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Dominguez v. Davis

United States District Court, N.D. Texas, Fort Worth Division

July 26, 2017

ABEL NOE DOMINGUEZ, Petitioner,
v.
LORIE DAVIS, Director, [1] Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          Reed O'Connor Judge.

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Abel Noe Dominguez, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         1. BACKGROUND

         In May 2009 Petitioner was indicted in Tarrant County, Texas, Case No. 1149721D, for capital murder involving the murder of Alma Garcia after entering her home. Adm. R., Clerk's R. 2, ECF No. 13-14. The state appellate court set out the factual and procedural background of the case as follows:

Alma was the mother of four: two girls and two boys. J.J., a daughter from an earlier relationship, was eighteen; the other daughter, N.D., was fifteen. The boys, A. and N., were eight-year-old twins. J.J. was around eighteen months old when she and her mother moved in with Appellant and his parents. The other three children came later, after Alma, J.J., and Appellant had left his parents' home.
They moved into a house on Carnett Court in Fort Worth. Alma's older sister, Blanca, had signed a mortgage on the house so that Alma and her family could have a place of their own. Alma used the wages she and Appellant earned from their jobs to make the monthly mortgage payments. The few times Alma was unable to make the payments, Blanca made them for her. Approximately half of the thirty-year mortgage was paid off at the time of Alma's death in March 2009.
Appellant was a jealous man. Alma took care of her appearance, which made Appellant believe she was seeing another man. If she took too long at the grocery store, at the gym, or anywhere else, to him it meant that she must be having an affair. He warned her that she could not leave him until he decided he wanted her to. More than once, when Alma had problems with Appellant, Blanca reminded him that Blanca owned the house, and she advised him to leave Alma and the children there in peace.
On February 24, 2009, following an altercation, Appellant moved out, and Alma changed the lock on the front door.
The next week, J.J. and the twins were alone in the house when J.J. saw Appellant in the back yard with a ladder. J.J. stayed in the boys' room and heard Appellant try the back door and attempt entry through a dining room window. She phoned her mother.
Robert McWhorter lived in the house behind and one over from Alma's house, and they shared a portion of their backyard fences. Robert was in his backyard investigating what his dogs were barking at near the corner adjacent to Alma's yard when he saw Appellant near Alma's back door. Robert returned to his house, and looking out the kitchen window moments later, he saw Appellant, crouching on Alma's roof, apparently studying something.
Robert thought that was “real odd . . . very out of the ordinary” and it struck him “as something that was out of place.” He walked around the corner to Carnett Court and stood in front of Alma's house. He saw nothing unusual there, so he returned to his own cul-de-sac and took a position between his house and a neighbor's for a better view.
Appellant was still on the roof. Again, Robert walked toward Alma's house, and this time Appellant passed him on the street coming from the other direction. They nodded at each other but did not speak; Appellant continued to his car-parked on Robert's cul-de-sac-climbed in, and drove away.
After J.J.'s phone call, Alma pulled into the cul-de-sac to look into her backyard. She spoke to Robert, and seemed “real upset.”
The following Saturday night, March 7, 2009, the house on Carnett Court was empty. Alma and J.J. had gone to a friend's birthday party, the twins were across the street with a neighbor, and N.D. was at cheerleading practice. N.D. was the first to return home that evening; she retrieved her brothers and put them to bed in Alma's room, where they usually slept. Then she retired to the room she shared with her sister and turned on the television.
Around eleven o'clock, N.D. heard a noise on the roof, and her dog started barking at the window. When she looked out, she noticed that the ladder that usually lay on its side by the house was standing up against the roof. Nothing else appeared out of place, however, so after checking on her brothers, who had fallen asleep, she turned off her mother's television set and went to bed.
Alma and J.J. had stopped at Jack-in-the-Box on their way home and were eating in the girls' room when N.D. awoke briefly, saw that the time was three a.m., and fell back asleep. After Alma and J.J. finished eating, Alma went to her room and climbed into bed between the twins. J.J. put away the trash, said good night to her mother, and also went to bed.
N. woke to the bed shaking. He saw his dad on top of his mother, choking her. N. screamed, waking his brother. A. thought Appellant was punching Alma. The boys tried to shove Appellant off but could not budge him. Appellant got up, though, and exited the front door. A. locked the door behind him, returned to bed, and he and his brother eventually drifted back to sleep.
A. was the first to awaken in the morning. He saw his mother lying on the side of the bed; she did not look okay. He thought N. was dead because there was blood on N.s' [sic] face and clothes, and he did not wake up easily. Eventually, N. woke up, and when he touched his mother-she felt frozen. The boys ran to their sisters' room.
J.J. did not believe them when they told her that they thought their mother was dead. But after looking in on her and finding her cold, J.J. called 911.
Officers arrived and taped off the driveway, yard, and part of the street. Inside the house, they found bloodstains on the front door. In the master bedroom, they discovered Alma's body partially on the bed. She had multiple wounds on her chest and neck. Some were not very deep, surface-type wounds. Others were penetrating, “incise wounds made by a very sharp object.” Beneath her shoulder, the officers found a kitchen knife with blood on it-the blade slightly bowed, and the tip bent.
Outside, on the roof where earlier Robert had seen Appellant crouching, officers noticed that the wooden slats that normally would cover the gable had been removed, leaving a space large enough for a person to squeeze through into the attic. Inside the attic, a beam on the floor ran directly to a plywood panel that covered an opening into the boys' room, which had been converted from the garage some time before.
In the boys' room, the panel was in its place in the ceiling. But dust and bits of insulation matching the attic insulation were on the floor around a dresser that sat directly below the panel, close enough so that a person climbing out of the attic could use the dresser as a step. In the dust on top of the dresser, officers observed a “shoe transfer impression.” And from the dust on the floor in front of the dresser, the officers lifted a partial right shoeprint.
While those officers were investigating the scene on Carnett Court, others were dispatched to a reported attempted suicide nearby. When the officers arrived, they found Appellant on a stretcher inside an ambulance, with his wrists cut. His wounds were serious, though not life-threatening, and he was transported to the hospital. Appellant asked an officer if his kids were okay and said that his wife had left him for another man.
Officers arrested Appellant for murder. Among his effects they seized were a pair of black K-Swiss tennis shoes and a key ring with seven keys. None of the keys on the key ring fit any of the locks at the house on Carnett Court. The general design, size, and tread pattern of Appellant's right tennis shoe, however, were indistinguishable from those of the print lifted from the floor of the boys' room.
The medical examiner ruled Alma's death a homicide, having determined that its cause was two wounds made with a sharp object that had transected the left common carotid artery and the vein next to it.
The State waived the death penalty, and Appellant was tried for capital murder. At the close of the State's evidence, Appellant moved for a directed verdict, which the trial court denied. The jury found Appellant guilty, and the trial court sentenced him to life.

Mem. Op. 2-7, ECF No. 13-3.

         The state appellate court affirmed the trial court's judgment on appeal, and the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review. Docket Sheet 1, ECF No. 13-2. Petitioner also filed a state habeas-corpus application raising his ineffective-assistance-of-counsel claims, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. Writ Rec'd & Action Taken, ECF Nos. 13-19, 13-20 & 13-21.

         II. ISSUES

         In this federal petition, Petitioner raises three grounds for relief: ineffective assistance of trial counsel (ground one) and ...


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