United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
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.
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
After J.J.'s phone call, Alma pulled into the cul-de-sac
to look into her backyard. She spoke to Robert, and seemed
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
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
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
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.
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.
federal petition, Petitioner raises three grounds for relief:
ineffective assistance of trial counsel (ground one) and