Rogelio Cannady executed

By Corey Ryan - ValleyMorningStar.com

May 20, 2010

HUNTSVILLE — The State of Texas executed convicted murderer and former La Feria resident Rogelio Cannady on Wednesday night, 20 years after he killed two teenage runaways. Cannady, 37, was put to death after the U.S. Supreme Court refused to grant him a last-minute reprieve for killing his cellmate while serving two life sentences for the murders of the teenagers.

Just before his death, he spoke from the gurney to the witnesses. “I was in there now thinking about how we grew up,” Cannady said to his brother, Victor Villapando, and childhood friend, Gary Ojeda. “You know how we grew up in the same house. “We need to start loving each other like we used to.” Cannady did not address the brothers of one of his victims, who were present to witness the execution. He instead spent about three minutes talking to his own friends and family. “I thought it was going to be harder than this,” Cannady said, laughing. “I am ready to go. “I am going to sleep now. I can feel it, it’s affecting me.” Cannady was pronounced dead at 6:19 p.m.

In June 1990, Cannady and four other La Feria teenagers took part in the murders of Ricardo Garcia, 16, of Freer, and Ana Robles, 13, of Brownsville. Cannady’s role in the murders included stabbing Garcia 13 times, raping Robles and holding the girl down while another teenager strangled her, according to court records. Garcia’s two brothers, Roel Garcia and Leandro Garcia, were present. But there were no witnesses for Robles or Leovigildo Bonal, the cellmate for whose murder Cannady was executed. Cannady did not receive the death penalty until the 1993 slaying of Bonal, his 55-year-old cellmate at a Bee County prison.

Cannady claimed to have killed Bonal to avoid being sexually assaulted, according to court records. He claimed that Bonal had made several sexual advances towards him. A state law that went into effect in 1993 requires a capital murder charge for anyone serving a life sentence for murder, who is then charged with another murder. Cannady was the first inmate to be charged under that law.

For his last meal, Cannady ate seven beef-and-cheese enchiladas, pico de gallo, two cheeseburgers, fries and two pieces of fried chicken. Cannady was the 10th prisoner executed in Texas this year. There were 327 prisoners on death row as Wednesday dawned. Cannady spent more than half of his life in prison.

On June 29, 1990, the night of the La Feria murders, Cannady and his friends were celebrating his release from Cameron County jail on robbery and assault charges, according to court records. He would soon earn a 20-year sentence for that crime. Two former sheriff’s deputies, who investigated the Garcia and Robles murders, said that Cannady had a reputation for getting into trouble. A 2008 news release from the Attorney General’s Office stated that Cannady’s arrest record began when he was 10 years old.

Just as there are two different stories about Cannady’s character, there are at least two different stories of what happened the night of the murders. There was the original confessions signed by Cannady and Solis in 1990. And then there was the chronology provided by the defense team that counseled Cannady for 12 years.

One story was violent and ruthless, while the other was filled with deception and accusations against investigators. Solis’ confession detailed how Cannady, known to his friends as Roy, stabbed Garcia. It stated that Solis and Cannady eventually threw Garcia in an irrigation canal behind Adams Gardens, a small community between La Feria and Harlingen. “When Roy was stabbing Rick with the knife, Roy was smiling …” Solis’ confession stated. “He was enjoying the killing.”

Danny Kuhlke, 18, Johnny Ray Lopez Garza, 17, and Luis Acosta, 16, met Cannady and Solis at the canal after Garcia was dead, Solis’ confession stated. Then, the five teenagers returned to Garza’s mobile home. There, Cannady took Robles into a bedroom and shower, where he raped her, prosecutors said. Eventually, Solis and Cannady choked Robles to death with a red bandana and threw her into another canal behind Adams Gardens, according to the confession.

Autopsies showed that Robles had been raped and strangled while Garcia had 13 stab wounds. “I remember that the coroner’s report said they kicked (Robles) twice when she fell out of the car,” said S.R. Garcia, the lead investigator on the case for the Cameron County Sheriff’s Department.

Garcia, now the police chief at San Benito Independent School District, was present at the confessions of Solis and Garza, according to court records. “We proved our case, but now they’re trying to come up with all kinds of stories,” Garcia said. “What do you expect from a man going down?”

Affidavits filed with Cannady’s latest appeal to the Fifth U.S. Circuit Court of Appeals in New Orleans earlier this week support the contention that the confessions of Cannady, Solis and Garza were coerced. Solis wrote a letter dated April 28, 2010, to one of Cannady’s lawyers denouncing the 1990 confession. That letter stated that he and Cannady were not present at the time of the murders.

Several of the affidavits filed with Cannady’s latest appeal refer to an allegation that there is an audio recording between two investigators with the District Attorney’s Office talking about how they coerced the confessions. However, no recording or transcript has ever been produced.

Tina Church, an investigator for Cannady’s lawyers since 1998, said that Cannady’s execution was a bigger mistake than the 2004 execution of Cameron Todd Willingham, a convicted arson killer whom she also represented. By killing Cannady, “all they will do is create a new set of victims,” said Church, the founder of an anti-death penalty group called The Other Victim’s Advocacy.

Herbert Hancock, the prosecutor in Cannady’s capital murder case, said, “I don’t embrace sending somebody to death row, but it is absolutely necessary some time, especially this time.”

CANNADY TIMELINE

* June 26, 1990: Ana Robles, 13, Rick Garcia, 16, and Luis Acosta, 16, run away from the Esperanza Home for Boys. They stay at the home of 19-year-old Elizabeth Ordonez in Adams Gardens, La Feria.

* June 29, 1990: A group of teenagers — including Rogelio Cannady, 18, Danny Kuhlke, 18, Francisco Solis, 18, John Ray Garza, 17, with Robles, Garcia and Acosta — have a party at Garza’s grandmother’s mobile home in Adams Gardens.

* June 30, 1990: The bodies of Robles and Garcia are found in an irrigation canal behind Adams Gardens. Police find that Robles had been raped and strangled while Garcia had been stabbed 13 times.

* July 18, 1990: Cameron County sheriff’s deputies arrest Cannady, Kuhlke, Solis, Garza and Acosta in connection with the murders.

* Jan. 21, 1991: Cannady and Solis plead guilty to murder, avoiding the death penalty. State District Judge Darrell Hester tells them both that they will be old men when they get out of prison.

* February 1991: Kuhlke and Garza are convicted of crimes in connection with the June 29 murders. “We’re very upset about (the murders) … it’s upsetting the whole community … Kuhlke and Garza were on the Honor Roll,” said William Green, the La Feria Independent School District superintendent in 1990.

* September 1993: A Texas Penal Code amendment goes into effect, requiring a capital murder charge for any person who while “serving a sentence of life imprisonment … murders another.”

* October 1993: Cannady, serving his sentence at the Texas Department of Criminal Justice McConnell Unit in Beeville, kills his cellmate, 55-year-old Leovigildo Bonal, with a belt and a padlock. Cannady claims it was in self-defense, saying Bonal had attempted to sodomize him. Bonal had been serving a 15-year sentence for murder.

* June 2, 1994: A Bee County grand jury indicts Cannady on a capital murder charge, based on the 1993 state law.

* Dec. 3, 1997: A jury finds Cannady guilty of capital murder. Cannady’s defense had argued that because the first murders occurred prior to the 1993 law, Cannady should not be charged under it.

* Nov. 18, 2008: The day before he is scheduled to be executed, a state district judge withdraws the death warrant. The execution is stayed until further order of the court.

* May 19, 2010: Cannady is executed by lethal injection.

ProDeathPenalty.com

On October 10, 1993, Rogelio Reyes Cannady caused the death of a 55-year-old Hispanic male Texas prison inmate inside a medium custody housing area at the McConnell Unit in Beeville. While serving two consecutive life sentences for murders he committed on June 29, 1990, Cannady beat his cellmate, Leovigildo Bombale Bonal, to death with a padlock attached to the end of his belt. The prison guards found Bonal lying on the cell floor with his hands tied behind his back with a belt. Cannady had no apparent wounds or injuries, but his boots and clothing were covered with blood. He neither complained of injuries nor looked as if he had been assaulted in any way. Blood was splattered and smeared on the cell walls, the bedding of both bunks, and the furniture. Concealed in a pair of boots, the officers found a belt and the face of a combination lock. The body of the lock had been dumped in the cell's commode.

Bonal, who was serving a 15-year sentence for murder from Tarrant County, died two days later. A technician from the Texas Department of Public Safety Crime Lab analyzed the blood splatters and testified that their velocity indicated that the victim had been beaten. Patterns were created on the ceiling by blood flying off a weapon, possibly a combination lock. She also discerned that someone stomped in a puddle of blood or stomped on the victim lying in the blood or that the victim's head bounced up and down in the blood. Additionally, the technician had collected samples of blood from the cell, the belt, and Cannady's and Bonal's clothing. All blood samples were Type B and belonged to the same person. Bonal had Type B blood; Cannady has Type O blood.

Bonal's autopsy revealed numerous lacerations and abrasions on the scalp and face as well as lacerations, abrasions, and swelling on the arms, hands, and one leg. A circular imprint that matched the combination lock was found on his torso. He suffered two skull fractures and extensive hemorrhaging over the scalp and in the brain. One of the skull fractures was slightly circular in nature. The medical examiner matched the injuries to the lock retrieved from the cell. He also testified that it would take a fair amount of force to cause the fatal fractures and injuries Bonal sustained and that Bonal's injuries were consistent with homicide from the impact of a lock and from being stomped on by a person wearing boots.

Notwithstanding the gruesome evidence, Cannady testified that he killed Bonal in self-defense for fear of being raped. On the night of the killing, Cannady testified that he woke up when he thought he heard someone call "chow time." He allegedly got up to look out of the cell, but when he turned around he saw Bonal touching himself sexually. At that point, he confronted Bonal and hit him in the face. It seemed to Cannady that Bonal was trying to reach for something so Cannady grabbed his lock and attached it to his belt. Cannady then hit Bonal, believing Bonal was reaching for a weapon, and kept hitting Bonal because Bonal kept coming toward him. Cannady admitted that he hit and kicked Bonal repeatedly. He also admitted dismantling the weapon and tying Bonal's hands after Bonal became unconscious, both of which measures were allegedly done to prevent Bonal from striking back.

However, immediately after the attack, Cannady said Bonal was beaten because Cannady thought he was "responsible" for their not being served breakfast. Cannady was the first Texas prison inmate to be prosecuted under a 1993 statute that allows for capital murder convictions if the offender is serving 99 years or life as a result of previous murder convictions.

Cannady's prior murder conviction was for the murders of two runaways, Ricardo Garcia, 15 and Ana Robles, 13, who were discovered in an irrigation canal near La Feria. Cameron County authorities reported that Ricardo, of Freer had been stabbed 13 times and that Ana, of Brownsville, had been raped and strangled. Cannady has a long history of juvenile offenses that began in 1984. In addition, on December 10, 1989, when Cannady was seventeen years old, he committed a robbery in Harlingen, Texas. While he was out on bond for that crime, on June 29, 1990, in La Feria, Texas, Cannady murdered the teenagers. Cannady was tried and convicted of the robbery charge in September 1990, and sentenced to 20 years in prison. Though Cannady was originally charged with capital murder for the double homicide, in exchange for his guilty pleas, the charges were reduced to murder and he was sentenced to two consecutive life terms on January 22, 1991.

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

On January 22, 1991, Cannady was convicted for two murders he committed on June 29, 1990. He received a life sentence for each conviction. On October 10, 1993, Cannady killed a fellow inmate while in prison and was charged with committing capital murder under Texas Penal Code 19.03(a)(6). The version of the statute under which Cannady was indicted read as follows:

(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:

(6) the person, while serving a sentence of life imprisonment or a term of 99 years for the commission of any offense listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure, murders another; . . . .

This statute became effective September 1, 1993, and the "3g(a)(1)" offenses included murder, capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, and aggravated robbery. Murder and indecency with a child were both added to Art. 42.12 effective September 1, 1993.

Before trial, Cannady filed a motion alleging that the offenses for which he received his life sentences, and on which the capital murder indictment relied, were committed before September 1, 1993. Because serving a life sentence for a particular crime is an element of capital murder under Texas Penal Code 19.03(a)(6), and because the offenses for which he received his life sentences were committed before September 1, 1993, but were not "3(g)(1)" offenses until September 1, 1993, Cannady asserted that he was not subject to a capital murder charge. Therefore, Cannady argued, the allegations in the indictment should be quashed. On January 27, 1995, the trial judge agreed with Cannady's assessment and quashed the aggravating elements in the indictment, leaving the murder charge intact.

The record shows that, some time after the parties accepted the ninth juror, Cannady exhausted his fifteenth peremptory challenge. Cannady then requested five additional challenges and received two. After using those challenges, Cannady again requested additional challenges, but the request was denied. The twelfth juror was seated shortly thereafter over Cannady's objection. We find Cannady has preserved error with regard to these points.

In his sixth point of error, Cannady asserts that his challenge for cause against prospective juror Herring should have been granted because Herring stated that Cannady's being in prison would affect his ability to presume Cannady innocent. Article 35.16(a)(10) provides in pertinent part that a challenge for cause may be made by either the State or the defense when:

there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict.

[I]f the juror states that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case.

In his eighth point of error, Cannady asserts that his challenge for cause against prospective juror Christensen should have been granted because Christensen evinced a clear bias against the law of self-defense. Article 35.16(c)(2) provides in pertinent part that a challenge for cause may be made by the defense when:

he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.

The record reveals that Christensen was a correctional officer in a federal prison. Furthermore, he was acting in his official capacity when a prisoner in his unit killed another prisoner. At the trial on that case, the defendant pleaded self-defense. Although he did not see the entire event as it occurred, Christensen was called as a witness and expressed his view to the jury that the defendant had not killed in self-defense. Christensen commented during voir dire that he "was one of the first [persons] at the scene" of the killing in the unit where he was a guard (implying that he did not see the incident from the beginning). But he admitted that he did not hear the other evidence presented at trial. The jury acquitted the inmate of the offense and, although Christensen expressed his dissatisfaction with that outcome, he replied that he had not formed an opinion about Cannady's guilt or innocence. He stated that even as a correctional officer, he would listen to the case and make a determination based solely on the facts and the law.

Given the totality of Christensen's voir dire and the fact that, despite his occasional confusion on an issue, he consistently said that he would listen to the facts and follow the law, we cannot say the trial judge abused his discretion in denying Cannady's challenge for cause. Point of error eight is overruled.

In his ninth point, Cannady alleges the trial court did not allow him to question veniremember Rohr about her definition of "impartial" when "she worked with law enforcement, knew people in the District Attorney's Office, knew several of the State's witnesses, stated that if she was the defendant she would not want herself on the jury, stated that she was biased for the State, yet insisted she could be fair and impartial."

When Cannady initially took the stand for direct questioning, his counsel asked him about his experiences since going to prison and about the events leading up to the instant offense. Defense counsel established that shortly after the instant offense, Internal Affairs Division investigator William Lazenby came to speak with Cannady about the incident, after which internal prison disciplinary proceedings commenced. Later, defense counsel brought out that Cannady had lied in some of the statements he had made to Lazenby. Cannady also mentioned that he had spoken with an attorney between talking to Lazenby and attending the hearing on his disciplinary proceedings.

During the State's cross-examination, the prosecutor attacked Cannady's credibility using those lies and the fact that Cannady seemed to have changed his story after talking to an attorney. In his brief, Cannady sets out a fair amount of cross-examination testimony and a number of places where he objected to the State's questions. But his point of error focuses only on the trial court's handling of his motions for mistrial. We shall review only the two instances where Cannady made such requests. The pertinent testimony is as follows:

[BY THE STATE:]

Q. You lied when you talked to Bill Lazenby the first time, didn't you, sir?

A. Yes, sir, I did.

Q. You also lied when you told Captain Lazenby that you pulled that man off that top bunk and beat him after he crawled up there the first time after you hit him. You lied about that, too, didn't you?

A. Yes, sir.

Q. I notice also when you were taken out of that cell before you had an opportunity to talk to the lawyers, you weren't crying like a baby when you were walking down that hall, were you? [Cannady apparently cried during his testimony at trial.]

A. No, sir, I was not.

Q. You were acting like you was [sic] as calm as a cucumber, weren't you?

A. No, sir.

Q. You were hollering to your cell mates. What were you telling your cell mates when you were walking down those stairs? "I beat him down"? Did you tell them that?

A. No, sir, I did not.

Q. What defense did you create then with the testimony when -- before you had a chance to talk to a lawyer?

A. None, sir.

Q. And you're telling this jury also that what you said in that statement that's on that television [videotape] before you had a chance to talk to your lawyer is all a lie.

[DEFENSE COUNSEL]: Your Honor, at this moment in time, I make another objection. Any reference to his lawyer. He's attacking the defendant through --

He's constantly saying, "After you talked to your attorneys, you changed your testimony." We object. He's attacking the defendant over the Defense Lawyer's shoulder, Your Honor.

THE COURT: All right. Rephrase the question. Sustain the objection.

[DEFENSE COUNSEL]: We ask for an instruction to disregard, Your Honor.

THE COURT: The jury's already been told that anytime the Court sustains an objection, they're not to consider it in any respect. Anytime the Court permits or overrules an action, they may consider it and give the proper weight to it. And that will be true at this time.

[DEFENSE COUNSEL]: And we move for a mistrial, Your Honor.

THE COURT: Be overruled.

[BY THE STATE:]

Q. Okay. And that's what you told the investigator before you talked to anyone; is that correct?

A. Yes, sir.

Q. You told the investigator on that videotape that, after you hit the old man, he crawled back upon the bunk and you pulled him off.

A. Yes, sir.

Q. And what you're saying now, that's a lie.

A. Yes, sir.

Q. All right. So you lied about why it started, you lied about what you used, and you lied about what you did in the fight because you were trying to deceive the investigator; is that correct?

A. Yes, sir.

Q. After you hit him in this situation, you said, "Oh, hold it. I'm sorry, man. Just -- all I wanted to do is hit you a couple of times. Now then you understand where we are. Go on back to your bunk and go to sleep."

A. No, sir.

Q. You didn't do that. You didn't understand the law to say that you got to retreat just a little bit, so you're molding your testimony to fit --

[DEFENSE COUNSEL]: I object again.

THE COURT: I sustain the objection.

[DEFENSE COUNSEL]: And I move for a mistrial, Your Honor.

THE COURT: Be overruled. We're asking a lay witness a law question.

In the first instance, the prosecutor got Cannady to admit that what he said before speaking to an attorney was a lie. If anything, this implies that meeting with his attorney caused Cannady to tell the truth. This is quite the opposite of a claim that Cannady's attorney allowed or even encouraged Cannady to lie.

In the second instance, the prosecutor's accusation that Cannady was molding his testimony to fit what he understood the law to be was an accusation pointed directly at Cannady. There was no implication that Cannady's counsel was involved at all. Cannady's second supplemental point of error is overruled.

[BY THE STATE:]

Ladies and gentlemen of the jury, this [charge] was generated by [Cannady], and you as a jury have a right to consider the fact that he's been convicted for two murders, that he's been convicted of robbery, and use that as part of whether or not you believe this man could, under any stretch of anybody's imagination, tell you the truth. He doesn't have that ability. He don't [sic] even know what the truth was. If it stood up today and hit him in the face he wouldn't recognize it. That's where he stands at this time, and he tells you he is weak. His lawyer tells you he's weak. His lawyer would have you believe that he's weak. But is he?

The testimony that he give [sic] you from that witness stand tells you that he is a predator, that he stalks his prey. And I find it absolutely impossible to understand how any lawyer could stand up --

[DEFENSE COUNSEL]: Your Honor, I object at this moment in time, he's attacking the Defendant over the shoulder of the defense attorney, Your Honor.

THE COURT: All right. Rephrase.

[BY THE STATE:]

How anything or anybody could stand up and tell a jury --

[DEFENSE COUNSEL]: Your Honor, again, we renew the same objection, Your Honor, he's attacking the Defendant over the shoulder --

THE COURT: Your argument is he's attacking [the] Defendant over counsel's shoulder?

[DEFENSE COUNSEL]: Yes, Your Honor.

THE COURT: I'll sustain the objection.

[DEFENSE COUNSEL]: We ask for a mistrial, Your Honor.

THE COURT: Be overruled.

In his argument, Cannady cites Article 36.01(a)(1) which states in pertinent part that "[w]hen prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held." This section contemplates that prior convictions are not to be admitted until the punishment phase, whereas Cannady's motion and his point of error, which both assert that he should have been allowed to "bifurcate the guilt/innocence phase," seem to suggest that the guilt/innocence phase actually be split into two stages.

In his sixth supplemental point of error, Cannady asks, "Does Article 42.08(b) require Cannady's death sentence to be cumulated with, or stacked on, the sentence he was serving at the time of the offense?" Article 42.08(b) states as follows:

If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.

In Basden, the defendant had been assessed three sentences: 50 years for an aggravated robbery, 15 years for an attempted capital murder, and 50 years for an aggravated assault -- both of the latter offenses were committed while Basden was in prison. Basden contended that, under the statute, his 15-year and his second 50-year sentence should run consecutive to the first 50-year sentence, while running concurrently to each other. The lower court, on the other hand, determined that the 50-year sentence for assault would run consecutively to the 15-year attempted capital murder sentence, which was scheduled to run consecutively to the original 50-year sentence for aggravated robbery.

But our interpretation in Basden does not apply when a defendant has been sentenced to death for a crime committed while in prison. While we held that the legislative intent of Article 42.08 was clearly to deter inmates from continued criminal behavior, it is equally clear that the Legislature did not contemplate the sentence of death when considering concurrent versus consecutive sentencing. This conclusion is clear for several reasons. First, delaying a death sentence until other sentences are served would place the defendant in the exact position the Legislature intended him not to be: the position of being able to commit further crimes without fear of punishment -- for how can he be punished after he is dead (since any subsequent sentence assessed would have to be stacked onto his death sentence pursuant to Basden and Article 42.08(b)). Indeed, it would give him an unlimited license to kill.

Another indication that the Legislature did not contemplate the imposition of the death penalty when drafting Article 42.08(b) is found in the very language used. For a sentence to "commence" or to be "completed" implies that it has a beginning and an end. A death sentence occurs in an instant -- its beginning and end merged into a single act. The language of Article 42.08, on the other hand, reflects a service of a period of time over days, years, or decades. Although a defendant can be under a sentence of death for a period of time, the actual service of that sentence occurs only in a brief moment.

Finding no reversible error, we affirm the judgment of the trial court.

*****

1. Tex. Penal Code Ann. 19.03(a); Art. 37.071 2(g). Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.

2. Art. 37.071 2(h).

3. State v. Cannady, 913 S.W.2d 741 (Tex. App.-- Corpus Christi 1996, pet. ref'd).

4. See Cannady, 913 S.W.2d at 744.

5. Cannady v. Texas, 519 U.S. 1060 (1997).

6. Cannady, supra; see also Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998) and State v. Mason, 980 S.W.2d 635, 640-641 (Tex. Crim. App. 1998).

7. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied, 117 S.Ct. 1561 (1997).

8. Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986), cert. denied, 482 U.S. 920 (1987).

9. Penry v. State, 903 S.W.2d 715, 732 (Tex. Crim. App.), cert. denied, 516 U.S. 977 (1995); Martinez v. State, 763 S.W.2d 413, 425 (Tex. Crim. App. 1988), cert. denied, 512 U.S. 1246 (1994).

10. Curry v. State, 910 S.W.2d 490, 493 (Tex. Crim. App. 1995).

11. See Hughes v. State, 878 S.W.2d 142, 152 (Tex. Crim. App. 1992); Kemp v. State, 846 S.W.2d 289, 299 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 918 (1993).

12. Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997).

13. Id.

14. Penry, supra.

15. Janecka v. State, 937 S.W.2d 456, 471 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997).

16. Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim. App. 1997), cert. dism'd, 119 S.Ct. 290 (1998); Janecka, 937 S.W.2d at 470-471 & 471 n. 9.

17. Huffman v. State, 746 S.W.2d 212, 219 (Tex. Crim. App. 1988).

18. Id.

19. Id.

20. See Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996).

21. See Wilson, 938 S.W.2d at 59.

22. Id.

23. See, e.g., Wilson, 938 S.W.2d at 59.

24. See, e.g., Ransom v. State, 920 S.W.2d 288, 303 (Tex. Crim. App. 1994), cert. denied, 117 S.Ct. 587 (1996).

25. 510 U.S. 1141 (1994).

26. See, e.g., Raby v. State, 970 S.W.2d 1, 7 (Tex. Crim. App.), cert. denied, 119 S.Ct. 515 (1998); Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995), cert. denied, 519 U.S. 826 (1996).

27. See Tex. R. App. P. 38.1(h); Henderson v. State, 962 S.W.2d 544, 572 (Tex. Crim. App. 1997), cert. denied, 119 S.Ct. 437 (1998); Sonnier v. State, 913 S.W.2d 511, 520 (Tex. Crim. App. 1995).

28. See State v. Cannady, 913 S.W.2d at 744-745.

29. Tuilaepa v. California, 512 U.S. 967, 971-972 (1994); Henderson v. State, 962 S.W.2d 544, 563 (Tex. Crim. App. 1997), cert. denied, 119 S.Ct. 437 (1998).

30. See, e.g., Henderson, 962 S.W.2d at 560.

31. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 458 (1988); Henderson, 962 S.W.2d at 560.

32. Henderson, 962 S.W.2d at 560.

33. Id.

34. Id.

35. Id.

36. See Ex parte Hernandez, 953 S.W.2d 275, 281 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 1135 (1998); Basden v. State, 897 S.W.2d 319, 321 (Tex. Crim. App. 1995); Richardson v. State, 865 S.W.2d 944, 956 (Tex. Crim. App. 1993).

37. See Article 42.12 3g(a)(1).

38. See Henderson, 962 S.W.2d at 562-563.

39. See id.

40. See id.

41. See Tex. R. Crim. Evid. 404(b).

42. See State v. Mason, 980 S.W.2d 635, 640 (Tex. Crim. App. 1998).

43. Jurek v. Texas, 428 U.S. 262 (1976).

44. See Article 42.18 8(d)(2); now codified as Gov't Code 508.150.

45. Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991).

46. Boykin, 818 S.W.2d at 785-86; see also Basden, 897 S.W.2d at 321.

47. See Boykin, 818 S.W.2d at 785-86; see also Basden, 897 S.W.2d at 321.

48. Basden, 897 S.W.2d at 321-322.

49. Basden, 897 S.W.2d at 322.

50. See Acts, 69^th Leg., Reg. Session 1985, Ch. 29, p. 404 (SB 186).

51. Basden, 897 S.W.2d at 321-322.

52. See Art. 43.14, et seq.

Cannady v. Dretke, 173 Fed.Appx. 321 (5th Cir. 2006). (Habeas)

Background: After conviction in state court for capital murder was affirmed on direct appeal, 11 S.W.3d 205, and state petitions for writ of habeas corpus were dismissed, petitioner filed federal petition for writ of habeas corpus. The United States District Court for the Southern District of Texas denied relief and refused to grant certificate of appealability. Petitioner sought certificate of appealability with Court of Appeals.

Holdings: The Court of Appeals held that: (1) petitioner did not receive ineffective assistance of counsel; (2) right to jury trial under Apprendi and Ring v. Arizona did not apply retroactively to death sentence that was final at time those holdings were issued; (3) petitioner was not entitled to evidentiary hearing on petition; and (4) statute making it capital offense for person serving life sentence to commit murder did not violate prohibition against ex post facto laws. Request for certification of appealability denied.

PER CURIAM:

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.

Rogelio Reyes Cannady was convicted and sentenced to death for murdering Leovigildo Bombale Bonal while Cannady was in prison serving two life sentences for prior murders he committed. After he exhausted state remedies, Cannady filed a federal petition for a writ of habeas corpus. The district court denied relief and refused to grant a certificate of appealability (“COA”).

Cannady now seeks a COA from this court on four issues: ineffective assistance of trial counsel; whether his claim of ineffective assistance of counsel concerning his defense of actual innocence was procedurally defaulted; the district court's denial of an evidentiary hearing; and Cannady's ex post facto challenge to Texas Penal Code § 19.03(a)(6). We deny the request for a COA on all issues.

I. BACKGROUND

On October 10, 1993, while serving two consecutive life sentences for murders he committed in 1990, Cannady beat his cellmate, Bonal, to death with a padlock attached to the end of his belt. The prison guards found Bonal lying on the cell floor with his hands tied behind his back with a belt. Cannady had no apparent wounds or injuries, but his boots and clothing were covered with blood. He neither complained of injuries nor looked as if he had been assaulted in any way. Blood was splattered and smeared on the cell walls, the bedding of both bunks, and the furniture. Concealed in a pair of boots, the officers found a belt and the face of a combination lock. The body of the lock had been dumped in the cell's commode.

Patricia Graham of the Texas Department of Public Safety Crime Lab analyzed the blood splatters and testified that their velocity indicated that the victim had been beaten. Patterns were created on the ceiling by blood flying off a weapon, possibly a combination lock. Graham also discerned that someone stomped in a puddle of blood or stomped on the victim lying in the blood or that the victim's head bounced up and down in the blood. Additionally, Graham had collected samples of blood from the cell, the belt, and Cannady's and Bonal's clothing. All blood samples were Type B and belonged to the same person. Bonal had Type B blood; Cannady has Type O blood.

Bonal's autopsy revealed numerous lacerations and abrasions on the scalp and face as well as lacerations, abrasions, and swelling on the arms, hands, and one leg. A circular imprint that matched the combination lock was found on his torso. He suffered two skull fractures and extensive hemorrhaging over the scalp and in the brain. One of the skull fractures was slightly circular in nature. The medical examiner matched the injuries to the lock retrieved from the cell. He also testified that it would take a fair amount of force to cause the fatal fractures and injuries Bonal sustained and that Bonal's injuries were consistent with homicide from the impact of a lock and from being stomped on by a person wearing boots.

Notwithstanding the gruesome evidence, Cannady testified that he killed Bonal in self-defense for fear of being raped. He asserted, among other things, that shortly after Bonal became his cellmate, Bonal sat down near him and started rubbing Cannady's leg. Bonal also made several sexually suggestive comments to him, that, to Cannady, were especially ominous in a prison setting.

On the night of the killing, Cannady testified that he woke up when he thought he heard someone call “chow time.” He allegedly got up to look out of the cell, but when he turned around he saw Bonal touching himself sexually. At that point, he confronted Bonal and hit him in the face. It seemed to Cannady that Bonal was trying to reach for something so Cannady grabbed his lock and attached it to his belt. Cannady then hit Bonal, believing Bonal was reaching for a weapon, and kept hitting Bonal because Bonal kept coming toward him. Cannady admitted that he hit and kicked Bonal repeatedly and used a weapon fashioned from a lock and a belt. He also admitted dismantling the weapon and tying Bonal's hands after Bonal became unconscious, both of which measures were allegedly done to prevent Bonal from striking back.

Cannady's counsel stipulated in open court in the guilt/innocence phase that Cannady had committed two murders in 1990 for which he was serving two consecutive life sentences at the time of Bonal's killing. The life sentences formed the legal predicate for a capital murder verdict.FN2 The Texas Court of Criminal Appeals affirmed Cannady's conviction and sentence, Cannady v. State, 11 S.W.3d 205 (Tex.Crim.App.2000), and dismissed his application for a writ of habeas corpus, Ex Parte Cannady, No. 25,462-02 (Tex.Crim.App. May 23, 2001). Another state habeas application was dismissed as an abuse of the writ. Ex Parte Cannady, No. 25,462-03 (Tex.Crim.App. Oct. 22, 2003).

FN2. On June 2, 1994, Cannady was indicted for capital murder. At a pretrial hearing on January 27, 1995, the trial court quashed the capital allegations in the indictment on the grounds that the prior offenses occurred before the effective date of the law that made the offense a capital crime. The State appealed and on January 4, 1996, the Court of Appeals for the Thirteenth Judicial District of Texas reversed the trial court's ruling and reinstated the capital allegations. State v. Cannady, 913 S.W.2d 741, 743-44 (Tex.App.1996).

Cannady filed a state federal habeas corpus petition, summary judgment was granted for the State and the court refused to grant a COA on any of the issues he raised. Cannady now seeks a COA from this court in order to appeal the adverse judgment.

II. DISCUSSION

To obtain a COA under AEDPA, which governs this case, Cannady must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Thus, he “must demonstrate that reasonable jurists could find the district court's resolution of his constitutional claims debatable or that reasonable jurists could conclude that the issues presented are adequate to deserve encouragement to proceed further.” Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir.2005) (citing Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, it only “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. Nevertheless, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [the defendant's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).

Upon a grant of COA, however, AEDPA imposes a deferential standard of federal court review with respect to claims adjudicated on the merits in state court. To obtain habeas relief, a petitioner must demonstrate that the state courts' decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). In federal court review, a state court's factual findings are presumed to be correct, and this presumption can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Against these background criteria, we address each of Cannady's issues.

A. Ineffective Assistance of Counsel

To establish a violation of the Sixth Amendment right to counsel, Cannady must show that his counsel's representation was deficient, and the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Deficient legal representation is that which falls below an objective standard of reasonableness, measured against prevailing professional norms and viewed under the totality of the circumstances. Id. at 687-88, 104 S.Ct. at 2064. Judicial scrutiny of counsel's performance must be highly deferential, and we must “indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. Cannady's ineffectiveness claim here rests on five contentions.

1. Failure to advise

Cannady first contends that his trial counsel failed to advise him to accept the State's offer of a plea bargain that would have spared him the death penalty in exchange for a sentence of sixty years. This contention contradicts the state habeas court findings, which were made following a three day hearing. The district court, applying AEDPA's presumption of correctness, relied on the state habeas court findings that: (1) Cannady had received and rejected an offer to plead guilty to capital murder in exchange for an agreement by the State not to seek the death penalty; (2) Cannady's counsel did inform him of an offer of sixty years in exchange for a plea to noncapital murder, which offer Cannady declined because the indictment for capital murder had been quashed by the trial court and his counsel thought that the ruling would be upheld by the appellate court; (3) Cannady was unwilling to plead guilty to murder if the plea required a lengthy sentence; and (4) after the Texas Supreme Court reinstated the capital indictment, the State offered no further plea agreements. The district court reasoned that, because the best offer made by the State carried a term of sixty years, and Cannady was unwilling to accept any plea with a lengthy sentence, he could not demonstrate that his counsel's alleged failure to communicate the offer caused him any prejudice.

Cannady's principal burden before the district court was to rebut the State's findings by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and the district court determined that he failed to provide such evidence. At best, he selectively rehashed the state habeas testimony without impugning the finding that his attorney made him aware of the plea offer and he declined it. Alternatively, the district court determined that the state court reasonably concluded that even if Cannady's counsel did not inform him of the plea offer, the deficiency did not prejudice his defense because he was unwilling to accept a lengthy sentence. In light of the presumption of correctness the district court was required to accord the state court's findings in reviewing the habeas petition, Cannady has failed to make the required showing. Reasonable jurists could not debate the district court's resolution of this claim.

2. Failure to stipulate

Cannady next argues that he was deprived of effective legal assistance because his trial counsel failed to stipulate to Cannady's two prior murder convictions outside the jury's presence. Cannady argued to the district court and in his brief to this court that the inaction by his counsel prejudiced his defense because a stipulation would have avoided having two officers testify in the penalty phase. The district court found no prejudice resulted from counsel's failure to stipulate, because the officers' testimony regarding Cannady's prior crimes was clearly relevant to the penalty phase issue of Cannady's future dangerousness, and therefore would not have been precluded by an earlier stipulation to the murders. Reasonable jurists could not debate the district court's resolution of this claim.

3. Failure to object to officer's testimony

Cannady next contends that he was deprived of effective legal assistance because his trial counsel failed to object to “hearsay” testimony by two police officers in the penalty phase. In determining Strickland prejudice in the penalty phase, “the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. The district court noted that, by the time of sentencing, the jury knew that Cannady previously had been convicted of two murders, and was serving life sentences for those murders when he stomped and bludgeoned his cellmate to death. Consequently, the court determined that even if counsel had successfully objected to the officer's testimony, there was little probability that the jury would not have concluded that Cannady posed a future danger or that the mitigating evidence outweighed the evidence of future dangerousness. The district court's resolution of this claim is not debatable.

4. Failure to object to jury charge

Cannady urges that a COA is warranted because his trial counsel failed to object to two errors in the punishment charge. The trial court instructed the jury that if it sentenced Cannady to life imprisonment, he would have to serve at least thirty-five years before becoming eligible for parole. However, the law at the time of trial rendered him ineligible for parole until he served forty years. The district court determined that, although Cannady's counsel should have objected to the erroneous charge, no prejudice was caused by the error:

There is simply no reasonable probability that the jury would have found a triple murderer, who they were sentencing for a murder he committed while already serving two life sentences for two prior murders, any less dangerous if they knew that he would have to serve 40, rather than 35, years before becoming eligible for parole. The very fact that he murdered Bonal while serving two life sentences demonstrated that Cannady posed a danger if sentenced to life imprisonment. Cannady v. Dretke, No. C-01-273, slip op. at 25 (S.D.Tex. April 29, 2005).

Cannady also asserts that counsel should have objected to the punishment charge because it did not specify that the findings on both special issues were to be beyond a reasonable doubt. In the district court, Cannady argued that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), required the State to prove beyond a reasonable doubt that there was nothing sufficiently mitigating about Cannady to justify a life sentence. The district court noted that neither Ring nor Apprendi had been decided at the time of Cannady's trial in 1997. The court then held that Cannady's counsel “did not render deficient performance by failing to anticipate the Supreme Court's decisions in cases decided approximately three and five years after Cannady's trial.” Cannady, No. C-01-273, slip op. at 26. Even if Cannady's substantive claims have merit,FN1 the district court's holding is not debatable. Neither Ring nor Apprendi existed at the time Cannady's conviction became final, neither case applies retroactively, FN2 and his counsel could not have been ineffective for failing to object to issues based on Supreme Court cases that were yet to be decided. Therefore, we need not grant a COA on this claim.

FN1. It is unlikely that a Ring challenge can be made to Texas's procedure of entrusting the jury alone with a capital punishment decision. Further, Apprendi has yet to be applied to prior convictions. FN2. See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 2526, 159 L.Ed.2d 442 (2004) (“ Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review.”); United States v. Brown, 305 F.3d 304, 310 (5th Cir.2002) (holding that the procedural rule announced in Apprendi is not retroactively applicable to AEDPA petitioners).

5. Failure to assess counsel errors cumulatively

Cannady seeks to magnify his individual ineffectiveness claims with a plea of cumulative error. The district court recognized that “cumulative error may provide a basis for habeas relief if the cumulative effect of the errors was to deny the defendant due process.” Cannady, No. C-01-273, slip op. at 26 (citation omitted). Such errors must “amount to ‘the failure to observe that fundamental fairness essential to the very concept of justice,’ ” and “ ‘must be of such quality as necessarily prevent a fair trial.’ ” Id. (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941)). In light of the fact that each of Cannady's ineffectiveness claims failed to satisfy at least one of the elements of Strickland, and considering the overwhelming evidence that Cannady beat Bonal to death while serving life sentences for two other murders, the district court reasonably concluded that the alleged errors did not prevent a fair trial. As reasonable jurists could not debate the district court's resolution of this contention, we will not issue a COA.

B. Procedural Default

Cannady challenges the district court's finding that he did not present to the state courts his claim of ineffective assistance of counsel for failing to assert his actual innocence. In consequence of his procedural default, the district court could not review the claim unless refusal to do so would have resulted in a miscarriage of justice. A miscarriage of justice, according to the Supreme Court, is actual innocence, meaning “the prisoner must show a fair probability that, in light of all the evidence ... the trier of the facts would have entertained a reasonable doubt of his guilt.” Kuhlmann v. Wilson, 477 U.S. 436, 454 n. 17, 106 S.Ct. 2616, 2627 n. 17, 91 L.Ed.2d 364 (1986).

Cannady's claim of actual innocence of capital murder was based on self-defense. As the district court noted, under Texas law a person may use self-defense if “he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force,” but that the use of force is not justified “if the actor provoked the other's use or attempted use of unlawful force.” Tex. Penal Code § 9.31(a). The court determined that Cannady was not legally justified in using force, and therefore could not establish that actual innocence, because (1) Cannady admitted at trial that Bonal was sitting on his own bed when Cannady went over and struck him; (2) Cannady admitted that Bonal did not first attack him; (3) Bonal did not begin to use physical force until after Cannady attacked him; and (4) there was no reasonable basis for Cannady to believe that the use of force was immediately necessary to protect himself.

In light of the evidence in this case, reasonable jurors could not entertain a reasonable doubt of his guilt, and reasonable jurists could not debate the district court's conclusion that Cannady lacked legal justification in using force. In the absence of any possible miscarriage of justice, Cannady's underlying claim of counsel error is procedurally defaulted. A COA is not appropriate.

C. Evidentiary Hearing

Cannady next asserts that he is entitled to a COA to contest the district court's denial of an evidentiary hearing. The court, however, held that none was required because Cannady did not demonstrate any factual dispute whose favorable outcome would have entitled him to relief, and each of his claims could be resolved by reference to the state court record. In this part of his COA application, Cannady argues in a wholly conclusional fashion that he has shown many issues of disputed fact entitling him to relief.

Neither in the district court nor in this court did Cannady even attempt to satisfy the statutory requirements that would justify an evidentiary hearing. See § 2254(e)(2). He asserted no retroactive rule of constitutional law “that was previously unavailable”, see § 2254(e)(2)(A)(i). Not one of Cannady's claims relied on a “factual predicate that could not have been previously discovered through the exercise of due diligence.” See § 2254(e)(2)(A)(ii). Finally, none of the facts underlying any of Cannady's claims would convince a reasonable jury that Cannady is actually innocent of capital murder. See § 2254(e)(2)(B). AEDPA prescribes a presumption of correctness for state factual findings, which can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The district court presumed the correctness of the state court findings after determining that Cannady could not rebut the presumption with clear and convincing evidence. Therefore, because reasonable jurists could not find the district court's resolution of the need for an evidentiary hearing debatable, or that the district court abused its discretion in denying a hearing, we will not grant a COA.

D. Ex Post Facto

Cannady argues that he is entitled to a COA on whether the district court erred in denying relief on his ex post facto challenge to Texas Penal Code § 19.03(a)(6). Section 19.03(a)(6) makes it a capital crime when murder is committed by an inmate serving a sentence of ninety-nine years or life imprisonment.FN3 Cannady contends that because an element of the capital murder charge-his life sentences-occurred before the effective date of the statute, the State is barred by the Ex Post Facto clause, U.S. Const. art. I, § 9, cl. 3 and art. I § 10, cl. 1, from applying this statute to him.

FN3. TEXAS PENAL CODE § 19.03. Capital Murder (a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and: ... (6) the person: ... (B) while serving a sentence of life imprisonment or a term of 99 years for an offense under Section 20.04, 22.021, or 29.03, murders another. The Texas Court of Criminal Appeals rejected this argument, noting that the legislators' intent in passing the law was to deter inmates already serving long sentences from murdering other inmates. State v. Cannady, 913 S.W.2d 741, 743-44 (Tex.App.1996). The court held that the defendant's status as an inmate serving a sentence of ninety-nine years or life, rather than the date of his prior convictions or the underlying offense, is an element of the § 19.03(a)(6) crime. Cannady fulfilled the necessary status on and after the effective date of § 19.03(a)(6).

The district court reviewed the state court decision and likened § 19.03(a)(6) to “recidivist, or ‘three strikes,’ statutes which enhance penalties for crimes committed after the effective date of the statute based on prior convictions.” Cannady, No. C-01-273, slip op. at 33. In so doing, the court noted that “[b]oth the Supreme Court and the Fifth Circuit have held that such enhancements do not violate the Ex Post Facto clause,” id., and should not be “viewed as either a new jeopardy or additional penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Id. (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948)). The district court's enhancement reasoning is perfectly apt.

In view of the Texas Court of Appeals decision and the state record, the district court held that § 19.03(a)(6) did “not retroactively punish Cannady's prior offenses; rather, it enhance[d] the possible penalty for his murder of Bonal because of his then-current status as a convicted murderer serving two life sentences,” and therefore § 19.03(a)(6) did “not violate the constitutional prohibition against ex post facto lawmaking.” Id. at 34. Reasonable jurists accordingly could not debate the district court's resolution of Cannady's ex post facto claim.

III. CONCLUSION

For the reasons discussed above, we deny Cannady's application for a COA on all claims and as such lack jurisdiction to review the district court's denial of habeas relief on these claims. See Miller-El, 537 U.S. at 335-36, 123 S.Ct. at 1039.