Wednesday, September 25, 2013

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Media Advisory: Arturo E. Diaz scheduled for execution

AUSTIN – Pursuant to a court order from 370th District Court of Hidalgo County, Arturo Eleazar Diaz is scheduled for execution after 6 p.m. on Sept. 26, 2013.

On Feb. 16, 2000, Diaz was sentenced to die for the robbery-related capital murder of Michael Ryan Nichols.

FACTS OF THE CRIME

The Fifth Circuit Court of Appeals described the murder of Michael Ryan Nichols as follows:

On April 1, 1999, Nichols was in McAllen, Texas, on business. That night, the night before he was murdered, Nichols went out with an exotic dancer named Danielle Thomas who performed exotic dances at parties and private dances. While they were out, a teller machine destroyed Nichols’ bank card and Thomas loaned him $100. When the nightclubs closed at 2:00 a.m., Nichols and Thomas returned to Thomas’ trailer, where they met up with Diaz and a woman named Arcelia Reyes. The four watched movies until 4:00 or 5:00 a.m., when Thomas and Reyes, who provided security for Thomas, borrowed Nichols’ truck to go to a motel so Thomas could dance. Reyes returned the truck to Nichols before the dance ended. Thomas called the trailer several times during the day, speaking sometimes to Diaz and sometimes to Nichols. When Thomas and Reyes returned to the trailer at 8:00 p.m. on April 2, the two men had left.

John Shepherd, a coworker of Nichols who shared a company-owned apartment in McAllen with him, later testified that Nichols, Diaz, and a man named Joe Cordova arrived at the McAllen apartment between 6:00 and 7:00 p.m. on April 2. Shepherd felt uncomfortable around Nichols’ companions. He noticed that Diaz had tattoos on his forearms. Shepherd left to buy beer and cigarettes. When he returned, he noticed that Nichols’ truck was in the center of the parking lot, a fact that would become important later. Nichols, Diaz, and Cordova were watching television in the living room. Shepherd went to bed.

While Shepherd was in bed, Thomas and Reyes stopped by the apartment. Thomas testified that she had come to recover the $100 she had lent to Nichols on April 1. She saw that Nichols had two fifty dollar bills in his wallet. He gave her one and kept the other. After the murder, the second fifty dollar bill was not found in Nichols’ wallet, or anywhere else for that matter. Instead, a piece of paper with Diaz’s telephone number and first name were found in Nichols’ wallet.

Later that night, Shepherd was awakened by a loud noise. He went to the living room and found Nichols bleeding from a wound in his arm. Diaz was holding a large butcher knife. After Shepherd asked three times, “What’s going on?” Nichols said, “Do what he says, get the money and they’ll leave.” Cordova said some things in Spanish and in English about Shepherd getting money; and Diaz spoke angrily in Spanish. Diaz then grabbed Shepherd’s shirt and pushed him down the hall to his room. Shepherd got some cash from his pants pocket and gave it to Diaz. Diaz checked the pants for more money, then grabbed Shepherd’s shirt and led him back to the living room. Cordova told Shepherd to sit on the couch and do what he was told. Diaz and Cordova subsequently put Nichols on the floor and bound and gagged him with shoelaces and strips of bedding.

The phone rang, and Cordova answered it. Shepherd later testified that Cordova told the caller to “‘come to get us, or come over here,’ something like that. . . . Pretty quick there was a knock on the door.” Thomas testified that Reyes had received a phone call around midnight and that she had borrowed Thomas’ car and left for about forty-five minutes. Consistent with Thomas’ testimony, Shepherd testified that a large Hispanic woman arrived at the apartment shortly after the phone call. The woman asked Cordova and Diaz what was going on, and Cordova told her something in Spanish. Shepherd testified that the woman did not look happy with Cordova’s response. Cordova told the woman to face the door, and he told Shepherd not to look at her.

Diaz and Cordova beat Nichols. They put Shepherd on the floor and bound and gagged him, then returned their attention to Nichols. Cordova lifted Nichols up and held him while Diaz stabbed Nichols in the torso numerous times. An autopsy revealed perforations of Nichols’ [… major organs and] lacerations to Nichols’ scalp, neck, and flanks.

When Cordova noticed that Shepherd had freed one of his hands, he and Diaz beat Shepherd and stabbed him. Shepherd pretended to be dead and lost consciousness.

Diaz and a man known to Thomas as “Danny” arrived at Thomas’ trailer at 3:00 a.m. on April 3. They were very nervous and in a hurry to leave. When Reyes returned, Thomas noted that she was very upset.

When Shepherd awoke, the apartment was dark. The evidence indicates that it was between 3:00 and 4:00 a.m. Shepherd freed himself from his bindings and left the apartment. He noticed Nichols’ truck at the apartment gate with the driver’s door open. At Shepherd’s request, a neighbor called the police.

When the police arrived at the apartment complex, they found the gate locked and Nichols’ truck parked next to the keypad box inside the gate. There was blood in the truck, bedding material on the ground, and a footprint on top of the keypad box that was later found to match Diaz’s shoe. Nichols was found dead in the apartment; a beer bottle with Diaz’s DNA on it was found on the floor next to him.

A man named Manuel Montes later testified that Cordova phoned him at about 4:00 a.m. on April 3 and asked Montes to pick him up from another neighborhood. Cordova was Montes’ neighbor and the older brother of Montes’ best friend. Montes picked up Cordova, Diaz, and a large woman and took them over to his house. Cordova had a bloody shirt wrapped around his arm, and when he was arrested, wounds were discovered on his arms and thigh.

After daylight, Cordova borrowed a pair of Montes’ pants so that he could go home and get pants for himself and Diaz. After Cordova and Diaz changed clothes, Cordova told Montes he would take care of the trash bag, which presumably contained the dirty clothes. Police later found a trash bag of clothing in Montes’ home; the clothing was stained with Cordova’s and Nichols’ blood.

Montes also testified that he overheard Diaz telling some other men, in Cordova’s presence, about a murder. According to this testimony, Cordova held the man, and Diaz stabbed him.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of trial, the State presented evidence that Diaz had engaged in misconduct while in the county jail; that his misconduct included fighting and refusing to go to court; that deputies had caught Diaz trying to dig a hole through the wall of his cell; that Diaz was housed in a unit used to hold members of the Pistoleros gang; and that Diaz had committed other assaults and homicides.

Dr. John Edward Pinkerman, a psychologist, testified for Diaz. Prior to testifying, Dr. Pinkerman met with Diaz twice to conduct a psychological evaluation. He documented his findings in a written report. According to Dr. Pinkerman, Diaz’s past medical history included head trauma from being knocked un-conscious during fights and a head injury suffered in a car accident. Dr. Pinkerman indicated that Diaz’s history of head trauma could impair his ability to control and regulate his judgment and perceive reality; that Diaz has low-average intelligence and the verbal ability of an 11-year old; that Diaz is prone to feeling guilty and might act out to incur punishment; and that Diaz has a history of antisocial behavior as a child that correlates with a high probability of adult criminal behavior.

Over defense’s objection, the State introduced Dr. Pinkerman’s written report into evidence. The report included Dr. Pinkerman’s conclusion that Diaz “approached the assessment in somewhat of an exaggerated manner which may reflect an inability to cooperate with the testing or malingering in an attempt to present himself with the false claim of mental illness”; that Diaz was not mentally ill; and that Diaz’s profile matches that of Type C offenders, which Dr. Pinkerman described as the most difficult criminal offenders – those who are distrustful, cold, irresponsible, and unstable. Also, on cross-examination, Dr. Pinkerman testified that Diaz had refused to discuss the facts of the offense with him on the advice of Diaz’s attorney. After Dr. Pinkerman testified, the defense called no other witnesses.

PROCEDURAL HISTORY

On Oct. 20, 1999, a Hidalgo County grand jury indicted Diaz for the robbery-related capital murder.

On Feb. 11, 2000, after a trial in the 370th District Court of Hidalgo County, jurors found Diaz guilty of capital murder.

On Feb. 16, 2000, after a punishment hearing, the trial court sentenced Diaz to death.

On Jan. 14, 2002, Diaz applied for state habeas corpus relief.

On Sept. 18, 2002, the Texas Court of Criminal Appeals affirmed Diaz’s conviction and the sentence.

On Sept. 18, 2002, the Court of Criminal Appeals denied habeas corpus relief.

On July 16, 2004, Diaz sought federal habeas corpus relief.

On Sept. 14, 2005, the federal district court denied habeas corpus relief.

On April 11, 2007, the United States Court of Appeals for the Fifth Circuit granted Diaz permission to appeal one issue.

On July 3, 2007, the Fifth Circuit court affirmed the federal district court’s denial of relief.

On Feb. 25, 2008, the U.S. Supreme Court denied certiorari review of the Fifth Circuit court's decision.

On Aug. 27, 2013, in federal district court, Diaz sought relief from the district court’s judgment denying habeas corpus relief.

On Sept. 3, 2013, Diaz sought a stay of execution in federal district court.

On Sept. 19, 2013, Diaz filed a motion for a stay of execution and an application for a subsequent state writ in the Texas Court of Criminal Appeals.

On Sept. 20, 2013, the federal district court denied Diaz’s motion for relief and and denied his motion for stay of execution.

On Sept. 23, 2013, the Texas Court of Criminal Appeals denied Diaz’s application for a subsequent state writ and his request for a stay of execution.

On Sept. 23, 2013, Diaz appealed the federal district court's decision to the United States Court of Appeals for the Fifth Circuit.

On Sept. 25, 2013, the Fifth Circuit court affirmed the federal district court’s denial of Rule 60(b) relief and denied Diaz’s motion for stay of execution.

MISCELLANEOUS

For additional information and statistics, please go to the Texas Department of Criminal Justice website at www.tdcj.state.tx.us.