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Tercero v. Stephens

United States Court of Appeals, Fifth Circuit

December 18, 2013

Bernardo Aban TERCERO, Petitioner-Appellant
v.
William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

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[Copyrighted Material Omitted]

Page 143

Donald Vernay, Rio Rancho, NM, for Petitioner-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A Texas jury sentenced Bernardo Aban Tercero to death for a murder during the course of a robbery. Tercero challenges his capital sentence in federal court, claiming that he is exempt from execution pursuant to Roper v. Simmons. [1] The district court denied habeas relief and Tercero now seeks a Certificate of Appealability (" COA" ). We deny Tercero's application.

I

On March 31, 1997, Tercero and an accomplice forced their way into the back door of a dry-cleaning establishment.[2] While his accomplice held the employees at gunpoint in the back of the store, Tercero went to the front of the store.[3] There, Tercero fought a customer, Robert Berger. In the struggle, Tercero shot and killed Berger, in front of Berger's three year old daughter.[4] Tercero and his accomplice then fled with two cash registers.[5]

After a several-month investigation, Texas charged Tercero with capital murder

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committed during the course of a robbery. By then, Tercero had fled the United States to Nicaragua, his country of origin. While in Nicaragua, Tercero is alleged to have been involved in a series of violent crimes, including several robberies, shootings, and a kidnapping.[6] Soon thereafter, the United States obtained a federal warrant for Tercero based on his flight to avoid prosecution. Tercero was arrested upon his re-entry into the United States two years later.

At trial, Tercero's defense focused on a lack of a specific intent to kill. Although he acknowledged that he shot Berger, Tercero testified that Berger tried to grab the gun from him and, in the course of the ensuing struggle, he accidently shot Berger. Having conceded guilt on the aggravated robbery, Tercero argued to the jury that he should be convicted of felony murder, rather than capital murder.[7]

The State presented witnesses who contradicted Tercero's version of the facts, including one witness who testified that Tercero initially assaulted Berger and another who testified that Tercero said he had shot Berger because Berger made him angry and could identify him.

The trial court instructed the jury to consider the lesser-included offenses of felony murder and aggravated robbery. The jury convicted Tercero of capital murder. A separate penalty phase hearing followed. Under controlling Texas law at the time, the jury had only two sentencing options for a capital murder conviction: the death penalty or life with the possibility of parole after 40 years. The State presented substantial evidence of Tercero's criminal history, including his two prior domestic convictions for theft and his string of violent crimes in Nicaragua. Additionally, the State focused on the brutality of Tercero's murder of Berger.

Tercero presented eight witnesses, including: Tercero's family members from Nicaragua; a jail employee; and, a jail chaplain. Tercero's family members testified that he had a good general character and that they believed he was capable of rehabilitation. The jail employee testified that Tercero had been peaceful and non-violent while awaiting trial. The jail chaplain ...


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