HOUSTON (CN) – Counsel for a Texas death-row inmate who killed his wife and daughters in a cocaine-fueled rampage told the Fifth Circuit on Friday he needs funding for an investigation that could get his sentence reduced to life in prison.
Jonesing for a dime bag of crack cocaine after 10 days sober, Abel Revill Ochoa asked his wife for $10 after they left church with their two daughters on Aug. 4, 2002, according to the case record.
His wife Cecelia eventually gave in to his pestering. He bought the crack and she made him smoke it in the backyard of their Dallas home they shared with her father.
“While I was in the back yard, my wife's two sisters, Jackie and Alma came over. They all stayed in the living room and talked. After I smoked the crack I went into my bedroom, and laid down on the bed,” Ochoa wrote in a confession to police.
Ochoa, 45, said in his confession that as he lay on his bed he began to crave more crack, and he knew his wife, who controlled their money so he would not blow it on drugs, would not give him any more cash.
“I got up and went to my closet and I got my Ruger 9mm gun. The gun was already loaded and I walked into the living room where my family was. I started shooting while they were all sitting on the couch,” he told police.
Ochoa fatally shot his 29-year-old wife, their 9-month old daughter Anahi, his father-in-law Bartolo Alvizo, and his sister-in-law Jacqueline Smith, and seriously wounded his other sister-in-law Alma Alvizo.
He went into his bedroom and reloaded and walked back into the living room and set his sights on his 7-year-old daughter Crystal.
“Crystal saw me with the gun and she started running away. I chased after her and I shot her. After I shot Crystal I went back into the bedroom and got my wife's small plastic purse,” Ochoa told police.
Ochoa drove to a shopping center and unsuccessfully tried to get money from an ATM. Police pulled him over and arrested him less than 30 minutes after the shootings.
A Dallas County jury convicted him of capital murder for killing his wife and his daughter Crystal in April 2013 on the second day of his trial.
The trial judge sentenced him to death the next month after the jury decided he would be a future danger and there was not enough mitigating evidence to spare his life.
The lack of mitigating evidence is the basis of Ochoa’s claims before the Fifth Circuit. He says his trial attorneys erred in not hiring a mitigation expert to vet his background until jury selection had already started and it was too late for a thorough investigation.
He asked U.S. District Judge Ed Kinkeade to give him funds to hire a mitigation expert in October 2013 as part of his federal habeas petition.
The judge rejected that request, finding the claim was procedurally defaulted because his state habeas attorney had not made it in his state court proceedings.
Kinkeade dismissed his federal habeas petition in October 2013 and he appealed to the Fifth Circuit in July 2017.
Ochoa’s case got a boost from the U.S. Supreme Court in March, when the justices found the Fifth Circuit had improperly denied Texas death-row inmate Carlos Ayestas funding to investigate his mental health history.
Ochoa’s attorney, Assistant Public Defender Jeremy Schepers, told a three-judge panel of the Fifth Circuit on Friday that in light of the Ayestas ruling, they should remand the case to Kinkeade to explore whether he improperly denied funding for a mitigation expert.
But Texas Assistant Attorney General Travis Bragg said Kinkeade correctly determined any new evidence a mitigation inquiry turned up would not help Ochoa.
“The crux of the funding denial is the idea that the evidence Ochoa seeks to develop amounts to duplication of what was already presented,” Bragg said.
He said Ochoa’s trial attorneys put on 16 defense witnesses for the punishment phase of his trial, including Ochoa’s father, who testified that he often drank too much alcohol and beat his wife when Ochoa was a child.
Texas argued in its brief to the Fifth Circuit that a death sentence for Ochoa was a“foregone conclusion” given the nature of his crime.
“Even by the standards of capital cases, Ochoa’s crime is appalling,” the state’s brief says. “The record reflects that Ochoa—angry because his wife refused to give him money to indulge his crack-cocaine habit—went on a rampage and shot six members of his family, killing five.”
The Fifth Circuit judges seemed to side with Texas during the 45-minute hearing at the Houston federal courthouse.
U.S. Circuit Judge Jennifer Elrod, a George W. Bush appointee, agreed that Ochoa’s trial attorneys did put on a good mitigation case even if they waited too long to hire a mitigation expert.
“This is very unusual for these kinds of cases. Usually there’s very little mitigation evidence on the record in the trial court. This is the most extensive mitigation case the court would see,” she said.
She asked Ochoa’s attorney, Schepers, what would be uncovered by a new investigation.
“That his dad was a horrible alcoholic? I am not being flippant, but that was already gone over during his trial,” she said.
Schepers stood firm.
“We believe that it could potentially show evidence of sexual abuse and mental illness,” he said.
He urged the panel to remand the case to Kinkeade. He said after the hearing that if the Fifth Circuit refuses to remand the mitigation funding claim, he will appeal to the U.S. Supreme Court.
The judges gave no indication of when they would rule.
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