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Nelson Gongora - Texas
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Thread: Nelson Gongora - Texas

  1. #1
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    Nelson Gongora - Texas




    Facts of the Crime:

    On April 7, 2001, Gongora and a co-defendant attempted to rob Delfino Sierra, 36. During the struggle, gunshots were fired striking the man, resulting in his death.

    Gongora was sentenced to death in Tarrant County in June 2003.

  2. #2
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    On October 23, 2008, Gongora was granted a Certificate of Appealability on two claims by the Fifth Circuit: one on a prosecutorial misconduct claim and the other on a Tilson claim.

    Opinion is here:

    http://www.ca5.uscourts.gov/opinions...0031.0.wpd.pdf

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    October 23, 2008

    HOUSTON — A federal appeals court is allowing a former Fort Worth street gang leader to move forward with an appeal that contends prosecutors made improper comments in their closing arguments to a jury that convicted him of capital murder and then sentenced him to death.

    The 5th U.S. Circuit Court of Appeals also said in a ruling that death row inmate Nelson Gongora may pursue an appeal that contends the jury improperly voted to condemn him because one of the questions they considered in their deliberations was faulty.

    Gongora, 29, was tried in Tarrant County in 2003, two years after Delfino Sierra, a Dallas father of four, was gunned down during an attempted robbery outside a party he was attending.

    Gongora does not have an execution date.

    Authorities said Gongora was a leader in a Fort Worth street gang called Puro Li'l Mafia, or PLM, and was in a van with several friends when they saw Sierra and decided to rob him.

    According to court records, Gongora and one of his friends jumped from the van, ran toward Sierra and demanded his money. Sierra started running and was fatally shot in the head. Court records show the assailants returned to the van and drove away with Gongora saying he did what he "had to do" and warning his companions to be quiet about it. Then they went to his house for a cookout.

    An anonymous tip to police led to the van owner and ultimately to Gongora, who acknowledged participating in the attempted robbery but denying he was the gunman.

    The Texas Court of Criminal Appeals in 2006 upheld his conviction and death sentence and the U.S. Supreme Court later that year refused to review the case. A federal district judge denied new appeals in 2007, which then were taken to the New Orleans-based 5th Circuit.

    In its ruling late Wednesday, the appeals court granted Gongora a certificate of appealability on his claim that a prosecutor improperly told jurors that Gongora's refusal to testify implied his guilt. Gongora's trial lawyer objected to the remark and the district attorney told jurors he wanted them to understand that Gongora had a 5th Amendment right to not testify.

    Gongora argued in his appeal the damage was done even though the trial judge later instructed jurors that the fact Gongora had not testified could not be considered in their deliberations.

    In its decision, the appeals court said the comments from the prosecutor "could have had a substantial and injurious effect on Gongora's defense" because evidence showed the driver of the van initially identified someone other than Gongora as the shooter, that a second witness also identified someone else as the gunman and that Gongora's statement to police denied he was the shooter.

    The court said jurors during their deliberations sent out notes to the judge that suggested the prosecutor's comments about Gongora's failure to testify "may have contributed to his conviction."

    The court also agreed to allow Gongora to pursue his argument that one of the questions put to jurors deciding the death penalty was unconstitutional. Jurors were asked to determine if Gongora anticipated Sierra's death but Gongora's lawyers said that merely the anticipation of death is not enough to warrant the death penatly.

    Instead, they said the jury should have been asked to decide if he was a substantial participant in the robbery, that he acted with reckless indifference or that he committed the murder himself.

    The appeals court said prosecutors, in their appeals arguments, didn't fully respond to Gongora's contention that jurors should have found he didn't play a major role in the killing.

    http://www.chron.com/disp/story.mpl/ap/tx/6075032.html

  4. #4
    Senior Member CnCP Legend JLR's Avatar
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    So, what's the hold-up with the 5th Circuit decision?
    Last edited by JLR; 04-09-2011 at 02:09 AM.

  5. #5
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    NELSON GONGORA v. RICK THALER

    On February 27, 2013, the Fifth Circuit GRANTED Gongora’s habeas petition and vacated his conviction.

  6. #6
    Administrator Moh's Avatar
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    It was a two-to-one decision. Reagan appointee Higginbotham (who is on senior status) and Clinton appointee Stewart voted to grant Gongora's petition. G.W. Bush appointee Owen dissented. Hopefully, this will be appealed to the full Fifth Circuit.

  7. #7
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    And the article by Maurice Chammah of The Texas Tribune

    Court Reverses Death Row Inmate's 2003 Conviction

    A man sentenced to death for the 2001 murder of another man in Fort Worth has had his case overturned by a federal appeals court.

    The 5th U.S. Circuit Court of Appeals agreed with attorneys for Nelson Gongora that prosecutors in his 2003 murder trial should not have suggested to the jury that Gongora's decision to not testify indicated his guilt.

    In their decision Wednesday, the 5th Circuit judges wrote that repeated comments by the Tarrant County prosecutor about Gongora's lack of testimony violated his right to a fair trial. The 5th Amendment guarantees criminal defendants the right to not testify at trial and in 1965, the U.S. Supreme Court ruled that this meant a prosecutor could use a decision to not testify as evidence of guilt. The lead prosecutor in Gongora's case, J.D. Granger, did not return a call requesting comment.

    Gongora remains on death row while the Tarrant County district attorney's office decides whether to try him again. "It's premature to determine how we're going to proceed," said Melody McDonald, the office's spokeswoman.

    Gongora, who was 22 at the time of the murder, was one of six men riding in a van one night in April 2001. According to court documents, the group saw Delfino Sierra walking on the street and decided to rob him. The van’s driver pulled over, and Gongora and another man exited and demanded money from Sierra, who started running and was shot in the head.

    The driver initially told police that someone other than Gongora shot Sierra. But he later identified Gongora as the shooter, saying he had lied before because he was afraid of Gongora, according to court records.

    After his arrest, Gongora admitted to police that he had exited the van to rob Sierra. He said that he heard shots and saw the man lying on the ground, but that he did not fire the shots.

    Prosecutors said the men were in a criminal street gang called Purp Li’l Mafia, according to court records, a statement that Gongora’s current attorney, Danny Burns, denies.

    Gongora's co-defendant, Albert Orosco Jr. was convicted of murder in the case and is currently serving a 23-year sentence. Prosecutors didn't seek the death penalty for Orosco. A friend of the men involved testified at Gongora's trial that he saw Orosco shortly after the murder with a .38 caliber handgun in his waistband. A bullet from a .38 caliber gun was found to have killed the victim.

    Many of the other men in the van on the night of the murder took the stand at Gongora’s 2003 trial, but Gongora did not. During closing arguments, the prosecutor said to the jury, “Who should we go ahead and talk to? Who should we go ahead and present to you? Should we talk to the shooter?”

    Gongora’s lawyer objected, accusing the prosecutor of trying to sway the jury against Gongora even though he had the right to not testify.

    The judge agreed and told the jury to disregard the comment. Rephrasing his statement, the prosecutor said, “I don’t want to give the wrong impression in any sort of way. We’re asking who do you expect to take the stand? Who do you expect to hear from, right?”

    Gongora’s lawyer objected again. The judge agreed again. Then the prosecutor told the jury, “I’m not talking about that, do you want to hear from him, because you can’t do that.”

    Gongora’s lawyer objected once again, but the judge allowed the comment.

    The Court of Criminal Appeals, Texas’ highest criminal court, wrote in 2006 that the prosecutors’ comments were “inartful and often confusing,” but did not violate Gongora’s rights. A federal district judge said in 2007 the prosecutor should not have made the comments, but that they did not affect the jury’s decision.

    On Wednesday, however, the 5th Circuit, which reviews appeals from all Texas death penalty cases, wrote that the prosecutor’s comments were “repeated and direct violations” which were “both inexplicable and inexcusable.” In context, the court said, the comments might be read as the prosecutor’s attempt to correct his initial mistake, but over time they served to “reinforce the impression of Gongora’s guilt.”

    “Gongora was denied a right to a fair trial,” the court concluded.

    Judge Priscilla Owen dissented, arguing that the prosecutor’s comments had “little if any, bearing on Gongora’s guilt,” because he admitted to trying to rob the victim.

    Burns, Gongora's attorney, said he hopes a new trial would allow jurors to see that Gongora had no real involvement in the murder, because he was charged as being a conspirator, but the murder happened without a preconceived plan. “How can you be a conspirator without a conspiracy?” he said.

    http://www.texastribune.org/2013/02/...ates-sentence/
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  8. #8
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    Name: Gongora, Nelson
    TDCJ Number: 999452
    Date of Birth: 08/20/1979
    Date Received 06/04/2003
    Age (when Received): 23
    Education Level (Highest Grade Completed): 08
    Date of Offense: 04/07/2001
    Age (at the time of Offense): 21
    County: Tarrant
    Race: Hispanic
    Gender: Male
    Hair Color: Black
    Height: 05'07"
    Weight: 171
    Eye Color: Brown
    Native County: Harris
    Native State: Texas
    http://www.tdcj.state.tx.us/death_ro...oranelson.html

  9. #9
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    Nelson Gongora v. Rick Thaler, Director

    Petition for rehearing en banc DENIED.
    An uninformed opponent is a dangerous opponent.

    "Y'all be makin shit up" ~ Markeith Loyd

  10. #10
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    (ORDER LIST: 570 U.S.)

    FRIDAY, SEPTEMBER 20, 2013

    ORDER IN PENDING CASE

    13A243 STEPHENS, DIR., TX DCJ V. GONGORA, NELSON

    The application to recall and stay the mandate of the United States Court of Appeals for the Fifth Circuit presented to Justice Scalia and by him referred to the Court is denied.

    http://www.supremecourt.gov/orders/c...013zr_h3ci.pdf

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