Four women died near Donna, a town in Hidalgo County in the Rio Grande Valley of Texas, in early September 2002. They were Maria De La Luz Bazaldua Cobbarubias, Dantizene Lizeth Vasquez Beltran, Celina Linares Sanchez and Lourdes Yesenia Araujo Torres. Two other women with them survived. The prosecution's case was that members of a local street gang carried out the killings on orders, believing the women had witnessed a crime by another gang, and that they had picked the wrong group. Robert Gene Garza, then 20, was the man the State said had led the gang and planned the operation.
Garza was arrested in late January 2003, after police had questioned him about a separate case. In December 2003 a Hidalgo County jury convicted him of two counts of capital murder as a party to the offense, a finding that did not require proof that he had personally carried out any of the killings. He was sentenced to death. His appeals ran through the Texas Court of Criminal Appeals, the state habeas process, a federal district court, the Fifth Circuit and the Supreme Court of the United States, and failed at each stage. He was executed in Huntsville on September 19, 2013, aged 30.
Maria De La Luz Bazaldua Cobbarubias, Dantizene Lizeth Vasquez Beltran, Celina Linares Sanchez and Lourdes Yesenia Araujo Torres were living in the Donna area in 2002. Their ages are not on record. Two women who were with them survived.
Prosecutors told the jury that the four were not the intended targets. The State's theory was that a gang member had ordered an operation against two women who had been called to testify against him in another matter. The wrong women were killed. A gang member involved in that earlier matter accepted a plea agreement and a custodial sentence and was never tried.
Garza was born in Texas. He was 20 at the time of the offense. He had joined the gang before he was a teenager, and prosecutors said he had risen to lead it. A police gang specialist testified at trial about the group's structure and symbols, and photographs confirmed Garza's membership. The trial judge also required him to show his gang tattoos to the jury, a ruling the appeals court would later examine.
Garza's own role in this incident was contested from the start. The prosecution's position was that he had organized the operation, was present and may have taken part directly. Garza's position, in his later statements and appeals, was that he was present at most and had done nothing himself.
Garza was arrested in late January 2003. At that time police were investigating a separate case from the same month in which six people had died, and he was charged in that case but never tried. That matter was not mentioned to the jury at the Donna trial. Garza said that police questioned him after he had asked for a lawyer and that officers ignored the request.
On January 26, 2003, Garza gave a written statement. In it he admitted that he had taken part in a "hit" with other gang members, describing three other men. He later sent in an amendment, dated July 24, 2003, saying that he had written what investigators told him to write in exchange for privileges in jail, and that he knew nothing of the murders. At trial and afterward his lawyers argued that the statement was involuntary, pointing to promises that officers were said to have made about telephone calls and visits. The trial court accepted the officer's denial that any promises were made.
The case went to trial before a jury in the 398th District Court of Hidalgo County, cause number CR-0945-03-I. In December 2003 the jury found Garza guilty on two counts of capital murder. The first count alleged that he intentionally caused the deaths of more than one person during the same criminal transaction. The fourth count alleged the same killings as a member of a criminal street gang, and the judge entered a separate judgment for organized criminal activity under section 71.02 of the Penal Code.
The prosecutor, Joseph Orendain, said the evidence showed Garza was a gang leader who planned the killings and was present. The State relied on the written statement, on the physical evidence tying members of the gang to the scene, and on the gang specialist's account of how the group worked. The State proved that Garza was a party to the offense; it did not prove that he had personally carried out any of the killings.
Under Texas procedure the jury then answered special questions on punishment. Its answers required the judge to impose a death sentence on each count: one for the capital murder and one for the organized criminal activity.
An appeal in a Texas death-penalty case goes directly to the Court of Criminal Appeals. On January 31, 2007, in an opinion by Judge Price, the court affirmed the capital murder conviction and death sentence. Judge Womack dissented.
Garza had raised five main points. He argued that his statement had been involuntary because of the promises he said officers made, and the court deferred to the trial judge's finding that no promises were made. He argued that his lawyer had been ineffective in not objecting to a detective's testimony about information from gang members who did not testify; the court held that the record did not show why counsel acted as he did and deferred to possible strategy. He argued that being made to display his tattoos violated his privilege against self-incrimination and was unfairly prejudicial; the court held that the tattoos were relevant to the gang element, that their value outweighed any unfair prejudice, and that the display was not testimony. He argued that the evidence was factually insufficient because his statement was the only link between him and the offense; the court considered all the evidence, including the gang testimony and the physical evidence tying gang members to the scene, and held that it supported guilt as a party. He argued that his trial lawyers failed to present mitigating evidence at punishment, including evidence of mental capacity; again the court deferred to possible strategy.
The court raised a further issue itself, after supplemental briefing, about the second death sentence. It held that organized criminal activity based on a capital murder could not carry the death penalty, because applying the statute's classification rule literally produced an absurd result when the underlying offense was already the highest category. It construed the offense as a first-degree felony. It also held that punishing Garza for both offenses in one prosecution did not breach the double jeopardy clause, since the legislature had intended both to be punishable together. The result was that the capital murder conviction and death sentence stood, the organized criminal activity conviction was affirmed, and its death sentence was vacated and sent back for resentencing as a first-degree felony. The outcome of that resentencing is not on record. The court noted that a 2005 amendment had changed the range of punishment for capital felonies to life without parole or death, and applied the law in force at the time of the offense.
Garza filed his first state habeas application on January 11, 2006. After an evidentiary hearing, the state habeas court issued a 448-page opinion recommending denial, and on September 10, 2008, the Court of Criminal Appeals adopted that recommendation and denied relief.
He then went to the federal courts. His petition in the Southern District of Texas, No. 7:09-CV-258, raised nine claims. The district court granted summary judgment to the State on the merits and, on its own motion, refused a certificate of appealability on every issue. In the Fifth Circuit he sought a certificate on two ineffective-assistance claims: that trial counsel had failed to challenge the aggravating evidence about the separate January 2003 case, and that counsel had presented no mitigating evidence at punishment. On August 27, 2012, in an unpublished per curiam opinion, the Fifth Circuit denied the request, holding that reasonable jurists could not debate that the state court had applied Strickland v. Washington reasonably.
On February 19, 2013, the Supreme Court denied his petition for a writ of certiorari in No. 12-7535. His lawyer, Don Vernay, said afterward that his appeals were exhausted.
An execution date of September 19, 2013, was set by the trial court. In the final weeks Garza and his lawyers filed several further applications. On September 6 he moved for post-conviction testing of evidence under Chapter 64 of the Code of Criminal Procedure, thirteen days before the date. The trial court denied the motion, finding that he had not shown by a preponderance of the evidence that he would not have been convicted had the testing produced exculpatory results, or that the motion was not filed to delay the sentence. His appeal from the denial of a motion to withdraw the execution date and a motion to stay was dismissed by the Court of Criminal Appeals on September 18, 2013, as an unauthorized appeal. The same court affirmed the testing ruling on September 19.
The Texas Board of Pardons and Paroles voted 7-0 against recommending that his sentence be reduced to life. His clemency materials argued that he should not be executed as a party when none of the other men involved had been tried, and asked who and where the other parties were. His lawyers also argued that his trial attorneys had failed to present evidence that he stayed in the gang out of fear of reprisal if he left.
On September 19 the Supreme Court denied both his application for a stay and a petition for certiorari in No. 13-6444, with no dissent noted. Garza was executed in Huntsville that day. He was the twelfth person executed in Texas in 2013, and the Department of Criminal Justice lists him as execution number 504 since 1982.
Under section 19.03(a)(7) of the Texas Penal Code a person commits capital murder who murders more than one person during the same criminal transaction, or during different transactions under the same scheme or course of conduct. The statute says that "an offense under this section is a capital felony." A jury that finds guilt on a capital charge can instead convict of murder or another lesser included offense if it has a reasonable doubt on the capital count.
Garza was convicted as a party, not as the sole actor. Section 7.02(a)(2) makes a person responsible for an offense committed by another if, "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." The statute does not require that the party personally carried out the killing. His appeal, and the clemency campaign that followed, turned on that point: the Court of Criminal Appeals held that the evidence supported his guilt as a party even though the State did not prove he had acted himself.
Garza maintained that his written statement to police was coerced after two days of questioning. The trial court and the Court of Criminal Appeals rejected the claim that officers made improper promises. He also said that the statement was taken after he had asked for a lawyer.
In his statement Garza described three other men, and in later accounts he said he did not take part directly. Prosecutors did not accept that: Orendain said Garza was in all likelihood a direct participant and was downplaying his part. The Court of Criminal Appeals held that guilt as a party was enough and that the State had not proved he acted himself. Garza was also charged but never tried in the separate January 2003 case; he has no conviction in it, and the deaths in that case are not attributed to him.
Early September 2002: four women die near Donna, Hidalgo County, Texas; two others survive.
January 26, 2003: Garza gives a written statement to police.
Late January 2003: Garza is arrested.
July 24, 2003: Garza sends an amendment to his statement, saying it was written to match what investigators told him.
December 2003: A Hidalgo County jury convicts Garza of two counts of capital murder; he is sentenced to death.
January 11, 2006: First state habeas application filed.
January 31, 2007: Court of Criminal Appeals affirms the capital murder conviction and death sentence.
September 10, 2008: State habeas relief denied.
August 27, 2012: Fifth Circuit denies a certificate of appealability.
February 19, 2013: Supreme Court denies certiorari in No. 12-7535.
September 6, 2013: Garza moves for post-conviction testing of evidence; it is denied and the denial is affirmed on September 19.
September 18, 2013: Court of Criminal Appeals dismisses his appeal from the denial of a motion to withdraw the execution date.
September 19, 2013: Supreme Court denies a stay and certiorari; Garza is executed in Huntsville.