Citations:

Martinez v. Quarterman, 270 Fed.Appx. 277 (5th Cir. 2008) (Habeas).

Final/Special Meal:

Declined.

Final Words:

"Nothing I can say can ever change the past. I hope one day you can find peace. I am sorry for all of the pain I have caused you for all those years. There is nothing else I can say that can help you." Martinez also expressed love to his family and apologized for making them grieve. "I am sorry to put you through this as well. I can't change the past. I hope you find peace and know that I love you. I am sorry. I am sorry and I can't change it. Keep on going and it will be OK. I'm sorry. I truly am."

Texas Department of Criminal Justice

Texas Attorney General

Wednesday, January 28, 2009

Media Advisory: David Martinez Scheduled To Be Executed

AUSTIN – Texas Attorney General Greg Abbott offers the following information on David Martinez, who is scheduled to be executed after 6 p.m. on Wednesday, February 4, 2008. Martinez was convicted and sentenced to death for the 1994 capital murder of Carolina and her 14-year-old son, Erik Prado. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

During the summer of 1994, Martinez began living with Carolina Prado and her two children, Erik and Belinda, 10, at Carolina’s home in San Antonio. On July 10, 1994, Carolina, Erik, and Belinda went to sleep that night, with Carolina in the bedroom she shared with Martinez, Belinda on the couch in the living room and Erik on a mattress in the living room.

Several hours later, Martinez came home. Belinda was later awakened by the sound of a bat hitting something. She opened her eyes and saw Martinez standing over Erik, striking him in the head with a baseball bat. She watched as Martinez struck Erik five or six times. Belinda told Martinez to “behave,” and Martinez told her to “be quiet” or he would “kill [her] too.”

When Belinda asked where her mother was, Martinez said she was in the shower. After Belinda did not find her mother in the shower, Martinez led Belinda, at knife point, into Erik’s bedroom where he tied her up. Martinez then dressed himself and gave Belinda a note which read, “I messed up. I’ll be at the friends on the east side.” After Martinez left the house, Belinda waited a few minutes before walking to her grandmother’s house.

Mrs. Ramirez testified that Belinda arrived at her house at approximately 8:30 a.m. and appeared to be nervous. Belinda handed her the note and told her, “Here’s this note that [Martinez] sent you, grandma, and Erik has a lot of blood on his head.” Martinez had previously telephoned Mrs. Ramirez at approximately 5:10 a.m. that morning to inform her that Mr. Ramirez did not need to come pick up Carolina to take her to work. After reading the note, Mrs. Ramirez and Belinda walked to the Prado residence.

Mrs. Ramirez found Erik’s body laying on a mattress in the living room. Erik had been beaten to death. Mrs. Ramirez, now accompanied by her husband, left the residence, without searching for Carolina, in order to call police. Investigating police officers subsequently found Carolina in her bedroom, also beaten to death. A baseball bat, with apparent blood and hair on it, was recovered from the residence. Blood and brain matter were found on the walls and ceilings throughout the bedroom and living room.

Two days after the murders, San Marcos police officers arrested Martinez at his grandmother’s residence. When Martinez saw that officers were inspecting a baseball bat he had in the bedroom where he was found, he stated, “That’s not it.” Then, while being transported to the Hays County Jail, Martinez asked if they were going to San Antonio and wanted to know “who ratted on him.” Without any provocation, Martinez also bragged, “Yeah, you know, I killed them just like cockroaches.”

Martinez later confessed to the brutal murders of Carolina and Erik Prado, asking that he be given the death penalty. Martinez stated that he was “freaking and tripping” at the time because he had consumed a twelve-pack of beer and a bottle of rum. The statement also included a portion written by Martinez himself: I feel for the actions I took, I’m requesting the only just sentence for me is the death penalty. I took the life of someone who I cared about a lot. I feel that I can never bring her back. Please give me the death penalty for mine and everybody else’s sake. I’ll never forget Carol. The pain dwells within my heart forever. Carol, wherever you are, please forgive me. I do love you.

PROCEDURAL HISTORY

• October 4, 1994 — A Bexar County grand jury indicted Martinez for capital murder in the deaths of Carolina and Erik Prado.

• October 25, 1995 — A jury found Martinez guilty of capital murder and sentenced to death.

• November 4, 1998 — Martinez’s conviction and death sentence were affirmed on direct appeal

• October 4, 1999 — The U.S. Supreme Court denied certiorari review.

• May 6, 1998 — Martinez filed an application for writ of habeas corpus in the state trial court.

• July 2, 2003 — The Texas Court of Criminal Appeals denied habeas relief.

• June 28, 2004 — Martinez filed a petition for writ of habeas corpus in a San Antonio U.S. district court.

• March 29, 2006 — The federal district court denied habeas relief on all of Martinez’s claims.

• March 17, 2008 — The Fifth U.S. Circuit Court of Appeals affirmed the district court’s denial of habeas relief.

• June 27, 2008 — Martinez filed a motion in the federal district court seeking to waive any further appeals.

• July 28, 2008 — An evidentiary hearing was held to determine Martinez’s competency to waive the remainder of his appeals.

• July 29, 2008 — The federal district court found Martinez competent to waive the remainder of his appeals.

• August 21, 2008 — The trial court entered an order setting the execution date for February 4, 2009.

PRIOR CRIMINAL HISTORY

On December 13, 1988, when Martinez was sixteen years old, he was placed on juvenile probation for committing six burglaries of a building. Less than one week later, on December 19, 1988, Martinez was arrested for a subsequent burglary of a building and an additional probation violation. On December 29, 1988, Martinez was interviewed by a juvenile probation officer, who informed Martinez he was going to recommend that Martinez be placed in the custody of the Texas Youth Commission (“TYC”). Martinez became “very mad” and told the officer that “he was going to kill him once he was released.” On January 30, 1989, the court ordered that Martinez be placed in the custody of TYC.

At one point during his stay at TYC, Martinez was informed that he had been denied a requested furlough. In response, Martinez threw a chair, breaking an aquarium. Martinez also escaped from one of the TYC facilities at which he was housed. However, he eventually discharged his TYC commitment on May 9, 1990.

On May 14, 1991, Martinez entered a guilty plea to attempted sexual assault and received a ten-year probated sentence. The underlying offense occurred on May 30, 1990, when Martinez entered a shoe store in McAllen and assaulted the store manager as she was returning from the storage area of the store with a pair of shoes for Martinez to try on

On June 17, 1992, Martinez pleaded true to numerous probation violations and was sentenced to five years in prison. Martinez was released to parole on December 2, 1992.

In July 1993, Martinez stopped reporting to his parole officer, and a parole violator warrant was issued on September 10, 1993. On August 4, 1994, Martinez’s parole was revoked based on his admissions to various parole violations, including failing to report; changing residence; failing to attend counseling; failing to pay supervision fees; and committing capital murder.

While incarcerated in the Bexar County Adult Detention Center awaiting trial for the murders of Carolina Prado and her son, Martinez threatened two detention officers, kicked his food tray at an officer, disobeyed an order by changing the channel on the available television, and attempted to control and manipulate other inmates.

Parolee executed for using bat to kill woman, son

ProDeathPenalty.com

Late on the evening of July 10, 1994, 11-year-old Belinda Prado was watching television on the living room couch of the home she shared with her mother Carolina and her 14-year-old brother Eric. Eric fell asleep on a mattress on the floor in the living room while Carolina slept in her bedroom. Later that night, David Martinez, who had been staying with Carolina, and another man whom Belinda had never seen before came to her home. The other man left after 15-20 minutes, and Belinda saw Martinez go to her mother’s bedroom.

Early on the morning of July 11, 1994, Belinda awoke to the sound of a baseball bat striking something in the living room. Belinda saw Martinez, who was dressed only in a pair of boxer shorts, repeatedly strike Eric in the head with a baseball bat. Belinda saw blood flying as Martinez beat Eric with the bat. When Belinda asked Martinez “to behave,” he told her to be quiet or he would kill her, too. Fearful for her life, Belinda asked where her mother was and he replied Carolina was in the shower. When Belinda looked in the bathroom, however, she did not see her mother.

Martinez forced Belinda into Eric’s bedroom at knife-point and tied her to the bed. Martinez was dressed in a white shirt, a pair of black pants, a leather vest Belinda recognized as belonging to her uncle, and a pair of boots. Before leaving the house, he gave Belinda a handwritten note and directed her to take the note to her grandmother, who lived a short distance down the street. Martinez’s handwritten note, which was admitted into evidence at trial, read “I messed up. I'LL Be at the Friends on the EAst side.”

Still fearful for her life, Belinda waited several minutes after Martinez left the house before she took his note to her grandparents’ home. Belinda gave her grandmother the note and accompanied her grandparents back to her home, where she learned her mother was dead in her bedroom.

Carolina Prado’s mother, Rosa Ramirez, testified at trial that she first met Martinez in June 1994, when Carolina introduced him to her and informed her mother she and Martinez were going to live together. Carolina was divorced from Eric and Belinda’s father, with whom the two children had stayed for several weeks prior to date of the murders. Around 5:10 a.m. on the morning of the murders, Martinez telephoned her and informed her Carolina was tired and did not plan to go to work that day. Around 8:30 a.m. the same morning, Belinda rang her door bell and, when she answered the door, Belinda, who appeared nervous, handed her the note and told her Eric had a lot of blood on his head. As she and Belinda walked down to Carolina’s house, Belinda told her Carolina was at work. When they arrived at Carolina’s home, Belinda directed her to go inside but Belinda refused to enter the house.

The grandmother entered the house and walked into the living room, where she found Eric lying dead with a towel covering his head. When she lifted the towel, she observed that Eric’s head was “broken,” his brains were “all over the place,” and there was “lots of blood.” After her husband entered the house and observed Eric, they walked back to their home where her husband called 911 and then called Carolina’s place of employment. By the time they returned to Carolina’s home, a police officer had sealed the house and would not allow them to enter. The officer told her there was a dead woman in the back bedroom. Mrs. Ramirez noticed drops of blood on the curtains and window of Carolina’s bedroom; she never again saw Carolina. San Antonio Police Officers who arrived at the scene found Eric lying dead from obvious head injuries in the living room and Carolina dead from even more gruesome head injuries in the blood-drenched bedroom. Police officers also found what appeared to be a bloody baseball bat covered by a towel on a living room chair.

An autopsy established Carolina Prado sustained a large contusion on her right shoulder and arm, a bruise on the back of her elbow, bruising of the eyelids secondary to a massive skull fracture, and the right side of her head caved in due to blunt trauma; suffered multiple fractures in all areas of the skull, including behind the eye and at the base of the skull; suffered a massive multi-rayed laceration on the right side of her head with multiple loose fragments of skull; lost approximate one-half of her brain tissue from her cranial cavity due to massive blunt force trauma and died as a result of multiple, massive skull fractures and severe underlying brain injuries.

An autopsy established Eric Prado had sustained a large contusion above and behind the right ear accompanied by a large laceration due to bony skull fragments and brain matter protruding from the defect, as well two smaller lacerations just behind the larger one; suffered a hinge fracture laterally across the base of the brain from ear to ear. Eric was likely rendered unconscious immediately and died almost immediately after he was assaulted. He received “a tremendous blow” by something heavy. Eric did not show any sign of defensive injuries and died as a result of cranial cerebral injuries, including severe fractures of the skull and severe underlying brain injuries.

At approximately 3:30 a.m. on July 13, 1994, San Marcos Police Officers arrested Martinez on a capital murder warrant at the residence of his grandmother. Upon his arrest, Martinez repeatedly gave police a fictitious name even after they discovered his identification in his back pocket and noted the identifying tattoos on his arm. Following his arrest, while police were examining a baseball bat they found in the bedroom where he had been arrested, Martinez volunteered a comment along the lines of “that’s not what you’re looking for” or “that’s not it.”

During the brief drive to the Hays County Law Enforcement Center, Martinez asked if he were going to San Antonio that night and, when the officer driving the vehicle indicated negatively, Martinez volunteered that he had known there were police officers outside watching the house and that he could have done something if he had wished to do so. He inquired “who ratted on me?” and, when the officer driving the vehicle responded the matter was in the papers, Martinez sat up straight, appeared to be proud, and later volunteered “I killed them just like cockroaches.”

Much later on the morning of July 13, 1994, a pair of San Antonio Police homicide detectives traveled to San Marcos to interview Martinez but were forced to wait several hours while Martinez went before a local magistrate. While they waited, the two detectives went to the residence where Martinez had been arrested and obtained consent from Martinez’s grandmother and uncle to search the residence. They took custody of a backpack his grandmother indicated belonged to Martinez, a Dallas Cowboys baseball cap and a pair of tennis shoes, both of which Belinda testified belonged to her brother Eric, and a shirt and pair of trousers Martinez’s uncle indicated belonged to Martinez. Inside the backpack, the detectives found a black leather vest which Belinda testified at trial belonged to one of her uncles.

The San Antonio homicide detectives returned to the Hays County Law Enforcement Center and interviewed Martinez. Martinez agreed to be interviewed and signed a waiver of his rights. In his written confession, Martinez stated, "I want to talk to you about what I remember about the murder of Carol Prado and Eric Prado, 231 Obregon, San Antonio, Texas, on Monday, July the 11th, 1994. I have been dating Carol for about two months. I had drank a 12-pack of Bud Light beer, a big bottle of Bacardi rum. I got off work at Handy Andy at 1:45 a.m., and I walked to Carole’s house. I am living with Carole, and when I got home I started drinking. I got home about 1:50 a.m. When I got there, Carole was awake. Eric was asleep in the living room on a mattress on the floor. Belinda was on the couch also in the living room. Belinda was awake. I had a friend of mine there but I don’t want to tell you who he is. I walked my friend down the street at about 3:00 a.m., and I returned a short time later. I went outside and drank more, and then I walked down the street and threw the bottle. I went back in the house at 5:10 a.m. I was freaking and tripping and I hit Carole for no reason. I picked up a baseball bat that I tripped on. It was wooden. I hit Carole in the head with the bat. I must have hit her a lot to make her pass away. When I came in at 5:10 a.m., she told me to call her mom and tell her mom that she was going to stay home with the kids and would not be going to work.

After I hit Carole, I went back to the living room and put the bat on the side of the couch, and I sat on the couch. Belinda was half awake and half asleep. Belinda wanted to go see her mother, and I told Belinda not to go in the bedroom because Carole was in the shower. I didn’t want Belinda to see her mother. I told Belinda to lay down and go to sleep. I thought I saw Eric coming at me, so I grabbed the bat and hit him in the head. I realized he was still laying on the floor. I stood up and hit Eric about four times with the same bat. I looked at Eric and said to myself, What the f*ck AM I doing. I then tied Belinda’s hands in front of her with a tie. I told her to go to her grandmother’s house after I left. I tied her hands loosely. Belinda asked me what she was supposed to tell her grandmother. I then wrote a note that said “I messed up. I’LL be on the Friends at the EAst side.” I gave Belinda the note. I then left and went to a friend's house on the east side of San Antonio. I told him what I had done and I asked my friend to just put a bullet in my head. I can't give you my friend’s name.

I don’t know why I hit Carole and Eric. Carole had told me when I came home that she had seen me talking to a lady at Handy Andy but we didn’t argue. I understand my rights and I am waiving my rights and I am giving this statement because I want to. My statement is true and correct and this happened in San Antonio, Bexar County, Texas." Martinez wrote the following appendix to his confession in his own handwriting: "I feel for the actions I took, I'm requesting the only just sentence for me is the “Death Penalty.” I took a life of someone who I cared about a lot. I feel that I can never bring her back. Please, give me the Death Penalty!! I'll never forget Carol. The pain swells within my heart forever. Carol, wherever you are please forgive me. I Do Love you!!"

The prosecution presented testimony from a forensic documents examiner establishing the same person who wrote the final paragraph of Martinez’s handwritten confession had also written the note Martinez gave to Belinda Prado on the date of the murders. Defense counsel presented no evidence. After deliberating slightly more than an hour, the jury returned its verdict finding Martinez guilty of capital murder.

In the punishment phase of the trial, a police officer from Pharr, Texas, testified regarding his arrest of Martinez on September 19, 1988, while Martinez was burglarizing a convenience store. A Hidalgo County juvenile probation officer testified Martinez was charged with six counts of burglary committed June through September 1988. Martinez received a one-year probated sentence on December 13, 1988 and was arrested less than a week later for another burglary. Martinez once threatened the officer’s life, and was committed to the custody of the Texas Youth Commission (TYC) on January 30, 1989. A former TYC case manager who met weekly with Martinez during his subsequent stay at a TYC-contract facility testified that Martinez became enraged, threw his chair, and broke a 50-gallon aquarium in March 1989, when she denied his request for a furlough to visit his mother. He briefly escaped in June 1989. Martinez habitually tried to stare down anyone who would not do what he wanted and was a “manipulator” who frequently tried to “sweet talk” her but would try to intimidate her if he did not get what he wanted. She said Martinez had a problem with authority figures, often talked back to officials at his TYC facility, had trouble controlling his temper and aggressive impulses. She said Martinez was intelligent, as demonstrated by his completion of his GED while under TYC supervision, and was discharged from the TYC in May, 1990.

A McAllen shoe store employee testified Martinez entered her store on the morning of May 30, 1990 and waited until a courier left the store, then followed her to the back of the store where he grabbed her around the neck and waist and held her tightly against him while she screamed and fought unsuccessfully for her freedom. Martinez said he “wanted to be alone” with her and touched her breast and buttocks, then told her to stop yelling and pulled her down to the floor, injuring her back in the process. He finally released her only after she begged him not to hurt her and convinced him she was pregnant. He left the store only after she promised not to call the police and begged him to leave, and he threatened to return if she called the police. The store clerk also testified she saw Martinez walking along a city street on July 9, 1990, and identified him as her assailant when police brought him to her store later that same day. Martinez was subsequently charged with attempted sexual assault.

A former Hidalgo County adult probation officer testified that Martinez received a probated 10-year sentence in May 1991, following his conviction for attempted sexual assault. The conditions of Martinez’s probation included making financial contributions, reporting weekly, and participating in a weekly sex offender group program. In early July, 1991, Martinez stopped reporting weekly, stopped attending weekly group counseling sessions, and ceased working or making his required financial contributions. After several months of unsuccessful attempts to contact Martinez, he filed a motion to revoke probation in December 1991. When law enforcement officers went to execute the warrant for Martinez’s arrest, he fled and was later charged with evading arrest. Martinez pleaded “true” to the motion to revoke and was sentenced to serve a 5-year prison term. A McAllen police officer testified that he assisted in the arrest of Martinez on April 1, 1992, on the motion to revoke probation. When officers announced their presence at the front door of Martinez’s residence, he fled out the back door. Martinez then led several officers on a chase through several backyards, over fences, and through alleyways before catching him several blocks away.

A Texas Department of Criminal Justice parole supervisor testified that Martinez was paroled December 2, 1992. The conditions of Martinez’s parole included mandatory participation in psychological sex offender counseling and making three face-to-face reports to his parole officer each month. A parole revocation was issued September 10, 1993, based on Martinez’s failure to attend sex offender counseling.

Following Martinez’s arrest for capital murder, he waived both preliminary and final revocation hearings and admitted he was guilty of capital murder. Five Bexar County Adult Detention Center officers testified regarding a series of incidents in which Martinez violated the rules of that facility or otherwise engaged in violent misconduct. More specifically, those officers testified: (1) on November 19, 1994, Martinez cursed and threatened a detention officer while the officer was escorting him to a visit; (2) on April 14, 1995, Martinez shouted and kicked a food tray out of the food slot under his cell door, spilling food across the floor; (3) on May 27, 1995, Martinez disobeyed a verbal order to stop changing the channel on a television and, when an officer wrote him up for that rule violation, profanely threatened to harm that officer’s family; (4) Martinez engaged in a verbal altercation with another inmate over the television during which Martinez assumed a fighter’s stance and had to be restrained by detention officers before blows were exchanged between the inmates; and (5) on or about August 21, 1995, Martinez attempted to assert “tank boss” status by demanding other inmates pay him with food for the privilege of using the telephone.

A Hidalgo County psychologist who had attempted to treat Martinez in a sex offender program in 1991 testified Martinez: (1) was not a successful participant in the program because he would not often attend group sessions and, even when he did, he refused to divulge any information about himself, (2) showed a lack of progression throughout his life, (3) displayed a defiant refusal to admit he had a problem, which makes Martinez dangerous, (4) displayed an extremely poor ability to empathize with others, especially in situations in which dominance or control is an issue, which also makes Martinez dangerous, (5) showed no sign of having sustained any neurological injury or brain damage, (6) tested well above average on one intelligence test, (7) suffers from an antisocial personality, i.e., Martinez demonstrates a pervasive, non-flexible pattern of behavior characterized by the disregard for, and violation of, the rights of others, (8) Martinez’s antisocial personality manifests itself through his persistent unlawful conduct, deceitfulness, impulsiveness, irritability, aggressiveness, irresponsibility, and lack of remorse for his misconduct, (9) is not mentally ill, (10) displays a powerful sex drive directed toward children, (11) refused to admit he had sexually assaulted the shoe store clerk even after he had pleaded guilty to that offense, and (12) poses an obvious danger to society.

Finally, a court bailiff testified that on October 10, 1995, Martinez demanded to be placed in handcuffs because, otherwise, he was going to “go off” on his attorney and two days later, Martinez threatened a prosecutor during a heated exchange before the trial judge. On October 30, 1995, the jury returned a verdict recommending a death sentence.

UPDATE: "Nothing I can say can ever change the past," David Martinez said from the death chamber gurney. "Asking for forgiveness or saying I'm sorry is not going to change anything. I hope you can find peace from all the pain I've caused you all these years." Martinez looked at friends and relatives and told them that he loved them, advising them to "keep on going and it will be OK." As the drugs began taking effect, he mouthed, "I'm sorry. I truly am." He shook his head vigorously, raising it up from the gurney pillow and then closed his eyes. He was pronounced dead at 6:18 p.m., eight minutes after the lethal drugs began to flow. Among the witnesses was Belinda Prado, who was 10 when she witnessed the murders of her mother and brother. An uncle held her as she watched Martinez die and she had to use a wheelchair to leave the witness room.

Texas Execution Information Center by David Carson

Txexecutions.org

David Martinez, 36, was executed by lethal injection on 4 February 2009 in Huntsville, Texas for the murder of his girlfriend and her son in their home.

Martinez began living with Carolina Prado and her two children in their San Antonio home in the summer of 1994. On 10 July 1994, Prado and the children went to bed while Martinez was away. Sometime before dawn the following morning, Martinez, then 22, came home and beat Prado, 37, to death with a baseball bat in her bedroom. Next, he went to the living room where Prado's children were sleeping and began beating Erik, 14, with the bat. Belinda, 10, was awakened by the noise. She saw Martinez standing over Erik, striking him in the head with the bat five or six times. Belinda told Martinez to "behave." Martinez told Belinda to be quiet, or he would kill her, too. Belinda then asked where her mother was. At one point, Martinez held a knife to Belinda and tied her hands together loosely in front of her. He then handed her a note reading, "I messed up. I'll be at friends on the east side." He instructed Belinda to take the note to her grandmother, who lived next door, then he left.

At about 5:10 a.m. on 11 July, Martinez phoned Prado's mother, Rosa Ramirez, to tell her that she did not need to come pick up Carolina to take her to work because she was tired and did not plan to go in to work. At about 8:30, Belinda arrived and handed her Martinez's note, adding, "Erik has a lot of blood on his head." Ramirez then walked over to the Prado home, found Erik beaten to death, and called the police. The police found both victims, and they found blood and brain matter on the walls and ceilings throughout the bedroom and living room. They also recovered a baseball bat with blood and hair on it.

Autopsies of the victims showed that the right side of Carolina Prado's head was caved in from blunt force trauma, and about half of her brain tissue was lost. She also had contusions and bruises on her right shoulder and arm. Erik Prado suffered multiple skull contusions and fractures and had severe brain injuries.

Martinez was arrested at his grandmother's house in San Marcos two days later. He gave the arresting officers a false name even after police checked his identification in his back pocket and noted the identifying tattoos on his arm. When police picked up a baseball bat they found in his room, he told them, "That's not it." While he was being taken to jail, he asked whether he was being taken to San Antonio. He also asked "who ratted" on him. When the officer driving the vehicle responded that his crime was in the papers, he volunteered, "Yeah, you know, I killed them just like cockroaches."

In his confession, Martinez said he had been out drinking a twelve pack of beer and a bottle of rum. When he came inside, he tripped on a baseball bat. He then picked up the bat and hit Carol "for no reason." He stated that he then went into the bedroom and noticed that Belinda was half awake. She wanted to see her mother, but he told her to lay down and go to sleep. Martinez then stated, "I thought I saw Erik coming at me, so I grabbed the bat and hit him in the head. I realized he was still laying on the floor." He then tied Belinda's hands, gave her the note for her grandmother, and went to a friend's house. "I told him what I had done and I asked my friend to just put a bullet in my head.," he stated.

Martinez continued, in his own handwriting, "I feel for the actions I took, I'm requesting the only just sentence for me is the death penalty. I took the life of someone who I cared about a lot. I feel that I can never bring her back. Please give me the death penalty for mine and everybody's else's sake. I'll never forget Carol. The pain dwells within my heart forever. Carol, wherever you are, please forgive me. I do love you."

Rosa Ramirez testified that when Martinez phone her at 5:10 a.m., his speech was not slurred, and he did not sound like he was intoxicated. At his trial, Martinez said that he was intoxicated at the time of his arrest and that his confession was coerced. The state presented evidence disputing these allegations.

Martinez's criminal history began at age 13, when he broke into a neighbor's house and stole her panties. At age 16, he committed a series of burglaries and threatened to kill a juvenile probation officer. On 30 May 1990, he attempted to sexually assault a shoe store manager when he was in the store trying on shoes. He pleaded guilty and was sentenced to 10 years' probation. After numerous probation violations, he was sent to prison in June 1992 for five years. He was paroled in December 1992. (At the time, early release was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.) Martinez stopped reporting to his parole officer in July 1993, and in September, a warrant was issued for his arrest. He was wanted for parole violations at the time of the killings.

Before being put on trial, Martinez was given a mental competency evaluation. In January 1995, he was judged to be sane at the time of the killings and fully competent to stand trial. A jury found him guilty of capital murder in October 1995 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in November 1998. All of his subsequent appeals in state and federal court were denied. In June 2008, Martinez filed a motion to waive any further appeals. After another competency hearing, that request was granted.

"I'm not crazy, Martinez said in an interview from death row. "Why prolong the process?" He would not discuss the crime, however. "I'm not insensitive to the victims' family, to my family, but nobody wins. There are some things not meant to be learned," he said. "I don't mean to be evasive, but what they have to realize is that publicity is not going to get more out of me than that. I'm sorry people are dead, of course."

Belinda Prado, 24, attended the execution of the man who murdered her mother and brother. She was accompanied by an uncle. Her grandmother, Rosa Ramirez, 72, did not attend, but was quoted in an interview as saying that she had forgiven Martinez.

"Nothing I can say can change the past. Asking for forgiveness or saying sorry is not going to change anything," Martinez said in his last statement at his execution. "I hope one day you can find peace. I am sorry for all of the pain I have caused you for all those years. There is nothing else I can say that can help you." Martinez also expressed love to his family and apologized for making them grieve. "I am sorry to put you through this as well," he said. "I can't change the past. I hope you find peace and know that I love you. I am sorry. I am sorry and I can't change it." The lethal injection was then started. He was pronounced dead at 6:18 p.m.

Martinez v. Quarterman, 270 Fed.Appx. 277 (5th Cir. 2008) (Habeas).

Background: Defendant convicted of capital murder and sentenced to death petitioned for a writ of habeas corpus. The United States District Court for the Western District of Texas, 426 F.Supp.2d 403, denied relief, and defendant appealed and moved for a certificate of appealability (COA).

Holdings: The Court of Appeals, Benavides, Circuit Judge, held that: (1) defendant's statement was voluntary despite any intoxication; (2) defendant was not prejudiced by counsel's failure to obtain suppression of evidence; (3) requiring defendant to provide a handwriting exemplar did not violate his Fifth or Sixth Amendment rights; (4) defendant was not prejudiced by counsel's failure to object to the term “mass murder” in prosecutor's opening statement; (5) defendant was not prejudiced by counsel's failure to object to lay testimony that there was blood on a bat and defendant's boxer shorts; (6) defendant was not entitled to a jury charge on the lesser included offense of murder; (7) defendant was not prejudiced by counsel's failure to develop and present additional mitigating evidence at the punishment phase; (8) defendant was not prejudiced by counsel's failure to object to prosecutor's cross-examination of defendant regarding statements defendant had made during their heated exchange at a pretrial hearing; (9) defendant was not constructively denied counsel by the totality of counsel's alleged errors; and (10) exchange between defendant and the prosecutor during a pretrial hearing did not violate defendant's Fifth Amendment rights. Motion denied.

Petitioner David Martinez, convicted of capital murder in Texas and sentenced to death, requests this Court to issue a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Martinez contends that his counsel rendered ineffective assistance and that his death sentence was obtained in violation of the Fifth and Sixth Amendments. Finding that Martinez has not made a substantial showing of the denial of a constitutional right, we DENY a COA.

I. FACTUAL AND PROCEDURAL HISTORY FN1

FN1. The factual and procedural history section is taken essentially verbatim from the district court's meticulously detailed opinion. Martinez v. Dretke, 426 F.Supp.2d 403, 413-26 (W.D.Tex.2006).

A. The Murders

Late on the evening of July 10, 1994, 11-year-old Belinda Prado was watching television on the living room couch of the home she shared with her mother Carolina and her 14-year-old brother Eric. Eric fell asleep on a mattress on the floor in the living room while Carolina slept in her bedroom. Later that night, Martinez, who had been staying with Carolina, and another man whom Belinda had never seen before came to her home. The other man left after 15-20 minutes, and Belinda saw Martinez go to her mother's bedroom. Early on the morning of July 11, 1994, Belinda awoke to the sound of a baseball bat striking something in the living room. Belinda saw Martinez, who was dressed only in a pair of boxer shorts, repeatedly strike Eric in the head with a baseball bat. Belinda saw blood flying as Martinez beat Eric with the bat. When Belinda asked Martinez “to behave,” he told her to be quiet or he would kill her, too. Fearful for her life, Belinda asked where her mother was and he replied Carolina was in the shower. When Belinda looked in the bathroom, however, she did not see her mother.

Martinez forced Belinda into Eric's bedroom at knife-point and tied her to the bed. Martinez was dressed in a white shirt, a pair of black pants, a leather vest Belinda recognized as belonging to her uncle, and a pair of boots. Before leaving the house, he gave Belinda a handwritten note and directed her to take the note to her grandmother, who lived a short distance down the street. Martinez's handwritten note, which was admitted into evidence at trial, read “I messed up. I'LL Be at the Friends on the EAst side.” Still fearful for her life, Belinda waited several minutes after Martinez left the house before she took his note to her grandparents' home. Belinda gave her grandmother the note and accompanied her grandparents back to her home, where she learned her mother was dead in her bedroom.

Carolina Prado's mother, Rosa Ramirez, testified at trial as follows: (1) she first met Martinez in June 1994, when Carolina introduced him to her and informed her mother she and Martinez were going to live together; (2) she gave Martinez a black tie, one of her other daughters gave him a white shirt, and Carolina helped him find work at a nearby grocery store; (3) Carolina was divorced from Eric and Belinda's father, with whom the two children had stayed for several weeks prior to date of the murders; (4) around 5:10 a.m. on the morning of the murders, Martinez telephoned her and informed her Carolina was tired and did not plan to go to work that day; (5) she had no difficulty understanding anything Martinez told her during their brief telephone conversation, and he did not appear to her to have slurred his speech; (6) around 8:30 a.m. the same morning, Belinda rang her door bell and, when she answered the door, Belinda, who appeared nervous, handed her the note and told her Eric had a lot of blood on his head; (7) as she and Belinda walked down to Carolina's house, Belinda told her Carolina was at work; (8) when they arrived at Carolina's home, Belinda directed her to go inside but Belinda refused to enter the house; (9) she entered the house and walked into the living room, where she found Eric lying dead with a towel covering his head; (10) when she lifted the towel, she observed that Eric's head was “broken,” his brains were “all over the place,” and there was “lots of blood”; (11) after her husband entered the house and observed Eric, they walked back to their home where her husband called 911 and then called Carolina's place of employment; (12) by the time they returned to Carolina's home, a police officer had sealed the house and would not allow them to enter; (13) the officer told her there was a dead woman in the back bedroom; (14) she observed drops of blood on the curtains and window of Carolina's bedroom; and (15) she never again saw Carolina.

San Antonio Police Officers who arrived at the scene found Eric lying dead from obvious head injuries in the living room and Carolina dead from even more gruesome head injuries in the blood-drenched bedroom. Police officers also found what appeared to be a bloody baseball bat covered by a towel on a living room chair.

An autopsy established Carolina Prado: (1) sustained a large contusion on her right shoulder and arm, a bruise on the back of her elbow, bruising of the eyelids secondary to a massive skull fracture, and the right side of her head caved in due to blunt trauma; (2) suffered multiple fractures in all areas of the skull, including behind the eye and at the base of the skull; (3) suffered a massive stellate or multi-rayed laceration on the right side of her head with multiple loose fragments of skull; (4) lost approximate one-half of her brain tissue from her cranial cavity due to massive blunt force trauma; and (5) died as a result of multiple, massive skull fractures and severe underlying brain injuries.

An autopsy established Eric Prado: (1) sustained a large contusion in the right parietal occipital area above and behind the right ear accompanied by a large laceration due to bony skull fragments and brain matter protruding from the defect, as well two smaller lacerations just behind the larger one; (2) suffered a hinge fracture laterally across the base of the brain from ear to ear; (3) was likely rendered unconscious immediately and died almost immediately after he was assaulted; (4) received “a tremendous blow” by something heavy; (5) did not show any sign of defensive injuries; and (6) died as a result of cranial cerebral injuries, including severe fractures of the skull and severe underlying brain injuries.

B. Arrest and Confessions

At approximately 3:30 a.m. on July 13, 1994, San Marcos Police Officers arrested Martinez on a capital murder warrant at the residence of his grandmother. Upon his arrest, Martinez repeatedly gave police a fictitious name even after they discovered his identification in his back pocket and noted the identifying tattoos on his arm. Immediately upon his arrest, Martinez received his Miranda warnings and gave a nod to indicate he understood same. Following his arrest, while police were examining a baseball bat they found in the bedroom where he had been arrested, Martinez volunteered a comment along the lines of “that's not what you're looking for” or “that's not it.”

During the brief drive to the Hays County Law Enforcement Center, Martinez: (1) asked if he were going to San Antonio that night and, when the officer driving the vehicle indicated negatively, Martinez volunteered that he had known there were police officers outside watching the house and that he could have done something if he had wished to do so; (2) spontaneously inquired “who ratted on me?” and, when the officer driving the vehicle responded the matter was in the papers, Martinez sat up straight, appeared to be proud, and later volunteered “I killed them just like cockroaches”; and (3) spoke English without difficulty and displayed no slurred speech, smell of alcohol, or other overt sign of intoxication.

Much later on the morning of July 13, 1994, a pair of San Antonio Police homicide detectives traveled to San Marcos to interview Martinez but were forced to wait several hours while Martinez went before a local magistrate. While they waited, the two detectives: (1) went to the residence where Martinez had been arrested, (2) obtained consent from Martinez's grandmother and uncle to search the residence, (3) took custody of a backpack his grandmother indicated belonged to Martinez, (4) took custody of a Dallas Cowboys baseball cap and a pair of tennis shoes, both of which Belinda testified belonged to her brother Eric, and (5) took custody of a shirt and pair of trousers Martinez's uncle indicated belonged to Martinez. Inside the backpack, the detectives found a black leather vest which Belinda testified at trial belonged to one of her uncles.

The San Antonio homicide detectives returned to the Hays County Law Enforcement Center and interviewed Martinez. At approximately 12:30 p.m., after again receiving his Miranda warnings, Martinez agreed to be interviewed and signed a waiver of his rights. In his written confession, Martinez stated, in pertinent part as follows: FN2. The confession contains the victim's name spelled as “Carol” and “Carole.”

I want to talk to you about what I remember about the murder of Carol Prado and Eric Prado, 231 Obregon, San Antonio, Texas, on Monday, July the 11th, 1994.

I have been dating Carol for about two months. I had drank a 12-pack of Bud Light beer, a big bottle of Bacardi rum. I got off work at Handy Andy at 1:45 a.m., and I walked to Carole's house. I am living with Carole, and when I got home I started drinking. I got home about 1:50 a.m. When I got there, Carole was awake. Eric was asleep in the living room on a mattress on the floor. Belinda was on the couch also in the living room. Belinda was awake. I had a friend of mine there but I don't want to tell you who he is. I walked my friend down the street at about 3:00 a.m., and I returned a short time later. I went outside and drank more, and then I walked down the street and threw the bottle. I went back in the house at 5:10 a.m. I was freaking and tripping and I hit Carole for no reason. I picked up a baseball bat that I tripped on. It was wooden. I hit Carole in the head with the bat. I must have hit her a lot to make her pass away. When I came in at 5:10 a.m., she told me to call her mom and tell her mom that she was going to stay home with the kids and would not be going to work.

After acknowledging his statement extended to a second page, Martinez continued his confession as follows:

After I hit Carole, I went back to the living room and put the bat on the side of the couch, and I sat on the couch. Belinda was half awake and half asleep. Belinda wanted to go see her mother, and I told Belinda not to go in the bedroom because Carole was in the shower. I didn't want Belinda to see her mother. I told Belinda to lay down and go to sleep. I thought I saw Eric coming at me, so I grabbed the bat and hit him in the head. I realized he was still laying on the floor. I stood up and hit Eric about four times with the same bat. I looked at Eric and said to myself, What the fuck AM I doing. I then tied Belinda's hands in front of her with a tie. I told her to go to her grandmother's house after I left. I tied her hands loosely. Belinda asked me what she was supposed to tell her grandmother. I then wrote a note that said “I messed up. I'LL be on the Friends at the EAst side.” I gave Belinda the note. I then left and went to a friend's house on the east side of San Antonio. I told him what I had done and I asked my friend to just put a bullet in my head. I can't give you my friend's name. I don't know why I hit Carole and Eric. Carole had told me when I came home that she had seen me talking to a lady at Handy Andy but we didn't argue. I understand my rights and I am waiving my rights and I am giving this statement because I want to. My statement is true and correct and this happened in San Antonio, Bexar County, Texas.

After making a correction to the draft of his confession, Martinez wrote the following appendix to his confession in his own handwriting: I feel for the actions I took, I'm requesting the only just sentence for me is the “Death Penalty.” I took a life of someone who I cared about a lot. I feel that I can never bring her back. Please, give me the “Death Penalty”!! I'll never forget Carol. he pain swells within my heart forever. Carol, wherever you are please forgive me. “I Do Love you”!!

C. Pretrial

On October 4, 1994, a Bexar County grand jury indicted Martinez on a single count of capital murder charging him with having: (1) murdered Carolina Prado by striking her with a deadly weapon, i.e., a bat, (2) murdered Eric Prado by striking him with a deadly weapon, i.e., a bat, and (3) committed both murders during the same criminal transaction.

On October 20, 1994, Martinez's trial counsel filed a motion requesting that Martinez be evaluated for competence to stand trial as well as for sanity. In an Order issued October 26, 1994, the trial court granted those requests. On January 9, 1995, Dr. Julia B. Spears filed separate reports concluding Martinez was: (1) not insane at the time of his offense and (2) fully competent to stand trial.

On October 19, 1995, the state trial court held a pretrial hearing on Martinez's motions to suppress his confession and various items of physical evidence obtained by police during the course of the investigation, including a backpack of pornographic magazines allegedly belonging to Martinez which had been discovered by relatives of Carolina Prado in a storage shed located at her residence. In an ex parte hearing held before the start of the hearing on the motions to suppress, Martinez's trial counsel advised the trial court on the record: (1) Martinez had requested said counsel call Mark Martinez and Tomas Guadalupe, two residents of the Rio Grande Valley, to testify at the hearing; but (2) after interviewing those two persons, said counsel was not going to call either to testify at the hearing because to do so might alert the prosecution to the fact those persons could furnish inculpatory testimony.

One of the San Marcos Police officers who assisted in Martinez's arrest testified during the hearing as follows: (1) Martinez was given his Miranda warnings at the time of his arrest; (2) during the short drive to the Hays County Law Enforcement Center, Martinez volunteered several inculpatory statements; (3) he observed nothing about Martinez's appearance or demeanor which indicated that he was intoxicated at the time of his arrest; and (4) he saw no beer cans or alcoholic beverage containers inside the home where Martinez was arrested.

Another San Marcos Police Officer who participated in Martinez's arrest testified: (1) he gave Martinez his Miranda warnings at the time of the arrest; (2) Martinez nodded responsively and appeared to understand those rights as he read them; (3) when other officers discovered a baseball bat in the bedroom, Martinez spontaneously remarked either “that's not what you're looking for” or “that's not it”; (4) he did not observe any alcoholic beverage containers in or around the house where Martinez was arrested; and (5) Martinez gave officers a false name and persistently insisted he was someone else even after officers discovered Martinez's identification card in his pocket and pointed out identifying tattoos on his arm.

One of the San Antonio Homicide Detectives who interviewed Martinez following his arrest testified at the same hearing as follows: (1) while they waited for Martinez to be taken before a magistrate, he and his colleague went to the residence where Martinez had been arrested, secured a consent to search same from Martinez's grandmother, Sophie Castilleja, and found a backpack containing a black vest, a tie, digital watch, and white tee shirt; (2) he was aware of no information indicating Martinez had ever possessed any expectation of privacy in the residence in question or any of the contents of same; (3) after Martinez had been taken before a magistrate, he and another detective interviewed Martinez; (4) during their interview, Martinez displayed no indications of intoxication; (5) after his colleague read petitioner his Miranda warnings, Martinez executed a card acknowledging having been read and understanding those warnings; (6) Martinez then gave the written statement quoted extensively above; (7) no promises, threats, or others forms of coercion were directed to induce the confession; and (8) none of the occupants of the residence where Martinez had been arrested informed him or his partner about any consumption of alcoholic beverages by petitioner prior to his arrest.

At the conclusion of the hearing, the state trial court overruled the motions to suppress various items discovered at both the crime scene and Martinez's grandmother's address in San Marcos, specifically finding Martinez had no standing to challenge any seizures made at either location. The trial court also ruled: (1) Martinez's written confession was freely and voluntarily given and therefore, admissible and (2) Martinez's inculpatory, oral, post-arrest statements were also admissible.

*****

E. Punishment-Phase of Trial

1. Prosecution Evidence

A police officer from Pharr, Texas, testified regarding his arrest of Martinez on September 19, 1988, while Martinez was in the course of burglarizing a convenience store. A Hidalgo County juvenile probation officer testified Martinez: (1) was charged with six counts of burglary arising from crimes committed June through September 1988, (2) received a one-year probated sentence on December 13, 1988, (3) was arrested less than a week later for another burglary, (4) once threatened the officer's life, and (5) was committed to the custody of the Texas Youth Commission (TYC) on January 30, 1989. A former TYC case manager, who met weekly with Martinez during his subsequent stay at a TYC-contract facility, testified Martinez: (1) became enraged, threw his chair, and broke a 50-gallon aquarium in March 1989, when she denied his request for a furlough to visit his mother, (2) briefly escaped in June 1989, (3) habitually tried to stare down anyone who would not do what he wanted, (4) was a “manipulator” who frequently tried to “sweet talk” her but would try to intimidate her if he did not get what he wanted, (5) had a problem with authority figures, (6) often talked back to officials at his TYC facility, (7) had trouble controlling his temper and aggressive impulses, (8) was intelligent, as demonstrated by his completion of his GED while under TYC supervision, and (9) was discharged from the TYC in May, 1990.

A McAllen shoe store employee testified Martinez: (1) entered her store on the morning of May 30, 1990, (2) waited until a courier left the store, (3) followed her to the back of the store where he grabbed her around the neck and waist and held her tightly against him while she screamed and fought unsuccessfully for her freedom, (4) said he “wanted to be alone” with her and touched her breast and buttocks, (5) told her to stop yelling and pulled her down to the floor, injuring her back in the process, (6) finally released her only after she begged him not to hurt her and convinced him she was pregnant, (7) left the store only after she promised not to call the police and begged him to leave, and (8) threatened to return if she called the police. The store clerk also testified she saw Martinez walking along a city street on July 9, 1990, and identified him as her assailant when police brought him to her store later that same day. A McAllen police officer testified: (1) he arrested Martinez on July 9, 1990, (2) the store clerk identified Martinez as her assailant during a show-up that same date, and (3) Martinez was subsequently charged with attempted sexual assault.

A former Hidalgo County adult probation officer testified: (1) Martinez received a probated 10-year sentence in May 1991, following his conviction for attempted sexual assault, (2) the conditions of Martinez's probation included making financial contributions, reporting weekly, and participating in a weekly sex offender group program, (3) in early-July, 1991, Martinez stopped reporting weekly, stopped attending weekly group counseling sessions, and ceased working or making his required financial contributions, (4) after several months of unsuccessful attempts to contact Martinez, he filed a motion to revoke probation in December 1991, (5) when law enforcement officers went to execute the warrant for Martinez's arrest, he fled and was later charged with evading arrest, (6) Martinez never advised his probation officer he suffered from any drug or alcohol problems, and (7) Martinez pleaded “true” to the motion to revoke and was sentenced to serve a 5-year prison term. A McAllen police officer testified: (1) he assisted in the arrest of Martinez on April 1, 1992, on a motion to revoke probation, (2) when officers announced their presence at the front door of Martinez's residence, he fled out the back door, (3) Martinez then led several officers on a chase through several backyards, over fences, and through alleyways, (4) the chase did not terminate until the officer, traveling in a police vehicle, interrupted Martinez's attempted flight some three city blocks north and two and a half blocks east of Martinez's residence, and (5) he arrested Martinez for evading arrest and pursuant to the motion-to-revoke warrant.

A fingerprint expert testified Martinez's fingerprints matched those on a pen packet admitted into evidence. A Texas Department of Criminal Justice parole supervisor testified: (1) Martinez was paroled December 2, 1992, (2) the conditions of Martinez's parole included mandatory participation in psychological sex offender counseling and making three face-to-face reports to his parole officer each month, (3) a parole revocation was issued September 10, 1993, based on Martinez's failure to attend sex offender counseling, (4) following Martinez's arrest for capital murder, he waived both preliminary and final revocation hearings and admitted he was guilty of capital murder, and (5) while the conditions of Martinez's parole included drug and alcohol counseling, Martinez never reported to his parole officer that he had ever been under the influence of either.

Five Bexar County Adult Detention Center officers testified regarding a series of incidents in which Martinez violated the rules of that facility or otherwise engaged in violent misconduct. More specifically, those officers testified: (1) on November 19, 1994, Martinez cursed and threatened a detention officer while the officer was escorting him to a visit; (2) on April 14, 1995, Martinez shouted and kicked a food tray out of the food slot under his cell door, spilling food across the floor; (3) on May 27, 1995, Martinez disobeyed a verbal order to stop changing the channel on a television and, when an officer wrote him up for that rule violation, profanely threatened to harm that officer's family; (4) Martinez engaged in a verbal altercation with another inmate over the television during which Martinez assumed a fighter's stance and had to be restrained by detention officers before blows were exchanged between the inmates; and (5) on or about August 21, 1995, Martinez attempted to assert “tank boss” status by demanding other inmates pay him with food for the privilege of using the telephone.

A Hidalgo County psychologist who had attempted to treat Martinez in a sex offender program in 1991 testified Martinez: (1) was not a successful participant in the program because he would not often attend group sessions and, even when he did, he refused to divulge any information about himself, (2) showed a lack of progression throughout his life, (3) displayed a defiant refusal to admit he had a problem, which makes Martinez dangerous, (4) displayed an extremely poor ability to empathize with others, especially in situations in which dominance or control is an issue, which also makes Martinez dangerous, (5) showed no sign of having sustained any neurological injury or brain damage, (6) tested well above average on one intelligence test, (7) suffers from an antisocial personality, i.e., Martinez demonstrates a pervasive, non-flexible pattern of behavior characterized by the disregard for, and violation of, the rights of others, (8) Martinez's antisocial personality manifests itself through his persistent unlawful conduct, deceitfulness, impulsiveness, irritability, aggressiveness, irresponsibility, and lack of remorse for his misconduct, (9) is not mentally ill, (10) displays a powerful sex drive directed toward children, (11) refused to admit he had sexually assaulted the shoe store clerk even after he had pleaded guilty to that offense, and (12) poses an obvious danger to society.

Belinda Prado returned to the stand near the conclusion of the prosecution's evidence at the punishment-phase of trial and testified Martinez: (1) touched her on her breasts and vagina for five-to-ten minutes immediately after he had beaten Eric to death, (2) forced her into Eric's bedroom at knife-point when she told him to stop touching her, (3) tied her hands behind her to the bed with a necktie, and (4) then wrote the note he directed her to take to her grandmother.

Finally, a court bailiff testified: (1) on October 10, 1995, Martinez demanded to be placed in handcuffs because, otherwise, he was going to “go off” on his attorney and (2) two days later, Martinez threatened a prosecutor during a heated exchange before the trial judge.

2. Defense Evidence

The defense presented four witnesses who knew Martinez when he was growing up, all of whom requested the jury dispense mercy. A cousin of Martinez's mother testified: (1) Martinez's mother had mental problems, (2) Martinez's father died in a fatal shooting in a bar, (3) Martinez was hurt very deeply by his father's untimely death, (4) before his father's death, Martinez's parents argued frequently, (5) Martinez's parents did not treat him with love, and (6) Martinez had always been helpful to her and respectful of her, working part-time and living and helping her after she underwent surgery.

Martinez's former coach during his stay at a TYC residential facility testified Martinez was very trustworthy and had spoken to children about the dangers of drugs. The coach's testified: (1) she met Martinez in 1988, (2) he stayed in their home one weekend, and (3) he very effectively spoke to her elementary school students about the dangers of drugs.

Martinez then took the stand and: (1) denied he had killed either Carolina Prado or Eric Prado, (2) denied he had sexually molested Belinda Prado, (3) denied he had given the written confession admitted into evidence, claiming he was intoxicated at the time he “gave” his confession and merely wrote what law enforcement officers told him to write after they threatened to bring additional charges against him, (4) claimed he never read the confession he admitted he signed, (5) denied he ever had a drug or alcohol problem, (6) admitted he drank liquor and smoked marijuana on the night of the murders, (7) claimed he did not remember what he had meant when he wrote “I messed up” on the note he gave to Belinda Prado, explaining he only wrote what Belinda told him to write, (8) stated “I can't say I'm sorry for killing them because I did not kill them,” (9) admitted the bag containing adult magazines found at the crime scene belonged to him, (10) claimed he was innocent of the attempted sexual assault of the shoe store clerk who had testified at his capital murder trial even though he pleaded guilty to that charge, explaining he entered his plea solely to get a probated sentence, (11) admitted he does not like it when people show him disrespect, (12) admitted he had an altercation in jail with five black inmates while awaiting trial for capital murder, and (13) admitted he gets bored with jobs and has never held a job for longer than nine months.

On October 30, 1995, the jury returned its verdict, finding: (1) beyond a reasonable doubt there was a probability petitioner “would commit criminal acts of violence that would constitute a continuing threat to society” and (2) taking into consideration all of the evidence, including the circumstances of the offense, Martinez's character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment, rather than a death sentence, be imposed on petitioner.

Martinez appealed his conviction to the Texas Court of Criminal Appeals. In an unpublished opinion, the Court affirmed his conviction and sentence. Martinez v. State, No. 72,288 (Tex.Crim.App. Nov. 4, 1998), cert. denied, 528 U.S. 825, 120 S.Ct. 74, 145 L.Ed.2d 63 (1999). On May 6, 1999, Martinez filed an application for state habeas relief. The state trial court held an evidentiary hearing and subsequently recommended denying relief. The Court of Criminal Appeals denied relief in an unpublished order adopting all except two of the trial court's findings and conclusions. Ex parte David Martinez, No. 54,794-01 (Tex.Crim.App. July 2, 2003).

On June 28, 2004, Martinez filed a petition for federal habeas relief in district court. In a very detailed opinion, the district court conducted an exhaustive review of Martinez's claims and denied habeas relief. Martinez v. Dretke, 426 F.Supp.2d 403 (W.D.Tex.2006). The court also denied a COA. Martinez now moves this Court for a COA.

*****

J. Mitigating Evidence

Martinez contends that counsel's failure to develop and present additional mitigating evidence at the punishment phase constitutes ineffective assistance. More specifically, Martinez asserts that counsel should have called Dr. Spears to testify that: Martinez was only 21 at the time of the murders; Martinez's father used cocaine and marijuana and was physically abusive to his mother and older sister; his father served time in prison and was shot to death at age 48; his mother suffered from brain tumors and mental illness during his childhood; his mother left his father when he was six and he essentially “raised himself.”

Martinez has not made a substantial showing of deficient performance regarding presentation of mitigating evidence at the punishment phase because, as set forth below, most of the above evidence was presented through other witnesses.FN9 In any event, assuming arguendo counsel's performance was deficient, Martinez has not made a substantial showing of prejudice. FN9. We note that, during the state writ hearing, defense counsel testified that his recollection was that Martinez's family was unwilling to testify. Additionally, Martinez admitted that he would not cooperate with counsel and that calling family members would be senseless.

During the punishment phase, counsel called Rosemary Vargas. She testified that her mother had “taken care of [Martinez] off and on as [she] was growing up.” She further testified that Martinez was homeless and had “family problems” with his mom. His mother, who was “not well,” abandoned him. Vargas testified that she felt “very close to” Martinez and she trusted him. Although he wasn't a relative, she loved him like one. She never had any complaints about Martinez from her two young sons. Vargas asked the jury to be merciful to Martinez.

Defense counsel also called Vargas's mother, Cecilia Flores, to testify. Flores testified that Martinez called her his “aunt.” Flores further testified that Martinez's mother “has mental problems.” Flores took Martinez into her home because she was concerned regarding the lack of care he was receiving. Martinez's parents “were having problems.” Martinez was deeply hurt when his father was shot at a bar. When Flores had surgery, Martinez “was there for [her]. He would help [her] with [her] son and [her] grandsons. He was very lovable to them.” Flores also asked for mercy for Martinez based on “his abusive life. He was not treated with love by [his] father and mother like he should have been.”

Defense counsel also called Roy Lopez as a witness. In 1988, Lopez was working in the state juvenile system and met Martinez. Lopez was a counselor-coach, and Martinez was assigned as his student for about eight months. Lopez took Martinez to the Special Olympics. Martinez was one of Lopez's leading students and, as a guest speaker, would give speeches regarding drug awareness at various elementary and junior high schools. Lopez also asked the jury to show mercy.

Defense counsel next called Lopez's wife, Maria Lopez. Maria testified that she was a teacher and met Martinez through her husband. Maria remembered taking Martinez to her class and having him “share his life and to share also what had happened to him.” She believed he helped the younger students. Martinez stayed at their home over the weekend and was “very supportive, very cooperative.” She, too, asked the jury to “be merciful” in deciding whether Martinez received the death penalty.

Finally, defense counsel called Martinez, who testified that he was 23 years old and born on May 9, 1972. Martinez testified that his mother left his father when he was five years old. Thereafter, his father was not involved in his life. When his mother was hospitalized because of her brain tumors, Flores “helped” him. He went “back and forth” between homes when his “dad passed away.”

Similarly, in Tucker v. Johnson, the petitioner contended that counsel rendered ineffective assistance by failing to discover and present evidence at punishment that he suffered from brain impairment, was severely sexually and physically abused as a child and addicted to cocaine. 242 F.3d 617, 622 (5th Cir.2001). However, counsel had presented evidence showing that the petitioner was “emotionally abused and neglected as a child and that he had a problem with illegal drugs.” Id. at 623. As in the instant case, Tucker's argument essentially was that “counsel should have put on a stronger case in mitigation of the death penalty.” Id. at 622. Although recognizing the relevance of the newly proffered evidence to the jury's determination of moral culpability at the time he committed the murder, we were not convinced that there was a reasonable probability of a different outcome had the evidence been presented. Id. at 624.

In the case at bar, as previously indicated, although defense counsel did not call Dr. Spears as a witness, counsel did elicit most of the mitigating evidence that Martinez now asserts should have been presented. As in Tucker, a reading of Martinez's record demonstrates that defense counsel did present the jury with evidence that he “was raised in an environment of rejection and neglect.” Id. at 623.

Additionally, although we are mindful that such a prejudice inquiry is difficult, the newly proffered evidence in Tucker (petitioner suffered from severe physical and sexual abuse and brain impairment) appears stronger. The evidence not presented here was that Martinez's father had been in prison, used drugs, and was abusive to Martinez's mother and sister, but not to Martinez. Thus, in light of the evidence already presented to the jury, we are unpersuaded that Martinez has made a substantial showing that there is a reasonable probability that, had additional evidence of his troubled life been presented, the outcome of the sentencing hearing would have been different.

K. Cross-Examination

Martinez contends that counsel rendered ineffective assistance by failing to object to the prosecutor's cross-examination of him regarding statements he had made during their heated exchange at a pretrial hearing. We understand Martinez to contend that counsel should have made a Fifth Amendment objection to the prosecutor's questions. However, as discussed in Section IV.A. infra, Martinez has not shown a Fifth Amendment violation. Thus, he has not shown that counsel's lack of objection on this basis constituted deficient performance.

Assuming arguendo deficient performance, Martinez must make a showing of prejudice due to the cross-examination. During the complained of cross-examination, Martinez admitted that the prosecutor had provoked him at the pretrial hearing by stating that “[w]e're definitely going to kill you the right way.” Although the cross-examination provided the jury evidence that Martinez could be provoked and spar with the prosecutor, it only provided evidence of sparring that did not culminate in violence. Such evidence pales in comparison to the other evidence of his future dangerousness, especially the brutality of this double homicide. Simply put, we are not persuaded that but for Martinez's responses to the prosecutor's cross-examination there is a reasonable probability of a different outcome.

L. Preservation of Issues for Appeal

Martinez contends that counsel failed to preserve issues for appellate review. Martinez points to certain issues the Court of Criminal Appeals ruled were not preserved on direct appeal. Assuming counsel's failure to preserve issues constituted deficient performance, Martinez must show that, but for the deficient performance, he suffered Strickland prejudice-i.e., a reasonable probability that the outcome of the appeal would have been different. See Amador v. Quarterman, 458 F.3d 397 (5th Cir.2006). However, Martinez does not even attempt to show prejudice; indeed, he expressly admits that he cannot.FN10 Martinez has failed to make a substantial showing with regard to his claim of ineffective assistance of appellate counsel.

FN10. Some of the issues that were not preserved Martinez has raised as instances of ineffective assistance of trial counsel, and we have found no prejudice. “When we do not find prejudice from the trial error, by extension, we cannot find prejudice from an appellate error predicated on the same issue.” Mayabb v. Johnson, 168 F.3d 863, 869 (5th Cir.1999).

M. Constructive Denial of Counsel

Martinez also argues that, viewing counsel's errors “in their totality,” counsel failed to subject the State's case to adversarial testing. We understand Martinez to be raising a denial of counsel claim. “ ‘A constructive denial of counsel occurs in only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.’ ” United States v. Griffin, 324 F.3d 330, 364 (5th Cir.2003) (quoting Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir.2000)). We need not tarry long with this claim. Prior to trial, counsel utilized an investigator, attempted to present an insanity defense but was rebuffed by Martinez, moved to suppress the confessions and other evidence. Counsel cross-examined witnesses and made numerous objections. Martinez falls woefully short of making a substantial showing with respect to a constructive denial of counsel claim.

IV. Unconstitutional Death Sentence

A. Fifth Amendment violation

Martinez contends that his death sentence was obtained in violation of the Fifth Amendment. During the punishment phase of his trial, the State introduced evidence of a heated exchange between Martinez and the prosecutor that had occurred during a pretrial hearing. He asserts that the exchange he had with the prosecutor amounted to a custodial interrogation. Therefore, he argues, his Fifth Amendment rights were violated because he was not advised of his MirandaFN11 rights prior to the interrogation. FN11. Miranda, 384 U.S. 436, 86 S.Ct. 1602.

This Court has previously rejected a claim that Miranda warnings are required when a witness is questioned in open court. United States v. Armstrong, 476 F.2d 313, 315 (5th Cir.1973). In Armstrong, a witness had refused to testify before the grand jury. Id. Subsequently, the court held a hearing and found her in contempt for refusing to testify. On appeal, she argued that the district court should have appraised her of her Miranda rights prior to questioning her at the hearing. Id. at 315. This Court explained that “her reliance on Miranda is totally inapposite,” pointing out that she was questioned in “open court, on the record, in the course of a judicial proceeding” and in the presence of counsel. Id. Accordingly, “ Miranda warnings were not required here, just as they are not required when any other witness or defendant is questioned in open court.” Id.

In addition, defense counsel were present during the “interrogation.” As the Supreme Court explained in Miranda, the presence of counsel is an “adequate protective device” to ensure the interrogation is not in violation of the Fifth Amendment. 384 U.S. at 466, 86 S.Ct. 1602. See also United States v. Tyler, 592 F.2d 261, 263 (5th Cir.1979) (per curiam) (explaining that “[i]t is not the right to counsel that the Fifth Amendment protects but the freedom from custodial interrogation without counsel”). Martinez has not made a substantial showing of a Fifth Amendment violation.

B. Sixth Amendment violation

Martinez also contends that his counsel's failure to intervene during this exchange with the prosecutor constituted a constructive denial of counsel in violation of the Sixth Amendment. As previously set forth in Section III.M., supra, “ ‘[a] constructive denial of counsel occurs in only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.’ ” Griffin, 324 F.3d at 364 (quoting Gochicoa, 238 F.3d at 284).

The record reveals that defense counsel objected twice during this exchange and subsequently filed a motion in limine, seeking to preclude the admission of Martinez's statements during the punishment phase. Martinez acknowledges counsel's objections and motion in limine but nonetheless contends that counsel should have raised constitutional challenges to the evidence. Allegations of “counsel's errors, omissions, or strategic blunders” do not support the presumption of prejudice. Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir.1997). Because Martinez “received some meaningful assistance, it [is] necessary to prove prejudice.” Id.FN12 Martinez has failed to make a substantial showing of the denial of counsel on this claim. FN12. Martinez also raises an ineffective assistance of counsel claim regarding the failure to object to cross-examination regarding this exchange. See III. K., supra.

V. CONCLUSION

For the above reasons, the motion for a COA is DENIED.