Citations:

Martinez v. State, Not Reported in S.W.3d, 2003 WL 22508081 (Tex.Cr.App. 2003) (Direct Appeal).
Martinez v. Dretke, 173 Fed.Appx. 347 (5th Cir. 2006) (Habeas).

Final/Special Meal:

Three chili cheese hot dogs with extra cheese on the side, fried okra with ketchup on the side, french fries with ketchup on the side and vanilla coke or regular coke.

Final Words:

Martinez told his mother and sister, who were watching through a nearby window, that he loved them and thanked them for everything they had done for him. “I hope y’all can move on after this. I’ll be fine. I’m fine.” Martinez told them all again that he loved them and added, “Take care, OK?” He then told the warden he had nothing else to say.

Texas Department of Criminal Justice

Texas Attorney General

Monday, March 9, 2009

Media Advisory: James Martinez Scheduled For Execution

AUSTIN -- Texas Attorney General Greg Abbott offers the following information on James Edward Martinez, who is scheduled to be executed after 6 p.m. on Tuesday, March 10, 2009. Martinez was found guilty on January 30, 2002, of the September 21, 2000, capital murders of Sandra Walton and Michael Humphreys, and was sentenced to death by the jury on February 1, 2002. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

In the early morning hours of Sept. 21, 2000, James Martinez shot Sandra Walton and Michael Humphreys to death outside Walton's condominium in Fort Worth. When police arrived, they found Walton's body in the driver's seat of her car and Humphreys lying face down on the ground 10 to 12 feet from the car. Walton had been shot nine or 10 times and Humphreys had been shot about eight times. Police determined that the bullets had been fired from a rifle owned by Martinez, a Steyr/Aug .223 caliber rifle.

After the murders, Martinez met a friend and told him to keep a black canvas bag for him. The friend eventually told police where the bag was located, and officers found the Steyr/Aug assault rifle used in the murders.

The State presented evidence at trial that Martinez had a history of stalking, harassing, and threatening Sandra Walton, and claiming that she owed him money after their brief relationship. In May 2000, Walton made out a promissory note to Martinez in the amount of one-thousand dollars, and Martinez began demanding repayment from Walton by stalking and directly threatening her. On the night of her murder, Martinez pounded on her door, staying outside for 20 or 30 minutes, and told Ms. Walton, "Your time is almost up."

After the murders, police found the promissory note written and signed by Sandra Walton in a storage unit rented by Martinez.

PUNISHMENT PHASE

During the punishment phase of Martinez's trial, the State introduced testimony concerning what was recovered from the storage unit: bomb-making components, over three-thousand rounds of various types of ammunition, two pistols, several illegal knives, an illegally modified Mossberg shotgun, an illegally modified single-shot shotgun, an illegally modified .22 rifle, an HK-91 assault rifle, and an AK-47 assault rifle with bayonet. Also found at the storage unit were four books, Be Your Own Undertaker: How to Dispose of a Dead Body; Death Touch: Unarmed Killing Techniques; 21 Techniques of Silent Killing; and Dragon's Touch: Weaknesses of the Human Anatomy, all four of which had been signed "completed reading by James Martinez." The State then offered the victim impact testimony of Mike Humphreys' father, mother, and stepmother, along with the testimony of Sandra Walton's mother, each of whom spoke briefly about the impact the murders had on them and their families.

PROCEDURAL HISTORY

• December 20, 2000 -- Martinez was indicted by a Tarrant County grand jury for the capital murders of Sandra Walton and Michael Humphreys.

• January 30, 2002 -- Martinez was found guilty of capital murder.

• February 1, 2002 -- Following a separate punishment hearing, Martinez was sentenced to death.

• November 5, 2003 -- The Texas Court of Criminal Appeals affirmed Martinez's conviction and sentence on direct appeal.

• October 4, 2004 -- Martinez's petition for writ of certiorari was denied by the U.S. Supreme Court.

• October 22, 2003 -- Martinez filed an application for writ of habeas corpus with the state trial court.

• December 9, 2003 -- Martinez then filed a motion to supplement his state application attempting to add two more claims to his habeas application.

• June 2, 2004 -- The state trial court entered findings of fact and conclusions of law recommending that relief be denied on Martinez's original claims, and that his supplemental claims be dismissed as a subsequent application.

• September 22, 2004 -- The Texas Court of Criminal Appeals ultimately adopted the trial court's findings and conclusions, and denied Martinez's state habeas application.

• February 28, 2005 -- Martinez's second petition for writ of certiorari was denied by the U.S. Supreme Court.

• January 10, 2005 -- Martinez filed a federal petition for writ of habeas corpus in a Fort Worth U.S. district court.

• June 8, 2005 -- The federal district court denied Martinez the relief requested in his federal habeas petition, and also denied a certificate of appealability (COA).

• August 9, 2005 -- Martinez filed an application for COA with the Fifth U.S. Circuit Court of Appeals.

• March 31, 2006 -- The Fifth Circuit Court affirmed the judgment of the district court and refusing to grant Martinez the requested COA.

• May 19, 2006 -- Martinez again petitioned the U. S. Supreme Court for a writ of certiorari.

• October 16, 2006 -- The Supreme Court denied Martinez's petition for certiorari.

• August 19, 2008 -- The trial court issued an order setting Martinez's execution date for Tuesday, March 10, 2009.

PRIOR CRIMINAL HISTORY

According to the Texas Department of Criminal Justice, Martinez had one prior arrest for possessing prohibited weapons and served 180 days in the Tarrant County Jail before his current incarceration and death sentence for capital murder.

Fort Worth man executed for double slaying

By Michael Graczyk - The Houston Chronicle

AP March 10, 2009

HUNTSVILLE, Texas A Fort Worth man convicted of opening fire with an assault rifle to gun down a woman and a friend after stalking her to collect a debt was executed Tuesday night.

James Edward Martinez told his mother and sister, who were watching through a nearby window, that he loved them and thanked them for everything they had done for him. “I hope y’all can move on after this,” he said. “I’ll be fine. I’m fine.” Martinez told them all again that he loved them and added, “take care, OK?” He then told the warden he had nothing else to say. As the drugs began taking effect, his mother was overcome with emotion, sobbing and scratching at the glass that separated them. “James don’t leave me, you can’t die. Don’t leave me,” she cried. Officers brought a wheelchair into the room and removed her and her daughter before Martinez was pronounced dead at 6:17 p.m. CDT, nine minutes after the lethal drugs began.

Martinez, 34, was condemned for the 2000 fatal shootings of Sandra Walton, 29, whom he dated briefly, and Michael Humphreys, 19, a friend of the woman, outside her Fort Worth apartment complex.

Martinez was the 11th Texas inmate executed this year and the first of two set to die on consecutive nights this week.

The U.S. Supreme Court, some 4½ hours before Martinez was scheduled for execution, rejected an appeal to halt the punishment and review Martinez’s case Attorneys for the former welder and laborer had argued they had a new witness who backed Martinez’s claim he was at home the night of the slayings. Prosecutors contended the argument wasn’t new and that a Tarrant County jury didn’t believe the alibi claim at Martinez’s capital murder trial.

Walton was shot at least nine times as she returned home from a late-night fast-food run. Humphreys, from Arlington, was hit eight times. At the shooting scene, authorities found 27 shell casings from a high-powered Austrian-made military-type rifle. “This was a calculated and premeditated act,” said Robert Foran, an assistant district attorney who prosecuted Martinez. “He destroyed two people in a matter of seconds. When he was arrested, he had an arsenal of weapons as well as literature. He was fascinated with the idea of death.”

Inside a storage bin Martinez rented, detectives found more than 3,000 rounds of ammunition, bomb-making components, pistols, illegal knives, illegally modified firearms and books on killing techniques and body disposal.

Martinez and Walton had dated briefly and during the relationship he loaned her $1,000. When they broke up, he demanded repayment quickly. Walton gave him a promissory note, but told friends Martinez continued to harass and threaten her.

At his trial, Martinez contended a friend was responsible for the shootings. “It was stored in a rental facility and another person had access to the store room,” Reagan Wynn, who defended Martinez at his trial, said of the murder weapon. “All of us should take pause before we charge forward with the death penalty. This was a circumstantial case.”

Foran said the case was solid and defense claims that someone other than Martinez was responsible were “contradicted by evidence at trial and our investigation.” Evidence showed Martinez pounded on the door of Walton’s apartment shortly before the shooting and threatened to break it down.

She and Humphreys, who knew Walton from her job at an Arlington pool hall, left to get food. When they returned, gunfire erupted and witnesses saw a man dressed in black, carrying an assault rifle and running away. Walton was found dead inside her car. Humphreys was dead about 10 feet away on the apartment lawn. “I’ve done a lot of murder scenes,” prosecutor Alan Levy said. “That crime scene was the worst I’ve ever seen.”

Martinez became an early suspect after Walton’s friends and relatives told authorities how he’d been stalking her. Authorities examining his cell phone records traced calls to a ranch in Parker County, just west of Fort Worth, where friends told investigators about a bag Martinez had asked to be buried. When the bag was retrieved, detectives found the murder weapon, black clothing and a pipe bomb. DNA linked Martinez to the clothing. “We had a pretty compelling case,” Foran said.

Martinez’s mother, Marta, also has a criminal history. She was given 10 years probation in 1984 for the fatal shooting of her ex-husband and his fiancee. Humphreys’ father, Brad Humphreys, also witnessed the execution Tuesday night. It was his second trip to the death chamber. In 2001, he watched the convicted killer of his father be given lethal injection. Jeffery Tucker, 41, was executed for gunning down Wilton Humphreys, 65, during a robbery.

On Wednesday night, another death row inmate, Luis Salazar, was set to die for fatally stabbing Martha Sanchez, 28, after crawling through the window of the woman’s San Antonio home in 1997.

Fort Worth man put to death for late-night ambush

By Melody McDonald - Fort Worth Star Telegram

March 17, 2009

HUNTSVILLE — James Edward Martinez, the Fort Worth killer condemned for ambushing a woman he once dated and her male friend, went to his death Tuesday night, thanking his mother and sister and telling them that he loved them. "I hope you can move on after this," Martinez told them from the gurney in the death chamber. "I’ll be fine. I’ll be OK. I love you, too." Moments later, as the drugs took effect, Martinez took two deep breaths and closed his eyes.

His mother, Marta, stood against the window, clawing the glass, wailing and screaming. "Don’t go James! You can’t die. I need you," she cried. "You died for a lie. James, James come back!" Minutes later, Marta Martinez collapsed and had to be taken away in wheelchair. She and her daughter, Nancy Grulke, were not present when the doctor pronounced his time of death at 6:17 p.m.

Martinez, 34, did not acknowledge the family of his victims, who watched him die from a separate room. "It is a shame to think all of this could have been avoided," said Brad Humphreys, whose son, Mike, was killed.

In the early part of 2002, Martinez was sentenced to death for killing Sandra "Sandy" Walton, 29, a woman he once dated, and her friend, Mike Humphreys, 20, of Arlington. Walton was Martinez’s intended target; Humphreys was in the wrong place at the wrong time. According to court testimony, Martinez had been harassing and threatening to kill Walton, demanding that she repay the $1,000 he gave her while dating. Walton filed numerous police reports against Martinez but was unable to get a protective order because she had never married, lived with or had a baby with Martinez.

In the early morning hours of Sept. 21, 2000, a group of people were hanging out at Walton’s apartment in the 5000 block of Ridglea Lane when Walton and Humphreys decided to go on a late-night food run to a nearby Wendy’s. When the pair pulled back into Walton’s west Fort Worth apartment complex just after 1 a.m., a man clad in black and armed with a rare assault rifle sprayed them with at least 27 bullets before trotting away. Walton’s bullet-torn body was found in her car; Humphreys was in the grass nearby.

After the shooting, authorities said Martinez drove to a Parker County ranch and left a duffel bag containing the murder weapon and black clothing with longtime friend Casey Ashford, who buried it. Ashford later told detectives about the bag and cooperated with prosecutors in exchange for three years’ deferred adjudication probation.

Martinez declined a request for an interview. But Martinez’s mother, Marta, steadfastly maintained her son’s innocence in a recent interview, saying her son was home with her at the time of the killings and that Ashford was the one who committed the crimes.

Marta Martinez said she was holding out hope until the last moment that her son would be vindicated and the truth would come out. "I don’t want my son to die over a lie," Marta Martinez said recently. "He is innocent." Although Martinez filed some last-minute appeals, all were denied.

Martinez spent his final hours sleeping, reading, drawing, and visiting with his friends and family. He requested a final meal of three chili cheese hot dogs with extra cheese on the side, fried okra with ketchup on the side, french fries with ketchup on the side and vanilla coke or regular coke.

Just after 6 p.m., Martinez’s mother and sister filed into a room reserved for them to witness his last moments. When the warden asked Martinez if he had any final words, he said: "Yes, sir. I want to tell my mom that I love her and thank her for everything she has done for me," he said. "Tell my sister that I love her, too, and thank her for everything she has done for me."

Nearly 25 years ago, Martinez’ mother also found herself on the wrong side of the law when she was convicted of murder for killing her ex-husband and his fiancée. She was given probation, however, after jurors heard that she killed to protect herself from a beating and was a devoted, hardworking mother who regularly attended church. The victim’s families watched Martinez execution through a window in a separate room in the death chamber.

Witnesses representing Walton’s family included her mother, Dorinda March, and her sister, Sheila Lomprey. After Walton was killed, the pair successfully lobbied the Texas legislature to strengthen the laws on family violence so that people in dating relationships could obtain court orders against lovers who threaten violence. The witnesses from Humphreys family included his mother, Lois, brother, Brandon, stepmother, Carol, and father, Brad.

For Brad Humphreys, this was his second time to witness an execution, marking the first time prison officials can recall a victim witnessing two executions for two separate, unrelated murders. Twenty years ago, his father was gunned down in a bizarre robbery committed by an ex-con named Jeffery Tucker. Tucker was given the death penalty - a sentence that was carried out on Nov. 14, 2001.

Currently, there are 347 inmates on Texas’ Death Row. Martinez was the eleventh person executed this year. The next Tarrant County inmate scheduled to die is Terry Lee Hankins, who killed his wife and his two children in August 2001. After his arrest, Hankins told authorities where to find the bodies of his father and his sister, whom he murdered in 2000.

ProDeathPenalty.com

James Edward Martinez briefly dated Sandra Walton, and gave or loaned her money from time to time. In May of 2000, Sandra signed a promissory note reflecting that she owed Martinez $1,000. Martinez became fixated on obtaining repayment from her, stalking, harassing, and threatening Sandra on numerous occasions.

On the night of her murder, Martinez pounded on Sandra's door, threatening to break it down if she did not open the door. He had earlier told Sandra that her time was almost up. Sandra and Michael Humphreys, who was visiting, went out to get something to eat. When they returned, at approximately 1:00 a.m. on September 21, 2000, they were shot to death with a high-powered rifle.

Witnesses saw a man dressed in black trotting away from the scene. Police found twenty-seven shell casings at the scene. Sandra was shot nine or ten times; Michael was shot eight times. On the night of the murders, Martinez called Casey Ashford, a long-time friend, several times. Martinez drove to the farm where Ashford was staying to deliver a black canvas bag for Ashford to keep. Ashford looked in the bag and saw the rifle later determined to be the murder weapon, among other items. He buried the bag, but later disclosed its location to police.

Ashford later pleaded guilty to tampering with evidence and received three years deferred adjudication. When police opened the bag, they found the rifle, a bag of fertilizer, a fuse, dark clothing, combat boots, gloves, a pipe bomb, a ski mask, a double-edged knife, a bulletproof vest, and ammunition. At trial, Martinez tried to pin the blame for the murders on Ashford.

His mother and brother testified that he had been at home on the night of the murders. He also showed that Ashford lied several times when dealing with the police and that, prior to the murders, Ashford had had access to the murder weapon. At the punishment phase of the trial, the State introduced items that had been kept by Martinez in a storage facility. They included bomb-making components, over 3000 rounds of ammunition, other weapons, including two pistols, several illegal knives, illegally modified shotguns, and several rifles. Also introduced were four books bearing the notation “completed reading by James Martinez”: Be Your Own Undertaker: How to Dispose of a Dead Body; Master's Death Touch: Unarmed Killing Techniques; 21 Techniques of Silent Killing; and Dragon's Touch: Weaknesses of the Human Anatomy.

The State also offered victim-impact testimony by Humphreys' father, mother, and stepmother, and Walton's mother. Martinez called a number of people to testify that they had not known him to be a violent person and did not believe he would commit any more crimes in the future. None of them seemed to know Martinez very well, except his mother and brother, and most of them did not know (or admit that they knew) about his extensive collection of weapons and the books Martinez had read. Wilton Humphreys, the grandfather of Michael Humphreys had been murdered 12 years before Michael's death. Michael's father Brad Humphreys had witnessed the execution of Jeffrey Tucker just months before Michael was killed by Martinez.

UPDATE: James Martinez was executed by lethal injection. James Edward Martinez told his mother and sister, who were watching through a nearby window, that he loved them and thanked them for everything they had done for him. “I hope y’all can move on after this,” he said. “I’ll be fine. I’m fine.” Martinez told them all again that he loved them and added, “take care, OK?” He then told the warden he had nothing else to say.

Martinez v. State, Not Reported in S.W.3d, 2003 WL 22508081 (Tex.Cr.App. 2003) (Direct Appeal).

Background: Defendant was convicted in the trial court, Tarrant County, of capital murder and was sentenced to death.

Holdings: On automatic direct appeal, the Court of Criminal Appeals, Cochran, J., held that: (1) defendant waived error on appeal, on the issue that the indictment charging him with capital murder was fundamentally defective because it did not allege future dangerousness; (2) out-of-court statements of eyewitnesses were inadmissible under the hearsay exception of excited utterances; (3) unauthenticated hearsay accusation by an unidentified witness, made eleven years earlier, could not be admitted to establish that witness had knowledge of how to make pipe bomb; and (4) defendant was not entitled to a mistrial. Affirmed.

COCHRAN, J., delivered the opinion of the unanimous Court.

In February of 2002, appellant was convicted of capital murder for the shooting deaths of a man and woman in Fort Worth. Tex. Pen.Code Ann. § 19.03(a). The evidence showed that appellant was angry at the woman because she allegedly owed him money. Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, § 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g). FN1 Direct appeal to this Court is automatic. Id., § 2(h). Appellant raises eight points of error. We affirm.

FN1. Unless otherwise indicated this and all future references to articles refer to the Texas Code of Criminal Procedure.

In his first point of error, appellant claims that the indictment was fundamentally defective because it did not allege future dangerousness. He relies on 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), to support his contention.

The United States Supreme Court issued its opinion in Apprendi in 2000, approximately two years before this case went to trial. Appellant did not object to the indictment prior to trial. Thus, he has waived error on appeal with respect to his argument regarding Apprendi. Tex.R.App. P. 33.1.; Studer v. State, 799 S.W.2d 263, 273 (Tex.Crim.App.1990).

Ring, which was issued after appellant was convicted, requires that any fact (other than prior convictions) that increases the maximum penalty be proved beyond a reasonable doubt. Ring, 536 U.S. at 600. The Supreme Court focused on facts which would increase punishment over the statutory maximum. The statutory maximum punishment in Texas capital murder cases is death. Tex. Pen.Code § 19.03(b). Including the issue of future dangerousness in the indictment would not allow the State to seek a more severe punishment. Accordingly, Ring does not apply. See Resendiz v. State, 112 S.W.3d 541 (Tex.Crim.App.2003); Allen v. State, 108 S.W.3d 281 (Tex.Crim.App.2003). Appellant's first point of error is overruled.

In his second point of error, appellant contends that the Texas death penalty scheme is unconstitutional because it fails to assign a burden of proof to the State to show a lack of mitigation under the first special issue. We have previously rejected this identical claim. Jackson v. State, 33 S.W.3d 828, 840 (Tex.Crim.App.2000), cert. denied, 532 U.S. 1068, 121 S.Ct. 2221, 150 L.Ed.2d 213 (2001). Appellant makes no argument that Jackson was wrongly decided or should be overruled. His second point of error is overruled.

In his fourth point of error, appellant claims that the trial court erred in excluding hearsay testimony from a police detective regarding descriptions of the assailant made by three witnesses. He contends the witness statements should have been allowed into evidence as excited utterances.

Detective McCaskill testified that on September 20, 2000, he was called to the scene of a double murder. When he arrived, he interviewed an eyewitness, Lisa Collins. There were two other eyewitnesses and, although McCaskill did not interview them, he was familiar with their statements. On cross-examination during the guilt or innocence phase of trial, appellant asked McCaskill to relate to the jury the descriptions of the assailant given by each eyewitness. The State objected to the question as eliciting hearsay, and the objection was sustained. Appellant made a bill of exception in an attempt to show that the eyewitness statements were excited utterances, and therefore, admissible as an exception to the hearsay rule. After appellant made the bill, the State re-urged its hearsay objection, and appellant again argued that the statements were excited utterances. The trial court sustained the State's objection and excluded the evidence.

Hearsay is a statement made by someone other than the declarant that is offered to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Hearsay is inadmissible unless it falls under one of the exceptions to the hearsay rule. Tex.R. Evid. 802. An excited utterance, an exception to the hearsay rule, is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2).

The three eyewitnesses in this case gave conflicting descriptions of the assailant. One described him as tall and thin, while the other witnesses described him as big and heavy.FN2 The only argument upon which appellant relies, that the statements were excited utterances, is not sufficiently supported by the record. The record shows that Detective McCaskill arrived at the crime scene about an hour and a half after the murders. He testified that he believed that the statements the eyewitnesses gave were made while they were still excited from observing the murders. When one of the eyewitnesses testified, she agreed with defense counsel that she was “pretty excited” when she spoke to Detective McCaskill. Although this is some modicum of evidence that the eyewitnesses were in an excited frame of mind when they spoke to the officer, it is thin indeed. There was no evidence that the eyewitnesses had been in a sustained “excited” state of mind since the event or that their capacity for reflection and careful consideration had been stilled. The basis for the excited utterance exception is that

FN2. When appellant cross-examined McCaskill regarding the eyewitness statements, he was not offering the statements to prove the truth of the matter assertedthat appellant was tall, thin, big or heavy. Rather, the statements were offered to show conflicting descriptions of the shooter. As such, the eyewitness statements are not hearsay. Tex.R. Evid. 801(d). However, appellant did not urge this argument at trial or on appeal as he is required to do. Tex.R.App. 33.1 & 38.1(h).

“when a man is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and ‘the truth will come out.’ “ Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003) (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex.Crim.App.1972)). One may become excited at a football game, at an accident scene, or during a political debate, but that excitement does not mean that the person has necessarily lost the capacity for mental reflection and careful thinking as a result. The trial court did not abuse its discretion in excluding the eyewitnesses' out-of-court statements because the record supports a finding that appellant failed to meet the foundation requirements for the excited utterance exception. Compare Zuliani, 97 S.W.3d at 596 (upholding trial court's ruling admitting out-of-court statement as an excited utterance because record supported that ruling).

Even if the trial court erred in its ruling, harm is not shown. Tex.R.App. 44.2. Two of the witnesses who gave conflicting descriptions of the shooter testified about their descriptions at trial. Thus, the jury was aware of the conflicting descriptions even without McCaskill's testimony. Appellant's fourth point of error is overruled.

In his third point of error, appellant claims that the trial court erred in excluding evidence that a State's witness, Casey Ashford, knew how to make a pipe bomb. Appellant argues that this evidence should have been admitted under Rule 404(b) to show Ashford might have committed the capital murders in this case.

Ashford testified at the guilt or innocence phase of trial that he and appellant were long-time friends. In the early morning hours on the day after the murders, appellant went to the ranch where Ashford lived and asked him to keep a black canvas bag. Ashford agreed to keep the bag, and appellant left. The next day, Ashford heard of the murders and looked inside the bag. He saw a rifle and decided to bury the bag under a water tank on the ranch. Some time later, Ashford told Pat Machak, the owner of the ranch, about the bag. Unbeknownst to Ashford, Machak contacted the police. When the police interviewed Ashford and told him they knew about the bag, he told them its whereabouts.FN3 When the police opened the bag, they found a rifle, a bag of fertilizer, a fuse, dark clothing, a pipe bomb, a ski mask, a double-edged knife, a bullet-proof vest, and ammunition.

FN3. Ashford pleaded guilty to tampering with evidence and received three years deferred adjudication.

On voir dire examination, appellant asked Ashford if he had ever made a pipe bomb. Ashford replied that he had not, but he admitted that he had been arrested for possessing one as a juvenile eleven years earlier. However, the record reflects that what Ashford actually possessed was a snuff can filled with .22 caliber bullets and gun powder stuffed into a candle. It did not resemble the pipe bomb in this case which was a foot-long piece of “PVC” pipe wrapped in duct tape, which was capped on both ends, and contained nails. One end of the pipe had a cannon fuse coming out of it. Appellant then asked Ashford if he had been expelled from school for selling pipe bombs. He replied that he had not. Appellant produced an unsigned, undated document which was titled, “Pipe Bomb,” and asked Ashford if he wrote it. The document appears to give handwritten instructions for making a pipe bomb. At the bottom of the document, there is a handwritten notation that “Mrs. Carter” found the document in “Joey's billfold” and turned it over to the Crowley Police Department. It states further that Mrs. Carter “says that this came from Casey Ashford.” Ashford denied writing the instructions and the trial court excluded the evidence.

On appeal, appellant argues that the document shows that Ashford knew how to make a bomb and therefore, could have been the one who made the pipe bomb found in the canvas bag. He states further that if this were true, Ashford could have been the killer in this case because the rifle and the pipe bomb were found together buried near Ashford's residence.

This Court reviews the trial court's ruling to exclude evidence under an abuse of discretion standard and will not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App.), cert. denied, 534 U.S. 855, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001); Moreno v. State, 22 S.W.3d 482, 487 (Tex.Crim.App.1999).

Rule of Evidence 404(b) states that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.

Even assuming, arguendo, that Rule of Evidence 404(b) applies to witnesses, the trial judge was within his discretion to rule that an unauthenticated hearsay accusation by an unidentified witness eleven years earlier did not establish that Ashford had any knowledge of how to make a pipe bomb like the one found in appellant's bag. See Salazar, 38 S.W.3d at 151. Appellant's third point of error is overruled.

In his fifth point of error, appellant claims that the trial court erred by denying a mistrial when a police detective testified that appellant took a polygraph test. During cross-examination of Detective Thomas Boetcher, the following occurred: [DEFENSE COUNSEL]: Detective Boetcher. When did you say you talked to Ms. Martinez? [WITNESS]: When I took James [appellant] home after the polygraph exam-I'm sorry-after my interview with him. [DEFENSE COUNSEL]: You took him home-first of all, I'm going to object that's nonresponsive. [THE COURT]: Sustained. [DEFENSE COUNSEL]: I'd ask the jury be instructed to disregard. [THE COURT]: The jury is instructed to disregard the last answer of the witness. [DEFENSE COUNSEL]: I'll ask for a mistrial. I don't think your instruction can cure the error. [THE COURT]: Denied.

This Court has held that, “where a witness gives an unresponsive answer which mentions a polygraph test but does not mention the results of such test, there is no error in failing to grant a mistrial where the objection is sustained and the jury instructed to disregard.” Richardson v. State, 624 S.W.2d 912, 914-15 (Tex.Crim.App.1981). The trial court did not err in declining to grant a mistrial in this situation. Appellant's fifth point of error is overruled.

In his sixth point of error, appellant claims that the Texas death penalty scheme is unconstitutional because it “leads the State to execute an unacceptable number of innocent defendants.” He relies on United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y.2002), to support his argument.

In Quinones, a federal district judge held the federal death penalty statute unconstitutional. Appellant predicts that the Second Circuit Court of Appeals will uphold the decision in Quinones, that the United States Supreme Court will grant a writ of certiorari, hear arguments in the case, agree with the Second Court of Appeals and overturn the federal death penalty statute. However, the Second Circuit reversed the district court's holding in Quinones after appellant filed his brief. United States v. Quinones, 313 F.3d 49 (2nd Cir.2002), reh'g denied, 317 F.3d 86 (2003). Regardless, we will not declare the Texas death penalty scheme unconstitutional based on appellant's prediction as to how the United States Supreme Court will dispose of a particular federal death penalty case. Appellant's sixth point of error is overruled.

In his seventh point of error, appellant alleges that the Texas death penalty scheme violates the Eighth Amendment prohibition against cruel and unusual punishment because it allows the jurors too much discretion in deciding who receives the death penalty and who does not. This claim has previously been raised and rejected. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999); McFarland v. State, 928 S.W.2d 482, 519 (Tex.Crim.App.1996). Appellant's seventh point of error is overruled.

In his eighth point of error, appellant claims that under Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), the Texas death penalty scheme is unconstitutional because the mitigation issue “sends mixed signals to the jury thereby rendering any verdict reached in response to that special issue intolerably unreliable.” Penry is distinguishable because the jury in that case received a judicially crafted nullification instruction. Penry, 532 U.S. at 789-90. Here, appellant received the statutorily prescribed instruction required under Article 37.071 § 2(e)(1) which does not contain a nullification instruction. Art. 37.071 § 2(e)(1). Thus, there is no error. See McFarland, 928 S.W.2d at 488-89. Appellant's eighth point of error is overruled.

We affirm the judgment of the trial court.

Martinez v. Dretke, 173 Fed.Appx. 347 (5th Cir. 2006) (Habeas).

Background: State inmate who had been sentenced to death filed petition for habeas corpus relief. The United States District Court for the Northern District of Texas, 2005 WL 1383350, McBryde, J., denied the petition. Inmate sought certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) trial counsel's failure to argue accomplice witness theory was not ineffective assistance; (2) trial counsel's presentation of testimony of corrections expert and psychologist during punishment phase was not ineffective assistance; (3) claim that trial court violated inmate's constitutional rights by issuing a jury instruction that did not perfectly track the mitigation special issue was procedurally barred; (4) state was not constitutionally required to bear the burden of proving beyond a reasonable doubt a negative answer to the mitigation special issue; and (5) punishment phase jury instruction on special issue of future dangerousness was not impermissibly vague. Petition denied.

PER CURIAM:

FN1. 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.

James Martinez was convicted and sentenced to death for the murders of Sandra Walton and Michael Humpreys. Martinez initially raised 11 claims for relief in his state habeas petition, and later sought to supplement his petition with additional claims. After denial of relief in the state court, Martinez filed his federal habeas petition in the district court, raising 29 claims for relief. The district court denied relief and sua sponte denied a certificate of appealability, and Martinez now seeks a certificate of appealability to appeal the district court's denial of relief under 28 U.S.C. § 2254.FN2 For the reasons stated below, we deny COA.

FN2. Martinez ostensibly raises two “issues,” denominated “Ineffective Assistance of Trial Counsel” and “Unconstitutionality of Texas Death Procedures as applied to Appellant.” Each issue, however, comprises several related and overlapping questions and subparts, some of which are repeated verbatim from Martinez' initial petition, and some of which are reformulated and combined versions of issues previously raised. Because the issues as presented by Martinez are repetitive and overlapping, certain issues are grouped for purposes of discussion.

I.

A.

Martinez was indicted, convicted, and sentenced to death in Tarrant County, Texas, for the September 21, 2000, murders of Sandra Walton and Michael Humphreys. Martinez's conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals, Martinez v. State, No. 74,292, 2003 WL 22508081 (Tex.Crim.App. Nov.5, 2003), and certiorari was denied by the United States Supreme Court, Martinez v. Texas, 543 U.S. 822, 125 S.Ct. 32, 160 L.Ed.2d 33 (2004).

Martinez filed his state application for writ of habeas corpus in October of 2003, raising eleven grounds for relief. In December 2003, Martinez filed a motion to supplement his writ with additional claims. The trial court entered findings of fact and conclusions of law recommending that relief be denied on Martinez's original claims, and that his supplemental claims be dismissed as a subsequent application. The Court of Criminal Appeals ultimately adopted those findings. Ex parte Martinez, No. 59,313-01 (Tex.Crim.App. Sept. 22, 2004). The motion for leave to add claims was treated as a subsequent application and dismissed. Ex parte Martinez, No. 59,313-02 (Tex.Crim.App. Sept. 22, 2004). FN3 Martinez's related petition for writ of certiorari was denied. Martinez v. Texas, 543 U.S. 1189, 125 S.Ct. 1401, 161 L.Ed.2d 193 (2005).

FN3. The order stated, in pertinent part: This Court has reviewed the record with respect to the eleven allegations made by Applicant in his initial application. We adopt the trial judge's findings and conclusions. Based upon the trial court's findings and conclusions and our own review, the relief sought is denied.

With respect to Applicant's two subsequently filed allegations, we conclude that Applicant has failed to show the factual or legal bases of his claims were unavailable to him at the time he filed his initial application. Therefore, those claims are dismissed pursuant to Code of Criminal Procedure Article 11.071 § 5. Ex parte Graves, 70 S.W.3d 103 (Tex.Crim.App.2002).

Ex parte Martinez, Nos. 59,313-01 & 59,313-02, slip op. at 2 (Tex.Crim.App. Sept. 22, 2004). Martinez filed his petition for federal habeas relief in the federal district court in January of 2005 and included 29 related and overlapping claims for relief. The district court denied Martinez's petition, rejecting each of Martinez's claims in a thorough and reasoned order. Martinez timely filed a notice of appeal, and although not requested, the district court sua sponte denied COA as to each of the 29 claims. This request for COA followed.

B.

The district court succinctly summarized the facts of Martinez's offense:

Martinez briefly dated Walton, and gave or loaned her money from time to time. In May of 2000, Walton signed a promissory note reflecting that she owed Martinez $1,000. Martinez became fixated on obtaining repayment from her, stalking, harassing, and threatening Walton on numerous occasions.

On the night of her murder, Martinez pounded on Walton's door, threatening to break it down if she did not open the door. He had earlier told Walton that her time was almost up. Walton and Humphreys, who was visiting, went out to get something to eat. When they returned, at approximately 1:00 a.m. on September 21, 2000, they were shot to death with a high-powered rifle. Witnesses saw a man dressed in black trotting away from the scene. Police found twenty-seven shell casings at the scene. Walton was shot nine or ten times; Humphreys, eight.

On the night of the murders, Martinez called Casey Ashford (“Ashford”), a long-time friend, several times. Martinez drove to the farm where Ashford was staying to deliver a black canvas bag for Ashford to keep. Ashford looked in the bag and saw the rifle later determined to be the murder weapon, among other items. He buried the bag, but later disclosed its location to police. When police opened the bag, they found the rifle, a bag of fertilizer, a fuse, dark clothing, combat boots, gloves, a pipe bomb, a ski mask, a double-edged knife, a bulletproof vest, and ammunition.

At trial, Martinez tried to pin the blame for the murders on Ashford. His mother and brother testified that he had been at home on the night of the murders. He also showed that Ashford lied several times when dealing with the police and that, prior to the murders, Ashford had had access to the murder weapon. Martinez v. Dretke, 2005 WL 1383350, *2 (N.D.Tex. June 8, 2005)

The district court also summarized the evidence introduced during the punishment phase of trial: At the punishment phase of the trial, the State introduced items that had been kept by Martinez in a storage facility. They included bomb-making components, over 3000 rounds of ammunition, other weapons, including two pistols, several illegal knives, illegally modified shotguns, and several rifles. Also introduced were four books bearing the notation “completed reading by James Martinez”: Be Your Own Undertaker: How to Dispose of a Dead Body; Master's Death Touch: Unarmed Killing Techniques; 21 Techniques of Silent Killing; and Dragon's Touch: Weaknesses of the Human Anatomy. The State also offered victim-impact testimony by Humphreys' father, mother, and stepmother, and Walton's mother.

Martinez called a number of people to testify that they had not known him to be a violent person and did not believe he would commit any more crimes in the future. None of them seemed to know Martinez very well, except his mother and brother, and most of them did not know (or admit that they knew) about his extensive collection of weapons and the books Martinez had read. Martinez also presented testimony of a former custodian of records for the Texas Department of Criminal Justice, who testified generally about daily prison routines and classification of prisoners.

Martinez also presented the testimony of Dr. Mark Cunningham (“Cunningham”), a clinical and forensic psychologist who testified about recidivism rates for capital murderers with Martinez's characteristics. Cunningham testified that there was only a small chance that a person like Martinez would commit future acts of violence in prison. In rebuttal, the state offered the testimony of an investigator with the prison prosecution unit, who testified about violence within the prison population. Id.

II.

Because Martinez initiated his federal habeas proceedings after April 24, 1996, his petition and the instant appeal are governed by AEDPA. Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In order to appeal the denial of his petition by the district court, Martinez “must first seek and obtain a COA” as a jurisdictional prerequisite. Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A COA will only issue if Martinez makes a substantial showing of the denial of a constitutional right, which requires a showing that “reasonable jurists could debate whether” the court below should have resolved the claims in a different manner or that this court should encourage Martinez to further litigate his claims in federal court. Id. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 483-84, 120 S.Ct. 1595); Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.2000). The COA determination “requires an overview of the claims in the habeas petition and a general assessment of their merits” but not “full consideration of the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029.

This court has emphasized that in making the COA determination, the court must be cognizant of the deferential standard of review the district court applies under AEDPA. Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir.2003), cert. denied, 540 U.S. 1179, 124 S.Ct. 1413, 158 L.Ed.2d 81 (2004). The district court defers to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. at 336-37 (quoting 28 U.S.C. § 2254(d)). A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Id. at 337 (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A state court's decision constitutes an unreasonable application of clearly established federal law if it is objectively unreasonable. Id. (citing Williams, 529 U.S. at 407-08, 120 S.Ct. 1495).

Additionally, AEDPA provides that the state court's factual findings “shall be presumed to be correct” unless the petitioner carries “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “The presumption of correctness not only applies to explicit findings of fact, but it also applies to those unarticulated findings which are necessary to the state court's conclusions of mixed law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir.2001). We now turn to a consideration of Martinez's specific claims.

III.

A.

Martinez first alleges in his federal habeas petition that he was denied the right to effective assistance of counsel because his trial counsel failed to argue that Casey Ashford was an accomplice witness. Martinez also argues that trial counsel never informed him of the implications such a theory might have for his case.

Counsels' primary defense theory in the liability phase of the trial was that Ashford had acted alone and that Martinez was not involved in the murders. For obvious reasons, trial counsel did not conduct voir dire on the accomplice witness theory, nor request a jury charge on accomplice witness testimony.

In order to prevail on an ineffective assistance of counsel ground, Martinez must show (1) that his counsels' performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for his counsels' unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 697. Judicial scrutiny of this type of claim must be highly deferential and Martinez must overcome a strong presumption that his counsels' conduct fell within the wide range of reasonable professional assistance. Id. at 689.

As a threshold matter, the district court observed that the state trial court made extensive findings of fact and conclusions of law related to the performance of Martinez's counsel, finding that trial counsel engaged in sound strategy. Those findings were adopted by the Court of Criminal Appeals in the habeas proceedings. Martinez makes no attempt, either in his federal petition or in the instant application for COA, to show that those findings are not entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). Martinez also makes no attempt to show that the state court's application of Strickland was “contrary to, or involved an unreasonable application” of that precedent.

Moreover, the district court independently concluded that the record supports the conclusion that Martinez's counsel employed sound trial strategy. Also, according to Martinez's trial counsel they raised with Martinez the possibility of arguing that he and Ashford had acted together, and Martinez declined to agree with pursuing this strategy. The record fully supports the district court's conclusion that counsel followed a conscious and informed decision on trial tactics. Such a decision cannot be a basis for constitutionally ineffective assistance of counsel unless it is so ill-chosen that it permeates the entire trial with obvious unfairness. Crane v. Johnson, 178 F.3d 309, 314 (5th Cir.1999). Martinez fails to make any such showing. Because reasonable jurists could not debate whether the district court's conclusion was correct, we deny COA on this issue.

B.

Martinez next argues that his trial counsel rendered ineffective assistance during the punishment phase. He complains that his attorneys presented the testimony of two witnesses, a corrections expert and a psychologist, on the issue of future dangerousness which was damaging to his defense. The district court agreed with the state habeas court and concluded that counsel employed sound trial strategy consistent with Strickland in deciding to call these witnesses. Again, Martinez makes no effort to demonstrate that the factual findings of the state court are not entitled to the presumption of correctness under 28 U.S.C. § 2254(e)(1), or that the state court's application of Strickland was “contrary to, or involved an unreasonable application” of that precedent.

The State's brief exhaustively discusses trial counsels' decision to elicit the testimony of these two witnesses. Counsel ultimately determined that the best punishment phase strategy would be to present evidence tending to show that Martinez was most likely going to be a “good” and “nonviolent” inmate in prison. The record makes clear that trial counsel carefully and deliberately consulted with several experts and attorneys who had presented similar testimony in death penalty trials before arriving at the strategic decision to follow this path.

Moreover, although parts of the witnesses' testimony was negative, in that both witnesses acknowledged that there were opportunities for violence in prison, neither affirmatively testified that Martinez himself posed a threat of future dangerousness. Even disregarding Martinez's failure to address the relevant standard of review in evaluating counsels' strategic decision, Martinez has failed to demonstrate either that his trial counsel was deficient or that he was prejudiced, both of which are required under Strickland. Because reasonable jurists could not debate whether the district court should have reached a different conclusion, we deny COA on this issue.

C.

Martinez next argues that the state trial court violated his Eighth and Fourteenth Amendment rights by issuing a jury instruction that did not perfectly track the mitigation special issue, and that his trial counsel rendered ineffective assistance by failing to object to the instruction. Martinez complains that the trial court's instruction did not track the special issue on mitigation the trial court required the jury to answer.

The Texas statute calls for a response to a special issue that asks “[w]hether ... there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than death sentence be imposed.” In explaining the special issues, the trial judge instructed the jury to “consider all evidence ... that militates for or mitigates against imposition of the death penalty.” (emphasis added). As we understand the argument, Martinez objects to the language in the charge, designed to explain the mitigation special issue, that refers to evidence that “militates for” the death penalty.”

Martinez admits in his application for COA that these claims were neither raised on direct appeal nor in his first state writ application. Instead, these claims were presented for the first time in the late supplement to his first state habeas application, which the Court of Criminal Appeals found to be procedurally barred and dismissed as a subsequent writ. Martinez made no effort in his federal habeas petition to overcome the procedural bar, and therefore the district court denied relief based on the procedural default.

Procedural default of a petitioner's federal habeas claim occurs where the last state court to consider a claim “clearly and expressly” dismisses it based upon a state procedural rule that provides an adequate basis for denial of relief, independent of the merits. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.2001); Nobles v. Johnson, 127 F.3d 409, 422 (5th Cir.1997). The “independent” and “adequate” requirements are satisfied where the court clearly indicates its dismissal of a particular claim rests upon a state ground that bars relief, and that bar is strictly and regularly followed by the state courts. Finley, 243 F.3d at 218.

In this case, the Texas Court of Criminal Appeals expressly based its dismissal of Martinez's new claims raised in his subsequent state writ application on an independent procedural bar. Martinez, therefore, may not obtain federal habeas relief absent a showing of cause for the default and actual prejudice that is attributable to the default. Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

However, Martinez has made virtually no effort to show cause for his failure to bring these claims in his first state writ petition. Instead he asserts, without elaboration or citation to the record, that the default was “due to the fault of appointed state habeas corpus counsel.” However, error by counsel committed in a post-conviction proceeding, where there is no constitutional right to counsel, cannot constitute cause. Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.1999); Irving v. Hargett, 59 F.3d 23, 26 (5th Cir.1995). Martinez has completely failed to offer any cause sufficient to meet the requirements to overcome the procedural bar on these claims, and no reasonable jurists could debate whether the district court should have reached a different conclusion. We therefore deny COA on this issue.FN4

FN4. On the merits, we also see no error in the instruction that approaches constitutional error. The instruction attempts to give the jury a balanced explanation of their duty to consider all the relevant evidence.

D.

Martinez next argues, based on a strained reading of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the State must bear the burden of proving beyond a reasonable doubt a negative answer to the mitigation special issue. Martinez's theory is incorrect. Apprendi requires that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

In Ring, the Supreme Court applied Apprendi to the Arizona death penalty scheme, and concluded that to the extent the sentencing scheme allowed “a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty,” it was unconstitutional. Ring, 536 U.S. at 609, 122 S.Ct. 2428.

However, the same requirements are not imposed on the consideration of mitigating facts. The Supreme Court specifically concluded in Walton v. Arizona that the burden of proof may lie on a defendant to establish by a preponderance of the evidence the existence of mitigating circumstances sufficiently substantial to call for leniency. 497 U.S. 639, 649-51, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (“So long as a State's method of allocating the burdens of proof does not lessen the State's burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.”), overruled in part on other grounds, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

Martinez's theory that the State must prove beyond a reasonable doubt a negative answer to the mitigation special issue has been clearly rejected by both the Supreme Court and the Fifth Circuit. We therefore deny COA on this issue.

E.

Finally, Martinez argues that the punishment phase jury instruction on the special issue of future dangerousness fails to give the jury sufficient guidance in understanding the term “probability.” FN5 However, as the district court noted, Martinez failed to raise these claims in either his direct appeal or his state habeas application, so that they are unexhausted and procedurally barred. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.2001). As with the barred claims discussed above, Martinez makes no effort to overcome this procedural bar by showing any cause for his failure to bring these claims before the state courts. Moreover, even if Martinez were able to overcome the procedural bar, his theory is clearly incorrect. As the district court found, it is well established that the Texas punishment issues are not impermissibly vague as they have a “common-sense core of meaning.” Pulley v. Harris, 465 U.S. 37, 50 n. 10, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th Cir.1984). Reasonable jurists could not debate either the application of the procedural bar nor the conclusion that Martinez's substantive argument is flawed. We therefore deny COA on this issue.

FN5. During the sentencing phase of Martinez's trial, the jury was charged with answering the following special issue:

Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? Tex.Code Crim. Proc. Art. 37.071 § 2(b)(1).

IV.

The claims asserted in Martinez's request for COA are wholly without merit or clearly subject to procedural bar. Because we conclude that the district court's denial of relief is not debatable by jurists of reason, the petition for certificate of appealability is denied.

PETITION DENIED.