March 18, 1994 -- Taylor was indicted by a Tarrant County grand jury for the capital murder of Otis Flake.
June 23,1994 -- Taylor was convicted by a jury in the 297th District Court of Tarrant County.
June 24, 1994 -- After a punishment hearing before the jury, Taylor was sentenced to death.
April 24,1996 -- The Texas Court of Criminal Appeals affirms Taylor’s conviction on his direct appeal.
June 5, 1996 -- Taylor filed a petition for writ of certiorari in the U.S. Supreme Court.
October 21, 1996 -- The Supreme Court denied Taylor’s cert petition.
July 13, 1998 -- Taylor filed a state application for writ of habeas corpus.
March 28, 2001 -- The Texas Court of Criminal Appeals denied Taylor’s writ application.
May 31, 2001 -- Taylor filed an original petition for writ of habeas corpus in a U.S. district court.
July 17, 2001 --The district court denied Taylor’s federal petition.
October 1, 2001 -- Taylor filed an application for a certificate of appealability in the Fifth U.S. Circuit Court of Appeals.
February 20, 2002 -- The Court of Appeals denied Taylor’s application for a certificate of appealability.
May 17, 2002 -- Taylor’s petition for certiorari was filed in the United States Supreme Court.
August 8, 2002 -- The trial court set Taylor’s execution date for January 23, 2003.
October 7, 2002 -- The U.S. Supreme Court denied Taylor’s petition for certiorari.
January 16, 2003 -- Taylor filed a second state application for writ of habeas corpus and motion for stay of execution.
January 21, 2003 -- The Texas Court of Criminal Appeals stayed Taylor’s execution and remands his case to the trial court.
September 29, 2004 -- The trial court recommended that relief be denied.
March 23, 2005 -- The Texas Court of Criminal Appeals remanded to the trial court for an evidentiary hearing.
June 23, 2005 -- An evidentiary hearing was held by the trial court.
February 1, 2006 -- The Texas Court of Criminal Appeals denied Taylor’s successive application for writ of habeas corpus.
April 10, 2006 -- Taylor filed a motion for authorization to file a successive petition in the U.S. Court of Appeals.
June 27, 2006 -- The Court of Appeals granted the motion for authorization.
June 30, 2006 -- Taylor filed a successive petition in a U.S. district court.
September 20, 2006 -- The District Court denied relief.
January 20, 2007 -- Taylor filed a motion for certificate of appealability in the U.S. Court of Appeals.
July 10, 2006 -- Oral arguments were held.
August 21, 2007 -- The Court of Appeals denied Taylor’s motion for certificate of appealability.
December 27, 2007 -- Taylor filed a petition for writ of certiorari in the U.S. Supreme Court
March 31, 2008 -- The Supreme Court denied Taylor’s cert petition.
June 12, 2008 -- The trial court set Taylor’s execution date.
November 6, 2008 --Taylor is to be executed.

Taylor v. State, 920 S.W.2d 319 (Tex.Crim.App. 1996.) (Direct Appeal).

Defendant was convicted in the 297th District Court, Tarrant County, Everrett Young, J., of capital murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Keller, J., held that: (1) evidence of prior murder, occurring on current murder victim's street, a few blocks from his house, similarly caused by ligature strangulation with untwisted coat hanger, was relevant as extraneous offense evidence in capital murder prosecution; (2) probative value of extraneous offense evidence of prior murder was not substantially outweighed by danger of unfair prejudice so as to render evidence inadmissible; and (3) limiting instruction on admission of extraneous offense evidence of prior murder was not rendered impermissibly broad by fact that it named four purposes, of intent, identity, motive, and rebuttal of defensive theory, for admission of the evidence. Affirmed.

Clinton and Overstreet, JJ., concurred in result. Baird, J., joined only in judgment with short statement.

KELLER, Judge.
In June 1994, appellant was convicted of capital murder under Texas Penal Code 19.03(a)(2). The offense, murder in the course of robbery, was committed in April of 1993. The trial court submitted to the jury the special issues set out in Article 37.071, subsections 2(b)(1), 2(b)(2), and 2(e) of the Texas Code of Criminal Procedure. In accordance with the jury's answers to those issues, the trial court assessed appellant's punishment at death. Article 37.071(h) provides direct appeal to this Court. Appellant raises twenty-four points of error. We will affirm.

1. SUMMARY OF THE FACTS

On April 2, 1993, Mary Carson saw appellant and Darryl Birdow leaving the home of her friend, Otis Flake. Carson went inside and discovered Flake dead. His hands were tied behind his back with a length of white plastic tubing, his feet were tied with a coat hanger, a white piece of cloth had been tied around his neck, and he had been strangled with two coat hangers twisted around his neck from behind.

2. EXTRANEOUS OFFENSE ISSUES

In points of error one, two and four appellant claims the trial court erred in admitting during the guilt/innocence phase, over objection, evidence of an extraneous offense. Appellant contends the evidence of a separate murder which took place on March 22, 1993, was not relevant to a material issue in this case. Alternatively, appellant argues that even if relevant, the prejudicial effect of the evidence outweighs its probative value.

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” TEX.R.CRIM.EVID. 404(b); Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App.1990) (op. on reh'g). However, extraneous offense evidence may be admissible when relevant to prove an elemental fact or an evidentiary fact of consequence to the determination of the action. Vernon v. State, 841 S.W.2d 407, 411 (Tex.Crim.App.1992); Montgomery, 810 S.W.2d at 387-388. For instance, Rule 404(b) provides that such evidence may be admitted for the purpose of proving motive, identity, intent, opportunity, preparation, plan or absence of mistake.

a. Evidence of Previous Murder

I. R. 404(b): Admissibility for other purposes

In point of error one, Appellant claims that the trial court erred in admitting evidence of a murder which took place ten days prior to Flake's murder. On March 22, 1993, an elderly man named Ramon Carillo was robbed and murdered in his home. This offense occurred on Flake's street, a few blocks from his house. Carillo's death was caused by ligature strangulation with an untwisted coat hanger.

Police apprehended appellant subsequent to Flake's murder. Appellant gave a statement admitting his involvement in that offense. In it he maintained that he and Darryl Birdow went to Flake's house, where both took part in tying and robbing their victim. Appellant, however, did not accept responsibility for the strangulation of the victim. He claimed in his statement that prior to leaving the victim's home, Birdow instructed appellant to wait by the door while he went to turn off lights in the house.FN2 According to appellant, the victim was in his bedroom at this point, tied and gagged, but still alive. Appellant said Birdow went back into the victim's bedroom for five or ten minutes. He claimed that when Birdow emerged from the room he told appellant, “eyes don't see, ears don't hear”. Appellant claims in his statement that he did not know of Birdow's intention to murder the deceased until it was too late.

FN2. In his original statement, appellant wrote, “I tied his mouth up and then tied his hands and feet up.” After signing that statement appellant was allowed to make corrections. He scratched out the word “I” in the above sentence and substituted another word beginning with “DA” and ending with “LL”. The middle of the word was cut out by the police detective's hole-punch.

Appellant also gave a statement to the police admitting his involvement in the murder of Carillo. As he had in his statement regarding the Flake murder, appellant placed responsibility for the strangulation of the victim on Darryl Birdow. Appellant objected to the admission of the statement regarding the Carillo murder, and to testimony concerning his involvement in that offense. At trial, the judge gave an instruction limiting the jury's consideration of the extraneous offense evidence to determining motive, intent, or identity, or to rebut the defensive theory that appellant's accomplice had murdered Flake.

Two witnesses who were with appellant on the nights of both murders testified that appellant admitted to killing both victims. Lucille and May Hardaway, admitted prostitutes and crack users, testified that appellant bragged to them about the murders, explaining in detail how and why he strangled each man with a coat hanger. They testified that on March 22, appellant came to their apartment and told them he had robbed and killed a Mexican man. Appellant said he decided to kill the man because he had looked at appellant's face. He told them that he choked the man and then strangled him with a coat hanger. Several days later, appellant returned to their apartment with news of yet another murder, this time of Otis Flake. Again he maintained that he had personally strangled the victim with a coat hanger while his accomplice, Darryl, “watched out.”

(1) Intent

The murders of Carillo and Flake were virtually identical. Appellant's involvement in an identical offense just ten days before the murder in the present case is relevant to show his intent to cause Flake's death, or at least that he knew that Flake would be killed. The evidence of the Carillo murder was thus relevant to show intent.

(2) Identity

The Hardaways' testimony concerning appellant's detailed description of the method by which he murdered Carillo is admissible to prove appellant's identity as the actual killer. See Owens v. State, 827 S.W.2d 911, 916 (Tex.Crim.App.1992); Boutwell v. State, 719 S.W.2d 164, 180 (Tex.Crim.App.1985) (op. on reh'g.). When an extraneous offense is offered to prove identity, the common characteristics or the device used in each offense must be so unusual and distinctive as to be like a “signature.” Owens, 827 S.W.2d at 915; Collazo v. State, 623 S.W.2d 647, 648 (Tex.Crim.App.1981).

Both elderly victims were found with some cloth and a wire coat hanger wrapped around their necks. In the case at bar, the victim's feet were also bound with a wire coat hanger. This particular method of murder was sufficiently distinctive to be a “signature crime” and thus this testimony was admissible for the purpose of proving that appellant, rather than his accomplice, was responsible for strangling Otis Flake.

(3) Motive

The evidence was also relevant to show motive. Appellant told the Hardaways that he killed Carillo because he looked at appellant's face. The testimony regarding Carillo's murder thus reveals a motive for Flake's murder.

(4) Rebuttal of defensive theory

The evidence was also relevant as tending to rebut a defensive theory. Appellant's statement to the police regarding Flake's murder indicated that he neither killed Flake nor knew Birdow would kill him. Testimony regarding the Carillo murder and appellant's statement to the Hardaways rebuts the theory of limited knowledge and involvement. Point of error one is overruled.

II. R. 403: Probative vs. prejudicial value

Once it is found that an extraneous offense is relevant, a trial court must determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Montgomery, 810 S.W.2d at 389. In making this determination the trial court should consider: 1) whether the ultimate issue was seriously contested by the opponent of the evidence; 2) whether the State had other convincing evidence to establish the ultimate issue to which the disputed evidence was relevant; 3) the compelling nature, or lack thereof, of the evidence; and 4) the likelihood that the evidence was of such a nature as to impair the efficacy of a limiting instruction. Id. at 392-393.

First, appellant's identity as the actual killer and his intent were hotly contested issues at trial.

Second, without evidence of appellant's involvement in the Carillo murder, it would have been more difficult for a jury to determine whether appellant anticipated or intended the murder of Otis Flake.

Third, the Hardaways' testimony that appellant admitted to strangling Flake was the only evidence rebutting appellant's claim that, without his knowledge, Birdow had done the killing. The Hardaways were crack-smoking prostitutes, thus vulnerable to at least some degree to attacks on their credibility. These circumstances render testimony regarding the previous murder more crucial to the State's case.

Fourth, the first murder, being no more heinous than the second, was not likely to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of the evidence to its proper purpose.

And finally, the extreme degree of similarity between the two murders renders evidence of the first murder highly probative.

Given the questionable character of the two key witnesses, and the fact that appellant maintained that he had no intention of killing Flake, we find that the trial court's admission of this evidence was not outside the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391. Point of error two is overruled.

b. Limiting Instruction

In point of error four appellant complains that the trial court's limiting instruction on the admission of extraneous offense evidence was impermissibly broad because it named four purposes for the admission of the evidence (intent, identity, motive, and rebuttal of defensive theory), instead of one. Appellant argues, correctly, that when a limiting instruction is given, the trial judge, upon request, should instruct the jury that the evidence is limited to whatever specific purpose the proponent advocated. See McFarland v. State, 845 S.W.2d 824, 837 (Tex.Crim.App.1992) cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993).

Appellant cites no authority for the proposition that extraneous offense evidence may only be admitted for a single purpose. Extraneous offense evidence may be relevant to more than one issue. See, e.g., Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.) (plurality opinion), cert. denied 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995). Further, the cases upon which appellant relies hold only that it is error to fail to give any limiting instruction, and that it is error to instruct the jury to consider the extraneous offenses only for the purpose of impeaching the credibility of the accused. As discussed above, evidence of the extraneous offense in the present case was relevant to motive, intent, identity, and rebuttal of defensive theory. It was proper for the trial court to include more than one purpose in its instruction. Point of error four is overruled.

The judgment of the trial court is affirmed. CLINTON and OVERSTREET, JJ., concur in the result. BAIRD, J., joins only the judgment of the Court for the reasons stated in Matamoros v. State, 901 S.W.2d 470, 479 (Tex.Cr.App.1995) (Baird, J., concurring).

Taylor v. Quarterman, 498 F.3d 306 (5th Cir. 2007) (Habeas).

Background: Following affirmance of state capital murder conviction, 920 S.W.2d 319, petition for writ of habeas corpus was filed. The United States District Court for the Northern District of Texas, John H. McBryde, J., 2006 WL 2707426, denied the petition. Petitioner requested a certificate of appealability (COA).

Holdings: The Court of Appeals, Patrick E. Higginbotham, Circuit Judge, held that:
(1) petitioner was not required to prove that the state court decision was objectively unreasonable by clear and convincing evidence, and
(2) evidence supported determination that petitioner was not mentally retarded. Denied.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Elkie Lee Taylor appeals the district court's denial of Certificate of Appealability (COA), principally raising an Atkins claim. We deny COA.

I

The petitioner first argues that the federal district court improperly merged two statutory standards of review-the “clear and convincing” burden requirement of section 2254(e)(1) and the “objectively unreasonable” standard of section 2254(d)(2)-creating a super-standard of review, contrary to the Supreme Court's admonition in Miller El.FN1 In short, petitioner argues that he was required to prove that the state court decision was objectively unreasonable by clear and convincing evidence. FN1. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

The district court applied the two standards in the alternative. It did not merge them, stating that [t]he court views the issue of Taylor's mental capacity as one of fact. See, e.g., Clark, 457 F.3d at 444 (question of whether criminal defendant suffers from significantly subaverage intellectual functioning is one of fact). Even if viewed as a mixed issue of fact and law, for the reasons stated by the court, infra, the trial court's decision on this issue was not contrary to or otherwise involved an unreasonable application.

II

Taylor challenges the correctness of the state court's findings regarding mental retardation. We are not persuaded. Reasonable jurists would not disagree as to whether the petitioner failed to present clear and convincing evidence that the state court's adaptive behavior analysis was wrong.FN2 A person is mentally retarded if he has (1) significant sub-average intellectual functioning; (2) accompanied by related limitations in adaptive functioning; and (3) onset prior to the age of eighteen.FN3

FN2. Taylor maintains that this court should determine de novo whether he is mentally retarded, applying a preponderance of the evidence standard. This is incorrect. Under section 2254(e)(1) we require clear and convincing evidence that the state court's determination was incorrect.

FN3. See Atkins v. Virginia, 536 U.S. 304, 318, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); In re Salazar, 443 F.3d 430, 432 (5th Cir.2006).

On the first element, Taylor took five IQ tests scoring somewhere between the mid-sixties and mid-seventies. At age ten, he scored a 75 on the Wechsler Intelligence Scale for Children (WISC). Taylor's expert argued that this score should be norm corrected to a score of 68, to account for time lapse from 1948 to 1972. However, the doctor who administered the WISC test to Taylor stated that he was capable of performing better than a 75, had he tried. And, Taylor was not diagnosed as mentally retarded as a result of the WISC test.

Twenty-two years later Taylor scored a 63 on a Texas Department of Criminal Justice (TDCJ) beta test and then a 69 on the Wechsler Adult Intelligence Scale-Revised Test (WAIS-R). However, even after scoring a 69 Taylor was not diagnosed as mentally retarded. The test administrator stated that[t]aking into account the client's age and cultural group, his adaptive behavior is below average, but not the degree expected of a mentally retarded person. It appears that Mr. Taylor is more capable in terms of adaptive skills than he has actually demonstrated.

Finally, in preparation for his state habeas hearing, he scored a 65 on the Wechsler Adult Intelligence Scale (WAIS-III) and a 71 on the Kaufman test. But the state habeas court was permitted to discount these scores due to the incentive to malinger.

Regarding adaptive behavior, Taylor purportedly had difficulty maintaining a steady job, got confused using public transportation, had trouble cooking rice well as a child, made poor use of his leisure time by sitting in his apartment and just listening to the radio and talking on the phone. However, Texas points to the circumstances of his two crimes to prove that he was not deficient. For example, having perceived an opportunity for robbing Otis Flake, he planned and executed Flake's murder. Further, having learned from his experience of murdering Ramon Carrillo, Taylor skipped the use of his hands and went straight to the use of a coat hanger in order to murder Flake. When the policeman questioned him about the television stolen from Flake's apartment, he quickly thought up a lie that worked. Then, when ultimately found, he successfully maneuvered an 18-wheeler cab for over 150 miles and then, when caught, tried to blame someone else for his crimes.

Finally, regarding the date of onset of Taylor's alleged mental retardation, the only IQ test taken of Taylor prior to his turning eighteen yielded a result of 75, above the mild retardation cut off of 70. The administrator of the test thought Taylor was capable of performing better than 75. While Taylor's expert concluded that this test result overstated Taylor's IQ by seven points, the trial court was not unreasonable in finding otherwise. In light of this standard of review, we hold that the petitioner did not present clear and convincing evidence that the state court erred.FN4 COA is DENIED.

FN4. Taylor argues that the CCA's decision in Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App.2004), fails to properly implement Atkins. As noted by the federal district court, Briseno has been cited favorably several times by this court in contexts indicating that Briseno is not contrary to clearly established Supreme Court precedent. See, e.g., In re Hearn, 418 F.3d 444, 446-47 (5th Cir.2005).