X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:On Jan. 21, 1998, Linda Malek died after being shot in the head. Around 2 a.m., Malek’s mother Charlotte Brown and her stepfather Mike Brown received a call from Malek’s daughter Ashley, informing them that two men invaded their home and shot Malek. The Browns drove to Malek’s home and discovered that several items were missing, including a television, a VCR, a video game console, jewelry and Malek’s car keys. That same morning, Monica Silva returned to her apartment and found her boyfriend Kenneth Parr and his brother Michael Jimenez there; Jimenez was holding a jewelry box. Parr told Silva that he had gone somewhere with a gun and committed burglary. Parr then packed up most of his belongings, and Silva took him to his mother’s house. Parr later informed Silva that he had hidden some items in the air-conditioning vent at her apartment. When Silva returned home, she found a VCR, a video game console, a gun and a jewelry box. While Silva was taking out her trash, the bag fell open and a purse that contained Malek’s driver’s license fell out. A resident of Silva’s apartment complex testified that she heard two gunshots on the night of the murder. Twenty minutes later, she heard two men arguing outside her window, and when she looked outside her window, she saw two young men who appeared to be Latino or African-American. Both men were carrying a television. Another resident of the apartment complex also testified that she saw and heard two young men talking and recognized the men as Kenneth Parr and Michael Jimenez. In May 1999, a jury convicted Parr of one count of capital murder for the murder of Linda Malek and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence. While his direct appeal was pending, Parr filed an application for habeas corpus relief in state court. The CCA denied his application. Parr filed a petition for habeas relief in the federal district court on Jan. 27, 2004. Parr asserted 28 separate grounds for review, which the district court then combined into 17 claims. The court granted summary judgment to the state on each of the 17 grounds, but granted Parr a certificate of appealability (COA) on each ground as well. Parr requested the 5th Circuit grant him a COA on one issue not raised before the district court. HOLDING:The 5th Circuit affirmed the district court’s denial of habeas relief and denied Parr’s additional COA request. The court rejected Parr’s actual innocence claim, stating that Parr did not raise a substantial doubt about his guilt. And because Parr failed to present his confrontation clause claim to the state habeas court, the court affirmed the district court’s holding that the claims were procedurally barred. Next, the court stated, Parr asserted that the trial court erred in denying his Batson challenge to the state’s peremptory challenge of venire member Monique Gadson; admitting certain evidence; in denying Parr’s motion to suppress evidence seized from the apartment that he shared with Silva; and in denying Parr’s request for a jury instruction on accomplice witness testimony during the guilt/innocence phase of the trial. Parr failed to address these arguments in his brief to this court but instead referred the court to the arguments set forth in his district court petition. By failing to argue these issues in the body of his brief, the court held that Parr abandoned them. Parr argued that his felony murder conviction was obtained in violation of the Fifth Amendment under the doctrine of collateral estoppel, because the issue of a burglary that was used to constitute the felony murder charge was adjudicated at a parole revocation hearing shortly after the killing. Parr contended that collateral estoppel is a constitutional bar to prosecution independent of the double jeopardy clause. The court disagreed and held that the double jeopardy clause does not extend to parole revocation proceedings, so prosecutors were free to relitigate the burglary in prosecuting Parr for felony murder. Parr alleged that prosecutors committed a Brady violation by failing to turn over exculpatory evidence, but the court stated that Parr failed to explain how this information would have impacted his case. Accordingly, the court held that he failed to establish a Brady violation. Parr contends that his Sixth and 14th Amendment rights were violated when the jury considered evidence regarding parole during their deliberations. Although Texas law did not permit the jury to consider the issue of parole, such discussions do not require reversal unless it deprived Parr of a fair trial. The state habeas court concluded that no discussion of parole by the jury prevented it from being impartial, and the court found that Parr did not sufficiently rebut this finding. Parr argued that his 14th Amendment rights were violated when the trial court denied his motion for a mistrial after the state elicited testimony about his post-arrest silence. But the court found that no such testimony occurred. Rather, the court found, testimony at most informed the jury that police interviewed Parr, but it did not give any indication as to whether Parr had exercised his right to remain silent and was not being used to impeach Parr. Finally, Parr requested a COA on the issue of whether the sentence of death violates his Eighth Amendment rights against cruel and unusual punishment under Roper v. Simmons, 543 U.S. 551 (2005), because he was 18 years and 4 days at the time of the alleged murder. But the court rejected this argument. OPINION:Stewart, J.; Wiener, Benavides and Stewart, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.