Denard Manns put to death in Huntsville,
Friday, November 14, 2008
A New York parolee with an extensive criminal
record was executed Thursday [Nov. 13, 208] night for robbing,
raping and fatally shooting an Army medic at her apartment near
"From Allah he came and from Allah he shall
return," Denard Manns said from the death chamber gurney. He
criticized by name his trial attorneys for what he said was an
unfair trial, criticized an appeals lawyer for "purposely bringing
up claims that did not exist," and thanked another lawyer for
taking on his appeal after he was supposed to be off the case.
Manns expressed love to friends and then said,
"I'm ready for the transition." He uttered what appeared to be a
brief prayer 3 times and was pronounced dead at 6:24 p.m. CST, 10
minutes after the lethal drugs began to flow.
Manns, 42, who came to Texas after a 2nd prison
sentence in New York for armed robbery, was condemned for the
murder 10 years ago of Michelle Robson, 26. Manns' appeals in the
courts were exhausted and the Texas Board of Pardons and Paroles,
acting Wednesday on a petition filed by his lawyer, refused to
commute his sentence to life in prison.
The former hair stylist and mural painter from
Harlem in New York City insisted he had nothing to do with the
1998, attack on Robson, who lived a few doors down from where
Manns was living with a half brother and a cousin at an apartment
complex in Killeen in Central Texas. Asked last week if he knew
who committed the murder, Manns told The Associated Press from a
tiny visiting cage outside death row: "That's not for me to
discuss. Police get paid to ask those questions and find out. I
would never tell them."
DNA and fingerprint evidence implicated Manns,
who also was found with some of the slain woman's property, Murff
Bledsoe, the Bell County prosecutor who handled the case, said. "You
don't forget death penalty cases," he said. "It was a very bad
crime. ... There wasn't any evidence he knew her very well. There
was no evidence they were friends."
Investigators believed Robson, from Newton,
Iowa, at least recognized her killer because there was no
indication of a break-in at the apartment where she lived with her
husband, also a soldier stationed at Fort Hood. Clay Wellenstein
had gone home for a Thanksgiving visit to his family in upstate
New York when he learned of his wife's slaying.
He said he knew Manns only enough to say hello
if they passed each other. "I would like to know: Why?"
Wellenstein, who had been married to Robson for less than a year,
said this week. "And there's never going to be an answer to it."
Manns, he said, "should be strung out to hang and suffer."
Manns said DNA evidence tying him to the crime
was wrong. "I know for a fact they weren't going to give me a fair
break anyway," he told the AP.
Robson was found dead in a bathtub, shot 5
times with a .22-caliber pistol. Manns' cousin, Eric Williams,
owned such a pistol, found a bullet on the floor in his room and
turned the gun over to police after learning of his neighbor's
death with a similar weapon. Tests showed at least one of the
bullets recovered from the woman had been fired from the gun.
Tests also showed Manns' fingerprint on the weapon. Other evidence
showed Manns left a jacket belonging to Robson at the home of a
friend the day her body was discovered and that he had a ring of
Manns said he got the jacket from a friend and
the jewelry belonging to the victim from a drug addict. He said he
took the gun from some friends who were trying to shoot it,
accounting for his prints. Manns was arrested the following month
and tried in 2002.
"He was a very unusual person," one of his
trial lawyers, Frank Holbrook, recalled, noting Manns sometimes
refused to go to court during jury selection. "He was just bored
with it," Holbrook said.
Then after his conviction, Manns again refused
to appear in court at the punishment phase of the trial. "He said
he didn't want to," Holbrook said. "He was taking a nap."
Jurors who decided he should die learned he'd
been indicted in 1992 for 15 counts of robbery in the Bronx, N.Y.,
where he was known as a subway bandit who preyed on commuters
traveling alone. He pleaded guilty to two counts. He also had
convictions in New York for disorderly conduct, criminal mischief,
larceny, controlled substance possession and unauthorized use of a
motor vehicle. "I'm not no angel, far from an angel," Manns
acknowledged from prison.
Manns was paroled in early 1998 after serving
nearly 6 years of a 5- to 10-year term for armed robbery his 2nd
prison term for armed robbery, then came to Texas.
Manns becomes the 17th condemned inmate to be
put to death this year in Texas, and the 422nd overall since the
state resumed capital punishment on December 7, 1982. Manns
becomes the 183rd condemned inmate to be put to death in Texas
since Rick Perry became Governor in 2001.
3 more executions are scheduled for consecutive
nights next week in Texas, starting Tuesday with Eric Cathey, 37,
condemned for the abduction and fatal shooting of a Houston woman
whose boyfriend was reputed to a drug dealer.
Manns becomes the 33rd condemned inmate to be
put to death this year in the USA and the 1132nd overall since the
nation resumed executions on January 17, 1977.
Sources: Associated Press & Rick Halperin
Manns v. State, 122 S.W.3d 171 (Tex.Crim.App.
2003.) (Direct Appeal).
Background: Defendant was convicted in the 27th
District Court, Bell County, Joe Carroll, Judge, of capital murder
and was sentenced to death. Defendant appealed.
Holdings: The Court of Criminal Appeals, Keller,
P.J., held that:
(1) evidence was factually sufficient to support conviction;
(2) as a matter of first impression, defendant's fellow inmate was
not agent of state when he conversed with defendant, and, thus,
there was no violation of the Sixth Amendment right to counsel
when defendant made incriminating statement;
(3) videotape of police interview showing defendant's attempt to
burn his fingertips with cigarette was admissible under the
impeachment exception to the exclusionary rule; and
(4) evidence was legally sufficient on issue of future
KELLER, P.J., delivered the opinion of the
Court in which MEYERS, PRICE, HOLCOMB and COCHRAN, JJ., joined.
Appellant was convicted in February 2002 of capital murder.FN1
Pursuant to the jury's answers to the punishment special issues,
the trial judge sentenced appellant to death.FN2 Direct appeal to
this Court is automatic.FN3 Appellant raises six points of error.
We shall affirm.
FN1. TEX. PEN. CODE § 19.03(a). FN2. See TEX.
CODE CRIM. PROC., Art. 37.071 §§ 2(b), (e), and (g). Unless
otherwise indicated, all future references to articles refer to
the Texas Code of Criminal Procedure. FN3. Art. 37.071 § 2(h)
I. FACTUAL SUFFICIENCY-GUILT
In point of error six, appellant contends that
the evidence was factually insufficient to support his conviction.
Specifically, he contends that the evidence was insufficient to
identify him as the perpetrator. He asserts that the evidence
consisted of a stain on an item of the victim's clothes, along
with an “undated” fingerprint on the barrel of a weapon to which
more than one person had access. He also asserts that there was an
“original suspect” whose access to the weapon was as much as, or
more than, appellant's, and he claims that the jury heard the case
in a vacuum-being led by the State to believe appellant was the
only possible guilty party. Earlier references in appellant's
brief and evidence in the record suggest that appellant's
reference to an “original suspect” is to his half-brother, Murray
A. The law
Under the factual sufficiency standard, an
appellate court conducts a neutral review of all the evidence,
both for and against the jury's verdict, and determines whether
“the proof of guilt is so obviously weak as to undermine
confidence in the jury's determination, or the proof of guilt,
although adequate if taken alone, is greatly outweighed by
contrary proof.” FN4 The appellate court should reverse only if it
determines that a manifest injustice has occurred.FN5
FN4. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000).
FN5. Id. at 12.
B. The evidence against appellant
The evidence against appellant was much
weightier than his brief suggests. There were at least six
significant items of evidence tying appellant to the murder: (1)
his proximity to the victim, (2) his access to, and fingerprint on,
the murder weapon, (3) his DNA on the victim's brassiere, (4) his
possession of the victim's jacket, (5) his possession of the
victim's ring, and (6) his admission of guilt to a third party.
Michelle Robson, the victim, was found dead in
a bathtub on November 19, 1998. There was no sign of forced entry-indicating
that the murderer was likely someone the victim knew. At one time,
appellant lived with his half-brother Bamberg and his cousin Eric
Williams. Bamberg and Williams lived two doors down from the
2. The murder weapon
The victim suffered five gunshot wounds from a
.22 caliber gun. Eric Williams owned a .22. Bamberg and appellant
both knew where the gun was kept. Williams often kept the back
door to his home unlocked because Bamberg had no key. About 8:30
or 9:00 in the evening on November 18th, Williams found a bullet
on the floor in front of his dresser. He called Bamberg, who had
no explanation for the bullet's presence. Shortly thereafter,
appellant arrived and told Williams that he had been at the
residence earlier that day. When Williams learned that the victim
had been killed with a .22, he turned his gun over to the police.
A firearms expert determined that at least one of the bullets
recovered from the victim's body was fired from Williams's gun.
The other bullets could not be excluded as having come from the
gun. Fingerprint testing of the gun revealed fingerprints from
Williams and one fingerprint from appellant. No fingerprints from
Bamberg were found on the gun.
3. Appellant's DNA
The victim was found wearing a black brassiere,
which had semen stains on it. DNA testing showed that DNA from the
semen stains matched appellant's DNA. The probability of another
person matching the DNA profile was one in 869,600,000,000 for
black persons, and even lower for persons of Caucasian or Hispanic
4. The victim's jacket
On November 19th, appellant went to the
residence of friend, Barbara Feazell. He left at the home a jacket,
which Feazell later turned over to law enforcement investigators.
In one of the pockets was a cigarette butt containing appellant's
DNA. Kellie Lynn Meyer, a friend of the victim, identified the
jacket as belonging to the victim.
5. The victim's ring
While appellant was at Feazell's, several rings
fell out of his pants pocket. One of these rings was turned over
to the police. A Von Maur department store receipt showed that the
victim purchased a ring with markings consistent with the ring
that had been turned over.
6. Confession to a third party
Richard Ray Broome was in the county jail
awaiting parole revocation proceedings. He was known by other
inmates as a “jail house lawyer,” who helped other inmates with
legal research and other legal matters. Appellant asked Broome for
his opinion about the proceedings connected with this case.
Appellant told Broome that the government had a gun with his
fingerprint on it. Appellant later clarified that the gun was a
.22. He further said the government had the gun that killed a
woman but could not prove it because a .22 caliber bullet shatters
when it hits the bone. The fact that the murder weapon was a .22
was not published in the media. Later, appellant showed Broome a
letter from Bamberg and said, “This is the man that handed me to
them on a silver platter after I shot the woman.”
C. The evidence in appellant's favor
In his brief, appellant points to no favorable
evidence, other than to suggest that Bamberg was the perpetrator.
There was some evidence that Bamberg was the original suspect. One
could infer that, as appellant's half-brother, Bamberg might have
similar DNA. He also had access to the murder weapon and lived
near the victim. There was also evidence that Bamberg was a
criminal. The letter shown to Broome was apparently written while
Bamberg was an inmate in the prison, and Williams referred to
Bamberg as a thief.
There is some other evidence, not mentioned in
appellant's discussion of this point of error, that might be
construed as favorable. Appellant testified at trial that he did
not commit the murder. He testified that he obtained the victim's
jacket from an acquaintance who committed burglaries in the
neighborhood. He testified that he obtained a film canister full
of gold jewelry from a drug addict. Though appellant told police
that there would be no reason for his fingerprints to be on
Williams's gun, he testified that he had taken it away from some
of Bamberg's friends who were trying to shoot it. Appellant
further testified that he had never been inside the victim's
apartment and had never had sex with her.
Given the above, we cannot find that the
evidence supporting conviction was so obviously weak as to render
the jury's verdict manifestly unjust. Nor do we find the
supporting evidence to be greatly outweighed by contrary proof.
The only contrary proof appellant points to is his suggestion that
Bamberg committed the crime. But, the evidence linking Bamberg to
the crime is rather weak. Although Bamberg also had access to the
murder weapon, his fingerprints were not on it. And while
Bamberg's DNA might be similar to appellant's (although there was
no evidence of that), he is only a half-brother and so half of his
DNA would be from a different source. Moreover, Bamberg was not
linked to the victim's jacket or ring, and he did not confess to a
third party. The evidence was factually sufficient. Point of error
six is overruled.
II. BROOME'S TESTIMONY
In point of error one, appellant complains that
Broome's testimony violated his Sixth Amendment right to counsel
because Broome was a state agent who deliberately elicited
appellant's incriminating statements. Because we find that Broome
was not an agent of the State when he conversed with appellant
about appellant's pending prosecution, we hold that there was no
violation of the Sixth Amendment.
A. Factual background
In the 1980's, Broome was on parole for the
offense of unauthorized use of a motor vehicle and was arrested
for violating that parole. While he was in jail pending revocation
proceedings, he obtained information about a murder. In 1992, he
testified against the murder defendant, who was sentenced to
ninety-nine years in prison. Although Broome had hoped the
information he obtained would help him in front of the parole
board, his parole was revoked anyway.
Broome was later convicted of possession of
methamphetamine and sentenced to twelve years in prison. He was
subsequently paroled. On September 2, 1999, Broome was arrested
for driving while intoxicated (misdemeanor) and also because of a
parole-violation warrant. Broome began negotiating with the
District Attorney's office and the Temple Police Department
regarding information he claimed to possess regarding drug cases.
Billy Curry, an investigator for the District Attorney, helped
arrange a meeting between Broome, himself, an assistant district
attorney, and members of the Temple Police Organized Crime Unit.
Although Broome supplied some information, he was not promised
anything.FN6 Nor was he asked to obtain any additional information.
The county attorney expressed a willingness to dismiss the DWI
case if the parole board would agree not to revoke Broome's parole,
but the parole board would not agree.
FN6. In a letter dated February 3, 2000, Broome
stated that, in exchange for his cooperation on the drug cases, he
wanted the State to release him on the street, pay his attorney,
pay him $500, reinstate his driver's license, give him clothes,
and give him a say about whom he would testify against. None of
these conditions were met.
During February and March of 2000, Broome
shared a cell with appellant. In February, Scott Stevens, Broome's
attorney, advised the District Attorney's office that Broome had
information about appellant's case that might be helpful. Broome
was brought to the District Attorney's office on February 24th,
and Curry was given the task of taking Broome's statement. Both
Curry and Broome testified at trial that Curry made no promises or
offers and that he did not ask Broome to elicit any more
information. Curry told Broome that, if he had further need to
contact the District Attorney's office, he should do so through
his attorney. Curry testified that this admonition was routinely
given to inmates who had pending cases.
A subsequent communication between Broome and
his attorney's office led Broome to believe that the meeting with
Curry had not been authorized by Stevens. As a result of this
misunderstanding, Broome wrote a letter to Curry complaining that
Curry had misled him about whether the February 24th interview had
been authorized by his attorney. In the letter Broome further
stated, “Also, the information you requested me to obtain I have.”
At trial, Broome explained that this statement was a lie and that
he made it because he was mad and he had read a case in the law
library that held “if you were asked to do this then they couldn't
use you to testify.” Broome had written the number of the case on
the front of the envelope containing the letter. Broome also
stated in the letter that he had a lot of things on his mind and
found things hard to recall after more than a week or two. At
trial, Broome denied that this latter statement was some sort of
When the misunderstanding was later cleared up,
Broome's attorney contacted the District Attorney's office to
arrange a second meeting. Stevens recalled from his prior
conversations with Broome that Broome “had given information, that
he got the impression that the information may or may not be
enough, but that he was not asked for more information; and then
after that time he contacted me about having more information and
asked me to recontact the D.A.'s office.” Pursuant to this request
for a second meeting, Curry interviewed Broome on March 3rd. Curry
testified that no offers, inducements, or promises were made to
Broome at this meeting. Curry also testified that he did not imply
at this meeting that anything would happen as a result of Broome's
Broome denied that avoiding parole revocation
was a motive for offering information about appellant. He
testified that the parole issue was “dead in the water” because
the parole board had already indicated that his parole would be
revoked. He also denied that the information would speed up his
release because the parole board had designated him to “serve all”
and his new release date was for mandatory supervision.
Stevens testified that the District Attorney's
office made no promises, but it was Stevens's understanding that
“if the District Attorney's Office felt like that there was
assistance that merited or there was information that merited some
consideration, that they might give that consideration at some
point in the future if he gave the information.” Stevens's
testimony did not make clear how and when he came to this
understanding. At some point after both interviews with Broome,
the District Attorney's office decided that Broome's information
was worth dismissing the DWI, if the County Attorney would agree.
The County Attorney agreed, and the DWI was dismissed on March
20th. That same day, Broome's parole was revoked.
Finally, the record does not delineate which
portions of Broome's testimony relate to information given in the
first interview and which portions relate to the second interview.
Broome's testimony regarding the defendant's statements has
already been detailed in the factual sufficiency portion of this
* * *
We need not, at this point, try to define
precisely when someone becomes a government agent for Massiah
purposes. Under the facts of this case, viewed in the light most
favorable to the trial court's ruling, Broome was not a government
Curry and Broome both testified that there was
no agreement between Broome and the government during the times
Broome spoke with appellant. The evidence shows Broome attempted
to strike a deal but was unsuccessful. The government eventually
rewarded him by dismissing his misdemeanor DWI prosecution, but
that decision was made after Curry's second interview with Broome-after
Broome had already obtained all the information that was later
used at trial. Curry and Broome also testified that Broome was
never asked or instructed to elicit information from appellant.
Although Broome's letter to Curry (saying “the information you
requested me to obtain I have”) was some evidence to the contrary,
under Guzman the trial court was within its discretion to believe
the testimony of the State's witnesses.
We are left with evidence of two remarks
attributable to the government that were not subject to a factual
dispute: (1) Broome's defense counsel's testimony of his
understanding that the District Attorney's office might give
consideration if there was information that merited consideration,
and (2) Curry's testimony that he told Broome to consult his
attorney if he wished to contact the District Attorney's office in
the future. Even if we assume that someone in the District
Attorney's Office made a statement regarding “information meriting
consideration,” and that it occurred before Broome elicited some
or all of the information from appellant-an assumption not clearly
born out in the record-such a statement was simply a noncommittal
response. Broome was not told anything he did not already know:
useful information is sometimes rewarded. But no promise of reward
was made here, and the District Attorney's office made no attempt
to encourage the further gathering of information.
As for Curry's admonition to Broome to consult
his attorney if he wanted further contact with the District
Attorney's office, that statement appears to be an attempt by
Curry to respect Broome's right to counsel, rather than some sort
of instruction or encouragement to obtain more information. Curry
even testified that that statement was routinely given at the end
of interviews with inmates who had pending prosecutions (as was
the case with Broome), and the trial court was within its
discretion to believe that explanation.
Viewed with the proper deference to the trial
court's ruling, the evidence in this case shows that Broome was an
entrepreneur who exploited appellant for his own gain. The
government did nothing to encourage Broome's behavior but merely
accepted the information Broome had to offer. We conclude that
these circumstances are not enough to give rise to an agency
relationship, and therefore, Broome was not an agent of the
government when he elicited appellant's incriminating statements.
Point of error one is overruled.
III. EXTRANEOUS OFFENSES
In point of error two, appellant contends that
the State improperly impeached him with evidence of extraneous,
unadjudicated offenses. Appellant testified at the guilt phase of
trial. During direct examination, appellant admitted that he had
been convicted of several robberies in New York. On cross-examination,
he also admitted that he had been charged with more robberies than
the ones he pled guilty to. The testimony showed that in 1992
appellant was indicted for fifteen counts of robbery in the Bronx,
but he pled guilty to only two counts. Appellant admitted to
robbing about ten people. Appellant's complaint on appeal is that
the State impeached him not only with his convictions but also
with the other offenses for which he was charged. Appellant
contends that he attempted to prevent this allegedly improper
impeachment in a hearing outside the presence of the jury.
Appellant had filed a motion in limine to
require the State to approach the bench before going into
extraneous offenses. In accordance with the motion, the State
approached the trial court for a hearing outside the presence of
the jury. In this hearing, the State revealed its intent to
mention not only the convictions but also the associated charged
offenses that did not result in conviction. The following colloquy
[PROSECUTOR]: Additionally, Your Honor, the
defendant, when he was talking about that he robbed people on the
trains and all the time he was talking plural, I believe we have
the right to go into those specific extraneous offenses. [DEFENSE
COUNSEL]: Well, that's what he was convicted of. We had to explain
to the jury. [PROSECUTOR]: As he stated he was charged with a lot
of robberies and he worked out a plea bargain so that he didn't
have to plead to all the ones he admitted doing, and so I'm going
to talk to him about that because he said it. THE COURT: Yeah.
Okay. Well, you might take it up outside the presence of the jury
and ask the question, and I could hear the question and the answer;
but it sounds to me on first-but it sounds to me like it's proper
cross-examination. But I don't know. I haven't heard the objection
or the question yet. [PROSECUTOR]: Judge, generally what I will
ask him is how many people did he rob on the subways with the fake
gun or whatever. I will ask him about the number of counts that
were in the charges on him and what those actual charges were. THE
COURT: Okay.[DEFENSE COUNSEL]: Like I said, he talked about them,
Judge. He pled guilty to them so - THE COURT: Okay. That's fine.
All right sir. We will see you back in about 15 minutes.
Defense counsel lodged no objections during the
prosecutor's subsequent cross-examination of the defendant
regarding the extraneous offenses.
Although a motion in limine does not preserve
error, error can be preserved by a timely objection made in a
hearing outside the presence of the jury.FN94 However, we disagree
with appellant's contention that he attempted to prevent the
admission of the complained-of evidence during the hearing outside
the presence of the jury. The record reveals that defense counsel
raised no objection to the State's proposed line of questioning
during the hearing. And because appellant also raised no objection
during the subsequent cross-examination, he has failed to preserve
error.FN95 Point of error two is overruled.
FN94. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003).
FN95. Tex.R. Evid. 103(a)(1).
IV. THE VIDEOTAPE
In point of error three, appellant contends
that the trial court erred in allowing the State to impeach his
testimony with an illegally obtained videotaped statement. He
complains that the statement was illegally obtained because it was
the fruit of an arrest made without probable cause. He cites the
Fourth Amendment as authority for his argument. He also appears to
argue that his statement should be suppressed because it was
involuntary and inherently unreliable.
A. Factual background
Bamberg gave the police a tip that appellant
was involved in the murder and that he would be at Williams's
apartment. The police approached appellant, drew their weapons,
ordered appellant to lie down on the ground, handcuffed him,
placed him in the back of a patrol car, and transported him to the
police station. Officer Ortiz testified that, at the time
appellant was handcuffed, he was told that he was not under arrest.
At the police station, appellant was taken to an interview room.
From that point forward, appellant was videotaped.
In the interview room, Ortiz took off
appellant's handcuffs. He explained to appellant that the police
had detained him in the manner they did for their own safety and
appellant's safety rather than to effectuate an arrest. He further
told appellant he was not under arrest and he was free to leave at
any time. On cross-examination, Ortiz admitted that there were
locked doors between appellant and the station's exit. During his
testimony, Ortiz never explained what safety concerns required
detaining appellant in the manner that occurred. Appellant
testified that officers did indeed tell him in the interview room
that their method of transporting him to the station was due to
security concerns, and they left appellant with the impression
that “all I had to do was say, you know, realistically did I know
anything about the murder-which I didn't-and to give them a
statement and I was free to leave.”
Before asking any questions, the officers gave
Miranda warnings. Appellant gave an exculpatory version of events
and denied any involvement in the crime. During the interview,
appellant falsely told the police that his name was Charles Manns.
At trial, appellant testified that he did so because he knew he
had an outstanding parole warrant and would be arrested if the
officers learned his true identity. Sometime during the interview,
after the warnings were given, appellant attempted to burn his
fingertips with a cigarette he was smoking. Sometime after this
attempt, appellant was fingerprinted. Near the end of the
interview, officers did learn appellant's identity and as a result
discovered the outstanding parole warrant. After that discovery,
appellant was arrested.
The State did not present evidence regarding
any portion of this interview in its case-in-chief. During
appellant's direct examination at trial, defense counsel
questioned appellant about the interview and about some of his
responses. The State later cross-examined appellant regarding
whether he had touched his fingertips with a cigarette: Q. You
remember smoking cigarettes in there? A. Yes. Q. You remember what
you did with those cigarettes other than smoke them? A. I had
cigarettes-I had cigarettes left that was in my pocket. Q. Okay.
Do you remember anything else you did with a burning cigarette? A.
Anything else I did with a burning cigarette? Q. Uh-huh. Other
than smoke it. A. No. Q. Remember touching it to your fingertips?
A. No. Q. Didn't do that, did you? A. No. Q. Why would you do that
anyway? A. I didn't do that. The defense raised no objection to
this line of questioning.
After cross-examining appellant on a number of
matters, the State requested a hearing outside the presence of the
jury. In that hearing, the State requested that the trial court
admit into evidence the portion of the videotaped interview that
reflected appellant's attempt to burn his fingertips. Although
defense counsel conceded that he himself delved into the content
of the interview in direct examination, he objected to showing the
portion of the videotape in question:
We had previously filed a motion contending
that any such statements were illegally obtained as a result of an
illegal arrest. Now I know I went into some parts of the statement.
It was my intent at the time though concerning that the statement
be admissible and used afterwards for impeachment purposes. I did
not specifically address with Mr. Manns the issue of him touching
his a [sic] cigarette to the tips of his fingers during that
statement. It's my understanding they intend to show that to the
jury. We would object to showing that to the jury at this point in
time. Our position still is that any statements obtained from
Denard Manns on November 23, '98, the videotaped confessions, were
illegally obtained as a result of an arrest made without probable
In both the motion to suppress and his oral
objection, defense counsel cited Article I, § 9 of the Texas
Constitution and Article 38.23 of the Texas Code of Criminal
B. Procedural problems
There are a number of procedural problems that
impede addressing this issue on the merits. Initially, appellant
seems to concede that impeachment is an exception to prohibitions
against admitting illegally obtained evidence but attempts to
circumvent this exception by urging an involuntary confession
claim. However, such a claim was not urged at trial, and we will
not consider it.FN96 There is also a question about whether any
Fourth Amendment claim has been properly preserved. At trial,
appellant cited to state constitutional and statutory provisions
but did not cite to the Fourth Amendment. In addition, appellant's
brief refers to a “statement” that was improperly admitted, but no
statement was admitted-appellant's attempt to burn his fingertips
was nontestimonial conduct. Appellant does not discuss in his
brief the nature of the videotape evidence, though we discovered
the nature of this evidence by reading the record at the record
citations he provided. However, assuming arguendo that we can
reach the merits of a complaint about the admission of the portion
of the videotape involving appellant's attempt to burn his
fingertips, his argument fails. FN96. See Tex.R.App. P. 33.1(a).
We need not decide whether the videotape
evidence was legally obtained. The State did not introduce the
evidence in its case-in-chief but used it solely for impeachment
purposes. According to the Supreme Court, evidence obtained in
violation of the Fourth Amendment FN97 may be used to impeach the
defendant's trial testimony.FN98 Moreover, the impeachment
evidence need “not squarely contradict the defendant's testimony
on direct examination” so long as it contradicts his testimony on
cross-examination and the cross-examination “questions would have
been suggested to a reasonably competent cross-examiner.” FN99
Proper impeachment evidence includes physical evidence.FN100
Impeachment is allowed because “[i]t is essential ... to the
proper functioning of the adversary system that when a defendant
takes the stand, the government be permitted proper and effective
cross-examination in an attempt to elicit the truth.” FN101 And
impeachment evidence is allowed “even though its introduction is
certain to result in conviction in some cases.” FN102 However, the
impeachment exception is narrowly crafted to guard against perjury
while giving the defendant the greatest possible leeway to testify
on his own behalf: “But the exception leaves defendants free to
testify truthfully on their own behalf; they can offer probative
and exculpatory evidence to the jury without opening the door to
impeachment by carefully avoiding any statements that directly
contradict the suppressed evidence.” FN103
FN97. Although appellant relied upon the Texas
Constitution and Article 38.23 at trial, his brief does not cite
those provisions or explain how their protections might differ
from the Fourth Amendment. Consequently, we will analyze the claim
solely under Fourth Amendment jurisprudence. FN98. Walder v.
United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1953);
United States v. Havens, 446 U.S. 620, 624-628, 100 S.Ct. 1912, 64
L.Ed.2d 559 (1980). FN99. Havens, 446 U.S. at 621, 626, 100 S.Ct.
1912. FN100. Id. at 623, 100 S.Ct. 1912 (T-shirt). FN101. Id. at
626-627, 100 S.Ct. 1912. FN102. Stone v. Powell, 428 U.S. 465,
485, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). FN103. James v.
Illinois, 493 U.S. 307, 314, 110 S.Ct. 648, 107 L.Ed.2d 676
Although appellant did not testify in his
direct examination about his nonverbal conduct during the
videotaped interview, he did testify about statements he made
during that interview. This testimony was designed to convey the
impression of forthrightness in his interview with the police and
in his testimony at trial. Appellant's conduct during the
interview was relevant to rebut that impression. Even if it had
not been relevant, however, no objection was made to the State's
line of questioning. Because appellant denied committing the
conduct, the State was permitted to offer the videotape evidence
under the impeachment exception to the exclusionary rule. Point of
error three is overruled.
V. SUFFICIENCY OF THE EVIDENCE-FUTURE
A. Legal sufficiency
In point of error four, appellant contends that
the evidence is legally insufficient to support the jury's
affirmative answer to the future dangerousness special issue.FN104
Under a legal sufficiency review of this special issue, we view
the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found
beyond a reasonable doubt that there is a probability that
appellant would commit criminal acts of violence constituting a
continuing threat to society.FN105 “We have enumerated a
non-exclusive list of factors” that may be considered in
conducting such a review:
FN104. That special issue asks: “whether there
is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.”
Article 37.071, § 2(b)(1). FN105. Smith v. State, 74 S.W.3d 868,
(1) the circumstances of the capital offense,
including the defendant's state of mind and whether he was acting
alone or with other parties;
(2) the calculated nature of the defendant's
(3) the forethought and deliberateness
exhibited by the crime's execution;
(4) the existence of a prior criminal record
and the severity of the prior crimes;
(5) the defendant's age and personal
circumstances at the time of the offense;
(6) whether the defendant was acting under
duress or the domination of another at the time of the commission
of the offense;
(7) psychiatric evidence; and
(8) character evidence.FN106
In the light most favorable to the verdict, the
evidence shows the following: The crime was a brutal robbery-rape-murder
of someone who had at one time been a neighbor. Appellant had
previously been convicted of disorderly conduct, attempted
criminal mischief, criminal mischief, petty larceny, possession of
a controlled substance (twice), unauthorized use of a motor
vehicle, attempted robbery (two counts), and robbery (two separate
occasions: the first time with one count, the second time with two
counts). Appellant had robbed at least ten people with what
appeared to be a gun. FN107 In one of the robberies, after
appellant had taken the victim's money, he attempted to take a
gold necklace the victim was wearing. The victim hit appellant in
the chin and ran, but appellant followed and engaged in a scuffle.
After seeing two police officers who noticed the scuffle,
appellant escaped-with the victim's necklace.
FN107. There was testimony that a fake gun was
confiscated from appellant upon his arrest.
Appellant had been incarcerated twice in a
penitentiary in New York. During the first period of incarceration,
a two year period, appellant incurred seventeen disciplinary
infractions. One of those infractions involved his possession of a
plexiglass shard from a broken mirror. During the second period of
incarceration, appellant was disciplined fifteen times.
While awaiting trial for the current offense in
the Bell County jail, appellant was disciplined for possessing a
homemade tattoo needle. In another incident, a Bell County jailer
caught appellant fighting with another inmate. In yet another
incident, appellant swung his fist at a Bell County jailer who
began a routine search for contraband before allowing access to
the prison law library. When the jailer blocked appellant's swing,
appellant said, “Touch me again, m----r f-----r, and I'm going to
kill you.” Despite appellant's warning, the jailer proceeded with
the search. Appellant then stated, “I told you, you touch me, I'm
going to kill you.” At that point, other officers came to take
appellant back to his cell. While being returned to his cell,
appellant made threats to the jailer and the other officers.
Appellant was also disciplined in the Bell County jail for
possessing a razor-sharp metal object that he had hidden in his
Under this record, we find that the evidence
was legally sufficient to show a probability that appellant would
commit criminal acts of violence constituting a continuing threat
to society. Point of four is overruled.
B. Factual sufficiency
In point of error five, appellant contends that
the evidence was factually insufficient to support the jury's
answer to the future dangerousness special issue. We do not
conduct a factual sufficiency review of this special issue.FN108
Point of error five is overruled.
FN108. McGinn v. State, 961 S.W.2d 161, 166-169
(Tex.Crim.App.), cert. denied, 525 U.S. 967, 119 S.Ct. 414, 142
L.Ed.2d 336 (1998).
The judgment of the trial court is affirmed.
Manns v. Quarterman, 236 Fed.Appx.
908 (5th Cir. 2007) (Habeas).
Background: Following appellate affirmance, 122
S.W.3d 171, of his state court conviction of capital murder and
his sentence of death, and denial of his state court application
for writ of habeas corpus, petitioner sought writ of habeas
corpus. The United States District Court for the Western District
of Texas denied petition, and petitioner sought certificate of
Holdings: The Court of Appeals, King, Circuit
Judge, held that:
(1) mitigation special issue which failed to allocate burden of
proof as to mitigation did not send “mixed signals” to jury in
violation of Eighth Amendment;
(2) petitioner had no constitutional due process right to have
absence of mitigating factors found by sentencing jury beyond
reasonable doubt; and
(3) aggravating offenses were not elements of capital murder.
Certificate of appealability denied. Garza, J., concurred
specially with opinion.
KING, Circuit Judge:
Pursuant to 5th Cir. R. 47.5, the court has
determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5th
Cir. R. 47.5.4.
Petitioner-appellant Denard Sha Manns seeks a
certificate of appealability (“COA”) to appeal the district
court's judgment denying his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Because Manns has not made a
substantial showing of the denial of a constitutional right, we
DENY his COA application.
Manns was indicted in Texas state court for the
November 1998 death of Michele Robson. The indictment charged
Manns with capital murder and alleged that Manns intentionally
caused Robson's death in the course of committing or attempting to
commit robbery, kidnapping, and aggravated sexual assault. Manns
pleaded “not guilty” and proceeded to a jury trial in February
2002 before the 27th District Court of Bell County, Texas. He was
convicted of capital murder on March 1, 2002, and was sentenced to
death. Manns appealed his conviction and sentence to the Texas
Court of Criminal Appeals, which affirmed. See Manns v. Texas, 122
S.W.3d 171 (Tex.Crim.App.2003).
On November 10, 2003, Manns filed a state
application for a writ of habeas corpus. The 27th District Court
of Bell County, Texas, entered findings of fact and conclusions of
law and recommended that Manns's application be denied. The Court
of Criminal Appeals summarily adopted the trial court's findings
and conclusions and denied Manns's application on September 29,
2004. See Ex Parte Manns, No. 59,664-01, slip op. (Tex.Crim.App.
Sept. 29, 2004) (per curiam) (unpublished opinion).
Manns filed a federal petition for a writ of
habeas corpus in the Western District of Texas on September 29,
2005 and an amended petition on October 14, 2005. The district
court denied the petition on April 21, 2006. See Manns v. Dretke,
No. W-04-CA-332, slip op. (W.D.Tex. Apr. 21, 2006) (unpublished
opinion). Manns timely filed a notice of appeal and moved for a
COA, but the district court denied Manns's COA request. Manns now
seeks a COA from this court to appeal the district court's denial
of his habeas petition.
* * *
A. Claims Two and Four: Burden of Proof on
We first address Manns's second and fourth
claims. Both claims relate to the mitigation special issue
submitted to the jury during the sentencing phase of his trial and
to the lack of any explicit assignment of a burden of proof on the
In accordance with the version of article
37.071, section 2(e)(1) of the Texas Code of Criminal Procedure as
it then existed, the jury was asked:
Do you find from the evidence, taking into
consideration all of the evidence, including the circumstances of
the offense, the defendant's character and background, and the
personal moral culpability of the defendant, that there is a
sufficient mitigating circumstance or circumstances that a
sentence of life imprisonment rather than a death sentence be
See Tex.Code Crim. Proc. Ann. art. 37.071 §
2(e)(1) (Vernon Supp.2004) (amended 2005). Although the jury was
asked whether there were mitigating factors sufficient to warrant
a sentence of life imprisonment rather than death, the jury was
not instructed whether the burden of proof on the question was
borne by the state or by Manns.
In his second claim, Manns contends that the
lack of any burden-of-proof allocation sent “mixed signals” to the
jury in violation of Penry v. Johnson ( Penry II ), 532 U.S. 782,
121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). And in his fourth claim,
Manns asserts that under Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S.
584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the state should have
been required to prove beyond a reasonable doubt the absence of
sufficient mitigating evidence warranting a sentence of life
The state asserts here, as it did before the
district court, that Manns did not exhaust these claims in state
court. True, Manns raised these claims for the first time in his
federal habeas petition; he did not raise them at any point in his
original state criminal proceedings or in his state habeas
application. Even though Manns failed to exhaust these claims in
state court, the district court proceeded to the merits and denied
the claims. The district court was permitted to deny Manns habeas
relief on the merits of his claims notwithstanding his failure to
exhaust. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the State.”). We perform a threshold inquiry into the
merits of Manns's claims to determine whether jurists of reason
could disagree with the district court's denial of the claims.
2. Claim Two: Penry Claim
Manns asserts that the mitigation special issue
sent “mixed signals” to the jury and thereby violated the Eighth
Amendment under Penry II. The district court denied Manns's claim,
observing that Manns received the instruction required by article
37.071, section 2(e)(1), which does not contain a nullification
instruction as prohibited by Penry II.
Manns's claim is not the typical Penry claim-i.e.,
that the mitigation special issue presented to the jury did not
permit the jury to consider and give full effect to Manns's
mitigating evidence. See, e.g., Scheanette v. Quarterman, 482 F.3d
815, 824-25 (5th Cir.2007). Manns does not argue that the jury
received mixed signals about how to give full effect to his
mitigating evidence. In fact, Manns's COA request does not even
identify what mitigating evidence, if any, he presented to the
Instead, Manns opines that the jury received
mixed signals in violation of Penry II because the mitigation
special issue did not explicitly allocate the burden of proof on
the question. He asserts that the jury's answer to the mitigation
special issue may have turned on whether the jury believed it
should begin its deliberations with a presumption of a death
sentence or a presumption of a sentence of life imprisonment.FN1
In essence, Manns posits that Penry II requires the trial court to
instruct the jury regarding which party bears the burden of proof
in order to avoid sending prohibited mixed signals.
FN1. The heart of Manns's argument is as
follows:[Under Penry II,] [t]he question here then becomes whether
the statutory “mitigation” issue submitted to the jury in this
case also suffers from the constitutional flaw of sending “mixed
signals.” To pose the question is to answer it, for [the Texas
Court of Criminal Appeals] has already acknowledged that the
statutory issue is unclear as to the burden of proof.... As
discussed above, the practical effect is even worse, as ... the
burden seems to fall on the defense. Jurors can focus their
deliberations on whether a defendant has produced sufficient
evidence to convince them a death sentence should not be imposed.
On the other end, jurors could focus on whether the State
disproved or rebutted the mitigating evidence produced by the
defendant. Put another way, a juror can begin deliberations with
either a presumption that a death sentence is appropriate, or a
life sentence is appropriate. A juror's answer may well depend on
which presumption he uses, and how he approaches the issue. With
such conflicting interpretations, there is no way for a juror to
determine how they should approach answering the issues. In this
situation it is more than probable that jurors may have different
views of how the issues should be approached.
But Penry II simply does not address which
party bears the burden of proof on the mitigation special issue,
nor does it require that the burden be assigned to a particular
party. Instead, Penry II reaffirmed that the jury must “be able to
‘consider and give effect to [a defendant's mitigating] evidence
in imposing sentence.’ ” 532 U.S. at 797, 121 S.Ct. 1910 (emphasis
omitted) (alteration in original) (quoting Penry v. Lynaugh (
Penry I ), 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989)). The Supreme Court held that a judicially crafted
nullification instruction did not permit the jury to give full
effect to the defendant's mitigating evidence in part because
“[a]t best, the jury received mixed signals” from the combination
of the nullification instruction and an instruction to follow the
oath and the law. See Penry II, 532 U.S. at 802, 121 S.Ct. 1910.
The district court observed that Manns's jury did not receive a
nullification instruction and implicitly concluded that the jury
therefore did not receive Penry II's prohibited “mixed signals.”
Jurists of reason could not disagree with the district court's
resolution of Manns's claim, and accordingly we deny Manns's COA
request on this claim.
3. Claim Four: Apprendi/Ring Claim
Manns also contends that his Fourteenth
Amendment due process rights were violated because the mitigation
special issue implicitly placed the burden of proving sufficient
mitigating factors onto Manns. Manns posits that under Apprendi
and Ring, the state must bear the burden of proving beyond a
reasonable doubt that there are insufficient mitigating
circumstances to warrant the imposition of a sentence of life
imprisonment rather than death. The district court denied this
claim, observing that the same argument has been rejected at both
the state and federal level.FN2
FN2. The district court cited Russeau v. Texas,
171 S.W.3d 871 (Tex.Crim.App.2005), Resendiz v. Texas, 112 S.W.3d
541, 549-50 (Tex.Crim.App.2003), and Resendiz v. Dretke, No.
4:05-CV-1604, 2005 WL 2171890 (S.D.Tex. Sept. 7, 2005) (unpublished
In previous cases, we have denied COA
applications on this very issue, see Scheanette, 482 F.3d at
828-29, and Rowell v. Dretke, 375-78 (5th Cir.2005), and for the
same reasons we do so in this case as well. Under Apprendi and
Ring, the aggravating factors permitting the elevation of the
sentence from life imprisonment to death must be found by a jury.
See Ring, 536 U.S. at 609, 122 S.Ct. 2428. But nothing in Apprendi
or Ring addresses mitigating factors. See Ring, 536 U.S. at 597 n.
4, 122 S.Ct. 2428 (“[Ring] makes no Sixth Amendment claim with
respect to mitigating circumstances.”). As this court has observed,
the absence of mitigating factors need not be proved by the state
beyond a reasonable doubt because “a finding of mitigating
circumstances reduces a sentence from death, rather than
increasing it to death.” Granados v. Quarterman, 455 F.3d 529,
536-37 (5th Cir.), cert. denied, --- U.S. ----, 127 S.Ct. 732, 166
L.Ed.2d 568 (2006). Moreover, the Supreme Court recently made
clear that its decision in Walton v. Arizona, 497 U.S. 639, 110
S.Ct. 3047, 111 L.Ed.2d 511 (1990), that “a state death penalty
statute may place the burden on the defendant to prove that
mitigating circumstances outweigh aggravating circumstances,” is
still controlling. Kansas v. Marsh, --- U.S. ----, 126 S.Ct. 2516,
2524, 165 L.Ed.2d 429 (2006). Jurists of reason could not disagree
with the district court's resolution of this claim. Accordingly,
Manns's request for a COA on this claim is denied.
B. Claim 1: Lack of Juror Unanimity on
Manner of Committing Capital Murder
We turn next to Manns's first claim. Manns
contends that his Fourteenth Amendment right of due process and
his Sixth Amendment right of trial by jury were violated because
the trial court did not require the jury to unanimously agree
whether the offense elevating murder to capital murder was robbery,
kidnapping, or aggravated sexual assault.FN3 Manns first presented
this claim in his state habeas application.FN4 The Court of
Criminal Appeals rejected Manns's argument, relying on Kitchens v.
Texas, 823 S.W.2d 256 (Tex.Crim.App.1991).FN5 Manns again
presented the argument in his federal habeas petition. The federal
district court also relied on Kitchens in rejecting Manns's
argument. Manns now seeks a COA on this claim.
FN3. Although Manns's first claim is predicated
on both the Fourteenth Amendment and the Sixth Amendment, the
right of juror unanimity “is more accurately characterized as a
due process right than as one under the Sixth Amendment.” Schad v.
Arizona, 501 U.S. 624, 634 n. 5, 111 S.Ct. 2491, 115 L.Ed.2d 555
(1991) (plurality opinion).
FN4. The state contends that Manns did not
exhaust his state remedies on this claim. But in his state habeas
application, Manns asserted that his constitutional rights of due
process and trial by jury were violated because the jury
instructions “did not require all twelve jurors to agree on
whether the aggravating factor elevating murder to capital murder
was kidnapping, robbery[,] or aggravated sexual assault.”
Consequently, Manns fairly presented this claim to the state
courts and therefore exhausted his state remedies. We thus proceed
with a threshold inquiry into the district court's resolution of
FN5. The Court of Criminal Appeals did so
indirectly by summarily adopting the findings and conclusions of
the state district court, which relied on Kitchens.
The indictment charged Manns with capital
murder, which was defined in 1998 in relevant part as
“intentionally commit[ting] ... 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. § 19.03(a)(2) (Vernon 1998) (amended 2003). The
indictment alleged that Manns “caus[ed] the death of an
individual, namely, MICHELE ROBSON, by shooting the said MICHELE
ROBSON with a firearm ... in the course of committing or
attempting to commit the offense[s] of kidnapping[,] ... robbery[,]
... [and] aggravated sexual assault of the said MICHELE ROBSON.”
The state trial court instructed the jury:
[I]f you believe from the evidence beyond a
reasonable doubt, that the defendant, DENARD MANNS, ...
intentionally commit[ted] murder by causing the death of an
individual, namely, MICHELE ROBSON, by shooting the said MICHELE
ROBSON with a firearm, and (1) the defendant was then and there in
the course of committing or attempting to commit the offense of
kidnapping of the said MICHELE ROBSON; or
(2) ... robbery of the said MICHELE ROBSON; or
(3) ... aggravated sexual assault of the said MICHELE ROBSON,
you will find the defendant guilty of the offense of Capital
The jury reported on a general verdict form its
finding that Manns was “guilty of the offense of Capital Murder as
alleged in the indictment.”
Manns argues that his constitutional rights
were violated because the jury was not required to unanimously
agree on which aggravating offense (i.e., kidnapping, robbery, or
aggravated sexual assault) elevated his crime to capital murder.
The thrust of Manns's argument is that the aggravating offenses
enumerated in section 19.03(a)(2) are separate elements of the
offense of capital murder, not merely alternate means of
committing capital murder. As such, Manns contends, the jury
should not have been permitted to find him guilty of capital
murder without agreeing unanimously on at least one particular
offense enumerated in section 19.03(a)(2).
In Schad v. Arizona, 501 U.S. 624, 111 S.Ct.
2491, 115 L.Ed.2d 555 (1991), a plurality of the Supreme Court
“concluded that when a statute enumerates alternative routes for
its violation, whether jurors must be unanimous with respect to a
particular route depends on two questions.” United States v.
Edmonds, 80 F.3d 810, 815 (3d Cir.1996) (en banc). The first
question involves an inquiry into legislative intent: “[D]id the
legislature intend the different routes to establish separate ‘offenses,’
for which unanimity is required as to every fact constituting the
offense, or different ‘means' of violating a single offense, for
which unanimity is not required?” Id.; see also Schad, 501 U.S. at
636-37, 111 S.Ct. 2491 (plurality opinion). The second inquiry is
constitutional in nature: “[I]f the legislature intended the
alternative routes to be mere means of violating a single statute,
is the statute's definition of the crime unconstitutional under
the Due Process Clause?” Edmonds, 80 F.3d at 815; see also Schad,
501 U.S. at 632, 111 S.Ct. 2491 (plurality opinion).
In Kitchens, the Texas Court of Criminal
Appeals answered the first Schad question with regard to the crime
of capital murder in Texas. The Kitchens court determined that the
offenses enumerated in section 19.03(a)(2) do not establish
separate elements but rather are merely “differing methods of
committing one offense.” 823 S.W.2d at 257-58. The court
explicitly condoned the use of a general verdict in a capital-murder
trial, whereby the jury need not be unanimous as to which of the
enumerated offenses elevates murder to capital murder. Id.
Manns contends, however, that Kitchens was
wrongly decided. He criticizes the perceived lack of thoroughness
in Kitchens's analysis, contending that the Court of Criminal
Appeals did not perform a sufficient inquiry into the Texas
legislature's intent as contemplated by Schad and Richardson v.
United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985
(1999). He maintains that the Kitchens court instead simply “declare[d],
essentially by judicial fiat, that any alternative theories of
commission of an offense as defined within a single penal statute
will invariably and always be regarded as nothing more than
‘means' of satisfying the elements of the statute.” He argues that
a proper inquiry into legislative intent yields the conclusion
that the Texas legislature intended for section 19.03(a)(2) to
create separate elements, not merely to provide alternative
methods for committing a single crime. He relies primarily on the
statute's language, but he also argues that even if the statute is
ambiguous, there should essentially be a presumption that the
statute creates separate elements. Finally, Manns opines that
Kitchens no longer represents the view of the Texas courts. He
argues that the Court of Criminal Appeals revisited the issue of
juror unanimity in Ngo v. Texas, 175 S.W.3d 738 (Tex.Crim.App.2005),
and that Ngo's rationale supports a conclusion that section
19.03(a)(2) enumerates elements of capital murder, not merely
manner and means of proving a single element. FN6
Manns also asserts that the Court of Criminal
Appeals specifically held in Rodriguez v. Texas, 146 S.W.3d 674 (Tex.Crim.App.2004),
that the alternative theories of capital murder enumerated in
section 19.03(a)(2) do in fact constitute elements of the offense.
The Rodriguez court did state that the offense of capital murder
includes “aggravating ‘nature of circumstances and/or nature of
conduct elements' [that] are elements of the offense.” 146 S.W.3d
at 677. But the court appears to have been recognizing simply that
in a capital-murder case the state must-in addition to proving
that the defendant intentionally caused an individual's death-also
prove “that the accused engaged in other criminal conduct (i.e.,
kidnapping, robbery, aggravated sexual assault, escape from a
penal institution) or had knowledge of certain circumstances
(i.e., that the victim was a peace officer).” Id. (quoting Patrick
v. Texas, 906 S.W.2d 481, 491 (Tex.Crim.App.1995)). The Rodriguez
court did not state that it was in any way modifying or overruling
But in construing the Texas legislature's
intent, a federal habeas court is bound by the statutory
interpretation set forth by the Texas court. By rejecting Mann's
claim and relying on Kitchens, the Court of Criminal Appeals
effectively determined that under Texas law, robbery, kidnapping,
and aggravated sexual assault are simply alternate means of
committing the crime of capital murder. Cf. Schad, 501 U.S. at
637, 111 S.Ct. 2491 (plurality opinion) (“In the present case, for
example, by determining that a general verdict as to first-degree
murder is permissible under Arizona law, the Arizona Supreme Court
has effectively decided that, under state law, premeditation and
the commission of a felony are not independent elements of the
crime, but rather are mere means of satisfying a single mens rea
element.”). On habeas review, the district court is not permitted
to second-guess the Texas court's interpretation of Texas law but
must instead respect it as controlling. See id. at 636, 111 S.Ct.
2491 (plurality opinion) (“If a State's courts have determined
that certain statutory alternatives are mere means of committing a
single offense, rather than independent elements of the crime, we
simply are not at liberty to ignore that determination and
conclude that the alternatives are, in fact, independent elements
under state law.” (citing Mullaney v. Wilbur, 421 U.S. 684,
690-91, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Murdock v. City of
Memphis, 20 Wall. 590, 87 U.S. 590, 22 L.Ed. 429 (1874))). In
disposing of Manns's due process claim, the district court
respected Kitchens as controlling, and jurists of reason could not
disagree with that resolution of Manns's claim.FN7 Accordingly, we
deny his request for a COA on this claim.
FN7. Manns did not go on to argue in the
district court (and does not argue here) that under Schad's second
prong, Texas's definition of capital murder, as construed by the
Court of Criminal Appeals, violates due process. Hence, we do not
C. Claim 3: Ineffective Assistance of
Lastly, Manns claims that he received
ineffective assistance of counsel. He argues that his appellate
counsel provided constitutionally deficient assistance by failing
to raise on direct appeal the issue of the lack of juror unanimity
as to which enumerated offense elevated murder to capital murder,
even though this issue had been preserved in the trial court.FN8
Manns presented this claim in both his state habeas application
and in his federal habeas petition.
FN8. Manns made other arguments in his state
and federal habeas petitions about the effectiveness of his
appellate counsel. But he does not address these arguments in his
Manns's ineffective-assistance-of-counsel claim
is governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). See Smith v. Robbins, 528 U.S. 259,
285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Under the Strickland
standard, Manns must show that his appellate counsel's performance
was objectively unreasonable and that it prejudiced him. See id.
To establish prejudice, Manns must demonstrate a reasonable
probability that absent his appellate counsel's unreasonable
performance he would have prevailed on appeal. See id. at 285-86,
120 S.Ct. 746.
Manns has not shown that jurists of reason
could disagree with the district court's denial of his claim of
ineffective assistance of counsel. Assuming arguendo that Manns's
appellate counsel's failure to present the juror-unanimity
argument on direct appeal was objectively unreasonable, Manns
cannot demonstrate prejudice. As we explained above, Manns has not
made a substantial showing that the trial court's failure to
require the jury to be unanimous on which offense elevated murder
to capital murder deprived him of a constitutional right. As a
result, he has also failed to demonstrate prejudice-i.e., a
reasonable probability that had his appellate counsel made the
juror-unanimity argument, he would have prevailed on direct
appeal. Consequently, Manns's request for a COA on this claim is
denied as well.
For the foregoing reasons, Manns's request for
a COA is DENIED.
EMILIO M. GARZA, Circuit Judge, specially
concurring: I concur in the majority opinion but write separately
to voice concern that Kitchens was wrongly decided. Under both of
Schad's inquiries-statutory construction of Texas's capital murder
statute and due process-the specific felony offense elevating
murder to capital murder is a separate element of the crime of
capital murder, not, as the Texas Court of Criminal Appeals has
held, a “differing method[ ] of committing one offense.” Kitchens
v. Texas, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); see Tex. Penal
Code Ann. § 19.03(a)(2) (Vernon 1998) (amended 2003).
The distinction between the elements of a crime
and the means of committing an element of a crime is often less
than clear, but Texas's capital murder statute is straightforward.
To commit capital murder, a defendant must not only have the
requisite actus reas and mens rea of murder, but he also must
commit a felony that is, in and of itself, a separate crime, which
comes with its own actus reas and mens rea requirements. See, e.g.,
Tex. Penal Code Ann. § 20.03(a) (kidnaping); Id. § 29.02(a) (robbery);
Id. § 22.021(a) (aggravated sexual assault). The act of committing
kidnaping, or robbery, or aggravated sexual assault is not an
alternate means by which one commits capital murder. Means are
“preliminary factual issues which underlie the verdict,” Schad v.
Arizona, 501 U.S. 624, 631-32, 111 S.Ct. 2491, 115 L.Ed.2d 555
(1991) (internal quotations omitted), and consist of alternate
theories in the commission of an element of the offense-for
example, using a gun versus using a knife in committing aggravated
sexual assault. The mens rea element can also be established by
various means, for example, committing murder that is premeditated
or an act of passion. Here, however, the underlying felony offense
is a separate crime in and of itself, which, if its elements are
proved beyond a reasonable doubt, elevates murder to capital
murder and hence is an element of the crime of capital murder. Cf.
Richardson v. United States, 526 U.S. 813, 817-19, 119 S.Ct. 1707,
143 L.Ed.2d 985 (1999); Apprendi v. New Jersey, 530 U.S. 466, 496,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“[T]he fact that New
Jersey ... has also made precisely the same conduct the subject of
an independent substantive offense” is probative as to whether the
conduct is an element of the crime). I concur in denying COA
because we are required under Schad to defer to Texas's own
interpretation of its capital murder statute.
Moreover, although I agree with the majority
that Manns waived any argument under Schad's second prong that
Texas's definition of capital murder, as construed by the Texas
Court of Criminal Appeals, violates due process, I am not
confident that Kitchens can survive a due process analysis. For
one, proving the specific underlying felony offense as a separate
element of the crime makes a difference where, as here, the
Government introduced evidence that the defendant committed more
than one felony offense. By combining alternative theories of
guilt, the prosecutor may have managed to convict Manns without
proving beyond a reasonable doubt all of the elements of any one
theory to a constitutionally adequate number of jurors. See
Richardson, 526 U.S. at 819, 119 S.Ct. 1707 (expressing concern
with “increas[ing] the likelihood that treating violations simply
as alternative means, by permitting a jury to avoid discussion of
the specific factual details of each violation, will cover up wide
disagreement among the jurors about just what the defendant did,
or did not, do.”).
Moreover, Kitchens does not construe the
elements of capital murder to that level of specificity required
by the Constitution. See 918 Schad, 501 U.S. at 632-33, 111 S.Ct.
2491 (“require[ing] proof some specific illegal conduct”).
“[N]othing in our history suggests that the Due Process Clause
would permit a state to convict anyone under a charge of ‘Crime’
so generic that any combination of jury findings of embezzlement,
reckless driving, murder, burglary, tax evasion, or littering, for
example, would suffice for conviction.” See Schad, 501 U.S. at
634, 111 S.Ct. 2491. I fear that, under Kitchens, Texas's capital
murder statute, by allowing a combination of jury findings of
kidnaping, robbery, or sexual assault, may be such an