Sentenced to 10 years and 33 years for two counts of Aggravated Rape out of Bexar County. Bartee was on parole when he committed the offense of capital murder described here.
Bartee was originally scheduled to be executed on February 28, 2012, even though DNA evidence collected at the crime scene had not been tested as ordered on at least two occasions by District Judge Mary Román. He received a reprieve on February 23, 2012 when Judge Román withdrew the execution warrant so that additional DNA testing could be conducted on strands of hair found in the hands of the victim, David Cook. She also ordered the forensic lab to provide a detailed and comprehensive report to the court with an analysis of the results. Yet, before the testing occurred, Judge Román inexplicably set another execution date, for May 2, 2012.
According to Bartee’s attorneys, DNA testing was just conducted and indicated that hairs that were tested found in Cook’s hands belonged to Cook. The jury never heard this evidence – and in fact wasn’t told about the hairs at all – which might have undermined the prosecution’s theory of the case that a violent struggle had ensued between Cook and his killer. Still, Judge Román entered the findings as unfavorable, opining that this evidence would not have made a difference in the outcome of the trial, had it been available to the jury. Under Article 64.05 of the Texas Code of Criminal Procedure, Bartee’s attorneys have the right to appeal the unfavorable findings. The fast-approaching execution date significantly impedes this right to due process, however.
In addition, there is still more evidence that has not been tested for DNA, including cigarette butts and at least three drinking glasses found at the crime scene. In 2010, the court ordered that all items that had not been tested be tested, but these items still have not been tested.
The United States Court of Appeals for the Fifth Circuit described the facts surrounding the murder of Mr. Cook as follows:
On 17 August 1996, the victim’s body was discovered by police and his family in his home in San Antonio, Texas. He had been shot twice in the head and stabbed in the shoulder. The bullet fragments at the scene were consistent with having been fired from a pistol owned by the victim. This pistol, and the victim’s red Harley Davidson motorcycle, were missing from his home.
At some point that summer, Bartee had asked an acquaintance to assist him in robbing and killing a neighbor, informing him this neighbor “had some gold [credit] cards and a motorcycle” that Bartee wanted. And, two days prior to the discovery of the victim’s body, Bartee had informed another acquaintance, Munoz, that he intended to “ace some white dude out”. Bartee unsuccessfully solicited both Munoz and several others to assist him in achieving this result. That same day, at nearly midnight, Bartee arrived at Munoz’[s] home, riding a Harley Davidson motorcycle and claiming to carry a gun. Several witnesses identified this motorcycle as being similar or identical to the victim’s.
On April 2, 1997, a Bexar County grand jury indicted Bartee for murdering David Cook.
On May 15, 1998, a Bexar County jury convicted Bartee of capital murder. After a separate punishment proceeding, Bartee was sentenced to death on May 19, 1998.
On May 3, 2000, Bartee’s conviction and sentence were affirmed by the Court of Criminal Appeals of Texas on direct appeal. Bartee did not appeal the state court’s decision to the Supreme Court of the United States. Instead, he filed an application for habeas corpus relief which was denied by the Court of Criminal Appeals on March 8, 2006.
On January 23, 2007, Bartee filed a motion for DNA testing in the 175th State District Court in Bexar County. On June 18, 2007, the district court granted Bartee’s motion and ordered that DNA tests be conducted on the crime scene evidence. After reviewing the test results, the court determined that the evidence did not exonerate Bartee because the DNA profiles developed from the blood and hair samples were consistent with the victim’s profile. Consequently, the convicting court rejected Bartee’s appeal and upheld the capital murder conviction. Bartee appealed the trial court’s finding to the Court of Criminal Appeals, but his appeal was dismissed as untimely on March 16, 2011.
On February 21, 2007, Bartee filed a petition for writ of habeas corpus in the U.S. District Court for the Western District of Texas, San Antonio Division. The federal court denied Bartee’s petition on August 6, 2008.
On July 31, 2009, the Fifth Circuit rejected Bartee’s appeal and affirmed the denial of habeas corpus relief by the district court.
Bartee filed a petition for writ of certiorari in the Supreme Court on November 23, 2009, but the Supreme Court denied certiorari review on March 22, 2010.
On April 20, 2011, Bartee file a second application for habeas corpus relief which was dismissed by the Court of Criminal Appeals on September 14, 2011.
Convicted in the August 1996 robbery murder of a friend, Bartee was given a stay before his scheduled execution in February so that additional DNA testing could be done. When the May 2 date was announced, Bartee attorney David Dow sent the court a letter saying the new date should not have been set because DNA testing has not been done. Dow said no notice of a hearing for a new execution date was sent to him or Bartee.
unpublished docket : opinion 2009
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