* In 1980 Fierro was convicted in a state court in Texas of
committing murder during the course of a robbery, and sentenced to
death. By 1987, Fierro had exhausted all opportunities for state
relief. In September 1987, he filed a petition for writ of habeas
corpus in federal district court. The district court entered a
judgment in June 1988, denying the petition and withdrawing its
stay of execution. In July 1988, Fierro obtained a certificate of
probable cause for appeal and a further stay of execution from the
district court. He now appeals the denial of his petition.
II
The facts underlying Fierro's conviction and sentence are reported
in Fierro v. Texas, 706 S.W.2d 310, 312 (Tex.Crim.App.1986). In
brief, Cesar Roberto Fierro and Geraldo Olague hailed a taxi at
2:15 a.m. on February 27, 1979, in El Paso, Texas. The driver was
Nicolas Castanon. Olague, aged sixteen, sat in front, Fierro in
back. Castanon was told to take Olague to an address in El Paso,
and then take Fierro across the border to Juarez, Mexico. As they
neared the first destination, Fierro yelled, "Stop." As Castanon
turned around, Fierro shot him in the back of the head. After the
car stopped, Fierro drove, with Olague in the back seat, to
Modesto Gomez Park. There, Fierro dragged Castanon's body some
distance, shot him again, and took his wallet, watch, and jacket.
The jacket was discarded on the road to Juarez, and the watch was
discarded in a dumpster. Fierro abandoned the cab in Juarez. These
facts were established primarily by Olague's testimony and
Fierro's confession and are not substantially in dispute at this
time.
In July 1979, Olague contacted the El Paso police and told his
story. He also took two police officers to Juarez and pointed out
the residence of Fierro's mother and stepfather. They were
accompanied by Juarez police officials, who later informed the El
Paso officers that Fierro was in the El Paso county jail for an
unrelated probation violation. The El Paso officers checked Fierro
out of jail. He was warned of his rights and was told that his
family had been questioned. Fierro claimed at a hearing on his
motion to suppress his confession that he was told by an El Paso
detective that his mother was in jail in Juarez and would not be
released until Fierro signed a written confession. Fierro also
testified that the detective showed him letters written by Fierro
and his brother to Fierro's mother, suggesting that the detective
himself had, in fact, had some contact with Fierro's mother.
Fierro's parents testified that they had been arrested by the
Juarez police early in the morning before Fierro gave his
confession, and that they were released later that afternoon. The
El Paso detectives denied Fierro's allegation, although they did
admit that Fierro spoke to the Juarez police by telephone before
signing his confession.
III
Fierro challenges his conviction for murder in the course of
committing a robbery. Tex.Penal Code Ann. Sec. 19.03(a)(2) (Vernon
Supp.1988). Fierro advances two arguments. First, he argues that
the conviction violated his right to due process because the
evidence of his guilt of this offense was insufficient.
Specifically, he claims that the articles were removed after the
murder, so that evidence of murder during the course of a robbery
is lacking. Second, he argues that an expansive reading of this
statute as encompassing his conduct violates the eighth and
fourteenth amendments by expanding the class of criminals subject
to the death penalty in Texas.
On testing the sufficiency of evidence under a petition for writ
of habeas corpus, we view the evidence in a light most favorable
to the prosecution and determine whether a rational trier of fact
could have found the existence of facts necessary to establish the
essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). In this case, the state was obligated to prove that Fierro
intentionally murdered Castanon in the course of committing or
attempting to commit a robbery. Texas Penal Code Ann. Sec.
19.03(a)(2) (Vernon 1989). A murder is committed in the course of
committing or attempting to commit robbery under section
19.03(a)(2) if the murder occurs during an attempt to commit,
during the commission, or in immediate flight after the attempt or
commission of the robbery. Riles v. State, 595 S.W.2d 858, 862 (Tex.Crim.App.1980).
Even though Castanon may have been dead when Fierro removed the
wallet, watch, and jacket, we have no doubt that the simple facts
of this case are sufficient for the jury to infer that the killing
took place during a continuous sequence of events constituting the
robbery or, at least, at a time when Fierro intended and was
attempting to rob Castanon. Since the evidence therefore supports
the conviction under this statute, Fierro's right to due process
has not been violated.
Similarly, the conviction and sentence under this statute do not
violate the eighth amendment's prohibition on cruel and unusual
punishment. The state court found that Fierro's conduct fits
within the statutorily defined offense of capital murder. On a
petition for writ of habeas corpus, a federal court defers to the
state court's interpretation of state law. Seaton v. Procunier,
750 F.2d 366, 368 (5th Cir.1985). The federal court searches only
for violations of federal law. 28 U.S.C. Sec. 2254(a); Smith v.
McCotter, 786 F.2d 697, 700 (5th Cir.1986). Since we cannot find
that the conviction under this statute was improper as a matter of
state law, we have no reason to hold that the state has enlarged
the class of persons subject to the death penalty. Accordingly, we
find no federal constitutional violation in applying this statute
to Fierro's conduct.
IV
Fierro next attacks his conviction on the grounds that his
confession was obtained by coercion in violation of the fifth and
fourteenth amendments. Fierro claims his confession was
involuntary, and that he confessed only because the detectives in
El Paso told him that his mother was being held by the police in
Juarez, Mexico, and would not be released unless Fierro confessed.
At a hearing in the trial court, Fierro testified to this effect,
and also that the detectives showed him letters that were
previously in his mother's exclusive possession. Fierro's mother
and stepfather testified that they had, in fact, been arrested by
Juarez police early on the morning Fierro confessed, and that they
were released later that day. Furthermore, detectives from El Paso
had been in contact with Juarez police when the detectives were in
Juarez with Olague, and the Juarez police told the detectives that
Fierro was at that time in the El Paso county jail. The detectives
testified, however, that they did not know that Fierro's family
was in custody, and had no recollection or knowledge of any
letters. They knew that the Juarez police had questioned Fierro's
parents, and they allowed Fierro to speak with the Juarez police
by telephone, but both detectives testified that Fierro
voluntarily waived his rights and that no one coerced him to
confess.
The state court, faced with this conflicting evidence, found that
no threats or promises were made to Fierro with respect to members
of his family, and that the Juarez police were acting neither as
agents for, nor at the direction of, the El Paso police. These
findings, which are subsidiary to the ultimate determination of
whether the confession was voluntary, are supported by the record
and so are entitled to a presumption of correctness. 28 U.S.C. Sec.
2254(d); Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 451, 88
L.Ed.2d 405 (1985). Given these subsidiary findings, we cannot
conclude that Fierro's confession was coerced.
V
A.
Fierro next maintains that his right to due process was violated
when lay witnesses were allowed to testify as to the probability
that Fierro would commit criminal acts of violence in the future.
The question of future violence is one of the special issues
submitted to the jury in capital cases in Texas. Under Texas law,
a properly qualified lay witness is permitted to state an opinion
on this question. Esquivel v. State, 595 S.W.2d 516, 527-28 (Tex.Crim.App.1980).
Fierro argues that allowing such testimony is inconsistent with
other Texas evidentiary rules regarding lay opinions. Specifically,
the Texas Court of Criminal Appeals has held that whenever a jury
is in possession of the same information that forms the basis for
the witness's opinion, and the jury is fully able to understand
the matter and to draw proper inferences and conclusions from the
facts, the witness's opinion is unnecessary and inadmissible.
Steve v. State, 614 S.W.2d 137 (Tex.Crim.App.1981). Furthermore,
asking a witness whether a criminal defendant is guilty is, of
course, not allowed under state law. Boyde v. State, 513 S.W.2d
588 (Tex.Crim.App.1974). According to Fierro, by allowing lay
opinion testimony on the ultimate issue of future dangerousness,
the state sets less rigorous standards of evidence in capital
cases than in any other kind of criminal case. Fierro argues that
this distinction for capital cases is not rational and deprived
him of a fair trial as guaranteed by the fourteenth amendment.
We reject Fierro's argument. In Barefoot v. Estelle, 463 U.S. 880,
103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), the Supreme Court held
that testimony by psychiatrists as to future dangerousness was not
unconstitutional. The Court's rationale was not based on the
enhanced reliability and usefulness of such testimony; to the
contrary, the argument against the testimony was that it was not
demonstrably reliable yet it appeared to be so because of the
asserted expertise of the psychiatrists. Id. at 896-903, 103 S.Ct.
at 3396-3400. Thus, the Court found admission of the testimony
constitutional despite, not because of, its characterization as
expert testimony. The Court held that the psychiatrist's testimony
was not unconstitutional despite its uncertain reliability because
the defense could question the reliability and the jury, presented
with both sides, could decide how much to credit the testimony. Id.
at 898-99, 103 S.Ct. at 3397-98. Here also, the defense had a full
and fair opportunity to question the reliability and usefulness of
the lay witnesses' opinions. The jury members then made up their
own minds whether and how much to rely on that testimony. Thus,
the admission of the testimony was not fundamentally unfair and
did not violate Fierro's right to due process.
B.
Fierro further argues that the evidence of the probability of
future violence was constitutionally insufficient to impose the
death penalty in his case. The right to due process requires that,
for a criminal conviction, the evidence must be sufficient to
convince a trier of fact beyond a reasonable doubt of the
existence of every element of the offense. Jackson v. Virginia,
443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979).
Relying primarily on his minimal criminal history and on the
mitigating testimony of his wife, mother, father, and stepfather,
and a jail doctor, Fierro claims that the evidence was
insufficient to support the jury finding on the special issue of
future violence.
Fierro additionally argues that a verdict on this special issue
may not rest exclusively on the cruelty of the act for which the
sentence is being imposed, citing Warren v. State, 562 S.W.2d 474
(Tex.Crim.App.1978). In Warren, the state court found insufficient
evidence of the probability of future violence where the defendant,
who shot a burglary victim, had no history of convictions for
criminal violence. Id. at 476-77. In Warren, however, the court
also relied on the fact that no violence had been intended, but
rather that the defendant had taken the gun during the burglary
and had then been surprised by the armed victim. Id. Thus, Warren
relied both on the lack of prior criminal violence and on the
particular facts of the crime for which the defendant was being
sentenced. As a result, the case does not stand for the
proposition that a verdict as to the probability of future
violence may not rest exclusively on the primary underlying act.
Nor is it clear that the Constitution prohibits such a verdict,
but we need not decide that question because the state did
introduce additional evidence relevant to the probability of
future violence. The state showed that Fierro had been convicted
of burglary of a vehicle and that his probation had been revoked,
in part for possession of marijuana during a visit to his brother
in county jail. Fierro's probation officer testified that Fierro
had been a "poor probationer" who showed little inclination toward
rehabilitation. A jail administrator testified that Fierro had
been a severe disciplinary problem during his incarceration, and
had to be segregated from other inmates. Two deputies testified
that Fierro had threatened them with bodily injury when they
disciplined him, and one of the deputies also testified to finding
a knife on Fierro's bunk while searching his cell. All this
evidence, taken together with the facts of the murder itself,
constitutes sufficient evidence to support the jury finding that
Fierro was likely to commit criminal acts of violence in the
future.
VI
In Fierro's final argument in this court, he maintains that the
state court failed to instruct the jury during the punishment
phase of the trial how to utilize mitigating evidence in
deliberating upon the special issues and in answering those issues,
in violation of the eighth and fourteenth amendments. It is clear
that a defendant in a capital murder case is entitled to a full
and fair hearing regarding punishment, including evidence of
mitigating as well as aggravating circumstances. Lockett v. Ohio,
438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978);
Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982). Fierro was allowed, of course, to introduce mitigating
evidence. Under the Texas scheme, however, the jury's role is
limited to answering the special issues. In Fierro's case, the
jury decided only that Fierro had deliberately killed his victim
and that Fierro was likely to commit criminal acts of violence in
the future. Although the jury was permitted to hear all of
Fierro's mitigating evidence, any of the evidence not relevant to
these two special issues could logically carry no weight in the
jury's deliberation and decision. Thus, according to Fierro, the
jury was precluded by the sentencing scheme from applying any
mitigating evidence not relevant to the two special issues. As a
result, Fierro argues, to conform the sentencing procedure with
the federal constitutional requirement that mitigation be
considered, the court should have instructed the jury how to use
Fierro's mitigating evidence.
This argument has been accepted by the Supreme Court. See Penry v.
Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In
Penry, the Supreme Court held, in part, that application of the
Texas capital sentencing scheme to a mentally retarded defendant
was unconstitutional where the jury was not instructed that it
could give effect to the defendant's mitigating evidence,
including mental retardation and childhood abuse, even where that
evidence was not relevant to or was relevant beyond the special
jury issues. Id. 109 S.Ct. at 2947.
Penry does not, however, affect the resolution of the case before
us because Fierro's claim was found by the state court to be
procedurally barred. At trial, Fierro did not object to the jury
instructions, nor did he request an instruction on mitigating
evidence. Under Texas law, the failure to object to a jury
instruction precludes appellate review of a claimed defect in the
charge. Williams v. State, 622 S.W.2d 116, 120 (Tex.Crim.App.1981).
In Fierro's appeal in state court, the Texas Court of Criminal
Appeals found that Fierro had failed to object or request an
instruction on mitigating evidence, and that "[n]othing is
presented for review" as to that issue. Fierro v. State, 706 S.W.2d
310, 318 (Tex.Crim.App.1986). The state court then appears to have
addressed the argument on the merits, rejecting it in reliance on
Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)
(upholding constitutionality of Texas' capital sentencing scheme).
Fierro v. State, 706 S.W.2d at 318. The Supreme Court has recently
clarified the standard by which federal courts should determine "whether
a state court's ambiguous invocation of a procedural default bars
federal habeas review." Harris v. Reed, --- U.S. ----, 109 S.Ct.
1038, 1041, 103 L.Ed.2d 308 (1989). Under Harris, a procedural
default does not bar consideration of a federal claim on habeas
review unless the last state court rendering a judgment on the
case clearly and expressly states that its judgment rests on a
state procedural bar. Id. at ----, 109 S.Ct. at 1043 (citations
omitted). This rule permits state courts to rely on a procedural
bar and yet address the merits of a federal claim in an
alternative holding. Id. at ----, 109 S.Ct. at 1044 n. 10. In
Fierro's case, the state court clearly and expressly found "no
objection or special requested charge on mitigating evidence" and
that "[n]othing is presented for review." Fierro v. State, 706 S.W.2d
at 318. Thus, "absent a showing of 'cause' and 'prejudice,' " see
Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d
594 (1977), the state procedural bar precludes our consideration
of the federal claim.
We hold that there was not good cause for not objecting. Fierro
argues that good cause existed because, at the time of trial, the
constitutionality of the Texas capital sentencing scheme was
settled; only after the Supreme Court decided Franklin v. Lynaugh,
--- U.S. ----, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), was the
issue revived. In Franklin, Justice O'Connor suggested that the
jury under the Texas capital sentencing scheme has no vehicle for
applying mitigating evidence that is not relevant to the special
issues or that is relevant beyond the special issues, but found it
unnecessary to decide the issue because Franklin had introduced no
such evidence. Id. at 2333 (O'Connor, J., concurring in the
judgment). Justice O'Connor's concurrence in Franklin thus
foreshadowed her opinion for the majority on this issue in Penry.
In Penry, however, the Court also held that it was not announcing
a new rule on the issue of mitigating evidence, and that it was
not therefore barred from applying its holding retroactively to a
case on collateral review. Penry, at 2952; see Teague v. Lane, 489
U.S. ----, 109 S.Ct. 1060, 1066-67, 103 L.Ed.2d 334 (1989). Since,
despite Jurek, the Court in Penry was not announcing a new rule as
to the need for consideration of mitigating evidence, there was no
good cause for not raising the objection at trial.
Furthermore, this precise argument against application of a
procedural bar was rejected in Selvage v. Lynaugh, 842 F.2d 89
(5th Cir.), stay granted, --- U.S. ----, 108 S.Ct. 1283, 99 L.Ed.2d
494 (1988). See also McCoy v. Lynaugh, 874 F.2d 954, 958 (5th
Cir.1989); King v. Lynaugh, 868 F.2d 1400, 1403 (5th Cir.1989);
Bridge v. Lynaugh, 863 F.2d 370 (5th Cir.1989) (on rehearing). In
Selvage, the court held that this particular issue "is not a
recently found legal theory not knowable by competent trial
counsel." Selvage, 842 F.2d at 94. If counsel in Franklin and
Penry could be aware of the issue and raise it appropriately, so
could counsel in Selvage, Bridge, King, McCoy and the instant
case. See Bridge, 860 F.2d at 164-65 (Jones, J., dissenting on
petition for rehearing and suggestion for rehearing en banc).
After Selvage and these subsequent cases, we cannot find that
Fierro's counsel had good cause not to object to the jury
instructions on the grounds raised on appeal; nor does the Supreme
Court's decision in Penry, discussed above, change our result on
this issue. Accordingly, the procedural default cannot be avoided
and bars Fierro's argument on appeal as to consideration of
mitigating evidence under the Texas capital sentencing scheme.
VII
None of Fierros' issues on appeal provides grounds for reversing
the denial of his petition for writ of habeas corpus. His
conviction for murder in the course of committing robbery was
constitutional. He has not established that his confession was
coerced. There was sufficient evidence of the probability of
future violence, and the admission of lay opinions regarding the
probability of future violence was not unconstitutional. Finally,
Fierro's claim that the jury was not permitted to consider all
mitigating evidence is procedurally barred. Accordingly, the
denial of the petition for writ of habeas corpus is
