Judge refuses request to spare Rubio death penalty—-Lawyers argue
legality of jail cell search and seizure
John Allen Rubio will again face the death penalty for allegedly killing 3
children in 2003, a local judge affirmed Tuesday.
Defense attorney Nat Perez asked state District Judge Arturo C. Nelson to
consider taking the punishment off the table during Rubio's retrial for
capital murder charges. His conviction was overturned in September because
of a technicality in his original prosecution.
Nelson denied the motion during a hearing regarding contents removed from
the prisoner's Cameron County cell earlier this month.
"I am not going to do away with the death penalty," in this case, Nelson
The bulk of Tuesday's hearing involved a subpoena that ordered sheriff's
deputies to seize all items from Rubio's cell at the Carrizalez-Rucker
Detention Center on April 9.
It is not known why the subpoena was issued because a court issued gag
order prohibits the attorneys from talking to the media.
Perez claims defense counsel was not informed of the subpoena's order and
that the seizure violates the prisoner's Sixth Amendment rights because
the cell contents included privileged correspondence between him and
Rubio. Sixth Amendment guarantees the right to a fair and speedy trial.
Chief First Assistant Prosecutor Charles E. Mattingly Jr., said the seized
contents – which according to jail staff include photographs, documents,
food, medication and a Bible – have not been reviewed by his office and
remain in the plastic bags jail staff dropped them in.
Mattingly claims defense attorneys were notified and invited to review the
contents but declined due to "other commitments."
Nelson observed that in 30 years of practicing law, he had never heard of
a subpoena issued to seize contents. Subpoenas are usually issued for
individuals to appear in court, he said, and not at as tool for "going
Still, Nelson denied the defense's request that the seized items be
immediately returned. Instead, he ordered the items delivered to his
chambers where they would be held until he made a decision on whether the
seizure violated Rubio's rights.
He ordered both the prosecution and defense attorneys to provide written
briefs backing their claims on the seizure.
"They (the items) will be put in my office and I will not look or touch
them until after I get the briefs," from the attorneys, he said.
Rubio sat quietly in the courtroom, clean-cut and dressed in a powder blue
shirt and navy pants. He remained handcuffed throughout the proceeding but
at times appeared to be reading and writing, then listening intently to
Now 27, the Porter High School graduate was convicted of killing his son,
daughter and stepdaughter in 2003 and was granted a new trial after his
original conviction was overturned last year on a technicality.
Rubio pleaded not guilty by reason of insanity during his original trial.
He was convicted and sentenced to death. His common-law wife, the
children's mother, was also found guilty for her part in the killings and
sentenced to life in prison.
Rubio is to be retried again on capital murder charges.
The children Julissa Quesada, 3, John E. Rubio, 14, months and Mary Jane
Rubio, 2, were smothered, stabbed and mutilated, according to
(source: The Brownsville Herald)
D.A. won't seek death penalty in Baby Grace case
Galveston County prosecutors said today they will not seek the death
penalty against the mother and stepfather of Riley Ann Sawyers, who was
known as Baby Grace until her identity was confirmed.
Galveston County District Attorney Kurt Sistrunk said he decided against
seeking the death penalty in the Nov. 3 trial of Royce Clyde Zeigler II,
25, of Spring.
Sistrunk announced his decision in a pre-trial hearing for Zeigler before
state District Judge David Garner.
He said he also would not seek the death penalty for Zeigler's wife,
Kimberly Ann Trenor, 19, whose trial date is expected to be announced at a
Saying he was prepared for a backlash from those appalled by the brutality
of the crime, Sistrunk said he was abiding by a 2007 Texas Court of
Criminal Appeals ruling that would make it nearly impossible to obtain a
death penalty decision that would withstand appeal
The ruling concerned a special question required by law that a jury must
answer to arrive at a death penalty decision: will the accused be a future
danger to society? The appeals court ruled in the case of Kenisha Eronda
Berry of Beaumont, convicted in the death of her infant son, Malachi, that
the slaying of her child was insufficient to prove that she would be a
future danger to society.
Sistrunk said that meant a jury would therefore be unable to find that
Zeigler or Trenor would be a future danger to society, excluding the death
Sistrunk said he understands that many “recognize the brutality and
nature of this crime, it cries out for the harshest sentence.''
He said it is his duty to resist public pressure and follow the law, even
if he doesn't agree with the appeals court ruling.
Zeigler and Trenor are charged with capital murder and evidence tampering
in connection with the little girl's death.
The child's remains were found in a plastic container by a fisherman in
West Galveston Bay on Oct. 29.
Zeigler and Trenor are accused of killing Riley on July 25 during a
disciplinary session at their Spring home. Trenor has said the 2 beat
Riley with belts, held her head under bath water, and that Zeigler hurled
her onto a tile floor and her face was pushed into a pillow and a couch.
The girl's body, Trenor said, was kept in a plastic box in a storage shed
for up to 2 months before the box was tossed into the bay.
Both remain in the Galveston County Jail in lieu of $750,000 bond each.
(source: Houston Chronicle)