Tarus Vandell Sales v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division

This postconviction capital case involves the imposition of a death sentence on a non-shooter, Tarus Sales, who was not present at the murder scene when another person, Herschel Ostine, killed the victim by shooting him. Ostine, tried several years after Sales, received a life sentence, while Sales received a death sentence for the murder committed by Ostine. Ostine did not testify at Sales’ trial, and no witness testified at Sales’ trial directly about any communications between Sales and Ostine concerning carrying out the murder. The evidence was undisputed by the parties at Sales’ trial that Sales was not present at the murder scene and that Ostine murdered the victim. Sales was given a death sentence under the Texas law of parties for the murder committed by Ostine, after Sales’ indictment had charged that Sales himself killed the victim. The questions presented are:

1. Whether a death sentence may be constitutionally imposed on a non-shooter such as Sales who was not physically present at the murder scene, under the Eighth Amendment and this Court’s precedents in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), where the jury found in a general verdict under the Texas law of parties that Mr. Sales had entered into a conspiracy to commit the offense of retaliation against the victim with Mr. Ostine, and Sales should have anticipated that Ostine would murder the victim, and the state courts did not make Enmund-Tison findings that Sales was a major participant in the offense and was reckless indifferent that human life would be taken, and instead found that Sales was not a participant in the murder but anticipated that a life would be taken.

2. Whether this Court’s Sawyer v. Whitely1 actual innocence of the death penaltymiscarriage of justice exception excusing procedural default applies to eligibility criteria for imposing the death penalty under the Eighth Amendment, in addition to state statutory eligibility criteria, or is limited to state statutory eligibility criteria only, as found by the federal district court and Court of Appeals in denying Sales’ Eighth Amendment Enmund-Tison claim. 1 Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).