ClarkProsecutor.org

Texas Department of Criminal Justice

Roberts Jr., Donnie Lee
Date of Birth: 02/09/1971
DR#: 999487
Date Received: 10/28/2004
Education: 11 years
Occupation: builder/laborer
Date of Offense: 10/15/03
County of Offense: Polk
Native County: Natchitoches Parish, Louisiana
Race: White
Gender: Male
Hair Color: Brown
Eye Color: Blue
Height: 6' 1"
Weight: 223

Prior Prison Record: One prior out of state commitment to Louisiana Department of Corrections, #449607 on a 7 year sentence for 1 count of armed robbery.

Summary of Incident: On 10/15/2003 in Polk County, Texas, Roberts approached and demanded currency from an adult white female, of which Roberts was her live-in boyfriend. The victim refused and Roberts shot her three times in the head, causing her death. Roberts then fled the scene in the victim's son's vehicle.

Co-Defendants: None

Texas Attorney General

Monday, October 29, 2012

Media Advisory: Donnie L. Roberts scheduled for execution

AUSTIN – Pursuant to a court order by the 411th District Court of Polk County, Donnie Roberts is scheduled for execution after 6 p.m. on October 31, 2012. In 2004, a Polk County jury found Roberts guilty of murdering Vickie Ann Bowen during the course of a robbery or attempted robbery.

FACTS OF THE CASE

The United States Court of Appeals for the Fifth Circuit described the facts surrounding the murder of Ms. Bowen as follows:

At the time of the murder, Roberts lived with the victim, Vickie Bowen. Roberts was unemployed, often drank alcohol, and used cocaine. Bowen worked as a dental assistant. On October 15, 2003, she went shopping with co-worker Brenda Bland, but she did not show up for work the next day. Because Bowen was a punctual person who always called if she was going to be late, Bland became concerned and went to Bowen's house to check on her. When Bland arrived at the home, she found the front door open. After knocking and receiving no answer, Bland entered the home and found Bowen dead. Bland noticed that Bowen was still in the scrubs she had worn at work the previous day. She was covered by a blanket and was lying face down with her head turned to the side in a pool of blood. Blood spatters were present in the living room on the coffee table, the couch, and the walls. The medical examiner would later determine that Bowen died from two gunshot wounds to the head.

It was immediately apparent from an examination of the scene that Bowen’s television and her son’s truck were missing. That same day, the police found Roberts after tracking down the stolen truck. It was later determined that Roberts had taken the truck, the television, Texans/Titans football tickets, jewelry, a Western Union money order, a .22 rifle, and a .22 pistol. Roberts had sold the football tickets for one hundred dollars. He had bought cocaine from Edwin Gary on October 15 on three different occasions, the last of which involved trading the .22 caliber pistol. Roberts had apparently abandoned the .22 rifle, later determined to be the murder weapon, a few blocks from where he was found. The Western Union money order was found in the residence at which Roberts had parked his truck, but the television and the jewelry were never recovered.

Roberts was interviewed and gave a confession. In that confession, he acknowledged that he had “a crack cocaine problem” and that he would go to bars, get drunk, and then look for drugs. With regard to the victim’s death, Roberts said, “I pointed the gun at her and I told her just give me some money.” Later in the interview, Roberts stated: “I pointed the gun at her and I said, ‘if you’d just give me some money.’ And she said ‘No.’ And then I said, ‘Look, it doesn’t have to be this way.’ That’s all I remember saying to her. And the next thing I know, I shot her.”

At trial, Roberts testified to a different sequence of events. He claimed that he picked up the .22 rifle because it was out of place, near the door. He also claimed that he saw what looked like a .22 pistol in Bowen’s pocket and that she moved her hand to her pocket to reach for it. He then said that he “must have chambered a round into the .22 rifle at that time,” but he did not remember if he pulled the safety off. He also claimed that he did not remember his gun firing but that he knows it did. Roberts further testified that he did not intend to rob Bowen at the time he shot her, but he admitted to taking items of her property later.

PROCEDURAL HISTORY

On November 24, 2003, a Polk County grand jury indicted Roberts for murdering Bowen.

On October 15, 2004, a Polk County jury convicted Roberts of capital murder.

After a separate punishment proceeding, the same jury sentenced Roberts to death on October 27, 2004.

On April 18, 2007, Roberts’s conviction and sentence were affirmed by the Court of Criminal Appeals of Texas on direct appeal. Roberts appealed the state court’s decision to the Supreme Court of the United States, but his petition for writ of certiorari was denied on October 1, 2007. While his direct appeal was pending, Roberts filed an application for habeas corpus relief which was denied by the Court of Criminal Appeals on May 13, 2009.

On May 11, 2010, Roberts filed a petition for writ of habeas corpus in the U.S. District Court for the Eastern District of Texas, Beaumont Division. The federal court denied Roberts’s petition on November 7, 2011.

On May 15, 2012, the Fifth Circuit rejected Roberts’s appeal and affirmed the denial of habeas corpus.

On July 11, 2012, the 411th state district court scheduled Roberts’s execution for October 31, 2012.

Roberts filed a petition for writ of certiorari in the Supreme Court on August 8, 2012.

On October 29, 2012, the U.S. Supreme Court denied Roberts’s petition for writ of certiorari.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of Roberts’s trial, jurors learned that Roberts confessed to murdering Al Crow in Louisiana in 1992. Natchitoches Parish law enforcement personnel testified that physical evidence corroborated Roberts’s confession. Jurors also heard evidence that Roberts robbed a Louisiana convenience store at knife point in 2001; was charged with battery after an altercation with one of his cellmates in a Fulton County, Georgia jail; and beat his brother on one occasion so severely that he was airlifted to a hospital.

Two former probation and parole officers who supervised Roberts testified that he was violent and dangerous, and that he absconded from supervision in June 2003, only months before murdering Ms. Bowen.

Donnie Lee Roberts, Jr—white, age 32

Sentenced to death in Polk County, Texas

By: A jury

Date of crime: 10/16/03

Prosecution’s case/defense response: Roberts had a crack cocaine habit. He had been taken in by a girlfriend, Vickie Bowen. Roberts demanded money from her to buy crack. When she refused he shot her three times with a rifle, killing her, and robbed her. He had earlier been convicted of a violent theft in Louisiana, and had absconded to Texas in violation of his conditions of parole.

During questioning concerning the Bowen murder, Roberts admitted that he had killed another man in Louisiana twelve years earlier by burglarizing the man’s home, shooting him with a shotgun, and then burning down the home. In mitigation the defense offered evidence of Roberts’ rotten upbringing, his drug/alcohol dependence, and that he was a good father.

Prosecutor(s): Lee Hon, John Holleman
Defense lawyer(s): Stephen Taylor, Don Cantrell

Sources: Telephone call with prosecutor Hon 2/14/05; Alexandria Daily Town Talk (LA) 6/25/04 (2004 WL 60354968); Baton Rouge Advocate 6/26/04 (2004 WL 58406950);
Shreveport Times 6/25/04 (2004 WL 80296745)

AJS.org

Texas executes man who murdered girlfriend over money

By Corrie MacLaggan - Reuters.com

Oct 31, 2012

(Reuters) - A man convicted of fatally shooting his live-in girlfriend in 2003 after she refused to give him money was executed in Texas on Wednesday by lethal injection, said state officials. Donnie Lee Roberts, 41, became the 35th person executed in the United States this year and the 12th in Texas. He was pronounced dead at 6:39 p.m. local time at the state prison in Huntsville, the state Department of Criminal Justice.

Just before he died, Roberts apologized, officials said. "I am truly sorry," they quoted him as saying. "I never meant to cause y'all so much pain." He added: "God knows I didn't want to do what I did. I loved your daughter. I hope to God he lets me see her in heaven so I can apologize to her."

His victim, dental assistant Vicki Bowen, 44, was found slain in her east Texas house in October 2003 when a co-worker, concerned that she had failed to show up for work, went to Bowen's home to check on her whereabouts, according to an account of the case from the Texas Attorney General's Office. Roberts, who was a crack cocaine user, confessed to officials that he killed Bowen when she refused to give him money, the account said. "I pointed the gun at her and I said, ‘If you'd just give me some money.' And she said, ‘No,'" Roberts told officials, according to the attorney general's account. "And then I said, ‘Look, it doesn't have to be this way.' That's all I remember saying to her. And the next thing I know, I shot her."

Roberts told a different story at his trial in 2004, saying that he picked up the gun because it was out of place, and that he saw what looked like another gun in Bowen's pocket.

Former probation and parole officers testified that Roberts, who had been convicted of armed robbery in Louisiana, fled from court-ordered supervision just months before Bowen's murder, the attorney general's account said. During the penalty phase of his trial, jurors learned that Roberts had confessed to the 1992 murder of a man in Louisiana, the account said. He did not stand trial for that crime.

Texas has executed more than four times as many people as any other state since the death penalty was reinstated in the United States in 1976, according to the Death Penalty Information Center.

Louisiana ex-con executed for 2003 Texas killing

By Michael Graczyk - Associated Press

The Houston Chronicle

October 31, 2012)

HUNTSVILLE, Texas (AP) — Donnie Lee Roberts, convicted in his girlfriend's 2003 slaying in Texas, was executed Wednesday for fatally shooting the woman and taking items from her home to sell or trade to support his drug habit. Roberts, 41, became the 12th inmate to be put to death this year in the nation's most active capital punishment state. He was given a lethal injection for the killing of Vicki Bowen at her East Texas home.

"I'm really sorry. I never meant to cause you all so much pain," Roberts said to Bowen's father, who was seated in a chair close to a glass window in the death chamber viewing area. "I hope you can go on with your life. "I loved your daughter. I hope to God he lets me see her in heaven so I can apologize to her and see her and tell her." Roberts also asked two of his friends who watched through another window to tell his own daughter he loved her. He repeated that he was sorry and took several deep breaths as the lethal dose of pentobarbital began taking effect. He snored briefly before slipping into unconsciousness, and was pronounced dead 23 minutes later. Bowen's relatives, including some who sat on the floor where they were gathered as Roberts was put to death, declined to speak with reporters after the execution.

Roberts' punishment came after the U.S. Supreme Court refused to review his case earlier this week, and no additional appeals were filed to try to block the lethal injection.

At the time of his arrest for the October 2003 slaying of the 44-year-old Bowen, Roberts had violated his probation for a robbery conviction in Louisiana by fleeing to Texas after dropping out of a drug treatment program. Authorities said he apparently met Bowen, a dental assistant, at a bar and moved in with her at her Lake Livingston home, about 75 miles northeast of Houston. Their relationship soured because Roberts wasn't working and was abusing drugs and alcohol, investigators said, and he shot Bowen after she refused his demand for money. Roberts was arrested at a suspected crack house in the town of Livingston when a truck missing from Bowen's home was spotted there the same day Bowen's body was discovered.

"He was cooperative and confessed several times," District Attorney Lee Hon said. "He was saying he wanted the death penalty." Roberts told authorities he made several trips from the house where Bowen was shot, collecting property that he took into town to sell and trade for crack. He also surprised detectives by confessing to the shotgun death of a man that happened a decade earlier in Natchitoches Parish, La. Louisiana authorities initially believed the victim, Al Crow, had died of asphyxiation in a fire at the camper trailer where he was living but reopened the case following Roberts' disclosure, found shotgun pellets and determined it was a homicide. Roberts was charged with murder but not tried for Crow's death.

Stephen Taylor, one of Roberts' lawyers at his Texas capital murder trial, said the confessions complicated his trial defense. "It's almost like somebody saying he was a serial killer, that he's killed before and he killed again," Taylor said. "It's one thing to say you have the right to remain silent. Use it! "It's always sad for someone to lose his life, especially for something so stupid."

Bowen didn't show up for work on Oct. 16, 2003, and a co-worker who went to check on her found her body wrapped in a blanket and lying in a pool of blood. A medical examiner determined Bowen was killed with two gunshots to her head. Roberts took the witness stand and tried to blame Bowen for the gunfire, saying he was acting in self-defense by grabbing a .22-caliber rifle after seeing her reach down inside a couch to locate a pistol that was kept there.

Evidence at trial showed Roberts had a record for battery while being held in jail in Fulton County, Ga., that he'd threatened his wife to give him money for drugs, and that he warned there would be another killing if he didn't get a single-person cell in Polk County when he was jailed for Bowen's murder. His robbery conviction in Louisiana was for a Mother's Day 2001 convenience store holdup in Baton Rouge, La., where the knife-wielding Roberts threatened to slice the throat of the female clerk.

The Texas Department of Criminal Justice Polunsky Unit, where the state's male death row is housed, had been Roberts' home since his capital murder conviction in 2004. The prison is just outside Livingston and not far from where Bowen was killed. Earlier Wednesday, Roberts was moved about 45 miles west to the Huntsville Unit, the prison where the execution was carried out.

Three more Texas prisoners are set to die in November, including one next week.

Louisiana man dies for 2003 murder

By Cody Stark - ItemOnline.com

October 31, 2012

HUNTSVILLE — A Louisiana ex-con who fatally shot his girlfriend and took items from her home in Polk County to support his drug habit eight years ago, was executed Wednesday night. Donnie Lee Roberts was convicted and sentenced to death for the murder of Vicki Bowen in 2003. Before he lethal injection Wednesday, he told her family he was sorry and hoped that he met Bowen in the afterlife so he could tell her the same. He was pronounced dead at 6:39 p.m., 23 minutes after the lethal dose began. Roberts was the 12th inmate to be executed in Texas this year.

“I am truly sorry. I never meant to cause y’all so much pain,” Roberts said. “Not one day as passed that I wish I could take it back. After today, I hope you can go on. I hope this brings you closure. God knows I didn’t want to do what I did, I loved your daughter. I hope to God he lets me see her in heaven so I can apologize to her.”

The United States Supreme Court refused to review Robert’s case earlier this week and no other appeals were filed to halt the execution Wednesday.

At the time of his arrest for the October 2003 killing, Roberts had violated his probation for a robbery conviction in Louisiana by fleeing to Texas after dropping out of a drug treatment program. Authorities said he apparently met Bowen, a dental assistant, at a bar and moved in with her at her home on Lake Livingston. Their relationship soured because Roberts wasn’t working and was abusing drugs and alcohol, investigators said, and he shot Bowen after she refused his demand for money. Roberts was arrested at a suspected crack house in Livingston when a truck missing from Bowen’s home was spotted there the same day Bowen’s body was discovered. “He was cooperative and confessed several times,” District Attorney Lee Hon said. “He was saying he wanted the death penalty.” Roberts told authorities he made several trips from the house where Bowen was shot, collecting property that he took into town to sell and trade for crack.

He also surprised detectives by confessing to the shotgun death of a man that happened a decade earlier in Natchitoches Parish, La. Louisiana authorities initially believed the victim, Al Crow, had died of asphyxiation in a fire at the camper trailer where he was living but reopened the case following Roberts’ disclosure, found shotgun pellets and determined it was a homicide. Roberts was charged with murder but not tried for Crow’s death.

Bowen didn’t show up for work on Oct. 16, 2003, and a co-worker who went to check on her found her body wrapped in a blanket and lying in a pool of blood. A medical examiner determined Bowen was killed with two gunshots to her head. Roberts took the witness stand and tried to blame Bowen for the gunfire, saying he was acting in self-defense by grabbing a .22-caliber rifle after seeing her reach down inside a couch to locate a pistol that was kept there.

Evidence at trial showed Roberts had a record for battery while being held in jail in Fulton County, Ga., that he’d threatened his wife to give him money for drugs, and that he warned there would be another killing if he didn’t get a single-person cell in Polk County when he was jailed for Bowen’s murder. His robbery conviction in Louisiana was for a Mother’s Day 2001 convenience store holdup in Baton Rouge, La., where the knife-wielding Roberts threatened to slice the throat of the female clerk.

In the Court of Criminal Appeals of Texas

No. AP-75,051

Donnie Lee Roberts Jr., Appellant,
v.
The State of Texas

On Direct Appeal from Polk County

Appellant was convicted of capital murder. ⁽¹⁾ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure, Article 37.071, §§2(b) and 2(e), the trial judge sentenced him to death. ⁽²⁾ Direct appeal to this Court is automatic. ⁽³⁾ Appellant raises sixteen points of error. We find all of them to be without merit and therefore affirm.

In point of error one, appellant contends that the evidence was factually insufficient to establish the underlying offense of robbery. In a factual sufficiency review, the evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. ⁽⁴⁾ Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. ⁽⁵⁾ We have recently explained that a reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction." ⁽⁶⁾ Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. ⁽⁷⁾ We turn to a review of the evidence under these principles.

Moreover, several items of the victim's property were discovered missing at the same time the victim's body was discovered, and it was determined that appellant possessed these items either the day of the murder or the next day. A jury could have inferred that appellant took these items shortly after the murder. And from that conclusion, the jury could have further inferred that the murder was committed during the course of a robbery. ⁽⁸⁾

In point of error two, appellant contends that the evidence was factually insufficient to support the jury's answer to the future-dangerousness special issue. We have consistently declined to conduct a factual-sufficiency review in this context, ⁽⁹⁾ and appellant's arguments do not persuade us to retreat from those holdings. ⁽¹⁰⁾ Point of error two is overruled.

Appellant has failed to include in his brief any record citations showing that the redacted notes were ever made a part of the record or that a bill of exceptions outlining the content of these notes was filed. In fact, by saying, "[p]ortions of the notes may have been excised; it is hard to tell from this record," his brief suggests that the notes were not in fact made a part of the record. The State responds that the notes are not in the record and no bill of exception regarding the notes was ever filed. A party has an obligation to make appropriate citations to the record in support of his argument. ⁽¹¹⁾ If the notes are in the record, appellant has failed to include the proper record references. If, as seems more likely, the notes are not in the record, then appellant procedurally defaulted error by failing to include a matter in the record necessary to evaluate his claim. ⁽¹²⁾

After a witness testifies, Rule 615 permits the opposing party to compel disclosure of, among other things, "a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof." ⁽¹³⁾ It appears that the trial court's action may have been proper under Rule 615. But we cannot know whether the notes contained matters outside the scope of the rule without having the notes available to review.

The absence of the notes also impedes any attempt to conduct an accurate harm analysis. Without knowing what information was conveyed to the prosecutor that should not have been, we have no way of determining how the supposed error might have impacted the proceedings. If the alleged error were structural, as appellant contends, we would not need to make such a determination, but we find unpersuasive appellant's contention that the alleged error is structural because of the impact a work-product violation has on the right to counsel. To qualify as "structural," an error involving the constitutional right to counsel must amount to a complete denial of counsel, ⁽¹⁴⁾ which is not the case here. In fact, whether a failure to properly follow the rule of evidence regarding the sharing of witness statements amounts even to constitutional error is questionable. ⁽¹⁵⁾ Point of error three is overruled.

Appellant's brief fails to address the reason the trial court did exclude the evidence: that appellant had failed to make the requisite showing of reliability under Rule 702. ⁽¹⁶⁾ Consequently, appellant's briefing is inadequate, and his point of error is subject to rejection on that ground alone. ⁽¹⁷⁾ Nevertheless, we turn to the merits.

After this questioning, the prosecutor argued to the trial court that the defense had failed to meet the reliability requirements for admission of the expert's opinions under Kelly v. State. ⁽¹⁸⁾ In connection with this argument, the prosecutor alleged that the defense was seeking to elicit a "hard science opinion" rather than a "soft science opinion" when it sought to elicit testimony that "there was correlation or a causal or contributing effect between drugs and alcohol in this offense," and therefore, the trial court had less latitude in allowing this type of testimony. Out of an abundance of caution, the prosecutor stated that he would not object to the expert saying "that based on her knowledge of the literature there is a statistically significant correlation between drug and alcohol dependence and violence," but the prosecutor objected to any opinion about any effect the alcohol and cocaine dependence may have had with respect to the crime committed in this case.

Kelly requires that the proponent of scientific evidence show that (1) the underlying scientific theory is valid, (2) the technique applying the theory is valid, and (3) the technique was properly applied on the occasion in question. ⁽¹⁹⁾ In Nenno v. State, we suggested that the Kelly framework applied to the soft sciences but with "less rigor" than to the hard sciences. ⁽²⁰⁾ Although the prosecutor contended that the issue was one of "hard science" rather than "soft science," we need not attempt to rigidly classify this evidence under one of those headings. ⁽²¹⁾ What we can say is that Dr. McQueen was a medical doctor, but not a psychiatrist or a psychologist. Because she lacked training with respect to mental health problems, one would not ordinarily expect from her an opinion about what might have contributed to a person's behavior with respect to a particular incident or how a person might behave in the future. Dr. McQueen did have training as a researcher with regard to the treatment of addictions, and that training appears to have included knowledge of the interaction between cocaine and alcohol in the body and studies showing a correlation between cocaine and alcohol usage and violence. Under this record, however, the trial court could reasonably conclude that the pharmacological knowledge and studies were not a sufficient basis from which to draw a scientific conclusion about how any particular individual would behave. ⁽²²⁾ Of course, one might draw a layman's conclusion from evidence of a correlation between drug dependence and violence that a particular drug user's violence resulted from dependence, but that sort of conclusion is one that a jury is well-suited to make on its own, without the assistance of an expert. ⁽²³⁾

In point of error seven, appellant contends that his attorney was ineffective for failing to object to the admission of extraneous offense victim impact testimony. Elizabeth Thomas, the victim of a robbery appellant had committed in Baton Rouge a few years earlier, testified about the emotional impact that the robbery had on her life. She testified that she had to quit her job because she was afraid every customer who walked in might rob or kill her. She had difficulty sleeping and was troubled by nightmares. And she spent six months worth of her savings while looking for another job, and even when she found one, she still felt fear while at work. Appellant contends that this evidence was inadmissible as extraneous offense victim impact evidence under Cantu v. State. ⁽²⁴⁾

We disagree. "Victim impact" evidence is evidence of the effect of an offense on people other than the victim. ⁽²⁵⁾ The evidence presented here was evidence of the effect of a different offense on the victim (of the extraneous offense), and thus is distinguishable from the situation presented in Cantu. ⁽²⁶⁾ The evidence was admissible. But even if it weren't, counsel was not ineffective for failing to lodge an objection based upon a case that is clearly distinguishable from the present case. Point of error seven is overruled.

Neither of these contentions reflects the law. In Mosley v. State, we upheld a trial court's decision to permit three witnesses to testify. ⁽²⁷⁾ And in that case we recognized that the State could, within limits, introduce victim impact evidence of which the defendant was not aware. ⁽²⁸⁾ Moreover, the articulated limitations do not apply when the defendant was aware of the impact at the time of the crime because then the evidence would necessarily be relevant to future dangerousness and moral culpability. ⁽²⁹⁾ Here, appellant knew the victim - in fact he lived with her - and, thus, a factfinder could reasonably conclude that he was aware of the impact that the crime would have on the victim's close family members. ⁽³⁰⁾ Appellant points to only one item of testimony involving victim impact that he claims he could not have known: the victim's mother speculated in her testimony that the victim's death caused the victim's sister's cancer to become active again. But appellant did not object to this particular item of testimony. His attack on victim impact testimony in general, advanced before any testimony was heard, did not place the trial court on notice that appellant would find this particular testimony objectionable due to the unforeseeability of the event described. ⁽³¹⁾ Point of error sixteen is overruled.

To preserve error regarding the exclusion of evidence, the offering party must make an "offer of proof" conveying the substance of the proffered evidence. ⁽³²⁾ Because appellant failed to do so, he failed to preserve error. Moreover, we have previously decided that a trial court does not abuse its discretion in excluding "execution-impact" testimony. ⁽³³⁾ Point of error eight is overruled.

In point of error thirteen, appellant contends that the prosecutor improperly suggested to the jury that its verdict might not be the final determination of appellant's sentence due to possible reversal by a higher court. He further contends that this conduct violated a motion in limine and deprived him of due process. His brief refers to prosecutorial questioning during cross-examination of defense witness John Escobedo, a former member of the Board of Pardons and Paroles. However, although appellant filed a motion in limine, he did not object to the prosecutor's questions at the time they were asked and answered. Motions in limine do not preserve error. ⁽³⁴⁾ Because appellant failed to lodge a proper objection, he failed to preserve error. ⁽³⁵⁾ Even if his motion in limine had sufficed as a proper objection, however, that motion was granted. Consequently, appellant failed to obtain an adverse ruling from which to base an appeal. ⁽³⁶⁾ Point of error thirteen is overruled.

We decline to find counsel ineffective on this basis on the record before us. As we have done many times before, we point out that the record on direct appeal is usually inadequate to address ineffective assistance claims. ⁽³⁷⁾ Before granting relief on a claim that defense counsel failed to do something, we ordinarily require that counsel be afforded the opportunity to outline the reasons for the omission. ⁽³⁸⁾ To warrant reversal without affording counsel such an opportunity, the challenged conduct must be "so outrageous that no competent attorney would have engaged in it." ⁽³⁹⁾ In Ripkowski v. State, we held that defense counsel opened the door to testimony concerning possible changes in parole law by: "(1) eliciting testimony that parole laws had become tougher on inmates throughout the years, (2) eliciting testimony concerning the procedures of the Parole Board and the factors taken into account in determining whether to release someone, and (3) arguing that [the defendant] would never be released on parole." ⁽⁴⁰⁾ At least the second Ripkowski factor was present in this case when Escobedo testified about the procedures followed by the parole board and some of the factors taken into account when determining whether to grant parole. And, arguably, Escobedo's testimony went further when he indicated that the parole board could not reduce the forty-year sentence. Counsel could have reasonably believed that the direct examination testimony opened the door to the cross-examination of which appellant now complains, and counsel could have reasonably believed that the initial direct examination testimony, even after the State's cross, was to his client's benefit. Point of error fourteen is overruled.

In point of error four, appellant contends that the trial court's instructions relating to the mitigation special issue unconstitutionally narrowed the definition of mitigating evidence to that evidence which reduces the defendant's moral blameworthiness. In point of error six, he contends that the trial court erred in refusing to include in the charge his requested instruction defining mitigating evidence more broadly. He summarizes his mitigating evidence as falling into four categories: (1) his abused and neglected childhood, (2) alcohol and cocaine dependence, (3) low IQ, and (4) his good qualities as a father, family member, and worker. He concedes that the definition given in the charge is required by statute ⁽⁴¹⁾ but contends that the definition constitutes an improper screening test in violation of Tennard v. Dretke. ⁽⁴²⁾ We have already decided this very claim adversely to appellant's position. ⁽⁴³⁾ Moreover, appellant does not explain how the jury instructions that were given prevented the jury from giving effect to any of his alleged mitigating evidence, and we perceive no barrier to the jury doing so. ⁽⁴⁴⁾ Points of error four and six are overruled.

In point of error ten, appellant contends that the mitigation special issue is unconstitutional because no burden of proof is assigned to it. In point of error eleven, he contends that the mitigation issue is unconstitutional because it does not impose a burden of proof on the State's "anti-mitigating" evidence. Citing Prystash v. State, appellant concedes that we have rejected these contentions many times. ⁽⁴⁵⁾ He contends that he has a new argument based on recent decisions of this Court and the United States Supreme Court, but the only case he cites in support of his argument that postdates Prystash is the Supreme Court's decision in Blakely v. Washington. ⁽⁴⁶⁾ We have previously rejected the argument that the Apprendi ⁽⁴⁷⁾-Ring ⁽⁴⁸⁾-Blakely line of cases requires a burden of proof with regard to the mitigation special issue. ⁽⁴⁹⁾ Points of error ten and eleven are overruled.

In point of error twelve, appellant contends that the trial court erred in refusing his request to give the concluding argument at punishment on the mitigation special issue. He concedes that we held contrary to his position in Masterson v. State, ⁽⁵⁰⁾ but he requests that we reconsider that decision. Nothing in his argument convinces us that our decision in Masterson was incorrect. Point of error twelve is overruled.

In point of error nine, appellant contends that the death penalty should have been precluded in his case because the grand jury did not pass on the punishment special issues when deciding whether to indict him. As authority, he relies upon the Apprendi-Ring-Blakely line of cases. We have rejected this claim with respect to Apprendi and Ring, and Blakely does not appear to affect our rationale in doing so. ⁽⁵¹⁾ Point of error nine is overruled.

In point of error fifteen, appellant contends that the Texas death-penalty scheme is unconstitutional because it fails to provide uniform statewide standards to guide prosecutors in deciding when to seek the death penalty. He contends that this failure constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment. We have previously rejected the notion that there should be "a statewide policy or standard for determining in which cases the State will seek the death penalty as opposed to leaving the decision in the hands of the individual district attorneys." ⁽⁵²⁾ Appellant relies upon Bush v. Gore, ⁽⁵³⁾ but we have rejected the notion that a disparity in death-penalty decision-making from county to county violates the principles articulated in that decision. ⁽⁵⁴⁾ Point of error fifteen is overruled.

*****

1. Tex. Pen. Code §19.03(a)(2)("A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and . . . the person intentionally commits the murder in the course of committing or attempting to commit . . . robbery.")

2. Art. 37.071, §2(g). Unless otherwise indicated, all references to articles are to the Texas Code of Criminal Procedure.

3. Art. 37.071, §2(h).

4. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

5. Watson v. State, 204 S.W.3d 404, 414-415 (Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 11.

6. Watson, 204 S.W.3d at 417.

7. Id.; Cain v. State, 958 S.W.2d 404, 407, 410 (Tex. Crim. App. 1997).

8. Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002).

9. Renteria v. State, 206 S.W.3d 689, 707 (Tex. Crim. App. 2006); Russeau v. State, 171 S.W.3d 871, 878 n. 1 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 2982 (2006); Blue v. State, 125 S.W.3d 491, 496 (Tex. Crim. App. 2003); Conner v. State, 67 S.W.3d 192, 199 (Tex. Crim. App. 2001); Brooks v. State, 990 S.W.2d 278, 285 (Tex. Crim. App. 1999); McGinn v. State, 961 S.W.2d 161, 166-169 (Tex. Crim. App. 1998).

10. Appellant relies in part upon Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004). We note that Zuniga was recently overruled in Watson, 204 S.W.3d at 415-420.

11. Tex. R. App. P. 38.1(h).

12. Tex. R. App. P. 33.2.

13. Tex. R. Evid. 615(f)(2).

14. Johnson v. United States, 520 U.S. 461, 468-469 (1997); see also Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 1355 (2006).

15. See Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002).

16. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702.

17. See Rule 38.1(h)("The brief must contain . . . appropriate citations to authorities").

18. 824 S.W.2d 568 (Tex. Crim. App. 1992).

19. 824 S.W.3d at 573.

20. Nenno, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998).

21. See id. at 560-561 (recognizing that "the distinction between" hard and soft science "may often be blurred").

22. See Hernandez v. State, 116 S.W.3d 26, 30-32 (scientific evidence should not be admitted on the basis of a record devoid of the proper showing of reliability).

23. See Schutz v. State, 957 S.W.2d 52, 69 (Tex. Crim. App. 1997)("We should be cautious about permitting experts to draw conclusions that rest on both expert and lay knowledge . . . . Once the expert has imparted his specialized knowledge to the jury, the jury can use that knowledge, along with its own lay knowledge of human nature, to arrive at its own conclusion.").

24. 939 S.W.2d 627, 637 (Tex. Crim. App. 1997).

25. Garcia v. State, 126 S.W.3d 921, 929 (Tex. Crim. App. 2004) (medical records of injured bystander admissible over "victim impact" objection); Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (discussing meaning of "victim impact" testimony) ; Mathis v. State, 67 S.W.3d 918, 928 (Tex. Crim. App. 2002) (testimony not "victim impact" evidence because not about effect on third person or about victim's character). See also Payne v. Tennessee, 501 U.S. 808, 817 (1991).

26. See authorities in previous footnote.

27. 983 S.W.2d 249, 264-265 (Tex. Crim. App. 1998).

28. Id. at 261 n.16, 262.

29. Jackson v. State, 33 S.W.3d 828, 833-834 (Tex. Crim. App. 2000); Mosley, 983 S.W.2d at 261 n.16.

30. See Jackson, 33 S.W.3d at 830, 833-834 (defendant murdered his wife; effect of murder on victim's father).

31. Tex. R. App. P. 33.1(a)(1)(A).

32. Tex. R. Evid. 103(a)(2).

33. Jackson, 33 S.W.3d at 834.

34. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).

35. Tex. R. App. P. 33.1(a)(1).

36. Rule 33.1(a)(2); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

37. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

38. Id.

39. Id.

40. 61 S.W.3d 378, 394 (Tex. Crim. App. 2001).

41. Art. 37.071, §2(f)(4).

42. 542 U.S. 274 (2004).

43. Perry v. State, 158 S.W.3d 438, 449 (Tex. Crim. App. 2004), cert. denied, 126 S. Ct. 416 (2005).

44. Morris v. State, 940 S.W.2d 610, 615 (Tex. Crim. App. 1996)("evidence of past abuse, mental illness, intoxication, drug addiction and remorse . . . reflect upon the issue of moral blameworthiness"); Norris v. State, 902 S.W.2d 428, 448 (Tex. Crim. App. 1995)(being a good father and employee did not require an instruction separate from the future dangerousness issue that was submitted).

45. 3 S.W.3d 522, 535 (Tex. Crim. App. 1999).

46. 542 U.S. 296 (2004).

47. Apprendi v. New Jersey, 530 U.S. 466 (2000).

48. Ring v. Arizona, 536 U.S. 584 (2002).

49. Perry, 158 S.W.3d at 446-448.

50. 155 S.W.3d 167, 174-175 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 1330 (2006).

51. Russeau, 171 S.W.3d at 886; Rayford v. State, 125 S.W.3d 521, 533 (Tex. Crim. App. 2003).

52. Crutsinger v. State, 206 S.W.3d 607, 611-613 (Tex. Crim. App.), cert. denied, 127 S. Ct. 836 (2006); Hankins v. State, 132 S.W.3d 380, 387 (Tex. Crim. App.2004).

53. 531 U.S. 98 (2000).

54. Threadgill v. State, 146 S.W.3d 654, 671-672 (Tex. Crim. App. 2004)(citing Rayford, 125 S.W.3d at 534).

Roberts v. Thaler, 681 F.3d 597 (5th Cir. 2012). (Federal Habeas)

Background: After his state conviction for capital murder and death sentence were affirmed, 220 S.W.3d 521, and his petition for state habeas relief was denied, 2009 WL 1337443, petitioner sought federal writ of habeas corpus. The United States District Court for the Eastern District of Texas, Thad Heartfield, J., 2011 WL 5433982, denied petition. Appeal was taken.

Holdings: The Court of Appeals, King, Circuit Judge, held that: (1) in matter of first impression, inadequate briefing of claim in capital case is valid procedural bar to federal habeas relief; (2) Eighth Amendment claim regarding restriction on expert testimony at sentencing was procedurally barred; (3) restriction on expert testimony did not violate Eighth Amendment; (4) trial counsel's performance was not deficient; and (5) Eighth Amendment claim regarding restriction on execution impact testimony was procedurally barred. Affirmed.

KING, Circuit Judge:

Donnie Lee Roberts was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals rejected both his direct and postconviction appeals. He then filed for federal habeas relief in the district court. The district court rejected his petition for habeas relief, but granted him a certificate of appealability to pursue three claims arising from his sentencing hearing dealing with, respectively, the restrictions on his expert's testimony, the alleged ineffective assistance of his trial counsel in failing to object to victim impact testimony, and the restriction on execution impact testimony. Roberts's first claim is procedurally defaulted and, alternatively, fails on the merits. His ineffective assistance claim also fails on the merits, and his execution impact claim is procedurally barred. We, therefore, AFFIRM the district court's denial of habeas relief to Roberts.

I. FACTUAL AND PROCEDURAL BACKGROUND

The district court summarized the facts underlying Donnie Lee Roberts's (“Roberts”) case as follows: At the time of the murder, [Roberts] lived with the victim, Vicki Bowen. [Roberts] was unemployed, often drank alcohol, and used cocaine. Bowen worked as a dental assistant. On October 15, 2003, she went shopping with co-worker Brenda Bland, but she did not show up for work the next day. Because Bowen was a punctual person who always called if she was going to be late, Bland became concerned and went to Bowen's house to check on her. When Bland arrived at the home, she found the front door open. After knocking and receiving no answer, Bland entered the home and found Bowen dead. Bland noticed that Bowen was still in the scrubs she had worn at work the previous day. She was covered by a blanket and was lying face down with her head turned to the side in a pool of blood. Blood spatters were present in the living room on the coffee table, the couch, and the walls. The medical examiner would later determine that Bowen died from two gunshot wounds to the head.

It was immediately apparent from an examination of the scene that Bowen's television and her son's truck were missing. That same day, the police found [Roberts] after tracking down the stolen truck. It was later determined that [Roberts] had taken the truck, the television, Texans/Titans football tickets, jewelry, a Western Union money order, a .22 rifle, and a .22 pistol. [Roberts] had sold the football tickets for one hundred dollars. He had bought cocaine from Edwin Gary on October 15 on three different occasions, the last of which involved trading the .22 caliber pistol. [Roberts] had apparently abandoned the .22 rifle, later determined to be the murder weapon, a few blocks from where he was found. The Western Union money order was found in the residence at which [Roberts] had parked his truck, but the television and the jewelry were never recovered. [Roberts] was interviewed and gave a confession. In that confession, he acknowledged that he had “a crack cocaine problem” and that he would go to bars, get drunk, and then look for drugs. With regard to the victim's death, [Roberts] said, “I pointed the gun at her and I told her just give me some money.” *603 Later in the interview, [Roberts] stated: “I pointed the gun at her and I said, ‘if you'd just give me some money.’ And she said ‘No.’ And then I said, ‘Look, it doesn't have to be this way.’ That's all I remember saying to her. And the next thing I know, I shot her.”

At trial, [Roberts] testified to a different sequence of events. He claimed that he picked up the .22 rifle because it was out of place, near the door. He also claimed that he saw what looked like a .22 pistol in Bowen's pocket and that she moved her hand to her pocket to reach for it. He then said that he “must have chambered a round into the .22 rifle at that time,” but he did not remember if he pulled the safety off. He also claimed that he did not remember his gun firing but that he knows it did. [Roberts] further testified that he did not intend to rob Bowen at the time he shot her, but he admitted to taking items of her property later. Roberts v. Thaler, No. 1:09cv419, 2011 WL 5433982, at *1–2 (E.D.Tex. Nov.7, 2011) (citing Roberts v. State, 220 S.W.3d 521, 524–25 (Tex.Crim.App.2007)).

Roberts was found guilty of capital murder on October 15, 2004, and, following a subsequent sentencing hearing, was sentenced to death on October 27, 2004. Id. at *2. Roberts's conviction and sentence were both affirmed by the Texas Court of Criminal Appeals (“TCCA”) on direct appeal. See Roberts, 220 S.W.3d at 524–25. His petition for state postconviction relief was denied, with the TCCA adopting most, but not all, of the lower court's findings and conclusions. See Ex parte Roberts, Nos. 71,573–01, 71,573–02, 2009 WL 1337443, at *1 (Tex.Crim.App. May 13, 2009).

Roberts then filed for federal habeas relief in the district court for the Eastern District of Texas, raising nineteen claims for relief. See Roberts, 2011 WL 5433982, at *2–3. The district court rejected all of Roberts's claims for habeas relief on a variety of procedural and substantive grounds on November 7, 2011. Id. at *26. On December 7, 2011, the district court granted Roberts a certificate of appealability (“COA”) to continue to pursue three of his claims before this court: (1) that his right to be free from cruel and unusual punishment was violated when the trial court refused to let his expert testify during Roberts's sentencing that Roberts's combined use of alcohol and cocaine caused him to commit the capital murder; (2) that he was denied the effective assistance of counsel when his trial counsel failed to object during the sentencing hearing to testimony that Roberts alleges was improper victim impact evidence from an extraneous crime; and (3) that his right to be free from cruel and unusual punishment was violated when the trial court refused to allow testimony from Roberts's family member as to how his execution would impact her. We first address the proper standard of review under the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, and then resolve each of Roberts's claims in turn.

II. DISCUSSION

A. Standard of Review

The district court's grant of a COA to Roberts gives us jurisdiction to review his claims. See 28 U.S.C. § 2253(c); Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “In an appeal of the district court's denial of habeas relief, ‘this court reviews the district court's findings of fact for clear error and its conclusions of law de novo, applying the same standard of review that the district court applied to the state court decision.’ ” *604 Austin v. Cain, 660 F.3d 880, 884 (5th Cir.2011) (quoting Jones v. Cain, 600 F.3d 527, 535 (5th Cir.2010)).

Roberts's appeal is governed by AEDPA, 28 U.S.C. § 2254. Under § 2254(d)(1), if the state court denied the petitioner's claim on the merits, a federal court may grant habeas corpus relief only if the state court's adjudication of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....” To be clear, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis added); see also Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (“It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). “A state court's decision is contrary to clearly established federal law if it applies a rule that contradicts the governing law set forth in Supreme Court cases ... or if the state court decide[s] a case differently than the United States Supreme Court previously decided a case on a set of nearly identical facts.” Jones, 600 F.3d at 535 (citations and internal quotation marks omitted). Similarly, “[a] state court's decision involves an unreasonable application of clearly established federal law if the state court ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.’ ” Fields v. Thaler, 588 F.3d 270, 273 (5th Cir.2009) (quoting Williams, 529 U.S. at 407–08, 120 S.Ct. 1495).

AEDPA also governs our review of factual determinations. See Chester v. Thaler, 666 F.3d 340, 348 (5th Cir.2011). Under § 2254(e)(1), the state court's factual findings are accorded a presumption of correctness and the petitioner may only rebut this presumption with clear and convincing evidence. See Miller–El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Moreover, we may not grant habeas relief unless the state court determination “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Finally, we may not review a habeas claim “if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision.” Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.2001) (emphasis added). Thus, “[a]s a rule, a state prisoner's habeas claims may not be entertained by a federal court when (1) a state court [has] declined to address [those] claims because the prisoner had failed to meet a state procedural requirement, and (2) the state judgment rests on independent and adequate state procedural grounds.” Maples v. Thomas, ––– U.S. ––––, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012) (citation and internal quotation marks). The twin requirements of independence and adequacy demand that the state court's dismissal must “ ‘clearly and expressly’ indicate that it rests on state grounds which bar relief, and the bar must be strictly or regularly followed by state courts, and applied to the majority of similar claims.” Finley, 243 F.3d at 218 (quoting Amos v. Scott, 61 F.3d 333, 338–39 (5th Cir.1995)). Put differently, “[t]o produce a federally cognizable default, the state procedural rule ‘must have been ‘firmly established and regularly *605 followed’ by the time as of which it is to be applied.' ” Busby v. Dretke, 359 F.3d 708, 718 (5th Cir.2004) (quoting Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). A petitioner may not overcome a procedural default based on independent and adequate state grounds, unless the prisoner can establish cause for the default and actual prejudice as a result of the alleged violation of federal law, or that the failure to consider his claims would result in a fundamental miscarriage of justice because he is “actually innocent” of the offense underlying his conviction or “actually innocent” of the death penalty. Williams v. Thaler, 602 F.3d 291, 307 (5th Cir.2010) (citing Schlup v. Delo, 513 U.S. 298, 326–27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)). While our normal procedure is to consider issues of procedural default first, we may nonetheless opt to examine the merits first, especially when procedural default turns on difficult questions of state law. Busby, 359 F.3d at 720.

B. Roberts's First Claim: The Limitation on His Expert's Testimony

Roberts's first claim is that his rights under the Eighth Amendment were violated when the trial court refused to allow his expert, Dr. Katherine McQueen (“Dr. McQueen”), to testify that it was Roberts's combined use of alcohol and crack cocaine that caused him to commit the capital murder. The trial court held a pre-sentencing evidentiary hearing to determine what the scope of Dr. McQueen's testimony would be. Roberts, 220 S.W.3d at 527–28. Upon reviewing Dr. McQueen's qualifications, the basis for her testimony, and arguments from both sides, the trial court determined that Dr. McQueen could not give her “opinion about whether [Roberts's addiction to cocaine and alcohol] had some bearing on th[e] offense.” Id. at 529. Dr. McQueen was permitted to testify that there was statistical evidence showing a correlation between the combined use of alcohol and cocaine and violence, that this relationship was stronger when both drugs were ingested together rather than individually, and that Roberts was addicted to both. Id. However, during the sentencing hearing itself, Roberts's counsel attempted to ask Dr. McQueen, “[W]as there some or is there some relationship to Donnie Roberts'[s] dependence on alcohol, dependence on cocaine, dependence on a combination thereto in relationship to the events of the [day of the murder]?” Id. at 529–30. The prosecution objected and the objection was sustained. Id. at 530.

On direct appeal before the TCCA, Roberts argued that, by not permitting Dr. McQueen to testify that his combined use of alcohol and drugs caused him to commit the offense, the trial court excluded constitutionally relevant mitigating evidence. Id. at 528. The TCCA first noted that Roberts's “brief fails to address the reason the trial court did exclude the evidence: that appellant had failed to make the requisite showing of reliability under [Texas] Rule [of Evidence] 702.” Id.FN1 “Consequently,”*606 the TCCA concluded, “[Roberts]'s briefing is inadequate, and his point of error is subject to rejection on that ground alone.” Id. On this point, the TCCA cited to Texas Rule of Appellate Procedure 38.1, which, inter alia, provides that “[t]he brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. Proc. 38.1(i). However, the TCCA then stated, “Nevertheless, we turn to the merits.” Roberts, 220 S.W.3d at 528. The TCCA proceeded to reject Roberts's claim on the merits, id. at 528–31, holding that “the trial court could reasonably conclude that [Dr. McQueen's] pharmacological knowledge and [previous] studies were not a sufficient basis from which to draw a scientific conclusion about how any particular individual would behave.” Id. at 530. The district court noted that the TCCA rejected Roberts's claim on procedural grounds, but apparently did not agree with its reasoning: “The parties have not cited, and this Court has not found, authority holding that the rule forbidding inadequate briefing is strictly or regularly applied evenhandedly to the vast majority of similar claims. In light of this uncertainty, the Court finds it easier to resolve this claim on its merits.” Roberts, 2011 WL 5433982, at *14. The district court then considered Roberts's claim on the merits and concluded that “the state court's rejection of this claim was neither contrary to, nor the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States in Tennard [and] Barefoot....” Id. at 16.

FN1. Texas Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” In the capital context, Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992), provides the governing standard for evaluating the relevance and reliability of expert testimony.

Roberts's brief before the TCCA noted that “the trial court would not allow [his expert] to give her ultimate opinion that [Roberts's] drug use caused Roberts to commit the crime in this case.” Roberts only referred to the issue of relevancy when he stated, without providing any citations, that “[s]uch evidence [as it relates to the circumstances of the particular offense] is ... so highly relevant according to the Supreme Court that it may not be excluded.” Roberts may have been attempting to argue, relying on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), that state relevancy requirements must yield to the constitutional guarantee that “the [capital] sentencing process must permit consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Lockett, 438 U.S. at 601, 98 S.Ct. 2954 (citation and internal quotation marks omitted). But Roberts never actually made this point before the state courts—at least not with any clarity—nor did he cite to any of the relevant Texas statutes or cases that govern this area of law. Indeed, Roberts makes no reference to procedural default in his briefing on this claim before this court. While the TCCA may well have disposed of Roberts's claim on grounds of procedural default, its analysis was brief and a credible argument could be made that the TCCA was merely noting—rather than holding—that Roberts's claim was inadequately briefed and thus could be “subject to rejection on that ground alone.” Roberts, 220 S.W.3d at 527. If the TCCA did find Roberts's claim procedurally barred, then we must first consider whether this conclusion precludes review of the substance of his habeas claim. See Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir.2010). Given that the TCCA “clearly and expressly” relied on Texas's rule regarding adequate briefing in disposing of Roberts's claim on this procedural ground, Finley, 243 F.3d at 218, we must examine the TCCA's application of this rule in previous cases. We have not had occasion to consider this issue within our circuit.FN2

FN2. This court has encountered inadequate briefing as a form of procedural default in habeas cases arising from the Texas courts, but has either not had occasion to consider it directly or has only addressed it in the COA context. In Salazar v. Dretke, 419 F.3d 384, 395–96 (5th Cir.2005), this court confronted a situation where the TCCA had rejected a petitioner's argument on procedural grounds of inadequate briefing. However, the district court concluded that the State had failed to invoke the procedural bar doctrine before the trial court and had abandoned this claim on appeal. Id. at 395 n. 20. Accordingly, the panel did not address this issue. In Heiselbetz v. Johnson, No. 98–41474, 1999 WL 642862, at *6 (5th Cir. July 26, 1999), an applicant for a COA was denied the certificate on a claim that the TCCA concluded was inadequately briefed. The panel concluded that the applicant had failed to “make a credible showing that his claim [wa]s not procedurally barred.” Id.

A survey of the TCCA's capital sentencing jurisprudence reveals that it regularly rejects claims, both on direct and postconviction review, on the basis that these claims are inadequately briefed. See, e.g., Leza v. State, 351 S.W.3d 344, 358 (Tex.Crim.App.2011) (“The appellant directs us to nowhere in the record where any such complaints were registered in the trial court, nor have we found any. Nor does he now offer any justification for treating these arguments as immune from ordinary principles of procedural default, in contemplation of the framework for error preservation.... For this reason, we regard his arguments under this point of error as inadequately briefed and decline to reach their merits.”) (footnotes omitted); Lucio v. State, 351 S.W.3d 878, 896 (Tex.Crim.App.2011) (“Appellant's brief contains no argument or citation to any authority that might support an argument that if she is guilty, she is guilty only of injury to a child.... We decide that this point of error is inadequately briefed and presents nothing for review as this Court is under no obligation to make appellant's arguments for her.”); Murphy v. State, 112 S.W.3d 592, 596 (Tex.Crim.App.2003) (“[B]ecause appellant does not argue that the Texas Constitution provides, or should provide, greater or different protection than its federal counterpart, appellant's point of error is inadequately briefed.”); Salazar v. State, 38 S.W.3d 141, 147 (Tex.Crim.App.2001) (dismissing multiple claims on grounds that “[a]ppellant has briefed these points together, but his brief presents no authority in support of his argument”); Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App.1991) (“We do not, by this opinion, retreat from our [prior] pronouncement ... that briefs asserting rights under Article I, Sec. 10 of the Texas Constitution were inadequate if they did not provide either argument or authority in support of that assertion.”).

While the district court was correct to note that we have not decided whether Texas's rule regarding inadequate briefing in the capital context constitutes a valid procedural bar to federal habeas relief, we hold now that under the prevailing standards, Texas's rules have been “regularly followed by [its] courts, and applied to the majority of similar claims.” Finley, 243 F.3d at 218. Other district courts in our jurisdiction have held as much. See, e.g., Woodard v. Thaler, 702 F.Supp.2d 738, 750–51 & n. 9 (S.D.Tex.2010).FN3 Our sister courts of appeal, in addressing analogous provisions from other states, have likewise found them to act as independent and adequate state procedural bars. See House v. Hatch, 527 F.3d 1010, 1029–30 (10th Cir.2008) (holding that New Mexico's requirement of adequate briefing is an independent and adequate procedural bar to federal habeas relief); Clay v. Norris, 485 F.3d 1037, 1040–41 (8th Cir.2007) (holding that Arkansas's proper abstracting rule is *608 an independent and adequate procedural bar to federal habeas relief).

FN3. One exception is Oliver v. Dretke, No. 1:04CV041, 2005 WL 2403751, at *9 (E.D.Tex. Sept. 29, 2005), where the court found that “[i]t is not clear that Rule 38.1 has been so consistently applied as to constitute an adequate and independent state ground for decision, [and so] the Court finds that the issue has not been procedurally defaulted.” The district court provided nothing—neither citations nor reasoning—beyond this bald statement. Such conclusory statements are unpersuasive.

In this case, if the TCCA did invoke the briefing requirements of Texas Rule of Appellate Procedure 38.1 to bar Roberts's claim, then its determination constituted an independent and adequate state ground for denial of relief that procedurally bars federal habeas review. Moreover, Roberts cannot show any cause for his default nor does he claim that any miscarriage of justice would result from enforcing such a bar. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Consequently, we disagree with the district court's determination that Roberts's inadequate briefing does not pose a bar to federal habeas review.

However, because a credible argument could be made that the TCCA did not expressly bar Roberts's claim, we also consider the merits of his claim. Roberts concedes that Dr. McQueen was permitted to testify that Roberts was addicted to alcohol and cocaine, and that there is “a very strong connection between substance use and dependence and violent acts and, in particular, between dependence on both alcohol and cocaine and violent acts.” Roberts, 220 S.W.3d at 531 (internal quotation marks omitted). Nevertheless, Roberts appears to take issue with the TCCA's conclusion, adopted by the district court, that “the trial court [did not] err[ ] when it decided to prevent Dr. McQueen from taking the extra step of opining whether alcohol and drug dependence was related to [Roberts]'s violent conduct” on the night of the murder. Id. Roberts argues that this restriction left Dr. McQueen's testimony “in the abstract and not personal so that the jury could give effect to the mitigating evidence that ‘reduced the defendant's moral blameworthiness' as contemplated in Tennard [ v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004)].”

Roberts's argument appears to rest on both Tennard—where the Court held that the Eighth Amendment requires that the jury be able to consider and give meaningful effect to a capital defendant's mitigating evidence—and Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)—where the Court refused to enact a constitutional per se bar to expert testimony regarding a defendant's future dangerousness. But neither case, either individually or in combination, supports Roberts's claim. The jury was not prevented from giving meaningful effect to the testimony of Dr. McQueen; rather, Dr. McQueen was prevented from specifically stating that Roberts's dependence on drugs and alcohol caused him to commit the homicide. This restriction came after Dr. McQueen was unable to show any reliable basis for such testimony, being unable to cite any specific scientific research for her conclusions. Roberts, 220 S.W.3d at 528–29. Nonetheless, Dr. McQueen was permitted to testify broadly and the jury was fully entitled to draw Roberts's preferred inference that drugs and alcohol were mitigating factors in the crime after hearing Dr. McQueen's testimony. We see no unreasonable application of Tennard by the TCCA in upholding the trial court's limitation on Dr. McQueen's testimony.

Moreover, Roberts has shown no unreasonable application of Barefoot. Dr. McQueen was permitted to testify about Roberts's drug and alcohol addiction and the relationship of such an addiction to violent behavior. Indeed, Roberts was permitted to present the testimony of a second expert confirming the impact of Roberts's cocaine and alcohol addiction on his psychology and opining that Roberts would not pose a future danger. Barefoot *609 stands for the proposition that expert testimony predicting a defendant's future dangerousness is not per se inadmissible. See Barefoot, 463 U.S. at 896–97, 103 S.Ct. 3383 (explaining that because future dangerousness “is a constitutionally acceptable criterion for imposing the death penalty,” and it is “not impossible for even a lay person sensibly to arrive at that conclusion, it makes little sense, if any, to submit that psychiatrists, out of the entire universe of persons who might have an opinion on the issue, would know so little about the subject that they should not be permitted to testify”).FN4 Barefoot does not require that any mitigating testimony that might be offered by an expert be admitted into evidence. Accordingly, the TCCA did not unreasonably apply federal law when it affirmed the trial court's restrictions on Dr. McQueen's testimony. FN4. Moreover, as the district court properly observed, there are questions about the ongoing vitality of Barefoot in the wake of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Flores v. Johnson, 210 F.3d 456, 464–66 (5th Cir.2000) (Garza, J., concurring).

In sum, Roberts's claim is both procedurally barred and fails on the merits. Consequently, we affirm the district court's denial of habeas relief on this claim.

C. Roberts's Second Claim: Ineffective Assistance of Counsel

Roberts's second claim on appeal is that he was denied the effective assistance of counsel when his trial lawyer failed to object to testimony from the victim of a robbery that Roberts previously committed. See Roberts, 2011 WL 5433982, at *16. To provide the setting, at the sentencing phase of Roberts's trial, the State introduced evidence of a series of Roberts's prior offenses, including a confession to law enforcement officers that he had committed a previous murder and a confession that he had badly injured his brother on his brother's wedding night. As part of this evidence, the prosecution called Elizabeth Thomas, the victim of a robbery by Roberts, to testify about the robbery and the anxieties and emotional problems that the robbery had caused her. Roberts, 220 S.W.3d at 531.FN5 The testimony about Roberts's prior offenses was followed by testimony from the mother, father, and son of the victim for whose death Roberts was on trial about the impact of the murder on them. On direct appeal to the TCCA, Roberts contended that Thomas's testimony about the impact of Roberts's robbery on her life was improper victim impact evidence under the TCCA's holding in Cantu v. State, 939 S.W.2d 627, 637 (Tex.Crim.App.1997), and that counsel should have objected to its introduction. The TCCA disagreed that Thomas's testimony constituted improper victim impact evidence, explaining that “ ‘[v]ictim impact’ evidence is evidence of the effect of an offense on people other than the victim.... [and] [t]he evidence presented here was evidence of the effect on a different offense on the victim (of the extraneous offense)....” Roberts, 220 S.W.3d at 531 (footnote omitted) (emphasis in original). The TCCA then concluded that the evidence was admissible and “even if it weren't, counsel was not ineffective for failing to lodge an objection based upon a case that is clearly distinguishable from the present case.” Id. The district court surveyed Cantu and other cases dealing with this class of evidence and concluded that the TCCA's position was not unreasonable because “Roberts's trial counsel *610 could reasonably have believed, based upon state court precedent, that objecting to the admission of the victim impact evidence in his case would have been futile.” Roberts, 2011 WL 5433982, at *20. FN5. The State also had two experts testify that Roberts suffered from various psychological disorders and would pose a future danger.

Ineffective assistance of counsel claims are governed by the standards laid out in Strickland v. Washington:

First, the defendant must show that counsel's performance was deficient.... 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to satisfy the performance prong, “the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id.; see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Strickland's second prong focuses on the result of counsel's deficient performance: “When a defendant challenges a death sentence ..., the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052. In this context, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052, 104 S.Ct. 2052. Put differently, “[i]n assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.... Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 791–92, 178 L.Ed.2d 624 (2011) (citations and internal quotation marks omitted). Thus, Strickland demands that the likelihood of a different result “must be substantial, not just conceivable.” Id. at 792.

However, this two-prong standard is itself subject to the dictates of AEDPA. “Surmounting Strickland's high bar is never an easy task.... Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, ... and when the two apply in tandem, review is doubly so....” Premo v. Moore, –––U.S. ––––, 131 S.Ct. 733, 739–40, 178 L.Ed.2d 649 (2011) (citations and internal quotation marks omitted). The Supreme Court has admonished that “[f]ederal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland 's deferential standard.” Id. at 740 (emphasis added); see also Harrington, 131 S.Ct. at 785 (“The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.... A state court must be granted a deference and latitude that are not in operation*611 when the case involves review under the Strickland standard itself.”).

In the instant case, the key issue is whether Roberts's trial counsel was ineffective in failing to object to the testimony of a victim of an extraneous offense. We “ha[ve] made clear that counsel is not required to make futile motions or objections.” Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.1990) (citing Murray v. Maggio, 736 F.2d 279, 283 (5th Cir.1984) (per curiam)). Accordingly, if any objection by Roberts's trial counsel would have been futile, then the failure to object would not fall below the difficult standard enunciated above.

Determining whether an objection would have been futile depends on the state of the law regarding victim impact evidence. To be clear, the Eighth Amendment does not per se bar the introduction of victim impact evidence in capital cases. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Rather, the germane constitutional prohibition restricts the introduction of “evidence ... that is so unduly prejudicial that it renders the trial fundamentally unfair” and violates the Due Process Clause of the Fourteenth Amendment. Id. at 825, 111 S.Ct. 2597. However, the Court left questions about the relevancy of such evidence to the states. Id. at 826–29, 111 S.Ct. 2597. In a series of cases beginning with Ford v. State, 919 S.W.2d 107 (Tex.Crim.App.1996), the TCCA set about fleshing out this standard.FN6 Most relevant for our purposes is Mathis v. State, 67 S.W.3d 918 (Tex.Crim.App.2002), where the TCCA confronted a situation in which a defendant had shot three people, killing one and leaving another quadriplegic, but the defendant was on trial only for the murder. Id. at 927. At the defendant's sentencing, the State called the nurse of the paralyzed victim to discuss the victim's medical care needs. Id. at 928. The TCCA allowed the evidence, explaining:

FN6. Initially, the TCCA drew on Payne in concluding that certain kinds of victim impact evidence might plausibly be relevant to a defendant's moral culpability for capital murder. Ford, 919 S.W.2d at 115–16. The next year, however, in Cantu v. State, the TCCA circumscribed this ruling. In Cantu, the defendant was involved in the murder of two teenage girls, but was initially tried for one of the murders. Cantu, 939 S.W.2d at 631. During his capital sentencing hearing, the prosecution introduced the testimony of the mother of the victim not named in the indictment. Id. at 635–36. The TCCA held that it was error for the trial court to admit this evidence as “[t]he danger of unfair prejudice to a defendant inherent in the introduction of ‘victim impact’ evidence with respect to a victim not named in the indictment on which he is being tried is unacceptably high.” Id. at 637. Such evidence was irrelevant and inadmissible for the purposes of capital sentencing, the TCCA concluded, effectively combining both inquiries. Id. Cantu's reach has, in turn, been circumscribed by the decisions we describe below.

Unlike in [previous cases], in which the evidence involved testimony regarding both the victim's good qualities and the effect that her death had on family members, the testimony in the present case did not involve testimony about how third persons were affected by the crime, nor was there any discussion about the character of the victim. [The nurse]'s testimony focused solely on the medical procedures involved in the care of [the victim]. Appellant's characterization of [the nurse]'s testimony as victim impact evidence is incorrect. Id. at 928 (emphasis added). Mathis and its reasoning figured prominently in shaping two later TCCA decisions. In Guevara v. State, 97 S.W.3d 579, 583–84 (Tex.Crim.App.2003), the TCCA held that the testimony of a victim of an extraneous *612 offense about the impact of that offense on another victim's mental impairment was permissible under Mathis. The TCCA further expanded on this reasoning in Garcia v. State, 126 S.W.3d 921, 929 (Tex.Crim.App.2004), when confronted with the prosecution's attempt to introduce medical records from a bystander wounded in the defendant's shooting of a police officer: In Mathis v. State ... we stated that “victim impact evidence” is “generally recognized as evidence concerning the effect that the victim's death will have on others, particularly the victim's family members.” Appellant mischaracterizes Luna's medical records as victim impact evidence. The records did not reveal anything about Luna's good character or how third persons were affected by the death of the victim named in the indictment (the police officer). The records reflected in the most technical terms Luna's medical condition while in the hospital. While the records might have been irrelevant or inadmissible for other reasons, they were not irrelevant or inadmissible because they were victim impact evidence, as appellant claims.

This was the state of Texas law at the time of Roberts's trial in 2004.FN7 Under AEDPA, we must ask “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard,” Premo, 131 S.Ct. at 740, given the above legal framework and our holding that the failure to lodge futile objections does not qualify as ineffective assistance. Koch, 907 F.2d at 527. Roberts seeks to persuade us that there is no such argument given that three of the TCCA's judges dissented from the majority's finding that the facts of Roberts's case differed from those of Cantu. Roberts, 220 S.W.3d at 535–36 (Meyers, J., dissenting). But the dissent of some judges does not mean that no reasonable argument could be made supporting the TCCA's conclusion that Roberts's trial counsel concluded that Cantu was “clearly distinguishable” from Roberts's situation. Id. at 531. Indeed, the TCCA cited Mathis, Guevara, and Garcia—all cases that highlighted the fact that Cantu's holding did not apply to testimony dealing with the impact of an extraneous offense on a victim of that extraneous offense—to this effect. Id. at 531 n. 25. It would not have been an unreasonable application of Strickland to conclude, as the TCCA and the district court did, that any objection by Roberts's trial counsel would have been futile in light of the TCCA's post- Cantu “victim impact” jurisprudence. See Adams v. Thaler, 421 Fed.Appx. 322, 332–34 (5th Cir.2011) (“[Appellate] counsel could have reasonably concluded that pursuing the argument that [the] ... testimony [of a victim injured during the capital offense but whose injuries were not part of the capital indictment] was inadmissible would have been futile in light of the TCCA's holding in Mathis that certain testimony about a victim injured in the same criminal episode is admissible.”).

FN7. The TCCA later handed down its opinion in Mays v. State, 318 S.W.3d 368, 393 (Tex.Crim.App.2010), in which it upheld the admissibility in a capital sentencing of the testimony of two officers involved in a police shootout but who were not named as victims of the crimes for which defendants were tried because they testified regarding their own injuries and the losses in their lives. While Mays is directly on point with the situation facing Roberts, it was decided after Roberts's trial and so cannot be cited for the proposition that any objection by Roberts's trial counsel would have been futile. Naturally, “there is no general duty on the part of defense counsel to anticipate changes in the law.” Green v. Johnson, 116 F.3d 1115, 1125 (5th Cir.1997). However, counsel should endeavor to “present solid, meritorious arguments based on directly controlling precedent.” Ries v. Quarterman, 522 F.3d 517, 532 (5th Cir.2008) (citation and internal quotation marks omitted).

Our conclusion is bolstered by AEDPA's standard of review. We are not reviewing the TCCA's evaluation of its own precedents, but instead applying Strickland's deferential standard under the auspices of AEDPA. And under AEDPA, “[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Harrington, 131 S.Ct. at 785. We affirm the district court's denial of relief on Roberts's second claim on appeal.

D. Roberts's Third Claim: Execution Impact Testimony

The third claim that Roberts received a COA for and raises on appeal is that the trial court violated his right to be free from cruel and unusual punishment when it denied his niece the opportunity to testify about how his execution would impact her. See Roberts, 2011 WL 5433982, at *23. When Roberts proposed to ask his niece about the impact of his execution on her, the prosecution objected and the trial court upheld the objection. Roberts, 220 S.W.3d at 532. Roberts did not make an offer of proof as to what his niece's testimony would have been. Id. The TCCA concluded that Roberts failed to preserve this error by failing to make an offer of proof, and that the state trial court did not abuse its discretion by excluding this testimony. Id. The district court found Roberts's claim to be procedurally defaulted and that Roberts had not argued that he fell within any of the relevant exceptions. Roberts, 2011 WL 5433982, at *23. Thus, the district court dismissed his claim with prejudice. Id.

We first consider the question of procedural default. The requirement of an offer of proof comes from Texas Rule of Evidence 103(a)(2), which provides that “[e]rror may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and ... the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.”FN8 A short statement by counsel or even a brief question-and-answer with the witness will satisfy the offer of proof requirement. Mays v. State, 285 S.W.3d 884, 889–90 (Tex.Crim.App.2009). The requirement may also be satisfied if “the substance of the evidence is apparent from the context within which the questions were asked.” Fairow v. State, 943 S.W.2d 895, 897 n. 2 (Tex.Crim.App.1997). FN8. The TCCA also cited its decision in Jackson v. State, 33 S.W.3d 828, 838 (Tex.Crim.App.2000), in holding that the trial court did not abuse its discretion by excluding Roberts's execution impact testimony.

In the present case, the TCCA clearly and expressly relied on Rule 103(a)(2) in adjudicating Roberts's claim. The relevant question, then, is whether the TCCA has applied this procedural requirement “strictly or regularly” in “the majority of similar claims” in the capital context. Finley, 243 F.3d at 218. A survey of the TCCA's capital jurisprudence reveals consistent application in capital cases. See, e.g., Mays, 285 S.W.3d at 891 (“Because the appellant failed to make a proper offer of proof, we hold that he did not preserve his complaint for appeal.”); Fairow, 943 S.W.2d at 897 n. 2 (“While it is true that appellant made no offer of proof indicating [the witness]'s answers to the questions, the substance of the evidence is apparent from the context within which the questions were asked.”); Williams v. State, 937 S.W.2d 479, 489 (Tex.Crim.App.1996) ( “Moreover, appellant failed to make an *614 offer of proof. To preserve error regarding the exclusion of evidence, an offer of proof is required.”); Chambers v. State, 866 S.W.2d 9, 27 (Tex.Crim.App.1993) (“Rule 103(a)(2) of the Rules of [ ] Evidence require that when evidence is excluded the proponent establish the substance of the excluded evidence by making on offer of proof.... Appellant wholly failed to explain why this evidence should have been permitted and what he hoped to establish with the evidence.”) (citations omitted).

Moreover, we have previously made clear that the failure to preserve an issue for appeal by failing to make a proper offer of proof constitutes an independent and adequate procedural bar. See Wheat v. Johnson, 238 F.3d 357, 360 (5th Cir.2001) (“We agree with the Texas Court of Criminal Appeals that the offer of proof was not properly preserved.... [Petitioner] makes no attempt on appeal to show either cause or prejudice for this procedural default; he is therefore barred from now bringing the claim on federal habeas review.”). In his brief before us, Roberts does not attempt to show cause and prejudice or a fundamental miscarriage of justice, nor can we discern either exception. Consequently, we affirm the district court's conclusion that Roberts's execution impact claim is procedurally barred.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's denial of habeas relief to Roberts.

Donnie Lee Roberts