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Click here for the full text of this decision FACTS:In 1996, the applicant, Jos� Noey Martinez, was convicted of capital murder and sentenced to death. On direct appeal, this court affirmed the conviction and sentence. In 1999, applicant filed a writ of habeas corpus. The evidence at trial showed that in the early morning hours of February 19, 1995, applicant broke into the home of Esperanza Palomo with intent to steal a TV and some stereo equipment. Esperanza, who was 68 years old at the time of the offense, was baby-sitting her blind 5-year-old granddaughter, Amanda, while Amanda’s parents went out. In his written confession that was admitted at trial, the applicant recited how he had raped and murdered Palomo and murdered Amanda. HOLDING: Denied At trial, the testimony varied on how much mind-altering substances applicant ingested prior to the murders. A wide range of evidence, admitted from various witnesses, tended to show that applicant had consumed from one to eight doses of Rohypnol, and possibly also drank alcohol, smoked marihuana, and used cocaine. Rohypnol is a strong psychoactive drug, and witnesses testified that applicant appeared to be “incoherent,” “high,” “tripping,” “freaking out,” and that he “looked crazy” after the murders. But in his confession to police, applicant denied using drugs or alcohol on the night of the murders. To be entitled to the mitigating instruction based on voluntary intoxication, it must be shown that the convicted person was unable to understand the wrongfulness of his conduct. The court concludes that the evidence at the guilt phase of trial shows that applicant was well aware that his conduct was wrong, and the court concludes that counsel was not deficient for failing to present a mitigation case based on temporary insanity. The applicant stated in his confession that he had not been using drugs or alcohol, he immediately confessed to the crime, he repeatedly told his friends that he could not believe he had committed the murders, and he told the arresting officer that he had “really f____ed up this time.” Roberto Galvan, who saw applicant approximately one hour before and one hour after the offense, described applicant’s behavior as heavily intoxicated, but he did not describe applicant as incoherent, psychotic or enraged. The trial record reflects that even when applicant was not taking Rohypnol, his behavior was hardly non-violent, the court states. For example, at the punishment phase of trial, the jury heard evidence that, while awaiting trial, applicant and another inmate wrote a letter to President Clinton, threatening to kill him and rape his wife and daughter. The court finds that there was ample evidence that applicant had a keen understanding of the wrongfulness of his conduct; therefore, he was not entitled to the instruction, even if he was in a drug-induced rage or psychosis. Had counsel requested an instruction on temporary insanity as a mitigating factor, it would have been properly denied. Trial counsel did not discover the alleged sexual abuse of the applicant, nor did he probe the punishment witnesses for details about the physical abuse and the extent of that abuse. On the other hand, testimony at the writ hearing established that Roberto Flores, one of applicant’s trial attorneys, repeatedly contacted applicant’s mother and stepfather in furtherance of his investigation, but they would not cooperate. In any event, the jury had before it evidence of harsh physical and emotional abuse, the court finds. The failure to present evidence of the alleged sexual abuse is borne primarily by applicant, as he had ample opportunity to divulge this evidence to his lawyer and at least one of his agents before trial. It was not unreasonable for trial counsel to abandon further efforts to investigate the possibility of sexual abuse once applicant told counsel that he had never been sexually abused. The court concludes that the undiscovered and unoffered evidence would not have created a reasonable probability that, had the jury heard it, the jury’s verdict would have been different. OPINION:Holcomb, J., delivered the opinion of the court, in which Keller, P.J., Meyers, Price, and Cochran, J.J. joined. Womack, J., concurred. Hervey, J., filed a concurring opinion, in which, Keller, P.J., Johnson, and Keasler, J.J., joined. CONCURRENCE:Hervey, J. “The totality of the available mitigating evidence does not outweigh the evidence in aggravation. See Wiggins, 539 U.S. at 534. There is no reasonable probability that applicant’s �troubled’ childhood evidence would have caused anyone on applicant’s jury to answer the special issues any differently than they did at applicant’s trial in light of the brutal nature of this offense, applicant’s subsequent threats of more rape and murder and the other circumstances.”

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