Defendant was convicted in the 277th District Court, Williamson County, John R. Carter, J., of capital murder and was sentenced to death. On appeal, the Court of Criminal Appeals, Keller, P.J., held that: (1) as a matter of first impression, the defendant no longer had an objectively reasonable expectation of privacy in victim's apartment when police officer entered apartment nearly twelve hours after the tenant had asked him to move out; (2) rules of evidence, except with respect to privileges, do not apply in suppression hearings; (3) granting state's challenges for cause was permissible; and (4) juror's note asking for judge's permission to read definition of murder and Bible verses about killing and punishment to other jurors did not require a mistrial or an examination of the juror. Affirmed. Meyers, J., dissented and filed opinion.

The facts of this crime are particularly relevant to appellant's fifth point of error, which challenges the admission of evidence obtained at the crime scene, and his fourth point of error, which challenges the admissibility of certain statements by a police officer introduced at a hearing on appellant's motion to suppress the crime scene evidence.

Katherine Jiminez testified at trial and described appellant's actions in detail. She indicated that she first met appellant in 1993. The two became friends, spent time together socially, and dated for a short time. They parted ways soon thereafter, but remained in friendly contact. Katherine then married Anthony Jiminez in April of 1994, and on June 13, 1995, she gave birth to a son, Anthony. Katherine and her husband eventually separated, and in late 1997, she re-established a relationship with appellant, who then lived in New York.

In January of 1998, Katherine moved into an apartment of her own in Georgetown. In March, appellant visited her from New York. After another visit in July of 1998, appellant decided to return to Texas. Katherine and appellant agreed that they would live together until appellant got on his feet. In late August, he began living with Katherine and three-year-old Anthony in Katherine's apartment.

Less than a month later, on Sunday, September 13, 1998, Katherine, appellant, and Anthony returned to Katherine's apartment after having lunch at appellant's brother's house. Katherine and appellant were both supposed to go to work that evening. Katherine planned to drop Anthony off at her mother's house, where he would remain until Katherine could pick him up the next morning. Appellant wanted Katherine to join him in a nap that afternoon, but she refused, because she still needed to finish chores around the apartment and because she did not want to take a nap while Anthony was awake. Meanwhile, Anthony was in the living room watching television.

Appellant, angry that Katherine would not take a nap with him, knocked a plate of food from her hand. The two then retreated to the bedroom where they began arguing. At that point, Katherine told appellant, “I don't even want to talk to you anymore. I don't want to look at you. I don't want you to be around me... I don't want you here. Just get your things and leave.” Appellant said, “You want me to leave?” and Katherine said, “Yeah, I want you to leave.”

A brief cooling off period ensued, and the two began talking again. During this time, Katherine's sister Elizabeth called, but appellant said Katherine was busy and hung up the telephone. Katherine told appellant to “get his stuff and leave.” Katherine then repeated that she wanted him to leave. Appellant left the room, and when he came back asked again, “You want me to leave?” and she said that she did. Angered, appellant said, “Fuck it. Fuck it,” and attacked Katherine with a knife.

He stabbed her repeatedly and slashed her throat. Then, apparently, the knife broke. Katherine struggled and attempted to placate appellant by telling him that she loved him. Eventually, appellant began crying, afraid that he would go to jail. Katherine said that she would contrive a false story about her injuries if appellant would simply leave.

Katherine tried unsuccessfully to telephone the police and to escape, but appellant caught her and dragged her to the kitchen. He stabbed her again repeatedly, and she feigned death. Appellant left the kitchen, and Katherine heard Anthony scream, “I don't want to die. Don't kill me. I don't want to die.” Stabbed in the chest, Anthony died within moments. Later, Katherine heard her sister and her nephew outside the apartment.

Afraid appellant would finally kill her if she screamed for help, however, she remained silent. Appellant stayed active throughout the night. He came to the kitchen where Katherine lay and showed her that he had slashed his wrists, stating, “Look, I'm going to die with you.” Later, he telephoned his father. Several hours later, believing that her death was imminent, Katherine dragged her body toward her son, wanting to die by his side.

Meanwhile, Katherine's family became worried that they had not heard from her, that she had not arrived for work, and that she had not left Anthony with her mother at the regularly scheduled time. Elizabeth Ojeda, one of Katherine's sisters, testified that, after she called Katherine's apartment, left messages on her answering machine, visited the apartment, and received no response to her knock, Ojeda telephoned the apartment manager and Georgetown Police.

Early Monday morning, two officers visited the apartment on a welfare concern call. Corporal Gregory Brunson testified that he noticed both Katherine's and appellant's vehicles in the parking lot of the apartment complex. He also confirmed information about who was paying utilities at Apartment 3206, Katherine's apartment. Corporal Brunson and Officer Vasquez approached the apartment door and knocked, but received no response and heard no noise inside the apartment. Corporal Brunson did not see any lights and could not see inside the apartment windows when looking from the north side of the building.

Officer Vasquez telephoned the apartment but received no answer. Upon a request from the officers, the apartment manager arrived with a key but was unable to enter the apartment because of an interior deadbolt. At this point, seeing no other means of opening the door, Corporal Brunson telephoned the fire department for assistance. Three firefighters arrived with what Corporal Brunson described as a doorjamb spreader, which is used to open deadbolted doors. After approximately five minutes, the firefighters opened the apartment door.

Upon entering the apartment, one of the firefighters exclaimed that appellant had a knife. Corporal Brunson drew his revolver, approached the door, and saw appellant, whose right hand was initially hidden. In response to Corporal Brunson's orders, appellant raised his right hand, in which he held a large kitchen knife covered in blood.

After ordering appellant out of the apartment, Corporal Brunson repeatedly asked appellant to release the knife. Appellant eventually did so and Corporal Brunson handcuffed him. Inside the apartment, Corporal Brunson saw Anthony's body, Katherine's bloody arms protruding from beyond a chair, and blood stains covering the carpet and walls near the kitchen. Once the officers determined that no one else was in the apartment, they allowed medical personnel to enter and begin treating Katherine, who said to Corporal Brunson, “He killed my baby, and I have been waiting for you to come.”

* * *

As we synthesize these cases, then, it is clear to us that an overnight guest's expectation of privacy is affected by the host's ability to control the use of the premises and the period of time that a guest will be permitted to stay. And as Olson and other leading Fourth Amendment decisions dictate, we must consider not simply whether appellant had some subjective privacy interest in the premises (he almost always will), but whether, once he had been instructed to gather his belongings and leave the premises, society would view his claim of privacy as reasonable.FN23

The cases indicate that our social traditions-that is, the customs and habits that characterize the relationship of guest and host in our culture-do not favor such a broad and charitable view of the reasonableness of one's expectation of privacy. Accordingly, we hold that once a person has been asked to leave the premises by one with authority to exclude him, and where that person has a reasonable opportunity to gather his personal effects prior to leaving, any expectation of privacy that he maintains in the premises is no longer one that society would view as reasonable.

Katherine asked appellant on several occasions to leave her apartment. Appellant, moreover, understood this request, for it was precisely this request that appeared to inflame him prior to his attack on Katherine and Anthony. Katherine gave appellant several opportunities to gather his belongings and vacate the apartment before the attack, and nearly twelve hours passed between the time Katherine asked him to leave and the time of the police intrusion.

Appellant took normal precautions to protect his privacy (such as locking the front door and ignoring visitors) and he put the place to some private use. Nevertheless, aside from keeping his belongings in the apartment and establishing phone service in his name, appellant had no other property or possessory interest in the apartment itself; because he had been asked to leave, he was not legitimately in the apartment when the search occurred; he did not have dominion over the apartment with the right to exclude others; and, as we have explained in detail, his claim is not consistent with historical notions of privacy.

Given these facts, appellant has failed to meet his burden of showing that his expectation of privacy was objectively reasonable. Appellant therefore lacks standing to challenge the search of the apartment and his fifth point of error is overruled.

* * *

Background: Following affirmance of his state court capital murder conviction and death sentence, 85 S.W.3d 217, and denial of state habeas relief, petitioner sought federal habeas corpus relief. The United States District Court for the Western District of Texas, Lee Yeakel, J., denied relief, and petitioner appealed.

Holdings: The Court of Appeals, Patrick E. Higginbotham, Circuit Judge, held that:
(1) defense counsel's decision to introduce expert testimony on issue of future dangerousness that included testimony about race or ethnicity as factor predictive of future dangerousness was reasonable trial strategy, and thus did not amount to ineffective assistance of counsel, and
(2) mitigation issue in capital proceedings, under Texas law, did not violate defendant's Sixth Amendment rights on ground that state was not required to prove absence of mitigating circumstances beyond a reasonable doubt. Affirmed.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Sentenced to death in Williamson County, Texas, Carlos Granados appeals from a final judgment of the United States District Court, Western District of Texas, denying his petition for writ of habeas corpus claiming constitutional error in his conviction and death sentence. I The Texas Court of Criminal Appeals affirmed the conviction on direct appeal FN1 and the Supreme Court denied certiorari.FN2 Granados's ensuing petition for state habeas relief was denied by the Texas Court of Criminal Appeals in a per curiam order adopting the findings of the state trial Judge. FN3

The present federal proceeding followed. On recommendation of a federal magistrate judge, the district court dismissed Granados's petition and denied a certificate of appealability. We granted a COA on two issues, received full briefing, and heard oral argument. The two issues are: FN1. Granados v. State, 85 S.W.3d 217 (Tex.Crim.App.2002). FN2. Granados v. Texas, 538 U.S. 927, 123 S.Ct. 1578, 155 L.Ed.2d 321 (2003). FN3. Ex parte Granados, No. 51,135-01 (Tex.Crim.App.2002) (unpublished).

1.

Whether Granados was denied his Sixth Amendment right to constitutionally effective counsel during the punishment phase of trial because counsel allowed her own expert witness, Dr. Walter Quijano, to testify concerning race or ethnicity; and 2. Whether Granados's Sixth Amendment rights under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), were violated because the State was not required to prove beyond a reasonable doubt a negative answer to the mitigation special issue. We now affirm the denial of federal habeas relief.

II

The Texas Court of Criminal Appeals set out the facts of the crime:

Katherine Jiminez testified at trial and described appellant's actions in detail. She indicated that she first met appellant in 1993. The two became friends, spent time together socially, and dated for a short time. They parted ways soon thereafter, but remained in friendly contact. Katherine then married*532 Anthony Jiminez in April of 1994, and on June 13, 1995, she gave birth to a son, Anthony. Katherine and her husband eventually separated, and in late 1997, she re-established a relationship with appellant, who then lived in New York. In January of 1998, Katherine moved into an apartment of her own in Georgetown.

In March, appellant visited her from New York. After another visit in July of 1998, appellant decided to return to Texas. Katherine and appellant agreed that they would live together until appellant got on his feet. In late August, he began living with Katherine and three-year-old Anthony in Katherine's apartment.

Less than a month later, on Sunday, September 13, 1998, Katherine, appellant, and Anthony returned to Katherine's apartment after having lunch at appellant's brother's house. Katherine and appellant were both supposed to go to work that evening. Katherine planned to drop Anthony off at her mother's house, where he would remain until Katherine could pick him up the next morning.

Appellant wanted Katherine to join him in a nap that afternoon, but she refused, because she needed to finish chores around the apartment and because she did not want to take a nap while Anthony was awake. Meanwhile, Anthony was in the living room watching television.

Appellant, angry that Katherine would not take a nap with him, knocked a plate of food from her hand. The two then retreated to the bedroom where they began arguing. At that point, Katherine told appellant, “I don't even want to talk to you anymore. I don't want to look at you. I don't want you to be around me ···· I don't want you here. Just get your things and leave.” Appellant said, “You want me to leave?” and Katherine said, “Yeah, I want you to leave.” A brief cooling off period ensued, and the two began talking again. During this time, Katherine's sister Elizabeth called, but appellant said Katherine was busy and hung up the telephone. Katherine told appellant to “get his stuff and leave.” Katherine then repeated that she wanted him to leave.

Appellant left the room, and when he came back asked again, “You want me to leave?” and she said that she did. Angered, appellant said, “Fuck it. Fuck it,” and attacked Katherine with a knife. He stabbed her repeatedly and slashed her throat. Then, apparently, the knife broke. Katherine struggled and attempted to placate appellant by telling him that she loved him. Eventually, appellant began crying, afraid that he would go to jail. Katherine said that she would contrive a false story about her injuries if appellant would simply leave.

Katherine tried unsuccessfully to telephone the police and to escape, but appellant caught her and dragged her to the kitchen. He stabbed her again repeatedly, and she feigned death. Appellant left the kitchen, and Katherine heard Anthony scream, “I don't want to die. Don't kill me. I don't want to die.” Stabbed in the chest, Anthony died within moments. Later, Katherine heard her sister and her nephew outside the apartment.

Afraid appellant would finally kill her if she screamed for help, however, she remained silent. Appellant stayed active throughout the night. He came to the kitchen where Katherine lay and showed her that he had slashed his wrists, stating, “Look, I'm going to die with you.” Later, he telephoned his father. Several hours later, believing that her death was imminent, Katherine dragged her body toward her son, wanting to die by his side. *533

Meanwhile, Katherine's family became worried that they had not heard from her, that she had not arrived for work, and that she had not left Anthony with her mother at the regularly scheduled time. Elizabeth Ojeda, one of Katherine's sisters, testified that, after she called Katherine's apartment, left messages on her answering machine, visited the apartment, and received no response to her knock, Ojeda telephoned the apartment manager and Georgetown Police.

Early Monday morning, two officers visited the apartment on a welfare concern call. Corporal Gregory Brunson testified that he noticed both Katherine's and appellant's vehicles in the parking lot of the apartment complex.

He also confirmed information about who was paying utilities at Apartment 3206, Katherine's apartment. Corporal Brunson and Officer Vasquez approached the apartment door and knocked, but received no response and heard no noise inside the apartment. Corporal Brunson did not see any lights and could not see inside the apartment windows when looking from the north side of the building.

Officer Vasquez telephoned the apartment but received no answer. Upon a request from the officers, the apartment manager arrived with a key but was unable to enter the apartment because of an interior deadbolt. At this point, seeing no other means of opening the door, Corporal Brunson telephoned the fire department for assistance. Three firefighters arrived with what Corporal Brunson described as a doorjamb spreader, which is used to open deadbolted doors. After approximately five minutes, the firefighters opened the apartment door.

Upon entering the apartment, one of the firefighters exclaimed that appellant had a knife. Corporal Brunson drew his revolver, approached the door, and saw appellant, whose right hand was initially hidden. In response to Corporal Brunson's orders, appellant raised his right hand, in which he held a large kitchen knife covered in blood. After ordering appellant out of the apartment, Corporal Brunson repeatedly asked appellant to release the knife.

Appellant eventually did so and Corporal Brunson handcuffed him. Inside the apartment, Corporal Brunson saw Anthony's body, Katherine's bloody arms protruding from beyond a chair, and blood stains covering the carpet and walls near the kitchen. Once the officers determined that no one else was in the apartment, they allowed medical personnel to enter and begin treating Katherine, who said to Corporal Brunson, “He killed my baby, and I have been waiting for you to come.”

* * *

In recommending that habeas relief be denied, the state trial judge made explicit findings that neither of the two defense counsel nor the state's attorney made any mention of race or ethnicity or “suggested in any manner that a decision on future dangerousness should be based on race or ethnicity.” He rejected Granados's Strickland claim, persuaded that trial counsel “exercised reasonable judgement in deciding to use Dr. Quijano as an expert witness on the special issues of mitigation and future dangerousness.”

Turning to the reasonableness of counsel's strategy, we think it plain that counsel considered carefully how best to present the sentencing case, a difficult task considering the violent character of the crime. Counsel first retained a psychiatrist and psychologist, Dr. Cantu and Dr. Parker, to examine Granados and testify as experts regarding the probability of Granados committing violent acts in the future. Then counsel changed course, concluding that their testimony might be more harmful than helpful, a shift that led to the accused strategy. There is nothing to fault this initial decision not to continue with Drs. Cantu and Parker.

To the contrary, that counsel must look at every witness he would call as a potential witness for the state is etched in the brain of every experienced trial lawyer and here there was more. By not offering expert testimony based on an examination of Granados, counsel cut off the state's opportunity to have its expert examine Granados and offer testimony. And when defense counsel informed the court that any expert testimony from the defense would not rest on examination by an expert witness, the court denied a pending state motion for examination of Granados by a state expert.

But counsel made a second and larger tactical decision than simply dropping two witnesses. They chose to change their approach at trial to future dangerousness-inevitably a brooding concern of jurors and most often the point of engagement between the prosecutor and defense. They elected to offer the jury clinical and statistical data on the question of future dangerousness in an effort to have the case viewed in those terms rather than remain focused on Granados and his bloody assaults, accented by the prosecution.

The decision by counsel to approach the question in the relatively oblique and impersonal terms of a quantitative presentation lay at the heart of their trial strategy. It included facing the reality that blacks and latinos had a disproportionate presence in the state prisons, a social phenomenon about which counsel could not assume the jury was ignorant.

This approach led directly to the hiring of Dr. Quijano, a clinical psychologist with a subspecialty in correctional psychology. He was prepared to speak about the statistics of recidivism, as well as prison life and conditions. And, with the use of hypothetical questions, Dr. Quijano was able to *536 relate the data to the life and conduct of Granados. And as we have noted, this approach avoided the necessity of personal testing and examination, the door opener to examination by experts engaged by the State. Dr. Quijano fit the bill. He had worked for federal and state prison systems and testified in about 90 capital murder cases, dividing his work evenly between State and defense. To the point, Dr. Quijano presented the case in quantitative terms more in the manner of clinical disinterest and less in the manner of subjective commentary and evaluation of Granados. FN9

FN9. Context is everything when evaluating Strickland claims. The use of Dr. Quijano's testimony here is very different from the situation in which he testified for the State and expressly linked the defendant's race to the likelihood of future dangerousness, cases in which the State confessed error. See, e.g., Saldano v. Roach, 363 F.3d 545, 549 (5th Cir.2004) (describing how Quijano “opined that there was a correlation between race and ethnicity and future dangerousness,” noting that the prosecutor “reminded the jury to consider the twenty-four factors laid out by Quijano,” and noting how the Attorney General of Texas confessed error, requiring resentencing); see also id. at 549 n. 2 (collecting other cases in which Quijano testified for the state and injected race into the proceedings).

Viewed through the AEDPA lens, we cannot conclude that the state court's application of Strickland and rejection of the claim of ineffective assistance of counsel was unreasonable. These are difficult and nuanced decisions the trial lawyer must make. That they were not successful does not make them unreasonable. We are not persuaded that these tactical decisions introduced an impermissible use of race or ethnicity or were otherwise objectively unreasonable. We reject the claim of ineffective assistance of counsel.

Granados urges that the Texas mitigation issue is constitutionally flawed in that it does not require the State to prove beyond a reasonable doubt the absence of mitigating circumstances. As we understand the argument, this is because the absence of mitigating evidence is an aggravating circumstance whose presence increases the maximum punishment for capital murder from life to death.

The state replies, first, that this claim was never presented to the state courts and is procedurally defaulted. We will not pause to address this contention because we are persuaded that the claim is without merit and must be denied. Under AEDPA, we can deny unexhausted claims although we could not grant relief.

All the elements of capital murder were put to the jury with instruction that the evidence had to persuade them beyond a reasonable doubt. No finding by the judge was required to expose Granados to the death penalty. And the jury was instructed that it could give an affirmative answer to the special issues submitted to the jury in the sentencing phase, including future dangerousness, only if certain of their answer beyond a reasonable doubt. Finally, there is no contention in this case that Granados's evidence of mitigation could not find expression in the jury's answer to the question of future dangerousness.

In sum, the state was required to prove beyond a reasonable doubt every finding prerequisite to exposing Granados to the maximum penalty of death. We are not persuaded that Texas violated any principle of Apprendi or Ring in the trial of this case. Specifically, it did not do so by not asking the jury to find an absence of mitigating circumstances beyond a reasonable doubt in addition to questions it *537 required the jury to answer.FN10 Put another way, a finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death. FN10. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

Accordingly, we affirm the decision of the district court denying relief and dismissing the petition for habeas corpus.