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Classification: Murderer
Characteristics: Kidnapping - Rape - Robbery
Number of victims: 1
Date of murder: November 17, 1983
Date of arrest: 4 days after
Date of birth: November 15, 1956
Victim profile: Rosalind Robison, 24 (University of Texas student)
Method of murder: Shooting (.25-caliber pistol)
Location: Williamson County, Texas, USA
Status: Executed by lethal injection in Texas on May 4, 2000


Jackson and his accomplice, James Otis Clary, met in a halfway house, where they discussed stealing a car to commit future robberies.

They left the halfway house on November 17, 1983 and later that night staked out the parking lot at the University of Texas campus in Austin.

As UT student Rosalind Robison got in her car, Jackson and Clary forced her inside and drove away in her car. They drove to a bank and used her ATM card for $50, then took turns raping her as they drove.

According to Clary, because he used Jackson's name in the presence of Rosalind, she was executed. Clary and Jackson took Rosalind from the car, with her hands bound, and led her near a gravel pit where she was shot at point blank range in the back of the head by Jackson.

After Jackson tried to hide the body by covering it with loose gravel, he and Clary left the scene in Rosalind's car. Jackson kept the car until he was arrested four days later.

When Jackson was arrested, police found Rosalind's ATM card in the car. Pubic hairs removed from the back seat of Rosalind Robison's car, matched Jackson's pubic hair. Finger prints found on Rosalind's personal effects, recovered from the trunk of the car, were also identified as Jackson's.

Jackson had a 1997 conviction for federal bank robbery (10 years); 1982 conviction for burglary of auto (4 years). Accomplice James Otis Clary pled guilty, testified against Jackson, and was sentenced to life imprisonment.


Texas Attorney General

Media Advisory


Wednesday, May 3, 2000.

AUSTIN - Texas Attorney General John Cornyn offers the following information on Tommy Ray Jackson who is scheduled to be executed Thursday, May 4, after 6 p.m.:


In the late evening hours of November 17, 1983, Tommy Ray Jackson and his accomplice, James Clary, kidnapped University of Texas student Rosalind Robison from the parking lot of the Petroleum Engineering Building on the U.T. campus in Austin.

After being kidnapped and sexually assaulted she was driven in her car to Williamson County where she was shot in the head at close range by Jackson. Her body was discovered in a gravel pile one month later.

Jackson and James Clary met at the Dismas Halfway House in Austin, where they had discussed stealing a car to be used in future robberies. On the morning of November 17, 1983, Jackson and Clary left the Dismas Halfway House.

After spending much of the day at various locations in East Austin, the two began searching for a car to steal. Jackson had a weapon, and the two carefully looked at several locations in the vicinity of the University of Texas campus, and ultimately decided to look on the campus itself.

Between 11 p.m. and midnight, Clary and Jackson focused their attention on the parking lot next to the Petroleum Engineering Building located on U.T. campus. They spotted Rosalind walking toward her car. Using their weapon, they kidnapped Rosalind and drove away in her white Oldsmobile Delta 88.

After discovering that Rosalind had no money, they went to the nearest ATM, and got some cash with Rosalind's ATM card. They then proceeded north on IH-35, during which time Jackson raped Rosalind in the back seat of the car. They exited IH-35 in Williamson County, and stopped in a remote area where Clary had sexual intercourse with the victim.

According to Clary, because he used Jackson's name in the presence of Rosalind, she was executed. Clary and Jackson took Rosalind from the car , with her hands bound, and led her near a gravel pit where she was shot at point blank range in the back of the head by Jackson.

After Jackson tried to hide the body by covering it with loose gravel, he and Clary left the scene in Rosalind's car. Jackson kept the car until he was arrested.

Rickey Johnson, an acquaintance of Jackson and Clary, who lived within blocks of the Dismas Halfway House, testified that sometime prior to Thanksgiving in November of 1983, Jackson was looking for a gun and that he (Rickey Johnson) rented Jackson a gun for twenty dollars. This gun was returned to Rickey Johnson after Thanksgiving by his brother, James Johnson.

After Jackson was arrested, Rickey found out that the Austin police were looking for the gun. Initially, when a homicide investigator with the Austin Police Department contacted Rickey, he said he didn't know anything about the gun and tried to hinder the police probe by hiding the gun in a local storm drain.

Ultimately, however, Rickey Johnson led homicide investigators to the weapon where they retrieved it from the sewer. Rickey's brother, James, testified and admitted that he received the weapon from Clary after Thanksgiving and returned it to Rickey.

Ronald D. Richardson, a DPS firearms expert, conducted a ballistic examination on the bullet removed from Rosalind's body, and testified that it was fired from the handgun Jackson had rented from Rickey Johnson.

Maria Salazar, the roommate of Rosalind, informed the jury that on the evening that Rosalind disappeared she was wearing a gold Seiko watch, with a small white face, and little safety link chain. Additionally, she confirmed that Rosalind kept in the trunk of her automobile a tool kit, blanket and orange towel in case of a road emergency.

Pam McKinney, a female acquaintance of both Jackson and Clary, said that she had met Jackson some six months prior to his arrest. Further, she reported that neither Jackson nor Clary owned a car; however, on the Friday morning prior to Jackson's arrest, Jackson and Clary showed up at McKinney's home in a white Oldsmobile.

At that time Jackson drove McKinney to various locations in Austin, during which time she noticed a lady's purse in the front passenger area of the vehicle. She also testified that Jackson was in possession of a lady's gold Seiko watch and had tried to give it to her sister, Linda Lindly.

In addition, she witnessed Jackson the next morning wash his face with an orange towel he had taken from the vehicle. McKinney later turned the towel over to police investigators.

Linda Lindly, Pam McKinney's sister, who also lived with her at the East Austin address, testified that on November 18, 1983, she had Jackson take her to a local clinic, and as transportation Jackson was driving a white Oldsmobile Delta 88.

While in the vehicle she spotted a brown purse on the front floor board; Jackson informed her that the purse "belonged to the friend's wife who had loaned him the car." Her testimony also revealed that on the weekend following Rosalind Robison's disappearance, Jackson was freely spending money buying "beer, liquor, food, weed and whatever we asked for."

Ms. Lindly partially confirmed McKinney's testimony in that she also testified that Jackson had requested that she keep a gold Seiko watch with a safety chain. Lindly, however, refused the request.

Moreover, Lindly witnessed Clary in possession of a small caliber handgun identical to the murder weapon. Anita Hall, the passenger in the vehicle at the time of Jackson's arrest, testified that when she first met Jackson he had no car; but that three days later he was driving the white Oldsmobile.

When Jackson was arrested by officers of the Austin Police Department, a checkbook was found that contained Rosalind's ATM card.

Republic Bank of Austin confirmed that Rosalind held an account with the bank and had been issued an ATM card. The bank also revealed that on November 17, at 11:39 p.m., a $50 withdrawal was transacted with the card on an ATM in Austin.

Pubic hairs removed from the back seat of Rosalind Robison's car, matched Jackson's pubic hair. Finger prints found on Rosalind's personal effects, recovered from the trunk of the car, were also identified as Jackson's.


On February 10, 1984, Jackson was indicted in the 277th District Court of Williamson County, Texas, for the capital murder of Rosalind Robison while in the course of committing and attempting to commit the offenses of robbery, kidnapping, and aggravated sexual assault, which occurred on November 17, 1983.

Jackson was tried before a jury upon a plea of not guilty, and on December 3, 1984, the jury found him guilty of the capital offense.

On December 4, 1984, following a separate punishment hearing, the jury answered affirmatively the two special sentencing issues submitted and sentenced Jackson to death.

Jackson's conviction and sentence was automatically appealed to the Texas Court of Criminal Appeals, and it was affirmed on February 3, 1988. Jackson then petitioned the United States Supreme Court for writ of certiorari, which the Supreme Court denied on June 3, 1988.

Jackson filed an application for habeas corpus relief in the trial court on October 17, 1988. The trial court held an evidentiary hearing, and on November 17, 1994, the court issued findings of fact and conclusions of law, followed by supplemental findings and conclusions on August 31, 1995, recommending that relief be denied.

The Court of Criminal Appeals denied relief based on the trial court's findings and conclusions on October 2, 1996.

On October 17, 1996, Jackson filed a petition for writ of habeas corpus in the United States District Court for the Western District of Texas, Austin Division. The district court denied habeas relief on August 10, 1998, but granted permission to appeal on October 8, 1998.

The United States Court of Appeals for the Fifth Circuit affirmed the district court's denial of habeas corpus relief on October 29, 1999. Jackson's petition for writ of certiorari was denied by the Supreme Court on March 20, 2000.


Ivory Tealer, Jackson's cousin, testified that he and Jackson, along with another individual, used a shotgun to burglarize the house of Wilbur Woods in Luling, Texas, three years prior to Jackson's murder trial.

During the burglary, the men confronted Woods; one held a gun on Woods while another ransacked the house, eventually shoving Woods's 10 year-old son with a shotgun and holding it to the back of his head. The family was then forced into a closet while the men robbed the house.

A former bank president also testified to details of an armed robbery of his bank by two men, for which Jackson was convicted.

The witness, the bank president's son, a teller, and a customer were ordered to go inside the bank and get down on their knees with their hands held up, while one of the men held a gun on them.

The witness was then ordered to open the safe in the vault. After taking the money, the men ordered the four victims into the vault and shut the door.

The man's son, who also worked at the bank, stated that it was Tommy Ray Jackson who pulled a pistol on him. Jackson was also convicted of burglary of a vehicle in Guadalupe County. In addition, Jackson was convicted of theft by check on a prior occasion.


There was no evidence of drug or alcohol use connected with the instant offense.

If this execution is carried out, it will be the 212th execution since executions resumed in Texas in December 1982 and the 48th since General Cornyn took office. This is being handled by Assistant Attorney General Katherine Hayes in the Capital Litigation Division.

Tommy Jackson was sentenced to death for the November 17, 1983 kidnapping and murder of Rosalind Robison. Rosalind was a 24-year-old student at the University of Texas, from Terre Haute Indiana.

She was an engineering student and was kidnapped from the campus and forced to withdraw money from an ATM machine. She was then taken to a rural area between Pflugerville and Round Rock where she was shot once in the head with a .25-caliber pistol. Her body was found nearly a month later, buried under a pile of gravel.

Jackson was arrested 4 days after the murder outside a grocery store in Austin, driving Rosalind's car.

In April of 1977, Jackson had been sentenced to 10 years in the Federal penitentiary for bank robbery and was released on parole after serving only three years.

He was sent to prison in Texas in February of 1982 for a burglary of a motor vehicle charge and was paroled after serving one year of a four-year sentence. "He literally put the girl on her knees, bound her hands behind her, put the bullet through her head and goes to a party," said Williamson County District Attorney Ken Anderson. "He's the most cold-blooded, most evil, most psychopathic killer I've ever seen."


Last Statement of Tommy Ray Jackson

Yes sir, I would like to address the Robinson family. There is nothing I can say here or anything I could probably do. Now you are all probably mad at me and I would probably be in the same situation you all in if anybody I thought killed anybody in my family ahh. If I knew who killed Rosalyn I would let you know, but, I am going to say this: I am going to heaven with God as my witness. Ros was a personal friend of mine. She was a beautiful person, very educated, her. I'm very tight with the Robinson family. She was proud that she had a father that was a doctor. My family is not here present and that is by my wish and my wish only. Now the tables is turned. You are all here, the Robinson family is her to see me executed. That is something that I would not want for my family. In no form or fashion would I have ever want to see Rosalyn dead. I left the scene of where the incident happened. I guarantee you if I would have been there you would not be standing where you are if I would have been there. You all have some very serious look on your face and something very serious fixin' to happen now. I will say this on my own behalf but then again I know it is not going to make any difference but what you fixing to witness is not a nice thing. It's not nice. It's not nice. The media. I would just like to address to the media with everybody's permission. I would like to say before I go that it has been said that I have shown no remorse, but if you look at my record and my background, ask anybody that know me that in order for me to show any kind of remorse for killing that ever been done, this one time I can't show no remorse for something that I did not do and if I did I would be faking. I would totally be faking and believe me there is nothing fake about me. Nothing fake. I've done wrong, sure, I've paid the time. This is one time that I know I cannot show no remorse for something that I did not do. I am at peace, please believe me. Wherefore, I figure that what I am dying for now is what I have done in my past. This is what I am dying for. Not for killing Rosalyn. I don't know what ya'll call her but I call her Ros, I call her Ros. That's it.


Texas Executes Man for 1983 Rape-Murder

Twice-Paroled Robber Denies Killing

APBNews Online

May 5, 2000

HUNTSVILLE, Texas (AP) -- A twice-paroled bank robber and burglar became the 13th person put to death in Texas this year when he was executed for the 1983 shooting death of a University of Texas student.

Tommy Ray Jackson, 43, insisted he was innocent of the murder of 24-year-old Rosalind Robison, although he was arrested driving her car and was carrying her automated bank teller card. "I cannot show any remorse for something I did not do," he said in his final statement. "If I did, I'd be faking, and there's nothing fake about me."

Evidence showed Jackson and a companion, James Clary, disabled an alarm to escape an Austin halfway house where both were sent following their parole from prison.

Shot victim in the head

The victim, an engineering student from Terre Haute, Ind., was emerging from a building late at night when she was abducted, forced to withdraw money from an automated teller machine, raped in her car and driven to a rural area.

She was shot once in the head. "He literally put the girl on her knees, bound her hands behind her, put the bullet through her head and goes to a party," said Williamson County District Attorney Ken Anderson. "He's the most coldblooded, most evil, most psychopathic killer I've ever seen." Clary testified against Jackson and received a life prison term.

Jackson was the 13th inmate executed in Texas this year and the first of seven scheduled for this month.


Man Executed for 1983 Rape-Slaying of UT Student

By Michael Graczyk - Associated Press

May 4, 2000

HUNTSVILLE - After a lengthy final statement, a twice-paroled bank robber and burglar who fled from an Austin halfway house was executed Thursday evening for abducting, raping and fatally shooting a University of Texas student more than 16 years ago.

Tommy Ray Jackson, 43, insisted to the end that he was innocent of the Nov. 17, 1983, murder of 24-year-old Rosalind Robison although he was arrested driving her car and was carrying her automated bank teller card. He claimed the two were friends.

"I cannot show any remorse for something I did not do,'' he said before being injected with the lethal dose of drugs. "If I did, I'd be faking, and there's nothing fake about me. I'm at peace. Please believe me. I figure that what I'm dying for is for what I've done in my past, not for killing Roz.''

He looked directly at her father through a window a few feet away and said, "I called her Roz.'' There was no reaction from Dr. Roger Robison.

As the drugs began to take effect, Jackson whistled and sputtered. Just after he slipped into unconsciousness, thunder rumbled outside the Huntsville unit.

The time of death was 6:24 p.m. Jackson is the 13th condemned Texas inmate to receive lethal injection this year and the first of six scheduled for this month. Two more prisoners are set to die next week.

Evidence showed Jackson and a companion, James Clary, disabled an alarm at an east Austin halfway house where both were sent following their parole from prison and wound up on the University of Texas campus.

Robison, an engineering student from Terre Haute, Ind., was emerging late at night from a building where she had gone to retrieve some notes when she was abducted, forced to withdraw money from her bank's ATM machine, raped in her car and driven north of the city to a rural area of Williamson County. She was shot once in the head with a .25-caliber pistol Jackson rented from an Austin street vendor.

Witnesses said Jackson spent the money freely later that night and over the weekend. Four days later he was arrested driving her car. It wasn't until a month later that Robison's body was found in a gravel pile.

"He literally put the girl on her knees, bound her hands behind her, put the bullet through her head and goes to a party,'' Williamson County District Attorney Ken Anderson, who helped prosecute Jackson, said this week. "He's the most cold-blooded, most evil, most psychopathic killer I've ever seen.''

Clary, who turned 45 Wednesday, received a life prison term and testified against Jackson. When Robison failed to return home, her roomate reported her missing. Four days later, police pulled over her car with Indiana license plates. Jackson was behind the wheel.


Tommy Jackson Homepage

Please read carefully. I'll say in advance "Thank you". The year is 1984 in the county of Williamson in the State of Texas (death row capital of the world). I was then and there subjected to a capital murder trial by two (2) lawyers Jim Bob Brookshire and Don Higginbottom (both for the death penalty) were the individuals who represented me.

When the jury was picked I was to have my fate decided by a meteorologist, plumber, truck driver, housewife, store clerk, just to mention some of the 12 perspective jurors. Notice when faced with a capital case there is a life or death situation.

Please beware hte humanity thing to do would be to have people qualified to deal with a life or death situation. Life and death is very, very serious business, why would someone put in the hand of an unqualified person someone life or death decision ?

When a hurricane is about to hit an area the mayor or the governor will call out the fire department, police, road construction crew (just to name a few) to handle the situation because they are faced with human lives. Now why couldn't I have had some people that was qualified to make a decision upon my life. faced with a death penalty is a very, very serious scenario.

By having people more qualified to be on a jury when there is a life or death situation would most like have a more positive ending on the verdict that will be rendered.

What I would like to see is something like or close to having a total of 12 jurors from a law school. Lets say they are in the 4th or graduate level of the law degree. Now these individuals would be more qualified to know and be able to recite the law as the trial goes forth. Unlike housewife, plumbers cooks, construction workers. From reading the above I would like to say I was a victim of court abuse on the highest levels.

There were numerous amounts of people lying, not knowing what they were talking about. Even officers of the law (what law) that admitted at a later hearing the did not say on the witness stand as the same as they wrote in their report.

Not to mention in the Georgetown Sun newspaper in December 1984 the District Attorney Edward Walsh admitted to the journalist Ms. Sevay "After hearing Tommy Jacksons co-defendant take on the witness stand testifying against Jackson I have doubts as to whether I gave the death penalty to the right man. Jackson did not take the stand.

James Otis Clary made a plea bargain for a life sentence and testified against the defendent Tommy Ray Jackson. Inmate Jackson sits on death row for a crime he did not commit. James Clary sits on Jester IV unit for a crime he did commit. Inmate Jackson still fighting for justice and to hopefully one day be released back into society to become once again a productive citizen.

Thank you for your time.

Sincerely, Tommy Ray Jackson


Tommy Ray Jackson's Pen-Pal Request :

43 year old, 5 feet 9 inches tall, weigh 163 pounds. Very good sense of humor, love sports such as; football, basketball, volleyball, tennis, handball, racketball. Callege educated: Associate Arts Degree in Behavior Psychology. My pastimes are reading, writing, listening to Jazz music. I consider myself able to get along with 99% of the world population. I'm a very patient person. I totally dislike profanity, child abuse, negativity, and disrespect. I guarantee to answer any and all letter responding to my single request guarantee to be totally honest at all times. Also will be willing to discuss any and all subjects your heart desires. Please write to me soon . . . But very soon. Honestly Yours.


United States Court of Appeals for the Fifth Circuit

Tommy Ray Jackson appeals the denial of habeas relief. He directs his contentions to the penalty phase of his capital trial, maintaining that his constitutional rights were violated by a Brady violation, the impermissible comments of the prosecution, and the admission of evidence of an unadjudicated offense. For the reasons assigned, we affirm the judgment appealed.


On November 17, 1983, Rosalind Robison, a twenty-four year old University of Texas student, disappeared. Alerted to her disappearance, state and local authorities kept on the lookout for her and her vehicle and, within a few days, they stopped Tommy Ray Jackson as he was driving Robison's white Oldsmobile. When questioned, Jackson said that he had borrowed the car first from a Robert Richardson and later from a Richard Robertson. A search of the trunk revealed Robison's purse and a box labeled "Rosalind Robison" containing some of her personal effects. Jackson was arrested and Robison's ATM card was discovered on his person.

Approximately one month later, Robison's body was discovered at a secluded gravel pit twenty miles from Austin. She had been shot execution-style, at closerange and in the back of the head, and a 0.25 caliber bullet was recovered from her cranial cavity. Evidence indicated that she had been kneeling at the time the fatal shot was fired. Her hands had been bound behind her back with a blue and white bandana and her body was partially covered by gravel.1 Pubic hair that was a microscopic match to that of Jackson was recovered from Robison's undergarments and also from the backseat of her vehicle.

At the time of the incident, Jackson had been sharing a room in a halfway house with James Otis Clary. The authorities learned that Jackson and Clary had spent the fateful day together. After numerous interviews the state and Clary entered into a plea agreement. Clary agreed to provide truthful testimony in Jackson's capital murder trial and the state agreed not to proceed with capital charges against him.2

Because Clary plays a central role in two of Jackson's claims, at the threshold we describe his trial testimony in some detail, noting a portion of the evidence that corroborates his testimony. Additional testimony and evidence will be underscored during the discussion of the several issues raised by Jackson.

At the trial, Clary testified to the following events. During the weeks leading up to the incident, he and Jackson surveilled two stores that they intended to rob. The pair believed that it would be necessary to get a vehicle to carry out these robberies. Jackson secured a 0.25 caliber pistol from a friend to facilitate their theft of a vehicle.3 On the afternoon of the incident, Jackson and Clary drank beer and smoked marihuana. Later that evening, the two men walked about downtown Austin looking for an opportunity to steal a vehicle. After walking for some time they stopped for a few beers before heading to the University of Texas campus.

Arriving on the campus around 10:00 p.m., they saw a woman alone walking toward a car in a parking lot that contained only a few other cars. There were no other people in the immediate vicinity. Jackson told Clary that this was their opportunity to steal a vehicle. The ill-fated woman, Rosalind Robison, opened her car door but dropped something, which she was attempting to pick up, when Jackson rapidly approached her with his firearm drawn. Jackson pushed her into the front seat of the vehicle and slid behind the wheel. Clary got in the front seat so that Robison was positioned between them.

Robison pled with the two men not to hurt her. She said that she did not have any money, but if it was money that they wanted, she had an ATM card and could withdraw cash from a bank machine. Jackson passed the pistol to Clary to keep Robison under control as he drove to an ATM machine. Upon arriving at a bank, Clary and Robison exited the vehicle and Robison withdrew $ 50.4 She gave the money to Jackson.

Jackson drove from the bank to Interstate 35, traveled a short way, and then pulled off to the side. Jackson then ordered Robison into the back seat of the vehicle with him and instructed Clary to continue driving on I-35. Robison pled that she not be injured, stating that she would do anything that was asked of her. AtJackson's mention of sex, Robison replied that she could not engage in sexual intercourse because she was menstruating; Jackson said that would not deter him. Jackson then raped Robison, who did not cry out or struggle.5 Clary recalled that Robison asked for some sort of napkin and that Jackson pulled a white object from the glove box.6

Jackson ordered Clary to pull over and they resumed their original positions in the front seat. As they traveled along I-35, Clary said Jackson's name when inquiring as to their destination; Jackson met Clary's question with silence. Shortly thereafter, Jackson exited the highway, eventually stopping at a gravel pit. Jackson reclaimed the pistol from Clary before Clary raped Robison in the vehicle's back seat. Thereafter, Jackson ordered Robison out of the vehicle.

The three walked to a pile of gravel and when they reached it, Jackson stated his intent to kill Robison because she heard Clary use his name. Robison pled for her life. Standing behind her with the pistol, Jackson ordered Robison to her knees. Jackson told Robison that she would never again give anyone a ride as he fired the lethal shot. Jackson asked Clary to help him dispose of her body. Clary refused, stating that they had never planned to kill anyone. Clary returned to the car and Jackson did likewise approximately ten minutes later.7

Clary said that there was virtually no conversation about the murder between him and Jackson. On the ride back to Austin, however, Clary repeated his concern that their plan did not involve hurting anyone, to which Jackson replied: "Shut up. Let me handle this." Once back in Austin, Jackson and Clary stopped at two nightclubs, where they drank beer and shot pool. After leaving the nightclubs, Jackson and Clary stopped at a friend's house and drank more beer and smoked marihuana.8

Jackson was convicted of capital murder. The jury unanimously found beyond a reasonable doubt that (1) Jackson had acted deliberately in causing Robison's death and with the reasonable expectation that her death would result, and (2) there was a probability that he would commit criminal acts of violence constituting a continuing threat to society.9 Jackson was sentenced to death. The Texas Court of Criminal Appeals affirmed the judgment of the trial court on February 3, 1988, and the United States Supreme Court denied Jackson's petition for writ of certiorari on June 30, 1988.10

In October 1988, Jackson petitioned the state court for a writ of habeas corpus. Jackson's petition was denied by the state court which issued findings of fact and conclusions of law in November 1994, and supplemented same in August 1995.11 The Texas Court of Criminal Appeals determined that the trial court's findings and conclusions were supported by the recordand denied relief without written opinion.12

Shortly thereafter, Jackson petitioned for habeas relief in the federal district court, raising eighteen claims. After the district court denied relief on all of his claims,13 Jackson applied for a certificate of appealability on seven. The district court granted a COA on three; this court denied Jackson's application for COA on the remaining four claims. Jackson's challenges all pertain to the penalty phase of his capital trial. He contends that his constitutional rights were transgressed by a Brady violation, by impermissible comments of the prosecution, and by the admission ofevidence of an unadjudicated offense.


I. Brady Claim

Jackson maintains that there is a reasonable probability that he would have been sentenced differently had the prosecution disclosed the prior inconsistent statements of Clary. The authorities obtained several statements from Clary who, during Jackson's trial, was described as initially evasive, but who increased the significance of his role with each successive interview. Jackson was not provided with four of Clary's statements. He contends that these statements went beyond merely providing additional detail,14 and argues that knowledge of the specifics of Clary's various statements would have better armed him to impeach Clary's testimony.

Jackson further maintains that the state was able to paint Clary's several statements as merely increasing in detail because he did not have the statements and was not able to establish for the jury the true nature of Clary's shifting version of the truth. Jackson emphasizes the significance of Clary's testimony at sentencing, underscoring the fact that the state argued that the triggerman should receive a death sentence and only Clary implicated Jackson as the actual triggerman. From this Jackson argues that only non-credible evidence supported an affirmative response by the jury on the special issue concerning the deliberate nature of the act.

Under Brady v. Maryland, suppression by the state of material evidence favorable to the accused, after a request to examine such evidence, violates the accused's fourteenth amendment guarantee to due process.15 To be entitled to habeas relief on a Brady claim, a petitioner must establish that (1) the state suppressed or withheld evidence, (2) which was both favorable and (3) material to the defense.16 The state court determined that the evidence was not material. The state court's determination was not an unreasonable application of federal law nor was it based upon an unreasonable determination of the facts. No relief is warranted.17

Suppression or Withholding of Evidence

The state habeas trial court determined that Clary's prior statements werenot specifically requested by Jackson. Jackson moved for Brady material, and at a hearing on that motion the state agreed to turn over such information. Though the trial court did not order such disclosure, it considered same appropriate. Although not specifically requested, Jackson's earlier request for Brady evidence,18 suffices to raise this claim. The essential question before us is whether the evidence was favorable and material.

Favorable to the Defense

Favorable Brady evidence includes information that could be used to impeach the credibility of the state's witnesses.19 Jackson's contention that the various inconsistent statements by Clary could have been used to impeach his credibility is well-founded. The district court determined that these prior statements by Clary were favorable to the defense. We agree with that determination.20 We proceed then to address the materiality element of the Brady inquiry.

Before doing so, we must pause to address another of Jackson's concerns. Because only Clary specifically pointed to Jackson as the triggerman, Jackson argues that it was critical for him to be able to impeach Clary. Because the state sought a death sentence for the triggerman, identifying Jackson as the triggerman was crucial. The statements in question would have provided general impeachment information, but we are by no means persuaded that the statements would have enabled Jackson to impeach Clary on the specific issue of the identity of the triggerman.21

The four statements sought by Jackson explicitly or implicitly identify Jackson as the triggerman. Two of the statements include confessions by Jackson to the shooting. Each of the four statements placed Jackson alone with the decedent in the secluded location where the body was later discovered; each noted that Jackson was armed; and each related that, though both Jackson and Robison left the vehicle together, only Jackson returned to the vehicle before Jackson left the scene with Clary. While the changing details of these statements provide some general impeachment material, they would not have provided impeachment on the specific issue of the identity of the triggerman. Nonetheless, these statements were favorable to the defense, and we therefore must continue the analysis.

Material to the Defense

Evidence is "material" only if there is a reasonable probability that theresult of the proceeding would have been different if the evidence had been disclosed.22 The reviewing court should consider the suppressed items collectively, not item by item.23 The state courts effectively and the district court explicitly determined that the Brady material was cumulative, and thus not material. When Brady evidence would have only a cumulative or marginal impact on the jury's credibility assessment, habeas relief is not in order because the evidence is not material, that is, there is no reasonable probability that the result of the proceeding would have been different if the defense had been provided the evidence in question.24

Jackson had four other statements made by Clary, including a detailed statement that defense counsel obtained during an extensive interview. These various statements enabled Jackson to attack Clary's credibility; in fact, Jackson's own federal habeas petition reveals that "Clary's credibility was sharply called into question by defense counsel at trial . . . ." Clary admitted that he had not been truthful when he first talked to the police, when he testified before the grand jury, when he talked to defense counsel, and when he talked to the sheriff on an unspecified occasion.

Clary testified that he provided different accounts of the incident each time that he was interviewed, and that his trial testimony differed from his previous accounts as well. The prosecution conceded in its opening statement that Clary's credibility was open to question given his various stories. Thus, the four withheld statements by Clary correctly were labeled as cumulative; they were not material.

In light of the persuasive and abundant physical and other evidence favoring affirmative responses to the special issue questions, and in light of mitigating evidence of "little, if any, value,"25 there was not a reasonable probability, sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different if the evidence had been disclosed to the defense.26 The district court did not commit reversible error in denying relief on this Brady issue.

II. Prosecutorial Misconduct Claim

Jackson contends that improper arguments and statements by the prosecution rendered his sentencing fundamentally unfair and unreliable in violation of his guarantee to due process. Jackson complains that the prosecutor referred to his refusal to testify, vouched for Clary's credibility, invoked the status of the government as abasis for answering affirmatively to the special issue questions, and inflamed the passions and prejudices of the jury. Jackson raised the same issues in his state habeas proceeding. The federal district court described as incomprehensible the state habeas trial court's resolution of this issue.27

The one page order by the Texas Court of Criminal Appeals denying habeas relief indicates only that the record supports the findings and conclusions of the trial court. AEDPA provides that an application for a writ of habeas corpus on behalf of a person in custody under a judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless that adjudication was contrary to clearly established federal law or based upon an unreasonable determination of the facts in light of the evidence.28 Our trial court determined that the state habeas courts' resolution of the issue commanded no deference because it obviously was not an adjudication on the merits.

When faced with a silent or ambiguous state habeas decision, the federal court should "look through" to the last clear state decision on the matter.29 Jackson did not present these particular claims on direct appeal, so we must determine whether the noted adjudication was "on the merits." In making this determination, we consider "(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts' opinions suggest reliance upon procedural grounds rather than a determination on the merits."30 First, our research has produced no clear guidance on whether Texas courts treat such dispositions as "on the merits."

The parties have not directed our attention to any dispositive precedent. Second, the history of the case suggests that there were no objections at trial to the comments about which Jackson now complains. "In Texas, the general rule is that any impropriety in the State's argument is waived by a defendant's failure to make a proper and timely objection."31

This factor favors a determination that the adjudication was not on the merits. Third, the failure to mention procedural grounds by the state habeas courts has aided this court's resolution in the past.32 Here, there was no mention of procedural grounds by either of the state courts. The third factor weighs in favor of the conclusion that the state court disposition was on the merits. Proceeding perforce with an abundance of caution, we follow the district court's lead and conclude that for present purposes the adjudication was not "on the merits" within the intendment of the AEDPA.

Jackson's failure to object, however, raises the issue whether his claimis procedurally barred. The "Texas contemporaneous objection rule constitutes an adequate and independent state ground that procedurally bars federal habeas review of a petitioner's claims."33 This court, however, has addressed the merits of a defendant's claim when the procedural bar was not raised in the federal district court.34

Here, the state did not file any briefs during the state habeas proceedings, so it could not have raised the procedural bar in the state courts; the state did not raise the defense in the district court; and it has not done so in this court.35 This court may have discretion to raise the procedural bar issue sua sponte,36 but we decline to do so because Jackson had no notice that procedural bar would be an issue under consideration, and therefore, no reasonable opportunity to argue either that the state court did not reject his claim on an adequate and independent state law ground, or that one of the exceptions to the doctrine applied.37

Right to Remain Silent

Jackson contends that the state impermissibly commented on the exercise of his right to remain silent when the prosecutor stated: "Look at him; he hasn't shown any remorse." If the challenged prosecutorial conduct implicates a specific guarantee of the Bill of Rights, the appropriate inquiry on habeas review is whether the prosecutor's statement so prejudiced the specific right as to amount to a denial of that right.38

For there to have been a denial of one's fifth amendment right to remain silent, the prosecutor's manifest intent in making the remark must have been to comment on the defendant's silence, or the character of the remark must have been such that the jury would naturally and necessarily construe it as a comment on the defendant's silence.39 To expound on the first inquiry, the prosecutor's intent is not manifestly impermissible if there is some other, equally plausible explanation for the remark. For the second inquiry, the question is not whether the jury might or probably would view the challenged remark in this manner, but whether it necessarily would have done so.40

The state contends that the comment addressed Jackson's behavior at the time of the incident, not his exercise of his right to remain silent during trial. Viewed in context, the prosecution's argument was as follows: "Look at him; he hasn't shown any remorse. After he and Clary killed this girl, they went into the beer joint and drank beer and shot pool." The state correctly notes that, though it may not directly or indirectly comment on Jackson's decision not to testify, it may call to the jury's attention the fact that the defense did not rebut evidence offered by the state.41

The state offered evidence that, after the incident, Jackson drank beer and played pool, and it argued that this behavior reflected a lack of remorse. Jackson has offered nothing to rebut this argument. We cannot conclude that there isno plausible and permissible explanation for the prosecution's comment nor that the jury necessarily viewed this statement as a comment on Jackson's silence.

Due Process

Jackson also complains that he was denied due process because the prosecution vouched for the credibility of Clary, invoked the status of the government as a basis for answering affirmatively the special issue questions, and inflamed the passions and prejudices of the jury. When a claim regarding the impropriety of the prosecution's argument is framed as a violation of due process, the appropriate inquiry is not whether the remarks were undesirable or even universally condemned but, rather, whether the prosecution's comments so infected the trial with unfairness that there is a reasonable probability that the result would have been different if the proceeding had been conducted properly.42 We suspect that there is a reasonable possibility that the prosecution's comments infected the proceedings.43 We ultimately conclude, however, that there is not a reasonable probability of a different result. Jackson therefore is not entitled to relief.

Prosecution's Bolstering of Clary's Credibility

Turning first to the comments about Clary's credibility, Jackson invites our attention to United States v. Knowles,44 and urges its application. According to this suggested inquiry, a prosecutor improperly vouches for a witness by making explicit assurances of the witness' veracity or by alluding implicitly to information not presented to the jury that supports the witness' testimony.45 Even assuming the applicability of the suggested inquiry, Jackson is not entitled to relief.

Jackson maintains that the prosecutor explicitly assured the jury of Clary's veracity by stating: "I don't think I would have been around as long as I have as District Attorney . . . if I went around unreasonably deciding who should live or die" and "It was after considering all the facts in this case with the decision made that we wanted to get one death penalty for sure in this case, and that's the triggerman."

First, these comments do not mention Clary explicitly. Second, in supplementing his argument, Jackson again places unwarranted emphasis on the prosecution's comments that he was the triggerman. Evidence other than Clary's testimony supported an affirmative response to the special issue concerning deliberate conduct; the preceding discussion and analysis undermine Jackson's contentions.46 Third, we note that Jackson directs his claim to the penalty phase of the trial, but each of the comments was made by the prosecution in its closing argument during the guilt phase of the trial. Fourth, defense counsel raised the issue that it is the prosecution who makes the determination of who, if anyone, should be prosecuted fora capital crime.47

Thus, even if the prosecutor's comments somehow gave credence to Clary's testimony or placed the official imprimatur of the government on his credibility, the impact was minimal and certainly not sufficient to undermine confidence in the jury's responses to the special issue questions.48 Fifth, Jackson did not object to these comments so, wholly apart from the issue of procedural default, the comments presumptively had no substantial adverse impact.49

Jackson contends that the prosecution implicitly vouched for Clary's credibility by referring to information not presented at trial: "And this plea bargain was presented to you, it has been testified that there was a part that was not admitted, that you cannot see and is not admissible. That was part of the plea bargain, and James Otis Clary said that part of the plea bargain was an important factor in him deciding to finally tell the truth."

Although the admission of a plea bargain whereby a witness agrees to testify truthfully or be subject to prosecution does not impermissibly bolster that witness' credibility,50 Jackson complains of the prosecution's allusion to a portion of the plea bargain that was not admitted.51

The State concedes error to the extent that the comment contained personal opinion, invoked the prosecutor's personal status as the government's attorney, or implied special knowledge of the unadmitted portion of the plea agreement.52 It is not enough, however, that a prosecutor's remarks were undesirable or even universally condemned,53 because the inquiry is whether there is a reasonable probability that, but for the comments, the outcome of the proceeding would have been different.

The evidence speaking to the deliberate nature of Jackson's actions has been discussed. Evidence also spoke to the probability that Jackson would commit criminal acts of violence that constituted a continuing threat to society. Jackson was convicted of an armed bank robbery that occurred in January 1977. After being paroled from that conviction, Jackson was convicted of auto burglary in 1981 and received a sentence of four years. The state offered evidence that during the week in which the capital crime was committed, Jackson bounced a check when purchasing jewelry.

Further, even if not the triggerman, Jackson was involved in the commission of capital murder. Given the persuasive and abundant evidence establishing that Jackson acted deliberately and that he posed a threat of future dangerousness, there is no reasonable probability that, but for the comments, the outcomeof the proceeding would have been different.

Prosecution's Emotional Pleas

Jackson also contends that the prosecution impermissibly made emotional pleas to the jury's passion and prejudice. Jackson complains of comments, such as "You have a stake in the community, set [a high] price [for] this particular crime"; "Tell Tommy Ray Jackson and the likes of him that you're not going to tolerate those sorts of people and these sorts of acts"; and "[Jackson] will probably commit criminal acts of violence that [will] threaten you and everyone else".

Although the prosecution may not appeal to the jury's passions and prejudices, the prosecution may appeal to the jury to act as the conscience of the community.54 Additionally, during the penalty phase the prosecution may emphasize the importance of deterrence.55 Further, the prosecution may impress upon the jury the seriousness of the charges.56

Of the remarks about which Jackson complains, only the manner in which the prosecutor personalized the future threat that Jackson might pose to the jurors might have inflamed their passions and prejudices. Previously, however, on direct review we upheld a conviction in which the prosecutor placed the jurors in the positions of victims in order to explain a particularly complicated concept.57

Here, the contested comment arose within the context of the prosecution's argument addressing the second special issue - the future dangerousness that Jackson would pose to society. Future dangerousness can be a difficult concept.58 No conclusion need be reached on this tangential matter, however, because relief is not warranted as these comments alone do not result in a reasonable probability that the outcome would have been different if the proceeding had been conducted without them.59

III. Improper Admission of an Unadjudicated Offense Claim

Finally, Jackson contends that his sentence was rendered fundamentally unfair and unreliable by the admission of evidence of an unadjudicated offense allegedly committed by him. The evidence concerned a crime committed for which Jackson had not been convicted, charged, or arrested.

During the penalty phase, Wilbur Wood testified that, during September 1981, two individuals who wore paper sacks over their heads and who were armed with shotguns burgled his home, located south of Luling, Texas. During this incident, a shotgun was placed against the head of Woods' ten-year old son and his family was herded into a closet before a shot was fired into the wall above the closet door.

Several of the Woods' possessions, including firearms, jewelry, and portable televisions, were stolen. Also during the penalty phase, Jackson's cousin,who had been convicted of the theft of some of the Woods' property, testified that he, Jackson, and another individual burgled a home near Luling during September 1981. During this burglary, Jackson and the third party wore pillow cases over their heads, and Jackson carried a shotgun. Though Jackson's cousin could not recall whether anyone was home at the time, he was only briefly in the house. Firearms, jewelry, and a television were stolen. Jackson later was convicted of an auto burglary. Two of the firearms stolen from the Woods' home were found at that scene.

Jackson recognizes that circuit precedent allows for the admission of unadjudicated offenses in death penalty proceedings without violating due process, equal protection, or the eighth amendment.60 Jackson contends, however, that this precedent establishes "standards of relevance and sufficiency of proof"61 that must be met before unadjudicated offenses may be admitted during the penalty phase of a capital trial, and that these standards were not met here. The state habeas courts62 and our district court rejected Jackson's contention.

In habeas actions, we do not sit to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding. Thus, the erroneous admission of prejudicial testimony does not justify habeas relief unless the evidence played a "crucial, critical, and highly significant" role in the jury's determination.63

The testimony concerning the burglary of the Woods' home addressed the special issue of future dangerousness. In addition to the disputed testimony, other evidence was presented concerning whether there was a probability that Jackson would commit criminal acts of violence that would constitute a continuing threat to society, including evidence of Jackson's prior convictions for bank robbery, auto burglary, and now capital murder, and the fact that he was on parole when each act was committed. Therefore the Woods burglary testimony was not "crucial, critical, or highly significant" to the jury's affirmative response to the future dangerousness issue. Accordingly, no relief is warranted.

Jackson also contends that the admission of Woods' victim impact statement exceeds that permitted by Payne v. Tennessee.64 In Payne, the Supreme Court determined that, during the penalty phase of a capital trial, the states may allow for the admission and argument of human cost or impact of the crime of which the defendant stands convicted.65

Jackson contends that the Supreme Court's rationale does not extend to crimes other the capital crime itself. Jackson directs this court to no testimony in particular that he considers to be victim impact statements. Even as described by Jackson, Woods' testimony concerned the factual circumstances surrounding the burglary, not personal characteristics about the victims,66 and certainlynot the impact of the crime upon the victims. Accordingly, Jackson's contention must be rejected.


For the foregoing reasons, the district court's judgment denying Jackson's petition for habeas relief is AFFIRMED.




Gravel from the scene was microscopically similar to that found (1) embedded in the tread of the wheels of Robison's car, and (2) in the cabin of the vehicle itself.


Rather than face capital charges, Clary agreed to plead guilty to kidnapping, with the state recommending a life sentence.


The friend corroborated the fact that Jackson had rented a 0.25 caliber pistol shortly before the incident; Jackson did not offer the reasons why the gun was needed and the friend did not inquire.


This particular ATM was equipped with a video camera but, because the video camera had not been reset after a power outage earlier that day, the jury was denied video-taped evidence of this portion of the incident. Nonetheless, bank records confirmed that Robison made a $ 50 withdrawal at 10:39 P.M. on the night of the incident.


Robison's father testified that he had advised his daughter not to struggle if she ever found herself in such circumstances. She received similar advice when she worked at a hospital in Houston.


A sperm-stained tissue was recovered from Robison's vehicle. The stain did not allow for extensive analysis but it was determined that either Jackson or Clary could have been responsible for it.


Although Robison's hands had been bound behind her back with a blue and white bandana, Clary could not recall this detail. Several witnesses testified that Jackson was known to wear a blue and white bandana. No witness could recall Clary wearing a blue and white bandana.


Individuals that had been at the apartment confirmed that Jackson and Clary arrived at the complex in a white Oldsmobile around midnight a few days before Jackson's arrest.


TEX. CODE CRIM. P. ANN. art. 37.071 (1981).


Jackson v. State, 745 S.W.2d 4 (Tex. Crim. App.), cert. denied, 487 U.S. 1241, 101 L. Ed. 2d 947, 108 S. Ct. 2916 (1988).


Ex parte Jackson, No. 84-043-KA (Williamson County D. Ct. Aug. 31, 1995).


Ex parte Jackson, Writ No. 29,574-01 (Tex. Crim. App. Oct. 2, 1996).


Jackson v. Johnson, No. 96-CA-716-SS (W.D. Tex. Aug. 10, 1998).


Jackson details several of these variations, including when Clary "had sex" with the victim (after arriving at the site where her body was found or during the drive to the site); the events at the any-time teller machine; whether Clary saw that the victim's hands were bound; and differences in his own and Jackson's activities while at the death scene site.


373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).


Strickler v. Greene, 527 U.S. 263, 144 L. Ed. 2d 286, 119 S. Ct. 1936 (1999).


28 U.S.C. 2254(d). Jackson's petition for federal habeas relief was filed on October 17, 1996, after the Antiterrorism and Effective Death Penalty Act was signed into law on April 24, 1996, so the AEDPA standard of review applies to his petition. Lindh v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997); Williams v. Cain, 125 F.3d 269 (5th Cir. 1997), cert. denied, 525 U.S. 859, 142 L. Ed. 2d 116, 119 S. Ct. 144 (1998).


Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995) (Brady claim might arise despite only general request for exculpatory evidence); United States v. Miranne, 688 F.2d 980 (5th Cir. 1982) (noting government's ongoing obligation under Brady); see also Strickler, 119 S. Ct. at 1945 n.12 (noting that the prosecutor is responsible for disclosing any favorable evidence known to others acting on the government's behalf in the case, including the police).


Smith, 904 F.2d 950, 964 ("impeachment material is clearly exculpatory and qualifies as Brady material").


Smith, 904 F.2d at 964-69 (impeachment evidence is favorable even if cumulative).


Jackson complains that four statements by Clary were not disclosed to him. The first of the four statements by Clary states that Jackson was armed and that Jackson confessed to the murder of Robison. The second statement reflects that Jackson pulled a firearm on Robison at an any-time teller machine; that the trio traveled to the location where Robison's body was later discovered; and that Jackson and Robison left the vehicle together but that only Jackson returned to the vehicle before he and Clary left the scene. The third statement notes that Jackson pulled a firearm on Robison at an any-time teller machine; that the trio traveled to the location where Robison's body was later discovered and the three exited the vehicle; that as Clary returned to the vehicle, he (Clary) heard a gunshot, and that only Jackson returned to the vehicle; and that Jackson confessed to the murder. The fourth statement declares that Clary saw Jackson alone with Robison; that Jackson was armed; and that Clary returned tothe car before Jackson shot Robison.


United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985); Smith, 904 F.2d at 964. Though "reasonable probability" might more properly be phrased as "significant possibility," Strickler, 119 S. Ct. at 1956 (Souter, J., dissenting) (seeking to avoid the unjustifiable risk that courts might be misled into applying the more demanding standard, "more likely than not"), the different phraseology would not affect our conclusion on this or any other issue.


Kyles, 514 U.S. at 436.


Pyles v. Johnson, 136 F.3d 986, 999 (5th Cir.) (Brady evidence with "marginal negative impact on jury's credibility assessment" does not warrant habeas relief), cert. denied, 524 U.S. 933, 118 S. Ct. 2338, 141 L. Ed. 2d 707 (1998); Westley v. Johnson, 83 F.3d 714, 725 (5th Cir. 1996) (Brady evidence that does not constitute "significant new evidence" does not warrant habeas relief); Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996) (Brady evidence that is "cumulative" does not warrant habeas relief); Drew v. Collins, 964 F.2d 411, 419-20 (5th Cir. 1992) (Brady evidence with only "incremental impeachment value" does not warrant habeas relief).


Jackson v. Johnson, No. 96-CA-716-SS, at 47 (W.D. Tex. Aug. 10, 1998).


Strickler, 119 S. Ct. at 1955 (Brady evidence not material when the brutal nature of the crime, after which petitioner drank and danced, sufficed to support Virginia's special issues of "vileness" and "future dangerousness" even if the witness left unimpeached by the disputed Brady evidence identified petitioner as the dominant actor); Smith, 904 F.2d at 969 (Brady evidence not material when defendant presented little mitigation evidence and victim was kidnapped, robbed, sexually assaulted, and brutally slain).


The state habeas trial court employed the following boilerplate language in resolving Jackson's claim:

Findings of Fact. This claim presents no controverted, previously unresolved issues of fact which are material to the legality of the applicant's sentence. The claim presents only a legal argument about the facts that appear in the appellate record. No evidence on this claim was introduced by either party in the habeas corpus proceeding. Conclusions of Law. The petitioner has not cited any authority or made any argument to support his claim that state law provides some protection that is different from federal constitutional protections.


28 U.S.C. 2254(d); Fisher v. State, 169 F.3d 295 (5th Cir. 1999).


Lott v. Hargett, 80 F.3d 161, 164 (5th Cir. 1996).


Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).


Ortega v. McCotter, 808 F.2d 406, 408 (5th Cir. 1987) (citing Romo v. State, 631 S.W.2d 504, 505 (Tex. Crim. App. 1982)).


Green, 116 F.3d at 1121 (concluding that the claims were resolved on the merits when "neither the trial court's nor the Court of Criminal Appeals's order made mention of procedural grounds for denying relief").


Fisher, 169 F.3d at 300.


Fisher, 169 F.3d at 301 ("A state waives a procedural bar defense by failing to raise the defense in the district court."); Ortega, 808 F.2d at 408.


Although a "State shall not be deemed to have waived the exhaustion requirement . . . unless the State, through counsel, expressly waives the requirement," 28 U.S.C. 2254(b)(3), the exhaustion requirement is related but distinct from that of procedural default. O'Sullivan v. Boerckel, 526 U.S. 838, 144 L. Ed. 2d 1, 119 S. Ct. 1728 (1999) (Stevens, J., dissenting).


Fisher, 169 F.3d at 301.


Id. at 301-02.


Donnelly v. DeChristoforo, 416 U.S. 637, 643, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974).


United States v. Grosz, 76 F.3d 1318 (5th Cir. 1996).




Id.; United States v. Bermea, 30 F.3d 1539 (5th Cir. 1994).


Darden v. Wainwright, 477 U.S. 168, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986); Foy v. Donnelly, 959 F.2d 1307 (5th Cir. 1992).


Strickler, 119 S. Ct. at 1953 (noting that "reasonable probability" presents a higher standard than does "reasonable possibility").


66 F.3d 1146 (11th Cir. 1995).


Id. at 1161.


Although the preceding discussion and analysis arose in the context of a Brady claim, we believe it pertinent here. Both Brady claims and this claim find their constitutional footing in the due process clause. In this case, both involve the same question: whether there is a reasonable probability of a different outcome in light of the State's improper conduct. And finally, both involve the credibility assessment of a witness. For a Brady claim involving impeachment evidence, the risk is that the jury overestimated a witness' credibility because the jury was denied evidence that would undercut that witness' credibility. For the claim now presented by Jackson, the risk is that the jury overestimated Clary's credibility because the State impermissibly bolstered his credibility.


Trial Transcript, Vol. 27 at 1015-16 ("Mr. Clary is not going to be judged for his life; Mr. Jackson is. . . . I don't think that's fair . . . because who gets the right to select who might live and who might die? Do you? No, you don't. . . . Does the Williamson County grand jury? No. The District Attorney's Office does, that's who gets to select.") (closing argument by defense counsel during guilt phase of the trial).


Darden, 477 U.S. at 182 (not excusing a prosecutorial response that was improper even though invited by the defense, but noting that, because the response was invited, its impact was lessened); King v. Puckett, 1 F.3d 280, 286 (5th Cir. 1993) (denying habeas relief despite comments by the prosecutor during sentencing, such as "I deal with criminal cases every week . . . [and] I don't ask for the death penalty in every case").


Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992).

Jackson also contends that the State's comments improperly invoke the status of the government itself as a basis for imposing the death sentence. This claim fails for the reasons just discussed.


United States v. Edelman, 873 F.2d 791, 795 (5th Cir. 1989).


The portion of the plea bargain that was not presented to the jury concerned a requirement that Clary submit to a polygraph examination.


Bermea, 30 F.3d at 1563-64.


Darden, 477 U.S. at 181.


United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B Dec. 1981).


King, 1 F.3d at 286 (denying habeas relief despite comment by prosecutor during sentencing phase: "I want this country to know that we're not going to tolerate [those who commit capital crimes]").


United States v. Robichaux, 995 F.2d 565 (5th Cir.1993).


Robichaux, 995 F.2d at 570.


Jurek v. Texas, 428 U.S. 262, 274, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976) ("It is, of course, not easy to predict future behavior.").


Jackson also contends that the cumulative effect of the alleged errors comprising the first two issues merits relief. The cumulative error doctrine provides relief only when the constitutional errors committed in the state court trial so fatally infected the trial that they violated the trial's fundamental fairness. Spence, 80 F.3d at 1000. The individual errors did not merit relief, nor can we conclude that the cumulative effect of the alleged errors fatally infected the fundamental fairness of the trial.


Williams v. Lynaugh, 814 F.2d 205 (5th Cir. 1987); Milton v. Procunier, 744 F.2d 1091 (5th Cir. 1984).


Williams, 814 F.2d at 208; Milton, 744 F.2d at 1097.


In rejecting Jackson's contention, the state habeas trial court employed the same boilerplate language quoted above, supra page n. 29. As before, we do not treat such disposition as "on the merits" for purposes of the AEDPA


Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 143 L. Ed. 2d 798, 119 S. Ct. 1768 (1999); Milton, 744 F.2d at 1097.


501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).


Id. at 827.


Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim. App.) ("victim's good nature, hobbies, and work ethic"), cert. denied, 522 U.S. 994, 118 S. Ct. 557, 139 L. Ed. 2d 399 (1997).




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