A 37-year-old woman was sentenced to death Tuesday for the July 1997 stabbing and bludgeoning death of her neighbor, becoming the second Dallas County woman this century to get the death penalty.

A Dallas County jury convicted Kimberly Lagayle McCarthy of Lancaster of capital murder last week in the death of Dorothy Booth, a 71-year-old retired college professor. McCarthy also is accused of killing two other elderly women.

McCarthy could have gotten life in prison, with a minimum 40 years to serve before becoming eligible for parole. Jurors deliberated Monday and Tuesday before reaching their decision. The only other Dallas County woman sentenced to death this century is Darlie Routier, convicted last year of killing her 5-year-old son.

Authorities believe McCarthy was allowed into Booth's home on the pretense of borrowing sugar and almost immediately began attacking her neighbor with a butcher knife. Police said McCarthy also robbed Booth and smashed her face with a candelabra.

Investigators found a knife with Booth's blood on it in McCarthy's home. A DNA expert testified that McCarthy's blood was found in the homes of both the suspect and victim.

Prosecutors said McCarthy's motive was to feed a crack cocaine habit.

During the sentencing phase, prosecutors also introduced evidence accusing McCarthy of killing two other women - Maggie Harding, 81, and Jettie Lucas, 85 - a decade earlier with similar brutality.

Investigators said Harding was attacked with a meat tenderizer and knives, and Lucas was beaten with a claw hammer and stabbed with knives.

Authorities said McCarthy knew the two women through family contacts.

McCarthy is the wife of Aaron Michaels, the founder of the New Black Panther Party, which he describes as a self-help group for African-Americans and poor people. They were married in 1993 and have a 5-year-old son. Michaels, whose legal name is McCarthy, filed for divorce in 1996 and the couple separated before Booth's slaying.

Michaels testified during the sentencing phase of her trial that his wife had problems with crack cocaine but has been clean since their son was born.

In the United States District Court
For the Northern District of Texas
Dallas Division

May 9, 2011

Kimberly Lagayle McCarthy, Petitioner,
v.
Rick Thaler, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent.

The opinion of the court was delivered by: Reed O'Connor United States District Judge

(death-penalty case)

MEMORANDUM OPINION AND ORDER

Petitioner Kimberly LaGayle McCarthy ("McCarthy"), convicted and sentenced to death for capital murder, petitions the court on nine grounds for a writ of habeas corpus. Concluding that two grounds are procedurally barred and that McCarthy is not entitled to relief on the remaining grounds under the standards prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the Court denies the petition and dismisses this action with prejudice.

I. BACKGROUND

On July 21, 1997 McCarthy entered the home of her 71-year-old neighbor Dorothy Booth under the pretense of borrowing some sugar and then "stabbed Mrs. Booth five times, hit her in the face with a candelabrum, cut off her left ring finger in order to take her diamond ring, and nearly severed her left little finger as well." McCarthy v. State, No. 74590, 2004 WL 3093230, at *2 (Tex. Crim. App. 2004). McCarthy then took Mrs. Booth's purse and its contents, along with her wedding ring and fled in her car. Later, McCarthy bought drugs with the stolen money, used the stolen credit cards, and pawned the stolen wedding ring. This was the last in a series of robbery-murders that McCarthy committed against her elderly female acquaintances.

On August 18, 1997, McCarthy was charged with capital murder for causing Booth's death in the course of committing and attempting to commit robbery. (Vol. 1, State Clerk's Record, "CR", at 2-3) Her first conviction and death-sentence in 1998 was reversed on direct appeal by the Texas Court of Criminal Appeals ("CCA"). See McCarthy v. State, 65 S.W.3d 47 (Tex. Crim. App. 2001) (hereinafter "McCarthy I"). She was subsequently tried and found guilty of capital murder in November of 2002, which was affirmed, see McCarthy v. State, 2004 WL 3093230 ("McCarthy II"), and her petition for a writ of certiorari was denied by the Supreme Court of the United States. McCarthy v. Texas, 545 U.S. 1117 (2005). McCarthy filed her second state habeas action on August 24, 2004, which was denied (without an evidentiary hearing in the trial court) by the CCA on September 12, 2007. Ex parte McCarthy, No. 50,360-02, 2007 WL 2660306 (Tex. Crim. App. 2007). On September 11, 2008, McCarthy filed in this court a petition for a writ of habeas corpus within the one-year limitations period.

II. CLAIMS

McCarthy seeks habeas-corpus relief on the following nine grounds:

1. Trial counsel was ineffective for waiving Texas evidence rule 614 and allowing the victim's daughter to remain in the courtroom after she testified.

2. Trial counsel was ineffective for failing to offer McCarthy's written statement in the punishment stage of her trial.

3. The Texas death-penalty procedures violate due process by failing to require the state to disprove mitigating circumstances beyond a reasonable doubt.

4. The Texas death-penalty procedures violate due process because the use of the term "probability" undermines the requirement that the state prove future dangerousness beyond a reasonable doubt.

5. Trial counsel was ineffective for failing to object to the trial court's charge on future dangerousness.

6. The trial court violated McCarthy's due process rights by failing to grant her motion to set aside the indictment because it did not allege lack of mitigation and future dangerousness as elements of the offense.

7. The Texas death-penalty procedures are unconstitutional because prosecutors are allowed "unfettered discretion" to seek the death penalty.

8. Appellate counsel was ineffective for failing to raise certain record issues.

9. Cumulative error.

Respondent answered on December 11, 2008, and asserts that McCarthy's first, fourth and seventh claims are procedurally barred from review in this court. (Ans. at 12-15, 19-21, 29-30). Respondent also makes a general assertion that McCarthy has not exhausted all of her claims, but did not identify any specific claim that was not exhausted. (Ans. at 3.)

III. PROCEDURAL BAR

Respondent asserts that McCarthy's first, fourth and seventh claims are procedurally barred from federal habeas review. A federal court may not consider the merit s of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338 (1992). The state court opinion must contain a "plain statement" that its decision rests on adequate and independent state grounds. Harris v. Reed, 489 U.S. 255, 261-62 (1989); Smith v. Collins, 977 F.2d 951, 955 (5th Cir. 1992). To be an adequate ground for denying relief, the state procedural rule must be strictly or regularly applied to similar claims. See Hathorn v. Lovorn, 457 U.S. 255, 262-63 (1982); Johnson v. Puckett, 176 F.3d 809, 824 (5th Cir. 1999). A petitioner can overcome a procedural default only by showing: (1) cause for the default and actual prejudice; or (2) that the application of the state procedural bar would result in a fundamental miscarriage of justice. See Smith v. Johnson, 216 F.3d 521, 524 (5th Cir. 2000).

In her first claim, McCarthy complains that trial counsel was ineffective for agreeing to waive enforcement of Texas Rule of Evidence 614 to exclude the deceased victim's daughter from the courtroom after she had concluded her testimony. (Pet. at 43-48.) Respondent claims that federal habeas review of this claim is barred because it was not raised in the direct appeal and the state habeas court "recommended that the claim be summarily rejected on procedural grounds because McCarthy could have and should have raised it on direct appeal." (Ans. at 29-30.) Respondent relies upon a state procedural rule (the "Gardner rule") requiring any claims that could be made in the direct appeal rather than by habeas review, must be made in the direct appeal. See Ex parte Gardner, 959 S.W.2d 189, 198-200 (Tex. Crim. App.1998). However, the state habeas court's findings that imposed the Gardner rule to this claim were expressly excepted from the findings adopted in the order denying habeas relief. See Ex parte McCarthy, 2007 WL 2660306, at *1. This is not the kind of plain statement of reliance upon a state procedural rule that would bar federal habeas review of the merits of this claim.

Further, a state procedural default for failure to raise an ineffective assistance of trial counsel claim in the direct appeal does not appear to have been regularly followed in the Texas courts and is therefore insufficient to bar federal habeas review. Such claims were not generally expected to be raised on direct appeal, where review was limited to the trial record, but instead were to be presented in habeas corpus proceedings, where the record could be properly developed. Discussing ineffective assistance of counsel claims, the CCA has reaffirmed "[a]s we have done many times before . . . that the record on direct appeal is usually inadequate to address ineffective assistance claims." Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App.), cert. denied, 552 U.S. 920 (2007). "Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Thompson v. State, 9 S.W.3d 808, 813-814 (Tex. Crim. App. 1999)). In fact, Respondent acknowledges that "ineffective-assistance-of-counsel claims are generally exempted from this procedural bar because they typically depend on evidence that is usually outside the record." (Ans. at 5 n.2) (citing Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997)). Accordingly, the state rule precluding consideration of record claims on direct appeal was not clearly relied upon as the basis for denial of this claim in the state courts, and was not firmly established and regularly followed at the time of McCarthy's direct appeal regarding ineffective-assistance-of-counsel claims. This claim will be addressed on the merits. See infra Section V.

In her fourth claim, McCarthy complains that the future dangerousness special issue submitted to her jury allowed this finding on an inadequate standard of proof due to the use of the term "probability." (Am. Pet. at 57-62.) Respondent asserts that this claim is barred by the state court's reliance on McCarthy's failure to raise this at trial in violation of the Texas contemporaneous objection rule. (Ans. at 12-13.) The state habeas court denied this claim as waived by the failure to raise it at trial. (SHF No. 55-56; SHR at 218.) This finding was adopted by the CCA in denying relief. See Ex parte McCarthy, 2007 WL 2660306, at *1. The Texas contemporaneous objection rule has been found to be an independent and adequate state ground to bar federal habeas review. See Scheanette v. Quarterman, 482 F.3d 815, 823 (5th Cir. 2007); Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999). Respondent argued that McCarthy was attempting to avoid the application of this procedural bar by showing that her appointed counsel was ineffective for failing to object at trial. (Ans. at 13-14). However, rather than raising this as an attempt to avoid the procedural bar to this claim, McCarthy asserts the ineffective assistance of counsel as a separate claim, which is denied on its merits below. Therefore, McCarthy's fourth claim is denied as barred.*fn1

In her seventh claim, McCarthy asserts that the Texas death-penalty scheme violates the Eighth and Fourteenth Amendments because it allows the prosecution unfettered discretion in its decision to seek the death penalty. (Am. Pet. at 69-71.) Respondent asserts that this claim is barred by the state court's reliance on McCarthy's failure to raise this record claim in her direct appeal in violation of the Gardner rule. (Ans. at 19-21.) The state habeas court denied this claim as forfeited under the Gardner rule. (SHF No. 81-82; SHR at 225.) This finding was adopted by the CCA in denying relief. See Ex parte McCarthy, 2007 WL 2660306, at *1. The Texas Gardner rule has been found to have been firmly established and regularly followed prior to McCarthy's trial in 2003. See Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007) (citing Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004)). Therefore, it is an independent and adequate state ground to bar federal habeas review. See Dorsey, 494 F.3d at 532. McCarthy's seventh claim is denied as barred.*fn2

IV. STANDARD OF REVIEW

McCarthy's habeas petition is governed by 28 U.S.C. § 2254, as amended by the AEDPA. Consideration of the merits of exhausted claims is controlled by § 2254(d) which provides,

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Id. The AEDPA limits rather than expands the availability of habeas relief. See Fry v. Pliler, 551 U.S. 112, 119 (2007); Williams v. Taylor, 529 U.S. 362, 412 (2000). "By its terms § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. --------, 131 S.Ct. 770, 784 (2011). "This is a 'difficult to meet,' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court rulings be given the benefit of the doubt.'" Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388, 1398 (2011) (internal citations omitted) (quoting Harrington v. Richter, 131 S.Ct. at 786, and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

Under the "contrary to" clause, a federal court may grant the writ of habeas corpus if the state court either arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. at 412-13; Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court either unreasonably applies the correct legal rule to the facts of a particular case or unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407. The standard for determining whether a state court's application was unreasonable is an objective one and applies to all federal habeas corpus petitions which, like the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. See Lindh v. Murphy, 521 U.S. 320, 327 (1997).

In the context of habeas corpus, "adjudicated on the merits" is a term of art referring to a state court's disposition of a case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Federal habeas review of claims adjudicated on the merits in state court is limited to the record that was before the state court. "[E]vidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court." Pinholster, __ U.S. __, 131 S.Ct. at 1400. Relief under 28 U.S.C. § 2254(d)(2) requires a showing that the state-court adjudication constituted "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

V. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

McCarthy's first, second, and fifth grounds for relief complain that she was provided ineffective assistance of counsel at her trial.

A. Applicable Law.

The Sixth Amendment of the United States Constitution guarantees a criminal defendant "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To obtain habeas relief on a claim of ineffective assistance of counsel, the petitioner must prove (1) that counsel's performance was deficient and (2) that it prejudiced the defendant. Id. To dispose of an ineffective assistance claim, a federal habeas court need not address both prongs of this standard. Strickland, 466 U.S. at 700; Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994). Failure to establish either requirement necessarily defeats the claim. Strickland, 466 U.S. at 697; Smith v. Puckett, 907 F.2d 581, 584 (5th Cir. 1990).

In measuring whether counsel's representation was deficient, a petitioner must show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997). "It is well settled that effective assistance is not equivalent to errorless counsel or counsel judged ineffectively by hindsight." Tijerina v. Estelle, 692 F.2d 3, 7 (5th Cir. 1982). A court reviewing an ineffectiveness claim must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional competence or that, under the circumstances, the challenged action might be considered sound trial strategy. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992).

To satisfy the second prong of the Strickland test, the petitioner must show that counsel's errors were so egregious as to deprive the defendant of a fair trial whose result is reliable. Strickland, 466 U.S. at 687. The test to establish whether there was prejudice is whether "there is a reasonable probability that, but for the counsel's unprofessional errors, the trial would have been different." Id. at 694. A reasonable probability is "probability sufficient to undermine confidence in the outcome." Id. It is not enough for a habeas petitioner to merely allege deficiencies on the part of counsel. The petitioner must affirmatively plead the resulting prejudice in the habeas petition. Hill v. Lockhart, 474 U.S. 52, 60 (1985); Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988).

To obtain federal habeas relief on an ineffective-assistance-of-counsel claim under the AEDPA standard of review, a petitioner is required to demonstrate that the state court's decision on the ineffective assistance claim was contrary to, or an unreasonable application of, the standards set forth under Strickland. See Schaetzle v. Cockrell, 343 F.3d 440, 443-44 (5th Cir. 2003). Given the presumption of competence required in Strickland, this makes federal habeas review of a state court's denial of such a claim "doubly deferential." Pinholster, __ U.S. __, 131 S.Ct. at 1403 (citing Knowles v. Mirzayance, 556 U.S. ------, 129 S.Ct. 1411, 1420 (2009), and Yarborough v. Gentry, 540 U.S. 1, 5--6 (2003) (per curiam)). A state prisoner seeking federal habeas relief on such grounds "must demonstrate that it was necessarily unreasonable for the [state court] to conclude: (1) that he had not overcome the strong presumption of competence; and (2) that he had failed to undermine confidence in the jury's sentence of death." Id.

B. Analysis.

As discussed in Section III above, McCarthy claims in her first ground for relief that her trial counsel provided ineffective assistance by agreeing to waive enforcement of Texas Rule of Evidence 614 ("the Rule") and allowing the deceased victim's daughter to remain in the courtroom during trial. (Am. Pet. at 43-48.) However, neither prong of the Strickland test is satisfied.

The proper enforcement of the Rule would not have excluded the victim's daughter from remaining in the courtroom after she finished testifying. "The purpose of placing witnesses under the rule is to prevent the testimony of one witness from influencing the testimony of another, consciously or not." Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). The victim's daughter testified first to identify the victim and her belongings. (Vol. 22, State reporter's record, "RR", at 14-29; SHF Nos. 8; SHR at 205.) At the conclusion of her testimony, she was finished testifying and the Rule would have had no further application to her. Also, state law contains an exception for victims, which would include close relatives of a deceased victim, even if they were to be recalled to the stand at some later time. See Tex.Crim. Proc.Code Ann. art. 36.03(a), (b) (Vernon 1998). Therefore, trial counsel should not be faulted for not taking a certain legal action to prevent a result that the legal action would not have prevented.

However, even if enforcing the Rule would have excluded the victim's daughter from the trial, waiving it was reasonable and sound trial strategy. Trial counsel negotiated a waiver of the Rule as to the victim's daughter in exchange for the prosecutor's agreement to allow McCarthy's family to remain in the courtroom as well. (22 RR at 3; Aff. of Gregory Davis at 1; SHF Nos. 8, 11; SHR at 137, 205-06.) Since the victim's daughter sat through this same evidence in the first trial without incident, there was no indication of any problem with her sitting through the second trial. (Aff. of Gregory Davis at 1-2; SHF No. 11; SHR at 137-38, 206.) Again, trial counsel's conduct is not shown deficient.

Even if trial counsel's conduct could somehow be considered constitutionally deficient in this situation, the outcome of the trial would not have been any different. The daughter testified first. Later, she was briefly overcome with emotion, and her husband took her out of the courtroom. (22 RR at 14-29, 60; SHF Nos. 8, 16-19; SHR at 205, 207-08.) Trial counsel took all reasonable actions, including a motion for mistrial, and the victim's daughter remained outside of the courtroom for the remainder of the trial. (22 RR at 61-62; SHF No. 8, 12; SHR at 205-06.) Several witnesses and considerable time and intervening circumstances occurred before the jury considered its verdicts. (SHF Nos. 8, 17; SHR at 205, 207-08.) Any effect that this may have had on the verdict was attenuated and is not shown to have prejudiced McCarthy's trial.

McCarthy's second claim is that trial counsel was ineffective for failing to introduce her "statement" in the punishment phase of her trial. Again, neither prong of Strickland is satisfied.

According to state law, "self-serving declarations of the accused are ordinarily inadmissible in his behalf, unless they come under some exception, such as: being part of the res gestae of the offense or arrest, or part of the statement or conversation previously proved by the State, or being necessary to explain or contradict acts or declarations first offered by the State." Allridge v. State, 762 S.W.2d 146, 152 (Tex. Crim. App. 1988) (quoting Singletary v. State, 509 S.W.2d 572, 576 (Tex. Crim. App. 1974)). The state habeas court found that McCarthy's statement would not have been admissible by the defense. (SHF No. 25; SHR at 209.) The Supreme Court has "repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle v. McGuire, 502 U.S. 62, 67--68 (1991); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)); Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009), cert. denied, __ U.S. __, 131 S.Ct. 1050 (2011). Therefore, this Court must consider it inadmissible under state law and trial counsel should again not be faulted for failing to take a useless action.

Even were it admissible, it was again reasonable and sound trial strategy to not introduce it. McCarthy's first conviction and death sentence were reversed because the prosecution used this statement at the trial. McCarthy I, 65 S.W.3d at 56. In that reversal, the CCA characterized this statement as painting such a bad picture of McCarthy that its admission tainted the jury's consideration of her case. Id. at 55-56. As observed by the state habeas court, "the Court of Criminal Appeals said the statement was 'used to paint appellant as an unrepentant liar and set out her cruel and greedy motive for killing her elderly neighbor.'" (SHF No. 29; SHR at 210) (quoting McCarthy I, 65 S.W.3d at 56). Also, the confession contained statements inconsistent with the defense in the second trial. As the state habeas court noted, those portions of this statement that might have aided in her defense at punishment (emphasizing her drug addiction and her claim to not have actually been the one to kill the victim) were presented to the jury through other means that did not carry the negative aspects of the written statement. (SHF Nos. 33-34; SHR at 211-12.) These findings and conclusions are reasonable. Therefore, the result would not have been any better for McCarthy had this statement been admitted again in the second trial.

In McCarthy's fifth claim, she complains that trial counsel failed to make certain objections to the court's charge. (Pet. at 63-64.) As shown in the next section, these objections would have lacked merit. See infra Section VI. Trial counsel "cannot have rendered ineffective assistance of counsel by failing to make an objection that would have been meritless." Turner v. Quarterman, 481 F.3d 292, 298 (5th Cir. 2007) (citing Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998)); see also Clark v. Collins, 19 F.3d 959, 965-66 (5th Cir. 1994) (failure to raise meritless objection is not ineffective assistance). Therefore, it was not ineffective to forego these meritless objections.

McCarthy's first, second and fifth claims are denied for lack of merit.

VI. STATE DEATH-PENALTY SYSTEM

In her third and sixth claims, McCarthy challenges the Texas death-penalty system based on an extension of the principles announced in Ring v. Arizona, 536 U.S. 584 (2002), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United States, 526 U.S. 227 (1999). However, such an extension would not authorize federal habeas relief under the AEDPA, and both of these claims have already been rejected in this Circuit.

A. Applicable Law.

Construing requirements in federal trials, the Supreme Court in Jones v. United States, noted that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Jones, 526 U.S. at 243, n.6. Later, the Court held that the Fourteenth Amendment incorporates this Sixth Amendment requirement to state trials, holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Finally, the Court further applied this to prohibit "a sentencing judge, sitting without a jury," from finding "an aggravating circumstance necessary for imposition of the death penalty." Ring, 536 U.S. at 609.

B. Analysis.

In her third ground for relief, McCarthy claims that the mitigation special issue violates due process in that it failed to require the state to prove the absence of mitigating circumstances beyond a reasonable doubt. (Pet. at 52-57.) This claim has been repeatedly rejected in this Circuit. See Rowell v. Dretke, 398 F.3d 370, 376-78 (5th Cir. 2005); Granados v. Quarterman, 455 F.3d 529, 536 (5th Cir. 2006); Scheanette v. Quarterman, 482 F.3d at 828. The Sixth Amendment requirement set forth in Apprendi and Ring do not apply to mitigating factors. See Ring, 536 U.S. at 597 n.4; Apprendi, 530 U.S. at 490, n.16 (noting "the distinction the Court has often recognized between facts in aggravation of punishment and facts in mitigation" (internal citation omitted)). Therefore, no violation of the Sixth Amendment is shown. See also Avila v. Quarterman, 560 F.3d 299, 314-15 (5th Cir.), cert. denied, Avila v. Thaler, __ U.S. __, 130 S.Ct. 536 (2009) (recognizing precedent foreclosing petitioner's complaint of the lack of a jury finding of mitigating evidence beyond a reasonable doubt).

In her sixth claim, McCarthy complains that the indictment failed to charge the punishment special issues. (Pet. at 65-68.) She argues that these special issues were the "functional equivalent" of elements of the offense, and that because these issues were not presented to a Grand Jury and charged in the indictment, her rights under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment were violated. (Pet. at 67-68.) This argument is similar to that denied in this district in Kerr v. Thaler, 2009 WL 2981906, at *4-5.

As Respondent points out, those complaints relating to McCarthy's right to indictment would not raise a federal claim, but only a claim arising out of state law, since she does not allege that it deprived the state court of jurisdiction. (Ans. at 26, citing McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994)). The Fifth Amendment right to indictment has not been incorporated into the Due Process Clause of the Fourteenth Amendment as applicable to the states. See Hurtado v. California, 110 U.S. 516 (1884); Albright v. Oliver, 510 U.S. 266, 272 (1994) (noting that the Fifth Amendment right to indictment was not among the Bill of Rights provisions incorporated into the Fourteenth Amendment). Therefore, "the specific requirements of the Fifth Amendment pertaining to federal indictments are among the few provisions of the Bill of Rights not incorporated into the Fourteenth Amendment requirements imposed on the states." Kerr, 2009 WL 2981906, at *4. Accordingly, any of the requirements set out in Jones for federal indictments would not apply to state criminal prosecutions.

Even so, McCarthy misapprehends the rule of Apprendi and Ring and its application to Texas procedures. These cases make an important distinction between the eligibility determination and the narrowing of jury discretion in making the ultimate decision whether to impose a death penalty. The requirements of Apprendi and Ring apply only to the eligibility determination, which is made in the guilt stage of Texas capital trials, and not to the special issues in the punishment stage. As the district court explained in Kerr,

Under the Texas death-penalty system, the eligibility determination is made by looking to the aggravating factors elevating a murder to a capital offense, e.g., committing the murder in the course of another felony offense such as aggravated sexual assault. See Tex. Penal Code § 19.03(a)(2). This determination is to be made in the guilt phase upon elements alleged in the indictment, as it was in this case.

The special issues in Texas do not set forth aggravating factors for this eligibility determination, but instead are designed to narrow the jury's discretion in making the ultimate decision whether to impose the death penalty. See Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Therefore, these special issues are not elements of the offense that must be alleged in an indictment and proven by the prosecution beyond a reasonable doubt. 2009 WL 2981906, at *5 (internal record citation omitted). The aggravating factor that elevated the murder committed by McCarthy to capital murder was that she committed it in the course of robbery. (1 CR 2); McCarthy v. State, 2004 WL 3093230, at 1; Tex. Penal Code § 19.03(a)(2). This was properly charged and proof before the jury was required beyond a reasonable doubt. (2 CR at 540-43, 545.) The requirements of Apprendi and Ring do not apply to McCarthy's punishment special issues. Therefore, her third and sixth claims are denied for lack of merit.*fn3

VII. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

In her eighth claim for relief, McCarthy complains that her appellate counsel failed to raise certain claims on direct appeal, but she does not include those omitted claims in the body of her petition. Instead, she describes them as "Grounds for Relief One, Two, Three, Four, Six, Seven, Eight, Ten and Eleven in Petitioner's State Habeas Writ." (Pet. at 72-74.) This incorporates by reference state court records that were not filed with the petition and not available to this court until provided later by Respondent. Instead, McCarthy referenced a different list of claims in Petition Exhibit C, being a list of claims made in his direct appeal, apparently to show that her desired claims were omitted. This manner of pleading does not provide the clarity and particularity sought by Rule 2(c) of the Rules Governing 28 U.S.C. § 2254 Cases in the United States District Courts. See Mayle v. Felix, 545 U.S. 644, 655 (2005) ("Habeas Corpus Rule 2(c) is more demanding" than the federal rules of civil procedure so that the district court may determine whether to dismiss or require a response). Therefore, this claim may be dismissed on that basis, but is further addressed in the interests of justice.

A review of the state court record reveals that the following grounds raised in the state habeas proceedings are the ones made the subject of this claim. The first state habeas ground asserted ineffective assistance of trial counsel as a violation of the Sixth Amendment for waiving the Rule and allowing the deceased victim's daughter to remain in the courtroom, and the second ground asserted the same complaint as a violation of state law. (SHR at 35.) The third state habeas ground asserted ineffective assistance of trial counsel as a violation of the Sixth Amendment for failing to present McCarthy's written statement to the police, and the fourth ground asserted the same complaint as a violation of state law. (SHR at 41.) The sixth state habeas ground complained that the future dangerousness special issue allowed a finding on an inadequate standard of proof due to the use of the term "probability." (SHR at 48.) The seventh state habeas ground asserted ineffective assistance of trial counsel as a violation of the Sixth Amendment for failing to object to the failure of the future dangerousness special issue to present the correct burden of proof, and the eighth ground asserted the same complaint as a violation of state law. (SHR at 53.) The tenth ground for state habeas relief asserted that the Texas death-penalty procedures violate the United States Constitution by allowing the prosecution "unfettered discretion" in deciding to seek the death penalty, and the eleventh ground asserted this same complaint as a violation of state law. (SHR at 59.)

A. Applicable Law.

In reviewing a claim alleging ineffective assistance of appellate counsel, the traditional Strickland standard described in Section V, supra, applies. See Blanton v. Quarterman, 543 F.3d 230, 240 (5th Cir. 2008); Busby v. Dretke, 359 F.3d at 714. Appellate counsel's failure to pursue relief on a ground that would not have prevailed on appeal will not constitute ineffective assistance. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001); see also, Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (appointed appellate counsel need not make frivolous arguments); Medellin v. Dretke, 371 F.3d 270, 279 (5th Cir. 2004) (where omitted claim lacks merit, ineffective assistance of counsel claim based on failure to raise claim on appeal also lacks merit); Clark v. Collins, 19 F.3d at 965-66 (failure to raise objection that was meritless at the time not ineffective assistance of counsel); Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994) (where issue lacks merit, failure to raise issue on appeal cannot satisfy prejudice prong of Strickland ).

B. Analysis.

The first, third, sixth, seventh, and tenth grounds for state habeas relief are also presented as grounds in this petition for federal habeas relief. The ineffective assistance of counsel claims presented in McCarthy's first state habeas ground (waiving the Rule), third state habeas ground (failing to present the confession), and seventh state habeas ground (failing to complain about the future dangerousness special issue) have each been found to lack merit as set forth above. See supra, Section V. The sixth ground for state habeas relief constitutes an unwarranted extension of the Ring v. Arizona line of cases as shown in the analysis contained in Section VI above. See Scheanette, 482 F.3d at 827-28 (approving use of term "probability" in the future dangerousness special issue). The tenth ground for state habeas relief, which is also set forth as the seventh ground for

federal habeas relief in this proceeding, complains that the state death-penalty procedures allow the prosecutor "unfettered discretion" in the decision of whether to seek the death penalty. The legal argument provided in support of this theory is that "[t]he Supreme Court has long held that 'a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these [capital] crimes should die or be imprisoned' runs afoul of the Eighth and Fourteenth Amendments." (Pet. at 71, citing Furman v. Georgia, 408 U.S. 238 (1972).) However, Furman did not limit prosecutorial discretion, and a similar complaint that the constitutional restriction in Furman is violated when a "state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them" was expressly rejected in Gregg v. Georgia, 428 U.S. 153, 199 (1976). The state court on habeas review also found in the alternative that this claim lacked merit, which suggests that it would not have prevailed on the direct state appeal. (SHF Nos. 83-87; SHR at 225-26.) McCarthy has not shown any likelihood of success if this issue had been raised in her direct appeal.

The second, fourth, eighth, and eleventh grounds for state habeas relief relied upon state constitutional grounds. The state habeas court found that each of these grounds lacked merit. (SHF Nos. 4; SHR at 203-04.) "Under § 2254, federal habeas courts sit to review state court misapplications of federal law. A federal court lacks authority to rule that a state court incorrectly interpreted its own law." Charles v. Thaler, 629 F.3d 494, 500-01 (5th Cir. 2011) (citing Schaetzle v. Cockrell, 343 F.3d at 448-49 , Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995), and Moreno v. Estelle, 717 F.2d 171, 178--79 (5th Cir. 1983)).

McCarthy has not shown that any of the grounds that her appellate counsel failed to raise on direct appeal would prevailed, and they all appear to be meritless grounds. Therefore, appellate counsel was not ineffective, and her eighth claim for federal habeas relief is denied.

VIII. CUMULATIVE

In her ninth and final claim, McCarthy asserts cumulative error as a ground for habeas relief. (Pet. at 74-75.) "Federal habeas corpus relief may only be granted for cumulative error in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors so affected the entire trial that the resulting conviction violates due process." Turner v. Quarterman, 481 F.3d 282, 301 (5th Cir. 2007) (quoting Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (internal citation omitted)); Kessel v. Quarterman, No. H-07-4578, 2008 WL 2596662, at *10 (S.D.Tex., Jun. 25, 2008). Since there is no error to cumulate, this claim is denied.

IX. CONCLUSION

Upon review of the papers, pleadings and records in this case, the Court finds that McCarthy has failed to establish that the state courts' adjudication of her grounds for relief resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. See 28 U.S.C.A. § 2254(d)(1); Williams v. Taylor, 529 U.S. at 412-13; Chambers v. Johnson, 218 F.3d at 363. McCarthy has further failed to demonstrate that the state courts' decisions were based upon any unreasonable determinations of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C.A. § 2254(d)(2); Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Therefore, the petition for writ of habeas corpus is DENIED.

In accordance with Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c) and after considering the record in this case, the court denies McCarthy a certificate of appealability. The court finds that the petitioner has failed to show (1) that reasonable jurists would find this court's "assessment of the constitutional claims debatable or wrong," or (2) that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right" and "debatable whether [this court] was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

Court of Criminal Appeals of Texas

McCARTHY v. STATE

No. 73350.

December 12, 2001

Douglas H. Parks, Dallas, for Appellant.Karen R. Wise, Asst. DA, Dallas, Matthew Paul, State's Atty., Austin, for State.

OPINION

On November 17, 1998, a jury convicted appellant of the capital murder of Dr. Dorothy Booth, an elderly retired professor, a murder which was alleged to have occurred on July 21, 1997.   See Tex. Penal Code Ann. § 19.03(a)(2).   Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death.   See Tex.Code Crim. Proc. Ann. Art. 37.071 § 2(g).¹  Direct appeal to this Court is automatic.   See Article 37.071 § 2(h).   Appellant raises nineteen points of error, but does not challenge the sufficiency of the evidence at either stage of the trial.   We will reverse.

I.

Appellant argues in her first point of error that the trial court's admission of her custodial statement violated her right to counsel under the Fifth and Fourteenth Amendments to the United States Constitution.   Appellant specifically asserts that the statement was inadmissible because the police questioned her without an attorney present after she had unambiguously invoked her right to counsel.²  We agree.

The trial court held a hearing on appellant's motion to suppress her statement.   At the hearing, the evidence showed that Sergeant Patrick Stallings of the Lancaster Police Department arrested appellant on July 24, 1997.   Stallings stated that after he arrested appellant, he tried to interview her.   He testified that “during the interview, [appellant] said she wanted to give a statement, and at the beginning when we started to take the statement, she asked me to write it, then she invoked her right to have an attorney.”   Stallings stopped the interview at that point.   Appellant also told Stallings that “she did not want to talk with us any further.”   Stallings testified that he could not interview appellant any further because she had asked for an attorney.   He did not provide her with an attorney, but he did immediately cease the interview.   Appellant was transferred from Lancaster to the Lew Sterrett Justice Center in Dallas.

On July 28, 1997, Detective Dwayne Bishop of the Dallas Police Department telephoned Stallings to inquire about the case.   Bishop told Stallings that Aaron McCarthy, appellant's husband, asked Bishop to speak with appellant at the Dallas County Jail. Stallings discussed the facts of the case with Bishop and faxed three pages of related information to Bishop.   Stallings testified that, “prior to the time Detective Bishop ever went to see” appellant, Stallings “clearly told [Bishop] that [he] had tried to talk to her, she invoked her right not to talk to [him] and invoked her right to an attorney.”   It was Stallings' understanding that Bishop would “try to get a statement from her.”   Bishop testified, however, that Stallings failed to inform him that appellant had invoked her right to counsel.

On July 29, 1997, Bishop visited appellant at the Sterrett Center. Bishop testified that he read appellant her Miranda rights.³  According to Bishop, appellant stated that she understood her rights and indicated that she wanted to continue talking without the presence of an attorney.   Bishop testified that he did not threaten or coerce appellant or promise her anything in exchange for her statement.   The record, however, does show that Bishop made no attempt to determine if appellant had an attorney so that he could contact that attorney.   The record also demonstrates that appellant did not initiate the meeting with Bishop.

Appellant argued in support of her pre-trial motion to suppress her custodial statement that:

The defendant's position, Your Honor, is that she clearly invoked her right to counsel prior to the time she made any statement.   Defendant's position is that she clearly invoked her Fifth Amendment privilege and the rights afforded to her under 38.22 of the Texas Code of Criminal Procedure, the rights given to her by Article I, Section 19 and 189 of the Texas Constitution not the make any statement and not to-well, invoke her right to counsel.

We think the evidence is clear that after she invoked those rights, agents of law enforcement approached her and initiated further contact, and as a result of that this statement is produced.   We feel that this is a violation of those rights guaranteed to the defendant and we would ask that the statement be quashed.

The State did not respond.   The trial court summarily ruled that the statement was admissible.   When the State moved to admit appellant's statement into evidence during its case-in-chief at trial, appellant renewed her objection.   The trial court stated that its prior ruling stood and admitted the statement.⁴

II.

Appellant argues on appeal that her statement was inadmissible because Bishop approached her and initiated further contact after she invoked her right to counsel.   She is correct.

Once a suspect has invoked the right to counsel during questioning by law enforcement, the Fifth Amendment right to counsel has been invoked and all interrogation by the police must cease until counsel is provided or the suspect reinitiates conversation.   See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981);  Miranda, 384 U.S. at 474, 86 S.Ct. 1602;  Dinkins v. State, 894 S.W.2d 330, 350-51 (Tex.Crim.App.1995).

This is a clear, “bright line” constitutional mandate frequently repeated by the United States Supreme Court.   See Minnick v. Mississippi, 498 U.S. 146, 150, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (tracing the historical reiterations of the rule and noting that “[t]he merit of the Edwards decision lies in the clarity of its command and the certainty of its application”).   This bright and unbending rule “conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms.”  Minnick, 498 U.S. at 151, 111 S.Ct. 486.⁵  State courts are not free to deviate from the firm constitutional mandate set out in Edwards.

There is no evidence in this record that appellant consulted with counsel before Detective Bishop questioned her.   There is no evidence in this record that appellant herself affirmatively reinitiated conversations with law enforcement.   The State does not argue that appellant waived her right to counsel in either of these modes.   Instead, the State contends that Bishop did not, in fact, coerce or badger appellant into making a written statement, and therefore, the underlying purpose of the Edwards rule was fulfilled.   That may be true.   However, the Edwards rule acts as a “clear and unequivocal” guideline to law enforcement precisely because it is “relatively rigid.”   See Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).   When a person subjected to custodial interrogation unambiguously invokes the right to counsel, all questioning must cease.   Interrogation may not be reinitiated by the police ⁶ at any time or in any manner unless the person has consulted counsel.  Id. at 681-82.   Period.

The State also argues that Detective Bishop did not know that appellant had invoked her right to counsel.   Whether or not Stallings informed Bishop of appellant's invocation of her right to counsel is irrelevant because courts impute knowledge of the invocation of any Miranda rights to all representatives of the State.   See Michigan v. Jackson, 475 U.S. 625, 634, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986);  Sterling v. State, 800 S.W.2d 513, 520 (Tex.Crim.App.1990).   Moreover, Stallings' sworn testimony revealed that he informed Bishop that appellant invoked her right to counsel and that Stallings ceased his interrogation of appellant after that invocation.

In sum, the Edwards rule does not take into account the good intentions of the individual police officer, the lack of official coercion or badgering in the particular case, or the actual voluntariness of a person's custodial statement.  Edwards represents a bright and firm constitutional rule that applies to all suspects and all law enforcement officers.   We hold, therefore, that the trial court erred in admitting appellant's statement into evidence.

III.

We must now determine whether this error harmed appellant.   Texas Rule of Appellate Procedure 44.2(a) provides that where, as here, the appellate record in a criminal case reveals constitutional error, we must reverse a judgment of conviction or punishment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment.   See Tex.R.App.P. 44.2(a).   We begin by reviewing the trial record to determine how the State used appellant's statement against her.

We first note that the State offered ample evidence of appellant's guilt from sources independent of her statement.   Dr. Booth's daughter testified that, six months prior to her death, Dr. Booth told her that “the black lady that lived across the alley” called her in the middle of the night and asked to borrow money.   The victim's caller ID records showed that she received two calls from an anonymous number on July 22, 1997, at 6:19 a.m. and 6:29 a.m. Harry Wilkins, Jr., aka, “Smiley,” testified that appellant was driving the victim's white Mercedes Benz station wagon when she met him on the morning of July 22, 1997, to inquire about buying crack cocaine.   The State further showed that appellant pawned the victim's diamond ring on July 22, 1997, and that she used the victim's credit cards at several locations on July 23, 1997.   When appellant was arrested on July 24, 1997, she attempted to take with her a tote bag containing the victim's driver's license and several of the victim's credit cards.   The State's strongest independent evidence of appellant's guilt was produced when the police executed a search warrant at appellant's home on July 24, 1997.   Officers found a large knife stained with Dr. Booth's blood in appellant's kitchen cabinet above the refrigerator.   The bloody knife matched other knives found in the kitchen drawers of appellant's house.

Nevertheless, the State relied on appellant's statement extensively, both during its case-in-chief and during its closing arguments.   Initially, the State used the statement to set up appellant's version of what happened on the early morning of July 21, 1997.   The State used the statement to discredit appellant's version of events as compared to the State's principle theory of the case-that appellant acted alone in the murder and robbery of Dorothy Booth.   For example, during direct-examination of Bishop, the State asked him if appellant included in her statement a way for the State to further identify “Kilo and J.C.” or find them.   Bishop responded in the negative, casting doubt on whether “Kilo and J.C.” even existed.   During its closing argument at guilt/innocence, the State rhetorically asked the jury:  if there really were a “Kilo and J.C.,” why would they hide the murder weapon in appellant's kitchen cabinet?   The State also questioned why “Kilo and J.C.” left appellant alone in the victim's car with all of the stolen property while they went inside a crack house to negotiate the purchase of drugs.

Additionally, the State made significant use of this statement to establish appellant's guilt for the capital murder of Dr. Booth.   The State admitted the statement through the testimony of its last witness during its case-in-chief, as the last exhibit placed before the jury for its consideration.   The State used the statement during the presentation of its case to prove that appellant knew Dr. Booth and called her on the morning of the offense to make sure Dr. Booth was home and awake.   Even though appellant tried to lay blame for the robbery on “Kilo and J.C.,” the State used the statement to show that appellant was aware that “Kilo and J.C.” planned to rob Dr. Booth.   Bishop also testified that appellant never said in her statement that she left, or tried to leave, to call the police during any of the times that “Kilo and J.C. left her alone in the car.”   Instead, the statement showed that appellant remained at the scene of the crime for three to five minutes.   The State, during its direct examination of Bishop, demonstrated to the jury the length of a five minute period by having Bishop sit silently on the witness stand while the prosecutor let five minutes tick off of his watch.   After this, the State allowed Bishop to reiterate that appellant never tried to leave the scene to get help from anyone.

The State also used appellant's statement during its case-in-chief to show how her post-offense behavior indicated her guilt.   The State used the statement to place evidence of flight from the police before the jury.   Specifically, during her account of the attempt to trade Dr. Booth's property to “Smiley” for drugs, appellant states that the police stopped “Smiley” in the victim's car in front of “Smiley's” house.   In her statement, appellant recounted how she ran out the back door of “Smiley's” house and hid before returning to get the car keys back from “Smiley.”

Appellant's statement was used in the State's examination of Bishop to point out several obvious falsehoods made by appellant.   Toward the end of Bishop's testimony, the State questioned Bishop regarding appellant's oral comments.   After her statement was written and signed, appellant told Bishop that portions of her statement were not true.   According to Bishop, appellant then told him:

That she would tell the truth.   Number one, she didn't want to get the death penalty;  and, number two, if she was going to get the death penalty, that if she can get just one rock of cocaine, then she would tell the truth, but she wanted to get one rock of cocaine before she died.

The State then passed Bishop to appellant for cross-examination.

Lastly, the State relied extensively on appellant's statement during its closing arguments to the jury at guilt/innocence.   Appellant's inadmissible statement became the rhetorical strawman that the State effectively decimated.   The State made no less than ten references to appellant's statement in its arguments.   The State referred to the statement as proof that it was appellant who called Dr. Booth on the morning of the murder.   It pointed out in argument that appellant went to Dr. Booth's door to get sugar in order to get Dr. Booth to open her door.   The State argued that it eliminated its first suspect, “Smiley,” from suspicion in the murder of Dr. Booth because appellant explained in her statement that she allowed “Smiley” to borrow Dr. Booth's car for a few hours in exchange for drugs.   The State used appellant's statement to remind the jury that appellant ran from the police at “Smiley's” house “to avoid detection for this offense.”   The State pointed to appellant's statement as proof that appellant had possession of Dr. Booth's property and converted it to cash to buy drugs.

During its final closing argument in rebuttal, the State again relied on appellant's statement, citing it as direct evidence of her guilt.   First, the State argued that “Kilo and J.C.” existed only in appellant's statement.   The State asked the jury if it made sense to it that “Kilo and J.C.” would want property so badly that they would kill Dr. Booth, take her property, go to south Dallas, leave appellant with all of this stolen property, and walk away.   The attorney for the State then argued before the jury,

[STATE]:  Now, let's assume just for the moment there was this alleged Kilo and J.C. Let's assume that.   Let me show you the ways you can find her guilty.

One, you can find her guilty as being the one who actually killed Ms. Booth and took her property.

Two, you can find her guilty as to what they call a party.   If acting with intent to promote or assist in the commission of the offense, okay, she then solicits, encourages or aids J.C. and Kilo. In her own statement she called-she called them, she aided them, she walked over there.   It was because of her Ms. Booth opened the door and said, sure, you can find them as a party on that portion.

There is a third portion you can find her guilty for capital murder on.   That's called a conspiracy theory.   Okay?

What are we talking about when we talk about conspiracy.

Well if people conspire to commit one offense and another offense is committed by one of the conspirators actions, then all conspirators are guilty of the offense committed.

So even if you take her statement, okay, and she talks with them, that's conspiring with them about committing a robbery and she aids them, we know that, and either one of those alleged people goes in and kills Ms. Booth, then she can be convicted on conspiracy theory, theory number 3, okay, three ways you can convict.

The trial court instructed the jury on the law of parties and the law of conspiracy in the abstract.   The trial court also instructed the jury on the law of parties in the second alternative application paragraph, and on the law of conspiracy on the third alternative application paragraph.   Thus, the State used appellant's statement as direct evidence of her guilt as a party or co-conspirator.⁷

The State also asked the jury to look to appellant's statement to find her motive for committing the capital murder of Dr. Booth.

[STATE]:  On the TV you hear the words sometimes motive, means and opportunities.   We are not required to prove motive, but I want to cover those with you to show how we put the facts of the together.

Motive, financial problems, wanted crack.   We know that even from her own statement.   Okay?

Lastly, the prosecutor used appellant's statement to help explain the murder weapon.

[STATE]:  Think about this, Folks.   In her statement-here's where the truth rings.   In her statement she never ever mentions the knife.   What did they threaten her with if they did?   Never mentions a knife.   She never mentions them picking it up taking it out of the house.   These are dope dealers.   What did they need to get a knife for?

She never mentions them taking it back to her house.   She never once mentions the knife.

Why?

Because the knife is what ties her into the crime.

In analyzing whether the constitutionally erroneous admission of a defendant's statement was harmless, we look first to Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988).   In Satterwhite, the Supreme Court emphasized that the decision on harmlessness was not determined solely on the basis of whether there was sufficient evidence, independent of the defendant's inadmissible statement, for a reasonable jury to reach the same conclusion which it had reached with the statement.

The Court of Criminal Appeals thought that the admission of [the tainted] testimony on this critical issue was harmless because the “properly admitted evidence was such that the minds of the average jury would have found the State's case (on future dangerousness) sufficient ․ even if the testimony had not been admitted.”   The question, however, is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”

486 U.S. at 258-59, 108 S.Ct. 1792.   The principle set out in Satterwhite still applies to this Court's review of harm in the admission of appellant's statement into evidence because this is federal constitutional error under Tex.R.App. P. 44.2(a).   We must review whether the admission of appellant's statement contributed to the jury's verdict of guilty in this cause, regardless of whether there is evidence independent of the statement that is otherwise sufficient to sustain the jury's verdict of guilt.

“An appellate court should not focus on the propriety of the outcome of the trial.”  Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000).   If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error is not harmless beyond a reasonable doubt.   See Satterwhite, 486 U.S. at 256-257;  Wesbrook, 29 S.W.3d at 119.   The reviewing court should calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.   See Wesbrook, 29 S.W.3d at 119.

A defendant's statement, especially a statement implicating her in the commission of the charged offense, is unlike any other evidence that can be admitted against the defendant.   See Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).   In Fulminante, the defendant was convicted through the use of a statement obtained in violation of his Fifth and Fourteenth Amendment rights.   See id. at 287-88, 111 S.Ct. 1246.   The Supreme Court noted that

[A] defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.  … [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct.   Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.

See id. at 296, 111 S.Ct. 1246.   In this case, appellant's statement did not place the murder weapon in her own hands, as the defendant's confession did in Fulminante.   But her statement was, as the State's attorney so effectively pointed out in his closing argument, powerful enough to establish her guilt of capital murder either as a party or as a conspirator.   It was also used to paint appellant as an unrepentant liar and set out her cruel and greedy motive for killing her elderly neighbor.

A confession is likely to leave an indelible impact on a jury.  “If the jury believes that a defendant has admitted the crime, it will doubtless be tempted to rest its decision on that evidence alone, without careful consideration of the other evidence in the case.   Apart, perhaps, from a videotape of the crime, one would have difficulty finding evidence more damaging to a criminal defendant's plea of innocence.”  Fulminante, 499 U.S. at 313, 111 S.Ct. 1246 (Kennedy, J., concurring).

Regardless of whether there was, apart from appellant's statement, sufficient evidence to conclude that the outcome of the trial was proper, we find it impossible to say there is no reasonable likelihood that the State's use of appellant's statement materially affected the jury's deliberations.   See Wesbrook, 29 S.W.3d at 119;  Garcia v. State, 919 S.W.2d 370, 380 (Tex.Crim.App.1994).   We cannot conclude, beyond a reasonable doubt, that the admission of appellant's unconstitutionally obtained statement did not contribute to the jury's verdict of guilty.

Although we are slow to overturn the verdict of a jury, when fundamental constitutional protections are violated, however innocently, we must uphold the integrity of that law.   Accordingly, we sustain appellant's first point of error.⁸  We reverse the judgment of the trial court and remand this cause to that court for a new trial.

If appellant's statement were truly a confession, in the sense that in it appellant admitted that she murdered Mrs. Booth, I would agree with the Court that its admission harmed appellant.   Questions of harm and of the applicability of cases dealing with the improper admission of confessions are complicated, however, by the fact that when appellant gave her voluntary statement to Detective Bishop, she meant it to be exculpatory.   And it was exculpatory.   If the jury had believed what appellant said in her statement, the jury could have decided that appellant acted under duress on the morning of the murder and that she was not guilty of any crime at all.   The introduction of the statement provided the jury with an option that did not exist in the absence of the statement.

In fact, and not surprisingly, appellant fashioned her defense around the statement.   Max Courtney, director of a crime lab, testified that he was furnished photographs, witness statements, police statements, prosecution reports, autopsy reports, and more.   From those items, he determined that nothing in the physical evidence at the murder scene was inconsistent with appellant's statement to Detective Bishop.   Courtney further testified that the physical evidence at the murder scene appeared to be consistent with two different pairs of shoes leaving marks in the entryway, and with a bloody knife mark that did not match the knife found in appellant's house.

Because of the admission of appellant's statement, the trial court included in the jury charge an instruction on duress.   Defense counsel was also able to argue duress to the jury, contending that appellant was coerced into helping Kilo and J.C. and that her statement was consistent with the evidence.

The defense of duress, and Max Courtney's testimony backing up the story in the statement, were available to appellant because her statement was admitted at trial.   It is true that appellant was stuck with that particular defense once the statement was admitted, but she got the benefit of having the defensive theory she herself devised placed before the jury without having to testify.   Moreover, if she had testified to facts inconsistent with the Kilo-J.C. duress story, the State could have introduced the statement to impeach her credibility.¹  Appellant's options became limited the moment she gave the statement, regardless of whether the State introduced it during its case-in-chief.   The possibility of raising an actual defense other than duress was, to all intents and purposes, foreclosed by the State's ability to use appellant's statement for impeachment.

Setting aside consideration of the statement, there was abundant evidence that appellant killed Mrs. Booth.   Appellant was seen driving Mrs. Booth's car within about an hour of the murder.   Appellant pawned Mrs. Booth's ring that same day.   Appellant used Mrs. Booth's credit cards several times and had the credit cards and Mrs. Booth's driver's license when arrested.   Police found a large knife, cleaned but stained with Mrs. Booth's blood, in appellant's kitchen cabinet.   The knife matched others found in appellant's kitchen.

The ultimate question is whether the admission of the statement contributed to appellant's conviction or punishment.²  The Kilo-J.C. story offered an explanation for all of the above evidence, to one extent or another.   Without the Kilo-J.C. story, there was no explanation.   And because the Kilo-J.C. story was available for impeachment purposes, appellant was limited in her ability to propose a different defense to the jury.

The evidence that fit least well with the Kilo-J.C. story was the evidence that was also, absent the story, most incriminating, namely:  the knife.   The appearance of what was apparently one of appellant's own knives, cleaned, in her kitchen cabinet, with the victim's blood under the handle, is consistent with the Kilo-J.C. story because according to the story, the two men were at appellant's house both before and after the murder.   Counsel suggested in argument that the men took the knife and then after the murder put it in the cabinet to incriminate appellant.   In the absence of the Kilo-J.C. story, there is no explanation at all for the presence of the bloody knife in appellant's kitchen cabinet.   The Kilo-J.C. story offers an explanation for the other evidence, such as appellant's possession of Mrs. Booth's car, credit cards, and ring.   It may or may not be a very good explanation, and in fact the jury rejected it.   But it was better than no explanation, which is what appellant had absent the admission of the statement.

The State used appellant's statement to argue that she was a liar. Showing a defendant to be a liar could establish harm.   But in this case, the very same evidence that tended to show appellant was a liar was the evidence that tended to show she was a murderer.   If the jury believed that the presence of the knife in appellant's kitchen, for instance, showed that appellant lied about Kilo and J.C., then the jury also believed that appellant had the murder weapon hidden in her kitchen cabinet, with no explanation for it being there.

The State also used appellant's statement to put her at Mrs. Booth's house the morning of the murder.   But appellant's possession of the victim's car and other property shortly after the murder ties her to the murder anyway.   Her statement at least attempted to explain that possession in a manner consistent with innocence.   Absent the statement, there was no explanation.   Her statement was buttressed by Max Courtney's testimony about two possible different shoe prints and a possible different knife, and supported by his claim that everything appellant said beginning with “I called my neighbor Dorothy Booth” to “both guys went back into my house and came out with my jam box, cordless phone and caller ID” was consistent with the physical evidence at the murder scene.

The State argued to the jury that it could find appellant guilty of capital murder even if it believed her story about Kilo and J.C., by convicting her as a party or as a conspirator.   But that is not true unless the jury disbelieved the claim of duress.   Of course, the jury could believe one part of the statement and disbelieve other parts, but if the jury had believed all of it, appellant would have been acquitted.   Even if the jury believed only part of the statement, appellant was still no worse off than she would have been with no defensive theory at all, or with whatever defensive theory counsel could suggest in argument.

Given the extremely damaging evidence against appellant, and the fact that the statement put before the jury appellant's explanation for the evidence and her claim of innocence, and the fact that making the statement limited her options regardless of whether it was introduced in the State's case-in-chief, I would hold that appellant was not harmed by the admission of the statement.

FOOTNOTES

1.   Unless otherwise indicated, all future references to Articles refer to Code of Criminal Procedure.

2.   Appellant also contends that the trial court failed to file findings of fact and conclusions of law on the issue of the voluntariness of her confession, which is required by Article 38.22.   Appellant failed, however, to explain how the factual record proves that her confession to the police was made involuntarily, failed to present any legal authority to support the argument that her confession was involuntary, and failed to apply the law to the facts to support the conclusion that her confession was involuntary.   Therefore, we conclude that the issue of the voluntariness of appellant's confession was inadequately briefed and presents nothing for review.   Tex.R.App. P. 38.1.   It does not, therefore, justify an order from this Court remanding this cause to the trial court to conduct a hearing into the voluntariness of appellant's confession and ordering the trial court to enter findings of fact and conclusions of law thereto.

3.   See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4.   Appellant's written statement reads as follows:Early Tuesday morning about 1:30 a.m., drugs were delivered to me at my residence by “Kilo” and “J.C.”, two guys I met in South Dallas selling drugs, about a month or so ago.   Both guys stayed at my residence & partied with me.   After my money & the drugs ran out, they asked if I could get some more money.   I told them no.   They asked me if I knew any of my neighbors I could borrow money from & I said no, not at that hour & that I had to go to work.   At that time they began to be verbally abusive & threatening to harm me if I didn't.   I called my neighbor “Dorothy Booth”.   I'm not sure of the time & got no answer.   I waited a while & called back, she answered.  “Kilo” told me to hang up & I did.   He told me to call back & ask her to borrow some sugar or milk instead of money over the phone, because they were going to rob her & take the car.   I called back & asked to borrow sugar, she said ok.   Kilo & J.C. followed me to her house, when she opened the door & saw me, to let me in they both pushed the door open & knocked her down.   I was shoved back outside to her car.   The driver side was unlocked & I was told to stay there & lay down in the front seat.   Several minutes later they both came out with her car keys, purse, & CD player.   Both guys went back into my house & came out with a jam box, cordless phone & caller ID. They told me to drive to Mi Amore motel on second avenue to make a pick up.   I was told to park on the next street over & wait for them.   After about 3-5 minutes or so I drove off with all the belongings they took & went to Fitzhugh to the dope house.   No one answered the door so I went to Perry street dope house.   I took everything out of the car & went inside to get dope.   They didn't have any so “Smiley” said he would go around the corner & get me some.   I gave him the keys & another girl rode with him.   They came back & the police stopped them in front of the dope house on Perry street.   I went to the back of the house & waited a few minutes & left out the back door to get drugs elsewhere.   A few hours later I returned to Perry street dope house & “Smiley” was upset that the cops stopped him.   He gave me the car keys back.   He asked me if the car was stolen & I said no.   He wanted to rent it out for dope so I did & left.   After the dope ran out I searched the purse & found a diamond ring & credit cards.   I took the ring to the pawn shop & sold it.   Later I used the credit card at the grocery store & gas station to purchase cigarettes by the carton for resale at the “boot leg” for cash.   I went to a friend's house to smoke dope.   He sold the caller ID and cordless phone for dope money.   The jambox was sold to an individual at the Mexican dude on Fitzhugh & East Grand.   I got a ride with a male & female.   We went to several gas stations & she went inside to use the credit cards once or twice.

5.   The Supreme Court recently declined to modify or jettison the Miranda rule, Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).   In Dickerson, Chief Justice Rehnquist, speaking for the Court, rejected the very rule that the State requests us to adopt in this case:  that a defendant's custodial statement should be admissible if, under the totality of circumstances, the court finds that the statement was given voluntarily and without mental or physical coercion, regardless of whether the defendant has been given Miranda warnings and invoked his right to consult an attorney.  Id. at 2336.

6.   Of course, if the arrestee reinitiates the conversation, the Edwards rule is satisfied.

7.   Later in its closing argument, the State again used appellant's statement as further proof of her guilt as a party or co-conspirator:[STATE]:  She waited outside the victim's house in a car for several minutes.   Here's a person whose life has been threatened and these friendly killers leave her outside in the car unguarded, doesn't go to the police, doesn't run for help, doesn't call anybody.Does that make sense to you?That's the first wait.What about the second wait?She waited outside while the alleged killers went in her house.   Just wait.   Let's wait for the killer.   See?Does that make any sense to you?   You wait outside, doesn't run away, your life is supposed to be threatened?No, it doesn't.Three, the third wait.   She waited in the car with the keys, we know, about a block off of Second Avenue for three to five minutes.Folks, common sense that there was-if there was a real Kilo and J.C., you hang around knowing that these are the type of people that can kill and you just wait on them?No, that's not true.

8.   Because we reverse the judgment on the basis of Edwards error, the other issues appellant raises are moot.

1.   Mincey v. Arizona, 437 U.S. 385, 397-398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978);  Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

2.   Tex.R.App. P. 44.2(a).

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.

KELLER, P.J., filed a dissenting opinion in which HERVEY, J., joined.KEASLER, J., not participating.