• September 9, 1999 - A Fort Bend County jury found Mathis guilty of capital murder, and Mathis was later sentenced to death following a punishment hearing.

• February, 2001 - Mathis filed a petition for state writ of habeas corpus.

• February 13, 2002 - The Texas Court of Criminal Appeals affirmed Mathis’ conviction and sentence on direct appeal.

• April 3, 2002 - The Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied relief.

• April 3, 2003 - Mathis filed a federal habeas petition in Houston federal district court.

• October 14, 2003 - Mathis filed a motion for summary judgment in federal dstrict court.

• February 2, 2004 - The federal district court denied Mathis’ federal writ and motion for summary judgment.

• February 17, 2004 - Mathis filed a motion for a new trial and for abatement in federal district court.

• March 9, 2004 - The federal district court denied Mathis’ motion for a new trial and motion for abatement.

• April 8, 2004 - Mathis filed notice of appeal and sought a certificate of appealability (COA) from the district court.

• 2004 - The district court denied his request for a COA.

• August 12, 2004 - Mathis filed an application for COA in the 5th U.S. Circuit Court of Appeals.

• February 2, 2005 - Mathis filed a motion with the 5th Circuit to stay his execution.

• March 11, 2005 - The 5th Circuit denied Mathis’ application for COA and stay of execution.

• March 25, 2005 - Mathis filed a motion for a rehearing in the 5th Circuit.

• April 13, 2005 - The 5th Circuit denied the motion for a rehearing and a stay of execution

• April 15, 2005 - Mathis filed a subsequent writ of habeas corpus in state district court

• On April 15, 2005, Mathis filed his third application for state habeas relief, claiming that he is mentally retarded and exempt from the death penalty under Atkins v. Virginia.

• He filed a motion for stay of execution in the Texas Court of Criminal Appeals on April 18, 2005, and a petition for certiorari review in the U.S. Supreme Court on the same day.

• The Court of Criminal Appeals granted Mathis’s motion to stay on April 19, 2005, but the Supreme Court denied his petition for certiorari on June 23, 2005.

• An evidentiary hearing on Mathis’s mental retardation claim was held September 12-15, 2005, and on September 20, 2006, Mathis’s third application for state habeas relief was denied.

• On September 29, 2006, Mathis sought authorization from the Fifth Circuit court, as required by the federal habeas statute, for leave to file another federal habeas petition in district court.

• On April 2, 2007, the motion was granted. And on April 4, 2007, Mathis’s second federal habeas petition was filed. The court dismissed Mathis’ petition on March 31, 2008.

• Mathis appealed to the Fifth Circuit court, but was denied on August 20, 2010. Mathis’ petition for certiorari review was denied on February 28, 2011.

• On April 10, 2011, Mathis filed a motion under Federal Rule of Civil Procedure 60(b), seeking relief from the judgment in Mathis v. Dretke, which was entered seven years earlier.

• The federal district court denied relief on April 29, 2011, denied Mathis’s request for COA on May 17, 2011, and denied his motion to stay his execution pending appeal on May 31, 2011. Mathis filed a notice of appeal at the Fifth Circuit court. That matter is now pending.

• On May 31, 2011, Mathis filed a clemency petition with the Board of Pardons and Parole.

• On June 20, 2011, Mathis filed the following with the U.S. Supreme Court: an original habeas corpus petition, a cert petition, a motion for stay of execution, and an application for a certificate of appealability.

• On June 20, 2011, the State filed a brief in opposition to Mathis's petition for certiorari, application for certificate of appealability, and application for stay of execution.

• On June 21, 2011, the state filed its brief in opposition to the original petition for writ of habeas corpus filed by Mathis.

• On June 21, 2011, Mathis filed a subsequent state habeas application. The Texas Court of Criminal Appeals dismissed Mathis's subsequent state writ.

• On June 21, 2011, the U.S. Supreme Court denied Mathis's two petitions and three stay requests.

Mathis’ prior criminal history, including an aggravated robbery, various assaults and thefts, and a charge for resisting arrest.

Milton Mathis was sentenced to death for killing Travis Brown III, 24, and Daniel Hibbard, 31. The men were shot to death in the house where they lived in the 5800 block of Maywood in Houston, Texas.

Milton Mathis

Texas
Possible Mental Retardation

Execution Date: Milton Mathis execution was scheduled for April 20, 2005. The sentence was stayed on April 18, 2005.

Facts of the Case:

Milton Mathis was sentenced to death for the murder of Travis Brown III, 24, and Daniel Hibbard, 31. The two men were shot to death in their home in Houston, Texas. Mathis was 19 at the time. The victims were shot in the head with a .45 calibre pistol. Police believed the motive for the shootings was robbery.

On December 15, 1998, at approximately 8:00 or 8:30 a.m., a woman and her 15-year old daughter went to the home of a man named Chris. Chris rented rooms in his home to Brown and Hibbard. Travis Brown and Milton Mathis were in Travis's room. While the woman, her daughter and Hibbard sat in Chris's room, Chris went into the kitchen. Shortly thereafter, Chris heard gunshots from Travis's room and turned to see Mathis exiting the room with a gun in his hand. Mathis claimed that Travis had just shot himself. Chris told Mathis to put the gun down, however Mathis ordered Chris and the other three back into Chris's room where he walked up to the girl and shot her in the head, leaving her alive but paralyzed from the neck down. Mathis then shot Daniel Hibbard in the head, killing him.

Mathis was subsequently tried by a jury and convicted of capital murder. The jury then returned answers to special issues submitted under the Texas Criminal Code, which required imposition of the death penalty. On September 21, 1999, the trial court entered the judgment and sentence of death. On February 13, 2002, the Court of Criminal Appeals affirmed the conviction.

Mental Retardation:

In their petition to the court for a stay of execution, Mathis' court-appointed lawyers argued that executing Mathis would violate the eighth amendment's prohibition against executing the mentally retarded. They cited an abundance of evidence pointing towards Mathis meeting the criteria for mental retardation as set out in the landmark Supreme Court ruling Atkins v. Virginia. In Atkins the Court concluded that "the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender."

The American Association on Mental Retardation ("AAMR") defines mental retardation as: (1) sub-average general intellectual functioning (i.e., an IQ of approximately 70 to 75 or below) that exists concurrently with (2) related limitations in two or more adaptive skill areas (communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work), and (3) onset before the age of eighteen.

According to the AAMR definition of mental retardation, the diagnostic features must be exhibited which characterize mental retardation prior to the age of 18. A collection of evidence points to the fact that the requisite diagnostic features were exhibited by Mathis long before he turned 18.

As maintained by the clemency petition, as early as his time in the first grade, it was clear that Mathis lacked the intellectual capacity of his peers. He was held back in the first grade and continued to have academic, as well as disciplinary, problems throughout his education. Later, during his second attempt at grade 9, he struggled to make D's and F's and dropped out of school. Mathis had trouble reading, writing, and completing simple mathematics. His family and people within the community recall Mathis had difficulty with everyday activities: dressing himself properly, keeping himself clean, cooking, getting places on his own, managing (and even counting) money, and remembering simple tasks. As he got older, his behavior was often age-inappropriate, and he had difficulty expressing himself.

In 1991, when Mathis was in the fifth grade and almost twelve years old, he was referred for an evaluation because of "poor school performance." The school administered several tests, one of which showed a full scale IQ of 79. However, it is important to note that the test used at this time may have been outdated and therefore likely to be unreliable. Allowing for documented IQ inflation (several studies were conducted on the reliability of the test used) and the margin of error, Mathis' attorneys assert that his IQ was at that stage between 65 and 69. At this time he also began to seriously abuse drugs, and his attorneys assert that the chemical assault on his brain has most likely caused significant and permanent brain damage, which further impaired his intellectual functioning. After almost 6 years of drug abuse, his performance IQ plummeted to 60.

At the age of 22, Mathis, according to testing administered by the medical division of the Texas Department of Criminal Justice (TDCJ) in 2002, had a full scale IQ of 62. The prison records accompanying these IQ test results noted "his current cognitive functioning appears to be a function of drug use . . ."

Currently, Mathis has significant limitation in adaptive behavior in all three AAMR domains: conceptual, social, and practical. He has significant limitations in eight of the eleven APA domains - self-direction, functional academics, home living, community living, health, leisure, communication, and social skills.

The attorneys anticipate that a mental retardation expert would recommend additional testing in order to confirm the 2002 results and that Mathis has mental retardation. However owing to his financial situation Mathis had been unable to obtain a current evaluation by a mental health expert. Following the decision of the Court, an evaluation is expected to ensue.

In the Court of Criminal Appeals of Texas

No. 73,621

MILTON WUZAEL MATHIS, Appellant
v.
THE STATE OF TEXAS

ON DIRECT APPEAL

FROM FORT BEND COUNTY

Meyers, J., delivered the opinion of the Court in which Keller, P.J., Price, Womack, Keasler, Hervey, Holcomb, and Cochran, J.J., joined . Johnson, J., joined the majority except as to point nine and filed a concurring opinion. Cochran, J., filed a concurring opinion joined by Womack, Hervey, Holcomb, J.J.

On December 15, 1998, at approximately 8:00 or 8:30 a.m., Esmerelda Lester and her 15-year old daughter Melanie Almaguer went to Chris Lentsch's home. Lentsch rented rooms to Travis Brown and Daniel Hibbard. Brown and appellant were in Brown's room. While Lester, Almaguer and Hibbard sat in Lentsch's room, Lentsch went into the kitchen. Shortly thereafter, Lentsch heard gunshots from Brown's room and turned to see appellant exiting the room with a gun in his hand. Appellant claimed that Brown had just shot himself. Lentsch told appellant to put the gun down, but appellant ordered Lentsch and the other three back into Lentsch's room where he calmly walked up to Almaguer and shot her in the head, leaving her alive, but paralyzed from the neck down. Appellant then shot Hibbard in the head, causing his death. Appellant finally pointed the gun at Lester, whereupon he discovered that he was out of bullets. Appellant thereafter rummaged through the house, set fire to Brown's room, threatened Lester and Lentsch, and finally left in Brown's car.

The police identified appellant as the killer and went to arrest him. Upon being arrested, appellant became violent. Officers discovered that appellant had told his father to lie for him and had persuaded his girlfriend to give him an alibi, which she maintained until confronted by the police. A fellow inmate testified that appellant showed no remorse for the shootings and stated that he wished he had killed them all.

During the punishment phase, the State put on evidence of appellant's prior criminal history, including an aggravated robbery, various assaults and thefts, and a charge for resisting arrest. The State presented additional evidence that appellant had been repetitively belligerent and disruptive at school and that he had gotten into a fight with jailers while incarcerated.

In his tenth point of error, appellant claims that the evidence presented at trial was legally insufficient to support the jury's finding that he would be a continuing threat to society. See Art. 37.071 § 2(b)(1). In reviewing the sufficiency of the evidence at punishment, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. Jackson v. Virginia, 443 U.S. 307 (1979); Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993). The facts of the crime alone can be sufficient to support the affirmative finding to the special issue. Allridge, 850 S.W.2d at 488. Additionally, we have consistently defined "society" as encompassing both the prison population and the free population. See Griffith v. State, 983 S.W.2d 282, 300 n.9 (Tex. Crim. App.), cert. denied, 528 U.S. 826 (1998).

The facts in the instant case demonstrate a calculated crime which culminated in execution-style killings. The State's evidence reflected that appellant was always in control of his actions and showed no remorse. In addition to these facts, the State showed that appellant had a litany of past behavior problems and had committed a number of criminal violations. Given the facts in the instant case, and the nature and number of the other extraneous acts shown, a rational jury could reasonably have concluded that appellant would continue to be a threat to society. The evidence is legally sufficient to support the jury's affirmative answer to the future dangerousness issue. Jackson and Allridge, both supra. Point of error ten is overruled.

In his first two points of error, appellant claims the trial court erred in denying his challenges for cause to two venirepersons. To preserve error on allegedly erroneously denied challenges for cause, an appellant must demonstrate that he asserted a clear and specific challenge for cause, that he used a peremptory challenge on the complained-of venireperson, that all of his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied, 117 S.Ct. 1561 (1997). The record in the instant case shows that appellant used only thirteen of his fifteen peremptory challenges. Appellant has failed to preserve error on these points. Points of error one and two are overruled.

In his third point of error, appellant claims the trial court erred in granting the State's challenge for cause to venireperson Villamayor based on her views against the death penalty. Under Wainwright v. Witt, 469 U.S. 412 (1985), a venireperson may be excluded for cause consistent with the Sixth Amendment to the United States Constitution when his views on capital punishment are such that they would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Clark v. State, 929 S.W.2d 5, 6-7 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1116 (1997); Vuong v. State, 830 S.W.2d 929, 942 (Tex. Crim. App.), cert. denied, 506 U.S. 997 (1992); Moody v. State, 827 S.W.2d 875, 888 (Tex. Crim. App.), cert. denied, 506 U.S. 839 (1992). Prospective jurors may not be excused merely because their beliefs about the death penalty might influence the decision-making process. Clark, supra.

Two weeks prior to Villamayor's individual questioning, the trial judge explained to the entire panel of veniremembers the procedural sequence of a death penalty case. The judge told the panel that the jury is first called upon to decide whether a capital murder defendant is guilty. The judge continued to explain that, if the jury found the defendant to be guilty, then the trial continued into a second phase where punishment was determined. The judge stressed to the veniremembers that a Texas jury is never required to assess a sentence of death or life imprisonment. Rather, the jury is required to answer a series of questions, and the answers to those questions would dictate to the judge what punishment should be assessed. Finally, the judge described to the panel the questions the jury would be required to answer.

During Villamayor's individual questioning, the prosecutor first went through several answers she had given on her questionnaire indicating that she was morally opposed to the death penalty. The prosecutor also noted responses in which Villamayor had indicated that she believed that there were circumstances in which the death penalty was appropriate. However, in response to specific questioning, Villamayor commented that killing just two individuals was not such a case. Rather, Villamayor stated that she felt the death penalty was appropriate only in such cases as when a person "kill[ed] a whole village."

[PROSECUTOR:] [A]re you of such a nature, ma'am, that you will almost always answer this [mitigation question] yes because then you know the person probably would receive a Life Sentence? Are you in that category, or would you go ahead and look at it and then answer it appropriately?

MS. VILLAMAYOR: I would probably be in that category.

[PROSECUTOR:] That you would automatically answer it?

MS. VILLAMAYOR: Yes, I think I would.

[PROSECUTOR:] Are your - are your feelings about the Death Penalty, is that the reason why you would probably automatically always find mitigating circumstances?

MS. VILLAMAYOR: Yes.

[PROSECUTOR:] - are your beliefs so strong, . . ., you are going to have problems setting them aside?

MS. VILLAMAYOR: I believe they are.

[PROSECUTOR:] Do you think - let me ask you one last time in regard to - and in a different fashion so that we are clear and there is no conflict here. Do you - do you believe that your personal opinions, your personal beliefs about the Death Penalty, being opposed to it, is going to substantially affect you in answering this question regarding mitigating circumstances?

MS. VILLAMAYOR: Yes.

The prosecutor then challenged Villamayor for cause and the judge passed her to the defense for questioning. During defense counsel's questioning, Villamayor continued to state that her beliefs would influence her judgment and she was not sure that she could be open-minded during the process.

Given the totality of the voir dire, the trial judge was within his discretion in determining that Villamayor's views on capital punishment were such that they would have prevented or substantially impaired the performance of her duties as a juror in accordance with her instructions and her oath. Wainwright, supra; see also Colburn v. State, 966 S.W.2d 511, 518 (Tex. Crim. App. 1998). Point of error three is overruled.

During the Batson hearing in the instant case, the prosecutor explained that he had struck venireperson Grooms because she had indicated that she was in favor of the death penalty only in those instances where the defendant requested the death penalty and the crime was of the most violent nature. She also noted that she felt the death penalty was imposed too often and that Texas had put a lot of people to death. With regard to prospective juror Adams, the prosecutor told the judge that he had struck her because she had indicated that she needed proof beyond any doubt and because she had two children, one of whom was about appellant's age.

The trial court then gave appellant an opportunity to rebut the prosecutor's explanations. Appellant responded by stating that the prosecutor used his strikes in a improper manner and that this was the most blatant violation of due process he had seen in twenty-three years of practicing law. The trial court overruled the Batson claim.

The State's explanations were facially race-neutral and appellant did not point to any evidence of pretext. The trial court did not abuse its discretion in finding that appellant failed to carry his burden of showing purposeful discrimination. See Pondexter, v. State, 942 S.W.2d 577, 581-82 (Tex. Crim. App. 1996)(defendant's rebuttal insufficient to establish State's explanations were pretext); Chambers v. State, 866 S.W.2d 9, 25 (Tex. Crim. App. 1993)("absent some other evidence which rebuts the State's race-neutral explanation, we will not disturb the trial court's finding that the State's explanation is legitimate"). Appellant's fourth and fifth points of error are overruled.

In his sixth point of error, appellant claims the trial court erred in refusing to instruct the jury on the lesser-included offense of manslaughter in the death of Daniel Hibbard, the second victim named in the indictment. He asserts that a finding that he was guilty of a lesser degree of criminal homicide in Hibbard's case would necessarily negate one of the elements required to convict him of capital murder. He contends that the evidence raising the issue of whether he was guilty of the lesser degree of criminal homicide came from his own testimony. Specifically, appellant repeatedly denied during his testimony that he had intended to kill anyone. He claimed that he killed Brown in self-defense and then just pulled the trigger in a panic when Hibbard turned around, but insisted he was acting recklessly and not intentionally.

To determine whether a charge on a lesser-included offense should be given, this Court has implemented a two-step test. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981) (plurality opinion). The first step is to decide whether the offense is a lesser-included offense of the offense charged. See Article 37.09; see also, e.g., Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993); Aguilar, 682 S.W.2d at 558. We have recognized that manslaughter is a lesser-included offense of capital murder. See Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex. Crim. App. 2000). Hence, the first prong of the test is satisfied.

The second step of the Aguilar/Rousseau test requires an evaluation of the evidence to determine whether there is some evidence that would permit a jury rationally to find that the defendant is guilty only of the lesser offense. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998); Rousseau, 855 S.W.2d at 672. In other words, there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense. Moore, 969 S.W.2d at 8. The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000), cert. denied, 121 S.Ct. 1407 (2001); Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997).

Contrary to appellant's claim that he shot Brown in self-defense, the medical examiner testified that Brown had suffered two bullet wounds to the head, one of which entered from the back. The evidence of appellant's actions following Brown's shooting reflected that he was calm and calculated, not that he was panicked or frightened. He shot Almaguer between the eyes and Hibbard in the head. Although appellant claimed he acted "recklessly" with the gun and did not intend to kill anyone, his testimony about the shootings was fraught with inconsistencies. For example, he vacillated between insisting he had not aimed the gun when shooting and stating that he had indeed aimed and shot:

I did not actually know at the time that I was - I was shooting [Almaguer]. I did aim the gun and pull the trigger, but I never meaned [sic] - I just shot. I never aimed it or anything. It just hit her. . . . I never said I didn't aim the gun and pull the trigger. I have been telling you the whole time that I did aim the gun and pull the trigger. . . . after they started hollering and screaming, then I went in there and that's when I aimed and pulled the gun and pulled the trigger. . . . I said I pointed the gun - I said I pointed it - I aimed - I didn't mean to just point it. . . . I just pointed it and shot . . .. I just pointed the gun and shot. I wasn't even really just looking . . . when I shot the gun, but I did aim it over there. I wasn't never even looking . . . I just pulled the trigger. . . . I just closed my eyes and shoot [sic].

Appellant's testimony that he did not intend to kill anyone does not amount to evidence upon which a jury could rationally find appellant only acted recklessly with respect to killing Hibbard, and not intentionally. Appellant had already shot and killed Brown with two shots to the head. He admitted to aiming and firing the gun. With four shots, he killed two people and hit the third between her eyes. Those who saw him testified his actions were calm and collected. In a similar case, Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000), the defendant killed five people. He sought an instruction on a lesser-included offense of aggravated assault. We upheld the trial court's refusal of the instruction:

The evidence must establish the lesser-included offense as a valid alternative to the charged offense. In the instant case, the trial record shows appellant acted intentionally, or at the least, knowingly, when he walked into an apartment armed with a high-powered rifle. He fired a single shot at close range into the chest of the first victim, a highly vulnerable part of the body. After witnessing the damage that resulted from his actions, appellant continued to fire the weapon, again at close range, into four more individuals, choosing as his target, either their head, chest, or abdomen. Physical evidence from the scene and the condition of the bodies suggest that one victim was shot as he attempted to escape from the apartment and another was shot while on his knees. The only contrary evidence that this was not an intentional or knowing act is appellant's own assertion that he did not intend to kill. Given the state of the entire record, this was not evidence from which a jury could rationally conclude that appellant was guilty only of aggravated assault.

Wesbrook, 29 S.W.3d at 113-14 (emphasis added); see also Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999) (not entitled to instruction on the lesser-included offense of aggravated assault when evidence showed appellant, at least, guilty of homicide). Apart from appellant's own testimony that he did not intend to kill anyone, there was no other evidence in support of such theory, and in fact the evidence refuted that testimony. We hold appellant's testimony does not supply evidence upon which a jury could rationally find appellant's actions toward Hibbard were merely reckless and were not at least knowing. Hence, appellant has failed to satisfy the second prong of the Aguilar/Rousseau test. Appellant's sixth point of error is overruled.

In his seventh point of error, appellant complains that "[t]he prosecutor committed reversible error when he referred to [a]ppellant in final argument as a 'despicable piece of human trash.'" Appellant failed to object at trial to the prosecutor's arguments, however, and therefore forfeited his right to complain about this issue on appeal. Tex. R. App. P. 33.l; Ladd v. State, 3 S.W.3d 547, 569 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). Appellant urges us to overrule Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996), in which we held that a defendant must pursue to an adverse ruling his objections to jury argument. Appellant argues that such inflammatory, prejudicial statements cannot be cured by an instruction to disregard, and thus it would be pointless to object in order to secure an ineffective instruction. But even if an the error was such that it could not be cured by an instruction, appellant would be required to object and request a mistrial. Nonetheless, we decline to overrule Cockrell, a case perfectly in line with Rule of Appellate Procedure 33.1 and the policies underlying preservation of error. Point of error seven is overruled.

In his eighth point of error, appellant claims his trial counsel failed to render effective assistance by neglecting to object to the prosecutor's comments during final argument concerning his non-testimonial courtroom demeanor.

To show an ineffective assistance of counsel claim, an appellant must first demonstrate that his trial counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668 (1984)(adopted by this Court in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)). Second, he must also show that his counsel's deficient performance was so serious that it prejudiced his defense, rendering the trial unfair and the verdict suspect. Strickland, 466 U.S. at 687; Lockhart v. Fretwell, 506 U.S. 364 (1993). In other words, appellant must show by a preponderance of the evidence that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and that this deficient performance rendered the result of the proceeding unreliable. Strickland, supra; McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993).

Appellant made no effort to prove the prejudice prong under Strickland. Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999); Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999). Point of error eight is overruled.

In Cantu, supra, the defendant was involved in the kidnaping, rape and murder of two girls in the same criminal episode. During the punishment phase of his trial for the kidnaping, rape and murder of one of the girls, the State presented testimony from the mother of the second victim regarding her daughter's good character, the family's search for her, and the impact of the crime on the family. The defendant objected that this "victim impact" evidence regarding a victim not named in the indictment was not relevant to the special issues, and that it was more prejudicial than probative. Id. at 636. We agreed that the evidence as to her good character, activities she enjoyed, and the impact of her death on her family was not relevant as appellant was not on trial for her murder and such evidence served no purpose other than to inflame the jury. We held such evidence to be irrelevant and highly prejudicial. Id. at 637.

The testimony at issue in the present case, however, is distinguishable from that evidence which was at issue in Cantu.

During the punishment phase of appellant's trial, the State called Janelle Manning, a nurse who had been caring for Almaguer for approximately four months, to testify. Appellant objected, arguing that although the testimony of Manning was relevant, he felt that the prejudicial effect of the testimony far exceeded its probative value. The State, in response to appellant's objection, argued that it would only be asking Manning to testify about the medical care provided to Almaguer on a daily basis and the things that were done in order to keep Almaguer alive. The trial court agreed to allow Manning to testify, however, it limited the testimony to the technical procedures required in the day-to-day care of Almaguer, while expressly curtailing any testimony regarding the psychological impact of Almaguer's paralysis, or any testimony pertaining to her feelings of pain.

In Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999), we discussed the meaning of "victim impact" and "victim character" evidence. We explained that "victim impact" evidence is evidence that is "generally recognized as evidence concerning the effect that the victim's death will have on others, particularly the victim's family members." Id. at 261. "Victim character" was defined as evidence that is "generally recognized as evidence concerning good qualities possessed by the victim." Id.

The testimony at issue here does not fall under either category of victim-related evidence.

Unlike in Cantu, in which the evidence involved testimony regarding both the victim's good qualities and the effect that her death had on family members, the testimony in the present case did not involve testimony about how third persons were affected by the crime, nor was there any discussion about the character of the victim. Manning's testimony focused solely on the medical procedures involved in the care of Almaguer. Appellant's characterization of Manning's testimony as victim impact evidence is incorrect. Point of error nine is overruled.

Appellant's conviction is affirmed.

Delivered: February 13, 2002

Publish

*****

1. Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure.

2. Appellant claimed Brown held the gun to appellant's head and threatened to kill him. Appellant testified he knocked the gun out of Brown's hand, and when Brown started walking toward him, appellant closed his eyes and pulled the trigger.

3. Before a veniremember can be properly challenged for cause, the law must be explained to her and she must be asked whether she can follow that law regardless of her personal views. See Jones, 982 S.W.2d at 390.

4. At trial appellant challenged nine of the State's strikes, but on appeal he complains only about the strikes to Grooms and Adams.

5. Once the responding party has offered a race-neutral explanation for a peremptory challenge and the trial court has ruled on the ultimate question of purposeful discrimination, the preliminary issue of whether the party raising the Batson challenge made a prima facie case becomes moot. See Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996).

I. Live Evidentiary Hearing

Mathis' raises two claims, which we have consolidated here, concerning the state habeas court's failure to hold a live evidentiary hearing before recommending that he be denied relief. Mathis argues that the failure to hold a live evidentiary hearing was a violation of his due process rights. Moreover, he contends that the inadequacies in the record interfered with the district court's ability to apply the proper review under § 2254. This latter argument seems to be related to the district court's duty, under § 2254, to afford a presumption of correctness to a State court's determination of a factual issue. See 28 U.S.C. § 2254(e)(1). Stated another way, Mathis seems to argue that without a full hearing in the state court, the district court could not assume the state court's findings were correct and thereby, must conduct plenary review of the factual issues. Mathis argues that important factual issues still needed to be developed and absent a live hearing, the state court did not provide a sufficient record on which the district court could evaluate Mathis' arguments.

The district court concluded that Mathis did not exhaust his constitutional claim, that the denial of an evidentiary hearing violated his due process rights, in state court. Despite finding that Mathis' claim was procedurally barred, the district court nonetheless went on to consider the merits. The district court held that complaints about state habeas proceedings are not a basis for federal habeas relief and notwithstanding, the federal courts do not have the power to grant the relief Mathis sought, namely, ordering that state evidentiary proceedings be conducted. In addition, the district court rejected Mathis' argument that ADEPA's deferential review is applied only after state courts have conducted a full and fair hearing.

Mathis argues that in his “motion for hearing on issues raised in writ of habeas corpus,” presented to the state habeas court, he stated that a denial of a hearing on the issue of ineffective assistance of counsel would be a due process violation. In addition, he asserts that he clearly indicated in the motion that his arguments were based on the Eighth and Fourteenth Amendments. Even assuming arguendo that Mathis' claim was exhausted in state court, we are not persuaded that a COA should be issued. It is well established that “infirmities in state habeas proceedings do not constitute grounds for federal habeas relief. We look only to the trial and direct appeal.” FN1 Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992). Moreover, Mathis' argument that any deficiencies in the record impeded the district court's ability to apply deferential review pursuant to § 2254, fails to recognize that ADEPA “jettisoned all references to a ‘full and fair hearing’ from the presumption of correctness accorded state court findings of fact.” Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir.2001). There is no requirement that a full and fair hearing be conducted before the district court may afford deference to the state court's factual findings.

FN1. Mathis unsuccessfully tries to distinguish Duff-Smith, supra, and Henderson v. Cockrell, 333 F.3d 592 (5th Cir.2003), by noting that, as opposed to the present case, federal court hearings were conducted in those cases. However, we find that distinction inconsequential. Furthermore, while we may agree with the premise of Mathis' statement that a fair hearing should not be trivialized as an “infirmity,” we feel his argument overlooks the core of the holding in Duff-Smith and Henderson, namely, that on habeas review we look to only the trial and direct appeal.

II. Lesser Included Offense Instruction

Next, Mathis argues that the trial court violated his constitutional rights by refusing to give an instruction to the jury on the lesser included offense of manslaughter with respect to the death of Daniel Hibbard, in accordance with Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The Supreme Court in Beck held that a death sentence imposed after a conviction of a capital offense is unconstitutional where the jury was prohibited from considering a verdict of guilty of a lesser included offense. “Subsequent decisions by this court have consistently held that a state trial court may not, under Beck, refuse a lesser-included-offense instruction if the jury could rationally acquit on the capital crime and convict for the noncapital crime.” East v. Scott, 55 F.3d 996, 1005 (5th Cir.1995) (internal quotation marks and citations omitted).

During the trial, Mathis testified that he shot Brown in self-defense because Brown was threatening to shoot him. He alleged that after he shot Brown, everyone else present in the house began “hollering and screaming.” Mathis stated at trial that “I never aimed the gun. I just walked in there and heard them all screaming, and I was just pointing the gun and pulled the trigger. So I never aimed. I am not a target-or nothing like that sir. I don't know how to shoot a gun like that ... I didn't-I didn't mean to hurt nobody, sir. I'm not a killer, sir.' ” Mathis' trial counsel argued that Mathis' testimony demonstrated a mental state of recklessness in the killing of Hibbard and therefore, a manslaughter instruction should be given. Mathis' testimony went against the great weight of the evidence and the surviving eyewitnesses' testimony that he was calm and calculated when he shot Hibbard. The trial court denied trial counsel's request; instead the trial court instructed the jury it could return a conviction of capital murder or murder.

In Beck, the Supreme Court invalidated an Alabama statute that prohibited the trial court from giving a lesser included offense instruction in a trial for a capital crime. As the Supreme Court later explained in Schad v. Arizona, Beck sought to prevent a scenario where a jury, convinced that a defendant was guilty of a serious, violent crime but not sure that he was guilty of a capital crime, was faced with a situation where they had to vote for a capital conviction or let the defendant go free. 501 U.S. 624, 646, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (quotation marks omitted).

‘[O]n the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason-its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty [in Alabama] may encourage it to acquit for an equally impermissible reason-that, whatever his crime, the defendant does not deserve death.... [T]hese two extraneous factors ... introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.’ We repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented.... As we later explained in Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), ‘[t]he absence of a lesser included offense instruction increases the risk that the jury will convict ... simply to avoid setting the defendant free.... The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.’ This central concern of Beck simply is not implicated in the present case, for petitioner's jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence. Id. at 646-47, 111 S.Ct. 2491 (internal citations omitted).

In Schad, the trial court gave a jury instruction for the non-capital offense of second-degree murder. The petitioner argued that the jury should have been given an instruction for simple robbery. The Schad Court rejected the petitioner's argument, concluding that as long as the jury had an option other than capital conviction or acquittal, even if that third option was second-degree murder and not robbery, the jury's capital murder verdict did not implicate a Beck violation. Id. at 647, 100 S.Ct. 2382.

Here, the jury found Mathis guilty of capital murder under Texas Penal Code § 19.03(a)(7) for the murder of more than one person during the same criminal transaction. Mathis argues that a capital murder charge under § 19.03(a)(7) is really two murder convictions plus an affirmative finding of the same transaction. He argues that Beck must be applied to each homicide in his capital murder charge. He contends that the jury was faced with the all or nothing dilemma of either convicting Mathis under a higher mental state for Hibbard's murder or letting him go free for that killing, and thereby, under Beck, the trial court violated his constitutional rights when it did not allow the jury to consider the lesser included offense of manslaughter as to Hibbard. A finding of recklessness as to the killing of Hibbard would necessarily negate one of the elements required to convict him of capital murder.FN2

FN2. Mathis also argues that the jury charge presented a problem akin to the one in Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), in that, without a manslaughter instruction, jurors who did not believe that one murder conviction fully addressed the fact of two killings would have to nullify a truthful finding that the petitioner killed Hibbard in order to compromise on a verdict which only held him accountable for the murder of Brown. However, the jury instruction here was not internally contradictory nor did it present the ethical dilemma faced by jurors instructed under the unconstitutional charge in Penry. We therefore reject this argument.

The Court of Criminal Appeals rejected Mathis' argument because it held that his trial testimony alone did not present enough evidence for the jury to rationally find that his shooting of Hibbard was simply reckless. The Court of Criminal Appeals held that a lesser included offense instruction should only be given by a trial court where a valid rational alternative to a capital conviction can be found in light of all the evidence. The district court affirmed, holding that the state court ruling was not contrary to, or an unreasonable application of, federal law. In addition, the district court read Beck as prohibiting a situation where the jury was faced with only two choices, either convict the defendant of a capital offense or acquit. Under that interpretation, no constitutional violation occurs if the trial court provided the jury with the option of convicting the defendant of a non-capital offense. Because, the jury was given the option of convicting Mathis of a non-capital offense, the district court concluded no constitutional violation occurred, even if the trial court denied a specific lesser-included offense instruction. We agree with the district court's latter conclusion.

The crux of Mathis' argument is parallel to that presented by the petitioner in Schad. Id. at 646-48, 100 S.Ct. 2382. The petitioner there was charged with murder committed during the course of a robbery, a capital offense, but he maintained that he was guilty of only simple robbery. The jury was instructed on capital murder and second-degree murder. Schad argued that if the jury believed his defense theory, and thought him guilty of only robbery, there was no verdict through which they could express that view; the jury was therefore faced with either convicting him of murder or letting him go free. The Supreme Court rejected the petitioner's argument that “the jurors should have been given the opportunity to return a verdict in conformity with their reasonable view of the evidence.” Id. at 647, 100 S.Ct. 2382 (internal quotation marks and citation omitted). The assertion that a petitioner is entitled to instruct the jury on every lesser included offense supported by the evidence, the Schad Court said, is a misapprehension of the constitutional principles in Beck. Id. at 646, 100 S.Ct. 2382. Instead, the Schad Court reiterated that the goal of Beck was to eliminate an all or nothing choice between capital conviction or innocence. Id.

Here, the trial court gave instructions as to capital murder, murder, and self-defense. Thus, the jury was not faced with a situation where they might be “convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime [and] might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.” Id. Here, if the jury believed that Mathis was guilty of a serious, violent crime but did not want to impose the death penalty, they had the choice of imposing a sentence of murder. Because this conclusion is not one about which reasonable jurist could differ, we decline to issue a COA.

A. Failure to investigate impeachment evidence

The district court affirmed the state habeas court's conclusion that Mathis' trial counsel's pre-trial investigation of impeachment evidence was not ineffective. Furthermore, the district court averred that even if trial counsel should have investigated Jackson's background more thoroughly, there was no indication that the deficiency prejudiced the defense. The jury was well-aware that Jackson had a criminal record because it was mentioned in both direct and cross examination. The district court observed that trial counsel vigorously cross-examined Jackson, calling him a thief, a burglar, a robber, a cheater, and a liar. Accordingly, the district court held that there was not a reasonable probability that there would have been a different outcome had trial counsel more thoroughly tried to impeach Jackson's testimony.

Our review of the record likewise indicates that trial counsel thoroughly challenged Jackson about his credibility during cross-examination. Mathis argues that counsel should have been aware of the impeachment evidence concerning Jackson that was available in the public record. However, as previously noted, the Supreme Court has stated that defense counsel may reasonably rely on a prosecutor's open-file to contain all relevant exculpatory materials the state is obligated to disclose when a prosecutor asserts they have complied with Brady through their open-file policy. Strickler, 527 U.S. at 282 n. 23, 119 S.Ct. 1936. Mathis' counsel was not ineffective in failing to find the information about Jackson that was not contained in the prosecutor's open-file, even if that information was available in the public record. However, even if trial counsel was obligated to discover the impeachment evidence against Jackson, reasonable jurists could not disagree that there is no probability that there would have been a different result at trial. See Section V, supra. We therefore decline to issue a COA.

B. Failure to object to Lester's testimony

Mathis argues that his trial counsel was ineffective for failing to object to certain comments made during the guilt-innocence phase of the trial by Emeralda Lester, a surviving eyewitness and mother of paralyzed victim Melanie Almaguer. On direct examination, the prosecutor asked Lester where she had been living since the shooting. Lester responded that she had been living “[f]rom motel to motel” because she was in hiding. The prosecutor replied, “Why?” to which Lester stated, “Because it was on the streets that there was a hit on my head.” Mathis asserts that Lester's comment implied that he may be responsible for a serious extraneous offense-namely, solicitation of the murder of a witness, in order to preclude Lester from testifying against him. Mathis contends that Lester's testimony, in tandem with Jackson's testimony, implied that he was remorseless and violent. Furthermore, Mathis argues that had his trial counsel objected to Lester's testimony, it would have warranted a mistrial.

The district court concluded that Mathis failed to show that an objection to Lester's testimony would have created a reasonable probability of a different result, especially in light of the significant independent evidence establishing that Mathis had a violent criminal history and displayed no remorse. Although the gravamen of Mathis' argument is that Lester's testimony affected the jury's decision in sentencing, the testimony itself occurred during the guilt-innocence phase of the trial. Even assuming that the jury retained this information as part of their sentencing deliberations, the district court noted that Lester did not state that Mathis was responsible for the “hit on [her] head,” nor that the “hit” was a direct result of the shootings or the trial.

We agree, and find that reasonable jurists could not disagree with the district court's conclusion. In addition, we note that Mathis himself admits that there was evidence, independent of Lester's vague comment, that could have established that Mathis was remorseless and violent. Mathis' brief states that Lester's testimony “dovetailed with Jackson's testimony about the petitioner's supposed ‘regret’ ” and “Lester's testimony, like Jackson's, provided strong evidence of an ongoing ‘remorseless' attitude and tendency towards violence.” We thereby can not issue a COA.

C. Failure to object to prosecutor's statement

Mathis objects to the prosecutor calling him “a despicable piece of human trash” during closing statements and asserts that his trial counsel was ineffective for failing to object to the prosecutor's use of language. He contends that the jury is likely to be influenced by an experienced prosecutor's personal opinion. He also argues a characterization that he is trash implies that he deserves to be discarded, i.e., that he deserves to die. The district court concluded that Mathis failed to show that the failure to object resulted in prejudice or made the proceedings fundamentally unfair. Trial counsel had also used trenchant language in closing arguments in reference to the victims, which the state habeas court concluded could have justified an equally vitriolic response from the prosecution; the district court held that the state habeas court's conclusion was not contrary to or an unreasonable application of federal law.

The prosecutor's comment was very likely an impermissible interjection of his personal beliefs into the closing arguments, however, we are unconvinced that a COA should be issued. Even if trial counsel had objected, the statement would not have constituted reversible error. See e.g., United States v. Hayes, 444 F.2d 472, 474 (5th Cir.1971) (“Because of the overwhelming evidence of guilt, it can hardly be said that appellants were prejudiced in the minds of the jury by the prosecutor's comment. Even taking the view most favorable to appellants, such remarks do not constitute the type of ‘obvious and substantial’ error which would be grounds for reversal.”); see also United States v. Shaw, 701 F.2d 367 (5th Cir.1983) (prosecutor's comment [he had never seen a “colder, more cold blooded, remorseless defendant”] did not prejudicially affect defendant's substantial rights considering overall strength of evidence against him and failure of prosecutor to convey impression that he possessed private or extrinsic information supporting belief.). In light of the overwhelming evidence presented of his guilt, there is no probability that an objection from trial counsel would have resulted in a different outcome at trial.

D. Failure to investigate low intelligence/mental retardation.

The evidence presented to the state trial court showed Mathis to have a low range of intelligence but all above the threshold for mental retardation. Specifically, the expert's report indicated that Mathis' full scale I.Q. was 79, his verbal I.Q. was 77 and his performance I.Q. was 85. Testing performed by a psychologist for the Texas Department of Criminal Justice after his conviction reflect different results. Those results show Mathis to have a full scale I.Q. of 62, verbal I.Q. of 65 and a performance I.Q. of 60. The district court held that Mathis failed to present evidence that reasonable counsel, at the time of trial, would have investigated his possible mental retardation further. Nonetheless, the district court concluded that even without the evidence of mental retardation, trial counsel “covered the same ground” in presenting evidence that Mathis' drug use impaired his ability to reason and function normally; thus there is no reasonable probability that evidence of mental retardation would have changed the result.

We decline to issue a COA on this issue because trial counsel did not fall below objective standards of reasonableness in their investigation of Mathis' intelligence. It is not asserted that trial counsel failed to investigate mental capacity. Cf. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (finding Strickland claim meritorious where counsel failed to conduct an adequate investigation into defendant's background). To the contrary, Mathis took an I.Q. test prior to trial and scored low, but above the threshold for mental retardation. Mathis makes no argument that a reasonable counsel at the time of trial would have investigated further. It is a mystery how Mathis could have scored 10-20 points higher on his I.Q. test before trial as compared to after his conviction. However, trial counsel was not deficient in their performance to trust the results of the initial I.Q. tests.

E. Mitigating evidence of frontal-lobe damage

Mathis presented an affidavit from Pheobe Smith, who along with lead counsel, Steven Rosen, was Mathis' counsel at trial. Smith averred that in her investigation of mitigation evidence, she interviewed Dr. Stephen Martin, Ph.D., a neurological expert. Based on neurological tests performed by Dr. Martin's associate, Dr. Martin was prepared to testify that Mathis had frontal lobe brain damage and that the brain damage impaired Mathis' ability to think and function normally, particularly when under stress. Smith stated in her affidavit that she did not known why Steven Rosen chose not to present this potentially mitigating evidence and she felt that it was ineffective assistance of counsel to not present the testimony of Dr. Martin.

“[C]ounsel's failure to develop or present mitigating background evidence is not per se deficient performance.... Strickland requires that we defer to counsel's decision not to present mitigating evidence or not to present a certain line of mitigating evidence when that decision is both fully informed and strategic, in the sense that it is expected, on the basis of sound legal reasoning, to yield some benefit or avoid some harm to the defense.” Moore v. Johnson, 194 F.3d 586, 615 (5th Cir.1999) (internal citations omitted). The state habeas court held that trial counsel's decision not to put Dr. Martin's evidence before the jury was part of sound trial strategy and did not fall below an objective standard of reasonableness. The district court determined that the state habeas court did not fully adjudicate the claim on its merits because it did not consider the prejudice prong of the Strickland analysis, and consequently the prejudice prong may be reviewed de novo. See Henderson, 333 F.3d at 600-01(finding that the ADEPA's standard of review does not apply to the deficient performance prong of Strickland claim because the state court did not address that part of petitioner's claim).

Without addressing the question of whether trial counsel was deficient for not presenting Dr. Martin's evidence, on de novo review the district court concluded that Mathis did not satisfy the prejudice prong of the Strickland analysis. After noting that Mathis stated that his frontal lobe damage was not caused by a physical injury but was instead attributable to his drug use, the district court concluded that trial counsel presented other mitigating evidence with the same “mitigating thrust.” Specifically, the district court stated that the testimony of Dr. Jesse A. Reed, a psychologist who testified about the effect drug abuse had on Mathis, was similar in kind to Dr. Martin's averments because they both would have presented to the jury facts stating that drugs impaired Mathis' judgment and contributed to his criminal history. Accordingly, the district court held that there was no reasonable probability of a different result because the jury was able to consider evidence with the same mitigating effect. We agree, and further find that reasonable jurists could not debate this point; therefore, we deny a COA.

Conclusion