Monday, September 15, 2014
Media Advisory: Lisa Ann Coleman scheduled for execution

AUSTIN – Pursuant to a court order by the 297th District Court of Tarrant County, Lisa Ann Coleman is scheduled for execution after 6 p.m. on Sept. 17, 2014. In 2006, a Tarrant County jury found Coleman guilty of murdering her partner’s nine-year old son, Davontae Williams.

FACTS OF THE CRIME

The United States Court of Appeals for the Fifth Circuit described the facts surrounding Coleman’s murder of Davontae Williams as follows: On the morning of July 26, 2004, emergency services were summoned to Davontae’s home upon report of his “breathing difficulty.” Paramedic Troy Brooks arrived at the residence only minutes later to find Davontae “obviously dead,” inferring that Davontae had passed away several hours earlier. Davontae, Brooks testified, was clad only in bandages and a diaper, so “emaciated and underweight” that it was “shocking.” Brooks and another paramedic each believed that nine-year-old Davontae weighed only twenty-five pounds. [Davontae weighed thirty-five pounds.]

Crime Scene Investigator Regina Taylor testified that Davontae had “numerous injuries throughout ... his entire body,” including a disfigured ear, swollen hands, a slit in his lip, and “ligature marks around his wrists and ankles.” Pediatrician Nancy Kellogg identified over 250 wounds on his corpse. Dr. Konzelmann testified that injuries to Davontae’s hands, arms, and ankles were consistent with his having been bound repeatedly. Konzelmann initially believed that Davontae had “life-threatening blunt-force injuries, perhaps bleeding on the brain, broken bones, et cetera” that caused his death. Ultimately, however, Dr. Konzelmann deemed the cause of Davontae’s death to be malnutrition with pneumonia. Dr. Peerwani, Chief Medical Examiner for Tarrant County, further testified that Davontae’s pneumonia resulted from his malnutrition. And although Davontae was born prematurely, Dr. Kellogg explained that Davontae previously had “a normal growth velocity”; a metabolic disease, she inferred, was not responsible for his malnutrition. According to the State of Texas, however, Lisa Coleman was.

[Coleman] spent much of her time living with Marcella Williams, Davontae’s mother. [Coleman] and Marcella were involved romantically and had been for several years. In 1999, for example, Child Protective Services (CPS) removed Davontae from Marcella’s custody because [Coleman] was abusing him physically. CPS returned Davontae to Marcella on the condition that he “not be around Lisa Coleman.” [Coleman] nevertheless continued to interact with Davontae. Davontae’s sister Destinee testified that [Coleman] would tie up Davontae with an extension cord. [Coleman] denied use of an extension cord, but admitted that she and Marcella had tied up Davontae on “several occasions.” [Coleman] further admitted to whipping Davontae with a belt, but claimed to have stopped doing so by March 2004. She also admitted to causing Davontae’s lip injury when, after she hit and pushed him, he fell into a bar stool. But she denied knowledge of a golf club found in Marcella’s apartment – a club that almost certainly had Davontae’s blood on its head and that likely had [Coleman]’s DNA on its handle. And she denied locking Davontae in a pantry – one with a lock several feet off the ground and what appeared to be a pool of urine inside it.

Toward the end of his life, Davontae did receive some treatment. He appeared to have been given TheraFlu, Alka Seltzer, and NyQuil. The ointments, creams, and bandages placed on his body evinced an attempt to treat his wounds. And evidence suggests that he ingested chicken noodle soup, PediaSure, and Pedialyte prior to his death. But Dr. Konzelmann testified that the food he received was “inadequate [on the whole], too late, and possibly too much [for a malnourished person].”

Dr. Konzelmann also opined that “[t]he attempt to treat ... is as much an attempt to prevent [Davontae] from coming to the attention of the physicians who would have reported” his condition. [Coleman] essentially acknowledged as much; according to a CPS investigator, she stated that “Marcella did not want to take [Davontae] to a doctor because she was afraid that once they saw the bruises and marks on him, that CPS would be called and ... her children would be taken away.” She likewise admitted, according to a different CPS investigator, that “Marcella would tell people when they would ask where Davontae was that he was with her people [even though] he was actually in the apartment.”

PROCEDURAL HISTORY

On Sept. 22, 2004, a Tarrant County grand jury indicted Coleman for murdering Davontae Williams in the course of committing a kidnapping.

On June 19, 2006, a Tarrant County jury convicted Coleman of capital murder. On June 21, 2006, after a separate punishment proceeding, the same jury sentenced Coleman to death.

On Dec. 9, 2009, Coleman’s conviction and sentence were affirmed by the Court of Criminal Appeals of Texas on direct appeal. Coleman appealed the state court’s decision to the Supreme Court of the United States. The high court denied Coleman’s petition for a writ of certiorari on Oct. 4, 2010.

Coleman filed an application for habeas corpus relief which was denied by the Court of Criminal Appeals on Aug. 25, 2010.

On Oct. 3, 2011, Coleman filed a petition for a writ of habeas corpus in the U.S. District Court for the Northern District of Texas, Fort Worth Division. The federal court denied Coleman’s petition on Jan. 20, 2012.

On May 23, 2013, the Fifth Circuit rejected Coleman’s appeal and affirmed the district court’s denial of habeas corpus relief.

On Oct. 11, 2013, Coleman filed a petition for a writ of certiorari in the U.S. Supreme Court. The high court denied certiorari review on Feb. 14, 2014.

On April 24, 2014, the 297th state district court issued an order setting Coleman’s execution date for Sept. 17, 2014.

PRIOR CRIMINAL HISTORY

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

During the penalty phase of Coleman’s trial, jurors learned that Coleman was previously convicted of burglary of a habitation, possession of a controlled substance, and unlawful carrying of a weapon. The jury also learned that Coleman had previously been arrested for evading arrest.

Texas Execution Information Center by David Carson.

Lisa Ann Coleman, 38, was executed by lethal injection on 17 September 2014 in Huntsville, Texas for the restraint and murder of a child living in her home.

On the morning of 26 July 2004, Marcella Larrrian Williams, 23, called 9-1-1, reporting that her 9-year-old-son, Davontae, was having "breathing difficulty." Paramedic Troy Brooks arrived moments later at Williams' Arlington apartment to find the boy lying on the bathroom floor wearing only a diaper and bandages. He was so "emaciated and underweight" that he had the appearance of a child 3 to 5 years old. Brooks saw that the boy was "obviously dead" because his body was already in full rigor mortis, which usually occurs several hours after death. Nevertheless, Williams stated that Davontae had just eaten and thrown up and that her girlfriend, Lisa Coleman, had been washing him. Williams reiterated that Davontae was breathing when she called 9-1-1.

A police investigator and a pediatrician observed over 250 wounds on Davontae's corpse, including a disfigured ear, swollen hands, a cut lip, and cigar or cigarette burns and ligature marks around his wrists and ankles that were consistent with him being bound repeatedly. There was also ligature scarring on his penis. The medical examiner concurred, finding broken bones and "life-threatening" blunt-force injuries on the victim, but determined that the victim's immediate cause of death was malnutrition accompanied by pneumonia. The 9-year-old weighed only 36 pounds at the time of his death.1 Investigators found a bloody golf club in the apartment. They also discovered a pantry that had a lock on the door. A dried urine stain was on the floor of the pantry.

A police detective questioned Coleman, then 28, about Davontae's death. Coleman told him that she lived with Williams about half of the time and with her own son and mother the other half. She said that on the night Davontae died, Williams woke her up, screaming. Williams attempted to revive him with CPR. Coleman said she put Davontae in a warm bath to revive him. She did not know how his arms and legs were injured.

For a killing to be classified as capital murder, the state must prove that one or more aggravating factors are present. The most common aggravating factor is the commission of another felony, such as burglary or kidnapping, at the same time as the murder. The victim's age can also be an aggravating factor, but at the time of Davontae's death, the victim had to be under six years old. In 2011, the Texas legislature changed the law so that the murder of a child ten years or younger is capital murder. In Davontae's case, The state charged Coleman and Williams with capital murder by arguing that the restraints used on the victim constituted kidnapping.

Child Protective Services had investigated Marcella Williams seven times, beginning in 1995 when she was 14 and Davontae was 2 months old. In 1999, the agency removed Davontae from Williams' custody because Coleman was physically abusing him. CPS returned the child to his mother a year later on the condition that he "not be around Lisa Coleman." Coleman, nevertheless, continued to interact with Davontae. CPS lost track of the family in 2002.

At Williams' trial, CPS investigator Edna Campbell testified that after Coleman was arrested for Davontae's murder, Coleman admitted to her that she had restrained Davontae with clothing on two occasions to keep him from hurting himself and others. She also admitted that she had hit and pushed the boy, causing him to fall into a bar stool and split his lip. She denied locking him in the pantry. Coleman told Campbell that "Marcella did not want to take [Davontae] to a doctor because she was afraid that once they saw the bruises and marks on him, that CPS would be called and ... her children would be taken away."

Davontae's 8-year-old sister, Destinee, testified that Coleman would tie up Davontae with an extension cord in the bathroom. She also testified that Coleman beat her and her sister with belts, clothes hangers, and extension cords. A DNA expert testified that the blood stain on the head of the golf club found in the apartment had DNA that matched Davontae's DNA. The grip of the club contained DNA that matched Coleman's, but not Williams'.

The defense portrayed Davontae as very difficult to manage - a danger to both himself and others - and admitted that Williams and Coleman lacked the parenting skills to raise him properly. Coleman's lawyers claimed that his death was an accident. Dr. Lesther Winkler, a pathologist who testified for the defense, stated that Davontae suffered from a breathing condition called aspiration pneumonia, which caused him to drown in his own vomit. Winkler agreed, however, that Davontae was malnourished.

Coleman had previous felony convictions in 1993 for cocaine possession and in 2000 for burglary. She was sentenced to 5 years in prison for the first conviction and 2 years for the second. Both times, she was released on parole prior to the completion of her sentence. She also had a misdemeanor conviction in 1997 for evading arrest.

According to a chart published by the U.S. Centers for Disease Control and Prevention, the median weight - or 50th percentile - of a 9-year-old boy is 64 pounds. The 5th-percentile weight of a 9-year-old is 50 pounds. In other words, 95 percent of boys weigh 50 pounds or more at age 9.

Both Coleman and Williams were charged with capital murder. Coleman's case came first. A jury found her guilty of capital murder in June 2006 and sentenced her to death. The Texas Court of Criminal Appeals affirmed the conviction an sentence in December 2009. All of her subsequent appeals in state and federal court were denied. Coleman was also found guilty of causing serious bodily injury to a child. She was sentenced to 99 years in prison for that offense. Instead of going to trial, Williams accepted prosecutors' offer to plead guilty and accept a life sentence. She remains in custody as of this writing, and becomes eligible for parole in 2044. One of Coleman's lawyers told a reporter that he asked prosecutors for a similar deal for his client, but one was not offered.

At her trial and in her appeals, Coleman's lawyers disputed the state's interpretation of kidnapping, the component of the crime that made her eligible for the death penalty. The trial court and appeals courts ruled that Coleman's actions did constitute kidnapping. Coleman's appellate lawyers also raised a claim that her trial lawyer was deficient for failing to call Coleman's sister, Sharon Coleman, and aunt, Tonya Coleman Brown, as witnesses, and that these women could have testified that they saw Davontae playing outside with other children "constantly," damaging the state's contention that he was being restrained. The U.S. Fifth Circuit Court of Appeals ruled, however, that the almost identically-worded affidavits given by Coleman's aunt and sister lacked credibility and did not contradict the most serious parts of the state's case against Coleman, and that her trial lawyer's decision not to call them as witnesses was a reasonable strategy.1 "The state singled Lisa out and figured some way to get her the death penalty because she was black, a lesbian, and an easy target," said one of her attorneys, John Stickles. "What she's really guilty of is being a black lesbian."

"There was not an inch on his body that had not been bruised or scarred or injured," said Tarrant County prosecutor Dixie Bersano. "The jury assessed the appropriate punishment."

Coleman's aunt and friends attended her execution. She smiled, laughed, and expressed love to them in her final moments. She also sent a message of encouragement to the other women on death row. "I'm all right," she said. "Tell them I finished strong. God is good." The lethal injection was then started. She was pronounced dead at 6:24 p.m. Coleman was the sixth female murderer to be put to death in Texas since 1982 and the second in 2014. Only 15 women have been executed nationwide since capital punishment was reinstated in 1976.

*Both affidavits read, "I constantly saw Davontae Williams playing with other children ... running around ... acting like a normal child ... I never saw Davontae restrained or tied up in any manner whatsoever. In addition, every time I saw Davontae he appeared to be in good health." Both women also stated, "I was never contacted by Lisa Coleman's lawyers or any other person prior to Lisa's trial." The court opined that the women's assessment that Davontae appeared to be "in good health" lacked "probity," based on the overwhelming physical evidence and testimony to the contrary, and that their assessment of him as "acting like a normal child" undermined the defense's strategy of portraying of Davontae as extremely difficult to manage. The court also observed that the record showed that private investigator Toni Knox interviewed Sharon and Tonya on behalf of Coleman's lawyers prior to the trial, contradicting their claims that they were never contacted by anyone.

Houston Chronicle

"Texas executes woman for starvation of boy, 9," by Michael Graczyk. (AP September 17, 2014 7:59pm)

HUNTSVILLE, Texas (AP) — A Texas woman convicted of the starvation and torture death of her girlfriend's 9-year-old son a decade ago was executed Wednesday evening. Lisa Coleman, 38, received a lethal injection about an hour after the U.S. Supreme Court rejected a last-day appeal to spare her. She was pronounced dead at 6:24 p.m. CDT, 12 minutes after Texas Department of Criminal officials began administering a lethal dose of pentobarbital. Coleman became the ninth convicted killer and second woman to receive lethal injection in Texas this year. Nationally, she's the 15th woman executed since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, nearly 1,400 men have been put to death.

Coleman smiled and nodded to several friends and an aunt who watched through a window, thanking them and expressing her love. She also said she loved the other women on Texas' death row and urged them to "keep their heads up." "I'm all right," she said. "Tell them I finished strong. ... God is good." She mouthed an audible kiss, laughed and nodded to her witnesses in the seconds before the lethal drug took effect. "Love you all," she said just before closing her eyes and taking a couple of short breaths. Then there was no further movement.

Coleman was condemned for the death of Davontae Williams, whose emaciated body was found in July 2004 at the North Texas apartment Coleman shared with his mother, Marcella Williams. Paramedics who found him dead said they were shocked to learn his age. He weighed 36 pounds, about half that of a normal 9-year-old. A pediatrician later would testify that he had more than 250 distinct injuries, including burns from cigarettes or cigars and scars from ligatures, and that a lack of food made him stop growing. "There was not an inch on his body that not been bruised or scarred or injured," said Dixie Bersano, one of Coleman's trial prosecutors.

Coleman's trial attorneys said the boy's death at the apartment in Arlington was an accident. They said he may have had mental health issues that made him difficult to handle and Coleman and Williams didn't know how to deal with him in a positive manner. After a Tarrant County jury in 2006 convicted and sent Coleman to death row, Williams took a plea bargain and accepted a life prison sentence. Now 33, she's not eligible for parole until 2044.

Coleman's lawyer, John Stickels, argued unsuccessfully to the high court that while the child's hands were tied with clothesline at various times, it was "mostly a misguided means of discipline" used by both women. An aggravated factor of kidnapping, which made the charge against Coleman a capital murder case, was incorrect, making the jury's conviction on that charge also incorrect, Stickels contended. Jefferson Clendenin, an assistant Texas attorney general, told the justices in his argument against the appeal that Coleman's arguments "had no merit."

As of Jan. 1, 60 women were on death row in the U.S., representing about 2 percent of the total death row population, according to the Death Penalty Information Center, a Washington-based anti-capital punishment organization. Coleman's execution leaves seven women on death row in Texas.

ProDeathPenalty.Com

On July 26, 2004, Marcella Williams, Lisa Coleman's lover, found her nine-year-old son Davontae unconscious and called 911. While en route to Williams's apartment, firefighter and paramedic Troy Brooks stated that the dispatcher changed the call from "breathing difficulty" to "full arrest." When he arrived, Davontae was lying on the bathroom floor clad in a disposable diaper. Brooks testified that Davontae appeared "emaciated" and looked as if he was only three to five years old. Brooks immediately realized that Davontae was dead; his body was already in full rigor mortis, which usually occurs several hours after death. This "shocked" Brooks because Williams had told him that Davontae had just eaten and thrown up and that Williams and Coleman had been washing him.

Brooks also noticed that Davontae had a few "dirty bandages" on his arms. Vanessa Sheriff, a paramedic, testified that Williams told her that she tried to feed Davontae Pediasure. Williams also said that Davontae was breathing when she called 911. Sheriff believed this statement "did not match with what she saw on the bathroom floor." Both Brooks and Sheriff noticed that Davontae had traces of yellow vomit or bile around his mouth and nose. Sheriff believed that the appearance of vomit was consistent with the liquid Pediasure.

Dr. Daniel Konzelmann conducted the autopsy. Dr. Konzelmann determined that Davontae's death was a homicide and that the direct cause of death was malnutrition coupled with slight pneumonia. Davontae weighed less than forty pounds at the time of his death. Dr. Konzelmann determined that Davontae was malnourished because Davontae's body lacked subcutaneous fat cells. He also cited the lack of fat cells surrounding Davontae's heart as very unusual. Dr. Konzelmann also explained how the external injuries to Davontae's body contributed to his death: I believe that some of these injuries were infected and that it's possible that this did relate to the pneumonia that he had.

Also some of these were evidence to me that he had been bound and that this would have prevented him from either seeking care on his own or getting food on his own. Dr. Konzelmann noted evidence indicating that Davontae had been continuously bound. Davontae had numerous linear marks on his wrists. Some of the marks were scarred, indicating wounds that had healed, and some of the marks were "giant soress," indicating that they were not healing. This demonstrated a pattern of restraint. Davontae's ankles had similar markings. Davontae's ear had a significant wound that was beginning to heal. His lower lip had an ulceration and a tear that would make it hard for Davontae to eat and drink. It appeared that Davontae had chicken-noodle soup before he died but, according to Dr. Konzelmann, "it was inadequate, too late, and possibly too much."

Dr. Nancy Kellogg, a board-certified pediatrician and specialist in child abuse, identified at least 250 distinct injuries to Davontae, including cigarette or cigar burn wounds and numerous ligature marks on his arms and legs. Kellogg described the starvation of a child as "very rare" and "unusual." However, based on the ligature marks, she concluded that Davontae was intentionally starved to death. Davontae had been restrained from accessing food. Based on a review of Davontae's medical records from December 2002, Dr. Kellogg opined that Davontae had a "normal growth velocity" for a child his age. This indicated that he did not suffer from a disease that would stunt his growth. In the months before his death, however, Davontae's weight spiked downward and he stopped growing. The physical stress caused Davontae's hair growth to be abnormal; he had hair growing in places where hair does not normally grow. Such growth is typically seen in people who are anorexic.

Detective Jim Ford questioned Coleman while investigating Davontae's death. Coleman told Detective Ford that she lived with Williams about half of the time and with her son and mother the other half. She used to beat Davontae with a belt but stopped in February or March of 2004 because the beatings left welts. She stated that she and Williams tied up Davontae on several occasions. Recalling the night that Davontae died, Coleman stated that Williams woke her up screaming. Williams attempted to administer CPR to Davontae, and Coleman said that she put Davontae in a warm bath to revive him. Coleman did not know how Davontae injured his arms and legs.

Davontae's sister, Destinee, who was eight at the time, testified that Coleman would tie Davontae up with an extension cord in the bathroom. When Davontae was tied up, he "couldn't move around much" and did "nothing." Child Protective Service (CPS) Investigators testified that Davontae was removed from Williams's home and placed in foster care in 1999 because Coleman physically abused him. Davontae was returned to Williams's custody about a year later. After her arrest in this case, Coleman told CPS that she bruised Davontae by beating him with a belt in 2004. She spoke to her mother about the incident, and her mother told her to not to touch Davontae. She admitted that she tied up Davontae on two occasions with clothing to keep him from hurting himself or others. According to Campbell, Coleman said that Williams did not want to take Davontae to the doctor because she was afraid that the bruises and marks would prompt a doctor to call CPS.

Coleman admitted to Campbell that she had hit and pushed Davontae, causing him to split his lip. She also told Campbell that Williams did not want Davontae to go to school because Williams was afraid that he would report the abuse and that school officials would call CPS. Coleman stated that Davontae had been tied up regularly since June and that the sore on his arm was caused by him fighting to be released.

The pantry door had a lock on the top of the door frame, and investigators discovered a dry urine stain on the floor. But Coleman denied locking Davontae in the pantry. Coleman also said that Davontae had been sick for about a month before his death. He did not eat very much when fed, and he would throw up. Coleman stated that, in an attempt to help Davontae, she and Williams gave him a variety of over-the-counter medicines.

Dr. Lesther Winkler, a pathologist, testified for the defense. He stated that Davontae died from aspiration pneumonia, which "is the result of sucking food or particles of material which don't go into the stomach properly through the esophagus and are sucked instead into the trachea," which leads to the lungs. Dr. Winkler noted aspirated material in Davontae's lung and that his right lung was twice the size of his left because of the aspirated material. Dr. Winkler disagreed with Dr. Konzelmann's determination that the absence of fat around Davontae's heart was significant. In his opinion, children rarely have fat around the heart. As for the malnutrition, Dr. Winkler agreed that Davontae was malnourished; there was no evidence that Davontae was unable to metabolize food.

Dr. Nizam Peerwani, the Chief Medical Examiner with Tarrant County, also examined Davontae's body during the autopsy. The State called him to testify to rebut Dr. Winkler's testimony. He stated that a normal person does not aspirate and die and that there was no reason to suggest that Davontae aspirated given his medical history. Viewing the "entire picture," Dr. Peerwani stated, "even if he had aspirated, the pneumonia is not a very significant component in this child's death. Perhaps the most dramatic component is malnourishment. He died because of malnutrition."

Daily Mail Online

"Tell them I finished strong": Last words of Texas woman, 38, executed for starving girlfriend's 9-year-old.

•Lisa Ann Coleman, 38, was executed after 6pm today for the death of her girlfriend's son

•Coleman was charged with capital murder in the 2004 death of the boy, who officials found bruised, beaten and starved at the time of his death.

•The young boy's mother, Marcella Williams, is currently serving a life sentence for her role.

•Davontae died of malnutrition, weighing just 35 pounds at the time of his death

By Ashley Collman and Chris Spargo (18:44 EST, 17 September 2014)

A Texas woman was executed this evening, after spending the last eight years on death row for the murder of her girlfriend's son a decade ago. Lisa Ann Coleman, 38, of Arlington, Texas, was found guilty of capital murder in the death of 9-year-old Davontae Williams, who had been beaten and bound, and whose body bore more than 250 scars when officials discovered him on July 26, 2004. He had also been starved, weighing a mere 35 pounds at the time of his death.

Coleman was given a lethal injection sometime after 6pm and was pronounced dead at 6:23pm, according to KDFW reporter Richard Ray who acted as a media witness to the execution. Ray said the execution was 'very peaceful' and that he only heard a 'short gasp' before Coleman passed. Her last words were directed at her fellow inmate, Darlie Routier. 'Tell them I finished strong,' she said. She then smiled and blew kisses at the supporters gathered and added: 'God bless you all.'

Ahead of her death, Coleman told jailers she was at peace with the execution. ''I'm ready, I know where I am going. I'm not bitter, just ready,' Coleman said Wednesday. She spent Monday playing word games with her friends, Routier, before being transferred to Huntsville for the lethal injection. On Wednesday she was given the opportunity to see family and spiritual advisers and make phone calls. Five family members and friends bore witness to Coleman's execution. No one showed up to represent the victim, Davontae.

Davontae's mother, and Coleman's former girlfriend, Marcella Williams, is currently serving a life sentence for his death, after reaching a plea deal.

Prosecutors in Coleman's case used the charge of kidnapping to justify asking for the death penalty. According to the Fort Worth Star-Telegram, they argued that Coleman 'did not allow Davontae to have visitors, kept him from visiting others by restraining him and told people he was not at the apartment when he was there.' The young boy's ultimate cause of death was malnutrition. Paramedics who arrived on the scene after it was reported the child was having trouble breathing found him dressed in nothing but bandages and a diaper, and reported that the boy had clearly been dead for several hours.

A jury deliberated for just three hours in June 2006 before recommending the death penalty. Williams, who was just 14-years-old when she gave birth to Davontae, had been investigated by Child Protective Services seven times between 1995 and 2002. In 2002, they lost track of the family.

Coleman’s appellate attorney, John Stickels, filed a clemency application in August asking that Texas governor Rick Perry commute her sentence to life in prison, but a board voted unanimously earlier this week to not recommend commutation. 'What she’s really guilty of is being a black lesbian,' Stickels said. 'Her sexual orientation played a role in the state choosing to seek the death penalty and in her getting the death penalty.' The Supreme Court on Wednesday denied a last minute stay of execution.

According to The Austin Chronicle, four witnesses who lived in the same apartment complex as Williams and Coleman report seeing Davontae around the neighborhood unrestrained and in good spirits just days before his death. These witnesses all submitted affidavits on Coleman's behalf to help her attorneys as they attempted to appeal her case by questioning the legitimacy of the kidnapping charges.

Coleman is the sixth woman put to death in Texas since 1982, and the ninth person this year. The last woman to be executed in Texas was Suzanne Basso, who received a lethal injection on February 5, 2014.

Huntsville Item

"Texas executes woman for starvation of boy, 9," by Cody Stark. (Thursday, September 18, 2014 12:00 am)

A Tarrant County woman convicted of starving and abusing the young son of her girlfriend 10 years ago was executed Wednesday evening. Lisa Ann Coleman, 38, became the second woman and ninth condemned inmate to be put to death in Texas this year after the U.S. Supreme Court denied her final appeal shortly before the lethal injection was carried out.

Coleman looked at her family and friends and spoke to them through the glass window of the execution chamber as she laid strapped to the gurney. “I just want to tell my family I love them, my son, I love him,” Coleman began her last statement. “The girls on the row, I love them and keep their heads up.” Coleman told the warden she was done and smiled and laughed at her witnesses one final time as the single dose of pentobarbital began to flow through her veins. She closed her eyes and quietly lost consciousness. She was pronounced dead at 6:24 p.m., 12 minutes after the lethal dose was administered.

Coleman was sentenced to die for the death of 9-year-old Davontae Williams, whose emaciated body was found in July 2004 at the North Texas apartment Coleman shared with his mother, Marcella Williams. Paramedics who found him dead said they were shocked to learn his age. He weighed 36 pounds, about half that of a normal 9-year-old. A pediatrician later would testify that he had more than 250 distinct injuries, including burns from cigarettes or cigars and scars from ligatures, and that a lack of food made him stop growing. “There was not an inch on his body that not been bruised or scarred or injured,” said Dixie Bersano, one of Coleman’s trial prosecutors.

After a Tarrant County jury in 2006 convicted and sent Coleman to death row, Williams took a plea bargain and accepted a life prison sentence. Now 33, she’s not eligible for parole until 2044.

Coleman’s lawyer John Stickels argued unsuccessfully to the high court that while the child’s hands were tied with clothesline at various times, it was “mostly a misguided means of discipline” used by both women. The aggravated factor of kidnapping, which made the charge against Coleman a capital murder case, was incorrect, making the jury’s conviction on that charge also incorrect, Stickels contended.

Nationally, Coleman is the 15th woman executed since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, nearly 1,400 men have been put to death.

Coleman v. State, Not Reported in S.W.3d (Tex. Crim. App. 2009). (Direct Appeal)

Background: Defendant was convicted by jury in the 297th Judicial District Court, Tarrant County, of capital murder, for which she was sentenced to death.

Holdings: On automatic appeal, the Court of Criminal Appeals held that: (1) evidence was sufficient to support conclusion that defendant had kidnapped child victim; (2) evidence was sufficient to support conclusion that defendant intentionally caused child's death through starvation; (3) Child Protective Services (CPS) investigators were not acting as agents of law enforcement for Miranda purposes when then interviewed defendant while he was in jail; (4) defendant was not entitled to instruction during punishment phase regarding specifics of her parole eligibility; (5) evidence was sufficient to support conclusion that defendant would commit criminal acts of violence in the future so as to constitute a continuing threat to society; and (6) defendant's claim challenging use of pancuronium bromide in lethal injection procedure was not ripe for review. Affirmed.

PER CURIAM.

Lisa Ann Coleman was charged with capital murder and with two counts of injury to a child committed in July 2004. Count Three, injury to a child, was severed on April 18, 2006. On June 19, 2006, a jury convicted Coleman of capital murder in Count One.FN1 Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced Coleman to death for Count One only.FN2 For Count One, direct appeal to this Court is automatic. FN3 After reviewing Coleman's points of error relating to her capital murder conviction and death sentence, we find them to be without merit. Accordingly, we affirm Coleman's conviction and death sentence for Count One.

FN1. Tex. Penal Code Ann. § 19.03(a)(2). FN2. Tex.Code Crim. Proc. Ann. art. 37.071 § 2(g). FN3. Id. at § 2(h).

The jury also convicted Coleman of injury to a child in Count Two and assessed a ninety-nine year sentence. Coleman's points of error challenging this conviction and sentence are not before us.FN4 Therefore, we dismiss those claims. FN4. See Callins v. State, 726 S.W.2d 555, 558 (Tex.Crim.App.1986) (holding that appeals of non-capital convictions, even when obtained in the same trial as a murder conviction in which the death penalty was assessed, are properly reviewed by the intermediate court of appeals on direct appeal).

I. Sufficiency of the Evidence
A. Facts

On July 26, 2004, Marcella Williams, Coleman's lover, found her nine-year-old son Davontae unconscious and called 911. While en route to Williams's apartment, firefighter and paramedic Troy Brooks stated that the dispatcher changed the call from “breathing difficulty” to “full arrest.” When he arrived, Davontae was lying on the bathroom floor clad in a disposable diaper. Brooks testified that Davontae appeared “emaciated” and looked as if he was only three to five years old. Brooks immediately realized that Davontae was dead; his body was already in full rigor mortis, which usually occurs several hours after death. This “shock[ed]” Brooks because Williams had told him that Davontae had just eaten and thrown up and that Williams and Coleman had been washing him. Brooks also noticed that Davontae had a few “dirty bandages” on his arms. Vanessa Sheriff, a paramedic, testified that Williams told her that she tried to feed Davontae Pediasure. Williams also said that Davontae was breathing when she called 911. Sheriff believed this statement “did not match with what [she saw] on the bathroom floor.” Both Brooks and Sheriff noticed that Davontae had traces of yellow vomit or bile around his mouth and nose. Sheriff believed that the appearance of vomit was consistent with the liquid Pediasure.

Dr. Daniel Konzelmann conducted the autopsy. Dr. Konzelmann determined that Davontae's death was a homicide and that the direct cause of death was malnutrition coupled with slight pneumonia. Davontae weighed less than forty pounds at the time of his death. Dr. Konzelmann determined that Davontae was malnourished because Davontae's body lacked subcutaneous fat cells. He also cited the lack of fat cells surrounding Davontae's heart as very unusual. Dr. Konzelmann also explained how the external injuries to Davontae's body contributed to his death: I believe that some of these injuries were infected and that it's possible that this did relate to the pneumonia that he had. Also some of these were evidence to me that he had been bound and that this would have prevented him from either seeking care on his own or getting food on his own....

Malnutrition will depress the immune system. That is, there are cells in the body that are designed to recognize invaders and deal with them, and that takes energy. As someone becomes more malnourished, their system is less able to protect themselves. Dr. Konzelmann noted evidence indicating that Davontae had been continuously bound. Davontae had numerous linear marks on his wrists. Some of the marks were scarred, indicating wounds that had healed, and some of the marks were “giant sores[s],” indicating that they were not healing. This demonstrated a pattern of restraint. Davontae's ankles had similar markings. Davontae's ear had a significant wound that was beginning to heal. His lower lip had an ulceration and a tear that would make it hard for Davontae to eat and drink. It appeared that Davontae had chicken-noodle soup before he died but, according to Dr. Konzelmann, “it was inadequate, too late, and possibly too much.”

Dr. Nancy Kellogg, a board-certified pediatrician and specialist in child abuse, identified at least 250 distinct injuries to Davontae, including cigarette or cigar burn wounds and numerous ligature marks on his arms and legs. Kellogg described the starvation of a child as “very rare” and “unusual.” However, based on the ligature marks, she concluded that Davontae was intentionally starved to death. Davontae had been restrained from accessing food. Based on a review of Davontae's medical records from December 2002, Dr. Kellogg opined that Davontae had a “normal growth velocity” for a child his age. This indicated that he did not suffer from a disease that would stunt his growth. In the months before his death, however, Davontae's weight spiked downward and he stopped growing. The physical stress caused Davontae's hair growth to be abnormal; he had hair growing in places where hair does not normally grow. Such growth is typically seen in people who are anorexic.

Detective Jim Ford questioned Coleman while investigating Davontae's death. Coleman told Detective Ford that she lived with Williams about half of the time and with her son and mother the other half. She used to beat Davontae with a belt but stopped in February or March of 2004 because the beatings left welts. She stated that she and Williams tied up Davontae on several occasions. Recalling the night that Davontae died, Coleman stated that Williams woke her up screaming. Williams attempted to administer CPR to Davontae, and Coleman said that she put Davontae in a warm bath to revive him. Coleman did not know how Davontae injured his arms and legs. Davontae's sister, Destinee, who was eight at the time, testified that Coleman would tie Davontae up with an extension cord in the bathroom. When Davontae was tied up, he “couldn't move around much” and did “[n]othing.”

Child Protective Service (CPS) Investigators Jennifer Deible and Edna Campbell testified that Davontae was removed from Williams's home and placed in foster care in 1999 because Coleman physically abused him. Davontae was returned to Williams's custody about a year later. After her arrest in this case, Coleman told the two that she bruised Davontae by beating him with a belt in 2004. She spoke to her mother about the incident, and her mother told her to not to touch Davontae. She admitted that she tied up Davontae on two occasions with clothing to keep him from hurting himself or others. According to Campbell, Coleman said that Williams did not want to take Davontae to the doctor because she was afraid that the bruises and marks would prompt a doctor to call CPS. Coleman admitted to Campbell that she had hit and pushed Davontae, causing him to split his lip. She also told Campbell that Williams did not want Davontae to go to school because Williams was afraid that he would report the abuse and that school officials would call CPS. Coleman stated that Davontae had been tied up regularly since June and that the sore on his arm was caused by him fighting to be released. The pantry door had a lock on the top of the door frame, and investigators discovered a dry urine stain on the floor. But Coleman denied locking Davontae in the pantry. Coleman also said that Davontae had been sick for about a month before his death. He did not eat very much when fed, and he would throw up. Coleman stated that, in an attempt to help Davontae, she and Williams gave him a variety of over-the-counter medicines.

Dr. Lesther Winkler, a pathologist, testified for the defense. He stated that Davontae died from aspiration pneumonia, which “is the result of sucking food or particles of material which don't go into the stomach properly through the esophagus and are sucked instead into the trachea,” which leads to the lungs. Dr. Winkler noted aspirated material in Davontae's lung and that his right lung was twice the size of his left because of the aspirated material. Dr. Winkler disagreed with Dr. Konzelmann's determination that the absence of fat around Davontae's heart was significant. In his opinion, children rarely have fat around the heart. As for the malnutrition, Dr. Winkler agreed that Davontae was malnourished; there was no evidence that Davontae was unable to metabolize food.

Dr. Nizam Peerwani, the Chief Medical Examiner with Tarrant County, also examined Davontae's body during the autopsy. The State called him to testify to rebut Dr. Winkler's testimony. He stated that a normal person does not aspirate and die and that there was no reason to suggest that Davontae aspirated given his medical history. Viewing the “entire picture,” Dr. Peerwani stated, “even if he had aspirated, the pneumonia is not a very significant component in this child's death. Perhaps the most dramatic component is malnourishment.... He died because of malnutrition.”

B. Analysis

In points of error two and three, Coleman alleges that the evidence supporting her conviction for injury to a child is legally and factually insufficient. Coleman also addresses the jury's findings of guilt for injury to a child as alleged in Count Two. Her conviction and sentence in Count Two, however, are not before this Court.FN5 Points of error two and three are therefore dismissed. FN5. See Callins, 726 S.W.2d at 558.

In her fourth point of error, Coleman contends that the evidence is legally and factually insufficient to support the jury's findings that she kidnapped Davontae. Because Coleman combines more than one legal argument in a single ground, we could reject her claims on the ground that nothing is presented for review.FN6 Nevertheless, we will address both of her arguments. In points of error seven and eight, Coleman alleges that the evidence is legally and factually insufficient to show that she intentionally caused Davontae's death. FN6. Tex.R.App. P. 38.1(e), (h).

Under Jackson v. Virginia, when deciding whether evidence is legally sufficient to support a conviction, we assess all of the evidence in the light most favorable to the verdict to determine whether “ any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.” FN7 Evidence is factually insufficient when, although legally sufficient under a Jackson analysis, the evidence is “so weak” that the verdict “seems clearly wrong or manifestly unjust” or “against the great weight and preponderance of the evidence.” FN8 A factual sufficiency review is “barely distinguishable” from a Jackson v. Virginia legal sufficiency review. FN9

FN7. 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). FN8. Watson v. State, 204 S.W.3d 404, 414–15, 417 (Tex.Crim.App.2006). FN9. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008).

1. Kidnapping

A person commits the offense of kidnapping if she intentionally or knowingly abducts another person.FN10 “Abduct” means to restrain a person with intent to prevent the person's liberation, and it can be accomplished in two ways: (1) “secreting or holding the person in a place where the person is not likely to be found;” or (2) “using or threatening to use deadly force.” FN11 “Abduct” includes two elements—an actus rea requirement and a mens rea requirement.FN12 Under the actus rea requirement, the defendant must have restrained another person.FN13 And under the mens rea requirement, the defendant must have had the specific intent to prevent a person's liberation.FN14

FN10. Tex. Penal Code Ann. § 20.03. FN11. Tex. Penal Code Ann. § 20.01(2). FN12. Brimage v. State, 918 S.W.2d 466, 475–76 (Tex.Crim.App.1994). FN13. Id. at 476. FN14. Id.

Secreting or holding another person where the person is unlikely to be found is part of the mens rea requirement of the offense.FN15 Thus, the State is not required to prove that the defendant actually secreted or held another; FN16 it must prove that the defendant restrained the other person with the specific intent to prevent liberation by secreting or holding the person. FN17 The offense of kidnapping is legally completed when the defendant, at any time during the restraint, forms the intent to prevent liberation by secreting or holding another in a place where the person is unlikely to be found.FN18 Intent may be inferred from an accused's conduct, remarks, and the surrounding circumstances.FN19

FN15. Id. at 475. FN16. Id. at 476. FN17. Id. FN18. Id. at 475. FN19. See Turner v. State, 600 S.W.2d 927, 929 (Tex.Crim.App.1980).

Coleman argues that the evidence shows only that she tied up Davontae for a short time with clothing and therefore nothing established that the restraint was capable of causing death or serious bodily injury, or that she intended to cause death or serious bodily injury. Additionally, Coleman argues that the evidence presented indicates only that she may have restrained Davontae for a short time in his own home, which is where one would expect to find a child. Finally, Coleman argues that it is apparent that Davontae's mother acquiesced in the restraint. FN20. See Tex. Penal Code Ann. § 20.01(1)(B)(i).

First, that Williams may have acquiesced in the restraint is of no consequence. The record shows that Williams and Coleman acted in concert. But Coleman restrained Davontae without his consent and did so through the use of force and intimidation.FN21 The numerous ligatures marks themselves are evidence of force. Destinee testified that Coleman used an extension cord to tie up Davontae in the bathroom. And Coleman admitted that she physically abused Davontae. Thus, there was evidence that Coleman used force and intimidation to restrain Davontae. FN21. See Tex. Penal Code Ann. § 20.01(1)(A).

Additionally, that Davontae was restrained in his own home did not preclude the jury from inferring that Coleman intended to secret or hold Davontae in a place where he was unlikely to be found. We have recognized that a rational factfinder can infer the intent to secret or hold a person in a place where that person is unlikely to be found when a defendant isolates a person from anyone who might be of assistance. FN22. Fann v. State, 696 S.W.2d 575, 576 (Tex.Crim.App.1986); Laster v. State, 275 S.W.3d 512, 522 (Tex.Crim.App.2009).

Dovantae began first grade in 2002. Williams pulled him out of school in midNovember, before the holidays. Before that, Davontae's teacher, Jean Ann Stokes, noticed that Davontae had a difficult time adapting to the classroom. He did not take non-verbal cues from Stokes or his classmates. Stokes and the cafeteria staff noticed that Davontae was always hungry. The cafeteria staff would usually find extra food to give him. Stokes also noticed that Davontae had some “markings” on his body that concerned her. She and the school's counselor reported all of this to CPS. Davontae spoke to a man from CPS on the phone, but Stokes could not hear what he asked Davontae. In November, Stokes developed a plan for Davontae to take part in an alternative program so he could learn how school works. Before the plan could be implemented, Davontae disappeared from school and never returned.

Coleman told CPS investigators that Williams did not want Davontae to go to school or to a doctor because she was afraid that Davontae would report the abuse and someone would call CPS. Coleman did not defy Williams, and the record indicates that the two acted in concert. Destinee testified that Davontae was tied up in the bathroom. Also, according Coleman's own statement, Davontae had been restrained inside the home since June 2004. Further, a reasonable jury could have inferred that the restraint began earlier. Malnutrition, according to the State's experts, occurs over an extended period of time.

Finally, Coleman told CPS investigators that anyone who inquired into Davontae's whereabouts was informed that he was “with his mother's people,” even though Davontae was at home. Coleman's statement was supported by testimony from Williams's sister. Latravier Williams testified that Coleman and Williams came to her house with Williams's daughters, and when she asked where Davontae was, both Coleman and Williams told her that he was with another family member.

Ordinarily, it would seem counterintuitive to believe that a child, located in the home, has been secreted or held in a place where the child is not likely to be found. But when the evidence shows, as it does in this case, that the perpetrator makes a concerted effort to prevent outsiders and even family members from looking for the child at home so as to deny access to the child, the evidence suffices to establish the perpetrator's intention to make the home a place where the child is not likely to be found.FN23 Here, the evidence shows that Williams and Coleman took several deliberate measures to deflect outsiders interested in Davontae from looking for him at home and having access to him.FN24 The facts and circumstances of this unusual case make it comparable to a situation in which a perpetrator confines a child in a hidden compartment inside the child's own home. Such a circumstance would be more than sufficient to prove, beyond a reasonable doubt, the requisite intent to secret or hold the child in place where the child is unlikely to be found.

FN23. Laster, 275 S.W.3d at 521 (“Secreting or holding another where he or she is unlikely to be found is part of the mens rea requirement of the offense—not the actus reus.”) (citing Brimage v. State, 918 S.W.2d 466, 476 (Tex.Crim.App.1994)). FN24. See id. at 522.

When the evidence is viewed in the light most favorable to the verdict, a rational trier of fact could have found that Davontae was kidnapped. Further, the evidence is not so weak that the jury's determination is clearly wrong and manifestly unjust. Nor is the jury's determination that Davontae was kidnapped against the great weight and preponderance of the evidence. Because the evidence of kidnapping is both legally and factually sufficient, we overrule Coleman's fourth point of error.

2. Cause of Death

Coleman argues that the evidence is legally and factually insufficient to show that she intentionally caused Davontae's death. While the State and defense presented competing expert opinions about the cause of Davontae's death, the jury could have inferred from the evidence that Davontae's death was caused by malnutrition rather than aspiration pneumonia. The jury was presented with evidence of intentional starvation. Davontae had been healthy and growing in 1999, and his starvation was not based on metabolic factors. Dr. Kellogg testified that there was no food matter in Davontae's system beyond his stomach. This showed that he had not eaten regularly. Dr. Kellogg and Dr. Peerwani concluded that Davontae was malnourished and that an ordinary person looking at him could tell that he desperately needed medical attention. Dr. Kellogg testified that Davontae was restrained and kept from accessing food for months and that he was intentionally starved.

Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found, beyond a reasonable doubt, that Coleman intentionally caused Davontae's death through starvation.FN25 Further, the evidence is not so weak that the jury's determination is clearly wrong or manifestly unjust. Nor is the jury's determination that Coleman intentionally caused Davontae's death against the great weight and preponderance of the evidence. Because the evidence that Coleman caused Davontae's death is both legally and factually sufficient, points of error seven and eight are overruled. FN25. Tex. Penal Code Ann. § 19.03(a)(2).

Indictment

In point of error six, Coleman alleges that the indictment is fundamentally defective and deprived her of due process because it failed to allege aggravating factors that were later submitted to the jury as special issues. Coleman also argues that the grand jury was required to allege the specific facts legally essential to her death sentence, including facts supporting a negative response to the mitigation special issue. Coleman argues that because these factors were not included in the indictment, the indictment failed to provide notice of the State's intent to seek the death penalty. We have previously addressed these complaints and determined that the State is not required to allege the special issues in the indictment.FN26 Coleman offers no reason for us to reconsider our prior determinations at this time. Point of error six is therefore overruled. FN26. Russeau v. State, 171 S.W.3d 871, 885–86 (Tex.Crim.App.2005); Rayford v. State, 125 S.W.3d 521, 533 (Tex.Crim.App.2003).

Double Jeopardy

In her first point of error, Coleman contends that her federal and state constitutional protections against double jeopardy were violated. FN27 She argues that, based on the facts and circumstances of this case, serious bodily injury to a child is a lesser-included offense of capital murder.FN28

FN27. U.S. Const. amend. V; Tex. Const. art. I, § 14. FN28. Tex.Code Crim. Proc. Ann. art. 37.09(1).

This claim is not properly before us on this appeal. Because the remedy for any double jeopardy violation in this instance is to set aside the injury-to-a-child conviction and sentence,FN29 we conclude that Coleman's claim does not constitute a challenge to her capital murder conviction and death sentence. This claim would be properly before the court of appeals on direct appeal from her injury-to-a-child conviction.FN30 We therefore dismiss Coleman's first point of error.

FN29. Bigon v. State, 252 S.W.3d 360, 373 (Tex.Crim.App.2008). FN30. See Callins, 726 S.W.2d at 558.

Admissibility of CPS Statements

In point of error nine, Coleman alleges that the trial judge abused his discretion in admitting statements she made to CPS investigators while she was in custody. Coleman contends that the investigators were state agents and therefore required to warn her in compliance with Miranda v. Arizona FN31 and Article 38.22 of the Texas Code of Criminal Procedure. FN31. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The procedural safeguards of Miranda and Article 38.22 apply to custodial interrogation by law enforcement officers or their agents.FN32 State employment does not, by itself, make a person a state agent for purposes of defining custodial interrogation.FN33 Different types of state employees serve different roles.FN34 It is law enforcement's job to ferret out crime, investigate its commission, arrest the perpetrator, and gather evidence for a possible prosecution.FN35 CPS workers have a different duty—to protect the welfare and safety of children in the community.FN36 Police officers and CPS workers generally run on separate, yet parallel paths. FN37

FN32. Wilkerson v. State, 173 S.W.3d 521, 527 (Tex.Crim.App.2005). FN33. Id. at 528. FN34. Id. FN35. Id. FN36. Id. FN37. Id. at 529.

While police are collecting information for an arrest and criminal investigation, CPS workers are investigating to find safe housing and protection for abused or neglected children. When a state-agency employee is working on a path parallel to, yet separate from, the police, Miranda warnings are not required. On the other hand, if the once-parallel paths of CPS and the police converge, and police and state agents are investigating a criminal offense in tandem, Miranda warnings and compliance with article 38.22 may be necessary. FN38. Id.

Courts must examine the entire record to determine if the paths of CPS and the police are parallel or if they have converged in a particular case.FN39 Central to this evaluation are the actions and perceptions of the police, the CPS worker, and the defendant.FN40 The essential inquiry is whether the custodial interview was conducted explicitly or implicitly on behalf of the police for the purpose of gathering evidence or statements to be used in a later criminal proceeding against the interviewee.FN41

FN39. Id. at 530. FN40. Id. FN41. Id. at 531.

Jennifer Deible testified that she was a CPS investigator based in Fort Worth. Deible first spoke with Coleman on July 27, 2004, to inform Coleman that her son Dontrell had been taken into custody and to obtain Coleman's signature on a notice of emergency removal. CPS was tasked with placing Dontrell in an appropriate environment, and Deible told Coleman that she would return later to speak with her again.

On August 3, 2004, after receiving Williams's and Coleman's statements to police, the crime-scene report, and photographs of the crime scene, Deible spoke with Coleman while she was being held in the county jail. CPS investigator Edna Campbell accompanied her. Deible testified that, although the written narrative of the visit did not indicate it, she provided Coleman the opportunity to decline to speak with her. According to Deible, Coleman said that she was expecting Deible to return. Deible testified that Coleman still wanted to speak with her, though Coleman was aware that she was entitled to have counsel present for the interview and that she was not required to speak with CPS investigators. At the time of the interview, which lasted approximately two and a half hours, Coleman's son and Williams's other children had already been placed in state custody. Additionally, CPS investigators had already conducted interviews with family members. However, Deible explained that it was necessary to gather an updated social history from Coleman, as well as to find out “who had knowledge of what had been going on with Davontae” and done nothing to help the child.

Edna Campbell testified that, at the time of Davontae's death, she was an investigator for CPS in the Fort Worth area. Campbell testified that the CPS investigators had determined that while Coleman had legal custody of her son Dontrell, he lived with Coleman's mother and that Coleman never stayed at her mother's home. Campbell testified that, even though the investigators gave police a copy of their report as a courtesy, the investigators did not discuss strategy with the police and were never asked to question Coleman. Campbell reiterated that although police reports were available to the CPS investigators, they had an obligation to interview Coleman as part of their own investigation. When ruling against Coleman on her suppression motion, the trial judge stated:

The Court has heard the testimony and finds that the Defense has failed to show that Ms. Deible and Ms. Campbell were agents for law enforcement in this situation. The court finds that Ms. Deible and Ms. Campbell were carrying out their statutory duties as case workers for Child Protective Services when they went to the Tarrant County Jail to speak with the Defendant, Ms. Coleman. Those duties concern the custody, safety and placement of the children who had been taken by CPS in the best interest of the children. The Court finds that the aims and goals and results sought by CPS were different from law enforcement agents. The Court finds only minimal contact between CPS workers and the police in this case, and that the CPS workers, Deible and Campbell, went to speak with the Defendant, Ms. Coleman, at the Tarrant County Jail independent of police. While CPS workers had a copy of the statement given to police by Ms. Coleman and a copy of the police reports, the Court finds that they were not under the direction of the police. ...

It is clear from the evidence that the CPS workers were not acting at the direction of the police. There was no strategy discussed. The police did not know when the workers were to talk to the Defendant. The police did not arrange the meeting. The police did not provide the questions to be asked. The police did not give instructions to get certain information from the Defendant. There is no calculated practice between the police and the CPS workers to invoke an incriminating response from the Defendant, and the police were not using the CPS interview to accomplish what the police did not already have lawfully accomplished themselves. ... The CPS investigators' reasons for the interview were different from the police, their aim and goal concerning the children. The police were concerned with gathering information and evidence for a criminal prosecution. There are different goals involved. The agencies were not working together or in tandem. The paths of the investigation did not converge. In fact, they went in different directions.

Giving deference to the trial judge's credibility determinations, we conclude that the evidence shows that Deible and Campbell were not agents of law enforcement who were required to comply with Miranda and Article 38.22. Their purpose was to determine if Coleman's son Dontrell could be placed with family members rather than in foster care. Because family placement was being considered, CPS needed to determine whether Coleman's relatives knew about Coleman's abuse of Davontae. Both Deible and Campbell denied having a law-enforcement purpose or acting at the direction of the police. And there is nothing to indicate that the police used Deible and Campbell to gather evidence against Coleman. As a result, we cannot say that the trial judge abused his discretion in admitting Coleman's statements to CPS. Point of error nine is overruled.

In her tenth point of error, Coleman complains that her constitutional rights under the Fourth, Fifth, and Sixth Amendments were violated when Deible and Campbell were allowed to testify concerning evidence obtained in violation of Article 700.507 of the Texas Administrative Code and the CPS policy handbook. Article 700.507 requires that if a suspect in a child abuse case is in police custody, the investigating CPS worker “must obtain authorization from the investigating police officer before conducting the interview to ensure that the alleged perpetrator's rights under criminal law are protected.”

During a pretrial hearing, Deible testified that she notified Sergeant Mark Simpson on July 27, 2004, that she would be going back to interview Coleman. According to Deible, Simpson “said that would be fine.” Campbell also testified that Simpson had been informed and did not tell the CPS investigators not to interview Coleman. Coleman argues that Deible and Campbell failed to safeguard Coleman's constitutional rights. Both investigators testified that they followed normal procedures. Coleman provides no authority to support her contention that the procedures followed by the CPS investigators violated her constitutional rights. Point of error ten is overruled.

Party Instructions

In point of error five, Coleman complains that the trial judge erred in instructing the jury that she could be convicted as a party to the offense although she was indicted only as a principal. Texas law does not require that an individual be indicted as a party; if the evidence supports a charge on the law of parties, the trial judge may include an instruction on the law of parties despite the lack of such an allegation in the indictment. FN42 Point of error five is overruled. FN42. Marable v. State, 85 S.W.3d 287, 287–88 (Tex.Crim.App.2002).

In her thirteenth point of error, Coleman alleges that the trial judge erred by authorizing the jury to find her guilty of capital murder as a party because the party-application paragraphs did not require jurors to find that Coleman had done anything more than assist Williams in the underlying kidnapping. The jury charge contains three paragraphs authorizing Coleman's conviction as a principal. After each of these paragraphs, the jury was authorized to convict Coleman under the law of parties: Or, if you find from the evidence beyond a reasonable doubt that on or about the 26th day of July, 2004, in Tarrant County, Texas, Marcella Williams did then and there intentionally cause the death of an individual, Davontae Williams by [manner and means varied by application paragraph] and the said Marcella Williams was then and there in the course of committing or attempting to commit the offense of kidnapping and the Defendant, Lisa Ann Coleman, acting with intent to promote or assist the commission of the offense encouraged, directed, aided or attempted to aid Marcella Williams in the commission of said offense.

Though the paragraphs could have been written more clearly, they are not erroneous. The application paragraphs create ambiguity only when they are read in isolation. However, we do not review charge complaints in this manner. “When we review a charge for alleged error, we must examine the charge as a whole instead of a series of isolated and unrelated statements.” FN43 A common-sense and practical reading of the application paragraphs in light of the preceding abstract portions of the charge defining capital murder and the law of parties leads us to conclude that the party-application paragraphs were not defective.FN44

FN43. Dinkins v. State, 894 S.W.2d 330, 340 (Tex.Crim.App.1995) (citing Holley v. State, 766 S.W.2d 254, 256–57 (Tex.Crim.App.1989); Inman v. State, 650 S.W.2d 417, 419 (Tex.Crim.App.1983)). FN44. See Dinkins, 894 S.W.2d at 339–40 (held that the application paragraph that failed to allege the culpable mental state for the second murder was not erroneous because the abstract portion of the charge defined murder, which included the culpable mental state).

The abstract portion of the charge correctly defined capital murder as follows: “A person commits the offense of capital murder if he commits murder as defined above and he intentionally commits the murder in the course of committing or attempting to commit the offense of kidnapping.” This definition directed jurors to render a finding on both requisite elements of capital murder—intentional murder and the underlying offense of kidnapping. The preceding abstract portion of the charge also correctly defined the law of parties, and the definition applied only to the capital murder charge: A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. FN45. Tex. Penal Code. Ann.. § 7.02(a)(2).

The word “offense” throughout this definition refers to capital murder. So when the law-of-parties definition is read in conjunction with the definition of capital murder, it is clear that a finding on both murder and kidnapping was required. With this in mind, we turn to the party-application paragraphs. The phrase “the offense” referred to the phrase “said offense” appearing at the end of the paragraphs, and the phrase “said offense” referred to capital murder—murder plus kidnapping. A reading of the charge in its entirety resolved any potential ambiguity in the party-instruction application paragraphs. We presume that the jury followed the instructions in their entirety; therefore, we conclude that the complained-of instructions were not erroneous.

Parole Instruction

In point of error twelve, Coleman contends the trial judge violated her due-process rights by refusing to give the requested “complete” instruction on parole eligibility during the punishment phase. Coleman argues that, because the instruction given may have erroneously led the jury to believe she could be released before serving a minimum of forty years, the jury was not adequately instructed and her due process-rights were violated.

At trial, Coleman sought to instruct the jury that: Once [Coleman] becomes eligible for parole, the Board of Pardons and Paroles may not authorize her release to parole unless every board member receives a written report from the Department of Criminal Justice on the probability that [Coleman] would commit an offense after being released on parole, and at least two thirds of the membership votes to release her to parole.

Her request was denied, and the jury was instructed according to Article 37.071, Section 2(e)(2)(B): You are instructed that, under the law applicable in this case, if the defendant is sentenced to imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without consideration of any good conduct time. It cannot accurately be predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of those laws will depend on decisions made by prison authorities, but eligibility for parole does not guarantee that parole will be granted.

We have held that parole is not a proper matter for jury consideration and that a trial judge does not abuse his or her discretion by refusing to allow voir-dire inquiries regarding parole .FN46 However, Article 37.071 now provides that a jury may be instructed on a capital defendant's eligibility for parole.FN47 But this provision is narrowly drawn and does not render every aspect of parole law an issue for jury consideration.FN48 The provision expressly discourages speculation about the parole process by providing that application of the parole laws cannot be accurately predicted “because the application of those laws will depend on decisions made by prison and parole authorities.” FN49 The 1999 amendments could have been drafted more broadly to give jurors more information, but the Legislature chose not to do so.FN50 Accordingly, the trial judge did not err in denying Coleman's requested instruction. Point of error twelve is overruled.

FN46. Feldman v. State, 71 S.W.3d 738, 757 (Tex.Crim.App.2002); Wright v. State, 28 S.W.3d 526, 537 (Tex.Crim.App.2000); see also Hankins v. State, 132 S.W.3d 380, 384 (Tex.Crim.App.2004). FN47. Hankins, 132 S.W.3d at 385. FN48. Id. FN49. Id. FN50. Id.

Future Dangerousness

In point of error fifteen, Coleman challenges the legal sufficiency of the evidence supporting the jury's determination regarding the future-dangerousness issue. A jury may consider a variety of factors when determining whether a defendant will pose a continuing threat to society. FN51 We must view all of the evidence in the light most favorable to the jury's finding and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found beyond a reasonable doubt that the answer to the futuredangerousness issue was “yes.” FN52

FN51. Wardrip v. State, 56 S.W.3d 588, 594 (Tex.Crim.App.2001); see also Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987). FN52. Ladd v. State, 3 S.W.3d 547, 557–58 (Tex.Crim.App.1999).

CPS records show that Coleman was involved with the Williams family as early as 1995. In 1999, Coleman was the subject of a CPS abuse case involving Davontae. Davontae was removed from the home at that time because he was being abused by Coleman and his mother failed to protect him from the abuse. Davontae was returned to the family home only when Williams agreed not to let Coleman live in the home and CPS caseworkers were certain that Coleman was not living in the home. CPS records indicated, however, that at the time of Davontae's death, Coleman lived in the home more than fifty percent of the time and was considered by CPS as a care giver.

Coleman admitted to CPS investigators that she had pushed and hit Davontae, causing him to fall and split his lip, but she insisted that she had not beaten Davontae since February 2004. Coleman's own mother had told Coleman to leave Davontae alone, and her sister had advised her to get help for Davontae. Coleman also admitted to tying up Davontae with clothing at least twice, but insisted that it was for his own protection because he wandered at night. Davontae's sister, Destinee, told the jury that Coleman kept Davontae tied up in the bathroom and whipped him with extension cords. Destinee also told the jury that Coleman beat her and her sister with belts, clothes hangers, and extension cords as well.

Dr. Kellogg identified 250 distinct injuries suffered by Davontae, including cigar or cigarette burns and ligature marks on his arms and legs, many of which were old enough to have formed scars. Dr. Konzelmann testified about a significant injury to Davontae's lip that would have, before it healed, made it difficult for him to eat and nearly impossible to drink. Davontae also had a deformity to one of his ears that was caused by long-term traumatic injury and ligature scarring on his penis caused by attempts to prevent Davontae from wetting his bed.

And as shown above, there was ample evidence of intentional starvation. Davontae had been healthy and growing in 1999; his starvation was not based on metabolic factors. The presence of depleted fat cells showed that he had received adequate nutrition at some time. Dr. Kellogg testified that there was no food matter in Davontae's system beyond his stomach, indicating that he had not eaten regularly. The jury heard from Dr. Kellogg that Davontae's death occurred over a number of months.

The jury also heard from Carol Bowdry, Coleman's own expert, that Davontae's injuries were torturous. Bowdry agreed on cross-examination that Coleman systematically and chronically abused Davontae. She testified that Davontae “went through agony.” Bowdry also testified that abusers such as Coleman “may intend for the child to go through an awful lot of pain and suffering,” but are surprised when a child dies from the abuse. Coleman's second expert, Dr. Mary Connell, testified on cross-examination that even someone like Coleman who suffered abuse as a child would know that the systematic abuse of Davontae was wrong.

The State presented evidence of Coleman's prior felony convictions for burglary of a habitation and possession of a controlled substance. On cross-examination, defense expert Dr. Paula Lundberg–Love admitted that Coleman had revealed to her a conviction for unlawfully carrying a weapon when she was seventeen in 1993, an arrest for evading arrest in 1995, and a parole violation in 1997 that resulted in her return to prison. A rational jury could determine from this evidence that, beyond a reasonable doubt, there was a probability that appellant would commit criminal acts of violence in the future so as to constitute a continuing threat to society. Point of error fifteen is overruled.

Mitigation Special Issue

In point of error sixteen, Coleman argues that the evidence is insufficient to show an absence of mitigation to support the jury's negative finding on the mitigation special issue. We have said, however, that we will not review the jury's finding regarding the mitigation special issue for sufficiency of the evidence because the determination as to whether mitigating evidence calls for a life sentence is left to the discretion of the jury. FN53 Point of error sixteen is overruled. FN53. Green v. State, 934 S.W.2d 92, 106–07 (Tex.Crim.App.1996); Colella v. State, 915 S.W.2d 834, 895 (Tex.Crim.App.1995).

Definitions

In point of error eleven, Coleman alleges that the mitigation special issue was unconstitutionally vague and indefinite in violation of the Fourteenth Amendment and the Texas Constitution for failing to provide a definition of “mitigating evidence.” In point of error nineteen, Coleman alleges the trial judge deprived her of her rights to due process and the protection against cruel and unusual punishment by rejecting her request that the jury be instructed on the definitions of “criminal acts of violence” and “probability.” We have previously held that a trial judge need not define the terms used in the special issues because the jury is presumed to understand them without instruction.FN54 Points of error eleven and nineteen are overruled.FN54. Blue v. State, 125 S.W.3d 491, 504–05 (Tex.Crim.App.2003); Martinez v. State, 924 S.W.2d 693, 698 (Tex.Crim.App.1996); Garcia v. State, 887 S.W.2d 846, 859 (Tex.Crim.App.1994); Earhart v. State, 877 S.W.2d 759, 767 (Tex.Crim.App.1994).

Constitutionality of Death–Penalty Scheme

In her fourteenth point of error, Coleman complains that the Texas death-penalty scheme is unconstitutional because the State is not required to prove the absence of sufficient mitigating circumstances beyond a reasonable doubt. We have addressed and rejected this and similar arguments in the past. FN55 Point of error fourteen is overruled. FN55. Perry v. State, 158 S.W.3d 438, 446–48 (Tex.Crim.App.2004); Blue, 125 S.W.3d at 500–01.

In point of error seventeen, Coleman complains that she was deprived of due process under the Fifth, Eighth, and Fourteenth Amendments because the State has unfettered discretion in seeking the death penalty. We have previously addressed and rejected this complaint.FN56 Point of error seventeen is overruled. FN56. Perry, 158 S.W.3d at 446–47; Blue, 125 S.W.3d at 500–01.

In point of error eighteen, Coleman complains that she was deprived of her rights to due process and the protection against cruel and unusual punishment because the jury was instructed that at least ten “no” votes were required to return a negative answer to the mitigation special issue. Coleman also complains that jurors were not instructed regarding the consequences of their deliberations. We have previously addressed these issues and find no reason to do so again. Point of error eighteen is overruled. FN57. Prystash v. State, 3 S.W.3d 522, 536 (1999); McFarland v. State, 928 S.W.2d 482, 519 (1996); Lawton v. State, 913 S.W.2d 542, 558–59 (1995).

In point of error twenty, Coleman challenges the constitutionality of Article 37.071 Section 2(b)(1) of the Texas Code of Criminal Procedure. Coleman argues that Article 37.071 diminishes the State's burden of proof because it allows the jury to answer the future-dangerousness special issue “yes” based on a probability standard, rather than a beyond a reasonable doubt standard. We have previously rejected this and similar arguments.FN58 Point of error twenty is overruled. FN58. Robison v. State, 888 S.W.2d 473, 481 (Tex.Crim.App.1994); see also Rayford v. State, 125 S.W.3d 521, 533 (Tex.Crim.App.2003); Kemp v. State, 846 S.W.2d 289, 308–09 (Tex.Crim.App.1992).

Execution Protocol

In point of error twenty-one, Coleman alleges that the use of pancuronium bromide in the chemical mixture used to execute prisoners in Texas violates the prohibition against cruel and unusual punishment. Coleman's execution is not imminent. The method by which the lethal injection is currently administered is not determinative of the way it will be administered at the time of her execution.FN59 Thus, her claim is not ripe for review. FN60 Point of error twenty-one is overruled. FN59. Gallo v. State, 239 S.W.3d 757, 780 (Tex.Crim.App.2007).

Coleman v. Thaler, 716 F.3d 895 (5th Cir. 2013). (Habeas)

Background: Following affirmance of her capital murder conviction and death sentence, 2009 WL 4696064, petitioner sought federal habeas relief. The United States District Court for the Northern District of Texas, John McBryde, J., 2012 WL 171549, denied the petition. Petitioner requested a certificate of appealability (COA).

Holdings: The Court of Appeals, Patrick E. Higginbotham, Circuit Judge, held that: (1) defense counsel were not objectively unreasonable in declining to inquire whether nine-year old victim's mother would testify; (2) defendant was not prejudiced by counsel's failure to call her aunt and sister as witnesses; and (3) defendant was not prejudiced by counsel's alleged failure to obtain neuropsychological testing of defendant. Request denied.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Texas prisoner Lisa Ann Coleman was convicted of capital murder and sentenced to death. A federal district court denied her petition for habeas relief, a judgment she seeks to appeal on three grounds. Because jurists of reason would not disagree with or find debatable the district court's rejection of her claims, we deny her request for a Certificate of Appealability.

I. Factual and Procedural History
A. Conviction

This case arises out of the death of nine-year-old Davontae Williams. On the morning of July 26, 2004, emergency services were summoned to Davontae's home upon report of his “breathing difficulty.” Paramedic Troy Brooks arrived at the residence only minutes later to find Davontae “obviously dead,” inferring that Davontae had passed away several hours earlier. Davontae, Brooks testified, was clad only in bandages and a diaper, so “emaciated and underweight” that it was “shocking.” Brooks and another paramedic each believed that nine-year-old Davontae weighed only twenty-five pounds. FN1. Davontae weighed 35.8 pounds.

Crime Scene Investigator Regina Taylor testified that Davontae had “numerous injuries throughout ... his entire body,” including a disfigured ear, swollen hands, a slit in his lip, and “ligature marks around his wrists and ankles.” FN2 Pediatrician Nancy Kellogg identified over 250 wounds on his corpse. Dr. Konzelmann testified that injuries to Davontae's hands, arms, and ankles were consistent with his having been bound repeatedly. Konzelmann initially believed that Davontae had “life-threatening blunt-force injuries, perhaps bleeding on the brain, broken bones, et cetera” that caused his death.

FN2. Although Taylor described the injury to Davontae's lip as having “already healed up,” she was evidently still able to identify it. Detective Jim Ford, moreover, described the injury by stating, “[h]e had an injury to his lip right here where it's like it was an old injury, it didn't heal.” And Dr. Konzelmann, who autopsied Davontae's body, described “significant splitting and ulceration of the lip, which would make it not only very painful to eat, but would very likely make it mechanically very difficult to take liquid, too. It would tend to dribble out. When people drink from a cup, they use the lower lip to make a seal, and this would more or less not seal.”

Ultimately, however, Dr. Konzelmann deemed the cause of Davontae's death to be malnutrition with pneumonia. Dr. Peerwani, Chief Medical Examiner for Tarrant County, further testified that Davontae's pneumonia resulted from his malnutrition. And although Davontae was born prematurely, Dr. Kellogg explained that Davontae previously had “a normal growth velocity;” a metabolic disease, she inferred, was not responsible for his malnutrition. According to the State of Texas, however, Lisa Coleman was.

Lisa spent much of her time living with Marcella Williams, Davontae's mother. Lisa and Marcella were involved romantically and had been for several years. In 1999, for example, Child Protective Services (CPS) removed Davontae from Marcella's custody because Lisa was abusing him physically. CPS returned Davontae to Marcella on the condition that he “not be around Lisa Coleman.” Lisa nevertheless continued to interact with Davontae. Davontae's sister Destinee testified that Lisa would tie up Davontae with an extension cord. Lisa denied use of an extension cord, but admitted that she and Marcella had tied up Davontae on “several occasions.” FN3 Lisa further admitted to whipping Davontae with a belt, but claimed to have stopped doing so by March of 2004. She also admitted to causing Davontae's lip injury when, after she hit and pushed him, he fell into a bar stool.FN4 But she denied knowledge of a golf club found in Marcella's apartment—a club that almost certainly had Davontae's blood on its head FN5 and that likely had Lisa's DNA on its handle.FN6 And she denied locking Davontae in a pantry—one with a lock several feet off the ground and what appeared to be a pool of urine inside it.

FN3. The defense argued that Davontae was a difficult child and that Marcella and Lisa were ill-equipped to raise him. Lisa acknowledged, for example, that “[a]bout a month and a half ago Davontae sneaked downstairs in the middle of the night and stood on a chair and turned on the stove and was going to cook him some eggs. He already had the eggs broken up in a bowl with salt and pepper on them. Marcella and I were afraid that [he] was going to poison himself or set the house on fire in the middle of the night, so I tied his arms with a shirt.” FN4. Marcella's sister Latravier Williams saw Davontae in mid-May 2004 but did not notice any lip injury, suggesting that it was of recent origin. FN5. Carolyn Van Winkle from the Biology DNA section of the County Medical Examiner's Crime Lab testified that a blood stain on the head of the golf club “was a male DNA profile and it was the same as Davontae Williams' DNA profile.” She further testified that “the probability of selecting an unrelated individual at random that would have the same DNA profile that was obtained from the golf club head ... is approximately one in 54 quintillion in Caucasians, one in approximately eight quintillion in African–Americans, and one in approximately 44 quintillion in Southwest Hispanics.” FN6. Van Winkle testified that the grip of the golf club had on it a mixture of DNA. She was able to exclude Marcella from the set of possible contributors, but Lisa was “not excluded.” “99.9 percent of unrelated individuals would be expected to be excluded,” Van Winkle added, “but [Lisa] was not.”

Toward the end of his life, Davontae did receive some treatment. He appeared to have been given TheraFlu, Alka Seltzer, and NyQuil.FN7 The ointments, creams, and bandages placed on his body evinced an attempt to treat his wounds. And evidence suggests that he ingested chicken noodle soup, PediaSure, and Pedialyte prior to his death. But Dr. Konzelmann testified that the food he received was “inadequate [on the whole], too late, and possibly too much [for a malnourished person].” FN7. Relying on pathologist Dr. Lesther Winkler, the defense argued that Davontae died from “aspiration pneumonia;” essentially, that he “drowned [i]n his own vomit,” an accidental death.

Dr. Konzelmann also opined that “[t]he attempt to treat ... is as much an attempt to prevent [Davontae] from coming to the attention of the physicians who would have reported” his condition. Lisa essentially acknowledged as much; according to a CPS investigator, she stated that “Marcella did not want to take [Davontae] to a doctor because she was afraid that once they saw the bruises and marks on him, that CPS would be called and ... her children would be taken away.” She likewise admitted, according to a different CPS investigator, that “Marcella would tell people when they would ask where Davontae was that he was with her people [even though] he was actually in the apartment.”

Texas charged Lisa with capital murder, a crime that includes murders committed intentionally “in the course of committing or attempting to commit kidnapping.” FN8 Lisa, the State argued, had at least aided and abetted Marcella in kidnapping Davontae in his own home: restraining him “with intent to prevent his liberation by ... secreting or holding him in a place where he is not likely to be found.” FN9 After fifty-six minutes of deliberation, a unanimous jury found Lisa guilty.

FN8. Tex. Penal Code § 19.03(a)(2). The current version of Texas's capital murder statute defines capital murder to include certain murders in which the victim is “an individual under 10 years of age.” Tex. Penal Code at § 19.03(a)(8). At the time of Davontae's death and Lisa's conviction, however, that provision reached only victims under six years of age. FN9. Tex. Penal Code § 20.01(2) (defining “abduct”); see also Tex. Penal Code § 20.03(a) (providing that “[a] person commits [kidnapping] if he intentionally or knowingly abducts another person”).

B. Sentence

At the beginning of the punishment phase, Lisa pleaded true to a Habitual Offender Notice and the court brought forward all of the evidence admitted during the guilt/innocence phase. After brief testimony by the State's only witness, the defense called seven witnesses to describe Lisa's difficult past and project a non-violent future. According to the evidence, Patricia Coleman became pregnant with Lisa when she was only thirteen years old, after her stepfather, James Bunch, molested her. Patricia was ill-equipped to parent; young and afflicted by mental challenges, she failed to prevent Lisa from being abused by other family members. Lisa was spanked at four months old for crying, whipped with extension cords, and sexually abused by her Uncle Leotis for at least three years. Lisa was also knifed in the back by a cousin at eleven years old—moments after she learned from her cousins' taunts that she was a product of molestation.

Lisa spent much of her childhood in foster care, beginning when she was only three years old. Her first foster home, in which she was likely sexually abused, burned down about two-and-a-half years after she arrived. While still in foster care, Lisa felt abandoned because her mother Patricia would often miss scheduled visits and rarely see her. At some point, however, Patricia did begin calling Lisa “Pig,” a nickname that stuck until the time of trial and was cause for ridicule when Lisa was a child in school. This upbringing, expert testimony suggested, would make it difficult for Lisa to be a good parent. FN10. An expert admitted on cross-examination that Davontae's injuries looked “torturous.”

Lisa's later years were also troubled. She began using drugs at thirteen years old and started drinking at fourteen. At sixteen, she gave birth to her own child. And at some point, she was diagnosed with bipolar disorder. Despite her upbringing, Lisa was described by family members as “playful” and “very good with kids.” Lisa's younger sister Yvonne further testified that Lisa was “always there for [her]” and that she would “go crazy” if Lisa was sentenced to death. Testimony also suggested that Lisa would not be a future danger; although Davontae was a difficult child to parent, Lisa had no enemies in jail FN11 and would be closely supervised while imprisoned. FN11. At some point in her life, however, Lisa had been in a gang.

The jury retired to deliberate just before 3pm on June 21, 2006. Fewer than four hours later, it found that Lisa would probably commit criminal acts of violence in the future; that she at least anticipated Davontae's life would be taken; and that no sufficient mitigating circumstances warranted a sentence of life imprisonment. Bound by state law, the court sentenced Lisa to death.

C. Subsequent Proceedings

In December 2009, on direct review, the Texas Court of Criminal Appeals affirmed Lisa's sentence and conviction.FN12 After unsuccessfully seeking a writ of habeas corpus from the Texas state-court system, she timely petitioned for federal habeas relief in the Northern District of Texas. FN13 The district court denied her petition on its merits in January 2012.FN14

FN12. Coleman v. State, AP–75,478, 2009 WL 4696064 (Tex.Crim.App. Dec. 9, 2009). FN13. Coleman v. Thaler, 4:11–CV–542–A, 2012 WL 171549 (N.D.Tex. Jan. 20, 2012). FN14. Id.

D. Appeal

Lisa now seeks a Certificate of Appealability (COA) so that she may appeal on three grounds: First, she argues that her legal team failed to investigate facts relevant to her conviction for capital murder, in violation of her Sixth Amendment right to counsel. Second, she argues that her legal team failed to investigate and present mitigation evidence, also in violation of her right to counsel. Third, she argues that she is incarcerated for an offense of which she is actually innocent, in violation of the Due Process Clause of each of the Fifth and Fourteenth Amendments.

II. Standard of Review
A. Habeas Relief

When a person is in custody pursuant to a state-court judgment, we may “entertain [her] application for a writ of habeas corpus ... only on the ground that [s]he is in custody in violation of the Constitution or laws or treaties of the United States.” FN15 Even when we may entertain an application, however, our review of individual claims is circumscribed. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that when a habeas petitioner raises a claim that was adjudicated on the merits in state court, we may not grant her petition unless the adjudication resulted in a decision that was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding;” FN16 or was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” FN17

FN15. 28 U.S.C. § 2254(a). FN16. Id. § 2254(d)(2). FN17. Id. § 2254(d)(1).

Our focus is on law established at the time of the state-court decision, irrespective of when the petitioner's conviction became final. See Greene v. Fisher, ––– U.S. ––––, 132 S.Ct. 38, 42, 44, 181 L.Ed.2d 336 (2011). Our precedents are relevant, at most, only to the extent that they reflect law established by the Supreme Court. See Parker v. Matthews, ––– U.S. ––––, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012) (per curiam) (citing Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1865–66, 176 L.Ed.2d 678 (2010)).

Whether a decision is “contrary to” or an “unreasonable application” of clearly established law involves two distinct inquiries. A state-court decision is “contrary to” established law when a court “applies a rule that contradicts the governing law” or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” FN18 By contrast, a state-court decision is an “unreasonable application” of established law when it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” FN19 The touchstone of this latter inquiry is whether the state court's application was “objectively unreasonable;” FN20 clear error is insufficient,FN21 and the more general the rule of law at issue, “the more leeway courts have in reaching outcomes in case-by-case determinations.” FN22 If “fairminded jurists could disagree” about the correctness of the state court's decision, that decision was not unreasonable. FN23

FN18. Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) [hereinafter Terry Williams ]. FN19. Id. at 407–08, 120 S.Ct. 1495. FN20. Price v. Vincent, 538 U.S. 634, 643, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003). FN21. See Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.”). FN22. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004); see also id. (“Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity.”). FN23. Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough, 541 U.S. at 664, 124 S.Ct. 2140) (internal quotation marks omitted).

B. Certificates of Appealability

A habeas petitioner must obtain a COA before she may appeal from a district court's denial of her petition.FN24 We may issue such a certificate “only if the [petitioner] has made a substantial showing of the denial of a constitutional right.” FN25 When a district court denies relief on the merits of a claim, the petitioner must “demonstrate that reasonable jurists would find the ... court's assessment of the [claim] debatable or wrong.” FN26

FN24. See 28 U.S.C. § 2253(c)(1). FN25. Id. § 2253(c)(2). FN26. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see also Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“A petitioner satisfies [the ‘substantial showing’] standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.”).

Although we must review federal district courts' habeas rulings in light of the deference due to state-court judgments on the merits,FN27 a petitioner seeking a COA need not demonstrate that any jurist would grant her habeas petition.FN28 A COA requires only a debatable claim—not a claim on which the petitioner is likely to prevail. Moreover, “any doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner.” FN29

FN27. See Miller–El, 537 U.S. at 341, 123 S.Ct. 1029; see also Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (“Hence, in determining whether a COA should issue in this case, the question is not whether reasonable jurists could debate the correctness of the [state court's] rejection of [Lisa's] claims, but whether reasonable jurists could debate the district court's denial of habeas relief under the deferential standard of review mandated by [AEDPA].”). FN28. See Miller–El, 537 U.S. at 338, 123 S.Ct. 1029. FN29. Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005).

III. Ineffective Assistance Claims

Petitioner claims that her counsel was ineffective for failing to investigate certain evidence that may have been exculpatory and for failing to investigate evidence that may have mitigated her punishment. We first set out law relevant to both claims and then discuss each specifically.

A. Strickland and Ineffective Assistance

The Sixth Amendment entitles a criminal defendant to the assistance of counsel for her defense.FN30 It is not enough that “a person who happens to be a lawyer is present at trial along side the accused;” FN31 instead, “the right to counsel is the right to the effective assistance of counsel.” FN32 Both at trial and in capital sentencing proceedings, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result.” FN33

FN30. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to ... to have the Assistance of Counsel for his defence.”). FN31. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). FN32. Id. at 686, 104 S.Ct. 2052 (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)) (emphasis added). FN33. Id.

In Strickland v. Washington, the Supreme Court explained that to obtain reversal of a conviction or death sentence based on ineffective assistance, a defendant must make two showings. First, she must show that her “counsel's performance was deficient.” FN34 Second, she must show “that the deficient performance prejudiced the defense.” FN35 The test is conjunctive. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” FN36

FN34. Id. at 687, 104 S.Ct. 2052. FN35. Id. In certain circumstances not relevant here, prejudice is presumed. See id. at 692, 104 S.Ct. 2052. FN36. Id. at 687, 104 S.Ct. 2052.

To demonstrate deficient performance, “the defendant must show that counsel's representation fell below an objective standard of reasonableness” FN37 as measured by “prevailing professional norms.” FN38 Our scrutiny of counsel's performance is highly deferential. We “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” FN39 To overcome this presumption, “[a] convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” FN40 Of central importance here, “choices made after less than complete investigation are reasonable [only] to the extent that reasonable professional judgments support the limitations on investigation.” FN41 Factors affecting whether it is reasonable not to investigate include whether counsel has “reason to believe that pursuing certain investigations would be fruitless or even harmful,” FN42 resource constraints,FN43 and whether the information that might be discovered would be of only collateral significance.FN44

FN37. Id. at 688, 104 S.Ct. 2052. FN38. Id. FN39. Id. at 689, 104 S.Ct. 2052 (quoting Michel v. State of La., 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). FN40. Id. at 690, 104 S.Ct. 2052. FN41. Id. at 691, 104 S.Ct. 2052. FN42. Id.; see also Wiggins v. Smith, 539 U.S. 510, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Terry Williams, 529 U.S. at 395, 120 S.Ct. 1495 (“[Counsel] failed to conduct an investigation ... not because of any strategic calculation but because they incorrectly thought that state law barred access to such records.”); Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). FN43. See Richter, 131 S.Ct. at 789. FN44. See Rompilla v. Beard, 545 U.S. 374, 389, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); see also id. at 394, 125 S.Ct. 2456 (O'Connor, J., concurring).

To demonstrate prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” FN45 The “reasonable probability” standard is less demanding than a “more likely than not” standard; FN46 “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome” of a proceeding.FN47 Accordingly, “[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” FN48 And “[w]hen a defendant challenges a death sentence[,] ... the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” FN49 In answering either question, we must consider the totality of the evidence before the decisionmaker,FN50 as well as whether presenting additional, exculpatory evidence would have opened the door to additional, inculpatory evidence. FN51

FN45. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. FN46. Id. at 693, 104 S.Ct. 2052. FN47. Id. at 694, 104 S.Ct. 2052; see also id. (“The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.”). FN48. Id. at 695, 104 S.Ct. 2052. FN49. Id. FN50. See id. at 695–96, 104 S.Ct. 2052; see also Wong v. Belmontes, 558 U.S. 15, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (per curiam) (“Additional evidence on these points would have offered an insignificant benefit, if any at all.”). FN51. See Belmontes, 558 U.S. at 15, 130 S.Ct. 383 (“[I]t is necessary to consider all the relevant evidence that the jury would have had before it if Schick had pursued the different path—not just the mitigation evidence Schick could have presented, but also the Howard murder evidence that almost certainly would have come in with it.”); see also Feldman, 695 F.3d at 380–81.

B. Conviction

Petitioner first argues that her attorneys failed to investigate and present testimony from Tonya Coleman Brown, Sharon Coleman, and Marcella Williams. Petitioner raised these claims during state post-conviction proceedings, where they were rejected on the merits for want of deficiency and prejudice. We consider each claim in turn. Given the intersecting standards of review, we will grant a COA only if reasonable jurists would agree that, or at least find debatable whether, the state court unreasonably applied Strickland. FN52. Petitioner is not entitled to an evidentiary hearing. See Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Petitioner's reliance on Morris v. Thaler, 425 Fed.Appx. 415 (5th Cir.2011) (per curiam) is misplaced. There, we remanded for an evidentiary hearing after determining that a state court acted unreasonably. See id. at 422 n. 1. Even if the state court acted unreasonably, an evidentiary hearing would still be inappropriate here. See 28 U.S.C. § 2254(e).

1. Marcella Williams

On May 1, 2008, Marcella Williams gave a statement in which she claimed, among other things, that Davontae played outside with other children several times each week, and that any restraint of Davontae was done “with [her] permission or at [her] direction.” Her statement, petitioner contends, contains information “vital and important to Coleman's defense to the kidnapping allegation.” This claim is without force.

On post-conviction review, the state trial court found that Williams faced the death penalty for Davontae's death “[d]uring the entire pendency of [Lisa's] case through the jury verdict.” It also found that she had given “incriminating statements to the police and CPS” regarding Lisa. Most significantly, it found that both of Lisa's attorneys were familiar with Williams's court-appointed attorneys, and that they “knew any request to interview [Williams] would be refused due to the severity of the charges” that she faced and Williams's prior, incriminating statements.FN53 Given these facts, Lisa's counsel were not objectively unreasonable in declining to inquire whether Williams would testify; they had good “reason to believe that ... investigation[ ] would be fruitless or even harmful.” FN54 Reasonable jurists would not debate whether the state court was unreasonable in so holding.FN55

FN53. The state court based its findings on affidavits submitted by Lisa's trial counsel. It appears to have slightly overstated the contents of those affidavits. For example, only one of Lisa's attorneys claims that he knew both of Williams's lawyers; the other claimed that he knew one of Williams's lawyers. Regardless, the affidavits are unambiguous and uncontradicted on the point of greatest significance: Lisa's attorneys knew that Williams had a competent attorney who would not allow her to testify. Additionally, Williams told Detective Ford that “[s]ometimes after Lisa had been alone with Davontae I would notice unexplainable injures on Davontae” and that Lisa sometimes tied up Davontae with an electrical cord.

FN54. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. FN55. Because Lisa fails to demonstrate deficient performance, we need not reach the prejudice question. We note, however, that Williams's statement does not claim that she would have testified if asked to do so. Cf. Day v. Quarterman, 566 F.3d 527, 538 (5th Cir.2009) (“[T]he petitioner ... must demonstrate that the witness was available to testify and would have done so.”).

2–3. Tonya Coleman Brown and Sharon Coleman

Petitioner further contends that her counsel failed to interview and call as a witness Tonya Coleman Brown and Sharon Coleman. On April 30, 2008, Brown averred: My name is Tonya Coleman Brown. I reside at [redacted]. My date of birth is [redacted]. I have personal knowledge of the facts stated herein and they are true and correct. I am the Aunt of Lisa Ann Coleman. During the months leading up to July 26, 2004, I visited in the home of Lisa Ann Coleman and Marcella Williams approximately one or two times a month. When I visited with Lisa and Marcella, I constantly saw Davontae Williams playing with other children, running around, and acting like a normal child. I never saw Davontae restrained or tied up in any manner whatsoever. In addition, every time I saw Davontae he appeared to be in good health. I was never contacted by Lisa Coleman's lawyers or any other person prior to Lisa's trial. If I had been contacted, I would have related these facts to that person and been ready and able to testify to the facts stated herein.

On the same day, Sharon Coleman averred: My name is Sharon Coleman. I reside at [redacted]. My date of birth is [redacted]. I have personal knowledge of the facts stated herein and they are true and correct. I am the sister of Lisa Ann Coleman. During the months leading up to July 26, 2004, I lived about eight apartments away from Lisa Coleman and Marcella Williams and visited in their home on a daily basis. During this time, I constantly saw Davontae Williams playing outside with other children. I also saw Davontae playing outside in various places such as the park and the playground with his sisters and other children from the neighborhood. I constantly saw D[a]vontae running around and acting like a normal child. I remember many times that neighbor children would go to Davontae's apartment and he would go outside and play with them. During all the time I spent at the home of Lisa Coleman and Marcella Williams, I never saw Davontae restrained or tied up in any manner whatsoever. In addition, every time I saw Davontae he appeared to be in good health. I was never contacted by Lisa Coleman's lawyers or any other person prior to Lisa's trial. If I had been contacted, I would have related these facts to that person and been ready and able to testify to the facts stated herein.

On post-conviction review, the state trial court ordered each of Fred Cummings and Michael Heiskell, Lisa's trial counsel, to submit an affidavit addressing these claims. In his affidavit, Cummings explained that Sharon and Tonya each spoke with a member of the defense team before trial. His affidavit reads, in pertinent part: Within two weeks of my appointment to represent [Lisa] ..., we had a defense team in place that consisted of two death penalty qualified counsel; ... an experienced private investigator; and Toni Knox, an experienced mitigation investigator. We met as a group on at least five occasions to discuss legal issues, investigation details, and mitigation themes in our formulation of a defense for [Lisa].... I communicated extensively by telephone and email with Mr. Heiskell and Ms. Knox and met with each individually during the eighteen months prior to and during trial.... Ms. Knox interviewed over two dozen family members, including Sharon Coleman and Tonya Coleman, and prepared summaries of those interviews that were shared with each team member as email attachments.... The strengths and weaknesses of each of those family members as potential witnesses were considered and discussed.

The record suggests that Knox spoke with Sharon and Tonya primarily regarding mitigation issues, and the state court did not find otherwise. We need not consider whether effective counsel would have investigated further, however, because petitioner has not demonstrated prejudice. “This Court has repeatedly held that complaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative.” FN56 It is particularly difficult to credit uncalled witnesses' affidavits where, as here, the record directly contradicts their claim that they were “never contacted.” Regardless, even considered together, the affidavits fall short of debatably establishing a “reasonable probability” that the result of Lisa's trial would have been different. FN56. Day, 566 F.3d at 538.

Considered together, Tonya and Sharon's affidavits appear to make four claims. First, Davontae was seen constantly playing outside with other children. Second, he was “acting like a normal child.” Third, neither Tonya nor Sharon ever saw Davontae “tied up” or “restrained.” And fourth, Davontae always appeared to be in good health. Two of these claims are of little import. The third literally means only that Tonya and Sharon never saw Davontae restrained; the affidavits do not speak to whether he was actually restrained—and if they did, their statements would be contradicted by both overwhelming physical evidence and Lisa's admission to the contrary. The fourth claim, that Davontae was in good health, would have likewise had no probity, let alone a reasonable probability of convincing jurors to disregard the gruesome photographs and extensive testimony regarding Davontae's poor health.

That Davontae allegedly played outside constantly is of greater concern; it goes to the component of the capital murder charge on which the State's proof was weakest: kidnapping. Even here, the affidavits fall short. Tonya claims to have seen Davontae playing outside “constantly,” but admits to having visited only one or two times each month. Sharon's affidavit claims more routine observation. But according to Knox's notes, Sharon admitted “that in order to get [Davontae] to go outside for a picture or to play with the other children, everyone in the apartment had to go outside and lock the doors.” And the affidavits do not contradict the evidence that medical treatment was withheld from Davontae to avoid a call to CPS. The remaining claim, that Davontae acted like a “normal child,” would (if anything) have increased the probability of petitioner's conviction. Part of counsel's strategy at trial was to describe Davontae as a difficult child to raise, one whose mistreatment resulted from Lisa and Williams's lack of parenting abilities. The more “normal” Davontae, the more abhorrent his supposed caretakers' response. In sum, petitioner asks us to overturn her conviction based on two nearly identical statements, offered by family members, which in several places flatly contradict the inescapable weight of the evidence before the state court. We cannot do so. Reasonable jurists would not conclude that, or even debate whether, petitioner has demonstrated prejudice—let alone whether the state court's determination otherwise was unreasonable.

C. Mitigation

Petitioner next claims that her counsel failed to investigate adequately and present all available mitigation evidence. Petitioner raised this claim during state post-conviction proceedings, where it was rejected on the merits for want of deficiency and prejudice. Her claim appears to rest on two theories: (1) her attorneys should have obtained neuropsychological testing and (2) “the jury was not presented evidence regarding Lisa's own horrific upbringing and her lack of understanding or knowledge of basic parenting skills.”

Neither theory has merit. Regardless of whether petitioner's attorneys should have obtained neuropsychological testing, Lisa identifies no evidence establishing what that testing would have revealed.FN57 She likewise does not explain why that evidence would have been more than cumulative of the evidence presented during the punishment phase, including that Lisa had been diagnosed as bipolar. Without knowing what evidence counsel failed to uncover, we cannot conclude that the evidence would have had a reasonable probability of changing the outcome of petitioner's sentencing. Nor could reasonable jurists debate that conclusion—let alone whether the state court reached it unreasonably.

FN57. The state court found that “[a]lthough [Lisa] suggests that additional mitigation evidence could have been discovered and presented at trial, she fails to present any evidence to support her allegation and fails even to identify the sources of such evidence.” Although Lisa points out that her attorneys unsuccessfully moved for a continuance to obtain additional mitigation evidence before the punishment phase, this does not explain why her post-conviction writ lacks adequate support.

The second theory is similarly unsupported with respect to prejudice. And with respect to deficiency, we agree with the district court that “[t]he state habeas record affirmatively discloses that the trial defense team thoroughly investigated potential mitigation evidence” and presented that information adequately.FN58 Because reasonable jurists would not debate this conclusion (or whether the state court reached that conclusion unreasonably), we cannot grant a COA on this claim. FN58. Coleman v. Thaler, 4:11–CV–542–A, 2012 WL 171549, at *16 (N.D.Tex. Jan. 20, 2012).

IV. Actual Innocence Claim

Petitioner finally contends that she is “actually innocent” of capital murder because she did not kidnap Davontae. Her theory is essentially a repackaged version of her first ineffective assistance claim: the affidavits of Marcella Williams, Tonya Coleman Brown, and Sharon Coleman, she reasons, establish that she did not commit a kidnapping. She raised this claim during state post-conviction proceedings, where it was rejected on the merits.

“ ‘Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.’ ” FN59 In Herrera v. Collins, the Supreme Court assumed, arguendo, “that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would ... warrant habeas relief if there were no state avenue open to process such a claim.” FN60 But we have rejected that assumption.FN61 And we have implied that, even if the assumption were embraced, the availability of clemency in Texas would defeat a freestanding innocence claim.FN62

FN59. Dowthitt v. Johnson, 230 F.3d 733 (5th Cir.2000) (quoting Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). FN60. Id. (quoting Herrera, 506 U.S. at 417, 113 S.Ct. 853) (some internal quotation marks omitted). FN61. See Graham v. Johnson, 168 F.3d 762, 787 (5th Cir.1999) (citing Lucas v. Johnson, 132 F.3d 1069, 1074–76 (5th Cir.1998)). FN62. See id. (“Moreover, there is a state avenue open to [petitioner]: He retains his right to petition the Texas Board of Pardons and Paroles for clemency.”); Lucas, 132 F.3d at 1075.

Perhaps for those reasons, petitioner suggests that she instead presents a “ Schlup type claim.” In Schlup v. Delo, the Supreme Court distinguished freestanding, substantive innocence claims—in which a petitioner asserts that her innocence entitles her to habeas relief—from procedural innocence claims—in which a petitioner seeks to “have [her] otherwise barred constitutional claim considered on the merits.” FN63 The distinction makes clear that petitioner's claim is substantive rather than procedural. Although her innocence claim is similar to her first ineffective-assistance claim, she is not using it to obtain review of that ineffective-assistance claim. Indeed, she has no reason to do so: we can consider and have considered the merits of that claim, which is subject to no procedural bar. As reasonable jurists would not debate this conclusion, we cannot grant a COA. FN63. Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Herrera, 506 U.S. at 404, 113 S.Ct. 853).

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