Tuesday, May 27, 2009
Media Advisory: Terry Lee Hankins scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information on Terry Lee Hankins, who is scheduled to be executed after 6 p.m. on Tuesday, June 2, 2009. A Tarrant County jury sentenced Hankins to death in May 2002 for killing two children.

FACTS OF THE CRIME

In August 2001, 26-year old Hankins was living with his wife, Tammy Hankins, and her two children, 12-year-old Kevin and 10-year-old Ashley, in a trailer park in Mansfield.

On Aug. 29th, Tammy Hankins failed to open the restaurant she managed. Upon hearing this, Tammy’s mother Linda Sheets went to the children’s schools and learned they had not been in class since the previous Friday. Mrs. Sheets and Tammy’s sister, Melissa, went to Hankins’ trailer and and found Tammy’s body under a pile of bedding. The women discovered Ashley dead underneath clothes on the couch, and Kevin dead underneath blankets on his bed. They informed the police, adding that Ms. Hankins’ car was missing. One of the police officers found a pistol on the coffee table and an empty box for another handgun in the closet.

The next morning, Ms. Hankins’ car was located in the parking lot of the apartment complex where Hankins’ girlfriend lived. Hankins was arrested at the complex. In the girlfriend’s apartment, police recovered a pistol, a note from Hankins to her, and a black notebook.

After arraignment, Hankins met with detectives and waived his rights in writing. He confessed to killing Tammy and her two children. During an interview with a reporter, Hankins also admitted to shooting the children. In the interview he described himself as a serial killer.

The medical examiner found that Tammy and her two children died of gunshot wounds to the head. Trace analysis on the hair found in Ashley’s hand revealed it shared characteristics with Hankins’ hair..

THE PENALTY PHASE EVIDENCE

Hankins made two other confessions to the police after his arrest. He admitted to killing his half-sister, Sissy, by bludgeoning her in the head with a jack stand. He then placed her body in a storage tub and hid it in a car at his father’s shop. He also admitted he shot his father, Earnie Hankins. The police obtained search warrants and found Earnie’s mummified body. He had been shot to death.. Fingerprints lifted from the trailer matched Terry Hankins’. A doctor determined that Sissy was killed by a blow to the head.

PROCEDURAL HISTORY
8/26/01 -- Hankins killed Tammy Hankins’ two children, Kevin and Ashley.
11/21/01 -- Hankins was indicted for capital murder by a Tarrant County grand jury.
5/7/02 -- Hankins pled not guilty and his trial began.
5/13/02 -- The jury found Hankins guilty of capital murder.
5/16/02 -- After a separate penalty hearing, Hankins was sentenced to death by Judge Robert K. Gill.
3/10/03 -- Hankins filed a direct appeal raising 12 points of error.
4/21/04 -- The Texas Court of Criminal Appeals affirmed Hankins’ verdict and sentence.
10/18/04 The Supreme Court denied certiorari on Hankins’ direct appeal.
1/21/04 -- Hankins filed an application for state writ of habeas corpus raising nine issues.
2/9/04 -- The trial court ordered affidavits on ineffective-assistance-of-counsel issue.
5/24/04 -- The trial defense counsel filed a joint affidavit.
7/15/04 --The State filed an answer to the state writ.
8/2/04 -- The trial court denied a request for an evidentiary hearing, found affidavits sufficient.
9/14/04 -- The trial court filed findings of fact and conclusions of law denying relief.
11/10/04 -- The Texas Court of Criminal Appeals denied relief.
11/10/05 -- Hankins filed his federal habeas corpus petition raising twelve claims in a Fort Worth U.S. district court.
3/30/07 -- A state district court dismissed Hankins’ writ.
5/8/07 -- The state district court denied certificate of appealability (COA).
7/13/07 -- Hankins filed for a COA in the Fifth U.S. Circuit Court of Appeals.
8/15/08 -- The Fifth Circuit Court affirmed the federal district court’s denial of COA.
11/13/08 -- Hankins filed a petition for certiorari in the U.S. Supreme Court.
1/29/09 -- The Supreme Court denied certiorari.
6/2/09 -- Hankins is set to be executed on June 2, 2009..

ProDeathPenalty.Com

On August 26, 2001, Terry Lee Hankins killed his estranged wife, Tammy Hankins, and her two children, Kevin Galley and Ashley Mason. Hankins was an auto mechanic in Arlington, Texas. He left the naked bodies of the children and the body of their mother in the trailer in which they lived in Mansfield. They were found on August 29.

There was also evidence that Hankins engaged in sexual activity with and around the dead bodies. Hankins's semen was found on the sheet on Ashley's bed. After his arrest on August 30 in the murders of his wife and stepchildren, Hankins shocked police by telling them where to find the decomposing bodies of his father and sister, killed 10 months earlier. Hankins was convicted on overwhelming evidence. Ashley had defensive wounds "all over her body" according to prosecutors, and hair later proven to belong to Hankins was found in her hand. In a note found near Ashley's body, Hankins wrote: "I guess to sum it all up, I'm guilty of murder, incest, hatred, fraud, theft, jealousy and envy." Hankins also wrote in a diary Aug. 17 that he was contemplating the murders.

In the notebook, Hankins gave the full address of where he left the bodies of his father, Earnie Hankins, and his half-sister Pearl Sevenstar and wrote that he did not know why he killed his wife and her 2 children. "It was all for the worst excuse. I just didn't like myself. After you hear things, you start to believe them," he wrote. "People always told me I was nothing and wouldn't amount to anything. I guess they hit the nail on the head with that one." The notebook also contained some thoughts about his childhood, his use of drugs and alcohol, and graphic descriptions of several sexual encounters with his stepmothers, girlfriends and wife.

Bullets from the murders of his stepchildren matched a gun found in the apartment of Hankins's girlfriend, where he was arrested. His wife's car was parked at the apartment. In the punishment phase of the trial, Hankins confessed to killing his half-sister, Pearl Sevenstar, with whom he fathered a son seven years prior. He lied to others about his sister’s whereabouts, saying that he had sent her to a home for pregnant mentally-challenged women, when in fact he had stored her dead body in a plastic container. He also admitted to killing his father, Earnie Hankins. He told people his father had moved out of state, when in fact his father’s mummified remains were in his trailer surrounded by air fresheners.

In an interview, Hankins said, "I'm very sorry. I'm not happy. I'm not proud," he told me. "It was my family, too. I can't replace what I've taken. I can't justify what I've done. I know this is not right or normal. The shortest word for it is ... I'm trying to think of something ... 'evil.' I still think that's putting it lightly."

Dallas Morning News

"Fort Worth-area man set to die for deaths of wife, stepkids." (09:46 AM CDT on Tuesday, June 2, 2009 Associated Press)

HUNTSVILLE – Terry Lee Hankins' surrender to police for the slayings of his estranged wife and two stepchildren opened up two more homicide investigations when he told authorities in Tarrant County he also was responsible for killing his father and his half-sister — almost a year earlier.

When officers went to the mobile home of 55-year-old Earnie Lee Hankins, they found him shot to death and his decomposing body in a recliner, surrounded by air fresheners. Then they found the remains of Pearl "Sissy" Stevenstar, 20, Hankins' half-sister, stuffed into a plastic ice chest hidden in a car at his father's auto repair shop. She'd been fatally beaten with a jack stand. Court documents later would show Stevenstar was the mother of Hankins' child and was pregnant again by him. "It was a very unusual set of circumstances," said Sheila Wynn, the assistant Tarrant County district attorney who prosecuted Hankins for capital murder. "I don't even know how to put it into words."

Hankins, 34, was set to die Tuesday evening for the 2001 slayings of Kevin Galley, 12, and Ashley Mason, 11, children of his estranged wife, 34-year-old Tammy Hankins. All three were gunned down inside their mobile home in Mansfield, about 20 miles southeast of Fort Worth.

He would be the 16th prisoner executed this year in the nation's busiest capital punishment state.

His appeals were exhausted and no last-minute attempts to delay the lethal injection were expected, William Harris, Hankins' attorney, said. "I don't have anything I can think of in this case that stands any kind of chance of doing any good," Harris said.

Hankins declined to speak with reporters from death row. "What else is there to say?" Harris said. "I think he regrets what he did but I also think he's fatalistic about the fact he can't change it."

Before his arrest, Hankins had told people he'd sent his half-sister to a home for pregnant mentally challenged women and that his father had moved out of state. He did not testify at his trial, but police found a note Hankins wrote on a bank envelope. "I guess to sum it all up, I'm guilty of murder, incest, hatred, fraud, theft, jealousy, envy," he wrote.

When Tammy Hankins failed to show up for work at a Burger King restaurant she managed and her children failed to show up at school, her mother, Linda Sheets, and a sister went to her trailer to see if something was wrong. A pile of clothes was on Tammy Hankins' bed. "I pulled the clothes down, and there was Tammy," Sheets told the Fort Worth Star-Telegram in a story published Sunday. "We found Ashley under a bunch of clothes on a sofa in her living room, and we found Kevin in his bed, covered over."

Police already were familiar with the home. They'd been summoned to the trailer park four times over four months for domestic disturbances, fighting and breaking and entering. Terry Hankins was tracked down to Arlington where his estranged wife's car was parked outside his girlfriend's apartment. He surrendered after a five-hour standoff with police.

In a diary recovered by officers, Hankins wrote he had become a "non-caring monster." He rambled about his troubled childhood with a divorced inattentive father and two stepmothers who molested him and taught him sex acts. "I just didn't like myself," he wrote, saying he didn't know why he killed his wife and stepchildren. "People always told me I was nothing and wouldn't amount to anything. I guess they hit the nail on the head with that one." Hankins was tried only for the deaths of his two stepchildren, who were shot while they slept.

"I don't want revenge," Sheets said. "And I don't think other people should judge him, either. He was judged already by a jury of his peers. They found him guilty and gave him the death penalty. And now he is going to meet his maker." Death penalty opponents planned protests for what would be the 200th execution of Rick Perry's tenure as Texas governor.

"Perry has allowed more executions to proceed than any other governor in U.S. history," said Scott Cobb, of the Texas Moratorium Network. "The governor, like most Texans, believes capital punishment is the appropriate penalty for those who commit the most heinous crimes," said Perry spokeswoman Allison Castle.

At least five other condemned Texas inmates have execution dates in the coming weeks. Scheduled to die next, on July 16, is Kenneth Mosley for the 1997 shooting death of a Dallas-area police officer during a bank robbery.

Huntsville Item Online

"Tarrant County man executed for 2001 slayings," by Mary Rainwater. (June 02, 2009 11:36 pm )

A Tarrant County man who confessed to killing five family members was executed Tuesday for the 2001 slaying of his two stepchildren. “I am sorry for what I’ve done and for all the pain and suffering my actions have caused,” Terry Lee Hankins said while in the execution chamber. “Jesus is Lord. All Glory to God.”

At 6:19 p.m., just 11 minutes following the lethal injection, Hankins was pronounced dead.

Hankins surrendered at his girlfriend’s Arlington apartment in 2001 after a five-hour standoff with police who wanted him for gunning down his estranged wife, Tammy, 34, and her children, Devin Galley, 12, and Ashley Mason, 11.

Hankins later confessed to officers that he was responsible for the deaths of his father and half-sister almost a year earlier. “I accept his apology,” Melissa Bryce, sister of victim Tammy Hankins, said in a press conference following the execution. “But that doesn’t take away the pain of the things he did.” Bryce and her mother, Linda Sheets, who also attended the press conference, chose not to witness Hankins death but instead to remember the family she lost. “Terry and I talked a couple of weeks ago and he apologized then,” Sheets said. “He seemed very remorseful about what he did, especially to the children.”

Ruthie Hedleston, who survived a beating during the two years Hankins lived with she and her husband, chose to witness his death as a form of closure. “The reason I was there was to make that fear of him I had for seven years go away,” Hedleston said. “He has haunted me for seven years — turning my life upside down. “He kept mouthing to me, ‘Ruthie, I am sorry,” she said. “I believed him that he’s sorry but that doesn’t mean I can forgive him for what he did.”

Hankins was the 16th condemned prisoner executed this year in Texas, the nation’s most active death penalty state. The lethal injection also was the 200th during the tenure of Gov. Rick Perry, a milestone denounced by capital punishment opponents.

Appeals to the courts to halt the execution were exhausted and the Texas Board of Pardons and Paroles refused a clemency petition from Hankins, a former auto mechanic. Hankins did not testify at his trial, but police found a note Hankins wrote on a bank envelope. “I guess to sum it all up, I’m guilty of murder, incest, hatred, fraud, theft, jealousy, envy,” he wrote.

In a diary recovered by officers, Hankins wrote he had become a “non-caring monster” and rambled about his troubled childhood with a divorced inattentive father and two stepmothers who molested him and taught him sex acts. “I just didn’t like myself,” he wrote.

Tammy Hankins’ mother became worried when her daughter didn’t report for work at an Arlington Burger King she managed and her children failed to show up at school. She went to her daughter’s mobile home in Mansfield, about 20 miles southeast of Fort Worth, and found the victims. Each had been shot in the head with a .45-caliber pistol.

Police immediately suspected Terry Hankins because they repeatedly had been summoned to the home in recent months for domestic disturbances, fighting, and breaking and entering. Hankins was tried only for the deaths of his two stepchildren.

Death penalty opponents planned protests to mark the 200th execution during Perry’s administration. About three dozen people gathered near the prison, about double the usual number. Hankins’ execution was 439th since Texas resumed carrying out capital punishment in 1982. Perry spokeswoman Allison Castle said the governor, “like most Texans,” believed capital punishment was appropriate “for those who commit the most heinous crimes.”

At least five other Texas inmates have execution dates in coming weeks. Scheduled to die next, on July 16, is Kenneth Mosley for the 1997 shooting death of a Dallas-area police officer during a bank robbery.

Hankins v. State, 132 S.W.3d 380 (Tex.Cr.App. 2004) (Direct Appeal).

Background: Defendant was convicted following jury trial in the 213th District Court, Tarrant County, Robert K. Gill, J., of capital murder and was sentenced to death.

Holdings: On direct appeal, the Court of Criminal Appeals, Meyers, J., held that: (1) parole is not a proper issue for jury consideration except to the extent explicitly provided for by Code of Criminal Procedure; (2) facts in search warrant affidavit were insufficient to create probable cause that defendant committed murders; and (3) defendant's first written statement to police regarding murders was not tainted by illegal arrest.Affirmed.

Appellant was convicted in May 2002 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, §§ 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 five points of error with numerous subpoints. We affirm. FN1. Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.

In point of error one, appellant complains that the trial court erred by improperly restricting voir dire on the topics enumerated in appellant's offer of proof. During voir dire, after the questioning of venireperson Audrey Marie Lawrence and before she was selected as a juror, appellant made the following offer of proof regarding additional matters he sought to raise with Lawrence:

[Defense counsel]: Judge, before you inquire about our status on this venireperson, if you allowed me, I would call Ms. Lawrence back in and I would first ask her would or could you consider and follow the following definition of reasonable doubt and I would incorporate the reasonable doubt definition that was included in my motion on that very topic, pretrial. I would ask her that question.

Two, I would ask her could you consider and give full deliberation to the parole board requirements for release on parole. And I would ask that question in the context of reading her this passage as far as determination of parole eligibility. The law says that to parole an inmate that's been convicted of a capital felony, all members of the board must vote on the release on parole of the inmate and at least two-thirds of the members must vote in favor of the release on parole. Then the member of the board may not vote for release unless the member first receives a copy of a written report on the probability that the inmate would commit an offense after being released on parole. I would next ask her, Judge, could she consider that information in deliberating and answering the mitigation issue.

Fourth, I would ask Ms. Lawrence could you follow the following instruction if you had answered the future dangerousness in the issue [sic] in the affirmative and were then ready to consider the special mitigation issue. And I would voir dire on this proposed instruction or theory. You are instructed to disregard any finding you make beyond a reasonable doubt against the mitigation issue related to future dangerousness. In considering the special mitigation issue, you may not consider any negative finding previously made on the issue of mitigation.

Five, I would voir dire on the special mitigation issue with the beyond a reasonable doubt instruction applied to it, Judge. And the language would read, do you find beyond a reasonable doubt, inserting the language of the special mitigation issue, that there is no or there are none, sufficient circumstances, et cetera, to justify imposition of a life sentence.

* * *

THE COURT: Those requests are denied.

Appellant objected on the basis of the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, and the due course of law and due process provisions of the Texas Constitution. Lawrence was selected for the jury. Appellant sought to raise these issues with six additional venirepersons who were also selected.FN2 We will separately address each of the issues on which appellant sought to question the seven prospective jurors.

FN2. Appellant raises a separate subpoint for each of the seven prospective jurors he sought to question, designated as point of error one, one-A, one-B, one-C, one-D, one-E, and one-F.

A trial court has broad discretion over the voir dire process. Sells v. State, 121 S.W.3d 748, 755-56 (Tex.Crim.App.2003). Without allowing a trial court the discretion to impose reasonable limits, voir dire could go on indefinitely. Thus, we leave to the trial court's discretion the propriety of a particular question and will not disturb the trial court's decision absent an abuse of discretion. Id.

Reasonable doubt instruction

Appellant sought to ask the venirepersons whether they could “consider and follow” the definition of reasonable doubt mandated in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). But the Geesa instruction was disapproved in Paulson v. State, 28 S.W.3d 570, 573-74 (Tex.Crim.App.2000). There, after concluding that the Geesa instruction was redundant and confusing and was not constitutionally or statutorily required, we overruled the portion of the Geesa opinion requiring the instruction, and stated that “the better practice is to give no definition of reasonable doubt at all to the jury.” Id. at 573. Because the Geesa instruction is no longer required, the trial court did not abuse its discretion in refusing appellant's request to ask the venireperons whether they could consider and follow it.

Parole board consideration

Appellant wanted to inform the prospective jurors that two-thirds of the members of the parole board must vote in favor of releasing an inmate on parole, after first receiving a copy of a report on the probability that the inmate would commit another offense upon release. Tex. Gov't Code § 508.046. Appellant then sought to ask the prospective jurors whether they could “consider and give full deliberation to the parole board requirements for release.” Appellant argues that the recent legislative changes now allow the jury to be informed that a capital-murder inmate is not eligible for parole until he has served forty calendar years, which opens the door for full consideration by the jury of any procedures relating to parole and the parole board. Art. 37.071 § 2(e)(2)(B). Appellant argues that without full information regarding the parole process, “a juror lacks the basis to make a meaningful decision on whether life without parole is a suitable punishment.” FN3 FN3. We note that “life without parole” is not a punishment option in capital cases. Art. 37.071.

This Court has historically held that parole is not a proper matter for jury consideration and therefore the trial court does not abuse its discretion by refusing to allow voir dire inquiries regarding parole. 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), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001). Effective September 1, 1999, Article 37.071 was amended to provide that a jury may now be instructed on a capital defendant's eligibility for parole, as follows:

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 and parole authorities, but eligibility for parole does not guarantee that parole will be granted.

Art. 37.071 § 2(e)(2)(B). However, this provision is narrowly drawn and does not render every aspect of parole law an issue for jury consideration. The provision expressly discourages speculation on 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.” Id. The legislature could have written the 1999 amendments more broadly to impart more information but chose not to. Accordingly, precedent maintaining that parole is not a proper issue for jury consideration remains in effect except to the extent explicitly provided for in Article 37.071 § 2(e)(2)(B).

Parole board information as mitigating factor

At trial, appellant sought to question the prospective jurors about whether they could “consider [the parole board release] information in deliberating and answering the mitigation issue.” Because appellant does not provide any argument or authority in support of this contention, it is inadequately briefed. Tex.R.App. P. 38.1.

Instruction to disregard affirmative finding on future-dangerousness issue

Appellant sought to ask the venirepersons whether they could adhere to the following instruction if they answered the future-dangerousness question in the affirmative: “You are instructed to disregard any finding you make beyond a reasonable doubt against the mitigation issue related to future dangerousness. In considering the special mitigation issue, you may not consider any negative finding previously made on the issue of mitigation.” Appellant argues that consideration of all evidence that mitigates either for or against imposition of the death penalty is at odds with an affirmative finding on the future-dangerousness issue, thereby calling for the requested instruction to disregard the future-dangerousness finding.

The future-dangerousness issue asks the jury to consider all the evidence and determine whether there are certain aggravating factors beyond a reasonable doubt. Although consideration of aggravating circumstances in deliberating on the mitigation issue is permitted, it is not required. Mosley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Even when aggravating circumstances are considered in the context of the mitigation issue, the fact finder's purpose differs when considering those same circumstances on the question of future dangerousness. In the context of future dangerousness, aggravating circumstances are considered in determining whether to “impose” the death penalty; in the context of the mitigation issue, “aggravating circumstances [are] used to determine whether the jury should ‘decline to impose’ the death penalty.” Id. Thus, an affirmative finding on the first does not necessarily compel a negative answer on the latter. See id. (explaining that the future dangerousness issue meets “eligibility” requirement while the mitigation issue is one of “selection”).

Application of reasonable doubt standard to mitigation issue

Finally, appellant sought to advise the venirepersons that they must apply the beyond a reasonable doubt standard to the mitigation issue. As argument and authority in support of the requested instruction, appellant directs us to point of error three. In point of error three, appellant claims that the mitigation issue is unconstitutional in its failure to provide a burden of proof. He cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

We have repeatedly held the absence of a burden of proof in the mitigation issue does not violate due process. Sells, 121 S.W.3d at 767; Valle v. State, 109 S.W.3d 500, 504 (Tex.Crim.App.2003). And we have specifically rejected the claim that the absence of a burden of proof violates Apprendi. Allen v. State, 108 S.W.3d 281, 285 (Tex.Crim.App.2003); Resendiz v. State, 112 S.W.3d 541, 550 (Tex.Crim.App.2003). We have likewise rejected such claim as violating Ring. Rayford v. State, 125 S.W.3d 521, 529-30 (Tex.Crim.App.2003), reh'g denied, (2004). Points of error one through one-F are overruled.

In point of error two appellant claims that the trial court abused its discretion by failing to instruct the jury that the State bears the burden of proof beyond a reasonable doubt on the mitigation issue. Appellant relies upon Apprendi and Ring to support his position.

For the reasons stated in the previous point of error, Apprendi and Ring do not require the State to prove beyond a reasonable doubt that there are no mitigating circumstances that would warrant forgoing the death penalty. Allen, 108 S.W.3d at 285; Resendiz, 112 S.W.3d at 550. The trial court did not abuse its discretion in failing to include such instruction. Point of error two is overruled.

In point of error two-A, appellant claims that the trial court abused its discretion by failing to instruct the jury about parole for a capital life offender, in violation of the Sixth and Eighth Amendments. At trial, appellant sought to include in the charge the following additional instruction on the operation of the parole laws:

To release on parole an inmate who is convicted of a capital felony who must serve 40 calendar years before becoming eligible for release on parole, all members of the board must vote on the release on parole of the inmate and at least two-thirds of the members must vote in favor of the release on parole. A member of the board may not vote on the release unless the member first receives a copy of a written report from the department on the probability that the inmate would commit an offense after being released on parole.

The trial court's charge at punishment tracked the statutory language appearing in Article 37.071. As previously explained in connection with points of error one through one-F, with the exception of the instruction explicitly laid out in Article 37.071 § 2(e)(2)(B), parole is otherwise not a proper issue for jury consideration in capital cases. The trial court properly instructed the jury pursuant to section 2(e)(2)(B). It did not abuse its discretion in denying appellant's requested charge.FN4 Point of error two-A is overruled.

FN4. Appellant complains in his brief that the capital punishment statute allows a jury to give full consideration to parole, in contrast to the noncapital punishment statute which admonishes the jury that they are “not to consider the manner in which the parole law may be applied to this particular defendant” and provides that “evidence on the operation of parole and good conduct time laws” is not admissible. Compare Art. 37.071 with Art. 37.07. However, we do not address this argument since he did not complain of the charge on this basis at trial. Tex.R.App. Proc. 33.1.

In point of error three, appellant claims that the mitigation issue is unconstitutional because it lacks a burden of proof. Art. 37.071 § 2(e)(1). Appellant says that there is virtually no difference between the future-dangerousness issue and the mitigation special issue except for the addition of the moral culpability component in the mitigation issue. He claims that in the context of future dangerousness, the lack of mitigation evidence is an aggravating circumstance, while in the context of the mitigation issue, the presence of aggravating evidence supports imposition of the death penalty.

The mitigation issue is not unconstitutional for lack of a burden of proof. Sells, 121 S.W.3d at 767; Valle, 109 S.W.3d at 504; Allen, 108 S.W.3d at 285. And the distinction between the mitigation issue and the future-dangerousness issue is discussed in connection with points of error one through one-F above. Point of error three is overruled.

In point of error four, appellant claims that the trial court erred in denying his request to conduct a pretrial hearing and gather evidence on the question of the unconstitutional application of the death penalty. Appellant filed a pretrial motion claiming that the Texas death-penalty statute is unconstitutional for its failure to provide a consistent state-wide method for determining in which cases the death penalty would be sought. In connection with this motion, appellant subpoenaed district attorneys from five different counties. The district attorneys each filed motions to quash their subpoenas. A hearing was held on appellant's motion, at which appellant offered into the record the questions he sought to ask the district attorneys, and the trial court granted the district attorneys' motions to quash. Appellant called a defense attorney to testify about the federal selection system and arguments were presented by the parties. Appellant's motion was overruled. Appellant objected to the court's overruling of his motion and to the quashing of the subpoenas on the basis of the Fourteenth and Eighth Amendments. On appeal, appellant argues that the trial court's rulings violated his Sixth Amendment compulsory process rights by failing to allow him to present and develop evidence in his defense against the death penalty.

The State has discretion to seek the death penalty and this prosecutorial discretion is not unconstitutional. Cantu v. State, 842 S.W.2d 667, 692 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993); Barefield v. State, 784 S.W.2d 38, 46 (Tex.Crim.App.1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3256, 111 L.Ed.2d 766 (1990). See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (holding that prosecutorial discretion was not unconstitutional). We have specifically rejected the claim that this discretion violates the Eighth and Fourteenth Amendments. See Ladd v. State, 3 S.W.3d 547, 574 (Tex.Crim.App.1999). Appellant raises no novel argument to persuade us to re-visit these holdings.

Appellant now claims that his Sixth Amendment rights were violated because he was prevented from developing evidence that would call his selection as a death-penalty candidate into question. However, appellant was not entitled to subpoena District Attorneys and question them regarding the exercise of their discretion which we have held to be constitutional. Thus, the trial judge was not required to allow appellant to present such evidence and did not err by overruling appellant's motion and by quashing the subpoenas. Point of error four is overruled.

In point of error five, appellant claims that the trial court erred in failing to find the facts alleged in his arrest warrant affidavit insufficient to support a finding of probable cause. He also complains that trial testimony revealed that one of the facts alleged in the affidavit was incorrect. He argues that the taint on the evidence from the illegal arrest was not attenuated, thus making the evidence inadmissible. The only evidence appellant points to in connection with this complaint is his first written statement. FN5

FN5. In this point of error, appellant complains of the trial court's failure to suppress the arrest warrant, but at the close of his argument, appellant maintains that the taint from the illegal arrest calls for suppression of the evidence obtained as a result thereof. We assume appellant's complaint is directed at the failure to suppress evidence, not the arrest warrant itself.

In assessing the sufficiency of an affidavit for an arrest or a search warrant, the reviewing court is limited to the four corners of the affidavit. Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993). The reviewing court should interpret the affidavit in a common sense and realistic manner, recognizing that the magistrate was permitted to draw reasonable inferences. Id. at 124.

The facts that can be derived from the four corners of appellant's arrest warrant affidavit are: (1) three dead bodies were discovered in a mobile home; (2) the victims were appellant's wife and her two children; (3) appellant had recently been released from jail and was living with the victims in the mobile home where the bodies were found; (4) appellant's wife's car was missing from the scene; (5) the victims were killed with a gun and appellant was in possession of a gun; (6) an unsigned note stating “I am guilty of murder, incest, hatred, fraud, theft, jealously [sic], and envy” was found inside the mobile home on an envelope addressed to appellant; FN6 (7) appellant had previously assaulted another woman; (8) appellant's wife's car was parked outside of his girlfriend's apartment; (9) at 2 a.m., appellant asked his girlfriend to check to see if there was anything unusual outside of her apartment; and (10) when approached by officers outside of her apartment, appellant's girlfriend told the officers that appellant was inside her apartment, that he was armed with a pistol and had access to a rifle and another pistol, that he had been staying with her for several days, and that he had been driving his wife's car.

FN6. The allegedly incorrect allegation concerned the envelope. At trial, two police officers testified that the envelope referred to in the affidavit did not in fact display an address. Rather, there was a window on the front of the envelope where the address was supposed to show through. Found next to the envelope at the crime scene was a bank notice of insufficient funds addressed to appellant. The handwritten note was written mostly on the back of the insufficient funds notice, with one line of the note written on the back of the envelope. The discrepancy between the evidence and the description in the affidavit was explained as a miscommunication over the phone between the officers at the scene and the officer who prepared the affidavit. We need not address the issue of incorrect facts since the affidavit is insufficient nonetheless.

While these facts together might create suspicion, we agree with appellant that they do not add up to probable cause that appellant committed the murders. There were no facts that would lead a neutral and detached magistrate to conclude that appellant was the perpetrator and not merely living with his wife and driving her car. There is nothing to show that the note was written by appellant. Even if the envelope on which the note was written was, as alleged, addressed to appellant, it was found at the crime scene where appellant was living. The note could have been written by anyone who picked up the envelope while inside the residence. None of the facts as alleged specifically tie appellant to the commission of the offense. Compare Earhart v. State, 823 S.W.2d 607, 631 (Tex.Crim.App.1991)(holding that arrest warrant affidavit was sufficient to establish probable cause where it alleged that the child victim had disappeared, that defendant encountered the victim about a week before her disappearance at which time defendant “paid a lot of attention” to her, that defendant was seen by several people in the victim's neighborhood on the day she disappeared, that defendant specifically asked a neighbor when the victim's family was expected home on the date of her disappearance, that a car matching the description of defendant's car was seen at the victim's home, that the victim was seen talking to the car's occupant on the afternoon of her disappearance, and that defendant left town within two days of the victim's disappearance), vacated on other grounds, 509 U.S. 917, 113 S.Ct. 3026, 125 L.Ed.2d 715 (1993); Gibbs v. State, 819 S.W.2d 821, 830-31 (Tex.Crim.App.1991)(concluding that the arrest warrant affidavit established probable cause where it alleged facts demonstrating that defendant was in proximity of the location of the crime when the crime was committed, that defendant wore boots early in the evening on the night of the offense, but left for a while and was not wearing the boots when he returned, that these same boots were stained with human blood when they were recovered from defendant's apartment at the complex where the crime was committed, that defendant concocted a series of lies to divert the attention of police away from himself and the commission of the crime, and that property stolen from the victim was recovered from defendant's possession), cert. denied, 502 U.S. 1107, 112 S.Ct. 1205, 117 L.Ed.2d 444 (1992).

When the affidavit supporting an arrest warrant is insufficient, the question is then whether the resulting taint on the evidence was attenuated, such that the evidence was admissible notwithstanding the illegal arrest. Id. In assessing whether the taint on the evidence is sufficiently attenuated, the United States Supreme Court has identified the following factors for consideration: (1) whether Miranda warnings were given; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. Id. (citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). The only evidence discussed by appellant in analyzing this issue is his first written statement.FN7 FN7. Complaint as to any other evidence is waived. Tex.R.App. P. 33.1.

Appellant was informed of his rights by the judge during his arraignment at 4:05 p.m. on August 30, 2001. At 4:25 p.m., appellant agreed to talk with Detectives Ralph Standefer and Barry Moore. Standefer read appellant his Miranda rights at the outset of the interview. Appellant sat next to Standefer and read the warning sheet along with him, initialing each right stated therein. About an hour into the interview, appellant agreed to give a written statement. Before appellant signed the transcribed statement, Moore read appellant his Miranda rights from the statement form. Thus, the first factor weighs in the State's favor. As to proximity, appellant was arrested and taken into custody around 7:00 a.m. on August 30, 2001. He was initially taken to the Arlington police station, but was later transported to the Mansfield jail for arraignment. He was arraigned at 4:05 p.m. and his interview began immediately thereafter, at around 4:30 p.m. He began dictating his statement at 5:40 p.m. Nine and a half hours from the time of appellant's arrest until his interview is not so long that it becomes a particularly weighty factor for the State, but it is not so little that it favors appellant. Compare Bell v. State, 724 S.W.2d 780, 788-91 (Tex.Crim.App.1986)(concluding that one and a half to three hours before the first confession favored defendant but the passage of a day before the second confession favored the State), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). Thus, this factor does not weigh in favor of either party. The most important intervening circumstance in this case is appellant's arraignment before Judge Bill Lane at 4:05 p.m. Judge Lane gave appellant a written warning sheet, which appellant signed. The Judge also informed appellant of the charge against him, and read him his constitutional rights. Appellant asked Judge Lane about the process for obtaining an attorney because he was worried that he would not be able to afford one. Judge Lane explained the process for the appointment of an attorney, and then asked appellant if he would like an attorney. Appellant declined. Finally, there is no suggestion or evidence of official misconduct. Given the various readings of appellant's rights, his arraignment, and the absence of any official misconduct, this factor weighs in the State's favor. Jones, 833 S.W.2d at 125 (stating that, coupled with Miranda warnings and the absence of official misconduct, taking defendant before a neutral magistrate was an intervening circumstance sufficient to attenuate taint). Accordingly, the four factors viewed together weigh most heavily in the State's favor such that appellant's first written statement was not tainted by his illegal arrest. Point of error five is overruled.

The judgment of the trial court is affirmed. KELLER, P.J., concurred in point of error five and otherwise joins the opinion of the Court. WOMACK, J., concurred.

Hankins v. Quarterman, 288 Fed.Appx. 952 (5th Cir. 2008) (Habeas).

Background: Petitioner sought federal habeas corpus relief after his capital murder conviction and death sentence were upheld on direct appeal, 132 S.W.3d 380. The United States District Court for the Northern District of Texas, 2007 WL 959040, denied petition. Petitioner requested certificate of appealability (COA) permitting his appeal.

Holdings: The Court of Appeals held that: (1) defense counsel presented sufficient mitigating evidence at sentencing phase of capital murder trial; (2) counsel did adequate job investigating mitigating circumstances; (3) petitioner was not prejudiced by defense counsel's performance; (4) jury instruction did not violate Eighth or Fourteenth Amendment; (5) defense counsel's failure to object to instruction did not prejudice petitioner; (6) burden of proof was not required as to issue of adequacy of mitigating evidence to avoid death sentence in capital murder trial; and (7) Texas's method of lethal injection did not violate Eighth Amendment's protections against cruel and unusual punishment. Certificate of appealability denied.

Petitioner Terry Lee Hankins (“Petitioner”) seeks a certificate of appealability (“COA”) and permission to appeal the district court's denial of habeas corpus relief under 28 U.S.C. § 2254. Petitioner asserts that: (1) the district court erred in denying his ineffective assistance of counsel claims when his counsel failed to properly and adequately present mitigating evidence from Petitioner's childhood; failed to employ an expert to gather, analyze, and present the mitigating evidence; failed to have Petitioner tested by a qualified forensic psychologist; and failed to object to the court's jury instruction on mitigation; (2) the district court erred in ruling that the jury instruction on the mitigation issue did not violate the Eighth and Fourteenth Amendments; (3) Article 37.071(2)(e)(1) of the Texas Code of Criminal Procedure, relating to mitigation, is unconstitutional because it does not place a burden of proof on the state; and (4) the lethal injection method of execution used by the State of Texas violates the Eighth Amendment. We conclude that reasonable jurists would not disagree with the district court's assessment of Petitioner's claims, and we deny Petitioner's request for a COA.

Petitioner was convicted by a jury of the capital murders of two of his wife's children, and his punishment was assessed at death by lethal injection. Petitioner appealed the conviction to the Texas Court of Criminal Appeals, which affirmed the conviction, and the United States Supreme Court denied certiorari.FN1 Petitioner filed a state application for writ of habeas corpus, which was denied by the state court. That denial was also affirmed by the Texas Court of Criminal Appeals.

FN1. See Hankins v. State, 132 S.W.3d 380 (Tex.Crim.App.), cert. denied, 543 U.S. 944, 125 S.Ct. 358, 160 L.Ed.2d 256 (2004).

Petitioner then petitioned the federal district court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, contending that his conviction and sentence are unconstitutional in several respects. The district court denied the petition for a writ of habeas corpus and also declined to issue a COA.

The gruesome facts adduced in this case will not be recounted here in full. Suffice it to say, the state produced overwhelming evidence at the guilt phase of the trial establishing that Petitioner killed his wife, Tammy Hankins, and her two children, Kevin Galley and Ashley Mason. He left the naked bodies of the children and the body of their mother in the trailer in which they lived. There was also evidence that Petitioner engaged in sexual activity with and around the dead bodies. In the punishment phase of the trial, Petitioner also confessed to killing his half-sister, Pearl Sevenstar, with whom he fathered a son. He lied to others about his sister's whereabouts, saying that he had sent her to a home for pregnant mentally-challenged women, when in fact he had stored her dead body in a plastic container. He also admitted to killing his father, Earnie Hankins. He told people his father had moved out of state, when in fact his father's mummified remains were in his trailer surrounded by air fresheners. The defense counsel called several mitigating witnesses. We will discuss that testimony below.

Petitioner must obtain a COA before he can appeal the district court's denial of habeas relief.FN2 “This is a jurisdictional prerequisite because the [Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) ] mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....' ” FN3 According to AEDPA, a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” FN4 This standard requires a showing that “ ‘reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” FN5 This determination “requires an overview of the claims in the habeas petition and a general assessment of their merits.” FN6

FN2. 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court.”).

FN3. Haynes v. Quarterman, 526 F.3d 189, 192 (5th Cir.2008) (citing Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting 28 U.S.C. § 2253(c)(1))).

FN4. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

FN5. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)); Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.2000).

FN6. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. In order to be entitled to relief on the merits, Petitioner must show that the state court's adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).

The Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. FN7

FN7. Haynes, 526 F.3d at 192-93 (citing Miller-El, 537 U.S. at 336-37, 123 S.Ct. 1029).

In sum, Petitioner need not show that the appeal will ultimately succeed. FN8 Instead, Petitioner “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” FN9 “Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination.” FN10 With regard to claims adjudicated on the merits in state court, “ ‘[o]ur role is to determine not whether [Petitioner] is entitled to relief, but whether the district court's conclusion that the state court adjudication was not contrary to or an unreasonable application of clearly established federal law is one about which jurists of reason could disagree or as to which jurists could conclude that the issues presented are adequate to deserve encouragement to proceed further.’ ” FN11

FN8. Miller-El, 537 U.S. at 337, 123 S.Ct. 1029 (citing Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383); see also Slack, 529 U.S. at 484, 120 S.Ct. 1595. FN9. Haynes, 526 F.3d at 193 (citing Miller-El, 537 U.S. at 338, 123 S.Ct. 1029). FN10. ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir.2007) (citing Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997)). FN11. Haynes, 526 F.3d at 193 (quoting Jackson v. Dretke, 450 F.3d 614, 616 (5th Cir.2006)).

First, Petitioner contends that his counsel was ineffective because counsel should have presented at his trial all of the detailed mitigating facts submitted with his state habeas petition. Second, Petitioner argues that counsel should have employed a “mitigation specialist” to conduct the mitigation investigation rather than conducting it themselves. Third, Petitioner argues that counsel should have had him tested by a qualified forensic psychologist. For these three reasons, Petitioner alleges that counsel provided ineffective assistance in violation of the Sixth Amendment, with respect to the mitigation issue.

The Sixth Amendment guarantees a defendant in a criminal case reasonably effective assistance of counsel.FN12 The standard against which counsel is measured is set forth in Strickland v. Washington.FN13 Petitioner must establish

FN12. Thomas v. Lynaugh, 812 F.2d 225, 229 (5th Cir.1987) (citing Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). FN13. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

(1) that counsel's performance was deficient in that it fell below an objective standard of reasonable professional service; and (2) that this deficient performance prejudiced the defense such that there is a reasonable probability that the outcome of the trial has been undermined and the result would have been different. FN14. Thomas, 812 F.2d at 229 (citing Strickland, 466 U.S. at 697-98, 104 S.Ct. 2052).

“Judicial scrutiny of counsel's performance must be highly deferential,” FN15 and counsel's performance is subject to 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.’ ” FN16 The prejudice component of the Strickland test focuses on “whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” FN17

FN15. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. FN16. Id. FN17. Williams v. Taylor, 529 U.S. 362, 393 n. 17, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal citations and quotations omitted).

As to the first and second issues, the district court, agreeing with the state habeas court, concluded that the evidence which was presented to the jury on the mitigation issue was sufficient. It reasoned that much of the evidence Petitioner complains was not presented was either redundant or was closely related to evidence that was presented. The state court found that other evidence could not be presented because certain witnesses refused to testify and because Petitioner declined to have them subpoenaed.FN18 Additionally, some evidence could only have been presented if Petitioner had agreed to testify.

FN18. Petitioner's step-mothers refused to testify, and Petitioner declined counsel's offer to subpoena them.

The district court noted that seven family members and friends, three officers from the Tarrant County jail, and a clinical psychologist and former employee of the Texas Department of Criminal Justice testified during the punishment phase of the trial. Additionally, a spiral notebook in which Petitioner made notes about his personal background was admitted into evidence. This evidence clearly demonstrated that Petitioner endured verbal and physical abuse from his father (who also kept him from his mother as a child), was involved in incestuous relationships, was raised in poverty, abused drugs and alcohol, had physical handicaps for which he was teased as a child, and completed school only through the ninth grade. Petitioner's mother also testified that Petitioner's father physically abused her and threatened to kill her and that she abused alcohol when Petitioner was young.

Petitioner claims that counsel should have presented certain other evidence to the jury. Although some evidence of each of these issues was presented, he argues counsel should have presented further evidence of: substance abuse by his mother and other family members, his father's abuse of his mother, his being kept away from his mother by his father, his physical deformities, the history of incest in his family, the poverty in which he was raised, his poor relationships with other family members, his own substance abuse, and his troubled school-life.FN19 We agree with the state habeas court and district court that additional evidence on these issues would not have made a difference.

FN19. The mitigating evidence Hankins complains his counsel did not produce at trial was provided to the state habeas court through the report of a court-appointed forensic psychologist, Dr. Kelly Goodness. The psychologist, in turn, obtained some of this information from Hankins, and Petitioner did not establish what witnesses would have provided this information at trial, except to argue that counsel could have had a psychologist testify. We conclude supra however, that the state and district courts did not err in concluding that counsel's decision not to have a psychologist testify was sound trial strategy.

The state habeas court determined that although not all evidence from counsel's investigation was presented, counsel employed sound trial strategy and presented all evidence they believed would be favorable to Petitioner. The state habeas court also found that counsel did an adequate job investigating, and there was no requirement that a mitigation specialist be hired. The district court agreed with the state habeas court and concluded that it was not error under Strickland for counsel to decline to present redundant evidence, to subpoena witnesses over Petitioner's direction not to do so,FN20 or to decline to call Petitioner as a witness because it would have opened him up to damaging cross examination about his numerous, revolting violent criminal acts.

FN20. See United States v. Masat, 896 F.2d 88, 92 (5th Cir.1990) (declining to permit a defendant to avoid conviction on the ground that his lawyer did exactly what he asked him to do); see also Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.”).

Regarding Petitioner's argument that counsel should have had him tested by a qualified forensic psychologist, the district court explained that counsel had retained a psychiatrist who examined Petitioner and recommended that he not be psychologically tested because the results would be harmful to his case. The district court determined under Strickland that counsel's decision not to have Petitioner tested by a psychologist was an informed decision based on sound trial strategy because it prevented the state from having its own psychologist examine Petitioner and offering evidence based on an independent mental health expert examination.FN21

FN21. See Williams v. Lynaugh, 809 F.2d 1063, 1067-69 (5th Cir.1987) (state can present psychiatric testimony in rebuttal if defendant first introduces psychiatric evidence on the issue of future dangerousness or insanity).

Our review of the record persuades us that reasonable jurists would not disagree with the state court and the district court's application of Strickland on these three points. Reasonable jurists would agree that counsel performed within the wide range of reasonable professional assistance for the reasons just stated. The district court also agreed with the state court that with the extensive aggravating evidence adduced at trial, there was no reasonable probability that further evidence of Petitioner's abusive upbringing and testimony from a psychologist that he was a substance abuser with an anti-social personality disorder would have resulted in a life sentence. We are satisfied that jurists of reason would not disagree. FN22

FN22. See Russell v. Lynaugh, 892 F.2d 1205, 1213 (5th Cir.1989) (finding no ineffective assistance where counsel did not present character witnesses “[g]iven the weakness of such testimony when juxtaposed with the overwhelming evidence of guilt, the horrifying nature of the crime, and the abundant impeachment material available to the state.”).

Petitioner argues next that he is entitled to relief because of an erroneous jury instruction. At the punishment phase of the trial, the following instruction was given to the jury:

In deliberating on Special Issue No. 1 and Special Issue No. 2, the jury shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or circumstances of the offense that militates for or mitigates against the imposition of the death penalty.

The relevant Texas statute provides that such a charge shall be given to the jury with respect to the first special issue, concerning “future dangerousness,” but not the second special issue, concerning whether mitigating evidence exists such that a defendant should receive life imprisonment instead of the death penalty.FN23 As to the future dangerousness special issue, Texas law provides:

FN23. See Tex.Code Crim. Proc. Art. 37.071 §§ (2)(b), (2)(d)(1) (Vernon 1991).

The court shall charge the jury that: ... in deliberating on the issues submitted under Subsection (b) of this article, it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.FN24. Id. at § (2)(d)(1).

As to the mitigation issue special issue, however, Texas law instructs that: The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. FN25 FN25. Id. at § (e)(1).

Petitioner objects to the instruction given to the extent that it directs the jury to consider evidence that militates in favor of the death penalty during the jury's consideration of the mitigation issue. Petitioner contends that the court violated the Eighth and Fourteenth Amendments by giving this jury instruction and that his Sixth Amendment rights were violated because counsel did not object to the instruction.

The state habeas court, in considering these claims, concluded that the jury instruction did not violate the Eighth or Fourteenth Amendments. The court reasoned that although the Constitution requires that a capital jury be given a vehicle to consider relevant mitigating evidence, it does not require that jurors be given an opportunity to consider mitigating evidence apart from all other evidence adduced at trial. The federal district court determined that the state habeas court did not err in this conclusion.

Petitioner argues that the jury should have been able to consider mitigating evidence in isolation from evidence of aggravating circumstances, and thus the Eighth and Fourteenth Amendments were violated. But, “[t]he Supreme Court has never precluded the use of aggravating circumstances as part of the process of an individualized determination of culpability,” that is, “whether a defendant should in fact receive a death sentence ‘on the basis of the character of the individual and the circumstances of the crime.’ ” FN26 The Supreme Court has explained:

FN26. Mosley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App.1998) (quoting Tuilaepa v. Ca., 512 U.S. 967, 971-74, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994)).

Petitioner suggests that the jury must have freedom to decline to impose the death penalty even if the jury decides that the aggravating circumstances ‘outweigh’ the mitigating circumstances. But there is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence.... FN27

FN27. Boyde v. California, 494 U.S. 370, 377, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). See also Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (the Supreme Court has never held that a specific method for balancing mitigating and aggravating factors in capital sentencing is constitutionally required); Zant v. Stephens, 462 U.S. 862, 890, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Additionally, The Texas Court of Criminal Appeals has squarely stated that [T]he mitigation issue does not require the jury to consider or find any aggravating circumstances.... While the[ ] cases have some language indicating that the mitigation question does not involve aggravating circumstances, such language should properly be viewed as simply observing that the issue does not require their consideration. Such an observation does not, however, preclude permitting the jury to consider aggravating factors in making its evaluation. We disavow any language in those cases that suggests otherwise.... In determining whether to dispense mercy to a defendant after it has already found the eligibility factors in the State's favor, the jury is not, and should not be, required to look at mitigating evidence in a vacuum ... [ ]consistent with Supreme Court precedent. Mosley, 983 S.W.2d at 263 n. 18 (emphasis in original) (citations omitted).

The district court in this case aptly noted: “The fact that the challenged jury instruction was not the one provided for in the relevant Texas statute does not render it unconstitutional.” FN28 Based on the above authorities, we are satisfied that reasonable jurists would not disagree that the jury instruction did not violate the Eighth or Fourteenth Amendments. FN29

FN28. Petitioner also contends in his brief to this Court that the instruction violated Texas law, but to be cognizable on federal habeas, there would have to have been a violation of a federal right. See Smith v. McCotter, 786 F.2d 697, 702-03 (5th Cir.1986) (citing Baldwin v. Blackburn, 653 F.2d 942, 948 (5th Cir.1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475, reh'g denied, 457 U.S. 1112, 102 S.Ct. 2918, 73 L.Ed.2d 1323 (1982) (holding that a failure to comply with state law requirements presents a federal habeas issue only if it involves federal constitutional issues)). Thus, to the extent that Petitioner alleges that his incarceration is the result of a violation of Texas procedural statutes, yet the instruction given was not unconstitutional, his claim is not cognizable under federal habeas review.

FN29. See Boyde, 494 U.S. at 377, 110 S.Ct. 1190; Franklin, 487 U.S. at 179, 108 S.Ct. 2320; Zant, 462 U.S. at 890, 103 S.Ct. 2733; Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990).

As to Petitioner's Sixth Amendment claim based on counsel's failure to object to the instruction, the Texas Court of Criminal Appeals, adopting the findings of fact and conclusions of law of the lower court, concluded that the jury instruction was not erroneous and that trial counsel was not deficient in failing to object to this jury charge because such an objection would have been overruled. The state habeas court further concluded that, given the amount and type of evidence presented at trial, Petitioner had failed to establish a reasonable probability that, had an objection been made and sustained, the result of the trial would have been different. The district court agreed, explaining that Petitioner did not establish prejudice due to counsel's failure to object to the charge. Given the vast evidence of Petitioner's heinous acts, reasonable jurists would agree that had the jury been instructed to only consider mitigating evidence in deciding the mitigation special issue no reasonable probability exists that the jury would have answered the mitigation question in the affirmative, thereby reducing his sentence to a life sentence.

Petitioner also argues that a lack of adequate mitigation evidence to avoid a death sentence must be established by the state by proof beyond a reasonable doubt. The Texas Code of Criminal Procedure Article 37.071(2)(e)(1), in force at the time of trial, provides: The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article [finding defendant to be a continuing threat to society and that defendant actually caused the death, intended to kill, or anticipated that a human life would be taken], it shall answer the following issue: Whether taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.FN30

FN30. Tex.Code Crim. Proc. Art. 37.071 § (2)(e)(1) (Vernon 2001). Though inapplicable in this case, this article was amended in 2005 to reflect a sentence of “life imprisonment without parole ” as the alternative sentence to death.

The state habeas court, citing precedent from the Texas Court of Criminal Appeals, held that the absence of a burden of proof on this issue did not render the statute unconstitutional.FN31 The district court also found no violation of federal law, citing to this Court's precedent.FN32 In Rowell v. Dretke, this Court explained: “No Supreme Court or Circuit precedent constitutionally requires that Texas's mitigation special issue be assigned a burden of proof.” FN33 The district court in Rowell “explained that no burden of proof exists for either the defendant or the State to prove or disprove mitigating evidence at the punishment phase.” FN34 Thus, we held that “reasonable jurists would not be able to debate whether this issue should have been resolved in a different manner by the district court.” FN35 Therefore, jurists of reason would not disagree with the district court's conclusion that a burden of proof is not constitutionally required on the mitigation issue.

FN31. See Allen v. State, 108 S.W.3d 281, 285 (Tex.Crim.App.2003); Rayford v. State, 125 S.W.3d 521, 529-30 (Tex.Crim.App.2004).

FN32. See Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir.2005) (holding that there is no constitutional requirement that Texas's mitigation issue be assigned a burden of proof); Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir.), cert. denied, 549 U.S. 1081, 127 S.Ct. 732, 166 L.Ed.2d 568 (2006) (holding that a petitioner's Sixth Amendment rights are not violated when state law does not require the prosecution to prove the absence of mitigating factors beyond a reasonable doubt).

FN33. Rowell, 398 F.3d at 378. FN34. Id. FN35. Id.

Petitioner also argues that Texas's method of lethal injection, which incorporates the use of sodium thiopental, pancuronium bromide, and potassium chloride, violates the Eighth Amendment's protections against cruel and unusual punishment. The state habeas court and the federal district court both found that this method of execution did not violate the Eighth Amendment. This issue has now been definitively resolved by the United States Supreme Court in Baze v. Rees.FN36 In that case, the Supreme Court held that Kentucky's use of the same three-drug protocol in lethal injections does not offend the Eighth Amendment.FN37 Thus, the district court's conclusion is not one debatable by jurists of reason, in light of Baze.

FN36. --- U.S. ----, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). FN37. Id. at 1533-37.