Appeal from the United States District Court for
the Southern District of Texas.
Before JOLLY, DUHE, and
BARKSDALE, Circuit Judges.
Freddie Lee Webb, a Texas
prisoner under a sentence of death, appeals from
the district court's denial of his petition for
a writ of habeas corpus. The district court
granted a certificate of probable cause and left
its previously granted stay of execution in
effect pending appeal. Of the several issues
argued to the district court, Webb only raises
one for our review: whether the jury
instructions given pursuant to article 37.071(2)
of the Texas Code of Criminal Procedure violated
his rights under the Eighth and Fourteenth
Amendments. For the reasons stated below, we
affirm the district court's decision.
On December 8, 1985, Webb and
an accomplice seized Leo Cantu and his wife,
Elizabeth, after she closed the Shrimp Ahoy
Restaurant in Corpus Christi, Texas, where she
was the night manager. Webb and his accomplice
returned the Cantus to the restaurant for
purposes of opening the safe and stealing its
Once at the restaurant, Webb
instructed his accomplice to remain with Leo
Cantu in the car while he took Elizabeth Cantu
into the restaurant, forced her to open the safe,
bound her, and took the money. Webb and his
accomplice then fled in the Cantus' car with Leo
Cantu as a prisoner.
Although Elizabeth Cantu
freed herself and alerted the authorities, her
husband was murdered in a remote area of Corpus
Christi. Several months later, Webb was arrested
with the murder weapon while fleeing the
authorities from the scene of another armed
In October 1986, a jury found
Webb guilty for the capital offense of murder of
Leo Cantu in the course of committing and
attempting to commit kidnapping. In a separate
proceeding, the jury answered affirmatively the
special questions submitted to it pursuant to
article 37.071(2) of the Texas Code of Criminal
Procedure, and Webb was sentenced to death.
The Court of Criminal Appeals
affirmed the conviction and sentence. Webb v.
State, 760 S.W.2d 263 (Tex. Crim.App. 1988) (en
banc), cert. denied, 491 U.S. 910, 109 S.Ct.
3202, 105 L.Ed.2d 709 (1989). The Supreme Court
denied Webb's petition for certiorari on June
19, 1989, rendering his conviction final. Webb
v. Texas, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d
Webb next filed an
application for a writ of habeas corpus in the
state trial court. The trial court entered
findings of fact and conclusions of law, but
made no recommendation for disposition of the
case. The Court of Criminal Appeals found that
the trial court's findings and conclusions were
supported by the record and denied the relief.
Webb then filed a second
application for a state writ of habeas corpus,
alleging that the jury in his case had been
unable to consider various types of mitigating
evidence in determining his punishment. The
Court of Criminal Appeals, noting that none of
the evidence had been introduced at trial,
denied relief. Finally, Webb initiated the
present habeas proceedings in federal district
Webb argues that his rights
under the Eighth and Fourteenth Amendments were
violated by a statutory prohibition against
informing jurors of the effect of the failure to
agree on a punishment phase issue. The Texas
sentencing statute provides that if the jury
unanimously answers "yes" to each of the
punishment questions submitted, the defendant
will be sentenced to death, but if ten or more
jurors answer one or more of the issues "no," or
if the jury is unable to agree on an answer to
any issue, the defendant will be sentenced to
life imprisonment. Texas Crim.Proc.Code Ann.
art. 37.071(2) (West Supp. 1993).
The statute, however,
prohibits the court or the attorneys for the
state or the defendant from informing the jury
of the effect of the failure to agree on an
issue. Id. Webb argues that without knowledge of
the effect of the failure to agree on an issue,
a juror might be misled into believing that he
or she could not vote "no" without a consensus
of ten jurors and would feel compelled to vote "yes."
Webb's claim is based on the
principles announced in Andres v. United States,
333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948)
and Mills v. Maryland, 486 U.S. 367, 108 S.Ct.
1860, 100 L.Ed.2d 384 (1988). Webb asks us,
however, to create a "new rule" within the
meaning of Teague v. Lane, 489 U.S. 288, 109
S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Nethery
v. Collins, 993 F.2d 1154, 1162 (5th Cir. 1993).
Under Teague, new rules of
constitutional criminal procedure will not be
announced on federal habeas review unless an
exception applies. Teague, 489 U.S. at 316, 109
S.Ct. at 1078. "[A] case announces a new rule
when it breaks new ground or imposes a new
obligation on the States or the Federal
Government. . . . To put it differently, a case
announces a new rule if the result was not
dictated by precedent existing at the time the
defendant's conviction became final." Id. at
301, 109 S.Ct. at 1070; Penry v. Lynaugh, 492
U.S. 302, 314, 109 S.Ct. 2934, 2944, 106 L.Ed.2d
256 (1989) (quoting Teague).
Although Mills and Andres
were decided prior to Webb's final conviction,
Webb's reliance on the principles announced in
those cases is not the same as saying his claim
is dictated by precedent. See Wiley v. Puckett,
969 F.2d 86, 96 (5th Cir. 1992).
Andres involved two federal
statutes: one statute requiring that a person
found guilty of murder in the first degree be
put to death and another statute allowing the
jury to qualify their verdict with the words "without
capital punishment," thereby sentencing the
defendant to life imprisonment. Andres, 333 U.S.
at 746 & n. 7, 68 S.Ct. at 883 & n. 7.
The Court first concluded
that the statutes interpreted together required
that the jury's decision be unanimous as to both
guilt and whether the punishment of death should
be imposed. Id. at 749, 68 S.Ct. at 884. The
district court instructed the jury, however,
that its decision to return a qualified verdict
of murder must be unanimous. Id. at 751, 68 S.Ct.
at 885. The Court held that the jury instruction
did not convey the correct interpretation of the
statutes. The Court explained that a reasonable
juror might conclude that if they all could not
agree, the verdict of guilt must stand
unqualified. Id. at 752, 68 S.Ct. at 885.
In Mills, the jury
instructions under a Maryland statute required
the jury to answer "yes" to questions regarding
mitigating circumstances only if unanimous and
otherwise to answer "no." Mills, 486 U.S. at
378, 108 S.Ct. at 1867. If all the answers were
marked "no," a death sentence was imposed. Id.
at 389, 108 S.Ct. at 1872.
Nothing in the instructions
suggested that the jury could leave an answer
blank and proceed to the next stage of
deliberation. Id. at 378, 108 S.Ct. at 1867. If
the jury did determine that there was at least
one mitigating circumstance, another section of
the verdict from allowed the jurors to consider
only the mitigating circumstances marked "yes."
Id. at 380, 108 S.Ct. at 1868.
The Court held that the
jurors may have been led to believe that they
were precluded from considering mitigating
evidence without unanimity, even though
precedent required that a sentencer be permitted
to consider all mitigating evidence. Id. at 384,
108 S.Ct. at 1870.
The Supreme Court's decisions
in Andres and Mills may inform the analysis of
his claim, but they do not dictate the
constitutional rule urged by Webb. Both Andres
and Mills involve statutory schemes different
from the Texas sentencing statute and different
legal standards. Thus, because Webb does not
suggest that his claim comes within an exception,
Teague forecloses our consideration of Webb's
claim, and we therefore affirm the district
court's decision and lift the stay of execution
granted by the district court.
AFFIRMED, STAY LIFTED.