Wednesday, May 12, 2010
Media Advisory: Rogelio Cannady scheduled for execution

AUSTIN – Rogelio Reyes (Roy) Cannady is scheduled to be executed after 6 p.m. on Wednesday, May 19, 2010, for the 1993 capital murder of fellow inmate Leovigildo Bombale Bonal. The evidence presented at trial follows.

FACTS OF THE CRIME

On October 10, 1993, while serving two consecutive life sentences for murders he committed in 1990, Cannady beat his cellmate, fifty-five-year-old Bonal, to death with a padlock attached to the end of his belt. Prison guards found Bonal lying on the cell floor with his hands tied behind his back with a belt. Cannady had no apparent wounds or injuries, but his boots and clothing were covered with blood.

Blood was splattered and smeared on the cell walls, the bedding of both bunks, and the furniture. Concealed in a pair of boots, the officers found a belt and the face of a combination lock. The body of the lock had been dumped in the cell’s commode. Cannady admitted that he hit and kicked Bonal repeatedly and used a weapon fashioned from a lock and a belt. He also admitted dismantling the weapon and tying Bonal’s hands after Bonal became unconscious, both of which measures were allegedly done to prevent Bonal from striking back.

Cannady’s counsel stipulated in open court in the guilt/innocence phase that Cannady had committed two murders in 1990 for which he was serving two consecutive life sentences at the time of Bonal’s killing.

PROCEDURAL HISTORY

On December 5, 1997, a Bee County jury found Cannady guilty of capital murder in Bonal’s death and sentenced him to die. The trial court denied Cannady’s motion for a new trial, and the Texas Court of Criminal Appeals affirmed his conviction and sentence on January 5, 2000. On October 2, 2000, the U.S. Supreme Court denied certiorari review.

Cannady initiated state habeas proceedings in August 1999, litigated his claims in a three-day evidentiary hearing. He was denied relief in May 2001. On August 8, 2002, Cannady filed a habeas petition in federal district court. In July 2003, the district court dismissed Cannady’s petition without prejudice.

Asserting two allegations—(1) that the Texas capital sentencing statute is unconstitutional and (2) that he was denied his right to have a jury determine, beyond a reasonable doubt, every fact that operated to increase his punishment—Cannady returned to state court in September 2003. On October 22, 2003, the Texas Court of Criminal Appeals dismissed the subsequent writ as abusive, triggering Cannady’s reappearance in federal district court two months later. Cannady again petitioned the federal district court for writ relief. The federal district court denied Cannady’s petition and denied him a certificate of appealability (COA) on April 29, 2005. On March 22, 2006, the United States Court of Appeals for the Fifth Circuit likewise denied Cannady a COA. The Supreme Court denied Cannady a writ of certiorari on October 2, 2006.

On March 2, 2009, Cannady filed a subsequent writ application in the Bee County trial court. The Texas Court of Criminal Appeals dismissed the writ application. Cannady then filed another writ application in the Cameron County trial court, challenging the validity of his two previous murder convictions. The Texas Court of Criminal Appeals dismissed it on September 16, 2009.

On November 17, 2009, Cannady asked the United States Court of Appeals for the Fifth Circuit for permission to file a successive habeas corpus petition. The appeals court denied the motion on December 15, 2009. On February 19, 2010, Cannady then filed a petition for an original writ of habeas corpus in the U.S. Supreme Court. Cannady’s petition presently remains pending.

EVIDENCE OF FUTURE DANGEROUSNESS

During the punishment phase, the jury heard evidence of Cannady’s lengthy criminal record. His troubles with the law began at the age of ten, when he committed a string of thefts and burglaries. When Cannady was twelve, the State admitted him to a boys’ home. But due to his discipline problems and fighting, the home expelled Cannady three months later and returned him to his mother. Having regained his freedom, Cannady expanded his criminal resume to include a variety of offenses, including drug dealing, assault, theft, violation of probation, felony criminal mischief, burglary, truancy, public intoxication, and resisting arrest.

At age seventeen, Cannady was sentenced to twenty years in prison for assaulting a fellow teenager while attempting to steal a bicycle. When the State released him on bond on June 29, 1990, Cannady killed two run-away teenagers the same day. Cannady pleaded guilty to the killings and was sentenced to pay $10,000 for each murder and serve two consecutive life terms in prison.

Cannady proved to be a considerable discipline problem in prison, too. On two occasions, he refused to obey orders. On five occasions, he refused to work. His behavior only worsened after he killed Bonal in October 1993. Between November 1993 and May 1994, prison officials reprimanded him for possessing contraband, using state property in an unauthorized manner, damaging state property, creating a disturbance, spitting on an officer, possessing a weapon, possessing drugs, and threatening medical personnel.

Texas Execution Information Center by David Carson.

Rogelio Cannady Jr., 37, was executed by lethal injection on 19 May 2010 in Huntsville, Texas for killing a fellow prison inmate.

At age 17, Cannady assaulted a fellow teenager while attempting to steal a bicycle. On 29 June 1990 - the day he was released on bond - Cannady killed Ricardo Garcia, 16, and Ana Robles, 13 - both runaways from a youth home. Garcia was stabbed 13 times. Robles was raped and strangled.

On 28 May 1991, Cannady was transferred from the Cameron County Jail to the McConnell Unit of the Texas Department of Criminal Justice in Beeville with two consecutive life sentences for murder, as well as a concurrent 20-year sentence for the earlier robbery.

On 10 October 1993, Cannady, then 21, beat his 55-year-old cellmate, Leovigildo Bonal, with a steel padlock attached to the end of his belt. While Bonal was unconscious, Cannady tied his hands behind his back. He also kicked Bonal repeatedly in the head with steel-toed boots. Cannady then dismantled the lock and disposed of most of it in the cell's commode. He hid the belt and the remainder of the lock in his boots.

Bonal was serving a 15-year sentence for murder. He died two days after the attack.

In order for a murder to qualify as capital murder, one or more aggravating factors must be present. In most capital murder cases, the aggravating factor is that the murder was committed alongside another felony, such as burglary, robbery, or rape. In 1993, the Texas Legislature revised the capital murder statute. The new law made being a prisoner serving a life sentence or 99-year sentence for murder or certain other felonies into an aggravating factor. This revised statute went into effect on 1 September 1993.

Before his trial began, Cannady's lawyers argued that the revised statute did not apply in his case because the offenses for which he received life sentences were committed prior to 1 September 1993. The trial judge agreed with this assessment and reduced the charge against him from capital murder to murder.

The state appealed the trial court's ruling. The Thirteenth Court of Appeals reversed it, holding that the effective date of the revised capital murder statute applied to the date that the instant offense was committed, not to the prior offenses that elevated the charge to capital murder. The "ex post facto" clause of the U.S. Constitution was not violated because Cannady's crime was defined as capital murder before he committed it. The Texas Court of Criminal Appeals and the U.S. Supreme Court declined to review the case, thereby allowing the appeal's court's interpretation of the statute to hold.

Once the trial was underway, Cannady claimed he killed Bonal in self defense. He testified that Bonal had made several sexually suggestive comments to him that were ominous in a prison setting. He also said that Bonal once sat near him and rubbed his leg. Cannady testified that on the night of the killing, he saw Bonal touching himself sexually. He confronted Bonal and hit him in the face. It then seemed that Bonal was trying to reach for something, so Cannady attached his lock to his belt and began beating him. He kept hitting Bonal because Bonal kept coming toward him.

A jury convicted Cannady of capital murder in December 1997 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in January 2000. All of his subsequent appeals in state and federal court were denied.

In his later appeals, Cannady claimed that he did not kill the two runaway teens, at all, but was coerced into signing a confession. "I got scared," he said in an interview from death row. "I was afraid I'd get the death penalty. Ironically, I did." Cannady also maintained that he killed Bonal in self-defense because he was making sexual passes at him. "I think anybody would have done the same thing," he said.

Cannady's execution was attended by two of his brothers, a niece, and three friends. "I'm going to be OK," he told them as they watched through a window. "Y'all take care of yourself ... May God have mercy on my soul." With his last statement concluded, the lethal injection was started. Cannady then laughed and lifted his head from the gurney. "I thought it was going to be harder than this," he said, grinning. "I'm going to sleep now. I can feel it. It's affecting me." He then lost consciousness. He was pronounced dead at 6:19 p.m.

Associated Press

"Texas prisoner executed for killing cellmate," by Michael Graczyk. (AP May 19, 2010)

HUNTSVILLE, Texas — Condemned Texas inmate Rogelio Cannady was executed Wednesday evening for killing his cellmate while already serving two life sentences for a double murder. Cannady, 37, from Harlingen, didn't deny fatally beating 55-year-old Leovigildo Bonal with a belt and padlock in October 1993, but he insisted the attack at the Texas Department of Criminal Justice McConnell Unit in Beeville was self defense from Bonal's sexual advances.

In the death chamber he smiled and nodded to his brother, a niece and three friends he selected to witness his death and told them repeatedly he loved them. "I'm going to be OK," he said as they watched through a window. "Y'all take care of yourself ... May God have mercy on my soul." As he waited for the drugs to take effect, he laughed and lifted his head from the gurney. "I thought it was going to be harder than this," he said, grinning. "I'm going to sleep now. I can feel it. It's affecting me." Then he began snoring. Eight minutes later, at 6:19 p.m. CDT, he was pronounced dead. He was the 10th inmate put to death in the nation's most active death penalty state.

Cannady walked to the death chamber about 30 minutes after the U.S. Supreme Court rejected an appeal that his confession in the 1990 murders of two teenage runaways in the Rio Grande Valley was coerced, meaning Cannady should have never been imprisoned in the first place.

It was the second appeal rejected by the high court this week in his case. State attorneys said the late appeals were without merit and that questions about Cannady's confession already had been resolved. Cannady's lawyer said the case was "clearly one that deserves more investigation."

Cannady was sentenced to two life sentences after pleading guilty to the 1990 murders of 16-year-old Ricardo Garcia of Freer and 13-year-old Ana Robles of Brownsville — both runaways from a youth home. Garcia was stabbed 13 times. Robles was raped and strangled. Two of Garcia's brothers also witnessed Cannady's death. Cannady did not address them and the brothers declined to speak with reporters afterward.

Cannady, who was 17 at the time and one of four teenagers arrested in the case, said an investigator persuaded him to sign a confession to avoid the death sentence. "I got scared," he said from death row. "I was afraid I'd get the death penalty. Ironically, I did."

State lawyers said Cannady swore in court that he "had not been coerced or forced into pleading guilty and that his plea was entirely free and voluntary."

John Alba, 54, faces lethal injection in Texas on Tuesday for gunning down his 28-year-old estranged wife Wendy in Allen in Collin County in 1991.

Huntsville Item

"Man executed for slaying of cell mate," by Mary Rainwater. (May 19, 2010)

HUNTSVILLE — Texas prisoner Rogelio Cannady was executed Wednesday for the 1993 slaying of his cell mate while already serving two life sentences for a previous double murder. Cannady, 37, from Harlingen, didn’t deny fatally beating 55-year-old Leovigildo Bonal with a belt and padlock in October 1993, but he insisted the attack at the Texas Department of Criminal Justice McConnell Unit in Beeville was self defense from Bonal’s sexual advances

Smiling from the death chamber gurney, Cannady’s final words were addressed to his own loved ones — his brother Victor Villapando, niece Adela Martinez, and three friends, Norma Baeza, Juana Bello and Gary Ojeda. “I was in there right now thinking how we grew up. You know how we grew up in the same house,” Cannady said. “We need to take care of each other like we used to. “I am going to be OK. I know where I’ll be,” he said. “I love you... May God have mercy on my soul.” At 6:19 p.m., just eight minutes after the lethal injection began, Cannady was pronounced dead, making his the 10th execution to take place in Texas this year.

Cannady walked to the death chamber about 30 minutes after the U.S. Supreme Court rejected an appeal that his confession in the 1990 murders of two teenage runaways in the Rio Grande Valley was coerced, meaning Cannady should have never been imprisoned in the first place. It was the second appeal rejected by the high court this week in his case. State attorneys said the late appeals were without merit and that questions about Cannady’s confession already had been resolved.

Cannady was sentenced to two life sentences after pleading guilty to the 1990 murders of 16-year-old Ricardo Garcia of Freer and 13-year-old Ana Robles of Brownsville — both runaways from a youth home. Garcia was stabbed 13 times. Robles was raped and strangled. Two of Garcia’s brothers witnessed the inmate’s execution. Cannady did not address them and the brothers declined to speak with reporters afterward.

Describing the October 1993 confrontation that led to Bonal’s death, Cannady told The Associated Press, “one thing led to another,” and insisted he merely resisted a sexual pass from Bonal, who had been serving 15 years for murder in Tarrant County. Corrections officers found the badly beaten Bonal unconscious on the cell floor. His hands were tied behind his back with a belt. A piece of the combination lock used to beat him was hidden inside a boot. Another piece was in the toilet. Cannady was covered in blood but had no injuries.

Cannady had a long juvenile record beginning with thefts and burglaries at age 10, and had been arrested for drug dealing, assault, theft, probation violation, felony criminal mischief, truancy, public intoxication and resisting arrest. He was disciplined twice last month for assault.

John Alba, 54, faces lethal injection in Huntsville on Tuesday for gunning down his 28-year-old estranged wife Wendy in Allen in Collin County in 1991.

ProDeathPenalty.Com

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

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

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

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

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

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

Valley Morning Star

"Rogelio Cannady executed," by Corey Ryan. (May 20, 2010 5:00 AM)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CANNADY TIMELINE

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

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

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

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

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

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

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

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

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

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

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

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

Cannady v. State, 11 S.W.3d 205 (Tex.Crim.App. 2000). (Direct Appeal)

Defendant was convicted in the 156th District Court, Bee County, James C. Onion, J., of capital murder and was sentenced to death. On automatic appeal, the Court of Criminal Appeals, Keasler, J., held that: (1) defendant was not harmed by trial court's denial of challenges for cause; (2) prosecutor did not impermissibly attack defense counsel; and (3) death penalty scheme was constitutional. Affirmed.

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

Rogelio Cannady was convicted of capital murder and sentenced to death. FN1 Direct appeal to this Court is automatic.FN2 Cannady raises nine points of error in his original brief and ten additional points in his supplemental brief. He does not challenge the sufficiency of the evidence to support his conviction or his punishment. We affirm.

FN1. tex. Penal Code Ann. § 19.03(a); Art. 37.071 § 2(g). Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure. FN2. Art. 37.071 § 2(h).

HISTORICAL FACTS

On January 22, 1991, Cannady was convicted for two murders he committed on June 29, 1990. He received a life sentence for each conviction. On October 10, 1993, Cannady killed a fellow inmate while in prison and was charged with committing capital murder under Texas Penal Code § 19.03(a)(6). The version of the statute under which Cannady was indicted read as follows: (a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and: * * * (6) the person, while serving a sentence of life imprisonment or a term of 99 years for the commission of any offense listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure, murders another;.... This statute became effective September 1, 1993, and the “3g(a)(1)” offenses included murder, capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, and aggravated robbery. Murder and indecency with a child were both added to Art. 42.12 effective September 1, 1993.

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

The State appealed the trial court's ruling and the Thirteenth Court of Appeals reversed.FN3 The Court of Appeals held that the date on which the prior offenses were committed was not an element of capital murder, nor was Cannady deprived of notice that he could be charged with capital murder. FN4 So application of the statute to Cannady did not violate the ex post facto laws. Cannady's petition for discretionary review to this Court was refused, as was his petition for writ of certiorari in the United States Supreme Court.FN5 Cannady was tried and convicted of capital murder and sentenced to death on December 5, 1997. FN3. State v. Cannady, 913 S.W.2d 741 (Tex.App.-Corpus Christi 1996, pet. ref'd). FN4. See Cannady, 913 S.W.2d at 744. FN5. Cannady v. Texas, 519 U.S. 1060, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997).

APPLICATION OF STATUTE

The basic contention underlying Cannady's first four points of error is his assertion that the date he committed the offenses for which he received his two life sentences is an element of capital murder under Texas Penal Code § 19.03(a)(6). The Thirteenth Court of Appeals rejected this precise contention and we adopt the reasoning of that opinion in resolving these four points. FN6 Points of error one through four are overruled. FN6. Cannady, supra; see also Proctor v. State, 967 S.W.2d 840, 844 (Tex.Crim.App.1998) and State v. Mason, 980 S.W.2d 635, 640-641 (Tex.Crim.App.1998).

CHALLENGES FOR CAUSE

In points of error six through eight and supplemental point of error one, Cannady complains that the trial court erred in denying his challenges for cause to four different veniremembers. To preserve error on this issue, Cannady must demonstrate on the record that he asserted a clear and specific challenge for cause, that he used a peremptory challenge on the complained-of veniremember, that all his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury.FN7 Cannady asserts in his fifth point of error that he did preserve error with regard to the four points he raises concerning erroneously denied challenges for cause. But whether any error is preserved is a preliminary question to be answered within the analysis of the challenge and not as a wholly separate question. Because this point does not assert alleged error, it is overruled. FN7. Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997).

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

When the trial judge errs in overruling a challenge for cause against a veniremember, the defendant is harmed only if he uses a peremptory strike to remove the veniremember and then suffers a detriment from the loss of the strike.FN8 Because the record reflects that Cannady received two extra strikes in addition to the fifteen he is granted by statute, he did not suffer the loss of two strikes. So for Cannady to demonstrate harm and, therefore, reversible error, he must show that challenges for cause on at least three different veniremembers were erroneously denied.FN9

FN8. Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim.App.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987). FN9. Penry v. State, 903 S.W.2d 715, 732 (Tex.Crim.App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995); Martinez v. State, 763 S.W.2d 413, 425 (Tex.Crim.App.1988), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994).

In his sixth point of error, Cannady asserts that his challenge for cause against prospective juror Herring should have been granted because Herring stated that Cannady's being in prison would affect his ability to presume Cannady innocent. Article 35.16(a)(10) provides in pertinent part that a challenge for cause may be made by either the State or the defense when: there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict. * * * [I]f the juror states that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case. In order for a challenge for cause to be sustained under Article 35.16(a)(10), the challenging party must show that the veniremember has established in his mind a conclusion as to the guilt or innocence of the defendant and that this conclusion will influence his verdict. FN10. Curry v. State, 910 S.W.2d 490, 493 (Tex.Crim.App.1995).

Herring initially stated that he “can't help but think [Cannady's] guilty if he's already killed two people.” But he subsequently said on a number of occasions that he would follow the law. We cannot say the trial judge abused his discretion in denying Cannady's challenge for cause to the veniremember. Point of error six is overruled. Cannady would have this Court review his sixth point under Article 35.16(a)(9), that the veniremember had a bias against the defendant; but given the record, Cannady fails under this provision as well. FN11. See Hughes v. State, 878 S.W.2d 142, 152 (Tex.Crim.App.1992); Kemp v. State, 846 S.W.2d 289, 299 (Tex.Crim.App.1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993).

In his eighth point of error, Cannady asserts that his challenge for cause against prospective juror Christensen should have been granted because Christensen evinced a clear bias against the law of self-defense. Article 35.16(c)(2) provides in pertinent part that a challenge for cause may be made by the defense when: he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.

When reviewing a challenge for cause based upon a veniremember's alleged bias against the law, we must determine whether the veniremember's beliefs would prevent or substantially impair him from following the law as set out in the trial court's instructions and as required by the juror's oath.FN12 Additionally, we must give great deference to the trial court's ruling on the issue.FN13

FN12. Lagrone v. State, 942 S.W.2d 602 (Tex.Crim.App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). FN13. Id.

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

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

Because we hold the trial court did not abuse its discretion in refusing to strike Herring and Christensen, Cannady cannot show that his challenges for cause to at least three different veniremembers were erroneously denied. FN14 Point of error seven (regarding veniremember Rohr) and supplemental point one (regarding veniremember Gomez) are overruled. FN14. Penry, supra.

PROPER QUESTION

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

Asking questions on voir dire helps a party to intelligently exercise his peremptory challenges. Likewise, not being allowed to ask proper questions hampers that exercise. To establish harm from the denial of the intelligent use of a peremptory challenge as to a single veniremember, a defendant must show that he has been deprived of the use of a peremptory challenge he would have used later on.FN15 Cannady exhausted all of his peremptory challenges, requested and was denied more, and then identified an objectionable person seated on the jury on whom he would have exercised a peremptory challenge.FN16 But because Cannady received two additional peremptory challenges, he cannot show that he has been deprived of the use of the peremptory challenge he used on Rohr (see point of error seven). Point of error nine is overruled.

FN15. Janecka v. State, 937 S.W.2d 456, 471 (Tex.Crim.App.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997). FN16. Anson v. State, 959 S.W.2d 203, 204 (Tex.Crim.App.1997), cert. dism'd, 525 U.S. 924, 119 S.Ct. 290, 142 L.Ed.2d 241 (1998); Janecka, 937 S.W.2d at 470-471 & 471 n. 9.

STORY FABRICATION/MOTION FOR MISTRIAL

Cannady complains in his second supplemental point of error that the trial court erred in failing to grant his motion for mistrial when the prosecutor, during his cross-examination of Cannady, accused Cannady and his trial counsel of fabricating a story to create a defense. Cannady recognizes that a defendant who takes the witness stand may be cross-examined and impeached in the same manner as any other witness.FN17 Indeed, a defendant may be contradicted, impeached, discredited, attacked, sustained, bolstered, made to give evidence against himself, cross-examined as to new matters, and treated in every respect as any other witness.FN18 But he notes that this general rule is qualified by any overriding constitutional or statutory prohibitions.FN19 Cannady asserts that the State violated his constitutional right to counsel during the prosecutor's cross-examination of him by (1) accusing Cannady of fabricating his testimony, (2) accusing Cannady of conspiring with his attorneys to create a defense, and (3) accusing Cannady's counsel of suborning perjury.FN20

FN17. Huffman v. State, 746 S.W.2d 212, 219 (Tex.Crim.App.1988). FN18. Id. FN19. Id. FN20. See Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim.App.1996).

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

During the State's cross-examination, the prosecutor attacked Cannady's credibility using those lies and the fact that Cannady seemed to have changed his story after talking to an attorney. In his brief, Cannady sets out a fair amount of cross-examination testimony and a number of places where he objected to the State's questions. But his point of error focuses only on the trial court's handling of his motions for mistrial. We shall review only the two instances where Cannady made such requests. The pertinent testimony is as follows: [BY THE STATE:] Q. You lied when you talked to Bill Lazenby the first time, didn't you, sir? A. Yes, sir, I did. * * * Q. You also lied when you told Captain Lazenby that you pulled that man off that top bunk and beat him after he crawled up there the first time after you hit him. You lied about that, too, didn't you? A. Yes, sir. * * * Q. I notice also when you were taken out of that cell before you had an opportunity to talk to the lawyers, you weren't crying like a baby when you were walking down that hall, were you? [Cannady apparently cried during his testimony at trial.] A. No, sir, I was not. Q. You were acting like you was [sic] as calm as a cucumber, weren't you? A. No, sir. Q. You were hollering to your cell mates. What were you telling your cell mates when you were walking down those stairs? “I beat him down”? Did you tell them that? A. No, sir, I did not. * * * Q. What defense did you create then with the testimony when-before you had a chance to talk to a lawyer? A. None, sir. * * * Q. And you're telling this jury also that what you said in that statement that's on that television [videotape] before you had a chance to talk to your lawyer is all a lie. [DEFENSE COUNSEL]: Your Honor, at this moment in time, I make another objection. Any reference to his lawyer. He's attacking the defendant through- * * * He's constantly saying, “After you talked to your attorneys, you changed your testimony.” We object. He's attacking the defendant over the Defense Lawyer's shoulder, Your Honor. THE COURT: All right. Rephrase the question. Sustain the objection. [DEFENSE COUNSEL]: We ask for an instruction to disregard, Your Honor. THE COURT: The jury's already been told that anytime the Court sustains an objection, they're not to consider it in any respect. Anytime the Court permits or overrules an action, they may consider it and give the proper weight to it. And that will be true at this time. [DEFENSE COUNSEL]: And we move for a mistrial, Your Honor. THE COURT: Be overruled. * * * * * * [BY THE STATE:] Q. Okay. And that's what you told the investigator before you talked to anyone; is that correct? A. Yes, sir. * * * Q. You told the investigator on that videotape that, after you hit the old man, he crawled back upon the bunk and you pulled him off. A. Yes, sir. Q. And what you're saying now, that's a lie. A. Yes, sir. Q. All right. So you lied about why it started, you lied about what you used, and you lied about what you did in the fight because you were trying to deceive the investigator; is that correct? A. Yes, sir. * * * Q. After you hit him in this situation, you said, “Oh, hold it. I'm sorry, man. Just-all I wanted to do is hit you a couple of times. Now then you understand where we are. Go on back to your bunk and go to sleep.” A. No, sir. Q. You didn't do that. You didn't understand the law to say that you got to retreat just a little bit, so you're molding your testimony to fit- [DEFENSE COUNSEL]: I object again. THE COURT: I sustain the objection. [DEFENSE COUNSEL]: And I move for a mistrial, Your Honor. THE COURT: Be overruled. We're asking a lay witness a law question.

For many years this Court has recognized that prosecutors' comments which attack defense counsel are manifestly improper because they serve to inflame the minds of the jury to the accused's prejudice. FN21 Furthermore, we have often held that the prejudice created by such comments is not curable by an instruction to disregard.FN22 But the two instances above do not fall into this prejudicial category. FN21. See Wilson, 938 S.W.2d at 59. FN22. Id.

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

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

In his related third supplemental point, Cannady claims that the trial court erred in failing to grant his motion for mistrial when the prosecutor accused Cannady and his trial counsel during final argument on guilt/innocence of fabricating a story to create a defense. Permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement.FN23 During Cannady's closing argument, each of the three defense counsel painted a picture for the jury of Cannady as a weak person; of a young, inexperienced inmate who knew from recent events that he was going to be brutally victimized if he did not defend himself soon. Cannady complains of the following emphasized comments: [BY THE STATE:] Ladies and gentlemen of the jury, this [charge] was generated by [Cannady], and you as a jury have a right to consider the fact that he's been convicted for two murders, that he's been convicted of robbery, and use that as part of whether or not you believe this man could, under any stretch of anybody's imagination, tell you the truth. He doesn't have that ability. He don't [sic] even know what the truth was. If it stood up today and hit him in the face he wouldn't recognize it. That's where he stands at this time, and he tells you he is weak. His lawyer tells you he's weak. His lawyer would have you believe that he's weak. But is he? The testimony that he give [sic] you from that witness stand tells you that he is a predator, that he stalks his prey. And I find it absolutely impossible to understand how any lawyer could stand up- [DEFENSE COUNSEL]: Your Honor, I object at this moment in time, he's attacking the Defendant over the shoulder of the defense attorney, Your Honor. THE COURT: All right. Rephrase. [BY THE STATE:] How anything or anybody could stand up and tell a jury- [DEFENSE COUNSEL]: Your Honor, again, we renew the same objection, Your Honor, he's attacking the Defendant over the shoulder- THE COURT: Your argument is he's attacking [the] Defendant over counsel's shoulder? [DEFENSE COUNSEL]: Yes, Your Honor. THE COURT: I'll sustain the objection. [DEFENSE COUNSEL]: We ask for a mistrial, Your Honor. THE COURT: Be overruled. [Emphasis added.] The complained-of comment appears to have been intended as a response to the argument of defense counsel, which would be proper jury argument. Because Cannady's objection cut the statement short, we cannot be clear about the prosecutor's intention. Notwithstanding this, we hold that the trial judge's sustaining of Cannady's objection, and his previous instruction to the jury to disregard any statement on which he sustained an objection, cured any harm which occurred here.FN24 Supplemental point of error three is overruled. FN24. See, e.g., Ransom v. State, 920 S.W.2d 288, 303 (Tex.Crim.App.1994), cert. denied, 519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516 (1996).

CONSTITUTIONALITY OF DEATH PENALTY SCHEME

In his fourth supplemental point of error, Cannady asserts that his death sentence violates the Eighth and Fourteenth amendments to the United States Constitution and Article I, § 13, of the Texas Constitution. Cannady gives only a general argument supporting his contention citing, among other things, Justice Blackmun's dissent in Callins v. Collins.FN25 We have previously addressed this issue and held against Cannady's position.FN26 Cannady has not persuaded us to revisit these decisions. Supplemental point of error four is overruled.

FN25. 510 U.S. 1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994). FN26. See, e.g., Raby v. State, 970 S.W.2d 1, 7 (Tex.Crim.App.), cert. denied, 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998); Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996).

Cannady asserts in his seventh and ninth supplemental points of error that his death sentence constitutes cruel and unusual punishment under both the federal and state constitutions. In his argument regarding the Texas Constitution, Cannady asserts that the state provision should be interpreted more broadly than its federal counterpart because it prohibits “cruel or unusual punishment.” Without more, Cannady has failed to adequately brief his point of error.FN27 Cannady also asserts that the narrowing function of Texas Penal Code § 19.03(a)(6) is not facially constitutional because the length of the sentence a person is serving does not provide a reasoned, principled basis for distinguishing between death eligibility and ineligibility. Cannady raised the same claim in his pretrial appeal, but the court did not answer the issue because Cannady did not show that the statute was unconstitutional as to him.FN28

FN27. See tex.R.App. P. 38.1(h); Henderson v. State, 962 S.W.2d 544, 572 (Tex.Crim.App.1997), cert. denied, 525 U.S. 978, 119 S.Ct. 437, 142 L.Ed.2d 357 (1998); Sonnier v. State, 913 S.W.2d 511, 520 (Tex.Crim.App.1995). FN28. See State v. Cannady, 913 S.W.2d at 744-745.

To pass muster under the Eighth Amendment, an aggravating circumstance contained in an element of a capital offense must meet two requirements: first, the circumstance may not apply to every defendant convicted of a murder, it must apply only to a subclass of defendants convicted of murder; and second, the aggravating circumstance must not be unconstitutionally vague.FN29 Texas Penal Code § 19.03(a)(6) meets both of these requirements: inmates who murder another in prison while serving a sentence of life imprisonment or a term of 99 years for the commission of an offense listed in Article 42.12 § 3g(a)(1) make up a subclass of murderers in general; and persons “serving a sentence of life imprisonment or a term of 99 years for the commission of any offense listed in Section 3g(a)(1), Article 42.12” make up a clear and definite category. Supplemental points of error seven and nine are overruled.

FN29. Tuilaepa v. California, 512 U.S. 967, 971-972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994); Henderson v. State, 962 S.W.2d 544, 563 (Tex.Crim.App.1997), cert. denied, 525 U.S. 978, 119 S.Ct. 437, 142 L.Ed.2d 357 (1998).

Cannady asserts in his eighth and tenth supplemental points of error that his death sentence violates the Equal Protection requirements of both the federal and state constitutions. In his argument regarding the Texas Constitution, Cannady recognizes that this Court in the past has held that the Texas equal rights provision and the federal equal protection provision are coterminous.FN30 But he urges us to reconsider these holdings. This we will not do. Cannady contends that there is no constitutionally permissible distinction for the purpose of a capital conviction under Texas Penal Code § 19.03(a)(6) between an inmate serving a life sentence and one serving, e.g., a 60-year sentence. In reviewing a statute for an equal protection violation, we must first determine the level of scrutiny required. A statute is evaluated under “strict scrutiny” if it interferes with a “fundamental right” or discriminates against a “suspect class.” FN31 Otherwise, the challenged classification in a statute need only be “rationally related to a legitimate governmental purpose” to survive the equal protection challenge (the “rational basis” test).FN32

FN30. See, e.g., Henderson, 962 S.W.2d at 560. FN31. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 458, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988); Henderson, 962 S.W.2d at 560. FN32. Henderson, 962 S.W.2d at 560.

In reviewing the constitutionality of Texas Penal Code § 19.03(a)(8) in Henderson, we determined that capital murder defendants do not constitute a “suspect class.” FN33 Furthermore, the life of a convicted capital murderer is no longer held sacrosanct and “life” no longer enjoys the status of a fundamental right.FN34 Therefore, a claim that a provision of the capital murder statute violates equal protection is reviewed using the rational basis test and the challenged classification need only be “rationally related to a legitimate governmental purpose.” FN35

We have recognized that states have a legitimate and compelling interest in maintaining the safe, orderly, and effective functioning of prisons.FN36 The question is whether a particular statute, in this case Texas Penal Code § 19.03(a)(6), is rationally related to serving the government's interest in maintaining that safety and order. In making this determination, we first note that inmates who have committed murder or other aggravated offenses have already shown a certain propensity for violence. FN37 Furthermore, the greater the sentence that the inmate received, the less he may have to lose by committing further offenses in prison. So demarcating a sub-class of “aggravated offense inmates” within the category of “inmates” as a whole and flagging them for special treatment is a rational action supporting the maintenance of safe and orderly prisons.

FN36. See Ex parte Hernandez, 953 S.W.2d 275, 281 (Tex.Crim.App.1997), cert. denied, 522 U.S. 1135, 118 S.Ct. 1093, 140 L.Ed.2d 149 (1998); Basden v. State, 897 S.W.2d 319, 321 (Tex.Crim.App.1995); Richardson v. State, 865 S.W.2d 944, 956 (Tex.Crim.App.1993). FN37. See Article 42.12 § 3g(a)(1).

But Cannady argues that drawing a line between inmates sentenced to “life” versus those sentenced to some other term, e.g., 60 years is arbitrary and, therefore, unconstitutional. Likewise, he argues a line drawn between a 99-year sentence and a 98-year sentence is arbitrary. But, as in Henderson with the child-murderer provision, to retain clarity in the statute, a numerical line must be drawn somewhere.FN38 Using the maximum sentences already used throughout the Texas Penal Code provides consistency and clarity. FN38. See Henderson, 962 S.W.2d at 562-563.

The Legislature is justified in drawing a line between harsher and lesser punishments and using the maximum sentences allowed seems to be as good a place as any to draw that line.FN39 Of course, different factors influence different judges and juries into giving various sentences, but we need not and will not resort to such environment-specific justifications to uphold the Legislature's line-drawing choice.FN40 That the line might have been legitimately drawn at 59-, 60-, or 98-years does not invalidate the Legislature's choice here. We uphold the Legislature's decision to draw the line at a sentence of life or 99 years. Supplemental points of error eight and ten are overruled.

FN39. See id. FN40. See id.

ADDITIONAL POINTS OF ERROR

Cannady argues in his fifth supplemental point that he should have been allowed to have the jury decide his guilt or innocence on the homicide before it received evidence of his prior convictions. Cannady asserts that extreme prejudice is built into Texas Penal Code § 19.03(a)(6) in that it allows evidence of his prior convictions to be admitted during the guilt/innocence phase of trial which, in turn, invites the jury to convict him as a criminal generally and not on the facts of this particular incident. FN41. See tex.R.Crim. Evid. 404(b).

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

Notwithstanding the lack of clarity, Cannady's point must fail. Under Section 19.03(a)(6), the status of Cannady as an inmate serving a particular sentence (life or 99 years) is an element of the crime of capital murder. FN42 Indeed, it is the aggravating element that raises the crime from simple murder (a first-degree felony) to a capital offense. Although the details of the prior conviction may be more prejudicial than is warranted for admission at guilt/innocence, a point which Cannady does not argue here, the State is entitled to prove the fact of the commission of a crime listed in Article 42.12 § 3g(a)(1) and the sentence imposed as part of its burden to prove the crime of capital murder. This requisite does not violate either the due process or due course of law protections.FN43 The trial court did not err in overruling Cannady's motion to “bifurcate the guilt/innocence phase of trial.” Supplemental point of error five is overruled.

FN42. See State v. Mason, 980 S.W.2d 635, 640 (Tex.Crim.App.1998). FN43. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

In his sixth supplemental point of error, Cannady asks, “Does Article 42.08(b) require Cannady's death sentence to be cumulated with, or stacked on, the sentence he was serving at the time of the offense?” Article 42.08(b) states as follows: If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.

Cannady contends that the plain language of the statute requires his sentence of death to be stacked onto the two life sentences he is already serving. He asserts that, because his two life sentences were ordered to run consecutively, his death sentence cannot be carried out until his second life sentence ceases to operate. FN44. See Article 42.18 § 8(d)(2); now codified as gov't Code § 508.150.

When analyzing the meaning of a statute, we begin with the literal text of the statutory provision at issue.FN45 We must attempt to discern the legislative intent or purpose of the statute by, if reasonably possible, giving effect to the plain meaning of the statute's language.FN46 But where application of the plain meaning of the statute's language would lead to absurd consequences that the Legislature could not possibly have intended, this Court, in arriving at a sensible interpretation of the legislative intent of the statute, will consider such extratextual factors as the legislative history and the objective sought by the statute.FN47

FN45. Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991). FN46. Boykin, 818 S.W.2d at 785-86; see also Basden, 897 S.W.2d at 321. FN47. See Boykin, 818 S.W.2d at 785-86; see also Basden, 897 S.W.2d at 321.

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

We noted that the obvious intent of Article 42.08(b) is to deter inmates from committing crimes during their incarceration and to more harshly punish those inmates who are not deterred.FN48 We held that giving effect to the plain meaning of Article 42.08(b) as Basden suggested would lead to the absurd result of permitting inmates to commit crimes without fear of punishment since, although the first sentence assessed for a crime committed in prison would run consecutively to the original sentence, all future sentences assessed would run concurrently with the latter. So a disruptive inmate might be punished for one offense committed in prison, but would ever after be immunized from further prosecution and punishment. Because of this absurd result, we determined that the Legislature could not have intended such a consequence and we refused to adopt such an interpretation.FN49

FN48. Basden, 897 S.W.2d at 321-322. FN49. Basden, 897 S.W.2d at 322.

In conducting our analysis in Basden, we also determined that the legislative history of Article 42.08(b) supported our holding. Subsection (b) of Article 42.08 was added by the 69 th Legislature and became effective September 1, 1985.FN50 The bill analysis prepared for SB 186 specifically stated that the bill was written to address the issue of deterring inmates from continued criminal behavior beyond the loss of good time by making them serve consecutive sentences instead of concurrent ones. Furthermore, at the public hearing held before the House Committee on Law Enforcement on March 20, 1985, the testimony presented made clear that the purpose of SB 186 was to prevent violence in the Texas Department of Criminal Justice (then the Texas Department of Corrections) by mandating consecutive sentences. The clear message was that the Legislature intended no concurrent sentences for crimes committed by inmates.FN51

FN50. See Acts, 69 th Leg., Reg. Session 1985, Ch. 29, p. 404 (SB 186). FN51. Basden, 897 S.W.2d at 321-322.

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

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

Because of the plain language of Article 42.08, the legislative intent underlying the statute, and the legislative intent underlying the death penalty scheme, we must conclude that the Legislature did not intend Article 42.08 to apply to a death sentence. We hold that the sentence of death may be executed without regard to other sentences Cannady might have pending. FN52. See Art. 43.14, et seq.

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

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

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

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

PER CURIAM:

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

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

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

I. BACKGROUND

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

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

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

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

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

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

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

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

II. DISCUSSION

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

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

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

A. Ineffective Assistance of Counsel

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

1. Failure to advise

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

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

2. Failure to stipulate

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

3. Failure to object to officer's testimony

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

4. Failure to object to jury charge

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

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

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

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

5. Failure to assess counsel errors cumulatively

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

B. Procedural Default

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

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

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

C. Evidentiary Hearing

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

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

D. Ex Post Facto

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

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

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

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