Citations:

Pondexter v. State, 942 S.W.2d 577 (Tex.Cr.App. 1996) (Direct Appeal).
Pondexter v. Dretke, 346 F.3d 142 (5th Cir. 2003) (Habeas).

Final/Special Meal:

Two fried chicken legs, two fried chicken thighs, macaroni and cheese, biscuits, peach cobbler and lemonade.

Final Words:

"Well, first I want to say. They may execute me but they can't punish me because they can't execute an innocent man. I am not mad. Jack Herrington, I am not mad. You were given a job to do but that's neither here nor there. I am not mad. I am disappointed by the courts. I feel like I was upset and let down by them. But that's O.K. I just played the hand that life dealt me. Look at my life and learn from it. I am very remorseful about what I did. I apologize. To my kids, Daddy loves you. Irene Wilcox, Thank you. It's been a long journey. Thank you for being there. Tell Jack hello. I know I am wrong but I am asking ya'll to forgive me."

Texas Department of Criminal Justice

Texas Attorney General

Monday, February 23, 2009

Media Advisory: Willie Pondexter Scheduled For Execution

AUSTIN -- Texas Attorney General Greg Abbott offers the following information about Willie Earl Pondexter, who is scheduled to be executed after 6 p.m. on Tuesday, March 3, 2009. Pondexter was convicted and sentenced to die for the murder of Martha Lennox. The evidence presented at trial is as follows.

FACTS OF THE CRIME

On Oct. 28, 1993, Pondexter and four other men discussed robbing Martha Lennox, an elderly woman. All five men went to Lennox’s Clarksville home. One of the men left the group, and the other four others proceeded, with Pondexter kicking in the front door to Lennox’s home.

The four men entered Lennox’s bedroom, where the 85-year-old Lennox was sitting on the bed. After taking Lennox’s money, James Henderson, one of the men, shot the woman in the head, then handed the gun to Pondexter, who also shot Lennox in the head. Henderson and Pondexter were tried separately, and both men were sentenced to death for the robbery and slaying of Lennox.

PROCEDURAL HISTORY

A Red River County grand jury indicted Pondexter on Dec. 14, 1993, for the capital murder of Martha Lennox. The venue for the case was shifted from Red River County to Bowie County. On July 19, 1994, a jury found Pondexter guilty of capital murder. After a separate punishment hearing, the trial court sentenced Pondexter to death.

On Oct. 16, 1996, the Texas Court of Criminal Appeals affirmed Pondexter’s conviction and sentence and denied rehearing on Jan. 29, 1997. The U.S. Supreme Court denied Pondexter’s petition for a writ of certiorari on Oct. 6, 1997.

On Oct, 31, 1997, Pondexter filed a state application for a writ of habeas corpus, which he later amended. The trial court held an evidentiary hearing on Pondexter’s claims. After a hearing, the court entered findings of fact and conclusions of law recommending that relief be denied. On Jan. 17, 1999, the Texas Court of Criminal Appeals adopted the trial court’s findings of fact and conclusions of law in an order denying Pondexter’s habeas application.

On Nov. 30, 1999, Pondexter filed a federal petition for writ of habeas corpus in U.S. district court, raising 20 claims for relief. On Sept. 26, 2002, the federal district court granted relief on Pondexter’s first claim, concluding that trial counsel’s decision not to consult with and offer the testimony of a pathologist deprived Pondexter of the effective assistance of counsel. Because the district court granted relief on Pondexter’s first claim, it did not address his remaining nineteen claims and dismissed them as moot. However, the Fifth U.S. Circuit Court of Appeals later vacated the district court’s judgment on Sept. 16, 2003, and remanded for further proceedings.

After Pondexter’s appeal was denied by the Supreme Court, the case was remanded back to the district court, which issued a second memorandum opinion on Sept. 27, 2006, rejecting all of Pondexter’s claims and granting the state’s motion for summary judgment. Thereafter, the Fifth Circuit Court affirmed the district court’s decision and denied habeas relief on July 29, 2008. On Dec. 9, 2008, Pondexter filed a writ of certiorari in the U.S. Supreme Court. The petition is pending. On Feb. 13, 2009, Pondexter filed a civil rights suit in a U.S. district court. On Feb. 18, 2009, Pondexter asked the U.S. district court for a stay of execution. The court denied the request for a stay.

EVIDENCE OF FUTURE DANGEROUSNESS

In August 1991, Pondexter was seventeen-years old when the State of Oklahoma adjudicated him a juvenile delinquent and made him a “ward of the court” based on his stipulation to having committed assault and battery, trespassing, and two counts of disturbing the peace in Oklahoma.

In November 1992, a Clarksville, Texas, policeman arrested Pondexter for unlawfully carrying a weapon. Pondexter had in his possession a 9MM pistol and a plastic bag of bullets. In May 1993, Pondexter committed assault and battery with a dangerous weapon in Oklahoma. He pled no contest to the charges that followed, and was sentenced to 12-years probation, which Oklahoma revoked in October 1993 when Pondexter failed to report and failed to pay supervision fees and court costs in accordance with his probation terms.

Pondexter later bragged to a former girlfriend that he committed an assault and battery with a dangerous weapon offense by shooting a man during an argument. In October 1993, Pondexter also told the ex-girlfriend that he got away with shooting another man because his attorney successfully suppressed his confession to that crime.

The former girlfriend once witnessed Pondexter wield a gun while chasing someone, but by the time a police officer arrived on the scene, Pondexter had hidden the weapon. In June 1993, Pondexter attacked and robbed a man in Oklahoma. On October 10, 1993, Pondexter was in Oklahoma when he robbed a woman of her coat and stabbed her in the head, lungs, and stomach with a pair of scissors while participating in a gang assault of her. On October 29, 1993, the day after he killed Lennox in Clarksville, Pondexter and his companions spent Lennox’s money on gasoline and drove her car to Dallas, where Pondexter suggested robbing a convenience store. They robbed nearby pedestrians instead.

DeathRow-USA

Posted by Brian Stull, Capital Punishment Project

CAPITAL PUNISHMENT: Texas’s Failed Clemency Process.

Yesterday evening at 6:18 p.m. CST, the State of Texas executed a man who posed no danger to society; a man who was universally understood to have undergone complete transformation and rehabilitation since his 1993 conviction for burglary and murder. Willie Earl Pondexter, executed two days shy of his 35th birthday, was a changed man.

Undisputedly, Texas did not execute the same violent, young person who committed his crime over 15 years ago. In the words of a corrections officer who had come to know Pondexter during his incarceration, he "could safely live out his days in a structured environment." The officer stated, "You would be hard-pressed to find anyone to say something bad about Pondexter."

Texas justifies its death sentences on a jury’s finding that a convicted capital murderer will constitute a threat of future danger if not executed. In 1976, in Jurek v. Texas, the Supreme Court approved this sentencing scheme, stating that a jury’s determination of future dangerousness is no "different from the task performed countless times each day throughout the American system of criminal justice." The Court cited bail as but one example. But while a wrong bail decision can later be modified if turns out a defendant is not a flight risk or risk to the public, there is no solution when it turns out a jury’s determination of future dangerousness — and resulting death sentence — has proven wrong.

Texas law provides no formal mechanism for revisiting a jury’s determination of future dangerousness — something that could well spare a condemned person who, like Pondexter, turns out not to be violent. That leaves the state’s executive clemency process, the procedure the U.S. Supreme Court in Herrera v. Collins, called our criminal justice system’s "fail safe."

But the fail safe utterly failed in Pondexter’s case. The State of Texas thwarted the clemency process by reportedly harassing Pondexter’s legal team. His attorneys sought to interview corrections officers and obtain statements that would affirm his transformation during incarceration. But according to published accounts and a lawsuit filed by Pondexter’s attorneys, two Harvard law students who had sought to interview a corrections officer in Polk County, near Texas’s death row, were reportedly directed by a sheriff’s deputy to the sheriff’s office, issued trespassing warnings, interrogated, told they likely would be jailed if they returned to the guard’s property, and told to advise the sheriff’s office before returning to the county. Other officers whom the defense team approached said they feared being written up or fired if they spoke with the defense team about Pondexter or signed an affidavit in his favor.

Without the information the guards had to impart about Pondexter, of course, neither the Texas Board of Pardons and Parole nor the Governor could make an accurate determination of whether Pondexter’s extraordinary rehabilitation warranted sparing him the death penalty in favor of living out the rest of his days in prison. Pondexter had no meaningful access to the "fail safe" of clemency.

If Texas’ process for determining who lives and who dies cannot be relied upon — and Pondexter’s case clearly exposes that it cannot be — then the state should forfeit its right to execute anyone.

"Greetings“

First of all I would like to say that I hope and pray that you all are able to greet each day with a simile.

Helen Rice once wrote that friendship is a priceless gift that cannot be bought or sold but its value is far greater then a mountain of gold: And this is my reason for this introduction letter. I am seeking this precious and priceless gift and if anyone out there can assist me in this endeavour I would be forever grateful.

I was born March 5th 1974. I like to think of myself as a man with principles and self-respect for myself and for others. I don’t lie or play head games. I am ambitious despite standing in death’s shadow here on death row, unlike many men here I strive to live my life to the fullest every day. I am interested in getting to know someone and in turn have them to get to know me and if anyone can appreciate these qualities, then please let yourself be known. I am seeking someone to not be behind me but beside me every step of the way. And I am not asking for anything that I am not willing to give in return. You know sometimes when we’re at a difficult time in our lifes we don’t reach out for help, maybe it’s because we’re proud. Maybe we think we’d be bothering someone with our troubles. Perhaps we’re embarrassed or we might think that what’s troubling us has never bothered anyone else before, and we’re afraid to show our fears and our feelings, well this used to be me, but now I realize that one man can not do this alone, but am I too late in my realization? I am a stranger in this prison world and there is a severe solitude and painful lonesomeness in my exile, is there anyone out there to help break these chains that have me tied up.

My dear readers please allow me to ask you all a few questions. Let’s say that you all are going mountain climbing with a group and one of the guys accidentally slips and falls over the edge, but when ya’ll look over, you all see that he is holding on by nothing but his fingernails and you all know that there is only a certain amount of time before all of his energy is reduced to nothing and he’s forced to give up and let go. Could you all as human beings stand there and watch knowing that you all have the power to save this mans life? Look at him, you all can see the fear in his eyes. You all can hear the pleading and terror in his voice as he begs for help. Could you all stand there and watch all of his strength being zapped away by fatigue and desperation? Could you all stand there and watch as each finger slips its hold one by one? And then all of a sudden he looks at you with tears in his eyes and says: “Tell my children I love them”, as his last finger slips its hold and he’s falling rapidly towards the jagged rocks below. So now I ask you, could you sleep at night knowing that you could’ve played a part in saving a man’s life by simple throwing him a rope / lifeline?

Please don’t misunderstand me my dear readers. I am not writing this to make anyone feel a sense of guilt. I am writing this to say, weather it’s raising a child or running a corporation or moulding the character of a cell mate. Everyone has the power and opportunity to impact someone’s life, even if it’s something as simple as sending a “thinking-of-you-card”. You see my dear readers. I am that man that is hanging over the edge by nothing more then my fingernails. My name is Willie E. Pondexter Jr. and I’ve been sentenced to die by lethal injection for a crime I did not do, and being here is the equivalence to hanging onto the side of a cliff. Is there anyone out there to throw me a rope / lifeline? I once read that it takes two of us to discover truth: one to utter it, and one to understand it. Well, I am willing and ready to utter it, but is there anyone out there willing and ready to understand it? If there is, please contact me at:

Willie E. Pondexter Jr. #999111
Polunsky Unit
3872 F.M. 350 South
Livingston, Texas 77351 U.S.A.
God Bless You.

Willie Pondexter

StandDown.typepad.com

Attorneys for Willie Pondexter have filed this petition with the U.S. Supreme Court, today. He is scheduled to be executed tomorrow evening.

Last week, Pondexter's attorneys filed a federal civil rights lawsuit complaining that the Polk County Sheriff's office and TDCJ were interfering with their ability to gather evidence to plead for clemency from the Texas Board of Pardons and Paroles. The U.S. Fifth Circuit Court of Appeals dismissed the suit without ruling on the questions presented in the suit.

Earlier coverage of the harrasment by Polk County officials is here.

Pondexter's case for clemency is based on rehabilitation and not being a future danger. Backing that up is one TDCJ guard who has urged that Pondexter's death sentence be commuted to life in prison. The Board of Pardons and Paroles would have to make such a recommendation and the governor would have to approve the recommendation.

Texas' unique reliance of predictions of future behavior does not allow any judicial remedy for a faulty conclusion reached by trial jurors. Only the BPP with the governor's agreement can make such a correction under the Texas system.

I discussed this unique Texas criminal justice problem last October in this post. Here's an excerpt:

Even in Texas the death penalty is supposed to be reserved for the worst of the worst. One of the unique aspects of Texas criminal law is a reliance on predictions of future behavior in determining whether or not a person is sentenced to death. In order for any person to receive a death sentence, all 12 jurors must agree that the individual will represent a continuing threat; a future danger. Some have likened it to a ticking time bomb, bound to explode.

That charge to the jury, “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” is written into the Texas Criminal Code.

Keep in mind that means being a continuing threat in a prison setting, one of the most secure, locked down environments on the planet. It means being a danger to cause harm not to the general public, but to other inmates, prison employees and guards.

Eric Nenno assaulted and killed a child in 1995. When he was convicted in Harris County in 1996, all 12 jurors voted that he would be a future danger, and Nenno was sentenced to death. He faces a scheduled execution tonight in Huntsville. But what if that prediction was wrong?

And:

Executive clemency in Texas has been criticized by many criminal justice watchers as failing to live up to its historic responsibility as a failsafe. The facts of Eric Nenno’s case called out for serious review by the Board. He has proven on a daily basis over the past 160 months that he has not been a continuing threat. He has demonstrated that he is not the worst of the worst. But the Board of Pardons and Paroles rejected Nenno's clemency petition, as noted in this earlier post.

The prediction answered in 1996 got it wrong. It seems that the Texas Board of Pardons and Paroles was not interested in revisiting the question or how to set it right.

This reliance on predictions of future behavior was the subject of Texas Defender Service's, "Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness." It was published in 2004.

In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.

Pondexter v. State, 942 S.W.2d 577 (Tex.Cr.App. 1996) (Direct Appeal).

Defendant was convicted upon jury verdict in the 102nd Judicial District Court, Red River and Bowie Counties, Webb Biard, J., of capital murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Overstreet, J., held that: (1) defendant did not establish prima facie violation of requirement that there be fair cross-section of community represented on venire; (2) trial court's finding that prosecutor's use of peremptory strikes on minority veniremembers was constitutional was not clearly erroneous; (3) evidence of defendant's gang affiliations and activities was irrelevant and inadmissible; but (4) erroneous admission of gang affiliations and activities evidence was harmless; and (5) imposition of death penalty did not constitute cruel and unusual punishment. Affirmed.

OVERSTREET, Judge.

Appellant was indicted for the offense of capital murder pursuant to V.T.C.A. Penal Code § 19.03(a)(2), alleging murder in the course of committing and attempting to commit burglary of a habitation or robbery, alleged to have occurred on or about October 29, 1993, in Red River County. Prior to trial, venue was changed from the 6th Judicial District Court of Red River County to the 102nd Judicial District Court of Red River and Bowie Counties. In July of 1994, in a trial by jury, appellant was found guilty of capital murder. The jury answered the two statutory special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071 “yes” and “no” respectively. The trial court assessed punishment at death. Appeal to this court is automatic pursuant to article 37.071 § 2(h) V.A.C.C.P. In his appeal to this court, appellant raises twenty four points of error.

I. SUMMARY OF PERTINENT FACTS

On the night of October 28, 1993, Ricky Bell, James Bell, Deon Williams, and appellant met at an apartment and discussed robbing “an old lady.” Following this discussion, the group walked to a corner store, and then to the decedent's house where they checked to see what kind of car she owned. The group then walked to a trailer park, and then to a friend's house. Once there, they met with James Henderson. Appellant borrowed a car and all five drove to Annona to buy beer and go to a club. During the drive to and from Annona, the five talked about robbing the old lady, and about “crips and bloods and stuff.” Specifically, they discussed which crip “had the heart” to do what they were planning to do to the old lady. On the way to the decedent's house, the group stopped at a store where they talked about which crip had the heart to knock out a man who happened to be getting gas. Although Williams and Henderson did get out of the car, no harm was actually done to the man. The group drove to the decedent's house, but parked the car a few blocks away. On their first attempt to enter the house, they were scared away by the sight of a patrolling police car. Four of the five ran back to the car, but James Bell ran in another direction and was not seen by the rest of the group again that night. Appellant, Henderson, Williams, and Ricky Bell went back to the decedent's house where appellant kicked in the front door. All four proceeded up the stairs and into the bedroom where the decedent was sitting on her bed. Once all four were in the bedroom, Williams took the seven dollars that was in the decedent's coin purse. Immediately thereafter, Henderson shot the decedent in the head and then handed the gun to appellant, who also shot the decedent in the head. They took the decedent's car, and drove to Dallas where they were arrested in the decedent's car.

II. VOIR DIRE

In points of error six and seven appellant contends that the trial court violated the Sixth Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by refusing to dismiss the petit jury array. Appellant contends that because there was undisputed statistical evidence to show that African-Americans made up twenty-two percent of Bowie County and less than ten percent of the veniremembers on the petit jury array were African-American, the venire did not represent a fair cross-section of the community as required by Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) and Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

Prior to trial, appellant filed a motion challenging the jury array, and a hearing was held. Appellant introduced evidence that minorities comprised only about ten percent of the panel, while African-Americans made up about twenty-two percent of the population of the county. The State countered first by reminding the court that under Article 35.07 of the Code of Criminal Procedure, a party may challenge the array only on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or acquittal. The State also argued that appellant had not met its burden under the second and third prongs of Duren.

As set out in Duren, in order to establish a prima facie violation of the requirement that there be a fair cross section of the community represented, appellant must show: 1) that the group alleged to be excluded is a “distinctive” group in the community; 2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren, 439 U.S. at 364, 99 S.Ct. at 668.

In the instant case, appellant did meet the first prong of Duren, because the group allegedly excluded is distinctive; African-Americans. However, for the following reasons, appellant fails to carry his burden in meeting prong two, a showing of unfairness and unreasonableness, and prong three, a showing of systematic exclusion. The record shows that veniremembers were chosen randomly, by computer through voter registration, driver's license and identification card registration lists. There was no evidence introduced by appellant that showed that the difference between the percentage of African-Americans in the county and the percentage on the jury panel was in fact not fair and reasonable. While on its face, ten percent of the array versus twenty-two percent county-wide raises an inference of unfairness or unreasonableness, appellant failed to show that the number of African-Americans who qualified for the selection process (registered voters, and those with driver's licenses or identification cards) were of the same or similar percentages as the population of the county.

Appellant also failed to show “systematic exclusion.” Appellant brought forth information relating only to the venire in this case. In May v. State, 738 S.W.2d 261, 269 (Tex.Cr.App.1987), we stated that “disproportionate representation in a single panel does not demonstrate the systematic exclusion of distinctive groups in violation of appellant's rights under the Sixth Amendment.” Additionally, as previously stated, the veniremembers were chosen through voter registration, driver's license and identification card registration by computer. Appellant simply offered no evidence that the selection process operated in any way to systematically exclude African-Americans from the panel.

Appellant also complains regarding a violation of the Equal Protection Clause of the Fourteenth Amendment. Castaneda, 430 U.S. at 492, 97 S.Ct at 1279, requires a showing of intentional discrimination. In the instant case, appellant fails to demonstrate in any manner that the underrepresentation of African-Americans was caused by intentional acts of the State. Appellant's sixth and seventh points of error are overruled.

In point of error eight, appellant contends that the trial court erred in failing to call a new jury array due to the prosecutor's purposeful use of peremptory challenges against veniremembers of the same race as appellant. The record establishes that appellant is African-American and that the State used peremptory challenges to remove all racial minorities from the panel. Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), once appellant has established a prima facie case, the burden shifts to the State to provide race-neutral reasons for striking the veniremembers in question. Appellant then has the burden of showing that the race-neutral reasons articulated by the State were in fact a pretext for discrimination. Williams v. State, 804 S.W.2d 95 (Tex.Cr.App.1991).

The record supports that appellant did establish a prima facie case by showing that all of the African-American, and in fact all racial minority, veniremembers were peremptorily struck by the State. The State offered the following reasons for exercising peremptory strikes on the minority veniremembers. The State explained that veniremember Anthony was struck because of a health problem that could affect her service as a juror. This veniremember stated that her problem would affect her ability to concentrate and be fair. The State explained that veniremember Brown was struck because she answered in her questionnaire that she was “pretty much totally against the death penalty,” later vacillated in her answers concerning the death penalty, and stated she was a State employee, and that she did not want to serve on this jury. The State explained that veniremember Sanchez was struck because she held the belief that based on the fact that life means life, she would lean towards assessing a life sentence and therefore may have problems following the law, and that she believed that the criminal justice system is fair “sometimes.” Finally, the State explains that veniremember Steptoe was struck because she held a Masters Degree in Psychology and has had professional contact with psychologists that may testify in this case.

In examining a Batson claim on appellate review, the reviewing court must determine whether the trial court's findings were clearly erroneous by examining the evidence in the light most favorable to the trial court's ruling. Williams, supra. Additionally, “absent some other evidence which rebuts the State's race-neutral explanation, we will not disturb the trial court's finding that the State's explanation is legitimate....” Chambers v. State, 866 S.W.2d 9, 25 (Tex.Cr.App.1993).

After reviewing the record under the above standards, appellant failed to meet his burden of rebutting the race-neutral reasons articulated by the State. In fact, there was no cross-examination of the prosecutor by appellant to invalidate any of the grounds enunciated by the State. In appellant's only attempt to meet his burden of persuasion, he did assert that there were caucasian veniremembers who also had health problems or who had concerns about the fact that life meant life, and were not struck by the State. In other words, appellant argued that the veniremembers who were struck were treated differently than others with the same problem. However, we have previously held, that “ ‘disparate treatment’ as such, cannot automatically be imputed in every situation where one of the State's reasons for striking a veniremember would technically apply to another veniremember whom the State found acceptable.” Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Cr.App.1993). Furthermore, we have held that when “the State has offered numerous race-neutral reasons for its challenge, we cannot say that the fact that there were other acceptable jurors possessing one or more of the objectionable attributes, is sufficient to establish disparate treatment.” Cantu v. State, 842 S.W.2d 667, 689 (Tex.Cr.App.1992). And in all of the State's explanations, the prosecutor asserted several race-neutral reasons for challenging each of the veniremembers. After examining the record, appellant's rebuttal was insufficient to establish that the State's reasons were a pretext, and we therefore find that the trial court's finding was not clearly erroneous. Appellant's eighth point of error is overruled.

In point of error nine, appellant contends that the trial court erred in failing to require the prosecution to deliver its notes taken during jury selection to him for use in cross-examination concerning the credibility of the prosecution's explanation for his peremptory challenges. As previously stated, once the State has supplied the court with its race-neutral explanations, the burden is on the defendant to show that these reasons are a pretext for racial discrimination. Appellant asserts that in order to meet this burden, he is entitled to cross-examine the prosecutor, as well as examine the notes taken by the State during voir dire. To substantiate this contention, appellant cites Rules 611, and 614(a) of the Texas Rules of Criminal Evidence. The State replies by noting that appellant failed to preserve this point of error by failing to object under Rules 611 or 614(a) at trial. Additionally, the State insists that the prosecutor was never called as a witness during this hearing, and that the notes that were taken do not constitute a “statement” under Rule 614, and that the notes constituted privileged work product.

Rule 611 provides that when a “witness uses a writing to refresh his memory for the purpose of testifying either while testifying or before testifying, an adverse party is entitled to have the writing produced at the hearing to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.” Tex.R.Crim.Evid. 611. The State asserts that the prosecutor was never called as a witness at this hearing, but we can not agree with this. Although the prosecutor was not actually sworn as a witness, he did give testimony to the court regarding the reasons for his peremptory strikes. However, appellant is only entitled to the notes if they were actually used by the prosecutor to refresh his memory. Since there is no evidence from the record to establish that the prosecutor did in fact use his notes to refresh his memory during or before his testimony, appellant's contention under Rule 611 must fail.

Rule 614(a) of the Texas Rules of Criminal Evidence provides that once a witness has testified on direct examination, the party who did not call that witness is entitled to examine and use “any statement of the witness” that relates to the subject matter of the witness' testimony. According to appellant, this means that appellant was entitled to the prosecutor's notes. Appellant failed to mention section (f) of the same rule. Rule 614(f) provides the definition of a “statement” for the purpose of this rule. A statement is defined as “a written statement made by the witness that is signed or otherwise adopted or approved by him.” Tex.R.Crim.Evid. 614(f). Again, the record does not establish that the prosecutor's notes were signed or in any way adopted by him. And even though appellant argues that the trial court erred in not preserving the notes as part of the record, it was appellant's duty to request the court to include the notes as part of the record. Appellant did not make such a request of the court. For all of the above reasons, the trial court did not err in failing to require the prosecution to turn over his notes to appellant, and appellant's ninth point of error is overruled.

In point of error ten, appellant contends that the trial court erred in overruling his motion to excuse veniremember Hall for cause based on her inability to disregard appellant's failure to testify during the trial. Appellant asserts that under Article 35.16(c)(2) of the Texas Code of Criminal Procedure, a challenge for cause should be sustained if the prospective juror “has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely[.]” According to appellant, veniremember Hall testified that she was unable to set aside her personal beliefs that an accused should testify on his own behalf if he is indeed innocent of the accused offense.

The State however, is correct in asserting that appellant has failed to preserve this point of error for review by this Court. It is well established that “error is preserved only if the defendant exhausts his peremptory challenges, is denied a request for an additional peremptory challenge, identifies a member of the jury as objectionable and claims that he would have struck the juror with a peremptory challenge.” Nelson v. State, 848 S.W.2d 126, 134 (Tex.Cr.App.1992); Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Cr.App.1986). The record demonstrates that appellant only used thirteen of his fifteen peremptory challenges. Since appellant has failed to properly preserve error by exhausting his peremptory strikes, appellant's tenth point of error is overruled.

III. GUILT/INNOCENCE

In points of error one, two, three and five, appellant contends that the trial court erred in admitting evidence of appellant's purported gang affiliations and activities. Appellant contends that by admitting this evidence, Rules 401, 403 and 404 of the Rules of Criminal Evidence were violated. Over defense objection, witness Williams testified that appellant and his accomplices made statements throughout the night about the crips gang. They talked about the fact that the crips and bloods fought one another, and discussed which crip had the heart to do what they were planning to do to the old lady. Additionally, there was testimony from this same witness that the group discussed which crip had the heart to knock out a man who was pumping gas at a gas station, and that two of the individuals involved performed a crip handshake after the murder. The State maintains that the testimony of witness Williams is both relevant under Rule 401 and as an exception to the general inadmissibility of extraneous acts under Rule 404(b), and therefore admissible.

Rule 404 explains that generally, evidence of other crimes, wrongs and bad acts is not admissible during the guilt/innocence stage of the trial, but § (b) of the rule does provide for some exceptions to this general rule. FN1 We must also remember that under Rule 402, in order for any evidence to be admissible, it must be relevant. This includes Rule 404 evidence, and so in order to address appellant's 404 claim, we must also determine if the gang evidence is relevant under Rule 401.

FN1. Rule 404(b) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case in chief such evidence other than that arising in the same transaction.

The State argues that this evidence of appellant's gang affiliations and activities is relevant as same transaction contextual evidence which is an exception to the general rule prohibiting admissibility of extraneous offenses. The State claims that in this case it was essential for the jury to know of the conversations and acts regarding gangs in order for the jury to have a clear and complete picture of the way the murder took place. The State is correct in stating that we have held in the past that the list of exceptions under Rule 404(b) is “neither mutually exclusive nor collectively exhaustive,” and that we have previously addressed the issue of same transaction contextual evidence, finding such to be admissible in certain cases. Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Cr.App.1990); Rogers v. State, 853 S.W.2d 29, 33 (Tex.Cr.App.1993); and Moreno v. State, 721 S.W.2d 295 (Tex.Cr.App.1986). In fact, we held that “it has long been the rule in this State that the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.” Moreno v. State, 721 S.W.2d at 301. And furthermore, “where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony ... of any one of them cannot be given without showing the others,” this evidence is evidence of same transaction contextual evidence which is an exception to Rule 404(b) and is thus admissible. Rogers v. State, 853 S.W.2d at 33. However, in addressing this issue, it is important that we also take into consideration the fact that this Court has held that “same transaction contextual evidence,” is admissible under Rule 404(b) “only to the extent that it is necessary to the jury's understanding of the offense.” England v. State, 887 S.W.2d 902, 915 (Tex.Cr.App.1994). Such evidence is admissible only “when the offense would make little or no sense without also bringing in the same transaction evidence.” Id.

After examining all of the facts surrounding the murder in the instant case, we find that the evidence in question had no tendency to make more probable the existence of any fact of consequence; the evidence was not relevant under Rule 401. This evidence was introduced simply as an attempt to connect appellant to gangs in order to show his bad character.FN2 Since this evidence is inadmissible under Rule 401, there is no need for a 403 or 404 analysis. Even if we were to assume that the evidence did pass the requirements of 401, the evidence is still not admissible as same transaction contextual evidence. Undoubtedly, the prosecution could have presented a clear and understandable case explaining how appellant planned to rob and murder the decedent, without interjecting the unnecessary information about the gangs. Had the State put on its case without mentioning this testimony of appellant's connection with gangs, the jury surely would have had no problems in following and understanding the sequence of events of the night of the murder. For example, testimony regarding the crip handshake which occurred after both the murder and robbery, clearly could not be necessary in placing the criminal events into context. Because all of the testimony that was offered about appellant and gangs was not necessary to the jury's understanding of the capital murder, this testimony was not same transaction contextual evidence, and thus not admissible as an exception under Rule 404(b). The trial court erred in admitting this evidence.

FN2. In oral argument, the State argued that our holdings in Beasley v. State, 902 S.W.2d 452 (Tex.Cr.App.1995) and Anderson v. State, 901 S.W.2d 946 (Tex.Cr.App.1995) support its position that the evidence of appellant's purported gang activities was correctly admitted by the trial court. In Beasley, 902 S.W.2d at 456, we held that the evidence regarding a defendant's gang membership is relevant because it relates to his character and reputation. The critical difference between that and the case at bar is that in Beasley, we found the gang evidence relevant and admissible during the punishment phase of the trial. In the instant case, the evidence connecting appellant with gangs was introduced at the guilt/innocence phase of the trial. We did not then, and do not now, hold that evidence of a defendant's gang affiliations is admissible as character evidence during the guilt/innocence phase of a trial.

In finding that the trial court erred in admitting evidence of appellant's gang affiliations and activities, we must now conduct a harm analysis. Reversal is required, unless after examining the record, it is determined that the error made no contribution to the conviction, beyond a reasonable doubt. Tex.R.App.Pro. 81(b)(2); Harris v. State, 790 S.W.2d 568 (Tex.Cr.App.1989). Several factors must be considered by an appellate court before reaching a decision. Under Harris, the court should: examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications. Further, the court should consider how much weight a juror would probably place upon the error. In addition, the court must also determine whether declaring the error harmless would encourage the State to repeat it with impunity. Id. at 587.

Although there is no doubt that the State was the source of the error by introducing irrelevant evidence of character conformity, other facts must also be considered. First, there is no indication in the record that the State emphasized this gang related evidence. For example, the State made no mention of appellant's gang activities during either its opening or closing arguments. In deciding how much weight the jury may have given this testimony, we must examine the other evidence introduced at trial. There was only one witness, Williams, who testified to these gang activities. Furthermore, this was only a portion of Williams' testimony. He also testified that he actually saw appellant shoot the decedent. There was further testimony that appellant told another inmate that he had in fact shot the decedent. Finally, the jury heard testimony that placed appellant in possession of the weapon shortly before the murder, and that he was found and arrested in the decedent's car. Taking all of this information as a whole, the introduction of the evidence was harmless beyond a reasonable doubt. After reviewing all of the evidence, we find that the trial court's error in admitting evidence of appellant's gang affiliations made no contribution to the guilty verdict or punishment and was therefore harmless error in this case. Points of error one, two, three, and five are overruled.FN3

FN3. Appellant has also raised a supplemental point of error which likewise claims reversible error in allowing the State to introduce character evidence, i.e. of the above-discussed gang related conversations and handshakes, at guilt/innocence though he had not put his character in issue. In light of our conclusion that the admission of such evidence was harmless error pursuant to Rule 81(b)(2), supra, this supplemental point is likewise overruled.

In point of error four, appellant contends that the trial court violated the First Amendment and Due Process Clause of the Fourteenth Amendment by admitting evidence of appellant's purported gang affiliations and activities. It is clear from the record that appellant made no objection at trial on this basis. Therefore, appellant has failed to preserve error for review. Tex.R.App.Pro. 52(a). Point of error four is overruled.

In point of error eleven, appellant contends that the trial court erred in overruling his hearsay objection and allowing into evidence a police report. Through the commander of the property auto pound section of the Dallas Police Department, the State proffered a copy of a computer generated invoice record of property, that itemized what was seized from co-actor Henderson and stored in the property room, as a business record. Appellant objected that the report was hearsay, and was inadmissible as a police report which contained matters observed by police officers or other law enforcement personnel. Appellant's objection was overruled by the trial court.

We know that the reason for Federal Rule of Evidence 803(8)(B), after which the Texas rule was modeled, was the presumed unreliability of observations that are made by officers at the scene of a crime. United States v. Quezada, 754 F.2d 1190 (5th Cir.1985); Garcia v. State, 868 S.W.2d 337 (Tex.Cr.App.1993). The reasons for the possible impairment of judgment are not implicated in situations where officers are conducting routine business matters, such as the recording of “objective observations.” Cole v. State, 839 S.W.2d 798 (Tex.Cr.App.1990). Since this is a situation where the police officer was performing his ordinary, routine, duties of recording the property that was taken in and out of the property room, his observations, and notation should be presumed reliable. The case at bar is not unlike United States v. Brown, 9 F.3d 907, 911-12 (11th Cir.1993), where the court held that the evidence was not inadmissible under 803 because the property “[wa]s not the type of evidence contemplated by the exclusion of Rule 803(8)(B).” We agree with the State that this rationale should be applied in the case at bar. Since the trial court did not err in admitting the records from the property room, point of error eleven is overruled.

In point of error twelve, appellant contends that the trial court erred in allowing the testimony from the police officer who arrested appellant because probable cause for such arrest was not put into issue by appellant during the trial. Appellant asserts that because he stipulated to the fact that probable cause existed for his arrest, the police officer's testimony was irrelevant. Officer Antribus testified to the fact that while on patrol on the night in question, he noticed a blue cadillac at a closed gas station. After running the cadillac's license plate, i.e. conducting a computerized registration check, officer Antribus followed the car to an apartment complex where he arrested appellant and an accomplice. The entirety of this testimony was certainly relevant in placing appellant in the decedent's car in Dallas on October 29, 1993, and corroborating the testimony of one of the accomplices (Williams). Appellant's twelfth point of error is overruled.

In point of error thirteen, appellant contends that the trial court erred in overruling his objection to the introduction of bullets seized during appellant's arrest.FN4 Appellant claims that the bullets should not have been introduced into evidence because they were not properly authenticated. According to appellant, under Rule 901 of the Texas Rules of Criminal Evidence, before evidence is admissible, it must be proven that the evidence actually is what the proponent claims it is, and the police officer could only testify that these bullets appeared to be the same type as those that were retrieved during appellant's arrest, not that these were in fact the same bullets. Courts of appeals have held that evidence should be admitted if the trial court found that a reasonable juror could find that the evidence was authenticated. Pena v. State, 864 S.W.2d 147, 152 (Tex.App.-Waco 1993, no pet.); Coleman v. State, 833 S.W.2d 286, 289 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). At trial, Officer Mitchell testified that he seized a gun and two loaded magazines with 9 millimeter ammunition. He placed all of this evidence in his trunk, and took it to the property room, where he put them in envelopes and affixed the completed property tags. Given these facts, there is no doubt that a reasonable jury could have found that the police officer's testimony showed that the evidence was authenticated. Appellant's thirteenth point of error is overruled.

FN4. Though appellant's brief references the bullets as being seized during his arrest, the record reflects that the bullets were actually seized during the arrest of co-actor Henderson.

IV. PUNISHMENT

In point of error fourteen, appellant contends that the Texas capital sentencing statutes violate the Eighth and Fourteenth Amendments to the United States Constitution in that they fail to require that jurors be informed that a single holdout juror on any special issue would result in an automatic life sentence. Appellant argues that Article 37.071, § 2(a), which prohibits informing jurors of the effects of their failure to agree on the special issues, is unconstitutional. This court has addressed this issue several times, and has repeatedly held that there is no constitutional violation in failing to instruct jurors on the effects of their individual answers. Emery v. State, 881 S.W.2d 702, 711 (Tex.Cr.App.1994); Draughon v. State, 831 S.W.2d 331 (Tex.Cr.App.1992); Nobles v. State, 843 S.W.2d 503, 508-10 (Tex.Cr.App.1992); Davis v. State, 782 S.W.2d 211, 221-22 (Tex.Cr.App.1989). Point of error fourteen is overruled.

In point of error fifteen, appellant contends that the death penalty as currently administered in Texas, is cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution; and in point of error sixteen, he contends that the Texas death penalty scheme has been arbitrarily imposed in violation of the Eighth and Fourteenth Amendments to the United States Constitution. To substantiate his contentions, appellant argues that the present Texas capital sentencing scheme is unconstitutional because it allows open-ended discretion that is prohibited by the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The Court in Furman prohibited open-ended discretion by demanding that sentencing statutes narrow the category of people who are eligible for capital punishment, and provide a means by which a determination as to a defendant's death worthiness is done on an individual basis. The Texas capital sentencing statute meets these requirements. There is a set category of people who are eligible for the death penalty. The Supreme Court upheld the constitutionality of the Texas capital sentencing scheme in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Points of error fifteen and sixteen are overruled.

In point of error seventeen, appellant contends that the statutory Penry special issue is facially unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution. It is his assertion that this special issue allows the type of open-ended discretion that was condemned by the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In actuality, the Court in Furman was concerned with the open-ended discretion of the statutes that failed to narrow the list of who was eligible for the death penalty. There is no prohibition against allowing juries to decide what evidence is mitigating, and how much weight they are going to give it. In fact, this Court and the Supreme Court have both held that this job is best left for the jury to decide. Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994); Colella v. State, 908 S.W.2d 437 (Tex.Cr.App.1995); Morris v. State, 940 S.W.2d 610, 614 (Tex.Cr.App.1996). Point of error seventeen is overruled.

In point of error eighteen, appellant contends that the admission of unadjudicated extraneous offenses during the sentencing phase violated the Eighth and Fourteenth Amendments to the United States Constitution. Under Article 37.071 of the Code of Criminal Procedure, evidence “as to any matter that the court deems relevant to sentence” may be presented during the punishment phase of a capital murder trial. This Court has previously upheld the constitutionality of allowing evidence of unadjudicated offenses during the punishment phase of a capital trial. Adanandus v. State, 866 S.W.2d at 233; Lewis v. State, 815 S.W.2d 560, 566 (Tex.Cr.App.1991); Kinnamon v. State, 791 S.W.2d 84, 93 (Tex.Cr.App.1990). Because appellant offers no support from the Constitution for overruling this line of cases, point of error eighteen is overruled.

In point of error nineteen, appellant contends that the evidence at trial was insufficient to support the jury's negative answer to the Penry special issue. Appellant maintains that this Court should conduct a sufficiency review of the evidence to determine if the jury's answers to the special issues were appropriate. In Colella v. State, 908 S.W.2d 437, 448 (Tex.Cr.App.1995), we refused to conduct such a review. We held that “because the weighing of ‘mitigating evidence’ is a subjective determination undertaken by each individual juror, we decline to review the evidence for sufficiency.” Id. at 448. Because of the subjective nature of this determination, we defer to the jury's findings. Point of error nineteen is overruled.

In points of error twenty and twenty-one appellant makes two related contentions about the Texas death penalty scheme. First, appellant claims that the trial court's instructions on the Penry special issue makes meaningful appellate review of the sufficiency of the evidence supporting that special issue impossible. Secondly, appellant argues that Texas Code of Criminal Procedure Article 44.251(a), when interpreted in conjunction with Article 37.071, § 2(e), is facially unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution. Appellant argues that because the Penry special issue does not list mitigating and aggravating factors, and does not require jurors to make specific findings in that regard, this Court is unable to identify which, if any, of the factors the jury considered, and consequently, meaningful appellate review, which is required under the Constitution, is impossible.

Appellant is wrong in asserting that meaningful appellate review is impossible by this Court in capital cases. It is simply not true that appellate review is impossible in capital cases simply because there is no definition of mitigation. As is required by the Eighth and Fourteenth Amendments, Texas does provide appellate review as a safeguard to ensure that the death penalty is not arbitrarily or irrationally imposed. Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). The Texas scheme does adhere to the requirements of Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) in providing for a prompt, automatic review of a death penalty sentence. Furthermore, a sufficiency review is conducted by this court when examining the jury's answer to the future dangerousness special issue. As explained above however, because of the subjective nature in determining what constitutes mitigating evidence, this Court does not second-guess that portion of the jurors' decisions. Chambers v. State, 903 S.W.2d 21 (Tex.Cr.App.1995); Colella v. State, 908 S.W.2d 437 (Tex.Cr.App.1995). Points of error twenty and twenty-one are overruled.

In point of error twenty-two, appellant contends that the Due Process Clause of the Fourteenth Amendment requires this Court to engage in proportionality review in death penalty cases. The Supreme court addressed the issue of whether or not proportionality review in capital cases in required, and has stated that “we certainly did not hold that comparative review was constitutionally required,” and there “is no basis in our cases for holding that comparative proportionality review by an appellate court is required in every case in which the death penalty is imposed....” Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 879, 79 L.Ed.2d 29 (1984). Although the Supreme Court recognized that the most logical basis for this claim was under the Eighth Amendment, it is clear from a thorough reading of Pulley, that it found no constitutional proportionality review requirement. Furthermore, in Hughes v. State, 897 S.W.2d 285, 294 (Tex.Cr.App.1994), this Court interpreted the holding of Pulley as requiring no proportionality review in capital cases under both the Eighth and the Fourteenth Amendments. Point of error twenty-two is overruled.

In point of error twenty-three, appellant contends that the trial court's punishment charge, which instructed the jury to answer the first special issue affirmatively if jurors believed that appellant's mitigating evidence militated in favor of a life sentence, was fundamental error. Appellant failed to object at trial to the trial court's instructions on this basis, even though there was an opportunity for him to do so. For this reason, appellant waives review of this error. Appellant also claims that this error was fundamental, and therefore this contention may be raised for the first time on appeal. There is no basis for appellant's claim that this is fundamental error. Point of error twenty-three is overruled.

In point of error twenty-four, appellant contends that the trial court committed reversible error by refusing to instruct jurors that they should not consider mitigating evidence in aggravation of punishment. No error was committed in failing to give the requested instruction to the jury since such an instruction would have been a misstatement of the law. As we held in Curry v. State, 910 S.W.2d 490 (Tex.Cr.App.1995), and Morrow v. State, 910 S.W.2d 471 (Tex.Cr.App.1995), Penry only requires that juries be provided with a vehicle in which they can consider mitigating evidence. It is for the jury to determine what evidence, if any, constitutes mitigating evidence, and how much weight it should be given. Colella v. State, 908 S.W.2d 437 (Tex.Cr.App.1995). Point of error twenty-four is overruled.

Having reviewed all of appellant's points of error, we affirm the trial court's judgment and sentence. MCCORMICK, P.J., and CLINTON, J., concur in the result.

*****

BAIRD, J., concurs: I concur in the resolution of point of error eleven, believing the error was cured when the same evidence was admitted through other sources. I disagree with the treatment of points of error nineteen, twenty and twenty-one for the reasons stated in Morris v. State, 940 S.W.2d 610, 616 (Baird, J., dissenting). I join the remainder of the majority opinion.

MANSFIELD, Judge, concurring.

I join the opinion of the Court. However, for the reasons expressed herein, I write separately with respect to points of error numbers one, two, three and four. These points of error concern the relevancy of evidence of purported gang membership of the appellant during the guilt-innocence phase of appellant's trial.

Evidence presented at trial established appellant and three other individuals met at an apartment to plan a robbery of the victim's house. They subsequently walked to the residence of a fifth individual and then drove to a convenience store to get some beer. During the drive, the five talked about the planned robbery and about “Crips and Bloods and stuff.” On the way to the victim's house they stopped at a store, where they saw a man pumping gas. They talked about which Crip “had the heart” to knock out and rob the man. However, no attempt was made to assault or rob the man, though there was testimony that two of the five did get out of the car and walked toward the man. Other testimony at trial showed the five made statements about gangs before and after commission of the offense and performed “Crip handshakes.” Deon Williams testified he had no personal knowledge about whether appellant was a member of the Crips or any other gang. Williams earlier had testified he had “heard on the street” appellant was in a gang.

Appellant, prior to trial, filed a motion in limine to exclude evidence and testimony about gang membership. Appellant's objections to Williams' testimony concerning appellant's alleged gang activities were overruled; the trial court granted appellant a running objection.

“Relevant evidence” is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R.Crim.Evid. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex.R.Crim.Evid. 403. Character evidence is generally admissible at the punishment phase of trial pursuant to Texas Rule of Criminal Evidence 404(c); use of character evidence at the guilt-innocence phase of trial is restricted by the provisions of Texas Rule of Criminal Evidence 404(a).

In Anderson v. State, 901 S.W.2d 946 (Tex.Crim.App.1995), and in Beasley v. State, 902 S.W.2d 452 (Tex.Crim.App.1995), this Court found evidence of gang membership to be admissible at the punishment phase of the defendant's trial as relevant character evidence. We acknowledged that testimony as to gang membership and as to the criminal activities of the gang may have been prejudicial. However, the testimony was not unfairly prejudicial because the jury was only required to determine the defendant's character based on his gang membership and they were not required to determine whether the defendant was guilty of the misconduct or bad acts of the gang. Anderson, supra, at 950. FN1 Therefore, we held evidence of gang membership was admissible as character evidence at punishment under Texas Rule of Criminal Evidence 404(c) and Texas Code of Criminal Procedure Article 37.07, Section 3(a). Anderson, supra, at 952 (Mansfield, J., concurring). We did not address, in Anderson and Beasley, whether evidence of gang membership of an accused is admissible at the guilt-innocence phase of his trial.

FN1. In Anderson, Ferguson, a Fort Worth police officer, testified as to his personal knowledge of defendant's membership in a gang called the Canine Posse. Officer Ferguson testified he observed the defendant on several occasions wearing a Canine Posse tee shirt. He further testified he saw the defendant “hanging out” with other Canine Posse members. Finally, Officer Ferguson testified as to his personal knowledge that the Canine Posse was involved in the distribution of illegal drugs in and around the Caville Apartments. In the present case, however, the only testimony that appellant belonged to a gang was the testimony of Williams, who admitted he had no first-hand knowledge appellant was a gang member. There was some testimony appellant and his accomplices talked about gangs and even performed a gang handshake, but none of this testimony was evidence of actual gang membership.FN2 Indeed, this testimony is best characterized as “bragging,” rather than as probative or reliable. Even assuming, arguendo, that evidence of gang membership is admissible as relevant under Rule 401 at the guilt-innocence phase of trial, it is my opinion that this evidence was erroneously admitted and should have been excluded under Rule 403, given its lack of reliability and given its highly prejudicial nature.

FN2. Compare to Anderson, where a police officer witness testified as to his first-hand knowledge that the defendant belonged to a gang. However, applying the harmless error analysis set forth in Bishop v. State, 869 S.W.2d 342, 346-347 (Tex.Crim.App.1993), it is my opinion the error in admitting the gang-related testimony in the present case was harmless beyond a reasonable doubt. Tex. Rule App. Proc. 81(b)(2). First, we note appellant was observed shooting the victim in the head by Williams, who so testified at trial.FN3 Second, Michael Kendricks, a fellow inmate of appellant, testified appellant told him he shot the victim. Third, appellant was arrested while driving the victim's car. Fourth, several witnesses linked appellant to the weapon used to shoot the victim. This evidence, taken together, is overwhelming evidence of appellant's guilt.

FN3. Appellant contends that he shot the victim in the jaw and that this was not a fatal wound. (Another individual shot the victim in the brain.) The medical examiner testified the wound to the victim's jaw could have been mortal. While overwhelming evidence of guilt is a factor to be taken into account, we have held that if the error was of a magnitude that it disrupted the juror's orderly evaluation of the evidence, then the conviction is tainted and reversal is required, no matter how overwhelming the evidence of guilt might have been. Harris v. State, 790 S.W.2d 568, 588 (Tex.Crim.App.1989). In my opinion, the gang-related testimony did not disrupt the jury's orderly evaluation of the evidence. The testimony itself consisted solely of “gang-talk” among appellant and his “homies,” plus Williams' testimony as to his second-hand knowledge of appellant's gang membership. Additionally, the State did not introduce any evidence as to violent or illegal activities engaged in by gangs such as the Crips, which would have made the testimony of appellant's alleged gang membership more prejudicial. Finally, the testimony was introduced primarily to place the instant offense in context, i.e., the possible motivation behind its commission. Perhaps most significantly, the State did not mention gangs or appellant's alleged gang membership during its closing argument; given this record it is apparent the State was not attempting to taint the trial process by emphasizing the gang related testimony at one of the most critical stages of the trial-closing argument.FN4

FN4. In Harris, supra, at 587, this Court held, in conducting a harmless error analysis, the reviewing court must determine whether declaring a particular error harmless would encourage the State to repeat it with impunity. I do not see, logically, how such a determination can be made and urge that we reexamine this aspect of Harris. Because, in my opinion, the erroneous admission of gang-related testimony did not contribute to appellant's conviction or punishment as it did not impermissibly taint appellant's trial for the reasons given above, I conclude beyond a reasonable doubt the error was harmless.

With these comments, I join the opinion of the Court.

*****

KELLER, Judge, concurring.

My first difficulty with the majority opinion is with regard to its treatment of point of error nine. I believe that the prosecutor's voir dire notes are work product, and the State should not be required to turn voir dire notes over to the defense during a Batson hearing.

I also disagree with the majority's analysis of the points of error dealing with evidence of gang membership. The majority says the evidence of gang membership in this case was not relevant. Gang membership may or may not be relevant during guilt-innocence. As is true with any other evidence, gang membership is relevant if it has any tendency to make the existence of any fact of consequence more probable or less probable than it would be without the evidence. Tex.R.Crim. Evid. 401. This determination must be made on a case-by-case basis.FN1

FN1. In Anderson v. State, 901 S.W.2d 946 (Tex.Crim.App.1995) and Beasley v. State, 902 S.W.2d 452 (Tex.Crim.App.1995) we considered whether evidence of gang membership is admissible at punishment. The issue in this case concerns the admission of such evidence at guilt/innocence.

In the instant case, the evidence of the discussions of which crip “had the heart” to kill the victim and to knock out the man at the gas station, and of the crip handshake after the murder, was relevant to show a possible motive for the murder of Martha Lennox. Certainly the evidence tends to make sense of evidence that is otherwise unaccountable: the co-defendant, after shooting the victim in the head, handed appellant the gun and appellant shot the victim after she had already been shot.

According to the majority, the State could have presented a clear and understandable case without the evidence-but surely that is not the test for relevance. Under the facts of this case, gang membership was not merely an incidental aspect of appellant's life; it was part of the reason for the murder and it was part of the explanation for why the murder occurred as it did. Had the State been required to excise the gang-membership aspect of the murder, its case against appellant would have been less coherent and less believable.

Events do not occur in a vacuum. The jury has a right to have an offense placed in its proper setting so that all evidence may be realistically evaluated. Burks v. State, 876 S.W.2d 877, 900 (Tex.Crim.App.1994), citing Mann v. State, 718 S.W.2d 741, 743 (Tex.Crim.App.1986), cert. denied 481 U.S. 1007, 107 S.Ct. 1633, 95 L.Ed.2d 206 (1987). In a prosecution for capital murder where consideration of the behavior of the defendant is critical, the entire context of the offense showing his actions is vital. Id. In the instant case the testimony that indicated that Lennox's murder was part of a gang undertaking allowed the jury to view the offense in the proper setting, the way it actually occurred. The trial court did not err in admitting this evidence.

I concur in the opinion of the Court.

Pondexter v. Dretke, 346 F.3d 142 (5th Cir. 2003) (Habeas).

Petitioner, convicted in state court of murder and sentenced to death, having exhausted state-court appeals, 942 S.W.2d 577, and postconviction remedies, sought federal habeas relief. The United States District Court for the Eastern District of Texas, T. John Ward, J., granted petition. State appealed. The Court of Appeals, Benavides, Circuit Judge, held that state habeas court's determination that petitioner was not prejudiced by counsel's failure to call pathologist was not unreasonable application of federal law. Vacated and remanded.

BENAVIDES, Circuit Judge:

Petitioner Willie Earl Pondexter, Jr., (Pondexter) was convicted of capital murder in Texas and sentenced to death. After exhausting his remedies in state court, Pondexter filed a petition for federal habeas corpus in district court. In an unpublished opinion, the district court granted relief with respect to the claim that trial counsel rendered ineffective assistance by failing to consult with and offer the testimony of a pathologist during the guilt-innocence phase of trial. The Director appeals from this judgment. Concluding that the district court failed to afford proper deference to the state court's decision, we hold that the state court did not unreasonably apply clearly established federal law and vacate the judgment of the district court and remand for further proceedings not inconsistent with this opinion.

I. BACKGROUND

FN1. The facts of the offense are taken in large part verbatim from the opinion of the Texas Court of Criminal Appeals on Pondexter's direct appeal. Pondexter v. State, 942 S.W.2d 577, 579-80 (Tex.Crim.App.1996).

On the night of October 28, 1993, Ricky Bell, James Bell, Deon Williams, and Pondexter met at an apartment and discussed robbing “an old lady.” Following this discussion, the group walked to a corner store, and then to Martha Lennox's house where they checked to see what kind of car she owned. The group then walked to a trailer park, and then to a friend's house. Once there, they met with James Henderson.FN2 Pondexter borrowed a car and all five drove to Annona to buy beer and go to a club. During the drive to and from Annona, the five talked about robbing “the old lady,” and about “crips and bloods and stuff.” Specifically, they discussed which crip “had the heart” to do what they were planning to do to “the old lady.”

On the way to the victim's house, the group stopped at a store where they talked about which crip had the heart to knock out a man who happened to be getting gas. Although Williams and Henderson did get out of the car, no harm was actually done to the man. The group drove to the victim's house, but parked the car a few blocks away. On their first attempt to enter the house, they were scared away by the sight of a patrolling police car. Four of the five ran back to the car, but James Bell ran in another direction and was not seen by the rest of the group again that night. Pondexter, Henderson, Williams, and Ricky Bell went back to the victim's house where Pondexter kicked in the front door. All four proceeded up the stairs and into the bedroom where the victim was sitting on her bed.

FN2. Henderson was tried separately prior to Pondexter's trial and convicted of the capital murder of Martha Lennox and sentenced to death.

Once all four were in the bedroom, Williams took the seven dollars that was in the victim's coin purse. Immediately thereafter, Henderson shot the victim in the head and handed the gun to Pondexter. Pondexter also shot the victim in the head, stating “that's how you smoke a bitch.” The four drove to Dallas and were arrested in the victim's car.

During the guilt-innocence phase of trial, Dr. Guileyardo, the Chief Medical Examiner for Dallas County, testified that he performed the autopsy on the victim. He testified that she had been shot twice and that the cause of death was “gunshot wounds to the head.” One bullet entered “through the [left] side of her skull, it went into her mouth, it went through her tongue, it went down and struck her jawbone on the right side and shattered that jawbone on the right side and then the bullet came out beneath her right ear....” Another bullet entered through the forehead and “went all the way through the brain and came out the back of her head.” Although Dr. Guileyardo could not determine the order of the gunshots, he concluded that the one that shattered her jawbone was fired from a closer range than the other shot. He opined that “[b]oth of these [wounds] are killing wounds. Both could be fatal wounds. Either one of these [wounds] could have killed her.” When asked whether it could be determined if Martha Lennox was dead at the time either wound was inflicted, Dr. Guileyardo testified that the gunpowder stippling marks on both gunshot wounds were red and had the appearance of inflammation, indicating a vital reaction, not a postmortem reaction. A vital reaction occurs when the skin is injured, and the wound is red because of the blood flowing through the skin. Dr. Guileyardo further testified that if a dead person's skin is injured, the wound is “sort of a yellow, dry appearance, because there is no blood flow going through the skin.” Thus, based on the appearance of the wounds, Dr. Guileyardo believed that the victim was alive at the time of each gunshot. On cross-examination, Dr. Guileyardo admitted that it was possible to survive the face wound and that his autopsy report did not report any hemorrhaging from the wound caused by the bullet that entered her face.

During closing argument at the guilt-innocence phase, Pondexter's counsel first argued that Williams, the accomplice who testified that Pondexter fired the second shot into the victim, was not credible. Instead, counsel argued that Rhoda Briley's testimony that Pondexter participated in the burglary/robbery but did not shoot the victim was more credible. Counsel argued that Williams was biased because he was a convicted felon who had participated in this crime and received a deal for his testimony. Unlike Williams, Briley was not charged with the instant crime. In the alternative, defense counsel argued that if the jury believed Williams's testimony, the jury should find that the victim had instantly died from the first shot and thus Pondexter's shot did not kill her, absolving him of any responsibility for her death.FN3. Inexplicably, the jury was not instructed with respect to the Texas law of parties, although, it appears such an instruction would have been available to the State.

The jury found Pondexter guilty of capital murder. Tex. Penal Code § 19.03. After the punishment phase of the trial, the jury affirmatively answered the special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure, and the trial court sentenced Pondexter to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Pondexter v. State, 942 S.W.2d 577 (Tex.Crim.App.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997).

Pondexter filed a state habeas petition challenging his conviction and death sentence. After conducting an evidentiary hearing, the state trial court entered findings of fact and conclusions of law recommending that relief be denied. The Court of Criminal Appeals adopted the findings of fact and conclusions of law and denied relief. Ex parte Pondexter, No. 39,706-01 (Tex.Crim.App. Jan. 27, 1999). Thereafter, Pondexter filed the instant federal habeas petition raising twenty claims. The district court granted relief concluding that trial counsel's failure to consult with and offer the testimony of a pathologist deprived Pondexter of the effective assistance of counsel. FN4 The Director now appeals.

FN4. Because the District Court granted habeas relief on Pondexter's first claim, it did not address Pondexter's remaining claims and dismissed them as moot.

II. STANDARD OF REVIEW

Pursuant to the federal habeas statute, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), we defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). A state court's decision constitutes an unreasonable application of clearly established federal law if it is objectively unreasonable. Id. at 1521. Additionally, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).

III. EFFECTIVE ASSISTANCE OF COUNSEL

The only issue before us is whether the district court erred in granting federal habeas relief based upon Pondexter's claim of ineffective assistance of counsel. The Supreme Court has recently reaffirmed the familiar two-prong test for ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Terry) Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To demonstrate that counsel was ineffective, a petitioner must establish that counsel's representation fell below an objective standard of reasonableness. See id. To show prejudice, he must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. See id. at 1511-12.

Here, the district court held that trial counsel rendered ineffective assistance based upon the failure to call a pathologist to testify during the guilt-innocence phase of trial in support of Pondexter's alternative defensive theory.FN5 Pondexter's alternative theory of defense at trial was that, because the first gunshot fired by codefendant James Henderson into the victim's brain would have instantly killed her, the shot he fired seconds later into her face was not culpably lethal.FN6 More specifically, Pondexter now argues that the district court properly granted habeas relief based on his claim that had counsel called a pathologist to testify that the victim was dead at the time he shot her, there is a reasonable probability that the jury would not have found him guilty of killing the victim. In support of his theory, he relies upon the testimony of Dr. Stephen Bolesta, a pathologist he called to testify as an expert witness at the state habeas evidentiary hearing.

FN5. Pondexter's primary defensive theory was that although he participated in the burglary/robbery, he did not shoot Martha Lennox.

FN6. On appeal before us, Pondexter argues that the record does not establish the amount of time that elapsed between the two gunshots. It could have been minutes, according to Pondexter. Although in his trial testimony Williams does not estimate the time that elapsed between shots, the description he provided of the murder indicates that Pondexter fired within seconds of Henderson. There is no basis to infer that minutes elapsed between the shots. Moreover, the district court stated in its opinion that it was undisputed that the shot to the face was within a few seconds of the shot to the brain.

The Director contends that the district court's judgment does not accord the state court's decision the substantial deference mandated by AEDPA. The Director argues that the district court erred in rejecting the state court's credibility determinations and substituting its own views of the credibility of witnesses, i.e., the two pathologists, Dr. Guileyardo, the pathologist who performed the autopsy on the victim and testified at trial, and Dr. Bolesta, the pathologist who testified as Pondexter's expert witness during the state habeas evidentiary hearing. Thus, the Director asserts the district court erred in concluding that trial counsel performed deficiently and that such deficient performance resulted in the required prejudice.

We agree that the district court failed to afford the factual findings of the state court proper deference. Because we conclude that Pondexter failed to show he was prejudiced by counsel's failure to call a pathologist, we do not address the deficiency prong of Strickland. Assuming arguendo that the state court's conclusion is erroneous, we are convinced that the district court erred in finding unreasonable the state court's conclusion that counsel did not render ineffective assistance with respect to this particular claim.

We begin by explaining that Pondexter's claim of ineffective assistance of counsel involves only the alternative theory of defense, not the primary defensive theory.FN7 Pondexter's primary defensive theory was that although he participated in the burglary/robbery and was present during the murder, he did not shoot the victim. Instead, his codefendant James Henderson fired both shots. Thus, he argued that the jury should not find him guilty of murder, only of the lesser offense. Although codefendant Deon Williams testified that Pondexter fired the second shot, there was evidence to support Pondexter's primary defensive theory that Henderson fired both shots into the victim. Rhoda Briley, Pondexter's girlfriend at the time of the offense, testified that after the murder Pondexter admitted to her that he had stolen from the victim but he did not shoot the victim. Indeed, defense counsel argued to the jury that “by far and away the more credible story ... was told by Rhoda Briley that [Pondexter] didn't shoot anyone.”

The undisputed evidence was that Pondexter handed the murder weapon to James Henderson as they entered the victim's home (prior to the first shot), and the weapon was seized by the police from Henderson when he was arrested the next morning in Dallas, giving counsel a basis for arguing that Henderson, not Pondexter, possessed the weapon for the entire relevant time period. Additionally, during closing argument, defense counsel emphasized to the jury that Pondexter's fingerprints were not found on the murder weapon.

FN7. Contrary to Pondexter's argument, counsel did not build his “entire case around” the alternative defensive theory that the victim was deceased when he fired the shot. As set forth in the text of the opinion, the instant claim of ineffective assistance of counsel does not involve his primary defense theory that he fired no shots.

We now turn to the district court's opinion. The district court concluded its analysis by opining that: “Dr. Bolesta was a qualified expert, and his opinion that Ms. Lennox died instantaneously from the wound through her brain appears just as plausible on its face as Dr. Guileyardo's opinion that the brain wound, while fatal, was not instantaneously so.”FN8 The district court then opined that the state court correctly denied Pondexter's actual innocence claim, but “did not directly address the issue of the relative plausibility of the contrary expert opinions.” The district court further opined that the state court did not issue any findings of fact that “establish that one expert's opinion was more or less plausible than the other's. Accordingly, the Court concludes that it was unreasonable for the State court to find that there was not a reasonable probability that at least one juror would have voted ‘not guilty’ had Dr. Bolesta testified.”

FN8. Clearly, in light of state court findings of fact which are set forth below, this “plausibility” finding was not within the district court's province to make, even prior to AEDPA.

In other words, the district court's opinion is based upon the following analysis: the state court's failure to make certain, explicit findings of fact rendered unreasonable the state court's conclusion that Pondexter had failed to demonstrate that, had counsel presented Dr. Bolesta's testimony during trial, there is a reasonable probability of a different outcome. As set forth below, we believe that the state court's factual findings with respect to the experts' opinions are sufficient to sustain the state court's conclusion. Here, the bottom line is that the state court's denial of relief indicated that presentation of Dr. Bolesta's testimony would not have resulted in a reasonable probability of a different outcome. Even assuming that the state court failed to express certain factual findings that necessarily underlie its conclusion that Pondexter failed to demonstrate prejudice, a presumption of correctness would apply “to those unarticulated findings which are necessary to the state court's conclusions of mixed law and fact.” Valdez, 274 F.3d at 948 n. 11.

Additionally, although the district court initially set forth the correct prejudice query, the district court also stated that to demonstrate Strickland prejudice, Pondexter “only [has] to establish that Dr. Bolesta's and Dr. Guileyardo's opinions about the cause of Ms. Lennox's death were more or less equally plausible.” Of course, to satisfy the prejudice prong Pondexter had to demonstrate that, had counsel presented Dr. Bolesta's testimony during trial, there is a reasonable probability of a different outcome. We have explained that a reasonable probability “means a probability sufficient to undermine confidence in the outcome.” Neal, 286 F.3d at 241. Assuming arguendo the district court's interpretation or phrasing of the Strickland prejudice standard is correct, we are convinced that the district court failed to properly defer to the state court's findings of fact in making its prejudice determination.

As this Court has explained, “[i]t seems clear to us that a federal habeas court is authorized by Section 2254(d) to review only a state court's ‘decision,’ and not the written opinion explaining that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc). “[W]e conclude that our focus on the ‘unreasonable application’ test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence. The latter approach appears unduly formalistic considering that the federal habeas court has the full record before it and is competent to determine whether Strickland has been unreasonably applied to the case before it.” Id.

Here, as in Neal, “[t]he precise question, then, is whether the [state] court's ultimate conclusion-that there was no prejudice and, consequently, no ineffective assistance of counsel under the Strickland test-is objectively unreasonable.” Neal v. Puckett, 286 F.3d at 246. “The statute compels federal courts to review for reasonableness the state court's ultimate decision, not every jot of its reasoning.” Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001).

As set forth previously, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez, 274 F.3d at 947. The district court expressly recognized this standard of review.FN9 However, as discussed below, the district court's parsing of the state habeas court's findings does not conform to the spirit or the letter of AEDPA's deferential standards.

FN9. After setting forth this standard of review, the district court, citing Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), stated that “[f]acts are rebutted by clear and convincing evidence if they lack even fair support in the record.” Op. at 14. Lonberger addressed an exception to the presumption of correctness afforded state factual findings in the pre-AEDPA federal habeas statute, 28 U.S.C. § 2254(d)(8). Pursuant to then-effective § 2254(d)(8), an exception to the presumption of correctness existed when a state court's factual determination was not fairly supported by the record. This Court has indicated that AEDPA requires “increased deference to state court factfindings.” Graham v. Johnson, 168 F.3d 762, 784 n. 16 (5th Cir.1999); accord Gachot v. Stalder, 298 F.3d 414, 418 (5th Cir.2002) ( “AEDPA only strengthens the stricture imposing a strong requirement of deference for a state court's findings of fact.”). Likewise, the Eleventh Circuit has noted that, after AEDPA, the federal habeas statute “not only retains the presumption of correctness but also adds that the petitioner has ‘the burden of rebutting the presumption of correctness by clear and convincing evidence.’ ” Fugate v. Head, 261 F.3d 1206, 1215 n. 11 (11th Cir.2001) (quoting § 2254(e)(1)). In sum, it is not clear to us that simply determining whether the state court's finding is fairly supported by the record is sufficient to overcome the presumption of correctness afforded by AEDPA. Nonetheless, because we are persuaded that the district court erred in not affording proper deference to the factual findings under either formulation, we need not determine whether the district court's formulation was a proper interpretation of AEDPA.

The state habeas court expressly made a factual finding that Pondexter's expert witness, Dr. Bolesta, was less credible than the state's medical examiner who testified at trial, Dr. Guileyardo. State court finding of fact number 18 provides as follows: “Based on [Dr.] Bolesta's affidavit and in-court testimony, the court finds that the testimony of Dr. E. Stephen Bolesta is less credible than the in-court testimony of Dr. Guileyardo.” (emphasis added).

The district court expressly recognized that this finding is a credibility determination. Nonetheless, the district court, assuming arguendo that the credibility determination was fairly supported by the record, opined that the finding “does not by itself establish that Dr. Bolesta's and Dr. Guileyardo's opinions as to the cause of Ms. Lennox's death are more or less equally plausible.” Op. at 30 (emphasis added). The district court clearly did not perceive the words “plausible” and “credible” to be synonyms. However, in the context of determining whether a state court's finding should be presumed correct under AEDPA, this Court apparently used the terms plausible and credible as synonyms. See Ladd v. Cockrell, 311 F.3d 349, 356 (5th Cir.2002). Also, Merriam-Webster's online thesaurus lists the words credible and plausible as synonyms.FN10

In any event, although we recognize that the two words do not have identical definitions, in light of the deference to be afforded the state court's finding with respect to the credibility of the expert witnesses and the lack of evidence to rebut the instant finding, we do not believe the district court afforded proper weight to it in making the prejudice determination.FN11. In his brief, the Director admits that the state court was not necessarily responsible for resolving the dispute between the experts. As this Court has explained, in addressing the prejudice prong of a claim of ineffective assistance based on counsel's failure to present expert testimony at trial, it is the court's task “to see what evidence might have been adduced and to gauge any prejudice resulting from trial counsel's failure to present it. [Nonetheless,] [t]he rejection of the evidence is relevant because it casts doubt on its persuasiveness and hence its force before the jury.” Belyeu v. Scott, 67 F.3d 535, 542 (5th Cir.1995). In Belyeu, we were referring to the task of the federal district court. Here, we are addressing the task of the state habeas court. Nevertheless, because both courts are conducting the same analysis, the reasoning in Belyeu appears applicable to the instant case.

State court finding of fact number 20 provides that: Even assuming Dr. Bolesta's hypothesis as to the order (and persons who fired) the shots is correct, Dr. Bolesta admitted that the victim “could have” or “might have” been alive at the time the second shot was fired. Dr. Bolesta agreed that the victim's heart could have still been beating when the second shot was fired and that no doctor would have declared her dead when her heart was still beating.

The district court recognized that this finding “is fairly supported by the record” but opined that it only demonstrated that Dr. Bolesta did not find Dr. Guileyardo's testimony “implausible.” According to the district court, this finding did “not establish Dr. Guileyardo's and Dr. Bolesta's opinions as to the cause of Ms. Lennox's death are not more or less equally plausible.” Although the district court did not accord much, if any, weight to this finding, Dr. Bolesta's admission that it is possible that the victim was alive at the time of Pondexter's shot certainly has relevance to the prejudice inquiry in that it weighs in favor of finding no prejudice.

State court finding of fact number 21 provides as follows: [T]he court finds that Dr. Bolesta's definition of the “peri-mortem” state, and [his testimony] as to the presence or absence of red “stippling” or powder tattooing, still does not prove that the victim was dead at the time of the second shot. The court believes that Dr. Guileyardo's explanation, based upon studies conducted by Dr. Vincent DeMaio, that powder tattooing is an antemortem (prior to death) phenomenon, is correct. Dr. Bolesta cited no study or authoritative treatise, other than his own theory that red stipple marks could be caused by powder residue striking the skin of a dead person.

With respect to this State court finding, the district court acknowledged that the fact that Dr. Guileyardo's premise, unlike Dr. Bolesta's premise, was supported by a treatise “is a valid grounds [sic] for finding Dr. Guileyardo's opinion as to the cause of Ms. Lennox's death more credible than Dr. Bolesta's opinion.” The district court further stated that all of finding of fact number 21 was supported by the record except the statement that Dr. Bolesta cited no study or authoritative treatise other than his own theory with respect to the red stipple marks. The district court believed that Dr. Bolesta's testimony that another pathologist, Dr. Charles Hirsch, “was of the same line” as his opinion qualified as other scientific authority. Op. at 34. We are not of the view that Dr. Bolesta's hearsay testimony regarding another pathologist's opinion rebutted with clear and convincing evidence the state court's finding that Bolesta cited no study or authoritative treatise in support of his own theory.

State court finding of fact number 22 reads as follows: The court further finds that Dr. Guileyardo's explanation as to the absence of blood in the victim's lungs due to the swelling of the victim's tongue, the swelling of the victim's mouth and the loss of control of the victim's mandible caused by its fragmentation, is persuasive evidence that the second shot (assuming that the second shot which struck the victim was through the jaw and tongue) contributed to the death of the victim. The court believes that the shot to the jaw virtually eliminated any chance of survival that the victim might have had.

The district court found that the last sentence was not “fairly supported” by the record because “[b]oth Dr. Guileyardo and Dr. Bolesta testified that Ms. Lennox had absolutely no chance whatsoever of surviving the brain wound.” After reading the record, it is unclear whether Dr. Guileyardo unequivocally testified that the victim had no chance of surviving the brain wound. Dr. Guileyardo did testify at trial that the brain wound “is usually a fatal wound, but we don't know when it's going to be fatal.” (emphasis added). Dr. Guileyardo further testified that it can be fatal “almost instantaneously” or “on the other hand, we see people who survive days with this type of wound.”

Indeed, when defense counsel specifically asked Dr. Guileyardo whether he had any doubt that the brain wound would have caused the victim's death, Dr. Guileyardo did not answer that question but responded that both wounds had the potential to kill a person. Similarly, at the state evidentiary hearing, Dr. Guileyardo testified that “I think it took both [wounds] in this particular case for her to die right at that time.” Even assuming arguendo that the district court's interpretation of Dr. Guileyardo's testimony-the victim had no chance of surviving the brain wound-is correct, we do not believe that is particularly relevant. Here, the material question is not whether Martha Lennox would have ultimately survived the brain wound but whether she survived long enough after the first gunshot for the second shot to contribute to her death. The thrust of the above state court finding is that the wound to the face contributed to the victim's death. Pondexter has not rebutted this finding with clear and convincing evidence.

During its discussion of the above factual finding, the district court next recognized that Dr. Bolesta admitted that if Ms. Lennox was alive after the first gunshot, the second shot could have contributed to Ms. Lennox's death. We note that Dr. Bolesta's admission lends support to the state court's conclusion of no prejudice.

State court finding of fact number 23 provides that: Because Dr. Bolesta could not eliminate the possibility that the victim's mandible [as a result of the second gunshot] did, in fact, contribute to the victim's skull fractures by slamming into the base of the victim's skull, Pondexter has not shown that [Dr.] Guileyardo's testimony was not believable. In fact, given that Dr. Guileyardo conducted the autopsy his testimony is more believable than that of Dr. Bolesta.

The district court acknowledged that the first sentence of the above finding is supported by the record. The district court next opined that the fact that Dr. Guileyardo performed the autopsy of the victim could be a reason to credit his testimony over the testimony of Dr. Bolesta. Nonetheless, the district court refused to so credit the testimony because “[w]hen Dr. Guileyardo testified, he never stated that he remembered the autopsy itself; he testified from reviewing his report, just as Dr. Bolesta did.” This quote from the district court is a prime example of its failure to accord the state court findings the deference mandated by AEDPA. The fact that Dr. Guileyardo performed the actual autopsy clearly supported the state court's decision to credit his opinion over that of Dr. Bolesta regardless of whether Dr. Guileyardo expressly testified that he remembered performing the actual autopsy.

State court finding of fact number 30 provides that “Based on the greater weight of the evidence in this proceeding, the court finds that the victim was alive at the time both shots were fired into the victim and that each shot contributed to her death.” The district court discerned that this finding is fairly supported by the record and that the state court was free to find Dr. Guileyardo's opinion more credible than Dr. Bolesta's opinion. Without further discussion, the district court opined that “this finding does not establish that the two expert opinions were not more or less equally plausible.” Again, we do not believe that the district court afforded this very important factual finding proper weight in making the prejudice determination.FN12

FN12. Relatedly, the Director contends that the district court impermissibly substituted its interpretation of Texas law of concurrent causation with respect to state court conclusion of law number 41, which provides as follows: “Because both shots were sufficient to cause the death of the victim, Pondexter cannot show that he was not responsible for the capital murder. Tex. Penal Code § 6.04(a).” Section 6.04(a) provides that “[a] person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly sufficient.”

The district court ruled that the state court's conclusion of number 41 was based upon an incorrect application of state law. According to the district court, the state court incorrectly concluded that because each wound could have caused the victim's death, the wound inflicted by Pondexter did cause her death. Contrary to the district court's opinion, state court conclusion of law number 41 is not based upon the finding that each wound alone could have caused the victim's death; instead, the conclusion is based on the previously quoted state court finding of fact that “the victim was alive at the time both shots were fired into the victim and that each shot contributed to her death.” Thus, the district court erred in holding that conclusion of law number 41 is based upon an incorrect application of state law.

State court finding of fact number 38 provides that: “Dr. Bolesta's affidavit and evidentiary hearing testimony ... admit that both wounds were capable of causing the death of the victim.” The district court “adopt[ed] it.” Op. at 16. This admission by Pondexter's expert witness certainly weighs in favor of finding no prejudice.

State court finding of fact number 39 provides that: [M]uch of the testimony provided by Dr. Bolesta, while critical of Dr. Guileyardo's conclusions on what “could have” happened, see 20 SF 161, does not substantially differ from many of the admissions given by Dr. Guileyardo on cross examination. See e.g. 20 SF 171 (bullet which entered brain stopped breathing and brain activity); 20 SF 174 (no way to separate out which bullet fractured skull); 20 SF 176-77 (very little blood in her mouth).

The district court found that most of finding of fact 39 was fairly supported by the record. However, it did disagree that Dr. Bolesta's testimony was consistent with Dr. Guileyardo's admission on cross-examination that there was no way to separate out which bullet fractured Ms. Lennox's skull. The court below found that this part of the finding lacked support in the record because although Dr. Bolesta testified that it was possible that a jaw wound could cause a fracture in the base of the skull, Dr. Bolesta was never asked which gunshot actually caused the fracture in the base of the skull. Here again, we believe the district court was failing to accord proper deference to the fact finding. As indicated, the state court's factual finding was not that Dr. Bolesta testified that it was impossible to determine which bullet caused the fracture. Instead, the state court found that Dr. Bolesta's testimony was “not substantially differ[ent]” from certain admissions made by Dr. Guileyardo during cross-examination. Pondexter did not rebut this finding with clear and convincing evidence. This finding is perhaps the most significant of all the factual findings in that if Dr. Bolesta's testimony is not substantially different from admissions made by Dr. Guileyardo during cross-examination, then such a finding leads almost inexorably to finding no prejudice.

In conclusion, we find that Pondexter has not shown a probability sufficient to undermine our confidence in the outcome of his trial in view of the ineffective assistance claim relating solely to Pondexter's alternative, more inculpatory defensive theory, Pondexter's apparent belief that the victim was alive as he shot her,FN13 and most importantly, the following unrebutted state court factual findings: (1) that Dr. Guileyardo's testimony was more credible and, unlike Dr. Bolesta's testimony, supported by scientific authority; (2) that Dr. Bolesta's testimony does not substantially differ from certain key admissions Dr. Guileyardo made during cross-examination; and (3) that Dr. Bolesta's affidavit and evidentiary hearing testimony concede that both wounds were capable of causing the death of the victim. See Johnson v. Scott, 68 F.3d 106, 111 (5th Cir.1995) (“Although [the petitioner's] experts may have been able to weaken some of the state's evidence, there is not a reasonable probability that their testimony would have given jurors a reasonable doubt respecting guilt.”). Applying the deferential AEDPA standard, we hold that the state court's conclusion was not contrary to, or an unreasonable application of, established federal law.

FN13. As previously set forth, Pondexter shot the victim and stated “that's how you smoke a bitch.”

For the above reasons, the district court's judgment is vacated and remanded for further proceedings. VACATED and REMANDED.