Catina Carrier recently broke off her relationship with Whitaker
because of his abusive behavior. Whitaker went to her mother's
home armed with a .45 caliber handgun and forced his way inside.
He shot Ms. Carrier once in the shoulder. Her 5-year-old daughter,
Ashley, ran upstairs. Whitaker followed her and pistol whipped her
into unconsciousness. He then found Ms. Carrier's 16-year-old
daughter, Shakeitha, on the second floor and shot her once in the
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, causing
permanent brain damage. Mary Carrier had permanent nerve damage
and lost the use of her right hand. Shakeitha died from her head
wound. Whitaker's former girlfriend, Catina, was not at her
parents' home at the time of the shooting.
Whitaker v. Quarterman, 200 Fed.Appx. 351 (5th Cir. 2006)
Whitaker v. State, 977 S.W.2d 595 (Tex.Crim.App. 1998.) (Direct
"First off I'd like to say to Mr. and Mrs. Carrier, I apologize
for your pain and suffering. I pray Lord, please forgive me. To my
family, to my brother Gerard, I love you, Harold, I love you. To
my step father Paul, I love you. Momma, I will always love you.
Take care of my daughters, Kaneisha and Ieisha. Dad loves you.
Continue to pray for me, I am fine. I have made peace with God.
Please don't ever forget me. I love you mom. I love you all, take
care. I love you too pop, keep your head up. Take care. I am going
on to sleep.
Texas Department of
Inmate: George H. Whitaker III
Date of Birth: 11/21/70
Date Received: 06/14/96
Education: 11 years (GED)
Date of Offense: 06/15/94
County of Offense: Harris
Native County: Harris
Hair Color: Black
Eye Color: Brown
Prior Prison Record: None
Texas Attorney General
Wednesday, November 5, 2008
Media Advisory: George Whitaker Scheduled For
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
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.
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
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
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
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
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
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
"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
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.
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
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
George H. Whitaker III
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
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
"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
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
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
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,
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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).
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
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.
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
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
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
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.
For the reasons explained above, we find that
reasonable jurists could not dispute the district court's
resolution of Whitaker's claims, and we therefore deny Whitaker's
request for a COA in its entirety.