Jonathan Green Executed For Murdering Christina Neal In Texas

By Michael Graczyk - HuffingtonPost.com

October 11, 2012

HUNTSVILLE, Texas -- A Texas man whose lawyers argued was mentally ill and incompetent for execution was put to death Wednesday evening for killing a 12-year-old girl more than a decade ago. Jonathan Green, 44, received lethal injection after the U.S. Supreme Court rejected last-day appeals to spare him. A judge earlier this week stopped the punishment, but an appeals court overturned the reprieve. Then 11th-hour appeals delayed the punishment nearly five hours past the initial 6 p.m. execution time and as the midnight expiration of the death warrant neared.

Asked by the warden if he had a statement from the death chamber gurney, Green shook his head and replied, "No." But seconds later he changed his mind, saying: "I'm an innocent man. I never killed anyone. Y'all are killing an innocent man." He then looked down and said his left arm, where one of the needles carrying the lethal drug was inserted, and said, "It's hurting me bad." But almost immediately he began snoring loudly. The sounds stopped after about six breaths. Green was pronounced dead 18 minutes later at 10:45 p.m.

Green was condemned for the abduction, rape and strangling of Christina Neal, whose body was found at his home in 2000 about a month after she was reported missing. Her family lived across a highway from Green in Dobbin, about 45 miles northwest of Houston. Christina's parents were among people to watch Green die. They declined to speak with reporters following the execution.

Green's lethal injection is the 10th this year in Texas and the first of four scheduled for this month in the nation's most active death penalty state.

Green's attorneys argued his hallucinations made him ineligible for the death penalty and said a state competency hearing for him two years ago was unfair. That led to a reprieve from a federal district judge in Houston. But the Texas attorney general's office persuaded the 5th U.S. Circuit Court of Appeals to overturn that ruling and lift the stay of execution late Tuesday. Green's lawyer, James Rytting, said his client hallucinated about the "ongoing spiritual warfare between two sets of voices representing good and evil."

The appeals court found the procedures at Green's competency hearing were not improper, that no Supreme Court precedents were violated and that it was reasonable to find Green competent for the death penalty. Green told a psychiatrist who examined him before the competency hearing that he didn't and couldn't have killed Christina, that false evidence was used against him and that he understood a murder conviction could result in him receiving an injection that would kill him. Supreme Court guidance says mental illness can't disqualify someone from execution if they understand the sentence and reasons for the punishment, the state lawyers argued. Green had declined to speak with reporters as his execution date neared.

Investigators questioned Green at least twice in the days following Christina's disappearance 12 years ago. His wallet was found in some woods near clothing and jewelry that belonged to Christina, but authorities found nothing else of significance at the time. A few weeks later, a tip from a neighbor about an unusually large burn pile behind his ramshackle home brought them back again. While Green had been cooperative in the past, he grew testy and ordered them off his property when an FBI agent looking at the fire site detected the smell of a decaying body and inserted a metal probe into a patch of disturbed earth. They returned hours later with a search warrant and a dog trained to detect human remains. The dog led officers to the girl's body, stuffed inside a laundry bag in the home and wedged into a corner behind a piece of furniture. Green contended someone else had placed the body there and that he was being set up.

Evidence at his trial indicated he had tried to burn the body, buried it in a shallow grave, then removed it when detectives left to obtain the search warrant. DNA from her remains tied him to the slaying. A carpet fiber from her panties found in the woods was traced to a carpet in his home. Two years ago, Green came within about four hours of execution before the Texas Court of Criminal Appeals stopped the punishment amid similar arguments he was too delusional and too mentally ill to be put to death.

Texas inmate executed for killing 12-year-old girl

Michael Graczyk - Associated Press

The Houston Chronicle

October 10, 2012

HUNTSVILLE, Texas (AP) — A Texas man whose lawyers argued was mentally ill and incompetent for execution was put to death Wednesday evening for killing a 12-year-old girl more than a decade ago.

Jonathan Green, 44, received lethal injection after the U.S. Supreme Court rejected last-day appeals to spare him. A judge earlier this week stopped the punishment, but an appeals court overturned the reprieve. Then 11th-hour appeals delayed the punishment nearly five hours past the initial 6 p.m. execution time and as the midnight expiration of the death warrant neared.

Asked by the warden if he had a statement from the death chamber gurney, Green shook his head and replied, "No."

But seconds later he changed his mind, saying: "I'm an innocent man. I never killed anyone. Y'all are killing an innocent man."

He then looked down and said his left arm, where one of the needles carrying the lethal drug was inserted, and said, "It's hurting me bad." But almost immediately he began snoring loudly. The sounds stopped after about six breaths.

Green was pronounced dead 18 minutes later at 10:45 p.m.

Green was condemned for the abduction, rape and strangling of Christina Neal, whose body was found at his home in 2000 about a month after she was reported missing. Her family lived across a highway from Green in Dobbin, about 45 miles northwest of Houston.

Christina's parents were among people to watch Green die. They declined to speak with reporters following the execution.

Green's lethal injection is the 10th this year in Texas and the first of four scheduled for this month in the nation's most active death penalty state.

Green's attorneys argued his hallucinations made him ineligible for the death penalty and said a state competency hearing for him two years ago was unfair.

That led to a reprieve from a federal district judge in Houston. But the Texas attorney general's office persuaded the 5th U.S. Circuit Court of Appeals to overturn that ruling and lift the stay of execution late Tuesday.

Green's lawyer, James Rytting, said his client hallucinated about the "ongoing spiritual warfare between two sets of voices representing good and evil."

The appeals court found the procedures at Green's competency hearing were not improper, that no Supreme Court precedents were violated and that it was reasonable to find Green competent for the death penalty.

Green told a psychiatrist who examined him before the competency hearing that he didn't and couldn't have killed Christina, that false evidence was used against him and that he understood a murder conviction could result in him receiving an injection that would kill him.

Supreme Court guidance says mental illness can't disqualify someone from execution if they understand the sentence and reasons for the punishment, the state lawyers argued.

Green had declined to speak with reporters as his execution date neared.

Investigators questioned Green at least twice in the days following Christina's disappearance 12 years ago. His wallet was found in some woods near clothing and jewelry that belonged to Christina, but authorities found nothing else of significance at the time. A few weeks later, a tip from a neighbor about an unusually large burn pile behind his ramshackle home brought them back again.

While Green had been cooperative in the past, he grew testy and ordered them off his property when an FBI agent looking at the fire site detected the smell of a decaying body and inserted a metal probe into a patch of disturbed earth. They returned hours later with a search warrant and a dog trained to detect human remains.

The dog led officers to the girl's body, stuffed inside a laundry bag in the home and wedged into a corner behind a piece of furniture. Green contended someone else had placed the body there and that he was being set up.

Evidence at his trial indicated he had tried to burn the body, buried it in a shallow grave, then removed it when detectives left to obtain the search warrant. DNA from her remains tied him to the slaying. A carpet fiber from her panties found in the woods was traced to a carpet in his home.

Two years ago, Green came within about four hours of execution before the Texas Court of Criminal Appeals stopped the punishment amid similar arguments he was too delusional and too mentally ill to be put to death.

Green v. State, Not Reported in S.W.3d, 2004 WL 3094650 (Tex.Cr.App. 2004) (Direct Appeal)

Background: Defendant was convicted in the trial court, Montgomery County, of capital murder and was sentenced to death. Defendant appealed. Holdings: The Court of Criminal Appeals held that: (1) evidence was legally and factually sufficient to support capital murder conviction; (2) evidence was legally sufficient to support future dangerousness special issue; (3) future dangerousness and mitigation special issues were not subject to factual sufficiency review; (4) affidavit contained sufficient probable cause to support issuance of search warrant; (5) affidavit and search warrant adequately described the place to be searched; (6) jury charged with alternative theories of committing capital murder could return a general verdict if the evidence was sufficient to support a finding under any of the theories submitted; and (7) trial court was not required to define the terms “mitigate,” “militate,” “moral blameworthiness,” “probability,” “criminal acts of violence,” and “continuing threat” in jury charge at punishment phase of proceeding. Affirmed.

PER CURIAM.

In July 2002, a jury convicted appellant of a capital murder FN1 committed in June 2000. Pursuant to the jury's answers to the special issues in Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial court sentenced the appellant to death. Appeal to this Court is automatic.FN2 The appellant raises eight points of error, including challenges to the sufficiency of the evidence at both stages of trial, a complaint about denial of his motion to suppress evidence, and challenges to the jury charges at the guilt and punishment stages. We affirm. FN1. See Tex. Penal Code § 19.03(a)(2). FN2. See Tex.Code Crim. Proc. art. 37.071, § 2(h).

Background

In June 2000, Victor Neal, who was separated from his wife Laura, lived in the small community of Dobbin with his three daughters: sixteen-year-old Victoria, fifteen-year-old Jennifer, and the victim, twelve-year-old Christina. On the evening of June 21, 2000, Victor and Jennifer left home to get dinner for the family. Victoria and Christina said that they would eat when they returned from a friend's house. The friend, Maria Jimenez, lived just down the street from the Neal family. After Victor and Jennifer left, Victoria's boyfriend (and Maria's uncle), Manuel Jimenez, came by the house to pick up the two girls. After driving around for a while, the group went to Maria's house where they stood outside talking with Maria and her two brothers, Martin and Jose. While standing outside by the truck, Victoria and Christina began arguing. Victoria walked away from the argument and toward Maria's house, leaving Christina and Jose outside. Shortly thereafter, Jose told Victoria that Christina was angry and had left. When Victoria returned home, she discovered that Christina was not there.

The next morning, Victor saw Jennifer and Victoria sleeping on the couch. He also noticed that the door to the girls' bedroom was closed. Assuming Christina was asleep in the bedroom, Victor left for work. When he got home about 3:00 or 4:00 p.m., Jennifer and Victoria told him that Christina had never returned home the night before. Victor asked the girls to go to Maria's house and tell Christina to come home. They found that Christina was not at Maria's house. After learning about the argument between Christina and Victoria the night before, Victor concluded that Christina had spent the night at another friend's house, and the family began searching the neighborhood. Along the road near the Neal home, Victoria and Maria found Christina's glasses. The glasses were “smashed and broken,” but Victoria testified that Christina had a habit of destroying her glasses when she got mad. Victor stopped looking for Christina around 11:00 or 11:30 p.m.

The next morning, Victor asked his sister, Tereza Goodwin, to look for Christina while he was at work. Christina had run away before, so Victor told Tereza to report her as a runaway if she could not find her. Later that day, having failed to locate Christina, Tereza reported her missing to a Montgomery County Sheriff's deputy. Local law-enforcement officers then joined the family in searching for Christina. On June 26, the FBI joined the search. On that same day, Jennifer and her mother found what appeared to be Christina's panties at the edge of the woods across from the Neal home. Also around this time, Victoria found Christina's bracelet and necklace along a pathway in the woods. The search continued.

On June 28, investigators spoke with the appellant, who lived in Dobbin. He said he had no information concerning Christina's disappearance, and that he was either at home or at his neighbor's house on the night she disappeared. He gave the investigators permission to search his home and property, with the condition that he be present. Investigators performed a cursory search of the house and property, but they noticed nothing significant. A few days later, investigators again asked the appellant his whereabouts on the night of Christina's disappearance. Again, the appellant claimed to have been at home or at his neighbor's house.

On July 19, Manuel Jimenez, who lived on the property behind the appellant's, told investigators that the appellant had an unusually large fire in his burn pile the day after Christina disappeared. A few days later, investigators went to the appellant's home and asked if they could search his property again, including his burn pile. The appellant again consented, but insisted that he be present during the search. FBI agents Sue Hillard and Mark Young walked around the burn pile with the appellant. Young pushed a metal probe into the ground to vent the soil and check for any disturbances. When the probe sank three feet into the ground at one location, Young determined that the ground had been disturbed or dug up in that area; he concluded that the disturbed section covered a very large area. He also smelled a distinct odor emanating from the disturbed section of ground which he identified as “some sort of decaying body.” The investigation team then began to dig up the disturbed area. The appellant, who had been cooperative up to that point, became angry and told the officers to get off his property.

The investigative team returned to the appellant's property later that night with a search warrant. They discovered that part of the burn pile had been excavated, leaving what appeared to be a shallow grave. They also smelled the “extremely foul, fetid odor” of a “dead body in a decaying state.” When investigators asked the appellant what had happened at the burn pile, the appellant said that he had dug the pit to show authorities that “there was no dead body in there.” An officer then arrived with a “cadaver dog,” trained to detect human remains. As the dog was walking to the burn pile, it alerted to the house. Upon entering the house, the dog repeatedly went to the side of a recliner that was wedged into a corner of the room. Agent Hillard looked behind the recliner and saw “a foot sticking out of the top of [a blue] bag” and what appeared to be human remains. Before the discovery was announced, the appellant was overheard to say, “Those Mexicans are setting me up” and “put a body in my house.”

The remains were identified as Christina's. The medical examiner, Dr. Joye Carter, concluded from a ligature mark around Christina's neck that Christina was strangled. She also determined that Christina's arms had been tied behind her back and that Christina had been sexually assaulted before she died. She testified that the body had been wrapped in a blanket and placed inside a blue bag. During the course of the autopsy, various materials were recovered from Christina's body. Two black hairs that did not appear to be Christina's were found in her pubic area. Based on the way Christina was positioned within the blanket, Carter determined that the hairs must have been present before her body was wrapped in the blanket, and could not have been transferred there afterward. Mitochondrial-DNA testing excluded 99.7% of the African-American population as a source of the hair. The appellant, an African-American, could not be excluded from the remaining 0.3%. Carter also recovered a black cotton cloth from Christina's mouth. The cloth was positioned in such a way that Carter determined, to a medical certainty, that the cloth did not cause Christina's death.

Criminalist Bradley Mullins from the Texas Department of Public Safety crime lab testified that many of the fibers recovered from Christina's body matched fiber samples seized from the appellant's property and residence. On the panties that were recovered near the Neal home five days after Christina had disappeared and nearly a month before her body was found, Mullins found a fiber that had characteristics identical to carpet in the appellant's residence.

Sufficiency of the Evidence

In his first two points of error, the appellant challenges the legal and factual sufficiency of the evidence to support his conviction for capital murder. In his fifth, sixth, and seventh points of error, the appellant challenges the legal and factual sufficiency of the evidence to support the jury's affirmative finding as to the first special issue at punishment, and the factual sufficiency of the evidence to support the jury's negative answer to the mitigation punishment question. We address the appellant's points of error in turn.

In point of error one, the appellant asserts that the evidence is legally insufficient to support the jury's verdict of guilt. In reviewing the legal sufficiency of the evidence, we look at all of the evidence, both direct and circumstantial, in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences therefrom, a rational trier of fact could have found 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); Ladd v. State, 3 S.W.3d 547, 556-57 (Tex.Cr.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Furthermore, when the trial court's charge authorizes the jury to convict on alternative theories, as it did in this case, the verdict of guilty will be upheld if the evidence is sufficient on either of the theories. Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex.Cr.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993).

Here, the appellant was indicted for intentionally or knowingly causing the death of Christina Neal while in the course of committing or attempting to commit kidnapping or aggravated sexual assault. The appellant concedes that the “evidence is sufficient to support a finding that Christina Neal was murdered and kidnapped.” However, he asserts that the evidence is not sufficient to prove beyond a reasonable doubt that he was the person who committed that crime. Rather, he contends that the evidence only shows that Christina's body was recovered on his property, and evidence that he hid or even moved the body is not indicative of whether he murdered, kidnapped, or sexually assaulted her. He argues that an equally plausible explanation is that someone else killed Christina and then hid her body on his property to divert suspicion from the true perpetrator.

The facts of the burial of the victim's body in the appellant's burn pile, and his exhumation and concealment of it after investigators asked to search his property again, are strong evidence. The DNA in the hair that was left on the child's pubic area is strong evidence. The fiber evidence that was found on the child's body and on the panties that were found long before the body was found is further evidence. Given the totality of this evidence, we hold that a rational jury could have found beyond a reasonable doubt that the appellant murdered Christina while in the course of kidnapping or sexually assaulting her. The first point of error is overruled.

The appellant's second point of error complains that the evidence is factually insufficient to support his conviction for capital murder. He argues that the evidence that he committed the offense “is no more than the presence of the body in his house, his refusal to consent to the search of his property and his admission that he dug up the grave.” The appellant claims that “evidence of other persons who might be responsible for the crime was ample but not sufficiently pursued by the State.” In a factual sufficiency review, we view all the evidence in a neutral light and set aside the verdict only if the evidence supporting the verdict is so weak or so against the great weight and preponderance of contrary evidence as to render the verdict clearly wrong and manifestly unjust. Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000). A clearly wrong and unjust verdict occurs where the jury's finding is “manifestly unjust,” “shocks the conscience,” or “clearly demonstrates bias.” Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App.1997).

The appellant argues that there are several shortcomings in the State's evidence. First, the appellant argues that the trace evidence of fibers and hairs found on Christina's body was “not compelling because the body was found in his home, thus explaining why such fibers and hairs might be found.” Christina's body was wrapped in a blanket and then enclosed in a blue bag. Only her foot was protruding from the wrappings when investigators discovered her body in the appellant's house. Several pieces of trace evidence recovered from Christina's body, such as the hair found in her pubic region and the fiber found on the cloth inside of her mouth, were found in locations that made any incidental, post-mortem transfer extremely unlikely or impossible according to the testimony of the medical examiner. Despite the appellant's assertion that there “was no direct evidence of [his] involvement in the crime,” this trace evidence connects him and his home to the offense and to Christina prior to her death.

The appellant also asserts that numerous other fibers and hairs recovered from Christina excluded him as a source. However, the record shows that the appellant was neither matched to nor excluded as the sources for some items of trace evidence. The criminalist testified that just because some pieces of hair, for example, have dissimilarities to the available sample, it does not mean that the sample donor is excluded. In the testing of hairs, the appellant was excluded as the source of only those hairs that matched Christina's hair or appeared to be animal hair.

The appellant further argues that “[s]omeone else, the real killer or his associates may have moved the body or placed the body in his house to make [him] look suspicious” because if “a person had killed Christina Neal, a plausible course of conduct would have been to place the body in an area that would point to another suspect” such as himself. He asserts that an equally plausible explanation of the crime is that someone else killed Christina, such as Abel Martinez, who made statements about knowing the whereabouts of Christina's body, or Manuel Jimenez, possibly to cover up an inappropriate relationship with Christina, and then hid her body on the appellant's property to lead investigators to another suspect. However, investigators thoroughly investigated Martinez and Jimenez and the evidence pointed away from them; all leads “were completely handled [and] completely exhausted.” The totality of the evidence presented at trial was neither so weak nor so against the great weight and preponderance of contrary evidence that it rendered the verdict clearly wrong or manifestly unjust. The second point of error is overruled.

In his fifth point of error, the appellant claims that the evidence presented at trial was legally insufficient to support the jury's finding that he would be a continuing threat to society.FN3 In reviewing the sufficiency of the evidence at punishment, we look at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that the appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. Allridge v. State, 850 S.W.2d 471 (Tex.Cr.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). The facts of the crime alone can be sufficient to support the affirmative finding to the special issue. Id., at 488. FN3. See Tex.Code Crim. Proc. art. 37.071, § 2(b)(1).

In addition to the facts of the crime in the instant case, the State presented evidence showing the appellant's history of violent behavior. Mica McCoy testified that the appellant raped her approximately four years before the trial in the instant case. She told the jury that she had encountered the appellant late one night while walking down a dirt road in Dobbin. The appellant dragged her to his property, pushed her down to the ground, placed her in a choke hold, and forced his fingers down her throat causing her to vomit. He told her that he would kill her and break her neck if she screamed. Once the appellant had her pinned down, he ripped off her clothes and raped her. Although McCoy escaped, she never reported the rape because she had an outstanding arrest warrant.

Josie Jimenez testified that in July 1999, the appellant entered her home without permission, jumped on top of her, and demanded that she have sex with him. Jiminez tried to defend herself, but the appellant forced himself on her. She reported the offense to the police and was taken to Conroe Medical Center. When the case appeared before the grand jury, Jiminez was too afraid of the appellant to appear. Jiminez also testified about another time when the appellant tried to rape her. However, on that occasion, she was armed with a pocket knife and was able to fend him off.

In January 2000, a pony was stolen from Erin Irby's pasture in Dobbin. On February 6, 2000, the pony was found stabbed to death in a wooded area near the appellant's home. A bloody pair of shears and a bloody broken butcher knife were laying near the pony's carcass. The pony was tied to a tree and there was a worn track around the tree where the animal had apparently circled for some time before being killed. When questioned, the appellant admitted that the shears were his but claimed that they had been stolen a few weeks earlier. The only print recovered from the shears matched the appellant's left middle finger.

The appellant also displayed increasingly violent behavior while he was incarcerated in the Montgomery County Jail. On the morning of September 9, 2000, the appellant threatened to assault an officer for taking a toothbrush and a bowl of food from him. On February 5, 2001, the appellant threatened a fellow inmate asserting that he “would make his heart stop.” On another occasion, the appellant threatened a deputy because he would not give him a second glass of juice. On July 26, 2001, the appellant assaulted and robbed another inmate. On March 13, 2002, the appellant assaulted an officer in the jail. Finally, the appellant had a misdemeanor conviction for unlawfully carrying a weapon. Given this evidence, a rational jury could have concluded that the appellant would continue to be a threat to society. Accordingly, we hold that the evidence is legally sufficient to support the jury's affirmative answer to the future-dangerousness issue. Allridge, 850 S.W.2d, at 471. Point of error five is overruled.

In his sixth point of error, the appellant argues that the evidence is factually insufficient to sustain the jury's affirmative answer to the future-dangerousness punishment question. In McGinn v. State, we determined such a review is not constitutionally required and refused to review the evidence on the punishment issues in capital cases for factual sufficiency. 961 S.W.2d 161 (Tex.Cr.App.), cert. denied, 525 U.S. 967, 119 S.Ct. 414, 142 L.Ed.2d 336 (1998). The appellant has not persuaded us to revisit this holding. Point of error six is overruled.

In his seventh point of error, the appellant argues that the evidence is factually insufficient to sustain the jury's negative answer to the mitigation punishment.FN4 We do not review the sufficiency of the evidence to support a jury's negative answer to the mitigation issue. Allen v. State, 108 S.W.3d 281, 285 (Tex.Cr.App.2003), cert. denied, 72 U.S.L.W. 3536 (U.S. Feb. 23, 2004). The appellant has not persuaded us to revisit this holding. Point of error seven is overruled. FN4. See Tex.Code Crim. Proc. art. 37.071, § 2(b)(1).

Motion to Suppress Evidence

In his third point of error, the appellant argues that the trial court erred when it “denied [his] motion to suppress.” In support of his argument, the appellant advances four separate claims: (1) The “initial search” of appellant's property was illegal, thus the State's discovery of the burn pile behind appellant's house should be suppressed; (2) The search warrant was issued without probable cause to believe that any contraband or evidence of a crime was on the premises; (3) The warrant was invalid in scope because there was no probable cause to believe that there was any evidence or contraband in appellant's home; and (4) The affidavit and search warrant failed to adequately describe the place to be searched. We shall address each part of the appellant's argument in turn.

The first claim the appellant asserts under his third point of error is that the initial search of his property by Detective Gay was without a warrant and without consent. This claim is different from the claim in his motion to suppress, which alleged that (1) the affidavit upon which the search warrant was based was improperly and illegally executed, and (2) that the search and seizure was illegal in that the search warrant was facially deficient because the search warrant failed to specify the place to be searched. Because the appellant never advanced the argument that the initial search by Gay was without a warrant and without consent either in his motion to suppress or in the hearing on his motion to suppress, he has failed to meet the prerequisite for presenting the claim for appellate review. See Rule of Appellate Procedure 33.1(a).

The appellant's second complaint is that the affidavit supporting the search warrant failed to establish probable cause. He asserts that there was “no reason to believe the missing child was ever on [his] property and [n]o connection was drawn between [him] and the child.” In considering a trial court's ruling on a motion to suppress evidence, an appellate court must uphold the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Steelman, 93 S.W.3d 102, 107 (Tex.Cr.App.2002); Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Cr.App.1990). Whether the facts alleged in a search warrant affidavit are sufficient to support a search warrant is determined by a totality of the circumstances. Ramos v. State, 934 S.W.2d 358, 363-64 (Tex.Cr.App.1996), cert. denied, 520 U.S. 1198, 117 S.Ct. 1556, 137 L.Ed.2d 704 (1997). The affidavit must allege sufficient facts to establish probable cause to believe that the items will be found at the designated place. Massey v. State, 933 S.W.2d 141, 148 (Tex.Cr.App.1996). The question is whether the allegations “justify a conclusion that the object of the search is probably on the premises .” Ramos, 934 S.W.2d, at 364. The issuing magistrate is permitted to draw reasonable inferences and the reviewing court should accord great deference to the magistrate's determination. Id.

The affiant, Don Gay, stated in the search warrant affidavit that he believed that a “[k]idnapping and/or [m]urder” had been committed and that the following items could be found at the appellant's place and on his premises: (1) bones; (2) bone fragments; (3) human tissue; (4) clothing; (5) shoes; (6) jewelry; or (7) any other evidence of human remains or any other personal objects that might belong to a human being. The affiant made the following (paraphrased) factual allegations in the search warrant affidavit: (1) Christina Neal, a 12-year-old child, was last seen on Wednesday, June 21, 2000, at approximately 11:00 p.m. walking in her neighborhood on Second Street; (2) the Neal family resided at 207 Second Street, Dobbin, Montgomery County, Texas; (3) on June 23, 2000, Christina's family called the Montgomery County Sheriff's Office to report that Christina was missing; (4) on Wednesday, July 19, 2000, F.B.I. Agent Sue Ellen Hillard interviewed Manuel Jimenez, who lives in a residence behind the appellant; (5) Jimenez told Hillard that on Thursday, June 22, 2000, when Jimenez returned home from work sometime after 6:00 p.m., he saw the appellant burning a large fire in his own backyard; (6) Jimenez recalled the fire because he was afraid it might spread to his property; (7) Jimenez told Hillard that the appellant rarely burned anything in his backyard and had never burned a fire that large; (8) the appellant's residence is approximately one-half mile from the Neal residence; (9) Christina was known to have frequently visited the Jimenez residence; (10) on July 21, 2000, at approximately 7:10 a.m., F.B.I. Agent Justin G. Fox and the affiant went to the appellant's residence and asked him for consent to search his property; (11) the appellant gave the affiant and Fox verbal consent to search the property, including the burn pile; (12) F.B.I. Agents Hillard and Young arrived on scene to assist with the search at approximately 7:30 a.m.; (13) using a metal probe, Young found that the earth beneath the burn pile, based on his experience and training, was normal based on the depth and density of the earth (the probe sank approximately one foot into the ground); (14) when Young inserted the probe into the ground area immediately to the north of the burn pile, it sank approximately four feet into the ground, indicating that the earth in the immediate area had recently been disturbed; (15) Young also smelled a foul odor in this area which Hillard also noticed; (16) when the agents went to get their shovels and equipment to process the area, the appellant told them that he did not want them messing up his property; (17) the appellant specifically told them that he did not want them digging “there,” indicating the area where the foul odor had been noticed; (18) when Hillard asked the appellant if he had buried anything there, he said that he had buried a bulldog there; (19) when Hillard asked the appellant when he had buried the dog, the appellant said that he “threw [the] dog out in the woods a couple of years ago”; (20) based on his experience and training, Young believed that the odor was not consistent with a dog's being buried over two years ago.

From these facts, the magistrate reviewing the affidavit could have reasonably inferred that the appellant knew or at least was familiar with Christina. She could also have reasonably inferred from the appellant's building of an unusually large fire that he was trying to dispose of something fairly large. This was especially true given that he rarely burned anything and a soft area of earth was discovered next to the burn pile. Given the foul odor, the affiant's reference to Young's “experience and training,” Hillard's question about whether the appellant had buried something in the recently disturbed area, and the appellant's response to that question, the magistrate could have reasonably determined that the appellant had buried a recently deceased body in that area. Finally, the magistrate could have inferred from the appellant's evasiveness and resistance to allowing the authorities to dig in that specific area, that he was trying to hide evidence of a crime from the authorities.

Given the facts and the reasonable inferences the issuing magistrate was allowed to draw therefrom, we cannot say that the magistrate was outside the zone of reasonable disagreement in determining that the affidavit contained sufficient probable cause to support the issuance of the search warrant. Ramos, 934 S.W.2d, at 364.

In the third part of his argument, the appellant argues that, even if there were probable cause to search the area of his burn pile, “the search of the house was nevertheless improper” because the affidavit in support of the warrant “made no suggestion that there was any belief that there was contraband or evidence of a crime within [his] home.” As with the first part of his argument, appellant never advanced this claim in his motion to suppress or in the hearing on his motion to suppress. Therefore, it is not preserved for our review.

Finally, in the fourth part of his argument, the appellant claims that the affidavit and search warrant failed to adequately describe the place to be searched. All that is required in describing a place to be searched is that there be sufficient definiteness in the description to enable an officer to locate the property and distinguish it from other places in the community. Etchieson v. State, 574 S.W.2d 753, 759 (Tex.Cr.App.1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1282, 59 L.Ed.2d 495 (1979). The description in the search warrant and supporting affidavit of the place to be searched was as follows: A white wood frame single story house on blocks surrounded by a chain link fence, with a front door and four windows on the front facade, immediately west of a mobile home and east of a private cemetery. The residence is located on an un-named dirt road approximately .2 miles North of Highway 105 and .2 miles East of the U.S. Post Office in Dobbin, Texas, a location within Montgomery County. The residence is known to be the residence of [the appellant]. This description was sufficient to allow officers to find the location on a map and to specifically distinguish this house from the surrounding residences. The trial court did not abuse its discretion in overruling the appellant's motion to suppress evidence. Point of error three is overruled.

Jury Charge at Guilt Stage

In his fourth point of error, the appellant claims that “the trial court committed egregious error in the jury charge because it failed to require a unanimous verdict to convict” him. Specifically, the appellant claims that the trial court's “instructions allow[ed] for a less than unanimous verdict on the aggravating element” because two alternative theories of capital murder were charged in the disjunctive; the charge allowed the jury to convict the appellant of murder in the course of kidnapping or murder in the course of aggravated sexual assault. In Kitchens v. State, this Court held that when the jury is charged with alternative theories of committing the same offense, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. 823 S.W.2d 256, 258 (Tex.Cr.App.1991), cert. denied, 504 U.S. 958 (1992). The appellant acknowledges our holding in this case but argues that the recent United States Supreme Court cases of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), require this Court to reevaluate our prior holding.

When a defendant is on trial for capital murder, and the State has announced its intention to seek the death penalty, the prescribed statutory maximum punishment is death. Apprendi and Ring both address issues that increase the statutory maximum punishment. A defendant found guilty of murder committed in the course of committing or attempting to commit kidnapping is just as subject to receiving the statutory maximum punishment of death as is a defendant found guilty of murder committed in the course of committing or attempting to commit aggravated sexual assault. Apprendi and Ring, therefore, do not apply. See Rayford v. State, 125 S.W.3d 521 (Tex.Cr.App.2003) (holding that Apprendi and Ring have no applicability to Code of Criminal Procedure Article 37.071, the capital murder sentencing statute, in its current form). Point of error four is overruled.

Jury Charge at Punishment Stage

Finally, in his eighth point of error, the appellant argues that “the trial court committed egregious error in failing to properly instruct the jury of the law at the punishment phase.” In particular, the appellant complains that the trial court should have defined the following words and phrases: mitigate, militate, moral blameworthiness, probability, criminal acts of violence, and continuing threat. He also claims that the judge erred in failing to include in the jury charge a burden of proof on the mitigation special issue. These issues have been previously raised in, and rejected by, this Court. See, e.g., Blue v. State, 125 S.W.3d 491(Tex.Cr.App.2003) (holding that the term “moral culpability” need not be defined); Resendiz v. State, 112 S.W.3d 541, 549-50 (Tex.Cr.App.2003) (holding that if there is no statutory definition of a term, the trial court is not obligated to define the term when it “has such a common and ordinary meaning that jurors can be fairly presumed to know and apply such meaning” and rejecting the claim that the mitigation special issue is infirm as a matter of federal constitutional law because it omits a burden of proof); Chamberlain v. State, 998 S.W.2d 230, 237-38 (Tex.Cr.App.1999) (holding that the trial court did not err in failing to define “probability,” “criminal acts of violence,” and “continuing threat to society”), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). Point of error eight is overruled.

We affirm the judgment of the trial court.

Green v. State, 374 S.W.3d 434 (Tex.Crim.App. 2012) (State Habeas)

Background: After defendant's capital murder conviction and death sentence were affirmed, 2004 WL 3094650, and his execution was scheduled, defendant applied for a writ of habeas corpus on the ground that he was incompetent to be executed. The 221st District Court, Montgomery County, K. Lisa Michalk, J., found that defendant was competent. Defendant appealed and applied for a writ of habeas corpus.

Holdings: The Court of Criminal Appeals, Womack, J., held that: (1) statute providing procedures for a competency-to-be-executed hearing did not deny procedural due process; (2) competency-to-be-executed claims are not cognizable on a writ of habeas corpus; (3) the appropriate standard to review a trial court's finding of a defendant's competency to be executed is whether the trial court abused its discretion; (4) trial court used the correct standard in determining capital defendant's competency to be executed; (5) trial court did not abuse its discretion in finding that capital murder defendant was competent to be executed; (6) order denying motion to recuse trial judge could be reviewed only on appeal from the final judgment determining defendant competent to be executed; and (7) regional presiding judge did not abuse his discretion in declining to recuse trial judge. Decision of District Court affirmed; application for habeas writ dismissed. Price, J., concurred and filed opinion in which Johnson and Alcala, JJ., joined.

Green v. Quarterman, 312 Fed.Appx. 635 (5th Cir. 2009) (Federal Habeas)

Background: Defendant convicted of capital murder petitioned for a writ of habeas corpus. The United States District Court for the Southern District of Texas, 2008 WL 442356, denied relief. Defendant appealed and sought a certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) defendant's due process rights were not violated by jury instructions, and (2) court lacked jurisdiction to consider defendant's claim of ineffective assistance. Ordered accordingly.

PER CURIAM:

Petitioner Jonathan Marcus Green, (“Green”), convicted of capital murder in Texas and sentenced to death, requests this Court to issue a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Green contends that his due process rights were violated at his trial because the instructions did not require the jury to unanimously determine which underlying felony it used to find that he committed capital murder. He also contends that his counsel rendered ineffective assistance by failing to object to the allegedly unconstitutional instructions. Finally, he contends that he is incompetent to be executed. Finding that Green has not made a substantial showing of the denial of a constitutional right, we DENY a COA. We DISMISS his claim of incompetency without prejudice because it is not yet ripe.

I. PROCEDURAL HISTORY

A Montgomery County, Texas grand jury returned an indictment charging Green with committing the intentional murder of 12 year-old Christina Neal while in the course of kidnaping and/or aggravated sexual assault. Tex. Penal Code § 19.03(a)(2).FN1 A jury convicted Green as charged, and the sentence imposed was the death penalty. The Texas Court of Criminal Appeals affirmed Green's conviction in an unpublished opinion. Green v. State, No. AP-74398, 2004 WL 3094650 (Tex.Crim.App. Dec. 1, 2004), cert. denied, 547 U.S. 1005, 126 S.Ct. 1465, 164 L.Ed.2d 251 (2006). Green applied for state habeas relief, and the trial court recommended denying relief. The Court of Criminal Appeals adopted the findings and conclusions of the trial court and denied the application. Ex parte Green, No. 61,225-01 (Tex.Crim.App. Mar. 23, 2005). Green then filed a federal petition for writ of habeas corpus, which the district court denied in a memorandum opinion and order. Green v. Quarterman, No. 4:07-CV-827, 2008 WL 442356 (S.D.Tex. Feb.15, 2008). The district court also denied a COA. Green now requests a COA from this Court.

FN1. Because resolving the claims presented in this COA does not require knowledge of the facts underlying the offense of capital murder, we do not recite them here.

II. STANDARD OF REVIEW

Green filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Pursuant to the federal habeas statute, as amended by AEDPA, we defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) “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.” 28 U.S.C. § 2254(d). A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).

Additionally, under AEDPA, a petitioner must obtain a COA before he can appeal the district court's denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029.

A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted).

III. ANALYSIS

A. Jury Charge

Green argues that his due process rights were violated because the instructions did not require the jury to unanimously determine which underlying felony it used to find that he committed capital murder.FN2 At Green's trial, the jury instructions provided that it could convict him of capital murder if it found that he intentionally murdered the victim in the course of committing or attempting to commit either (1) the offense of kidnaping or (2) the offense of sexual assault. FN2. Green also raises this issue as a Sixth Amendment violation. However, the right to a unanimous verdict “is more accurately characterized as a due process right than as one under the Sixth Amendment.” Schad v. Arizona, 501 U.S. 624, 634 n. 5, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion).

This claim is controlled by the Supreme Court's plurality opinion in Schad v. Arizona, and this Court's subsequent precedent applying Schad. 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality). In Schad, the jury was charged with the alternative theories of premeditated murder or felony murder. 501 U.S. at 630, 111 S.Ct. 2491. The petitioner contended that the instructions' failure to require the jury to unanimously agree whether he committed premeditated or felony murder violated his constitutional rights. Id. The Supreme Court explained that the relevant inquiry was not one of jury unanimity inasmuch as the jury had unanimously determined that the State had proved what it was required to prove pursuant to state law. Id. at 630-31, 111 S.Ct. 2491. Instead, the “petitioner's real challenge [was] to Arizona's characterization of first degree murder as a single crime as to which a verdict need not be limited to any one statutory alternative.” Id. The relevant inquiry therefore was whether Arizona's definition of capital murder ran afoul of the Constitution. Id. at 631, 111 S.Ct. 2491.

To resolve this issue, the opinion first looked to whether the legislature intended to create separate offenses or different means of committing a single offense. Id. at 636-37, 111 S.Ct. 2491. The opinion explained that if the state court had interpreted the statute and determined that the alternatives are means of committing a single offense, federal courts “are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.” Id. at 636, 111 S.Ct. 2491. The Arizona Supreme Court previously had determined that premeditation and felony murder were not separate elements but instead were means of “satisfying a single mens rea element.” Id. at 637, 111 S.Ct. 2491.

The next question posed by the opinion was whether Arizona's definition of the crime as a single offense violated due process. The plurality opinion expressly refused to formulate a “single test for the level of definitional and verdict specificity permitted by the Constitution.” Id. at 637, 111 S.Ct. 2491. Instead, the plurality opined that “our sense of appropriate specificity is a distillate of the concept of due process with its demands for fundamental fairness, [citation omitted], and for the rationality that is an essential component of that fairness.” Id. at 637, 111 S.Ct. 2491. The plurality explained that it would “look both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing” to determine whether the alternative mental states may permissibly “satisfy the mens rea element of a single offense.” Id. at 637, 111 S.Ct. 2491. After analyzing various state court precedents, the opinion found considerable historical evidence supporting Arizona's use of alternative mental states as means to satisfy the mens rea element of a single offense. The opinion further found that it could reasonably be concluded that the two mental states were moral equivalents. Id. at 644, 111 S.Ct. 2491. Ultimately, the opinion held that the jury instructions did not violate due process. Id. at 645, 111 S.Ct. 2491.

Green acknowledges the holding in Schad but nonetheless asserts that Justice Scalia's concurring opinion cast considerable doubt on the plurality's reasoning. Green further asserts that Justice Scalia's concurrence, which was narrowly based on historical grounds, effectively limited Schad either to its facts or to cases in which the jury is charged with the alternative mental states of premeditation and felony murder. Our precedent belies this assertion. In Reed v. Quarterman, the petitioner sought a COA based on his claim that “allowing the jury to convict him under two alternative theories without requiring unanimity as to one” violated due process. 504 F.3d 465, 479 (5th Cir.2007). Reed's jury had been instructed that it could convict him of capital murder if it found that he committed murder in the course of robbery or attempted robbery or in the course of attempted aggravated rape. Id. Reed argued that Schad did not apply because his jury charge actually described two separate offenses as opposed to two different means of committing the single offense of murder. Id. at 480. Applying Schad, this Court recognized that “numerous states have traditionally defined and continue to define first-degree or aggravated murder as including both a killing in the course of robbery and a killing in the course of rape or attempted rape.” Id. at 482. In fact, the Arizona statute at issue in Schad did so. Id. We further concluded that courts “could reasonably find a moral equivalence between murder in the course of robbery and murder in the course of attempted rape.” Id. Thus, we denied a COA, holding that reasonable jurists would not debate that the state court “reasonably applied Schad when it rejected Reed's challenge to his jury instructions.” Id. In view of this Court's precedent applying the plurality's reasoning, Green is precluded from demonstrating that whether Schad applies is debatable among jurists of reason.FN3 FN3. Green does not contend in the alternative that, if Schad applies, he has shown a substantial denial of a federal right. In any event, this Court has rejected this precise claim. See Manns v. Quarterman, 236 Fed.Appx. 908 (5th Cir.2007) (applying Schad to determine that the underlying offenses of robbery, kidnaping, or aggravated sexual assault were not separate elements of the Texas capital murder statute).

Green also argues that the Supreme Court overruled Schad in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Ring, the Supreme Court held that the Sixth Amendment right to jury trial was violated when a trial judge determines the presence of aggravating circumstances that are necessary for the imposition of the death penalty. In the instant case, however, the jury, not the trial judge, made the findings necessary for imposition of the death penalty. Also, Ring involved a Sixth Amendment challenge, and, as previously noted, the right to a unanimous verdict, which is Green's claim, “is more accurately characterized as a due process right than as one under the Sixth Amendment.” Schad, 501 U.S. at 634 n. 5, 111 S.Ct. 2491. Moreover, as discussed above, this Court has applied Schad subsequent to the Supreme Court's holding in Ring. Indeed, in Manns, although this Court was well aware of Ring, it applied Schad to the jury unanimity claim.FN4 FN4. This Court discussed Ring in analyzing the petitioner's claim that the mitigation issue unconstitutionally shifted the burden of proof. Manns, 236 Fed.Appx. at 913.

Tellingly, Ring does not cite to Schad, much less indicate that Schad is overruled. Instead, in Ring, the Supreme Court expressly “overrule[d] Walton [ v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) ] to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” 536 U.S. at 609, 122 S.Ct. 2428. Thus, we are not persuaded that Green has shown that it is debatable among jurists of reason whether Ring overruled Schad. We deny Green's request for a COA on this claim.

B. Ineffective Assistance of Counsel

Green contends that his trial counsel rendered ineffective assistance by failing to object to the above-challenged jury instruction. The Respondent contends that this claim is unexhausted. Although AEDPA allows federal courts to deny relief on an unexhausted claim, we cannot grant relief unless the State affirmatively waives the exhaustion requirement. See Mercadel v. Cain, 179 F.3d 271, 276-77 (5th Cir.1999); § 2254(b)(2) & (3). Nonetheless, we need not reach the question of exhaustion because, as explained below, we have no jurisdiction over the claim due to Green's failure to raise this particular claim in the district court. The Respondent also claims that because Green did not seek a COA before the district court on this particular ground of ineffective assistance of counsel, this Court is without jurisdiction to reach it. We agree. “Compliance with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal.” Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir.1998); Thompson v. Quarterman, 292 Fed.Appx. 277 (5th Cir.2008) (explaining that this Court lacked jurisdiction to consider petitioner's request for a COA with respect to a different claim of ineffective assistance that had not been presented to the district court).

In any event, even if we were to consider the instant claim of ineffective assistance to have been sufficiently raised before the district court, we would deny a COA. To establish ineffective assistance of counsel, Green must show (1) defense counsel's performance was deficient and (2) this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While “[j]udicial scrutiny of counsel's performance must be highly deferential,” Green can demonstrate deficient performance if he shows “that counsel's representation fell below an objective standard of reasonableness.” Id. at 688-89, 104 S.Ct. 2052. However, “[t]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” United States v. Webster, 392 F.3d 787, 793 (5th Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Strickland's “prejudice” prong requires a reasonable probability that, but for the deficient performance of his trial counsel, the outcome of his capital murder trial would have been different. 466 U.S. at 694, 104 S.Ct. 2052.

With respect to the first prong, Green has not shown that counsel's performance was deficient. As discussed above, the jury charge was not constitutionally infirm and therefore this objection would have been without merit. The failure to make meritless objections does not constitute deficient performance. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994). With respect to the second prong, Green is precluded from showing prejudice. In Reed, the petitioner's trial counsel did make this objection to the jury charge at trial. 504 F.3d at 480 n. 6. Nonetheless, as previously set forth, this Court denied a COA on the claim that the jury instruction was constitutionally infirm. Thus, Green is precluded from showing that, but for counsel's failure to object, there is a reasonable probability of a different outcome at trial.

C. Competency to be Executed

Green's counsel asserts that Green is incompetent to be executed because he has shown signs of severe psychosis. Nevertheless, Green's counsel acknowledges that this claim is not yet ripe because the State of Texas has not set an execution date. We therefore dismiss this claim without prejudice. See Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 2852, 168 L.Ed.2d 662 (2007); ShisInday v. Quarterman, 511 F.3d 514, 521-22 (5th Cir.2007), cert. denied, --- U.S. ----, 129 S.Ct. 62, 172 L.Ed.2d 25 (2008).

IV. CONCLUSION