United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER DENYING PETITION FOR A WRIT OF
Kenneth M. Hoyt, United States District Judge
Russell, Jr., has been on Texas' death row since 2003 for
the capital murder of Tanjala Brewer. After unsuccessfully
challenging his conviction and sentence on state appellate
and habeas review, Russell petitions for federal habeas
corpus relief. (Docket Entry No. 37). Respondent Lorie Davis
has filed an answer and moved for summary judgment. (Docket
Entry No. 47). Traditional limitations on federal review of
state court judgments guide adjudication of Russell's
petition. In particular, the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”) defines both the
scope and nature of this Court's review. Having reviewed
the record, the pleadings, and the applicable law, the Court
will deny Russell's federal petition. The Court will not
certify any issue for appellate review.
August 13, 2001, family members found the body of
forty-year-old Tanjala Brewer lying on the floor of her
kitchen. Her throat had been slit and blood pooled by her
neck. Her body had been posed in a spread-eagle position with
her skirt raised. A crack pipe had been placed in her hand.
first responders entered they discovered the gas on and lit
candles throughout the house. Bloody drag marks from the
bedroom to the kitchen suggested that her body had been
moved. Blood pooled in Ms. Brewer's bed and was spattered
across the headboard. A machete was lying nearby. Someone had
apparently written on the bedroom mirror with blood. The
words: “She is a devil. I am God” had also been
scrawled across the closet doors in blood.
autopsy counted twenty-three sharp-force injuries on Ms.
Brewer's hands, neck, and torso. One stab wound had
penetrated at least seven inches into her left breast.
Hemorrhaging in her eye suggested that she had suffered
asphyxiation. Footprints indicated that the assailant had
stomped on her legs and stomach.
police quickly identified Russell as a suspect. A witness, in
fact, had seen Russell watching first responders from across
the street as they investigated the grizzly scene. The police
located Russell a few days later at a motel. When the police
entered his room, a pornographic movie was playing on the
television and the bathroom door was closed. The police
opened the door to find Russell in the bathtub, foaming at
the mouth and holding a bottle of rat poison.
police subsequently recorded two oral statements, both of
which served as the basis for charging Russell with capital
murder. Under Texas law, “the gravamen of capital
murder is intentionally (or knowingly) causing a death, plus
any one of various different types of aggravating
elements.” Gardner v. State, 306 S.W.3d 274,
302 (Tex. Crim. App. 2009). In the subsequent trial, the
defense did not dispute that Russell had murdered Ms.
Brewer. In fact, trial counsel told jurors in
closing: “From day one, we have never tried to hide the
ball from you. The issue in this case is not who did it. It
has never been who did it. It has always been why.” Tr.
Vol. 18 at 17. The defense focused its efforts on disproving
the aggravator that made the killing a capital crime.
State of Texas charged Russell with capital murder “in
the course of committing or attempting to commit . . .
obstruction or retaliation” under Tex. Penal Code
§ 19.03(a)(2). To secure a conviction, the State had to
prove that Russell murdered the victim in retaliation, that
is, he “intentionally or knowingly harm[ed] or
threaten[ed] to harm another . . .: (1) in retaliation for or
on account of the service or status of another as a . . .
person who has reported or who the actor knows intends to
report the occurrence of a crime; or . . . to prevent or
delay the service of another as a . . . person who has
reported or who the actor knows intends to report the
occurrence of a crime.” Tex. Penal Code §
36.06(a); Clerk's Record at 350. The State of Texas
argued that Russell killed Ms. Brewer because she had
informed the police of his drug dealing; the defense argued
that he slashed and stabbed her in a jealous rage. Both
versions of the murder sprang from statements Russell made to
the police in the hospital.
Police Department Sergeant Hal Kennedy arrested Russell after
finding him in the motel. Tr. Vol. 17 at 11-14. Sergeant
Kennedy obtained an audiotaped statement in the hospital
emergency room. Russell waived his rights and agreed to speak
with the police officers. Tr. Vol. 17 at 13-14. Sergeant
Kennedy asked Russell to tell “[i]n [his] own words . .
. what happened and why [he] did what [he] did.”
Russell: She . . . she set-she set me up -- she set me up
with the police.
Sgt. Kennedy: Who is she?
Russell: Her name is [Tanjala] Bull.
Sgt. Kennedy: Okay and how did she set you up with the
Russell: She brought an undercover to my house saying it was
her nephew, that her nephew wanted to buy some drugs, so she
got out the truck, and I took her home, and about fifteen or
thirty minutes later her nephew, which is the undercover,
call me and I met him up there at Family Dollar --
McDonald's and that's when I got busted.
Sgt. Kennedy: Okay, but wasn't she doing some other
things to you too? Wasn't she like . . .? Were y'all
going together. Were y'all hanging out together?
Russell: Right. Right we use to go together.
. . .
Russell: We used to go together off of . . . I met her on the
streets. I tried to take her off drugs. She was stealing from
her. She had a lot of debts. I was paying them off and we
were together about a year -year and a half. And then you
know what I'm saying we broke up and that's when she
set me up with the laws.
Sgt. Kennedy: But why did she set you up just to be mean? Or
was there a purpose for it? Or . . .?
Russell: All I know cause I basically knows I left her alone
and she basically had anywhere to go basically. You know.
Sgt. Kennedy: Okay ah now tell me how it is - how it is that
she got killed whatever.
Russell: Basically ah I went over her house and you know
since she let me in and she was smoking some drugs whatever
and you know we were just talking whatever you know about the
things we used to do and I was basically asking her
“Why did you set me up?” “Why did you set
me up?” and she kept on denying it talking bout I
ain't set you up. I ain't set you up. Saying if you
would have stayed with me, none of this would have happened
whatever. And basically you know what I'm saying I just .
. . I just went off. I just snapped.
Sgt. Kennedy: Had you been doing any drugs Pete?
Russell: No sir.
Sgt. Kennedy: Did you thing [sic] it would ever happen? Or
you just . . . you just. . . why don't you tell me what
Russell: It just . . . I just happened all the while she was
smokin you know what I'm saying and the last thing she
said “If you would have stayed with me it would have
never happened. And the next thing I know I just snapped like
that you know there was a knife on the lit dresser right
there and I just grabbed it and jumped on her right there.
Sgt. Kennedy: What kind of knife was it Was it . . .?
Russell: A lil . . . A lil kitchen knife.
Sgt. Kennedy: What color . . . what color was the handle?
Sgt. Kennedy: Was that (inaudible) machete (inaudible) . . .
Anybody use the machete? Or was that your her machete or your
Russell: That was her machete I remember it being in her
Sgt. Kennedy: But did it have anything to do with all this?
Sgt. Kennedy: What happened after - after she got killed?
What did you do?
Russell: I basically (ah) inaudible we tussled you know what
I'm saying to the ah to the kitchen or whatever.
Sgt. Kennedy: Okay.
Russell: And Ah you know ah you know I was talking to her
while she was still you know living or come dead whatever I
Sgt. Kennedy: What you say to her?
Russell: Know what I'm saying you know nobody didn't
you know what I'm saying make me do it. Nobody to set me
up and ah (inaudible) and ah I had ah turned on ah in the
bedroom you know what I'm saying was lighting a cigarette
. . .
Tr. Vol. 21, SX 1A at 2-4. The next morning Russell gave
another brief statement to Sgt. Kennedy after he had been
transferred to jail:
Sgt. Kennedy: Okay. Now what else would you like to tell us
about this thing?
Russell: I really like to say though that I'm sorry and
that I really loved [the victim] and if ah I could do it all
over again, It wouldn't have happened.
Sgt. Kennedy: You didn't mean to kill her?
Russell: No sir.
Sgt. Kennedy: You lost your temper didn't you?
Russell: Yes sir I just snapped and like a say I loved her, I
loved the family you know what I'm saying the son and
everything and If I had the chance to do it over again, I
wouldn't have done it. I want her family to know that
I'm sorry and her friends you know that I'm sorry and
that ah I would always love her and everything.
Tr. Vol. 22, SX 175A. Russell's statements provided the
basis for the case presented by both the prosecution and the
The Prosecution's Case
State placed Russell's statement into a broader story
involving Ms. Brewer's role in his conviction for selling
narcotics to a police officer. Ms. Brewer was a paid
confidential informant for the Houston Police Department. Ms.
Brewer and Russell dated for about a year but had ended their
relationship in early 2001 when he met another woman, Karen
Foster. Russell and Ms. Brewer, however, continued to see
each other after their romantic relationship ended.
2, 2001, Ms. Brewer introduced Russell to undercover
narcotics officer D. K. Bush. She told Russell that Officer
Bush was her nephew and that he wanted to buy crack cocaine.
A few hours later, Officer Bush called Russell and arranged
to buy drugs. When Russell and Ms. Foster made the delivery,
the police arrested both for delivery of a controlled
faced serious prison time because he had prior felony
convictions. The parties dispute at what point Russell became
aware that Ms. Brewer set him up. The State argued that
Russell knew that Ms. Brewer was a confidential informant
well before he killed her. While out on bond, Russell
accompanied her to pick up payment for her services in an
unrelated case. Officer Bush was surprised to see Ms. Brewer
with Russell; he had warned her to keep secret her status as
a confidential informant. Russell told a friend that “a
lot of people in the neighborhood told him” that Ms.
Brewer had turned him in. Tr. Vol. 16 at 86.
Russell's sentencing approached, he displayed animosity
toward his former girlfriend. On August 3, 2001, Ms. Brewer
received a handwritten letter from Russell which stated, in
part, “I cannot trust you no more. You are evil and out
to hurt me. . . . I don't need you no more. So go back to
your X X X X X [sic].” Tr. Vol. 16 at 48. Ms. Brewer
told a friend that Russell scared her.
pleaded guilty on August 9, 2001, to delivery of a controlled
substance. He received a ten-year sentence. The judge gave
him until September 7, 2001, to report to serve his sentence.
Ms. Foster, though, remained in custody. Tr. Vol. 16 at 174.
this same time, Ms. Brewer began dating Wilbert Reed. Shortly
before midnight on August 12, 2001, Mr. Reed stopped by Ms.
Brewer's house on his way to work a night shift. They had
sexual intercourse. Mr. Reed called Ms. Brewer repeatedly
during his shift, but her phone was busy. Mr. Reed was angry
and assumed that she had taken her phone off the hook.
after midnight, Russell came to Ms. Brewer's house.
According to the State's version of events, Russell was
not a jealous lover because of the victim's relationship
with other men, but an angry criminal convict because of the
victim's relationship with the police. The State relied
on Russell's statement to argue that, in a rage of anger
for his narcotics conviction, Russell repeatedly stabbed the
victim. The prosecution premised its argument on how Russell
had described the killing. Russell said that he confronted
the victim with having “set him up, ” and then he
“just snapped” when she told him: “if you
would have stayed with me, none of this would have happened .
. . .”
then dragged her body to the kitchen and placed it close to
the stove. After posing the corpse, Russell turned on the gas
and lit candles. The State argued that Russell hoped the
house would catch on fire. The State argued that the evidence
proved retaliation, not jealousy, drove Russell to kill.
The Defense's Case
counsel elected to proceed with a defense also
based on Russell's statement to the police. In doing so,
trial counsel did not dispute Russell's identity as the
killer. Instead, counsel relied on ambiguity in Russell's
statement to argue that, because he did not attack Mr. Brewer
in retaliation for turning him in, this was not a capital
crime. Trial counsel summarized this theory in his state
In order to rebut the element of retaliation, the defense
theory of the case was that the defendant and [Tanjala]
Brewer had been in a relationship but that Brewer, who used
cocaine, was also involved with other men. The night of the
murder, the defendant and Brewer argued with each other and
the defendant snapped when Brewer pulled a knife. As the
defense said in our opening statement, this was not a case of
retaliation, it was a case of jilted and unfaithful love. The
defendant testified to this at guilt-innocence - that he
snapped when Brewer told him she had sex with another man.
Habeas Record at 510. As trial counsel told jurors in closing
arguments: “The issue of this case is not who did it.
It has never been who did it. It has always been why. . ..
And I think when you bring it all down, it comes down to the
issues of jealousy.” Tr. Vol. 18 at 17-18.
defense, however, faced a difficult challenge in convincing
jurors that the murder was the impassioned act of a rejected
lover. The strongest support for the defense's case came
from Russell himself. In addition to relying on his statement
to the police, the defense called Russell as a witness to
describe why he killed Ms. Brewer.
with the defense's chosen strategy, Russell testified
that he killed Ms. Brewer in a jealous rage for flaunting
another relationship in his face as she attacked him with a
knife. Russell explained that he and Ms. Brewer had been
dating for a “a year, a year and a half” during
which time he came to trust her “very much.” Tr.
Vol. 17 at 89. The relationship “broke down”
after Russell “got busted” for narcotics. Tr.
Vol. 17 at 90. Russell claimed that, before that night, he
did not know that Ms. Brewer had set him up. Tr. Vol. 17 at
testified that he was jealous because he thought Ms. Brewer
had a relationship with Donald Ray Hawkins, a man from whom
she bought drugs. Tr. Vol. 17 at 93-94. Russell felt angry
about their relationship, especially after he found her alone
in a motel room with Mr. Hawkins. Tr. Vol. 17 at 95. Russell
did not know that Ms. Brewer was also dating Wilbert Reed,
but he was suspicious about their relationship. Tr. Vol. 17
said he went to Ms. Brewer's house because she wanted him
to buy her some drugs. Russell took with him a diamond ring
which he had purchased with the intent of proposing marriage
to her. Tr. Vol. 17 at 96-98. Soon after Russell arrived,
however, they began arguing when Ms. Brewer said she was
going to purchase drugs from Mr. Hawkins. As the argument
intensified, Russell said that Ms. Brewer picked up a knife
and confessed to relations with Mr. Hawkins. Tr. Vol 17 at
104-06, 118-119. As she came toward him, Russell became
enraged, picked up a knife, and began stabbing Ms. Brewer.
Tr. Vol. 17 at 106.
also explained some of the bizarre elements of the crime.
Russell said that, after killing Ms. Brewer he fainted and,
when he came to, heard a voice saying “Tell them who I
am, tell whom I am.” Tr. Vol. 17 at 108, 110. He then
wrote with the victim's blood on the wall. Tr. Vol. 17 at
108, 110-111. He testified that he left symbols in the crime
scene: he positioned the victim's body and lit candles
with the natural gas running to represent the elements of the
universe. Tr. Vol. 17 at 111-13. Russell admitted that he
stepped on Ms. ...