March 26, 2014
Media Advisory: Anthony Doyle scheduled for execution

AUSTIN – Pursuant to an order from Criminal District Court No. 3 of Dallas County, Anthony Doyle is scheduled for execution after 6 p.m. on March 27, 2014. On May 10, 2004, Doyle was sentenced to die for the capital offense of murdering Hyun Cho while in the course of committing and attempting to commit robbery.

FACTS OF THE CASE

The Court of Criminal Appeals for the Fifth Circuit described the Jan. 16, 2003, murder of Hyun Cho as follows: In 2003, Doyle placed an order for delivery with the Chaha Donut shop, disguising his voice and saying his name was Mary. When Cho arrived to deliver the food, Doyle beat her to death with a baseball bat, put her body into a trash can, and attempted to clean the blood from the walls and floor. He took her car, cell phone, and credit cards and drove to meet his friends, to whom he indicated he had murdered someone, stating that he was not “playing” anymore. They attempted to use Cho’s credit cards to make purchases.

When Doyle learned that police had found Cho’s body, he fled. Police searched the house where he had committed the murder and found his bloodstained clothes, blood spatters on the floor and walls, marks from the trash can’s wheels, and other evidence. Doyle later abandoned Cho’s car at a carwash and threw her possessions into a nearby dumpster. The police found those items and the original receipt for the donut delivery. Doyle’s mother tried to convince him to come to the police station to talk to officers, and although he agreed, he never did but was arrested shortly thereafter. He eventually orally confessed to the crime under police questioning, taking more than two hours to write a ten-page confession.

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 with 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 punishment phase of trial, the State put on extensive evidence of Doyle’s propensity for aggressive behavior from an early age. Doyle’s fourth and fifth grade principal was required to deal with him on an almost daily basis for disciplinary issues – despite no evidence that Doyle’s behavior was caused by psychological issues, hyperactivity, or problems at home. In the fifth grade, Doyle’s behavior on the school bus was so disruptive that the driver became afraid for the safety of himself and the other children on the bus. The school originally decided that Doyle would have to be banned from riding the bus; however, at his mother’s request, Doyle was allowed to continue riding the bus – but he was physically restrained in his seat. In the sixth grade, Doyle was regularly in trouble at school for bullying, fighting, pushing, and hitting other students. He also talked back to and threatened teachers. In one instance, Doyle stabbed a fellow student in the back several times with a pencil for no apparent reason.

At one point after the sixth grade, Doyle created a situation of racial conflict, dividing the African-American and Hispanic students against the Anglo students, necessitating group counseling and intervention by the school staff to diffuse the situation. Other disciplinary problems included slapping, punching, and harassing other students, stealing, pushing people down, defacing school property, and skipping detentions. Doyle regularly blamed others for his behavior and minimized his involvement. He had a quick and bad temper.

In 1997, Doyle was adjudicated in juvenile court for assault, theft, and criminal mischief, and he was placed on probation in the custody of his parents. In 1998, he was adjudicated for the offense of evading arrest. Doyle also harassed a faculty member of his school by repeatedly calling the teacher’s home late at night and cursing at whomever would answer the phone. The teacher had the calls traced and pressed charges against Doyle, who was placed on juvenile probation. As a result, Doyle was removed from his parents’ custody and placed in the Dallas County Youth Village.

In February of 1999, Doyle entered a boot camp program. He was discharged from the program in March of the same year for repeated violent outbursts against the staff and other students. While at the Dallas County Youth Village, Doyle threatened a teacher who challenged him for not doing his homework. Despite the staff’s extra efforts to help Doyle, he was terminated unsuccessfully from the program for constant bad behavior, including fighting, bullying, disrespecting the staff, and arguing.

As an adult, Doyle was arrested for stealing a paint sprayer. In another incident, Doyle was in the process of fleeing a gas station without paying for gas. He broadsided a car in the street, abandoned his car, and was chased down by the police on foot. Consequently, he served time in the Dallas County Jail. At the time Doyle murdered Cho, he had connections with a gang known for numerous acts of violence.

While in jail awaiting trial for Cho’s murder, Doyle wrote letters to several friends in which he mentioned wanting to fight and having fights with other people in the jail. In one letter, Doyle blamed his circumstances on the betrayal of his “so-called friends” and threatened to harm his girlfriend and her family if given the chance to do so.

PROCEDURAL HISTORY

On April 2, 2003, Doyle was indicted in Criminal District Court No. 3 of Dallas County, Texas, for the capital offense of murdering Hyun Cho while in the course of committing and attempting to commit robbery.

On May 5, 2004, after Doyle pleaded not guilty, a jury found him guilty of the capital offense.

On May 10, 2004, after a separate punishment hearing, the court assessed Doyle’s punishment at death.

On May 10, 2006, the Texas Court of Criminal Appeals affirmed Doyle’s conviction and sentence in an unpublished opinion.

On Oct. 16, 2006, the U.S. Supreme Court denied Doyle’s petition for writ of certiorari.

On Nov. 7, 2005, Doyle filed a state application for writ of habeas corpus in the trial court. The trial court entered findings of fact and conclusions of law recommending that Doyle be denied relief. On Jan. 23, 2008, the Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied Doyle habeas relief.

On Jan. 14, 2009, Doyle filed a federal habeas petition in the U.S. District Court for the Northern District of Texas, Dallas Division. On June 25, 2012, the federal district court denied the petition. Doyle then sought permission to appeal this decision. On July 10, 2013, the U.S. Court of Appeals for the Fifth Circuit denied Doyle permission to appeal.

On Dec. 5, 2013, Doyle filed a petition for writ of certiorari in the U.S. Supreme Court. The high court denied the petition on Feb. 24, 2014.

Texas Execution Information Center by David Carson.

Anthony Dewayne Doyle, 29, was executed by lethal injection on 27 March 2014 in Huntsville, Texas for the murder and robbery of a food delivery woman.

On 16 January 2003, in Rowlett in Dallas County, Doyle, then 18, phoned a nearby doughnut shop from his parents' home and placed an order for two dozen doughnuts and two dozen breakfast tacos for delivery. When placing the order, Doyle disguised his voice and gave the name "Mary". When Hyun Cho, 37, arrived with his order, Doyle demanded money from her. When Cho told Doyle that she did not have any money, he hit her in the head with a baseball bat. He then placed her in a trash bin and attempted to clean the blood from his walls and floor. He also placed barbecue sauce over a large bloody area to disguise the blood and repainted one wall. He left the trash bin at a house across the alley.

Doyle then took the food and the victim's car, cell phone, and credit cards and drove to meet some friends. He told them he obtained the car by "hitting a lick," which is street slang for making money very quickly, as in via a robbery. As he shared the food with them, he stated he was not "playing" anymore. They attempted to make purchases with Cho's credit cards. Doyle later abandoned her car at a car wash and threw her possessions into a nearby dumpster.

A woman found Cho's body in her trash bin that same day and called the police, who were already looking for her, since she did not return from the delivery. When officers went to Doyle's parents' home, his sister told them she had just arrived home and noticed a wet brown spot on the carpet and smelled a strong odor of bleach and fresh paint. Police then searched the home and found Doyle's blood-stained clothes, blood spatters on the floor and walls, and tracks from the trash bin's wheels. They then found Cho's possessions in the dumpster, along with the doughnut delivery ticket.

Doyle was arrested the next day in Dallas. He gave a ten-page written confession. "I struck her in the head two times," Doyle stated. "After the second strike, I realized what I was doing and that I had really screwed up badly, so I dropped the bat and started to clean up the blood." A friend arrived shortly afterward. Together, he and his friend brought a trash bin into the house and turned it on its side. They "shoved the lady into the bin" and turned it upright, the confession stated. "When I looked into the bin, the woman looked as if she were breathing, and she also moved her arms as if she were trying to get up."

Doyle stated that he planned the robbery due to intense pressure from his parents and his girlfriend to earn money to help take care of his 3-week-old daughter. He directed officers to where he had hidden his bloody clothing and the murder weapon.

According to evidence presented at Doyle's trial, Cho was struck at least seven times on the head and had numerous other bruises on her hands, arms, and body. The defense argued that Doyle only intended to rob Cho, not murder her.

Doyle had disciplinary problems at school as early as the fourth grade. He was regularly in trouble for fighting, pushing, and hitting other students and for threatening teachers. In one instance, he stabbed a fellow student in the back with a pencil several times for no apparent reason. Doyle served time in a military boot-camp style juvenile detention facility from 1999 to 2001.

Doyle was arrested twice in 2002, the year before the murder. In June, he caused an auto accident when he was fleeing from a gas station without paying for gas. He abandoned his car and was chased down by the police on foot. He was charged with evading arrest. He pleaded no contest to failure to stop after a traffic accident, was fined $500, and was sentenced to 30 days in the Dallas County Jail. In August, he was charged with theft of a paint sprayer valued between $500 and $1,500. He pleaded no contest, was fined $500, and was given deferred adjudication with 18 months' probation. He was sent to a halfway house for violating probation and was released before the end of the year. While in jail awaiting trial for Cho's murder, Doyle wrote a letter to a friend in which he threatened to harm his girlfriend and her family if given the chance.

A jury found Doyle guilty of capital murder in May 2004 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in May 2006. All of his subsequent appeals in state and federal court were denied.

One of Doyle's appeals raised the theory that his confession was the product of a lifetime of coercion by state authorities. Coercive tactics employed by authorities including Doyle's school principal, his probation officer, and the staff of the halfway house had inculcated in Doyle a habit of confession, the appeal claimed. "That interpretation strains law and reason," the U.S. Fifth Circuit Court of Appeals wrote. "Doyle's counsel was not ineffective for failing to raise that claim."

Doyle kept his eyes closed during his execution. When the warden asked if he wanted to make a last statement, he shook his head from left to right. The lethal injection was then started. He was pronounced dead at 6:49 p.m.

Dallas Morning News

"Dallas-area man executed for delivery driver killing in Rowlett. (AP 27 March 2014 06:56 PM)

HUNTSVILLE — A Dallas-area man was executed Thursday evening in Texas for the robbery and slaying of a woman who was attacked while delivering food to his parents’ home 11 years ago. Anthony Doyle, 29, was given a lethal injection for the 2003 death of Hyun Mi Cho, who was beaten with a baseball bat, then robbed of her car, cellphone and credit cards. Evidence showed Doyle ordered the doughnuts and breakfast tacos that the 37-year-old Cho delivered. He shared the food with friends after stuffing the woman’s body in a neighbor’s trash can in an alley behind the home in Rowlett, a suburb just east of Dallas.

Doyle shook his head and said nothing inside the death chamber in Huntsville when a warden asked if he had a statement to make. The prisoner’s eyes closed as the sedative pentobarbital was injected. He took a few breaths, then began to snore quietly. Soon, he stopped moving. He was pronounced dead 25 minutes later, at 6:49 p.m. No one from Cho’s family attended the execution, but two witnesses picked by Doyle — a friend and a spiritual adviser — watched as he was put to death.

Doyle became the fourth Texas inmate executed this year and the last before the state — the nation’s most active when it comes to capital punishment — begins using a new batch of pentobarbital obtained through a different pharmacy.

Prison officials have refused to reveal the source of the replenished stockpile, arguing the information must be kept secret to protect the supplier’s safety. But a judge Thursday ordered them to disclose the supplier to attorneys for two inmates set to be executed next month. The attorneys filed a lawsuit Wednesday seeking an emergency order requiring state authorities to identify the drug provider and results of tests of its potency and purity. The prison agency plans to appeal the judge’s order.

About two hours before Doyle was put to death, the U.S. Supreme Court rejected a last-day appeal to block his execution. Doyle’s attorney had called for his execution to be delayed, but not over the drug issue. The lawyer said Doyle deserved a new punishment hearing because jurors at his 2004 capital murder trial were given unknowingly false evidence about Doyle’s inability to be rehabilitated while he was confined at a juvenile detention facility for his delinquent behavior years before Cho’s slaying.

Cho, from South Korea, had been in the U.S. about two years when she was killed. Her sister has said Cho was earning money to care for her ill parents. Police already had been searching for her after she didn’t return from the delivery Jan. 16, 2003, and began canvassing homes in the area after a neighbor discovered her body in his trash can.

When officers visited the home of Doyle’s parents, his sister told them about a wet brown spot on a carpet. Police then found blood spatter on the ceiling and kitchen walls and a strong odor of bleach and fresh paint. Evidence showed Doyle used barbecue sauce in an attempt to cover the blood and tried to clean the scene and repaint walls. He was arrested at a friend’s home in Dallas. He later told investigators he was under pressure from his girlfriend and others to support his 3-week-old daughter and couldn’t get a job. He gave police a 10-page written confession.

Huntsville Item

"Condemned killer quietly put to death." (March 27, 2014)

HUNTSVILLE — A Dallas County man was executed Thursday evening for robbing and beating to death an Asian delivery woman 11 years ago. Anthony Doyle, 29, was put to death for the murder of 37-year-old Hyun Mi Cho, who was delivering doughnuts and breakfast tacos, at Doyle’s parents’ house in Rowlett. Doyle struck her in the head with a baseball bat after she told him she did not have any money. Doyle never opened his eyes Thursday as he lay strapped to the gurney in the death ­­­­chamber. When the warden asked if he had a final statement to make, Doyle gestured “no” by shaking his head left to right. As the lethal dose of pentobarbital began to take effect, his breathing became heavy and he lost consciousness about 6:25 p.m. He was pronounced dead 25 minutes later.

Doyle stole Cho’s car, credit cards and cellphone. He shared the food with friends after stuffing the woman’s body in a neighbor’s trash can in an alley behind the home. He became the fourth Texas inmate executed this year and the last before the state begins using a new batch of pentobarbital obtained through a different pharmacy.

Prison officials have refused to reveal the source of the replenished stockpile, arguing the information must be kept secret to protect the supplier’s safety. But a judge Thursday ordered them to disclose the supplier to attorneys for two inmates set to be executed next month. The attorneys filed a lawsuit Wednesday seeking an emergency order requiring state authorities to identify the drug provider and results of tests of its potency and purity. The prison agency plans to appeal the judge’s order.

About two hours before Doyle was put to death, the U.S. Supreme Court rejected a last-day appeal to block his execution. Doyle’s attorney had called for his execution to be delayed, but not over the drug issue. The lawyer said Doyle deserved a new punishment hearing because jurors at his 2004 capital murder trial were given unknowingly false evidence about Doyle’s inability to be rehabilitated while he was confined at a juvenile detention facility for his delinquent behavior years before Cho’s slaying.

Cho, from South Korea, had been in the U.S. about two years when she was killed. Her sister has said Cho was earning money to care for her ill parents. Police already had been searching for her after she didn’t return from the delivery Jan. 16, 2003, and began canvassing homes in the area after a neighbor discovered her body in his trash can. When officers visited the home of Doyle’s parents, his sister told them about a wet brown spot on a carpet. Police then found blood spatter on the ceiling and kitchen walls and a strong odor of bleach and fresh paint. Evidence showed Doyle used barbecue sauce in an attempt to cover the blood and tried to clean the scene and repaint walls.

He was arrested at a friend’s home in Dallas. He later told investigators he was under pressure from his girlfriend and others to support his 3-week-old daughter and couldn’t get a job. He gave police a 10-page written confession.

ProDeathPenalty.Com

Hyun Cho was a native of South Koreo who was working at the Chaha Donut Shop in order to earn money to care for her ill parents. On January 16, 2003, Anthony Doyle placed an order for delivery of donuts and breakfast tacos with the shop, disguising his voice and saying his name was Mary. When Cho arrived at the home of Doyle's parents to deliver the food, Doyle beat her to death with a baseball bat after she told him she did not have any money.

He put her body into a neighbor's trash can, and attempted to clean the blood from the walls and floor. He took her car, cell phone, and credit cards and drove to meet his friends, to whom he indicated he had murdered someone, stating that he was not “playing” anymore. They attempted to use Cho’s credit cards to make purchases. When Doyle learned that police had been called after the neighbor found Cho’s body in the trash can, he fled. Police canvassed the neighborhood and searched the Doyle house, after being alerted to a wet brown spot on the carpet by Doyle's sister. They found his blood-stained clothes, blood spatters on the ceiling, floor and walls, marks from the trash can’s wheels, and other evidence such as bleach, fresh paint and barbecue sauce that had been used in an attempt to cover up the bloodstains on the carpet.

Doyle later abandoned Cho’s car at a carwash and threw her possessions into a nearby dumpster. The police found those items and the original receipt for the donut delivery. Doyle’s mother tried to convince him to come to the police station to talk to officers, and although he agreed, he never did but was arrested shortly thereafter at a friend's house in Dallas.

He eventually orally confessed to the crime under police questioning, taking more than two hours to write a ten-page confession. Doyle was convicted and sentenced to death. During the punishment phase of the trial, significant evidence was produced by prosecution and defense pertaining to Doyle’s character and history. The prosecution presented evidence of Doyle’s violent past, including numerous violent outbursts in school and at home; there was evidence of Doyle’s ties to a violent gang.

UPDATE: Anthony Doyle shook his head and said nothing inside the death chamber in Huntsville when a warden asked if he had a statement to make.

FoxNews

"Anthony Doyle, Texas man, executed for killing of Hyun Mi Cho." (Associated Press March 27, 2014)

HUNTSVILLE, Texas – A Dallas-area man was executed Thursday evening in Texas for the robbery and slaying of a woman who was attacked while delivering food to his parents' home 11 years ago. Anthony Doyle, 29, was given a lethal injection for the 2003 death of Hyun Mi Cho, who was beaten with a baseball bat, then robbed of her car, cellphone and credit cards. Evidence showed Doyle ordered the doughnuts and breakfast tacos that the 37-year-old Cho delivered. He shared the food with friends after stuffing the woman's body in a neighbor's trash can in an alley behind the home in Rowlett, a suburb just east of Dallas.

Doyle was pronounced dead at 6:49 p.m. -- 25 minutes after being injected with the sedative pentobarbital. He became the fourth Texas inmate executed this year and the last before the state -- the nation's most active when it comes to capital punishment -- begins using a new batch of pentobarbital obtained through a different pharmacy. Prison officials have refused to reveal the source of the replenished stockpile, arguing the information must be kept secret to protect the supplier's safety. But a judge Thursday ordered them to disclose the supplier to attorneys for two inmates set to be executed next month. The attorneys filed a lawsuit Wednesday seeking an emergency order requiring state authorities to identify the drug provider and results of tests of its potency and purity. The prison agency plans to appeal the judge's order.

About two hours before Doyle was put to death, the U.S. Supreme Court rejected a last-day appeal to block his execution. Doyle's attorney had called for his execution to be delayed, but not over the drug issue. The lawyer said Doyle deserved a new punishment hearing because jurors at his 2004 capital murder trial were given unknowingly false evidence about Doyle's inability to be rehabilitated while he was confined at a juvenile detention facility for his delinquent behavior years before Cho's slaying.

Cho, from South Korea, had been in the U.S. about two years when she was killed. Her sister has said Cho was earning money to care for her ill parents. Police already had been searching for her after she didn't return from the delivery Jan. 16, 2003, and began canvassing homes in the area after a neighbor discovered her body in his trash can. When officers visited the home of Doyle's parents, his sister told them about a wet brown spot on a carpet. Police then found blood spatter on the ceiling and kitchen walls and a strong odor of bleach and fresh paint. Evidence showed Doyle used barbecue sauce in an attempt to cover the blood and tried to clean the scene and repaint walls.

He was arrested at a friend's home in Dallas. He later told investigators he was under pressure from his girlfriend and others to support his 3-week-old daughter and couldn't get a job. He gave police a 10-page written confession.

Doyle v. State, 2006 WL 1235088 (Tex. Crim. App. 2006). (Direct Appeal)

HOLCOMB, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, PRICE, JOHNSON, KEASLER, and COCHRAN, J.J., join.

In May 2004, appellant was convicted of capital murder. Tex. Penal Code Ann. § 19.03(a). Pursuant to 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 appellant to death. Art. 37.071, § 2(g). FN1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises eleven points of error. We will affirm.

CHALLENGES FOR CAUSE

In his first and second points of error, appellant claims that the trial court erred in denying his challenges for cause of veniremembers Gary Allen and Teresa Goldsmith. Appellant alleges that Allen was challengeable for cause because he could not consider the full range of punishment for the lesser-included offense of murder. Art. 35.16(c)(2). Appellant alleges that Goldsmith was challengeable for cause because she had a bias or prejudice against the defendant because of her “inflammatory life experience.” Art. 35.16(a)(9). To preserve error for a trial court's erroneous denial of a challenge for cause, appellant must show that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of veniremember; (3) all of his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and, (5) an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200 (1997). Appellant has properly preserved error with respect to each of the challenged veniremembers.

If a defendant establishes error, harm is shown when he has used a peremptory challenge to remove a veniremember and thereafter suffered a detriment because of the loss of that strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim.App.1986), cert denied, 482 U.S. 920 (1987). Appellant exhausted all of his fifteen peremptory challenges granted by statute and requested additional peremptory challenges, but that request was denied. When reviewing a trial court's decision to deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the ruling. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App.2002). We give great deference to the trial court's decision because the trial judge is present to observe the demeanor and tone of voice of the venireperson. Id. When a veniremember's answers are vacillating, unclear, or contradictory, we accord particular deference to the trial court's decision. Id.

Veniremember Allen

Appellant argues that Allen was unable to consider the full range of punishment for the lesser-included offense of murder. He asserts that Allen testified that he would be unable to give probation for murder but could give it for manslaughter. When he was first questioned by the prosecutor, Allen indicated that he could consider the full range of punishment, including probation, for the lesser-included offense of murder. He agreed that he would keep an open mind while hearing the evidence and that he would give probation in a case where it was appropriate.

When defense counsel questioned Allen about this issue, the following exchange occurred: Q. How do you feel about the possibility of considering and having to give, if you thought it was appropriate under the circumstances, punishment as low as five years' probation? A. It seems pretty low for a life. If you're considering, you know, a probation sentence for the proven death of someone, yeah, I think that's pretty low. Q. I understand what you're saying. A lot of times, we'll have a lot of jurors come in and say, you know what, to be real honest with you and be true to my oath and tell the truth, I can't consider that. I can't consider to give that. In a murder case, I couldn't ever consider and give five years' probation, even if the facts-if I thought the facts deserved it, I just couldn't do it because we're talking about the loss of a human life. How do you feel about that? A. I agree with that. Q. You just don't think you could do it, or you think you could do it? A. I don't think I would feel right about probation for a life, no. Q. Well, like I said, there are a lot of jurors who tell us that. They say being honest with you and true to my oath, if we're talking about a murder case, it doesn't matter to me if the person's never been convicted of a felony before, I just don't think I could ever give a probated sentence. Is that how you feel? A. Yes. Q. Do you feel pretty strongly about that? A. Yes, I do. Q. Okay. A. It's almost like saying the first one is free, you know, if you kill someone in my personal opinion. Q. Can I talk you out of that, or do you fell pretty strong about that? A. I feel pretty strong about that. * * * Q. You think you could [give probation] for aggravated robbery? A. Yes. Q. But you just don't think you could do it for a murder offense? A. Right.

The trial judge later explained the range of punishment applicable to capital murder cases. He explained that if a defendant has never been convicted of a felony offense before, the available punishment range could be anywhere from probation for up to ten years to life in the penitentiary, and a fine not exceeding $10,000. When asked if he could consider the entire punishment range, Allen answered: “I could. Is that including like manslaughter?” The trial judge explained that the range is applied to knowing as well as intentional murders. The trial judge then asked Allen if he could consider the applicable punishment range in the following exchange: Q. The ultimate decision is left to the jury. Therefore, you have to be able to consider the full range of punishment. Is that something you could do, or is that something you could not do? A. I think I could. Q. Okay. You could keep your mind open and fairly consider any potential punishment range that could come up before you? A. Yes.

Defense counsel challenged Allen for cause, stating that Allen's responses indicated that he could not consider a probated sentence for murder but only for manslaughter. The trial judge denied the challenge for cause. The trial court's ruling is supported by the record. Allen ultimately agreed that he could consider the full range of punishment applicable to the case, including probation, when the trial judge explained the law to him.

Veniremember Goldsmith

Appellant argues that Goldsmith's “life experiences” were so inflammatory that she could not set them aside and judge the facts fairly and impartially. The “life experiences” in question were that Goldsmith's grandfather had been the victim in a capital murder case, that Goldsmith's mother had suffered a “near nervous breakdown” because of that murder, and that Goldsmith's father had witnessed the defendant's execution. When she was first questioned by the prosecutor, Goldsmith acknowledged that the information she had provided in her questionnaire, that her grandfather had been a victim in a capital murder case, was accurate. When asked if she could put that experience aside and base this case on the evidence, Goldsmith answered, “Yes.” The prosecutor later questioned her further on the issue:

Q. I asked you, you know, could you put that aside and judge this case. A. Uh-huh. Q. And I just want to make sure, because I know it is a tough thing to have a victim in the family. And I'm not sure how long ago that happened, but the law is going to require you to set any personal feelings aside and then look at just the evidence on this case and decide if this person is guilty of this crime. And then, of course, on the punishment, decide death or life, or answer these questions based on the evidence you hear in the courtroom. Is that something you feel comfortable with? A. Yes, I do, because I've spent a lot of time trying to reconcile the fall out from my grandfather's murder and have done a lot of reading and have tried to understand from someone's point of view who has committed murder. And I think I've looked at both sides. Q. And you think that- A. I think I could be objective. Q. And you could sit as a juror in this type of case? A. I believe so.

Defense counsel then asked Goldsmith about the details underlying her grandfather's murder. Goldsmith explained that the murder took place when she was three years old and that she did not remember much from that time. She explained that her maternal grandfather, who owned a liquor store, had been shot in a robbery of that store and the shooter received the death penalty. She explained her mother was thirty-three years old at the time and had experienced a “near nervous breakdown” because of the murder. She further explained that her father had witnessed the killer's execution.

When further questioned on this issue, Goldsmith still maintained that she could be a fair juror and impartial in judging the case: Q. Some people would say, you know, I'm past that. I can be a fair juror. You've said I think I can, and I've got to press you a bit harder here, obviously. I have to know. Can you do it or can you not do it as far as being fair and impartial in judging this case and this case alone, or will that be a problem for you? A. Well, of course, it won't be easy. I could do it because I do believe in forgiveness and the basic goodness of man. Q. Okay. And that's-you know, we hope everybody feels that way. Sometimes people in your situation don't feel that way. A. Uh-huh. Q. And I-you know, I appreciate you being candid and telling us about it. But my main concern is this, this type offense is almost-no, it's not. I can't say its identical, but it has the same elements as murder plus robbery. A. Right. Q. [G]iven the fact, the elements in the indictment are similar to what happened with your grandfather, do you feel like that because of that, that could cause a problem for you? I mean, you say I think I can, I believe I can. But can you tell me today, yes, I can, or can you only say, I'm not sure? A. I can. Q. Okay. You think you can? A. (Nods head.) Q. Can you say yes or no? A. Yes, I can.

Goldsmith unequivocally stated that she could put the experience of her grandfather's capital murder aside and could be fair and impartial in judging the case. Appellant has not shown that Goldsmith had a bias that would substantially impair her ability to carry out her oath and instructions in accordance with law. Feldman, 71 S.W.3d at 744. Appellant's first and second points of error are overruled.

CONSTITUTIONALITY AND RELATED ISSUES

In his third point of error, appellant claims that the lethal injection as it is currently administered in Texas violates the Eighth Amendment because it produces unnecessary pain, torture, and lingering death. Appellant raised this issue in a motion to set aside the indictment, but he failed to provide any evidence or further argument on the motion at trial. We have previously concluded that we cannot address this type of claim when the record is not sufficiently developed. Bible v. State, 162 S.W.3d 234 (Tex.Crim.App.2005). We decline to reconsider our holding in Bible.

Even if appellant's trial record had been fully developed, we still cannot address appellant's claim because it is not ripe for review on direct appeal. In Colburn v. State, 966 S.W.2d 511 (Tex.Crim.App.1998), appellant claimed that his sentence was unconstitutional because he was mentally ill. We held that because appellant's execution was not imminent, his claim was not ripe for review. We noted that the fact that the appellant had a mental illness when he was tried and sentenced was not determinative of whether he will have a mental illness at the moment of his execution. Similarly, the method in which the lethal injection is currently administered is not determinative of the way it will be administered at the moment of appellant's execution. Thus, appellant's claim is not ripe for review. Appellant's third point of error is overruled.

In his fourth point of error, appellant claims that the administration of the death penalty violates the Eighth and Fourteenth Amendments of the United States Constitution because it is contrary to our “evolving standards of decency.” Appellant claims that the fact that innocent people who were subsequently exonerated have been sentenced to death makes the death penalty an unconstitutional form of punishment, per se. While the execution of an innocent person would violate federal due process and be considered cruel and unusual punishment, appellant does not claim that he is innocent or that he will be exonerated. He therefore fails to demonstrate that his due process rights or his right to be free from cruel and unusual punishment has been violated. Herrera v. Collins, 506 U.S. 390 (1993); Paredes v. State, 129 S.W.3d 530, 540 (Tex.Crim.App.2004). Appellant's fourth point of error is overruled.

In his fifth through eleventh points of error, appellant makes various claims challenging the validity of the Texas death-penalty scheme. In his fifth point of error, appellant claims that “[t]he trial court erred when it relieved the state of its constitutional burden to prove insufficient mitigating factors beyond a reasonable doubt.” He argues that the death penalty scheme violates the United States Constitution because it does not require the State to prove the mitigation special issue beyond a reasonable doubt. Appellant cites to Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 122 S.Ct. 2428, 2440 (2002), and Blakey v. Washington, 124 S.Ct. 2531 (2004). In his sixth point of error, appellant claims that the “12/10 rule” of the mitigation special issue violates various provision of the United States Constitution. In his seventh point of error, appellant claims that the death penalty statute is unconstitutionally vague because it fails to define “probability of committing future criminal acts of violence” in the future dangerous special issue. In his eighth point of error, appellant claims that the death penalty scheme is unconstitutional because its definition of mitigating evidence limits the factors that jurors are to consider when answering the mitigation question, citing Tennard v. Dretke, 542 U.S. 274 (2004). In his ninth point of error, appellant claims that the death penalty scheme is unconstitutional because it does not require the jury to consider evidence of mitigation. In his tenth point of error, appellant claims that the death penalty scheme is unconstitutional because it provides the exact type of unfettered discretion prohibited in Furman v. Georgia. In his eleventh point of error, appellant claims that the death penalty scheme is unconstitutional for its failure to provide “meaningful appellate review.”

This Court has previously rejected all of these claims, and appellant gives us no reason to revisit these issues here. See Perry v. State, 158 S.W.3d 438, 446-7 (Tex.Crim.App.2004), cert. denied, 126 S.Ct. 416 (2005); Blue v. State, 125 S.W.3d 491 (Tex.Crim.App.2003), cert. denied, 543 U.S. 853 (2004); Ladd v.. State, 3 S.W. 547 (Tex.Crim.App.1999), cert denied, 529 U.S. 1070 (2000); Escamilla v. State, 143 S.W.3d 814, (Tex.Crim.App.2004), cert. denied, 125 S.Ct. 1697 (2005); Williams v. State, 692 S.W.2d 671 (Tex.Crim.App.1984). Appellant's fifth through eleventh points of error are overruled.

We affirm the judgment of the trial court. WOMACK and HERVEY, J.J., concur in the result.

Doyle v. Stephens, 535 Fed.Appx. 391 (5th Cir. 2013). (Federal Habeas)

Background: Following affirmance of his capital murder conviction and death sentence, 2006 WL 1235088, and of denial of state post-conviction relief, 2008 WL 217985, state inmate filed petition for writ of habeas corpus. The United States District Court for the Northern District of Texas, 2012 WL 2376642, denied petition, and petitioner filed application for certificate of appealability.

Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that: (1) petitioner's claims regarding admissibility of his incriminating statements were procedurally barred; (2) petitioner was not denied effective assistance of counsel; and (3) imposition of death penalty did not violate Eighth Amendment's prohibition against applying death penalty to minors. Application denied.

JERRY E. SMITH, Circuit Judge: FN*

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

Anthony Doyle was convicted of capital murder and sentenced to death for the robbery and fatal beating of Hyun Cho. After exhausting his direct appeals and petitions for state habeas corpus relief, Doyle petitioned for federal habeas relief, which was denied. He seeks a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253. We deny the request.

I.

In 2003, Doyle placed an order for delivery with the Chaha Donut shop, disguising his voice and saying his name was Mary. When Cho arrived to deliver the food, Doyle beat her to death with a baseball bat, put her body into a trash can, and attempted to clean the blood from the walls and floor. He took her car, cell phone, and credit cards and drove to meet his friends, to whom he indicated he had murdered someone, stating that he was not “playing” anymore. They attempted to use Cho's credit cards to make purchases.

When Doyle learned that police had found Cho's body, he fled. Police searched the house where he had committed the murder and found his bloodstained clothes, blood spatters on the floor and walls, marks from the trash can's wheels, and other evidence. Doyle later abandoned Cho's car at a carwash and threw her possessions into a nearby dumpster. The police found those items and the original receipt for the donut delivery. Doyle's mother tried to convince him to come to the police station to talk to officers, and although he agreed, he never did but was arrested shortly thereafter. He eventually orally confessed to the crime under police questioning, taking more than two hours to write a ten-page confession.

Doyle was convicted and sentenced to death. During the punishment phase of the trial, significant evidence was produced by prosecution and defense pertaining to Doyle's character and history. The prosecution presented evidence of Doyle's violent past, including numerous violent outbursts in school and at home; there was evidence of Doyle's ties to a violent gang. The defense presented numerous witnesses who testified to Doyle's good character and difficult upbringing. On cross-examination, one of the defense experts admitted that Doyle was not mentally retarded, had a normal IQ, and understood right from wrong.

Doyle initially appealed to the Texas Court of Criminal Appeals (“TCCA”), alleging eleven points of error; his sentence was affirmed. His challenges focused exclusively on two areas: the members of the jury pool and the constitutionality of the death penalty. See Doyle v. State, 2006 WL 1235088 (Tex.Crim.App. May 10, 2006), cert. denied, 549 U.S. 976, 127 S.Ct. 436, 166 L.Ed.2d 310 (2006). The TCCA denied Doyle's petition for state habeas relief. See Ex parte Doyle, 2008 WL 217985 (Tex.Crim.App. Jan. 23, 2008). Doyle next filed a federal habeas petition alleging eight claims, which was denied.

II.

A COA is appropriate only where a petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must also demonstrate that “reasonable jurists” could agree, or at least debate, that the denial of habeas relief was erroneous “or that the issues presented [are] adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal citations omitted). We apply the strict standards in 28 U.S.C. § 2254(e), which provides that facts decided by the state court are controlling unless rebutted by clear and convincing evidence.

III.

Doyle requests a COA on three of the claims denied by the district court. First, he contests the voluntariness of his confession and the admissibility of his statements made to friends (Claim 3). Second, he argues that he received ineffective assistance of counsel (“IAC”) related to that claim (Claim 4). Finally, he claims that his sentence violates the Eighth and Fourteenth Amendments because he was developmentally a juvenile (Claim 6).

A.

Doyle's first claim is procedurally barred: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In the first place, Doyle never objected to the admission of the statements he made to his friends wherein he confessed his crimes. Second, though he objected to the voluntariness of his confession based on his mental state, he did not raise his current theory—coercion by the conditioning of state officials—at trial. Nor did he raise those issues on direct appeal. In his state habeas proceedings, the court found that Claim 3 could have been raised on direct appeal and that Doyle had thus defaulted on it. Texas bars all record-based claims not raised on direct appeal.FN1 It also requires contemporaneous objection. We “ha[ve] consistently held that the Texas contemporaneous objection rule constitutes an adequate and independent state ground that procedurally bars federal habeas review....” Fisher v. Texas, 169 F.3d 295, 300 (5th Cir.1999).

FN1. See Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Crim.App.1996) (“ ‘[T]he writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.’ ”) (citation omitted).

Doyle makes no real response to his default of Claim 3, nor does he attempt to demonstrate actual prejudice or good cause for the default. He instead urges that his IAC claim, Claim 4, is necessarily tied to the merits of Claim 3. That, however, does not satisfy Texas caselaw regarding the default, so Doyle has procedurally defaulted as to the substantive issues of Claim 3, and we deny a COA.

B.

Doyle's next contention, Claim 4, is that he received IAC in violation of the Sixth Amendment regarding a failure to object and preserve Claim 3. To establish IAC, a petitioner must show (1) that his counsel's performance was deficient to the extent that he failed to function as “counsel” and (2) that that deficient performance prejudiced his defense so much that it deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a “strong presumption” that counsel's actions “fall[ ] within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Where, as here, the state court applied the standard in Washington and concluded that counsel was not ineffective, the test is whether the state court's decision was “contrary to, or an unreasonable application of” clearly established federal law. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.2003).

The first requirement of Washington was not met. Counsel explained that he purposefully did not challenge Doyle's confession after it had been admitted into evidence, because the lynchpin of the defense was that Doyle did not have the requisite mens rea for murder—specifically, Doyle only planned and attempted to rob rather than murder Cho. Moreover, the claim Doyle seeks to advance regarding the voluntariness of his confession is without merit. Doyle maintains that counsel should have raised a claim that his oral and written confessions were the product of coercion, were involuntary, and thus violated his rights. He claims that a confession may be rendered coerced and involuntary based on the actions of those outside the immediate interrogation context. He contends that the “state actors” that coerced his confession included his school principal, a probation officer, and staff at a juvenile correction agency in which he resided. Years before, he claims, those actors had taught him to confess his misdeeds, in the case of the school principal, and to talk to his peers about what he had done wrong and why, in the case of the juvenile corrections agency. Doyle was held in the principal's office, sometimes for hours, until he confessed to misbehavior attributed to him. While at the juvenile facility, he had participated in frequent “huddle ups” where the youths were encouraged to explore with their peers, in narrative form, what they had done wrong, which “exerted peer pressure to confess and conform.” Those “coercive” activities inculcated in Doyle a habit of confession.

Doyle points to Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled in part by Keeney v. Tamayo–Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), in support. The Court there held that, where a confession was the product of a “truth serum”-type drug, it was involuntary. Id. at 307–08, 83 S.Ct. 745. It did not matter that the state actor who had given the defendant the “truth serum” was different from the individual who interrogated him and that there was some slight separation in time between the administration of the drug and the confession. Id. Doyle argues that the previous cultures of concession imposed on him by state actors were the same type of preinterrogation coercion found in Townsend.

That claim is an impermissible broadening of Townsend and plainly outside settled law. In Townsend, the truth serum was administered as part of the interrogation for the specific purpose of extracting information during the interrogation. Townsend stands for the principle that an interrogation will not be considered non-coercive just because the coercive aspects of the interrogation are delegated to an individual who does not ask any questions. The “coercion” Doyle complains of was far removed from his confession, both in terms of time and causation. Challenged police conduct must be “causally related to the confession.” Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Where it is not, there “is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” Id.

There was no direct causal relationship between the state actors and Doyle's confession. Even assuming the actions of the principal and the counselors constitute relevant state action, they were too remote in time and were not at all proximately related to Doyle's confession. In Townsend, the truth serum was administered for the purpose of the interrogation by police officers and in contemplation of drawing out that specific confession. Under Doyle's theory, any action by a government employee that tended to encourage confession in general, no matter how remote in time to the confession challenged, would be sufficient to classify the confession as coerced. That interpretation strains law and reason. Doyle's counsel was not ineffective for failing to raise that claim; it was a reasonable trial strategy to focus on the mens rea, and counsel did initially challenge the admissibility of the confession. Moreover, the state court's analysis hewed to settled standards for determining effectiveness of counsel. Doyle has not shown the denial of a constitutional right, and there is no room for reasonable jurists to debate. We therefore deny a COA on Claim 4.

C.

Doyle's final claim, Claim 6, asks us to ignore clear Supreme Court precedent and inaccurately presents Eighth Amendment jurisprudence. Doyle contends that the Eighth Amendment prohibits applying the death penalty to one who is “developmentally” a minor. Doyle argues that, in spite of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Eighth Amendment forbids bright-line rules. The Court there held, however, as follows: Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn.... The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest. Id. at 574, 125 S.Ct. 1183 (emphasis added).

Doyle misinterprets Simmons. He argues that the government and the state courts applied Simmons as though it had created a rule of per se constitutionality of death sentences for those over eighteen, but that is not so. Simmons established a lower boundary: No one under eighteen may be executed, meaning only that, based on that single metric, a defendant is not disqualified from receiving the death penalty. The jury must still consider other factors during the punishment phase, including mitigating factors.

That correct interpretation is precisely what the state court applied and what the state here argues. Doyle was over eighteen, so he cannot use Simmons as a shield. He is entitled to and did present evidence of his age and purported psychological and developmental shortcomings as mitigating factors.FN2 He has not shown that he was denied a constitutional right, and there is no room for reasonable jurists to debate Claim 6.FN3

FN2. See Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (“A sentencer in a capital case must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence.”).

FN3. Doyle asks us to undermine Simmons and adopt a new rule that it is the “developmental age,” not the true age, that matters. That is an unreasonable interpretation of Simmons, and Doyle's citations to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), are entirely unhelpful. In Miller, for instance, the Court again drew a bright line at eighteen as a lower bound for punishment. Miller, 132 S.Ct. at 2460 (“We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’ ”). The Court reiterated, though, the importance of considering all of the individual circumstances in fashioning a sentence.