Texas executes man despite his low IQ claims

By Cody Stark - ItemOnline.com

August 7, 2012

HUNTSVILLE — A Jefferson County man, whose attorneys hoped a mental impairment claim would spare him from execution, was put to death Tuesday night after the U.S. Supreme Court denied his appeal. Marvin Wilson, 54, who was sentenced to death for the 1992 murder of 21-year-old Jerry Williams in Beaumont, was pronounced dead at 6:27 p.m., 14 minutes after the lethal dose was administered.

Attorneys for Wilson filed an appeal with the Supreme Court before Tuesday’s execution stating that Wilson did not qualify for the death penalty because he scored a 61 on an IQ test in 2004, which is nine points below the generally accepted minimum competency standard of 70. Attorneys for the state argued that Wilson’s claim was based on a single test that may have been faulty and that his mental impairment claim wasn’t supported by other tests and assessments of him over the years.

The Supreme Court denied Wilson’s request for a stay of execution less than two hours before his lethal injection began. The warden asked Wilson if he had a final statement to make before the execution was carried out and Wilson told his family he loved them. He also said that he was going “home.” “Y’all do understand that I came here a sinner and leaving a saint,” Wilson said. “Take me home Jesus. Take me home Lord.” Wilson said he was ready and the lethal dose began. His breathing became labored and he lost consciousness. Wilson was the seventh inmate to be executed in Texas this year and the second since the state switched to a one-drug method.

Wilson was convicted of murdering Williams in November 1992, several days after police seized 24 grams of cocaine from Wilson’s apartment and arrested him. Witnesses testified that Wilson and another man, Andrew Lewis, beat Williams outside of a convenience store in Beaumont. Wilson, who was free on bond, accused Williams of snitching on him about the drugs, they said.

Witnesses said the Wilson and Lewis, who received a life sentence for his role in the murder, then abducted Williams, and neighborhood residents said they heard a gunshot a short time later. Williams was found dead on the side of a road the next day, wearing only socks. He had been severely beaten and shot in the head and neck at close range. Wilson was arrested the next day when he reported to his parole officer on a robbery conviction for which he served less than four years of a 20-year prison sentence. It was the second time he had been sent to prison for robbery.

In Wilson’s Supreme Court appeal, lead defense attorney Lee Kovarsky said Wilson’s language and math skills “never progressed beyond an elementary school level,” that he reads and writes below a second-grade level and that he was unable to manage his finances, pay bills or hold down a job. The Supreme Court issued a ruling in 2002 outlawing the execution of the mentally impaired, but left it to states to determine what constitutes mental impairment. Kovarsky argued that Texas is trying to skirt the ban by altering the generally accepted definitions of mental impairment to the point where gaining relief for an inmate is “virtually unobtainable.” “That neither the courts nor state officials have stopped this execution is not only a shocking failure of a once-promising constitutional commitment, it is also a reminder that, as a society, we haven’t come quite that far in understanding how so many of those around us live with intellectual disabilities,” Kovarsky said shortly after the court refused to stop Wilson’s execution.

State attorneys say the court left it to states to develop appropriate standards for enforcing the ban and that Texas chose to incorporate a number of factors besides an inmate’s IQ, including the inmate’s adaptive behavior and functioning.

Edward Marshall, a Texas assistant attorney general, said records show Wilson habitually gave less than full effort and “was manipulative and deceitful when it suited his interest,” and that the state considered his ability to show personal independence and social responsibility in making its determinations.

“Considering Wilson’s drug-dealing, street-gambler, criminal lifestyle since an early age, he was obviously competent at managing money, and not having a 9-to-5 job is no critical failure,” Marshall said. “Wilson created schemes using a decoy to screen his thefts, hustled for jobs in the community, and orchestrated the execution of the snitch, demonstrating inventiveness, drive and leadership."

Texas executes low-IQ inmate after Supreme Court refuses to intervene

Reuters.com

Aug 7, 2012

(Reuters) - Texas executed a mentally retarded convicted murderer on Tuesday after the U.S. Supreme Court refused to intervene a decade after it banned executions of such people as cruel and unusual punishment. Marvin Wilson, 54, was convicted of the November 1992 murder of a 21-year-old police drug informant, Jerry Robert Williams, and was sentenced to death in April 1994.

Wilson had challenged his execution as unconstitutional under a 2002 Supreme Court ruling that banned executing mentally retarded people but gave states some discretion in deciding who qualified for protection. "The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is denied," the court said in an order earlier on Tuesday evening. Justice Antonin Scalia handles emergency appeals from the 5th U.S. Circuit Court of Appeals, which oversees Texas.

Wilson was pronounced dead at 6:27 p.m. local time, according to Jason Clark, a spokesman for the Texas Department of Criminal Justice. "Y'all do understand that I came here a sinner and leaving a saint," Wilson said as part of his final statement, according to Clark. "Take me home, Jesus, take me home, Lord, take me home, Lord."

Wilson's IQ had been measured as low as 61, below the 70 level sometimes used to delineate mental retardation. Texas argued that the test pegging Wilson's IQ at 61 was conducted by an inexperienced intern, and that several other tests showed an IQ above 70. The state also said it had discretion under the 2002 Atkins v. Virginia ruling to consider seven factors in determining whether someone like Wilson should be executed, including his ability to lead, his ability to lie, and whether family and friends thought he was mentally retarded. Lawyers for Wilson countered that this allowed the state to effectively ignore the Atkins ruling by unreasonably applying "non-clinical" factors to disqualify Wilson from its protections. Texas is the only state to use such a test, Wilson's lawyer, Lee Kovarsky said.

"Whatever was in his past, the Marvin I knew was a simple man who loved his family and his god," Kovarsky said in an email on Tuesday. "I hope that, at the very least, something like this occasions some serious reflection on what it means to be culpable. As a society, we do a decent job of sorting right from wrong, but, when we calibrate blame, it's like we're blindfolded and throwing darts," he added.

In a separate death penalty case on appeal to the Supreme Court, Chester v. Thaler, the American Association on Intellectual and Developmental Disabilities said Texas' test relies on false stereotypes and would count only the most severely incapacitated people as mentally retarded. Texas has conducted roughly three out of every eight executions since 1976, when the Supreme Court allowed the practice to resume after a four-year hiatus, according to the Death Penalty Information Center.

Wilson was the seventh inmate executed in Texas this year and the 25th executed in the United States this year, according to the information center.

Marvin Lee Wilson

ProDeathPenalty.com

On November 4, 1992, Officer Robert Roberts and other police officers entered Marvin Lee Wilson's Beaumont, Texas apartment pursuant to a search warrant. Jerry Williams was a confidential informant whose information enabled Roberts to obtain the warrant. Williams entered and left the apartment minutes before the police went in. Wilson, 34 years old at the time, Vincent "Gun" Webb, and a juvenile female were present in the apartment. Over 24 grams of cocaine were found, and Wilson and Webb were arrested for possession of a controlled substance.

Wilson was subsequently released on bond, but Webb remained in jail. Sometime after the incident, Wilson told Terry Lewis that someone had “snitched” on Wilson, that the “snitch” was never going to have the chance to “to have someone else busted,” and that Wilson “was going to get him.”

On November 9, 1992, several observers saw an incident take place in the parking lot in front of Mike's Grocery. Two women were together in the parking lot. Another woman and her daughter were inside the store. A man was outside the store, but came in at some point to relay information to one of the women. The doors to Mike's Grocery were made of clear glass, and one of the women stood by the door and watched the events outside. While the witnesses watched the events unfold, another called the police. These witnesses testified consistently although some witnesses noticed details not noticed by others. In the parking lot, Wilson stood over Williams and beat him. Wilson asked Williams, “What do you want to be a snitch for? Do you know what we do to a snitch? Do you want to die right here?” In response, Williams begged for his life.

Andrew Lewis, Terry's husband, was pumping gasoline in his car at the time. Williams ran away from Wilson and across the street to a field. Wilson pursued Williams and caught him. Andrew drove the car to the field. While Williams struggled against them, Wilson and Andrew forced Williams into the car. At some point during this incident, either in front of Mike's Grocery, across the street, or at both places, Andrew participated in hitting Williams and Wilson asked Andrew: “Where's the gun?” Wilson told Andrew to get the gun and said that he (Wilson) wanted to kill Williams. They drove toward a Mobil refinery. Two of the witnesses drove back to their apartments, which were close by, and when they arrived, they heard what sounded like gunshots from the direction of the Mobil plant. Sometime after the incident, Wilson told his wife, in the presence of Terry Lewis and her husband, “Baby, you remember the n*****r?I told you I was going to get? I did it. I don't know if he dead or what, but I left him there to die.” When Terry looked back at her husband, Wilson stated, “Don't be mad at Andrew because Andrew did not do it. I did it.”

On November 10, 1992, a bus driver noticed Williams' dead body on the side of a road. The autopsy report concluded that Williams died from close range gunshot wounds to the head and neck. Having known Wilson for 16 years, Zeno identified Wilson. Some of the witnesses recognized Jerry Williams but did not know Wilson or Andrew. One witness subsequently identified Andrew in a photo line-up. At that time, the witness told law enforcement authorities that the man he identified in the photo was the “helper,” rather than the primary actor. The other man, who the witness described as having a “gerry curl,” made the threats and conducted most of the beating of Williams. Under defense cross-examination at trial, the witness testified that the man in the photo (i.e. Andrew Lewis) was the man with the gerry curl and hence, the primary actor. But, upon redirect examination, the witness testified that his earlier testimony was in error, and that the man in the photo was not the one with the gerry curl.

This contradiction led to questioning that explored an incident involving the witness, defense counsel, and Wilson. At one time, defense counsel and Wilson interviewed this witness together, while the man was in jail for an unrelated offense. No representatives of the district attorney's office were present. Wilson asked the witness for his father's name, and Wilson asked if the man had a new baby. These questions made the witness feel scared and intimidated, and he wondered how Wilson could have known about his new baby.

Wilson had been convicted of committing two aggravated robberies in 1981. He receive a sentence of 8 years and was released on mandatory supervision less than 3 years later. In one of those aggravated robberies, he pointed a shotgun at the clerk of a convenience store. He was also convicted of robbery in 1987. For that crime he was sentenced to 20 years in prison and was paroled just over 3 years later, on January 31, 1991.

Wilson v. State, 938 S.W.2d 57 (Tex.Cr.App. 1996) (Direct Appeal - Reversed)

Defendant was convicted upon jury verdict in the District Court, Jefferson County, Leonard J. Giblin, J., of capital murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Baird, J., held that prosecutor's closing argument, that he had taken oath to see that justice is done but that defense counsel was under no such oath, was not invited and constituted reversible error. Reversed and remanded. McCormick, P.J., White and Keller, JJ., dissented. Mansfield, J., filed dissenting opinion. BAIRD, Judge.

Appellant was convicted of capital murder. Tex. Penal Code Ann. § 19.03(a)(3). The jury answered the punishment issues of Tex.Code Crim. Proc. Ann. art. 37.071 in such a manner that the trial judge sentenced appellant to death. Appeal to this Court is automatic. Id., at § 2(h). As appellant does not challenge the sufficiency of the evidence, we will set forth only the facts necessary to resolve appellant's second point of error. We will reverse.

I.

The second point of error contends the State, during its closing arguments at the guilt/innocence stage of trial, improperly struck at appellant over the shoulders of his trial counsel. Appellant complains of the following jury argument: STATE: Ladies and gentlemen, it is not my job to wish the kind of case that I put on for you. I bring you the evidence that has been produced that indicates this man's guilt. What I wish in this case is immaterial. May be material to this man (indicating appellant). The only thing that I wish is that justice is done in this case. I have taken a very sacred oath, in my opinion, to see that justice is done in every case I prosecute. It is your duty—and in the last paragraph of this charge you can see—to see that justice is done in this case. [Defense Counsel] has no such oath, and what he wishes is that you turn a guilty man free. That's what he wishes, and he can wish that because he doesn't have the obligation to see that justice is done in this case.

DEFENSE: Your Honor, I want to object. That's striking at the defendant over the shoulders of his attorney. TRIAL JUDGE: Overruled. DEFENSE: I'd ask the Court to instruct the jury that I have just as sacred an oath to see that justice is done. TRIAL JUDGE: You do take an oath; but it does not have the wording that he's talking about, Counsel. STATE: His oath is to represent the interest of his client to his utmost within the bounds of the law. He's done that. But, see, it's not important to seek truth and justice under his oath. It is under mine. DEFENSE: Your Honor, I must object. That's a mischaracterization of my oath. My oath does not say that I'm not supposed to be looking for truth and justice. TRIAL JUDGE: Overruled.

The State contends these comments were invited by defense counsel. The prosecutor, during closing argument, stated: STATE: Is it [defense counsel's] duty to come into this courtroom and call me Hitler? He did that. That's incredible. He basically said—he basically called the State of Texas Hitler. You remember the word. Wow. The State's remarks about Hitler refer to the following exchange which occurred during cross-examination of a defense witness: STATE: You don't remember who you were standing there with listening to talk about—listening to the talk that was going on? DEFENSE: Your Honor, I'm going to object to him continuing to misassert her testimony. She has on three occasions denied listening to anything, and he continues to say she did. And, just like Adolph Hitler, if you say it long enough, people start thinking that's what was said. TRIAL JUDGE: Overruled. And that side bar remark will not be tolerated.

II.

Jury argument must be confined to four permissible areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Cr.App.1980); and, Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Cr.App.1973). Appellate courts should not hesitate to reverse when it appears the State has departed from one of these areas in argument and has engaged in conduct calculated to deny the accused a fair and impartial trial. Johnson v. State, 604 S.W.2d 128, 135 (Tex.Cr.App.1980). The test to determine whether an improper argument constitutes reversible error is whether: (1) the argument is violative of a statute or; (2) it injects a new and harmful fact into the case; or (3) it is manifestly improper, harmful and prejudicial to the rights of the accused. Thompson v. State, 480 S.W.2d 624, 630 (Tex.Cr.App.1972); Briddle v. State, 742 S.W.2d 379, 389–390 (Tex.Cr.App.1987) (quoting Todd v. State, 598 S.W.2d 286, 297 (Tex.Cr.App.1980)).

A.

For many years this Court has recognized prosecutors' arguments which attack defense counsel are manifestly improper because they serve to inflame the minds of the jury to the accused's prejudice. In Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App.1975), the prosecutor made an argument identical to that complained of in the instant case. The prosecutor stated: ... [the other prosecutor] and I have taken a solemn oath to God to seek justice. You judge whether or not we have done it. No such oath bears on either one of these attorneys [defense counsel]. Lewis, 529 S.W.2d at 534. Even though the trial judge sustained defense counsel's objection to the argument the prosecutor continued: All right. I would ask you to believe this: If, assuming this man is guilty, do they (defense counsel) want the truth in here before you? Id. We held: “the effect of this argument was to instruct the jury that only the prosecutors seek to uphold truth and justice, whereas defense counsel have a license to use any means at their command to mislead the jury.” Id. This type of argument strikes at the defendant over the shoulders of counsel and, when not invited by the actions of defense counsel, is reversible error. Id.

Similarly, in Bell v. State, 614 S.W.2d 122 (Tex.Cr.App.1981), the prosecutor argued the defense counsel's duty was to obtain an acquittal at any means. The State argued: Defense counsel is a criminal defense lawyer. He doesn't have the same duty I do. He represents the criminal. His duty is to see that his client gets off even if it means putting on witnesses who are lying. Bell, 614 S.W.2d at 123. Defense counsel's objection was sustained and his motion for mistrial overruled. We held the argument was improper and the trial judge's instruction to disregard was not sufficient to remove the prejudice it created. Id.

In Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972), we held the State's jury argument prejudiced the rights of the accused, and required a reversal. The prosecutor argued: STATE: Our client doesn't sit here at the counsel table with us and our client is not here to confer with us, we represent you folks. We represent the people here in this County. That's who our employer is and suffice it to say Ladies and Gentlemen I am grateful and I shall be eternally grateful that you are the people that are my employers and not the likes of him and that I am not representing this sort of thing. Rest assured I am very happy about that. I am grateful that I don't have to make my living that way. DEFENSE: We object to that Your Honor. He represents ... STATE: He opened the door Your Honor. I believe I'm entitled to answer his argument. TRIAL JUDGE: The jury heard it. STATE: I will reiterate I'm very grateful I don't have to make my living representing a man who first set up the robbery.... Bray, 478 S.W.2d at 89–90.FN1 This Court found the prosecutor's highly improper argument was not invited by defense counsel. We concluded that no instruction would have sufficed to correct the error and remove the prejudice. We stated: FN1. In Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974), the prosecutor made a similar improper argument claiming he would never represent a criminal defendant. We held such personal arguments prejudicial, and designed to improperly inflame the minds of the jurors against the rights of the defendant and reversed. Boyde, 513 S.W.2d at 593.

Trial judges should assume the responsibility of preventing this type of argument. A rebuke by the trial judge in the presence of the jury may do more to end the practice of intemperate and improper argument than repeated admonitions or even reversals by this Court. Bray, 478 S.W.2d at 90.

In light of these cases, “[i]t is axiomatic that the State may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith and insincerity.” Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Cr.App.1984). In the instant case no evidence was presented to show the oath taken by the prosecutor. Therefore, the argument injected a new fact into the case. Berryhill v. State, 501 S.W.2d 86, 87 (Tex.Cr.App.1973). The prosecutor's statements were akin to those we found objectionable in both Lewis and Bell. In sum, the argument was outside the record, manifestly improper, harmful and prejudicial to the rights of the accused.

III.

We must now decide whether the improper argument was invited by defense counsel. The invited argument rule permits prosecutorial argument outside the record in response to defense argument which goes outside the record. Johnson v. State, 611 S.W.2d 649, 650 (Tex.Cr.App.1981); and, Franks v. State, 574 S.W.2d 124, 126 (Tex.Cr.App.1978). In the instant case, appellant centered his defense around the flaws in the State's case. To this end, defense counsel argued:

I don't want anybody to think—and I sure hope nobody holds it against the appellant because I'm a zealous attorney. I represent my people the best I know how to do. I pour my heart, my soul, and my guts into it. And I sure hope I don't offend anybody on his behalf. And by putting a witness on the stand this morning I wasn't trying to call the prosecutor anything bad or impugn his character in any way. I want you to know that. Sometimes in the heat of battle people get the wrong impression. I was not trying to impugn the prosecutor or say that he had hidden this hair from us. Because I don't believe that with the prosecutor. I really and truly don't. But I do—wanted you to know since the impression might have been left that we, quote, “didn't ask for it,” unquote, that you at least be aware of the fact that we were told it had either been lost or misplaced or wasn't in existence. As you can see from that very tiny piece of evidence, very tiny, it wouldn't surprise anybody to have lost it; but we didn't know it until last Friday. And I thought it's important that you know that, and I sure thought it was important that you not be left with the impression that we knew it was up there and didn't do anything with it.

Defense counsel did not cast aspersions upon the prosecutor. In fact, he did the opposite by apologizing for any hint of impropriety the jury may have gleaned from an earlier witness regarding this evidence. Defense counsel pursued this argument so as not to leave the jury the impression the defense did not “ask for” this evidence. The entirety of the defense argument consists of an attack on the evidence and upon evidence the State failed to present or explain to the jury. This is the very heart and soul of a defense counsel's obligation to his client. The defense argument was not an attack on the prosecutor. Defense counsel's side bar remark mentioning Hitler was remedied when the trial judge overruled the objection and stated that the side bar remark would not be tolerated. At that point it was incumbent on the State to seek more relief if the State thought it was necessary to remedy the side bar remark. After receiving a favorable ruling and all of the relief it felt necessary, the State cannot now contend the argument was invited. A prosecutor may not stray beyond the scope of the invitation. Johnson, 611 S.W.2d at 650; and, Kincaid v. State, 534 S.W.2d 340, 342 (Tex.Cr.App.1976). In other words, defense counsel's reference to Hitler during the testimonial portion of the trial did not give the State carte blanche to strike at the defendant over the shoulder of his counsel later at the closing argument phase of the trial. Fuentes, 664 S.W.2d at 336.

IV.

Having determined the improper argument was not invited, we must conduct a harm analysis under Tex.R.App.Proc. 81(b)(2). The applicable legal standard of review is whether, in light of the record as a whole, there is a reasonable possibility the improper argument might have contributed to appellant's conviction. Denton v. State, 920 S.W.2d 311 (Tex.Cr.App.1996)(citing and quoting Orona v. State, 791 S.W.2d 125, 128 (Tex.Cr.App.1990)). In applying this standard of review we do not look for overwhelming evidence of guilt because it is improper for an appellate court to substitute its judgment for that of the factfinder Harris v. State, 790 S.W.2d 568, 585 (Tex.Cr.App.1989). Instead, we focus on the error and its possible impact. Id., 790 S.W.2d at 586–588. “If the error was of a magnitude that it disrupted the [factfinder's] orderly evaluation of the evidence, no matter how overwhelming it might have been, then the conviction is tainted.” Id., 790 S.W.2d at 588.

To perform a harmless error analysis an appellate court should consider the following factors: 1) the source of the error; 2) the nature of the error; 3) whether the error was emphasized and its probable collateral implications; 4) the weight a juror would probably place upon the error; and 5) whether declaring the error harmless encouraged the State to repeat it with impunity. Orona, 791 S.W.2d at 130. Though no one factor is dispositive, the existence and severity of these factors are indicative of the harm caused by the State's improper argument. In the instant case it is evident the prosecutor was intent upon informing the jury of the distinction he perceived between the oath of a prosecutor and the oath of a defense attorney. It is equally evident that the prosecutor sought to emphasize that such a distinction involved an obligation to “seek truth and justice.” Thus the source of the error was the State and the nature of the error is grounded in one of the basic tenets of criminal law, due process. For whenever a trial lacks truth or fairness, due process is implicated. See generally, In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); Brown v. State, 921 S.W.2d 227, 230 (Tex.Cr.App.1996) (Keller, J., concurring); Flores v. State, 904 S.W.2d 129, 132 (Tex.Cr.App.1995) (Overstreet, J., dissenting); and, Ex parte Brandley, 781 S.W.2d 886 (Tex.Cr.App.1989).

Moreover, in Boyde v. State, 513 S.W.2d 588, 592 (Tex.Cr.App.1974), and Gomez v. State, 704 S.W.2d 770 (Tex.Cr.App.1985), we noted the general public does not understand the concept that defense attorneys are under an ethical obligation to represent the accused regardless of their personal opinion as to the guilt of the accused. Id., 704 S.W.2d at 771. In Boyde we stated: This general misunderstanding by the public serves to contribute to the prejudicial effect of an argument by a prosecutor which strikes at a member of the bar for representing a person accused of crime. Boyde, 513 S.W.2d at 592. See also, Bray, 478 S.W.2d at 89.

As to the third factor, the State re-emphasized the argument after defense counsel objected, and thus compounded the prejudicial effect upon the jury. See, Bray, 478 S.W.2d at 90; and, Boyde, 513 S.W.2d at 592. The State's continuation of the argument distinguishes the instant case from Orona where the State did not advance the improper argument. In Orona we noted that had the State continued with the improper argument, a reversal might have been necessary. Id., 791 S.W.2d at 130.

We now turn to the fourth factor, the weight a juror would probably place upon the error. In the instant case, the trial judge twice overruled defense counsel's objection to the State's improper arguments, and by doing so further aggravated the harm. “[A] trial court, by overruling an objection to an improper argument, puts ‘the stamp of judicial approval’ on the improper argument, thus magnifying the possibility for harm.” Good v. State, 723 S.W.2d 734, 738 (Tex.Cr.App.1986); and, Burke v. State, 652 S.W.2d 788, 790 (Tex.Cr.App.1983). Thus, the first four Orona factors militate toward a finding of harm. The final factor for consideration requires the Court to consider the probable effect of holding the State's improper argument harmless. In Summers v. State, 147 Tex.Crim. 519, 182 S.W.2d 720, 721 (1944), this Court reversed on the basis of an improper argument made by the prosecutor in which he argued prejudicial facts which were not a rational deduction from the evidence. We held: ... We fail to understand just why a prosecuting attorney would depart from the well established rules requiring that arguments be based upon evidence legally introduced in the case.... Just what the purpose of the Assistant District Attorney was other than to inflame the minds of the jury and prejudice them against the appellant, we are unable to understand. By this argument the prosecuting attorney was striking at the appellant over the shoulders of his counsel in an endeavor to inflame the minds of the jury to his prejudice. The accused is entitled to a fair trial without reference to outside influence. Summers, 182 S.W.2d at 721–722.

Today, more than fifty years later, we are still unable to understand why a prosecutor would depart from the well established rules for proper jury argument. From the cases cited in part II. of this opinion, it is clear that the type of argument presented here has never been permitted. In light of the other Orona factors militating against finding the error harmless, declaring this error harmless would have the result of encouraging the State to make improper jury arguments with impunity.

Therefore, when the record as a whole is considered, all five of the Orona factors militate toward a finding of harm in the instant case. Id., 791 S.W.2d at 130.FN2 Appellant's second point of error is sustained. The judgment of the trial court is reversed and the case is remanded to that court. FN2. In concluding the error was harmless, the dissent relies primarily upon the strength of the State's case. Such an analysis is contrary to Orona where we stated: “It is the effect of the error and not the existence of overwhelming evidence or the lack thereof that dictates our judgment.” Id., 791 S.W.2d at 130 (emphasis added). In essence, the dissenter merely restates his argument from Denton, 920 S.W.2d at 313 (Mansfield, J., concurring). Continuing this argument, the dissenter notes that the State's case at the punishment phase was strong. Post, at ––––. However, the strength of the State's case at that phase is wholly immaterial to the instant issue because the improper argument occurred at the guilt-innocence phase.

Judgment of trial court reversed and remanded. McCORMICK, P.J., WHITE and KELLER, JJ., dissent.

MANSFIELD, Judge, dissents.

I disagree strongly with the majority's disposition of appellant's second point of error. Therefore, I respectfully dissent. I would affirm the judgment of the trial court. In his second point of error, appellant contends that the trial court erred in overruling his objection to improper prosecutorial jury argument at the guilt/innocence stage. Appellant argues that the prosecutor “accus[ed] [defense] counsel of acting in bad faith and insincerity in representing [him], which [was] manifestly improper.” The record reflects that, at the time for closing arguments at the guilt/innocence stage, the State waived its opening but reserved the right to close. Appellant's counsel then made his closing argument, during which he accused the State of general incompetence in its evidence-gathering, of being “very sloppy” with “the facts,” and of being “very subject to making a mistake.” The prosecutor, apparently irritated, then began his closing argument, the relevant portion of which was as follows:

THE STATE: Ladies and gentlemen, it is not my job to wish the kind of case that I put on [for] you. I bring you the evidence that has been produced that indicates this man's guilt. What I wish in this case is immaterial. May be material to this man [indicating toward the defendant]. The only thing that I wish is that justice is done in this case. I have taken a very sacred oath, in my opinion, to see that justice is done in every case I prosecute. It is your duty ... to see that justice is done in this case. [Defense counsel] has no such oath, and what he wishes is that you turn a guilty man free. That's what he wishes, and he can wish that because he doesn't have the obligation to see that justice is done in this case. DEFENSE COUNSEL: Your Honor, I want to object. That's striking at the defendant over the shoulders of his attorney. THE COURT: Overruled. DEFENSE COUNSEL: I'd ask the Court to instruct the jury that I have just as sacred an oath to see that justice is done. THE COURT: You do take an oath, but it does not have the wording that he's talking about, Counsel. THE STATE: His oath is to represent the interest of his client to his utmost within the bounds of the law. He's done that. But, see, it's not important to seek truth and justice under his oath. It is mine. DEFENSE COUNSEL: Your Honor, I must object. That's a mischaracterization of my oath. My oath does not say that I'm not supposed to be looking for truth and justice. THE COURT: Overruled.

I do not concede that the prosecutor's argument presented reversible error. But, although I agree with the majority that the trial court erred in overruling appellant's objection to the prosecutor's argument, we need not reverse the judgment of the trial court if we “determin[e] beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Tex.R.App. Proc. 81(b)(2). The purpose of Rule 81(b)(2) is, quite sensibly, to avoid setting aside convictions and punishments “for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967) (discussing identical federal harmless error test). Under the rule, the duty of the appellate court is to determine whether there is a reasonable likelihood that the error, either alone or in context, contributed to the finding of guilt or to the assessment of punishment. Harris v. State, 790 S.W.2d 568, 585 (Tex.Crim.App.1989). In other words, the appellate court must determine whether the trial was an essentially fair one, in which there was little, if any, chance that the conviction and punishment were based on the error that occurred. Id. at 588. This determination is necessarily “one of judgment.” Id. at 585.

In carrying out this task, our primary focus should be on the probable impact of the error on the minds of average jurors. Castillo v. State, 810 S.W.2d 180, 185 (Tex.Crim.App.1990). The strength of the State's case, FN1 the extent (if any) to which the error was emphasized, and the extent (if any) to which the error placed the defendant in a poorer light are all factors that may be logically relevant to consider in the assessment of the error's impact on the jury. Moreno v. State, 858 S.W.2d 453, 466 (Tex.Crim.App.1993); Castillo v. State, 810 S.W.2d at 185; Harris v. State, 790 S.W.2d at 587. In any given case, other factors may also be logically relevant. Finally, we have also held that the “source” of the error, the prosecutor's subjective intent with respect to the error, and the possibility that declaring the error harmless would encourage the State to repeat it, are also relevant factors to consider, despite the lack of a textual basis in Rule 81(b)(2) for such factors. Harris v. State, 790 S.W.2d at 587–588. See Higginbotham v. State, 807 S.W.2d 732, 739 (Tex.Crim.App.1991) (Clinton, J., concurring). FN1. The majority has completely ignored the strength of the State's evidence, although that is the single most important factor in determining an error's impact on the minds of average jurors. “The major consideration in applying the analysis of Harris v. State [790 S.W.2d 568 (Tex.Crim.App.1989) ] is generally whether the amount and nature of the untainted evidence permits a confident inference that the error did not influence the trier of fact.” G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 43.441 at 349 (1995).

Turning to the facts of the instant case, I have no difficulty concluding beyond a reasonable doubt that the prosecutor's argument did not contribute to appellant's conviction or punishment. My conclusion is based on several obvious factors. First, the State's case during the guilt/innocence stage was strong, if not actually overwhelming. Two witnesses positively identified appellant as one of the individuals who beat and kidnapped the victim from the parking lot of a Beaumont convenience store on November 9, 1992. One of those witnesses also testified that appellant told the victim that he was going to kill him.FN2 Finally, a third witness testified that she knew appellant and that he confessed to her sometime shortly after the victim's body was found. FN2. The victim's body was found on the early morning of November 10, 1992, about two blocks from the same convenience store. An autopsy confirmed that the causes of death were gunshot wounds to the victim's head and neck.

Second, the State's case at the punishment stage was also strong. The State's evidence established that appellant had been convicted previously, in Texas courts, of robbery (once) and aggravated robbery (twice). In addition, five witnesses testified that appellant had a bad reputation for being peaceable and law-abiding. Third, the prosecutor's statements that defense counsel “wished for a guilty man to go free” and had “no obligation to see that justice was done,” although inappropriate and unfortunate, did not place appellant in a poorer light in the context of the evidence presented at trial. Fourth, the prosecutor's statements were quickly followed by his admission that defense counsel had represented appellant “within the bounds of the law.” The prosecutor did not allege or imply that defense counsel had suborned perjury or had otherwise engaged in illegal tactics. Thus, the prosecutor's statements did not amount to an impermissible attack on the defense's case, to the extent that reversible error was committed. Fifth, the prosecutor's statements were not repeated or emphasized elsewhere in his lengthy closing argument. Sixth, the trial court's overruling of appellant's objection, although erroneous, is not in itself dispositive in a harmless error analysis. See Orona v. State, 791 S.W.2d 125, 128–130 (Tex.Crim.App.1990). Seventh, I discern nothing in the record that would indicate that the prosecutor was deliberately attempting to taint the trial process. Rather, it seems only that the prosecutor was attempting to respond to the arguments of opposing counsel. For that same reason, I doubt that holding the prosecutor's argument harmless would encourage the State to repeat such an argument with impunity in the future.

In summary, I conclude beyond a reasonable doubt that the prosecutor's argument, though error, was not the type of error that, either alone or in context, mandates reversal under Rule 81(b)(2). There is little, if any, likelihood that the prosecutor's argument changed the result of the trial. Accordingly, I dissent.

Wilson v. State, 7 S.W.2d 136 (Tex.Cr.App. 1999) (Direct Appeal - Affirmed)

Defendant was convicted in the District Court, Jefferson County, 1. Leonard J. Giblin, J., of capital murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, 938 S.W.2d 57, reversed and remanded. Upon remand, defendant was again convicted in the District Court, Jefferson County, of capital murder and sentenced to death. Defendant appealed. The Court of Criminal Appeals, Keller, J., held that: (1) murder conviction was supported by sufficient evidence; (2) sufficient evidence supported finding of defendant's future dangerousness, for sentencing purposes; (3) state's delayed disclosure of exculpatory evidence did not prejudice defendant; and (4) prosecution's statements in closing argument were not improper. Affirmed.

KELLER, J., delivered the unanimous opinion of the Court.

In a trial beginning in January 1998, appellant was convicted of capital murder for the kidnapping and murder of Jerry Williams. Tex. Penal Code Ann. § 19.03(a)(2).FN1 Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 § 2(g). FN2 Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises fourteen points of error. We will affirm. FN1. The statute provides: “A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and ... the person intentionally commits the murder in the course of committing or attempting to commit kidnapping....” FN2. Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure.

I. SUFFICIENCY OF THE EVIDENCE

A. Guilt

In point of error four, appellant complains about the trial court's refusal to grant his motion for an instructed verdict of acquittal. In point of error five, appellant complains that the evidence is legally and factually insufficient to support his conviction. The evidence showed the following: On November 4, 1992, Officer Robert Roberts and other police officers entered appellant's apartment pursuant to a search warrant. Jerry Williams was the confidential informant whose information enabled Roberts to obtain the warrant. Williams entered and left the apartment minutes before the police went in. Appellant, Vincent Webb, FN3 and a juvenile female were present in the apartment. Over 24 grams of cocaine were found, and appellant and Webb were arrested for possession of a controlled substance. Appellant was subsequently released on bond, but Webb remained in jail. Sometime after the incident, appellant told Terry Lewis that someone had “snitched” on appellant, that the “snitch” was never going to have the chance to “to have someone else busted,” and that appellant “was going to get him.” FN3. Webb was sometimes known as “Gun.”

On November 9, 1992, several observers saw an incident take place in the parking lot in front of Mike's Grocery. Vanessa Zeno and Denise Ware were together in the parking lot. Caroline Robinson and her daughter Coretta Robinson were inside the store. Julius Lavergne was outside the store, but came in at some point to relay information to Caroline. The doors to Mike's Grocery were made of clear glass, and Coretta stood by the door and watched. Zeno, Ware, Coretta, and Lavergne watched the events unfold while Caroline called the police. These witnesses testified consistently although some witnesses noticed details not noticed by others. In the parking lot, appellant stood over Williams and beat him. Appellant asked Williams, “What do you want to be a snitch for? Do you know what we do to a snitch? Do you want to die right here?” In response, Williams begged for his life. Andrew Lewis, Terry's husband, was pumping gasoline in his car at the time. Williams ran away from appellant and across the street to a field.FN4 FN4. Zeno characterized the location as a parking lot. The other witnesses characterized it as a field.

Appellant pursued Williams and caught him. Andrew drove the car to the field. While Williams struggled against them, appellant and Andrew forced Williams into the car. At some point during this incident, either in front of Mike's Grocery, across the street, or at both places, Andrew participated in hitting Williams and appellant asked Andrew: “Where's the gun?” Appellant told Andrew to get the gun and said that he (appellant) wanted to kill Williams.FN5 They drove toward a Mobil refinery. Zeno and Ware drove back to their apartments, which were close by, and when they arrived, they heard what sounded like gunshots from the direction of the Mobil plant. FN6

FN5. Some of the witnesses could not determine which man said, “Where's the gun?”—leaving open the possibility that Andrew may have made that statement. FN6. Zeno testified that it was also possible that the sounds could have been produced by manufacturing processes at the Mobil plant.

Sometime after the incident, appellant told his wife, in the presence of Terry Lewis and her husband, “Baby, you remember the nigger FN7 I told you I was going to get? I did it. I don't know if he dead or what, but I left him there to die.” When Terry looked back at her husband, appellant stated, “Don't be mad at Andrew because Andrew did not do it. I did it.”

On November 10, 1992, a bus driver noticed Williams' dead body on the side of a road. The autopsy report concluded that Williams died from close range gunshot wounds to the head and neck. Having known appellant for 16 years, Zeno identified appellant. Lavergne and Coretta recognized Williams but did not know appellant or Andrew. Lavergne subsequently identified Andrew in a photo line-up. At that time, Lavergne told law enforcement authorities that the man he identified in the photo was the “helper,” rather than the primary actor. The other man, who Lavergne described as having a “gerry curl,” made the threats and conducted most of the beating of Williams. Under defense cross-examination at trial, Lavergne testified that the man in the photo (i.e. Andrew Lewis) was the man with the gerry curl and hence, the primary actor. But, upon redirect examination, Lavergne testified that his earlier testimony was in error, and that the man in the photo was not the one with the gerry curl. This contradiction led to questioning that explored an incident involving Lavergne, defense counsel, and appellant. At one time, defense counsel and appellant interviewed Lavergne together, while Lavergne was in jail for an offense unrelated to the present case. No representatives of the district attorney's office were present. Appellant asked Lavergne for his father's name, and appellant asked if Lavergne had a new baby. These questions made Lavergne feel scared and intimidated, and he wondered how appellant could have known about Lavergne's new baby.

In evaluating legal sufficiency, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our review of the record shows ample evidence to support the conviction. Williams was the informant who caused appellant to be arrested for cocaine. Appellant could have inferred from Williams' presence at his apartment immediately before the police arrived that Williams had indeed “snitched” on appellant. That sequence of events established a motive for the murder. Appellant's statements to Terry Lewis and his later statements to Williams show that appellant intended to act upon that motive and kill Williams. Appellant assaulted and kidnapped Williams in front of several eyewitnesses, and later, appellant bragged that he had left the “snitch” to die. The latter statement could have been reasonably interpreted as an admission that appellant had in fact fulfilled his earlier threats to kill the victim. The short time frame in which these events occurred—a matter of several days—also supports the inference that these events were connected. And appellant's references to Lavergne's father and new baby reasonably could have been interpreted as a veiled attempt to influence Lavergne's testimony. Such an attempt to tamper with a witness is evidence of “consciousness of guilt.” See Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App.1996)(opinion on rehearing).

Appellant contends that the only evidence supporting a finding of guilt was inadmissible hearsay testimony that was repudiated by in-court testimony. However, all evidence admitted at trial—including improperly admitted evidence—is considered in a legal sufficiency review. Dewberry v. State, 4 S.W.3d 735, 740–41 (Tex.Crim.App.1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App.1998). Appellant does not explain what evidence he considers to be hearsay or why such evidence should be considered so weak that it would be insufficient to support a conviction under Jackson. Nor does he explain what testimony repudiates the hearsay testimony. And, while we have found the record to contain a number of out-of-court statements that support the verdict, most of those statements were made by appellant, and thus qualify as party-opponent admissions, which are not hearsay. Tex.R.Crim. Evid. 801(e)(2)(A). Likewise, eyewitness testimony concerning appellant's acts of beating and abducting Williams are not hearsay nor is the testimony concerning gunshot sounds.

Appellant also claims that the evidence is insufficient because it fails to exclude every outstanding reasonable hypothesis other than guilt. We have rejected the reasonable hypothesis construct as a measure of legal sufficiency. Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App.1991). In determining whether the evidence is factually sufficient to support the conviction, we must view all of the evidence, without the prism of “in the light most favorable to the prosecution,” and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Although the existence of alternative reasonable hypotheses may be relevant to, but are not determinative in, a factual review, appellant cites no alternative hypotheses in his brief. And we perceive no reasonable hypotheses that would exculpate him. Only two possible hypotheses are present from the record. One is that Webb killed Williams or secured someone other than appellant to do so. Being present in the same drug bust with appellant, Webb possessed a similar motive to harm Williams. And Williams had said to a police officer, “Gun's after me. I need to get out of here.” But, the evidence established that Webb was in jail at the time of the murder. Besides a common motive and William's statement about “Gun,” no evidence in any way implicated Webb in the murder. By contrast, appellant is strongly linked to the murder by his admissions and the kidnapping incident. The only other hypothesis is that Andrew acted alone or as the primary actor in killing Williams. There is no evidence that Andrew acted alone, and there is very little evidence that Andrew was the primary actor. FN8 Most of the evidence points solidly to appellant as the primary actor who carried out the murder. And appellant does not point to, nor do we perceive, any other evidence of significant value exculpating appellant from the murder. The record fails to show that appellant's conviction was against the overwhelming weight of the evidence. The evidence is legally and factually sufficient to support appellant's conviction. Points of error four and five are overruled. FN8. Even if Andrew were the primary actor, appellant could still be guilty as a party. See Texas Penal Code § 7.02(a)(2).

B. Future dangerousness

In point of error six, appellant contends that the evidence is legally insufficient to support the jury's affirmative answer to the future dangerousness special issue.FN9 We utilize the Jackson standard for reviewing the legal sufficiency in this context: we view the evidence in the light most favorable to the jury's finding and ask whether any rational trier of fact could have found beyond a reasonable doubt that there was a probability that appellant would commit further acts of violence that would constitute a continuing threat to society. Brooks v. State, 990 S.W.2d 278, 284 (Tex.Crim.App.1999). Factors relevant to determining whether the evidence supports a finding of future dangerousness include but are not limited to: (1) the circumstances of the capital offense, including the defendant's state of mind and whether he was working alone or with other parties; (2) the calculated nature of the defendant's acts; (3) the forethought and deliberateness exhibited by the crime's execution; (4) the existence of a prior criminal record, and the severity of the prior crimes; (5) the defendant's age and personal circumstances at the time of the offense; (6) whether the defendant was acting under duress or the domination of another at the time of the commission of the offense; (7) psychiatric evidence; and (8) character evidence. Id. (citing Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987)). Although these factors are all relevant, the circumstances of the offense “can be among the most revealing evidence of future dangerousness and alone may be sufficient to support an affirmative answer to that special issue.” Bell v. State, 938 S.W.2d 35, 41 (Tex.Crim.App.1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997). FN9. That issue asks: “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Article 37.071, § 2(b)(1).

A rational jury could find that the circumstances of the crime indicate that appellant would commit future violent criminal acts. The murder in this case was a retaliatory act, committed against a person who exposed appellant's criminal activity. Appellant had been previously arrested twice for possession of cocaine: in April and November 1992. The presence of other individuals in appellant's home along with cocaine in November suggests the probability that appellant was a drug dealer. His act of killing Williams showed appellant's willingness to kill to further his criminal enterprise. FN10 Moreover, appellant's statements to Terry Lewis about “getting a snitch” showed that the crime was a product of forethought and deliberation. And appellant appeared to be the primary actor, rather than someone who was acting under the domination of another. Further, the boldness of appellant's conduct—kidnapping the victim during the daylight hours in front of several witnesses—shows a personality that is especially unlikely to be deterred by the threat of legal sanction. FN10. Even if appellant were simply a drug user, however, his actions evinced a willingness to kill to enable his illegal activity to continue.

Appellant's background and character also indicate that he would probably be a future danger to society. Appellant was convicted of committing two aggravated robberies in 1981. In one of those aggravated robberies, he pointed a shotgun at the clerk of a convenience store. He was convicted of robbery in 1987. Several law enforcement agents who were familiar with appellant's reputation and character testified that appellant's reputation for being a peaceable and law abiding citizen was bad and that their opinion also was that his character was bad. David Froman, a Beaumont police officer, called appellant “a lawless person.” Charles Little, who worked for the Jefferson County Sheriff's Department, stated that appellant was a “very violent person.” And, appellant's statement after the murder, “Baby, you remember the nigger I told you I was going to get? I did it. I don't know if he dead or what, but I left him there to die,” indicates a lack of contrition for the offense. Also, appellant cannot claim his violence to be a passing part of his youth. He was thirty-four years old when he killed Williams. The evidence was legally sufficient to support the jury's finding of future dangerousness. Point of error six is overruled.

II. GUILT / INNOCENCE

A. Extraneous offense

In point of error seven, appellant contends that the trial court erred in admitting an extraneous offense without a proper and timely limiting instruction. In point of error eight, he complains that the trial court erred in admitting the extraneous offense without applying the appropriate Rule 403 balancing test. The offense in question is appellant's November 4th arrest for possession of cocaine. At a pretrial hearing, appellant moved to suppress the cocaine-related evidence on the ground that the evidence was illegally obtained. After the trial court denied that motion, the parties and the trial court discussed the impact of Texas Rules of Evidence 404(b) and 403. The trial court stated that he believed, based upon the evidence at appellant's previous trial, that the extraneous offense would be admissible but reserved final judgment on the Rule 403 issue in case the events at trial required a different ruling: What the Court's going to do, because I recall a lot of the previous trial, based on what the evidence was in the previous trial, the Court's going to grant the State's request that this be admitted for the purpose of motive, but recognizing also that during the second trial it may not develop the same way. I want to have the chance to say it's more prejudicial than it is probative. But barring that, I'm going to admit it as of now; but I may change my ruling as the case develops during the trial. In response, the defense attorney stated “in light of that and in anticipation of an adverse ruling, we would ask for a limiting instruction when the time is appropriate.” The trial court responded, “Okay. And I request the State to approach the bench to advise the Court that he intends to put on that evidence, give the Court an opportunity to change its ruling and to grant the defense request that it not be admitted during the guilt/innocence phase.”

During trial, a hearing was held outside the presence of the jury to determine whether the evidence was admissible. Defense counsel reurged his objections under Rules 404(b) and 403 but did not request a limiting instruction at that time. The defense attorney included, within his objections, a request for the trial court to conduct a balancing test. After hearing all of the defense objections, the trial court stated: “Court's going to overrule the defense objection and allow the extraneous offense of November the 4th to be admitted for the purposes of identity, motive, and intent.” In the presence of the jury, appellant renewed his objections to the extraneous offense but did not request a limiting instruction. The trial court again overruled appellant's objections. A limiting instruction was included in the jury charge.

Appellant has procedurally defaulted any claim with respect to a limiting instruction. The only time appellant ever requested a limiting instruction was at the pretrial hearing. The trial court did not appear to make a final ruling at that hearing. The trial court appeared to reserve the Rule 403 question, making a request for a limiting instruction premature. Appellant's counsel himself stated that he “anticipated” an adverse ruling, implying that such had not yet occurred. And the trial court required the State to approach the bench before delving into the subject matter. The trial court's action appears to be in the nature of a ruling on a motion in limine, which does not preserve error. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex.Crim.App.), cert. denied, 513 U.S. 1060, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994). Moreover, even if the trial court's ruling were interpreted as a final ruling upon the admissibility of the evidence, appellant did not obtain an adverse ruling upon his request for a limiting instruction. The trial court answered appellant's request with “okay,” which was either no ruling or a favorable ruling. Even if the trial court's response were interpreted as a favorable ruling, appellant was required to object when the circumstances appeared to show that the trial court's ruling was not being enforced. See Moore v. State, slip op. at 14 (Tex.Crim.App. April 21, 1999)(failure of court reporter to record bench conferences after trial court had granted motion to have bench conferences recorded).

Further, appellant's request was not specific enough as to time; he simply asked for an instruction “when the time is appropriate” without indicating what he believed the appropriate time to be. The trial court did include a limiting instruction in the jury charge, which is one appropriate time for the instruction. Appellant did not express a clear desire for an instruction to be given contemporaneously with the admission of the evidence. Complaints must be alleged “with sufficient specificity to make the trial court aware of the complaint.” Tex.R.App. P. 33.1(a)(1)(A). As for appellant's allegation that the trial court failed to engage in a Rule 403 balancing test, the record does not show that the trial court failed to conduct such a balancing test. The trial court's discussion of the issue at the pretrial hearing indicates that the trial court had conducted a balancing test and determined that the evidence would be admissible if the presentation of the evidence did not deviate materially from what had occurred at appellant's previous trial. At trial, in the hearing outside the jury's presence, the trial court overruled appellant's objection but did not expressly rule upon appellant's request for a balancing test. Appellant did not ask the trial court to conduct a balancing test on the record, and appellant cannot exclude the possibility that the trial court conducted the balancing test in his mind. Moreover, the extraneous offense evidence was so clearly admissible that we cannot perceive reversible error stemming from any failure to engage in a balancing test. Points of error seven and eight are overruled.

B. Expert testimony

In points of error nine and ten, appellant complains about the trial court's actions surrounding the admission of expert testimony from Steve Thrower, an investigator with the Jefferson County Criminal District Attorney's office. Appellant contends that the trial court failed to conduct a proper gatekeeping analysis and that the evidence was inadmissible under Texas Rule of Criminal Evidence 702. Appellant's only objection regarding these matters occurred in the following colloquy: Q. Now, based on your training and experience, investigator, did you reach a conclusion as to the time that the victim in this case was shot? A. Yes— [DEFENSE COUNSEL]: (Interrupting) Your Honor, I'm going to object to this. I'd like to take this subject under voir dire to determine if he is qualified to determine time, also have possibly a 705 hearing.

In response to defense counsel's request, the trial court convened a hearing outside the presence of the jury. Both the defense and the State elicited testimony from Thrower during this hearing. At the conclusion of the hearing, the trial court stated that he would allow the testimony. Appellant made no objections to the scope of the hearing or the manner in which it was conducted. Nor did appellant raise any objection to Thrower's qualification as an expert witness. Having failed to apprise the trial court of the claims he currently advances on appeal, appellant has procedurally defaulted those claims. Tex.R.App. P. 33.1(a)(1)(A). Points of error nine and ten are overruled.

C. Exculpatory evidence

In points of error eleven and twelve, appellant contends that the trial court erred in failing to grant a continuance or a mistrial due to the State's tardy disclosure of exculpatory evidence. On February 18, 1998, at the conclusion of jury selection and five days before trial testimony began, the State disclosed that Williams had told Officer Clay Woodward that “Gun” was after him. According to the State's letter disclosing that fact, the State had believed that “Gun” referred to appellant and had been unaware that “Gun” was Webb's street name until the State interviewed Webb that day. At trial, Webb testified that his street name was in fact “Gun.” Woodward testified at trial that Williams related that “Gun” was after him. Woodward further testified that he asked Williams, “Who is Gun?” Williams replied, “You know, Big Merv, Marv, the guy you-all busted.” The November 4, 1992 search warrant specified that the police expected to find “A black male known to Affiant as Gun. A black male known to affiant as Marvin Lee Wilson DOB 1/5/58. Described as 5'10”, 175 # , and person or persons whose idetities (sic) are unknown to Affiant.” The defense had previously been aware of the search warrant and had also known that Webb was arrested along with appellant in the drug raid occurring on November 4. During the State's rebuttal portion of the guilt-innocence phase of the trial, the trial court conducted its hearing on the qualification of Thrower as an expert witness (see also part B above). During this hearing, defense counsel received several documents that were relied upon by Thrower in forming his opinions. One of those documents was a report by investigator C.D. Ashworth that was made on November 11, 1992. The report identified Webb as “Gun”: “The one on the floor in the living room was identified as Vincent Dwayne Webb, aka-Gun and the one in the kitchen was identified as Marvin Lee Wilson.” Based upon this information, defense counsel asked for a mistrial or a continuance. Defense counsel asserted that the defense team had been conducting an exculpatory evidence investigation since the State's disclosure on February 18, 1998 but needed more time to follow leads. The following colloquy ensued: THE COURT: But Mr. Gun was here to testify. [DEFENSE COUNSEL]: He did, Your Honor. THE COURT: I don't understand what more would you need for a continuance. [DEFENSE COUNSEL]: Well, his friends, his other gang members, his other associations, things like that. After further discussion, the trial court denied appellant's motions for mistrial and continuance.

Appellant now claims that the State's tardy disclosure violated his due process right to the disclosure of exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, appellant has procedurally defaulted his claim. To preserve error, a complaint must be made to the trial court in a timely fashion. Tex.R.App. P. 33.1(a)(1). To be timely, a complaint must be made as soon as the grounds for complaint is apparent or should be apparent. Hollins v. State, 805 S.W.2d 475, 477 (Tex.Crim.App.1991). That subsequent events may cause a ground for complaint to become more apparent does not render timely an otherwise untimely complaint. Id. The State disclosed five days before the beginning of trial testimony the pertinent evidence, which consisted of: (1) Williams' statement about “Gun” being after him and (2) that Webb's street name was “Gun.” Appellant was alerted at that time of the need to investigate Webb's friends and associates, and defense counsel stated that such an investigation was in fact begun after the State's disclosure. But appellant did not request a continuance before testimony began, nor did he request a continuance before he rested his case-in-chief. The only new information learned by appellant during the State's rebuttal was that the State first possessed evidence indicating that Webb was known as “Gun” much earlier than the State had represented in its February 18 letter. Such new information about when the State knew what it knew did not have any tendency to produce leads that had before been unknown to the defense team. Appellant acted untimely by waiting to request a continuance until after jeopardy had attached and both sides had rested their cases-in-chief.

Moreover, even if we considered appellant's complaint to be timely, his claim would fail. To prevail on his Brady claim, appellant must show that the State's tardy disclosure prejudiced him. Little v. State, 991 S.W.2d 864, 867 (Tex.Crim.App.1999). To show prejudice, appellant must show a reasonable probability that, had the evidence been disclosed to the defense earlier, the result of the proceeding would have been different. Id. at 866. For two reasons, appellant does not satisfy that showing. First, appellant had long been aware of other evidence that Webb possessed a motive to murder Williams. Webb was arrested along with appellant in the November 4, 1992 cocaine bust in which Williams was the confidential informant. And the arrest warrant appears to identify two men, “Gun” and appellant.FN11 Knowing in 1992 that Webb had a motive for murder, appellant had ample time to conduct an investigation. Second, appellant failed to identify at trial what witnesses, other than Webb, would be called (presumably because he did not know). And appellant does not now explain, or point to anywhere in the record that explains, what witnesses he might have called had his attorneys been given further time to investigate. And appellant has not shown any reason to believe that additional witnesses exist. Points of error eleven and twelve are overruled. FN11. Because no descriptive characteristics are given for “Gun” while appellant's name, height, and weight are given after “Gun” is mentioned, a possible interpretation of the language in the warrant could be that appellant's name and description were intended to describe the person known as “Gun.” However, parallel language in the warrant tends to discredit that interpretation: both “Gun” and appellant were introduced as “A black male known to affiant as ....“—indicating that two people were in fact being described.

D. Jury argument

In points of error thirteen and fourteen, appellant contends that the prosecutor engaged in an argument that improperly struck at appellant over the shoulders of counsel and that argued matters outside the record. The complained-of argument, along with appellant's objections and the trial court's rulings, is set out as follows: So, we go to Skunk No. 4. We go to—and it was not a skunk I expected. It was not a detour that I expected. And that detour was Julius Lavergne. And let me tell you, Julius Lavergne and the way that you, unfortunately, got the evidence that Julius Lavergne had to give you, it was truly unfortunate. To get the best information, ladies and gentlemen, from this witness stand is to try to get the case—try to get the case tried in a timely manner and don't fool with the witnesses. Don't— [DEFENSE COUNSEL]: (Interrupting) Your Honor, I'm going to object to counsel's comment, “fool with the witness,” as striking at the defendant over counsel's shoulder. THE COURT: Sustain the objection. [DEFENSE COUNSEL]: Would ask the jury be instructed to disregard counsel's comment. THE COURT: Jury disregard the comment about the defense lawyers fooling with the witnesses. [DEFENSE COUNSEL]: And we'd move for a mistrial. THE COURT: Mistrial denied.

[PROSECUTOR continues]: You know, I have the same obligation to try to bring you good, credible witnesses. I have that obligation. And I cannot perform a showup like the kind—the evidence that you heard in this trial about Julius Lavergne being shown—this man being shown July Lavergne in the jail and bring that evidence to you. I couldn't do that. I couldn't. Picture this scenario. You got a guy sitting in jail, a Julius Lavergne, a young man, kid, who knows what he knows. I don't think he's bright. You folks may think he is. I think he's courageous, but he probably wasn't too courageous when he gets pulled out of that cell by these defense lawyers and he gets brought face-to-face with a person that he had previously testified in another— [DEFENSE COUNSEL]: (Interrupting) Your Honor, we're going to object to counsel's line of questioning here as referring to matters outside this record. THE COURT: He's not questioning right now. You're saying he's questioning. I don't understand your objection. [DEFENSE COUNSEL]: Well, he's stating testimony that is outside the record. THE COURT: Sustain the objection that part. [DEFENSE COUNSEL]: I'd ask the jury be instructed to disregard counsel's comment. THE COURT: Jury disregard the comment—which part is outside the record? [DEFENSE COUNSEL]: Where he was saying there was some kind of—brought out, showed things, contradicting testimony. THE COURT: I'll sustain the objection, to be safe. [DEFENSE COUNSEL]: Ask the jury to be instructed to disregard counsel's argument. THE COURT: Jury disregard the argument that the defense counsel related to. [DEFENSE COUNSEL]: And move for a mistrial. THE COURT: Mistrial denied.

Four permissible areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to the argument of opposing counsel; and (4) pleas for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim.App.1996). We have held consistently that arguments attacking defense counsel are improper because they unfairly inflame the jury against the accused. Id. at 59–60 (discussing cases). But the present case is distinguishable from those cases because the prosecution's argument was based upon the testimony of a witness. Lavergne testified that defense counsel told him that appellant was not the primary actor in the kidnapping incident. Lavergne also testified that he was brought into a face-to-face meeting with the defendant and his attorneys. During this meeting, Lavergne was asked whether appellant was the man with the gerry curl or whether that man was the one in the photograph (Andrew Lewis). The evidence of appellant and his attorneys' involvement was relevant to show why Lavergne initially testified that the man in the photograph was the primary actor and why Lavergne later changed his testimony to say that appellant was the primary actor. The complained-of arguments were summations of the evidence and reasonable deductions from the evidence. Contrary to appellant's contention in point of error fourteen, the arguments were not outside the record. Contrast id. at 60 (attacks upon defense counsel were based upon matters outside the record). In the present case, the witness changed his testimony and indicated that he had been influenced by defense counsels' conduct. The State was entitled to discuss those events to explain why Lavergne changed his testimony. Moreover, the testimony showed that appellant participated in some of the conduct involved. To the extent that appellant participated in the conduct, references to defense counsels' participation did not constitute an unfair strike at the defendant.

Further, even if the prosecutor's comments were improper, the trial court's instructions to disregard cured any error. Where arguments that strike over the shoulders of defense counsel are not particularly egregious, an instruction to disregard will generally cure the error. Dinkins v. State, 894 S.W.2d 330, 357(Tex.Crim.App.1995), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59.

III. PUNISHMENT

In points of error one and two, appellant contends that the death penalty scheme violates the United States and Texas constitutions by failing to require that a jury be informed that a person sentenced to life in a capital case would not be eligible for parole for thirty-five years. In point of error three, appellant contends that the trial court erred in denying appellant's request that the jury be instructed that a person sentenced to life in a capital case would not be eligible for parole for thirty-five years. We have held consistently that the United States and Texas constitutions do not require that a jury in a capital case be given such information. Jones v. State, 982 S.W.2d 386, 394 (Tex.Crim.App.1998)(citing Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.)(plurality op.), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995) and progeny). Points of error one through three are overruled. The judgment of the trial court is affirmed.

Wilson v. Cockrell, 70 Fed.Appx. 219 (5th Cir. 2003) (Habeas)

Following affirmance of his capital murder conviction, 1. 7 S.W.3d 136, the United States District Court for the Eastern District of Texas dismissed defendant's federal habeas corpus petition. Upon defendant's application for a certificate of appealability (COA), the Court of Appeals held that: (1) defendant failed to make a substantial showing of a Batson violation, and (2) defendant failed to make a substantial showing that his trial counsel provided ineffective assistance. Application denied.

PER CURIAM.

Petitioner-Appellant Marvin Lee Wilson, a Texas death row inmate, is before us seeking a certificate of appealability (COA) to contest the district court's grant of summary judgment dismissing his federal habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We deny COA.

I FACTS AND PROCEEDINGS

Wilson was convicted and sentenced to death for the murder of Jerry Williams during the course of a kidnaping. See Wilson v. State, 938 S.W.2d 57, 58 (Tex.Crim.App.1996). On direct appeal, the Texas Court of Criminal Appeals (CCA) reversed because of improper jury arguments by the prosecutor and remanded for a new trial. Id. at 58-62. Following remand, Wilson was retried and was again convicted and sentenced to death. Wilson v. State, 7 S.W.3d 136, 139 (Tex.Crim.App.1999). The discrete facts of Wilson's crime as reflected by the evidence were summarized by the state appellate court on direct appeal. Id. at 139-41. Wilson's conviction and sentence were affirmed on direct appeal, id. at 141-48, and he filed a state habeas application, which the CCA denied on the basis of the trial court's findings. After exhausting his state remedies, Wilson filed the instant § 2254 petition in which he argued that (1) the trial court erred in failing to instruct the jury that if he were sentenced to life in prison, he would not be eligible for parole until he had served 35 years; (2) the statutory definition of kidnaping contained in the Texas capital murder statute is unconstitutional and overly broad; (3) the prosecutor exercised peremptory strikes in a racially discriminatory manner ( “Batson claim”); (4) the State violated his right to be free from an unreasonable search and seizure by introducing evidence seized pursuant to an invalid search warrant; and (5) counsel provided ineffective assistance at both the trial and appellate level (“ineffective assistance claim”). The state filed a motion for summary judgment, arguing that Wilson's claims were procedurally barred or were otherwise without merit. The district court concluded that all of Wilson's claims were without merit, granted the state's motion for summary judgment, and dismissed Wilson's § 2254 petition. Wilson timely filed notices of appeal and a request for COA, which the district court denied.

II ANALYSIS

A. AEDPA Review

To obtain a COA, Wilson must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When, as here, the district court's dismissal is on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Determination whether to issue a COA does not involve full consideration of the merits of the habeas claims; instead, it “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A petitioner must prove “something more than the absence of frivolity or the existence of mere good faith,” but he is not required to show that he would succeed on appeal. Id. at 1040 (quotation marks and citation omitted). We review the district court's application of the AEDPA to the petitioner's constitutional claims and ask whether the district court's resolution of those claims was debatable among jurists of reason. Id. at 1039. The AEDPA provides a scheme of deference to be used in reviewing claims in a state prisoner's habeas corpus petition that were adjudicated on the merits in state-court proceedings. See 28 U.S.C. § 2254(d); see also Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir.2000). The AEDPA's scheme of deference for claims thus adjudicated requires a federal court to defer to the state court's resolution of both pure questions of law and mixed questions of law and fact unless the state court's determination was “contrary to” or an “unreasonable application” of clearly established federal law as determined by the Supreme Court. See Hill, 210 F.3d at 485 (internal quotation marks omitted); see also § 2254(d)(1). A state court's decision is contrary to clearly established federal law if it “applies a rule that contradicts the governing law set forth” in Supreme Court cases or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Court's] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision involves an unreasonable application of clearly established federal law if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 407-08. Factual findings by the state court are presumed to be correct in the absence of clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1).

Here, the district court found that the state habeas court's findings and conclusions were not entitled to deference under the AEDPA because the judge who presided over Wilson's habeas proceeding had not presided over his trial. Nevertheless, in addressing Wilson's Batson claim, the court did defer to the trial court's findings. In cases governed by pre-AEDPA law, we have held that factual findings following a paper hearing by a judge other than the one who presided at trial are not entitled to the presumption of correctness. See Salazar v. Johnson, 96 F.3d 789, 792 (5th Cir.1996) (because the state habeas judge was not the judge at the state trial, the paper hearing was not an adequate and fair hearing); Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir.1996) (same, but noting that a “paper hearing” conducted in a habeas proceeding by a judge other than the trial judge was not automatically prevented from receiving the presumption of correctness); Nethery v. Collins, 993 F.2d 1154, 1157 n. 8 (5th Cir.1993). We have not, however, addressed in a precedential post-AEDPA opinion, the treatment to be afforded a state court's factual findings when, as here, they were based on a paper record with conflicting affidavits and different judges.FN1 We need not do so here because the resolution of that issue is not determinative of the outcome in this case: The state habeas court's factual findings are supported by the remainder of the record and Wilson cannot rebut them. Even if we were to review Wilson's claims de novo, we would not conclude that he has made a substantial showing of the denial of a constitutional right in connection with any of the claims we consider today. FN1. We granted a COA on this issue in Bass v. Cockrell, No. 02-20289. The case is now in the briefing stages.

In seeking a COA from us, Wilson has briefed only two of the claims he made in the district court, viz., the Batson claim, and the ineffective assistance claim. In so doing, Wilson has abandoned all other claims previously advanced. To be preserved, arguments must be briefed, Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993), and claims not adequately argued in the body of the brief are deemed abandoned on appeal. Id. at 224-25. Wilson is deemed to have abandoned all claims not briefed on appeal, preserving only his Batson claim and his ineffective assistance claim.

B. Batson Claim

Wilson argues that the prosecutor exercised peremptory strikes in a racially discriminatory manner. The Equal Protection Clause forbids a prosecutor to challenge potential jurors solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court outlined a three-step process for evaluating defense claims that a prosecutor used peremptory challenges in a manner violative of the Equal Protection Clause: (1) A defendant must make a prima facie showing that the prosecutor has exercised his peremptory challenges on the basis of race; (2) the burden then shifts to the prosecutor to articulate race-neutral reasons for striking the veniremen in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), citing Batson, 476 U.S. at 96-98. A defendant may establish a prima facie case of discrimination solely on the basis of evidence concerning the prosecutor's exercise of peremptory challenges. Batson, 476 U.S. at 96. To do so, the defendant must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to veniremen of that group. The defendant must also demonstrate that “these facts and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude” the veniremen on account of race. Id.; accord, United States v. Clemons, 941 F.2d 321, 323 (5th Cir.1991). The trial court should consider all relevant circumstances in determining whether the defendant has established a prima facie case. Factors to be considered by the trial court include a “pattern” of strikes against veniremen of the challenged racial group and the prosecutor's questions and statements during voir dire and in exercising challenges. The Supreme Court expressed confidence in the ability of trial courts to supervise voir dire and determine whether the circumstances create an inference of discrimination. Batson, 476 U.S. at 96-97.

Wilson contends that the prosecution used peremptory challenges to eliminate black veniremen but accepted non-black veniremen who possessed the same characteristics as the eliminated Blacks. Accordingly, he insists the race-neutral reasons offered by the prosecutor for excusing prospective black jurors were pretextual. In Miller-El, a case involving a Batson claim and the standard for the issuance of a COA, the Supreme Court held that “[s]ince Miller-El's claim rest[ed] on a Batson violation, resolution of his COA application require[d] a preliminary, though not definitive, consideration of the three-step framework mandated by Batson.” Miller-El, 123 S.Ct. at 1040. In Miller-El, the State conceded that Miller-El had established a prima facie showing of discrimination, and Miller-El acknowledged that the State proceeded through step two of the Batson analysis by proffering facially neutral explanations for the strikes. Id. Thus, the third step presented the determinative question, i.e., whether Miller-El had carried his burden of showing purposeful discrimination. Id. The Supreme Court held that “[i]n the context of the threshold examination [of a] Batson claim the issuance of a COA can be supported by any evidence demonstrating that, despite the neutral explanation of the prosecution, the peremptory strikes in the final analysis were race based,” id. at 1041, and stated that “[i]t goes without saying that this includes the facts and circumstances that were adduced in support of the prima facie case.” Id. The Court held that “[o]nly after a COA is granted will a reviewing court determine whether the trial court's determination of the prosecutor's neutrality with respect to race was objectively unreasonable and ha[d] been rebutted by clear and convincing evidence to the contrary.” Id. The Court also held that “[w]hether a comparative juror analysis would demonstrate the prosecutors' rationales to have been pretexts for discrimination is an unnecessary determination at this stage” of the appeal process. Id. at 1043. Rather, explained the Supreme Court, “[a]t this stage, ... we only ask whether the District Court's application of AEDPA deference, as stated in §§ 2254(d)(2) and (e)(1), to the petitioner's Batson claim was debatable amongst jurists of reason.” Id. at 1041-42.

The Supreme Court concluded in Miller-El that the district court erred when it “accepted without question” the fact-findings made by the state trial court and when it failed to give full consideration to the substantial evidence the petitioner put forth in support of his prima facie case, id. at 1042, and that we had evaluated the petitioner's application for a COA in the same way. Id. The Court held that such analysis was error because it required the petitioner to meet the requirements for actual habeas corpus relief, rather than those needed for the issuance of a COA. Id. The Court further reasoned that rather than deciding the merits of the appeal, we should only have inquired whether a “substantial showing” of the denial of a constitutional right had been proved. Id. When read in isolation, portions of the Court's language in Miller-El might suggest that an appellate court lacks jurisdiction to deny a COA to a petitioner based on the merits of the petition; yet the court in Miller-El also stated that the primary consideration at the COA stage is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. Further, the Court said that the “issuance of a COA must not be pro forma or a matter of course,” and that a petitioner seeking a COA must prove “something more than the absence of frivolity[.]” Id. at 1040 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Thus, the Supreme Court left open the possibility that COA may be denied if there can be no debate regarding the underlying constitutional claim under the facts as advanced by the petitioner. In the instant case, Wilson and the State appear to agree that Wilson established a prima facie case of discrimination, and that the State presented race-neutral explanations to rebut that prima facie case. Therefore, we turn to the third step of Batson. We examine whether Wilson has made a substantial showing that the State engaged in purposeful discrimination when it exercised various peremptory challenges. [1] Wilson first contends that the prosecution improperly struck Euraline Andrus because (1) “[s]he was extremely weak on the death penalty;” and (2) she had two sons who, she believed, were treated unfairly by the criminal justice system. We consider the latter justification first. Wilson claims that this second explanation for striking Andrus was a pretext for discrimination. In support of this contention, Wilson argues that the State failed to exclude two similarly-situated jurors: John Murphy, who also felt betrayed by the legal system, and Lisa Ann Phillips, who had friends and family who were serving time. Contrary to Wilson's contentions, Andrus (who was stricken), Murphy, and Phillips (who were not) did not have the same or similar attitudes about the criminal justice system. Murphy felt “betrayed” by it, not because he or someone else he knew had been treated unfairly, but because “[l]ife in prison” did not mean “life” but some lesser sentence (“15, 20 years; and then they get paroled”). Murphy related that when he sat on a jury previously, the jurors were under the impression that the defendant was to be sentenced to life, only to find out later that he would probably receive a lesser sentence. He stated that he and the other jurors felt “betrayed.”

Phillips admitted that she had friends and family in the penitentiary; however, unlike Andrus, Phillips expressed no animosity towards the justice system or the prosecutors who participated in their cases; whereas Andrus felt that her sons had been treated unfairly by the arresting officer and the district attorney's office. Wilson has failed to demonstrate that Andrus, Murphy and Phillips were similarly situated. As a result, it seems clear that the State's second asserted justification for excluding Andrus (her attitude toward the criminal justice system) was a legitimate, race-neutral explanation. Therefore, without even examining the State's other justification for striking Andrus (her attitude toward the death penalty), we can conclude that Wilson has not made a substantial showing that the exclusion of Andrus was discriminatory. See Moore v. Keller Indus., 948 F.2d 199, 202 (5th Cir.1991) (concluding that “because multiple reasons led [the defense] counsel to strike [two jurors] the existence of other jurors with some of their individual characteristics does not demonstrate that the reasons assigned were pretextual”); see also Alverio v. Sam's Warehouse Club, Inc., 253 F.3d 933, 941 (7th Cir.2001) ( “[W]here a party gives multiple reasons for striking a juror, it is not enough for the other side to assert that the empaneled juror shares one attribute with the struck juror.”).

Wilson next contends that the State violated Batson when it struck Tammy Ruffin because she was too anxious to serve on the jury, but failed to strike Kellie Meaux, Robert Huckaby, Viole Willis, Jack Oliver, Clifford Tomplait, Christine Thompson, or Michael McFarland, each of whom expressed a desire to serve on the jury. Our review of the record satisfies us that Ruffin did not have the same or similar attitude toward serving as did the other seven identified by Wilson. Ruffin, who was stricken, acknowledged that she did not believe in the death penalty, but went on to explain that she wanted to serve on the jury because she was a “starting paralegal” and that she was “trying to learn certain things.” In contrast, Meaux, who professed a belief in the death penalty, stated that she did not “have a problem with being on the jury.” Likewise, Huckaby, who also expressed a belief in the death penalty, said that although he did not particularly want to serve on the jury, he understood that it was his “duty to serve” and that he “believe[d] in that.” And, Willis, another acknowledged believer in the death penalty, declined the opportunity to be excused on account of his age, explaining that he believed that it was his “civic duty” to serve on a jury and that “anytime that you're asked to serve your community that you should do so.” Oliver, another proponent of the death penalty, explained that the reason he wanted to serve on the jury was that he thought more people “ought to try to serve on a jury instead of trying to avoid it” and that he had the “time and know-how to do it.” Thompson, who considered the death penalty to be warranted in certain cases (“if a person messes with a child, that, to me, deserves a death penalty”), was asked whether she wanted to serve on the jury, to which she responded somewhat equivocally, “I think so.”

Tomplait, yet another death penalty proponent, stated that he was willing to serve on the jury if he were needed because he is “retired” and “available,” in contrast to some others for whom “it would be a hardship on them.” He explained further that he was an “American and [that] we have a jury system and the jury system is made up of citizens.” Tomplait also ventured the belief that it was his responsibility to serve and that he “always tried to be a responsible person.” McFarland, too conceded a belief in the death penalty, relating that he was willing to serve on the jury “more so than not” and explaining that he had never served on a jury before and that he would not take jury service lightly because a “man's life [was] at stake.” Although McFarland said that he did not necessarily want to participate in a process that could result in the death of another individual, he understood that it was his civic duty and he was willing to do that. Regarding Ruffin, Wilson appears to confuse the desire to sit on the jury for her own purposes, i.e., to learn about the law, with the desires of the other seven veniremen to fulfill their civic duties. Ruffin is not comparable to these other veniremen.FN2 FN2. Furthermore, the State offered two additional reasons for striking Ruffin: She does not believe that a first degree felony is a serious crime, and she appeared to be “too immature mentally to understand the seriousness of this trial.” Wilson does not suggest that these additional reasons are pretextual; in fact, both age and the prosecutor's belief that a juror would have trouble understanding the complexities of the case have been recognized as legitimate reasons for peremptorily striking a potential juror. Clemons, 941 F.2d at 325(age); United States v. Hinojosa, 958 F.2d 624, 632 (5th Cir.1992) (trouble understanding the complexities of the case).

In Wilson's next Batson claim he asserts that the State committed a violation when it struck Cynthia Robertson because she was equivocal about the death penalty and her job exposed her to “fact situations that causes inmates to go to the penitentiary,” but failed to strike Lattell Guidry whose answers on the jury form were equivocal with regard to the death penalty and whose drug counseling clients often went to prison. We do not view these two potential jurors as being sufficiently similar for purpose of a Batson comparison. Robertson and Guidry did not have similar beliefs about the death penalty. Although both said that they believed in the death penalty, only Robertson stated that she did not want to have any part in the death-penalty process and did not want to be on the jury. Even though Guidry initially said that she did not want to be a part of the trial process, she ultimately decided that she could participate and fulfill her civic duty. It is true that both hold jobs that bring them in contact with the criminal element, but Robertson works in the prison system whereas Guidry is a drug counselor. Accordingly, Wilson's attempt to compare Guidry and Robertson in support of his Batson claim fails. Wilson next contends that the State violated Batson when it offered an additional reason for striking Robertson, i.e. for not knowing that the trial consisted of two phases (the guilt/innocence and punishment phases), but failed to strike Dianna Kasper, who was also unaware of the different phases. Wilson's attempt to compare Kasper and Robertson fails to provide support for his Batson claim. Even after being questioned by the State and defense counsel, Robertson still exhibited a lack of sufficient understanding of the murder trial process. For example, Robertson was initially unaware of the fact that the jury could convict Wilson of the lesser-included offense of kidnaping, and the rule that the defendant never has the burden of proof. Robertson also indicated that, notwithstanding a defendant's constitutional right not to testify, she would like to hear from the defendant during trial.

In contrast, Kasper had a much more sophisticated understanding of the trial process. She said that she was aware that Wilson could be convicted of the lesser-included offense of kidnaping and that she did not expect the defendant to testify. It is apparent from the record that the State's decision to strike Robertson, but not Kasper, does not constitute evidence of discrimination. The prosecutor's belief that Robertson had trouble understanding the complexities of the case is a race-neutral reason for removing her from the jury. Hinojosa, 958 F.2d at 632. Continuing, Wilson next asserts that the State improperly struck Joseph Tackwood because (1) he did not understand the difference between guilt beyond a reasonable doubt and guilt beyond all doubt, (2) he wore dark sunglasses, and (3) he had never thought about serving on the jury, even after the general voir dire. Wilson claims that first reason given by the State was a pretext for discrimination. Wilson relies on the fact that the State did not strike Xuan Duong and Viole Willis, non-African-American veniremen, who (according to Wilson) also expressed confusion about the concept of guilt beyond a reasonable doubt. We need not determine whether Tackwood, Duong, and Willis had similar difficulties understanding the State's burden of proof. As we have seen, the State had alternative reasons for striking Tackwood from the jury. Tackwood's appearance (wearing dark sunglasses) and the prosecutor's inability to make eye contact (“I couldn't see his eyes”) are legitimate, race-neutral grounds for a peremptory strike. See United States v. Bentley-Smith, 2 F.3d 1368, 1374 (5th Cir.1993) (challenges may be based on subjective factors such as lack of eye contact); Clemons, 941 F.2d at 324-25 (juror's physical appearance is a legitimate basis for a peremptory strike). Wilson does not contend that these rationales applied to any other juror. Because the State clearly had a race-neutral rational for striking Tackwood, Wilson cannot make a substantial showing that the exclusion of Tackwood was racially discriminatory. See Moore, 948 F.2d at 202.

Although Wilson next complains about the striking of Lois Hayward, who is black, he concedes that she was struck for medical reasons. Wilson likewise contests the State's proffered reasons for striking Alfred Thomas: that he did not believe in the death penalty and that he knew Wilson's wife and considered her to be truthful. And Wilson complains of the State's striking Mary Nixon for refusing to say where her husband worked, for being combative and abrupt with both State and defense counsel, and for displaying an attitude that was not conducive to working with 11 other people. Wilson does not now contend, however, that the use of these peremptory strikes violated Batson; neither does he attempt to draw any similarities between Thomas and Nixon on the one hand and, on the other hand, the veniremen who were not stricken.

Wilson does insist that the State violated Batson when it struck Fay Gabriel for having served on a hung jury, yet failed to strike Dianna Kasper who also had served on a hung jury. The prosecutor explained the difference: Gabriel was stricken because she appeared to be “very proud of the fact that she hung that jury up.” Contrary to Wilson's contention, Gabriel and Kasper did not exhibit the same or similar attitude. Gabriel volunteered that in her prior jury service, she had “held out” for a not guilty verdict, causing the judge to declare a mistrial. Kasper, in contrast, did not claim to be the juror whose vote produced the hung jury. Moreover, a prosecutor's perception of a venireman as strong-willed and obstinate, and the prosecutor's belief that a venireman might not engage in meaningful deliberations, are legitimate grounds for a peremptory strike. Washington v. Johnson, 90 F.3d 945, 954 (5th Cir.1996). In sum, Wilson has failed to make a substantial showing of the denial of a constitutional right with regard to his Batson claim. Accordingly, COA is denied on it.

C. Ineffective Assistance Claim: Trial Counsel

To demonstrate that he received ineffective assistance at trial, a defendant must show, under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that counsel's assistance was deficient and that the deficiency prejudiced his defense. A failure to establish either deficient performance or resulting prejudice defeats the claim. Id. at 697. To demonstrate a deficient performance, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. To demonstrate prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, id. at 694, and that counsel's errors were so serious that they rendered the proceedings unfair or the result unreliable. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). As claims of ineffective assistance of counsel involve mixed questions of law and fact, they are governed by the standards set forth in § 2254(d)(1). See Briseno v. Cockrell, 274 F.3d 204, 206-08 (5th Cir.2001).

Wilson argues first that his trial counsel was ineffective for failing “to gather the probable cause affidavits that were a matter of public record.” He insists that in one of the probable cause affidavits, there is a reference to an individual named “Gun.” Wilson contends that “Gun” was a member of a gang called the Bloods. This claim is at best conclusional. Wilson fails entirely to explain how counsel's failure to gather the affidavits and to ascertain that one or more of them contained references to “Gun” would have altered the outcome of trial. Conclusional allegations of ineffective assistance of counsel are insufficient to establish habeas relief. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.2000). Here the defense was well aware of “Gun,” knew that the search warrant referenced someone with the nickname “Gun,” and knew that “Gun” was, or might have been, a member of the Bloods. This claim is without merit.

Wilson next advances a one-sentence argument that his trial counsel was ineffective for failing to request a charge on the lesser-included offense of murder. In a capital case, the jury must be permitted to consider a verdict of guilt of a noncapital offense when the evidence presented would support such a verdict. Beck v. Alabama, 447 U.S. 625, 634-38, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Accordingly, a “defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Id. at 635 (citations omitted); see Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.1988). In Beck, the Court reasoned that precluding the jury from convicting a defendant of a non-capital offense, thereby forcing either conviction of a capital offense or acquittal, undermines the reliability of the jury's verdict. Beck, 447 U.S. at 637, 642-43. The mandatory instruction on a lesser included noncapital offense provides a third option as a safeguard against the risk of an “all or nothing” jury verdict on the capital offense. Id.; see also Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984).

We have held that when a claim turns on application of state law rather than federal law, a jury instruction on lesser included offenses is mandated if, under state law as applied to the facts of the case, a rational juror could vote to convict the defendant of the lesser offense and to acquit on the greater. Hill v. Black, 932 F.2d 369, 374 (5th Cir.1991). In Texas, murder is a lesser included offense of capital murder. Tex. Penal Code Ann. § 19.03(c). Nonetheless, Wilson has failed to direct our attention to any evidence in the record that would support a verdict of murder. Wilson's bald assertion that a lesser-offense instruction was warranted is insufficient to earn him habeas relief. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990) (conclusional allegations insufficient to warrant § 2254 relief). As Wilson cannot show that he was entitled to a lesser-included-offense instruction, he fails to demonstrate that counsel was ineffective for failing to request such an instruction. Furthermore, a lesser-included-offense instruction for murder would have been inconsistent with the defense theory that Wilson did not murder Jerry Williams; that instead he was killed by “Gun” or someone else at “Gun's” direction. Thus, in addition to lack of entitlement, the failure of counsel to request a murder instruction was a legitimate strategic choice, on its own sufficient to eschew deficient performance. See Turner v. Johnson, 106 F.3d 1178, 1187 & n. 40 (5th Cir.1997). [6] Wilson's next ineffective-assistance claim is that trial counsel performed deficiently when he “showed up at jail and improperly pressured a material witness to change his story.” Wilson contends that this “evidence was repeatedly argued by the State during its closing arguments.” Wilson confusingly argues that the “fact that the jury was to consider future dangerousness when coupled with these jailhouse visits, surely prejudiced” his rights.

Following the homicide, the material witness, Lavergne, identified Lewis in a photographic line-up and told law enforcement agents that the man he identified in the photo was the “ ‘helper’ ” rather than the “primary actor.” Wilson, 7 S.W.3d at 140. According to Lavergne, the other man, who Lavergne described as having a “ ‘gerry curl,’ ” made the threats and conducted most of the beatings. When the same photograph of Lewis was shown to Lavergne at trial, however, he testified that the person pictured was the one with the gerry curl and hence the primary actor, even though Lavergne had identified Lewis as the “helper” rather than the primary actor when he was shown the picture of Lewis at Wilson's first trial.

This contradiction in Lavergne's testimony prompted further questioning which eventually revealed that defense counsel had visited Lavergne three times while he was in jail on an unrelated offense. This revelation allowed the State to suggest that defense counsel had pressured Lavergne to change his testimony with regard to who was the primary actor. The State was also able to elicit the facts that (1) outside the presence of the prosecutor, defense counsel had shown Lavergne a photographic line-up; and (2) Wilson was present on this occasion and asked Lavergne for his father's name and whether he had a new baby. Lavergne testified that Wilson's questions scared and intimidated him “[a] little bit.” Defense counsel's meetings with Lavergne were reiterated during the State's closing arguments. Even if we assume that Wilson's trial counsel had attempted to alter Lavergne's testimony, Wilson does not argue that, but for counsel's engaging in such behavior, he (Wilson) would not have been found guilty of capital murder or, even if found guilty, he would not have been sentenced to death. All that Wilson asserts is the bald conclusion that his “rights” were “prejudiced.” In addition, Wilson's argument - that counsel's jailhouse visits, when coupled with the issue of future dangerousness, established prejudice - is nonsensical. Again, conclusional allegations of prejudice are insufficient to establish ineffective assistance of counsel. See Green v. Johnson, 160 F.3d 1029, 1041 (5th Cir.1998). Wilson next insists that the “biggest error occurred when defense counsel performed an in-court comparison” of Wilson and “Gun.” Trial counsel had “Gun” stand next to Wilson, apparently to show how similar they looked and to suggest that “Gun,” not Wilson, had killed Williams. This ploy appears to have backfired when the State proved that “Gun” had been in jail at the time of the murder and obviously could not have killed Williams.

It also appears, however, that defense counsel was aware that “Gun” was in jail at the time of the shooting yet, for whatever reason, made the tactical decision to conduct the in-court comparison. “We will not find inadequate representation merely because, with the benefit of hindsight, we disagree with counsel's strategic choices.” Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir.1997). Accordingly, this claim fails to establish the deficient-performance prong of Strickland. Finally, Wilson claims that, cumulatively, the sum of trial counsel's errors rendered his conviction and sentence constitutionally unreliable. As reflected by the foregoing analysis, however, Wilson has failed to demonstrate either deficiency or prejudice with regard to any of trial counsel's professional assistance; and absent specific deficiency and prejudicial performance, there can be no cumulative ineffective assistance of counsel. We deny COA on Wilson's claim of ineffective assistance of trial counsel claim.

D. Ineffective Assistance Claim: Appellate Counsel

The Strickland standard also applies to claims of ineffective assistance of appellate counsel, and Wilson must show both that his appellate attorney's errors constituted deficient performance and that his case was prejudiced as a result. See Williams v. Collins, 16 F.3d 626, 635 (5th Cir.1994). Wilson argues that counsel was ineffective for failing to raise the Batson claim on appeal. To show prejudice, Wilson must show a reasonable probability that, but for his appellate counsel's error, the outcome of his appeal would have been different. Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir.1997). As we have determined that Wilson's Batson claim is without merit, appellate counsel cannot be found ineffective for having failed to raise it; prejudice cannot result from counsel's failure to assert a meritless claim or make a meritless argument. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994). We deny COA on the issue of ineffective assistance of appellate counsel.

III CONCLUSION

Wilson has failed to make a substantial showing that he was denied a constitutional right or that jurists of reason could debate the correctness of the denial of his habeas claims. Miller-El, 123 S.Ct. at 1040; Slack, 529 U.S. at 484; 28 U.S.C. § 2253(c)(2). Wilson is therefore not entitled to a COA. COA DENIED.

Wilson v. Thaler, 450 Fed.Appx. 369 (5th Cir. 2011) (State Habeas-Retardation)

Background: Following affirmance of his state conviction and death sentence for murder during course of kidnapping, 1. 7 S.W.3d 136, and denial of his state application for habeas relief, petitioner sought federal habeas relief. The United States District Court for the Eastern District of Texas, 2009 WL 900807, denied relief. Certificate of appealability was granted.

Holdings: The Court of Appeals held that: (1) state court did not unreasonably determine that petitioner was not mentally retarded under state law, and (2) state court's analysis of petitioner's subaverage intelligence functioning was not unreasonable application of clearly established federal law. Affirmed.

PER CURIAM:

Petitioner–Appellant Marvin Lee Wilson, a Texas death-row inmate, appeals the denial of his federal habeas corpus petition. The district court issued a certificate of appealability (COA) on two issues on which Wilson seeks relief: (1) that he may not be executed under Atkins v. Virginia FN1 because he is mentally retarded; and (2) the applicability of AEDPA to that claim. We affirm. FN1. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

I.

Wilson was tried, convicted and sentenced to death in April 1994 for the murder of Jerry Williams during the course of a kidnaping. Wilson's conviction was based on the following evidence as outlined by the Texas Court of Criminal Appeals. On November 4, 1992, Officer Robert Roberts and other police officers entered appellant's apartment pursuant to a search warrant. Jerry Williams was the confidential informant whose information enabled Roberts to obtain the warrant. Williams entered and left the apartment minutes before the police went in. Appellant, Vincent Webb, and a juvenile female were present in the apartment. Over 24 grams of cocaine were found, and appellant and Webb were arrested for possession of a controlled substance. Appellant was subsequently released on bond, but Webb remained in jail. Sometime after the incident, appellant told Terry Lewis that someone had “snitched” on appellant, that the “snitch” was never going to have the chance to “have someone else busted,” and that appellant “was going to get him.”

On November 9, 1992, several observers saw an incident take place in the parking lot in front of Mike's Grocery. Vanessa Zeno and Denise Ware were together in the parking lot. Caroline Robinson and her daughter Coretta Robinson were inside the store. Julius Lavergne was outside the store, but came in at some point to relay information to Caroline. The doors to Mike's Grocery were made of clear glass, and Coretta stood by the door and watched. Zeno, Ware, Coretta, and Lavergne watched the events unfold while Caroline called the police. These witnesses testified consistently although some witnesses noticed details not noticed by others. In the parking lot, appellant stood over Williams and beat him. Appellant asked Williams, “What do you want to be a snitch for? Do you know what we do to a snitch? Do you want to die right here?” In response, Williams begged for his life. Andrew Lewis, Terry's husband, was pumping gasoline in his car at the time. Williams ran away from appellant and across the street to a field.

Appellant pursued Williams and caught him. Andrew drove the car to the field. While Williams struggled against them, appellant and Andrew forced Williams into the car. At some point during this incident, either in front of Mike's Grocery, across the street, or at both places, Andrew participated in hitting Williams and appellant asked Andrew: “Where's the gun?” Appellant told Andrew to get the gun and said that he (appellant) wanted to kill Williams. They drove toward a Mobil refinery. Zeno and Ware drove back to their apartments, which were close by, and when they arrived, they heard what sounded like gunshots from the direction of the Mobil plant.

Sometime after the incident, appellant told his wife, in the presence of Terry Lewis and her husband, “Baby, you remember the nigger I told you I was going to get? I did it. I don't know if he dead or what, but I left him there to die.” When Terry looked back at her husband, appellant stated, “Don't be mad at Andrew because Andrew did not do it. I did it.” On November 10, 1992, a bus driver noticed Williams' dead body on the side of a road. The autopsy report concluded that Williams died from close range gunshot wounds to the head and neck. Having known appellant for 16 years, Zeno identified appellant. Lavergne and Coretta recognized Williams but did not know appellant or Andrew. Lavergne subsequently identified Andrew in a photo line-up. Wilson v. State, 7 S.W.3d 136, 139–140 (Tex.Crim.App.1999)(footnotes omitted).

Wilson's conviction and sentence were appealed to the Texas Court of Criminal Appeals which reversed and remanded for a new trial. Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App.1996) (en banc). Wilson was retried, and again convicted and sentenced to death in 1998. The Texas Court of Criminal Appeals affirmed. Wilson v. State, 7 S.W.3d 136 (Tex.Crim.App.1999). Wilson filed his first state application for a writ of habeas corpus in 1999, which was denied. Ex parte Wilson, No. 46,928–01 at 60, Tex.Crim.App. Oct. 11, 2000. His first federal petition for writ of habeas corpus and his request for COA were denied as well. Wilson v. Cockrell, No. 6:01–CV–186 (E.D.Tex. July 11, 2002); Wilson v. Cockrell, 70 Fed.Appx. 219 (5th Cir.2003).

While the original federal habeas petition was pending, the Supreme Court decided Atkins. Wilson filed a second state writ raising an Atkins claim. The state trial court recommended that relief be denied. The Texas Court of Criminal Appeals adopted those findings and denied relief. Ex parte Wilson, No. 46,928–02 (Tex.Crim.App. Nov. 10, 2004). Evidence gathered in the habeas proceedings as to whether Wilson is mentally retarded will be discussed below. This court granted Wilson's motion for authorization to file a successive petition. In re Wilson, 442 F.3d 872 (5th Cir.2006). The district court denied federal habeas relief. However, it granted COA on three issues: (1) that Wilson may not be executed because he is mentally retarded; (2) that the government must bear the burden of proving that he is not mentally retarded to a jury; and (3) the applicability of AEDPA to those claims. In this appeal, Wilson has divided issue (1) into two parts—unreasonable determination of the facts and unreasonable application of the law applicable to the question of mental retardation. Wilson concedes that issue (2) is foreclosed by this circuit's precedent. United States v. Webster, 421 F.3d 308, 311–12, 312 n. 11. (5th Cir.2005). Wilson also concedes that the question of whether § 2254(e)(1)'s “clear and convincing” standard is to be used for § 2254(d)(2)' s unreasonableness review is foreclosed. Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir.2006). This leaves three issues in this appeal: (1) whether the state habeas decision that Wilson is not mentally retarded is an unreasonable determination of the facts in light of the state record; (2) whether the state habeas decision resulted in an unreasonable application of clearly established law as determined by Atkins; and (3) whether the federal district court erroneously applied the AEDPA deference framework instead of deciding Wilson's claim de novo.

II.

Wilson's petition is governed by the heightened standard of review provided for by the Anti–Terrorism and Effective Death Penalty Act (AEDPA). Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a conclusion that is contrary to federal law clearly established in the holdings of the Supreme Court; or that involves an unreasonable application of clearly established Supreme Court precedent; or that was based on an unreasonable determination of the facts in light of the record before the state court. Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d)(1)–(2).

III.

Wilson argues that he is mentally retarded and that his execution would violate Atkins. In Atkins, the Supreme Court held that execution of criminals who were mentally retarded constituted cruel and unusual punishment in violation of the Eighth Amendment. 536 U.S. at 307, 122 S.Ct. 2242. The characteristics of mental retardation that warrant the ban were described as follows: Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. Id. at 318, 122 S.Ct. 2242 (footnotes omitted).

Characteristics of the mentally retarded that make the death penalty an unsuitable punishment for their crimes were also discussed in the Court's analysis of whether the purposes of the death penalty, particularly deterrence, could be served by executing a mentally retarded offender. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Id. at 320, 122 S.Ct. 2242.

The Supreme Court acknowledged that any disagreement concerning the execution of mentally retarded offenders related to determining who is in fact retarded. “Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Id. at 317, 122 S.Ct. 2242. Accordingly, it left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id. (quoting Ford v. Wainwright, 477 U.S. 399, 416–17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). In the absence of action by the Texas legislature setting a definition of mental retardation for this purpose, the Texas Court of Criminal Appeals adopted the definitions set by the American Association on Mental Retardation (AAMR) or section 591.003(13) of the TEX. HEALTH & SAFETY CODE, which are substantially similar. Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.Crim.App.2004). Under the AAMR definition, mental retardation is a disability characterized by: (1) “significantly subaverage” general intellectual functioning; (2) accompanied by “related” limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.... [T]he definition under the Texas Health and Safety Code is similar: “ ‘mental retardation’ means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.” Id. at 6. The AAMR definition was specifically cited by the Supreme Court in Atkins as one of the definitions used in that case. 536 U.S. at 308, n. 3, 122 S.Ct. 2242.

Because the second element, which looks to adaptive deficits, is subjective and an area on which experts could be found to opine on both sides of the issue in many cases, Briseno also lists several evidentiary factors which factfinders might also consider when weighing evidence to determine whether it indicates mental retardation versus a personality disorder. • Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination? • Has the person formulated plans and carried them through or is his conduct impulsive? • Does his conduct show leadership or does it show that he is led around by others? • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? • Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? • Can the person hide facts or lie effectively in his own or others' interests? • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose? Briseno, 135 S.W.3d at 8–9 (the Briseno factors).

Wilson argues that the district court erred in determining that the state court reasonably determined the facts in light of the record under 28 U.S.C. § 2254(d)(2). Wilson also argues that the state court unreasonably applied Atkins because its decision unreasonably substituted the above listed Briseno factors for the clinical definition of mental retardation. Finally, Wilson argues that remand is required for the district court to reconsider his claims de novo, because no § 2254(d)(2) deference is due to implicit state habeas findings.

A.

We first consider whether the state court's decision represents an unreasonable determination of the facts. Whether a defendant is mentally retarded is a question of fact. Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir.2006). Under AEDPA, a state court's factual findings are presumed to be correct, unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). This presumption applies to facts that may be implied from express findings of the state court. Marshall v. Lonberger, 459 U.S. 422, 433–434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (finding of voluntariness of confession implicit in other findings made by state court.); LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973) (trial court would have granted relief sought by the defendant had it believed the defendant's testimony, therefore failure to grant relief was the equivalent of an express finding against the credibility of the defendant.) “This deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court's findings lacked even ‘fair[ ] support’ in the record.” Marshall, 459 U.S. at 432, 103 S.Ct. 843.

The following evidence was presented in two hearings during the state habeas proceedings. Wilson presented school and prison training records, including standardized testing results. Five I.Q. scores are reflected in those reports. The first I.Q. test, the Lorge–Thorndike, was administered by Wilson's school when he was approximately 13 years old. Wilson's full-scale score on this test was 73. At age 29, Wilson was given an I.Q. test by the Texas Department of Criminal Justice and scored 75. In April 2006, when Wilson was 46 and during the post-conviction proceedings, Wilson scored 61 on the WAIS III I.Q. test. On further testing by the defense, Wilson scored 75 on the Raven Standard Progressive Matrices and 79 on the TONI–II I.Q. tests. A score of 70 or below supports a finding of mental retardation. Wilson relies heavily on the report of his expert Dr. Ronald Trahan. At the time the district court denied federal habeas relief to Wilson it did not have the entire state habeas record before it. In particular, it did not have Dr. Trahan's report. However, the district court did receive and review those records in conjunction with Wilson's Motion for Relief from Judgment under Rule 60(b). In response to that motion the district court did not change its conclusion on Wilson's habeas petition and found that the state's adjudication of Wilson's application for writ of habeas corpus was neither contrary to nor the result of an unreasonable application of clearly established federal law as established by the Supreme Court and was not based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Accordingly, the motion was denied. We see no reason to follow Wilson's suggestion to vacate and remand with instructions for the district court to consider the state court's decision in light of the complete state record. In addition, our review of the district court's judgment is de novo and we conclude that the state court records (including Dr. Trahan's report) support the state court's factual findings.

Dr. Trahan administered several standardized intelligence tests, reviewed Wilson's prior scores and school records and interviewed him for eight hours. He also reviewed affidavits of Wilson's family members and friends and interviewed Wilson's mother-in-law. Dr. Trahan concluded that Wilson was mentally retarded. He testified that the score of 61 on the WAIS–III was the most valid indicator of adult intelligence in current usage and that he would rely most heavily on that result. He also testified that the score on the TONI–II and Raven tests he administered are commonly 10 to 15 points higher than those obtained on the WAIS–III. Dr. Trahan also concluded that Wilson suffered from adaptive deficits in several areas and that, based on information from Wilson's family and friends and his school records, his condition was evident before age 18. The state court's opinion highlighted the evidence that it relied on that indicated that Wilson is not mentally retarded. First, Wilson never urged that he was mentally retarded as mitigating evidence in either of his two capital murder trials or in his first application for habeas relief. Next, addressing the Briseno factors, the state court concluded that at most Wilson's family members and acquaintances considered him slow during the developmental stage. Also the court found that he worked at several jobs, had a drivers license, married and had a child. The trial evidence indicated that Wilson was able to formulate a plan and carry it out, as evidenced by his role in the crime in this case. Wilson made a plan to kill the victim because he believed that the victim had informed on him to the police. The evidence at trial did not indicate that Wilson was a follower and his response to his belief that the victim had informed on him was deliberate, rational and appropriate, if unwise and illegal. The person who administered the WAIS–III test testified that Wilson's responses to questions were coherent, rational and on point. Every Briseno factor was found against the defendant's claim of mental retardation.

The state court next addressed the clinical factors of intellectual impairment, adaptive deficits and onset prior to age 18. On the issue of intellectual impairment the state court's habeas opinion focuses on the fact that all of the defendant's I.Q. test results in the record are above 70 with the exception of the 61 on the WAIS–III test, which was administered during the course of the habeas proceedings. The state court's opinion quotes extensively from the state's cross-examination of Wilson's expert Dr. Trahan, challenging Dr. Trahan's reliance on his assumption that the WAIS–III was administered by a “well-respected and well-trained psychologist” when in fact the test was given by an intern and Dr. Trahan conceded that no records were available to indicate Wilson's motivation, attentiveness or cooperativeness or the test surroundings. We agree with the district court that based on these statements the state court declined to credit Dr. Trahan's testimony and implicitly found that Wilson did not suffer from intellectual deficits or an I.Q. of about 70 or below as is required to establish mental retardation. The state court next addressed adaptive deficits and age of onset in a single paragraph.FN2 Referring to its previous analysis, the state court noted that Wilson “functioned sufficiently in his younger years to hold jobs, get a drivers license, marry and have a child,” indicating that the state court concluded that Wilson did not suffer from related adaptive deficits. Also, the state court stated that although Wilson did poorly in school, the record reflects that he seldom went to class, and although he was considered “slow” by most, there is nothing in the record to reflect that Wilson was ever diagnosed as mentally retarded prior to age 18. We agree with the district court that the state court implicitly found that Wilson did not suffer from adaptive deficits related to mental retardation and that the condition did not manifest prior to age 18. FN2. Wilson argues that the state courts analysis of adaptive deficits is blank indicating a defect in its analysis. However, the heading in the state court's opinion, which reads “b. Accompanied by related limitations in adaptive functioning and c. The onset of which occurs prior to the age of 18,” (emphasis added), clearly indicates that the state court considered adaptive deficits in conjunction with age of onset.

The state court stated The defendant has the duty and burden to demonstrate by a preponderance of the evidence that he is mentally retarded. While there is some evidence to support that conclusion, the overwhelming weight of the credible evidence indicates that he is not. Although other factfinders might reach a different conclusion as to whether Wilson is mentally retarded on the evidence before the state habeas court, on this mixed record, Wilson has failed to overcome the presumption of correctness that attaches to the state court's factual findings which are fairly supported by the record.

B.

Clinical definitions of mental retardation require proof of intellectual deficits accompanied by adaptive deficits which onset prior to age 18. We turn next to Wilson's argument that the state court unreasonably applied Atkins because its decision unreasonably substituted the Briseno factors for the clinical adaptive deficits criteria. Wilson also argues that even if the Briseno factors may substitute for clinical factors, the state habeas court still unreasonably applied Atkins because it did not apply the Briseno factors as originally designated in Briseno—that is to distinguish adaptive deficits caused by mental retardation from adaptive deficits caused by some other condition. 135 S.W.3d at 8–9. The Supreme Court in Atkins “[left] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” 536 U.S. at 317, 122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 416–17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). Although the Court did refer to the clinical definitions of mental retardation promulgated by the AAMR and the American Psychiatric Association (“APA”), Atkins v. Virginia ... did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation “will be so impaired as to fall [within Atkins' compass].” We “le[ft] to the States the task of developing appropriate ways to enforce the constitutional restriction.” Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 2150, 173 L.Ed.2d 1173 (2009). Therefore it is not “clearly established Federal law as determined by the Supreme Court of the United States” that the analysis by the state court must precisely track the clinical definitions referenced in Atkins. See 28 U.S.C. § 2254(d)(1); Clark v. Quarterman, 457 F.3d 441, 445 (5th Cir.2006)(It is not clearly established federal law that the state court analysis of subaverage intellectual functioning must precisely track the AAMR's recommended approach).

Also, based on our review of the state court's analysis, it is clear that the state court did not abandon the clinical factors in the AAMR's definition of mental retardation or substitute the Briseno factors for the clinical mental retardation definition. In fact, as discussed previously, the state court outlined its view of the evidence on intellectual deficits, adaptive deficits and age of onset in separate sections. Its analysis of the Briseno factors, whether standing alone or as incorporated into its conclusions on the clinical factors of adaptive deficits and age of onset, is not an unreasonable application of Atkins.

C.

AEDPA requires that reviewing courts defer to state decisions unless factually or legally unreasonable. 28 U.S.C. § 2254(d)(1) and (d)(2). Wilson argues that this court should vacate and remand for de novo review by the district court (or reverse and render) because no deference is due to the state court's implicit findings on intellectual impairment, adaptive deficits and developmental onset. Also, Wilson argues that no deference is due to the state court's decision on his Atkins claim because the state procedure did not adequately test the clinical evidence of mental retardation. For his argument that no deference is due to the state court's implicit factual findings on the individual components of the clinical test for mental retardation, Wilson relies on Rompilla v. Beard, 545 U.S. 374, 391, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), and Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Both of these cases involved issues not addressed by the state habeas court. In this case, the state court addressed each of the elements of mental retardation either directly or indirectly and made an explicit finding that Wilson had failed to meet his burden of proof on the issue of mental retardation. The state court's factual findings are statutorily entitled to the presumption of correctness and deferential review. 28 U.S.C. § 2254(e)(1).

Wilson argues that the state procedure was inadequate because the state elected not to counter his expert Dr. Trahan with a report by a competing expert, implying that the state court's findings cannot be considered reasonable unless at least one expert was presented on each side of the question. The state court as factfinder is not required to credit the testimony of an expert, which as the court's opinion reflects, it did not do in this case. Wilson bases this argument on Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). However, he raised this issue in a motion to alter or amend the judgment after the district court ruled. The district court properly determined that it is not appropriate to grant relief under these circumstances because the argument could and should have been raised before judgment issued. Ross v. Marshall, 426 F.3d 745, 763 (5th Cir.2005), cert. denied, 549 U.S. 1166, 127 S.Ct. 1125, 166 L.Ed.2d 892 (2007). Further, to grant the relief Wilson requests, this court would have to extend the holding of Panetti from requiring a fair hearing on the issue of mental retardation, which Wilson clearly received, to shifting the burdens of production and presentation of evidence to the state. We decline the invitation to do this.

IV.