Wednesday, November 5, 2008

Media Advisory: George Whitaker Scheduled For Execution

AUSTIN - Texas Attorney General Greg Abbott offers the following information about George Whitaker III, who is scheduled to be executed after 6 p.m. on Wednesday, November 12, 2008, for the murder of 16-year-old Shakeitha Carrier.

FACTS OF THE CRIME

On June 15, 1994, George Whitaker drove to the Crosby home of the parents of his former girlfriend and told her mother, Mary Carrier, he was returning some of her daughters belongings.

Whitaker forced his way in the house and shot Mrs. Carrier in the shoulder. Whitaker then ran upstairs and found Mrs. Carriers daughters, five-year-old Ashley and Shakeitha. Mrs. Carrier said she heard Ashley scream and Shakeitha holler, "...please dont hurt me." Then Mrs. Carrier heard a gunshot. Mrs. Carrier, bleeding and in pain, ran outside to look for help. Whitaker caught up with her behind the house and shot her a second time.

Shakeitha died from a gunshot wound to the head. Ashley was revived after some effort and life-flighted to the hospital where she underwent extensive surgery for blunt head injuries. She retains some permanent neurological damage. Mrs. Carrier suffered two bullet wounds to the right shoulder area, has permanent nerve damage, and no use of her right hand.

Whitaker's former girlfriend, Catina, was not at her parents' home when Whitaker arrived and began shooting.

PROCEDURAL HISTORY

On October 21, 1994, Whitaker was indicted in the 339th District Court of Harris County for the capital murder of Shakeitha Carrier. After Whitaker pleaded not guilty, a jury found him guilty of the capital offense on March 28, 1996. Following a punishment hearing, Whitaker was sentenced to death on April 2, 1996. The Texas Court of Criminal Appeals affirmed the conviction and sentence on May 20, 1998. On January 19, 1999, the U.S. Supreme Court denied Whitaker's petition for writ of certiorari.

During the pendency of his direct appeal, Whitaker filed a state application for writ of habeas corpus with the trial court on October 16, 1998. The trial court entered findings of fact and conclusions of law recommending the denial of habeas relief. Whitaker then filed a second state habeas application on July 19, 1999, raising one additional ground for relief.

On March 5, 2003, the Court of Criminal Appeals adopted the trial court's findings and conclusions, denied Whitaker's first state writ, and dismissed Whitaker's second application as an abuse of the writ. On July 25, 2003, Whitaker filed a third state application for a writ of habeas corpus with the Texas Court of Criminal Appeals, making a mental retardation claim. On Sept. 10, 2003, the Court of Appeals determined that Whitaker did not allege sufficient facts to make a prima facie showing of retardation and dismissed the application for abuse of the writ.

On March 4, 2004, Whitaker filed a federal habeas corpus petition in a Houston U.S. district court. On March 18, 2005, the district court denied Whitaker habeas relief. Whitaker then sought permission to appeal from the Fifth U.S. Circuit Court of Appeals, but the appellate court denied Whitaker permission on September 19, 2006. On March 19, 2007, the U.S. Supreme Court denied Whitaker's petition for writ of certiorari.

EVIDENCE OF FUTURE DANGEROUSNESS

At trial, the State presented the following evidence of Whitaker's violent behavior. Selena Jackson testified about her relationship with Whitaker. She stated Whitaker hit her in the head about four times with his fist. Whitaker also struck Jackson a second time a month or two later.

In a third incident, Whitaker hit Jackson with his fist giving her a black eye and causing her to bleed. In a fourth incident, Jackson found out Whitaker was seeing Catina Carrier, and she confronted him about it. Whitaker denied it and hit Jackson with his fist on her head several times.

Catina Carrier also testified as to the nature of her relationship with Whitaker. She stated that there were occasions when Whitaker physically and verbally abused her. In the first incident, Catina, her daughter, and Whitaker were in Whitaker's vehicle. Catina was driving, and she missed the turn to a movie theater. Whitaker hit Catina in the temple in front of her daughter.

In a second incident, Catina was asleep, and when she woke up, Whitaker was choking her. Catina lost consciousness. Whitaker said he did it because he had a dream she was cheating on him.

In a third incident, after she left work, Whitaker told Catina that she was embarrassing to him. Then, he started punching her in the back of her head with his fists while he was driving. After this, Catina made arrangements for her and her daughter to leave.

Death row inmate put to death for Crosby teen's murder

By Rosanna Ruiz - Houston Chronicle

Nov. 12, 2008

HUNTSVILLE — Before being put to death Wednesday, George Whitaker III apologized for taking the life of his ex-girlfriend's sister in an attack more than a decade ago that also left the victim's mother and a younger sibling permanently injured.

"I apologize for the pain and suffering I caused," said Whitaker, in an address to 16-year-old Shakeitha Carrier's parents, who did not witness the execution. "I pray Lord, please forgive me." He then smiled at his own family members as they watched his final moments through a window in Texas' death house. He told them not to forget him and asked them to take care of his two children. As the lethal drugs began flowing, he said: "You all take care. I love y'all. I'm going on to sleep."

Minutes later, Whitaker, 37, was pronounced dead at 6:15 p.m. He was the 16th prisoner to be put to death this year in Texas, the nation's busiest capital punishment state. Three more Texas prisoners are set to die next week, including one from Harris County.

Whitaker, a former mechanic, was sentenced to death for taking Shakeitha Carrier's life during a home invasion in 1994. The teen was his former girlfriend's sister. He was said to have been despondent about the breakup with Catina Carrier about two months before the murder.

On June 15, the day of the shooting, Whitaker went to the Carrier home in Crosby, east of Houston, to return items his former girlfriend left when she moved out of his home. Carrier's mother, Mary Carrier, refused to let him into her home and instead told him to put the belongings on the porch.

"The expression on his face," Carrier testified, "it didn't look right to me." Whitaker brandished a gun and pushed his way into the house, court records show. Mary Carrier ordered her 5-year-old daughter Ashley to go upstairs as she begged Whitaker not to hurt her children. Whitaker shot Mary Carrier and then ran upstairs and pistol-whipped Ashley into unconsciousness. Mary Carrier said she heard her daughter Shakeitha, known as Kiki, plead with Whitaker. "I heard Kiki cry, 'George, please don't! And then a shot," Mary Carrier said during Whitaker's trial.

Whitaker went to his truck to reload his gun and shot Mary Carrier a second time as she ran for help. Kiki died from the gunshot wound to her head. Ashley survived but suffered some permanent brain damage while Mary Carrier no longer has use of her right hand. Catina Carrier was not home at the time.

Whitaker had exhausted all of his appeals days before the execution. On Monday, the Texas Board of Pardons and Paroles unanimously rejected a clemency petition to commute Whitaker's death sentence to life in prison.

Harris County man executed for 1994 slaying

By Kristin Edwards - Huntsville Item

November 12, 2008

A man convicted of the 1994 murder of his ex-girlfriend’s 16-year-old sister was executed Wednesday at the Texas Department of Criminal Justice Walls Unit. George H. Whitaker, 36, who was convicted of the capital murder of 16-year-old Shakeitha Carrier, was pronounced dead at 6:15 p.m. after he made a brief and apologetic last statement.

Whitaker’s execution was witnessed by his stepfather, Paul Joseph, and his brother, Gerard Whitaker. However, no witnesses connected to Shakeitha Carrier attended the execution.

“I’d like to say to Mr. and Mrs. Carrier, I apologize for your pain and suffering,” Whitaker said. “To my family, I love you. Continue to pray for me. I am fine, and I have made peace with God. “I’m going to sleep.”

According to information released by the Texas Attorney General’s office, Whitaker drove to the Crosby home of his former girlfriend, Cantina Carrier, on June 15, 1994, under the pretense of returning some of her belongings. Once he arrived, Whitaker forced his way into the house and shot Cantina Carrier’s mother, Mary, in the shoulder. He then ran up the stairs and located her younger sisters, Ashley Carrier, 5, and Shakeitha Carrier.

Before hearing a gunshot, Mary Carrier heard her 5-year-old scream and her 16-year-old yell, “Please don’t hurt me.” When she ran out of her house to find help, Whitaker caught up with her and shot her a second time.

Shakeitha Carrier died from a gunshot wound to the head, while Ashley Carrier was revived after extensive surgery for blunt head injuries. She does, however, retain permanent neurological damage. Mary Carrier has permanent nerve damage and no use of her right hand. Cantina Carrier was not at her parents’ home when Whitaker arrived.

Whitaker was indicted in the 339th District Court of Harris County for the capital murder of Shakeitha Carrier on Oct. 21, 1994. After he plead not guilty, he was found guilty of the capital offense on March 28, 1996.

During Whitaker’s trial, Catina Carrier testified concerning the nature of her relationship with Whitaker. She stated there were occasions when Whitaker physically and verbally abused her. In one incident, after Whitaker hit Carrier in the temple in her daughter’s presence, Carrier woke up to Whitaker choking her. After the fact, Whitaker said he did it because he had a dream she was cheating on him. In another incident, after she left work, Whitaker told Carrier she was embarrassing to him. Then, he started punching her in the back of her head with his fists while he was driving.

ProDeathPenalty.com

George H. Whitaker, III was sentenced to death for the murder of Kiki Carrier, 17, of Crosby, Texas. Whitaker had been dating Kiki's sister Catina, who had recently left him because of abusive behavior.

On the day of the murder, Whitaker drove to his former girlfriend's parent's home outside Crosby and told her mother that he was returning some of her belongings. When he was told to leave them on the porch, Whitaker instead pulled out a .45-caliber pistol and forced his way inside. Whitaker forced Kiki's mother and her 5-year-old sister into the living room where he shot the mother once in the chest. Whitaker followed the child as she fled upstairs, and he found Kiki and shot her once in the head, killing her. Mrs. Carrier heard Kiki yell, "please don't hurt me" before she was shot. Whitaker then pistol-whipped the young child, fracturing her skill in two places.

Returning to the first floor, Whitaker saw the mother fleeing through the front door. He got more ammunition out of his vehicle, then chased the mother behind the house and shot her a second time in the chest. She survived her wounds, but suffers from partial paralysis in her right arm and hand. Kiki's younger sister was revived after some effort and was life-flighted to the hospital where she underwent extensive surgery for her blunt head trauma. She still suffers from some permanent neurological damage.

Whitaker was tracked to his apartment and attempted to escape by jumping out a window. Whitaker was shot in the hip when police observed him reaching for a weapon. At trial, an ex-girlfriend testified about her relationship with Whitaker. She stated Whitaker hit her in the head about four times with his fist. Whitaker also struck her a second time a month or two later. In a third incident, Whitaker hit the woman with his fist giving her a black eye and causing her to bleed. In a fourth incident, when the woman found out Whitaker was seeing Catina Carrier, she confronted him about it. Whitaker denied it and then hit her with his fist on her head several times.

Catina Carrier also testified as to the nature of her relationship with Whitaker. She stated that there were occasions when Whitaker physically and verbally abused her. In the first incident, Catina, her daughter, and Whitaker were in Whitaker's vehicle. Catina was driving, and she missed the turn to a movie theater. Whitaker hit Catina in the temple in front of her daughter. In a second incident, Catina was asleep, and when she woke up, Whitaker was choking her. Catina lost consciousness. Whitaker said he did it because he had a dream she was cheating on him. In a third incident, after she left work, Whitaker told Catina that she was embarrassing to him. Then, he started punching her in the back of her head with his fists while he was driving. After this, Catina made arrangements for her and her daughter to leave.

Txexecutions.org

George H. Whitaker III, 37, was executed by lethal injection on 12 November 2008 in Huntsville, Texas for killing his ex-girlfriend's sister in her home.

On 15 June 1994, Whitaker, then 23, drove to the home of Mary Carrier in Crosby. Whitaker had been dating Carrier's daughter, Catina, but she had recently broken up with him because of his abusive behavior. Whitaker told Mrs. Carrier that he was returning some of Catina's belongings. She told him to leave them on the porch. Whitaker then pulled out a .45-caliber pistol and forced his way inside the home. He shot Carrier once in the shoulder. Carrier's 5-year-old daughter, Ashley, ran upstairs. Whitaker followed her upstairs, where he pistol whipped her into unconsciousness. He then found Carrier's 16-year-old daughter, Shakeitha, on the second floor and shot her once in the head. Returning downstairs, Whitaker found Mrs. Carrier fleeing through the front door. After retrieving more bullets from his vehicle, Whitaker caught up with her behind the house and shot her again in the right shoulder.

Ashley's skull was fractured in two places. She was taken by helicopter to the hospital, where she underwent surgery. She suffered some permanent brain damage. Mary Carrier had permanent nerve damage and lost the use of her right hand. Shakeitha - who was known as "Kiki" - died. Whitaker's former girlfriend, Catina, was not at her parents' home at the time of the shooting.

Whitaker was arrested at an apartment where he was drinking beer with another girlfriend. He tried to avoid the police by jumping out of a window. Police shot him in the hip because they thought he was reaching for a gun.

"The expression on his face ... it didn't look right to me," Mary Carrier testified at Whitaker's trial. She said when Whitaker forced his way into the house, she ordered Ashley to run upstairs, then begged Whitaker not to hurt her children. "I heard Kiki cry, 'George, please don't!' And then a shot."

At Whitaker's punishment hearing, the state presented evidence of his violent behavior. Selena Jackson testified that Whitaker hit her on her head or face on four occasions during their relationship. Catina Carrier testified about two incidents where Whitaker hit her on the head, and one where he choked her while she slept. She also testified that he often took the money she earned. She broke off their engagement, quit her job, and secretly moved in with a friend because she feared him. A friend of Catina's testified that Whitaker seized her a few days before the shootings and forced her at knifepoint to call Catina to have her meet him.

A jury convicted Whitaker of capital murder in March 1996 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in May 1998. All of his subsequent appeals in state and federal court were denied.

Whitaker declined to be interviewed from death row.

"I apologize for the pain and suffering I caused," Whitaker said in his last statement at his execution. "I pray Lord, please forgive me." He also asked his family members who attended to remember him and take care of his two children. Members of the victim's family did not attend. When the lethal injection was started, Whitaker said, "You all take care. I love y'all. I'm going on to sleep." He was pronounced dead at 6:15 p.m.

Texas: George Whitaker III executed

DeathPenaltyNews.blogspot.com

Thursday, November 13, 2008

HUNTSVILLE, Texas (AP) - A Houston-area man condemned for fatally shooting his ex-girlfriend's sister during an attack that also seriously wounded the former girlfriend's mother and another sister was executed Wednesday.

George Whitaker III expressed love to family members and asked for forgiveness. "I apologize for your pain and suffering," he said, mentioning the parents of his victim by name. None of her relatives were present.

Whitaker asked that the Lord give them strength, adding, "I pray Lord, please forgive me." He asked his stepfather, brother and a friend who watched through a window to take care of his two daughters. "Continue to pray for me. I am fine. I've made peace with God. Please don't ever forget me," he said.

As the lethal drugs began flowing, Whitaker said, "Take care. I'm going on to sleep." Eight minutes later at 6:15 p.m. CST, he was pronounced dead.

Whitaker had exhausted his appeals and also lost a clemency bid before the state parole board, clearing the way for him to become the 16th Texas prisoner executed this year. Another lethal injection was set for Thursday evening in the nation's busiest capital punishment state.

Whitaker, 36, was convicted of gunning down 16-year-old Shakeitha Carrier in 1994 at her family's home in Crosby, just east of Houston in Harris County.

The slain girl's older sister, Catina, was engaged to Whitaker and had been living with him but ended the relationship and moved out amid accusations of abuse. Whitaker showed up at her parents' home on a June afternoon under the guise of returning some of her items, pulled a gun and demanded to get in.

Catina Carrier, who had known Whitaker since high school, wasn't there. Her mother, Mary, pleaded that he not hurt anyone. Testimony at his trial showed he shot the woman in the shoulder, then ran upstairs where Shakeitha, known as Kiki, cried out Whitaker's name and said: "Please don't hurt me!" Then she was shot.

Court records show Whitaker went outside to an SUV - where the occupants included his estranged wife and their two young daughters - to reload his .45-caliber pistol. He returned to shoot Mary Carrier again at close range before leaving. She was able to call for help and found her daughters sitting against a wall in Kiki's bedroom.

Kiki died of a gunshot wound to the head. Five-year-old Ashley was left with brain damage after suffering severe head injuries from being pistol-whipped. Mary Carrier had permanent nerve damage and lost the use of her right hand from her wounds.

Whitaker was shot and wounded later by Harris County deputies trying to arrest him at an apartment where he was drinking beer with another girlfriend. Authorities said he had jumped from a window and was shot in the hip as he appeared to be reaching for a pistol. Whitaker, a former mechanic, declined to speak with reporters as his execution date neared.

Catina Carrier testified at Whitaker's trial that she left him because he became abusive and often took the money she was making. At the time of the shootings, she was living in secret with a friend because she feared Whitaker.

Mary Carrier also testified against him at his trial. Another witness testified how she was abducted a few days before the shootings and forced at knifepoint to call Catina Carrier as Whitaker attempted to lure his ex-girlfriend to a meeting place. A previous girlfriend told jurors how he hit her on several occasions, once leaving her with a black eye.

Whitaker's mother testified his father was a strict disciplinarian, that her son never was violent in her presence and that Whitaker twice had tried to kill himself when he was 20. He had no previous prison record.

Whitaker's unsuccessful court appeals had contended his trial lawyer was ineffective in not calling a mental health expert to testify, that Harris County jurors who decided he should die should have been told a life sentence would have ensured him at least 40 years in prison, and that his death sentence was unconstitutional.

Three more Texas prisoners are set to die next week.

Source: The Associated Press.

Whitaker v. State, 977 S.W.2d 595 (Tex.Crim.App. 1998.) (Direct Appeal).

Defendant was convicted in the District Court, Harris County, Caprice Cosper, J., of capital murder, and he was sentenced to death. On automatic appeal, the Court of Criminal Appeals, McCormick, P.J., held that: (1) evidence was sufficient to support conviction, and (2) evidence supported finding of “future dangerousness” special issue at sentencing. Affirmed. Mansfield and Price, JJ., filed concurring opinions. Womack, J., concurred in part and otherwise joined opinion. Baird and Overstreet, JJ., filed concurring and dissenting opinions.

McCORMICK, Presiding Judge, delivered the opinion of the Court in which MEYERS, KELLER and HOLLAND, Judges, joined.

Appellant was convicted in April 1996 of capital murder. V.T.C.A., Penal Code, Section 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071, Section 2(g).FN1 Direct appeal to this Court is automatic. Article 37.071, Section 2(h). Appellant raises nine points of error. We will affirm.

FN1. Unless otherwise indicated all future references to Articles refer to Code of Criminal Procedure.

In points of error three and seven, appellant argues that the evidence is legally and factually insufficient to support the jury's findings that he committed the underlying offense of burglary and that he entered the house with the intent to commit murder.

Viewed in the light most favorable to the verdict, the evidence at trial established the following: Catina Carrier, the deceased's sister, met appellant in high school and became friends with him sometime after graduation. The two eventually began dating in September 1993, moved in together, and became engaged that Christmas. After moving in with appellant, he became very controlling and possessive of Catina and did not want her to be around her family members or away from their home when she was not working. Also, appellant often showed up at her workplace and often took the money she was making. Catina testified that appellant bought a white Suburban with the money he had taken from her. Catina testified appellant became increasingly abusive and told her if she ever left him no one else would have her.

In April 1994, Catina decided to leave appellant. She first moved her daughter, who had been living with them periodically, out of the house. She then made secret arrangements in order to get herself out too, consequently, forcing her to leave all her belongings in appellant's home. On the day she left, Catina had appellant drop her off at work as usual. She then had a co-worker from another job come pick her up and drop her off at a friend's house where she only stayed one night. The next day, she moved on to a friend's house that appellant did not know. Catina did not let her family know where she was staying so as not to involve them in her troubles. Catina further did not work for fear appellant would find her. Appellant did try to locate Catina during this time through her family and friends.

Around June 14, 1994, appellant told a friend, Laquisia Carter, that “after Wednesday, she wouldn't see him anymore.” He told her he “was going to kill somebody.” Laquisia asked who, but appellant would not say. She assumed appellant was joking.

On Wednesday, June 15th, appellant went to the EZ Pawn Shop and picked up his .45-caliber pistol that he had pawned for a short-term loan on an earlier occasion. Driving his white Suburban and wearing a white shirt FN2 and black slacks, appellant then went and picked up his wife,FN3 Rosemary Whitaker,FN4 from whom he was separated, their two small daughters, and Rosemary's nine-year old son. Eventually, the group picked up Donald Carter (“Junior”), whom appellant had earlier asked to take a ride with him. Junior did not know where they were going, but Rosemary had been informed that they were going to take Catina's belongings back to her. Rosemary believed she was brought along to prevent anything from happening if a fight broke out.

FN2. There is conflicting testimony regarding whether this was a plain white dress shirt or a doctor's lab coat. FN3. The legal status of this marriage is the focal point of appellant's ninth point of error, infra. FN4. Rosemary is also referred to as “Rae” throughout the record.

On the way to Catina's parents' home in Crosby, appellant drove through the Kroger parking lot where Catina's father works. Then, at some point about halfway to Crosby, appellant pulled over and asked Rosemary to drive. Appellant and Junior got in the back seat and, after driving a little farther, appellant showed Junior the .45-caliber pistol and said “this is the gun I told you about.” Junior did not think much of this because appellant had told Junior about a week before that he had bought a gun. Appellant then put the gun away and they kept riding.

Closer to their destination, appellant had Rosemary exit and pull into a gas station with a pay phone. As appellant exited the vehicle, he asked Junior to come with him. Upon reaching the phone, appellant dialed it and then handed the receiver to Junior and told him to ask for “Kiki.” Junior complied and the person on the phone said, “just a minute.” Junior then handed the phone back to appellant who listened for a second or two and then hung up without saying anything. The two returned to the Suburban and continued driving to the Carrier residence.

Meanwhile, on this same day, the Carrier family began their day as usual. Donald Carrier, Catina's father, went to work at Kroger's as he had done for many years. Catina's mother, Mary Carrier, stayed at home with Catina's sisters, five-year old Ashley and sixteen-year old Shakeitha (“Kiki”). Catina's ten-year old brother had gone to a friend's house to play. At about 3:00 p.m., Mary and Ashley were watching television when the phone rang. Mary answered the phone and the man on the phone asked for Kiki. Mary told him to hold on for a minute and she called for Kiki who was upstairs getting ready to go to work. Kiki said she had it so Mary hung up.

About fifteen to twenty minutes later, someone began knocking on the door. Mary and Ashley went to the door to discover appellant with Catina's tote bag, some toys and baby things. Mary told appellant she was surprised to see him because he had not called to say he was coming over.FN5 Appellant indicated he would like to come inside, but Mary told him to just set the things outside the door and she would get them. Mary testified that she did not allow anyone into the house without her husband being there and she specifically did not feel comfortable about appellant.

FN5. Appellant had called the month before to say he wanted to bring Catina's things over. At the time, Mary told him that he could bring the items over and that her husband would be there to receive them. She further told him that she, Kiki, Ashley, and Don, her son, would not be there when he came over. Mary had not heard from appellant since.

Appellant went back to the Suburban and asked Junior to help him with the next load. Junior testified he observed Mary pull the first items into the house. On the way back to the door, appellant pulled out a gun and aimed it at Mary and Ashley. As Mary tried to shut the door, appellant forced his way into the house pushing the door. When this started, Junior dropped the clothes he was carrying and went back to the Suburban.

Once in the house, appellant stood about ten feet from Mary and Ashley pointing the gun at them. Mary begged appellant not to hurt her children and to “just leave.” Mary then told Ashley to get out of there and run upstairs. As Mary continued to plead with appellant not to hurt her or the children and to explain that they had not done anything to him, appellant shot Mary in the shoulder. Appellant then ran upstairs. Mary heard Ashley screaming and Kiki holler, “[Appellant], please don't hurt me.” Then she heard a gunshot.

Mary, bleeding and in pain, ran outside to look for help. Neither Rosemary nor Junior would respond to her pleas and it appeared her closest neighbors were not home, so Mary ran around to the back of the house to see if she could rouse the people that lived behind her. As she was running around the corner of the house, Mary saw appellant come out of the house and go get something out of the back of the Suburban. She hoped appellant was leaving. She was mistaken.

Junior testified that when appellant came back out to the Suburban, appellant retrieved another bullet and loaded it into the weapon.FN6 Appellant then ran behind the house and caught up with Mary. Mary again pleaded, “Please don't shoot me.” Appellant, at only arm's length away, shot her again anyway. Mary fell to the ground and stayed there until she was sure appellant was gone. She then went back into the house to phone for help. When she reached her children, she found them sitting up next to each other against a wall in Kiki's room.

FN6. The evidence shows that appellant's gun was fully loaded upon entering the residence, but only a portion of the recovered bullets had actually been fired. The evidence further appears to show appellant was unaware his semi-automatic pistol would automatically chamber a new round. Therefore, appellant would pull the slide back, thereby ejecting live bullets throughout the home and prematurely emptying his pistol.

After leaving the Carrier residence, appellant and Rosemary drove Junior home and dropped him off. Appellant told Junior not to tell anyone about what happened. Rosemary also eventually went home with her children in the Suburban. Appellant was apprehended later that evening after attempting to flee from the police when they located him at his uncle's apartment drinking beer and watching television with another of his girlfriends, Selena Jackson, his uncle, and his uncle's lady friend.

Kiki died from a gunshot wound to the head. Ashley was revived after some effort and “life-flighted” to the hospital where she underwent extensive surgery for blunt head injuries. She retains some permanent neurological damage. Mary suffered two bullet wounds to the right shoulder area, has permanent nerve damage, and no use of her right hand.

In reviewing a legal sufficiency question, 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 essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Cr.App.1995), cert. denied, 116 S.Ct. 717, 133 L.Ed.2d 670 (1996). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Cr.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Cr.App.1986).

In reviewing a factual sufficiency question, we view the evidence without the prism of “in the light most favorable to the prosecution,” and we 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.Cr.App.1996); see also Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App.1997). A factual sufficiency review must be “appropriately deferential” to the jury's credibility and weight determinations. Clewis, 922 S.W.2d at 133.

Section 19.03(a)(2) states that “[a] person commits [a capital] offense if he commits murder [by intentionally or knowingly causing the death of an individual] in the course of committing or attempting to commit ... burglary....” A person commits burglary if, without the effective consent of the owner, he enters a habitation, or a building not then open to the public, with the intent to commit a felony or theft. V.T.C.A., Penal Code,Section 30.02(a)(1). An unlawful entry into a habitation with the intent to commit murder will satisfy the burglary element of a capital murder charge. Boyd v. State, 811 S.W.2d 105, 114 (Tex.Cr.App.1991); Fearance v. State, 771 S.W.2d 486, 493 (Tex.Cr.App.1988).

In the instant case, appellant had arranged to retrieve his gun from the pawn shop on the day of the murder and brought the loaded pistol with him in order to presumably return clothes. Appellant then murdered the deceased, shot Mary Carrier twice, and beat Ashley Carrier in the head after pushing his way, without consent, into the Carrier residence at gunpoint. Further, appellant told a friend the day before that he “was going to kill somebody” on Wednesday.

We find a rational trier of fact could have found beyond a reasonable doubt that appellant committed the act of burglary and intended to commit murder upon entering the residence. And, the jury's findings on these issues are not “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Points of error three and seven are overruled.

In point of error two, appellant claims the evidence is legally and factually insufficient to support the jury's affirmative answer to the “future dangerousness” special issue. We do not review the factual sufficiency of the evidence to support the jury's answer to this special issue. See McGinn v. State, 961 S.W.2d 161 (Tex.Cr.App.1998).

We employ the Jackson standard in reviewing the legal sufficiency of the evidence to support the jury's answer to the “future dangerousness” special issue. See Barnes v. State, 876 S.W.2d at 322. In addition to the evidence of the facts of the offense, there was more evidence that appellant assaulted Catina during their relationship, that appellant assaulted Selena Jackson during their relationship, and that appellant kidnapped a friend of Catina's and threatened her with a butcher knife until she provided appellant with Catina's phone number when Catina was hiding from appellant. These prior threats and assaults when combined with the brutality of the instant offense support the jury's affirmative answer to the “future dangerousness” special issue. Point of error two is overruled.

In point of error one, appellant claims he “received ineffective assistance of counsel when his trial counsel failed to pursue mitigating evidence regarding the appellant's psychiatric history.” He bases this contention on trial counsel's failure to have a psychiatric examination performed on appellant. The State claims the “record simply does not support appellant's assertion” because, for example, there “is nothing in the record to reflect that trial counsel did not have a mental health expert speak with appellant.”

We agree. The record is not adequate to evaluate appellant's ineffective assistance of counsel claim on direct appeal. See Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Cr.App.1997); Ex parte Duffy, 607 S.W.2d 507, 513 (Tex.Cr.App.1980). Point of error one is overruled.

In points of error four and five, appellant claims the “failure of the courts to inform the jury that life imprisonment is equal to 40 years without parole” violates various provisions of the United States and Texas Constitutions. Appellant relies on the United States Supreme Court's fragmented decision in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (all opinions).

We have resolved appellant's claims adversely to him. See Morris v. State, 940 S.W.2d 610, 613 (Tex.Cr.App.1996), cert. denied, 520 U.S. 1278, 117 S.Ct. 2461, 138 L.Ed.2d 218 (1997); Green v. State, 934 S.W.2d 92, 105-06 (Tex.Cr.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Broxton v. State, 909 S.W.2d 912, 919 (Tex.Cr.App.1995); Smith v. State, 898 S.W.2d 838, 846 (Tex.Cr.App.), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995). Points of error four and five are overruled.

In point of error six, appellant claims the “capital murder scheme which gives individual discretion to jurors to determine whether mitigating evidence exist (sic) in a particular case so as to warrant life imprisonment as opposed to death is unconstitutional.” We have resolved this claim adversely to appellant. See Cockrell v. State, 933 S.W.2d 73, 93-94 (Tex.Cr.App.1996), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997); McFarland v. State, 928 S.W.2d 482, 520-21 (Tex.Cr.App.), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). Point of error six is overruled.

In point of error eight, appellant claims the “trial court erred in denying the appellant's motion for mistrial evidence of extraneous offense before the jury not cured by an instruction to disregard.” During guilt/innocence, Catina Carrier testified on direct by the prosecution that appellant was physically and mentally abusive towards her. Appellant objected, the trial court instructed the jury to disregard but denied appellant's request for a mistrial. On cross-examination by appellant, the same witness provided a nonresponsive answer that appellant beat her up before giving her an engagement ring. Appellant objected, the trial court instructed the jury to disregard but denied appellant's request for a mistrial.

Appellant complains on appeal that “the prejudice which resulted from this testimony in the case at bar was not cured by instructions to disregard” and that this evidence contributed to his death sentence. The State claims, among other things, any error was “waived” because the witness testified during punishment that appellant had threatened to kill her and that he had told her if she left him no on else would have her.

On this record, the instruction to disregard was sufficient to cure any error in the admission of the complained-of evidence during guilt/innocence. See Cockrell, 933 S.W.2d at 94-97 (Maloney, J., concurring). And, any uncured error at guilt/innocence was harmless as we do not perceive any danger the jury, having a reasonable doubt appellant committed the charged offense of capital murder, convicted appellant of capital murder based on the complained-of evidence. As to any error at punishment, we have held evidence of extraneous offenses are admissible at the punishment phase of a capital murder trial. See Kemp v. State, 846 S.W.2d 289, 307 (Tex.Cr.App.1992). Point of error eight is overruled.

Finally, in appellant's ninth point of error, he complains that the State's use of the allegedly-perjured testimony of Rosemary Whitaker was harmful to his character. He further claims the State illegally referred to Rosemary as appellant's wife during opening statements.

On direct examination by the State, Rosemary testified that she had been married to appellant for six years and had two children by him. No testimony was elicited by either the State or the defense regarding the legal status of this marriage. However, testimony was elicited stating that Rosemary and appellant were separated at the time of the offense, had not remained in the same residence, and that appellant had lived with at least two other women during the two years prior to this offense.

Appellant argues that under Section 1.91 of the Texas Family Code, a common-law marriage would not be legally recognized where the parties have lived separately and apart for at least two-years. Therefore, because Rosemary could no longer be considered his common-law wife, the jury was mislead. Further, he alleges the false representations affected the jurors' determination of mitigating evidence because the jury believed “he was guilty of the crime of adultery.” FN7 These arguments are without merit.

FN7. We note that “adultery” is not a criminal offense under the Texas Penal Code.

We first note that appellant has waived any possible error by failing to object to the State's characterization of Rosemary as appellant's wife. Texas Rule of Appellate Procedure 33.1(a). Second, appellant, on at least four occasions including closing arguments, also referred to Rosemary as his spouse. Therefore, the State did not err in also referring to her as such. Point of error nine is overruled. The judgment of the trial court is affirmed.

MANSFIELD and PRICE, JJ., filed concurring opinions. WOMACK, J., concurs in Point of Error No. 2, and otherwise joins the opinion of the Court. BAIRD and OVERSTREET, JJ., filed concurring and dissenting opinions.

*****

MANSFIELD, Judge, concurring.

I join the opinion of the Court but write separately with respect to appellant's fourth and fifth points of error. In Smith v. State, 898 S.W.2d 838, 846 (Tex.Crim.App.) (plurality op), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), we held Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) was inapplicable to Texas. The major reason for our holding was that, unlike South Carolina, Texas' alternative to the death penalty in a capital case is not a life sentence without possibility of parole, but rather a life sentence with possibility of parole after serving forty calendar years. See Tex. Govt.Code § 508.145(b).FN1

FN1. In Simmons, the prosecutor also misled the jury into believing the defendant would eventually be set free should he receive a life sentence. This misrepresentation violated the defendant's due process rights. It does seem somewhat incongruous that juries in noncapital cases are instructed as to applicable parole law whereas in capital cases juries are not to be so instructed. Depending on the life expectancy of an individual sentenced to life imprisonment upon conviction of capital murder, the forty calendar years he must serve before becoming eligible for parole may be, effectively, a life sentence without possibility of parole.

The Legislature has determined that the jury in a capital case is not to be charged as to the law relating to parole and/or good time. Given this clear expression of legislative intent, we are not free to substitute our own judgment on this matter, absent clear direction from the United States Supreme Court that we must do so. The Supreme Court denied certiorari in Smith and its progeny. See, e.g., Green v. State, 934 S.W.2d 92, 105-106 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). Indeed, the discussion of Texas parole law in Brown v. Texas, 522 U.S. 940, 118 S.Ct. 355, 139 L.Ed.2d 276 (1997), while interesting, demonstrates the Supreme Court is not, at this time, inclined to review our holding in Smith that Simmons is inapplicable to Texas.

It is the Legislature's role, not ours, to determine what, if anything, juries are to be told about the operation of Texas parole law.

*****

PRICE, Judge, concurring.

In points of error four and five, appellant asserts that the trial court's failure to instruct the jury that life imprisonment is equal to 40 years without parole is a violation of the United States and Texas Constitutions. In the past, I have dissented to this court's refusal to recognize such a claim. See Raby v. State, 970 S.W.2d 1, 17 (Tex.Crim.App.1998) (Overstreet, J., concurring and dissenting, joined by Price, J.). Recently, Justice Stevens, joined by three other justices of the United States Supreme Court, discussed the inequities in this State's death penalty procedure. Brown v. Texas, 522U.S. 940, ---- - ----, 118 S.Ct. 355, 355-357, 139 L.Ed.2d 276 (1997) (Stevens, J., opinion respecting the denial of the petition of a writ of certiorari, joined by Souter, Ginsburg and Breyer, JJ.).

In that opinion, he noted that while Texas law requires that in noncapital cases the jury be given an instruction explaining when the defendant will become eligible for parole, such an instruction in capital cases is prohibited. Thus, he reasoned that the absence of such an instruction in a capital case “unquestionably tips the scales in favor of a death sentence that a fully informed jury might not impose.” Id. at ----, 118 S.Ct. at 356. I agree.

Although Justice Steven's opinion is merely a comment on the court's denial of certiorari, rather than a decision on the merits, it is unquestionably an important criticism of our death penalty procedure and may well be indicative as to how the Supreme Court might resolve this issue in the future.FN1 However,despite my disagreement with my brethren on this issue, I am mindful that my views are in the minority. I am also aware of my responsibility to observe principles of the doctrine of stare decisis. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-855, 112 S.Ct. 2791, 2808-2809, 120 L.Ed.2d 674 (1992). Therefore, until a majority of this court indicates a willingness to reconsider this issue, I will observe precedent. With these comments, I join the opinion of the court.

FN1. Justice Stevens emphasized that “... the Court's action in denying certiorari does not constitute either a decision on the merits of the questions presented ... or an appraisal of their importance ... Moreover, ... the likelihood that the issue will be resolved correctly may increase if this Court allows other tribunals ‘to serve as laboratories in which the issue receives further study before it is addressed by this Court.’ ” Brown v. Texas, 522 U.S. 940, ---- - ----, 118 S.Ct. 355, 356-357, 139 L.Ed.2d 276 (1997) (Stevens, J., opinion respecting the denial of the petition of a writ of certiorari, joined by Souter, Ginsburg and Breyer, JJ.) (citations and footnote omitted). It is worth noting that it takes only four members of the Supreme Court to grant certiorari, the same number (including Justice Stevens) who joined Justice Stevens's opinion.

*****

BAIRD, Judge, concurring and dissenting.

I agree that no error at the guilt phase of trial was sufficient to warrant reversal of appellant's conviction. However, for the following reasons, I would remand this case to the trial court for a new punishment hearing. Tex.Code Crim. Proc. Ann. art. 44.29(c).

Points of error four and five contend the trial judge erred in not informing the jury that a life sentence would have required imprisonment for a minimum of 40 years. The majority overrules these points on the basis of settled precedent. Ante, at 599; citing Morris v. State, 940 S.W.2d 610, 613 (Tex.Cr.App.1996); Green v. State, 934 S.W.2d 92, 105-06 (Tex.Cr.App.1996); Broxton v. State, 909 S.W.2d 912 (Tex.Cr.App.1995); and, Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995). Under our law, whether a capital defendant may bring truthful information regarding parole eligibility to the venire is discretionary with the trial judge. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Cr.App.1997); and, Walbey v. State, 926 S.W.2d 307, 313, n. 8 (Tex.Cr.App.1996) (“Texas trial judges have the discretion to instruct capital juries on the issue of parole and may find such instruction an effective means of charging the jury on the law applicable to the case.” citing Tex.Code Crim. Proc. Ann. art. 3.14).

This precedent was called into question in Brown v. Texas, 522 U.S. 940, 118 S.Ct. 355 (1997), where four justices concurred in the denial of certiorari but recognized Texas law “[p]erversely ... prohibits the judge from letting the jury know when the defendant will become eligible for parole if he is not sentenced to death.” Brown, 118 S.Ct. at 356. According to the concurring justices, this perverse rule of law “unquestionably tips the scales in favor of a death sentence that a fully informed jury might not impose.” Id., at 356.

I agree with the Brown concurrence; it is perverse indeed when the decision to provide a capital jury with truthful sentencing information is left to the trial judge's discretion. I would hold capital juries must be provided with accurate and truthful information regarding a defendant's parole eligibility. Because the majority does not so hold, I dissent to the resolution of points of error four and five.

*****

OVERSTREET, Judge, concurring and dissenting.

I dissent to the majority's holding on points four and five which involve the failure to inform the jury that life imprisonment equals 40 years without parole for capital murder.

Appellant argues that a court's charge informing the jury that life imprisonment is equal to 40 years without parole would be relevant to whether he would be a continuing threat to society. Further, he argues that without this information the jury was prevented from weighing the mitigating effect of punishment testimony.

As I discussed in some detail in my dissent to Rhoades v. State, 934 S.W.2d 113, 131-44 (Tex.Cr.App.1996), in light of the United States Supreme Court's holding in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), I believe that the United States Constitution's guarantees of due process required appellant's jury be informed of the 40 year parole eligibility law.

I also note that four members of the Supreme Court have recently commented upon the “[p]erverse[ness]” of our death penalty scheme not letting the jury know when the defendant will become eligible for parole if he is not sentenced to death. Brown v. Texas, 522 U.S. 940, 118 S.Ct. 355, 139 L.Ed.2d 276 (1997). I also find rather perverse keeping jurors ignorant and uninformed of such a critical legal fact when making life and death decisions as to whether the death penalty will be assessed. By excluding the fact that life imprisonment is equal to 40 years in prison, appellant was denied due process of law.

I respectfully dissent to the majority's discussion and holding as to points four and five. Otherwise, I concur in the disposition of all other points.

Whitaker v. Quarterman, 200 Fed.Appx. 351 (5th Cir. 2006) (Habeas).

Background: Following appellate affirmance, 977 S.W.2d 595, of his state court conviction of capital murder and sentence of death, and final appellate affirmance of denial of his state court petition for post-conviction relief, petitioner sought federal writ of habeas corpus. The United States District Court for the Southern District of Texas dismissed petition, and petitioner sought certificate of appealability (COA).

Holdings: The Court of Appeals, Dennis, Circuit Judge, held that:
(1) any deficiency in state trial counsel's research and presentation of mental health mitigation evidence did not rise to level of ineffective assistance;
(2) any ineffectiveness in federal habeas counsel's presentation of state court ineffectiveness claim did not excuse failure properly to present federal habeas claim;
(3) petitioner's claim that combination of state death penalty statute and state's plea offer imposed unconstitutional burden on his exercise of his rights to jury trial and to plead not guilty was procedurally defaulted;
(4) state death penalty statute and state's plea offer did not impose unconstitutional burden on petitioner's exercise of his rights to jury trial and to plead not guilty; and
(5) petitioner was not entitled to inform penalty phase jury that alternative to death sentence in his case was life imprisonment with possibility of parole. Certificate of appealability denied.

DENNIS, Circuit Judge:

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

Petitioner George Whitaker, a Texas death row inmate, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 with the United States District Court for the Southern District of Texas on March 4, 2004. The district court dismissed Whitaker's petition in an opinion and order dated March 18, 2005. Whitaker now seeks a Certificate of Appealability (“COA”) from the district court's decision on three of his claims for relief.

I. Background

Whitaker was convicted of capital murder by a Texas jury on March 26, 1996. During the punishment phase of Whitaker's trial, Whitaker's counsel presented mitigation evidence in the form of testimony from a number of Whitaker's friends and relatives, who testified generally that Whitaker was a good-natured and law-abiding citizen. Among the defense witnesses called during the punishment phase was Whitaker's mother, who testified that, among other things: (i) Whitaker's father had beaten him when he was a child; (ii) Whitaker had attempted to commit suicide on several occasions; and (iii) Whitaker fell from a moving truck and hit his head when he was a child. Whitaker's trial counsel did not present any expert testimony during the punishment phase of the trial, and counsel did not have Whitaker examined by a mental health expert at any point prior to or during the trial.FN1 At the conclusion of the punishment phase, Whitaker was sentenced to death.

FN1. In affidavits submitted in connection with Whitaker's state post-conviction proceedings, Whitaker's trial counsel stated that they did not retain a mental health expert because they felt that such an expert would not assist them in this case. Counsel also stated that they made a strategic decision not to offer expert testimony during the punishment phase of Whitaker's trial because “family members are always much more persuasive and are in a much better position than any expert to present a better and more complete picture of the applicant's background.”

Whitaker unsuccessfully appealed his sentence and conviction in the Texas state courts, and the United States Supreme Court denied Whitaker's petition for a writ of certiorari. Whitaker then filed a state habeas petition, which was also denied by the state courts. While Whitaker's state habeas petition was pending, but after the deadline for filing a state petition had expired, Whitaker filed a “supplement” to his petition, which contained three additional claims (including one of the claims that he asserts in this court). The Texas Court of Criminal Appeals dismissed Whitaker's supplemental petition as an abuse of the writ and declined to address the merits of any of petitioner's additional claims.

Whitaker then filed his federal habeas petition in the district court. The district court granted the State's motion for summary judgment, dismissed Whitaker's petition in its entirety, and denied a COA. Whitaker now requests a COA from this court on three claims: (1) that trial counsel was ineffective for failing to adequately investigate and present expert mitigating evidence concerning Whitaker's mental condition at the punishment phase of his trial; (2) that the Texas death penalty statute, combined with the State's plea bargain offer of life imprisonment, imposed an unconstitutional burden on Whitaker's rights to a trial by jury and to plead not guilty, in violation of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); and (3) that Whitaker was constitutionally entitled, under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), to inform the jury that, if sentenced to life imprisonment, rather than death, he would not be eligible for parole for 40 years.

II. Legal Standard

Our review of Whitaker's request for a COA is governed by the Antiterrorism and Effective Death Penalty Act, which provides that a petitioner can appeal a district court's dismissal of a petition under 28 U.S.C. § 2254 only if either the district court or this court issues a COA. See 28 U.S.C. § 2253(c)(1); Fed. R.App. P. 22(b)(1). A court can issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

The Supreme Court has explained that under this standard, a COA should issue only when the petitioner demonstrates “that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Thus, a petitioner seeking a COA must show that “ ‘reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.’ ” Id. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

When determining whether a petitioner has established an entitlement to a COA, we do not fully consider the underlying factual and legal bases in support of the petitioner's claims. Id. at 336, 123 S.Ct. 1029. Rather, this court conducts only a limited, “threshold inquiry into the underlying merit of [the petitioner's] claims.” Id. at 327, 123 S.Ct. 1029. Finally, in capital cases, doubts over whether a COA should issue are to be resolved in favor of the petitioner. See Newton v. Dretke, 371 F.3d 250, 254 (5th Cir.2004).

III. Discussion

A. Ineffective Assistance of Counsel

Whitaker first asserts that he is entitled to a COA on his claim that trial counsel was ineffective during the punishment phase of his trial for failing to adequately investigate and present mitigating evidence relating to his mental health and mental condition.

To succeed on a claim for ineffective assistance of counsel, Whitaker must show both that trial counsel's performance was constitutionally deficient and that he was prejudiced by counsel's deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We measure the adequacy of counsel's performance against an objective standard of reasonable performance based on accepted professional norms. See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005) (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052).

To establish prejudice, a petitioner must show that there is a reasonable probability that, absent counsel's deficient representation, the outcome of the proceedings would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To assess prejudice during the sentencing phase of a capital proceeding, the court “reweigh[s] the evidence in aggravation against the totality of the available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

In this case, Whitaker argues that trial counsel conducted an inadequate investigation into potential mitigation evidence during the punishment phase of his trial. Specifically, Whitaker asserts that, although counsel knew that Whitaker was beaten as a child, periodically suffered seizures, had attempted to commit suicide on several occasions, and had suffered a head injury after falling from a moving truck as a child, counsel failed to have Whitaker examined by, or to present testimony from, a mental health expert during the punishment phase of his trial. Whitaker asserts that this constitutes deficient performance because, given this background information, any reasonable attorney would have at least had Whitaker examined by a mental health expert before concluding that it would not be helpful to use a mitigation or mental health expert at trial.

The state habeas court rejected Whitaker's claim. It held that trial counsel's failure to present mitigation evidence from a mental health expert or a mitigation expert did not rise to the level of ineffective assistance of counsel because the alleged failures resulted from the reasonable strategic decisions of trial counsel. The district court dismissed this claim because it found that Whitaker had failed to establish that the state court's decision was an unreasonable application of Strickland. The district court noted that the mitigating evidence in question was presented to the jury through the testimony of Whitaker's mother, and it found that Whitaker had failed to show how this evidence would have been presented differently by a mental health expert.

The district court also found that, because Whitaker had not produced an opinion from a mental health expert in support of his claims, the court could “only speculate on how a mental health expert could have developed punishment phase evidence that had a reasonable probability of a different result,” and that “[s]uch speculation cannot serve as the basis for habeas relief.” Whitaker v. Dretke, No. 04-886, slip op. at 29 (S.D.Tex. Mar. 18, 2005); see also id. at 18 (noting that Whitaker's failure to show that an expert would have uncovered mitigating evidence different from that presented at trial was a “fatal flaw” of Whitaker's ineffective assistance claim).

We find that reasonable jurists could not debate the district court's resolution of Whitaker's ineffective assistance of counsel claim, and, accordingly, we deny Whitaker's request for a COA on this claim. Although reasonable jurists could debate whether Whitaker's trial counsel should have had Whitaker examined by a mental health expert,FN2 they could not debate the district court's finding that Whitaker cannot prevail on this claim because he has failed to make any showing of what additional mitigation evidence further investigation would have uncovered or how that evidence could have changed the outcome of the penalty phase of his trial.

FN2. See Roberts v. Dretke, 356 F.3d 632, 639-40 (5th Cir.2004) (finding that reasonable jurists could debate whether counsel's failure to develop evidence of mental illness was deficient performance in light of available information suggesting that defendant had mental problems).

This court has often stated that a petitioner alleging ineffective assistance of counsel on the basis of a failure to investigate “must allege with specificity what the investigation would have revealed and how it would have changed the outcome of the trial.” Miller v. Dretke, 420 F.3d 356, 361 (5th Cir.2005) (citing United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989)); Lockett v. Anderson, 230 F.3d 695, 713 (5th Cir.2000) (quoting Green, 882 F.2d at 1003).

Here, Whitaker has not made any showing of how further investigation, such as the retention of a mental health expert, would have helped his mitigation case. This is not a case in which the petitioner asserts that trial counsel simply failed to uncover potential mitigation evidence about the petitioner's background. Rather, Whitaker asserts that counsel was aware of the relevant information, which was presented to the jury through the testimony of Whitaker's mother, but that counsel's investigation fell short because counsel failed to investigate the potential mental health significance of this background information. Yet Whitaker has failed to present any evidence, such as an affidavit from a mental health expert, to show that further investigation would have yielded any significant mental health mitigation evidence. As the district court noted, without such evidence, we “can only speculate on how a mental health expert could have developed punishment phase evidence that had a reasonable probability of a different result.” Whitaker, No. 04-886, slip op. at 29.

Whitaker openly acknowledges this deficiency and attributes it to the failure of state habeas counsel.FN3 The law is clear in this circuit, however, that ineffective assistance of state habeas counsel does not excuse a petitioner's failure to properly present his federal habeas claims. See, e.g., Elizalde v. Dretke, 362 F.3d 323, 328-31 (5th Cir.2004); Martinez v. Johnson, 255 F.3d 229, 240-41 (5th Cir.2001); Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.2001). Thus, Whitaker instead asserts that he does not need actual evidence of what a mental health expert could have added to his mitigation case. Rather, he argues that this court can simply take judicial notice of the potential value of mental health mitigation evidence.

FN3. Whitaker also asserts that federal habeas counsel would be barred from introducing such evidence in support of his claims for the first time in the federal habeas proceedings because of the exhaustion doctrine. See, e.g., Anderson v. Johnson, 338 F.3d 382, 386-87 (5th Cir.2003) (noting that exhaustion doctrine prevents a petitioner from presenting in federal court material additional evidence not presented to the state court). We need not decide here whether any new evidence would be barred by exhaustion principles, however, because Whitaker did not present any new evidence before either this court or the district court.

We decline Whitaker's invitation to find that a petitioner can establish ineffective assistance of counsel without any showing as to (1) what additional evidence would have been available had counsel conducted a reasonable investigation; or (2) how that evidence could have affected the outcome. Although we recognize that testimony from a mental health expert is frequently a valuable source of mitigation evidence in capital sentencing proceedings, we simply cannot assume that such evidence would have been available or reasonably likely to lead to a different result in any particular case absent some indication as to what a mental health expert would have testified on the witness stand. To do so would eviscerate Strickland, as it would permit a petitioner to establish a constitutional violation based on nothing more than speculation.

Accordingly, we deny Whitaker's request for a COA on his ineffective assistance of counsel claim. Reasonable jurists could not debate the district court's ultimate determination that Whitaker has not met his burden of showing that counsel's failure to further investigate or present mental health mitigation evidence constitutes ineffective assistance of counsel.

B. The Jackson Claim

Whitaker next argues that his death sentence is unconstitutional because the state's plea offer of life imprisonment impermissibly burdened his rights to plead not guilty and to be tried by a jury. Whitaker first raised this claim in his untimely “supplement” to his original state habeas petition. Although the state court clerk initially treated this supplemental filing as a part of Whitaker's original petition, the Texas Court of Criminal Appeals ultimately characterized the filing as a second or successive pleading and dismissed it as an abuse of the writ. The district court dismissed this claim after finding both that the claim was procedurally defaulted and that it was ultimately meritless.

1. Procedural Default

Where a state court has previously dismissed a habeas petitioner's claim pursuant to an adequate and independent state procedural ground, a federal court will not consider that claim unless the petitioner shows either (i) cause for the default and actual prejudice; or (ii) that a fundamental miscarriage of justice will result if the claim is not considered. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This court has repeatedly held that a dismissal for abuse of the writ under Texas law is an adequate and independent state procedural ground for dismissal. See Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir.2005).

Whitaker does not seriously dispute that his supplemental state habeas petition, which contained his Jackson claim, was untimely under Texas law. Nor does Whitaker attempt to show either cause and prejudice or a fundamental miscarriage of justice. Rather, Whitaker argues only that the court should not read the Texas statute governing the filing of capital habeas petitions “hyper-technically” to deem a supplemental petition successive when the supplemental petition is filed before the original petition is decided on the merits. Because Whitaker neither disputes that the Texas Court of Criminal Appeals was permitted to treat his supplemental petition as a second or successive petition as a matter of Texas law nor asserts that the Texas procedural rule conflicts with federal law, we find that the district court properly dismissed this claim as procedurally defaulted.

2. The Merits

Even were Whitaker's Jackson claim not procedurally defaulted, we would still deny his request for a COA because reasonable jurists could not debate the district court's resolution of this claim on the merits. In Jackson, the Supreme Court held that a section of the Federal Kidnaping Act violated the defendant's Fifth and Sixth Amendment rights because it permitted the death penalty to be imposed on only those defendants who insisted on asserting their rights to plead not guilty and to be tried by a jury. 390 U.S. at 582-83, 88 S.Ct. 1209.FN4

The Court found that, because the statute reserved the death penalty exclusively for defendants who were convicted after a jury trial, it impermissibly penalized those defendants for choosing to assert their constitutional rights. Id. at 582-83, 88 S.Ct. 1209. Whitaker asserts that the Texas capital sentencing scheme is analogous to the statutory scheme in Jackson because it permits a defendant charged with capital murder to avoid a possible death sentence only if the defendant agrees to plead guilty and the state agrees not to seek the death penalty.

FN4. The Jackson court interpreted the statutory provision at issue in that case to prohibit a death sentence in cases where the defendant either pleaded guilty or waived the right to a jury trial. See id. at 581, 88 S.Ct. 1209 (“Under the Federal Kidnaping Act, therefore, the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die.”).

Whitaker's argument is meritless. First, Whitaker ignores a crucial distinction between the statutory scheme in Jackson and the Texas capital sentencing scheme. In Jackson, a defendant could be sentenced to death only if he pleaded not guilty and insisted on a trial by jury; if the defendant either pleaded guilty or waived a jury trial, a death sentence could not be imposed. Under Texas law, however, a defendant who pleads guilty to a capital offense still faces the possibility of a death sentence unless the prosecution agrees not to seek the death penalty. Thus, the Texas statute does not impermissibly reserve the death penalty for those defendants who assert their constitutional rights. See Corbitt v. New Jersey, 439 U.S. 212, 217, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978); Spinkellink v. Wainwright, 578 F.2d 582, 608 (5th Cir.1978). Second, Jackson does not prevent prosecutors from exercising their discretion to offer the possibility of a lesser sentence in exchange for a guilty plea, even in cases involving the death penalty. See Brady v. United States, 397 U.S. 742, 747-53, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Spinkellink, 578 F.2d at 608-09. Accordingly, the prosecution's plea bargain offer in this case did not violate Jackson, and we deny Whitaker's request for a COA on this claim.

C. The Simmons Claim

Whitaker's final claim is that the trial court erred by not instructing the jury that, if sentenced to life imprisonment, Whitaker would not be eligible for parole for 40 years. In Simmons v. South Carolina, 512 U.S. 154, 168-69, 171, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the Supreme Court held that, in states where life without parole is a capital sentencing option, the defendant is entitled to inform the jury that the alternative to a death sentence is life without parole. This court has repeatedly refused to extend Simmons to require that state courts allow capital defendants to inform the jury about parole eligibility where a life sentence would include a possibility of parole. See, e.g., Coleman v. Quarterman, 456 F.3d 537, 544-45 (5th Cir.2006); Hughes v. Dretke, 412 F.3d 582, 591-92 (5th Cir.2005); Miller v. Johnson, 200 F.3d 274, 290-91 (5th Cir.2000). Accordingly, we find that reasonable jurists could not dispute the district court's resolution of this claim, and we deny Whitaker's request for a COA.

IV. Conclusion