t’s B r ie f in
Opposition to Petition for Writ of Certiorari,
No 99-8119............................................................... 295a
Page
la
RELEVAN T DOCKET EN TRIES
RELEVAN T DOCKET EN TRIES FROM THE
UNITED STATES COURT OF A P PE A LS FOR
THE FIFTH CIRCUIT
[NO. 14-70030]
Date Filed D ocket Text
09/29/2014 D EATH P E N A L T Y CASE docketed.
NOA filed by A ppellan t Mr. Duane
Edward Buck [14-70030] (MRW)
❖ ❖ *
05/11/2015 CORRECTED MOTION for certificate
of appealability [7910348-2], Motion due
deadline satisfied.. Response/Opposition
due on 06/10/2015. [14-70030]
R E V IE W E D AND/OR EDITED - The
original text prior to review appeared
as follows: MOTION filed by Appellant
Mr. Duane Edward Buck for certificate
o f appealability [7910348-2]. Date of
service: 05/11/2015 via email - Attorney
for Appellants: Black, Spital, Swarns;
Attorney for Appellee: Sargent [14-70030]
(Christina A. Swarns)
05/11/2015 BRIEF IN SUPPORT filed by Appellant
Mr. Duane Edward Buck in support of
motion for certificate of appealability
17910348-21 (IN C O R P O R A T E D IN
2a
06/10/2015
06/24/2015
MOTION FOR COA) B rief in Support
deadline satisfied. [7910507-1] [14-70030]
(M FY)
̂^
RE SPON SE/OPPO SITION [7933991-
1] to the m otion for ce rtifica te of
appealability filed by Appellant Mr.
Duane E dw ard Buck in 14-70030
17910348-21R e sp o n se /Q p p o s it io n
deadline satisfied. [14-70030]
R E V IE W E D A N D /O R E D IT E D
- The original text prior to review
appeared as follows: R E S P O N S E /
OPPOSITION filed by Mr. William
Stephens, Director, Texas Department
o f C rim inal Justice, C orrection a l
Institutions Division [7933991-1] to the
motion for certificate of appealability
filed by Appellant Mr. Duane Edward
Buck in 14-70030 17910348-2] Date of
Service: 06/10/2015 via email - Attorney
for Appellants: Black, Spital, Swarns;
Attorney for Appellee: Sargent. [14-
70030] (Fredericka Searle Sargent)
D O C U M E N T R E C E IV E D - NO
A C TIO N T A K E N . No action w ill
be taken at this tim e on the reply
to response/opposition to motion for
3a
06/25/2015
06/26/2015
06/26/2015
certificate o f appealability received
from Appellant Mr. Duane Edward
Buck because leave of the court is
required [14-70030] (MRW)
U N O P P O S E D M O TIO N file d by
Appellant Mr. Duane Edward Buck for
leave to file a reply [7946888-2] to the
response/opposition filed by Appellee
Mr. William Stephens, Director, Texas
D epartm en t o f C rim inal Justice,
C orrectional Institutions D ivision
in 14-70030 17933991-21. motion for
certificate of appealability filed by
Appellant Mr. Duane Edward Buck in
14-70030 17910348-21. Date of service:
06/25/2015 via email - Attorney for
Appellants: Black, Spital, Swarns;
Attorney for Appellee: Sargent [14-
70030] (Christina A. Swarns )
COURT ORDER granting motion for
leave to file a reply filed by Appellant
Mr. Duane Edward Buck 17946888-21
[14-70030] (MRW)
REPLY filed by Appellant Mr. Duane
E dw ard Buck [7947570-1] to the
response/opposition filed by Appellee
Mr. William Stephens, Director, Texas
D epartm ent o f C rim inal Justice,
Correctional Institutions Division in
4a
08/20/2015
08/20/2015
09/11/2015
10/09/2015
14-70030 r7933991-21. to the motion
for certificate of appealability filed by
Appellant Mr. Duane Edward Buck
in 14-70030 17910348-21. [14-70030]
(MRW)
U NPUBLISHED OPINION ORDER
FILED. [14-70030 Affirmed ] Judge:
J E S , Judge: P R O , Judge: CH; denying
motion for certificate of appealability
filed by Appellant Mr. Duane Edward
Buck (ISSUED AS AN D FOR THE
M AN D ATE) 17910348-21 [14-70030]
(JRS)
M A N D A T E IS S U E D . [14-70030]
(JRS)
jfc ^ ^
PE TITIO N filed by Appellant Mr.
Duane Edward Buck for rehearing
en banc [8009756-2], Date of Service:
09/11/2015 via email - A ttorney for
Appellants: Black, Spital, Swarns;
Attorney for Appellee: Sargent [14-
70030] (Christina A. Swarns )
^ ifc
RESPONSE/OPPOSITION [8031002-
1] to the petition for rehearing en banc
5a
11/06/2015
filed by Appellant Mr. Duane Edward
Buck in 14-70030 18009756-21. court
order C ou rt d irective requ estin g
a resp on se 18021783-2]R esp on se /
Opposition deadline satisfied. [14-
70030]
R E V IE W E D A N D /O R E D IT E D
- The original text prior to review
appeared as follows: R E S P O N S E /
OPPOSITION filed by Mr. William
Stephens, Director, Texas Department
o f C rim inal Justice, C orrectional
Institutions Division [8031002-1] to the
petition for rehearing en banc filed by
Appellant Mr. Duane Edward Buck in
14-70030 18009756-21 Date of Service:
10/09/2015 via email - Attorney for
Appellants: Black, Spital, Swarns;
Attorney for Appellee: Sargent. [14-
70030] (Fredericka Searle Sargent)
COURT ORDER denying petition for
rehearing en banc filed by Appellant
Mr. Duane Edward Buck 18009756-2]
With Poll.; Treating the petition for
rehearing en banc as a petition for
panel rehearing, the petition for panel
rehearing is denied [8053446-1] JLD,
Circuit Judge, with whom JEG, joins,
dissenting [14-70030] (JMA)
* * %
6a
RELEVAN T D OCKET EN TRIES FRO M THE
UNITED STATES DISTRICT COURT FO R THE
SOUTH ERN DISTRICT OF TE X AS
[NO. 4:04-CV-03965]
Date Filed # D ocket Text
10/14/2004 1 P E T IT IO N fo r W rit o f H abeas
Corpus (Filing fee $ 0.) filed by Duane
Edward Buck.(mholland,) Additional
attachm ent(s) added on 10/14/2004
(m h olland , ). (M ain D ocu m en t 1
replaced on 3/27/2015) (rwestmoreland,
4). (Entered: 10/14/2004)
09/06/2005 6 A N S W E R to Petition for W rit o f
Habeas Corpus by Douglas Dretke,
filed.(Stewart-Klein, Ellen) (Entered:
09/06/2005)
09/06/2005 7 MOTION for Summary Judgment by
Douglas Dretke, filed. Motion Docket
Date 9/26/2005. This entry is attached
to the same document as 6 and was
made for case management purposes,
(ltien ,) (Entered: 09/09/2005)
* *
7a
01/06/2006
01/26/2006
07/24/2006
07/24/2006
08/03/2006
11 R E S P O N S E to 7 M O T IO N fo r
Summary Judgment, filed by Duane
Edward Buck, (dhansen) (Entered:
01/09/2006)
12 R E P L Y to R esp on se to 7 M otion
for Sum m ary Judgm ent, filed by
D ouglas D retk e . (S tew art-K le in ,
Ellen) Modified on 2/8/2006 - linked to
#7 (ltien ,). (Entered: 01/26/2006)
15 M E M O R A N D U M A N D O R D E R
granting 7 M OTION for Sum m ary
Judgment. Petitioner’s Petition for
Writ of Habeas Corpus is denied. No
Certificate of Appealability shall issue.
( Signed by Judge Vanessa D Gilmore)
Parties notified.(kmurphy,) (Entered:
07/26/2006)
16 FINAL JUDGMENT. Case terminated
on Q7/24/06.( Signed by Judge Vanessa
D Gilmore) Parties notified.(kmurphy,)
(Entered: 07/26/2006)
17 N O T IC E O F A P P E A L to US
Court of Appeals for the Fifth Circuit
re: 16 F in al Judgm ent by Duane
Edward Buck (Filing fee $ 455), filed,
(jbradford ,) (Entered: 08/03/2006)
8a
10/01/2009
04/30/2010
09/07/2011
09/07/2011
jfs
25 Per Curiam o f U SCA for the Fifth
Circuit (certified copy) dated 9/25/2009
re: 17 Notice of Appeal ; USCA No.
06-70035. Petition for a Certificate
of Appealability Denied, filed.(hler, )
(Entered: 10/02/2009)
26 The petition for a w rit o f certiorari
filed with the Supreme Court has been
denied (USCA No. 06-70035) (USSC
No. 09-8589), filed, (chorace) (Entered:
05/05/2010)
27 MOTION for R elief from Judgment
by Duane Edward Buck, filed. Motion
Docket Date 9/28/2011. (Attachments:
# 1 Exhibit 01, # 2 Exhibit 02, # 3
Exhibit 03, # 4 Exhibit 04, # 5 Exhibit
05, # 6 Exhibit 06, # 7 Exhibit 07,
# 8 Exhibit 08, # 9 Exhibit 09, #
10 Exhibit 10, # H Exhibit 11, # 12
Exhibit 12, # 13 Proposed Order)(Dow,
David) (Entered: 09/07/2011)
28 MOTION to Stay Execution by Duane
Edward Buck, filed. Motion Docket Date
9/28/2011. (Attachments: # 1 Exhibit
01, # 2 Exhibit 02, # 3 Proposed Order)
(Dow, David) (Entered: 09/07/2011)
* * *
9a
09/09/2011
09/09/2011
09/12/2011
09/12/2011
30 R E S P O N S E in O pposition to 27
MOTION for Relief from Judgment,
28 MOTION to Stay Execution, filed
by Douglas Dretke. (Attachments: #
1 Proposed 0rder)(0den, Georgette)
(Entered: 09/09/2011)
31 ORDER denying 27 Motion for Relief
from Judgment; denying 28 Motion
to Stay. (Signed by Judge Vanessa D
Gilmore) Parties notified.(emares, )
(Entered: 09/09/2011)
33 MOTION to Alter Judgment by Duane
Edward Buck, filed. Motion Docket
Date 10/3/2011. (Attachments: # 1
Exhibit 01, # 2 Exhibit 02, # 3 Exhibit
03, # 4 Exhibit 04, # 5 Proposed
Order)(Black, Katherine) (Entered:
09/12/2011)
36 ORDER denying 33 Motion to Alter
Judgm ent; denying 34 M otion for
Sanctions; no certificate of appealability
shall be issue.(Signed by Judge Vanessa
D Gilmore) Parties notified.(emares,)
(Entered: 09/12/2011)
10a
09/13/2011
09/20/2011
11/14/2011
01/07/2014
37 NOTICE OF APPE A L to US Court
o f Appeals for the Fifth Circuit re:
31 Order on Motion for R elief from
Judgment, Order on Motion to Stay
by Duane Edward Buck, filedJBlack,
Katherine) (Entered: 09/13/2011)
42 Per Curiam of USCA re: 37 Notice of
Appeal ; USCA No. 11-70025; Buck’s
application for COA as to his contention
that reasonable jurists could debate the
district court’s disposition of his motion
to reconsider judgment is denied. We
deny the request for stay of execution,
filed, (jhancock) (Entered: 09/21/2011)
43 The petition for a w rit o f certiorari
filed with the Supreme Court has been
denied (USCA No. 11-70025) (USSC
No. 11-6391), filed . (A ttachm ents:
# 1 L etter)(m m apps, ) (E n tered :
11/14/2011)
49 MOTION for Relief from Judgment
Pursuant to Federal Rule o f Civil
Procedure 60(b)(6) by Duane Edward
Buck, filed . M otion D ock et D ate
1/28/2014. (Attachments: # 1 Exhibits,
# 2 P rop osed O rderR bthom as, 4)
(Entered: 01/09/2014)
11a
04/10/2014
04/10/2014
05/21/2014
08/29/2014
09/26/2014
58 RESPONSE to 49 MOTION for Relief
from Judgment filed by Rick Thaler.
(S argen t, F re d e r ick a ) (E n tered :
04/10/2014)
59 Amended RESPONSE to 49 MOTION
for R elie f from Judgm ent filed by
Rick Thaler. (Sargent, Fredericka)
(Entered: 04/10/2014)
64 REPLY to Response to 49 MOTION for
Relief from Judgment, filed by Duane
Edward Buck. (Swarns, Christina)
(Entered: 05/21/2014)
66 ORDER denying 49 Motion for Relief
from Judgment. It is further ordered
that no certificate of appealability shall
issue. (Signed by Judge Vanessa D
Gilmore) Parties notifiedjbthomas, 4)
(Entered: 08/29/2014)
67 MOTION to Alter Judgment by Duane
Edward Buck, filed. Motion Docket
Date 10/17/2014. (Attachments: # 1
Proposed Grder)(Swarns, Christina)
(Entered: 09/26/2014)
12a
09/26/2014
10/15/2014
10/20/2014
69 NOTICE OF APPE A L to US Court
of Appeals for the Fifth Circuit re:
66 Order on Motion for R elief from
Judgment by Duane Edward Buck,
filed.(Swarns, Christina) (Entered:
09/26/2014)
71 R E S P O N S E in O pposition to 67
M O TIO N to A lte r Judgm en t, 68
MOTION for Oral Argument on Mr.
B u ck ’s M otion to A lte r or Am end
this Court’s Memorandum and Order
D enying Duane B uck ’s M otion for
R elie f from Judgment Pursuant to
F ed era l Rule o f C ivil P roce d u re
60(b)(6). Hearing re: 67 MOTION to,
filed by William Stephens. (Sargent,
Fredericka) (Entered: 10/15/2014)
73 REPLY to 71 Response in Opposition
to Motion, PETITIO N ER’S R E PLY
TO R E SPO N D E N T ST E PH E N S’S
RESPONSE TO BU C K ’S M OTION
TO A L T E R OR A M E N D T H IS
C O U R T’S M E M O R A N D U M A N D
ORDER D E N Y IN G H IS M OTION
13a
03/11/2015
04/08/2015
FOR R E LIE F FROM JUDGM ENT
PURSUANT TO FE D E R AL RULE
OF CIVIL PROCEDURE 60(b)(6) AN D
MOTION FOR ORAL ARGUMENT,
filed by Duane Edward Buck. (Swarns,
Christina) (Entered: 10/20/2014)
❖ '!<
75 O R D E R d e n y in g 67. M otion to
A lter Judgm ent. No certificate of
appealability shall issue. (Signed by
Judge Vanessa D Gilmore) Parties
notified.(am w illiam s, 4) (E ntered:
03/11/2015)
78 Amended NOTICE OF APPE A L to
US Court o f Appeals for the Fifth
C ircuit re: 75 O rder on M otion to
Alter Judgment, 66 Order on Motion
for Relief from Judgment by Duane
Edward Buck, filed. (Black, Katherine)
M odified on 4/9/2015 (bcam pos, 1).
(Entered: 04/08/2015)
* ❖ ❖ ❖
14a
DEFEN SE E X H IB IT 1 (DR. QUIJANO R E PO RT
REDACTED), M ARCH 8,1997
DEFENSE EX H IB IT NO. 1
FORENSIC PSYCHOLOGICAL EVALUATION
[EXH IBIT M AR K E R OMITTED]
FORENSIC PSYCHOLOGICAL SERVICES
psychological consultations in the practice of law
2040 North Loop 336 West, Suite 322
Conroe, Texas 77304
Walter Y. Quijano, Ph. D.
Clinical Psychologist VOICE: (409) 539-2226
a professional corporation FAX: (409) 539-6308
FORENSIC PSYCHOLOGICAL EVALUATION
N A M E : Duane E. Buck DATE: 8 March 1997
INTRODUCTION:
Duane, a 33-year-old widowed Black male with a high
school education and auto mechanics work background,
was referred for a forensic psychological evaluation by his
counsel, Danny Easterling, Esq. to assist in his defense.
The defendant was charged with capital murder (Cause
No. 699684 in the 208th Judicial District of Harris County,
Texas).
He was advised that this report was to be submitted
to his counsel and that he had the right not to participate
15a
in the examination and to terminate the examination at
any point he wanted to. He knew of and anticipated the
examination.
The information used in this report was gathered for
the avowed purpose of assisting in his own defense and
should not be used as the basis for determining guilt or
innocence.
PROCEDURES:
1. Clinical interview with defendant on 2/14/97
2. Millon Clinical Multiaxial Inventory-II (MCM I-II)
3. Review of defense law yer’s notes on w itnesses ’
statements.
FINDINGS:
B eh a v iora l O b se rv a tion s /M en ta l S tatus. The
defendant was examined at the Harris County Jail. He was
appropriately dressed and groomed. Gait was normal. No
unusual gestures were observed. Voice was appropriate for
the situation. The defendant was friendly and cooperative.
he was generally oriented
to time,
Speech was reactive and expressive and contained no
association, delusion, or hallucination disorders. Memory
was intact by interview and fair by self-report. No memory
problems were reported. Abstract thinking was normal
by interview in that he was able to conduct a meaningful
conversation. Attention and concentration were normal,
16a
The defendant’s mood and affect were normal.
Vegetative signs were reviewed. He sleeps in peace
because of the love of Jesus. His appetite is fair; he fasts
for his spiritual growth. Energy level is normal.
History. The defendant attended school through the
12th grade, and completed a trade school curriculum in
paint and body automobile repair. He also studied auto
mechanics in TDC J-ID. He has worked with his father in
auto mechanics and used parts “all my life.”
The defendant has had two common law marriages.
The first marriage from 1984 till 1989 produced a son,
now nine.
He and former wife continue to be friends.
His second marriage from 1991 till 1995 was with the now
deceased complainant. They had no children.
M CM I-II. The Personality code was: 8B 312 ** - * 8A
+ 7 4 6A ‘ // S ** - * //. The Syndrome code was: B D ** A
* / / - * * CC *. The test was valid, though he appeared to
have magnified the level of experienced illness. Suggested
Axis I impressions were:
296.33 M ajor d ep ress ion , re cu rre n t , severe
without psychotic features
305.00 Alcohol abuse
300.02 Generalized anxiety disorder.
Suggested Axis II impression was a configuration of:
301.22 Schizotypal personality disorder
17a
301.90 Personality disorder NOS (Self-defeating)
301.60 Dependent personality disorder.
CLIN ICAL IM PRESSION:
Axis I - 303.90 Alcohol dependence, in remission
by incarceration
304.20 Cocaine dependence, in full remission
by report
Axis II - 301.60 Dependent personality features
Axis III - None reported
Axis IV - P sychosocia l s tressors : incarceration ,
pending capital murder charge
Axis V - Global Assessment of Functioning: 60 GAF
before jail: 50
CLIN ICAL RECOM MENDATIONS:
1. Substance abuse treatment program:
A. If released to community:
1) R elapse prevention groups: 48 w eekly
sessions and then aftercare.
2) Supervised antagonist therapies: Antabuse
for alcohol and Naltroxene for cocaine.
3) Random urinalysis at least twice a month.
B. I f incarcerated , participate in an in-house
substance abuse program.
18a
2. Individual therapy to identify Dependent personality
disorder features that may have contributed to the conduct
charged and modify them.
FORENSIC RECOM M ENDATIONS:
1. Encourage the defendant to recall the remainder of
what he did upon his second return to the house, when
he was accused of fatally shooting his girlfriend and a
male companion, and shooting his sister. The claim of
sudden onset of amnesia just prior to the shootings, after
a detailed recollection of the rest of the events, is not
credible and not psychological supportable.
2. Future Dangerousness, Whether there is probability
that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society? The
following factors were considered in answer to the question
of future dangerousness: statistical, environmental, and
clinical judgment.
I. STATISTICAL FACTORS
1. Past crimes. Non-contributory. His past offenses
were non-violent drug offenses.
2. Age. Decreased probability. He is now 33; street
crimes are of lesser probability with this age group and
older.
3. Sex. Increased probability. Males are more violent
than females as a group.
19a
4. Race. Black: Increased probability. There is an
over-representation of Blacks among the violent offenders.
5. Socioeconom ics. Stable by self-report: Decreased
probability. Unstable by a w itness’ report: increased
probability.
6. E m ploym ent stability. Stable by self-report:
Decreased probability. Unstable by a witness’ report:
increased probability.
7. Substance abuse. Yes for alcohol at the time of
the conduct charged, and cocaine by history: Increased
probability.
II. EN VIRON M EN TAL FACTORS
1. F am ily environm ent. No exposure to fam ily
abuse/violence: Decreased probability.
2. Peer environment. Did not Associate with peers
that encouraged assaultive crimes: Decreased probability.
3. Job Environment. Past jobs were not conducive to
violence: Decreased probability.
4. A va ilab ility o f v ictim s. N arrow victim pool:
D ecreased probability. This appears to be “ fam ily”
type violence with a conjugal jealousy precipitated by
a perception of w ife ’s infidelity; the victims were not
random ly picked. Non-random victim izers are less
dangerous than random victimizers.
20a
5. Availability o f weapons. Yes: Increased probability.
6. Availability o f drugs. Yes: Increased probability.
III. CLIN ICAL JUDGM ENT FACTORS
1. M ental illness. There is no history of thinking
disorder that is associated with assaultiveness. This factor
is considered to reduce dangerousness.
2. A nti-socia l personality disorder. The defendant
does not m eet the criteria of anti-social personality
disorder, though he has antisocial features. This factor
argues for less probability for continuing violent threat
to society.
3. S p ecific ity o f the situation that induced the
conducts charged. This appears to be a fam ily type
violence, influenced by conjugal jealousy precipitated by
his perception of w ife’s infidelity. This factor argues for
less probability for continuing violent threat to society.
4. Deliberateness. Insufficient data from self-report.
He does not remember shooting the victims, though he
admitted to police he did the shootings at the time of his
arrest. He appeared to be deliberate from witnesses’
statements showing he returned a second time with a gun,
forced himself into the house, and ignored pleadings not
to shoot: Increased probability.
5. Rem orse. He does not rem em ber shooting the
victim , though he adm itted to the police he did the
shootings at the time of his arrest: Increased probability.
21a
6. Post-conducts charged behaviors.
a. Continuing crimes. None of the versions
showed continuing crimes after the conduct charged since
he was promptly arrested. This factor is not applicable as
he did not have the opportunity to commit more crimes.
b. Fun:
This factor argues for more probability for continuing
violent threat to society.
c. Surrender. He peacefully cooperated with
his arrest, though the police had a gun pointed at him at
the time of arrest. This factor argues for less probability
for continuing violent threat to society.
7. Personal factors that contributed to the conducts
charged. There w ere p erson a l fa c to rs rep orted ly
operating at the time of the conduct charged that may
have made the conduct charged specific and limited to this
offense circumstance, such that repetition of the offense
in the future is unlikely. The apparent motivation was
conjugal jealousy precipitated by his perception of his
wife’s infidelity. This factor argues for less probability for
continuing violent threat to society.
9. Environm ental factors that contributed to the
conducts charged. There were environm ental factors
reportedly operating at the time of the conducts charged
that may have made the conducts specific and limited
to this offense circumstance, such that repetition of the
22a
offense in the future is unlikely, i.e., The presence of
individuals that he perceived as participants in the w ife’s
infidelity. He did not hurt the children. This factor argues
for less probability for continuing violent threat to society.
10. E ffect o f prolonged incarceration. The defendant
is of course less likely to be dangerous while incarcerated.
The effect o f prolonged incarceration (e.g., aging) in
conjunction with physical restraints (e.g., security level
and housing), rehabilitative efforts (e.g., education,
substance abuse, punishm ent, psychiatric services)
needs to be estimated. The prison system has enough
resources to subdue what level o f dangerousness he
may bring with him: classification/security level system,
housing restraints (administrative segregation and super
segregation), supervision, crisis intervention (major use of
force techniques), and psychiatric medication intervention.
His behavior record in jail and in previous prison stays
may be used as a sign that he may do well in prison. He
reported no assaults while in incarceration; he worked
and attended school. Furthermore, lifers in the prison
system tend to do well and better than short termers. The
conditions, e.g., more space, less in-cell time, more out-
of-cell activities, in prison is less conducive to acting out.
Overall, it appears that, without intervention, the
defendant is more likely than not to constitute a continuing
violent threat to society. However, if given life instead of
death, the prison system has enough resources to safely
incarcerate him. Additionally, the factors that can be
manipulated and presently contribute to dangerousness
can be controlled in prison.
23a
Employment and financial instability is no longer a factor
in prison. It is more difficult to gain access to drugs and
alcohol and weapons in prison. His victim pool, already
narrow in the instant offense because of its family violence
features, becomes narrower in prison; furthermore, the
prospective victims in prison are less naive in that they
are aware of their environment and take the necessary
precautions to minimize victimization. The dependent
husband/wife relationship, that contributed to the conduct
charged, is gone.
Thank you for consulting me on this difficult but
interesting case. Please feel free to contact me if you have
any questions.
/s/ Walter Y. Quiiano__________
Walter Y. Quijano, Ph.D., P.C.
Clinical Psychologist.
24a
DEFENSE E X H IB IT 1A
(DR. QUIJANO R E PO R T UNREDACTED),
M AR CH 8,1997
D E FE N D A N T’S E X H IB IT NO. 1(A)
FORENSIC PSYCHOLOGICAL EXAM IN ATIO N
FORENSIC PSYCHOLOGICAL SERVICES
psychological consultations in the practice of law
2040 North Loop 336 West, Suite 322
Conroe, Texas 77304
W alter Y. Q uijano, Ph. D.
Clinical Psychologist VOICE: (409) 539-2226
a professional corporation FAX: (409) 539-6308
FORENSIC PSYCHOLOGICAL EVALUATION
N A M E : Duane E. Buck D ATE: 8 March 1997
INTRODUCTION:
Duane, a 33-year-old widowed Black male with a high
school education and auto mechanics work background,
was referred for a forensic psychological evaluation by his
counsel, Danny Easterling, Esq. to assist in his defense.
The defendant was charged with capital murder (Cause
No. 699684 in the 208th Judicial District of Harris County,
Texas). The defense lawyer wrote in his 1/13/97 letter to
this psychologist that the defendant is “alleged to have
shot and killed his ex-girlfriend and a male companion
as well as shooting his half sister in the same criminal
transaction ...”
25a
He was advised that this report was to be submitted
to his counsel and that he had the right not to participate
in the examination and to terminate the examination at
any point he wanted to. He knew of and anticipated the
examination.
The information used in this report was gathered for
the avowed purpose of assisting in his own defense and
should not be used as the basis for determining guilt or
innocence.
PROCEDU RES:
1. Clinical interview with defendant on 2/14/97
2. Millon Clinical Multiaxial Inventory-II (MCM I-II)
3. R eview of defense la w yer ’s notes on w itn esses ’
statements.
FIN DIN GS:
B e h a v io ra l O b serv a tio n s /M e n ta l Status. The
defendant was examined at the Harris County Jail. He was
appropriately dressed and groomed. Gait was normal. No
unusual gestures were observed. Voice was appropriate for
the situation. The defendant was friendly and cooperative.
The defendant was oriented to person, place, and
situation. He initially said he did not know the date
because he has been in jail since July 1995, but when
pressed he was generally oriented to time, thinking it was
Friday 2/13/97 instead of 2/14/97. Speech was reactive
and expressive and contained no association, delusion, or
hallucination disorders. Memory was intact by interview
26a
and fa ir by self-report. No m em ory problem s were
reported. Abstract thinking was normal by interview in
that he was able to conduct a meaningful conversation.
Attention and concentration were normal by interview and
fair by self-report. Asked if he has noticed anything wrong
with his thinking, he stated that he used to have suicide
thoughts, and that he thinks about the drunk driver that
killed his mom when he was 12, and about his favorite
dog that was run over when he was 10 or 11. Insight was
mixed; good in that he realized his legal predicament, and
poor in his claim of amnesia of the shootings he is accused
of. Furthermore, he enumerated examples of depressive
episodes including his parents’ divorce, his mom’s and
dog’s deaths, and his past drinking and drugging, but did
not include the death of Debra Gardner, who he considered
to be his common-law wife. Judgment was poor. The
defendant appeared to be of questionable reliability as
an informant.
The defendant’s mood and affect were normal. Asked
about his mood, he stated he “wanted my own and be in
peace, but the devil does not want you to be in peace”.
A sked again about his m ood, he said he was happy
because “Jesus is in my life”. Asked about any depressive
episodes, he stated that he was depressed over his parents’
divorce, his dog’s death, and his mom’s death. He also was
depressed when he was drinking and drugging in the
80’s because he was not satisfied with his frame of mind.
He reported that he discontinued substance abuse, but
engaged in gambling and in the accumulation of material
things, which was also depressing to him. He described
him self as good tempered and self-controlled when he
27a
is not substance abusing. He reported no dysfunctions
related to his temper.
Vegetative signs were reviewed. He sleeps in peace
because of the love of Jesus. His appetite is fair; he fasts
for his spiritual growth. Energy level is normal. Asked
about his sex drive, he stated he did not have any as “part
of self-control”. Active suicide ideation was denied.
History. The defendant attended school through the
12th grade, and completed a trade school curriculum in
paint and body automobile repair. He also studied auto
mechanics in TDCJ-ID. He has worked with his father
in auto mechanics and used parts “all my life’. He stated
that he “worked all the time”. He described his father as
fair and supportive, and stated that he believed anyone
who accepted Christ is now his real family.
The defendant has had two common law marriages.
The first marriage from 1984 till 1989 produced a son,
now nine. He described the m arriage as a beautiful
relationship, but they separated because substance abuse
led to physical confrontation, and it was time to separate.
He and former wife continue to be friends. His second
marriage from 1991 till 1995 was with the now deceased
complainant. They had no children.
The defendant’s medical history was noncontributory.
He has no h istory o f psychological treatm ent. The
defendant stated he was raised by an alcoholic grandfather,
and began drinking at age seven or eight. His last drinking
episode was on the day of the instant conduct charged
28a
when he was drunk, having drank some liquor with friends
and a six pack of beer by himself. He considered his alcohol
use abusive through the 1980’s. He abstained from alcohol
between 1988 and 1989, but resumed drinking again in the
early 1990’s, quitting in 1994. He remained abstinent until
one or two weeks before the instant conduct charged. He
also admitted to powder and crack cocaine abuse in 1988
and between 1992 and 1993.
Criminal history was reviewed. In 1989 the defendant
was convicted of Possession of cocaine, and was sentenced
to three years in TDCJ-ID, though he served in jail. In
1990 he was convicted of Delivery of cocaine, and served
one year of a ten year sentence in TDCJ-ID. While in
prison, he did well with no assaults and no trouble; he
worked and attended auto mechanics school. He served
another year of jail time for a parole violation, missing
three sessions of substance abuse treatment. He was on
parole at the time of his arrest.
M CM I-II. The Personality code was: 8B 3 1 2 ** - *
8A +7 4 6A ‘ / / S ** - * //. The Syndrome code was: B D **
A * // - ** CC *. The test was valid, though he appeared to
have magnified the level of experienced illness. Suggested
Axis I impressions were:
296.33 Major depression, recurrent, severe without
psychotic features
305.00 Alcohol abuse
300.02 Generalized anxiety disorder.
29a
Suggested Axis II impression was a configuration of:
301.22 Schizotypal personality disorder
301.90 Personality disorder NOS (Self-defeating)
301.60 Dependent personality disorder.
Conduct Charged. The defendant said he is charged
with Capital murder, shooting and killing his common-law
wife and a male companion, and shooting but not killing
his half-sister.
The defendant described the conduct charged as
follows:
The defendant was w orking in his father’s
business. His wife (Debra) stopped him, along
with his uncle John, who was driving his truck.
She had come to deliver a change of clothes for
the defendant. He bought her gasoline at her
request. She told him she loved him and kissed
him. The defendant told her he had a bad dream
in which something bad happened to her. She
said, “ I ’m all right,” and left, supposedly to
return to work at her father’s business and later
to pick up his sister, Phyllis.
He went back to the shop and drank beer and
liquor until 10:00 PM. He and his uncle went
to shoot pool. They left at 3:00 AM. His uncle
dropped him off at his father’s house, and he
drove home to his wife. He knocked on the front
door, but nobody answered. He peeped over the
30a
fence and saw a man on the living room couch.
He knocked harder, and when no one answered,
he forced the door open and went in. He met
his sister, Phyllis, and nobody else, and so he
went to the bedroom and saw two men in the
bedroom. He and his wife began arguing, and
they slapped each other. One of the men held
him back and they exchanged words.
The defendant wanted to leave, and packed
clothes for himself and his son. The exchange of
words with the man continued. The defendant
got his tools from the trunk of the w ife’s car
and put them in his truck. He reached out to
his wife standing by the door to give her the
keys to the car, but she avoided him. She got a
knife, and the defendant told her to stab him
in the back. The man took the knife from her.
The defendant took six to seven beers from the
refrigerator and drove off. He ran out of gas by
the George R. Brown Convention Center, and
had to walk to a service station. While there,
he called the house and asked his sister, “W hy
are you doing this to me?”, and asked more
questions. He drove to his dad’s house, and
then returned to his house. He stated that he
remembered nothing else from this point on
until he was in jail.
In response to questions, the defendant stated that
when he first returned to the house, he felt that everything
was falling apart. He felt deceived, and as if someone had
31a
stabbed his heart. He was very confused and hurt, and
felt like he could just die.
When he left the house after arguments with wife
and one of the men, he just wanted to get away because
he was very confused; he had suicide ideation. He stated
that when he ran out of gas, “dark came over me” ; he felt
like he was headed toward a cliff without brakes; he was
scared and hurt, and he wanted to jump off the freeway.
He was in tears.
When he called his sister, he felt “different” from
previous w ife ’s infidelities, and just needed to talk to
somebody. The conversation did not go well, and he felt
he got no answers.
Upon his second return to his house, when the
shootings allegedly happened, he stated that he does not
remember how he felt. He stated that he and his wife were
not separated; he was not living at his dad’s house.
Notes of the defense lawyer of witnesses’ statements
were reviewed. Deputy P. E. McGinty reported that when
he arrived at the crime scene on 7/30/95, Harold Ebnezer
pointed to the defendant as the shooter of Debra Gardner,
Kenneth Butler, and Phyllis Taylor, killing Debra and
Kenneth and wounding Phyllis. The defendant admitted
to Deputy McGinty that he shot Debra Gardner, and
was arrested. Harold Ebnezer told the Deputy that the
defendant came at 3:00 or 4:00 AM that morning, and the
police was called. The defendant returned at about 7:24
AM with a shot gun and kicked the door in. The defendant
32a
shot at Harold Ebnezer but missed. Harold Ebnezer
and Debra Gardner ran out the sliding door, and Harold
Ebnezer heard more gun shots inside. Harold Ebnezer
jumped the fence and got on the road. Debra Gardner
was at this time on the road too and the defendant came
out and shot her. The defendant went to a white Jaguar.
At 9:15 AM Deputy J. Payne noted that the defendant
wanted to use the restroom and said “ I fucked up! I shot
my sister!” A 22 rifle was found in the trunk of the Jaguar.
K anetta J. Gardner, a niece of D ebra Gardner,
reported that the defendant used to date her aunt Debra
and was angry at her upon his forced entry for having
another man in the house. The defendant hit Debra in the
face with his fist in the bedroom. Later that morning, upon
hearing gunshots, Kanetta came out of her room and saw
Kenny laying on the hallway floor and in the living room
saw the defendant laid a gun on the floor while holding
another gun. She followed the defendant outside the house
and saw him shoot Debra in the street. He retrieved the
gun inside the house and put both guns in the trunk of
the car.
Shennel L. Gardner, a child of D ebra Gardner,
reported that her mother Debra had been seeing the
defendant for five years. A fter getting out of jail on 5/95,
he stayed with them but Debra got sick o f him laying
around and not wanting to work. He left and did not come
around for two weeks, and Debra started seeing Kenneth
Butler. Shennel said the defendant hit Debra in the eye
and poured beer on her and left, which Debra reported to
the police. Early the next morning after being awakened
33a
by a lot o f commotion, Shennel saw Kenneth bleeding
on the hall floor and Phyllis in the living room holding
her chest and calling the police. Shennel ran outside and
saw Debra unsuccessfully trying to stop a car, and the
defendant chased Debra and shot her. During the bond
hearing, Shennel testified that she was beating on the
defendant’s back, telling him not to shoot her mother, but
he shot her anyway.
Harold W. Ebnezer, a brother of Kenneth Butler,
who knew Debra for about six or seven years, reported
that Kenneth started dating Debra two days prior. He
reported that the defendant forced himself into the house
earlier in the evening after Debra refused to answer the
door, and started to beat on Debra. Harold and Kenneth
put themselves between Debra and the defendant, who
picked a fight with Kenneth by inviting him to take care
of it outside; he added that he wanted to go back to the
penitentiary. Arguments continued for about 30 to 45
minutes, and the defendant called Debra a whore, bitch,
and other names. Upon the defendant’s second forced
entry, he had a shotgun and shot at Harold but missed.
Harold ran and told Kenneth in the bedroom that the
defendant had a gun, and Kenneth got out of bed and went
to the hallway and the shooting started. Harold and Debra
went out the bedroom patio door and jumped the fence, and
Harold heard three or four shots. Harold started knocking
on doors. Harold saw the defendant with his gun follow
Debra into the street. Debra went to the car (a blue Chevy
hatchback) parked in front of the defendant’s car, but it
pulled off and left. The defendant said “ Look at them run
now.” Harold ran around the corner till the police arrived
34a
and told the defendant to get down on the ground. Harold
told the police the defendant did the shooting, and the
police arrested the defendant. Harold saw the defendant
laugh like this was funny to him.
C LIN ICA L IM PRESSION :
Axis I - 303.90 Alcohol dependence, in remission by
incarceration
304.20 C o ca in e d e p e n d e n ce , in fu ll
remission by report
Axis II - 301.60 Dependent personality features
Axis III-N one reported
Axis IV -P sych osocia l stressors : in carceration ,
pending capital murder charge
Axis V - Global Assessment of Functioning: 60 GAF
before jail: 50
CLIN ICA L RECOM M ENDATIONS:
1. Substance abuse treatment program:
A. I f released to community:
1) R elapse prevention grou ps: 48 w eekly
sessions and then aftercare.
2) Supervised antagonist therapies: Antabuse
for alcohol and Naltroxene for cocaine.
3) Random urinalysis at least twice a month.
35a
B. I f in carcerated , participate in an in-house
substance abuse program.
2. Individual therapy to identify Dependent personality
disorder features that may have contributed to the
conduct charged and modify them.
FORENSIC RECOM M ENDATIONS:
1. Encourage the defendant to recall the remainder of
what he did upon his second return to the house, when
he was accused of fatally shooting his girlfriend and a
male companion, and shooting his sister. The claim of
sudden onset of amnesia just prior to the shootings, after
a detailed recollection of the rest of the events, is not
credible and not psychological supportable.
2. Future Dangerousness, Whether there is probability
that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society? The
following factors were considered in answer to the question
of future dangerousness: statistical, environmental, and
clinical judgment.
I. STATISTICAL FACTORS
1. Past crimes. Non-contributory. His past offenses
were non-violent drug offenses.
2. Age. Decreased probability. He is now 33; street
crimes are of lesser probability with this age group and
older.
36a
3. Sex. Increased probability. Males are more violent
than females as a group.
4. R ace. Black: Increased probability. There is an
over-representation of Blacks among the violent offenders.
5. Socioeconom ics. Stable by self-report: Decreased
probability. Unstable by a w itness’ report: increased
probability.
6. E m ploym ent stability . Stable by self-report:
Decreased probability. Unstable by a witness’ report:
increased probability.
7. Substance abuse. Yes for alcohol at the time of
the conduct charged, and cocaine by history: Increased
probability.
II. EN V IR O N M EN TAL FACTORS
1. F am ily env iron m en t. No exposure to fam ily
abuse/violence: Decreased probability.
2. Peer environment. Did not Associate with peers
that encouraged assaultive crimes: Decreased probability.
3. Job Environm ent. Past jobs were not conducive to
violence: Decreased probability.
4. A va ilab ility o f v ictim s. N arrow victim pool:
D ecreased probability. This appears to be “ fam ily”
type violence with a conjugal jealousy precipitated by
37a
a perception of w ife ’s infidelity; the victims were not
random ly picked. N on-random victim izers are less
dangerous than random victimizers.
5. Availability o f weapons. Yes: Increased probability.
6. Availability o f drugs. Yes: Increased probability.
III. CLIN ICAL JUDGM ENT FACTORS
1. M ental Illness. There is no history of thinking
disorder that is associated with assaultiveness. This factor
is considered to reduce dangerousness.
2. Anti-socia l personality disorder. The defendant
does not m eet the criteria o f anti-social personality
disorder, though he has antisocial features. This factor
argues for less probability for continuing violent threat
to society.
3. S p ecific ity o f the situation that induced the
conducts charged. This appears to be a fam ily type
violence, influenced by conjugal jealousy precipitated by
his perception of wife’s infidelity. This factor argues for
less probability for continuing violent threat to society.
4. Deliberateness. Insufficient data from self-report.
He does not remember shooting the victims, though he
admitted to police he did the shootings at the time of his
arrest. He appeared to be deliberate from witnesses’
statements showing he returned a second time with a gun,
forced himself into the house, and ignored pleadings not
to shoot: Increased probability.
38a
5. R em orse. He does not rem em ber shooting the
victim , though he adm itted to the police he did the
shootings at the time of his arrest: Increased probability.
6. Post-conducts charged behaviors.
a. Continuing crimes. None o f the versions
showed continuing crimes after the conduct charged since
he was promptly arrested. This factor is not applicable as
he did not have the opportunity to commit more crimes.
b. Fun: From one of the witnesses’ statements,
he supposedly gloated as people scrambled for safety, i.e.,
“ Look at them run now”, and he appeared to laugh like
the whole thing was funny. This factor argues for more
probability for continuing violent threat to society.
c. Surrender. He peacefully cooperated with
his arrest, though the police had a gun pointed at him at
the time of arrest. This factor argues for less probability
for continuing violent threat to society.
7. P e rso n a l fa c to r s th at c o n tr ib u te d to the
c o n d u c ts ch arged . T h ere w ere p e rso n a l fa c to r s
reportedly operating at the time of the conduct charged
that may have made the conduct charged specific and
limited to this offense circumstance, such that repetition
of the offense in the future is unlikely. The apparent
motivation was conjugal jealousy precipitated by his
perception of his w ife’s infidelity. This factor argues for
less probability for continuing violent threat to society.
39a
9. Environm ental factors that contributed to the
conducts charged. There were environm ental factors
reportedly operating at the time of the conducts charged
that may have made the conducts specific and limited
to this offense circumstance, such that repetition of the
offense in the future is unlikely, i.e., The presence of
individuals that he perceived as participants in the w ife’s
infidelity. He did not hurt the children. This factor argues
for less probability for continuing violent threat to society.
10. E f fe c t o f p r o lo n g e d in c a r c e r a t io n . The
defendant is of course less likely to be dangerous while
incarcerated. The effect o f prolonged incarceration
(e.g., aging) in conjunction with physical restraints (e.g.,
security level and housing), rehabilitative efforts (e.g.,
education, substance abuse, punishment, psychiatric
services) needs to be estimated. The prison system has
enough resources to subdue what level of dangerousness
he may bring with him: classificafion /security level
system, housing restraints (administrative segregation
and super segregation), supervision, crisis intervention
(major use of force techniques), and psychiatric medication
intervention.
His behavior record in jail and in previous prison stays
may be used as a sign that he may do well in prison. He
reported no assaults while in incarceration; he worked
and attended school. Furthermore, lifers in the prison
system tend to do well and better than short termers. The
conditions, e.g., more space, less in-cell time, more out-
of-cell activities, in prison is less conducive to acting out.
40a
Overall, it appears that, without intervention, the
defendant is more likely than not to constitute a continuing
violent threat to society. However, if given life instead of
death, the prison system has enough resources to safely
incarcerate him. Additionally, the factors that can be
manipulated and presently contribute to dangerousness
can be controlled in prison. He can continue to age in
prison; with minimum of 40 years time served, he will
be in his 70’s at the time o f eligibility for discharge.
Employment and financial instability is no longer a factor
in prison. It is more difficult to gain access to drugs and
alcohol and weapons in prison. His victim pool, already
narrow in the instant offense because of its family violence
features, becomes narrower in prison; furthermore, the
prospective victims in prison are less naive in that they
are aware of their environment and take the necessary
precautions to minimize victimization. The dependent
husband/wife relationship, that contributed to the conduct
charged, is gone.
Thank you for consulting me on this difficult but
interesting case. Please feel free to contact me if you have
any questions.
/s/W alter Y. Quiiano_________
Walter Y. Quijano, Ph.D., P.C.
Clinical Psychologist.
41a
TRAN SCRIPT OF PROCEEDIN GS, M AY 1,1997
(OFFICER PAUL M CG IN TY)
CAUSE NO. 72810
IN THE COURT OF CR IM IN AL APPEALS
AT AUSTIN, TE X A S
DUANE EDW ARD BUCK
Appellant,
VS.
THE STATE OF TE XAS,
Appellee.
T R IA L CAUSE NO. 699684
APPEAL FROM THE 208TH DISTRICT COURT
OF H ARRIS COUNTY, TE XAS
JUDGE DENISE COLLINS, PRESIDING
REPORTER’S RECORD
TR IA L
May 1,1997
VOLUME 25 OF 30 VOLUMES
* * *
42a
rimPIRECT EXAMINATION
BY MS. HUFFMAN:
Q Officer, please introduce yourself to the jury.
A My name is Paul E. McGinty.
Q Deputy McGinty, how are you employed?
A The Harris County Sheriffs Department.
ijC
Q On July 30th of 1995, did you respond to a call to
7327 Puerta Vallarta?
A Yes, ma’am, I did.
^
[18]Q When you arrived at 7327 Puerta Vallarta, what
did you observe?
A When I pulled down Puerta Vallarta, I noticed
a black male on the right-hand side of the road.
I went past him and I observed a black female
lying in the middle of the road.
Q You say lying in the middle of the road?
43a
A She was in the middle of the road, yes. I believe
her head was northbound and her feet southbound
and she was lying in a pool of blood.
Q That was in front of the Puerta Vallarta address
that you were responding to?
A Yes, ma’am, it was.
Q How far away was the black male that you
said that you had observed w alking in this
neighborhood?
A Within sixty yards of where the lady was in the
street.
Q In w h ich d ir e c t io n w as th a t in d iv id u a l
[19]walking?
A He was walking away from where she was. I
remember seeing him on the side of the road
north of the location of where the lady was.
Q What did you do when you first drove up to the
scene?
A I got out of my patrol car and went up to the lady
in the street who later was identified and I found
out to be Debra Gardner. I told our dispatcher
that there had been a female shot in the street
44a
and to send Life Flight and the paramedics en
route also.
Q W hat did her condition appear to be when
[20]you observed her at that time?
A She appeared to have been shot in the chest. Her
shirt had blood on it. There was blood beneath
the body where it had come out of the body.
* >\< *
Q Was she alive?
A At that time, yes, ma’am.
Q Was she talking?
A No, ma’am.
Q Could you observe anything about her physical
condition? Was she trying to breathe?
A She was trying to breathe. She was still moving
around but not saying anything that I could
understand other than showing that she was in
a good deal of pain.
Q A fter you had determ ined her condition and
called for assistance, what did you do next?
[21]A I heard someone yelling towards me.
45a
Q In which direction was that yelling corning from?
A It was coming from behind me because I was
facing south so it was coming from the north.
Q What did you do when you heard this yelling?
A I turned around.
Q What did you observe?
A I observed two black males running towards me.
Q Did you recognize one o f the black males as
someone that you had seen previously?
A The closest black male to me was the black male
on the side of the road which I first saw as I was
corning down Puerta Vallarta.
Q The second black male, did you recognize him?
A At that time, no. That was the first time that I
had seen him.
Q How far away was the black male that you didn’t
recognize? How far away was he from this other
black male?
[22] A Probably ten to twenty yards further north away
from where the first black male was.
46a
Q So they were ten to twenty yards apart?
A Yes, ma’am.
Q W hat did you do?
A I turned around because the male further from
me was yelling: “ He shot her. He shot her.”
Q When you heard this man saying, “ He shot her,
he shot her,” what did you do?
A I pulled out my service revolver and I took the
closest black male to me into custody.
Q How did you do that?
A They w ere running toward me. I pulled my
service revolver out and told him to lay down on
the ground and he did. I took him into custody.
Q When he laid down on the ground, what did you
do?
A I went up to him and handcuffed him, patted him
down, and put him in the back of my patrol car.
Q Did you find any weapons on him at that [23]time?
A No, ma’am.
Q W here was your patrol car?
47a
A It would have been one house north of 7327 Puerta
Vallarta.
Q You placed him in the back seat of your patrol
car?
A Yes, ma’am.
Q Then what happened?
A And then I went back to where Ms. Gardner was
lying in the street. About that time a lady comes
out of the house and is standing in the driveway.
It turns out that her name is Phyllis Taylor, and
she has a gunshot wound to her chest.
Q But she was still walking?
A Yes, ma’am.
Q Did she say anything to you?
A She was screaming. She was hysterical and it was
very hard to understand what she was saying. I
go to her but it’s very difficult to understand —
MR. EASTERLING: I ’d object to hearsay.
[24]THE COURT: Overruled.
A I had a hard time understanding her. I get enough
information out of her to know there’s probably
a DOA in the house.
48a
* ̂ *
[25]Q What did you find inside the house?
A Inside the house we went through the family living
room, the hallway that goes to the bedrooms, and
in that hall was a black male that was laying face
down.
Q What was his condition?
A He had a gunshot wound to the chest. His shirt
was bloody and there was blood [26]on the carpet.
The EM T pronounced him DOA.
Q Did you find any other witnesses in the home?
A Yes, ma’am. Whenever we went into the house,
there were several children that were coming out
of the house. It was a very chaotic scene because
the kids were screaming.
Q What condition were the children in?
A Well, the children’s physical well-being was fine
but they were screaming because [27]they were
scared. They were crying and wondering what
was going on.
Q What were the ages of the children, if you recall?
49a
A I believe their ages were from about two to
twelve.
Q Were some o f these children determined to be
witnesses when this had occurred in the house?
A Yes, ma’am.
Q Because they were witnesses, what did you do?
A I got all the children together, and as other units
arrived they were assigned different spots. Life
Flight was en route. Life Flight landed and left.
There were officers given responsibilities to
secure the scene inside the house and outside the
house, some had duties to keep witnesses away
from each other and to keep people that were
coming by to see what had happened, to keep
them away from the scene. I took the kids and
we went to the house next door.
[28]Q Eventually did the Homicide Detectives show up
to talk to witnesses and gather evidence there at
the scene?
A Yes, ma’am, they did.
^
50a
TR A N SC R IPT OF PROCEEDIN GS, M AY 1,1997
(H A R O LD E B N E ZE R )
CAUSE NO. 72810
IN TH E COURT OF CR IM IN AL A PPE A LS
AT AUSTIN, TE X A S
DUANE EDW ARD BUCK,
Appellant,
VS.
TH E STATE OF TE X AS,
Appellee.
T R IA L CAUSE NO. 699684
A P P E A L FROM TH E 208TH D ISTRICT COURT
OF H ARRIS COUNTY, TE X A S
JUDGE DENISE COLLINS, PRESIDIN G
REPO RTER’S RECORD
TR IA L
May 1, 1997
VOLUME 25 OF 30 VOLUM ES
* * *
51a
[90JDIRECT EXAM INATION
BY MS. H U FFM AN :
Q Sir, please state your name for the ladies and
gentlemen of the jury.
A Harold Ebnezer.
% % %
Q Did you know the deceased in this case, Kenneth
Butler?
A It’s my brother.
[95]Q Do you remember approximately what time [96]
that you left the game room that night?
A We left the room at closing.
Q Who all went to Debra’s house from the game
room?
A Just me and my brother Kenneth and Phyllis and
Debra.
Q Was there anyone else at Debra’s house when you
got there?
52a
A Yes, the kids. There was Phyllis’ little baby and
Debra’s kids, Debra’s three.
* ̂ *
[97]Q Do you remember what room in the house you
were in?
A We was in the living room.
Q At some point as you sat in the living room that
night, did something unusual occur around near
the door?
A Yeah, we was sitting there and we was laughing
and joking and, you know, there came a big old
boom, boom, on the door.
[98]Q What did Debra do when she heard the bang at
the door?
A She picked up the telephone and dialed 911.
Q A fter you heard the banging and you heard
Debra pick up the phone, what is the next thing
to happen?
53a
A Debra asked us to go to the back of the house, just
to go to the back of the house. She didn’t want
any type of problems.
[99]Q Did you do that?
A Yes, I did.
Q Did someone else go with you?
A No, Kenneth went in one room and I went in
another room.
Q Were the kids back in that part of the house?
A Kenneth was in the back room where the kids
was.
Q W h at’s the next th ing that you rem em ber
happening?
A The next thing I remember is he kicked the door
in and he comes on in. He walked all the way into
Debra’s house. Okay, I ’m standing in Debra’s
bedroom.
Q Let me stop you for a minute. When you say he, is
he the person in the courtroom today who came
into Debra’s house after he kicked the door in?
A Yes, ma’am, he’s sitting right there.
54a
Q W hat’s he wearing?
A H e’s wearing a burgundy shirt or maroon or
whatever you want to call it.
MS. H U FFM AN : At this time may the record reflect
that the [100]witness has identified the defendant,
Duane Edward Buck?
TH E COURT: The record will so reflect.
BY MS. H U FFM AN :
Q When you say he walked in, where were you
standing at that time?
A Debra’s bedroom.
Q Inside the door or where were you standing?
A You see, from the hallway when you come in
Debra’s bedroom like this, I ’m like standing right
here, so it’s a part right here that you have to
walk past. When he walked past this way, when
he walked all the way in the room and saw me
standing right there, Phyllis told him that I was
her friend.
Q W here was Phyllis?
A Phyllis and Debra came in the room right behind
him.
55a
Q They were following him?
A Yes.
Q What were they saying?
[101]AWell, he was the one that was doing all the
hollering and goings on here, you know. I didn’t
really know what was going on.
Q Was he saying something?
A He was hollering. He was cursing her out and
stuff like that.
Q Did he appear to be - what was his demeanor?
Was he angry or was he calm?
A No, he was upset.
5jC S*C *
[102]Q Mr. Ebnezer, let’s go back to where you were in
the bedroom area and Mr. Buck has come into
that back area.
A He started fighting on Debra.
56a
Q What do you mean by that?
A Hitting up side the head, slapping her up side the
head.
[103]Q Do you know how many times he hit her? Do you
remember?
A He hit her two or three times before I got between
them.
Q How did you get between them?
A All I did was walk in between them and kept them
an arm’s distance apart, him an arm’s distance
apart, because she wasn’t trying to get at him.
He was steadily trying to get at her.
Q Was that all that happened in the back bedroom
area?
A Yes, ma’am, it was.
Q Can you estimate about how long that went on?
Was it just for a few minutes, a few seconds, or
how long?
A It went on maybe for five or ten minutes.
Q What happened after that incident happened back
there in the bedroom area?
57a
A We finally made it back np into the front of the
house.
Q Then what happened?
A Mr. Buck there, he kept on trying to challenge
me and my brother to a fight.
[104]Q Did you ever assault or strike Mr. Buck [105]in
any way?
A No, ma’am. No, ma’am.
Q A fter you said he wTas challenging you to a fight,
what did you recall happening next?
A I think to the best of my ability I believe I went
and sat on the couch. I kept asking Phyllis to tell
him to shut up because Phyllis is telling me this is
her brother. So Pm telling Phyllis that she needs
to tell her brother to shut up because he stayed
talking this trash, you know, like he Mr. Big.
Q Where were you while this was going on?
A In the living room.
Q Did Debra ever give the defendant anything?
A He said he came there for his clothes. All he said
was that he came there for his clothes.
58a
Q What happened then?
A She gave him his clothes and he stayed there. He
stayed there. He said he was [106]going to wait
until the police got there so he could tell them
that he kicked the door in.
Q Did he at some point leave?
A He left.
Q Did you talk with him before he left?
A Yeah, we talked. We told him like it was. We
didn’t want to be in their business, you know. My
brother even tried to tell him he understood how
he might feel, you know, if he was to come to his
house and another man, you know, is there. You
know what I ’m saying? You got to understand
what I ’m saying.
Q Did you r broth er explain to him that you
[107]were all friends with Debra?
A We tried to but he didn’t want to listen.
59a
jfc
Q Did he seem calmer to you when he left?
A Calmer than when he got there.
Q A fter he left, what did you do?
A A fter he left, you know, we sat there for awhile
and we were talking about the situation, you
know, and I fell asleep on the couch. Phyllis fell
asleep on the couch. Debra fell asleep in the living
room but it’s really like the dining room. She fell
asleep on the couch over there.
Q Where was Kenneth when you fell asleep?
A W hen I fell asleep, he had went to D ebra’s
bedroom and laid across her bed [108]and went
to sleep.
Q You all had visited for awhile after Mr. Buck left?
A Yes, ma’am.
Q Do you recall about what time you fell asleep?
A I guess it might have been maybe 4:30 or 5:00, or
maybe a little later. I don’t remember.
Q At some point as you were sleeping, did something
wake you up?
60a
A Yes, ma’am.
Q What did you hear?
A A boom at the door again.
Q What kind of boom?
A Like somebody beating out the door again.
Q What did you do when you heard the noise at the
door?
A I jumped up because after what went on before,
I knew it was him. I knew he was coming back
so I jumped up. I was going to open the door and
jump his behind. To be honest with you, he was
going to get it.
[109]Q Did you have any weapons?
A No, ma’am.
Q When you say he was going to get it, what did you
mean?
A I mean I was going to put these hands on him.
Q A fter you heard the boom at the door, the bang
at the door, what happened next?
61a
A A fter I heard the banging, you know, I went to
the door and I tried to open the door but I couldn’t
get it open, you know, because after the first time
he kicked it in, he messed up the lock. So I told
him — he say, “Open the door, Man,” and I said,
“Well, Man, I would open the door but you messed
up the lock when you kicked the door in the first
time.”
% %
[110]Q What did he do?
A. He kicked the door in. He kicked the door once,
you know, and I was standing right in front of
the door. The first time that he kicked it, if it had
flew open, it would have hit me right in the face
because I was standing that close to the door. I
took a step or two back. He kicked it open again,
and when it opened, it flew open, he came in with
a shotgun in his hand and raised it up and fired
it at me.
Q At the time that he came in that time, did you
expect that he was going to have a weapon?
A No, ma’am, I didn’t.
Q Did you even dream that he had a weapon?
62a
A No, ma’am, I didn’t think he was coming back
because he was in that calm a state when he left.
He had nothing to come [lll]b a ck for.
Q At what point did he fire the shotgun?
A As soon as he stepped in, he fired it. He fired it
as soon as he stepped in.
Q W here were you standing?
A Directly, directly in front of him.
Q What did you say when you saw him point the
shotgun at you?
A When he kicked the door in I asked him, “Man,
what is this?” He says, “This,” and he raised it
and fired it. When he do that, I do like this and
the shell flies right past me and hits the wall. I
turn around and see the hole in the wall so I take
o ff running through the back because Debra’s
got these patio doors, glass patio doors in her
bedroom.
5jC
[113]Q You said that after he shot you looked back and
you saw a hole in the wall; is that correct?
63a
A Yes.
Q And you took off running?
A Yes, ma’am.
Q Who was in the living room at that time?
A Phyllis was in the living room. Debra had — she
had hooked them. She was running. She was
trying to run also.
Q Which way did you run?
A I ran through the hallway back into Debra’s
bedroom and went out the glass patio doors. Right
here there was a fence. Debra was trying to get
over the fence so she was in my way so I ran on
around the house, but as I ’m running around the
house I hear two or three [114]more shots going
off inside the house.
Q When you’re running down the hall and out of
the house, did you see your brother in Debra’s
bedroom?
A Yes, ma’am, I ran past him.
Q What was he doing?
64a
A Standing there.
Q What?
A He was in Debra’s bedroom. He was standing
right at the patio doors.
Q Did you say anything to him?
A Yes, I touched him and I said: “ Look out, Kenneth.
He got a gun.”
Q What did you do then?
A I kept going out the door. I ’m thinking my brother
is behind me.
Q Was he behind you?
A No, ma’am, evidently he didn’t come.
Q You said when you got out of the patio door that
you could see Debra. Where was she?
A Okay. As you go out the patio door, [115]there’s a
fence line there. She was right at the fence line,
you know, trying to get over the fence.
sjc *
Q Was she successful in getting over it?
65a
A No. She had a hard time trying to get over the
fence. That’s what made me head the other way.
Q Which way did you go?
A I went out - after I seen her trying to jump this
fence, I went to the back of the house.
Q At what point did you say you heard three or four
more gunshots?
A As I was running around the back of the house.
Q Then where did you go?
A I went over the fence. Finally after I got over that
fence, I come around to the front of the house
and I started running down the sidewalk. As I
was running down the sidewalk I ’m looking back.
Debra had run out to the street. [116]Somebody
had come with him. They were in a blue car.
Q Mr. Ebnezer, you didn’t see anybody come with
the defendant; is that correct?
A No, ma’am.
[117]Q When you went out there, you saw another car?
What was Debra doing in relation to that other
car?
66a
A Debra, she ran over to the driver’s side of the car
and she tried to get in the back seat of the car.
She told them, she said: “Y ’all, let me in. He got
a gun.”
Q What did the people do?
A They drove o ff and left her in the middle of the
street.
Q W here were you when you saw Debra trying to
get help from that car?
A I had just come from around the back of her
house. I had just come back from there where I
got over the fence. I was just striking out down
the sidewalk.
Q So she beat you out into the street?
A Yes, ma’am, she did.
Q Did you continue to look back towards the front
of the house as you ran off?
A Yes, ma’am, I looked back.
Q What was she doing?
A Well, after the car drove off, he was [118]running
right up to her.
67a
Q W ho is he?
A Buck here.
Q Did he have anything in his hands?
A Yes, ma’am, one of these rifles.
^5 ^
Q What was Debra doing?
A She was in the middle of the street pleading with
him.
* * *
Q At some point did you quit watching what was
happening there in the street?
A Yes, ma’am, because I was trying to get close to
somebody’s door so I could knock on the door and
ask them to call the police.
̂ ̂ ^
[119]Q At some point did you find someone where you
could get to the door and they could help?
A Yes, ma’am. I finally got to a door and beat on it
and somebody walked over and I asked them to
call 911 because somebody had been shot. Then I
68a
gave them my brother’s phone number and asked
them to call my brother.
Q Do you know if they called 911?
A Somebody did.
Q A fter you had been at that house and asked
somebody for help, what did you do next?
[120]AWell, I stayed there for a moment, you know,
because I ’m looking to see if he’s coming around
the corner. Actually, you know, I don’t know what
to do.
Q What did you do when you finally did something?
A I ran back around the house once I heard the
police coming. I heard the sirens.
Q W here did you go when you heard the sirens?
A I turned around and headed back to the house.
Q What did you see when you got back to the house?
A When I got back to the house, or before I got
back to the house, the officer was standing over
Mr. Buck. He had him face down on the ground.
He was standing over him and he was shouting
69a
to Debra’s daughter: “ Is this the shooter?” I run
up to him and told him he was the one.
Q Did you tell the police o fficer at some point
about what you had witnessed and [121]what you
believed to have happened?
A No. What I remember is that the Deputy put him
in the car, and by the time he put him in the car,
I went back to try to help Debra and do whatever
I could.
Q What was Debra doing?
A Debra was laying in the middle of the street. She
asked me, she kept asking me to put pressure on
her back because she couldn’t breathe.
Q Did you see blood on her?
A Yes, ma’am, she had blood all over her.
Q Was she trying to breathe?
A She was trying.
Q After you tried to help Debra, what did you do?
A I looked and seen Phyllis had come outside. She
was sitting on the ground there and I went to
70a
check on her to see if she was all right, and then
I went [122]back in the house, you know, because
I was looking for my brother because I noticed
my brother was not nowhere.
Q At that point did you know your brother had been
shot and killed?
A Not until I got in the house and seen him.
Q When you went in the house, what did you see?
A I seen my brother in the hallway laying face down.
Q What did you do?
A I turned him over and held him.
Q Was he alive?
A No, ma’am, he was already dead.
Q At some point did you meet with the police later in
the day and give them a written statement about
what you had witnessed?
A Yes, ma’am, they took me from the scene.
Q Down to the Police Station?
A Yes, ma’am.
71a
Q Before you went down to the Police Station did
you have the opportunity to see Mr. Buck again?
[123] A Yes, ma’am.
Q Where was he when you saw him again?
A In the police car.
Q What was he doing in the police car?
A He was laughing and joking and taunting the rest
of my family. He’s sitting up there and laughing.
He just killed two people and he’s sitting up there
and laughing and taunting and joking about it.
72a
TR A N SC R IPT OF PROCEEDIN GS, M AY 1,1997
(P H Y L L IS M A R Y TAYLOR)
CAUSE NO. 72810
IN TH E COURT OF CRIM IN AL A PPE A LS
AT AUSTIN, TE X AS
DUANE EDWARD BUCK,
Appellant,
VS.
TH E STATE OF TEXAS,
Appellee.
T R IA L CAUSE NO. 699684
A P P E A L FROM THE 208TH DISTRICT COURT
OF H ARR IS COUNTY, TE X A S
JUDGE DENISE COLLINS, PRESIDING
REPO RTER’S RECORD
TR IA L
May 1,1997
VOLUME 25 OF 30 VOLUMES
❖ * *
73a
r2011D IR E C T EXAM INATION
BY MS. HUFFM AN :
Q Ma’am, please introduce yourself to the jury.
A Hi. My name is Phyllis M ary Taylor.
❖ * ❖
Q Ms. Taylor, do you know the defendant, Duane
Buck?
A Yes.
[202JQ How do you know Duane Buck?
A He’s my stepbrother.
❖ ❖ %
Q You consider him to be your brother?
A Yes.
Q Were you raised in that manner, as brother and
sister?
A Yes.
Q Did you know Debra Gardner?
74a
A Yes.
Q At the time of her death, how long had you known
her?
A Approximately seven years.
Q W hat kind of relationship did you have with
Debra?
A She was my best friend. She was more like a
sister.
Q Do you know the relationship, if anything, that
was between Debra Gardner and Duane Buck?
A Yes.
[203]Q What kind of relationship did they have to your
knowledge?
A To my account, one time they were a pretty good
couple. They were breaking up and then they’d
get together, break up and get together.
Q So it was an off and on relationship?
A Yes.
Q The week prior to D ebra ’s death, what had
happened in the relationship?
75a
A Approxim ately two weeks before the incident
they had broke up, separated.
[204] Q The night of July 29,1995 and the early morning
hours of July 30th of 1995, where were you that
evening?
A I w as w ith D ebra , H arold , K enneth , and
Kenneth’s sister and brother.
Q Where had you been?
A We had went to a game room.
̂ * *
[205] Q W hen you w ere at the gam e room , do you
remember about how long you stayed at the game
room?
A About an hour.
Q What were you doing there?
A We played games, shot pool.
Q When you left the game room, where did you go?
A We went to Debra’s house.
76a
[206]Q W ho all went to Debra’s house?
A Me, Debra, Harold, Kenneth, and some of the
brothers and sisters was going to meet us there
at the house but they never showed up,
Q What did you do once you got to Debra’s house?
A Our plans were to play cards, but we all ate and
then right after we finished eating is the time
when Duane came and kicked the door in so we
didn’t get a chance to play cards.
Q W here were you when you said Duane kicked the
door in?
A I was in the living room. I was going to open the
door but Debra for some reason didn’t want the
door opened.
Q Did you know it was Duane at the door?
A Yes.
Q How did you know it was your brother?
A B eca u se I cou ld h ear his vo ice . He was
screaming and hollering open the damn door.
Q Was the door opened?
A No.
77a
* ❖
[207]Q At some point did you see your brother?
A A fter the door was kicked in.
Q Was the door kicked in right away, or how long
did it take before the door got kicked in?
A Approximately, I guess, about seven minutes.
Q Once the door was kicked in, what happened?
A When the door was kicked in, we were in the
bedroom, and he came in and asked what was
going on. We said nothing. Then he started to
jump on her.
Q On who?
A Debra.
Q What do you mean by jump on her?
A Fighting. He started fighting her, trying to fight
her.
[217JQ M s. Taylor, after you had the conversation in the
kitchen with the defendant, do you recall what
happened next?
78a
A A fter that they continued arguing and I think
Duane had got some things of his, and then he
left.
[218] Q When he left did you think that everything was
settled?
A Yes.
Q Or did you think everything was still up in the
air?
A No, he hugged me and kissed me and told me that
he was sorry for the behavior, the way he carried
on, and he shook Harold and Kenneth’s hands and
said he was sorry and he left.
Q At some point did you know whether or not the
police came?
A When the police arrived in forty-five minutes,
Duane had made it back to Northeast Houston
and he had phoned back to the house; and about
the time that he phoned, the police was knocking
at the [219] do or.
Q Did you talk to him?
79a
A I talked to him.
Q What was the conversation about?
A He asked me to let him speak to Debra.
Q Did you do that?
A I told Debra that he was on the phone and wanted
to speak to her but she didn’t want to get on the
phone.
Q Did you tell him that?
A Yes, I did.
Q Did she ever talk to him on the phone when he
called back?
A No.
^
[220]Q What kind of things were you telling him?
A Nothing. He just kept telling me to put Debra on
the phone and I kept telling him that she didn’t
want to get on the phone. After that he hung the
phone up in my face.
5j<
80a
Q Had Debra gone out and talked to the police?
A Yes.
Q At some point did she come back inside?
A Yes.
* ?;<
Q W hen Debra came back into the house after
talking to the police, what did you all do?
A A fter that we sat on the couch just talking
about things that had happened. Before I knew,
everyone fell asleep.
Q W here did you fall asleep?
A On the couch.
* ❖ *
[221JQ What woke you up?
A I heard the banging at the door but I didn’t get
up right then. Debra came and woke me up and
told me that Duane [222]was back at the door and
to get up. I sat up on the couch.
Q Did you get up from the couch?
81a
A No.
Q Did you see Duane?
A Yes.
Q What was he doing?
A Well, he kicked the door in again, and when he
kicked the door in, Debra and Harold took off
running because he said for everybody to run
because he had a gun, but I just sat there. I
couldn’t move. I guess I was in shock. I didn’t
move right then. I just sit there.
Q When is the first time that you remember seeing
him with a gun?
[223]A I finally seen the gun when he come through the
door.
Q Where did you see the gun?
A In his hands.
Q How was he holding the gun?
A Like this.
Q Pointing it out?
82a
A Yes.
Q Then what did he do?
A A fter that he came up to me.
Q W here were you?
A I was sitting on the couch.
Q What did he do?
A He approached me. I was asking him what he was
doing, and I begged him not to shoot me because,
you know, nobody deserves to be shot. He said:
“ I ’m going to shoot your ass too.” Then he put
the gun to my chest and pulled the trigger.
5jc >jc ?[C
[225]Q You’re sitting there on the couch?
A Yes.
Q What did he do with the gun?
A He put it like this.
Q What did he say?
A He says: “ I ’m going to shoot your ass too.”
83a
Q What did you say?
A I begged him, I said: “ Duane, please don’t shoot
me. I ’m your sister. I don’t deserve to be shot.
Remember I do have children.” And he says: “ I ’m
going to shoot your ass too.”
Q What did he do?
A He pulled the trigger.
Q Did the gun fire?
A Yes.
Q Did you have a wound in your chest as a result of
that gunshot?
A Yes.
sj:
[226]Q After he shot you, Phyllis, what did you do?
A I just sat there.
Q Did you realize that you had been shot?
A Yes.
Q What were you feeling?
84a
A Actually I couldn’t believe that I was shot. I just
sat there and I said a prayer.
Q Did you try to help yourself?
A I just put my hand here. I couldn’t believe he
actually shot me. I just sat there with my hand
over it.
Q Do you remember hearing anything when you
are sitting there holding your chest?
A Yes.
Q What did you hear?
A I heard more gunshots.
Q Do you know how many m ore gunshots you
[227]heard?
A It was either one or two.
Q W here were they coming from?
A They were coming from the back of the house
towards the bedrooms.
Q At some point did you get up?
A Yes.
Q W here did you go?
85a
A I walked through the house trying to get to a
telephone.
Q What did you see?
A I saw Kenneth lying on the floor.
Q What was Kenneth’s condition?
A He was shot face down.
Q What did you do?
A I looked down to see if he was breathing. He
wasn’t breathing.
Q Did you see any of the kids around at that point,
or do you remember?
A Not at that particular time.
Q What did you do then?
A I then approached Debra’s son’s room, Devon.
When I went into his room, I opened the closet
and Devon and Kanetta were in the closet. I
shut the closet [228]door back and went to the
telephone and dialed 911.
Q Did you talk to a 911 operator?
A Yes.
86a
Q Did you tell them that you had been shot?
A Yes.
Q You’ve heard the 911 tape?
A Yes.
Q Does your voice appear on that 911 tape?
A Yes.
Q At some point you say something about three
or four in reference to — what were you talking
about? It sounded like you said you had been shot
like three or four times? What were you saying?
A I told her I needed help because I had been shot
in the chest, and I said that there were three or
four more people that had been shot. I know that
Kenneth had been shot so by hearing the other
gunshots, I didn’t know who else was shot.
Q You talked to the 911 operator, but did you have
a long extended conversation [229]with them?
A No. The phone was disconnected.
Q What did you do then when you thought you were
disconnected from 911?
A After then I called my house and no one answered.
Then I called my father.
87a
Q What did you tell your father?
A I told him that I had been shot in the chest and
that it was getting hard for me to breathe and I
needed some help. I didn’t want to die. He asked
me did I know who shot me and I told him yes.
He asked who shot me and I told my stepbrother
Duane, and at that particular time I heard him
talking so I hung up the phone and got in the
closet.
sjc
88a
TR A N SC R IPT OF PROCEEDIN GS, M AY 2,1997
(P H Y L L IS M A R Y TAYLOR)
CAUSE NO. 72810
IN TH E COURT OF CRIM IN AL A PPE ALS
AT AUSTIN, TE X A S
DUANE EDWARD BUCK,
Appellant,
VS.
TH E STATE OF TEXAS,
Appellee.
TR IA L CAUSE NO. 699684
A P P E A L FROM THE 208TH DISTRICT COURT
OF H ARRIS COUNTY, TE X A S
JUDGE DENISE COLLINS, PRESIDING
REPO RTER’S RECORD
T R IA L CONTINUED
May 2,1997
VOLUME 26 OF 30 VOLUMES
❖ * ❖
89a
[241] Q When you walked out, did you see the defendant?
Did you see Duane Buck, your brother?
A Yes.
Q Where was he?
A He was sitting in the police car.
Q What was he doing?
A He was laughing.
Q Did you say anything to him?
A No.
Q What did you do?
A By then I had put my hand down and one of the
guys had realized I was shot so they told me to
sit on the ground.
Q Did you do that?
[242] A Yes.
Q Did you have a chance to walk over to see
Debra?
A No, I got halfway to her.
90a
Q But you could see Debra?
A Yes.
Q What was going on around Debra?
A She was laying there saying “ Help me, help me.
Somebody please help me. I can’t breathe.”
Q Did she appear to be bleeding?
A Yes, she was in a puddle of blood.
Q A fter the people there realized that you had been
shot, what did they do to help you?
A I started coughing up blood so they gave me
oxygen and by then Life Flight had landed and
they put me on a stretcher and took me by Life
Flight to Herman Hospital.
[243]QTell us what happened when you got to the
hospital?
A When I got to the hospital, I immediately went
into surgery.
Q What did they do in surgery?
A They put in a chest tube into my chest.
Q Did you later learn where the bullet had gone in
91a
your chest?
A Yes.
Q Where did it go?
A It went into my chest about an inch from my
heart and it landed in the back, in my back, in
my shoulder blade.
Q How long were you in the hospital the first time
that you were admitted on the 30th day of July?
A Approximately two weeks.
Q During those two weeks, what kind of treatment
did you have?
A I had X-rays just about every day. They checked
my chest tube and blood.
Q Were you in pain?
A Yes.
Q D id you have any fo llow -u p s u r g e r y or
[244]treatment as a result of that gunshot wound?
A Yes.
Q When was that?
92a
A I f I recall, it was in October of ‘95.
Q What happened then?
A They removed the bullet.
Q W hy did you go some months before they removed
it?
A Because I was having difficulty with the usage
of my arm. It continued to bother me so I talked
to my doctor about removing it.
Q Did he agree to do that?
A Yes.
Q What about now? Do you have any symptoms, any
follow-up symptoms as a result of that wound?
A Yes. Sometimes my arm goes out on me. It’s hard
to lift things every now and then.
* * * *
93a
TRANSCRIPT OF PROCEEDIN GS, M AY 2,1997
(DEVON GREEN )
^ ?}c
12721D IRECT EXAM INATION
BY MS. H UFFM AN:
Q Would you please state your name for the jury?
A Devon Green.
Q Devon, how old are you?
A Thirteen.
Q Do you go to school?
A Yes, ma’am.
Q Where do you go to school?
A Spring Forest Middle School.
Q Who do you live with now?
A Doris Gardner.
Q W ho’s that? How is she related to you?
A My aunt.
Q Who else in your family now lives with Doris?
94a
A My cousin Kanetta.
% ?5c
Q Did you all used to live together?
[273]AYes, ma’am.
Q W here did you used to live together?
A In Alief.
Q Who did you live with?
A With my mom.
Q Who was your mom?
A Debra Gardner.
Q She’s now dead?
A Yes.
Q Do you remember your address where you lived
over in Alief?
A No.
Q Was it on Puerta Vallarta Street?
95a
A Yes, ma’am.
Q Is that the house where your mom was killed?
A Yes, ma’am.
* >!< *
[275]QOn the night your mom was killed, do you
remember who all was at the house?
A If I remember, Harold, my mom, my sister, my
cousin, me, Kanetta and Soria (phonetic spelling).
Q Keshawn and Soria were the little ones?
A Yes.
Q They were toddlers?
A Yes.
Q Were you awake the first time that Duane Buck
came over in those early morning hours?
A I was asleep but I heard a bunch of noise and
woke up.
Q Where were you sleeping?
A In my bedroom.
96a
Q Was anyone else with you?
[276] A M y cousin.
Q W ho is your cousin?
A Kanetta.
* * He
Q What did you do when you heard that noise?
A I went in the living room to see what was going
on but they were in the hall.
Q What did you seen when you were in the hall?
A Duane was trying to grab my mom and take her
in her room.
ih
[277] QWhat happened after that? Do you remember?
A Somehow they were in the kitchen.
Q What were you doing during that time?
A I was just standing there looking and holding my
sister.
Q Were you afraid?
97a
A Yep.
Q What happened after they went to the kitchen?
A Him and Phyllis started talking to each other.
He picked up a stick and raised it up and said he
would hit her with it.
Q Did he hit her with it?
A No.
Q What did he do with the stick?
A He had put it down.
Q What else do you recall happening during that
time?
A They was talking and then he left.
Q Do you know how long he was there?
A About thirty minutes.
[278]Q After he left, what did you do?
A We just stayed there for a little while and then
we went back to sleep.
98a
Q W here did you go to sleep?
A Back in my room.
Q W ho was with you this time?
A My cousin.
Q At some point were you awakened?
A Yes, around 6:00 o’clock.
Q What woke you up?
A A gunshot.
[279]QOne gunshot?
A Yes.
Q Did it sound like it was outside or inside?
A Inside.
Q What did you do when you heard the gunshot?
A Me and my cousin woke up and went in the closet.
Q In your bedroom?
A Yes.
99a
Q What happened after that?
A I heard a lot o f yelling.
* * *
Q Did you recognize any of the voices?
A Yes.
Q Who did you recognize?
A I knew it was Duane yelling.
Q Let me ask you this. Did you know where Kenneth
was?
A No.
Q Did you hear Duane say something to Kenneth?
A Yes, he said something like he was [280]sleeping
with my wife or something like that.
Q Where did you hear the voices coming from?
A The hallway.
Q Next to your bedroom?
A Yes.
100a
Q A fter yon heard Duane say that, what did you
hear?
A I heard the gunshot.
% ❖ *
Q Could you point out for the ju ry which room you
were in and which closet you were hiding in?
A (Indicates.)
[281]Q Right there?
A Yes.
Q That’s where you heard Duane say something to
Kenneth?
A Over here out of the closet.
Q Tell the jury where you were when you heard
that?
A Right here.
Q You can have a seat.
A fter you heard the gunshot, what did you do
next?
A I went outside to see who had got shot.
101a
Q Was that immediately afterwards?
A Just about two or three minutes later.
Q So you waited a little while?
A Yes.
Q Were you scared?
A Yes, ma’am.
Q When you opened the door, what did you see out
in the hallway?
A I just saw Kenneth leaning up against a wall and
my sister trying to help him.
Q What sister?
A Shennel.
Q What did Kenneth look like?
[282] A He was like he was shot.
Q Did you see any blood?
A He was throwing up a lot of blood.
Q Was he saying anything?
102a
A He was trying.
Q What was he saying?
A He was trying to tell my sister to call the police.
Then he started talking about something else,
and then I left.
Q W here did you go?
A I went to the restroom with my cousin.
Q Which cousin?
A Kanetta.
Q What were you doing in the restroom?
A She was in the restroom looking in the mirror.
Q Was she scared?
A Yes, it looked like she was.
Q Do you think she was in some kind of shock?
A Yeah.
Q What did you do next?
A I left. Me and my sister went outside.
103a
Q Which sister?
A Shennel.
[283] QWhere did you go?
A We went out and we seen Duane running after
Harold.
Q Where did you see Duane?
A He was right next to the front of the garage
running after Harold.
Q What happened after you saw Duane going after
Harold?
A He started saying: “ Punk, you better keep
running and don’t come back.”
Q You’re going to have to slow down. Where was
your mother?
A At first she was running outside on the [284]street
and then a car pulled up and stopped.
104a
>Jc if:
Q What did your mom do with the car?
A She went to the window and told them to open
the door.
Q Did they help her?
A No, they drove o ff when they seen Duane coming
behind her.
Q What was he doing when he came up behind your
mom?
A He was talking but I couldn’t understand what
he was talking about.
Q Did he have anything in his hand?
A He had a gun in his hand.
Q What was your mom doing?
A She was — she had turned around and [285]said:
“ Please don’t shoot me. Please don’t shoot me.
W hy are you doing this in front of my kids?”
Q What did Duane do then?
105a
A He just shot her.
Q He pointed the gun directly at her?
A Yeah.
* * *
Q What did you do when you saw him shoot your
mama?
A We didn’t know why he shot her.
Q What was Duane doing?
A He was walking back towards the garage.
Q What did he do when he got back towards the
garage?
A He got another gun out of the garage.
Q He had two guns then?
A Yes.
Q What did he do then?
A He put them in the trunk of the car.
Q Where was the car parked?
106a
A Like on the bumper (sic) of the sidewalk.
Q W here did he put the guns?
[286]AInto the back or trunk of the car.
Q What did he do after that?
A He tried to start the car. He came back up to my
mom and he said: “ It ain’t funny now. You ain’t
laughing now.”
̂ ̂ ^
Q Was your mother laying there bleeding when he
said that?
A Yes.
* * *
[287]QAfter he did put the guns in the trunk, then he
tried to start the car?
A Yes.
Q What happened then?
A It wouldn’t start.
107a
Q Did he stay in the car for awhile trying to start
it?
A Yes.
Q Then what happened?
A He opened the hood of the car and tried to see
what was wrong with it.
Q Did he fix it?
A No, ma’am.
Q What happened after he kept the hood up and
couldn’t fix it?
A He just messed with it awhile and then started
to walk down the block?
Q He started leaving?
[288]AYes.
Q At some point right after that did you see the
police?
A Yeah.
Q Did you see the police take him into custody?
Were you inside or outside?
108a
A I was outside when the police drove up. Duane
was acting like he ain’t done nothing. He was
walking slow so I told the police that was him.
109a
TRANSCRIPT OF PROCEEDIN GS, M AY 2,1997
(SH EN N EL GARDNER)
r3011DIRECT EXAMINATION
BY MS. HUFFMAN:
Q Would you introduce yourself to the jury, please?
A Shennel Gardner.
Q How old are you, Shennel?
A Fifteen.
Q Do you go to school?
A Yes, I do.
Q Where do you go to school?
A Forest Brook.
Q Speak into the microphone. Where do you go to
school?
A Forest Brook.
* * *
Q Who do you live with, Shennel?
A My grandmother.
110a
Q W hat’s her name?
A Annie Gardner.
[302]QHow long have you been liv in g w ith your
grandmother?
A About two years now, going on two years now.
Q W here did you live before you lived with your
grandmother Annie Gardner?
A With my mother, Debra Gardner.
jjc
Q On Puerta Vallarta Street?
A Puerta Vallarta Street.
Q How long had you lived at that address before
your mom was killed?
A I guess going on a year.
Q Who all lived at that house?
A My mother, me, my brother, my sister Kanetta.
Q Do you know a Duane Buck?
A Yes, -I do.
111a
Q How do you know him?
A He was my mom’s friend.
Q Did he stay with you at your house on Puerta
Vallarta sometimes?
A When we first moved in he wasn’t there but he
came off and on.
[303]QThe night before your mom was killed or in the
early morning hours before your mom was killed,
were you awake or asleep in the early morning
hours?
A I was awake because my leg was cramping.
[307]QDo you know whether or not during the first time
that he came over if someone had called 911?
A Yes.
Q Who called 911?
A Me.
Q Had your mama called before?
112a
A Yes.
^ sjc
[308]QDo you remember what you told them?
A I told them to send the police because someone
here was trying to jump on my mama.
Q W hy did you call 911?
A Because I was afraid. I was nervous.
Q At some point did you see Duane leave?
A Yeah, he was getting into the truck.
[309]Q A fter the police came, what did you do?
A We went back in and got settled and went back
to bed.
Q You’re going to have to slow down. We’ll [310]take
this a question at a time. What woke you up? Do
you know what woke you up?
A Phyllis. You know when you sleep, you still can
feel anything going on around you, and then I
113a
seen her on my phone trying to get somebody on
the phone and she was holding her chest. I said:
“Phyllis.” I went up to her like that and I seen
blood running out.
Q Did you call 911 again?
A Yeah.
[311]Q You could hear people arguing?
A Yeah, a commotion.
Q What do you mean by commotion?
A Commotion is like “Don’t shoot me. Get out of
my house.” There was arguing. I ’m crying on the
phone trying to get the police to come. There was
a whole lot o f commotion.
Q At some point did you leave your room?
A Yes.
Q What did you see when you left your room?
A As soon as I left my room, there in the hallway
was Kenneth Butler. I thought he was shot in the
mouth because all I seen was blood coming out of
his mouth.
114a
Q When you saw him out there in the hallway, did
you stop to talk to him?
A Yes, I was trying to see if he was alive.
Q Did he say something to you?
A Yes.
Q What did he say?
A “ Try to find your mother.”
[312]Q A fter you talked to Kenneth and he told you to
go find your mother, what did you do?
A I went to look for my mother.
Q Where did you go?
A I went around the house. I found her on the
ground here. He was chasing her. I was asking
him, begging him not to shoot her and everything.
[313]Q W here did you find your mother?
A Outside.
115a
Q When you went outside, what did you see?
A Him chasing after my mother.
Q Where was your mother?
A She was trying to stop a car but the car flew by
and she couldn’t run that fast. All she could do
was just stop.
Q Where was she when you saw her stop?
A In the middle of the street.
Q Where was Duane?
flc
[314]A Behind her.
Q Did he have anything in his hands?
A Yes.
Q What did he have in his hands?
A A gun.
* * *
Q What did you see him do with the gun?
116a
A He shot my mom.
Q Did you hear him say anything before he shot
your mother?
A Yes, he was talking but I don’t remember what
he was saying to her. All I remember is jumping
on him and begging him not to shoot my mom.
My mom was begging for her life too.
Q What was your mom saying?
A “Duane, don’t shoot me. Don’t shoot me.” I was
saying the same thing. “ Don’t [315]shoot my
mama.” I jumped on his back and was hitting him.
Q How far away was Duane from your mother when
your mother was begging him not shoot her?
A Well, I don’t know exactly how far but it wasn’t
far away.
Q Can you stand down and show the ju ry how far
away your mom was?
A I don’t know exactly. I was begging him not to
shoot her. All she could do was beg for her life.
Q What was Duane doing?
117a
A Talking mess.
* * *
Q Do you know what he was saying?
A No.
Q Was he talking?
A Yes. “ I ’m going to shoot you. I ’m going [316]to
shoot your A.” You know what A stands for, don’t
you?
Q Yes. What was he doing with the gun?
A He was pointing the gun.
Q At some point what did he do with it?
A Shot her.
Q Did he point the gun directly at her?
A Yes.
Q When he shot her, what were you doing?
A Hitting on him. When he shot her, I fell to the
ground. I couldn’t do nothing. All I could do is
go crazy.
118a
Q What did your mother do after she was shot?
A She fell.
Q What happened after you saw that and then you
fell and your mom fell?
A I went back in the house to call.
Q Call 911?
A Yes, I did.
Q Did you ever go back outside again?
A Yes.
Q When did you go back outside?
A I went out to see if she was still alive. She was
alive and she was telling me that [317]I needed
to call the ambulance, to get the ambulance. All
I could do was cry and run back inside and call.
Q At some point did you ever see Duane Buck again
after he was in the police car?
A Yes, he was in the police car laughing. He thought
it was funny and it wasn’t.
119a
TRANSCRIPT OF PROCEEDIN GS, M AY 2,1997
(M A R ILY N M U RR)
IN THE COURT Of" CR IM IN AL APPEALS
AT AUSTIN, TE X A S
^
r3391DIRECT EXAM IN ATIO N
BY MS. HOOD:
Q Please state your name.
A My name is Marilyn M -a-r-i-l-y-n second word
Gay G-a-y last name M-u-r-r.
Q How are you employed, ma’am?
A I’m one of the Assistant Medical Examiners for
Harris County Medical Examiner’s Office, also
known as the County Morgue.
* * *
[344]Q Did you perform an autopsy on Kenneth Ray
Butler?
A Yes.
^
[346]Q W hat w ere the re su lts o f you r ex tern a l
examination of the body?
120a
A Well, the most significant was the gunshot wound
of the front of the chest with the stippling that I
mentioned. It was on the left chest.
Q What is stippling?
A Stippling is when the gunpowder from the gun
impacts on the skin and causes little scratches
that are in a pattern around the gunshot wound.
Q Is stippling present generally from a long-range
shot or a short-range shot?
A A short range or what we call a close range
gunshot wound.
[349]Q In regard to your internal examination, could
you specifically describe what damage that bullet
caused?
A Well, it perforated the heart so there was a hole
through the heart. It perforated the lower lobe
of the right lung so there was a hole through
the lung, and around the gunshot wound track
[350]there was hemorrhage and the tissue was
ragged looking. Also in the chest cavity there
was — in the heart sac there was three hundred
milliliters of blood, and in the chest cavity there
was also blood present, one liter, which is about
a quart in the chest cavity, and that was from the
121a
heart being perforated and all the blood going
into the chest cavity, and the lungs being vascular,
the}'' have a lot of vessels so that also bleeds.
[351]Q Based on the results of your autopsy, do you have
an opinion as to the cause of death of Kenneth
Butler?
A Yes.
Q What is it?
A C lose -ra n ge gu nsh ot w ound o f the chest.
Homicide.
[352]Q I’d like to refer your attention now to Case No.
95-5359. W ho is that autopsy report on?
A Debra Lynn Gardner.
Q Who performed that autopsy?
A Dr. Eduardo Bellas.
Q As Custodian of Records, are you competent to
testify as to his results?
A Yes.
122a
[353]Q D id Dr. B ella s a lso p e r fo rm an internal
examination?
A Yes.
Q What were the results of that?
A The bullet perforated the right lung, the middle
lobe of the right lung, and then the diaphragm and
then the liver. Then it came to rest in the side in
the subcutaneous tissue which is the tissue right
under the skin.
[357]Q Is the description of the injury which you have
already described including the path of the
missile or bullet consistent hypothetically with
someone, with the victim being taller than the
shooter, having to be on their knees perhaps and
then shooter shooting downwards at an angle?
A Yes, it is.
Q Based on this Autopsy Report, do you have an
opinion as to the cause of death?
A Yes.
123a
Q What is your opinion?
A Gunshot wound of the chest. Homicide.
124a
TR A N SC R IPT OF PROCEEDIN GS, M AY 6,1997
(V IV IA N JACKSON)
CAUSE NO. 72810
IN THE COURT OF CR IM IN AL APPE ALS
AT AUSTIN, TE X A S
DUANE EDW ARD BUCK,
Appellant,
VS.
THE STATE OF TE XAS,
Appellee.
TR IA L CAUSE NO. 699684
A P PE A L FROM TH E 208TH DISTRICT COURT
OF H ARRIS COUNTY, TE X A S
JUDGE DENISE COLLINS, PRESIDING
REPO RTER’S RECORD
PU N ISH M EN T
May 6,1997
VOLUME 28 OF 30 VOLUMES
sjc
125a
rSOlD IRECT EXAM INATION
BY MS. H U FFM AN :
Q Ma’am, would you please introduce yourself to
the jury?
A My name is Vivian Jackson.
[31] Q Ms. Jackson, do you recall approximately when
you first met Mr. Buck?
A Yes.
Q When was that?
A About 1985.
Q What was the nature of your relationship with
Mr. Buck? What kind of relationship did you have
with him?
A An abusive relationship.
[32] Q Was he your boyfriend?
A My boyfriend.
sj:
126a
Q D uring the time you lived with Mr. Buck, I
think you told the ju ry it was an [33]abusive
relationship?
A Yes.
Q Did he ever cause physical harm to you?
A Yes.
̂ ^
Q Did he ever hit you with his fists?
A Yes.
Q On what part of your body?
A My face, and all over really.
Q At the beginning of the relationship did he beat
you initially?
A No, it wasn’t often at the beginning.
Q At some point did it get worse?
A Yes.
Q When did that happen?
A About at the end.
127a
Q How often was he assaulting you or [34]beating
you during the end part of your relationship?
A Almost every day.
Q Did he ever use a weapon against you?
A Yes.
Q Tell us about that.
A At one incident he put a gun to my throat and
another incident he put a gun to my face, but I
didn’t know if it was loaded or not.
Q You don’t know if it was loaded?
A Yes.
Q Did he ever use anything to hit you with other
than his hand?
A Yes.
Q What did he beat you with?
A A belt, a coat hanger, and one time he had a cast
on his arm and he beat me in the head with it.
Q Did he ever try to burn you?
A He threatened to pour boiling water on me before.
128a
Q During all those years he abused you, did you
ever call the police?
A No.
[35]Q W hy not?
A Because I was afraid.
Q Did you ever try to leave?
A I left him one time.
Q What happened?
A I went over to my sister’s house and he came over
and threatened me so I went back.
Q What did he say? How did he threaten you?
A He threatened to hit me if I wouldn’t go back so
I went back.
Q You said you had an abusive relationship with him.
What kind of abuse was it? Was it just physical?
A Physically and mentally and emotionally.
Q How was it that you were finally able to break
away from Mr. Buck?
129a
A Well, a friend of mine called my mother and told
her what was going on and she came and got me.
^
130a
TR A N SC R IPT OF PROCEEDIN GS, M AY 6,1997
(D E PU TY D. R. W ARREN )
̂ %
[621D IRECT EXAM INATION
BY MS. H U FFM AN :
Q Sir, please introduce yourself to the jury.
A Deputy D. R. Warren.
❖ ❖ %
[63] Q Did you have the opportunity to see any of the
victims of the murder?
A Yes, ma’am, I did.
Q In particular do you recall seeing the victim by
the name of Debra Gardner, a female victim, who
was shot in the middle of the street?
A Yes, ma’am.
Q Did you have the opportunity to go up and look
at her?
A Yes, ma’am, I stayed with her while she was in
the street.
Q What was her condition when you had contact
with her during those early morning hours?
131a
A She was doing very bad.
Q What do you mean?
A She had a gunshot wound to her chest and there
was a puddle of blood.
Q Did she appear to have problem s with her
[64]physical condition?
A Yes, ma’am, she was struggling for breath.
Q Did you ever see any of her family members who
were around there?
A Yes, ma’am.
Q Who did you see?
A There were three young children, a boy and a girl
around there. Then there was a little girl who was
three or four. She was running around and crying
trying to come over to her mom on the street.
Q She was crying?
A Yes, ma’am.
Q What happened?
A I was the only Deputy on the street so I let her
come over.
132a
Q What happened?
A She was very upset but the woman wanted her
to be with her so I let her come over. The lady on
the street wasn’t doing very well.
Q Based on your observations of the woman on the
street, what was your opinion about what was
going to happen to her?
[65]A She wasn’t going to make it.
Q D id the w om an on the s tre e t m ake some
conversation with the little four-year old girl who
came up to her?
A Yes.
Q Did you hear that conversation?
A Yes, she told her she loved her. The little girl was
crying and hugging her. She told her it was going
to be all right.
Q Then what happened?
A Then I took the little girl away. At that time she
passed away.
Q The woman died after she told the little girl that
she loved her?
133a
A Yes, ma’am.
Q How did the little girl respond when you took her
away? Were you holding her or what?
A I was holding her for awhile, yes.
Q Why were you continuing to hold her?
A Because she wouldn’t let me put her down and
wouldn’t go to anyone else.
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[67]Q When did you first come into contact with Mr.
Buck?
A When they told me to transport him to the station.
Q Did you do what you were told?
A Yes, he was placed in my vehicle.
Q While he was in your vehicle, did you look at him
and observe his demeanor?
A Yes, ma’am.
Q What was his demeanor at that time?
A He was pretty upbeat and laughing.
134a
Q Did you at any time see any crying or tears on
his part?
A No, ma’am, I did not.
Q Did you see him laughing?
A Yes, ma’am, I did.
Q Did you see him talking to any family members?
A Yes, ma’am, I did.
Q Were there other family members who were there
around the scene?
A Yes, ma’am, outside of the tape.
^ sic ^
[68] Q What was his demeanor during that trip while
he was in the back seat of the patrol car?
A Smiling and laughing.
Q At some point, based on his laughing, did you
make a comment?
A Yes, ma’am, I did.
Q What did you say?
135a
A I told him that I didn’t think the situation was
very funny at all.
Q How were you feeling at that time after what you
had been a witness to?
A It was very stressful and sad the way it went
down.
^
[69] Q What did the defendant say after you made that
comment that you didn’t think it was funny?
A “The bitch got what she deserved.”
Q Did you make any further comment about the
fact that you didn’t think it was funny?
A Yes, ma’am. I told him that I still didn’t think it
was a funny situation.
Q What did he say then?
A He said that God had already forgiven him before
and that he was going to heaven because he was
forgiven.
[70] Q En route to the Police Station, what was his
demeanor?
A The same. He was happy, upbeat.
136a
Q During the time that you spent with Mr. Buck
that morning, did you ever see him demonstrate
any type of tears or remorse for the crime that
he had committed?
A No, ma’am.
^
137a
TR AN SC RIPT OF PROCEEDIN GS,
MAY 6,1997 (DR. W ALTER QUIJANO
AND CLOSING STATEM ENTS)
CAUSE NO. 72810
IN THE COURT OF CR IM IN AL APPEALS
AT AUSTIN, TE XAS
DUANE EDWARD BUCK,
Appellant,
vs.
TH E STATE OF TEXAS,
Appellee.
T R IA L CAUSE NO. 699684
APPEAL FROM TH E 208TH DISTRICT COURT
OF H ARR IS COUNTY, TE XAS
JUDGE DENISE COLLINS, PRESIDING
REPO RTER’S RECORD
PU N ISH M EN T
May 6,1997
VOLUME 28 OF 30 VOLUMES
* ❖ *
[101]WALTER QUIJANO
138a
was called as a witness by the Defense and, having
been first duly sworn, testified as follows:
D IRECT EXAM IN ATION
BY MR. EASTERLIN G :
Q State your name, please, sir.
A My name is Walter Quijano.
Q Mr. Quijano, where have you been the last hour
and a half?
A In another court.
Q So you finished up and then came to visit with us?
A Yes.
Q Give the jury an idea of what kind of work you do,
what your credentials are, what your educational
history is.
A I have a Bachelors Degree in General Psychology
and a M aster ’s and D octorate D egree also
in Clinical Psychology. I have completed all
the requirem ents of the Texas State Board
o f E xam iners o f P sych olog ists to practice
psychology in Texas.
139a
[102]M y w ork has been both w ith the
public and private sectors. I was a Consulting-
P sych o log ist at the F ed era l C orrection a l
Institution in San Pedro, California, properly
called the Federal Corrections Institution at
Terminal Island. From there I did some chemical
dependency work as a Staff Psychologist at the
then Texas Department of Corrections and now
called the Texas Department of Criminal Justice
Institutional Division. From there I worked for a
State hospital in Oklahoma where I did forensic
work and was Chief Psychologist.
Then I returned to the private sector doing
chemical dependency work in Oklahoma and
then in San Antonio. I then was invited back
to the then TDC to become Chief Psychologist
and Director of Psychiatric Services. I did that
for about four or five years and then I resigned
that position and represented the State of Texas
in the Special Master Theme that surveyed the
compliance of [103]the prison system with Court-
ordered stipulations. I did similar work for the
Federal Court in Florida.
A fter that I opened a full-tim e private
practice in Conroe. I do much criminal work. I
do evaluations and treatment for both juveniles
and adult p roba tion s out o f M on tgom ery
County D istrict Courts as well as the 258th
Judicial District. I do some work for the Texas
Rehabilitation Commission doing vocational as
140a
well as disability evaluations. I do some work
for DPS. I also have private clients coming from
various referral sources.
Q How many years did you work for the Texas
Department of Corrections which is the prison
system in Texas?
A I did as an employee for five years, and I continued
to do some work for them on a case-by-case basis
depending Court-ordered evaluations.
Q W ere you appointed by Judge Collins of the
208th District Court to do an evaluation on the
defendant Duane Edward [104]Buck?
A Yes, I got an order to perform an exam on Mr.
Buck.
Q Are you paid by the County to do this work?
A Yes.
Q Have you been appointed in other cases over the
years since you’ve been in private practice?
A Yes.
Q Can you give us a general estimate of how many
capital murder cases that you’ve been appointed
to evaluate?
141a
A About seventy.
Q About seventy?
A Yes.
Q Have you also worked for the State of Texas and
District Attorney’s Offices throughout the State
evaluating defendants and testifying in their
behalf also?
A Yes.
Q Can you give us an estimate of how many times
you’ve testified for the State of Texas?
[105] A It’s running about even. I keep track of that
because I get that question real often, so it’s about
fifty-fifty.
Q Did you do a forensic psychological evaluation
and some testing on Duane Edward Buck?
A Yes.
Q Where was that done?
A At the Harris County Jail.
Q Can you te ll us som e o f you r beh a viora l
observations first about Mr. Buck?
142a
A He was very cooperative. There was nothing
unusual with our conversation or his demeanor
during the evaluation. I did not see any thinking
disorder or emotional disorder. I saw some poor
insight, but overall it was a normal conversation
except for the fact that the insight was poor and
he had a excessive obsession with the Bible and
Jesus and what we call jail house conversion.
Q When you were conversing with him in doing
your observations, were you also looking for
any symptoms of mental [106]illness or, I guess,
insanity or what the lay person would call
craziness? Were you looking for things like that?
A Yes, you in terview and keep an eye on any-
thinking disorder, any emotional disorder, and
then any personality disorder.
Q You didn’t see any of those things?
A No thinking disorder, no significant emotional
problems, but I recognized a personality disorder.
Q Let’s talk about that.
Q What did you recognize?
A He has what is called a dependent personality
disorder.
Q Would you explain that?
143a
A A person with a dependent personality disorder
is one who in one sense is selective in their
relationships that they develop, but once they
develop the relationship, they hang on to it even
when the relationship is over. It is difficult for
them to disengage and they will do extraordinary
things to hang on to the relationship. These
individuals [107]can becom e very extrem e
in wanting to maintain that relationship and
sometimes go to the point of thinking if I cannot
have you, nobody else can.
Q You developed a history of his relationship with,
for lack of a better word, his common-law wife
Vivian Jackson, where he had a child; is that
correct?
A Yes.
Q Were you also aware o f the relationship that
he had with the deceased in this case, Debra
Gardner?
A Yes.
Q Of course, you were provided the facts from the
police report and from me concerning how the
murder occurred on Puerta Vallarta, correct?
A Yes.
144a
Q So all o f this evaluation and the symptoms
you saw, all o f that was developed from your
evaluations as well as the facts o f this capital
murder, correct?
A Yes.
[108]QHe showed no signs of insanity to you; is that
correct?
A No, not in the legal sense.
Q Now, the defendant’s personality disorder that
you’ve described, is that an Axis I disorder?
A It is an Axis II disorder.
Q For the ju ry ’s information, what is Axis I and
what is Axis II?
A Axis I is a psychological problem that is the object
of study or object of treatment. So you would
have schizophrenia, depression, substance abuse.
Those are objects of study or treatment.
Axis II is a personality style or personality
disorder of a person that would interact with Axis
I. Many times you treat Axis I disorder and the
treatment doesn’t work. Chances are there’s a
personality defect that’s interfering with your
treatment and you have to address the Axis II
disorder first.
145a
Q On your Clinical Impressions on Page 6 [109]of
your report, what’s the Axis I diagnosis that you
have?
A The Axis I was alcohol dependence which was
in rem ission because he was in jail, cocaine
dependence which was in remission because he
was in jail, but those were the Axis I impressions.
Q A re you fam ilia r w ith the capital m urder
punishment issues that jurors are given in a
capital murder case at the punishment phase?
A Yes.
Q The first that the issue has to decide is whether
the State has proven beyond a reasonable doubt
that there’s a probability that the defendant
would engage in future acts of violence which
would constitute a continuing threat to society.
You’re familiar with that issue, aren’t you?
A Yes.
Q I want to talk about that with you for a moment.
I ’m going to ask your professional opinion
regarding Mr. Buck [110]in relation to that issue.
I f we have an inmate such as Mr. Buck who
is sentenced to life in prison, what are some of
the factors, statistical factors or environmental
146a
factors that you’ve looked at in regard to this
case?
A Number one, among the statistical factors we
know to predict future dangerousness is the fact
of the crimes. You have to look to see if the person
has in the past been assaultive or aggressive,
chances are he will be in the future.
A ge, the younger the person, the more
aggressive and violent a person is. The older a
person is, over the age of thirty or in the thirties,
the assaultiveness decreases to the point whereby
age fifty years old, there’s less than one percent
of violent acts committed by senior citizens.
Sex. The male for some strange reason is
more violent than a female and more assaultive.
[ I l l ]R a c e . It ’s a sad com m entary that
minorities, Hispanics and black people, are over
represented in the Criminal Justice System.
Social-Economics. The poorer the person,
the more likely they are to be violent. There is
less violence in the upper social economic levels.
The more stable the employment, the less violent
the person is.
Substance abuse. The more substance abuse
there is, the more violent a person is.
147a
Those are the statistical factors in deciding
whether a person will or will not constitute a
continuing danger.
Q If you have a defendant such as Duane Edward
Buck that has no prior violent offenses, is it true
that there would be less of a probability that he’s
going to be dangerous or commit acts of violence
in the future?
A True.
Q Let’s talk about environmental factors [112]if he’s
incarcerated in prison. Let’s talk about things
such as the availability of victims and things like
that. Explain that in terms of probability to the
jury.
A The availability of victims means the broadness
or narrowness of the victim pool. I f the victim is
randomly selected, then the more dangerous the
person is because there is no predictability as to
who the next victim is. The narrower the victim
pool, the less dangerous the person will be in the
future.
In this particular case the victim is not
random, it’s narrow, and there is a pre-existing
relationship. It was, for lack of a better term, a
husband and wife difficulty that is unlikely to be
repeated. In prison there is, of course, a narrow
victim pool. A sex relationship that this person
148a
is prone to have will not be pleasant in prison.
There will not be wives or girlfriends In prison.
[113]There are other potential victims in
prison like other inmates, civilian staff, male and
female guards, nurses, teachers and so forth.
Those are potential victims, but in this particular
case the probability of developing a dependent
relationship with them would be very small, and
those potential victims in prison are more alert
to the danger and are less likely to be victimized
than in free society where the victims are just
victims of crime.
Q You were also provided with some data or some
history on Mr. Buck in relation to how he reacts
in custody. Isn’t it true that the records from the
County Jail as well as from the prison system -
MS. HUFFM AN : I would object. He’s asking for this
witness to testify from hearsay.
MR. EASTERLING: That’s what he’s expected to do.
They evaluate reports and form opinions. It’s an
exception to [114]the hearsay rule.
TH E COURT: Lay your groundwork.
BY MR. EASTERLING:
Q You have been provided data and some records
and information on Duane Buck’s behavior while
he was in the jail and in prison; is that correct?
149a
Q When you looked at that information and talked
with me about the information, you determined
whether or not he had had any disciplinary
problems, didn’t you?
A Yes.
Q And he hasn’t had any disciplinary problems in
the County Jail or in the Texas Prison System;
isn’t that correct?
MS. HUFFM AN : I ’d object to the hearsay.
THE COURT: Sustained.
BY MR. EASTERLIN G:
Q You used some data to determine whether or not
he would be a threat from his [115]behavior in
prison, correct?
A Yes.
Q What did you determine that from?
A From the disciplinary records he has no assaultive
incidents either at TDC or in jail.
A Yes.
What does that tell you?
150a
A Number one, that’s a good sign that this person
is controllable within a jail or prison setting. He
has demonstrated that to be so. Some people do
well from an open environment and some people
do well in a restricted environment. This person
seems to have adjusted to the structures of the
prison and has shown himself to be not assaultive
there.
Q So if Duane Buck was sentenced to life in prison,
do you have an opinion about whether there’s a
probability that he would commit criminal acts
of violence that would be a continuing threat to
society?
A The probability of that happening in prison would
be low.
Q Let’s talk about whether or not there’s [116]any
differences in your research between someone
who does a sm all or short prison sentence
compared with one who is sentenced to life in
prison. Are there any differences?
A Short-termers are more disorderly than long-
termers. People who are serving shorter sentences
are more rebellious. They create trouble in the
prison system, mischief, fighting. The long-term
prisoners or life-termers constitute a good sub
section of the prison system. They, in the words
of the correctional people, know how to do time.
151a
Q Is there a disciplinary system within the prison
system that effectively controls inmates?
A Yes.
Q Would you briefly describe that to the jury?
A There are two or maybe three system s. The
inform al system is there ’s always som ebody
bigger than you.
The second system is one that we [117]call
a court. The court is a disciplinary committee
inside the prison system, made up of officers and
other prison employees.
There is a third system that is used if they
commit felonies inside the prison. There is a
special prosecution inside the prison system that
prosecutes felonies committed in the prison.
MR. EA STE RLIN G : May I approach the witness,
Your Honor?
THE COURT: Yes, sir.
BY M R. EASTERLIN G :
Q Let me show you what’s been marked Defense
Exhibit No. 1, Mr. Quijano. I ’d ask you if you
recognize that?
152a
Q What is that?
A It’s a copy of my psychological evaluation of the
defendant.
Q The defendant in this case?
A In this case.
Q Is it a true and accurate copy of your [118]findings
and your report on Duane Edward Buck?
A Yes.
MR. EASTERLING: I ’d tender the exhibit to State’s
Counsel and ask that it be admitted in evidence.
MS. H U FFM AN : Your Honor, I would object to this
as being hearsay.
THE COURT: Approach the bench.
(The following proceedings are held at the bench
outside the hearing o f the jury.)
MR. EASTERLING: This is not hearsay, Your Honor.
It’s his work.
THE COURT: I ’ve never even seen it.
A Yes.
153a
M R. GUERINOT: I f her objection is hearsay, she’s
[119]right. We need to prove up the predicate for
business records and then reoffer it and then see
what she has to say.
MS. H U FFM A N : I ’d like to look at it. I need to read
it.
(The fo llow in g p roceed in gs are held in the
hearing of the jury.)
TH E COURT: I ’ve sustained your objection.
BY M R. EA STE RLIN G :
Q Dr. Quijano, who prepared this report?
A I did.
Q What time did you do so?
A I completed the report on March the 8th of 1997.
Q Did you make the entries in this report from your
own personal knowledge?
A Yes.
Q Are you the custodian of these records?
A Yes.
154a
[120]QHave you kept these records in your possession
since you made the entries?
A Yes.
Q Were the entries made at or near the time or
immediately following your evaluation of Duane
Edward Buck?
A Yes.
Q Have there been any changes or deletions or
alterations from your original personal report
that you brought in your briefcase today?
A No.
MR. EASTERLIN G : I ’d make the same offer, Your
Honor.
MS. H UFFM AN: He’s offering a document I ’ve never
seen before.
THE COURT: Ladies and gentlemen, I ’m going to
send you to lunch. The Deputy is going to take
you to lunch.
Remember you cannot discuss anything about
the case at all. Does everyone understand that?
You’re excused
155a
[145]explain or support the expert’s opinion or
inference, the Court shall exclude the underlying
facts or data if the danger that they will be used
for an improper purpose outweighs their value as
explanation or support for the expert’s opinion.
I make that finding that admitting them would
outweigh any probative value they may have as
explanation or support of the expert’s opinion.
MR. GUERINOT: And we would object to that most
respectfully.
THE COURT: Bring the ju ry out.
(The follow ing proceed ings w ere had in the
presence of the jury.)
M R. E A S T E R L IN G : I ’ll pass the witness, Your
Honor.
rUfilCROSS-EXAM IN ATION
BY MS. H U FFM A N :
Q Sir, how are you today?
A Fine, thank you.
Q Dr. Quijano, you ’ve testified here in H arris
County before, have you not?
156a
Q And in this case you ’re being paid for your
testimony; is that correct?
A Yes.
Q In fact, right before you testified in this case you
were testifying for the Defense in a serial rape
case down the hall; is that correct?
A Not serial rape.
Q What kind of case was it?
A A rape case.
Q How much are you being paid for your testimony
today?
A I ’m not paid for my testimony. I ’m paid for my
time.
Q How much are you being paid for your time?
A I charge one hundred fifty.
Q Dollars?
[147] A Dollars.
A Yes.
Q For what?
157a
A Per hour.
Q Approximately how many hours have you got up
to this point at almost 3:00 o’clock in this case?
A It’s been since 12:00 o’clock.
Q So prior to your testimony here today, you have
previous time in this case?
A Yes, the evaluation.
Q When did that evaluation occur?
A The actual interview was February 14,1997, and
I finished writing the report on March 8th.
Q How many times did you meet with the defendant
Duane Buck?
A Just one time.
Q What was the time period you spent with the
defendant?
A How long I spent with him?
Q Yes.
A Two and a half hours.
158a
Q So all your conclusions and all the opinions that
you have given to this jury are based on a two and
a half-hour [148]interview with the defendant; is
that true?
A Some testing and some eyewitness statements.
Q So you have reviewed some eyewitness reports
given to you by Mr. Guerinot?
A Mr. Easterling.
Q And then you interviewed the defendant?
A Yes.
Q Did you interview him in the Harris County Jail?
A Yes.
Q What type of facilities did you interview him in?
What type of room was it?
A It’s a booth with Plexiglas between us and a small
speaker screen.
Q It’s kind of like a closet, isn’t it?
A Yes.
Q You’re surrounded by concrete and it’s real loud
in there?
159a
Q It’s difficult to hear who you’re conversing with;
is that correct?
A Yes.
[149]Q Would you say it’s probably the worst situation
or circumstances in which to conduct a clinical
interview?
A Yes. I prefer the old jail.
Q But in the new jail that’s the way it’s set up?
A Yes.
Q The information that you used to complete your
report and to give your opinion to this ju ry is
based a lot on your interview with the defendant;
is that correct?
A Yes.
Q Now, you testified that you administered some
tests to him. Did I hear you say that?
A Yes.
Q What type o f tests did you administer to him?
A Yes.
160a
A It’s called the Millon Clinical Multiaxial Inventory
Two.
Q Inventory Tool?
A Two, number two.
Q What is the purpose of that test?
W hat’s the objective?
[150] A This test is for mainly to measure the different
personality styles. That’s its most useful use. It
can also give some indication of major psychiatric
disorders and substance abuse, but it’s primary
tool is to determine or help determine personality
style, personality disorder.
Q The manner in which the test is administered,
are you asking him questions and he responds
verbally, or does he have to write something?
A He has to answer true or false so it’s a paper and
pencil test.
Q So the test is purely self-supporting in that
whatever he tells you, that’s what you go with?
A That’s correct. True.
Q There’s no way to back up what he says? You
don’t interview other people or other witnesses
to verify what he has told you; is that correct?
161a
A Once the results are in and it gives you some
impressions, you have to judge that against the
clinical interview and [151]historieal background
to see if it makes sense. Then you either accept
the test or reject the test.
Q So you make a judgment call in that regard?
A Yes.
Q Do you have a copy o f that test with you?
A Yes.
Q May I see it, please?
A Yes.
Q Dr. Quijano, just to give the ju ry an idea what
kind of questions that they’re asked, I ’d like to
go through some of this.
Is this a common question? “ I always follow my
own ideas rather than doing what others expect
of me.” True or false.
Is that one of the questions?
A Yes.
Q “ I always feel like I ’m not wanted in a group.”
Is that a question?
162a
[152]Q“ I enjoy doing so many different things that I
can’t make up my mind what to do first.”
A That’s also a question.
Q “ I think I ’m a very social and outgoing person.”
Is that a question that you ask?
A Yes.
Q “ I have a talent to be dramatic.”
A Yes.
Q “ I think I ’m a special person which deserves
special attention from others.”
These are some of the questions that you said you
asked?
A Yes.
Q “ I was on the front cover of several magazines
last year.”
A Yes.
Q “ I feel very often that I lose my ability to feel any
sensation in parts of my body.”
A Yes.
163a
Q “ I use my charm to get the attention o f other
people.”
Is that a question?
[153]AYes.
Q “ For some time now I ’ve been feeling very guilty
because I can’t do things right anymore.”
Is that a question?
A Yes.
Q “Many people have been prying in my private life
for a year.”
Is that a question?
A Yes.
Q “ I often get angry with people that do things
slowly.”
A Yes.
Q These are pretty much the nature of the questions
that you go through with them? I see there are
a hundred and seventy-five of those questions; is
that correct, sir?
A Yes.
164a
Q A fter you’ve gone through about a hundred and
seventy-five of those general type of questions, do
you often feel you have a pretty good handle on
the person, or enough of a handle on the person
to make the type of diagnosis [154]that you have
made?
A It gives you some tips or ideas as to the direction
to go in and then you confirm with your clinical
data.
Q Your clinical data being what?
A Interviews, histories, eyewitness statements.
Q Of course, that all comes within the time period
that you’ve told the ju ry that you have spent on
the case?
A Yes.
Q And that’s based on a synopsis from, the Defense
about their version of the facts o f the case; is that
correct?
A Yes.
Q A re you aware of any determ ination by the
A m erican P sycholog ica l A ssocia tion where
they have determined that it is unethical for a
A Yes.
165a
psychiatrist to testify in a capital murder case
about the future dangerousness of the defendant?
A No, that’s not true.
Q You disagree with that?
A That is not true. The American Psychological
Association does not [155]control psychiatrists.
That statement is by the American Psychiatric
Association.
Q H ere’s what I asked you. I said the American
Psychiatric Association. That is my question.
A If that is your question, then it is true that the
Am erican Psychiatric Association has made
that statem ent. The Am erican Psychological
Association has not made that statement.
Q That’s not the question I asked but thank you for
clarifying that.
MR. E A S T E R L IN G : Excuse me, Judge, but the
record will show that she did say the American
P sych olog ica l A ssociation . P robably w asn ’t
intentional but that’s how she asked the question.
Q In any event, sir, let’s move on. I ’d like to ask you
some questions from your report that I ’ve had a
chance to look over during the lunch hour.
166a
You and I have never spoken [156]before you came
in to testify today; is that correct?
A No, we haven’t.
Q In fact, is it true that the State of Texas didn’t
know in advance that a Defense expert was going
to testify one way or another in this prosecution;
is that correct?
A I don’t know. Sometimes they know and sometimes
they don’t because I get calls from prosecutors
sometimes before I testify.
Q In this case you and I have not spoken?
A No, we haven’t.
Q I have a few questions about your report that
I would ask you to explain to me, if you don’t
mind. You made the comment that the defendant
appeared to be of questionable reliability as an
informant.
Was that based upon your general impression of
the defendant or on something that didn’t pan out
from his test as opposed to what you knew about
the facts of the case?
[157] A It was just the way he described his situation to
me. Some of his version did not make sense.
167a
Q So you had some questions about that?
A Yes.
Q You also mentioned that through the administration
of the tests that it appeared that he had magnified
the level of experienced illness. W hat does that
mean?
A In that test we discussed in some of the questions
that you read, there is a mechanism built into
the test to measure the degree in which the
respondent either pulls too much appearing too
sick or pulls too much to feeling too well, too
healthy. So on one side you have exaggeration
and on the other side you have minimization. This
particular respondent showed some exaggeration
of symptoms.
Q Of course, at the time the defendant is speaking
with you in the jail setting, he knows because
you’ve inform ed him that you’re interviewing
him for [158]purposes of making a determination
about your opinion as to his future dangerousness;
is that correct?
A Yes.
Q Certainly the defendant knows that at some point
in the future he’s going to go to trial, right?
A Yes.
168a
Q And at some point you’re going to testify before
a jury about your opinion, correct?
A Yes.
Q Is that a fair statement?
A Yes.
Q Looking at your report regarding the future
dangerousness issue and the statistical factors
including when you analyzed his past crimes, I
believe you stated that this was non-contributory,
correct?
A Yes.
Q I believe or I ’m assuming you testified to that
because you thought all of his past offenses were
non-violent, correct?
A True.
[159]Q Is that based on self-reporting and maybe a
synopsis of the Defense’s notes?
A Mostly self-reporting.
Q I f you w ere inform ed that the defendant in
fact had a history of abuse towards women and
had been assaultive and com bative and had
threatened women with weapons before, would
169a
that alter that factor under this statistical factor
category?
A Yes.
Q So would that increase the probability then of
future dangerousness if that were a factor that
you would consider?
A That would increase the probability with that
population of victims, yes.
Q Now, you also mentioned that it was your opinion
that as a person becomes older that they are less
likely to commit violent crimes. Is that true?
A Yes.
Q Isn’t it true that even though it may be less
likely that it is a fact that people of a greater age
than thirty-three do in fact commit extremely
[160]violent crimes?
A Yes.
Q So you can’t rule that possibility out that an older
defendant would commit violent crimes, correct?
A No, we are talking about decreasing probability
and not impossibility.
170a
Q You have determined that the sex factor, that a
male is more violent than a female because that’s
just the way it is, and that the race factor, black,
increases the future dangerousness for various
complicated reasons; is that correct?
A Yes.
Q Now, as far as the socioeconomic factor, I believe
you said that the report of his working stability
was self-reporting?
A Yes.
Q Which decreased the probability, correct?
A Yes.
Q What if you had information that in fact that the
defendant wasn’t a steady [161]worker, that he
worked for someone who paid him in cash, that
he worked only sporadically. Would that increase
the probability more so than you initially stated
in your report?
A The second sentence says unstable by witness
report because one of the witness’ statement said
that he refused to work.
Q So that increases it?
A Yes.
171a
Q L et’s talk about environmental factors. In your
report you talked about the availability of victims,
that the victim pools become smaller in a prison
situation.
A Yes.
Q Would you agree with me though that in fact there
are victims available in the prison population?
A Yes.
Q Without a doubt that there are crimes that occur
in the prison population, correct?
A Yes.
[162]Q You worked in TDC yourself for several years,
correct?
A Yes.
Q Certainly you’ve been aware of instances where
an inmate was killed by another inmate, correct?
A Yes.
Q And incidents of guards being killed by inmates?
A Very, very seldom, but it has happened.
172a
Q Other people who are in the prison system for
various reasons have been killed before; is that
true?
A Yes.
Q So you can’t tell this jury that violent crimes do
not happen in prison because in reality it does
occur, correct?
A I ’m not telling the jury that it doesn’t.
Q A lso you m entioned earlier that there is a
prosecution —
A Unit.
Q Thank you very much. That a prosecution unit
is set up to prosecute people who commit crimes
in prison. Of course, [163]what happens is that
when they are prosecuted and found guilty and
are punished, they’re sent back to prison, right?
A Or remain in prison.
Q That’s what happens. They’re in prison and they
commit a crime and they’re prosecuted and they
go back to prison, right?
A Yes.
173a
Q L e t ’s talk about the factor o f availability o f
weapons which is also one of the factors that you
say would increase probability. Is it true that
weapons are available in prison?
A Yes.
Q Have you had occasion during your time working
in the prison system to see an almost incredible
variety o f weapons that can be fashioned by
inmates in prison?
A Yes.
Q In fact, they’re almost ingenious in what they can
come up with and what they can use to make a
deadly weapon; is that [164]not true?
A Yes.
Q They can use toothbrushes, toothpicks, and
fashion all kinds o f things that they use to injure,
assault, or maim other people; is that correct?
A Yes.
Q Let’s talk a little bit about drugs and alcohol in
prison. You have that as an increased probability
and that’s because, unfortunately, there are
drugs available in the Texas D epartm ent of
Corrections, correct?
174a
A Yes.
Q And it is a known fact, however it gets in there,
that there is a network of all kinds of illegal and
illicit substances in the Texas Departm ent of
Corrections, correct?
A Yes.
Q You talked about clin ica l fa ctors that you
consider when you make the assessment of a
continuing threat and the dangerousness issue.
You could not give an opinion basically because of
[165]insufficient data from the defendant’s self-
reporting; is that correct?
A From his version, not sufficient data. From the
eyewitnesses, it appeared deliberate.
Q So the more information you would know about
the time period, the thoughtfulness the defendant
put into committing his crime, or let’s just call
it the premeditation factor for lack of a better
word, that went into it, the number of intentional
acts it took to perpetrate his crime, all those are
important factors to consider when determining
the probability for future dangerousness, correct?
A Yes.
Q So the more deliberate the act, the more thought
that went into the act, the more awareness of the
175a
result of a person’s act, the less impulsive the act,
the more likely the person would be a danger and
violent in the future?
A Yes.
Q Would that be a fair statement?
[166]AYes.
Q The lack of remorse, the fact that a person showed
very little or absolutely no remorse for the results
of his action even for an extremely violent act,
would that show that that person has a greater
likelihood of being a threat in the future?
A Yes.
Q Talking about post-conduct behavior, things
he did after he committed the crime, you have
a category called fun. I don’t know if that’s a
standard category or whether it applies in this
case or not. I ’m not sure. You made a notation
about the fact that you had information that the
defendant was laughing. I f you had information
that the person thought it was quite humorous,
the crim e that he com m itted, which was an
extremely violent and heinous act, and even after
seeing the result of his handiwork with people
bleeding, people scream ing, children crying,
children running over to their [167]mother and
hugging her before she died, would that indicate
176a
to you that that person with no remorse would
have a greater probability of being a danger in
the future?
A Yes.
Q In your report you indicated, and I believe you
testified to the jury that you believed that the
defendant if incarcerated would not — there
would not be the probability about him being a
continuing threat to society. I believe that was
your opinion.
A No.
Q That was not your opinion?
A A decreased probability but there is a probability.
Q So there’s a probability that the defendant would
be a continuing threat to society?
A Right, but he would be on the low end of the
continuum. I never rule out any probability.
Q Then there is a probability that he would be a
continuing threat to society?
[168]AYes.
MS. HUFFM AN : No other questions, Doctor. Pass
the witness.
177a
R E D IRE CT EXAM IN ATIO N
BY M R. EASTERLIN G :
Q First of all let’s make it clear whether or not
you’re a psychologist or a psychiatrist and what
the difference is so the ju ry understands. Are
you a psychiatrist?
A I ’m a psychologist.
Q Tell the jury what the difference is between an
psychologist and a psychiatrist.
A About two hundred dollars an hour.
A psychiatrist is a medical doctor. They go to
medical school. The last three years they have
to specialize and they are trained in psychiatry
which is the medical diagnosis and treatment of
psychiatric disorders. A psychologist undergoes
approxim ately the same num ber o f years in
tra in in g but [169]specia lizes in p sych ology
and does not use medication to treat but uses
established psychological principles and not
medical intervention.
Q So it ’s the medical doctors, the psychiatrists
from the American Psychiatric Association that
don’t believe in coming in and testifying in death
penalty cases?
178a
A I don’t think it’s that simplistic. It simply says
that you have to examine the person and know the
basis of your prediction and that it’s not enough
to predict. You have to also explain the basis for
that prediction so that the trier o f facts can give
the appropriate weight to your opinion.
Q But the American Psychological Association has
never taken the position that there’s something
wrong with you coming in here and testifying,
have they?
A No. The American Psychological Association’s
g u id a n ce is to use e x is t in g k n o w le d g e ,
p sych olog ica l [170]know ledge, the b od y of
knowledge that we have, and apply to the specific
questions. It warns us not to exaggerate our
opinions or overclaim. That’s why I ’m very careful
to state my opinions in terms of probabilities and
not black and white type of assessment.
Q I f I would have asked you to do this evaluation
and you would have given me the opinion that he
was going to be a high risk or there was a high
probability, then that would have been the opinion
we all would have had to live with, right?
A Correct, because it would have been based on the
facts of the case.
Q You didn’t give your opinion to me because I
wanted you to give that opinion or Mr. Buck
179a
wanted you to give that opinion or Mr. Guerinot
wanted you to give that opinion. You gave us your
professional experienced opinion; is that correct?
A C orrect. N obody interfered with my opinion
nor lobbied me. I w rote my [lT ljreport and I
submitted it the way it is.
Q What is the I.Q. of Duane Buck that you know
from your testing?
A I did not do the testing m yself but the tests from
some other psychologist shows 74 ,1 think.
Q Could it be 72 to 74?
MS. H U F F M A N : I ’d object to the leading, Your
Honor.
THE COURT: Sustained.
BY MR. EASTERLIN G :
Q I f it was around 74, is that on the low or high end
of I.Q.?
A That would be what is called the low end of the
borderline range.
Q Do you feel that had some effect on what Ms.
Huffman pointed out, that he was a questionable
informant about information and details?
180a
A That opinion came from his report to me that
he could not remember details up to a certain
point and that is where I said that his reliability
is questionable, the lack of recollection of details
[172] after a certain point.
Q You then used facts that you learned from the
police report and the witnesses’ statements about
the details of the murders, correct?
A Yes. The witnesses’ statements were detailed
enough to pick up w here he left off. It was
very beneficial for me to read that and to make
a judgm ent in this case, and the w itnesses’
statements were responsible for many o f the
favorable judgments I made of this defendant.
Q Now, you were aware that there was some history
of some alleged assaultive behavior to a woman.
You were aware of that. You are still aware of it
today.
D oes that change your opinion in any way
concerning the fact that he’s at the low end of
probability of committing future acts of violence?
A No, my opinion would be the same. Many of
these factors that are true to him now would
not be true in prison. When you’re deciding on a
person’s dangerousness, you not only look at the
[173] factors that contribute to dangerousness
but you also look at where the people will be and
181a
the facts of that environment. You look at those
factors and know that many o f those factors will
be controlled in prison. They cannot be ruled out
completely but they are controlled much better
in prison than in free society.
Q It’s very unlikely that he would have a relationship
with a woman in the penitentiary; is that true?
A That would be unlikely.
Q And that would reduce the victim pool that you
talked about, correct?
A C orrect. Particu larly in his case where the
assaulted victim s w ere always involved in a
romantic relationship. When that victim pool is
removed, the probability of him being assaultive
towards other people as shown by his previous
prison record would be expected to be good.
MR. EASTERLIN G : May I approach the witness,
Your [174]Honor?
THE COURT: Yes, sir.
BY M R. EASTERLIN G :
Q You talked about weapons with Ms. Huffman,
about weapons in prison. Do inmates walk around
with .22 rifles in prison?
182a
A No, they are no guns in prison.
Q Do they walk around with .12 gauge shotguns in
prison?
A No.
Q The kinds of things she’s talking about is like an
inmate getting a fork from the cafeteria and filing
it down and making it into a little knife. That’s
the kind of thing she’s talking about, correct?
A There are no more forks, so it’s toothbrushes and
pens and bones. There are no more forks.
Q Does Duane Buck have any history of using a
knife or that type of deadly weapon with anybody?
A No, not when he was in prison and in [175]jail.
Q In fact, there is no data or record indicating that
Duane Buck has ever used a knife or a toothbrush
or a razor blade all the time that he was in the
County Jail or in TDC, correct?
A True.
Q Ms. Huffman talked to you about there being no
remorse immediately after the crime. Let me
talk to you about your opinion about that. If the
defendant cried in open court when the witnesses
were testifying, do you have an opinion about
whether or not that’s remorse?
183a
A Yes.
Q W hat is that?
A It’s remorse.
Q That, of course, would decrease probability under
all the facts that you talked about concerning
future violence?
A Yes.
Q To make sure that the ju ry understands, you’re
saying that it’s at the very low end of probability
that he w ould com m it any crim inal acts o f
violence in the [176]prison population where he
would be incarcerated; is that correct?
A Yes.
Q You realize that the issue they have to decide,
the ju ry has to decide, is the phrase beyond a
reasonable doubt in front of probability in that
issue, correct?
A Yes.
MR. EASTERLIN G : Pass the witness, Judge.
MS. H U FFM A N : No questions.
(At this time the witness is excused from the
courtroom.)
184a
[239]right to proceed first and last.
ARGU M EN T ON BE H A LF OF TH E STATE
BY MS. HOOD:
Ladies and gentlemen of the jury, you’ve heard
a lot of evidence in the second phase of the trial.
My job at this point in time is to explain what
some of that evidence means. Then I ’m going to
sit down and Mr. Easterling will address you, and
then Ms. Huffman and Mr. Guerinot will address
you.
I want to talk with you right now about these
documents that have been admitted in evidence
through the fingerprint person that was here
today, Deputy Schield. You’re welcome to take
any and all of this back into the ju ry room with
you. I just want to touch upon some of the things
we think are important.
State’s No. 66 is a Penitentiary Packet that is
a record of this defendant’s trips to the Texas
Department of Criminal Justice. It’s [240]been
proven up to you, but there is a photograph
in here and his fingerprints are in here. Most
importantly, it reflects two Judgments that were
issued against him. You can take a look at this if
you care to, but I ’m going to tell you briefly what
these documents say.
185a
In Cause No. 555487 there is a Judgment for a
delivery of cocaine case where he received ten
years in the Texas D epartm ent o f Crim inal
Justice. What also is important regarding that
conviction — what I ’d like to do is refer to State’s
No. 70 which is being marked for demonstrative
purposes only. It’s not in evidence. It’s not being
admitted. It’s a record of what we have here on
the table. Let’s look at this first. What you have in
that file is a Judgment and Sentence for carrying
a weapon, an unlawful carrying o f a weapon
case. The offense was committed March 1,1989.
The date on the Judgment is March 16,1989. He
received four [241]days in the Harris County Jail
and a fine.
You w ill note that soon a fte r th ere was a
possession of a controlled substance case. The
date the offense was committed was March 25,
1989, and on M arch 27, two days after that,
he appeared in court and received four years
deferred adjudication-type probation for that
offense.
You will notice that after he received his deferred
adjudication probation that he com m itted an
offense. That happened on O ctober 9, 1989,
failure to identify himself to a police officer. For
that offense, on November 3rd, 1989, he received
thirty days in jail. However, go back to the line
ahead of it and you will see that at that time he
was adjudicated, taken o ff of the probation that
186a
he received, and on November 1,1989, he received
three years in the Texas Department of Criminal
Justice.
I f you look forw ard and go down [242]to the
bottom line and see the delivery of controlled
substance case. He committed that offense on
February 12,1989, and on February 27,1990 that
he received ten years in the Texas Department
of Criminal Justice.
State’s No. 70 is for demonstration purposes only
and is a summary of what these documents show.
You’re welcome to look at this and what it shows
in summation.
State’s No. 68 is a Judgement and Sentence in
the failure to stop and identify to a police officer.
State’s No. 67 is a Judgement and Sentence for
carrying a weapon case.
Also in evidence, you’re welcome to take a look at
them, State’s Exhibits 59, 60, 61, 62, 63, and 65.
You’ll recall from the testimony that these are
exact duplicates of jail cards, the booking records
of the defendant. It will give you a little bit more
information regarding this defendant and all the
times that he appeared in court.
[243] What we’re asking you to do is take a look at
these documents, if you care to. You certainly can
take them into consideration when you’re doing
your deliberations in this case. Thank you.
187a
ARGU M EN T ON B E H A LF OF TH E DEFENSE
BY M R. EASTERLIN G :
May it please the Court, Your Honor, ladies and
gentlemen of the jury, the State, family members,
all parties involved in this case.
You are going to have to make the most important
decision that you’ve ever had to make in your life.
I ’ll be right up front with you. I am asking you
to spare this man’s life. The State is going to ask
you the opposite. Ya’ll knew this was coming and
now you’ve got to make the decision.
I am asking you to spare his life based on the
evidence and not upon sympathy or not upon any
other emotions [244]that are generated in these
kinds of cases but only on the evidence.
You will remember that we talked to each one of
you and you said that you would be fair. You said
that you would be open-minded. You said that
you would answer these issues according to the
evidence and whether they were proven to you,
and particularly No. 1, that issue which I ’m going
to be talking to you about. I f they were not proven
to you, you would do what the law requires you
to do. If they don’t prove the case by evidence,
you’ve got to answer the issues accordingly.
188a
There’s no doubt about it. E verybody in this
courtroom feels bad about what happened.
E verybody knows it’s a tragedy. There were
some lives lost and some lives changed forever.
Children have been changed forever. There’s no
disputing that. I don’t apologize for Mr. Buck’s
behavior because it was bad. There’s no question
about it, but does it fit into the [245]special
category where he should be killed by the State
of Texas?
The answer from the evidence is no for the
following reasons: You’ve got to look at everything.
You’ve got to keep this big picture in your mind
here. We know that the first issue is about trying
to determine whether they have proven beyond
a reasonable doubt — the highest burden that we
have in this country — that there is a probability
that Mr. Buck will commit future acts of violence
that are a continuing threat to society.
Remember it’s a plural. It’s acts. It’s not one act.
It’s acts, plural acts of violence, and that he is a
continuing threat to society. It’s not a particular
threat but a continuing threat to society.
Have they proven that? The answer is no. They
just haven’t met their burden of proof. Anybody
can say it’s possible that something may happen
but we can’t predict the future. Sure [246]it’s
possible that in prison Duane Buck may push
somebody else. Sure it’s possible that in prison
189a
that he may punch another inmate. Sure it’s
possible that he might get — what was it they
described? They don’t have any forks anymore,
but let’s say he gets something and sharpens
it into a weapon and shanks somebody with it.
Sure it’s possible, but what do we know from the
evidence? That it probably will not happen.
W hy will it probably not happen? You can look
at this and see all of the months and years that
he’s been in the County Jails and in the prison
system and you will not see one single incident of
disciplinary problems. Not even cussing a guard
is in evidence. Does that tell you something? Of
course it tells you something. It tells you that he’s
controllable in the prison population.
Living in a cage with no freedom, with no say so
about where [247]you’re going, somebody else
telling you what to do, what you’re going to eat,
when you’re going to eat, not ever getting to walk
with his kids in the park, not ever getting to do
anything outside the walls of the prison barbed
wire or brick, that’s punishment. Each one of you
told us that a life sentence is punishment.
What this tells us about Duane Buck is that he is
a common criminal. There is not one single thing
in here indicating violence. He was carrying a
weapon. I would submit that half the people in
Houston do that.
190a
And then he had a possession of drugs, and he
didn’t tell his right name to a police officer. Is
that violence? Of course not.
Possessing drugs, is that violence? Of course not.
Selling a small amount of drugs to an officer, is
that a small-time criminal or is that a vicious and
violent criminal? He’s a small-time [248]street
criminal.
Duane Buck can work on tractors in prison. He
can make license plates. He can give something
back when he’s in a s tru ctu red , p ro tected
society where there is no probability that he is
going to harm anybody. We know that from his
past record. We know that from his character
evidence. We know that from his family members
and other people who said they were shocked
when this happened. We had no idea he was
capable of something so horrible. It was a one
time aberration. It was violent. There was no
doubt about it, but it’s one isolated event in almost
thirty-four years of this man’s life. That’s what
they’re asking you to answer these questions on
in such a way that he would be executed.
What else do we know? They didn’t bring in one
single police officer out o f all these incidents to
come in here and say Duane Buck is a bad person,
that he was rough with me, that [249]he gave
me a lot of problems, that he spit on me, that he
191a
kicked me. There was not one, not one single one.
You can imagine all the police that they could
have called, all the prison guards, all the Deputy
Sheriffs that they have at their disposal to talk
to. Believe me, if they could find something, they
would have brought them in. That’s something
you have to look at.
The only person that they brought in was Vivian
Jackson. The results of the evidence about the
dependent personality disorder that the two
experts described, that is, that he can’t stand
re jection and h e ’s had a bad tim e w ith his
relationships when they end because he can’t let
go. We know that. We know that was the setting
of what happened out there.
The State can’t deny that this case began out of
jealousy, that it began out of passion and emotion.
He did horrible acts because of it, but [250]they
can’t deny the fact that he was agitated and the
events were clearly provoked and made worse by
the atmosphere with everybody talking trash to
each other and pulling knives. Debra Gardner
pulled a knife on him. I ’m not trying to excuse his
behavior. I ’m not trying to say that, but it is an
explanation for his behavior. That’s what you have
to look at when you’re considering these issues.
This was a bad family situation that developed
and it turned into a tragedy.
192a
I ’m sure Ms. Huffman is going to go through
these seventeen deliberate steps. He did take
these deliberate steps to com mit the crime.
Nobody’s denying that, but he did it all within
a short period of time while he was under the
influence of this extreme jealous passion that he
had. It’s never going to happen again, an act of
violence is never going to happen that’s anywhere
close to this, and it’s not even probable that he’s
going to hurt anybody [251]again.
This man will be thirty-four years old in July, a
couple of months from now. He’s going into prison
as a life sentence and he’s going to do his time
and not bother people. He’s going to be punished
for it. He’ll be suffering. Of course he will be. It’s
not a country club. It’s a cage. It’s iron bars. It’s
handcuffs.
On this issue we brought you two very professional
people that were appointed by the Honorable
Judge Collins. That’s provided for a reason.
That’s to level the playing field. That’s to make it a
fair trial. That’s to assure due process. You heard
from these experts who deal with these people
day in and day out over the years. Dr. Quijano
testified he worked for the prison system for five
years and he’s done this kind of thing for years.
What is his opinion? He said that there is a very
low probability that he would ever commit an act
of violence.
193a
[252]That’s an expert opinion and you don’t have
to take it alone to decide this issue. It ’s just
another piece of evidence that shows you that the
State hasn’t proven it beyond a reasonable doubt.
Dr. Quijano is a credible witness and nothing they
could do would discredit him.
Dr. Patrick Lawrence is also extremely qualified
and very experienced. He has seen thousands of
murderers and tells you that no way does Mr.
Buck fit the psychopathic murder profile. In his
opinion there is also no probability that he would
commit criminal acts of violence in the future.
You can’t say that you’re going to guess that he’s
going to do it or that he might do it or he possibly
could do it in answering this issue. You can’t do
that. That’s not the law. Judge Collins has told
you that you are not to be swayed by sentiment,
conjecture, sympathy, prejudice, public opinion or
public feelings in answering [253]Issue Number
One. You answer it based on the evidence, and
I would submit that the State hasn’t proven it
beyond a reasonable doubt. They haven’t tipped
the scale far enough. The answer under the law
and the evidence to Issue Number One is no.
There is another thing I ’d like to talk about. With
all the resources of the State, they have the right
to call in their own experts to come in and say
bad things about Duane Buck. They could have
called people up here to say that in their opinion
194a
he would commit criminal acts of violence in the
future but they didn’t do that. It is significant that
they didn’t do that. You can deduct from this that
M S. H U F F M A N : I ’d ob ject to them m aking a
deduction from something that’s not in evidence.
BY MR. EASTERLIN G:
You can make a reasonable [254]deduction why
they didn’t bring anybody in here. Use your
common sense. It doesn’t take a genius to figure
out why they didn’t have anybody here, does it?
They didn’t have one single m em ber o f the
community, not one person who came in here
and said that he had given them a problem in his
thirty-three and a half or more years. They could
have brought somebody else in, couldn’t they? But
they didn’t. You can use your common sense and
figure out why they’re not here, can’t you?
T h ese exp erts are independent. T h ey are
impartial. They’re paid with governm ent tax
dollars. They’re not paid by me. T hey ’re not
paid by Mr. Guerinot. They’re not paid by this
man. Their opinions are valid and they need to
be looked at.
If for some reason, and I ’d have to respect it, you
decide that Issue Number One should be answered
195a
yes beyond a reasonable doubt, then there’s an
issue that you have to look at. And if [255]you’re
there in these deliberations, they ask you if there
are sufficient mitigating circumstances where life
in prison is more appropriate than death.
Now, mitigating can be anything anyone thinks it
is. There is no particular definition for it. It could
be many factors. It could be the totality of the
circumstances. Most of you answered that just
one thing wouldn’t be enough, but here you have
a whole lot o f factors. He lost his mother when he
was eleven years old in a car accident. His dad
went to prison in ’73. He was an ex-convict before
Duane even got out of High School. His dad has
been arrested again and again and again. We
have cocaine abuse and we have alcohol abuse.
Then we have the setting of the crime itself, the
fact that it was a crime of passion and jealousy.
So obviously one of these may not be enough but
if you look at the whole picture, if you put it all
together, it could be [256]sufficient and we would
submit it is sufficient where life in prison would
be the more appropriate punishment.
Answering these questions in a way whereby Mr.
Buck receives the death penalty isn’t going to
bring anybody back. It’s not going to bring back
their mother. It’s not going to bring Kenneth
Butler back. Nothing is going to change the fact
that Phyllis got shot. It won’t change anything.
196a
We don’t react to crimes that way. We decide
them on the evidence. I ’d ask you to spare his life
based on the evidence. Thank you for your time
and attention.
ARGU M EN T ON B E H A LF OF TH E STATE
BY MS. H U FFM AN :
Ladies and gentlemen, I too thank you for the
attention that you have paid even at this late hour.
My comments are going to be brief today. You’ve
heard all the evidence in the [257]case and nowit
becomes your job to decide what the fate of this
defendant will be. You’ve all indicated that this
is probably the most important decision that you
will ever make in your life and I wouldn’t disagree
with that.
W hat your jo b is now is to go back in and
reconsider the evidence you’ve heard and answer
those two questions. You as the twelve jurors
absolutely will know what the results are going
to be based on how you answer the questions.
You’re not responsible for what’s going to happen
to Mr. Buck. The State of Texas has certain
laws. You twelve people happen to be reasonable
people who met the standard to be on this jury
in this kind of a case and you are simply fulfilling
your duties as citizens, as the jurors in this case,
and that’s all we’re asking you to do. All we’re
asking you to do is make an objective decision
197a
based on the evidence. You don’t have to go back
and feel guilty about your decision or [258]feel
guilty about what’s going to happen to Mr. Buck
in the future because you just don’t have to feel
like that. You go back there and you make your
decision based on the evidence. The evidence is
overwhelming in this case.
You have two things to consider. First of all, you
have to decide if Mr. Buck will be a continuing
threat to society. Is he going to commit criminal
acts of violence in the future such that he is a
continuing threat to society? More specifically,
is there a probability that he’s going to continue
to be a threat to society?
We talked about what probability meant, a
probability. We told you that when there is no
legal definition, that you use your common sense.
A lot of you talked about the fact that it meant
more likely than not. Some of you had varying
definitions but basically you felt it meant more
likely than not.
Every one of you told us that there might be some
cases where based [259]just on the evidence,
the facts of the capital murder itself, that they
could be so overwhelming, so heinous, so violent,
so thought out, so premeditated, so blatant, so
violent, that they in them selves would cause
you to believe that the defendant would be a
continuing threat to society. I would suggest to
you that this is exactly what you have in this case.
198a
You have even more evidence though because you
do have a history in this case. You have a history
of trips to the penitentiary, carrying a weapon,
a h istory of being involved in the crim inal
justice system with no sign whatsoever of being
rehabilitated. The defendant was given a chance
on probation at some point but he got in trouble
again and he went back to prison, served some
time in prison and then was out of prison before
his sentence was over which you can tell from the
evidence that he was out before his sentence was
over. Then he’s out of [260]prison and he commits
a capital murder.
These are the things you know about the defendant
that tell you something about his character and
his ability to follow the rules and his desire to
change himself or rehabilitate himself.
You heard from Vivian Jackson who told you
that he abused her, that he threatened her with
weapons, that he beat her, and he got away with
it over the years through coercion and threats.
What else do you know? You heard from the
D efense’s own experts that they called who
prepared reports to aid you in the defense of
this man. You heard from Dr. Quijano, who had
a lot of experience in the Texas Department
of Corrections, who told you that there was a
probability that the man would commit future
acts of violence.
199a
M R. EASTERLIN G : That’s a misstatement of the
evidence. He said there was a low probability and
not a [261]probability.
TH E COURT: You’re the fact finders. You heard the
evidence.
BY MS. H U FFM AN :
I ’m only telling you what I heard. I gave him
every opportunity to explain it, to be honest with
you, and I thought what he said was that he was
at the low range but the probability did exist that
he would be a continuing threat to society. You
can go back there and discuss what you heard but
I would submit to you that’s what the man said.
He’s an expert in the field.
The other gentleman, Dr. Lawrence, he told you
that he couldn’t make any guarantees.
That’s what you ju rors are allowed to make
you r d eterm in a tion on as to w h ether the
probability exists that he would be a continuing
threat to society. That’s the way the law is set
up. I f the State wanted to have a panel [262]of
psychiatrists and psychologists in here to make
that determination, that’s what there would be.
That is not the law though. The law says that you
twelve people are reasonable citizens and you will
make the call. You will make the ultimate decision
about whether or not a defendant is a continuing
threat to society.
200a
We talked about premeditation some too. You
heard a lot of evidence that tells you that this
defendant premeditated this crime. That’s one of
the factors that the doctors have said is a serious
consideration when determining the probability
of future dangerousness. This was a completely
premeditated crime. I ’m not going to go over in
detail with you about these seventeen deliberate
steps so I hope you remember that since it was
just yesterday, but I want you to think about
those marks on the board and think about every
step that this defendant took when he made his
conscious decision to commit [263]his act.
Think about his lack of remorse which is also
another im portant fact that the doctor told
you you could consider in determ ining future
dangerousness. It tells you something about the
person.
It’s unquestioned that he was laughing about what
he had done. You heard Deputy Warren testify
that when he was transporting him that he told
him that the bitch deserved it. He told you that
the defendant said something about the fact that
he had been forgiven by God even before he went
over there. That tells you something about the
person. Certainly that’s premeditated because
he knew exactly what he was going to do before
he went over there. I think that’s a pretty scary
person who thinks that they can do absolutely
anything that they want to do. Does that indicate
201a
to you that that person is a continuing threat to
society when they think they have absolution
for something [264]before they commit the most
heinous crimes you can think of? He thought that
he was absolved from that responsibility.
Think about how scary that is. This is what
you’re dealing with with this defendant. These
are the things that you think about when you’re
determining if he’s a continuing threat to society
and what your answer should be.
Think about the victim s he chose to kill and
shoot at that day. The Defense has told you that
the motivation for the crime was jealousy and
anger. Well, he had plenty of time to think about
it. We all have had disappointments in life. W e’ve
all probably been jilted by a man or a woman or
have been disappointed because something went
w rong in our life. That’s life. That just happens.
That’s the way it is. You don’t respond in the
manner which this man has responded in.
On top of killing those people, [265]he also shoots
his own sister, the woman he grew up with, the
woman he knew. He knew she had a family. He
knew all about her and yet he was the kind of
person who could point a gun at her chest, watch
her face, pull the trigger, and then go on to
commit more acts within just a few minutes.
202a
Think about what kind of a person it took to do
that. Think about when he shot Phyllis Taylor. At
that time he was a continuing threat to society
when he went on to shoot the other people, was
he not? He shot Kenneth Butler. A fter he shot
Kenneth Butler was he a continuing threat to
society? I f Debra were here, she’d vouch for that
because then he shot Debra Gardner.
This is a man that made deliberate decisions.
Think about this. A fter you had killed a person,
after you had shot someone at close range with
a gun we could imagine the type of damage it
would do, the person is spitting up [266]blood,
gasping for air, and you see the results of your
handiwork, saw the results of what he did, and yet
he’s the type of person that continues his assault.
He continues his path to the next victim, to the
next victim, to the next victim.
That tells you about this person and is something
you should consider when you’re determining
whether or not he’s a continuing threat to society.
These are the type of factors that I ’m asking you
to consider when you make that determination.
You know that i f he goes into the general
population in prison that he is a risk with alcohol
and with drugs. The experts told you that. You also
heard from the evidence that alcohol and drugs
are available in prison. It’s a sad commentary on
our system but it’s the truth. You know all these
203a
things. You know those risk factors are going
to be there. As we have discussed, everybody in
society has the right to be [267]proteeted from
this defendant wherever he may go.
He has proven to you that he is going to be a
continuing threat. I don’t think there’s any way
that reasonable people can look at this defendant’s
background and the evidence in this case, and his
lack of remorse, and his deliberateness of action,
and argue reasonably that he would not be a
continuing threat to society. Remember it’s only
a probability that he will be a threat to society.
I think the answer to Question Number One is
clearly yes.
Briefly with regard to Issue Number Two, you
know your job is to look at all of the evidence. We
talked about this on voir dire too. There is simply
nothing there. Think about the facts of what this
defendant has done, the enormity of his crime, the
enormity of what he has left behind, the results
of his crime, and you weigh the threat that this
man is to society, there is nothing you can find
in the evidence that [268]mitigates towards a life
sentence for this defendant. It’s just not there.
Everybody has had hardships in life. Everyone
has had hard times. Probably everybody here
has had a parent who has died or someone close
to them who has died that made their life sad.
Everybody has had bad times. A lot of people
204a
have had a parent or maybe even two parents
that did not live up to their expectations. That
does not give you a free ticket to kill and it does
not excuse your behavior.
Mr. Easterling argues to you about cocaine
and alcohol dependency. There is no evidence
whatsoever that this defendant was under the
influence of any alcohol or cocaine at the time
he committed the offense. I believe one witness
stated he had a beer in his hand when he first
came to Debra’s house the first time. That’s the
only evidence of that. He doesn’t get points for
that.
W hether he has a cocaine or alcohol problem or
otherwise, you may [269]think that because he
has been arrested for possession of cocaine. On
the other hand, he also sold cocaine. That doesn’t
prove anything. There’s no real evidence of that
other than his self-reporting to his expert.
He has low intelligence but he is not mentally
retarded. He’s around the average intelligence
group that you would find in the prisoner jail
population according to the expert. You know that
if a person is in the lower range of intelligence
that they have a higher likelihood of being violent.
That’s what their own expert told you, so when
you weigh that it balances out. He may have a
little lower intelligence but he’s more likely to be
violent.
205a
There is absolutely nothing that’s in evidence that
would call for you as the jury to give this man
some type of break because he doesn’t deserve
it. He made a lot of choices almost two years ago
and he knew the results of what his choices were
going to be. He [270]knew the victims. It wasn’t
anything to do with an impulsive act where he
didn’t have time to think about what the results
were going to be or what the aftermath of his
crime was going to be. He knew Debra Gardner.
He had lived in the house there with her. He knew
that she had children. He knew they were going
to be left behind without a mother to raise them
and that they’d have to live with different family
members. He knew that his sister had children.
Maybe he didn’t know that much about Kenneth
Butler but at least he knew he had a brother. He
knew he didn’t deserve to die.
He knew when he shot D ebra G ardner that
she was begging for her life. He knew her own
children were watching her and he knew that her
own children were begging him not to kill their
mother. What kind o f man would do that? He
knew there were younger children involved that
loved Debra Gardner. You heard about the little
[271]four-year old girl that the officer believed
was also her daughter. He knew that. He knew
that she was begging him not to kill her in front
of her children, begging for her life, and yet he
killed her. That tells you what kind of man he is.
206a
Society encompasses a lot of people. Society has
the right to be protected from people like Duane
Buck. Cases like this are why the State of Texas
has the death penalty because people like Duane
Buck make choices in their life. He’s done nothing
for society. He’s a burden to society. You’ve seen
nothing that shows that he can give anything to
society. He’s given nothing, nothing at all except
to kill and leave in his wake a family who grieves.
That’s all that’s left.
I ’m asking you to do the job that you’ve been
selected to do. I ’m asking you to go back to that
jury room and to fairly look at the evidence and
look at this man very carefully and [272]think
about the acts that he did, the intentional and
deliberate acts he committed, and I think in
your heart you will find that he deserves exactly
what the evidence shows, what it shows you that
he deserves, and that is a yes answer to the first
issue and a no answer to the second issue. I would
ask you to answer those questions in that way.
Thank you very much.
(At this time the ju ry is retired to deliberate.)
207a
A L L JU RY NOTES, M AY 6-7,1997
REQUEST OF TH E JURY,
AN D REPLY OF TH E COURT
F ILE D 5/6/97
Can we talk about parole with a life imprisonment?
/s/ Michael D. Rune
Michael D. Rupe
[COURT STAM P OMITTED]
Refer to the charge.
Judy Collins
208a
REQU EST OF TH E JURY,
AN D REPLY OF TH E COURT
F ILE D 5/6/97
Can we please get a list o f all evidence submitted in
this case?
/s / Michael D. Rupe
Michael D. Rupe
[COURT STAM P OMITTED]
There is no “ list.”
Judy Collins
209a
REQU EST OF TH E JURY
F ILE D 5/6/97
Can we please get the psychology reports submitted
today and police records submitted today?
/s / Michael D. Rupe
Michael D. Rupe
[COURT STAMP OMITTED]
210a
REQUEST OF TH E JURY,
FILE D 5/7/97
Can we please get the video tape submitted?
/s/ Michael D. Rupe
Michael D. Rupe
[COURT STAMP OMITTED]
211a
PR E SS R E LE A SE , O FFICE OF TH E TE X AS
ATTO RN E Y G E N E R A L, U.S. SU PREM E COURT
GRANTS STATE’S M OTION IN CAPITAL CASE,
JUNE 5, 2000
Office o f the Attorney G eneral News Release Archive
Monday, June 5, 2000
US SU PR EM E COURT GRAN TS STATE’S M OTION
IN CAPITAL CASE
Case Rem anded for a New Sentencing H earing
AUSTIN - Texas Attorney General John Cornyn today
said the United States Supreme Court has granted a
request by the State of Texas that the death sentence
imposed in the capital murder case against Victor Hugo
Saldano be vacated and remanded for a new sentencing
hearing. The new trial will concern only the issue o f
punishment, not the judgment of guilt, which remains
intact.
Saldano was convicted in 1996 of capital murder in Collin
County for the murder of Paul King. Evidence presented
at the trial showed that Saldano and an accomplice used
a handgun to kidnap King from a grocery store parking
lot. He was taken to a secluded spot on a country road
where Saldano fatally shot King five times, including once
in the head at point-blank range. Saldano stole Kings
wallet and watch.
212a
“ There is no doubt o f Mr. Saldano’s guilt. A ju ry properly
convicted him o f capital m urder and that conviction
remains in place. During the sentencing phase of the trial,
there was sufficient evidence submitted to the ju ry of Mr.
Saldano’s ‘future dangerousness,’ justifying the imposition
of the death penalty,” Cornyn stated. “ Unfortunately,
however, evidence o f the defendant’s race was also
introduced before the jury by a district attorney as a factor
for the ju ry to weigh in making its determination. This
violated Mr. Saldano’s constitutional right to be sentenced
without regard to the color of his skin.”
Cornyn also said, “W e’ve been conducting an audit over
the past couple of months. W e’ve identified eight other
cases that may be similar. We will release our findings
by the end of the week. We will continue to vigilantly
monitor all death penalty cases. Our goal is to assure the
people of Texas that our criminal justice system is fairly
administered.”
- 30 -
Contact Mark Heckmann, Heather Browne, or Tom Kelley
at (512) 463-2050
213a
PR E SS R E LE A SE S, O FFICE OF TH E TE X A S
ATTO R N E Y G EN E R A L, STATEM EN T FROM
A TTO R N E Y G E N E R A L JOHN CO RN YN
REG A RD IN G DEATH PE N A LTY CASES,
JUNE 9, 2000
Office o f the Attorney General News Release Archive
Friday, June 9,2000
S tatem ent fr o m A tto rn e y G e n e ra l Joh n C orn yn
regarding death penalty cases:
“It has been eight weeks since I first identified problems
associated with the testimony of Dr. Walter Quijano, an
expert witness in the capital murder trial o f Victor Hugo
Saldano. As I explained in a filing before the United States
Supreme Court on May 3, it is inappropriate to allow race
to be considered as a factor in our criminal justice system.
On June 5, the United States Supreme Court agreed. The
people of Texas want and deserve a system that affords the
same fairness to everyone. I will continue to do everything
I can to assure Texans of our commitment to an equitable
criminal justice system.
“After a thorough audit of cases in our office, we have
identified eight more cases in which testimony was offered
by Dr. Quijano that race should be a factor for the jury to
consider in making its determination about the sentence
in a capital murder trial.
“Six of these eight cases are similar to that of Victor
Hugo Saldano. We have sent letters to opposing counsel
and to the local prosecutors involved advising them of our
214a
findings. Two of these eight cases are dissimilar to the
Saldano case. In one, the defendant is not a member o f a
racial group included in Dr. Quijano’s statistical model.
In the other, the prosecution did not introduce race as a
factor.
“ In addition, my office has reviewed case files for all
executions in Texas since 1982 and we have not found
any cases in which a defendant was executed on the basis
of this kind of testimony by Dr. Quijano. Also, we have
reviewed the cases of all inmates currently scheduled for
execution and none of those involves this kind of testimony
by Dr. Quijano.
“Additionally, local prosecutors have been advised to
review their cases that have not yet reached the attorney
general’s office.”
- 30 -
Contact Mark Heckmann, Heather Browne, or Tom Kelley
at (512) 463-2050
215a
Office o f the A ttorney General News Release Archive
Friday, June 9, 2000
AUSTIN - Texas A ttorney General John Cornyn offers
the following information on capital cases that involved
Dr. Walter Quijano’s testimony using race as a factor to
determine future dangerousness.
Gustavo Julian G arcia, C ollin County, cause num ber
366-80185-91
Case status: pending in federal district court on habeas
corpus review
Convicted of capital murder on Decem ber 6, 1991 and
sentenced to death. Garcia shot and killed Craig Turski
while robbing a liquor store on December 9,1990, in Plano,
Texas.
Garcia confessed in writing to being the shooter. Garcia
also confessed to being involved in the capital murder of
Gregory Martin on January 5, 1991. Martin was killed
during a robbery o f a Texaco station in Plano, Texas.
Eugene A lvin B roxton , H arris County, cause num ber
599-218
Case status: pending in federal district court on habeas
corpus review
Convicted o f capital m urder on A pril 30, 1992 and
sentenced to death. In May of 1991, Broxton forced himself
into the Houston hotel room of Waylon and Sheila Dockens.
216a
Broxton bound, gagged, pistol-whipped and then shot the
couple. Waylon Dockens survived.
Sheila did not. At the punishment phase o f Broxton’s
capital murder trial, evidence was introduced that Broxton
had been charged with the capital m urders o f Gary
Stuchwisch on April 6, 1991, Gordon Miller on April 19,
1991 and A lbert K rigger on May 16,1991.
John Alba, Collin County, cause num ber 219-81215-91
Case status: headed to F ifth C ircuit Court o f Appeals
for review
Convicted of capital murder on May 1,1992 and sentenced
to death. Alba shot and killed his wife Wendy Alba, after
breaking into the home of friends where Wendy fled after
leaving Alba. Alba also shot Wendy’s friend several times,
but she survived.
M ichael Dean Gonzales, E ctor County, cause number
D-23,730
Case status: pending in federal district court on habeas
corpus review
Convicted of capital murder on Decem ber 7, 1995 and
sentenced to death for killing Manuel and Merced Aguirre.
In April of 1994, Gonzales entered the Aguirre’s home and
stabbed Manuel and Merced to death. A microwave, VCR,
camera, pistol, and stereo were found missing. There was
no sign of forced entry. Gonzales was arrested 15 days
after the murders.
217a
Gonzales later confessed to a jail guard, who was his
cousin, that he killed the Aguirres.
Carl Henry Blue, Brazos County, cause num ber 23,293-
272
Case status: pending in federal d istrict court on habeas
corpus review
Convicted of capital m urder on A pril 13, 1995 and
sentenced to death. Blue poured gasoline on Carmen
Richards-Sanders and her boyfriend and set her on fire.
Blue then forced his way into her apartment and robbed
her. Carmen Richards-Sanders later died.
Duane Buck, H arris County, cause num ber 699-684
Case status: pending in state habeas corpus
Convicted of capital murder in May of 1997 and sentenced
to death for killing two people while on a shooting spree
in the home of his ex-girlfriend, after an argument. Buck
killed his ex-girlfriend, Debra Gardner, in the middle of
the street, in front of her daughter. He also shot and killed
a friend of Gardner’s Keith Butler, who was at Gardner’s
home. Buck also shot his sister in the chest, who was also
at Gardner’s house, but she survived.
UN RELATED CASES
Two of these eight cases are dissimilar to the Saldano
case. In the Blair case, the defendant is not a member of
a racial group included in Dr. Quijano’s statistical model.
In the Graves case, the prosecution did not introduce race
as a factor.
218a
M ichael Blair, Collin County, cause number 366-81344-
93
Case status: pending in federal district court on habeas
corpus review
Convicted of capital murder on September 28, 1994 and
sentenced to death. Late in the morning on September 4,
1993, Blair kidnapped seven-year-old Ashley Estell from
a park in Plano, Texas. Ashley Estell was watching her
brother’s soccer tournament. Her half-clothed body was
found the day after she was kidnapped next to a ditch
along a dirt road a few miles away. The cause of death
was strangulation.
A n th ony C harles G raves, B u rleson County, cause
num ber 28,165
Case status: pending in federal district court on habeas
corpus review
Convicted of capital murder on October 27, 1994 and
sentenced to death. Graves, along with co-defendant
Robert Carter, stabbed and then burned Bobbie Davis
(age 45), Nicole Davis (age 16, who was also shot), Lea Erin
Davis (age 5), Brittany Davis (age 6), Jason Davis (age 4,
Robert Carter’s son) and Denitra Davis (age 9), at their
home in Somerville, Texas, on August 18, 1992. Robert
Carter was executed on May 31,2000.
Contact Mark Heckmann, Heather Browne, or Tom Kelley
at (512) 463-2050
219a
M EM O RAN D U M AN D O R D E R FR O M TH E
D ISTRICT COURT FO R TH E SOU TH ERN
D ISTRICT OF TE X A S (HOUSTON DIVISION)
GRAN TIN G R E SPO N D E N T’S M OTION FOR
SU M M ARY JU DGM EN T AN D DENYING
PE TITIO N E R ’S W R IT OF H A B E A S CORPUS,
JULY 24, 2006
IN TH E U N ITED STATES D ISTRICT COURT
FOR TH E SOUTHERN D ISTRICT OF TE X A S
HOUSTON DIVISION
DUANE EDW ARD BUCK, §
§
Petitioner, §
§
v. § H-04-3965
§
DOUG D RETK E, Director, Texas §
Department o f Criminal Justice- §
Correctional Institutions Division, §
§
Respondent. §
July 24, 2006, Decided
July 24, 2006, Filed
Memorandum and Order
This case is before the Court on Petitioner Duane
Edward B uck ’s Petition for W rit o f H abeas Corpus
and Respondent Doug D retke’s Motion for Summary
Judgment. Having carefully considered the Petition,
220a
the Summary Judgment Motion, the evidence, and the
arguments and authorities submitted by counsel, the
Court is o f the opinion that Respondent’s Motion for
Summary Judgment should be GRANTED, and Buck’s
Petition for W rit o f Habeas Corpus should be DENIED.
I. Background1
During the early morning hours of July 30, 1995,
Harold Ebenezer, his brother Kenneth Butler, Buck’s
sister Phyllis Taylor, and Debra Gardner all gathered at
Gardner’s house after a night out playing pool. Buck lived
in the house with Gardner on and o ff over the previous
few years, but Gardner and Buck broke up two or three
weeks earlier.
Buck banged loudly on Gardner’s door and Gardner
called “911.” Buck then forced the door open and entered
the house. He argued with Gardner and struck her. Buck
then stated that he was there to pick up his clothes. He
retrieved a few things and left.
At about 7:00 a.m., Buck returned with a rifle and
shotgun. Upon entering the house, he shot at Ebenezer
but missed; Ebenezer fled the house. Buck then walked
up to his sister, Taylor, put the muzzle of one of the guns
against her chest, and shot her. Taylor survived. 1
1. The facts are adapted from the opinion of the Texas Court
of Criminal Appeals (“TCCA”) on Buck’s direct appeal. See Buck
v. State, No. 72,810 at 2-3 (Tex. Crim. App. Apr. 28, 1999). Any
significant divergence from the TCCA statement of facts is noted
with a specific citation to the record.
221a
A fter she was shot, Taylor heard more shots coming
from the vicinity of the bedrooms. As she made her way
through the house, Taylor saw Butler’s body in the hallway.
A fter escaping, Ebenezer also heard two or three more
shots fired inside the house. As he came around to the front
of the house, Ebenezer saw Gardner walking toward the
street with Buck following her.
Devon Green, Gardner’s son, hid in the closet after
hearing the first shot fired. Shortly thereafter, he heard
Buck’s voice accusing Butler o f sleeping with “his wife,”
followed by another gunshot. A fter a short while, Green
looked out into the hall and saw Butler leaning against
the wall bleeding. Green then ran outside and saw Buck
shoot his mother and put two guns in the trunk of his car.
Gardner’s teenage daughter, Shennel Gardner, also saw
Butler in the hallway after he was shot and then went
outside and saw Buck shoot her mother. Both Butler and
Gardner died from their wounds.
W hen police arrived, both Green and E benezer
identified Buck as the shooter. Police subsequently
retrieved a shotgun and a .22 caliber rifle from the trunk
of Buck’s car.
D uring the penalty phase, the State presented
evidence of Buck’s prior convictions for delivery of cocaine
and unlawfully carrying a weapon. 28 Tr. at 5-28.2 Vivian
Jackson, Buck’s ex-girlfriend and the mother of Buck’s son,
testified that Buck physically abused her and threatened
2. “Tr.” refers to the transcript of Back’s trial.
222a
her with a gun. Id. at 30-36. One of the police officers who
accompanied Buck after his arrest testified that Buck
was laughing. When the officer commented that he did
not think the situation was very funny, Buck responded:
“ The bitch deserved what she got.” Id. at 62-70.
Buck presented evidence that he is a peacefu l,
nonviolent, person, that his mother died when he was 12
years old, that he worked as an auto mechanic, and that
his father served several jail sentences for non-violent
felonies. Id. at 76-100. The defense also called Dr. Walter
Quijano, a clinical psychologist, as an expert witness.
Dr. Quijano opined, based on his evaluation of Buck,
that Buck has a dependent personality disorder. People
suffering from this disorder can become obsessive about
relationships and have a very difficult time letting go after
a relationship ends.
Dr. Quijano also testified that several factors can
be predictive of future dangerousness. These include,
according to Dr. Quijano, past violent behavior, the age
and sex of the defendant (with older defendants less
likely to be violent in the future, and male defendants
more likely than female defendants to be violent), socio
economic status, and history of substance abuse. Dr.
Quijano also testified that race is a statistical predictor
of future dangerousness based on the fact that Latinos
and African-Americans are over-represented in the penal
system. Applying these factors to Buck, Quijano testified
that Buck’s lack of a violent past made it less likely that
he would be violent in the future. Based on his selection
of victims (a former girlfriend) and his prison disciplinary
223a
record, Quijano concluded that he is unlikely to be violent
in prison. Id. at 101-20.
Buck also called Dr. Patrick Gordon Law rence,
another clinical psychologist. Dr. Lawrence agreed that
Buck has a dependent personality and that he poses a low
probability of future violence. Id. at 177-206. The jury
found that Buck posed a future danger to society, and
that there was insufficient mitigating evidence to justify a
sentence of life imprisonment. Accordingly, the trial court
sentenced Buck to death. 29 Tr. at 278.
The TCCA affirmed Buck’s conviction and sentence
on April 28, 1999. Buck v. State, No. 72,810 (Tex. Crim.
App. Apr. 28,1999). On March 22,1997, Buck filed a state
habeas corpus petition. On Decem ber 13, 2002, he filed a
successive state habeas application. SH. at 2.3 On January
23,2003, the trial court found that Buck’s second petition
was a subsequent habeas application and ordered the
clerk to send it to the TCCA. Id. at 18-19. The trial court
recommended denying Buck’s original petition on July
23, 2003. SH. at 119-27. On October 15, 2003, the TCCA
adopted the trial court’s findings and recommendation
and denied Buck’s first application, and dismissed his
second application as an abuse of the writ. E x Parte
Buck, Nos. 57,004-01, -02 (Tex. Crim. App. Oct. 15, 2003)
(per curiam). On October 14,2004, Buck filed this timely
federal petition for a writ of habeas corpus.
3. “SH.” refers to the transcript of Buck’s state habeas corpus
proceeding.
224a
II. The Applicable Legal Standards
A. The Anti-Terrorism and Effective Death Penalty
Act
This federal petition for habeas relief is governed
by the applicable provisions of the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA” ), which became
effective April 24, 1996. See Lindh v. M urphy, 521 U.S.
320, 335-36 (1997). Under the AEDPA, federal habeas
relief based upon claims that were adjudicated on the
merits by the state courts cannot be granted unless the
state court’s decision (1) “was contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States”
or (2) “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); Kitchens v. Johnson,
190 F.3d 698, 700 (5th Cir. 1999).
For questions of law or m ixed questions o f law
and fact adjudicated on the merits in state court, this
Court may grant federal habeas relief under 28 U.S.C.
§ 2254(d)(1) only if the state court decision “was contrary
to, or involved an unreasonable application of, clearly
established [Supreme Court precedent].” See M artin v.
Cain, 246 F.3d 471, 475 (5th Cir.), cert, denied, 534 U.S.
885 (2001). Under the “contrary to” clause, this Court may
afford habeas relief only if “ ‘the state court arrives at a
conclusion opposite to that reached by . . . [the Supreme
Court] on a question of law or if the state court decides
a case differently than . . . [the Supreme Court] has on
225a
a set o f materially indistinguishable facts.’” Dowthitt v.
Johnson, 230 F.3d 733,740-41 (5th Cir. 2000), cert, denied,
532 U.S. 915 (2001) (quoting Terry Williams v. Taylor, 529
U.S. 362, 406 (2000)).4
The “unreasonable application” standard permits
federal habeas re lie f only i f a state cou rt decision
“ identifies the correct governing legal rule from [the
Supreme Court] cases but unreasonably applies it to the
facts of the particular state prisoner’s case” or “ if the
state court either unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where
it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Terry
Williams, 529 U.S. at 406. “ In applying this standard, we
must decide (1) what was the decision of the state courts
with regard to the questions before us and (2) whether
there is any established federal law, as explicated by
the Supreme Court, with which the state court decision
conflicts.” H oover v. Johnson, 193 F.3d 366, 368 (5th Cir.
1999). A federal cou rt’s “ focus on the ‘unreasonable
application’ test under Section 2254(d) should be on the
ultimate legal conclusion that the state court reached and
not on whether the state court considered and discussed
every angle of the evidence.” Neal v. Puckett, 239 F.3d
4. On April 18, 2000, the Supreme Court issued two separate
opinions, both originating in Virginia, involving the AEDPA, and
in which the petitioners had the same surname. Terry W illiams
v. Taylor, 529 U.S. 362 (2000), involves § 2254(d)(1), and Michael
Williams v. Taylor, 529 U.S. 420 (2000), involves § 2254(e)(2). To
avoid confusion, this Court will include the full name of the petitioner
when citing to these two cases.
226a
683, 696 (5th Cir. 2001), affd , 286 F.3d 230 (5th Cir. 2002)
(en banc), cert, denied sub nom. Neal v. Epps, 537 U.S.
1104 (2003). The solitary inquiry for a federal court under
the ‘unreasonable application’ prong becomes “whether
the state court’s determination is ‘at least minimally
consistent with the facts and circumstances of the case.’”
Id. (quoting H ennon v. Cooper, 109 F.3d 330,335 (7th Cir.
1997)); see also Gardner v. Johnson, 247 F.3d 551, 560
(5th Cir. 2001) (“ Even though we cannot reverse a decision
m erely because we would reach a different outcome,
we must reverse when we conclude that the state court
decision applies the correct legal rule to a given set of
facts in a manner that is so patently incorrect as to be
‘unreasonable.’” ).
The AEDPA precludes federal habeas relief on factual
issues unless the state court’s adjudication of the merits
was based on an unreasonable determ ination o f the
facts in light of the evidence presented in the state court
proceeding. See 28 U.S.C. § 2254 (d)(2); Hill v. Johnson,
210 F.3d 481, 485 (5th Cir. 2000), cert, denied, 532 U.S.
1039 (2001). The State court’s factual determinations
are presum ed correct unless rebutted by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1); see also
Jackson v. Anderson, 112 F.3d 823,824-25 (5th Cir. 1997),
cert, denied, 522 U.S. 1119 (1998).
B. The Standard for Summary Judgment in Habeas
Corpus Cases
“As a general principle, Rule 56 of the Federal Rules
of Civil Procedure, relating to summary judgment, applies
227a
with equal force in the context of habeas corpus cases.”
Clark v. Johnson, 202 F.3d 760,764 (5th Cir.), cert, denied,
531 U.S. 831 (2000). Insofar as they are consistent with
established habeas practice and procedure, the Federal
Rules of Civil Procedure apply to habeas cases. See Rule
11 of the Rules Governing Section 2254 Cases. In ordinary
civil cases, a district court considering a motion for
summary judgment is required to construe the facts in the
case in the light most favorable to the non-moving party.
See A nderson v. L iberty Lobby, 477 U.S. 242, 255 (1986)
(“ The evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor” ). Where
a state prisoner’s factual allegations have been adversely
resolved by express or implicit findings of the state courts,
however, and the prisoner fails to demonstrate by clear and
convincing evidence that the presumption of correctness
established by 28 U.S.C. § 2254(e)(1) should not apply, it
is inappropriate for the facts of a case to be resolved in
the petitioner’s favor. See Marshall v. Lonberger, 459 U.S.
422,432 (1983); Sum ner v. Mata, 449 U.S. 539,547 (1981);
Foster v. Johnson, 293 F.3d 766,777 (5th Cir.), cert, denied
sub nom Foster v. Epps, 537 U.S. 1054 (2002); Dowthitt
v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000), cert, denied,
532 U.S. 915 (2001); E m ery v. Johnson, 940 F.Supp. 1046,
1051 (S.D. Tex. 1996), affd , 139 F.3d 191 (5th Cir. 1997),
cert, denied, 525 U.S. 969 (1998). Consequently, where
facts have been determined by the Texas state courts,
this Court is bound by such findings unless an exception
to 28 U.S.C. § 2254 is shown.
228a
III. Analysis
Buck’s petition raises eight claims for relief. These
are addressed in turn.
A. Informing The Jury About Parole Eligibility
In his first claim for relief, Buck argues that the
trial court violated his Fourteenth Amendment right to
due process of law by refusing to inform, or allow Buck
to inform, the ju ry of the law concerning Buck’s parole
eligibility if sentenced to life imprisonment. Buck contends
that this unfairly impeded his ability to rebut the State’s
argument that he posed a future danger to society. In his
second claim, Buck argues that this lack of information
renders his sentence violative of the Eighth Amendment
because it impeded his ability to offer mitigating evidence.
In his third claim, Buck argues that the trial court’s
refusal to permit testimony concerning parole eligibility
violated Buck’s rights under the com pulsory process
clause of the Sixth Amendment.
The crux these three claims is whether the fact that a
life sentence would make Buck ineligible for parole until
he served 40 years in prison was relevant to the issue
of his future dangerousness. He argues that his expert
witnesses were not permitted to testify that this was a
factor in their conclusions that he was not a future danger,
and that his lawyers were also not permitted to inform
the jury of this part of his experts’ analysis.
229a
Petitioner argues that his position is supported by
the United States Supreme Court’s decision in Simmons
v. South Carolina, 512 U.S. 154 (1994). A t the time
of Simmons’ conviction, South Carolina allowed for a
sentence of life in prison without the possibility of parole
upon conviction of a capital offense. In Sim m ons, the
defense sought an instruction informing the ju ry that life
imprisonment would carry no possibility of parole, but the
trial court refused. The Supreme Court held that when
“the alternative sentence to death is life without parole
. . . due process plainly requires that [the defendant] be
allowed to bring [parole ineligibility] to the ju ry ’s attention
byway of arguments by defense counsel or an instruction
from the court.” Simmons, 512 U.S. at 169 (citing Gardner
v. Florida, 430 U.S. 349, 362 (1977)).
The Sim m ons court reasoned that when a state
im poses the death penalty on the prem ise that the
convicted individual poses a danger to society, the fact
that the defendant may receive life without possibility of
parole “will necessarily undercut the State’s argument
regarding the threat the defendant poses to society.”
Simmons, 512 U.S. at 169. To hold otherwise would create
a “ false dilemma by advancing generalized argument
regarding the defendant’s future dangerousness while,
at the same time, preventing the jury from learning that
the defendant will never be released on parole.” Id. at 171.
Sim m ons addresses very specific circumstances: (1)
When the state seeks the death penalty at least in part on
the grounds that the defendant will be a future danger to
society; and (2) when the alternative to a sentence of death
230a
is a sentence of life imprisonment without the possibility
of parole.
[I]f the State rests its case for imposing the
death penalty at least in part on the premise
that the defendant will be dangerous in the
future, the fact that the alternative sentence
to death is life without parole will necessarily
undercut the State’s argument regarding the
threat the defendant poses to society. Because
truthful inform ation o f parole ineligibility
allows the defendant to deny or explain the
showing of future dangerousness, due process
plainly requires that he be allowed to bring
it to the ju ry ’s attention by way of argument
by defense counsel or an instruction from the
court.
Simmons, 512 U.S. at 168-69 (internal quotation marks
and citation omitted); see also, W heat v. Johnson, 238
F.3d 357, 361-62 (5th Cir.), cert, denied, 532 U.S. 1070
(2001). While the State did seek a death sentence in this
case partially on the basis that Petitioner would pose a
continuing threat, the ju ry ’s alternative was a parole-
eligible life sentence, not, as in Simmons, life without
parole. Id. at 168 n.8.
The Fifth Circuit has repeatedly rejected Buck’s
claim.
[T]he Supreme Court took great pains in its
opinion in Sim m ons to distinguish states
231a
such as Texas, which does not provide capital
sentencing juries with an option of life without
parole, from the scheme in South Carolina which
required an instruction on parole ineligibility
. . . [T]he Fifth Circuit has repeatedly refused
to extend the rule in Sim m ons beyond those
situations in which a capital murder defendant
is statutorily ineligible for parole.
Green v. Johnson, 160 F.3d 1029,1045 (5th Cir. 1998), cert,
denied, 525 U.S. 1174 (1999); see also, Wheat, 238 F.3d at
361-62 (5th Cir.), cert, denied, 532 U.S. 1070 (2001)(finding
Simmons inapplicable to the Texas sentencing scheme);
Soria v. Johnson, 207 F.3d 232 (5th Cir.), cert, denied, 530
U.S. 1286 (2000)(finding that “reliance on Simmons to
demonstrate that the Texas capital sentencing scheme
denied [petitioner] a fair trial is unavailing”); M iller v.
Johnson, 200 F.3d 274, 290 (5th Cir.), cert, denied, 531
U.S. 849 (2000) (“because Miller would have been eligible
for parole under Texas law if sentenced to life, we find
his reliance on Sim m ons unavailing”)(internal quotation
marks and citation omitted); Hughes v. Johnson, 191
F.3d 607, 617 (5th Cir. 1999), cert, denied, 528 U.S. 1145
(2000); M uniz v. Johnson, 132 F.3d 214, 224 (5th Cir.),
cert, denied, 523 U.S. 1113 (1998)(stating that a claim
based on Sim m ons “has no merit under the law in our
circuit” ); M ontoya v. Scott, 65 F.3d 405,416 (5th Cir. 1995),
cert, denied sub nom. M ontoya v. Johnson, 517 U.S. 1133
(1996) (holding that Sim m ons claims are foreclosed by
recent circuit authority rejecting an extension of Simmons
beyond situations in which a defendant is statutorily
ineligible for parole” ); Allridge v. Scott, 41 F.3d 213, 222
232a
(5th Cir. 1994), cert, denied , 514 U.S. 1108 (1995)(stating
that “Sim m ons is inapplicable to this case” ); Kinnam on
v. Scott, 40 F.3d 731, 733 (5th Cir.), cert, denied, 513 U.S.
1054 (1994) (refusing to “extend Sim m ons beyond cases
in which the sentencing alternative to death is life without
parole” ).
I f these decisions left any doubt that Sim m ons
provides no basis for the re lie f Petitioner seeks, the
Supreme Court removed all such doubt in Ram dass v.
Angelone, 530 U.S. 156 (2000). “Sim m ons applies only to
instances where, as a legal matter, there is no possibility
of parole if the ju ry decides the appropriate sentence is
life in prison.” Id. at 169.
In this case, life without parole was not a possibility.
Petitioner faced one o f two sentences: Death, or life
imprisonment with the possibility of parole at a future
date. Therefore, as Ram dass and Fifth Circuit precedent
make unmistakably clear, Petitioner’s claims do not fall
within the scope of Simmons.
Insofar as Petitioner seeks an extension of Simmons
to the Texas scheme, this Court is barred from granting
habeas re lie f on that basis by the non-retroactivity
principle o f Teague v. Lane, 489 U.S. 288 (1989). See
Wheat, 238 F.3d at 361 (finding any extension of Simmons
to violate Teague); Clark v. Johnson, 227 F.3d 273,282 (5th
Cir. 2000), cert, denied, 531 U.S. 1167 (2001)(same); Boyd
v. Johnson, 167 F.3d 907, 912 (5th Cir.), cert, denied, 527
U.S. 1055 (1999) (“ Relief based on Sim m ons is foreclosed
by Teague.” ). In Teague, the Supreme Court held that a
233a
federal court may not create new constitutional rules of
criminal procedure on habeas review. Id. at 301. Thus,
even if controlling precedent did not expressly hold that
the Sim m ons rule does not cover Petitioner’s case, relief
would be barred by Teague.
Buck also argues, citing Skipper v. South Carolina ,
476 U.S. 1 (1986), that information about parole eligibility
is relevant mitigating evidence because it “might serve
as a basis for a sentence less than death.” Id. at 4. He
therefore contends that the trial court’s refusal to allow
Buck to inform the jury about parole eligibility violates his
Eighth Amendment right to present mitigating evidence.
The Fifth Circuit, however, has consistently found that
the Eighth Amendment does not require that a ju ry be
informed of parole eligibility. See Tigner v. Cockrell, 264
F.3d 521,525 (5th Cir. 2001). Therefore, Petitioner’s motion
for relief on his first through third claims is DENIED.
B. Ineffective Assistance Of Counsel
Buck argues that the evidence supported a finding that
he acted under the immediate influence of sudden passion
arising from an adequate cause when he committed the
murders. In his fourth claim for relief, Buck argues that
his trial counsel rendered ineffective assistance by failing
to request a lesser included offense instruction based on
this theory.
To prevail on a claim for ineffective assistance of
counsel, Petitioner
234a
must show that . . . counsel made errors so
serious that counsel was not functioning as the
“counsel” guaranteed by the Sixth Amendment,
Second, the [petitioner] must show that the
deficient performance prejudiced the defense.
This requires showing that counsel’s errors
were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.
Strickland v. Washington , 466 U.S. 668, 687 (1984). In
order to prevail on the first prong of the Strickland test,
Petitioner must demonstrate that counsel’s representation
fell below an objective standard of reasonableness. Id. at
687-88. Reasonableness is measured against prevailing
professional norms, and must be viewed under the totality
o f the circum stances. Id. at 688. Review of counsel’s
performance is deferential. Id. at 689.
Buck committed the murders on July 30, 1995. The
Texas statute defining a homicide committed under the
influence of sudden passion as the lesser included offense
of voluntary manslaughter was repealed on September
1, 1994. See Acts 1993, 73rd Leg., ch. 900, § 1.01. Where
the prior version of the statute defined manslaughter
as a homicide committed under the influence of sudden
passion, the amended version, which was in effect at the
time of Buck’s crime, defines manslaughter as “recklessly
causfing] the death of the individual.” Tex. Penal § 19.04.
Therefore, Texas law did not provide for the lesser
included offense on which Buck now claims he was entitled
to a jury instruction. Indeed, petitioner admits that this
statutory definition of voluntary manslaughter existed
only “ [p]rior to September of 1994 . . . . ” Pet. at 47.
235a
C ou nsel’s fa ilu re to request a ju r y instru ction
unsupported by the law did not constitute deficient
performance. “ Counsel cannot be deficient for failing to
press a frivolous point.” Sones v. Hargett, 61 F.3d 410,415
n.5 (5th Cir. 1995); see also Koch v. Puckett, 907 F.2d 524,
527 (5th Cir. 1990) (“ This Court has made clear that counsel
is not required to make futile motions or objections.” ).
Therefore, petitioner fails to meet the first prong of the
Strickland test and his petition for relief on this claim is
DENIED.
C. Evidence Of Future Dangerousness Based On
Race
Petitioner’s fifth and sixth claims for relief relate to
testimony offered during the penalty phase by Dr. Walter
Quijano, who testified as an expert witness. Buck’s counsel
asked Dr. Quijano to discuss certain statistical factors
relevant to determ ining whether a defendant poses a
future threat to commit criminal acts of violence. Among
the factors Dr. Quijano discussed was race. Dr. Quijano
testified that “minorities, Hispanics and black people are
over represented in our Criminal Justice System.” 28
Tr. at 111. The prosecutor revisited this topic on cross-
examination. Buck is African-American.
In his Fifth claim for relief, Buck argues that Dr.
Quijano’s reliance on race as a statistical predictor of
future dangerousness, and the prosecutor’s references
to this testimony on cross-examination and in closing
argum ent, v io la ted B u ck ’s S ixth and F ou rteen th
Amendment rights to an impartial jury, due process, and
236a
equal protection of the law. In his Sixth claim for relief,
Buck contends his counsel rendered ineffective assistance
by eliciting this testimony from Dr. Quijano.
Buck concedes that he did not raise these claims either
in his direct appeal or on his original state habeas corpus
application, though he did raise them in his successive
state habeas application. As noted above, the TC CA
dismissed the successive petition as an abuse of the writ.
“When a state court declines to hear a prisoner’s
federal claims because the prisoner failed to fulfill a
state procedural requirement, federal habeas is generally
barred if the state procedural rule is independent and
adequate to support the judgment.” Sayre v. Anderson,
238 F.3d 631, 634 (5th Cir. 2001). The Supreme Court has
noted that
[i]n all cases in which a state prisoner had
defaulted his federal claims in state court
pursuant to an independent and adequate
state procedural rule, federal habeas review
of the claims is barred unless the prisoner can
demonstrate cause for the default and actual
prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to
consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). “ This
doctrine ensures that federal courts give proper respect
to state procedural rules.” Glover v. Cain, 128 F.3d 900,
237a
902 (5th Cir. 1997) (citing Coleman, 501 U.S. at 750-51),
cert, denied, 523 U.S. 1125 (1998); see also Edwards v.
Carpenter, 529 U.S. 446,451 (2000) (finding the cause and
prejudice standard to be “grounded in concerns of comity
and federalism”).
To be “adequate” to support the judgment, the state
law ground must be both “ firmly established and regularly
followed.” Ford v. Georgia, 498 U.S. 411, 424 (1991). The
Texas Court o f Criminal Appeals applies its abuse of the
writ doctrine regularly and strictly. Fearance v. Scott, 56
F.3d 633,642 (5th Cir.) (per curiam), cert, denied, 515 U.S.
1153 (1995). Therefore, this claim is procedurally defaulted
and this Court may not review the claim unless Buck
demonstrates cause and prejudice, or that this Court’s
refusal to review the claim will result in a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750.
“ Cause” for a procedural default requires a showing
that some objective factor external to the defense impeded
counsel’s efforts to comply with the state procedural
rule, or a showing of a prior determination of ineffective
assistance of counsel. M urray v. Carrier, 477 U.S. 478,
488 (1986); Am adeo v. Zant, 486 U.S. 214,222 (1988). Buck
does not argue that cause exists for his default.
A “miscarriage of justice” means actual innocence,
either of the crime for which he was convicted or of the
death penalty. Sawyer v. Whitley, 505 U.S. 333,335 (1992).
“Actual innocence of the death penalty” means that, but
for a constitutional error, Buck would not have been legally
eligible for a sentence of death. Id.
238a
To show actual innocence,
[T]he prisoner must ‘show a fair probability
that, in light o f all the evidence, including that
alleged to have been illegally admitted (but
with due regard to any unreliability of it) and
evidence tenably claimed to have been wrongly
excluded or to have becom e available only
after trial, the trier o f the facts would have
entertained a reasonable doubt of his guilt.
Kuhlm ann v. Wilson, 477 U.S. 436, 455 n.17 (1986).
The penalty phase evidence showed that Buck had
a history of domestic violence, including threatening his
ex-girlfriend with a gun, shot his own sister during the
rampage that resulted in the murders of Gardner and
Butler, showed no remorse for the murders, and laughed
when asked about the m urders. This evidence was
sufficient for the jury to conclude that Buck posed a future
danger. Therefore, petitioner has not established that,
but-for the allegedly improper testimony, he could not,
as a matter of law, be sentenced to death. Because Buck
fails to establish either cause for his procedural default
nor actual innocence of the death penalty, this Court may
not review his Fifth and Sixth claims for relief.
D. Burden Of Proof On Future Dangerousness
In his Seventh claim for relief, Buck argues that the
future dangerousness special issue violates the rules
of Ring v. Arizona, 536 U.S. 584 (2002) and Blakely v.
239a
W ashington,__ U .S.__ , 124 S.Ct. 2531 (2004). Specifically,
Buck argues that the language of the statutory special
issue, requiring the ju ry to determ ine whether there
is a “ probability” o f future dangerousness, has the
practical effect o f reducing the burden o f proof from
“beyond a reasonable doubt” to a mere preponderance
of the evidence, notwithstanding a specific statutory
requirement of proof beyond a reasonable doubt.
Buck never presented these claims in state court. The
AEDPA requires that a prisoner exhaust his available
State remedies before raising a claim in a federal habeas
petition.
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
unless it appears that (A) the applicant has
exhausted the remedies available in the courts
o f the State; or (B)(i) there is an absence
of available State corrective process; or (ii)
circumstances exist that render such process
ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1). As the Fifth Circuit explained
in a pre -AEDPA case, “ federal courts must respect the
autonomy of state courts by requiring that petitioners
advance in state court all grounds for relief, as well as
factual allegations supporting those grounds. “ [Ajbsent
special circumstances, a federal habeas petitioner must
exhaust his state remedies by pressing his claims in state
court before he may seek federal habeas relief.” Orman
240a
v. Cain, 228 F.3d 616,619-20 (5th Cir. 2000); see 28 U.S.C.
§ 2254(b)(1) (“An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted unless it appears that
. . . the applicant has exhausted the remedies available in
the courts of the S tate .. . .” ).
Ordinarily, a federal habeas petition that contains
unexhausted claims is dism issed w ithout prejudice,
allowing the petitioner to return to the state forum to
present his unexhausted claims. Rose v. Lundy, 455 U.S.
509 (1982). Such a result in this case, however, would be
futile because Petitioner’s unexhausted claims would be
procedurally barred as an abuse of the writ under Texas
law. A procedural bar for federal habeas review occurs if
the court to which a petitioner must present his claims
to satisfy the exhaustion requirement would now find the
unexhausted claims procedurally barred. Colem an v.
Thompson, 501 U.S. 722, 735 n .l (1991).
Texas prohibits successive w rits challenging the
same conviction except in narrow circumstances. Tex.
CodeCrim .Proc.Ann. art. 11.071 § 5(a) (Vernon Supp.
2002). The Texas Court o f Criminal Appeals will not
consider the merits or grant relief on a subsequent habeas
application unless the application contains sufficient
specific facts establishing the following: 1
(1) the curren t claim s have not been and
could not have been presented previously
in an original application or in a previously
considered application because the factual or
241a
legal basis for the claim was unavailable on the
date the applicant filed the previous application;
or
(2) by a preponderance of the evidence, but for
a violation of the United States Constitution no
rational juror could have found the applicant
guilty beyond a reasonable doubt.
Id.
Petitioner does not claim that he could not have
presented the claim in one of his previous state habeas
petitions because the factual basis for the claim did not
exist, or that he is actually innocent. Rang was decided
on June 22, 2002, and Buck did not file his successive
state habeas petition until December 13,2002. Therefore,
Petitioner could have raised this claim in his prior
successive state petition, and the unexhausted claim does
not fit within the exceptions to the successive writ statute
and would be procedurally defaulted in the Texas courts.
Coleman, 501 U.S. at 735 n .l.5 That bar precludes this
Court from reviewing Petitioner’s claim absent a showing
of cause for the default and actual prejudice attributable to
the default, or that this Court’s refusal to review the claim
will result in a fundamental miscarriage of justice. Id. at
5. Buck also cites Blakely v. W ashington,__ U.S. — , 124 S.Ct.
2531 (2004). While Blakely was not decided until after the TCCA
dismissed both of Buck’s state petitions, Buck does not argue that
Blakely recognized any new substantive right concerning the burden
of proof on aggravating factors. Rather, Buck merely argues that
“Blakely confirms the foregoing Ring analysis.” Pet. at 64.
242a
750. Buck offers no argument that cause exists to excuse
his default, or that he is actually innocent. Therefore, this
Court cannot review his seventh claim.
E. Burden Of Proof On Lack Of Mitigation
The Texas capital sentencing statute requires the
jury, after deciding that the defendant poses a future
danger, to determine whether the defendant’s mitigating
evidence is sufficient to justify imposing a sentence of life
imprisonment rather than death. Tex. Code Crim. Pro.
art. 37.071(2)(e)(l). In his Eighth and final claim for relief,
Buck argues that the Texas capital sentencing statute
violates the rules of Apprendi v. New Jersey, 530 U.S. 466
(2000) and Blakely because it does not place the burden
on the prosecution to prove that the mitigating evidence
is insufficient to justify a life sentence.
Apprendi itself rejects Buck’s position.
Finally, the principal dissent ignores the
distinction the Court has often recognized,
see, e.g., M artin v. Ohio, 480 U.S. 228, 107
S.Ct. 1098, 94 L .Ed.2d 267 (1987), between
facts in aggravation of punishment and facts
in mitigation. . . . I f facts found by a ju ry
support a guilty verdict of murder, the judge is
authorized by that jury verdict to sentence the
defendant to the maximum sentence provided
by the murder statute. I f the defendant can
escape the statutory maximum by showing,
for example, that he is a war veteran, then a
243a
judge that finds the fact of veteran status is
neither exposing the defendant to a deprivation
of liberty greater than that authorized by the
verdict according to statute, nor is the judge
imposing upon the defendant a greater stigma
than that accompanying the ju ry verdict alone.
Core concerns animating the ju ry and burden-
of-proof requirements are thus absent from
such a scheme.
Apprendi, 530 U.S. at 491 n.16. The Supreme Court has
thus drawn a critical distinction between aggravating
and mitigating circumstances in sentencing proceedings.
To the extent that some aggravating circumstance is
required before the court may exceed an otherwise-
prescribed sentencing range, the state must prove those
aggravating circumstances beyond a reasonable doubt.
Under the Texas capital sentencing statute, the statutory
maximum sentence in the absence of proof of aggravating
circum stances is life im prisonm ent. A court cannot
sentence a defendant to death unless the State proves
beyond a reasonable doubt that there is a probability
that the defendant will commit future acts of violence
constituting a continuing threat to society. Tex.Crim.Pro.
art. 37.071(2)(b)(1). Once the State has proven this factor,
the defendant may be sentenced to death.
The sentencing scheme, however, gives a defendant
another opportunity to show that death should not be
imposed, even though the State has met its burden of
proof. The mitigation special issue is, in this sense,
analogous to an affirmative defense. Apprendi does not
244a
prohibit placing the burden of proof on this special issue
on the defendant. The mitigation special issue does not
address a factor necessary to increase the maximum
sentence; rather, it addresses factors that allow the jury
to impose a sentence less than the statutory maximum.
Therefore, the mitigation special issue does not fall within
the scope of Apprendi, and Buck is not entitled to relief
on this claim.
IV. Evidentiary Hearing
Buck requests an evidentiary hearing. An evidentiary
hearing is not required if there are “no relevant factual
disputes that would require development in order to
assess the claims.” M ichael W illiams v. Taylor, 529 U.S.
420, 436 (2000) (stating that it was “ Congress’ [sic] to
avoid unneeded hearings [sic] in federal habeas corpus”);
Robison v. Johnson, 151 F.3d 256, 268 (5th Cir. 1998),
cert, denied, 526 U.S. 1100 (1999). “ I f it appears that an
evidentiary hearing is not required, the judge shall make
such disposition of the petition as justice shall require.”
Rule 8 of the Rules Governing Section 2254 Cases.
Each of P etitioner’s claim s can be resolved by
reference to the state court record, the submissions of the
parties, and relevant legal authority. There is, therefore,
no basis upon which to hold an evidentiary hearing on
these claims.
245a
V. Certificate of Appealability
Buck has not requested a certificate of appealability
(“ COA”), but this Court may determine whether he is
entitled to this relief in light of the foregoing rulings. See
Alexanderv. Johnson, 211 F.3d 895,898(5th Cir. 2000) (“ It
is perfectly lawful for district court’s [sic] to deny a COA
sua sponte. The statute does not require that a petitioner
move for a COA; it merely states that an appeal may not
be taken without a certificate of appealability having been
issued.” ) A petitioner may obtain a COA either from the
district court or an appellate court, but an appellate court
will not consider a petitioner’s request for COA until the
district court has denied such a request. See Whitehead
v. Johnson, 157 F.3d 384, 388 (5th Cir. 1988); see also Hill
v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“ [T]he district
court should continue to review COA requests before the
court of appeals does.” ). “A plain reading of the AEDPA
compels the conclusion that COAs are granted on an
issue-by-issue basis, thereby limiting appellate review to
those issues alone.” Lackey v. Johnson, 116 F.3d 149,151
(5th Cir. 1997).
A COA may issue only if the petitioner has made
a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see also United States v.
Kinder, 150 F.3d 429, 431 (5th Cir. 1998). A petitioner
“makes a substantial showing when he demonstrates that
his application involves issues that are debatable among
jurists of reason, that another court could resolve the
issues differently, or that the issues are suitable enough to
deserve encouragement to proceed further.” Hernandez
246a
v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert, denied, 531
U.S. 966 (2000). The Supreme Court has stated that
W h ere a d istr ic t cou rt has re je c te d the
constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward:
The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.
The issue becomes somewhat more complicated
where . . . the district court dism isses the
petition based on procedural grounds. We
hold as follows: When the district court denies
a habeas petition on procedural grounds
without reaching the prisoner’s underlying
constitutional claim, a COA should issue wfiien
the prisoner shows, at least, that jurists of
reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason
would find it debatable whether the district
court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473,484 (2000). “ The nature
of the penalty in a capital case is a ‘proper consideration
in determining whether to issue a [COA], but the severity
of the penalty does not in itself suffice to warrant the
autom atic issuing of a certifica te .’ ” W ashington v.
Johnson, 90 F.3d 945,949 (5th Cir. 1996), cert, denied, 520
U.S. 1122 (1997) (quotingBarefoot v. Estelle, 463 U.S. 880,
893 (1983)). However, “ the determination of whether a
COA should issue must be made by viewing the petitioner’s
247a
arguments through the lens of the deferential scheme
laid out in 28 U.S.C. § 2254(d).” B arrientes v. Johnson,
221 F.3d 741,772 (5th Cir. 2000), cert, dismissed, 531 U.S.
1134 (2001).
This Court has carefully and exhaustively considered
each of Buck’s claims. While the issues Buck raises are
clearly important and deserving of the closest scrutiny,
the Court finds that each of the claims is foreclosed by
clear, binding precedent. This Court concludes that under
such precedents, Buck has failed to make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This Court concludes that Buck is not entitled
to a certificate of appealability on his claims.
VI. Order
For the foregoing reasons, it is ORDERED as follows:
1. Respondent Doug Dretke’s Motion for Summary
Judgment (Docket Entry 7) is GRANTED;
2. Petitioner Duane Edward Buck’s Petition For
W rit Of Habeas Corpus (Docket E ntry 1) is
DENIED; and
3. No Certificate of Appealability shall issue in this
case.
The Clerk shall notify all parties and provide them
with a true copy of this Order.
248a
SIGNED at Houston, Texas, on this 24th day of July,
2006.
/s/ Vanessa Gilmore_______
Vanessa Gilmore
United States District Judge
249a
MEMORANDUM AND ORDER FROM THE
DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS (HOUSTON DIVISION)
DENYING PETITIONER’S MOTION FOR RELIEF
FROM JUDGMENT PURSUANT TO FRCP 60(B)(6),
AUGUST 29, 2014
IN THE UN ITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TE XAS
HOUSTON DIVISION
DUANE EDWARD BUCK, §
§
Petitioner, §
§
v. §
§
W IL L IA M STEPHENS, Director, §
Texas D epartm ent o f C rim inal §
Justice-Correctional Institutions §
Division, §
§
Respondent. §
H-04-3965
M EM ORANDUM AN D ORDER
Pending is petitioner’s motion for relief from judgment
(Inst. # 49). Petitioner seeks relief from the judgment of
this Court entered on July 24, 2006 (Inst. # 16).
Duane Edward Buck is currently incarcerated on
death row in Texas. On July 24, 2006, this Court denied
his petition for a writ of habeas corpus. Among the claims
250a
denied were Buck’s claims that he received ineffective
assistance of counsel when his counsel called as an expert
witness Dr. W alter Quijano, who mentioned an issue
relating to race during the penalty phase of Buck’s trial.
Buck further contended that counsel was ineffective for
failing to object when the prosecutor asked Dr. Quijano
a question raising a racial issue on cross-examination.
This Court found that those claims were procedurally
defaulted, and the Fifth Circuit denied Buck’s request
for a certificate of appealability. See Buck v. Thaler, 345
Fed. App’x 923 (5th C ir, 2009).
In 2012, the Supreme Court issued its decision in
M artinez v. Ryan, 132 S.Ct. 1309 (2012), holding that
ineffective assistance of state habeas counsel could,
in certain circumstances, constitute cause to excuse a
procedural default of an ineffective assistance of trial
counsel claim. In Trevino v. Thaler, 133 S.Ct. 1911 (2013),
the Supreme Court held that M artinez is applicable to the
Texas capital postconviction process. On January 7,2014,
Buck, relying on M artinez and Trevino, filed the current
motion for relief from the judgment of this Court under
Rule 60(b)(6) of the Federal Rules of Civil Procedure
(Inst. # 49).
I. Background
The facts are not in dispute. During the early morning
hours of July 30, 1995, Harold Ebenezer, his brother
Kenneth Butler, Buck’s sister Phyllis Taylor, and Debra
Gardner all gathered at Gardner’s house after a night
out playing pool. Buck lived in the house with Gardner
251a
on and off over the previous few years, but Gardner and
Buck broke up two or three weeks earlier.
Buck banged loudly on Gardner’s door and Gardner
called “ 911.” Buck then forced the door open and entered
the house. He argued with Gardner and struck her. Buck
then stated that he was there to pick up his clothes. He
retrieved a few things and left.
At about 7:00 a.m., Buck returned with a rifle and
shotgun. Upon entering the house, he shot at Ebenezer
but missed. Ebenezer fled the house. Buck then walked
up to his sister, Taylor, put the muzzle of one of the guns
against her chest, and shot her. Taylor survived.
A fter she was shot, Taylor heard more shots coming
from the vicinity of the bedrooms. As she made her way
through the house, Taylor saw Butler’s body in the hallway.
A fter escaping, Ebenezer also heard two or three more
shots fired inside the house. As he came around to the front
of the house, Ebenezer saw Gardner walking toward the
street with Buck following her.
Devon Green, Gardner’s son, hid in the closet after
hearing the first shot fired. Shortly thereafter, he heard
Buck’s voice accusing Butler of sleeping with “his wife,”
followed by another gunshot. A fter a short while, Green
looked out into the hall and saw Butler leaning against
the wall bleeding. Green then ran outside and saw Buck
shoot his mother and put two guns in the trunk of his car.
Gardner’s teenage daughter, Shennel Gardner, also saw
Butler in the hallway after he was shot and then went
252a
outside and saw Buck shoot her mother. Both Butler and
Gardner died from their wounds.
W hen police arrived, both Green and Ebenezer
identified Buck as the shooter. Police subsequently
retrieved a shotgun and a .22 caliber rifle from the trunk
of Buck’s car.
The case was tried to a jury. The jury found Buck
guilty of capital murder at the conclusion of the guilt-
innocence phase of the trial.
D uring the penalty phase, the State presented
evidence of Buck’s prior convictions for delivery of cocaine
and unlawfully carrying a weapon. Vivian Jackson, Buck’s
ex-girlfriend and the mother of Buck’s son, testified that
Buck physically abused her and threatened her with a gun.
One of the police officers who accompanied Buck after his
arrest testified that Buck was laughing. When the officer
commented that he did not think the situation was very
funny, Buck responded: “The bitch deserved what she got.”
Buck presented evidence that he is a peaceful,
nonviolent, person, that his mother died when he was 12
years old, that he worked as an auto mechanic, and that
his father served several jail sentences for non-violent
felonies. The defense also called Dr. Walter Quijano, a
clinical psychologist, as an expert witness. Dr. Quijano
opined, based on his evaluation of Buck, that Buck has a
dependent personality disorder. People suffering from this
disorder can become obsessive about relationships and
have a very difficult time letting go after a relationship
ends.
253a
Dr. Quijano also testified that several factors can
be predictive of future dangerousness. These include,
according to Dr. Quijano, past violent behavior, the age and
sex of the defendant (with older defendants less likely to
be violent in the future, and male defendants more likely
than female defendants to be violent), socio-econom ic
status, and history of substance abuse. Dr. Quijano also
testified that Latinos and African-Americans are over
represented in the penal system. Applying these factors
to Buck, Quijano testified that Buck’s lack of a violent past
made it less likely that he would be violent in the future.
Based on his selection of victims (a former girlfriend) and
his prison disciplinary record, Quijano concluded that he
is unlikely to be violent in prison.
Buck also called Dr. Patrick Gordon Lawrence,
another clinical psychologist. Dr. Lawrence agreed that
Buck has a dependent personality and that he poses a
low probability of future violence. The jury found that
Buck posed a future danger to society, and that there was
insufficient mitigating evidence to justify a sentence of
life imprisonment. Accordingly, the trial court sentenced
Buck to death.
The Texas Court o f Criminal Appeals (“ TCCA” )
affirmed Buck’s conviction and sentence on April 28,
1999. Buck v. State, No. 72,810 (Tex. Grim. App. Apr. 28,
1999). On March 22,1997, Buck filed a state habeas corpus
petition. On December 13,2002, he filed a successive state
habeas application. On January 23, 2003, the trial court
found that Buck’s second petition was a subsequent habeas
application and ordered the clerk to send it to the TCCA.
254a
The trial court recommended denying Buck’s original
petition on July 23,2003. On October 15,2003, the TCCA
adopted the trial court’s findings and recommendation
and denied Buck’s first application, and dismissed his
second application as an abuse of the writ. E x Parte Buck,
Nos. 57,004-01, -02 (Tex. Grim. App. Oct. 15, 2003) (per
curiam).
On October 14,2004, Buck filed his federal petition for
a writ of habeas corpus. This Court denied his petition on
July 24,2006, the Fifth Circuit denied Buck’s request for
a certificate of appealability, Buck v. Thaler, No. 06-70055
(5th Cir. Sept. 25, 2009), and the Supreme Court denied
his petition for a writ of certiorari, Buck v. Thaler, 130
S.Ct. 2096 (2010).
On September 7, 2011, Buck filed a motion for relief
from this Court’s judgment. This Court denied that motion
on September 9, 2011 (Inst. # 31). On September 12,
2011, Buck filed a motion to alter or amend the judgment
denying his motion for relief from the judgment. This
Court denied that motion on the same day (Inst. # 36).
The Fifth Circuit denied Buck’s request for a certificate of
appealability on September 14, 2011. Buck v. Thaler, 452
Fed. App’x 423 (5th Cir. 2011). The Supreme Court denied
Buck’s petition for a writ of certiorari on November 7,
2011. Buck v. Thaler, 132 S.Ct. 32 (2011).
The Supreme Court decided M artinez in 2012, and
Trevino in 2013. On January 7, 2014, Buck filed this Rule
60(b) motion.
255a
II. Analysis
In this renewed motion for relief from the judgment,
Buck argues that his trial counsel rendered ineffective
assistance by calling Dr. Quijano to testify. Buck’s counsel
asked Dr. Quijano to discuss certain statistical factors
relevant to determining whether a defendant poses a
future threat to commit criminal acts of violence. Among
the factors Dr. Quijano discussed on direct examination
was race. Dr. Quijano testified that “minorities, Hispanics
and black people are over represented in our Criminal
Justice System.” The prosecutor asked an additional race
related question on cross-examination. Buck is African-
American.
In his habeas petition, Buck argued that Dr. Quijano’s
reliance on race as a statistical predictor o f future
dangerousness, and the prosecutor’s reference to this
testim ony on cross-exam ination, invited the ju ry to
consider his race as a predictor of future dangerousness.
He also argues that his counsel rendered ineffective
assistance by eliciting this race related testimony from
Dr. Quijano, and that counsel was ineffective for failing
to object when the prosecutor asked a question about this
testimony during Quijano’s cross examination.
Buck notes that the Texas Attorney General conceded
error in several other cases involving similar testimony by
the same witness. He contends that the Attorney General
also stated that he would not assert procedural defenses to
such claims in federal court, but asserted such a defense
in this case.
256a
Buck conceded that he did not raise these claims either
in his direct appeal or in his original state habeas corpus
application, though he did raise them in his successive state
habeas application. The TCCA dismissed the successive
petition as an abuse of the writ. This Court therefore had
no choice but to find the claims procedurally defaulted. See
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
This Court also discussed whether Buck could avoid
the procedural default by showing that he is “actually
innocent of the death penalty,” i.e., but for a constitutional
error, he would not have been legally eligible for a sentence
of death, see Sawyer v. W hitley, 505 U.S. 333,335 (1992).
The penalty phase evidence showed that Buck had a
history of domestic violence, including, threatening his
ex-girlfriend with a gun, shot his own sister during the
rampage that resulted in the murders of Gardner and
Butler, murdered Gardner in front of her children, showed
no remorse for the murders, and laughed when asked about
the murders. The Court found that the evidence presented
was sufficient for the jury to conclude that Buck posed a
future danger and was therefore eligible for a sentence
of death.
A. Rule 60(b)
Rule 60(b)(6) provides for relief from a judgment
for “any . . . reason that justifies relief.” This Court can
consider the motion if it “attacks, not the substance of
the federal court’s resolution [of Buck’s habeas corpus
petition] on the merits, but some defect in the integrity of
the federal habeas proceedings.” Gonzalez v. Crosby, 545
257a
U.S. 524, 532 (2005). Relief under Rule 60(b) is available
only if the case presents “extraordinary circumstances.”
Id. at 536.
Generally speaking, a “change in decisional law after
entry of judgm ent does not constitute extraordinary
circumstances” and is not alone a ground for relief from
a final judgment under Rule 60(b)(6). Adam s v. Thaler,
679 F.3d 312,319 (5th Cir. 2012) (internal quotation marks
and citation omitted). Adam s specifically rejected the
argument that M artinez, standing alone, constitutes
“extraordinary circumstances” justifying relief under
Rule 60(b)(6). Id. at 320. Buck argues that his case does
present extraordinary circum stances because of the
nature of Quijano’s testimony, the fact that the claims have
never been addressed on the merits by a reviewing court
due to procedural bars, and the Texas Attorney General’s
decision not to raise procedural defenses in cases that
Buck claims are similar.
As previously addressed in this Court’s memorandum
and order denying Buck’s petition, Quijano’s testimony
on direct examination in this case noted the fact that
African-Am ericans and Latinos are over-represented
in the penal system. On cross examination, Quijano
answered “yes” when asked: “You have determined that
the sex factor, that a male is more violent than a female
because that’s just the way it is, and that the race factor,
black, increases the future dangerousness for various
complicated reasons; is that correct?” 28 Tr. at 160. Buck
challenged this testimony solicited on cross examination,
but the Fifth Circuit has previously rejected his claim that
258a
his case is similarly situated to the other cases in which
Quijano testified.
Citing a line o f cases in which Texas has
conceded error and waived procedural default
a fter the p rosecu tion had introduced Dr.
Quijano as an expert witness during the penalty
phase, Buck contends that notions of “ intra
court comity” compel us to conclude that the
State must also waive procedural default in
the instant case. Buck’s case, however, differs
markedly from, e.g., Saldano v. Roach, [363
F.3d 545 (5th Cir. 2004),] in which the prosecution
introduced Dr. Quijano as an expert witness and
then proceeded to question him as to how the
defendant’s race might serve as a predictor of
future dangerousness. In Saldano, the State
conceded its error and waived any procedural
bar that otherwise might have precluded our
review of the defendant’s claim on the merits.
Here, in contrast, the State has not conceded
any error or waived its procedural bar. Rather,
the State has consistently maintained that it did
not violate Buck’s constitutional rights merely
by questioning Buck’s own witness — without
objection from Buck — on the very same
issues first discussed by that witness during
direct examination by the defense, a classic
example of the defense “opening the door” for
the prosecutor to pursue the subject. Because
Buck’s characterization of “ intra-court comity”
finds no support in our precedent, we decline to
259a
apply here concessions made by the State in a
different case with different facts. Such a broad
expansion of a party’s case-specific concession
would not only contravene our precedent, but
would also discourage the State from conceding
error when it seeks to correct its own mistakes
— both of which are clearly undesirable results.
Buck v. Thaler, 345 Fed. App’x 923, 929 (5th Cir. 2009)
(footnotes omitted). The Fifth Circuit has found that
Buck’s case is different in critical respects from the cases
in which Texas confessed error.
Finally, Buck’s argument that this Court should grant
relief because no court has yet reviewed the merits of
his ineffective assistance of counsel claims is circular.
Procedural bars prevent courts from reviewing claims
on the merits. Buck’s claim is procedurally defaulted.
Therefore, the claim has not been reviewed on the merits.
Buck suggests that the fact that the claims are defaulted
should constitute extraordinary circumstances excusing
the default. Other than citing Martinez, however, Buck has
failed to demonstrate that this case presents extraordinary
circumstances. While the introduction of any mention of
race was ill-advised at best and repugnant at worst,
it was, in this case, de m inim is. As respondent points
out, there were two references to race in Dr. Quijano’s
testimony. On direct examination, Quijano stated the
indisputable fact that African-Americans and Latinos are
over-represented in the criminal justice system. On cross
examination, Dr. Quijano answered affirmatively when
questioned about earlier findings he had made that being
260a
black is one statistical factor he considered in reaching his
conclusion. The prosecutor did not make any race-based
argument in closing. Moreover, the State’s confession of
error in other cases does not create any legally enforceable
rights, nor does equity demand that the confession of
error be extended to Buck’s case for the reasons stated
by the Fifth Circuit and quoted above. Finally, the fact
that his claims have not been reviewed on the merits is a
result of the fact that they were procedurally defaulted.
I f that constituted “extraordinary circumstances,” then
the change in decisional law represented by Martinez,
would, by itself, provide grounds for relief under Rule
60(b). As noted above, both the Supreme Court and the
Fifth Circuit have held otherwise. See Gonzalez, 545 U.S.
at 531-32; Adams, 679 F.3d at319 [sic].
B. Ineffective Assistance of Counsel
Assuming without finding that Buck has demonstrated
that his case presented “extraordinary circumstances,” he
would not be entitled to relief on the merits of his claim.
In M artinez, the Supreme Court carved out a narrow
equitable exception to the rule that a federal habeas
court cannot consider a procedurally defaulted claim of
ineffective assistance of counsel.
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim
in a collateral proceeding, a prisoner may
establish cause for a default of an ineffective-
assistance claim . . . where appointed counsel in
the initial-review collateral proceeding. . . was
261a
ineffective under the standards of Strickland
v. Washington, 466 U.S. 668 . . . (1984). To
overcom e the default, a prisoner must also
demonstrate that the underlying ineffective-
assistance-of-trial counsel claim is a substantial
one, which is to say that the prisoner must
demonstrate that the claim has some merit.
M artinez v. Ryan, 132 S.Ct. 1309,1318-19 (2012).
To prevail on a claim for ineffective assistance of
counsel, Petitioner
must show that . . . counsel made errors so
serious that counsel was not functioning as the
“counsel” guaranteed by the Sixth Amendment.
Second, the [petitioner] must show that the
deficient performance prejudiced the defense.
This requires showing that counsel’s errors
were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). In
order to prevail on the first prong of the Strickland test,
Petitioner must demonstrate that counsel’s representation
fell below an objective standard of reasonableness. Id. at
687-88. Reasonableness is measured against prevailing
professional norms, and must be viewed under the totality
of the circumstances. Id. at 688. Review of counsel’s
performance is deferential. Id. at 689.
262a
In the context of a capital sentencing proceeding,
“ the question is whether there is a reasonable probability
that, absent the errors, the sentencer . . . would have
concluded that the balance o f aggravating and mitigating
circumstances did not warrant death.” Strickland, [466]
U.S. at 695. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
at 694.
D uring the penalty phase, the State presented
evidence of Buck’s prior convictions for delivery of cocaine,
possession of a controlled substance, and unlawfully
carrying a weapon. 28 Tr. at 5-28, 239-43. The State
also presented testimony from Buck’s former girlfriend
recounting acts o f dom estic violence, including one
instance in which Buck threatened her with a gun. Id. at
31-40.
In addition to Buck’s past history, the ju ry was
aware of the horrific facts of Buck’s murder of Gardner
and Butler. These included Buck’s attempt to murder his
own sister, and his murder of Gardner in front of her two
children. The ju ry also heard that Buck was laughing
about the murders when he was arrested, and that he
said about Gardner that “ the bitch deserved what she
got.” Id. at 50-51.
Buck called several witnesses who knew him and
testified that he was not violent. See 28 tr. at 77, 84-85,
96. He also called two expert witnesses: Dr. Quijano
and Dr. Patrick Lawrence. Quijano was the former chief
psychologist for TDC J, id. at 101-02, and Lawrence was a
263a
psychologist specializing in prediction of future criminal
behavior, id. at 177,182-85.
Buck’s counsel offered testimony that Quijano was
neutral, emphasizing his experience working for TDCJ,
id. at 101-04, and eliciting the fact that Quijano had
testified for both defendants and the State in the past.
Id. at 104-05. Quijano offered his opinion that Buck was
not a future danger. Id. at 115. He based his conclusion,
in part, on “several statistical factors . . . including, but
not limited to age, sex, race, social economics, history of
violence, and history of substance abuse.” Buck v. Thaler,
345 Fed. App’x at 925. Included in Quijano’s testimony
was his observation that African-Americans and Latinos
are over-represented in the criminal justice system. 28
Tr. at 111.
N ev erth e less , the C ou rt fin d s that co u n se l’s
representation fell below an ob jective standard o f
reasonableness under the first prong of Strickland. See
Strickland, 466 U.S. at 687-88. Buck’s trial counsel called
Dr. Quijano as a witness even though he knew that Dr.
Quijano had previously testified on the direct correlation
between race and future dangerousness. Additionally,
Buck’s counsel had received Dr. Quijano’s expert report
before trial clearly stating that Buck’s race made him
statistically more likely to be a future danger. Buck v.
Thaler, _ U.S. _ , 132 S. Ct. 32, 33 (2011). Despite the
longstanding “ ‘unceasing e fforts ’ to eradicate racial
prejudice from our criminal justice system,” M cCleskey
v. Kemp, 481 U.S. 279, 309 (1987), Buck’s counsel called
Dr. Quijano as a witness and relied on his expert report,
264a
although counsel was fu lly aware o f Dr. Q uijano’s
inflammatory opinions about race. There was no strategic
reason to do so because Buck’s counsel offered a second
expert at trial, Dr. Lawrence, who had no history of this
kind of troubling race-based testimony. Testimony like
that of Dr. Quijano lends credence to any potential latent
racial prejudice held by the jury. Cf. G uerra v. Collins, 916
F. Supp. 620,636 (S.D. Tex. 1995), a ff’d sub nom. Guerra
v. Johnson, 90 F.3d 1075 (5th Cir. 1996) (holding that a
defendant is “entitled to have his punishment assessed
by the ju ry based on consideration o f the mitigating
and aggravating circumstances concerning his personal
actions and intentions, not those of a group of people
with whom he shared a characteristic.” ). Buck’s counsel
recklessly exposed his client to the risks of racial prejudice
and introduced testimony that was contrary to his client’s
interests. His performance fell below an objective standard
of reasonableness, and the Court therefore finds that trial
counsel’s performance was constitutionally deficient.
However, the Court finds that under the facts of
this case, Buck cannot show that he was prejudiced by
his counsel’s constitutionally deficient action. In light of
the aggravating evidence, particularly the facts of the
crime and Buck’s actions following the murders, it cannot
be said that there is a reasonable probability that the
outcome would have been different if Quijano had made
no reference to race. Although counsel rendered deficient
perform ance by calling Quijano as a w itness, Buck
suffered no Strickland prejudice as a result. Therefore,
the Court finds that Petitioner has not established a claim
of ineffective assistance of trial counsel on this issue.
265a
Buck also contends that his counsel was ineffective for
failing to object when the State asked Quijano a question
about the issue of Buck’s race. As the Fifth Circuit noted,
Buck opened the door to this question. See Buck v. Thaler,
345 Fed. App’x at 930. Because Buck opened the door,
any objection to the prosecutor’s question would have
been futile. “This Court has made clear that counsel is
not required to make futile motions or objections.” Koch
v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990). Counsel was
not ineffective for failing to make a futile objection.
A ssum ing w ithout deciding, however, that the
prosecutor’s question amounted to constitutional error,
Buck cannot prove prejudice. As previously discussed, the
evidence showed that Buck had a prior criminal history
and was violent toward his ex-girlfriend. He committed
a brutal double murder, killing one of the victims in front
of her two young children, and shot his own sister in the
chest. Under these facts, there is no reasonable probability
that the outcome of the sentencing phase would have been
different if counsel objected to the prosecutor’s question.
C. Certificate of Appealability
Although Buck has not requested a certificate of
appealability (“ COA” ), the court may nevertheless
determine whether he is entitled to this relief in light of
the court’s rulings. See A lexander v. Johnson, 211 F.3d
895,898 (5th Cir. 2000) (“ It is perfectly lawful for district
court’s [sic] to deny a COA sua sponte. The statute does
not require that a petitioner move for a COA; it merely
states that an appeal may not be taken without a certificate
266a
of appealability having been issued” )- A petitioner may
obtain a COA either from the district court or an appellate
court, but an appellate court will not consider a petitioner’s
request for a COA until the district court has denied such
a request. See Whitehead v. Johnson, 157 F.3d 384, 388
(5th Cir. 1988); see also Hill v. Johnson, 114 F.3d 78,82 (5th
Cir. 1997) (“ [T]he district court should continue to review
COA requests before the court of appeals does.” ). “A plain
reading of the AEDPA compels the conclusion that COAs
are granted on an issue-by-issue basis, thereby limiting
appellate review to those issues alone.” Lackey v. Johnson,
116 F.3d 149, 151 (5th Cir. 1997). A COA may issue only
if the petitioner has made a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see
also United States v. Kinder, 150 F.3d 429, 431 (5th Cir.
1998). A petitioner “makes a substantial showing when
he demonstrates that his application involves issues that
are debatable among jurists of reason, that another court
could resolve the issues differently, or that the issues are
suitable enough to deserve encouragement to proceed
further.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th
Cir.), cert, denied, 531 U.S. 966 (2000). The Supreme Court
has stated that
W h ere a d istr ic t cou rt has re je c te d the
constitutional claims on the merits, the showing
required to satisfy § 2253[(c)] is straightforward:
The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.
The issue becomes somewhat more complicated
where . . . the district court dism isses the
267a
petition based on procedural grounds. We
hold as follows: When the district court denies
a habeas petition on procedu ra l grounds
without reaching the prisoner’s underlying
constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of
reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists o f reason
would find it debatable whether the district
court was correct in its procedural ruling.
Slack v. M cD aniel, 529 U.S. 473, 484 (2000). “ [T]he
determination of whether a COA should issue must be
made by viewing the petitioner’s arguments through
the lens of the deferential scheme laid out in 28 U.S.C.
§ 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th
Cir. 2000), cert, dismissed, 531 U.S. 1134 (2001).
This Court concludes that Buck has failed to make
a “ substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), and that jurists of reason
would not find it debatable whether this court is correct
in its procedural determinations. Therefore, Buck is not
entitled to a COA.
D. Conclusion
For the foregoing reasons, Buck’s renewed motion for
relief from the judgment (Inst. # 49) is denied.
268a
III. Order
For the foregoing reasons, IT IS ORDERED THAT
Buck’s Motion For Relief From Judgment (Docket Entry
49) is Denied; and
IT IS FU RTH ER ORDERED THAT no certificate
of appealability shall issue. SO ORDERED.
SIGNED at Houston, Texas, on this 29th day of
August, 2014.
/s/ Vanessa Gilmore
VAN ESSA GILMORE
United States District Judge
269a
OPINION OF THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS (HOUSTON
DIVISION) DENYING PETITIONER’S MOTION
TO ALTER OR AMEND JUDGMENT PURSUANT
TO FRCP 59(E), MARCH 11, 2015
IN TH E U N ITED STATES DISTRICT COURT
FOR TH E SOUTHERN DISTRICT OF TE XAS
HOUSTON DIVISION
H-04-3965
DUANE EDWARD BUCK,
Petitioner;
v.
W IL L IA M STEPHENS, DIRECTOR, TE XAS
DEPARTM ENT OF CRIM IN AL JUSTICE-
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent.
March 11, 2015, Decided
March 11, 2015, Filed
ORDER
Duane Edward Buck is a Texas death row inmate.
On July 24,2006, this Court denied his petition for a writ
of habeas corpus. Among the claims denied were Buck’s
claims that he received ineffective assistance of counsel
270a
when his counsel called as an expert witness Dr. Walter
Quijano, who mentioned an issue relating to race during
the penalty phase of Buck’s trial. Buck further contended
that counsel was ineffective for failing to object when the
prosecutor asked Dr. Quijano a question raising a racial
issue on cross-examination. This Court found that those
claims were procedurally defaulted, and the Fifth Circuit
denied Buck’s request for a certificate of appealability. See
Buck v. Thaler, 345 Fed. App’x 923 (5th Cir., 2009).
In 2012, the Supreme Court issued its decision in
M artinez v. Ryan, 132 S.Ct. 1309 (2012), holding that
ineffective assistance of state habeas counsel could,
in certain circumstances, constitute cause to excuse a
procedural default of an ineffective assistance of trial
counsel claim. In Trevino v. Thaler, 133 S.Ct. 1911 (2013),
the Supreme Court held that M artinez is applicable to the
Texas capital postconviction process. On January 7,2014,
Buck, relying on M artinez and Trevino, filed a motion for
relief from the judgment of this Court under Rule 60(b)(6)
of the Federal Rules of Civil Procedure (Inst. # 49). This
Court denied that motion on August 29, 2014.
On September 26, 2014, Buck filed a motion to alter
or amend judgment (Inst. # 67). For the reasons stated
below, the motion is denied.
A motion to alter or amend under Fed.R.Civ.P. 59(e)
“must clearly establish either a manifest error of law
or must present newly discovered evidence.” Schiller v.
Physicians Resource Grp., Inc., 342 F.3d 563,567 (5th Cir.
2003)(internal quotation marks omitted). “Relief under
271a
Rule 59(e) is also appropriate where there has been an
intervening change in controlling law.” Id.
Buck contends that, in denying relief on his Rule
60 motion, this Court “ im properly excluded from its
consideration significant evidence....” Motion to Alter or
Amend (Inst. # 67) at 2. This assertion misrepresents the
Court’s opinion, which carefully considered all of Buck’s
argument and the entire record in this case.
This Court based the denial on the Court’s extensive
knowledge and re-review of the record in this case and
independent review of relevant case law. Based on the
record and controlling law, the Court concluded that Buck
was not entitled to relief. The specific reasons for the
denial of Buck’s Rule 60 motion are explained in detail in
the 18 page order denying that motion.
Contrary to the assertions in Buck’s motion, this
Court specifically addressed Buck’s arguments that his
case presents “extraordinary circumstances” justifying
relief, both in the text of the order denying his most recent
Rule 60(b) motion, See August 29, 2014, Memorandum
and Order (Inst. # 66) at 8-10, and by reference to other
orders and opinions addressing these arguments, see id.
at 8. Buck cites no new law in support of his argument
and, aside from his wholly inaccurate assertion that this
Court excluded evidence from its consideration, merely
expresses his disagreement with the Court’s analysis and
conclusion. That disagreement does not demonstrate a
manifest error of law, present newly discovered evidence,
or rely on an intervening change in controlling law. It
therefore does not provide grounds for relief.
272a
This Court also found that, while Buck’s counsel
rendered deficient performance, Buck did not demonstrate
that he was prejudiced by that deficient performance.
Because of this, Buck failed to dem onstrate that he
presented a substantial underlying claim of ineffective
assistance of counsel, and therefore could not overcome
his procedural default under M artinez. Buck now argues
that this Court’s prejudice analysis was wrong.
Once again, Buck’s argument boils down to mere
disagreement with this Court’s analysis. While Buck cites
a few cases in which a court found that a defendant was
prejudiced by counsel’s deficient performance in a capital
sentencing proceeding despite evidence of a heinous crime,
he cannot dispute that this analysis must be highly fact-
specific. As discussed in detail in this Court’s prior order,
while counsel was deficient for calling Dr. Walter Quijano
as an expert witness, any harm caused by his objectionable
testimony was de minimis in light of, among other things:
1) the extremely limited scope of that testimony; 2) the
fact that the prosecution did not refer to the objectionable
testimony in closing argument; 3) the facts of Buck’s crime,
including the fact that he murdered one of his victims in
front of her young children as the victim begged for her
life; and 4) Buck’s lack of remorse. Once again, Buck’s
argument comes down to the fact that he disagrees
with this C ourt’s conclusion that counsel’s deficient
performance did not, in light of the entire record, raise a
reasonable probability that the outcome of the sentencing
hearing would have been different had counsel not called
Dr. Quijano to testify. See Strickland v. Washington,
466 U.S. 668, 694-95 (1984). As discussed above, Buck’s
273a
disagreement with this Court’s analysis does not provide
a basis for relief under Rule 59.
Moreover, because this Court’s finding that Buck is
not entitled to relief is not debatable among jurists of
reason, Buck is not entitled to a certificate of appealability
from this Order. See H ernandez v. Johnson, 213 F.3d 243,
248 (5th Cir.), cert, denied, 531 U.S. 966 (2000). For the
foregoing reasons,
IT IS ORDERED TH AT Buck’s Motion to Alter or
Amend Judgment (Inst. # 67) is Denied; and
IT IS FU RTH ER ORDERED THAT no certificate
of appealability shall issue. SO ORDERED.
SIGNED at Houston, Texas, on this 11th day of March,
2015.
/s/ Vanessa Gilmore
VAN ESSA GILMORE
United States District Judge
274a
OPINION OF THE FIFTH CIRCUIT RE:
PETITIONER’S MOTION FOR A CERTIFICATE
OF APPEALABILITY, AUGUST 20, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
[COURT STAM P OMITTED]
No. 14-70030
DUANE EDWARD BUCK,
Petitioner— Appellant,
versus
W ILLIA M STEPHENS, Director,
Texas Department of Criminal Justice, Correctional
Institutions Division,
Respondent— Appellee.
Appeals from the United States District Court
for the Southern District of Texas.
USDC No. 4:04-CV-3965.
Before SMITH, OWEN, and HAYNES, Circuit Judges.
275a
JE RR Y E. SMITH, Circuit Judge:*
Duane Buck seeks a certificate of appealability (“COA”)
to challenge the denial of his motion for reconsideration, in
which he sought to raise ineffective assistance of counsel
(“ IA C ”) in seeking federal habeas corpus relief. Because
he has not shown extraordinary circumstances that would
perm it relief under Federal Rule o f Civil Procedure
60(b)(6), we deny the application for a COA.
I.
This is Buck’s third trip to the Fifth Circuit. More
detailed explanations of the facts and procedural history
can be found in Buck v. Thaler, 345 F. App’x 923 (5th Cir.
2009) (per curiam), and Buck v. Thaler, 452 F. App’x 423
(5th Cir. 2011) (per curiam). We recite only what is relevant
to this request for a COA.
In July 1995, Buck m urdered his ex -g ir lfr ien d
Debra Gardner and her friend Kenneth Butler. Buck
was arrested at the scene, and police found the murder
weapons in the trunk of his car. Two witnesses identified
him as the shooter. Buck laughed during and after the
arrest and stated to one officer that “ [t]he bitch got what
she deserved.”
* Pursuant to 5th Cm. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except under
the limited circumstances set forth in 5th Cir . R. 47.5.4.
276a
Buck was convicted of capital murder for the deaths.
During the penalty phase, the state presented evidence
that Buck would likely remain dangerous. That evidence
included his criminal history, his violent conduct, and his
demeanor during and after the arrest.
Buck called Dr. Walter Quijano, a clinical psychologist,
as an exp ert w itness to te s t ify reg a rd in g future
dangerousness. Buck’s lawyer asked Quijano what factors
he would look at to determine whether an inmate would
engage in future acts o f violence. Quijano explained
several, including age, sex, race, social economics, and
substance abuse. For example, he testified that advanced
age and increased wealth correlated with a decline in the
likelihood of committing future violent acts. On race, he
gave a one-sentence explanation: “ It’s a sad commentary
that minorities, Hispanics and black people, are over
represented in the Crim inal Justice System .” That
matched a statement included in Quijano’s expert report,
which was introduced as evidence.
During cross-examination, the prosecution elicited
one more comment on race from Quijano: Question:
“You have determined that the sex factor, that a male is
more violent than a female because that’s just the way it
is, and that the race factor, black, increases the future
dangerousness for various complicated reasons; is that
correct?” Answer: “Yes.” During closing arguments, the
prosecution referenced Quijano’s testimony generally and
specifically noted that he had said that, although Buck was
in the low range for a probability of committing future
violent acts, the probability did exist. The prosecution did
not reference Buck’s race or Quijano’s use of race.
277a
The ju ry unanimously found beyond a reasonable
doubt that there was a probability Buck would commit
criminal acts of violence that would be a continuing threat
to society. It further found that there were not sufficient
mitigating circumstances to justify a life sentence. The
court sentenced Buck to death, and the Texas Court of
Criminal Appeals (“ TCCA” ) affirmed.
Buck filed his first state habeas application in 1997;
it contained no IAC claim or any other challenge based
on Quijano’s testimony. In 2000, however, the Texas
Attorney General (“AG” ) admitted to the Supreme Court
in Saldano v. Texas, 530 U.S. 1212 (2000), that the state
had erred in calling Quijano as a witness and having him
testify that the defendant’s race increased the likelihood
of future dangerousness. Shortly after the Court vacated
and remanded Saldano on that confession of error, the
AG publicly identified eight other cases involving racial
testimony by Quijano, six o f which the AG said were
similar to Saldano’s case; one of those was Buck’s. Buck
contends that Texas “promised to concede constitutional
error and waive its procedural defenses” in his case so
that he could get resentenced without the race-related
testimony.1
1. It has never been established that the AG’s office promised
not to raise procedural defenses in Buck’s case. The record contains
a news release by the AG’s office stating that a post-Saldano audit
had revealed “eight more cases in which testimony was offered by
Dr. Quijano that race should be a factor for the jury to consider in
making its determination about the sentence in a capital murder
trial,” of which six were similar to Saldano. The same release stated
that the AG’s office “sent letters to opposing counsel and to the local
278a
In 2002, while his first state habeas petition was
pending, Buck filed a second petition that challenged
Quijano’s testimony on several grounds, including IAC.
The TCCA ultimately denied the first habeas petition and
dismissed the second as an abuse of the writ.
In 2004, Buck filed a federal habeas petition raising
a litany of challenges to his sentence, including IAC.
The court denied relief on that claim because Buck had
not raised IAC on direct appeal or in his original state
habeas petition. He had raised it in his second state
habeas petition, but the TCCA dismissed it as an abuse of
the writ, so it was procedurally defaulted. Buck sought a
COA from this court on only one issue: “Was he deprived
of due process or equal protection by the prosecution’s
reference to testimony from Buck’s own penalty-phase
expert witness . . . ?” Buck, 345 F. A pp’x at 924. We
concluded that the claim was procedurally barred and
meritless. Id. at 930.
A fter the state set an execution date of September 15,
2011, Buck moved for relief from the earlier district-court
judgment under Federal Rule of Civil Procedure 60(b)(6),
claiming that the state’s failure to admit error and waive
defenses was extraordinary and m erited relief. The
motion also asked for relief under Rule 60(d)(3), alleging
that the AG had committed fraud on the court.
prosecutors involved advising them of [the AG’s] investigation.” But
we have found no statement by the AG in the record in which he
confessed error relating to Buck’s case and promised not to raise
procedural defenses.
279a
The district court denied the motion and, three days
later, Buck filed a motion to amend the judgment under
Rule 59(e), claiming that the AG had made material
misrepresentations and omissions in opposing the earlier
motion for relief. The court denied that motion as well. We
declined to permit a successive habeas petition or issue a
COA. Buck, 452 F. App’x at 433.
The Suprem e Court stayed B uck ’s execution to
consider his petition for writ of certiorari. It ultimately
denied the petition , accom pan ied by a statem ent
respecting that denial and a dissent. Buck v. Thaler, 132
S. Ct. 32, 32-35 (2011) (Alito, J., respecting the denial of
certiorari); id. at 35-38 (Sotomayor, J., dissenting from
the denial of certiorari).
In 2013, Buck filed another state habeas petition. The
trial court concluded that it was a subsequent petition and
referred it to the TCCA. While that petition was pending,
the Supreme Court decided Trevino v. Thaler, 133 S.
The record contains a H ou sto n C h ron icle article from
2000 that paraphrases the AG’s spokesperson as saying, “ If the
attorneys amend their appeals currently pending in federal court
to include objections to Quijano’s testimony, the attorney general
will not object.” The spokesperson is quoted as representing that
cases still with the district attorney’s offices “will be handled
in a similar manner as the Saldano case.” A New York Tim es
article went further, stating, “ [The AG’s] staff has notified defense
lawyers representing the six inmates that his office will not object
if they seek to overturn the death sentences based on Mr. Quijano’s
testimony.” Because it does not change the outcome of this appeal,
we need not explore whether such a promise was made or how
explicit it was.
280a
Ct. 1911 (2013), holding that Texas’s procedural regime
rendered it almost impossible to raise IAC claims on direct
appeal, making the scheme similar to the one in Martinez
v. Ryan, 132 S. Ct. 1309 (2012). The Court therefore held
that the M artinez exception applied in Texas: The lack
of effective counsel during initial state collateral-review
proceedings could excuse a procedural default on an IAC
claim. Trevino, 133 S. Ct. at 1921.
The TCCA dismissed the petition as an abuse of the
writ. E x parte Buck, 418 S.W.3d 98 (Tex. Crim. App.
2013). Three judges dissented, concluding that Buck had
made out a potentially meritorious case of IAC relating
to his attorney’s alleged failure adequately to investigate
and present mitigating evidence. Id. at 98-114 (Alcala, J.,
dissenting).
In Jan u ary 2014, B uck again f ile d fo r Rule
60(b)(6) relief from judgment in his federal habeas case.
He focused solely on his IAC claim, contending that
counsel was ineffective for introducing Q.uijano and that
his case was sufficiently extraordinary to justify relief
under Rule 60(b)(6). The district court denied the motion,
holding that Buck’s case did not have the extraordinary
circumstances required for Rule 60(b)(6). It also held that
Buck had failed to make out an IAC claim, establishing
deficient performance but not prejudice. Within a month
of that denial, Buck again moved for relief under Rule
60(b)(6), essentially disagreeing with the district court’s
disposition of the issues. On March 11, 2015, the district
court denied that motion as well and declined to issue a
COA.
281a
II.
To obtain a COA, Buck must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322,336 (2003).
On application for a COA, we engage in “an overview of
the claims in the habeas petition and a general assessment
of their merits” but do not engage in “a full consideration
of the factual or legal bases adduced in support of the
claims,” asking only whether the district court’s resolution
of the claim “was debatable among jurists of reason.”
M iller-El, 537 U.S. at 322.
The district court denied the motion for a procedural
reason, namely, Buck’s failure to show extraordinary
circumstances justifying relief under Rule 60(b)(6). We
therefore must deny a COA if Buck fails to establish both
(1) that jurists of reason would find debatable “whether the
petition states a valid claim of the denial of a constitutional
right” and (2) that those jurists “would find it debatable
whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, [529] U.S. 473, 484 (2000).
III.
Regarding the procedural bar, for a Rule 60(b)(6)
motion in this posture not to be itself a successive habeas
petition, the litigant “must not be challenging a prior
merits-based ruling.” Balentine v. Thaler, 626 F.3d 842,
846 (5th Cir. 2010). Instead, he must be challenging a
previous ruling— such as procedural default or a statute-
of-limitations bar— that precluded a merits determination.
282a
Id. at 846-47. The district court initially denied Buck’s IAC
claim because the TCCA’s abuse-of-the-writ dismissal was
an adequate and independent state ground for denying
relief, so Buck’s motion satisfies that requirement.
To obtain relief under Rule 60(b)(6), Buck must show
“ extraordinary circum stances,” G onzalez v. Crosby,
545 U.S. 524, 536 (2005), which “will rarely occur in the
habeas context,” id. at 535. There is little guidance as to
what constitutes “extraordinary circumstances,” but we
have recognized that a change in a decisional law does not
qualify, and we have cited with approval district-court
decisions holding other circumstances not extraordinary
as well, including IAC. See W illiams v. Thaler, 602 F.3d
291, 312 (5th Cir. 2010).
Buck contends that eight equitable factors from
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir.
Unit A Jan. 1981), are the proper means for evaluating a
Rule 60(b) motion in a habeas case.2 We have declined to
2. Those factors are “(1) [t]hat final judgments should not lightly
be disturbed; (2) that the Rule 60(b) motion is not to be used as a
substitute for appeal; (3) that the rule should be liberally construed in
order to achieve substantial justice; (4) whether the motion was made
within a reasonable time; (5) whether if the judgment was a default
or a dismissal in which there was no consideration of the merits the
interest in deciding cases on the merits outweighs, in the particular
case, the interest in the finality of judgments, and there is merit
in the movant’s claim or defense; (6) whether if the judgment was
rendered after a trial on the merits the movant had a fair opportunity
to present his claim or defense; (7) whether there are intervening
equities that would make it inequitable to grant relief; and (8) any
other factors relevant to the justice of the judgment under attack.”
Seven Elves, 635 F.2d at 402.
283a
answer whether Seven Elves sets the standard for a Rule
60(b)(6) motion in habeas proceedings. See D ia z v.
Stephens, 731 F.3d 370, 376-77 (5th Cir. 2013). We need
not answer it now because Buck has not made out even a
minimal showing that his case is exceptional.
The January 2014 motion contains eleven facts,
reurged in the COA application, that Buck says make the
case extraordinary:
1. Mr. Buck’s trial attorney knowingly presented
expert testimony to the sentencing jury that Mr.
Buck’s race made him more likely to be a future
danger;
2. Although required to act as gate-keeper to
prevent unreliable expert opinions from reaching
and influencing a jury, see Tex. R. Evid. 705(c);
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App.
1992), the trial court qualified Dr. Quijano as an
expert on predictions of future dangerousness,
allowed him to present race based opinion
testimony to Mr. Buck’s capital sentencing jury,
and admitted Dr. Quijano’s excludable hearsay
report linking race to dangerousness;
3. The trial prosecutor intentionally elicited Dr.
Quijano’s testimony that Mr. Buck’s race made
him more likely to be a future danger on cross-
examination, vouched for him as an “expert” in
closing, and asked the jury to rely on Dr. Quijano’s
testimony to answer the future dangerousness
special issue in the State’s favor;
284a
4. Mr. Buck’s state habeas counsel did not challenge
trial counsel’s introduction of this false and
offensive testimony — or Texas’s reliance on it
— in Mr. Buck’s initial state habeas application;
5. T h e T ex a s A t to r n e y G e n e ra l co n ce d e d
constitutional error in Mr. B uck ’s case and
prom ised to ensure that he received a new
sentencing, but reneged on that promise after
deciding that the introduction of the offensive
testimony was trial counsel’s fault;
6. This Court ruled that federal review of Mr.
Buck’s trial counsel ineffectiveness claim was
foreclosed by state habeas counsel’s failure to
raise and litigate the issue in Mr. Buck’s initial
state habeas petition, relying on Coleman, which
has subsequently been modified by M artinez and
Trevino;
7. The Fifth Circuit held Mr. Buck’s trial counsel
responsible for the introduction of Dr. Quijano’s
testimony linking Mr. Buck’s race to his likelihood
of future dangerousness;
8. Three Supreme Court Justices concluded that
trial counsel was at fault for the introduction of
Dr. Quijano’s testimony;
9. Three Judges of the CCA found that “because
[Mr. Buck’s] initial habeas counsel failed to
include any claims related to Quijano’s testimony
285a
in his original [state habeas] application, no court,
state or federal, has ever considered the merits
of those claims,” Buck, 2013 W L 6081001, at *5;
10. Mr. Buck’s case is the only one in which Texas
has broken its prom ise to waive procedural
defenses and concede error, leaving Mr. Buck
as the only individual in Texas facing execution
without having been afforded a fair and unbiased
sentencing hearing; and
11. Martinez and Trevino now allow for federal court
review of “substantial” defaulted claims of trial
counsel ineffectiveness.
Initial examination of those facts reveals that they are not
extraordinary at all in the habeas context. Numbers 1-3,
7, and 8 are just variations on the merits of Buck’s IAC
claim, which is at least unremarkable as far as IAC claims
go. Buck’s IAC claim is not so different in kind or degree
from other disagreements over trial strategy between
lawyer and client that it counts as an exceptional case.
Nor are IAC claims as a class extraordinary under Rule
60(b)(6). The Court warned in Gonzalez, 545 IJ.S. at 536,
that extraordinary circumstances will rarely be present
in the habeas context.
The fourth and ninth extraordinary facts merely point
out that Buck’s IAC claim was procedurally defaulted
and did not get a merits determination. That is not an
extraordinary circumstance in the habeas context; it is
the nature of procedural defaults that many potentially
286a
viable claims will never advance to a merits determination.
No jurists of reason would expand the definition of
“extraordinary” to reach all procedurally defaulted IAC
claims.
The sixth and eleventh facts relate to Buck’s notion
that Trevino and M artinez changed the law regarding
procedural defaults in IAC claims in a way that could
have excused his procedural default. M artinez, however,
“was simply a change in decisional law” that is not an
extraordinary circumstance under Rule 60(b)(6), and
“ Trevino's recent application of M artinez to Texas cases
does not change that conclusion in any way.” Diaz, 731
F.3d at 376 (internal quotation marks omitted).
Those facts plainly fail to make even a plausible
argument that Buck’s is the extraordinary case that
satisfies Rule 60(b)(6). He has repeatedly asserted,
however, that his case is special because of the Saldano-
related statements by the AG. Buck contends the AG
conceded that Quijano’s testimony was unconstitutional
but reneged on a promise to resentence Buck (fact five),
despite Texas’s following through in other cases involving
Quijano (fact ten).
Even if the AG initially indicated to Buck that
he would be resentenced— a fact that has never been
adequately established, see note 1, supra— his decision
not to follow through is not extraordinary. The broken-
promise element to this case makes it odd and factually
unusual, but extraordinary circumstances are not merely
found on the spectrum of common circum stances to
unique circumstances. And they must be extraordinary
circumstances “justifying relief from the judgm ent.”
287a
Gonzalez, 545 U.S. at 537. Buck has not shown why the
alleged reneging would justify relief from the judgment.
For example, he has not shown that he relied on the alleged
promise to his detriment.
Nor is it extraordinary that the AG confessed error
and waived procedural bars in other cases and not in
Buck’s. We have previously rejected the notion that some
concept of “ intra-court comity” requires the state to waive
procedural defenses in similar cases. See Buck, 345 F.
App’x at 929. Even assuming arguendo that the other
cases at issue are materially similar to Buck’s (which the
state disputes), it can hardly be extraordinary that the
state chose different litigation strategies between the two
cases. Jurists of reason would not debate that Buck has
failed to show extraordinary circumstances justifying
relief.
Buck has not demonstrated that jurists o f reason
would debate whether his case is exceptional under Rule
60(b)(6). The request for a COA is DENIED.
[CERTIFICATION AN D SEAL OMITTED]
288a
OPINION OF THE FIFTH CIRCUIT EN BANC RE:
PETITIONER’S MOTION FOR A CERTIFICATE
OF APPEALABILITY, NOVEMBER 6, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
[COURT STAMP OMITTED]
No. 14-70030
DUANE EDWARD BUCK,
Petitioner— Appellant,
versus
W IL L IA M STEPHENS, Director, Texas Department
of Criminal Justice, Correctional Institutions Division,
Respondent— Appellee.
Appeals from the United States District Court
for the Southern District of Texas.
ON PETITION FOR REH EARIN G EN BANC
(Opinion August 20, 2015, U.S. App. LE X IS 14755)
289a
Before SMITH, OWEN, and H AYN ES, Circuit Judges.
PER CURIAM :
T reating the petition for reh earin g en banc as
a petition for panel rehearing, the petition for panel
rehearing is DENIED. The court having been polled at the
request of one of its members, and a majority of the judges
who are in regular active service and not disqualified not
having voted in favor (F ed. R. App. P. 35 and 5th Cir. R.
35), the petition for rehearing en banc is DENIED.
In the en banc poll, 2 judges voted in favor of rehearing
(Judges Dennis and Graves), and 13 judges voted against
rehearing (Chief Judge Stewart and Judges Jolly, Davis,
Jones, Smith, Clement, Prado, Owen, Elrod, Southwick,
Haynes, Higginson, and Costa).
EN TERED FOR TH E COURT:
/s/ Jerry E. Smith__________________
JERRY E. SMITH
United States Circuit Judge
290a
JAMES L. DENNIS, Circuit Judge, with whom GRAVES,
Circuit Judge, joins, dissenting:
In M iller-El v. Cockrell, 537 U.S. 322, 336-37 (2003),
the Supreme Court held that the threshold inquiry
required by 28 U.S.C. § 2253(c):
does not require full consideration of the factual
or legal bases adduced in support of the claims.
In fact, the statute forbids it. When a court of
appeals sidesteps this process by first deciding
the merits of an appeal, and then justifying its
denial of a COA based on its adjudication of the
actual merits, it is in essence deciding an appeal
without jurisdiction.
In my view, the panel in this case, perhaps unintentionally,
follow ed that proh ib ited s ide-step p in g process by
justifying its denial of a COA based on its adjudication of
the actual merits. This is not the first time that a panel
of this court has flouted M iller-El ’s clear command when
denying a COA: our court’s “ troubling” habit of evaluating
the merits of petitioners’ claims has been noted by three
Supreme Court justices. See Jordan v. Fisher, 135 S. Ct.
2647, 2652 n.2 (2015) (Sotomayor, J., joined by Ginsburg
and Kagan, JJ., dissenting from denial of certiorari).
Because I believe that Buck has made the requisite
threshold showing of entitlement to relief, I respectfully
dissent from the refusal to rehear his case en banc.
Duane Buck, a capital prisoner, seeks to raise
ineffective assistance of counsel in federal habeas corpus
291a
proceedings. His habeas petition was denied by the
district court as procedurally barred. Buck has now
applied to this court for a COA to challenge the district
court’s denial of his second motion for relief from judgment
under Rule 60 of the Federal Rules of Civil Procedure,
in which he alleged that extraordinary circumstances
w arrant reopening the proceedings. Under Slack v.
McDaniel, [529] U.S. 473,484 (2000), a COA should issue
in Buck’s case if he shows (1) that jurists of reason would
find debatable “whether the petition states a valid claim
of the denial of a constitutional right” and (2) that those
jurists “would find it debatable whether the district court
was correct in its procedural ruling.” Yet the panel denied
Buck’s application on the grounds that “he has not shown
extraordinary circumstances that would permit relief
under Federal Rule of Civil Procedure 60(b)(6).” Buck v.
Stephens, Slip Op. at 1 (Aug. 20, 2015). By ruling on the
merits, the panel contravened the Supreme Court’s clear
commands and improperly denied Buck his right to appeal.
In M iller-E l, the Supreme Court reiterated that,
when evaluating a COA application, “ the court of appeals
should limit its examination to a threshold inquiry into
the underlying merit of his claims.” 537 U.S. at 326. A
petitioner is not required to demonstrate that he is entitled
to relief; in fact, “ [i]t is consistent with § 2253 that a COA
will issue in some instances where there is no certainty of
ultimate relief.” Id, at 337. Rather, a petitioner satisfies the
Slack standard “by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further.” Id, at 327 (emphasis added). Furthermore,
under this court’s established precedent, “any doubt as to
whether a COA should issue in a death-penalty case must
be resolved in favor of the petitioner.” Pippin v. Dretke,
292a
434 F.3d 782,787 (5th Cir. 2005) {citingMedellin v. Dretke,
371 F.3d 270, 275 (5th Cir. 2004) (per curiam); Newton v.
Dretke, 371 F.3d 250, 254 (5th Cir. 2004)).
In his application, Buck presented eleven factors
that, when considered together, he believes demonstrate
that his case involved extraordinary circum stances.
Rather than consider whether reasonable jurists could
d isagree w ith the d istrict court and conclude that
Buck’s allegations “set up an extraordinary situation,”
Ackerm ann v. United States, 340 U.S. 193,199 (1950), the
panel went through the factors one by one and determined
that each was “not extraordinary.” Buck, Slip Op. at
9-10. At the end of this flawed analysis of the merits of
Buck’s claims, the panel conclusorily declared: “Jurists
of reason would not debate that Buck has failed to show
extraordinary circumstances justifying relief.” Id. at 10.
This analysis would not be sufficient even if the court were
properly considering the merits of Buck’s claims: like the
“dismissive and strained interpretation” of a petitioner’s
evidence that was rejected by the Supreme Court first in
Miller-El, 537 U.S. at 344, and then again in Miller-El
v. Dretke, 545 U.S. 231, 265 (2005), the panel “dismisses,
miscasts, and minimizes [Buck’s] evidence, diluting its
full weight by disaggregating it and focusing the inquiry
on determining whether each isolated piece of evidence,
taken alone,”1 proves extraordinary circumstances. This
mischaracterization is still more deficient at this stage in
the proceedings, where it is employed to aid the panel in
“deciding [Buck’s] appeal without jurisdiction.” Miller-El,
537 U.S. at 326-27.
1. Brief of the NAACP LDF, et al., as Am ici Curiae at 3, Miller-
El v. Dretke, 545 U.S. 231 (No. 03-9659) 2004 WL 1942171, at *3.
293a
“ [Proving his claim was not [Buck’s] burden.” Jordan, 135
S. Ct. at 2652. A proper, threshold inquiry into Buck’s claim
would have revealed that reasonable jurists could disagree
with the district court’s conclusions. Buck asserts that he
faces execution based on a capital sentencing proceeding
whose reliability was fundamentally compromised by the
race-based testimony of Dr. Walter Quijano. He asserts that
the State of Texas identified his case as one of six that was
“similar” to that of Victor Hugo Saldano, in which the State
admitted that Dr. Quijano’s testimony and the resulting
“infusion of race as a factor for the jury to weigh in making
its determination violated [Mr. Saldano’s] constitutional
right to be sentenced without regard to the color of his skin.”
State’s Resp. to Pet. for Cert, at 8, Saldano v. Texas, U.S.
Supreme Court, No. 99-8119. He asserts that his is the only
death sentence identified by the State that has not been
overturned because his is the only case in which Dr. Quijano’s
participation in the trial was the result of the deficient
performance of his own defense attorney. He asserts that the
procedural default that barred his present claim should have
been waived by the State pursuant to representations made
by the Texas Attorney General. He asserts that, following
the Supreme Court’s decisions in Martinez v, Ryan, 132 S.
Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013),
the same procedural default would not bar his claim if it
were brought in federal court for the first time today. And
he asserts that three judges on the Texas Court of Criminal
Appeals dissented from the dismissal of his state habeas
petition as procedurally barred, concluding that “ [t]he record
in this case reveals a chronicle of inadequ ate representation
at every stage of the proceedings, the integrity of which is
further called into question by the admission of racist and
inflammatory testimony from an expert witness at the
punishment phase” and that the procedural barrier should
294a
therefore be abrogated. E x parte Buck, 418 S.W.Sd 98 (Tex.
Grim. App. 2013) (Alcala, J., dissenting), cert, denied sub
nom. Buck v. Texas, 134 S. Ct. 2663 (2014). While each of
these factors might, on its own, be insufficient to warrant
relief, together they describe a situation that is at least
debatably “extraordinary.”
That the issue is at least debatable is further
illustrated by Justice Sotom ayor’s dissent from the
denial of certiorari in Buck v. Thaler, 452 F. App’x 423
(5th Cir. 2011), a previous iteration of this case. Justice
Sotomayor—-joined by Justice Kagan— concluded that,
“ [ejspecially in light of the capital nature of this case and
the express recognition by a Texas attorney general that
the relevant testimony was inappropriately race-charged,
Buck has presented issues that ‘deserve encouragement to
proceed further’” and a COA should therefore have been
granted. Buck v. Thaler, 132 S. Ct. 32, 38 (2011) (quoting
M iller-El, 537 U.S. at 327).
“Any doubt regarding whether to grant a COA is
resolved in favor of the petitioner, and the severity of the
penalty may be considered in making this determination.”
Newton, 371 F.3d at 254 (5th Cir. 2004). In a case involving
the severest of penalties, the panel’s summary conclusion
that “ [jjurists of reason would not debate that Buck has
failed to show extraordinary circumstances justifying
relief” was both inappropriate and incorrect. I
I respectfully dissent.
295a
SALDANO V. TEXAS : RESPO N D EN T’S B R IE F
IN OPPOSITION TO PETITION FO R W R IT OF
CERTIO RARI, NO 99-8119
No. 99-8119
IN THE
SUPREM E COURT OF THE U N ITED STATES
VICTOR HUGO SALDANO,
Petitioner,
y .
STATE OF TEXAS,
Respondent.
On Petition for Writ of Certiorari to the
Texas Court of Criminal Appeals
RESPONSE TO PETITION
FO R W R IT OF CERTIO RARI
John Cornyn
Attorney General of Texas
296a
A ndy Taylor
First Assistant Attorney General
Shane P helps
Deputy Attorney General for
Criminal Justice
Gregory S. Coleman
Solicitor General
Counsel o f Record
Kurt H. Kuhn
Assistant Solicitor General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
(512) 936-1700
A ttorneys for T exas
[TABLES INTEN TION ALLY OMITTED]
297a
No. 99-8119
IN THE
SUPREM E COURT OF THE U N ITED STATES
VICTOR HUGO SALDANO,
Petitioner,
v.
STATE OF TEXAS,
Respondent.
On Petition for Writ of Certiorari to the
Texas Court of Criminal Appeals
RESPONSE TO PETITION
FOR W RIT OF CERTIORARI
Respondent, the State of Texas, files this response to
Victor Hugo Saldano’s petition for writ of certiorari and
agrees that, under the record in this case, the prosecution’s
introduction of race during the penalty phase as a factor
for determining “ future dangerousness” constituted a
298a
violation of Saldano’s rights to equal protection and due
process. Accordingly, Texas asks the Court to grant the
petition, vacate the trial court’s imposition of sentence
on Saldano, and remand the case to the trial court with
instructions that Saldano receive a new sentencing
hearing in which race is not considered.1
STATEMENT OF THE CASE
I. Saldano’s Crime
In 1996, the Petitioner, Victor Hugo Saldano, was
convicted of capital murder in Collin County, Texas, for
the murder of Paul Green.1 2 The evidence presented at trial
showed that Saldano and an accomplice used a handgun to
kidnap Mr. Green, a forty-six year old man, from a grocery
store parking lot.3 The kidnaping occurred at 10:00 on a
Saturday morning in the presence of witnesses.4 Neither
Saldano nor his accomplice knew Mr. Green, and the crime
appears to have been random.5
1. The jury’s finding of Saldano’s guilt is neither raised nor
affected by this petition.
2. Pet. App. at 1.
3. Pet. App. at 7.
4. Pet. App. at 7.
5. 21 SF at 280. (Under the former Texas Rules in effect at
the time of Saldano’s trial, the “Statement of Facts” was the name
used for the court reporter’s recording of testimony which is more
commonly known as the “transcript.” Reference to the multi-volume
Statement of Facts will be made as “ SF at ”.)
299a
Mr. Green was forced into his car by Saldano, and
while a gun was held to his head by the accomplice, Mr.
Green was taken to a secluded spot on a country road.6
Saldano forced Mr. Green into the woods while the
accomplice waited at the car.7 Once in the woods, Saldano
fatally shot Mr. Green five times, including once in the
head at point-blank range.8 Saldano stole Mr. Green’s
wallet and watch.9
Saldano and his accomplice drove Mr. Green’s car
back toward town before abandoning it on the side of
the highway.10 11 A short time thereafter, Saldano and his
accomplice were taken into custody.11 Prior to his trial,
Saldano told the jailer that he had shot Mr. Green four
times, and then once in the head just to make sure he
was dead.12 Saldano said he felt nothing when he shot Mr.
Green.13
6. Pet. App. at 7.
7. Pet. App. at 7.
8. Pet. App. at 7; 14 SF at 233.
9. Pet. App. at 7.
10. Pet. App. at 8.
11. Pet. App. at 8.
12. Pet. App. at 8.
13. Pet. App. at 9.
300a
II. The Admittance o f Race as a Factor in Determining
Future Dangerousness
In the penalty phase of Saldano’s trial, the ju ry
was charged with answering two questions regarding
Saldano.14 First, the jury was charged with finding beyond
a reasonable doubt the probability that Saldano would
commit criminal acts of violence that would constitute a
continuing threat to society.15 The jury was instructed that
the burden of proving this “ future dangerousness” lay
solely on the prosecution.16 Second, if the jury answered
yes to the first question, the jury was instructed to answer
whether, considering all of the evidence, including the
circumstances of the offense, Saldano’s character and
background, and Saldano’s personal moral culpability,
there was a su fficien t m itigating circum stance or
circumstances to warrant the imposition of a life sentence
rather than the death sentence.17
The ju ry wTas presented with more than enough
evidence to warrant its finding of “ future dangerousness.”
In fact, the Texas Court o f Criminal Appeals previously
ruled that there was, without reference to any testimony
14. TR at 125. (Under the former Texas Rules in effect at the
time of Saldano’s trial, the “Transcript” was the name used for all
pleadings and other court documents upon which the trial occurred.
Reference to the transcript will be made as “TR at _”.)
15. TR at 125.
16. TR at 120.
17. TR at 126.
301a
elicited about race, sufficient evidence to warrant the
finding of “ future dangerousness,” and Saldano does not
seek review of that decision here.18 This evidences includes
the facts that: (1) the circumstances of Saldano’s capital
offense demonstrate that it was particularly random,
callous, cruel, and bold; (2) Saldano expressed no remorse
for the slaying of his victim and has even stated that he
felt nothing at the time of the killing; (3) Saldano was
engaged in an escalating series of criminal activities prior
to the killing of his victim; and (4) Saldano’s relatively
young age.19
D uring the sentencing phase o f Saldano’s trial,
the prosecution presented testim ony on the issue of
Saldano’s future dangerousness,20 including evidence
that there were twenty-four factors to be weighed in
determ ining future dangerousness, one of which was
Saldano’s race.21 The witness testified that A frican-
Americans and Hispanics are over-represented in prison
compared to their percentage of the general population.22
He explained that “race itself may not explain the over
representation, so there are other subrealities that may
have to be considered.”23 Further, the witness testified
18. Pet App. at 6-9.
19. Pet. App. at 6-9.
20. Pet. App. at 8; 20 SF at 62.
21. Pet. App. at 9-10.
22. Pet. App. at 9.
23. 20 SF at 76.
302a
that because Saldano was from Argentina, he would be
considered Hispanic.24 As the Texas Court of Criminal
Appeals recognized, the prosecution’s witness “testified
that because [Saldano] is Hispanic, this was a factor
weighing in the favor of future dangerousness.” 25 At the
conclusion of the witness’s direct testimony, the State
admitted into evidence a series o f exhibits consisting of
flip-charts that listed each of the factors the jury was to
weigh in determining future dangerousness.26 The charts
had marks next to each factor that was said to apply to
Saldano, including race.27
Counsel for Saldano did not object to the introduction
of testimony regarding race. Instead, defense counsel
cross-examined regarding the reliability of the data and
whether Saldano, as a Argentinian, fit within the category
of Hispanic.28 The witness did not have evidence of the
studies with him, and they are not part of the record.29
On cross-examination, the witness further stated
that he could not tell the jury how to weigh the factors he
outlined, stating that they may all be of equal value, but
24. 20 SF at 76.
25. Pet. App. at 9.
26. 20 SF at 108-09; 22 SF at Exhibits 116-18 (Attached as
Tab A.)
27. See Tab A.
28. 20 SF at 114-31.
29. 20 SF at 115.
303a
it was for the jury to decide while considering all of the
factors.30 Saldano’s expert testified that the racial studies
relied upon by the prosecution’s witness only demonstrated
a correlation between race and recidivism, and could not
tell the jury anything about actual causation.31 In fact,
Saldano’s expert testified that parts of the method were
valid, but that they showed merely “some relationship
here” and not “causation.”32
W hile not mentioning race specifically, in closing
argument the prosecution told the ju ry to rely on the
twenty-four factors provided by its witness. The jury was
told to take the formula of twenty-four factors and “plug
it in.”33 The jury found that Saldano was a future danger
to society and that there were not sufficient mitigating
factors to warrant life imprisonment.34 Accordingly, the
trial court sentenced Saldano to the death penalty.35
In Saldano’s direct appeal to the Texas Court of
Criminal Appeals, he asserted numerous claimed errors,
including the use of race as a factor in determining future
dangerousness. In upholding the sentence, the court
recognized that the prosecution’s witness testified that
30. 20 SF at 132-34, 153.
31. 20 SF at 187-88.
32. 20 SF at 188.
33. 21 SF at 303.
34. 21 SF at 307-08.
35. 21 SF at 309.
304a
because Saldano was Hispanic, this was a factor weighing
in favor of future dangerousness.36 In a 6-2 vote, the court
held that any claimed error was waived because there had
been no objection to the testimony and it did not rise to
the level of fundamental error.37 Writing in concurrence,
one judge indicated that, while the danger o f presenting
the jury with such racially charged testimony was real
and should not be sanctioned, he believed the evidence
did not harm Saldano.38
ARGUM ENT
The sole issue raised by Saldano is whether the Texas
Court of Criminal Appeals erred in upholding his death
sentence, despite the improper introduction of testimony
inviting the use of race as a factor in determining future
dangerousness, due to his counsel’s failure to object.
Because the use of race in Saldano’s sentencing seriously
undermined the fairness, integrity, or public reputation
of the judicial process, Texas confesses error and agrees
that Saldano is entitled to a new sentencing hearing. See
Zant v. Stephens, 462 U.S. 862, 886 (1983).
The Court has previously upheld the consideration
o f “ future dangerousness” in the penalty phase of a
capital trial. Simmons v. South Carolina, 512 U.S. 154,
162 (1994). In fact, the Court has recognized that “a
36. Pet. App. at 9.
37. Pet. App. at 10.
38. Pet. App. at 11.
305a
defendant’s future dangerousness bears on all sentencing
determinations made in our criminal justice system.” Id.
However, the Court has held, in dicta, that race cannot be
an aggravating factor in determining the death penalty.
Zant, 462 U.S., at 886. Other courts have made similar
observations. California v. Bacigulupo, 862 P.2d 808,
820 (Cal. 1993); H orton v. Georgia, 295 S.E.2d 281, 285
(Ga. 1982).
“ Discrimination on the basis of race, odious in all
aspects, is especially pernicious in the administration
of justice.” Rose v. Mitchell, 442 U.S. 545, 555 (1979). A
defendant is “entitled to have his punishment assessed
by a ju ry based upon consideration of the mitigating
and aggravating circumstances concerning his personal
actions and intentions, not those of a group of people with
whom he share[s] a characteristic.” G uerra v. Collins,
916 F.Supp. 620, 630 (S.D. Tex. 1995), a ff’d, 90 F.3d 1075
(CA5 1996).
The Court has recognized the harm associated with
the introduction of race into the criminal justice system.
In M cCleskey v. Kemp, the Court explained:
Because of the risk that the factor of race may
enter the criminal justice process, we have
engaged in “ unceasing efforts” to eradicate
racial prejudice from our crim inal justice
system. Our efforts have been guided by our
recognition that “ the inestimable privilege of
trial by jury ... is a vital principle, underlying
the whole administration of criminal justice.”
306a
Thus, it is the jury that is a criminal defendant’s
fundamental “protection of life and liberty
against race or color prejudice.”
481 U.S. 279, 309-10 (1987) (citations omitted). Despite
the fact that sufficient proper evidence was submitted
to the ju ry to justify the finding o f Saldano’s future
dangerousness, the infusion of race as a factor for the
jury to weigh in making its determination violated his
constitutional right to be sentenced without regard to the
color of his skin.
It is appropriate for the Court to grant certiorari,
vacate the judgment below, and remand the case (GVR)
when such resolution is supported by the equities of the
case. Lawrence v. Charter, 516 U.S. 163, 167-68 (1996).
The Court has broad power to GVR. Id. at 166. When the
government confesses error in the judgment below, the
Court may vacate the judgment and remand the case to
the trial court for further proceedings. See, e.g., Fogel
v. United States, 335 U.S. 865 (1948); Shelton v. United
States, 346 U.S. 270,270 (1953). Further, in cases such as
this, when it appears that a confession of error reveals a
genuine and potentially determinative error by the court
below, a GVR is appropriate. Lawrence, 516 U.S., at 172.
CONCLUSION
For the reasons stated, Texas respectfully requests
that the Court grant the petition, vacate the trial court’s
imposition of sentence on Saldano, and remand the case
to the trial court with instructions that Saldano receive a
new sentencing hearing in which race is not considered.
307a
Respectfully submitted,
John Cornyn
Attorney General of Texas
A ndy Taylor
First Assistant Attorney General
Shane Phelps
Deputy Attorney General
for Criminal Justice
Gregory S. Coleman
Solicitor General
Counsel o f Record
Kurt H. Kuhn
Assistant Solicitor General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
(512) 936-1700
A ttorneys for Texas