After an exhaustive “deep dive,” a U.S. district judge has agreed with a magistrate judge’s report and recommendation to dismiss a federal appeal by a man serving life in prison, without the possibility of parole, for the brutal slashing death of a Donna man in 2006.
However, U.S. District Judge Micaela Alvarez, in agreeing with U.S. Magistrate Judge Peter E. Ormsby’s 143-page report and recommendation Tuesday, will allow the man to appeal his claim of ineffective assistance over failure-to-investigate to the Fifth Circuit Court of Appeals.
Ormsby issued his report on Sept. 20.
This is the case of Douglas Tyrone Armstrong, who killed Rafael Castelan on April 21, 2006, near the Sunshine Bar in Donna after he spent his entire paycheck buying beers for himself and several women at the bar.
Prosecutors charged Armstrong with capital murder because he stole $41 and a Medicaid card from Castelan after the fatal attack, which was observed and reported by two witnesses who knew Castelan from the neighborhood.
Police caught up with Armstrong minutes after the killing at the Sunshine Bar where they literally found him washing blood off of his hands in the bar’s bathroom.
On Jan. 11, 2007, after three and half hours, a jury convicted Armstrong. Then, a week later, on Jan. 17, 2007, Armstrong was sentenced to death.
He remained on death row for more than a decade, until Nov. 15, 2017, when the Texas Court of Criminal Appeals ruled that his attorneys provided ineffective assistance during his sentencing by failing to present evidence to the jury of a tragic childhood marked by sexual abuse, domestic violence, the murder of his father, which he witnessed, and neglect from his parents who failed to provide for him and instead spent all their money on drugs and alcohol.
On March 19, 2018, Armstrong was re-sentenced to life in prison without the possibility of parole.
In his appeal, Armstrong, who maintains he found Castelan dying on the street and just tried to help him to the police station, made three claims, including ineffective assistance of trial counsel; that his attorneys were unqualified to represent him; and trial counsel failed to adequately investigate alibi witnesses and forensic evidence.
“In support of his failure-to-investigate claim, Petitioner submits new evidence consisting of multiple affidavits from lay witnesses and reports by forensic experts. According to Petitioner, this new evidence also proves he is actually innocent, which is his third claim,” Ormsby wrote.
The nature of Armstrong’s new evidence required a “deep dive” into the record, which spans about 10,000 pages. Having taken that dive, Ormsby said he determined that Armstrong failed to show he is entitled to federal relief.
First off, the claim that his attorneys were not qualified to represent him is meritless, Ormsby wrote.
As for the failure-to-investigate claim, that required a close look. Ormsby said Armstrong failed to show he was prejudiced from counsel’s alleged deficiency.
“Petitioner’s freestanding actual innocence claim is not recognized in the Fifth Circuit, and, even if it were, Petitioner has fallen short of proving that he is factually innocent,” Ormsby wrote.
In making that claim, Armstrong’s attorneys argued that Donna police planted the murder weapon, a blue box cutter, as well as Castelan’s Medicaid card, which is the basis of the capital murder charge over his theft of the document.
They also allege neither Armstrong’s DNA nor his fingerprints are on either item, and question the timeline of the two witnesses who observed the attack. Witnesses interviewed by appellate counsel provided a different account of that night.
His attorneys also presented a blood spatter analysis that they argue is consistent with his story that he was just trying to help Castelan but got scared when those initial witnesses approached because he was drunk, an ex-con, had used cocaine that day and thought authorities would charge him with murder, which is exactly what happened.
Ormsby, however, with Alvarez agreeing, determined that the two initial eyewitnesses contradicted Armstrong’s version of that fatal event.
“Petitioner’s version of events was completely inconsistent with the testimony of the two eyewitnesses who were in the van, Ms. Corona and Mr. Reyes. They both testified that they saw what appeared to be a fight, with an already-bloody Mr. Castelan attempting to get away from Petitioner (who was also covered with blood),” Ormsby wrote.
The guilty verdict reflects that the jury did not believe Armstrong’s version of events.
As for the failure-to-investigate claim, Armstrong alleged his trial attorneys fell short in identifying and interviewing fact witnesses and in investigating forensic evidence and retaining a forensic expert.
Part of Armstrong’s “new evidence” claim involves two people that his appellate counsel interviewed that provided a different timeline of events challenging the two witnesses who initially reported the fatal attack.
Armstrong alleges his trial counsel failed to interview these people, which could have been a “cornerstone” of his defense.
“Whether or not the evidence against Petitioner at trial was overwhelming, the record supports the state habeas court’s implicit finding that the affidavits of Mr. Barrera and Mr. Guerra were not so credible or compelling that the result of the trial would likely have been different had they testified,” Ormsby wrote.
Furthermore, the magistrate judge says both witnesses’ timelines actually conflict with each other.
And unlike these two witnesses, there is physical evidence that matches up with the state’s witnesses’ timelines, including an H-E-B receipt that places Castelan alive at around 9:30 p.m., which conflicts with the appellate counsel’s witnesses’ timelines.
Then there’s the blue box cutter, which is the murder weapon that police did not find until three days after Castelan’s killing.
The man who found it testified he spotted it easily, which is why Armstrong questioned why it took three searches for Donna police to find the box cutter.
“Faced with this large search area, investigators may have failed to ensure that one obvious area (behind the bar) was thoroughly searched at the outset,” the magistrate judge wrote.
On the other hand, Ormsby noted that perhaps searchers didn’t find the knife on the first two tries because it wasn’t there and was instead later planted by someone. However, based on a new affidavit presented by Armstrong’s attorneys, drawing this conclusion is not materially more likely and the new affidavit is inconsistent with the same individual’s trial testimony.
In his appeal, Armstrong’s attorneys also attacked the timeline of when Donna police showed the blue box cutter knife to Armstrong’s former manager at a distributing business. That man told police it was not the kind used at the distributing center and appellate counsel argued the manager said investigators showed him the knife before 10 a.m., which would be before when Donna police say they found the knife.
“Yet again, the significance of Petitioner’s new evidence hinges on a witness’s recollection of a specific time. Mr. Martinez does not explain how he was able to remember, three years later, that the police spoke to him before 10 a.m., as opposed to before 11:00 a.m. or some other time,” Ormsby wrote.
Also, the police report reflects that detectives wrote they found the knife at around 10:36 a.m. and then proceeded to go talk to Armstrong’s former manager, the ruling notes.
“Petitioner relies on Mr. Martinez’s time estimate to suggest that the police planted the blue box cutter knife. But this theory would have required the jury to believe that the police were not only corrupt but also absurdly incompetent — taking a picture of evidence to be planted and then foolishly showing it to someone before confirming that the planted evidence was found,” Ormsby wrote.
There’s also Armstrong’s former girlfriend, who told police that he always carried a blue box cutter knife, a statement she later denied.
“If the police had planted a blue box cutter knife, as Petitioner suggests, then their choice of color was fortuitous since they learned two days later that Petitioner in fact had a blue one,” Ormsby noted.
Then there’s the lack of Armstrong’s fingerprints or his DNA on the knife.
“But this ‘new’ forensic evidence regarding the knife adds little, if anything, to the evidence and argument the jury heard at trial. As noted, the DPS forensic scientist who testified at trial, Ms. Anderson, found only Mr. Castelan’s DNA on the knife, which is what Petitioner’s forensic expert also found. This suggests that the knife was the murder weapon but does not tie Petitioner to the knife. And that is precisely the argument made by Petitioner’s trial counsel during closing argument,” the magistrate judge wrote.
Armstrong’s attorneys also argued that no blood was found inside his pockets, which they deduce means Armstrong could never have put Castelan’s bloody Medicaid card or a bloody knife inside his pockets.
But Ormsby notes that Armstrong’s own forensic expert found there was a small amount of blood inside his rear pants pocket.
“However, even if no blood had been found inside Petitioner’s pockets, it would fail to show that he was not carrying the blue box cutter knife during his flight from the crime scene. The record provides no reason to believe that the witnesses would have — or could have — seen the blue box cutter had it been in Petitioner’s hand: Det. Suarez, who took the blue box cutter into evidence, noted that it ‘fits in your hand pretty good,'” Ormsby wrote.
As for the Medicaid card, which police say they found in Armstrong’s back pocket, it also had no forensic evidence linking him to the card and it also had an unidentified fingerprint that was later found on the document.
And Ormsby takes notice of the irregularities in how the police found the card.
His appellate attorneys say the responding officer who searched Armstrong never found Castelan’s Medicaid card and it wasn’t until the interrogation that authorities discovered the bloodied Medicaid card. The jailer who searched Armstrong claimed at trial that he found the card in the man’s back pocket but didn’t list it on the booking sheet because it was considered evidence.
“They also both pointed out the irregularities in how the police discovered and handled the card, suggesting that it was really a plant,” Ormsby said of Armstrong’s trial attorneys, who also honed in during closings how there was no forensic evidence linking Armstrong to the card.
As for the unidentified bloody fingerprint on the card, the magistrate judge notes how appellate counsel’s own expert said in a report that Armstrong could not be excluded.
More so, Ormsby said the lack of DNA or blood linking Armstrong to the Medicaid card likely would have done little to help his case.
“At trial, Petitioner’s counsel emphasized that there was no DNA evidence linking Petitioner to the card. The new evidence further confirms what trial counsel said, but it does not help since it also shows that whoever committed the murder — whether it was Petitioner or someone else — did not leave their DNA on the card,” the magistrate judge wrote.
There was also a bloody shoe print on the card, which experts determined did not belong to either Armstrong or Castelan.
“Of all Petitioner’s new evidence regarding the Medicaid card, the evidence suggesting a bloody shoe print may be the most significant. It is possible that this evidence would have affected the jury’s verdict, but that does not seem probable,” Ormsby wrote.
The argument here is that a third person, possibly an unknown killer, was present at the scene.
“To reach that conclusion, the jury would probably have had to also be convinced that the police planted the bloody Medicaid card. If the card was not a police plant, and if Petitioner had taken the card from the crime scene, such conduct would be completely inconsistent with his story that he was just trying to help Mr. Castelan,” the magistrate judge said.
Ormsby also notes that the print could just be an accident during evidence collection.
“On the other hand, if the jury believed that the card was a plant, it would not necessarily mean that someone else killed Mr. Castelan — though it would mean that one or more police officers committed a crime. While unlawful, corrupt, and misguided, the card could have been planted to ensure a conviction even though Petitioner in fact had committed the crime. Then again, the jury may have concluded both that the card was planted and that the possible shoe print raised reasonable doubt about Petitioner’s guilt,” he wrote.
During the trial, prosecutors actually avoided the Medicaid card and instead presented other evidence while trial counsel relied on the document heavily, arguing it was a plant while emphasizing the lack of forensic evidence tying Armstrong to the card.
The jury, however, found the state’s other evidence compelling enough to prove Armstrong’s guilt beyond a reasonable doubt.
Armstrong’s appellate attorneys also presented a drug-hit theory, alleging Castelan was a drug dealer killed over his business. As new evidence, they point to a small amount of cocaine found in the waistband of Castelan’s shorts years after his murder.
“Assuming Mr. Castelan was selling drugs, the evidence suggests that it was on a very small scale — three tiny baggies concealed in the waist band of his shorts. It also appears that any such activity was not lucrative, based on the modest personal effects that were scattered on the ground at the murder scene. The suggestion of a ‘drug hit’ is pure speculation. There is no evidence that small-time drug dealers in the surrounding area had been targeted by anyone,” Ormsby said in the report.
Furthermore, there was evidence Armstrong used cocaine and had ingested the drug the day of the murder, which could have caused him more harm than good during the trial.
“If jurors had believed Petitioner bought cocaine from Mr. Castelan on the night of the murder and possibly on other occasions, they may well have found this to be additional evidence of motive. Petitioner would have had reason to think that Mr. Castelan was likely to have cash from drug sales (perhaps including money he paid Mr. Castelan for cocaine earlier that day),” the judge wrote.
Then there’s the blood spatter on Armstrong, which an appellate expert determined corroborated Armstrong’s story that he was trying to help Castelan as opposed to killing him. According to the expert, the blood spatter would be different on Armstrong had the man attacked Castelan with a knife.
“More to Petitioner’s point, it is true that his version of events is consistent with Mr. Epstein’s finding that the other blood stains on his gray shirt resulted from ‘direct contact.’ In this way, the new evidence would have been helpful to petitioner’s defense,” Ormsby wrote.
However, his finding is not necessarily inconsistent with the two witnesses who saw the attack and testified that Armstrong’s shirt was soaked with blood.
There’s also the issue of Castelan’s blood being on the van driven by those initial two witnesses, who told police the man tried to get in their van before Armstrong pulled him away and slammed him on the ground.
“Moreover, the discovery of Mr. Castelan’s blood on the rear passenger door of Mr. Reyes’s van is also inconsistent with Petitioner’s account of what happened. According to Petitioner, he walked Mr. Castelan to the alley, saw the van, let go of him, and ran. Mr. Castelan died were Petitioner left him. Here again, in Petitioner’s version of events, there should be no blood on the van. But it was there,” Ormsby said.
The magistrate judge notes Armstrong’s appellate counsel did find persuasive evidence, but said it’s just not enough in light of all the other evidence the prosecution presented at trial.
“Would Petitioner have had a better chance of acquittal if the new evidence developed by habeas counsel was available at trial? Perhaps, but that is not the right question. Would the result of Petitioner’s trial have been different if the new evidence had been available at his trial? Possibly, but probably not. Put another way, if Petitioner’s new evidence had been presented at trial, would it have convinced at least one juror to change his or her verdict? Maybe, but again probably not,” Ormsby wrote.
As for allowing Armstrong to appeal his ineffective assistance for failure-to-investigate claim, which is the only claim he is allowed to appeal, the magistrate judge notes that a reasonable jurist could debate his recommendation, which Judge Alvarez agreed with.
“Here, Petitioner’s … claims should be dismissed on their merits for the reasons explained in this report. However, as reflected by the detailed discussion of Petitioner’s new evidence, reasonable jurists may find debatable the undersigned’s assessment of Petitioner’s claim alleging ineffective assistance of counsel based on failure to investigate. As to Petitioner’s other claims, reasonable jurists would not find debatable or wrong the conclusion that those claims lack merit, nor are they adequate to deserve encouragement to proceed further,” Ormsby wrote.
