Rogelio Reyes Cannady was a Texas prisoner who, while serving two life sentences for murders committed at the age of 17, killed a fellow inmate in October 1993. He was tried in Bee County for capital murder and sentenced to death on December 5, 1997. He was the first Texas prison inmate prosecuted under a statute that took effect on September 1, 1993 and made murder a capital offense when the accused was already serving a life or 99-year sentence for a serious offense. His case tested whether that law could reach a man whose earlier crimes pre-dated it. Courts at every level held that it could, and Texas executed him on May 19, 2010.
Cannady was born on May 29, 1972, in Val Verde County, Texas. On June 29, 1990, he committed two murders in Cameron County. The dead were two teenagers, a boy of 16 and a girl of 13. Cannady was 17.
He was convicted of both murders on January 22, 1991, and received a life sentence for each. He entered the Texas prison system on May 28, 1991. Years afterward, as his execution date approached, he argued that his confession in the 1990 case had been coerced and that the conviction was tainted. The outcome of that argument is not on record, and the 1990 convictions stood throughout the later proceedings.
On October 10, 1993, when Cannady was 21, he killed a fellow inmate, a man of 55. Cannady had no co-defendant. The killing came nine days after the new Texas capital murder provision took effect, and that timing became the central legal question in the case that followed.
Section 19.03(a)(6) of the Texas Penal Code makes a murder capital when it is committed by a person serving a sentence of life imprisonment or a term of 99 years for an offense on a list of serious felonies. Cannady was indicted for capital murder on June 2, 1994. The defense moved to quash the allegations that raised the charge to a capital one, arguing that his earlier offenses were committed before the statute took effect. The trial judge agreed and granted the motion on January 27, 1995, which removed the capital allegations from the case.
The State appealed. On January 4, 1996, the Thirteenth Court of Appeals of Texas reversed the order and reinstated the allegations, in State v. Cannady, 913 S.W.2d 741. The Texas Court of Criminal Appeals declined to review the decision, and the case returned to the trial court.
Cannady was tried in Bee County, and on December 5, 1997 he was convicted of capital murder and sentenced to death. He arrived on Texas death row the same day. He testified in his own defense. On cross-examination he admitted that some of his earlier statements to a prison investigator had been false, and the prosecution questioned whether his account had changed after he spoke with an attorney.
The Court of Criminal Appeals noted that Cannady did not challenge the sufficiency of the evidence for his conviction or sentence. The state habeas court later found that he had rejected a plea offer that would have avoided a death sentence.
The Court of Criminal Appeals decided his automatic direct appeal in Cannady v. State, 11 S.W.3d 205, in an opinion by Judge Keasler delivered on January 5, 2000. The court was unanimous. It affirmed the conviction and death sentence and denied rehearing on March 8, 2000.
Cannady raised a series of points. He argued that the dates of his earlier offenses were an element of the capital offense and that applying the statute to him violated the ban on ex post facto laws. The court rejected both claims. He challenged the denial of challenges for cause against four prospective jurors; the court found no abuse of discretion, and noted that he had received two extra peremptory strikes and could not show harm. It denied his claims about the prosecutor's cross-examination and closing argument, held that the death penalty scheme was constitutional, and rejected equal protection and cruel and unusual punishment claims directed at the line the statute draws at life or 99 years. It also held that Article 42.08(b) did not require the death sentence to be stacked onto his existing life sentences. In the court's words, "the sentence of death may be executed without regard to other sentences Cannady might have pending."
The first state habeas application was dismissed on May 23, 2001. A second was dismissed on October 22, 2003 as an abuse of the writ. Cannady had meanwhile filed a federal petition in the Southern District of Texas, Corpus Christi Division. On April 29, 2005 the district court granted summary judgment to the State and refused a certificate of appealability.
On March 22, 2006, in an unpublished per curiam opinion, a panel of the U.S. Court of Appeals for the Fifth Circuit (Chief Judge Jones and Circuit Judges Barksdale and Prado) also denied a certificate of appealability. Cannady had argued that trial counsel was ineffective in five respects: failing to advise him to accept the plea offer, failing to stipulate to his earlier murder convictions outside the jury's presence, failing to object to testimony of officers at the punishment phase, failing to object to the jury charge on parole eligibility and the burden of proof, and cumulative error. He also raised a claim tied to actual innocence, a request for an evidentiary hearing, and an ex post facto challenge to section 19.03(a)(6). The panel held that the state habeas findings carried a presumption of correctness he had not rebutted, that he had not shown prejudice from counsel's conduct, that the evidence did not support his actual-innocence theory, and that the statute treats a prisoner's status as a present element, much as recidivist enhancement laws do, so that it was not applied retroactively.
His execution was set for May 19, 2010, when he was 37. In his final days he argued, as he had before, that the confession behind his 1990 convictions had been coerced.
On May 19, 2010, the U.S. Supreme Court denied an application to stay the execution, which had been presented to Justice Scalia and referred to the full Court, and denied a petition for a writ of habeas corpus (docket 09-10822). Cannady was executed in Texas that day. It was the tenth execution in Texas in 2010.
Texas added section 19.03(a)(6) to its capital murder statute with effect from September 1, 1993. It reaches a prisoner serving a life or 99-year term for an offense on a statutory list, and it makes a further murder by that prisoner eligible for the death penalty. The Court of Criminal Appeals applied it to Cannady although his earlier crimes pre-dated it, and rejected his claim that the dates of those crimes were an element the State had to satisfy. The Fifth Circuit reached the same result on his ex post facto claim, treating inmate status as a present element of the offense in the way recidivist enhancement laws do.
Cannady argued that his confession in the 1990 case was coerced, and that this tainted his original conviction. The outcome of that argument is not on record, and the convictions were not set aside. He also argued that the capital statute could not reach him because his earlier offenses predated it, and that his death sentence should be treated as running alongside the life sentences. Each argument was rejected by the Court of Criminal Appeals, and the first was rejected again by the Fifth Circuit. His claim of actual innocence in the 1993 case was rejected by the federal courts for want of supporting evidence.
May 29, 1972: Born in Val Verde County, Texas.
June 29, 1990: Two murders in Cameron County, committed at the age of 17.
January 22, 1991: Convicted of both murders; two life sentences.
May 28, 1991: Received by the Texas Department of Criminal Justice.
September 1, 1993: Texas Penal Code section 19.03(a)(6) takes effect.
October 10, 1993: A fellow inmate, 55, is killed.
June 2, 1994: Indicted for capital murder in Bee County.
January 27, 1995: Trial judge quashes the capital allegations.
January 4, 1996: Thirteenth Court of Appeals reverses and reinstates them.
December 5, 1997: Convicted of capital murder and sentenced to death.
January 5, 2000: Court of Criminal Appeals affirms; rehearing denied March 8, 2000.
May 23, 2001: First state habeas application dismissed.
October 22, 2003: Second state habeas application dismissed as an abuse of the writ.
April 29, 2005: Federal district court denies relief.
March 22, 2006: Fifth Circuit denies a certificate of appealability.
May 19, 2010: U.S. Supreme Court denies a stay and a habeas petition; executed in Texas.