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George CORDOVA
A.K.A.: "Spiderman"
Classification: Murderer
Characteristics:
Robbery
- Rape
Number of victims: 1
Date of murder:
August 4,
1979
Date of birth:
February 26,
1959
Victim profile: Jose
"Joey" Hernandez (male, 19)
Method of murder:
Beating with a tire iron
/ Stabbing
with a pocketknife
Location: Bexar County, Texas, USA
Status:
Executed
by lethal injection in Texas on February 16,
1999
Date of
Execution:
February 10,
1999
Offender:
George Cardova
#706
Last
Statement:
For the pain I have caused you. I am
ashamed to even look at your faces. You are great people.
To my brothers on Death Row.
Mexico, Mexico…(Spanish).
George "Spiderman"
Cordova was convicted of the August 4, 1979 robbery and murder of
Joey Hernandez, 19, in San Antonio, Texas.
Joey and his date
were at Espada Park, sitting in his car, when they were approached
by Cordova and three other men.
Cordova, already a
career criminal at nineteen, asked Joey to take him to a gas station
but Joey refused because he noticed one of the other men had a knife.
Cordova pulled Joey
from his car and Joey was savagely beaten with a tire iron by
Cordova and stabbed repeatedly by the other man.
Joey's girlfriend
was pulled from her car and forced into the woods where she was
beaten and repeatedly raped but survived and testified in Cordova's
trial. Cordova and his accomplice then stole Joey's car.
While awaiting
trial on Joey's murder in Texas, Cordova escaped from prison. While
a fugitive from Texas, he was arrested in Florida and sentenced to
30 years for raping a teacher after firing into her car and forcing
her off the road.
He also was among
armed inmates who hurt 16 other prisoners and a guard during a 1981
riot at the Sumter Correctional Institution in Florida.
During his murder
trial in San Antonio, bailiffs discovered he had a key to his
handcuffs. And while on death row, Cordova was questioned about his
involvement in the stabbing of a fellow inmate.
George “Spiderman” Cordova
A notorious escape artist and criminal nicknamed “Spiderman”
escaped from jail while awaiting trial for murder and was caught
only after committing another crime.
George “Spiderman” Cordova
was arrested in 1979 for the murder of Jose Hernandez. However,
Cordova postponed his trial for several months by escaping from
the old Bexar County Jail, which earned him his nickname of “Spiderman.”
The escape occurred on Sep.
26, 1980. Cordova escaped by gaining access to a catwalk, Lt.
Victor Quintanilla of the Bexar County Sheriff’s Department
confirmed. “Cordova then escaped through a six-inch gap he had
made by breaking out some bars in a louvered window that had
been damaged,” Quintanilla said. “He then jumped to a chain-link
fence because he could not reach the stairwell that was being
constructed.” Cordova climbed down the fence to his freedom.
“After Cordova escaped from
jail he did drugs and may have even been pimping,” said Richard
Langlois, Cordova’s attorney in his first trial.
Cordova was caught several
months after his escape in Florida when he was arrested for
aggravated sexual assault and sexual battery. He was convicted
in Florida and brought back to stand trial in Texas.
Cordova was out on bail from
a robbery charge when he committed the murder of Hernandez,
Langlois said. “Hernandez was just in the wrong place at the
wrong time.”
Langlois also said drugs
could have influenced Cordova and the other suspects when they
committed the crime. Cordova and the others were known to be
drug users.
The others involved in the
murder were Manual Villanueva, who plea-bargained and received
life in prison, and two others who were unidentified.
Langlois said that the two
unidentified persons were Cordova’s brothers and their names
were not mentioned because they were juveniles. “As the defense,
we were afraid that the prosecution might call them to testify
but they never did,” Langlois said.
Cynthia West was the key
witness for the prosecution, a victim of Cordova’s, and the
girlfriend of Hernandez. “Everything Cordova did including the
escape had an influence on the jury’s decision, but the
testimony of Cynthia West was the most influential,” Langlois
said.
The murder occurred on Aug.
5, 1979 in the early morning. West testified that she and
Hernandez were parked in Espada Park when Cordova pulled up
behind them. Then, Cordova got out of his car and asked for
some oil but Hernandez said they didn’t have any.
Cordova returned for a second
time with the three other suspects. Cordova began to beat
Hernandez with a tire iron while Villanueva stabbed him with a
pocketknife.
West went on to testify that
Cordova dragged her into the bushes and raped her, after which,
the other two suspects raped her as well.
Cordova was convicted of
murder and sentenced to die. Cordova appealed the case but was
denied. He appealed it again and received a retrial but was
convicted again in the second trial. Cordova tried several more
appeals but they were all denied.
On Feb. 10,
1999, the notorious Spiderman was put to death by lethal
injection. In his final words, Cordova apologized for his crimes.
Cordova especially reached out to Hernandez’s family for
forgiveness. Even so, Hernandez’s brother said he could never
forgive Cordova for killing his brother.
George CORDOVA, Petitioner-Appellant, v.
James A. LYNAUGH, Director, Texas Department of Corrections,
Respondent-Appellee.
No. 87-5547.
United States Court of Appeals,
Fifth Circuit.
Feb. 17, 1988.
Appeal from
the United States District Court for the Western District of
Texas.
Before REAVLEY, GARWOOD
and HIGGINBOTHAM, Circuit Judges.
REAVLEY, Circuit Judge:
George Cordova, sentenced
to death by a Texas court for the murder-robbery of Joey
Hernandez, appeals the denial of the writ of habeas corpus.
Our examination of the record reveals that the state trial
court violated Cordova's due process rights by failing to
instruct on the lesser included offense of murder. We
reverse and remand with directions to conditionally grant
the writ.
I.
Jose (Joey) Hernandez and
Cynthia West in the early morning hours of August 4, 1979 "parked"
in a small parking lot in Espada Park in San Antonio, Texas.
As Hernandez and West talked in the car, George Cordova
approached and asked for oil. Hernandez replied that he did
not have any and Cordova left. At around 2 a.m., Cordova
returned with Manuel Villanueva and two other men.
When Hernandez reached to
start the car, he was struck in the face by one of the men.
The car door was opened and Cordova and Villanueva started
beating Hernandez. West saw Cordova strike Hernandez with a
tire iron and Villanueva attack him with a knife. Cordova
took West's wrist and forced her to run into a wooded area
of the park. Along the way, Cordova threatened to do to her
what he did to Hernandez.
West was then forced to
the ground face down and Cordova stuck the tire iron next to
her face and again threatened her. Cordova made West stand
up and run further into the woods, where he undressed her,
taking her watch and a necklace. She was raped by Cordova,
Villanueva, and a third man. After the attackers departed,
West dressed and ran back to the parking lot. There, she
discovered that the car was gone and Hernandez was lying
dead in a pool of blood.
When Villanueva was
arrested shortly after the crime, he had a bloodied knife in
his possession. Leon Springs testified that Villanueva
returned home on August 4 with a bloody shirt. Springs
turned over to police some 8-track tapes which belonged to
Hernandez, together with Hernandez's watch and empty wallet.
Springs testified that Villanueva had given him the property.
Two cassette boxes,
identified as belonging to Hernandez, were recovered from
Villanueva's sister who had received them from Villanueva.
West's watch was also recovered from Villanueva's house.
Hernandez's car was discovered on a street about 2 1/2
blocks from Villanueva's house, and approximately the same
distance from the house where Cordova lived.
Cordova was indicted for
capital murder. Specifically, he was charged with
intentionally causing the death of Hernandez by stabbing him
with a knife while in the course of committing and
attempting to commit a robbery of Hernandez. Tex.Penal Code
Ann. Sec. 19.03(a)(2) (Vernon 1974).
The testimony at trial
consisted mainly of West's account, as related above, of the
events of August 4. She positively identified Cordova and
Villanueva. Other testimony established where the car and
other property was found. Besides West's identification, the
only other evidence connecting Cordova to the criminal
activity was Leon Springs' testimony that he was at the
Villanueva house on the evening of August 3 when he saw
Cordova come and pick up Villanueva and Villanueva's
sister's testimony that she saw Cordova with Villanueva on
August 6. There was no physical evidence linking Cordova to
the crime and no stolen property was found on Cordova or in
his house.
The medical evidence
introduced showed that Hernandez had wounds on his face that
could have been caused by a tire iron. However, the cause of
death was a stab wound to the back of the neck.
After the close of the
evidence, Cordova's counsel objected to the failure to
include an instruction on the lesser included offense of
murder. The trial court overruled the objection.
The jury found Cordova
guilty of capital murder. After presentation of evidence at
the punishment stage, the jury answered "yes" to both
special issues submitted to it. See Tex.Crim.Proc.Code Ann.
art. 37.071(b) (Vernon 1981 & Supp.1987). Cordova was then
sentenced to death. Tex.Crim.Proc.Code Ann. art.
37.071(c)-(e).
The Texas Court of
Criminal Appeals affirmed Cordova's conviction and sentence.
Cordova v. State, 698 S.W.2d 107, 110-11 (Tex.Crim.App.1985),
cert. denied, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352
(1986). In addressing Cordova's claim that the trial court
erred in refusing to instruct on the lesser included offense,
the court stated:
In determining whether a
defendant is entitled to a charge on a lesser included
offense we will consider all the evidence presented at trial.
[In doing so], this Court [applies a] two-prong test.... The
first prong requires that the lesser included offense must
be included within the proof necessary to establish the
offense charged. Secondly, there must be some evidence in
the record that if the defendant is guilty, he is guilty of
only the lesser offense.
The defendant did not
testify nor did he offer any testimony which might
reasonably raise any lesser included offenses. The fact that
the State in proving capital murder may also have proved a
lesser offense does not entitle a defendant to a charge on
the lesser offense. There is no evidence in the record that
the appellant was guilty of only a lesser included offense.
Id. at 113 (citations
omitted).
After exhausting his state
court remedies, Cordova brought a habeas action raising a
number of issues. The district court denied relief and
Cordova appeals. We need only address the issue of failure
to instruct on the lesser included offense of murder.1
II.
A.
In Beck v. Alabama, 447
U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.2d 392 (1980),
the Supreme Court invalidated, on due process grounds, a
provision of the Alabama death penalty statute that
precluded the jury from being instructed on a lesser
included noncapital offense. As explained in Hopper v. Evans,
456 U.S. 605, 610, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367
(1982), Beck stands for the proposition that "the jury [in a
capital case] must be permitted to consider a verdict of
guilt of a noncapital offense 'in every case' in which 'the
evidence would have supported such a verdict.' "
Although Beck, strictly
speaking, "holds only that a state cannot impose a blanket
ban on the giving of lesser-included-offense instructions in
a capital case," Reddix v. Thigpen, 805 F.2d 506, 511 (5th
Cir.1986), we have consistently held that Beck 's holding
applies when the state trial court refuses a lesser included
offense instruction. See Reddix, 805 F.2d at 511-12 (applying
Beck but finding no violation because evidence did not
support lesser included offense); Bell v. Watkins, 692 F.2d
999, 1004-05 (5th Cir.1982), cert. denied, 464 U.S. 843, 104
S.Ct. 142, 78 L.Ed.2d 134 (1983) (same).2
The federal standard "is
that a lesser included offense instruction should be given 'if
the evidence would permit a jury rationally to find [a
defendant] guilty of the lesser offense and acquit him of
the greater.' " Hopper, 456 U.S. at 612, 102 S.Ct. at 2053 (quoting
Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993,
1995, 36 L.Ed.2d 844 (1973)). As the Supreme Court noted,
the states have varied "in their descriptions of the quantum
of proof necessary to give rise to a right to a lesser
included instruction...." Beck, 447 U.S. at 636 n. 12, 100
S.Ct. at 2389 n. 12.
Without denigrating any
state's standard, including Texas',3
we conclude that the federal standard--a lesser included
instruction must be given when a jury could rationally
convict of the lesser offense and acquit on the greater
offense--is equivalent to the Beck standard that a lesser
included instruction must be given when the evidence would
have supported such a verdict.
In other words, due
process and the Eighth Amendment require that, in a capital
case, the jury must be allowed to consider a lesser included
noncapital offense if the jury could rationally acquit on
the capital crime and convict for the noncapital crime.
That we equate the federal
standard with the Beck requirement is not momentous. Both
Beck and Hopper talk of the federal standard and, at least
impliedly, adopt it. See Beck, 447 U.S. at 635-37, 100 S.Ct.
at 2388-89; Hopper, 456 U.S. at 611-12; 102 S.Ct. at 2053.
Similarly, our cases have also used the federal standard in
the Beck situation. Bell, 692 F.2d at 1004-05; Reddix, 805
F.2d at 512.
Beck rested on the
proposition that when "the defendant is guilty of a serious,
violent offense--but leaves some doubt with respect to an
element that would justify conviction of a capital offense--the
failure to give the jury the 'third option' of convicting on
a lesser included offense would seem inevitably to enhance
the risk of an unwarranted conviction." 447 U.S. at 637, 100
S.Ct. at 2389.
The federal standard, by
looking at what a rational juror could do, given the
evidence, directly addresses that risk. Finally, the
attorney for Texas conceded at oral argument that the
federal standard was proper in the Beck situation.
The issue here is whether
a rational juror, given all the facts, could have acquitted
Cordova of capital murder and convicted him of a lesser
included offense. An understanding of the laws of Texas is
necessary to answer that issue.
B.
Cordova was indicted for,
and convicted of, capital murder. Specifically, the
indictment charged that Cordova murdered Hernandez during
the course of robbery of Hernandez. The capital murder
statute in Texas, Tex.Penal Code Ann. Sec. 19.03 (Vernon
1974) provides, in pertinent part:
(a) a person commits an
offense if he commits murder as defined under Section
19.02(a)(1) of this code and:
* * *
(2) the person intentionally commits the
murder in the course of committing or attempting to commit
... robbery....4
Section 19.02(a)(1) of the
Texas Penal Code, defines murder: "A person commits an
offense if he: (1) intentionally or knowingly causes the
death of an individual."
That the
murder must have been committed "in the course of committing
... robbery," Sec. 19.03(a)(2), means that the conduct
causing the death occurred "in an attempt to commit, during
the commission, or in immediate flight after the attempt or
commission of [the] ... robbery," Fierro v. State, 706 S.W.2d
310, 313 (Tex.Crim.App.1986) (quoting Riles v. State, 595
S.W.2d 858, 862 (Tex.Crim.App.1980)). If a robbery is
committed as an "afterthought" and unrelated to the murder,
it is simple murder and not capital murder. O'Pry v. State,
642 S.W.2d 748, 762 (Tex.Crim.App.1982).
In other words, as charged
by the indictment, the state had to prove that Cordova
intentionally5
caused the death of Hernandez, in an attempt to commit,
during the commission of, or in immediate flight after the
attempt or commission of robbery of Hernandez.
The law of parties applies
to the guilt phase of a capital murder trial. Cordova, 698
S.W.2d at 111; English v. State, 592 S.W.2d 949, 955 (Tex.Crim.App.),
cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120
(1980); see Tex.Penal Code Ann. Secs. 7.01, 7.02 (Vernon
1974) (law of parties).
The Texas Court of
Criminal Appeals explained the law of parties in Cordova,
698 S.W.2d at 111 (citations omitted):Evidence is sufficient
to convict the defendant under the law of parties where he
is physically present at the commission of the offense, and
encourages the commission of the offense either by words or
other agreement. The agreement, if any, must be before or
contemporaneous with the criminal event.
To convict someone as a
party to an offense, the evidence must show that at the time
of the offense the parties were acting together, each doing
some part of the execution of the common purpose. In
determining whether the accused participated as a party, the
court may look to events occurring before, during and after
the commission of the offense, and may rely on actions of
the defendant which show an understanding and common design
to do the prohibited act.
As the Court of Criminal
Appeals has stressed, the agreement must be prior to the
act. See Randolph v. State, 656 S.W.2d 475, 477 (Tex.Crim.App.1983)
(subsequent agreement to fabricate a story with no evidence
of prior agreement was insufficient for murder conviction).
Finally, we conclude with
relevant Texas law by noting that murder is a lesser
included offense of capital murder. See Tex.Penal Code Ann.
Sec. 19.03(c) (If the jury does not find the defendant
guilty of capital murder, it may convict him "of murder or
any other lesser included offense.").
C.
In order to prove capital
murder, the state had to show that Cordova intentionally
murdered Hernandez, either personally or as a party, while
in the course of robbing Hernandez, either personally or as
a party. The specific issue is whether a rational jury could
have found that Cordova murdered Hernandez but that it was
not in the course of the robbery. If so, the trial court
violated due process by not instructing on the lesser
included offense of murder.
A brief review of the
evidence shows that Cordova and Villanueva approached and
attacked Hernandez. Cordova then took West off into the
woods where he raped her. Cordova went off while two other
men raped West. He then returned and everybody left. West's
own testimony proved that Cordova participated in her rape
and the murder of Hernandez.
The proof of Cordova's
participation in the robbery of Hernandez is only
circumstantial and far from certain. Hernandez was
definitely robbed: his car was found abandoned and his watch
and wallet and other items were given to police by people
who said Villanueva gave the items to them. But the sequence
of events tends to show that Cordova did not personally
commit the robbery of Hernandez. Cordova was with West most
of the time. West testified that when he left her, Cordova
went in the direction of the cars on the dirt road. She did
not testify that he went in the direction of the parking lot
where Hernandez lay.
The state contends that
Cordova is guilty as a party. They point to him as the
leader of the gang, since he did the talking, and the fact
that he robbed West. The state concludes that this shows he
had a prior agreement to rob Hernandez. We agree that the
jury could infer that Cordova had a prior agreement to rob
Hernandez.6
The problem is that the
jury could reject that inference. Given the lack of evidence
of Cordova's personal participation in the robbery, as well
as the fact that none of the stolen items were traced to
Cordova,7 a
rational jury could conclude that Cordova did not have a
prior agreement to rob Hernandez.
The state points to the
fact that Cordova robbed West to show his larcenous intent.
The state also argues that the evidence is conclusive on the
robbery because there is no other reason to attack Hernandez.
We disagree. The fact that Cordova robbed West simply does
not establish conclusively that he had the same intent to
rob Hernandez.
Indeed, Cordova let West
keep her high school ring, indicating that he was not all
that interested in robbery. As for the purpose of the attack,
Cordova seemed most interested in raping West. It is at
least arguable that his purpose throughout was to rape West,
not to rob Hernandez.
Given all of the evidence,
especially Cordova's lack of personal participation in the
robbery of Hernandez and the fact that no stolen property
was traced to him, we conclude that a rational jury could
have concluded that Cordova had no "prior agreement or
common purpose," Cordova, 698 S.W.2d at 112, to rob
Hernandez. It could then have acquitted Cordova of capital
murder, and found him guilty of murder. Since the trial
court refused to instruct on the lesser included offense of
murder, and the "evidence would have supported such a
verdict," Cordova's due process rights were violated. Hopper,
456 U.S. at 610, 102 S.Ct. at 2052.
To recapitulate, the
evidence would support the jury in finding either that
Cordova planned the robbery of Hernandez or that he did not
so plan. The proof of Cordova's agreement to rob Hernandez,
unlike the proof of his intent to kill Hernandez, was
circumstantial and ambiguous. If properly instructed,
therefore, the jury could have found Cordova guilty of
either simple murder or capital murder.
Without the instruction on
the lesser included offense of murder, the choice given to
the jury in this trial was between conviction for capital
murder and acquittal. The pressure to avoid acquitting so
reprehensible an actor, driving the jury toward conviction
for (robbery) capital murder, registers the due process and
Eighth Amendment violations.8
III.
The judgment of the trial
court denying the writ is reversed. We remand and instruct
the trial court to grant the writ conditioned upon the
retrial of Cordova by the State of Texas.
Our order of retrial moots all of
Cordova's other claims except for his claim that the
evidence was insufficient to show that the murder was
during the course of robbery. A finding of insufficiency
of the evidence would implicate double jeopardy concerns.
See, e.g., United States v. Sneed, 705 F.2d 745, 747-49
(5th Cir.1983). However, as our discussion on the lesser
included offense makes clear, see infra Sec. II(C), the
evidence was sufficient to prove that the murder was in
the course of a robbery of Hernandez
A plain reading of Beck and Hopper
inexorably leads to the same conclusion. If due process
is violated because a jury cannot consider a lesser
included offense that the "evidence would have supported,"
Beck, 447 U.S. at 627, 100 S.Ct. at 2384, the source of
that refusal, whether by operation of state law or
refusal by the state trial court judge, is immaterial
As explained in Cordova, 698 S.W.2d
at 113, Texas courts apply a two prong test for lesser
included offenses. The first prong, "that the lesser
included offense must be included within the proof
necessary to establish the offense charged," is,
apparently, nothing more than a requirement that the
lesser included offense really be a lesser included
offense. The second prong that "there must be some
evidence in the record that if the defendant is guilty,
he is guilty of only the lesser offense," seems very
similar to the federal standard
However, we are not concerned about
the Texas standard or its possible misapplication to the
facts here. Instead, we only address the issue of
whether due process required that Cordova's jury be
given a lesser included instruction.
The statute, at the time of Cordova's
crime, read in full:
(a) A person commits an offense if he
commits murder as defined under Section 19.02(a)(1) of
this code and:
(1) the person murders a peace
officer or fireman who is acting in the lawful discharge
of an official duty and who the person knows is a peace
officer or fireman;
(2) the person intentionally commits
the murder in the course of committing or attempting to
commit kidnapping, burglary, robbery, aggravated rape,
or arson;
(3) the person commits the murder for
remuneration or the promise of remuneration or employs
another to commit the murder for remuneration or the
promise of remuneration;
(4) the person commits the murder
while escaping or attempting to escape from a penal
institution; or
(5) the person, while incarcerated in
a penal institution, murders another who is employed in
the operation of the penal institution.
(b) An offense under this section is
a capital felony.
(c) If the jury does not find beyond
a reasonable doubt that the defendant is guilty of an
offense under this section, he may be convicted of
murder or of any other lesser included offense.
Tex.Penal Code Ann. Sec. 19.03
(Vernon 1974).
The statute was later amended to
change "aggravated rape" to "aggravated sexual assault"
in subsection (a)(2) and to add to section (a):
(6) the person murders more than one
person:
(A) during the same criminal
transaction; or
(B) during different criminal
transactions but the murders are committed pursuant to
the same scheme or course of conduct.
Tex.Penal Code Ann. Sec. 19.03 (Vernon
Supp.1988).
We note that the indictment did not
charge Cordova with the murder of Hernandez during the
course of aggravated rape or robbery of West. Instead,
the only allegation that made the murder capital was the
robbery of Hernandez.
Although murder is defined in
Tex.Penal Code Ann. Sec. 19.02(a)(1) as "knowingly or
intentionally" causing the death, Sec. 19.03(a)(2)
specifies that the murder must be intentional in these
circumstances. Intentional is the requisite mental state;
murder committed knowingly during the course of robbery
is not capital murder under Sec. 19.03(a)(2).
Demouchette v. State, 731 S.W.2d 75, 80 (Tex.Crim.App.1986),
cert. denied, --- U.S. ----, 107 S.Ct. 3197, 96 L.Ed.2d
685 (1987)
Hernandez's car was found equi-distant
between Cordova's and Villaneuva's houses in a heavily
residential area. That evidence does not necessarily
prove that Cordova stole it
We note that the type of
constitutional error here can never be harmless. See
Hopper, 456 U.S. at 610, 102 S.Ct. at 2052 (Jury in
capital case "must be permitted to consider a verdict of
guilt of a noncapital offense 'in every case' in which 'the
evidence would have supported such a verdict.' ") (emphasis
added). By the very nature of the error, that the jury
could have rationally convicted of a less than capital
offense but was not allowed to consider the offense by
the jury instructions, precludes any harmless error
analysis
The nature of the initial inquiry
itself is very similar to a harmless error analysis. If
the instruction was refused, but the jury could not
rationally convict on the lesser offense, then the
alleged error would be harmless. In other words, the
harm is subsumed in the test itself.
