Summary:

Three young men walked out of a nightclub in Navarro County and got into a car. Dexter McDonald sat in the right rear passenger seat. Eyewitnesses testified that Ronnie Threadgill ran up and fired two shots from a handgun into the car. The first shot did not hit anyone. The second shot hit McDonald. The bullet passed through McDonald’s arm and went into his chest. Threadgill then got into the driver’s seat and began to drive away, but he stopped at a nearby stop sign, pulled McDonald out of the car, left him on the ground, got back in the car and drove away.

Citations:

Threadgill v. State, 146 S.W.3d 654 (Tex.Crim.App. 2004). (Direct Appeal)
Threadgill v. Thaler, 425 Fed.Appx. 298 (5th Cir. 2011). (Federal Habeas)

Final/Special Meal:

Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.

Final/Last Words:

"To my loved ones and my dear friends, I love y'all and appreciate y'all for being there. I am going to a better place. To all the guys back on the row, keep your heads up, keep fighting. I'm ready. Let's go."

Ronnie Paul Threadgill
Date of Birth: 02/20/1973
DR#: 999424
Date Received: 07/22/2002
Education: 9 years
Occupation: barber, cook, laborer
Date of Offense: 04/14/2001
County of Offense: Navarro
Native County: Dallas
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 6' 00"
Weight: 174

Prior Prison Record:

TDCJ-ID #664574 originally received on a 10 year sentence from Navarro County for 1 count each of possession of a controlled substance cocaine and burglary, 08/14/1994 and release on shock probation; 02/16/1996 received at Byrd Diagnostic as SAIP violator with a new conviction, and new #740758, 12/19/1997 mandatory supervision to Ellis County, 07/03/2000 return from mandatory supervision, 01/12/2001 mandatory supervision to Travis County, 07/22/2002 returned from mandatory supervision.

Summary of Incident:

On 04/14/2001, in Navarro County, Texas, Threadgill murdered a 17 year old black male. The victim had received a single gunshot to the upper body and was taken to Navarro County Regional Hospital where the victim died. Threadgill also took a vehicle during the incident.

ON DIRECT APPEAL FROM NAVARRO COUNTY

Appellant moved to suppress the evidence on the ground that the clothes should not have been tested without a warrant. The trial court denied appellant's motion, ruling the search incident to a valid arrest. Appellant argues that the DNA analysis of the blood on his clothes was an invalid search because it was conducted without a search warrant.

In Oles v. State, 993 S.W.2d 103 (Tex. Crim. App. 1999), we granted the appellant's petition for discretionary review to decide whether "law enforcement, without a search warrant, may test the clothing of a person lawfully arrested and in custody for one offense in order to investigate that person's involvement in another (a second) offense, when there are no exigent circumstances to justify the warrantless testing, nor is there probable cause to test the clothing for the second offense." Id. at 104-05. We concluded that police may examine and test clothing validly within their control and custody, regardless of the existence of probable cause or exigent circumstances. Id. at 109.

We further stated that "once it is determined that police lawfully seized the personal effects of an arrestee, his expectation of privacy is diminished in those effects until he can and does exhibit subjective expectations through his conduct, presumably at the time of release from detainment or incarceration." Id. at 110 (emphasis in original).

Appellant points to no evidence that he possessed a subjective expectation of privacy in his clothing that was in police custody. Since there was no reasonable expectation of privacy and the search of the clothing was not unreasonable under the circumstances, the trial court did not abuse its discretion by denying appellant's motion to suppress the DNA results. Id. Point of error one is overruled.

In his second point of error, appellant claims that the evidence is legally insufficient to support his conviction. He claims that the evidence is insufficient in three respects. He claims it does not support the findings that he was the offender, that he had intent to kill the victim, or that the murder occurred in the course of robbing the victim.

On the evening of April 14, 2001, a birthday party was held at the Pleasure Garden Club in Navarro County for Christopher Lane and his sister, Mona Lane. The party ended sometime between 2:00 and 4:00 a.m. Dexter McDonald and Kevin Williams planned to ride home with Christopher. Williams got in the front passenger seat of Christopher's car and McDonald got in the back. Christopher was driving. Before leaving Pleasure Garden, Christopher got out of the car to talk to someone and left the car running with the driver's side door open.

Christopher testified he left Williams and McDonald in possession of his vehicle. Christopher then heard gunshots and saw his car being driven out of the parking lot. The car stopped at the stop sign at the access road and then headed north on Interstate 45 toward Dallas. Williams had jumped out of the car before it left the Pleasure Garden parking lot, but the driver pulled McDonald from the car and left him on the ground when the car stopped at the stop sign. Friends took McDonald to the hospital where he died of a gunshot wound to the chest.

Danyel Dwayne Nellums attended the birthday party and was in the parking lot afterwards. He was walking toward Christopher's car when he saw a man run from behind the car and jump into the driver's seat. According to Nellums, the man fired a shot and Williams jumped out. The man fired a second shot, which struck McDonald, and drove off. The man was wearing blue jeans and a white T-shirt. He had a bandana over the lower part of his face and was carrying a black pistol.

Mona Lane testified that she did not see the shooter's face, but saw him from the back. He was wearing blue jeans, a white T-shirt, and dark shoes. She testified that a car she had seen parked in the club's parking lot earlier in the night pulled up beside her brother's car, and the driver jumped out and ran around Christopher's car, yelling to the passengers to get out. Then she heard gunshots. She testified that she had seen the shooter earlier in the night sitting in the driver's seat of a car outside of the club. She identified appellant as the man she saw earlier in the night sitting in the driver's seat of a car in the parking lot.

The incident was immediately reported to police, and a dispatch went out for the stolen vehicle. Officers with the Ennis Police Department heard the dispatch and saw a vehicle matching the given description traveling on I-45. The officers pursued the vehicle with their sirens on and lights flashing. The vehicle exited the freeway and attempted to turn the wrong way onto the one-way service road. The driver slammed on the brakes and skidded into a ditch, disabling the vehicle. The driver got out of the vehicle and ran to a nearby Mobil Station where a number of semi-trucks were parked.

The officers surrounded the station, and found Appellant hanging from the axle underneath a semi-truck trailer. A bandana was found stuffed under the frame of the trailer where he was hiding. He was wearing blue jeans and a white T-shirt. Ennis police officer Randy Owen identified appellant as the person he saw get out of Christopher's vehicle and the person who was found hiding under the truck. Appellant's fingerprints were matched to fingerprints lifted from the rear passenger door of Christopher's vehicle. The blood of the victim matched blood on appellant's clothes.

Appellant called Kevin Williams, the passenger who escaped from the front seat of the car before it left the Pleasure Garden parking lot. Williams testified that he did not get a good look at the shooter because of the scarf obscuring his face from the middle of his nose down. However, he testified that he believed the skin color of the shooter was a little lighter than appellant's. When questioned further by appellant's counsel, he stated that he was positive the shooter was lighter than appellant.

When questioned by the prosecutor, however, Williams agreed that he was not saying that appellant was not the shooter, that he could have been. On re-direct Williams reiterated that he was positive the person who got in the car was a lighter skin color than appellant. Again, on re-cross Williams agreed that he was not saying the shooter was not appellant and he agreed that it could have been.

Appellant concedes that the evidence is sufficient to show he was at the scene prior to the shooting and that he later obtained the stolen car, but claims the evidence is legally insufficient to show that he was the shooter. He argues that the DNA and fingerprint evidence shows only that he might have been in the car when the shootings occurred but does not establish that he was the shooter. He hypothesizes that the shooter could have abandoned the car after leaving Pleasure Garden but before the pursuit by the Ennis Police, and appellant could have obtained it at that point.

In assessing the legal sufficiency of the evidence, the reviewing court considers all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson standard of review "gives full play to the jury's responsibility fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence." Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003).

Nellums witnessed the shooting and identified appellant in the courtroom as the shooter. He stated that he was "positive" appellant was the man he saw jump into Christopher's car and shoot McDonald. He described the shooter as wearing blue jeans and a white T-shirt. Mona testified that she saw appellant sitting in a car in the parking lot of the club during the party. Mona described the shooter as wearing blue jeans and a white T-shirt. Owen identified appellant as the person who exited and ran from Christopher's vehicle and as the same person who was apprehended at the Mobil station. Appellant was placed at the scene of the shooting, was identified as the shooter and the person who stole Christopher's vehicle, and was identified as the person who was driving Christopher's car when apprehended a short time later. These identifications, plus the blood and fingerprint evidence, viewed in a light most favorable to the verdict, were sufficient to support a rational jury's finding beyond a reasonable doubt that appellant was the shooter.

Appellant relies on Williams' testimony that the shooter fired the shots and then said, "Get out of the car" to argue that the evidence is insufficient to establish that he intended to kill anyone. He says he would not have intended to kill the victim if he then yelled at him to get out of the car.

Regardless of anything appellant said before or after he fired the shots, he fired a deadly weapon at close range at the victim who was lying or sitting in the backseat of the car that appellant was attempting to steal. The evidence is sufficient to support a rational jury's finding beyond a reasonable doubt that appellant intentionally caused the victim's death.

Appellant argues that because the victim was not the owner of the car, but was only a passenger in the vehicle, the evidence is legally insufficient to prove that appellant robbed him. The jury was instructed that appellant was guilty of capital murder if it found that appellant "did intentionally cause the death of Dexter McDonald by shooting him with a gun, while said defendant was then and there in the course of committing or attempting to commit the offense of robbery of Dexter McDonald." The definitional portion of the jury charge provided that:

A person commits a robbery if, in the course of committing theft, as defined hereinafter, and with intent to obtain or maintain control of the property, he

(a) intentionally, knowingly, or recklessly causes bodily injury to another, or

(b) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

. . . "Theft" as used herein is the unlawful appropriation of the corporeal personal property of another, with the intent to deprive such other person of said property.

"Appropriation" and "appropriate," as those terms are used herein, mean to acquire or otherwise exercise control over property other than real property. Appropriation of property is unlawful if it is without the owner's effective consent.

. . . "Owner" means a person who has title to the property, possession of the property, or a greater right to possession of the property than the person charged. "Possession" means actual care, custody, control, or management of the property.

Under the definitions given in the jury charge, the victim was the "owner" of the vehicle if he had title to it, possessed it, or had a greater right to possess it than appellant. The title owner of the vehicle, Christopher Lane, testified that he left the victim and Kevin Williams in possession of the vehicle while he stepped out of it for a minute.

He also testified that appellant did not have his permission to be in possession of the vehicle. The evidence is sufficient for a rational jury to find beyond a reasonable doubt that the victim was in possession of the vehicle and had a greater right to possess it than appellant. Point of error two is overruled.

In his third point of error, appellant claims that the evidence is factually insufficient to establish his identity as the offender and to establish his intent to kill the victim. In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. April 21, 2004).

Appellant argues that the State's case is based almost entirely on circumstantial evidence, that the person best-positioned to see the shooter testified that appellant had darker skin than the shooter, and that there is no evidence regarding the time or distance between the shooting and appellant's apprehension.

Despite some minor inconsistencies in the testimony, the evidence is not too weak to support the finding of guilt beyond a reasonable doubt. Apellant was identified by two people as being present in the parking lot outside the club during the party. Nellums testified he was "positive" appellant was the shooter.

He described appellant as wearing blue jeans, a white T-shirt, and having a bandana over his face. Officer Owen identified appellant as the man who fled the stolen vehicle following the police pursuit and who was later apprehended at the truck stop. Appellant was wearing blue jeans and a white T-shirt, and a bandana was found near him when he was apprehended.

Also weighing in favor of a finding that appellant was the shooter is the evidence of appellant's fingerprints on the vehicle and the victim's blood on appellant's jeans. Evidence weighing against a finding of appellant as the shooter includes Nellums' inability to identify appellant in a photo lineup the day after the shooting, and Williams' testimony for the defense that he was positive that the skin color of the shooter was lighter than appellant's. On the whole, the evidence is not so weighted against a finding of appellant as the offender that the guilty verdict should not stand.

Appellant argues that the testimony that the shooter shot twice and then said to get out of the car, and that the victim was pulled from the car at the stop sign, support a conclusion that the shooter "wanted the occupants to get out of the car, not that he intended to kill anyone."

Even if the shooter's main objective was to steal the car, such an objective does not foreclose or weigh against a finding that the shooter intentionally killed the victim when he shot at him at close range in the back of the car. The two objectives are not mutually exclusive. The evidence is factually sufficient to support a finding of intent to kill. Point of error three is overruled.

In his fourth point of error, appellant claims that the trial court erred in failing to instruct the jury on the lesser-included offenses of felony murder and murder. A two-step test applies when assessing whether a charge on a lesser-included offense should be given. Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002).

The first step is to determine whether the offense is actually a lesser-included offense of the offense charged. Id. Murder is a lesser-included offense of capital murder. Id. Felony murder is a lesser-included offense of capital murder. Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999). The first prong of the test is satisfied.

The second step of the test requires that the record contain some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Feldman, 71 S.W.3d at 750. There must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Id.

The element distinguishing capital murder from felony murder is the intent to kill. Fuentes, 991 S.W.2d at 272. Felony murder is an unintentional murder committed in the course of committing a felony while capital murder includes an intentional murder committed in the course of robbery. Id. To be entitled to an instruction on felony murder there must be some evidence that would permit a jury rationally to find the defendant had the intent to commit robbery but not to cause the death of the victim.

The evidence reflects that appellant ran up to the car, leaned in, and fired two shots, the second one into the backseat where the victim was seated. Appellant argues that some evidence suggests that the shooter did not even know that the victim was in the car, claiming Kevin Williams testified that the shots were fired from outside the car and that there was testimony that the victim was "slumped over" in the backseat. A closer look at the portion of Williams' testimony relied upon by appellant reflects that Williams did not testify the shots were fired from outside the car:

[Prosecutor]. Okay. You said he got into the front seat and you were still in the car.

[Williams]. He hadn't got into the car yet.

Q. You said a gun was in your face?

A. Uh-huh.

Q. And you were sitting in the car. Was he standing outside the car pointing a gun in your face?

A. He was standing outside the car, bent over into the car.

Although the shooter was standing outside of the car when he fired the shots, he was leaning into the car with his gun. Citing two pages of testimony, appellant also claims the evidence reflects that the victim was "slumped over" on the backseat. Review of that portion of the testimony reflects that the victim was intoxicated and was sitting in the backseat with his head leaning against or resting on the window frame.

The witness denied defense counsel's suggestion that the victim was lying down or stretched out on the seat. The trial court did not abuse its discretion in concluding that there was no evidence that would permit a jury rationally to find that appellant did not intend to kill the victim when he fired at him at close range inside the car.

In a capital murder case in which there is some evidence that would permit the jury to rationally find that the defendant committed murder under Texas Penal Code Section 19.02(a)(1), but that the additional element in Section 19.03 was not proved, the defendant is entitled to a charge on the lesser included offense of murder. Moore v. State, 969 S.W.2d 4, 12 (Tex. Crim. App. 1998).

In this case, the additional element is robbery. Appellant claims there "was no probative evidence that Dexter McDonald was the one that was robbed." As outlined above, "owner" was defined in the court's charge as a person who has title to the property, possession of the property, or a greater right to possession of the property than the person charged. "Possession" was defined as actual care, custody, control, or management of the property.

There was evidence that the victim, who had custody of the car, had a greater right to possession of the car than appellant. There was no evidence that appellant had any right to possession of the vehicle or that the victim did not have any right to be in possession of the vehicle. The trial court did not abuse its discretion in concluding that there was no evidence that appellant did not commit or attempt to commit a robbery. Point of error four is overruled.

In his fifth point of error, appellant claims that the trial court erred in overruling his objection to the prosecutor's argument at guilt or innocence that in thirty years as a prosecutor, he had only two cases with fingerprint evidence. In closing argument at guilt or innocence, appellant's counsel argued that it was suspicious that the only fingerprints found on the car were appellant's. The prosecutor responded by arguing:

These cops weren't lazy. They dusted that car and they found his fingerprints, this guy's fingerprints, yeah, and then, they say, oh, well, the cops must have fabricated it because they didn't find anything else.

Fingerprints are so hard to find this witness testified to you about how they're smudged, they're like this. I've been a prosecutor for 30 years I've had two cases with fingerprints, this is the third.

Appellant objected in part on the ground that the argument was outside the record. His objections were overruled. He again contends the argument was outside the record, and was not harmless given the importance of the fingerprint evidence to the State's case.

The prosecutor's reference to evidence in other cases that was not a part of the record in this case was improper, and the trial court should have sustained appellant's objection. Nonetheless, the argument was harmless. Appellant does not claim the error was constitutional in nature. To the contrary, he cites Mosely v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999), as setting out the appropriate harm analysis in these circumstances.

In Mosley, the Court considered three factors when assessing the impact of the harm arising from jury argument error under Rule of Appellate Procedure 44.2(b), for non-constitutional error: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Id. at 259.

The degree of misconduct here was mild. Albeit inartfully, the prosecutor was attempting to respond to appellant's argument that the fingerprint evidence was suspect. The comment was not reiterated or emphasized by the State and comprised a single sentence within the State's argument. As to the second factor, the trial court gave no curative instruction since it overruled appellant's objection.

Finally, the evidence was sufficiently strong absent the prosecutor's reference to the rarity of fingerprint evidence. Appellant was identified by witnesses as the person who entered and exited the vehicle. The fingerprint evidence was not critically necessary to tie appellant to the vehicle. Given the mild nature of the prosecutor's statement in light of the evidence as a whole, the error in the statement was harmless. Point of error five is overruled.

In his sixth point of error, appellant claims that the prosecutor erred by arguing at the guilt or innocence phase in such a way as to strike at appellant over the shoulders of his counsel. Appellant did not object to the prosecutor's argument and therefore failed to preserve error. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997); Tex. R. App. Proc. 33.1. Point of error six is overruled.

In points of error seven through ten, appellant complains that the trial court erroneously overruled several of his challenges for cause. He complains that each prospective juror had a bias against some phase of the law upon which he was entitled to rely. A prospective juror who has a bias or prejudice against any phase of the law upon which a party is entitled to rely is properly challengeable for cause. Feldman, 71 S.W.3d at 744; Article 35.16.

The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law. Before a prospective juror can be excused for cause on this basis, however, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Id. Great deference is given to the trial court's decision because the trial judge was present to observe the demeanor of the prospective juror and to listen to his tone of voice. Id. Particular deference is given when the potential juror's answers are vacillating, unclear or contradictory. Id.

In point of error seven, appellant claims the trial court erred by denying his challenge for cause to venireperson John Beacom. Appellant challenged Beacom for cause based upon Beacom's statement to the prosecutor during voir dire that "with a child killer or something I would vote the death penalty in a minute." Because neither party questioned Beacom further about his statement, explained to him what the law requires, or asked whether he could follow the law despite his personal views, he was not challengeable for cause on this basis and the trial court did not abuse its discretion in denying appellant's challenge. Id.

In his eighth point of error, appellant claims that the trial court erred in denying his challenge to venireperson Paula Murray. Appellant contends that Murray was challengeable for cause because she would automatically give the death penalty in a case that did not involve self-defense and would not consider mitigating evidence in assessing punishment. Appellant also claims Murray was challengeable because she did not understand the term "mitigating circumstances."

During voir dire by the State, Murray agreed that she would be able to listen to all of the evidence and decide how each special issue should be answered. When the mitigation issue was read to her, she stated that she understood it. During questioning by appellant's counsel, Murray agreed that her position on the death penalty was reflected in her statement on the jury questionnaire that "if someone kills someone for any reason other than self-defense they should have the same thing done to them." Then she gave two contradictory answers as to whether she would necessarily find no mitigating circumstances in such a case:

[Defense counsel]. [A]ssuming that you've answered yes to Number One and there is nothing in the record in the evidence that talks about self-defense and your decision with regards to the guilt or innocence is to decide whether the person does life imprisonment or death. Based on your answers to question Number 22 it appears that you've pretty much decided that it's the death penalty.

[Murray]. Not necessarily. Depending, I mean, depending on all of the evidence that's shown.

* * *

Q. But you've already decided that the evidence said he's guilty and there's, it's a pretty cold-blooded murder and there's no self-defense or anything like that and I'm saying based on your answer to question Number 22 it seems like that you're not willing to consider anything other than the death penalty with those being the facts, I'm saying is that true? If not, can you explain the inconsistencies in your two answers?

A. It would be true.

When questioned further by the prosecutor, Murray could not think of any mitigating circumstances that would change her answer on that issue. In response to further voir dire by the State, Murray agreed that just because she could not think of any circumstances did not mean that there might not be any number of factors that she would consider that might lead her to answer yes to the mitigation issue. She agreed that she would take mitigating circumstances into consideration and would not automatically answer in such a way as to result in the death penalty.

Upon further questioning by defense counsel, Murray again stated that she could not think of a single mitigating circumstance in a case not involving self-defense. When asked if she understood what "mitigation means" Murray stated she did "to an extent" but she could not explain it. Appellant challenged Murray for cause on the ground that she would not take mitigating circumstances into account and did not understand the concept of mitigating circumstances. The trial court denied appellant's challenge for cause.

Neither party explained to Murray about following the trial court's instructions and her oath, and neither asked about her ability to do so. Given the lack of explanation by the parties as to what the law requires, Murray's vacillating and unclear answers, and the fact that jurors are not required to give examples of factors they view as mitigating, the trial court did not abuse its discretion in denying appellant's challenge for cause.

In his ninth point of error, appellant claims that the trial court erred by denying his challenge for cause to venireperson Deborah Hawkins. Appellant claims Hawkins was challengeable for cause because she demonstrated a bias in favor of capital punishment and against a life sentence in capital cases. Appellant relies on a statement made by Hawkins in her juror questionnaire that "no one should be allowed to live for killing someone else." Appellant also points to a portion of Hawkins' voir dire when she became emotional in response to questions about her brother-in-law's murder, and she stated that she would not want someone with her mindset on the jury if she were on trial for murder.

Despite Hawkins' statement in her juror questionnaire, she repeatedly stated during her voir dire that she could be a fair and impartial juror and would listen to the evidence in answering the issues. She agreed that a life sentence may be appropriate in some circumstances. She stated that she could put any personal biases and experiences aside. When asked by the trial court whether she would follow the law and base her decision solely on the evidence in the case, she agreed that she would.

In light of Hawkins' apparently contradictory responses, we defer to the trial judge who was best-positioned to evaluate her demeanor and voir dire as a whole. Soria v. State, 933 S.W.2d 46, 66 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1253 (1997). The trial court did not abuse its discretion in overruling appellant's challenge for cause to Hawkins.

In point of error ten, appellant claims the that trial court erred in denying his challenge for cause to venireperson Roy Page. Appellant claims that Page was challengeable for cause on the grounds that he would be unable to afford appellant his presumption of innocence or right against self-incrimination, that he would give some weight to the grand jury's indictment, and that his experiences regarding parole would influence his verdict.

Page, a former police officer, did express reservations about all of the issues appellant claims rendered him challengeable for cause. However, despite candid statements about his beliefs on these issues, Page consistently agreed that he would follow the court's instructions and the law as given to him in the court's charge. The trial court did not abuse its discretion when it denied appellant's challenge to Page. Points of error seven through ten are overruled.

In point of error eleven, appellant claims that the trial court erred in overruling his objection to testimony regarding the dismissal of a charge on an extraneous offense. During the punishment phase of appellant's trial, Limestone County Sheriff's Deputy R.T. Beck testified that appellant was charged with a shooting in 1998, after he was identified as the shooter in a police lineup. Beck testified that the lineup identification was made without hesitation and was never recanted, but that the charges were later dropped.

Beck agreed that all of the victims and the perpetrators involved in the shooting incident had extensive criminal records. Beck also agreed that the reason listed for dismissing the case was conflicting evidence, but that cases are sometimes dismissed because of "who the victims are or what they've done in the past." Appellant raised a timely objection to the relevance of this last statement.

Appellant argues that whether or not cases are sometimes dismissed because of who the victims are and what they have done is not relevant to appellant's case and the punishment issues. He argues that the error was made worse by the prosecutor's suggestion in his jury argument that the Limestone County case was dismissed because the victim was "a nobody" with a criminal record.

The fact that prosecutors and courts sometimes dismiss cases due to the less than ideal credibility of the victim or identification witness may aid the jury in deciding whether the appellant had committed this unadjudicated offense for which the charge against him was dismissed. Thus, it was not error for the judge to overrule appellant's objection. Point of error eleven is overruled.

In point of error twelve, appellant claims that the prosecutor committed reversible error when he argued outside of the record in the punishment phase of trial that extraneous offense charges against appellant were dismissed because the victim was "a nobody" and had a criminal record. Appellant concedes that no objection was lodged against the allegedly improper argument, but argues that "when a jury argument is manifestly improper, an objection is not necessary to preserve the issue for appeal." Appellant points to Janecka v. State, 937 S.W.2d 456, 474 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997), in which the Court stated, "[w]ithout timely and specific objections, the question of allegedly improper closing arguments is not preserved for review unless manifestly improper." (Emphasis added by appellant). Appellant notes that Janecka was decided after Cockrell, 933 S.W.2d at 89.

In Cockrell, the Court held a defendant's failure to object to a jury argument or to pursue to an adverse ruling his objection to a jury argument forfeits the right to complain about the argument on appeal. Id. The Court further held that precedent allowing a defendant to complain for the first time on appeal about an unobjected-to, erroneous jury argument that was so prejudicial it could not have been cured by an instruction to disregard was expressly overruled. Id. Appellant suggests that since Janecka was decided after Cockrell, Janecka controls.

If the Court had intended in Janecka to reinstate the pre-Cockrell rule just five days after the mandate issued in Cockrell, it would have expressly stated so. This Court has followed Cockrell many times. See Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002)(declining defendant's invitation to overrule Cockrell, and reaffirming rule that even if argument is such that it could not be cured by an instruction, defendant is required to object and request mistrial). Moreover, the statement in Janecka was dictum given that the argument in that case was not "manifestly improper." Cockrell remains the law. Because appellant failed to object to the jury argument, he has forfeited his right to raise the issue on appeal. Point of error twelve is overruled.

In rebuttal, the State called A.P. Merillat, a criminal investigator for the Special Prosecution Unit, the entity responsible for prosecuting crimes committed within the prison system. Merillat testified that violence was prevalent within the prison system. Merillat described weapons handmade by inmates, and the photographs at issue were offered in connection with that testimony.

Generally, photographs are admissible if verbal testimony about the matters depicted in the photographs would be admissible and their probative value is not substantially outweighed by any of the Rule 403 counter-factors. Erazo v. State, No. 2206-02, 2004 Tex. Crim. App. LEXIS 1007 (Tex. Crim. App. June 16, 2004).

The evidence regarding weapons made by prison inmates was at least marginally relevant to the testimony concerning inmate violence within various classifications of prison society. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Id. The photos helped to illustrate Merillat's testimony. We see nothing about the photos that rendered their probative value substantially outweighed by their unfair prejudicial effect, and appellant does not articulate anything to suggest otherwise. The trial court was within the zone of reasonable disagreement in overruling appellant's Rule 403 objection. Moreno v. State, 22 S.W.3d 482, 487 (Tex. Crim. App. 2003). Point of error thirteen is overruled.

In his fourteenth point of error, appellant claims that the trial court erred by denying his motion to hold Article 37.071, �� 2(e) and 2(f) unconstitutional because they fail to require the jury to consider mitigation. Appellant does not explain in what way the statute fails to do this.

When mitigating evidence is presented, the constitution requires a vehicle by which the jury can consider and give effect to mitigating evidence relevant to a defendant's background, character, or the circumstances of the crime. Raby v. State, 970 S.W.2d 1, 8 (Tex. Crim. App.), cert. denied, 525 U.S. 1003 (1998). Jurors individually determine what evidence, if any, mitigates against the imposition of the death penalty and what weight, if any, to give that evidence in its consideration. Id. Moreover, Article 37.071 � 2(e) provides that the jury "shall" answer the mitigation issue which directs "consideration of all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant." Article 37.071 is constitutional because it requires the jury to consider all of the evidence and determine "[w]hether . . . there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than death be imposed." The trial court did not abuse its discretion by denying appellant's motion. Point of error fourteen is overruled.

In his fifteenth point of error, appellant claims that the trial court erred by denying his motion to hold Article 37.071 unconstitutional because it shifts the burden of proof to the accused to prove a mitigating circumstance. We have addressed and rejected identical claims. Blue v. State, 125 S.W.3d 491, 501 (Tex. Crim. App. 2003); Cantu v. State, 939 S.W.2d 627, 641 (Tex. Crim. App.), cert. denied, 522 U.S. 994 (1997). Point of error fifteen is overruled.

In his sixteenth point of error, appellant claims that the trial court erred by denying his motion to preclude the death penalty as a sentencing option because the Texas death-penalty scheme violates an accused's right to equal protection under the Fourteenth Amendment to the United States Constitution.

Appellant argues that because Article 37.071 fails to provide a mechanism by which the state determines the death worthiness of the Defendant, it does not provide "some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." Appellant points out that decision-making varies widely from county to county. Appellant relies on Bush v. Gore, 531 U.S. 98 (2000). We have addressed and rejected such claims. Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App. 2003). Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), appellant also argues that the future-dangerousness issue should be included in the indictment and passed upon by the grand jury. This issue has been addressed and rejected as well. Rayford, 125 S.W.3d at 533. Point of error sixteen is overruled.

Moreover, the two versions of death- penalty sentencing currently in effect (one applicable to offenses committed prior to September 1, 1991, and the amended version applicable to offenses committed on or after September 1, 1991), do not present an equal protection problem because "those committing the same offense on the same day are subject to the same statutory scheme, [so] they are similarly situated and are similarly treated." Id. Point of error seventeen is overruled.

In his eighteenth point of error, appellant claims that the trial court erred by overruling his objections to the court instructing the jury at punishment to decide issues not contained in the indictment. Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), appellant complains of the jury's passing on the future-dangerousness issue and the mitigation issue when such issues were not alleged in the indictment. "A defendant indicted for capital murder is effectively put on notice that the special issues under Article 37.071 will be raised, so such procedural provisions need not be alleged in the indictment." Moore, 969 S.W.2d at 13. Neither does Apprendi compel the State to allege the punishment issues contained in Article 37.071 in the indictment. Rayford, 125 S.W.3d at 533. Point of error eighteen is overruled.

In point of error nineteen, appellant claims that his death sentence violates the Eighth Amendment to the United States Constitution in that it is cruel and unusual. He contends that imposition of the death penalty in his case particularly, and in all capital cases, violates "evolving standards of decency that mark the progress of a maturing society." The death penalty does not violate the Eighth Amendment. Jurek v. Texas, 428 U.S. 262 (1976); Canales v. State, 98 S.W.3d 690, 700 (Tex. Crim. App.), cert. denied, 124 S.Ct. 806 (2003). Appellant does not assert anything about the facts of his particular case that would render the imposition of the death penalty unconstitutional as applied to him. Point of error nineteen is overruled.

In point of error twenty, appellant claims that his conviction should be reversed and remanded for a new trial because the system used to select the grand jury that indicted him is unconstitutional. Appellant complains for the first time on appeal of the use of the "Key Man System" and asserts, without authority or argument, that he "may challenge the grand jury for the first time on Appeal." Appellant has failed to cite any authority or set forth any argument in support of his contention that the unobjected-to issue is properly presented for review. Appellant has forfeited his claims. Tex. R. App. P. 33.1 & 38.1(g). Point of error twenty is overruled.

In point of error twenty-one, appellant claims that the trial court erred by overruling his objection to the charge at punishment for its failure to instruct the jury that a single hold-out juror on the mitigation issue would result in a life sentence. Appellant acknowledges precedent from this Court to the contrary, but claims that such authority is contrary to United States Supreme Court precedent mandating heightened responsibility in death-penalty cases.

We have consistently held that "[t]here is no constitutional prohibition to concealing from the jurors the consequences of their deliberations, so long as they are not misled into believing that ultimate responsibility for the verdict rests elsewhere." Prystash v. State, 3 S.W.3d 522, 532 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000). We are not persuaded that there is any inconsistency between such precedent and Supreme Court authority on this issue. Point of error twenty-one is overruled.

In his twenty-second point of error, appellant claims that the trial court erred by denying his motion to allow the defense to close arguments on mitigation. Article 36.07 provides that "[t]he order of argument may be regulated by the presiding judge; but the State's counsel shall have the right to make the concluding address to the jury." The trial court did not abuse its discretion by denying appellant's request to close the arguments. Point of error twenty-two is overruled.

The judgment of the trial court is affirmed.

*****

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

2. On appeal, appellant claims that his rights were violated under the Fourth Amendment to the United States Constitution, Article I � 9 of the Texas Constitution, and Article 38.23. At trial, appellant did not cite or refer to any particular law he claimed was violated, either orally or in his written motion. In ruling the search valid as incident to arrest, the trial court applied general Fourth Amendment law. Because appellant did not ask the trial court to make a ruling on the basis of any other law, appellant's claim on appeal is therefore limited to the context of the Fourth Amendment. Tex. R. App. P. 33.1. Appellant also argues the search was not justified as incident to arrest because the State produced no evidence that he was lawfully arrested, but he failed to make this argument at trial. Tex. R. App. P. 33.1.

3. The officer who sent the clothes to the DPS lab testified that he was told there was blood on them by another officer. Although the other officer testified that he could not recall apparent blood or stains on the clothing, the clothing was handled in a manner consistent with evidence requiring laboratory analysis.

4. It is worth noting that it was not made clear on direct- or cross-examination of Nellums, or through any other witness, whether or not appellant's photo was even included among those shown to Nellums in the photo lineup.

5. Appellant also claims that the photos were irrelevant, but because he failed to object on the basis of relevance at trial, that issue is not preserved for review. Tex. R. App. P. 33.1.

6. Furman v. Georgia, 408 U.S. 238 (1972).

Threadgill v. Thaler, 425 Fed.Appx. 298 (5th Cir. 2011). (Federal Habeas)

Background: After exhausting state remedies, 146 S.W.3d 654, defendant convicted of capital murder in state court filed a petition for a writ of habeas corpus. The United States District Court for the Northern District of Texas, Sidney A. Fitzwater, C.J., 2009 WL 2448499, denied relief, but granted certificate of appealability (COA) on ineffective assistance of counsel claim. Petitioner appealed and sought COA on additional issues.

Holdings: The Court of Appeals held that: (1) petitioner was not entitled to certificate of appealability on claim of ineffective assistance of counsel; (2) petitioner was not entitled to certificate of appealability on trial court's failure to give a jury instruction on lesser included offense of felony murder; and (3) state court's rejection of ineffective assistance of counsel claim was not objectively unreasonable. Affirmed; certificate of appealability denied.

PER CURIAM:

Ronnie Paul Threadgill was convicted of capital murder and sentenced to death in a Texas state court. The jury found that he shot and killed seventeen-year-old Dexter McDonald while carjacking the vehicle in which McDonald was a passenger. After exhausting state remedies, Threadgill filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District for the Northern District of Texas. The district court denied relief, but granted him a certificate of appealability (“COA”) on his claim “that he was denied effective assistance of counsel under the Sixth and Fourteenth Amendments when his trial counsel failed to adequately investigate and challenge the State's use of an extraneous offense” during the punishment phase of his trial. Threadgill appealed and seeks a COA as to two additional issues: (1) “[w]hether [he] was denied effective assistance of counsel under the Sixth and Fourteenth Amendments [when his] trial counsel failed to request a lesser-included offense instruction on felony murder” and (2) “[w]hether [he] was denied due process of law when the trial court failed to charge the jury on the lesser-included offense ... of felony murder.” FN1 We deny his request for a COA and affirm the district court's judgment denying him any relief. FN1. Br. in Supp. of Mot. for Certificate of Appealability 1.

I.

On April 14, 2001, three young men walked out of a nightclub in Navarro County, Texas, and got into a car. Kevin Williams sat in the front passenger seat, and Dexter McDonald sat in the right rear passenger seat. Christopher Lane, the car's owner, got into the driver's seat but then got back out to talk to someone. Shortly thereafter, Ronnie Threadgill, the petitioner, ran up and fired two shots from a handgun. The first shot did not hit anyone. The second shot hit McDonald. The bullet passed through McDonald's arm and went into his chest. Williams got out of the car. Threadgill got into the driver's seat and began to drive away, but he then stopped at a nearby stop sign, pulled McDonald out of the car, left him on the ground, and got back in the car and drove away. McDonald was taken to a hospital, where he died from the gunshot wound.

Threadgill was charged under Texas's capital murder statute, Texas Penal Code § 19.03(a)(2). At trial, Williams testified that the first shot was fired from outside the car, and that when the second shot was fired, the shooter “was standing outside the car, bent over into the car.” Danyel Nellums, who was nearby when the shooting happened, testified that McDonald was intoxicated and was sitting in the back seat with his head leaning against the window frame. Nellums specifically denied defense counsel's suggestion that McDonald was lying down or stretched out on the seat. Threadgill's defense counsel did not request a jury instruction on felony murder,FN2 and the district court did not give such an instruction. The jury convicted Threadgill of capital murder. FN2. Felony murder, under Texas Penal Code § 19.02(b)(3), occurs when a person “commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” Felony murder is distinct from capital murder in that it does not require the intent to kill and does not carry the death penalty.

During the punishment phase of the trial, the prosecution introduced a variety of evidence tending to show that Threadgill would pose a future danger to society. See Tex.Code Crim. Proc. art. 37.071, § 2(b)(1).FN3 Ten witnesses, nine of whom were law enforcement officers or public officials, testified that they knew of Threadgill's reputation in the community for being peaceful and law-abiding and that it was “bad” or “very bad.” The prosecution established that Threadgill had prior misdemeanor convictions for assault, resisting arrest, theft, criminal trespass, criminal mischief, and possession of marijuana, as well as prior felony convictions for possession of cocaine and burglary. Threadgill, who was 29 years old at the time of trial, had been incarcerated for most of the time since he had turned 18. During his incarceration, according to law enforcement officers who testified at sentencing, Threadgill had (1) gotten into a fight with another inmate; (2) been disciplined for threatening other inmates; and (3) been found wearing the wrong color jumpsuit, which could have made it easier for him to escape.

FN3. At the punishment phase, to determine whether Threadgill would receive a sentence of death or life imprisonment without parole, the jury first had to decide “whether there [was] a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex.Code Crim. Proc. art. 37.071, § 2(b)(1). The state bore the burden of proving this issue beyond a reasonable doubt. Id. § 2(c). Second, the jury had to decide “[w]hether, taking into consideration all of the evidence, ... there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.” Id. § 2(e)(1). These two questions are commonly known as the special issues of future dangerousness and mitigation.

Of particular relevance to the issue on which the district court granted a COA, the prosecution also introduced two witnesses' testimony indicating that Threadgill had committed a previous shooting in Limestone County, Texas. Threadgill had been charged with aggravated assault in connection with that shooting, and spent approximately a year in jail before the charges were dropped by the county attorney. The motion for dismissal, which was introduced into evidence, cited “conflicting evidence” as the reason for dropping the charges. The prosecution called Cassey Leon Forge, who testified that he had seen Threadgill shoot Erik Martin in the Limestone County incident; that he had identified Threadgill as the shooter in a photo lineup; that he had given a statement to the police that Threadgill was the shooter; and that he was positive about his identification of Threadgill. The prosecution also called Limestone County Sheriff's Department Chief Deputy R.T. Beck, Jr., who testified that he had investigated the shooting and that Forge was positive in his identification of Threadgill and never recanted it. Beck also testified that most of the victims and others involved in the Limestone County shooting incident had criminal records. On cross-examination, the defense established that “conflicting evidence” was the stated reason why the charge against Threadgill had been dismissed. Then, on redirect, the following exchange took place between the prosecutor and Beck:

Q. Do you have conflicting evidence in a lot of cases? A. Yes, sir. Q. Are all cases that have conflicting evidence, are they dismissed? A. No, sir, not that I'm aware of. Q. As much as we don't like to admit it, are sometimes cases dismissed because of the, who the victims are or what they've done in the past? MR. DUNN [defense counsel]: Objection, your Honor, relevance. THE COURT: I'll overrule the objection, although I'll, certainly the jury is free to draw its own conclusions with respect to whether the response to that question will be relevant. You may answer the question. A. Yes, sir, I think that's entirely possible.

The defense called three witnesses during the punishment phase. Threadgill's mother testified that he had grown up in very difficult circumstances involving poverty, instability, and violence. A clinical psychologist, Dr. Gilda Kessner, testified about the harmful psychological effects of Threadgill's troubled childhood. She also testified that he had generally behaved well in prison and that the few disciplinary incidents in which he had been involved were minor. And a Texas prison warden gave detailed testimony about the conditions under which Threadgill would be held if he were given a life sentence, suggesting that it was unlikely that he would ever be able to escape. The prosecution called Dr. Lisa Clayton, a psychiatrist, to rebut Dr. Kessner. Dr. Clayton testified that in her opinion, “Mr. Threadgill will be a future danger to society.” The state also called A.P. Merillat, an expert on prison violence, who testified that despite the security measures in place, there was still a significant level of violence within Texas prisons, thereby suggesting that Threadgill could be a future danger to society even if he never escaped from prison.

The prosecutor's closing argument put significant emphasis on the Limestone County shooting. He asserted that Threadgill had “shot another guy” and criticized “prosecutors who don't take these cases seriously and take them to juries.” He stated that the victim in the Limestone County case was “probably nobody” and “probably had a criminal record” and implied that this was why the charge against Threadgill had been dropped. He urged the jury not to act similarly. The prosecutor also emphasized Dr. Clayton's opinion that Threadgill would be a future danger to society; predicted that he would likely commit future violent acts in prison; and argued that Threadgill's hard life was no excuse for murdering Dexter McDonald. The jury was presented with the two statutory special issues of future dangerousness and mitigating circumstances. See Tex.Code Crim. Proc. art. 37.071. The jury determined that (1) there was a probability that Threadgill would commit criminal acts of violence in the future that would constitute a continuing threat to society, see id. § 2(b)(1); and (2) there were no mitigating circumstances sufficient to spare Threadgill from a sentence of death, see id. § 2(e)(1). The trial court accordingly sentenced Threadgill to death.

On direct appeal, Threadgill argued, inter alia, that the trial court should have given a jury instruction on the lesser included offense of felony murder. The Texas Court of Criminal Appeals (“TCCA”) rejected this argument, explaining its reasoning as follows: The element distinguishing capital murder from felony murder is the intent to kill. [ Fuentes v. State, 991 S.W.2d 267, 272 (Tex.Crim.App.1999).] Felony murder is an unintentional murder committed in the course of committing a felony while capital murder includes an intentional murder committed in the course of robbery. Id. To be entitled to an instruction on felony murder there must be some evidence that would permit a jury rationally to find the defendant had the intent to commit robbery but not to cause the death of the victim. The evidence reflects that appellant ran up to the car, leaned in, and fired two shots, the second one into the backseat where the victim was seated. Appellant argues that some evidence suggests that the shooter did not even know that the victim was in the car, claiming Kevin Williams testified that the shots were fired from outside the car and that there was testimony that the victim was “slumped over” in the backseat. A closer look at the portion of Williams' testimony relied upon by appellant reflects that Williams did not testify the shots were fired from outside the car:

[Prosecutor]. Okay. You said he got into the front seat and you were still in the car. [Williams]. He hadn't got into the car yet. Q. You said a gun was in your face? A. Uh-huh. Q. And you were sitting in the car. Was he standing outside the car pointing a gun in your face? A. He was standing outside the car, bent over into the car.

Although the shooter was standing outside of the car when he fired the shots, he was leaning into the car with his gun. Citing two pages of testimony, appellant also claims the evidence reflects that the victim was “slumped over” on the backseat. Review of that portion of the testimony reflects that the victim was intoxicated and was sitting in the backseat with his head leaning against or resting on the window frame. The witness [Nellums] denied defense counsel's suggestion that the victim was lying down or stretched out on the seat. The trial court did not abuse its discretion in concluding that there was no evidence that would permit a jury rationally to find that appellant did not intend to kill the victim when he fired at him at close range inside the car. Threadgill v. State, 146 S.W.3d 654, 665–66 (Tex.Crim.App.2004). Threadgill did not seek a writ of certiorari from the United States Supreme Court.

Concurrent with his direct appeal, Threadgill applied for a writ of habeas corpus in state court. He argued, inter alia, that he had received ineffective assistance of counsel because his attorneys had failed to request a jury instruction on felony murder and because they had failed to investigate and rebut the prosecution's evidence concerning the Limestone County shooting. He contended that if his attorneys had reasonably investigated the Limestone County matter, they could easily have found multiple eyewitnesses who would have testified that he was not the shooter. The state trial court's findings of fact and conclusions of law rejected Threadgill's claims. The court determined that a felony murder instruction was not warranted by the evidence; that Threadgill's trial counsel acted appropriately by not focusing their efforts on rebutting the prosecution's evidence concerning the Limestone County shooting; and that that evidence “was so insignificant in light of the entire body of evidence that its admission did not prejudice [Threadgill].” The TCCA adopted the trial court's findings and conclusions and denied relief.

Threadgill then filed a timely petition for a writ of habeas corpus in federal court. The district court denied relief. Threadgill has filed a motion for a COA as to two issues: (1) “[w]hether [he] was denied effective assistance of counsel under the Sixth and Fourteenth Amendments [when his] trial counsel failed to request a lesser-included offense instruction on felony murder” and (2) “[w]hether [he] was denied due process of law when the trial court failed to charge the jury on the lesser-included offense ... of felony murder.” Threadgill has also appealed concerning the one issue on which the district court granted a COA: his claim “that he was denied effective assistance of counsel under the Sixth and Fourteenth Amendments when his trial counsel failed to adequately investigate and challenge the State's use of an extraneous offense” during the punishment phase of his trial.

II.

“A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make such a showing, “a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition could have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). A federal court “may not issue a writ of habeas corpus for a defendant convicted under a state judgment unless the adjudication of the claim by the state court ‘(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.’ ” Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.2002) (quoting 28 U.S.C. § 2254(d)). “In a habeas corpus appeal, we review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court.” Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir.2001) (quoting Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998)).

A petitioner bringing a claim of ineffective assistance of counsel “must demonstrate both that: (1) his counsel's performance was deficient; and (2) counsel's deficient performance prejudiced his defense.” Harrison v. Quarterman, 496 F.3d 419, 424 (5th Cir.2007) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Counsel's performance is deficient if it ‘fell below an objective standard of reasonableness.’ ” Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “Judicial scrutiny of counsel's performance must be ‘highly deferential.’ ” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “Deficient performance results in prejudice when ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

III.

Threadgill seeks a COA as to his claim that he received ineffective assistance of counsel because at trial, his lawyers failed to request a jury instruction on felony murder as defined by Texas Penal Code § 19.02(b)(3). Felony murder is not a capital crime, and (as the state acknowledges) is a lesser included offense of the type of capital murder with which Threadgill was charged under Texas Penal Code § 19.03(a)(2). Capital murder under § 19.03(a)(2) occurs when “the person intentionally commits the murder in the course of committing or attempting to commit” one of several enumerated crimes, including robbery. Felony murder under § 19.02(b)(3) takes place when a person “commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” The difference between felony murder and capital murder, as relevant here, is that a capital murder must have been “intentionally” committed, per § 19.03(a)(2), whereas felony murder under § 19.02(b)(3) does not require the killing to have been intentional. Thus, “[t]he element distinguishing capital murder from felony murder is intent to kill.” Threadgill, 146 S.W.3d at 665 (citing Fuentes, 991 S.W.2d at 272).

Threadgill cannot have received ineffective assistance of counsel on this issue unless the evidence at trial would have actually warranted a felony murder instruction. “A defendant is entitled to [a lesser included offense] instruction if the jury could rationally acquit the defendant on the capital crime and convict on the non-capital crime.” Aguilar v. Dretke, 428 F.3d 526, 531 (5th Cir.2006). Under Texas law, for a lesser included offense instruction to be given, “there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense.” Richards v. Quarterman, 566 F.3d 553, 568 (5th Cir.2009). “Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.” Ferrel v. State, 55 S.W.3d 586, 589 (Tex.Crim.App.2001). Threadgill has identified four facts (or purported facts) which, he argues, provided an evidentiary basis so that the jury could have rationally concluded that he was guilty only of felony murder and not capital murder. However, these asserted facts either are not supported by the record or else fail to support a finding that Threadgill was guilty only of felony murder, i.e., that he lacked the intent to kill McDonald.

First, Threadgill highlights that Williams, the other passenger in the car, was not shot. Williams was sitting in the front passenger seat of the car, but he jumped out when Threadgill started shooting. It is unclear whether Threadgill may have intended to shoot Williams, considering that he fired two shots, only one of which hit McDonald. But even if Threadgill did not intend to shoot Williams, that would not mean he lacked the intent to kill McDonald.

Second, Threadgill asserts that “the victim was shot only one time, in the arm, when he could have been shot multiple times.” This is a misleading characterization of the facts because although the bullet first went through McDonald's arm, it then entered his chest, causing his death. Therefore, the location where McDonald was hit by the bullet does not suggest that Threadgill was not trying to kill him. Moreover, under Texas law, “where a deadly weapon is fired at close range and death results the law presumes an intent to kill.” Womble v. State, 618 S.W.2d 59, 64 (Tex.Crim.App.1981). “It is both a common-sense inference and an appellate presumption that a person intends the natural consequences of his acts, and that the act of pointing a loaded gun at someone and shooting toward that person at close range demonstrates an intent to kill.” Ex parte Thompson, 179 S.W.3d 549, 556 n. 18 (Tex.Crim.App.2005). FN4 Threadgill fired a handgun at McDonald at close range, from within the car, and hit him once; the bullet went through his arm and into his chest, causing his death. This sequence of events provides no basis for concluding that Threadgill did not intend the natural consequence of his action, which was McDonald's death.

FN4. See also Godsey v. State, 719 S.W.2d 578, 581 (Tex.Crim.App.1986) (“If a deadly weapon is used in deadly manner, the inference is almost conclusive that he intended to kill.... Naturally, the most obvious cases and the easiest ones in which to prove a specific intent to kill, are those cases in which a firearm was used and was fired or attempted to have been fired at a person.”).

Third, Threadgill claims that “there was some evidence from which a rational jury could have concluded that [he] was unaware of Mr. McDonald's presence in the back of the car.” The TCCA addressed this argument on direct appeal and determined that there was no such evidence: “[T]he testimony reflects that the victim was intoxicated and was sitting in the backseat with his head leaning against or resting on the window frame. The witness denied defense counsel's suggestion that the victim was lying down or stretched out on the seat.” Threadgill, 146 S.W.3d at 665–66. Threadgill's briefs fail to identify, and we have not found, any evidence in the record that would indicate that the TCCA's characterization of the facts was incorrect.

Fourth, Threadgill argues that “McDonald[ ] was put out of the stolen car, alive, in sight of those who could come to his aid.” But this does not change the fact that Threadgill shot at McDonald at close range. Moreover, the fact that Threadgill apparently preferred not to have McDonald with him as he drove off in the stolen car has no bearing on whether he intended to kill McDonald when he shot him.

Therefore, none of Threadgill's factual assertions and arguments establish that there was even a scintilla of evidence from which a jury could have rationally concluded that Threadgill did not intend the natural consequence of his action—McDonald's death—when he shot McDonald in the chest at close range. Therefore, there is no reason why the trial court should, or would, have given an instruction on felony murder if Threadgill's counsel had requested one. Consequently, the failure to request a felony murder instruction does not fulfill either of the two requirements for a claim of ineffective assistance of counsel: it did not amount to deficient performance, and Threadgill was not prejudiced by it. It necessarily follows that the TCCA's denial of this claim of ineffective assistance of counsel was not “contrary to, or an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Nor was it “based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.” Id. § 2254(d)(2). We believe that this conclusion is not debatable among reasonable jurists. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. Therefore, we deny Threadgill's request for a COA on this issue.

IV.

Threadgill argues that due process required the trial court, sua sponte, to give a jury instruction on the lesser included offense of felony murder, even though his counsel did not request it. This argument relies on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), in which the Supreme Court reasoned as follows: when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.

Such a risk cannot be tolerated in a case in which the defendant's life is at stake. Id. at 637, 100 S.Ct. 2382. Two years later, the Court clarified in Hopper v. Evans that “due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.” 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

Under Beck and Hopper, the trial court's failure to give a lesser included offense instruction cannot have been a denial of due process if such an instruction was not warranted by the evidence. For the reasons stated above, none of the four facts (or purported facts) cited by Threadgill provides even a scintilla of support for a finding that he did not intend to kill McDonald. Because the evidence did not warrant an instruction on felony murder, the lack of such an instruction was not a denial of due process. Therefore, the TCCA's rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). We do not consider this conclusion to be debatable among reasonable jurists, see Slack, 529 U.S. at 484, 120 S.Ct. 1595; accordingly, we deny Threadgill a COA on this issue.

V.

Threadgill received a COA from the district court on the issue of whether he was given ineffective assistance of counsel when his trial attorneys failed to investigate and rebut the prosecution's evidence indicating that he had committed the Limestone County shooting. Threadgill argues that his attorneys failed to consult obvious sources of information—including court files on the Limestone County shooting case, the attorney who had defended him in that case, and the prosecutor who dropped the charges against him—which, if consulted, would have led them to strong evidence that he was innocent of the shooting, including three eyewitnesses who could have testified that he was not the shooter. He argues that this deficiency in his attorneys' performance was similar to what occurred in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), in which the Supreme Court held that defense attorneys were ineffective when they failed to uncover mitigating evidence that they could have easily found by looking at a readily available court file concerning the defendant's prior conviction. The state counters that unlike the attorneys in Rompilla, Threadgill's attorneys did hire a private investigator to investigate the Limestone County shooting, and therefore their performance was not deficient despite the investigator's apparent failure to look at the court file or talk to the prosecutor or the defense attorney.

The district court refrained from deciding whether Threadgill's attorneys' performance was bad enough to amount to deficient performance as defined under Strickland. Instead, the district court determined that Threadgill was not prejudiced by this failure on the part of his attorneys because there was a “mountain of adverse proof” against him on the future dangerousness issue. We follow a similar approach. The prejudice element of an ineffective assistance of counsel claim requires a claimant to “show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A petitioner can establish prejudice “even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Id. Yet, under 28 U.S.C. § 2254(d), we may not grant habeas relief unless we conclude that the TCCA's determination that Threadgill was not prejudiced was not “merely incorrect or unreasonable,” but was “objectively unreasonable” in light of “clearly established law as determined by the Supreme Court.” Rogers v. Quarterman, 555 F.3d 483, 488–89 (5th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 365, 175 L.Ed.2d 62 (2009).

The prosecution used the evidence of the Limestone County shooting to persuade the jury that Threadgill posed a continuing threat to society. See Tex.Code Crim. Proc. art. 37.071, § 2(b)(1) (the court shall submit to the jury the issue of “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”). The prosecution was required to establish future dangerousness beyond a reasonable doubt. Id. § 2(c).

The Limestone County shooting was by far the most serious prior act that was introduced against Threadgill to demonstrate his future dangerousness. Despite the fact that the charge was officially dropped due to “conflicting evidence,” the prosecutor's closing argument and examination of Deputy Beck undeniably encouraged the jury to believe that Threadgill's implication in the Limestone County shooting demonstrated his propensity for violence and anti-social conduct. If defense counsel had investigated more thoroughly, they might have presented multiple eyewitnesses whose testimony would have questioned Threadgill's culpability in that shooting. Thus, Threadgill's counsel missed the opportunity to raise serious doubts about what was arguably the most compelling element of the prosecution's future dangerousness argument.

However, in assessing whether Threadgill was prejudiced by his counsel's failure to adequately investigate and rebut the prosecution's evidence that he had committed the Limestone County shooting, we must take into account all of the evidence that was presented to the jury regarding Threadgill's future dangerousness. Although the Limestone County shooting was a significant element of the prosecution's case during the punishment phase, the jury was aware that the charge against Threadgill had been dropped due to “conflicting evidence.” Moreover, the prosecution also offered a substantial amount of other evidence of future dangerousness. The jury learned that Threadgill had previously been convicted of several offenses including assault, resisting arrest, burglary, and criminal mischief. The jury heard from a parade of public officials and law enforcement officers, each of whom testified that Threadgill had a “bad” or “very bad” reputation for being peaceful and law-abiding. The jury also heard Dr. Clayton's opinion that Threadgill would be a future danger to society. And, of course, the jury was familiar with the serious crime that is the basis of this case, in which Threadgill killed a seventeen-year-old boy in order to steal a car.

Threadgill's attorneys offered little evidence tending to show that he would not be a continuing threat to society. Threadgill's mother's testimony about his difficult childhood went to the issue of mitigating circumstances, not future dangerousness.FN5 Dr. Kessner expressly did not address future dangerousness; she stated on cross-examination, “I wasn't asked to assess his future dangerousness. I was asked to look at the mitigation issues.” FN6 And, while the prison warden's detailed testimony about security measures tended to show that it was unlikely that Threadgill would escape if sentenced to life in prison, the warden also acknowledged that Threadgill might still commit violent acts while incarcerated. See Estrada v. State, 313 S.W.3d 274, 284 (Tex.Crim.App.2010) (“[T]he future-dangerousness special issue asks a jury to determine whether there is a probability that the defendant would constitute a continuing threat to society ‘whether in or out of prison.’ ” (quoting Muniz v. State, 851 S.W.2d 238, 250 (Tex.Crim.App.1993), cert. denied, ––– U.S. ––––, 131 S.Ct. 905, 178 L.Ed.2d 760 (2011).

FN5. The question of whether “there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed” is a separate and distinct issue that the jury must answer if it decides that the defendant would pose a future danger to society. Tex.Code Crim. Proc. art. 37.071, § 2(e)(1). FN6. Threadgill's lead trial counsel later explained, in an affidavit, that he chose not to ask Dr. Kessner to assess future dangerousness because he thought she would opine that Threadgill was likely to commit acts of criminal violence in the future.

In light of all the evidence presented at the punishment phase, it is possible that Threadgill's attorneys' failure to rebut the prosecution's evidence regarding the Limestone County shooting may have affected the jury's decision. However, considering the strength of the other evidence against Threadgill on the future dangerousness issue, we are not persuaded that the TCCA made an objectively unreasonable decision when it determined that there was not a reasonable probability of a different result if Threadgill's trial attorneys had performed more effectively. “For purposes of [28 U.S.C.] § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ” Harrington v. Richter, –––U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “Even if [we] might have reached a different conclusion as an initial matter, it was not an unreasonable application of [Supreme Court] precedent for the [TCCA] to conclude that [Threadgill] did not establish prejudice.” Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1411, 179 L.Ed.2d 557 (2011). Therefore, we affirm the district court's denial of relief.

VI.