United States District Court, W.D. Texas
MEMORANDUM OPINION AND ORDER
RODRIGUEZ UNITED STATES DISTRICT JUDGE
the Court are Petitioner Luis Arnaldo Baez's Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF
No. 1), Petitioner's Memorandum in Support and Supplement
to Memorandum in Support (ECF Nos. 12 & 13),
Respondent's Answer (ECF No. 19), and Petitioner's
Reply (ECF No. 23). Having reviewed the record and pleadings
submitted by both parties, the Court concludes Petitioner is
not entitled to relief under the standards prescribed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See 28 U.S.C. § 2254(d).
Petitioner is also denied a certificate of appealability.
jury indictment returned August 12, 2013, charged Petitioner
with one count of continuous sexual abuse of a child naming
“D.I.” as the complainant and one count of
continuous sexual abuse of a child naming “D.R.”
as the complainant. (ECF No. 20-1 at 4-8). Petitioner was
also charged with twenty-one counts of aggravated sexual
assault of a child and seven counts of indecency with a child
by contact, with “B.M.” and “A.D.”
named as complainants. (ECF No. 20-1 at 16-18, 48). The State
eventually waived prosecution on all charges other than
continuous sexual assault of a child. (ECF No. 20-1 at 65;
ECF No. 20-16 at 6-7).
day before Petitioner's trial, the trial court conducted
a hearing pursuant to Texas Code of Criminal Procedure
article 38.37. (ECF No. 20-16 at 7-90). At the conclusion
of the hearing, the court determined B.M.'s testimony was
admissible and A.D.'s testimony was not admissible. (ECF
No. 20-16 at 88-90).
Fourth Court of Appeals summarized some of the testimony
presented at Petitioner's trial as follows:
At trial, Sylvia Perez testified D.I was placed in foster
care in the home of appellant and his wife on a variety of
dates, including December 28, 2006 through March 3, 2009; and
March 10, 2009 through March 18, 2009. D.I. testified she was
born on February 17, 1995. D.I. said the first time appellant
touched her was in the middle of her sixth grade of school.
She said appellant touched her “often, ” more
than ten times, more than once a week, and the abuse
continued until she moved out of his house.
Annette Santos, the sexual assault nurse examiner, testified
she examined D.I. when D.I. was fifteen years old. Santos
said D.I. told her she went to appellant's home when she
was about eight years old, and “[i]t started happening
when I was 12 to 14, ” and the “last time [she]
was 13 to 14 years old.” D.I. described appellant
putting his finger in her “private” and making
her “suck his private part.” D.I. also told
Santos appellant “put his private part in [her] front
D.R. testified she lived in appellant's house for
“a year and a half, ” but she later stated it was
for sixteen months, and Perez testified D.R. was placed in
foster care in appellant's home at the beginning of March
2007 and through 2009. Therefore, the jury could have
reasonably inferred D.R. lived with appellant during the
relevant time period. D.R. testified repeatedly that
appellant had sex with her every single day and the entire
time she lived in the house. On appeal, appellant takes issue
with D.R.'s use of the word “sex, ” arguing
the word is never defined and “did not involve specific
acts of sexual abuse that were described by the prosecutor
during her direct examination.” Although D.R. said
appellant had sex with her every single day, she was also
more specific and graphic in her description of what
appellant did to her and made her do to him. Also, at one
point the State asked, “When you say having sex, are
you talking about putting his private in your private?”
and D.R. replied, “Yes.” D.R. had previously said
“his private part” meant appellant's penis
and “her private part” meant vagina.
Baez v. State, 486 S.W.3d 592, 594-97 (Tex.
App.─San Antonio 2015, pet. ref d).
testified she was 13 years of age when she began living with
Petitioner, and that she witnessed Petitioner abuse D.I. (ECF
No. 20-18 at 63, 68-69, 78). She testified that Petitioner
penetrated her and she bled afterward. (ECF No. 20-18 at
70-71, 79-80). B.M. testified she was three or four when
Petitioner abused her by touching her “private”
with his hands, his mouth, and his penis. (ECF No. 20-19 at
11-13). She testified Petitioner put his penis in her mouth
and then ejaculated, and that she bit him. (ECF No. 20-19 at
17). She testified she did not know and had never spoken to
D.R. or D.I. (ECF No. 20-19 at 25).
wife and daughter testified for the defense. (ECF No. 20-19
at 140-71, 172-205). Petitioner's daughter testified that
D.I. “said that she would make up a story so that
people would believe her and take me and my dad away. So that
me and my dad could be away from my mother because she wants
to live with my mom and just my mom.” (ECF No. 20-19 at
157). The daughter testified D.I. said this “more than
a thousand times.” Id. The testimony that D.I.
made these statements was corroborated by Petitioner's
wife. (ECF No. 20-19 at 181). Petitioner did not testify at
April 14, 2014, the jury found Petitioner guilty on both
counts of continuous sexual abuse of a child. (ECF No. 20-1
at 46-47). Petitioner elected to have the court impose
punishment. After a hearing and preparation of a presentence
investigation report, the trial court assessed punishment at
consecutive terms of life imprisonment. (ECF No. 20-01 at
51-53; ECF No. 20-21; ECF No. 20-22 at 4-5).
conviction and sentence were affirmed on appeal, and the
Texas Court of Criminal Appeals refused a petition for
discretionary review. (ECF No. 20-13). The United States
Supreme Court denied a petition for certiorari. Baez v.
Texas, 137 S.Ct. 303 (2016). Petitioner did not seek a
state writ of habeas corpus.
federal habeas petition, Petitioner asserts the trial
court's jury instructions constituted structural error
and violated Petitioner's Sixth Amendment and Due Process
rights to a jury trial and to have all elements of the
indicted offenses be proven beyond a reasonable doubt.