Summary:

Lionicio Perez returned home to find his wife, Alma, lifeless in a pool of blood. He ran to a neighbor’s house to call police, then returned to find the bodies of his daughter, Erida, and his 3 year old grandson, Jacob.

Villegas was Erida's boyfriend and was spotted after the murders in her vehicle and was arrested after a high-speed chase and foot pursuit. Villegas had three baggies of cocaine in his possession when arrested.

After being advised of his rights, Villegas confessed to the three murders. Villegas stated that he and Erida had consumed $200 of cocaine the night before and that morning was confronted by Alma, who had previously barred him from the home. Villegas stabbed her then went to the bedroom and stabbed Erida and her 3 year old child. He pawned a television he stole from the Perez home, and bought more cocaine. He told the police that he wanted to return to the Perez home to commit suicide by overdosing on cocaine, but fled when he saw police already in the home.

Citations:

Villegas v. Quarterman, 274 Fed.Appx. 378 (Tex. Crim. App. 2008). (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:

"I would like to remind my children once again I love them. Everything is OK. I love you all, and I love my children. I am at peace. It does kind of burn. Goodbye, goodbye."

Man executed for killing 3 members of Texas family

By Michael Graczyk - Associated Press

Houston Chronicle

April 16, 2014

HUNTSVILLE, Texas (AP) — A man convicted of fatally stabbing his ex-girlfriend, her young son and her mother 13 years ago at a home in Corpus Christi was executed by Texas prison officials Wednesday. The lethal injection of Jose Villegas, 39, was carried out after his attorneys unsuccessfully argued to the U.S. Supreme Court that he was mentally impaired and ineligible for the death penalty.

"I would like to remind my children once again I love them," Villegas said when asked if he had a statement before being put to death. "Everything is OK. I love you all, and I love my children. I am at peace." Just as the pentobarbital began taking effect, he said, "It does kind of burn. Goodbye." He gasped several times, then started to breathe quietly. Within less than a minute, all movement had stopped.

Villegas was pronounced dead at 7:04 p.m. CDT, 11 minutes after the lethal dose of the sedative began. He became the seventh prisoner executed this year in the nation's most active death penalty state. Six relatives of his victims witnessed the execution but declined to comment afterward.

'It does kind of burn': Last words of man executed for murdering his ex-girlfriend, her son and mother, after being injected with lethal drug

• Jose Villegas, 39, was put to death Wednesday for killing his ex-girlfriend, her young son, and her mother 13 years ago

• His last words were 'It does kind of burn. Goodbye', after being injected with execution drug pentobarbital.

• Villegas was pronounced dead at 7:04pm, after his lawyers made a last ditch effort to delay the execution because of his low IQ

By Associated Press

DailyMail.co.uk

April 16, 2014

A man convicted of fatally stabbing his ex-girlfriend, her young son and her mother 13 years ago at a home in Corpus Christi was executed by Texas prison officials Wednesday. The lethal injection of Jose Villegas, 39, was carried out after his attorneys unsuccessfully argued to the U.S. Supreme Court that he was mentally impaired and ineligible for the death penalty.p 'I would like to remind my children once again I love them,' Villegas said when asked if he had a statement before being put to death. 'Everything is OK. I love you all, and I love my children. I am at peace.'

Just as the pentobarbital began taking effect, he said, 'It does kind of burn. Goodbye.' He gasped several times, then started to breathe quietly. Within less than a minute, all movement had stopped. Villegas was pronounced dead at 7:04pm CDT, 11 minutes after the lethal dose of the sedative began. He became the seventh prisoner executed this year in the nation's most active death penalty state.

Six relatives of his victims witnessed the execution but declined to comment afterward. 'I was struck by the calm and peacefulness inside that room as opposed to the utter terror the victims must have been in as Jose Luis Villegas stabbed them,' Mark Skurka, the Nueces County district attorney who prosecuted Villegas, said after watching the execution.

'He made no attempt to make peace with the family, apologize to the family or show any remorse for taking the lives of three people,' Skurka said. 'The family expressed to me that they are glad that this is finally over and that justice has finally been done, even though it took a very long time in their minds for this to happen.'

Villegas' lawyers filed a last-day appeal asking the Supreme Court to stop his punishment, saying testing in February showed he had an IQ of 59. The high court denied it several hours later, slightly delaying the punishment. Four of the nine justices indicated in the brief court order that they would have given him a reprieve.

The Supreme Court has prohibited execution of mentally impaired people, although states have been allowed to devise procedures to make their own determinations. Courts also have embraced scientific studies that consider a 70 IQ a threshold for impairment, and the high court justices are reviewing a Florida law stipulating that number for death penalty eligibility.

The Texas Attorney General's office disputed the IQ finding, saying previous examinations of Villegas showed no mental impairment and the number cited in his appeal was based on testing after he received an execution date and had no incentive to do well on the test. State attorneys also argued his lawyers had 10 years to raise impairment claims but didn't do so until days before his scheduled punishment.

Villegas, a former cook, dishwasher and laborer, was free on bond for a sexual assault charge and was supposed to go on trial the day of the killings for an incident in which a woman said he punched her in the face. Police spotted Villegas driving Salazar's stolen car and he led them on a chase that ended with him on foot and urging officers to shoot him. When arresting him, police found three bags of cocaine in his baseball cap.

Following his conviction for capital murder, Villegas was convicted of two counts of indecency with a child related to the daughter of the woman he was accused of punching in the face prior to the slayings. Relatives have said Salazar's mother had urged her daughter to break up with Villegas when she learned of the sex charges against him. Villegas also had convictions for making terroristic threats to kill women, burglary and possessing inhalants.

Attorneys argued the slayings were not intentional and Villegas was mentally ill. A defense psychiatrist testified Villegas experienced 'intermittent explosive disorder,' a condition that led to uncontrollable rages.

Villegas became the third Texas inmate executed with a new stock of pentobarbital from a provider corrections officials have refused to identify, citing the possibility of threats of violence against the supplier. The Supreme Court has upheld that stance.

Jose Luis Villegas

ProDeathPenalty.com

The police apprehended Villegas after a high-speed chase and foot pursuit. Villegas had three baggies of cocaine in his possession, hidden inside his baseball cap, when arrested. After being advised of his rights, Villegas confessed to the three murders. Villegas claimed that he arrived at the Perez home at 5:00 a.m. that morning. He said that he and Erida consumed around $200 of cocaine. After Alma Perez returned home from taking Ms. Salazar’s daughter to school, she discovered Villegas’ presence in the home. Alma had previously warned her daughter not to let Villegas enter the house. When Alma ordered Villegas to leave, he stabbed her several times with a kitchen knife. Villegas then went to a bedroom and stabbed Erida and her son to death. Erida was stabbed 32 times, the little boy 19 times and her mother Alma 35 times.

Villegas left in Erida’s vehicle, pawned a television he stole from the Perez home for $75, and bought more cocaine. Villegas told the police that he wanted to return to the Perez home to commit suicide by overdosing on cocaine, but fled when he saw police already in the home.

Following his conviction for capital murder in this case, Villegas was convicted of two counts of indecency with a child related to the daughter of a woman he was accused of punching in the face. He was out on bond on the sexual assault charge at the time of the murders, and was supposed to go to court on the case of punching the child's mother on the same day of the murders. Erida's mother had urged her to leave Villegas when she learned of the sex charges against him. He also has convictions for making terroristic threats to kill women, burglary and possessing inhalants. Records showed he had spent at least 200 days in jail and four years on probation.

UPDATE:

Prior to being executed, Villegas made the following statement: "I would like to remind my children once again I love them," Villegas said when asked if he had a statement before being put to death. "Everything is OK. I love you all, and I love my children. I am at peace."

Villegas v. Quarterman, 274 Fed.Appx. 378 (Tex. Crim. App. 2008). (Habeas)

Background: Following denial of state habeas corpus relief, 2005 WL 2220028,petitioner who had been convicted of capital murder filed petition for federal habeas corpus relief. The United States District Court for the Southern District of Texas denied his petition, and petitioner sought certificate of appealability (COA).

Holding: The Court of Appeals held that trial counsel's presentation of mitigating evidence at trial did not constitute ineffective assistance of counsel. Affirmed.

PER CURIAM:

FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

This case involves an application for a certificate of appealability (“COA”) filed by Jose Luis Villegas to appeal the district court's denial of habeas corpus relief under 28 U.S.C. § 2254. Villegas seeks a COA to appeal the denial of his claims that counsel provided ineffective assistance during the penalty phase of his trial by failing to (1) investigate thoroughly his background, character, personal circumstances, and mental health history; and (2) present adequate evidence of his background, character, personal circumstances, and mental health history in a manner sufficient to provide the jury with a vehicle to consider and give meaningful effect to the evidence in such a way that it would mitigate the imposition of the death penalty. Because we conclude that Villegas has failed to make a substantial showing of the denial of a constitutional right, we deny his application for a COA.

I. BACKGROUND

The district court set forth the relevant facts as follows: A jury convicted Villegas of capital murder for killing his girlfriend, Erida Perez Salazar, her three-year-old son Jacob, and her mother, Alma Perez. At approximately 9:15 a.m. on January 22, 2001, Lionicio Perez returned home after being excused early from jury service. Mr. Perez found his wife [ sic ] bruised body lying lifeless in a pool of blood. He ran to a neighbor's house, asked his neighbor to call the police, and returned to find the bodies of his daughter and grandson. When the police arrived, a neighbor said that she saw Villegas leaving the Perez home at approximately 8:45 a.m.

At approximately 9:30 a.m., the police spotted Villegas in Ms. Salazar's vehicle. The police apprehended Villegas after a high-speed chase and foot pursuit. Villegas had three baggies of cocaine in his possession when arrested. After being advised of his rights, Villegas confessed to the three murders. Villegas described how he arrived at the Perez home at 5:00 a.m. that morning. He and Ms. Salazar consumed around $200 of cocaine. After Mrs. Perez returned home from taking Ms. Salazar's daughter to school, she discovered Villegas' presence in the home. Mrs. Perez had previously warned her daughter not to let Villegas enter the house. When Mrs. Perez ordered Villegas to leave, he stabbed her several times with a kitchen knife. Villegas then went to a bedroom and stabbed Ms. Salazar and her son to death. Villegas left in Ms. Salazar's vehicle, pawned a television he stole from the Perez home, and bought more cocaine. Villegas told the police that he wanted to return to the Perez home to commit suicide by overdosing on cocaine, but fled when he saw police already in the home.

On May 16, 2002, a jury found Villegas guilty of capital murder and sentenced him to death. He appealed his conviction and sentence to the Texas Court of Criminal Appeals (“TCCA”), which affirmed his conviction and sentence in an unpublished opinion. See Villegas v. Texas, No. 74,361 (Tex.Crim.App. Feb. 14, 2004). He then filed a timely state application for writ of habeas corpus. The state habeas court held an evidentiary hearing, issued findings of fact and conclusions of law, and recommended that habeas relief be denied. The TCCA denied relief in an unpublished order. See Ex parte Villegas, No. WR-62023-01, 2005 WL 2220028 (Tex.Crim.App. Sept. 14, 2005).

On September 14, 2006, Villegas filed a timely federal petition for writ of habeas corpus. In his petition, he argued, inter alia, that counsel provided ineffective assistance during the penalty phase of his trial by failing to (1) investigate thoroughly his background, character, personal circumstances, and mental health history; and (2) present adequate evidence of his background, character, personal circumstances, and mental health history in a manner sufficient to provide the jury with a vehicle to consider and give meaningful effect to the evidence in such a way that it would mitigate the imposition of the death penalty.FN1 The district court denied both claims on the merits and subsequently denied a COA. Villegas filed a timely notice of appeal and the instant application for a COA. FN1. Although Villegas raised eight other claims in his initial federal habeas petition, he does not seek a COA with respect to those claims on appeal.

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 483-84, 120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained:

The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El v. Cockrell, 537 U.S. 322, 336-37, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

In sum, Villegas need not show that his habeas petition will ultimately prevail on the merits in order for this court to issue a COA. Id. at 337, 123 S.Ct. 1029. In fact, the Supreme Court has specifically instructed that a court of appeals should not deny a COA simply because the petitioner has not demonstrated an entitlement to relief. Id. Instead, “where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. at 338, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). For claims that were adjudicated on the merits in state court, deference to the state court's decision is required unless the adjudication was “contrary to, or involved an unreasonable application of, clearly establish Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

III. ANALYSIS

Both claims raised by Villegas challenge whether trial counsel provided ineffective assistance. The Supreme Court has set forth a familiar two-prong test for examining such claims:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Sonnier v. Quarterman, 476 F.3d 349, 356 (5th Cir.2007).

Villegas's specific challenge goes towards the sufficiency of counsel's investigation and presentation of mitigating evidence during the penalty phase of his trial. Generally accepted standards of competence require that counsel conduct a reasonable investigation into an accused's background and character. Miniel v. Cockrell, 339 F.3d 331, 344 (2003) (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). In evaluating counsel's performance, we must conduct an objective review measured for “reasonableness under prevailing professional norms,” which includes a context-dependent consideration of the challenged conduct as seen “from counsel's perspective at the time.” Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052). To make this determination, the Supreme Court has condoned reliance upon the ABA Guidelines, which provide that counsel's investigation “should comprise efforts to discover all reasonably available mitigating evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Id. at 524, 123 S.Ct. 2527 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989)). A reasonable investigation will most likely include topics such as the accused's medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences. Id. (citing ABA Guidelines 11.8.6, p. 133). However, counsel's failure to research and present mitigating evidence during the penalty phase is not per se ineffective assistance. See Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir.1997). Instead, “[s]trategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). “Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case.” Id. at 533, 123 S.Ct. 2527. As the Supreme Court reiterated, “our principal concern in deciding whether [counsel] exercised ‘reasonable professional judgment,’ is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence ... was itself reasonable.” Id. at 522-23, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). There is a “strong presumption” that counsel's conduct “falls within the wide range of reasonable professional assistance,” and we may “not find ineffective assistance of counsel merely because [we] disagree[ ] with counsel's trial strategy.” Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

During the penalty phase in this case, the state presented evidence regarding the profound impact this crime had on the surviving family members. The state also presented the testimony of various police and probation officers regarding other crimes and bad acts Villegas committed over the years, including a number of assaults against family members, a burglary and shoplifting charge, and an incident of indecency with his five-year old daughter. Villegas's probation officer testified that Villegas was not a good probationer.

Villegas presented seven mitigating witnesses. Dr. William Swan Jr. testified about the prolonged and painful death of Villegas's mother, who died from scleroderma and underwent 18 amputations prior to her death. Christina Barrera, Villegas's older sister, testified about their mother's illness and its impact on the family, their father's alcoholism and abuse, and her concerns over Villegas's mental health. Arcelia Casarez, Villegas's ex-mother-in-law, testified about Villegas's troubled relationship with her daughter, her concerns over Villegas's mental health, and that she still very much cared for Villegas. San Juanita Luna, Villegas's cousin, testified about the death of Villegas's mother and his father's alcoholism. Joseph Hovart, Ph.D., a psychologist, testified that Villegas suffered from intermittent explosive, dissociative, and major depressive disorders, recurrent and severe. He also testified about Villegas's use of drugs, the trauma Villegas experienced from witnessing his mother's death, and Villegas's abusive relationship with his father. He opined, “I think that when he killed those three people, that it was a function of the intermittent explosive disorder and the cocaine abuse and not sleeping at all for a period of time.” Jose Luis Villegas, Sr., Villegas's father, testified about his relationship with his son and that he was a violent father. Finally, Dennis Longmire testified about the Texas death penalty and his belief that it did not deter crime and could perpetuate violence through institutional example.FN2

FN2. During the guilt-innocence phase, Dr. Carlos Estrada, a psychiatrist, also testified about Villegas's mental health problems and his social and life history that contributed to these problems. He diagnosed Villegas with intermittent explosive, post-traumatic stress, and dissociative disorders and addiction to cocaine, marijuana, and alcohol. He concluded that intermittent explosive disorder was the condition most related to the crime.

During the state habeas evidentiary hearing, Villegas presented additional mitigation evidence. His older sister provided a much more detailed account of Villegas's childhood, including his mental health history and his relationship with their abusive father. Carolina Villegas, Villegas's younger sister, also testified about his childhood, including his mental health history, his drug problems, his abusive relationship with their father, and the impact their mother's death had on the family. Dr. Estrada provided a much more detailed account of Villegas's intermittent explosive disorder. He also diagnosed Villegas with post-traumatic stress disorder, which he opined resulted from Villegas's abusive childhood and having witnessed his mother's death. He further opined that Villegas's condition was treatable. He testified about his frustrations with explaining these concepts to counsel and to the jury, claiming to be unable to relate, in a meaningful manner, an accurate picture of Villegas's mental illness and how it related to the tragic events in this case. Finally, Villegas's cousin filed an affidavit indicating that she thought Villegas was mentally slow.FN3

FN3. Although Norma Villegas, Villegas's wife, exercised her spousal privilege to not testify during the penalty phase, she did testify at the state habeas evidentiary hearing about her marriage, Villegas's abuse of drugs and alcohol, and his role as a loving father. However, counsel can hardly be held accountable for not presenting such evidence to the jury during the penalty phase given that Norma Villegas exercised her state-recognized privilege to not testify on her husband's behalf. Villegas also presented to the state habeas court two affidavits from jury members regarding their deliberations. However, Rule 606(b) of the Federal Rules of Evidence prohibits the use of such evidence to determine the effect any particular thing might have had on the outcome of a verdict. Summers v. Dretke, 431 F.3d 861, 873 (5th Cir.2005).

In response, the state presented various affidavits and exhibits from individuals who worked on Villegas's case: Grant Jones, trial co-counsel, Lisa Lawrence, a paralegal, and Eva Reed, a mitigation specialist. Jones indicated that the defense team conducted a thorough investigation into Villegas's personal, social, and mental health histories and made a strategic choice not to call Carolina Villegas, Villegas's younger sister, because of her mental health problems and her reluctance to testify. He further indicated that Dr. Estrada never voiced his frustrations about being unable to discuss Villegas's diagnosis in a manner that would be meaningful to the jury. Lawrence and Reed each confirmed this information in separate affidavits.

In reviewing this evidence, the state habeas court stated: Villegas'[s] trial attorneys made a thorough investigation of his social history, including the discovery of evidence of the many abuses caused by his father, the trauma caused by his mother's terminal illness, and Jose Villegas' [s] own history of substance abuse. The Court further finds that, comparing the information available to the defense ... with the testimony of witnesses at the writ hearing, Jose Villegas has offered virtually no new information that was not already known to the defense attorneys by their pre-trial investigation of the case.

The state habeas court also found that counsel exhibited reasonable and informed strategic decision making in investigating and presenting mitigating evidence during the penalty phase. Thus, the state habeas court concluded that Villegas failed to establish that counsel's performance was deficient.

The district court below likewise concluded that although Villegas amassed additional mitigation evidence at his state habeas hearing, that evidence was largely cumulative and differed from the evidence presented at trial only in detail, not in mitigation thrust. Moreover, according to the district court, counsel made a consistent effort throughout the penalty phase to connect how Villegas's mental health problems, drug and alcohol abuse, and family history contributed to the murders. Against this backdrop, the jury had to evaluate Villegas's violent background, lengthy criminal history, and the fact that he brutally stabbed three individuals, including a three-year old child. Based on the record evidence, the district court agreed with the state habeas court that “had the jury been confronted with the few pieces of additional mitigating evidence put forward by Jose Villegas in connection with the writ proceeding, there is no reasonable probability that it would have resulted in a different verdict or sentence” and concluded that the state habeas court did not unreasonably apply federal law in rejecting Villegas's Wiggins claims.

We agree. This is not a case in which counsel did nothing. In fact, Villegas concedes that counsel undoubtedly investigated his background and mental health history sufficient enough to formulate a defense strategy. He simply challenges how that strategy was executed. For example, he argues that “it is unclear how much time [counsel] spent gaining an understanding of his mental condition and how his past and history related to it .... [and] whether [counsel] investigated enough or educated themselves enough to know how to execute that strategy at trial.” Furthermore, he argues that counsel did not connect his entire past “in such a manner that the jury could gain a picture of who [he] was and why he was less culpable than other defendants who did not suffer from such maladies.” This court rejected similar arguments in Coble v. Quarterman, 496 F.3d 430 (5th Cir.2007). In Coble, the petitioner argued, inter alia, that (1) counsel did not adequately prepare mitigating witnesses, (2) these witnesses could have been presented in a more effective manner, and (3) counsel failed to adequately present a coherent theory regarding the mitigation case. Id. at 436-37. In rejecting these arguments, this court emphasized that “[at] its base, [the petitioner's] current challenge is to the strategy employed by trial counsel. Such a challenge does not establish ineffective assistance.” Id. at 437 (citing Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003)). Here, Villegas is equally unable to articulate exactly how counsel's performance was deficient other than summarily concluding that counsel could have presented a more persuasive mitigation case. Stated differently, Villegas challenges only the persuasiveness of an otherwise reasonable mitigation strategy employed by counsel after conducting a thorough investigation, something Strickland and its progeny prohibit. That is not to say that under some circumstances, the presentation of mitigation evidence can be so inadequate that it amounts to no strategy at all or falls outside the wide range of reasonable assistance as determined by prevailing professional norms, but this is not one of those cases. After reviewing the record, we are unable to say that counsel's investigation and presentation of mitigation evidence were constitutionally deficient.

In short, we agree that the additional evidence gathered by Villegas at the state habeas hearing was largely cumulative,FN4 the state habeas court did not unreasonably apply federal law in rejecting Villegas's Wiggins claims, and it is beyond debate that Villegas has not made a substantial showing of the denial of a constitutional right.

FN4. Villegas argues that counsel never presented any evidence that his mental health condition was treatable and thus, the jury was forced to conclude that he would always be a threat to society. However, in closing argument, counsel argued that Villegas would not be a threat to society while incarcerated because of prisons's “highly restrictive environment,” he would receive “treatment or counseling” for his mental illness, and he would “be separated from drugs and from the stressors that caused his violent behaviors.” Thus, counsel presented some evidence from which a rational jury could have concluded that Villegas would not always be a threat to society.

IV. CONCLUSION

For the foregoing reasons, the application for a COA is denied.

No. 74,361

Jose Luis Villegas, Appellant
v.
The State of Texas

Holcomb, J., delivered the opinion of the Court, in which Keller, P.J., and Price, Johnson, Keasler, Hervey, and Cochran, JJ., joined. Meyers, J., joined the opinion except its discussion of points of error three and four, with which he concurred in the result. Womack, J., concurred in the result.

In May 2002, a jury convicted appellant of capital murder. Tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g). Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises seven points of error. We affirm.

In points of error two, three, and four, appellant contends that his trial counsel rendered ineffective assistance. Specifically, appellant complains that his counsel rendered ineffective assistance when he failed to use all fifteen of his allotted peremptory strikes, failed to attempt to qualify as jurors any veniremember with reservations about the death penalty, and failed to utilize his right to individual voir dire afforded by Article 35.17.

The proper standard for reviewing an ineffective assistance of counsel claim was established in Strickland v. Washington, 466 U.S. 668 (1984)(adopted by this Court in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)). Under Strickland, an appellant must first demonstrate that his trial counsel's performance was deficient. Secondly, he must show that his counsel's deficient performance was so serious that it prejudiced his defense, rendering the trial unfair and the verdict suspect. Strickland, 466 U.S. at 687; Lockhart v. Fretwell, 506 U.S. 364 (1993). In other words, appellant must prove by a preponderance of the evidence that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and that this deficient performance rendered the result of the proceeding unreliable. Strickland, 466 U.S. at 687. Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Chambers v. State, 903 S.W.2d 21, 33 (Tex. Crim. App. 1995). Further, the analysis is undertaken in light of the "totality of the representation" rather than by examining isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance. King v. State, 649 S.W.2d 42 (Tex. Crim. App. 1983).

Under most circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the strong presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. As this Court recently explained, rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: "[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. A reviewing court can frequently speculate on both sides of an issue, but ineffective assistance claims are not built on retrospective speculation; rather, they must "be firmly founded in the record." Id.

The record in the instant case is not sufficiently developed on appellant's claims of ineffective assistance of counsel. For example, the record does not show why the trial court conducted voir dire as it did or whether the parties had any agreements concerning voir dire. From the information available to us, we can only speculate as to why counsel acted or failed to act as he did, and such speculation is beyond the purview of this Court. Id.; Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994)(Baird, J., concurring). Without more, we must presume that counsel acted pursuant to a reasonable trial strategy. Id. Points of error two, three and four are overruled.

In his first point of error, appellant asserts that "he was denied his rights under the Eighth and Fourteenth Amendments of the United States Constitution because the Texas death penalty statute fails to give a jury the option of imposing a sentence of life without the possibility of parole." Citing Penry v. Lynaugh, 492 U.S. 302, 330 (1989), Ford v. Wainwright, 477 U.S. 399, 405 (1986), and several statutes from states other than Texas, appellant argues that the Texas death penalty scheme is unconstitutional because evolving standards of decency demand that capital sentencing authorities be permitted to consider imposing a sentence providing for life without parole as an alternative to the death penalty. Without this option, he contends the death penalty amounts to cruel and unusual punishment. This Court has addressed and rejected this precise argument. Arnold v. State, 873 S.W.2d 27, 39-40 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 830 (1994). Appellant's first point of error is overruled.

Appellant complains in his fifth point of error that he was denied his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution "because the instructions given at the punishment phase misled the jury regarding the effect of a 'no' vote by a single juror." In other words, appellant asserts that the provision in Article 37.071 that prohibits the court, the prosecutor, the defendant, or the defendant's counsel from informing jurors or prospective jurors of the effect of a failure to agree on the issues is unconstitutional. Art. 37.071 §§ 2(a)(1) and 2(g). This Court has addressed and rejected this argument, and appellant has given us no reason to revisit the issue here. Rousseau v. State, 855 S.W.2d 666, 686-87 (Tex. Crim. App.), cert. denied, 510 S.W.2d 919 (1993). Point of error five is overruled.

In his sixth point of error, appellant claims that the United States Constitution requires the State to bear the burden to prove insufficient mitigation beyond a reasonable doubt. He argues that this is so because eligibility for the death penalty is no longer narrow due to the many different manner and means of committing capital murder under Texas Penal Code § 19.03(a). This Court has previously rejected this claim. Brooks v. State, 990 S.W.2d 278, 288 (Tex. Crim. App. 1999)(and cases cited therein), cert. denied, 528 U.S. 956 (1999). Point of error six is overruled.

Finally, appellant asserts in point of error number seven that he was denied his rights under the Eighth and Fourteenth Amendments to the United States Constitution because the State waived its right to open the arguments at the punishment phase. Appellant did not object to this waiver and proceeded to argue first to the jury. Because he failed to object, appellant has forfeited any potential complaint for appeal. Tex. R. App. P. 33.1. Point of error seven is overruled.

We affirm the judgment of the trial court.

Delivered February 18, 2004

En banc

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