Court Rejects Death Row Appeal After Quadruple Murder Near Sherm - KTEN.com - No One Gets You Closer

Court Rejects Death Row Appeal After Quadruple Murder Near Sherman

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SHERMAN, TX -- A death row inmate convicted of a quadruple murder in Grayson County has been denied a new sentencing hearing.

Lester Bower, 66, was convicted in 1984 of killing four men in an ultralight airplane hangar on a ranch on Baker Ridge Road near Sherman.

In his latest appeal filed in 2008, his lawyers claim new DNA evidence found at the scene of the crime proves he didn't do it. But that appeal has now been denied.

We haven't heard anything about a new execution date, but it seems like this will be Bower's last appeal.

It's a case that's gone so long, Bower has outlived several victims' family members and investigators.

Bower lost his latest appeal in connection with the murder of four men in 1983.

"You could see all the victims' cars there and my husband looked inside the window and saw my brother laying there at the door," says Ronald Mayes's sister Carolyn Bates.

After hearing that, Bates fainted. "I woke up in back of a police car," says Bates.

It was the night of the OU-Texas game. Mayes had no interest in ultralight aircraft, but at halftime, Bates says he decided to go next door to visit his friends.

"He told Paula his wife he said I'm going up to the hangar," says Bates. "He said they're supposed to be having a sale on it and he had fixed him a mixed drink and he took it up there with him, and because we saw the drink had been spilled right inside the door so he just got right inside the door and got it."

"The evidence against Mr. Bower was beyond a reasonable doubt," says former Sheriff's Office Chief Deputy Rusty Hunt.

It's been 30 years since a Sherman jury convicted bower, but for the officers who worked the case, it's been hard to put out of their minds -- especially knowing that Bower still sits on death row.

"That was my case in October of 1983 and I've been living with that case every day ever since," says former Sheriff Jack Driscoll.

Memories of the victims, Bob G. Tate, Jerry Mac Brown, and Phillip Good.

"He was a deputy sheriff. He worked for me less than two weeks when he was murdered," says Driscoll.

"He was a fellow officer that worked in the correctional part of our facility and he was well liked," says Hunt.

Driscoll says Good's mom died last year. "His mother is deceased and for that I'm sorry that she won't see justice done that the rest of the family will," says Driscoll.

"Justice has been denied for all these years for those people that were murdered by him, and he has played the system and the federal courts have allowed him to play the system, so that now finally hopefully justice will be served," says Hunt.

"In my opinion, this man devastated four families terribly beyond repair and he has a debt to pay a debt to society. I hope the justice system will finally realize that it's time," says Driscoll.

"It just killed the kids because he was such a good uncle to them," says Bates.

Bates says her parents hoped to see the end of the case. Her mom recently suffered a debilitating stroke.

"Before they died, they wanted to make sure that they would see that it would be ended, before they die, and I don't think it's gonna happen," says Bates. "My dad died in 2001."

Bates she has some views that are unpopular with others. She wonders how Bower, acting alone, could have killed four men.

The court also denied the claim that executing Bower after 24 years on death row would be cruel and unusual punishment.


#####

Texas Court of Criminal Appeals ruling:

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-21,005-02, WR-21,005-03, WR-21,005-04 & WR-21,005-05
EX PARTE LESTER LEROY BOWER, JR.
ON APPLICATION FOR WRIT OF HABEAS CORPUS
FROM CAUSE NOS. 33426, 33427, 33428, AND 33429
IN THE 15 JUDICIAL TH DISTRICT COURT
GRAYSON COUNTY
Per Curiam.
O R D E R
This is a subsequent application for writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071, § 5.
In April 1984, a jury found applicant guilty of four counts of capital murder. The jury
answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article
37.071, and the trial court, accordingly, set applicant’s punishment in each case at death.
This Court affirmed applicant’s convictions and sentences on direct appeal. Bower v. State,
769 S.W.2d 887 (Tex. Crim. App. 1989). Applicant filed his initial post-conviction
Bower - 2
application for writ of habeas corpus in the convicting court on October 2, 1989, pursuant
to Article 11.07 then in effect. The application challenged all four convictions and sentences.
This Court filed and set each case and ultimately denied applicant relief. Ex parte Bower,
823 S.W.2d 284 (Tex. Crim. App. 1991). Applicant then sought habeas relief in the federal
district court. The district court conducted an evidentiary hearing in June 2000 and
ultimately denied relief in a series of opinions issued in 2002-2004. The Fifth Circuit
affirmed the district court’s decision on September 18, 2007, and the United States Supreme
Court denied applicant’s petition for writ of certiorari on April 21, 2008.
The instant application attacking all four convictions and sentences was received in
this Court on June 25, 2008, along with a motion to stay his execution. However, 1 before this
Court ruled on the application, we received notice that the trial court had withdrawn the
execution date pending its determination on applicant’s motion for forensic testing. In an
attempt to avoid piecemeal litigation in the case, this Court issued an order on July 21, 2008,
stating that the Court would refrain from acting on the current writ application until the
results of the forensic testing litigation were complete. Ex parte Bower, No. WR-21,005-02
(Tex. Crim. App. July 21, 2008)(not designated for publication). The trial court subsequently
granted forensic testing, and the testing proceeded.
1 Because applicant had previously filed an application under Article 11.07, and because
this Court had denied relief on that application prior to September 1, 1995, when Article 11.071
became effective, applicant was not entitled to file an initial application under Article 11.071.
By the terms of the statute, this application is to be considered a subsequent application which
must meet the dictates of Article 11.071 § 5 before the merits may be addressed by any court.
Bower - 3
Applicant raised four issues in the instant application: (1) actual innocence based
upon newly discovered evidence; (2) Brady violations; (3) a claim that Article 37.071
operated unconstitutionally because his jury did not have a vehicle to properly consider
mitigating evidence; and (4) a claim that executing him after twenty-four years on death row
amounts to cruel and unusual punishment. We held that applicant met the dictates of Article
11.071 § 5 with relation to his first two allegations and remanded those for the trial court to
investigate the claims and develop the record. We made no decision regarding whether the
third allegation met the Section 5 bar, but because the law had evolved with regard to
mitigating evidence, we ordered the trial court to review the third allegation under the
prevailing law and make appropriate findings and conclusions. Ex parte Bower, No. WR-
21,005-02 (Tex. Crim. App. June 13, 2012)(not designated for publication). We did not
dispose of the fourth allegation at that time in order to address all allegations together in a
concise fashion.
Following the completion of the requested forensic testing, holding a live hearing, and
considering the arguments by applicant and the State, the trial court entered findings of fact
and conclusions of law recommending that applicant’s first and second claims be denied.
After reviewing recent case law, the trial court recommends that the relief sought in
applicant’s third claim be granted.
We have reviewed the record and the trial court’s findings of fact and conclusions of
law. Based upon our own review, we deny relief on applicant’s first two claims regarding
Bower - 4
actual innocence and Brady violations. We reject the trial court’s findings and conclusions
recommending relief on applicant’s third claim. We have previously held that, unlike the
double-edged evidence in Penry v. Lynaugh, the mitigating evidence presented 2 by applicant
during the punishment phase of his trial – evidence of his good and non-violent character,
his good deeds, and the absence of a prior criminal record – was not outside the scope of the
special issues given, nor did it have an aggravating effect when considered within the scope
of the special issues. Ex parte Bower, 823 S.W.2d at 286. The promulgation of more recent
case law by the United States Supreme Court has not changed the definition or nature of what
is considered mitigating evidence; thus, applicant was not constitutionally entitled to a
separate jury instruction at the punishment phase of trial. See, e.g., Penry, 492 U.S. 302
(1989), and Ex parte Jones, No. AP-75,896 (Tex. Crim. App. June 10, 2009)(not designated
for publication)(holding positive personal characteristics are the sorts of evidence that can
be considered within the scope of the former special issues – no Penry issue required).
Accordingly, the relief applicant seeks is denied.
Applicant’s fourth allegation is dismissed.
IT IS SO ORDERED THIS THE 11th DAY OF JUNE, 2014.
Do Not Publish
2 Penry v. Lynaugh, 492 U.S. 302 (1989).