Fletcher Thomas Mann,
Wayne Scott, Director Texas Department of
Institutional Division, Respondent-Appellee.
Circuits, 5th Cir.
the United States District Court for the
Northern District of Texas.
Before KING, HIGGINBOTHAM,
and JONES, Circuit Judges.
KING, Circuit Judge:
Fletcher Thomas Mann, a Texas
death row inmate convicted of capital murder,
appeals the district court's denial of his
petition for a writ of habeas corpus. For the
reasons set forth below, we affirm.
I. PROCEDURAL POSTURE
Mann was convicted of the
1981 murder of Christopher Lee Bates and
sentenced to death by a Texas jury. Mann's
conviction was affirmed by the Texas Court of
Criminal Appeals on October 22, 1986. Mann v.
State, 718 S.W.2d 741 (Tex.Crim.App.1986). The
United States Supreme Court denied certiorari on
April 6, 1987. Mann v. Texas,
481 U.S. 1007 , 107 S.Ct. 1633, 95 L.Ed.2d
Mann began a collateral
attack on his conviction by filing his first
petition for a writ of habeas corpus and stay of
execution in the Criminal District Court of
Dallas County, Texas; the judge recommended that
Mann's petition be denied on the merits. On June
23, 1987, the Texas Court of Criminal Appeals
accepted the state trial court's recommendation
and denied Mann's petition in an unpublished
The same day, Mann filed a
petition for a writ of habeas corpus in the
United States District Court for the Northern
District of Texas. The district court granted a
temporary stay of execution, but ultimately
found Mann's petition to be meritless. Mann v.
Lynaugh, 688 F.Supp. 1121 (N.D.Tex.1987). Mann
next filed notice of appeal to this court, which
dismissed the appeal because it was not timely
filed. Mann v. Lynaugh, 840 F.2d 1194 (5th
On June 17, 1988, Mann filed
a motion for relief from judgment pursuant to
Rule 60(b) of the Federal Rules of Civil
Procedure, claiming that his trial counsel's
negligent failure to file a timely appeal should
not deny him his right to appellate review.
While Mann's 60(b) motion was pending in federal
district court, Mann simultaneously filed
another petition for a writ of habeas corpus
with the Texas Court of Criminal Appeals.
The federal district court
granted Mann's 60(b) motion, staying his
execution; it also retained jurisdiction over
the case and directed Mann to exhaust state
court remedies on certain new claims. Mann v.
Lynaugh, 690 F.Supp. 562 (N.D.Tex.1988). The
Texas Court of Criminal Appeals dismissed Mann's
petition without prejudice on grounds that Mann
was required by state law to first seek relief
from the state trial court. Mann filed his
petition with the state trial court on July 12,
1988; however, the state trial court abstained
on grounds of comity because the federal
district court still retained jurisdiction.
On November 10, 1988, the
federal district court lifted its stay of Mann's
execution, thereby relinquishing its
jurisdiction over the case and freeing the state
courts to proceed. Mann then refiled his habeas
petition in state court. On January 10, 1989, in
an unpublished opinion, the Texas Court of
Criminal Appeals denied relief on the
recommendation of the state trial court. Since
there was no longer any stay order in effect,
Mann's execution was scheduled for December 5,
Mann next sought and received
a stay of execution and leave to reinstate his
federal habeas petition in the federal district
The federal magistrate to whom Mann's case was
assigned recommended that relief be denied. On
September 7, 1993, following a de novo review,
the federal district court concurred with the
magistrate and entered final judgment denying
relief. Mann then filed a timely notice of
appeal. Shortly thereafter, the district court
issued a certificate of probable cause. For the
reasons set forth below, we affirm.
II. FACTUAL BACKGROUND
In the early evening hours of
September 11, 1980, Mann and Martin David
Verbrugge knocked on the door of a Dallas
apartment shared by Christopher Bates and Robert
Matzig, who were watching a football game with
their friend Barbara Hoppe. When Matzig answered
the door, Mann and Verbrugge brandished pistols
and forced their way inside. Bates and Matzig
were instructed to lie on their stomachs on the
living room floor and were bound at the arms and
legs. Mann and Verbrugge went through their
pockets and took their money. Hoppe was taken
into the bedroom, where she was beaten, raped
and stabbed to death.
Mann exited the bedroom and
pointed a gun at the back of Matzig's head.
Matzig pleaded for his life, offering to write
Mann a check for the full amount in his account.
Mann and Verbrugge agreed and ordered Matzig to
write several smaller checks and cash them at
local grocery stores.
Over the next several hours,
the four men drove around Dallas in Matzig's car,
attempting to cash Matzig's checks. Bates and
Matzig were held under gunpoint the entire time.
Due to the late hour, Matzig was able to cash
only about $75.00 worth of checks. Matzig wrote
a final check in the amount of $1,000 which was
to be cashed by Mann or Verbrugge the following
Mann directed Matzig to drive
to a secluded area. When Mann and Verbrugge
alighted from the car, Matzig attempted to drive
away, but the car stalled. Mann and Verbrugge
forced Matzig and Bates from the vehicle, took
them into the woods, and ordered them to lie on
their stomachs. Matzig saw Mann standing over
Bates' head, preparing to shoot. Matzig tried to
run away, but he tripped and fell.
Bates was shot in the back of
the head with a .38 revolver. Matzig was shot in
the neck with a .38 revolver and was severely
wounded, but still alive. Matzig heard the
gunshots, but he did not see who pulled the
trigger. Mann and Verbrugge fled the scene in
Matzig's car. Meanwhile, Matzig crawled to a
nearby bulk mail center and was rescued. Fearing
that Matzig was not dead, Mann and Verbrugge
returned to the scene to finish the job; however,
the authorities had already arrived on the scene,
and the two fled once again.
Mann was charged with
murdering Bates in the course of robbing Matzig,
a capital crime under Texas law. TEX.PENAL CODE
ANN. Sec. 19.03(a)(2) (West 1994).
Pursuant to article 37.071 of the Texas Code of
Criminal Procedure, the jury answered each of
three special issues
in the affirmative, and Mann was sentenced to
death by lethal injection.
III. STANDARD OF REVIEW
In considering a federal
habeas corpus petition presented by a prisoner
in state custody, federal courts must generally
accord a presumption of correctness to any state
court factual findings. See 28 U.S.C. Sec .
2254(d). We review the district court's findings
of fact for clear error, but decide any issues
of law de novo. Barnard v. Collins, 958 F.2d
634, 636 (5th Cir.1992), cert. denied, --- U.S.
----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993);
Humphrey v. Lynaugh, 861 F.2d 875, 876 (5th
Cir.1988), cert. denied,
490 U.S. 1024 , 109 S.Ct. 1755, 104 L.Ed.2d
Mann posits eight arguments
in his petition to this court: (1) his
confession was obtained in violation of his
Sixth Amendment right to counsel; (2) the trial
court's failure to instruct the jury on the
lesser included offense of murder violated his
Fourteenth Amendment right to due process; (3)
the Texas sentencing statute unconstitutionally
prevented him from introducing mitigating
evidence at trial; (4) the trial court
unconstitutionally excluded certain venire
members for cause; (5) the prosecutor's closing
comments regarding the word "deliberate" in the
Texas capital sentencing statute violated state
law and rendered his conviction constitutionally
defective; (6) his trial counsel was
constitutionally ineffective; (7) the
prosecutor's closing argument unconstitutionally
misled jurors into believing that they were not
responsible for imposing the death sentence; and
(8) the federal district court erred by refusing
to hold an evidentiary hearing regarding certain
mitigating evidence. We proceed to analyze each
of these claims.
A. Sixth Amendment Right
Mann argues that the state
trial court erred in allowing his confession to
be placed before the jury because it was
obtained in violation of his Sixth Amendment
right to counsel. Specifically, Mann contends
that the police knowingly circumvented his right
to have counsel present during his interrogation
in violation of Maine v. Moulton, 474 U.S. 159,
106 S.Ct. 477, 88 L.Ed.2d 481 (1985).
1. Factual Background.
A brief recitation of the
events leading up to Mann's confession is
required in order to fully evaluate his claim.
In June 1981, the Dallas police learned that
Mann was being held in custody in Bulitt County,
Kentucky, on an unrelated rape charge. Detective
Gholston of the Dallas Police Department
travelled to Kentucky to serve arrest warrants
on Mann and to attempt to interview him.
Upon his arrival in Kentucky,
Detective Gholston read Mann his Miranda rights
and informed Mann that he wanted to speak with
him following his arraignment on the Texas
charges. The Kentucky court appointed a local
attorney, Sean Delahanty, to represent Mann at
the arraignment. Following the arraignment and
consultation with Mann, Delahanty informed
Gholston that Mann was willing to talk, but only
if Delahanty were present and asked the
questions. Gholston rejected these terms.
Delahanty remained at the jail until the close
of visiting hours, hoping to ward off an
interrogation of Mann.
Later that afternoon, officer
Ronnie Popplewell of the Bulitt County Sheriff's
Department told Gholston that he intended to
transport Mann to a hospital in Louisville (approximately
25 miles away) in order to obtain a blood sample
for use in the Kentucky rape charge. Gholston,
who had lost his luggage on the flight from
Dallas to Louisville, asked Popplewell if he
could ride along and stop at the airport to
check on his luggage. Popplewell agreed, and the
trio set off for Louisville with Popplewell
behind the wheel, and Gholston and Mann in the
There is conflicting trial
testimony as to precisely what conversation took
place during the trip to Louisville. Gholston
and Popplewell testified that Mann initiated
conversation regarding the Texas charge and that
he was curious to know what information the
police had regarding that crime. Conversely,
Mann testified that he told Gholston that he did
not want to talk and that he wanted a lawyer,
but was told that he did not need one.
Once the trio returned to the
police station in Bulitt County, several facts
are undisputed: (1) Gholston called the Dallas
Police Department and asked them not to question
Mann's mother; (2) Gholston asked Mann if he
would like to make a statement, to which Mann
responded affirmatively; (3) Gholston read Mann
his Miranda rights and asked Mann if he
understood them, including his right to counsel;
(4) Mann stated that he understood each of his
Miranda rights; (5) Mann made an oral confession
which was simultaneously transcribed in longhand
by Popplewell; (6) Popplewell typed the
confession and presented it to Mann; (7) the
typed confession was read out loud to Mann to
ensure its accuracy; (8) the top of each page of
the typed confession contained a recitation of
the Miranda warnings and a statement that those
rights were being knowingly, intelligently, and
(9) Mann read the confession and signed each of
the four pages.
2. Standard of Review.
Whether a constitutional
right has been waived--including the Sixth
Amendment right to counsel--is a question of
federal law over which we have plenary review
power. Brewer v. Williams, 430 U.S. 387, 397 n.
4, 97 S.Ct. 1232, 1239 n. 4, 51 L.Ed.2d 424
(1977); Self v. Collins, 973 F.2d 1198, 1204
(5th Cir.1992), cert. denied, --- U.S. ----, 113
S.Ct. 1613, 123 L.Ed.2d 173 (1993). However, in
the interest of comity, federal courts must
presume the correctness of underlying state
court factual determinations absent proof of
some defect in the factfinding process. 28 U.S.C.
Sec . 2254(d); Sumner v. Mata, 449 U.S.
539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722
We do not lightly find a
waiver of a constitutional right. Courts must "indulge
in every reasonable presumption against waiver,"
Brewer, 430 U.S. at 404, 97 S.Ct. at 1242; thus,
the state bears the burden of proving that an "intentional
relinquishment or abandonment" of the right has
occurred. Id. (quoting Johnson v. Zerbst, 304
U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.
Whether a voluntary, knowing,
and intelligent waiver of constitutional rights
has occurred is determined according to the
totality of the circumstances, including the
background, experience, and conduct of the
accused. Edwards v. Arizona, 451 U.S. 477, 482,
101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378 (1981).
Thus, in the case at hand,
the state bears the burden of proving that Mann
knowingly, intelligently, and voluntarily waived
his Sixth Amendment right to counsel.
5] We must therefore look to the totality of the
circumstances to determine if a valid waiver
The state argues that Edwards
v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68
L.Ed.2d 378 (1981), provides the contours of
analysis regarding waiver of the Sixth Amendment
right to counsel. In Edwards, the Supreme Court
held that interrogation of the accused must
cease upon invocation of his Fifth Amendment--not
Sixth Amendment--right to counsel, unless the
accused "initiates further communication,
exchanges, or conversations with the police." Id.
at 485, 101 S.Ct. at 1885.
In Michigan v. Jackson, 475
U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986),
the Court extended the Edwards prophylactic "no
further interrogation" rule to the Sixth
Amendment context. The Court held that "if
police initiate interrogation after a
defendant's assertion, at an arraignment or
similar proceeding, of his right to counsel, any
waiver of the defendant's right to counsel for
that police-initiated interrogation is invalid."
Id. at 636, 106 S.Ct. at 1411.
We assume in this case that
Mann had asserted his right to counsel prior to
the time his confession was obtained, and the
parties do not contend otherwise. Thus, the rule
of Jackson prohibited "police-initiated
interrogation" of Mann. At the close of the
suppression hearing that preceded Mann's trial,
the state trial court made these oral findings:
THE COURT: All right. First
off, the Court will observe that all of the
testimony establishes that the confession was
freely and voluntarily given. Further, it will
be the ruling of the Court that the giving of
the confession was not tainted in any way by any
conduct of any law enforcement officer.
Further, the Court will find
specifically that, under the believable
testimony, that [sic] the confession was
obtained from the defendant at a time in which
he was voluntarily willing to talk and was not
requesting an attorney or objecting to being
. . . .
* * *
I'm going to allow the
statement to be admitted for the jury's
The district court concluded
that in making these findings, the state trial
judge necessarily found that Mann initiated the
conversations with Gholston during the trip to
Louisville. Although it is difficult to reach
that conclusion when examining only the findings
themselves, when we look at those findings in
the context of the argument made by Mann's
counsel, we agree.
Mann's counsel argued to the
state trial judge that the Supreme Court cases
of Edwards, Rhode Island v. Innis, 446 U.S. 291,
100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and
Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232,
51 L.Ed.2d 424 (1977), imposed an initiation
requirement in the Sixth Amendment context
whereby the state was required "to desist
approaching [Mann] any further," once Mann's
Sixth Amendment right to counsel had attached.
Mann's counsel contended that by approaching
Mann outside the presence of counsel the police
"were specifically going against the tenets of
Against the backdrop of that
argument, and faced with a conflict in the
testimony about who initiated the conversation
which led to Mann's confession, the district
court believed that the state trial court had
credited the testimony of the police officers
and implicitly found that Mann had initiated the
See Marshall v. Lonberger, 459 U.S. 422, 103
S.Ct. 843, 74 L.Ed.2d 646 (1983) (court is
presumed to have implicitly found facts
necessary to support its conclusions).
The district court also noted
that the state trial court explicitly found that
Mann waived his right to consult with his
attorney or to have him present when the
confession was given. Again, in the context of
the testimony and the argument of Mann's counsel,
we agree. These factual findings are entitled to
a presumption of correctness pursuant to 28
U.S.C. Sec . 2254(d), and Mann has
offered no evidence to overcome this presumption.
Thus, Mann's Sixth Amendment claim must fail.
Mann's counsel argues that
the key issue regarding waiver in this case is
not whether Mann "initiated" any conversation
with police, but whether the state notified
Mann's counsel prior to engaging in
interrogation and obtaining the confession, as
Mann's counsel testified he had requested. As
authority for that proposition, Mann cites Maine
v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d
481 (1985), which condemns "knowing[ ]
circumventi[on] [of] the accused's right to have
counsel present in a confrontation between the
accused and a state agent." Id. at 176, 106 S.Ct.
Neither Maine nor any other
case that predates the denial of Mann's petition
for certiorari stands for the proposition that
the Sixth Amendment is violated when the police
accept a defendant's invitation to engage in
conversation about the crime without first
notifying the defendant's counsel, even when the
defendant's counsel has demanded that he be so
notified. Were we to adopt such a rule, it would
create a "new rule" of constitutional law under
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,
103 L.Ed.2d 334 (1989) (per curiam), and its
progeny. Under Teague, a "new rule" is one which
was not "dictated by precedent existing at the
time the defendant's conviction became final."
Id. at 301, 109 S.Ct. at 1070; see also Graham
v. Collins, --- U.S. ----, ----, 113 S.Ct. 892,
897, 122 L.Ed.2d 260 (1993).
Unless a reasonable jurist
hearing petitioner's claim at the time his
conviction became final "would have felt
compelled by existing precedent" to rule in his
favor, we are barred from now doing so under the
edict of Teague and its progeny. Saffle v.
Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260,
108 L.Ed.2d 415 (1990); Graham, --- U.S. at
----, 113 S.Ct. at 898. We are not persuaded
that a reasonable jurist hearing Mann's claim at
the time his conviction became final would have
felt compelled to rule in his favor; accordingly,
we are barred from doing so.
B. Failure to Provide
Lesser Included Offense Instruction.
Mann next contends that his
Eighth and Fourteenth Amendment rights were
violated when the state trial court refused a
requested jury instruction on the lesser
included offense of murder. In the seminal case
of Beck v. Alabama, 447 U.S. 625, 100 S.Ct.
2382, 65 L.Ed.2d 392 (1980), the Supreme Court
held that an instruction regarding a lesser
included offense is constitutionally required in
capital cases "when the evidence unquestionably
establishes that the defendant is guilty of a
serious, violent offense--but leaves some doubt
with respect to an element that would justify
conviction of a capital offense." Id. at 637,
100 S.Ct. at 2389.
Later, in Hopper v. Evans,
456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367
(1982), the Supreme Court clarified that "Beck
held that due process requires that a lesser
included offense instruction be given when the
evidence warrants such an instruction. But due
process requires that a lesser included offense
instruction be given only when the evidence
warrants such an instruction." Id. at 611, 102
S.Ct. at 2053.
Thus, our task is to
determine whether "the jury could rationally
acquit on the capital crime and convict for the
noncapital crime." Cordova v. Lynaugh, 838 F.2d
764, 767 (5th Cir.), cert. denied,
486 U.S. 1061 , 108 S.Ct. 2832, 100 L.Ed.2d
932 (1988); accord Hopper, 456 U.S. at
612, 102 S.Ct. at 2053; Keeble v. United States,
412 U.S. 205, 208, 93 S.Ct. 1993, 1995-96, 36
L.Ed.2d 844 (1973). We conclude that no rational
jury could have acquitted Mann on the capital
murder charge and convicted him on a noncapital
murder charge; thus, failure to provide an
instruction as to the lesser included offense of
murder did not violate Mann's constitutional
Mann was charged with the
capital crime of "intentionally commit[ting] [ ]
murder in the course of committing or attempting
to commit ... robbery." TEX.PENAL CODE ANN. Sec.
19.03(a)(2) (West 1994). Mann argues that a jury
could rationally have acquitted him of this
capital crime because the state failed to prove,
beyond a reasonable doubt, that the murder of
Bates occurred "in the course of committing or
attempting to commit ... robbery," within the
meaning of Sec. 19.03(a)(2). Specifically, Mann
contends that there is a reasonable doubt as to
whether the robbery of Matzig was "completed" by
the time Bates was murdered. We decline to
accept such a tortured interpretation of the
The language "in the course
of" has been construed to mean conduct that
occurs in an attempt to commit, during the
commission, or in immediate flight after an
attempt or actual commission of robbery. Barnes
v. State, 845 S.W.2d 364, 367 (Tex.App.1992);
Fierro v. State, 706 S.W.2d 310, 313 (Tex.Crim.App.1986);
Riles v. State, 595 S.W.2d 858, 862 (Tex.Crim.App.1980)
(en banc); cf. TEXAS PENAL CODE ANN. Sec.
29.01(1) (West 1994) (providing an analogous
definition to the phrase "in the course of
committing theft"). Robbery, by statutory
definition, is essentially "theft plus"--namely,
it is theft accomplished by the use of physical
force or threats of bodily injury. See TEXAS
PENAL CODE ANN. Sec. 29.01(1) (West 1994).
Thus, in order for a murder
to be "in the course of" robbery it must be "in
the course of" committing a theft by force or
threats of bodily injury. Id. The key issue in
this case, therefore, is whether a rational jury
could have found that Mann was not "in the
course of committing theft" at the time of
Under either of two alternative, independent
grounds, we conclude that no rational jury could
find that the theft had been "completed" at the
time Bates was murdered.
First, the Texas Court of
Criminal Appeals has construed the phrase "in
the course of" to include murder that occurs
during a continuous assaultive action, even if
the murder occurs at a different time or place
than the robbery:
[W]e cannot subscribe to the
Legislature an intent to provide for capital
murder ... only where the killing takes place at
the same place and about the same time of the
robbery and permit a defendant who has committed
a robbery to escape capital murder charges where
he removes the robbery victim from the scene and
takes him or her to another place and there
kills the victim to prevent the victim's
Moore v. State, 542 S.W.2d
664, 675 (Tex.Crim.App.1976), cert. denied,
431 U.S. 949 , 97 S.Ct. 2666, 53 L.Ed.2d
Furthermore, in Dorough v.
State, 639 S.W.2d 479, 480-81 (Tex.Crim.App.1982),
the Texas Court of Criminal Appeals clarified
that when significant elements of the enumerated
felony continue uninterrupted, the enumerated
felony is kept "alive" for purposes of the
felony murder statute. Id. For example, in
Dorough, the continued use of force and threats
directed against a couple kept "alive" an
aggravated sexual assault for purposes of the
capital murder statute, despite the fact that
the murder occurred approximately 45 minutes
after the last sexual encounter. Id.
We think Moore and Dorough
make it unmistakably clear that Mann was "in the
course of" committing robbery when Bates was
murdered. Matzig was under forcible custody and
undoubtedly in fear of bodily injury at the time
of the murder. Thus, a significant element of
robbery--the use of force or threats--was
present at the time of the murder. There is no
reasonable doubt that the continuous assaultive
conduct kept the robbery of Matzig "alive" for
purposes of Mann's capital murder charge.
Mann contends that a rational
jury could have determined that the murder of
Bates was a mere "afterthought" unconnected to
the robbery. We need only note that this
contention is completely lacking in evidentiary
support. Indeed, Mann's own confession, which
was placed before the jury, flatly contradicts
this contention. The confession relates that
after driving around town attempting to cash
checks, Matzig asked Mann and Verbrugge if they
wanted to be dropped off anywhere, to which Mann
I told them no, and to drive
where I told them, because I knew the roads. And
[Verbrugge] raised up to the passenger seat and
told me--you know what we are going to have to
do. And I said, yea. Then [Matzig and Bates]
started to--they knew what we were going to do
and were saying--please don't do it to us, we
won't say nothing. Then I told him to stop the
jeep right there and told them to get out. Then
[Verbrugge] said you take care of them cause I
took care of the woman....
This evidence unequivocally
reveals that the murder of Bates was not a mere
"afterthought," but a coldly calculated attempt
to prevent future testimony. No rational jury
could have found otherwise on the evidence
Alternatively, Mann suggests
that the murder was intended to prevent
testimony regarding the rape or kidnapping--not
the robbery--and that such a motive would take
this case outside the ambit of Moore. We
disagree. Whether Mann's motive in killing Bates
was a desire to cover up the robbery, rape,
kidnapping--or some combination thereof--is
irrelevant. The key factor, according to Moore,
is that the murder occur for the purpose of
preventing testimony of the assaultive conduct
perpetrated against the victim.
The fact that a victim is
murdered in order to prevent testimony about
rape or kidnapping does not mean that the murder
did not occur "in the course of" a robbery. So
long as the murder was committed in the course
of the charged enumerated felony, it matters not
whether the murder was intended to silence
testimony about the specific felony charged or
another crime which occurred during the
continuous assaultive conduct.
A second, independent reason
for concluding that no rational jury could have
found the robbery had been "completed" at the
time of the murder is that the statute plainly
says otherwise. Under the Texas Penal Code,
robbery has five elements: (1) appropriation;
(2) of the property of another; (3) without the
owner's consent; (4) by force or threat of
imminent bodily injury; (5) with an intent to
permanently deprive. See TEXAS PENAL CODE ANN.
Secs. 29.02(a), 31.03(a).
When each of these elements
has occurred, the offense is ripe for purposes
of prosecution, One 1985 Chevrolet v. State, 852
S.W.2d 932 (Tex.1993); Barnes v. State, 824 S.W.2d
560 (Tex.Crim.App.1991); however, the elements
may be considered "ongoing" for purposes of the
capital felony murder statute. The question,
therefore, is whether any of these five elements
of robbery was "ongoing" at the time of Bates'
At least two of the elements
of robbery were "ongoing" at the time of Bates'
murder. First, as discussed earlier, the element
of force or threat of imminent bodily injury
continued up until the time of the murder. As
this significant element of robbery was
continuing at the time of the murder, the rule
of Moore and Dorough, supra, demands the
conclusion that the robbery had not ended.
Second, we believe the
element of appropriation was also continuing at
the time of the murder. Matzig's uncontroverted
testimony is that he wrote a check in the amount
of $1,000 which was to be cashed by Mann and
Verbrugge when the banks opened the following
morning. Thus, while Mann and Verbrugge
undoubtedly had the check in their physical
possession, the money represented by the check (i.e.,
$1,000 cash) was not in their control at the
time of the murder.
Thus, in order for the theft
of the $1,000 to be "completed," it was
necessary that Mann or Verbrugge cash the check
or deposit it into an account over which they
had control. See Evans v. State, 444 S.W.2d 641
(Tex.Crim.App.1969); Jones v. State, 672 S.W.2d
812 (Tex.Ct.App.1983), aff'd in part and rev'd
in part on other grounds, 672 S.W.2d 798 (Tex.Crim.App.1984);
White v. State, 632 S.W.2d 752 (Tex.Ct.App.1981).
Because the attempted
appropriation of the $1,000 was continuing at
the time of Bates' murder, the attempted robbery
was likewise ongoing. Thus, no rational jury
could conclude that the robbery had ended at the
time of the murder, and the murder was
accordingly committed "in the course of
committing or attempting to commit ... robbery"
within the meaning of the Texas capital murder
statute. TEX.PENAL CODE ANN. Sec. 19.03(a)(2).
C. Penry Claim.
In Penry v. Lynaugh, 492 U.S.
302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the
Supreme Court held that the Texas capital
sentencing statute unconstitutionally prohibited
the jury from giving weight to Penry's
mitigating evidence of mental retardation. In
the present case, the district court, on the
recommendation of the magistrate, concluded that
Mann's Penry claim is procedurally barred for
his failure to place such evidence before the
jury during trial.
Mann argues that his Penry
claim is not procedurally barred because: (1)
the magistrate misunderstood prior Fifth Circuit
precedent on this issue; (2) even if the
magistrate did not misunderstand our precedents,
those precedents have incorrectly interpreted
Penry; and (3) the Texas sentencing statute is
unconstitutional as applied.
We turn first to the argument
that the magistrate below misunderstood our
prior decisions which have applied a procedural
bar to Penry claims when the petitioner has not
actually proffered the mitigating evidence
during trial. E.g., Motley v. Collins, 18 F.3d
1223, 1228 (5th Cir.1994); Black v. Collins, 962
F.2d 394, 407 (5th Cir.), cert. denied, --- U.S.
----, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992);
Lincecum v. Collins, 958 F.2d 1271, 1282 (5th
Cir.), cert. denied, --- U.S. ----, 113 S.Ct.
417, 121 L.Ed.2d 340 (1992); Barnard v. Collins,
958 F.2d 634, 637 (5th Cir.1992), cert. denied,
--- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142
(1993); Wilkerson v. Collins, 950 F.2d 1054,
1061 (5th Cir.1992), cert. denied, --- U.S.
----, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993);
May v. Collins, 904 F.2d 228, 232 (5th
Cir.1990), cert. denied,
498 U.S. 1055 , 111 S.Ct. 770, 112 L.Ed.2d
789 (1991); DeLuna v. Lynaugh, 890 F.2d
720, 722 (5th Cir.1989).
Specifically, Mann contends
that the first case to apply this procedural bar
to a Penry claim, DeLuna v. Lynaugh, 890 F.2d
720 (5th Cir.1989), has been impermissibly
broadened by May and its progeny. According to
Mann, DeLuna was meant to stand for the narrow
proposition that decisions not to introduce
mitigating evidence based upon considerations
other than the Hobson's Choice posed by the
Texas sentencing statute will be procedurally
While it is true that the
decision to keep mitigating evidence away from
the jury in DeLuna was based upon trial
counsel's fear that such evidence would "open
the door" to evidence of the accused's prior
criminal record, DeLuna, 890 F.2d at 722,
nothing in DeLuna itself or our subsequent cases
has so limited it. Indeed, our subsequent
decisions embodied in May and its progeny have
made it clear that any Penry claim will be
procedurally barred if the mitigating evidence
is not actually proffered at trial. Motley, 18
F.3d at 1228; Black, 962 F.2d at 407; Lincecum,
958 F.2d at 1282; Barnard, 958 F.2d at 637;
Wilkerson, 950 F.2d at 1061; May, 904 F.2d at
Mann also contends that the
magistrate's analysis of his Penry claim is
defective because it relied upon prior decisions
of this court that he claims have impermissibly
narrowed Penry. Even assuming arguendo that the
magistrate or district court relied on other
cases besides DeLuna and May and their progeny,
we need not address this issue because we find
that the procedural bar just discussed is an
adequate ground for deciding this issue.
Mann's final contention
regarding his Penry claim is that the Texas
sentencing statute is unconstitutional as
applied to him because it "chilled" his ability
to provide the jury with mitigating evidence of
his low intelligence and abusive childhood. This
"chilling" effect springs from the fact that
under the Texas capital sentencing statute, some
evidence is "double edged"--i.e., the evidence
may be simultaneously mitigating and aggravating
because it may make it more likely that the jury
will answer "yes" regarding the special issues.
Mann contends that this
Hobson's Choice dilemma violated his right to
due process. We have previously declined
invitations to declare the Texas sentencing
statute unconstitutional because of such an
alleged "chilling effect." See Lackey v. Scott,
28 F.3d 486, 490 (5th Cir.1994); Andrews v.
Collins, 21 F.3d 612, 630 (5th Cir.1994); Black
v. Collins, 962 F.2d 394, 407 (5th Cir.1992);
May v. Collins, 948 F.2d 162, 167-68 (5th
Cir.1991). We continue to adhere to our
statement in Andrews that "a constitutional
violation does not result simply because the
Texas death penalty scheme triggers certain
tactical choices on the part of counsel."
Andrews, 21 F.3d at 630.
D. Juror Exclusion.
Mann asserts that the state
trial court improperly excluded four jurors for
cause because they voiced emotional opposition
to the death penalty. Specifically, Mann asserts
that permitting exclusion in these circumstances
violated the rule of Witherspoon v. Illinois,
391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968), and Adams v. Texas, 448 U.S. 38, 100
S.Ct. 2521, 65 L.Ed.2d 581 (1980).
The magistrate and the
district court both rejected this argument on
grounds that the state trial court's decision to
exclude jurors for their views on capital
punishment is entitled to a presumption of
correctness which Mann had not overcome. Mann v.
Lynaugh, 688 F.Supp. 1121, 1123-24 (N.D.Tex.1987);
see also Wainwright v. Witt,
469 U.S. 412 , 429, 105 S.Ct. 844, 854-55,
83 L.Ed.2d 841 (1985) (holding that a
trial judge's decision to exclude jurors based
upon their views of capital punishment is
entitled to Sec. 2254(d)'s presumption of
Under the rule of Wainwright,
the decisive question is "whether the juror's
views would 'prevent or substantially impair the
performance of his duties as a juror in
accordance with his instructions and his oath.'
" Id. at 424, 105 S.Ct. at 852 (quoting Adams v.
Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65
L.Ed.2d 581 (1980)).
The gravamen of Mann's
complaint is that the prosecutor's use of a
hypothetical "intellectual/emotional dilemma"
during voir dire misled the potential jurors
into believing that emotional opposition to the
death penalty would render them unable to uphold
their oath as jurors. Under this line of
questioning, the prosecutor told the prospective
jurors that they would be required to take the
You and each of you do
solemnly swear that in the case of The State of
Texas against the defendant, you will a true
verdict render according to the law and the
evidence, so help you God.
TEX.CODE CRIM.PROC.ANN. art.
35.22 (West 1989).
The prosecutor asked the
prospective jurors if they would be able to
impose the death penalty if they emotionally
believed that Mann did not deserve to die but
intellectually they knew the evidence required
that the special issues should be answered
affirmatively. Each of the four excluded venire
members informed the prosecutor that faced with
such a dilemma, they would not be able to take
The prosecutor challenged each of these jurors
for cause, and the trial court excused them.
Mann specifically contends
that in upholding the trial court's exclusion,
the magistrate and the district court failed to
consider Adams v. Texas, 448 U.S. 38, 100 S.Ct.
2521, 65 L.Ed.2d 581 (1980), and Witherspoon v.
Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d
776 (1968). In Witherspoon, the Court held that
the state has no valid interest in excluding a
juror for "any broader basis" than an inability
to follow the law or abide by their oaths.
Witherspoon, 391 U.S. at 522 n. 21, 88 S.Ct. at
1777 n. 21. The Court made it clear, however,
nothing we say today bears
upon the power of a State to execute a defendant
sentenced to death by a jury from which the only
veniremen who were in fact excluded for cause
were those who made unmistakably clear (1) that
they would automatically vote against the
imposition of capital punishment without regard
to any evidence that might be developed at the
trial of the case before them, or (2) that their
attitude toward the death penalty would prevent
them from making an impartial decision as to the
In Adams, the Court
overturned a death sentence because potential
jurors had been excluded for admitting that
their opposition to the death penalty would
render them unable to take the then-existing
Texas jury oath which required:
A prospective juror shall be
disqualified from serving as a juror unless he
states under oath that the mandatory penalty of
death or imprisonment for life will not affect
his deliberations on any issue of fact.
TEX.PENAL CODE ANN. Sec.
12.31(b) (1974) (repealed).
The constitutional infirmity
in Adams was with the oath itself, which by its
terms prohibited jurors from taking account of
their emotions in deciding issues of fact. The
Adams Court made it clear, however, that the
state has a "legitimate interest in obtaining
jurors who [can] follow their instructions and
obey their oaths," Adams, 448 U.S. at 44, 100
S.Ct. at 2526 (emphasis added), provided, of
course, that the oath itself is not
constitutionally defective. The Court recognized
that, given a properly worded oath, the Texas
scheme would be constitutionally acceptable:
[i]f the juror is to obey his
oath and follow the law of Texas, he must be
willing not only to accept that in certain
circumstances death is an acceptable penalty but
also to answer the statutory questions without
conscious distortion or bias. The State does not
violate the Witherspoon doctrine when it
excludes potential jurors who are unable or
unwilling to address the penalty questions.
Id. at 46, 100 S.Ct. at 2527.
We think Witherspoon and
Adams make it unmistakably clear that it is
constitutionally permissible to exclude a venire
member for cause when it is clear that she
cannot faithfully render a verdict according to
the evidence. If state law mandates the
imposition of the death penalty under certain
circumstances and the state proves those
circumstances beyond a reasonable doubt, a
juror's emotional opposition to capital
punishment may, in certain instances, distort
her ability to uphold the law.
While it is true, as Adams
makes clear, that mere emotional opposition to
capital punishment alone is insufficient cause
for juror exclusion, it is equally clear that
emotional opposition may rise to the level where
it interferes with a potential juror's ability
to sit as a dispassionate and objective arbiter
of justice. If a prospective juror's emotional
opposition is so severe that it compels her to
ignore the law or disables her from answering
the statutory questions without conscious
distortion or bias, exclusion for cause is
proper. Adams, 448 U.S. at 50, 100 S.Ct. at
Under the facts of this case,
we agree with the district court's conclusion
that the presumption of correctness of the trial
court's exclusion of these four jurors has not
been overcome. The prosecutor's "intellectual/emotional
dilemma," while certainly no model of clarity,
did manage to convey to the prospective jurors a
correct interpretation of the Texas capital
sentencing statute. A venire member who cannot
answer the special issues "yes" despite the fact
that the evidence requires a "yes" answer is, by
definition, unable to render a verdict "according
to the law and the evidence" as required by the
Furthermore, as the Supreme
Court stated in Witt:
What common sense should have
realized experience has proven; many veniremen
simply cannot be asked enough questions to reach
the point where their bias has been made "unmistakably
clear"; these veniremen may not know how they
will react when faced with imposing the death
sentence, or may be unable to articulate, or may
wish to hide their true feelings. Despite this
lack of clarity in the printed record, however,
there will be situations where the trial judge
is left with the definite impression that a
prospective juror would be unable to faithfully
and impartially apply the law.... [T]his is why
deference must be paid to the trial judge who
sees and hears the jurors.
Witt, 469 U.S. at 424-26, 105
S.Ct. at 852.
The state trial judge in
Mann's case was in a far better position than we
to draw conclusions about the potential jurors'
ability to render a verdict in accordance with
the law and evidence. The record reveals that he
posed several questions of his own to the
excluded venire members before excusing them for
He determined, based upon
their answers and demeanor, that they were not
qualified to serve because their opposition to
the death penalty would render them unable to
keep their oath. Such credibility determinations
are more appropriately resolved under the
watchful eye of the trial judge than by an
appellate court staring at a cold record, which
is precisely why they are accorded a presumption
of correctness under Sec. 2254(d). Mann has not
overcome this presumption; therefore, his claim
Definition of "Deliberate."
Mann argued that the
prosecutor misled a juror during voir dire that
the term "deliberate" (the requisite mental
state required under the first special issue of
the Texas capital sentencing statute) was
synonymous with the term "intentional" (the
requisite mental state required for capital
murder). He maintains that the prosecutor's
statements violate the rule of Lane v. State,
743 S.W.2d 617 (Tex.Crim.App.1987).
The state trial court, in
considering Mann's second habeas petition,
concluded that this claim was barred for three
reasons: (1) failure of Mann's counsel to
contemporaneously object; (2) failure of Mann's
counsel to attempt to correct the prosecutor's
alleged misstatement; and (3) on the merits, the
statements did not mislead the juror.
The Texas Court of Criminal
Appeals agreed, stating that "the findings and
conclusions entered by the trial court are
supported by the record." The district court
also concluded that the Texas contemporaneous
objection rule procedurally bars Mann from
raising this claim. Mann argues that he is not
procedurally barred because his pretrial motion
adequately apprised the trial court of the
gravamen of his objection.
We agree with the state
courts and the district court that Mann has
waived his claim by his failure to
See Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App.1986)
("The failure of the appellant to complain or
object in the trial court constitutes a
procedural default under [Texas] law."); accord
TEX.R.APP.P. 52(a). Mann's pretrial motion was
inadequate to place the trial court on notice
that Mann was objecting to the prosecutor's
equation of the terms "deliberate" and "intentional."
His pretrial motion made only
two arguments: (1) that the Texas capital
sentencing statute is unconstitutionally vague;
and (2) that the statute fails to adequately
define the terms "deliberately," "probability,"
"criminal acts of violence," and "constitute a
continuing threat to society," thereby rendering
counsel's assistance per se ineffective and
permitting arbitrary imposition of the death
penalty. The trial court denied this motion.
Mann's pretrial motion
mounted a constitutional attack on the Texas
sentencing statute itself; it did not alert the
trial court to the issue now being raised on
appeal--namely, whether the prosecutor's
comments violated the rule of Lane v. State, 743
S.W.2d 617 (Tex.Crim.App.1987). Thus, the
contemporaneous objection rule blocks
consideration of his claim on appeal.
Mann next contends that the
contemporaneous objection rule cannot bar our
review of his claim on the merits because it is
not "strictly and regularly followed." See, e.g.,
Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct.
850, 857, 112 L.Ed.2d 935 (1991); Johnson v.
Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981,
1987, 100 L.Ed.2d 575 (1988); Wilcher v. Hargett,
978 F.2d 872, 879 (5th Cir.1992), cert. denied,
--- U.S. ----, 114 S.Ct. 96, 126 L.Ed.2d 63
We need not decide this issue
at this time. Even assuming arguendo that the
Texas contemporaneous objection rule is not
strictly and regularly followed, Mann's claim
fares no better when analyzed on the merits. The
prosecutor in this case did not intimate that "intentional"
and "deliberate" are synonymous. In fact, the
prosecutor never even used the term "intentional"
in his exegesis of the term "deliberate." The
complained of prosecutorial statement is as
Now, the judge isn't going to
tell you what the word "deliberately" means. It
doesn't have any special meaning with regard to
this question. It means the same thing when you
or I use it in daily language.
You've probably heard one of
your little boys say to the other one, "Well,
you did that deliberately." Well, it means the
same thing. You did it on purpose, you did it--it
wasn't an accident.
This statement conveyed to
the juror that "deliberate" requires something
more than a voluntary physical act, something
akin to conscious purpose. See Fearance v.
State, 620 S.W.2d 577, 584 (Tex.Crim.App.) (en
banc) (holding that the term "deliberately" as
used in capital sentencing statute is "the
thought process which embraces more than a will
to engage in conduct and activates the
intentional conduct."), cert. denied,
454 U.S. 899 , 102 S.Ct. 400, 70 L.Ed.2d
Indeed, the prosecutor's
comment in this case echoes our conclusion in
Milton v. Procunier, 744 F.2d 1091, 1096 (5th
Cir.1984), cert. denied,
471 U.S. 1030 , 105 S.Ct. 2050, 85 L.Ed.2d
323 (1985), that the jurors, in the
context of a specific case, could not reasonably
assign different meanings to the word "deliberate."
As such, the prosecutor's comments conveyed a
correct interpretation of Texas law and Mann's
contention is therefore without merit.
F. Ineffective Assistance
Mann contends that the
failure of his trial counsel to develop and
offer the "double-edged" mitigating evidence of
low intelligence and an abusive childhood
rendered his counsel ineffective in violation of
the Sixth Amendment. We disagree.
The standard for assessing
the effectiveness of counsel was announced in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Strickland requires
the defendant to prove two things: (1) counsel's
performance was deficient under an objective
standard of reasonableness, id. at 687-88, 104
S.Ct. at 2064-65, and (2) that "there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different." Id. at
694, 104 S.Ct. at 2068.
When assessing whether an
attorney's performance was deficient, we "must
indulge a strong presumption that counsel's
conduct falls within the wide range of
reasonable professional assistance." Id. at 689,
104 S.Ct. at 2065; Andrews v. Collins, 21 F.3d
612, 621 (5th Cir.1994).
To demonstrate prejudice, the
defendant must prove that there is a "reasonable
probability that, absent the errors, the
sentencer ... would have concluded that the
balance of aggravating and mitigating
circumstances did not warrant the death
penalty." Strickland, 466 U.S. at 695, 104 S.Ct.
at 2069; Andrews, 21 F.3d at 622.
In this case, Mann's trial
counsel admitted in an affidavit that he made a
strategic decision not to introduce evidence of
his low intelligence or abusive childhood
because such evidence had a "double-edged"
nature which may have harmed Mann's case. Such
strategic decisions are "granted a heavy measure
of deference in a subsequent habeas corpus
attack." Wilkerson v. Collins, 950 F.2d 1054
(5th Cir.1992) (citing Strickland, 466 U.S. at
690-91, 104 S.Ct. at 2065-67), cert. denied, ---
U.S. ----, 113 S.Ct. 3035, 125 L.Ed.2d 722
Under an objective standard
of reasonableness, such a sound tactical
decision does not constitute deficient
performance. See Sawyers v. Collins, 986 F.2d
1493, 1505-06 (5th Cir.), cert. denied, --- U.S.
----, 113 S.Ct. 2405, 124 L.Ed.2d 300 (1993).
Mann has not overcome the strong presumption
that this strategic decision was unreasonable
under the circumstances; thus, he has not
satisfied the deficiency prong of Strickland.
Even assuming, arguendo, that
Mann's counsel was deficient, we find that Mann
has failed to show the existence of evidence of
sufficient quality and force which, if
introduced, would have more likely than not
persuaded the jury that the death penalty was
Callins v. Collins, 998 F.2d 269, 279 (5th
Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct.
1127, 127 L.Ed.2d 435 (1994); Wilkerson v.
Collins, 950 F.2d at 1065. Thus, Mann has also
failed to satisfy the prejudice prong of
Strickland. When either prong of Strickland is
not proven, the petitioner is not entitled to
relief. Strickland, 466 U.S. at 687, 104 S.Ct.
G. Caldwell v. Mississippi
Near the end of his closing
argument of the punishment phase, the prosecutor
in Mann's case told the jury:
When is Fletcher Mann going
to stop hurting women, young women and old women?
When is he going to stop raping them, robbing
them, hurting people? When is he going to stop
hurting jailers? Huh? When is he going to stop
hurting inmates, have you thought about that?
I'll tell you: when he is executed. And not
before. And I tell you, the only shame in our
system is that he's not going to be executed
tonight after you answer the three questions,
because that's what he deserves. But we know
better than that, don't we? But he deserves to
be executed tonight.
Mann contends that this
argument violated the rule of Caldwell v.
Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86
L.Ed.2d 231 (1985), because it diminished the
jury's sense of responsibility for its
sentencing determination. Specifically, Mann
contends that the phrase, "But we know better
than that, don't we?" suggested to the jury that
their sentence would be subject to appellate
review, thereby relieving them of fears that
they would provide the "last word" on Mann's
sentence and making it more likely that they
would impose the death penalty.
In Caldwell, the Supreme
Court held that the following statement by the
prosecution violated the Eighth Amendment
because it undermined "reliable exercise of jury
Now, [the defense] would have
you believe that you're going to kill this man
and they know--they know that your decision is
not the final decision. My God, how unfair can
they be? Your job is reviewable. They know it.
Id. at 325, 329, 105 S.Ct. at
While we do not endorse the
prosecutor's arguments in this case as a model
of propriety, we do not believe they rise to the
level of a Caldwell violation. The statement, "But
we know better than that, don't we?" is
ambiguous at best. A juror hearing such a remark
was not likely left with the impression that her
sentencing decision was not one of life and
death. By contrast, there was no mistaking the
import of the prosecutor's remarks in Caldwell.
Thus, we conclude that the prosecutor's comments
did not "affect the fundamental fairness of the
sentencing proceeding [so] as to violate the
Eighth Amendment." Id. at 340, 105 S.Ct. at
2645.H. Failure to Hold an Evidentiary Hearing.
Mann's final contention is
that the district court erred in not holding an
evidentiary hearing on his habeas petition.
Specifically, Mann contends that a hearing was
necessary to adequately consider his newly
discovered mitigating evidence of low
intelligence and an abusive childhood.
The Supreme Court has held
that a habeas petitioner is entitled to an
evidentiary hearing in federal court regarding a
claim which was not developed in the state
courts only upon a showing of cause and
prejudice. Keeney v. Tamayo-Reyes, --- U.S.
----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).
Under this standard, the
habeas petitioner bears the burden of
establishing both cause for his failure to
develop the facts in state court, as well as
actual prejudice. Id. at ----, 112 S.Ct. at
1719. This stringent standard is designed to
further the interests of comity and judicial
economy. Id. An exception from the cause and
prejudice standard may be made only if the
petitioner can show that a fundamental
miscarriage of justice would result from the
failure to hold a federal evidentiary hearing.
Id. at ----, 112 S.Ct. at 1721.
Mann's entire argument on
this issue consists of generalized assertions of
and citation to one case, Wilson v. Butler, 813
F.2d 664 (5th Cir.1987), cert. denied,
484 U.S. 1079 , 108 S.Ct. 1059, 98 L.Ed.2d
Wilson, however, is
distinguishable because it involved a claim of
ineffective assistance of counsel in violation
of the Sixth Amendment, and we merely held that
ineffective assistance would be sufficient cause
to warrant an evidentiary hearing provided the
petitioner has also established prejudice. Id.
at 671-73. In this case, by contrast, Mann does
not allege that ineffective assistance of
counsel caused his failure to develop the
mitigating evidence in state court.
In fact, Mann proffers no
reason whatsoever for his failure to develop
this evidence. Furthermore, we note that Mann
has not attempted to establish prejudice; he
offers no explanation as to how an evidentiary
hearing would have altered the outcome of his
petition. As Mann has failed to establish either
cause or prejudice as required by Tamayo-Reyes,
we conclude that the district court did not err
in failing to hold an evidentiary hearing.
For the foregoing reasons, we
AFFIRM the judgment of the district court.
(a) A person commits an
offense if he commits murder as defined under
Section 19.02(b)(1) and:
(2) the person
intentionally commits the murder in the course
of committing or attempting to commit kidnapping,
burglary, robbery, aggravated sexual assault,
arson, or obstruction or retaliation....
TEX.PENAL CODE ANN. Sec.
19.03 (West 1994).
Procedure in a capital case
(a) Upon a finding that the
defendant is guilty of a capital offense, the
court shall conduct a separate sentencing
proceeding to determine whether the defendant
shall be sentenced to death or life imprisonment.
The proceeding shall be conducted in the trial
court before the trial jury as soon as
practicable. In the proceeding, evidence may be
presented as to any matter that the court deems
relevant to sentence. This subsection shall not
be construed to authorized the introduction of
any evidence secured in violation of the
Constitution of the United States or of the
State of Texas. The state and the defendant or
his counsel shall be permitted to present
argument for or against sentence of death.
(b) On conclusion of the
presentation of the evidence, the court shall
submit the following issues to the jury:
(1) whether the conduct of
the defendant that caused the death of the
decedent was committed deliberately and with the
reasonable expectation that the death of the
deceased or another would result;
(2) whether there is a
probability that the defendant would commit
criminal acts of violence that would constitute
a continuing threat to society; and
(3) if raised by the
evidence, whether the conduct of the defendant
in killing the deceased was unreasonable in
response to the provocation, if any, by the
(e) if the jury returns an
affirmative finding on each issue submitted
under this article, the court shall sentence the
defendant to death. If the jury returns a
negative finding on any issue submitted under
this article, the court shall sentence the
defendant to confinement in the Texas Department
of Corrections for life....
TEX.CODE CRIM.PROC.ANN. art.
37.071 (West 1981).
It should be noted that
article 37.071 has since been revised, but the
revisions apply only to offenses committed after
September 1, 1991. See TEX.CODE CRIM.PROC.ANN.
art. 37.071(i) (West Supp.1994).
I am giving this statement to
J.M. Gholston I.D. 2297, who has identified
himself as Peace Officer of the City of Dallas,
Texas, and he has duly warned me that I have the
following rights: that I have the right to
remain silent and not make any statement at all;
that any statement I make may be used against me
at my trial; that any statement I make may be
used as evidence against me in court; that I
have the right to have a lawyer present to
advise me prior to and during any questioning;
that if I am unable to employ a lawyer, I have
the right to have a lawyer appointed to advise
me prior to and during any questioning and that
I have the right to terminate the interview at
Prior to and during the
making of the statement, I have and do hereby
knowingly, intelligently, and voluntarily waive
the above explained rights and I do make the
following voluntary statement to the
aforementioned person of my own free will and
without any promises or offers of leniency or
favors, and without compulsion or persuasion by
any person or persons whomsoever:
Q. All right. Now, when you
say I don't think I could, I know that's just a
way of saying it, but we need something clear
and unequivocal. Are you saying, "I could not
take that oath"? Because if you can take the
oath to base your verdict strictly on the
evidence, then we're right back to square one.
See, if you can take the oath
to base your verdict just on the evidence, then
you're saying that "Even though I feel like he
should not die, I can go on and answer the
question. I can compute the answers and come up
with them and reach them."
So if you tell us that you
cannot take that oath, then you're not qualified
and that would be--that would be it.
A. I can't take that oath.
Q. Fine. Are you firm and
fixed on that, then?
Q. And so that no matter what
degree of evidence they produced you could never
answer the question "yes"?
A. If I thought he should
live and be imprisoned, I could not give him the