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Baez v. Davis

United States District Court, W.D. Texas

May 29, 2018

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Before 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).[1] 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.

         I. Background

         A grand 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).

         On the day before Petitioner's trial, the trial court conducted a hearing pursuant to Texas Code of Criminal Procedure article 38.37.[2] (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).

         The 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 private.”
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).

         D.R. 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).

         Petitioner's 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 his trial.

         On 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).

         Petitioner's 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.

         In his 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.

         II. Stand ...

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