Citations:

Robles v. State, Not Reported in S.W.3d, WL 1096971(Tex.Crim.App. 2006). (Direct Appeal)
Robles v. Thaler, 344 Fed.Appx. 60 (5th Cir. 2009). (Habeas)

Final/Special Meal:

Declined.

Last Words:

"I love you, Israel."

No. AP-74,726

Martin Robles, Appellant
v.
The State of Texas

II. Jury Selection

In his first point of error, the appellant claims that the trial court erred in denying him a full and fair voir dire examination by restricting relevant inquiry concerning the facts of the case. Juror questionnaires asked jurors to state any questions they had. Venire Member Julian Sanchez asked, "Why two lives?" During Sanchez's voir dire, defense counsel referred to that question in the following exchange:

[Defense counsel]: What did you need to know, sir?

[Sanchez]: I just - Why was [sic] two lives taken?

Q: Okay.

A: That's it.

Q: What I think the state's evidence is gonna be is that the two people that were killed were in a gang, and -

[Prosecutor]: Your Honor, I'm going to object to [defense counsel] telling this juror what my evidence is going to be in the trial, or, actually, what any of [the] evidence is gonna be in the trial. I think that's improper.

[Defense counsel]: Judge, I - That's a new one on me, because any time you voir dire the jury, you've gotta give them an idea about what the evidence is gonna be, so you can get their biases and things like that.

THE COURT: I don't agree with you. I think that's for opening statements. You can discuss matters, but you cain't [sic] discuss what the evidence is gonna be.

[Prosecutor]: You can discuss issues, but not evidence.

THE COURT: I agree.

[Prosecutor]: And that, I think, is what the law is.

[Defense counsel]: Well, note my -

THE COURT: Rephrase - you can ask the same questions, [defense counsel], just rephrase the question.

[Defense counsel]: Some of the issues in the case would be the fact that they're gonna claim that my client was in a gang, and that the two fellows that were killed we're [sic] in a gang -

[Prosecutor]: Judge, that's just -

THE COURT: You're doing the same thing.

[Prosecutor]: - ignoring the Court's ruling, and is going around it, and I object.

[Defense counsel]: Judge, if the Court is instructing me not to go into the evidence that I expect the state to show, for the purpose of voir dire, that's fine, and I won't do it, if I can get a specific instruction from the Court.

THE COURT: The instruction is, do not go into specifics of what you expect the evidence to show.

[Defense counsel]: Okay.

THE COURT: You can go into specifics of, how do you feel about gangs, if, you know, the evidence were to show? If - Do you understand?

[Defense counsel]: I understand the Court's ruling.

THE COURT: I'm telling you, you can do the same thing, [defense counsel], without telling the juror, This is what we expect the evidence to show. Okay? Now, opening statements is a completely different situation.

[Defense counsel]: Very well.

On appeal, the appellant contends that the trial court's instruction prevented him from discussing with Sanchez and the remaining venire members what the evidence was expected to show and from exploring their biases and prejudices.

Cox stated repeatedly that she would answer the special issues in such a way as to result in a death sentence only in cases involving a child victim or a victim who had been tortured; in all other circumstances, including those alleged in the appellant's indictment, Cox stated that she would always answer the issues in such a way that a life sentence would be imposed. Cox was unwavering in her position, restating at the close of her voir dire that she would vote to impose the death penalty only in these circumstances: "Just children and torture." The State's challenge for cause on these grounds was granted.

In this case, Cox said that she could never consider the death penalty in any case that did not involve child victims or victims of torture. She would never answer the punishment issues in such a way as to result in the death penalty for a murder committed in the course of a robbery that did not involve these types of victims. The trial court did not abuse its discretion in granting the State's challenge for cause. Point of error two is overruled.

II. Evidentiary Issues

A) Hearsay Statement Against Interest

In a hearing outside the presence of the jury, Lara testified that he and Padron were assigned to the same cell block designated for members of the Raza Unida gang. Lara stated that, when Padron was first brought into the cell block, he did not know Lara and asked one of the other gang members in the cell block if Lara could be trusted. Once assured that Lara was trustworthy, Padron began telling everyone that he did not understand how he had been caught so quickly and that he suspected the appellant had "snitched." Lara later had a private conversation with Padron in which Padron told him about committing the instant offense with the appellant.

Padron said that the appellant picked him up in a truck or Bronco and told him that they were "going to take care of business." When they arrived at the house where the murders were to take place, they took the chain off the fence and went in through a side or back door at the kitchen. They saw someone who they thought was a woman asleep on the couch, and they continued looking until they found a room where there were two people lying in a bed. Padron stated that he was the one with the high-caliber rifle. He said that he and the appellant just started shooting.

Lara's testimony before the jury was substantively the same as the testimony he gave during the hearing, but he also testified that Padron had told him about some of the events leading up to the murders, including a stabbing of two gang members and a drive-by shooting at a gang member's house. Lara testified that, according to Padron, the appellant said that the drive-by shooting was the "last straw" and that "enough was enough."

The appellant objected to the admission of Lara's testimony as hearsay and argued that it was not admissible as statements against Padron's penal interest because Padron would not have anticipated any penal consequences from bragging to a fellow gang member about his participation in a homicide. The appellant makes the same arguments on appeal.

We are not persuaded by the appellant's argument that the statements were not against Padron's penal interest because Padron was merely bragging to other gang members, which would have actually elevated his status within the gang. The statements implicated Padron in a very serious crime regardless of how they might have been viewed by other gang members. There is always a risk that the person to whom a statement is made will, for any number of reasons, repeat the statement to others or even to authorities. As explained by a court of appeals addressing this exact issue:

We conclude that Padron's statements were against his penal interest, despite the fact that the statements might have increased his status with other gang members. We must now determine if corroborating circumstances clearly indicate the statement's trustworthiness.

Padron's statements about the crime suggest trustworthiness because the details generally could not have been learned from a newspaper or other outside source. For instance, Padron described the fence and, to some extent, the lay-out of the house. He stated that he remembered seeing a woman asleep on the couch and described finding the targets asleep on a bed in another room. He also identified the stated motives for the murder: the stabbing of Padron's fellow gang members and a drive-by shooting of a named gang member's house.

The possibility that the statements might have been fabricated by Padron for the purpose of increasing status among gang members is a factor to consider. However, Lara testified that Padron checked with another gang member in the cell block to make sure Lara could be trusted before talking openly about his involvement in the crime. Padron obviously felt that he could speak freely to fellow gang members whom he trusted. Lara's potential motives for fabrication should be considered in addressing trustworthiness as well, but in this case there are sufficient indicia of reliability within the statement itself to outweigh these concerns.

Given the context in which the statements were made and the details revealed in the statements, the trial court did not abuse its discretion in finding that there were corroborating circumstances that clearly indicated that the statements were trustworthy. Point of error three is overruled.

In his fourth point of error, the appellant claims that the trial court violated his confrontation rights by limiting the cross-examination of Robert Lara and Vino Garcia about their agreements with the State. The appellant has failed to preserve this issue for review with regard to each witness.

The appellant's fifth, sixth, and seventh points of error pertain to the appellant's compelled display of a tattoo during the punishment phase of trial. According to descriptions in the record, the tattoo at issue depicted "Jesus with a demon devouring his brains." The tattoo was on the appellant's shoulder, and the appellant was required to remove his jacket and shirt to display it. Prior to the admission of the punishment evidence and during a hearing outside the presence of the jury, the appellant made a motion in limine in anticipation of the State's offering of the tattoo. The appellant argued that the tattoo was not relevant, that any relevance was substantially outweighed by its prejudicial effect, and that admitting it would violate the appellant's rights under the Fifth and Sixth Amendments. The State argued that the tattoo showed "a complete disrespect to Christ, the person that stood for peace and love and forgiveness" and was therefore relevant to future dangerousness. The State also noted that although it would not violate the appellant's rights to require him to take off his shirt in the courtroom, it preferred to offer photographs of the tattoo.

The trial court asked the appellant whether he would prefer to display the tattoo in photographs or by disrobing in the courtroom, if the evidence were to be admitted. The court reminded the appellant that the jury was allowed to take photos with them into the jury room. Without waiving any of his objections to the admission of the evidence, the appellant stated that he would prefer to disrobe. The court stated that it would not allow admission of photos and would rule on the appellant's disrobing when the issue came up during trial.

The prosecutor's opening punishment statement warned the jury that, in addition to some gang-related tattoos, they would see "some disturbing tattoos of demons and religious figures, and the most offensive tattoo, you're gonna see a tattoo on his arm - of a demon eating the brains of Christ on his arm." After opening statements and before calling its first witness, the State asked the appellant to stand and take off his jacket and shirt in order to display his tattoos to the jury. The appellant repeated his objections. The trial court overruled the objections and directed the appellant to stand and display his tattoos from counsel table. The appellant complied.

In closing arguments, the prosecutor argued that the tattoos were displayed to the jury "to educate you as to [the appellant's] philosophies, his belief systems, what he is about." He elaborated:

[Y]ou have a demon eating the brains of Christ. There was Christ, with the crowns, and what kind of looks like grapes, and then you have a demon putting it like that. Now, I don't know what that means, but to me it's a bad thing. That to me is a philosophy. I don't know if it's satanic. . . . but it tells you something about him as a person, that ought to tell you where his belief system is.

Although the tattoo's relevance is derived from what it communicated to others, the appellant was not compelled by State actors to create it. In this way, the appellant's tattoo is more akin to a pre-existing documentary communication than to a compelled testimonial communication. The appellant was merely asked to show the jury something he had created voluntarily before his appearance in court. The exhibition of the tattoo did not compel the appellant to say anything about its meaning. The trial court did not violate the appellant's Fifth Amendment rights by requiring him to display the tattoo. Point of error five is overruled.

In his sixth point of error, the appellant claims that the trial court erred in allowing the State to use the appellant's tattoo as a reason for imposition of the death penalty in violation of due process, equal protection, and freedom from cruel and unusual punishment. Specifically, the appellant contends that the State's argument that the tattoo represented the appellant's philosophy and was therefore relevant to the issue of future dangerousness improperly injected religion into the case.

The appellant contends that, because there was no connection or nexus between the type of tattoo and the nature of the crime or the motive behind the crime, the tattoo had little probative value apart from its religious significance. The State argues that the tattoo was evidence relevant to the special issue on future dangerousness because it was indicative of the appellant's character. The State also argues that the tattoo was prejudicial, but not unfairly so because the appellant chose to have the tattoo "depicting that which is evil triumphing over that which is good."

We will assume, without deciding, that the trial court erred in admitting the tattoo before the jury. Even so, we conclude that the appellant was not harmed by the trial court's admission.

The evidence presented during the guilt phase of the trial, which was relevant to the jury's punishment-phase determination of future dangerousness, included testimony that the appellant broke into a house at 3 a.m., looking for one of the sons in the family. He waved a gun around, threatened family members, and struck the father in the face with the gun before leaving. He shot and killed the two victims while they were asleep in bed.

During the punishment phase, the State presented evidence that, before the appellant's involvement in this case, the appellant pled guilty to murder with a deadly weapon and was sentenced to six years' imprisonment. Although the appellant was not the shooter in that offense, he was armed.

The appellant's records from the Department of Criminal Justice indicate that he began using marijuana and inhalants at age ten, mushrooms and acid at age fourteen, and cocaine at age fifteen. He was an admitted alcoholic. He also admitted to joining the "Clyde Crew" gang at age fourteen. The appellant reported that activities of the Clyde Crew gang included car-jacking and running drugs. While serving his sentence on his murder conviction, the appellant was the subject of four disciplinary reports. Two of the incidents involved altercations with other inmates, one was a failure to follow orders, and in one, the appellant was found in possession of a weapon, a metal rod with a sharpened point. Prison records reflect that prior to his murder conviction, the appellant was arrested eleven times, and was placed several times in the county juvenile facility.

The tattoo was not particularly critical to the State's case, although it was the only evidence of its kind. The facts of the case were very serious: entering a family home in the early morning hours, killing two people and injuring another man. The offense in this case, along with the evidence demonstrating the appellant's escalating and increasingly violent criminal behavior, was much more relevant to the jury's decision on the appellant's future dangerousness than the tattoo. Under these circumstances, we have a fair assurance that admission of the tattoo did not influence the jury or had but slight effect. Point of error seven is overruled.

In his eighth point of error, the appellant claims that the trial court erred in allowing inadmissible hearsay accounts of uncharged prison misconduct. Specifically, the appellant complains about two Department of Criminal Justice disciplinary reports. The appellant contends that the reports were inadmissible hearsay under Rule of Evidence 803(8)(B), as matters observed by "other law enforcement personnel."

The reports were included within a penitentiary packet designated as State's Exhibit 75. When the State proffered Exhibit 75, the appellant stated that it contained "extraneous hearsay matters" and asked if they could have a hearing on it later. The court noted the appellant's objection and stated that the packet would be reviewed before being released to the jury and portions would be redacted, if necessary.

In point of error nine, the appellant claims that the trial court erred in allowing the State to elicit testimony that the parole laws could change so that the appellant might be released on parole before the expiration of forty years on a life sentence. Prior to the appellant's case at punishment, the appellant presented a motion in limine asking the court to instruct the State "not to allude to any possibilities that the laws would change as far as the period of time [the appellant] would have to serve if he receives a life sentence." The motion was granted.

During the punishment phase, the appellant called Dr. Dennis Longmire, who testified as an expert about various aspects of the Texas penal system. Longmire testified that a person who receives a life sentence must serve forty years before he is eligible for parole. The appellant then asked Longmire if the law had changed over the years regarding the amount of time that must be served. Longmire responded:

Well, I believe the law began to change around '93 - 1993. Prior to 1993, capital murderers sentenced to life, capital life, became eligible for parole in around 12 years or 15 years. In '93 there was a requirement that they be - that they spend at least 35 calendar years, and then, in '95 that became 40 calendar years, and so, at this point in time that's the current law . . ..

During the State's cross-examination of Longmire, the prosecutor asked to approach the bench, and then stated that he believed that the appellant had violated his own motion in limine by asking Longmire about how the parole law had changed over the years. The prosecutor sought permission to ask Longmire whether it was possible that the law could change in the other direction. The court agreed that the appellant had opened the door with his question and allowed the following cross-examination about which the appellant now complains:

[Prosecutor]: I believe, Dr. Longmire, that you testified, under [defense counsel's] direct examination, that the law has changed over the years regarding what the minimum parole eligibility is for parole. Is that correct?

A: That's correct.

Q: Is there any guarantee you can have for this jury -

[objection made and overruled]

A: Is there any guarantee, Dr. Longmire, you can offer this jury that the legislature will not reverse their position on what the minimum parole eligibility will be over the next few years?

[objection made and overruled]

A: I can't guarantee what the Texas legislature will do in any case.

On re-direct examination, the appellant elicited testimony from Longmire that the current trend in Texas was toward harsher punishments and that there was no reason to think that a change in the parole eligibility law would apply retroactively to the appellant.

The judgment of the trial court is affirmed.

Delivered: April 26, 2006

Do not publish.

*****

1. Tex. Pen. Code § 19.03(a)(2).

2. Tex. Code Crim. Proc. Art. 37.071 § 2(g).

3. Tex. Code Crim. Proc. Art. 37.071 § 2(h).

4. Tex. R. App. P. 33.1.

5. See Wainwright v. Witt, 469 U.S. 412, 424 (1985) (holding that a potential juror is not challengeable for cause on the basis of scruples against the death penalty unless her views would prevent or substantially impair the performance of her duties as a juror in accordance with her instructions and oath).

6. 16 S.W.3d 1, 8 (Tex. Crim. App. 2000).

7. Ibid.

8. The appellant also alleges that the statements were admitted in violation of the Confrontation Clause as interpreted by Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding that hearsay statements that are testimonial must have been made by an unavailable declarant with a prior opportunity for cross-examination to satisfy the Confrontation Clause), but he did not assert an objection on constitutional grounds at trial and therefore has not preserved the issue for review. Tex. R. App. P. 33.1.

9. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994).

10. See Dewberry v. State, 4 S.W.3d 735, 744-45 (Tex. Crim. App. 1999) (stating "admission against a co-defendant declarant's interest can be admissible [under Rule 803(24)] against the defendant so long as it is sufficiently against the declarant's interest to be reliable").

11. Vasquez v. State, 902 S.W.2d 627, 635 (Tex. App.-El Paso 1995), rev'd on other grounds, 919 S.W.2d 433 (Tex. Crim. App. 1996).

12. See, e.g., Tex. R. Evid. 611, 613(b).

13. Tex. R. App. P. 33.1.

14. Tex. R. App. P. 33.1.

15. Fisher v. United States, 425 U.S. 391, 408 (1976).

16. Ibid.; see also Williams v. State, 116 S.W.3d 788, 791 (Tex. Crim. App. 2003).

17. Doe v. United States, 487 U.S. 201, 210 (1988).

18. Fisher, 425 U.S. at 409-410 & n.11 (stating that one reason subpoenaed documents were not "compelled testimonial communications" is because "the preparation of all of the papers sought in these cases was wholly voluntary" and "unless the Government has compelled the subpoenaed person to write the document . . . the fact that it was written by him is not controlling with respect to the Fifth Amendment").

19. Ibid.

20. Tex. Code Crim. Proc. Art. 37.071 § 2(a).

21. Conner v. State, 67 S.W.3d 192, 201 (Tex. Crim. App. 2001).

22. Banda v. State, 890 S.W.2d 42, 62-63 (Tex. Crim. App. 1994).

23. Conner, 67 S.W.3d at 201; Banda, 890 S.W.2d at 62; cf. Corwin v. State, 870 S.W.2d 23, 35 (Tex. Crim. App. 1993) (recognizing that defendant's drawing of "a large green monster holding a bloody-bladed axe in one hand and the scalp of a woman in the other with a body wrapped in the tail" had "an inferential bearing on his character for violence, which relates in turn to the question of future dangerousness").

24. United States v. Giry, 818 F.2d 120, 132-33 (1st Cir. 1987); United States v. Goldman, 563 F.2d 501, 504-05 (1st Cir. 1977).

25. McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App.1992), cert. denied, 508 U.S. 963 (1993).

26. Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997).

27. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).

28. Ibid.

29. Tex. R. App. P. 44.2(b).

30. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.1998).

31. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

32. Id. at 355-56.

33. The State did offer into evidence a photograph of the Raza Unida "stampa" which is tattooed on the appellant's forearm. A large tattoo on his upper arm is also visible in that photograph, but it is not clearly depicted and the record makes no reference as to what that tattoo might be.

34. Tex. R. App. P. 33.1; Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1032 (2004).

35. See Ripkowski v. State, 61 S.W.3d 378, 393-94 (Tex. Crim. App. 2001); Fuentes v. State, 991 S.W.2d 267, 279 (Tex. Crim. App. 1999).

Robles v. Thaler, 344 Fed.Appx. 60 (5th Cir. 2009) (Habeas)

Background: After defendant's conviction for capital murder and sentence to death was affirmed, 2006 WL 1096971, defendant filed a petition for writ of habeas corpus. The United States District Court for the Southern District of Texas, 2009 WL 594629, denied the petition. Defendant applied for a certificate of appealability (COA).

Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that: (1) federal habeas review of defendant's procedurally defaulted state court claims was barred, and (2) grammatically incorrect usage of the term “mitigates against” in jury instruction was not unconstitutionally vague. COA denied.

JERRY E. SMITH, Circuit Judge:

Martin Robles seeks a certificate of appealability (“COA”) from the denial of his petition for habeas corpus. We deny his application for a COA.

I.

Robles and an accomplice entered a dwelling while the occupants were asleep and shot and killed two persons. He was convicted of capital murder and sentenced to death. He appealed to the Texas Court of Criminal Appeals, which denied his direct appeal and his petition for a writ of habeas corpus. Robles filed a federal habeas petition, raising due process, Eighth Amendment, and Free Exercise Clause claims. The district court denied the petition, and he seeks a COA on his due process and Eighth Amendment claims.

II.

Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner must secure a COA as a “jurisdictional prerequisite” to appealing the denial of habeas relief.FN1 A COA will be granted only on “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To apply that standard, however, we conduct only a “threshold inquiry” and must issue a COA if “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338, 123 S.Ct. 1029 (citations and internal quotations omitted). “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. FN1. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also 28 U.S.C. § 2253(c)(2).

In death penalty cases, we resolve in the petitioner's favor any doubt about whether a COA should issue. Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005). Nevertheless, “issuance of a COA must not be pro forma or a matter of course,” and “a prisoner seeking a COA must prove ‘something more than the absence of frivolity.’ ” Miller-El, 537 U.S. at 337-38, 123 S.Ct. 1029 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Where the district court denies habeas relief on procedural grounds without reaching the underlying constitutional claims, the petitioner is additionally required to show that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

III.

Robles presents three claims of constitutional violation, all of which were rejected by the district court. Each of those claims requires discussion.

A.

Robles argues that the death penalty in Texas violates the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's guarantee of due process. The district court found that those claims were procedurally defaulted because Robles failed to raise them on direct appeal to the Texas Court of Criminal Appeals.

We find it undebatable among jurists of reason that Robles's Eighth and Fourteenth Amendment claims were procedurally defaulted. “When a state court declines to hear a prisoner's federal claims because the prisoner failed to fulfill a state procedural requirement, federal habeas is generally barred if the state procedural rule is independent and adequate to support the judgement.” Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir.2001). Where a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless he “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

In his federal habeas petition, Robles failed to show cause for his default and did not claim a fundamental miscarriage of justice. Instead, he now contends that a facial challenge to the Texas death penalty law is structural in nature and can be raised anytime. He cites no authority capable of supporting such an assertion and offers no other argument for why this court should ignore the independent and adequate procedural default. It is undebatable among jurists of reason that the district court was correct in its procedural ruling, and this conclusion is sufficient to deny a COA on the issue.

Even assuming arguendo that those constitutional claims have not been defaulted, Robles fails to raise any constitutional issue the resolution of which would be debatable among jurists of reason. “We are bound by Supreme Court precedent which forecloses any argument that the death penalty violates the Constitution under all circumstance[s].” United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998). Robles does not even attempt to show that the Texas death penalty law is unconstitutional as applied to him. Instead, he raises only a facial challenge-arguing that the death penalty in any form violates the Eighth and Fourteenth Amendments.

This court, however, “cannot invalidate the statute on the ground that it might conceivably be applied to reach an unconstitutional result in some other defendant's case.” United States v. Robinson, 367 F.3d 278, 290 (5th Cir.2004) (citations omitted). To succeed on a facial challenge on grounds other than the First Amendment, Robles must show that “no set of circumstances exists under which the [challenged statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Robles makes no such argument, so even if his claims were not defaulted, his categorical arguments based on the Eighth and Fourteenth Amendments fail to raise an issue that is debatable among jurists of reason.

B.

Robles contends that a grammatical error in the jury charge concerning the mitigation special issue violated his constitutional rights, because its phrasing could confuse the jury and render them incapable of giving effect to mitigating evidence. A capital sentencing jury must “be able to consider and give effect to a defendant's mitigating evidence in imposing [a] sentence.” Penry v. Johnson, 532 U.S. 782, 797, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (internal quotation marks, citations, and brackets omitted). The trial court instructed the jury as follows:

You shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty. Robles argues that the term “mitigates against” is grammatically incorrect and that this usage error created confusion among jurors such that they were not able to give effect to mitigating evidence.

Robles's claim of grammatical error is correct; grammar, however, is not the legal standard. An instruction is not unconstitutionally vague if the challenged term has “some ‘common sense core of meaning ... that criminal juries should be capable of understanding.’ ” Tuilaepa v. California, 512 U.S. 967, 973, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (quoting Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)). It takes more than bare grammatical error to render a jury charge constitutionally problematic.

The term “mitigates against” has the common sense core of meaning necessary to pass constitutional muster. First, the term is pervasive in everyday contemporary language. As demonstrated by the government, the pages of popular periodicals and web sites are replete with its usage. Moreover, it has been used repeatedly, without apparent vagueness or confusion, in caselaw. The Supreme Court has employed the phrase freely in a significant number of death penalty cases.FN2 Likewise, this court has employed the term without reservation in a variety of recent decisions.FN3 That prevalence, in both everyday usage and legal precedent, strongly suggests a “common sense core of meaning” that criminal juries can understand and apply.

FN2. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 251 n. 13, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007); Delo v. Lashley, 507 U.S. 272, 281, 113 S.Ct. 1222, 122 L.Ed.2d 620 (1993); Franklin v. Lynaugh, 487 U.S. 164, 170, 183, 184, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). FN3. See, e.g., United States v. Alfaro, 555 F.3d 496, 500 (5th Cir.2009); Smith v. Quarterman, 515 F.3d 392, 412 (5th Cir.2008); United States v. Arias-Robles, 477 F.3d 245, 249 (5th Cir.2007).

Even without that widespread use, however, the meaning of the phrase remains manifest when read in the context of the full charge. The words “mitigates against” follow immediately after the words “militates for.” The sentence structure suggests a clear contrast and, when read in context, the meaning of the later term is plain. Common sense suggests a meaning opposed to the words preceding the disjunctive, and the jury was not likely to be confused by its usage. The mitigation charge was not unconstitutionally vague, so this issue is not debatable among jurists of reason.

C.

Robles posits that the mitigation instruction placed an unconstitutional limitation on mitigating evidence. He concedes that the initial jury charge contained the appropriate language required under Texas law, but he argues that the court's failure specifically to refer the jury to both relevant sections of the initial charge when presented with a jury question violated his rights.

One section of the jury charge during the penalty phase instructed that “you shall consider mitigating evidence to be evidence that the jury might regard as reducing a defendant's moral blameworthiness.” Robles argues that this instruction unconstitutionally limited the jury's consideration of mitigating evidence to that which relates to moral blameworthiness and therefore precluded consideration of other relevant mitigating evidence. The full charge, however, specifically instructed the jurors to take into account “all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant.”

Robles concedes that the full charge was valid but contends that, when the jury requested clarification of the term “mitigating,” the court improperly pointed only to the former provision and neglected to direct the jury's attention to the latter. That argument fails to identify any mistake on the part of the trial court, much less a mistake of constitutional significance.

“[J]uries are presumed to follow their instructions.” Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Robles contends that the trial court's narrow response to the jury's request for a definition of mitigating evidence created a risk that the jury would not follow the entire charge. The full charge, however, was properly administered, and a narrow yet fully accurate response to a jury question will not upset the presumption that the jury followed its instructions.

As a response to a specific jury question regarding “mitigation,” the direction of the jury to the most relevant provision in the punishment charge was perfectly reasonable and appropriate. Moreover, there was nothing in that provision that in any way contradicted the previous instruction to consider “all of the evidence.” It merely contained the most direct guidance on the definition of mitigation and had none of the restrictive implications argued by Robles. Therefore, this claim in the COA application also fails to raise an issue that is debatable among jurists of reason.

The application for a COA is DENIED.