Revised Date: August 21, 2013
Appeal from the United States District Court for the Northern District of Texas
ON PETITION FOR REHEARING EN BANC
Before STEWART, ChiefJudge, HIGGINBOTHAMandOWEN, Circuit Judges.
The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.
Voting for en banc rehearing were: Judge E. Grady Jolly, Judge Edith H. Jones, Judge Jerry E. Smith, Judge Edith B. Clement, Judge Priscilla R. Owen, and Judge Jennifer W. Elrod. Voting against en banc rehearing were: Chief Judge Carl E. Stewart, Judge Carolyn D. King, Judge W. Eugene Davis, Judge James L. Dennis, Judge Edward C. Prado, Judge Leslie H. Southwick, Judge Catharina Haynes, Judge James E. Graves, and Judge Stephen A. Higginson.
Upon the filing of this order, the clerk shall issue the mandate forthwith. See FED. R. APP. P. 41(b).
PATRICK E. HIGGINBOTHAM, Circuit Judge, respecting the denial of rehearing en banc:
I write here to explain my reasons for opposing en banc rehearing. The relevant legal principles in this case are settled and challenged only in their application. That this is a capital case sounds no greater call for studied and evenhanded application than ought always be at hand. At the same time and as I will insist, the binary choice of life or death tolerates no mediating, graduating scale of consequences for slippage in protecting rights constitutionally secured to persons whose life the State would take. Ours was no watery eyed decision. When a prosecutor with a close case repeatedly asks the jury to do what it must not — infer the accused's guilt from his insistence that the state prove its case without his testimony — the conviction cannot stand.
Facts matter — at every level. And the events at trial must be mastered to give to grandly stated constitutional norms their content, meaning, and force. To these eyes, the undisputed record of what occurred at this trial permits no answer in service of the constitutional principle at issue but the one we gave. The question is not whether the jury could have convicted Gongora of capital murder absent the error; rather, it is whether the admissible evidence of Gongora's guilt presented the State with a difficult case, and whether the comments on silence closed the evidentiary gap. The prosecutor persisted in asking the jury to infer Gongora's guilt from his not taking the stand. Such a blatant violation of a primer rule of criminal trials by a felony prosecutor from a major metropolitan city is no accident. It is in the heat of trial with close cases that able counsel sometimes give way to the frustration of being denied an opportunity to shore their case. Viewed objectively, the effort was to enhance the opportunity for conviction. Whatever other post hoc speculation may be offered, it cannot erase the record — of the arguments made and the evidence presented of Gongora's participation in the robbery and death of Delfino Sierra.
The responsive path of the law here reflects the power of prosecutorial comment. Our jurisprudence long tolerated comment on a defendant's silence, persuaded that the Fifth Amendment was adopted only to forbid a defendant's coerced testimony. But the very force of these prosecutorial comments came to be viewed in pragmatic terms as being coercive in fact, not to be turned by anemic, routinized instructions to disregard. Alluding to this history here is only to remind that the effectiveness of such comments has not changed — and that their temptation for a prosecutor with a less-than-compelling case remains great. So an effort to save a verdict tainted by such violations with contentions that the State's case was overwhelming at least demands close scrutiny of the facts. I resolve no facts. I only recount the versions competing for the jury's verdict, leaving them to reject with their own voice the view that there were none that offered succor to the defendant. There were, and I will describe them.
The State's theory was that six men in a van spotted Delfino Sierra walking on Northside Drive in Fort Worth, Texas, that two of the men approached Delfino Sierra, that one was the shooter, and that the other was the accomplice. After sorting and re-sorting this deck of six, the State rested its capital case against Gongora upon its ability to persuade the jury that he was one of those two men — specifically, the shooter. Gongora admitted, in a pre-indictment statement to police investigators introduced into evidence at trial, that he was in the van when the men spotted Sierra walking and that "we wanted to . . . get a little money." He did not admit that he was one of the two men who approached Sierra. Rather, his account of events, accepted as true and understood together with Juan Vargas's initial sworn statement to police, can lead to no other conclusion than that Gongora remained in the van after Vargas, the van driver, dropped off the shooter and his accomplice in a parking lot across the street and to the east of the intersection where Sierra was shot.
Gongora recounted that "we passed [Sierra on Northside Drive] . . . and pulled into the little store before you pass the railroad tracks, " that "we did a U-turn in the parking lot and went back towards where [Sierra] was walking, " that "next thing I remember the side door opened, all of us were going to get out then there were gunshots, " that "I turned around and saw the guy that was wearing the cowboy hat laying on the ground, " and that "[r]ight after the shots all of us jumped back in the van and we left." For his part, Vargas — an indicted co-conspirator who testified under plea as the State's star witness — insisted in his initial, pre-plea statement that he stopped at the "little store" on Northside Drive before the railroad tracks; that Carlos Almanza (the shooter) and James Luedtke (the accomplice) jumped out in the store's parking lot andcrossed Northside Drive on foot toward Sierra; and that Vargas did a U-turn in the parking lot, drove back toward Sierra, and stopped in adriveway on Calhoun Street. The only part of Vargas's story that changed at trial was the identity of the two men who jumped out of the van and walked across the street — this, after extensive plea negotiations between Vargas, his lawyer, and both prosecutors. The prosecution presented Vargas's trial version of the respective routes of the van and its six passengers as undisputed fact — a characterization that is accurate, except for the identity of the two assailants. The store, ...