Full opinion text
ORDER BUNTON, Chief Judge. BEFORE THIS COURT is Petitioner’s Application for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the above-captioned cause. Petitioner timely filed written objections. Respondent timely filed written objections and Petitioner Responded. After consideration of the Petition and Report and Recommendation of Magistrate Judge Janet Ruesch, this Court is of the opinion the Magistrate Judge’s Report and Recommendation should be ADOPTED and the Petition for Writ of Habeas Corpus should be GRANTED. The Magistrate Judge limited her constitutional error examination to the ineffective assistance of counsel at the guilt and sentencing phases of Petitioner’s trial. Pursuant to Strickland v. Washington, 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Magistrate Judge concluded Petitioner’s trial counsel’s performance fell outside the wide range of reasonable professional conduct, and Petitioner was prejudiced by counsel’s shortcomings. There is a reasonable probability Petitioner would have received a life sentence in prison in lieu of the death sentence he received for the murders of Robert and Naomi Haney which occurred on December 7, 1983. The Report and Recommendation and the parties’ briefing is extensive. Magistrate Judge Ruesch painstakingly addressed the facts and extensively applied the law, thus this Court deems unnecessary an extensive rehash. Consequently, this Court will summarily address the parties’ objections in order to supplement the record. A. RESPONDENT’S OBJECTIONS 1. Presumption of Correctness Respondent objects to the Magistrate Judge concluding the State court failed to conduct a full and fair evidentiary hearing as required by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). “[A] federal evidentiary hearing is required unless the [S]tate-court trier of fact has after a full hearing reliably found the relevant facts.” Id. at 312-13, 83 S.Ct. at 757. The Magistrate Judge correctly concluded the presumption of correctness under 28 U.S.C. § 2254(d) was not applicable. Respondent contends Petitioner failed to offer sufficient reasons justifying the evidentiary hearing conducted by the Magistrate Judge. “In capital proceedings generally, the[e Supreme] Court has demanded that factfinding procedures aspire to a heightened standard of reliability.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986). Section 2254(d) provides the presumption does not apply in eight circumstances. At least four apply here as Petitioner contends, 28 U.S.C. § 2254(d)(2), (3), (6), (8). Generally, No “full and fair” evidentiary hearing has occurred if “the material facts were not adequately developed at the [S]tate court hearing.” ... Material facts are those facts crucial to a fair, rounded consideration of a petitioner’s claim____ Material facts have not been “adequately developed” where the petitioner alleges undeveloped evidence sufficient to call into question the “reliability” of the [S]tate court’s determination of [Petitioner's federal claims. Streetman v. Lynaugh, 812 F.2d 950, 958 (5th Cir.1987) (quoting Townsend) (citations omitted). The State court failed to adequately develop the material facts necessary at either the guilt or sentencing phase of Petitioner’s trial. As a result of the deficiencies, the Magistrate Judge correctly decided a hearing was required to permit the full development of material facts necessary for Petitioner’s federal claims. Both sides were given a full and fair opportunity to develop the facts. As a result of the hearing, an expansive record was developed which provided a firm basis for the Magistrate Judge’s decision. 2. Counsel’s Strategy Regarding Alibi Respondent objects to the Magistrate Judge concluding a disinterested witness was available at the time of trial, Mario Carreon, who could have provided Petitioner an alibi for the day the crimes in question were committed. At trial, the only evidence placing Petitioner at the scene of the crime was Pedro Luevanos, the alleged accomplice who testified pursuant to a plea agreement. Petitioner was charged with the assault on and robbery of Frank Kolenberg in California in September 1982. The State did not introduce evidence of the Kolenberg offense. However, Petitioner’s counsel feared any alibi testimony would open the door to the Kolenberg offenses, an extraneous offense for which Petitioner had not been convicted. Respondent contends Petitioner’s counsel acted reasonably by not taking the risk of opening the door to presentation of the extraneous Kolenberg incident. However, the Magistrate Judge found Petitioner’s counsel never researched whether the Kolenberg crime was sufficiently similar to the murder in question to be introduced. As the Magistrate Judge reasons, counsel’s research of Texas law would have proved incorrect his assumption regarding the admissibility of the Kolenberg offenses. Therefore, the Magistrate Judge concluded trial counsel’s failure to use Mr. Carreon as an alibi witness was not a reasonable strategic decision, and the failure constituted deficient performance. Texas law exists on which Defense counsel could have relied for the proposition the Kolenberg crime was not admissible at the guilt phase. In order for the extraneous offense to be admissible for the purpose of proving identity, the extraneous offense must be so similar to the one at issue so as to be the “signature” of the Petitioner’s modus operandi. As the Magistrate Judge delineated, the differences between the Kolenberg crimes and the crimes at bar far outweigh the similarities, thus precluding the Kolenberg crimes from being introduced to prove identity. As Petitioner contends, identity was put into issue by the trial counsel. The use of Mr. Carreon as an alibi witness would not have increased the risk. Respondent further claims the danger of opening the door to the extraneous Kolenberg offenses existed as trial counsel could not account for Petitioner’s whereabouts on December 6, 1983, the possible date of the crimes of which Petitioner was convicted. Counsel’s investigation tended to place Petitioner in the company of Mr. Luevanos, and counsel was unable to sufficiently confirm the possibility of an unnamed second person having committed the crime. However, Petitioner correctly points to Respondent’s attempt to make the introduction of the alibi contingent on the defense being able to provide unnecessary information. By the time Mr. Carreon could have been called as a witness, the State held the position the crime occurred on December 7, 1983. Furthermore, Petitioner’s sole defense at trial was he did not commit the crime. Mr. Carreon’s alibi testimony was powerful evidence in support of Petitioner’s defense. Under these circumstances, counsel’s failure to call Mr. Carreon fell outside the range of professionally competent assistance as concluded by the Magistrate Judge. Counsel's failure to put on an alibi defense prejudiced Petitioner and undermined the confidence of the outcome. 3. Rebuttal of Jennifer Flores Respondent objects to the Magistrate Judge’s finding that Petitioner’s trial counsel acted unreasonably in failing to present testimony from either defense investigator Cecil Ming or Petitioner’s daughters to rebut Jennifer Flores' testimony. Jennifer and her mother, Lucy Flores, were surprise witnesses announced by the State whose testimony the Magistrate Judge called “devastating.” Jennifer testified at trial she saw Petitioner in the bathroom of his trailer one afternoon with blood on his hands and shirt. The afternoon in question was prior to Jennifer staying at Petitioner’s house with his daughters. Lucy testified about the specific date Jennifer saw Petitioner and the questionability of Jennifer’s memory. Trial counsel never interviewed Petitioner’s daughters who could have provided valuable testimony to refute the testimony of Jennifer. Mr. Ming could have provided valuable evidence casting further doubt on the testimony of Jennifer and Lucy Flores as the Magistrate Judge concluded. Ignoring the witnesses to refute the devastating trial testimony provided no strategic advantages. The Magistrate Judge correctly concluded counsel’s failure to talk to Petitioner’s daughters and to use either the children or Mr. Ming to respond to this testimony constituted ineffective assistance of counsel. Further, counsel’s failure to refute the devastating testimony prejudiced Petitioner and undermined the confidence of the outcome. 4. Counsel’s Actions Regarding Punishment The Magistrate Judge concluded Petitioner’s counsel should have investigated and presented evidence from family members regarding Petitioner’s good character traits. Respondent objects and claims the additional testimony would have been duplicative. However, Petitioner’s counsel failed to interview the family members in order to make a proper determination. Additionally, counsel’s failure to prepare Janet Macias, Petitioner’s wife, for testimony at the sentencing stage of the trial added to the Magistrate Judge’s finding of ineffective assistance of counsel. The Magistrate Judge further determined Petitioner’s counsel should have investigated and presented evidence from expert testimony regarding Petitioner’s deprived social background, and Petitioner’s counsel failed to utilize records from the California Rehabilitation Center (CRC) to demonstrate Petitioner’s good behavior and attempts to rehabilitate while in custody. Respondent objects and argues the failure by trial counsel to investigate or present such evidence was a reasonable tactical decision based on counsel’s belief that any evidence about Petitioner’s drug use would not be considered mitigating evidence. Petitioner correctly reasons, however, Respondent’s argument rests on the assumption that any possible negative reaction of a jury to evidence of drug abuse or a violent childhood excuses counsels failure to investigate. The CRC’s records were readily available to trial counsel, but the evidence was never admitted to the jury because counsel never discovered it. At the habeas hearing, Dr. Cecil Whiting, an education psychologist, presented a striking picture of a child who grew up facing serious disadvantages and adversities, yet became a loving son, husband, and father. The picture the jury received at the sentencing hearing was very negative and truncated as compared to the habeas hearing, which established a more complete picture of Petitioner. The State’s case would naturally seem extremely strong at the punishment phase without Petitioner’s counsel introducing any available mitigating evidence. Contrary to Respondent’s contentions, Dr. Whiting’s testimony was not of minimal value because of the lack of any causal link between the crime and Petitioner’s background. The Magistrate Judge correctly concluded Petitioner received ineffective assistance of counsel at the sentencing phase of his trial. Furthermore, Petitioner was prejudiced by his trial counsel’s representation at the sentencing phase. B. PETITIONER’S OBJECTIONS Petitioner make three brief objections, which this Court will briefly address. First, the Magistrate Judge correctly concluded the trial counsel’s failure to request a continuance when the State announced it would call Jennifer Flores as a witness was not ineffective assistance. Although counsel learned at a late date Jennifer would testify, her being called was not an unexpected occurrence and the substance of her testimony was not surprising. Counsel’s failure to request a continuance did not constitute deficient performance. Second, the Magistrate Judge correctly concluded counsel’s failure to put Dr. Walker, a child psychologist, on the stand to testify about the credibility of children’s eyewitness testimony did not constitute ineffective assistance. As the Magistrate Judge correctly explains, Dr. Walker’s testimony would have been used to impeach the testimony of a witness because such testimony was inadmissible in this case. Third, Petitioner objects to the Magistrate Judge’s finding it highly unlikely any El Paso court in 1984 would have authorized the payment of $11,599 the federal government paid Dr. Whiting for his testimony at the habeas hearing. Petitioner concedes Texas law provided for payment of only $500 for investigators and experts. The Magistrate Judge reached the reasonable and correct conclusion. IT IS ORDERED the Report and Recommendation of Magistrate Judge Janet Ruesch, filed April 26, 1991, in the above-captioned cause is hereby APPROVED AND ADOPTED. REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE RUESCH, United States Magistrate Judge. Petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. On June 24, 1984, in the 168th District Court of El Paso County, Texas, Petitioner was convicted of capital murder. R. XV 1138-1139; R. I 99. He was given a death sentence based on the jury’s answers to two special issues. R. XVI 226-228; R. I 114 (Judgmt. dated 7/5/84). On direct appeal, the Texas Court of Criminal Appeals affirmed after considering the two points of error raised by appointed appellate counsel. Macias v. State, 733 S.W.2d 192 (Tex.Crim.App.1987) (en banc)] Exh. P-106. On February 22, 1988, the United States Supreme Court denied Petitioner’s request for a writ of certiorari after having stayed Petitioner’s execution scheduled for February 12, 1988. Macias v. Texas, 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1021 (1988); State Appeal Rees., Order of Justice White dated 2/10/88; State Hab.Recs., Order of Judge Koehler dated 9/9/88. At the request of the American Bar Association’s Postconvietion Death Penalty Representation Project, Petitioner’s present attorney, Douglas G. Robinson, agreed to represent Petitioner on a pro bono basis on March 3, 1988. State Hab.Recs., Emergency Application for Stay of Execution reev’d in Texas Court of Criminal Appeals 5/5/88, p. 4. Mr. Robinson filed Petitioner’s first and only state application for habeas relief on September 6, 1988 along with a Motion for Stay of Execution. State Hab.Recs., Pet. for Writ. Approximately one month later, on October 6, 1988, the trial court denied Petitioner’s request for an evidentiary hearing and entered an order, prepared by an assistant district attorney, denying habeas relief. State Hab. Rees., pp. 38 (Let. from Asst. D.A. Dins-moor to Judge Koehler), 39-48 (proposed Trial Court Findings), 49-50 (Judge Koehler’s Orders of 10/6/88), 51-60 (Judge Koehler’s Trial Court Findings). The Texas Court of Criminal Appeals affirmed this decision on October 25, 1988. State Hab. Rees., Action Taken. Petitioner filed this federal petition for habeas relief on November 10, 1988 along with another application for a stay of execution. Pet., Dkt. No. 1; Emergency Application for Stay of Execution, Dkt. No. 6. Petitioner’s execution has been stayed since November 16, 1988 when District Judge Garza granted that relief and ordered the case referred to a Magistrate Judge for an evidentiary hearing and a report and recommendation. Order, Dkt. No. 9. After filing the records of the state court proceedings, Respondent requested that the Magistrate Judge deny Petitioner an evidentiary hearing because the factual findings of the state habeas court were entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Resp’s Mot. to Modify Court’s 11/16/88 Order, Dkt. No. 13. Petitioner responded that he was not requesting an evidentiary hearing regarding those claims involving only legal issues. Memo, of Law in Support of Pet’s Mot. for Evidentiary Hearing, Dkt. No. 31, p. 12. However, he argued that he should be afforded an evidentiary hearing concerning claims involving factual disputes because the state habeas court had not conducted “a full and fair evidentiary hearing” as required by Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); thus, that court’s fact findings were not entitled to a presumption of correctness under § 2254(d). Id., at 7-12, 20, 28, 35, 38, 44, 45, 51. This court agreed with Petitioner and ordered that an evidentiary hearing be held concerning the claims proposed by Petitioner. Orders on Pretrial Mots., Dkt. No. 37. The habeas hearing was held in September 1989. Scheduling Order, Dkt. No. 45; Tr. I 1. Petitioner asserts that numerous constitutional errors occurred in his capital murder trial. Pet., Dkt. No. 1; First Amended Pet., Dkt. No. 27; Pet’s Post-Hearing Memo., Dkt. No. 74. Only one will be addressed here: ineffective assistance of counsel at the guilt/innocence and sentencing phases of trial. On January 5, 1984, Petitioner was indicted for capital murder, specifically, for causing the death of Robert Haney during the course of a robbery on December 7, 1983. R. I 3-5. On January 10, 1984, Gary Weiser was appointed to represent Petitioner. Tr. IV 957-958; Exh. P-67. Mr. Weiser had been an assistant district attorney from 1972 to 1982 during which time he became first assistant and tried seven or eight capital murder cases. Tr. IV 953, 954. In 1982, he joined the Scott, Hulse law firm and in January 1984, the month in which he was appointed to represent Petitioner, he became a partner in that firm. Id., at 953, 956. Upon Mr. Weiser’s request for co-counsel, the court appointed, serially, two members of the Scott, Hulse law firm: first, Joseph Hood, whose work ended in March 1984, and second, John Calhoun, who had also been an assistant district attorney, leaving that office in late 1983. Tr. IV 960, 962-963; Exh. P-67; R. I 17-18, 19, 28-29; R. II 28. Mr. Calhoun began working on the case on May 4, 1984, one month before jury selection began. Exh. P-67. He helped select the jury, helped try the case, and appeared for the last time at Petitioner’s sentencing on July 5,1984.' Id. These three attorneys spent a total of 540.50 hours on this case and were paid a total of $6,400 in attorneys’ fees, resulting in an hourly rate of $11.84. Exh. P-67. The errors that occurred in this case are inherent in a system which paid attorneys such a meager amount. The statute in effect at that time allowed payment for only in-court time; appointed attorneys received no compensation for the crucial, and often case-determinative, time spent preparing a case for trial. Tex.Code Crim.Proc.Ann. art. 26.05 § 1(a) & (b) (Vernon 1989) (amended 1987; see Historical Note for 1981 version). For each day in court in a capital case, the statute required that an attorney be paid “a reasonable fee to be set by the court but in no event to be less than $250.” Id., at 1(b). In this case, for four in-court days, the attorneys were paid $250 per day and for the other eighteen in-court days, Mr. Weiser and Mr. Calhoun were paid $300 per day, which, at the high end, resulted in a per attorney fee of $150 a day. Exh. P-67. In 1984, investigators fared no better. For both investigative services and expert testimony, the statute provided for “a reasonable fee to be set by the court but in no event to exceed $500.” Tex.Code Crim.Proc.Ann. art. 26.05 § 1(d) (Vernon 1989) (amended 1987; see Historical Note for 1981 version). In this case, defense investigator Cecil Ming spent more than $500 worth of time before trial; and he spent more time than that stated in his report. Tr. IV 1036-1037; Exh. P-67 A; Exh. P-67B; Exh. P-85; Exh. P-139. Although the trial judge stated that, after the first $500 was expended, he would consider an additional sum for investigation (R. I 16), Mr. Weiser recalled that he requested more money but was refused it (Tr. IV 1037). It appears that Mr. Ming was paid only $500. Exh. P-67B. Although Mr. Weiser had co-counsel, he testified that he took primary responsibility for the defense and made all significant decisions. Tr. IV 963. Thus, the discussion herein will focus on what Mr. Weiser did or did not do. Despite this focus, the purpose of the inquiry “is not to grade [Mr. Weiser’s] performance” but to determine whether Petitioner was accorded due process. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984); Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir.1990). Nonetheless, it is clear that some of the comments herein will be construed as criticisms of Mr. Weiser’s performance. Though that construction may seem unavoidable, this court knows that Mr. Weiser is, and in 1984 was, one of the best attorneys in El Paso. Thus, the trite-but-true lesson is that “it can happen to the best of us.” I. THE LEGAL STANDARD An ineffective assistance of counsel claim is governed by the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail, a petitioner must show both that his attorney’s performance was deficient and that the attorney’s error prejudiced petitioner’s case. Id. at 686, 104 S.Ct. at 2064. The major question under the performance prong is “whether counsel’s assistance was reasonable considering all the circumstances.” Id. at 688, 104 S.Ct. at 2065. The circumstances to be considered are those existing at the time of counsel’s performance without interference from “the distorting effects of hindsight.” Id. at 688, 690, 104 S.Ct. at 2065, 2066. And, the court is required to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. The question under the prejudice prong is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, at 694, 104 S.Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. A verdict that has weak support is more likely to be affected by attorney error than one with strong support. Id. at 695, 104 S.Ct. at 2069. Thus, the evidence introduced at Petitioner’s trial will be discussed below. When considering the prejudice prong, a court must assume that the decisionmaker is impartially applying the law, rather than consider any “idiosyncracies of the particular decisionmaker.” Id. at 695, 104 S.Ct. at 2068. But, where evidence of the decisionmaking process is part of the record, it can be considered. Id. In this case, the jury’s difficulty in reaching a verdict, which is part of the record, will be discussed. Finally, the relevant question is whether the adversary system worked in this case. Strickland, at 690, 695, 698, 104 S.Ct. at 2066, 2069, 2070. If, as here, it did not, confidence in the outcome is undermined. Id. at 695, 698, 104 S.Ct. at 2069, 2070. II. INEFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT/INNOCENCE PHASE A. Evidence of Petitioner’s Guilt Unlike the typical death penalty case, Petitioner’s guilt is in doubt. Russell v. Lynaugh, 892 F.2d 1205, 1206 (5th Cir. 1989). The trial evidence disclosed that Robert and Naomi Haney were murdered in their house in El Paso, Texas on December 7, 1983 sometime near noon. R. XII 114, 171-172, 198-199, 234-236, 237, 238; R. XIV 855, 857, 862-864, 872-873, 875-877. The Haneys were found the next day, on the evening of December 8, 1983. R. XII 234-235, 237, 238. Each was fully dressed, lying on the living room floor face down in a pool of blood, and each was tied similarly, with feet bound together and hands tied behind their backs. R. XII 237, 238; R. XIII 473, 482, 483, 484; R. XIV 794-796, 881-882. Robert Haney died from chop wounds to his head which had been inflicted by a sharp instrument such as an axe or large knife. R. XIII 480; R. XIV 875. Blood was splattered on the floor, walls, and ceiling of the living room. R. XIII 484; R. XIV 657-658, 794-796, 834, 884. On the floor to the left of Robert Haney’s head was potting soil from an overturned pot. R. XIII 483-484; R. XIV 917, 918. In the soil was a tire tread shoe print from a working or hiking boot, with the front of the shoe facing Mr. Haney’s head. R. XIII 484, 485, 489, 490, 491-492, 500, 501, 508. Police concluded that this is where the assailant stood while striking Mr. Haney with the murder weapon. R. XIV 886-887, 918-919, 925-926. Items taken from the Haneys’ house included three or four pistols, coins, a man’s watch, a wallet, a green athletic bag, and a machete. R. XII 126, 129-130, 130-131, 134, 142-146, 148, 195-196; R. XIII 458-459, 460, 461. Maria Monteros, a neighbor of the Haneys, testified that on December 7, 1983, beginning at approximately 10:00 a.m., a car with two men in it made the same repeated trip around her neighborhood, which included driving down an alley behind the Haneys’ house. R. XIII 416-423. During one trip through the alley at about 11:15 a.m., the driver stopped the car, got out, and asked Maria’s husband, Gilbert, if he could urinate in the alley. Id., at 398, 400. When Mr. Monteros said “no,” the driver got in the car and drove off. Id., at 398, 400, 410. Both Maria and Gilbert Monteros identified Pedro Luevanos as the driver; but neither identified Petitioner as the passenger, although Petitioner was in a line-up viewed by both Mr. and Mrs. Monteros. Id., at 401-402, 408, 411-412, 424, 425, 433-434; R. XIV 930-931. Mr. Monteros saw the passenger’s face at an angle but noted that the passenger was not wearing glasses. R. XIII 412. Mrs. Monteros agreed that the passenger was not wearing glasses. Id., at 446. The only evidence connecting Petitioner to the crime was (1) the testimony of Pedro Luevanos, who told different stories but ultimately confessed to being a participant, (2) the testimony of Edward Parker, a jail inmate who claimed to have overheard Petitioner confess to the crime, (3) the testimony of nine-year-old Jennifer Flores, who told different stories, with the best for the prosecution being the one she told at trial, and (4) three items of circumstantial evidence. Pedro Luevanos was arrested at the Baltimore Spice Company, where he worked, on the night of December 9, 1983, after Maria Monteros gave police the license number of the car that had been driving around her neighborhood on December 7, 1983. R. XIII 360-361; R. XIV 890-891, 894-899, 900-901. That night, Luevanos gave his first version of the events of December 7, 1983. State Exh. 13; R. XII 150; R. XIV 901-902. On the morning of December 7, Luevanos borrowed his father’s car to cash his paycheck at a convenience store in Canutillo, Texas. State Exh. 13. He met Petitioner at the store and the two began driving around town in Luevanos’ father’s car drinking beer. Id. In one area of town, Petitioner got out of the car, told Luevanos to wait, and walked into an alley. Id. Luevanos drove around the block and on his third trip, he saw Petitioner standing at the corner of the alley and the street. Id. Petitioner was carrying an athletic bag which he threw into the trunk of the car. Id. Petitioner had blood on his shirt, face, and glasses. Id. Petitioner admitted that he had killed some people because they recognized him. Id. On the basis of this statement, Luevanos was given transactional immunity in exchange for his testimony before the grand jury and at Petitioner’s trial. State Exh. 14; R. XII 151. On January 5, 1984, Luevanos testified similarly before the grand jury. State Exh. 15; R. XII152. He reiterated that he drove around the block after Petitioner got out of the car (State Exh. 15, pp. 39-46, 61), that Petitioner returned to the car with an athletic bag he threw into the trunk and with spots of blood all over him {Id., at 47-49, 50-52), and that Petitioner said he killed people because they recognized him {Id., at 53). According to Luevanos’ later statement and testimony, this version is not true. The second version was disclosed after Jose Holguin, a jail inmate, told police about statements Luevanos had made to Holguin while they were in jail together. Exh. P-50 & Exh. P-51; R. XIV 908, 910. According to Holguin, Luevanos said that he and Petitioner planned the crime and selected the Haneys because Petitioner had worked for them and knew they had money. Exh. P-50 & Exh. P-51. Luevanos entered the house first and beat up Robert Haney, who answered the door. Id. While Luevanos was beating up Mr. Haney, Petitioner entered the house wearing a ski mask. Id. After Luevanos and Petitioner tied up the Haneys, Luevanos went through the house looking for things to take. Id. Luevanos took a wallet, coins, guns, jewelry, and pulled a diamond ring from Mrs. Haney’s hand. Id. Petitioner found $8,000 in cash. Id. When they were ready to leave, Petitioner said that they would have to kill the Haneys because they recognized him. Id. Petitioner got a machete from another room and cut Robert Haney’s throat with it. Id. Petitioner told Luevanos that he, Luevanos, would have to kill Naomi Haney, but Luevanos did not admit that he had killed her. Id. After both victims were killed, Luevanos and Petitioner left the house and put the stolen items in the trunk of Luevanos’ car. Id. Luevanos kept the $8,000 in his house and buried the other items. Id. With this information, the District Attorney revoked the grant of transactional immunity and obtained Luevanos’ agreement to, again, testify truthfully, and plead guilty to a burglary-of-a-habitation charge on which the District Attorney would recommend a sentence of 25 years in prison. State Exh. 16; R. XII 156-157. On January 20, 1984, Luevanos gave his second written statement to the police and, although this statement differed from what he allegedly told inmate Holguin, Luevanos now admitted being in the Haneys’ house. State Exh. 2; R. XII 121-122, 124. In his January 20, 1984 statement, Luevanos said that he knocked on the front door and pushed Robert Haney into the house when he answered the door. State Exh. 2. In this version, Petitioner entered the house with a paper grocery bag over his head into which he had cut two eye-holes. Id. Luevanos tied up the man and Petitioner tied up the woman. Id. Petitioner told Luevanos to watch the Haneys while Petitioner went into the other rooms. Id. He came back with four pistols, coins, and a sporting bag. Id. Petitioner took a man’s brown wallet from a table in the dining room and gave it to Luevanos. Id. Luevanos took a watch with turquoise stones. Id. In this version, there is no mention of jewelry; Luevanos denies knowledge of Mrs. Haney’s diamond ring and denies the existence of $8,000 cash. Id. In this version, Luevanos did not stay in the house until Robert and Naomi Haney were killed. Id. Luevanos said that Petitioner went into another room and came out with a long knife. Id. Petitioner said he would have to kill them because they recognized him. Id. While Luevanos was in the dining room, Petitioner swung the knife down on Robert Haney and Luevanos heard a thump. Id. After Luevanos heard a second thump and heard Mrs. Haney say “Oooh,” Luevanos left the house through a back door and walked fast to his car. Id. After waiting for one minute, Petitioner came to the car carrying the sporting bag. Id. When they got back to the convenience store in Canutillo, Texas, Luevanos took three of the guns and Petitioner put one gun that was in a case down the front of his pants. Id. Luevanos’ trial testimony was similar to his written statement of January 20, 1984, with a few changes. In his statement, he said that, after going into a big store, Petitioner returned with two bags, a large one with nothing in it and a small one containing a quart of Budweiser beer. State Exh. 2. At trial, Luevanos said Petitioner had only one medium-sized brown bag in which he carried the quart of beer. R. XII 107-108. In his statement, Luevanos said that on the day of the crime he was wearing work boots with flat soles and Petitioner was wearing work boots with tractor soles. State Exh. 2. At trial, Luevanos could not remember the kind of shoes he had worn on December 7, 1983, but he remembered that Petitioner wore work boots with tractor soles. R. XII131-132. At trial, Luevanos also testified that Petitioner stood on Robert Haney’s left side when he swung the knife down on him. Id., at 128. Luevanos’ written statement made no mention of the side of Mr. Haney on which Petitioner stood. State Exh. 2. Standing on Mr. Haney’s left and wearing tractor soles indicated that Petitioner was the donor of the footprint in the soil next to Mr. Haney. R. XIII 483-484, 485, 489, 490, 491-492, 500, 501, 508. In his written statement, Luevanos said that he and Petitioner took four guns from the Haneys’ household. State Exh. 2. At trial, Luevanos was not sure whether they took three or four guns. R. XII 134,193,194. In his statement, Luevanos said that when they got back to the convenience store, Petitioner put a gun down the front of his pants. State Exh. 2. At trial, he said he was not sure whether Petitioner took a gun or something else. R. XII 135-136, 194, 203-204. Finally, contrary to Mr. and Mrs. Monteros’ description of the passenger, Luevanos testified that Petitioner was wearing glasses at the time of the offense. R. XII 132, 175-176. At trial, Luevanos identified a machete as the murder weapon. R. XII 125-126; State Exh. 3 & State Exh. 4 (the machete and scabbard). His testimony about the machete was inconsistent. He said that Petitioner cleaned it but Luevanos did not know when or with what. R. XII 138, 209, 210. He said that the machete was clean when he saw it after the crime; he also said it was not clean when he saw it after the crime, although it had less blood on it than previously. Id., at 138, 208. He said that the machete had not been in the athletic bag, although it was possible that it had been in the athletic bag. Id., at 138-139, 175, 202. The second piece of evidence connecting Petitioner to the murder of Robert Haney was the testimony of jail inmate Edward Parker. Mr. Parker testified that he was in the bakery section of the jail with Petitioner in late January 1984 when he overheard a conversation between Petitioner and another inmate named Clark. R. XIV 739-740, 742, 749. The first thing Parker heard Petitioner say was that he had tied up an old man and assassinated him. Id., at 741, 761-762. Petitioner also said that he had worked for this man and had been to his house and that Petitioner had worn a blue shirt with blood stains on it. Id., at 741. The third piece of evidence connecting Petitioner to the murder of Robert Haney was the testimony of nine-year-old Jennifer Flores and her mother. Jennifer testified that one night a couple of weeks before Christmas, she spent the night at Petitioner’s trailer with his daughters. R. XIII 324, 352; see also, R. XIII 336, 346-347, 350, 357. When Petitioner got home after 3:00 p.m., Jennifer saw spots of blood on his shirt. Id., at 325, 326, 341, 345-346. Petitioner was carrying a gun that looked like a BB gun but was not a BB gun. Id., at 328. Jennifer saw Petitioner walk off into the desert carrying the shirt over his shoulder and the gun. Id., at 331, 341-342, 346. Jennifer’s mother, Lucy Flores, testified that the night Jennifer stayed at Petitioner’s trailer was Wednesday, December 7, 1983, although she had previously said that the night in question was Tuesday, December 6, 1983. R. XIII 379-383. The circumstantial evidence which implicated Petitioner, and which was argued by the prosecution as implicating Petitioner, consisted of evidence of the footprint next to Robert Haney’s head, Petitioner’s trip to California shortly after Robert Haney’s murder, and Petitioner’s work history with the Haneys. R. XV 1024,1042,1049, 1105-1106 (the footprint); R. XV 1024, 1035, 1036, 1051 (trip to California); R. XV 1029, 1030, 1032, 1044, 1104 (work history). As stated above, the police found a tire tread shoe print in the dirt next to Robert Haney’s head. R. XIII 483-484, 485, 489, 490, 491-492, 500, 501, 508. Luevanos hooked Petitioner to this shoe print by testifying that on the day of the offense Petitioner was wearing work boots with tractor soles. R. XII 131-132. A police officer testified that two officers with similar soles on their shoes entered the Haney house on the night of December 8, 1983, when the bodies were found, but neither of these officers went near the bodies. R. XIV 765-767, 802-803. Thus, the prosecution argued that Petitioner was the donor of the tire tread shoe print. R. XV 1024, 1042, 1049, 1105-1106. There was testimony that, by December 8, 1983, Petitioner had left for California. R. XIII 361, 391, 394, 395. Petitioner was arrested in California on Monday, December 19, 1983 after two El Paso Police Officers followed Petitioner’s daughter, on December 16, 1983, on a flight from El Paso to Los Angeles. R. XIV 904-906. On December 20, 1983, Petitioner waived extradition and was brought back to El Paso. Id., at 907, 908. The prosecution argued that these facts constitute flight from the scene of the crime and show that Petitioner is guilty. R. XV 1024, 1035, 1036, 1051. Finally, there was testimony that Petitioner had worked for the Haneys as a yard man or handy man. R. XIII 462-464; R. XIV 893; Def. Exh. 13. Ernie Delgado, a friend of the Haneys, testified that he was introduced to Petitioner by the Haneys inside the Haneys’ house. R. XIII 462-463. One police officer testified that the perpetrator of the crime had been in the Haneys’ house before December 7, 1983. R. XIV 832-833. Another testified that the Haneys’ handy man became a suspect after he was mentioned by several neighbors during police interviews on December 8 and 9, 1983. Id., at 893. However, there was no physical evidence linking Petitioner to the crime. No shoes with tractor soles were recovered. R. XIII 490-491, 505; R. XIV 664-665. • No bloody clothes or stolen items were taken from Petitioner. R. XIV 936; see also, R. XIII 501-502; R. XIV 900-901. Luevanos testified that Petitioner wore glasses during the crime and right after the crime Petitioner’s hands and face were sprinkled with blood. R. XII 132, 175-176. Petitioner’s glasses were taken from him when he was arrested in California on December 19, 1983. R. XIV 907. No blood stains were found on the glasses. Id., at 664-665, 666-667, 674-675. Fifty to sixty latent fingerprints were taken from the scene and from the items dug up in Luevanos’ backyard. R. XIII 474, 493, 534, 589, 601; R. XIV 623, 631-633. None belonged to Petitioner. R. XIII 601-602, 606-607; R. XIV 629, 633-634, 643, 651, 654. Review of all the evidence discloses that Petitioner’s guilt is not strongly supported by the evidence. The jury had difficulty reaching a verdict. The jury began its deliberations on Friday, June 22, 1984 at 5:04 p.m. R. XV 1120. Three hours later the jury requested transcripts of the testimony of a number of witnesses including Pedro Luevanos, Jennifer Flores and her mother, and Edward Parker. R. XV 1120, 1121; R. I 100, 101, 102. The judge told the jury that they had to be more specific concerning the testimony in dispute. R. XV 1121; R. I 100, 102. One hour later the jury attempted to be more specific but was told that its requests were not specific enough. R. XV 1122-1123; R. I 104-105. The jury was retired for the night at 9:10 p.m. R. XV 1126. The next day, Saturday, June 23, in the morning, the jury asked about the legal significance of language in Luevanos’ grand jury testimony regarding Petitioner’s “past record for violence.” R. XV 1126; R. I 108-109. The judge told the jury that it should not consider this language for any purpose. R. XV 1131-1132; R. 1106. The jury then went to lunch from 12:30 p.m. to 1:45 p.m. R. XV 1132-1133. At 5:17 p.m. on Saturday, June 23, the jury notified the court that it could not reach a unanimous verdict. R. XV 1133; R. I 104. When asked about the jury’s numerical split, the foreman replied “five and seven.” R. XV 1135. Thus, at this point the jury was almost equally divided on the question of Petitioner’s guilt. The jury was told to retire for the night and come back the next day, Sunday, June 24, for more deliberations. Id. At 3:15 p.m. on June 24, the jury notified the court that it had reached a unanimous verdict. R. XV 1137-1138; R. I 105. B. Failure to Use Available Alibi Testimony 1. The Alibi The alibi available at the time of Petitioner's trial was the testimony of Mario Carreon, the manager of the Quik ’N Easy convenience store in Canutillo, Texas where Petitioner’s wife worked. Tr. IV 1086-1087; Exh. P-85, pp. 1-2. On December 12, 1983, he told police that he last saw Petitioner the day of the Haney murders, when he loaned Petitioner his pickup truck in the morning and took Petitioner to the bus station in the late afternoon. Exh. P-55. One month later, Mr. Carreon elaborated on the events of that day in a statement to defense investigator Cecil Ming. Exh. P-56. According to Carreon, Petitioner arrived at the Quik ’N Easy at about 8:30 a.m. on December 7, 1983 wearing blue jeans, a blue plaid flannel shirt, no jacket, and “G.I. type” shoes. Exh. P-56. Petitioner did some cleaning in the store until approximately 9:15 a.m. when he asked to borrow Carreon’s pickup truck to do some work for a neighbor named Raejeanne. Id. Petitioner left in the pickup at about 9:30 a.m. and returned at 11:30 or 11:45 a.m., wearing the same clothes he had worn earlier. Id. Upon Petitioner’s return, his wife, Janet Macias, was at the store. Several days earlier, Janet had told Carreon that Petitioner was leaving for California because she and Petitioner were having problems. Id. From the time Petitioner returned to the store until after 3:00 p.m., Carreon saw Petitioner every 15 minutes while Petitioner and Janet were talking, sometimes inside the store and other times outside the store. Id. When Janet asked Carreon to talk Petitioner out of leaving, Carreon said that he would try to do so after he finished work at 3:00 p.m. Id. At 3:30 or 3:45 p.m., Petitioner and Carreon were outside talking, but Petitioner would not agree to stay. Id. At that point, Janet became resigned to his leaving and asked Carreon if she could use his pickup truck to drive home so that she could pack a suitcase for Petitioner. Id. And, she asked Carreon to drive Petitioner to the bus station in El Paso. Id. Janet left in the pickup. Id. When she returned, she had a suitcase for Petitioner. Id. Carreon gave Janet a $100 advance on her salary which she had asked for earlier in the day, but Carreon does not know how much of this money Janet gave Petitioner. Id. At about 4:30 p.m., Carreon and Petitioner, who was still wearing the same clothes he had worn all day, left the store and drove to the Trailways bus station in El Paso. Id. Mr. Weiser offered a number of reasons for his failure to use this alibi testimony. First, he believed that use of alibi testimony would open the door to an extraneous offense for which Petitioner had not been convicted: an assault on, and robbery of, Mr. Kolenberg in California in September 1982. Tr. IV 1029; Sealed Tr. VII 23-24. Mr. Weiser knew that evidence of this crime would be admitted at the punishment phase and he wanted to keep it out of the guilt/innocence phase. Tr. IV 998-1000, 1029; Sealed Tr. VII 26, 28. In addition, Mr. Weiser found problems with Carreon’s story, his credibility, and his criminal record. Tr. IV 1028, 1029; Sealed Tr. VII 19-20, 24, 53, 54, 56, 57. Mr. Weiser could not use Janet Macias to confirm Carreon’s testimony because she told three different stories, none of which coincided with Carreon’s testimony. Sealed Tr. VII18, 20-21, 24, 51, 52-53. An examination of each reason discloses that none justified Mr. Weiser’s decision (Sealed Tr. VII 20) to forego an alibi defense. 2. Opening the Door to the Kolenberg Crime Mr. Weiser’s concern was that any alibi testimony would open the door to the Kolenberg crime. Tr. IV 1029; Sealed Tr. VII 23-24. And, he believed that the defense he used, “Petitioner did not do it,” did not open the door to the Kolenberg crime because this defense did not raise the issue of identity. Sealed Tr. VII 23-24. The question is whether Mr. Weiser’s assessment of the admissibility of the Kolenberg crime was correct. If correct, his decision to forego an alibi defense cannot constitute attorney error. Thomas v. Lynaugh, 812 F.2d 225, 229-230 (5th Cir.), cert. denied, 484 U.S. 842, 108 S.Ct. 132, 98 L.Ed.2d 89 (1987). If his assessment was not correct, his decision to forego an alibi defense, to the extent that the decision was based on the Kolenberg crime, would constitute attorney error. Crockett v. McCotter, 796 F.2d 787, 792-793 (5th Cir.), cert. denied, 479 U.S. 1021, 107 S.Ct. 678, 93 L.Ed.2d 728 (1986); see also, Murphy v. Puckett, 893 F.2d 94, 95-96 (5th Cir.1990); Profitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987); Ricalday v. Procunier, 736 F.2d 203, 207-208 (5th Cir.1984); Vela v. Estelle, 708 F.2d 954, 961-965 (5th Cir.1983), cert. denied sub nom., McKaskle v. Vela, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984). The law in Texas at the time of Petitioner’s trial allowed the State to use an extraneous offense for a number of purposes including proof of identity, motive, or intent, and refutation of a defensive theory. Bachhofer v. State, 633 S.W.2d 869, 871 (Tex.Crim.App. [Panel Op.] 1982); Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Crim.App.1972). Generally, in order to admit evidence of an extraneous offense, two criteria had to be met: (1) the extraneous offense had to be relevant to a “contested, material issue” and (2) the relevancy of the extraneous offense had to outweigh its prejudicial effect. Collazo v. State, 623 S.W.2d 647, 648 (Tex.Crim.App. [Panel Op.] 1981); see also, Bachhofer v. State, 633 S.W.2d 869, 871 (Tex.Crim.App. [Panel Op.] 1982); Murphy v. State, 587 S.W.2d 718, 722 (Tex.Crim.App. [Panel Op.] 1979); Ruiz v. State, 579 S.W.2d 206, 210 (Tex.Crim.App. [Panel Op.] 1979); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App. 1972). When identity was a “contested, material issue,” which it was at Petitioner’s trial, an extraneous offense committed by the defendant would be admissible only if the extraneous offense and the primary offense shared sufficient “distinguishing characteristics.” Benavidez v. State, 670 S.W.2d 297, 299 (Tex.App — Amarillo 1983); Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim.App.1981); Walker v. State, 588 S.W.2d 920, 923 (Tex.Crim.App. [Panel Op.] 1979); Collins v. State, 577 S.W.2d 236, 237 (Tex.Crim.App. [Panel Op.] 1979); Ransom v. State, 503 S.W.2d 810, 812 (Tex.Crim.App.1974); Ford v. State, 484 S.W.2d 727, 729 (Tex.Crim.App.1972). These characteristics had to mark the two offenses as the “handiwork” or “signature” of one person. Messenger v. State, 638 S.W.2d 883, 886 (Tex.Crim.App. [Panel Op.] 1982); see also, Espinoza v. State, 662 S.W.2d 745, 747 (Tex.App. — Houston [14th Dist.] 1983); Ford, 484 S.W.2d at 730. If the two offenses shared such characteristics, an inference could be drawn that, since defendant committed the extraneous offense, he also committed the similarly-executed primary offense. Benavidez v. State, 670 S.W.2d 297, 299 (Tex.App.— Amarillo 1983); Walker v. State, 588 S.W.2d 920, 924 (Tex.Crim.App. [Panel Op.] 1979); Collins v. State, 577 S.W.2d 236, 237 (Tex.Crim.App. [Panel Op.] 1979); Ransom v. State, 503 S.W.2d 810, 812 (Tex. Crim.App.1974); Ford v. State, 484 S.W.2d 727, 729 (Tex.Crim.App.1972). When this inference could be drawn, the relevancy of the extraneous offense would outweigh its prejudicial effect. Collins v. State, 577 S.W.2d 236, 237 (Tex.Crim.App. [Panel Op.] 1979); cf. Messenger v. State, 638 S.W.2d 883, 886 (Tex.Crim.App. [Panel Op.] 1982) (if the similarities are not sufficient, the relevancy of the extraneous offense cannot outweigh its prejudicial effect); Ford v. State, 484 S.W.2d 727, 729 (Tex.Crim.App. 1972) (if the similarities are not sufficient, the only purpose in admitting the extraneous offense is an impermissible one: to show that defendant committed some other crime). Petitioner concedes that identity was the defensive issue at his trial. Pet’s Post-Hearing Memo., Dkt. No. 74, pp. 131-132. However, he argues that the Kolenberg crime was not admissible because it and the Haney murder were not sufficiently similar to mark both as the “handiwork” or “signature” of one person. Id., at 132-133. Thus, the Kolenberg crime will be examined to determine whether it shared sufficient similarities with Robert Haney's murder to be admissible under existing Texas precedent. Evidence of the Kolenberg crime was admitted at the punishment phase of Petitioner’s trial through the testimony of three witnesses: the victim, Frank Kolenberg, one of his neighbors, Rodney Adams, and one of the investigating police officers, Detective Albert Hearn. R. XVI 60-80 (Adams), 80-103 (Detective Hearn), 103-127 (Kolenberg). This testimony disclosed that a few days before September 28, 1982, Mr. Kolenberg hired a neighbor to clean some of his land and the neighbor hired 20 people to do the work. R. XVI 104. Petitioner was one of these people. Id., at 61-62. On September 28,1982, shortly after 5:30 p.m., Rodney Adams was working at his brother Larry’s garage which was next to Mr. Kolenberg's house. R. XVI 62, 72. Petitioner, carrying a “ballpin” hammer, and his sister, Carmen, walked into the garage. Id,., at 62-63. The hammer had come from Larry’s garage. Id., at 63, 74. Petitioner asked Rodney what he thought about Mr. Kolenberg and Rodney replied, “He’s a pretty nice guy.” Id., at 63-64. Petitioner and Carmen left the garage and walked in the direction of Kolenberg’s house. Id., at 64, 65. Rodney noticed that his brother’s knife and brown knife case were missing from the garage but he did not see Petitioner or Carmen take these items. Id., at 64, 76-77. Mr. Kolenberg was home with his wife when, at approximately 6:00 p.m., he heard a male voice call his name from outside. R. XVI 105, 107. He went to the front door and stepped onto his porch where he saw a man and a woman. Id. The man asked Kolenberg if he had any firewood to which Kolenberg responded “no.” Id., at 108. Shortly thereafter, the man “put up his fists” and Kolenberg did the same. Id., at 108-109. Then, while facing the man, Kolenberg felt the first blow to the back of his head. Id., at 109. As he fell against his station wagon he saw the female, who was hitting him with a hammer, and the man who was kicking him. Id., at 109,116. At first, the man had no weapon {Id., at 122-123), but later Kolenberg thought the man was hitting him with a two foot long iron bar {Id., at 109, 116, 123). The parts of his body under attack were the back of his head and his arms. Id., at 111. The female was the only one who hit him on the head. Id., at 116-117. Kolenberg fell to the ground and at some point became unconscious. Id., at 111, 112, 116. Before losing consciousness, Kolenberg heard one of the assailants tell Kolenberg’s wife that she would be killed if she did not go inside the house. Id., at 112, 122. The assailants took $800 cash which had been in Kolenberg’s pants’ pocket. Id., at 110-111. Kolenberg suffered a skull fracture, two broken arms, and injuries to his hands which were not severe. Id., at 112, 119. At the time of this incident, Kolenberg was 56 or 57-years-old {Id., at 103, 104) and his wife was 57 or 58-years-old {Id., at 104, 105). Rodney Adams was still in his brother’s garage when he heard five or six thumps. R. XVI 65-66. He walked out of the garage and saw Petitioner and Carmen come from the area between Kolenberg’s house and station wagon and then walk down the street. Id., at 66, 68-69. Rodney went to Mr. Kolenberg’s house where he saw Kolenberg lying in the doorway with “blood everywhere.” Id., at 69. The only evidence obtained by the police at the scene, other than blood samples, was a knife found in the dirt next to Kolenberg’s front door. Id., at 89. The police recovered no fingerprints. Id., at 102. Rodney Adams told the police that Petitioner and Carmen were the assailants. Mr. Kolenberg never gave the police a description of his male assailant nor did he identify Petitioner until Petitioner’s trial when Kolenberg was asked, for the second time, to identify his assailant. Id., at 8, 11-13, 16-20, 25-27, 33-37, 123-125. The “distinguishing characteristics” which render an extraneous offense admissible can be either (1) “proximity in time and place” of the two offenses, (2) the perpetrator’s mode of dress during the two crimes, or (3) the method of committing the two crimes. Lewis v. State, 674 S.W.2d 423, 425 (Tex.App. — Dallas 1984, pet. refd); Ford v. State, 484 S.W.2d 727, 730 (Tex.Crim.App.1972); see also, Benavidez v. State, 670 S.W.2d 297, 300 (Tex.App.— Amarillo 1983); Walker v. State, 588 S.W.2d 920, 924 (Tex.Crim.App. [Panel Op.] 1979); Ransom v. State, 503 S.W.2d 810, 813 (Tex.Crim.App.1974). Here, there is no proximity in time or place. The Haney murder was committed in El Paso, in the middle of the day, on December 7, 1983. The Kolenberg crime was committed more than a year earlier, in California, in the early evening hours. See Espinoza v. State, 662 S.W.2d 745, 746, 747 (Tex.App.— Houston [14th Dist.] 1983) (there was no proximity in time or place because the primary offense was committed in Houston in September 1981 and the extraneous offense was committed in Ft. Worth in July 1981); cf. Messenger v. State, 638 S.W.2d 883, 885 (Tex.Crim.App. [Panel Op.] 1982) (proximity existed because the two extraneous offenses occurred within a four-block radius of the charged offense and all three offenses occurred within three weeks of each other); Walker v. State, 588 S.W.2d 920, 924 (Tex.Crim.App. [Panel Op.] 1979) (proximity existed because the six extraneous offenses and the charged offense all took place at night, in the same area, within one month). And, there is no indication of a similar distinguishing mode of dress during both offenses. Petitioner’s clothes during the Haney murder were described as jeans, work boots, and a “cholo”-type shirt with blue and gray checks, or a solid light blue shirt, or a denim jacket. R. XII 99, 131-132, 170; R. XIII 327, 337, 412, 420-421, 432. There was no description of the clothes worn by Petitioner during the Kolenberg crime. See R. XVI 21, 110. Although there are similarities in the method of committing the two crimes, there are also significant differences. The similarities are that the victims were older men who were at home with their wives when the offenses occurred. Two actors perpetrated each offense and both of Petitioner’s co-defendants are younger than he. Petitioner had worked for both Mr. Haney and Mr. Kolenberg but the two relationships were substantially different. For a number of months, Petitioner had contracted directly with Mr. Haney to do various jobs around the Haney house. Mr. Kolenberg did not hire Petitioner. A neighbor hired Petitioner once, along with a number of other people, to clean Mr. Kolenberg’s yard. Petitioner and his family socialized with the Haneys. There is no indication of any socializing between Mr. Kolenberg and Petitioner or his family. R. XVI 60-80 (Adams), 103-127 (Kolenberg). Both crime scenes were described as very bloody. However, a bloody crime scene would result any time a victim is struck repeatedly with a sharp or heavy instrument. See Collazo v. State, 623 S.W.2d 647, 649 (Tex.Crim.App. [Panel Op.] 1981); Ford v. State, 484 S.W.2d 727, 730 (Tex. Crim.App.1972). Thus, it is not a distinctive feature of the two offenses. Id. Finally, the prosecutors argued that Petitioner (1) was having problems with his wife before each crime, (2) left town after each crime resulting in his co-defendants’ “holding the bag,” and (3) refused to turn himself in after learning that he was wanted in each case. R. XVI 214. Leaving town and leaving his co-defendants “holding the bag” are “merely two ways of characterizing the same evidence.” Collazo v. State, 623 S.W.2d 647, 649 n. 4 (Tex. Crim.App. [Panel Op.] 1981). If Petitioner left town and his co-defendants did not, the co-defendants would be left “holding the bag.” More importantly, these three similarities were unknown to the prosecutors during the guilt/innocence stage and thus, could not have been argued as similarities during that stage. Although the prosecutors knew, before trial, that Petitioner was having domestic problems before the Haney murder (Exh. P-55; see also, Def. Exh. 5), they did not know he was having such problems before the Kolenberg crime. They first heard this fact at the punishment stage when Petitioner said it. R. XVI 148, 153, 172-173. Although the prosecutors knew, before trial, that Petitioner left town right after the Haney murder (Def. Exh. 5; Exh. P-55), they did not know he left town after the Kolenberg crime. They first heard information on this subject at the punishment stage when Petitioner’s wife testified that Petitioner came to Texas approximately two months after the Kolenberg crime. R. XVI 143-144. And, it was during the punishment phase that prosecutors first learned that Petitioner knew he was wanted in both cases but did not turn himself in. R. XVI 143-144, 144-145, 170, 173-175, 178-179. Thus, the prosecutors could not have classified these three features as similarities during the guilt/innocence phase of trial. The dissimilarities are significant. In El Paso, the perpetrators arrived at the scene of the crime in a car. In California, they arrived on foot. In El Paso, the perpetrators drove around the Haney house a number of times and Petitioner got out of the car apparently to scout the Haneys’ house. In California, the perpetrators did not walk around the Kolenberg house nor did they scout Mr. Kolenberg’s property. In El Paso, they knocked on the front door and pushed their way into the house when Mr. Haney answered the door. In California, while standing at Mr. Kolenberg’s front door, they called out his first name and stayed on his porch when he answered the door. In El Paso, Petitioner tried to conceal his identity by putting a paper bag over his head. In California, neither perpetrator made any attempt to conceal his or her identity. In El Paso, the crime was committed inside the house. In California, it was committed outside the house. In El Paso, the perpetrators first tied up the victim. In California, the perpetrators never tied up the victim. In El Paso, Mr. Haney’s wife was also tied up and murdered. In California, Mr. Kolenberg’s wife was verbally threatened but there is no indication that she was assaulted. In El Paso, after tying up the victim and his wife, the perpetrators looked for things to steal and took pistols, bullet shells, coins, a watch, and a wallet. R. XII 125, 134-135, 144-145, 146, 148, 193, 195-196, 201, 206-208. Then they killed the victim and his wife. Thus, in El Paso, the robbery preceded the murder. In California, the male assailant first fought, or threatened to fight, Mr. Kolenberg with his fists and then the two assailants hit the victim and knocked him unconscious. Thereafter, they took $800 cash from his pants’ pocket. Thus, in California, the assault preceded the robbery. In El Paso, Petitioner hit Mr. Haney in the head with a machete. In California, the co-defendant, rather than Petitioner, struck all the blows to Mr. Kolenberg’s head. In El Paso, the perpetrators used a weapon they found at the scene. In California, if Petitioner used an iron bar, there is no indication as to where he got it; if Carmen used a ballpeen hammer, she did not obtain it at Kolenberg’s home. She got it from Rodney’s brother’s garage at an undisclosed time. In El Paso, the perpetrators took the murder weapon from the scene and later Luevanos buried it in his back yard. In California, there was no testimony as to what was done with the ballpeen hammer or the iron bar. In summary, the dissimilarities pervade the commission of the two crimes.