Thursday, April 23, 2009
Media Advisory: Derrick Johnson scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information on Derrick Lamone Johnson, who is scheduled to be executed after 6 p.m. on Thursday, April 30, 2009. Johnson was convicted and sentenced to death for the capital murder of LaTausha Curry in Dallas. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

On the evening of Jan. 21, 1999, LaTausha Curry left her Oak Cliff area home in her red 1987 Ford Taurus to meet someone for a date. The 25-year-old Curry never returned.

At around midnight on the evening Curry disappeared, a woman went to a gas station, where she noticed a red car occupied by two young men. One of the men pointed a gun at her and demanded her purse, which she gave them. In court, she identified Johnson as the robber and driver of the car. She also identified Curry's red Ford Taurus as the car he was driving.

In the early morning hours of January 22nd, Johnson and an accomplice tried to force another woman off the road using Curry’s red Taurus, but the woman evaded their attempts and ultimately chased them until police could join her.

Although Johnson and his accomplice fled the car, Johnson was later captured and confessed in writing that he and his accomplice sexually assaulted and killed Curry. Johnson also told the police where Curry's body could be found. The body was found where Johnson said it would be, and Johnson's fingerprints were found in the victim's car, and DNA testing matched Johnson to seminal fluid found on Curry's sweat pants.

PROCEDURAL HISTORY

Jan. 29, 1999 — A Dallas County grand jury indicted Johnson for capital murder in LaTausha Curry’s death.
Nov. 19, 1999 — Judgment was entered after a jury found Johnson guilty of capital murder and following a separate punishment hearing, the court assessed a sentence of death.
Oct. 22, 2001 – Johnson filed a state writ application in the trial court.
Jan. 30, 2002 — Johnson’s conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals.
Oct. 8, 2003 — The Court of Criminal Appeals denied Johnson’s application for state habeas relief.
May 17, 2004 — Johnson filed a petition for writ of habeas corpus in a federal district court.
Sep. 18, 2007 — The federal district court denied Johnson’s habeas petition.
Oct. 2, 2008 — The Fifth U.S. Circuit Court of Appeals denied Johnson’s request for a certificate of appealability.
Dec. 30, 2008 — Johnson petitioned the U.S. Supreme Court for certiorari review off federal habeas.
Jan. 16, 2009 — The trial court signed the order setting Johnson’s execution date for April 30, 2009.
Mar. 9, 2009 — The Supreme Court denied certiorari review off federal habeas.

PRIOR CRIMINAL HISTORY

Johnson’s murder of LaTausha Curry took place in the middle of a crime spree. One week prior to the murder, Johnson and his underage accomplice abducted another woman, sexually assaulted her, and attempted to strangle her before she was able to persuade them to take her with them to commit robberies. In the course of twenty-four hours, Johnson committed eight robberies. Further Johnson had prior convictions for robbery and burglary.

Dallas Morning News

"Dallas man executed for rape-slaying," by Michael Graczyk. (Associated Press 04/30/2009)

A Dallas man was executed Thursday evening for the rape-slaying of a woman abducted while she was trying to make a call at a pay phone 10 years ago.

Derrick Lamone Johnson's mother became emotional as she entered the witness chamber and saw her son strapped to the gurney. In a matter-of-fact voice, Johnson told her, "Don't cry. It's my situation. I got it. Hold tight. It's going to shine on the golden child." After telling her he loved her, Johnson said, "That concludes the statement." The victim's father and two sisters also were among witnesses. Johnson did not acknowledge them.

Nine minutes after the lethal drugs began to flow, he was pronounced dead at 6:23 p.m. Johnson, 28, was the 14th Texas prisoner executed this year in the nation's most active death penalty state.

LaTausha Curry, 25, of Dallas, was robbed of less than $10, was driven away in her car, raped, beaten with a two-by-four and suffocated with her own blouse. Authorities determined the 1999 slaying was part of a two-week crime spree involving Johnson and a companion that left numerous women robbed or raped from Dallas to south of Waco, some 100 miles away.

Lawyers for Johnson went to the U.S. Supreme Court to block the punishment, contending Johnson was mentally disabled and ineligible for execution under high court guidelines. About an hour before Johnson could be taken to the death chamber, the high court turned down his request for a reprieve and a review of his case.

In their appeals, attorneys argued Johnson's sentence should be commuted to life, that he was the product of a difficult childhood where both his parents were imprisoned for drug convictions, that he was beaten by relatives who raised him, that he had a history of school suspensions and expulsions beginning with the sixth grade and that IQ testing put him within the range of what the courts have defined as mental retardation. The 5th U.S. Circuit Court of Appeals rejected the argument earlier Thursday, a day after the Texas Court of Criminal Appeals turned Johnson down.

Greg Davis, a former Dallas County assistant district attorney who prosecuted Johnson for capital murder, said he remembered the grief of Curry's mother, who died not long after the trial. "I remember her mother coming in and saying how she lost more than a daughter," Davis said. "She said, 'I lost my best friend.' It did break the mother's heart. I think this case ultimately killed her as well."

Several women who survived attacks from Johnson and a partner, Marcus Maxwell, then 15, testified at Johnson's trial. Maxwell, who was set to be tried as an adult, took a plea deal and is serving 40 years in prison.

Johnson declined an interview request from The Associated Press but said he was wrongly convicted and complained about his court-appointed defense attorneys on a Web site devoted to death row inmates. "That's a real shock," Wayne Huff, one of Johnson's trial lawyers, said sarcastically. "The system is corrupt and there is no 'Justice' if you are of the low class," Johnson wrote. "It is sad that if you are a poor man in the system there is no justice for you."

In a confession to police, Johnson said he and Maxwell raped and killed Curry, who worked as a security guard and had a 4-year-old child. He told officers where to find her body in an overgrown part of a park in Dallas' Oak Cliff area. His fingerprints were in her car and DNA tied him to her rape.

After they killed Curry, records show the pair robbed a woman at a gas station. Later, driving Curry's car, they rammed into another woman's car in a carjacking attempt. That woman called police but Johnson and Maxwell ran off. Johnson was arrested four days later at his mother's apartment, Police found bags of cocaine inside a hollowed-out pager he was carrying.

His mother was the only defense witness at his capital murder trial. She testified he'd been raised by family members after she was sent to prison with a 15-year drug sentence. Records showed Johnson was arrested two years earlier for robbery, pleaded guilty and received 10 years probation that included a stint in a boot camp. He was released from the camp after 65 days for good behavior.

Johnson was among at least six Texas inmates with execution dates extending into the summer. Scheduled to die next, on May 19, was Michael Lynn Riley, 50, condemned for the slaying of Winona Harris. The victim was stabbed more than 23 years ago during the robbery of a convenience store in Quitman, about 80 miles east of Dallas.

Johnson would be the 198th Texas inmate put to death since Rick Perry became governor when George W. Bush resigned following his presidential election in 2000.

Capital punishment opponents from Amnesty International USA and the Texas Coalition to Abolish the Death Penalty planned to gather for a 200-minute vigil outside the criminal courthouse in Houston Thursday to mark what soon will be the 200th execution of Perry's tenure. During Bush's six years as governor, 157 executions were carried out in Texas.

Huntsville Item

"Dallas man executed for rape, murder," by Rachael Gleason. (April 30, 2009 10:08 pm)

A Dallas man was executed Thursday night for the rape and murder of a woman 10 years ago. Derrick Lamone Johnson, 28, was the 14th prisoner sent to the death chamber this year.

Johnson and a companion abducted 25-year-old Latausha Curry of Dallas while she was trying to make a call on a pay phone. The two men took less than $10 from Curry before raping and suffocating her. Authorities determined the two men were on a two-week crime spree in the Dallas area at the time of the slaying.

Johnson told his mother, who became emotional as she entered the death chamber, to hold tight during his last statement. “Don’t cry, it’s my situation,” he said. “It’s going to shine on the golden child.”

Lawyers for Johnson went to the U.S. Supreme Court to block the punishment, contending Johnson was mentally disabled and ineligible for execution under high court guidelines. In their appeals, attorneys argued Johnson’s sentence should be commuted to life, that he was the product of a difficult childhood where both his parents were imprisoned for drug convictions, that he was beaten by relatives who raised him, that he had a history of school suspensions and expulsions beginning in the sixth grade and that IQ testing put him within the range of what the courts have defined as mental retardation. The 5th U.S. Circuit Court of Appeals rejected the argument earlier Thursday, a day after the Texas Court of Criminal Appeals turned Johnson down.

Johnson’s mother was the only defense witness at his capital murder trial. She testified he’d been raised by family members after she was sent to prison with a 15-year drug sentence.

Records showed Johnson was arrested two years earlier for robbery, pleaded guilty and received 10 years probation that included a stint in a boot camp. He was released from the camp after 65 days for good behavior.

Johnson was among at least six Texas inmates with execution dates extending into the summer. Scheduled to die next, on May 19, is Michael Lynn Riley, 50, condemned for the slaying of Winona Harris. The victim was stabbed more than 23 years ago during the robbery of a convenience store in Quitman, about 80 miles east of Dallas.

Johnson is the 198th Texas inmate put to death since Rick Perry became governor when George W. Bush resigned following his presidential election in 2000.

Capital punishment opponents from Amnesty International USA and the Texas Coalition to Abolish the Death Penalty planned to gather for a 200-minute vigil outside the criminal courthouse in Houston Thursday to mark what soon will be the 200th execution of Perry’s tenure. During Bush’s six years as governor, 157 executions were carried out in Texas.

Houston Chronicle

"Dallas man set to die for woman's rape-slaying," by Michael Graczyk. (Associated Press April 29, 2009, 9:49AM)

HUNTSVILLE, Texas — A half-dozen women testifying before a Dallas County jury told how they were forced off the road as they drove alone at night, were robbed at gunpoint or abducted or raped. They were the lucky ones.

Twenty-five-year-old LaTausha Curry fit the same profile, was abducted after getting out of her car to make a nighttime call at a Dallas pay phone, then was beaten with a two-by-four and suffocated with her blouse when she fought back against her attackers. She was robbed of less than $10.

Derrick Lamone Johnson, convicted of her slaying 10 years ago, was set to die Thursday evening in Huntsville. Johnson, 28, would be the 14th convicted murderer to receive lethal injection this year in the nation's most active death penalty state.

Attorneys for Johnson were hoping a court would delay the punishment, contending the 10th-grade dropout was mentally retarded and ineligible for execution under U.S. Supreme Court rulings.

Johnson, who declined an interview request from The Associated Press, said on a Web site devoted to death row inmates that he was wrongly convicted. "Without proper funds to retain my own lawyer, I was appointed counsel to represent me," he wrote. "I stood vulnerable, being crucified. I was young and ignorant of the law, and thus this system victimized me."

Curry's slaying was part of a two-week crime binge involving Johnson and a companion, Marcus Maxwell, who was 15 at the time. Police suspected them of as many as two dozen offenses from Dallas more than 100 miles south to Eddy, just south of Waco, and included one spree of six robberies over eight hours. "Heartless, ruthless, unremorseful," former Dallas County Assistant District Attorney Greg Davis, who prosecuted Johnson, described him. "I think of a cold-blooded killer that killed an innocent young girl."

In a confession to police, Johnson said he and Maxwell raped and killed Curry, who worked as a security guard and had a 4-year-old child. He told officers where to find her body in an overgrown part of a park in Dallas' Oak Cliff area. His fingerprints were found in her car and DNA tied him to her rape.

The same night, after Curry was killed, records show the pair robbed a woman at a gas station. Then, driving Curry's car, they rammed into another woman's car in an attempt to carjack her. The victim in that incident called police but Johnson and Maxwell ran away and managed to elude police. When he was arrested four days later at his mother's apartment, police found Johnson carrying a hollowed-out pager containing cocaine.

His mother was the only defense witness at his capital murder trial. She testified he'd been raised by family members after she was sent to prison with a 15-year term for a drug conviction.

The Dallas County jury considering the evidence at his capital murder trial deliberated about 50 minutes before convicting him.

Records showed Johnson was arrested two years before Curry's slaying for breaking into the home of a disabled woman and demanding money. The victim in that robbery said when he told her she didn't have any money, he began unzipping his pants and warned she would have to do other things. She grabbed a phone to dial 911 and he hit her in the head, she said. Johnson pleaded guilty to robbery, received 10 years probation and was sent to a boot camp. After 65 days there, he was released on good behavior.

Davis said Johnson was a would-be rapper who had adopted the name Mr. Pimp. His partner, Maxwell, now 25, agreed to a plea deal on two counts of robbery and two counts of sexual assault and is serving four concurrent 40-year prison terms.

Johnson was among at least six Texas inmates with execution dates extending into the summer. Scheduled to die next, on May 19, was Michael Lynn Riley, 50, condemned for the slaying of Winona Harris. The victim was stabbed more than 23 years ago during the robbery of a convenience store in Quitman, about 80 miles east of Dallas.

ProDeathPenalty.com

On January 21, 1999, LaTausha Curry, age 25, lived with her parents in the Oak Cliff area of Dallas. She owned a red, 1987 Ford Taurus. That evening she set out for Camp Wisdom road to meet someone for a date. She never returned.

In a written confession, Derrick Lamone Johnson admitted that he and an accomplice sexually assaulted and killed LaTausha Curry, and in an oral statement given before the body had been discovered, he told the police where her body could be found. The body was found where Johnson said it would be. Johnson's fingerprints were found in LaTausha's car, and DNA testing matched Johnson to seminal fluid found on LaTausha's sweat pants.

At around midnight on the evening LaTausha disappeared, Stella Wilson went to a gas station. At the station, she noticed what she described as a "burgundy" car occupied by two young black men. One of these men later pointed a gun at her and demanded her purse, which she relinquished. In court, she identified Johnson as the robber and driver of the car. She also identified LaTausha's red Ford Taurus as the car he was driving.

About 1:30 to 2:00 a.m. on January 22nd, Tanya Robinson, an assistant manager at a Jack-in-the-Box, was driving home from work. She noticed behind her a reddish car occupied by two people. The red car began to chase her and hit her car while both vehicles were going about seventy-five miles per hour. She stopped her car, and when the driver of the red car got out of the car, she put the car in reverse and tried to run over him. Robinson then drove back to the Jack-in-the-Box and asked an employee to call the police. She then began to chase the red car to get a license plate number. The police subsequently joined the chase.

During the chase, Officer Larry Byers saw the red car crash and two black males run from the car. Byers identified Johnson as the driver. Robinson caught up with the red car after the occupants had fled and therefore was not able to identify the driver at trial. She did, however, identify LaTausha's Ford Taurus as the car that had chased her. LaTausha's car was impounded and searched, resulting in the recovery of various items, including a pipe made to look like a gun, a mace dispenser, and a cell phone. As a result of this incident Johnson was charged with the capital murder of LaTausha Curry under three different legal theories: murder in the course of kidnapping, murder in the course of robbery, and murder in the course of aggravated sexual assault.

Lamp of Hope

To those curious:

Hello you! This day is about to become extraordinary. You'll come to know me, my pleas, my pursuit, and that you are vital to my liberty. Your help, support, consideration and patience are what I ask of you.

I was born September 20th, 1980, in Dallas, Texas. My father was a diligent man with ambitions, and my mother; she showcased unconditional love. Dugs left my father as a broken man… when I was of the tender age of five. Curiosity can take blame for the things that make us cry. He exposed my mother. My mother conquered, and we united later in life, but my father lacked that self-discipline. My mother struggled and committed herself to two jobs for me and an older brother. I blessed her with a grandson – my son. He's two.

At the age eighteen, I was charged with capital murder. Without proper funds to retain my own lawyer I was appointed counsel to represent me. I stood vulnerable, being crucified. I was young and ignorant of the law, and thus this system victimized me. I was wrongly convicted – the evidence shows. With extreme passion I set out to defend my human dignity! I feel it's my obligation to convince you of why I make this claim and why you should support me with “overwhelming factual information” and I certainly intend to.

Friends and supporters who become part of my congregation will have the opportunity to view my web page: “First hand knowledge” where I will disclose factual sufficient information of my aspects. I will hold nothing back. Police reports, statements, witness testimony etc. Its you benevolent people that chose to help my defense funds that need and will receive unlimited information.

May I enlighten you? I am residing on Texas Deathrow. The death penalty here in Texas isn't effective. Innocent people are being killed! When holding the power of “life and death” we need to know our system is effective. The system is corrupt and there is no “Justice” if you are of the low class. It's time we unite for the human rights in the United States of America. Texas maintains the nock-name: “The Killing Machine”. 62% of the United States believes that innocent people are being executed. The people (we – US) have the power! Why then isn't the congress listening?? Incompetent defense lawyers are being imposed. Experienced lawyers are being underpaid by the court to represent defendants, causing a laziness in a full rational investigation. It was discovered that 65% of all cases on deathrow are constitutionally flawed. Our constitutional amendments are supposed to protect us from “cruel and unusual punishment and harassment.”

Justice Blackman of the United States Supreme Court summarized his position in the following extract: Twenty years have passed wince this court declared that the death penalty must be 'imposed fairly and with reasonable consistency' or not at all and, despite the efforts of the states and counties to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake. (This is the voice of Justice – there must be a major problem).

It is sad that if you are a poor man in the system that there is no justice for you. This country is not governed by the United State Constitution and as long as the capitalists are in control, we will always give property the priority over humanity. In my quest to pursue my ambitions I have a vision of freedom.

I have needs, my life is precious. I need you, benevolent one. Together we can become those voices that can change this fallible system. I need the assistance of a skilled lawyer, and without any means of making wages – I can't. I call on you personally to get involved or indirectly involved – the call is yours. I call on you to help contribute to the Derrick Lamone Johnson Defense Fund. I heard them talk about an angel… Commit with me.

Benevolent one, it would be detrimental if I was to be secretive. If you have any questions, please freely express them. If you are willing to Unite 4 Justice – contact me

For more information, please visit my webpage

For your patience and understanding: with respect and humbleness, I thank you

Sincerely,

Derrick Johnson Lamone
Polunsky Unit 999339
3872 FM 350 South
Livingston, Texas 77351 USA

Johnson v. State, 68 S.W.3d 644 (Tex.Cr.App. 2002) (Direct Appeal).

Defendant was convicted in the trial court, Dallas County, of capital murder. Defendant appealed. The Court of Criminal Appeals, Keller, P.J., held that: (1) peremptory strike of African-American prospective juror because she demonstrated resentment toward police was not racially discriminatory; (2) evidence of extraneous offenses committed by defendant, which involved defendant committing robbery and involved defendant chasing and hitting another vehicle while driving, was admissible to show identity; (3) defendant's consent to search his residence was voluntary, and (4) jury instruction, which stated that jury was not to consider how long defendant might be required to serve a sentence that is imposed, did not violate defendant's right to a fair and impartial trial. Affirmed.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was convicted in November 1999 of capital murder.FN1 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.FN2 Direct appeal to this Court is automatic.FN3 Appellant raises twenty-three points of error. We will affirm.

FN1. Texas Penal Code § 19.03(a)(2): “A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and ... the person intentionally commits the murder in the course of committing or attempting to commit kidnapping ... robbery ... [or] aggravated sexual assault.” FN2. Article 37.071, § 2(g). Unless otherwise indicated, all future references to Articles refer to the Code of Criminal Procedure. FN3. Article 37.071 § 2(h).

A. Facts

On January 21, 1999, LaTausha Curry, age 25, lived with her parents in the Oak Cliff area of Dallas. She owned a red, 1987 Ford Taurus. That evening she set out for Camp Wisdom road to meet someone for a date. She never returned. In a written confession, appellant admitted that he and an accomplice sexually assaulted and killed Curry, and in an oral statement given before the body had been discovered, he told the police where Curry's body could be found. The body was found where appellant said it would be. Appellant's fingerprints were found in the victim's car, and DNA testing matched appellant to seminal fluid found on Curry's sweat pants.

At around midnight on the evening Curry disappeared, Stella Wilson went to a gas station. At the station, she noticed what she described as a “burgundy” car occupied by two young black men. One of these men later pointed a gun at her and demanded her purse, which she relinquished. In court, she identified appellant as the robber and driver of the car. She also identified Curry's red Ford Taurus as the car he was driving.

About 1:30 to 2:00 a.m. on January 22nd, Tanya Robinson, an assistant manager at a Jack in the Box, was driving home from work. She noticed behind her a reddish car occupied by two people. The red car began to chase her and hit her car while both vehicles were going about seventy-five miles per hour. She stopped her car, and when the driver of the red car got out of the car, she put the car in reverse and tried to run over him. Robinson then drove back to the Jack-in-the-Box and asked an employee to call the police. She then began to chase the red car to get a license plate number. The police subsequently joined the chase.

During the chase, Officer Larry Byers saw the red car crash and two black males run from the car. Byers identified appellant as the driver. Robinson caught up with the red car after the occupants had fled and therefore was not able to identify the driver at trial. She did, however, identify the victim's Ford Taurus as the car that had chased her. The victim's car was impounded and searched, resulting in the recovery of various items, including a pipe made to look like a gun, a mace dispenser, and a cell phone.

As a result of this incident appellant was charged with the capital murder of Curry under three different legal theories: murder in the course of kidnapping, murder in the course of robbery, and murder in the course of aggravated sexual assault. Two different theories of party liability were submitted to the jury: intent to promote the commission of the offense FN4 and commission of the offense during a conspiracy.FN5 FN4. See Texas Penal Code § 7.02(a)(2). FN5. See Texas Penal Code § 7.02(b).

B. Guilt
1. Batson

In point of error one, appellant contends that the trial court erred in failing to sustain his BatsonFN6 objection to the State's exercise of a peremptory challenge against prospective juror Vines. Vines is an African American. In response to appellant's objection, the State offered the following reasons for the strike: FN6. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

1. Vines failed to disclose, on her jury questionnaire, a prior arrest for driving while her license was suspended.

2. Vines's answers to questions revealed a resentment towards police officers.

3. Vines had an undue tendency to answer the future dangerousness affirmatively, was biased against the minimum range of punishment for the lesser included offense of murder, and harbored a bias against the mitigation special issue.

Defense counsel offered no evidence to rebut the State's reasons.

Appellant now claims that the State's reasons were insufficient. According to Batson v. Kentucky, the use of peremptory challenges to intentionally exclude persons from the jury because of race violates the Fourteenth Amendment of the United States Constitution. FN7 There is a three-step process for advancing a Batson claim: (1) The objecting party must make a prima facie case of discrimination, (2) once a prima facie case is made, the striking party must tender race-neutral reasons for the strike, and (3) if race-neutral reasons are tendered, the objecting party must prove purposeful discrimination.FN8 Appellate courts must give great deference to credibility and demeanor determinations made by the trial court in connection with a Batson inquiry.FN9

FN7. Ladd v. State, 3 S.W.3d 547, 563 (Tex.Crim.App.1999), cert. denied 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000); Batson, supra. FN8. Id. FN9. Id.

Because the State offered its reasons for the strike, the prima facie case inquiry is moot, and we move on to whether the reasons offered are in fact race-neutral.FN10 Regarding the State's first reason-Vines's failure to reveal her prior arrest-appellant contends that the record contains no evidence to support this claim besides the prosecutor's “bare assertion.” The record shows that a person of the same name and date of birth as this prospective juror was arrested in Dallas County for driving while her license was suspended. Appellant complains that the State failed to inquire further and ask this prospective juror whether she was in fact the person arrested. FN10. Id. at 563 n. 8.

the party making the Batson challenge, appellant had the burden to show that the explanation given was merely a pretext for discrimination.FN11 It is not enough merely to show that a proffered explanation turns out to be incorrect.FN12 Moreover, a party's failure to offer any real rebuttal to a proffered race neutral explanation can be fatal to his claim.FN13 Here, appellant has failed to prove that the prosecutor's explanation was incorrect, much less that it was a pretext for discrimination. FN11. Ford v. State, 1 S.W.3d 691, 693-694 (Tex.Crim.App.1999). FN12. Id. at 694.FN13. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000).

Regarding the State's second reason-the prospective juror's resentment towards the police-appellant contends that the trial court overlooked other testimony given by Vines that was favorable to police officers. Vines made both positive and negative comments about police officers. She stated that she thought some officers took advantage of their uniforms and positions to harass innocent victims-including her twenty-one year old nephew-but she also stated that she was grateful to officers who put their lives on the line and her main complaint was that too much time was spent on traffic violations rather than enforcement against serious offenses. While Vines did give some positive feedback about police officers, the State was entitled to believe, based upon the negative feedback that she gave, that her presence on the jury would be adverse to the State's interests.

Finally, appellant contends that the State's third reason is a sham because it shows that Vines is a good State's juror on death penalty issues. However, the State is not limited to challenging only defense-oriented prospective jurors. In the area of challenges for cause, we have held that the State may exercise challenges against jurors who are biased in ways that are adverse to the defendant,FN14 including jurors who cannot consider the minimum end of the punishment range for an offense. FN15 This is so because the State's interest is not merely to convict, but to ensure that justice is done, which includes procuring fair and impartial jurors.FN16 For this reason, the State's ability to challenge veniremen for cause is broader than and encompasses the defendant's ability to challenge a potential juror.FN17 The same reasoning applies to peremptory challenges. In ensuring that justice is done, the State may legitimately strike prospective jurors who appear to be unfavorable to the defense in ways that call into question their impartiality. The trial court was entitled to believe that the State did not strike Vines on account of her race. Finding that the State has advanced race-neutral reasons for its peremptory challenge, and that appellant has failed to meet his burden of showing intentional discrimination, we overrule point of error one.

FN14. Allridge v. State, 850 S.W.2d 471, 486-487 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). FN15. White v. State, 779 S.W.2d 809, 823-824 (Tex.Crim.App.1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990); Nethery v. State, 692 S.W.2d 686, 691-692 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986). FN16. Nethery, 692 S.W.2d at 691; Caldwell v. State, 818 S.W.2d 790, 795 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 399 (1992), overruled on other grounds by, Castillo v. State, 913 S.W.2d 529, 534 (Tex.Crim.App.1995). FN17. Bigby v. State, 892 S.W.2d 864, 881 (Tex.Crim.App.1994), cert. denied, 515 U.S. 1162, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995).

2. Extraneous offenses

In points of error seven through twelve, appellant claims that the trial court erred in admitting the extraneous offenses committed against Wilson and Robinson. He argues that the evidence was irrelevant under Texas Rule of Evidence 401,FN18 constituted an inadmissible extraneous offense under Rule 404(b),FN19 and was substantially more prejudicial than probative under Rule 403.FN20 The State responds that the extraneous offenses were admissible as same transaction contextual evidence,FN21 to establish identity, and to show conspiracy liability. We need not address the same transaction contextual evidence theory advanced by the State because we find the evidence to be relevant under Rule 404(b)(and Rule 401) for several other purposes.

FN18. Rule 401 provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” FN19. Rule 404(b) provides in relevant part: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” FN20. Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” FN21. See Camacho v. State, 864 S.W.2d 524, 527, 531-532 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994).

First, the evidence was admissible to show identity. Ordinarily, to be admissible to show identity, an extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant's handiwork.FN22 For such evidence to be admissible, identity must be an issue in the case.FN23 In determining similarity of the offenses for the purpose of establishing identity, appellate courts should take into account both the specific characteristics of the various offenses and the time interval between them.FN24 Here, the time interval was very short. If the offenses were not “same transaction contextual offenses” they came very close to being such. The exactness that might be required of an offense committed at a more remote period of time might not necessarily be required for an offense committed within a very short period of time.FN25 The offenses presented here were committed within a few hours of each other, directed at lone women, and involved the victim's red Ford Taurus. Wilson and Byers specifically identified appellant as the driver of the victim's car on the occasions in question. Even without other similarities, possession of the victim's car is a significant piece of evidence tying appellant to the victim's death. And identity was the only disputed issue in the case. Though appellant's challenges on the identity issue may not have been persuasive, that was nevertheless his only defense. He did not attempt to show consent, self-defense, duress, necessity, or any other defensive theory. Appellant challenged the voluntariness of his confession and attempted to minimize the eyewitness testimony and the physical evidence.

FN25. See Ransom v. State, 503 S.W.2d 810, 813 (Tex.Crim.App.1974)( “[T]he common distinguishing characteristic may be the proximity in time and place or the common mode of the commission of the offenses” (emphasis added)); see also Lane, 933 S.W.2d at 519.

Second, the extraneous offenses were admissible to establish the theft element of robbery. To establish the “murder in the course of robbery” theory of capital murder, the State was required to show that the murder was committed during the course of the theft rather than the theft being a mere afterthought.FN26 The offenses against Wilson and Robinson evidenced a scheme of robbing women who traveled alone.FN27 Finally, the State is correct in asserting that the multiple offenses tended to establish a conspiracy between appellant and his accomplice. Nor are we persuaded by appellant's contention that the evidence is unfairly prejudicial under Rule 403. The extraneous offenses were highly probative because they placed the primary offense in context of the scheme carried out that night FN28 and because they tended to prove appellant's identity as the perpetrator. Appellant contends that the State did not need the extraneous offenses because it had so much other evidence identifying him as the perpetrator. It is true that the State's other evidence was strong. The State had DNA evidence, fingerprints, appellant's written confession admitting guilt, and an oral confession that led to the discovery of the body. But appellant challenged the probative value of much of this evidence. Despite the fact that the State had this other evidence, the extraneous offense evidence was not unfairly prejudicial. It was very probative and added a significant dimension to the evidence not otherwise before the jury-eyewitness testimony inferentially linking appellant to the crime. Points of error seven through twelve are overruled.

FN28. Id. at 552-553.

3. Search and seizure

In points of error thirteen through sixteen, appellant contends that the trial court erred in failing to suppress the fruits of a search of his home. On January 25, 1999, police officers came to appellant's apartment with a warrant for his arrest. According to Sergeant Conover, he and three other plainclothes detectives knocked on appellant's door. When appellant opened the door, Sergeant Conover said, “Derrick Johnson, you're under arrest.” Appellant asked why, and Sergeant Conover replied that he had a warrant. Appellant then stated, “Yeah, you got me, man; you got me.” Appellant testified that four or five officers arrested him with guns drawn. Sergeant Conover testified that he was the officer in front and did not have his gun drawn, but he did not know whether any of the other officers had drawn their guns. He agreed that his gun, though not drawn, was visible. Appellant was handcuffed and officers conducted a protective sweep of the residence to ensure that no victims or other perpetrators were inside the apartment. Nothing was found during the course of the protective sweep.

Sergeant Conover asked appellant whose apartment it was, and appellant replied that it was his. Sergeant Conover then asked appellant if the police could search his apartment. According to the sergeant, appellant said, “Sure, go ahead” and “Yeah, man, you can search. That's my room back there,” and pointed to the location of his room. The sergeant testified that no threats were made, no Miranda warnings were given, and no consent to search form was signed. Sergeant Conover testified that he did not have a consent form at the time and did not believe it was practical to get one because the victim was still missing and he thought there was a good chance that she could be in the apartment. The sergeant conceded that appellant was not told he had the right to refuse consent. At the motion to suppress hearing, appellant testified that he never gave consent. As a result of the search, officers found a fake gun made from pipe, handwritten notes indicating bus routes, papers containing gangster rap lyrics, and a cell phone later linked to an extraneous robbery. FN29

FN29. The first two items were introduced at guilt while the last two items were introduced only at punishment. Appellant has divided these two sets of items for the purpose of argument in his brief, but we will address them together since they arise from the same facts.

Appellant claims that this evidence should have been suppressed because it was obtained in a search that violated the Fourth Amendment and Article I, § 9 of the Texas Constitution.FN30 For search and seizure issues, we engage in a mixed review: We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor while we review de novo application-of-law-to-fact questions that do not turn upon credibility and demeanor.FN31 In determining whether an accused's consent to search is voluntary, appellate courts must look to the totality of the circumstances.FN32 Although a police officer's failure to inform the accused that he can refuse consent is a factor to consider, the absence of such information does not automatically render the accused's consent involuntary.FN33 Nor is consent rendered involuntary merely because the accused is under arrest.FN34

FN30. Appellant points out that the Texas Constitution requires that a consent to search be established by clear and convincing evidence as opposed to a mere preponderance required by the United States Constitution. Accordingly, we review the evidence under the more protective Texas standard. See State v. Ibarra, 953 S.W.2d 242, 244-245 (Tex.Crim.App.1997). FN31. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). FN32. Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) FN33. Id. at 39-40; Meeks v. State, 692 S.W.2d 504, 510 (Tex.Crim.App.1985). FN34. Meeks, 692 S.W.2d at 509.

Based upon the testimony, the trial court could have believed that the officers' guns were not drawn at the time of appellant's arrest. The trial court could also have believed that appellant actually consented to the search. Appellant gave contrary testimony but the trial court, as the fact-finder, was free to disbelieve appellant.FN35 Given these presuppositions, we consider whether the consent was voluntary.

FN35. See Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App.2000)(trial court free to disbelieve testimony by mother and sister of the defendant that they did not in fact give consent to search).

This Court addressed the voluntariness of a consent to search in Reasor v. State.FN36 In that case, the police conducted an illegal protective sweep,FN37 arrested the defendant with guns drawn, handcuffed the defendant before asking for his consent to search, and asked for a consent to search after they had taken the defendant inside the home.FN38 However, the protective sweep yielded no incriminating evidence, the police had questioned a companion of the defendant's and allowed that person to leave, the defendant was twice given Miranda warnings and signed a written consent to search form with Miranda warnings on it, and the police repeatedly warned the defendant of his right to remain silent.FN39 The Court also noted that, at the time consent was given, the officers' guns were no longer drawn. FN40 Finally, the Court observed that the defendant guided the officers to his room and pointed out the location of narcotics present there.FN41 Considering the totality of the circumstances, the Court concluded that the consent was voluntary.FN42

FN36. 12 S.W.3d 813 (Tex.Crim.App.2000). FN37. The protective sweep was illegal because the officer failed to articulate a single fact justifying it. Id. at 817. He never once stated that there was any reason to believe a third person was in the home who could pose a threat to the officers or the public, but, instead, stated that he considered the defendant's home to be a safe place. Id. FN38. Id. at 818. FN39. Id. FN40. Id. FN41. Id. at 819. FN42. Id.

The present case shares several common factors with Reasor. In both cases: the defendant was under arrest, handcuffed, and inside the home with officers at the time consent was given; a protective sweep that yielded no evidence had been conducted beforehand; and the defendant guided officers in some way to the location of the room in which the defendant slept. The present case also differs in some respects from Reasor, with some factors being more favorable and others being less favorable. Unlike in Reasor, appellant was not given Miranda warnings, he was not constantly reminded of his right to remain silent, and he did not sign a written consent form containing Miranda warnings. However, officers did not arrest appellant with guns drawn, the protective sweep in this case was legal because the victim FN43 or an accomplice FN44 could potentially have been found inside, and the officers already had a valid arrest warrant, which constitutionally permits entry into the home to effectuate the arrest. FN45 Under the totality of the circumstances, we find that the trial court did not abuse its discretion in finding that the consent to search was voluntary. Points of error thirteen through sixteen are overruled.

FN43. Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App.1998)(emergency doctrine). FN44. Reasor, 12 S.W.3d at 816 (protective sweeps). FN45. Wilson v. Layne, 526 U.S. 603, 610-611, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)(citing Payton v. New York, 445 U.S. 573, 602-603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).

4. Written confession

In point of error seventeen, appellant contends that the trial court erred in admitting his written confession. He claims that his confession was procured by police officers with promises of leniency. He bases this claim on the following colloquy: [DEFENSE COUNSEL]: You made some comments in your-in your notes about some discussions regarding the death penalty with Mr. Derrick Johnson. Do-do you remember those discussions? [DETECTIVE SKELLY]: Generally speaking, towards the end of the interview, once he had made confessions to both of the-of the crimes, or, I take that back; after he confessed to the sexual assault and then we were talking about the homicide case, at some point-and I don't remember exactly what point-he did ask us-he said, “If I tell you more about this, can you guarantee that I won't get the death penalty?” We told him, “No, we can't make such guarantees and will not.” I said that “If you're honest with us and you tell us what happened, we will make that information known for the court's consideration to use however they see fit, but we will not-you know, we will not, cannot make any guarantees.” [DEFENSE COUNSEL]: You-you did tell him, though, that-that honesty would be-his honesty would be communicated to the prosecutors and to the Court for whatever use they want to make of that. [DETECTIVE SKELLY]: That's-that's generally, yes. [DEFENSE COUNSEL]: Did that seem to help him, in terms of continuing to cooperate with you? [DETECTIVE SKELLY]: Well, I assume it did. He did continue and he gave us a voluntary statement. Yes, sir.

Appellant characterizes Detective Skelly's comments as an implied representation that appellant's honesty would or could result in the State deciding not to seek the death penalty. That is simply not the case. Detective Skelly plainly told appellant that the police could make no guarantees. Moreover, appellant initiated the idea of a deal to avoid the death penalty. “Having cast [himself] in the role of entrepreneur, [he] cannot expect an appellate court to find implied ‘promises' in official responses (to [his] overtures) that are ambiguous at best.” FN46 Further, Detective Skelly's comments indicated that the police were without authority to make deals but instead could only relay information to the court and prosecutor.FN47 Point of error seventeen is overruled.

FN46. Henderson v. State, 962 S.W.2d 544, 564 (Tex.Crim.App.1997), cert. denied, 525 U.S. 978, 119 S.Ct. 437, 142 L.Ed.2d 357 (1998). FN47. Id.

C. Punishment
1. Parole

In points of error two through four, appellant complains about comments made by the prosecutor that parole laws can change. Points of error two and three claim that defense counsel was ineffective for failing to object to these comments while point of error four contends that the comments constituted fundamental error. During the voir dire of three prospective jurors who ultimately served on the jury, the prosecutor told the jurors that, even though they would be informed that a person serving a life sentence must serve forty years before being eligible for parole, the jurors should not consider parole law at all because it was subject to change. The prosecutor did not say how parole law might change and did not tell the jurors that parole law would change in a way that would allow earlier release on parole.

The record does not reveal defense counsel's reasons for not objecting the prosecutor's comments. Given the presumption of effectiveness and the great deference we give to decisions made by defense counsel, we see nothing in the present record that would compel us to find counsel ineffective.FN48 Points of error two and three are overruled. As for appellant's claim of fundamental error, we have already held that a failure to object forfeits a claim that a prosecutor's comments about parole are incorrect or misleading. FN49 Point of error four is overruled.

FN48. Thompson v. State, 9 S.W.3d 808, 812-814 (Tex.Crim.App.1999). FN49. Valencia v. State, 946 S.W.2d 81, 82-83 (Tex.Crim.App.1997).

In point of error five, appellant contends that the trial court gave an erroneous instruction in the jury charge regarding parole. The jury charge provided:

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 law will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted. You are further instructed that you cannot consider how long the defendant might be required to serve a sentence that is imposed. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and are no concern of yours.

(Emphasis in appellant's brief). Appellant did not object to this instruction. He now contends that the italicized portion was erroneous and egregiously harmed him by denying him a fair and impartial trial. He claims that the italicized instruction effectively requires the jury to ignore the earlier instruction that the defendant will serve forty calendar years before becoming eligible for parole and that such an effect would violate Simmons v. South Carolina. FN50. 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

Appellant's reading of the instruction is incorrect. The italicized language does not require the jury to ignore the forty-year parole eligibility requirement but simply prevents the jury from speculating when the parole board would release a life-sentenced defendant.

In any event, the law did not require a parole instruction at appellant's trial. Although Article 37.071, § 2(e)(2)(B) now requires a parole instruction FN51 to be given upon defense counsel's request, the amendment that added that provision applies only to offenses committed on or after September 1, 1999.FN52 As for appellant's reliance upon Simmons, we have consistently rejected appellant's argument based on that case.FN53 Point of error five is overruled.

FN51. The statutorily required instruction does not include the language of which appellant complains. FN52. Acts 1999, 76th Leg., ch. 140, § 2. FN53. Chamberlain, 998 S.W.2d at 234-235.

2. Challenge for cause/mitigating evidence

In point of error six, appellant contends that the trial court erred in overruling his challenge for cause against prospective juror Thomason. Appellant contends that Thomason's refusal to consider youth as mitigating evidence violates the Supreme Court's holding in Morgan v. Illinois. FN54 Appellant properly preserved error by striking Thomason, asking for more strikes until the trial court denied his requests, and pointing to an objectionable juror. However, the trial court granted appellant an additional peremptory strike; to show harm, appellant must show that the trial court improperly denied challenges for cause on at least two different venire members.FN55 Because appellant asserts only one challenge for cause error here, harm cannot be established.FN56

FN54. 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). FN55. Wright v. State, 28 S.W.3d 526, 535 (Tex.Crim.App.2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001). FN56. Id.

Even so, we rejected the substance of appellant's argument in Morrow v. State.FN57 Appellant acknowledges that Morrow is contrary to his position. Point of error six is overruled. FN57. 910 S.W.2d 471, 472-473 (Tex.Crim.App.1995).

3. Death penalty challenges

In points of error eighteen through twenty-one, appellant makes several constitutional challenges to the death penalty. He challenges the 12-10 rule, FN58 the failure to define certain terms contained in the future dangerousness special issue,FN59 and the Texas death penalty scheme's method of narrowing eligibility requirements while allowing unlimited consideration of mitigating evidence.FN60 Having previously decided these claims adversely to appellant's position, we reject them now. Points of error eighteen through twenty-one are overruled. D. Cumulative error

In points of error twenty-two and twenty-three, appellant claims that the previously alleged errors are harmful in their cumulative effect. While a number of errors may be harmful in their cumulative effect, no such cumulative error has been shown here.FN61 Points of error twenty-two and twenty-three are overruled.

FN61. Wright, 28 S.W.3d at 537.

The judgment of the trial court is affirmed.

Johnson v. Quarterman, 294 Fed.Appx. 927 (5th Cir. 2008) (Habeas).

Background: Defendant convicted of capital murder petitioned for a writ of habeas corpus. The United States District Court for the Northern District of Texas, 2007 WL 2735638, denied relief. Defendant sought a certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) court was precluded from considering defendant's argument that “society,” for purposes of a special issue, should include “prison,” and (2) trial court's failure to instruct the jury that defendant would not be eligible for parole for 40 years did not violate defendant's due process rights. COA denied.

Petitioner Derrick Lamone Johnson (“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 the district court (1) erred in denying his claim that the trial court's failure to define “society” as including “prison” in connection with the special instruction on “continuing threat to society” violated his due process rights under the Fifth and Fourteenth Amendments; (2) erred in concluding that the trial court's refusal to allow the jury to consider Petitioner's eligibility for parole in considering whether he would be a continuing threat to society violated his Fifth and Fourteenth Amendment rights; and (3) erred in concluding that the cumulative effect of the violations asserted above did not violate his Fifth and Fourteenth Amendment rights. We conclude that reasonable jurists would not disagree with the district court's assessment of Petitioner's claims and we, therefore, deny Petitioner's request for a COA.

I.

Petitioner was convicted of capital murder in the 282nd District Court, Dallas County, Texas, and sentenced to death by lethal injection. His conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals. Petitioner's application for state post-conviction relief was denied. Petitioner thereafter filed an application for a writ of habeas corpus in the federal district court which was also denied. Petitioner now seeks a certificate of appealability from this court.

The facts produced by the State were summarized by the Texas Court of Criminal Appeals. Based on that summary, the circumstances surrounding this crime are as follows: Petitioner and Marcus Maxwell kidnaped a young woman, LaTausha Curry, in Dallas, Texas, on January 21, 1999. She was never again seen alive. In a written confession and a verbal statement, Petitioner admitted that, with his accomplice, he had sexually assaulted and killed Curry, and he accurately told the police where the as-yet-undiscovered body could be found. Petitioner's fingerprints were matched to fingerprints found in Curry's car, and his DNA to seminal fluid found on Curry's pants.

Curry's assault and murder occurred during an ongoing crime spree. At around midnight on January 22, shortly after murdering Curry, Petitioner and his accomplice robbed Stella Wilson at gunpoint at a gas station. Within two hours after that robbery, the men, driving Curry's vehicle, chased and collided with Tanya Robinson while she was driving home from work. Robinson was able to call the police, who joined the chase but were unable to apprehend the men at that point.

Petitioner was later arrested and charged with the capital murder of Curry, on evidence gathered from the car and eyewitness accounts of some of that night's events. He was found guilty. During the sentencing phase, the State presented evidence of Petitioner's prior crimes, including the abduction, sexual assault, and attempted strangulation of Renee Williams by Petitioner and an accomplice. The jury sentenced Petitioner to death by lethal injection.

II.

Petitioner must obtain a COA before he can appeal the district court's denial of habeas relief. 28 U.S.C. § 2253(c)(1). “This is a jurisdictional prerequisite because the COA statute 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....' ” FN1 According to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” FN2 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.’ ” FN3 The Supreme Court has explained:

FN1. 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)). FN2. 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). FN3. Slack, 529 U.S. at 484, 120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)), quoted in Miller-El, 537 U.S. at 335, 123 S.Ct. 1029. See also Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.2000).

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. FN4. Miller-El, 537 U.S. at 336-37, 123 S.Ct. 1029.

In sum, Petitioner need not show that the appeal will ultimately succeed. FN5 Instead, Petitioner “ ‘must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.’ ” FN6 “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.” FN7 With regard to claims adjudicated on the merits in state court,

FN5. Id. at 337, 123 S.Ct. 1029; see also Slack, 529 U.S. at 484, 120 S.Ct. 1595. FN6. Id. at 338, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). FN7. ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir.2007) (citing Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997)).

“[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.” FN8. Haynes v. Quarterman, 526 F.3d 189, 193 (5th Cir.2008) (quoting Jackson v. Dretke, 450 F.3d 614, 616 (5th Cir.2006)) (alterations in original).

III.

Petitioner first argues that the trial court's failure to define “society” as including “prison” violated his due process rights under the Fifth and Fourteenth Amendments. Texas Code of Criminal Procedure article 37.071(b)(1) requires that the following issue be submitted to the jury on conclusion of the presentation of evidence: “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Special Issue No. 1, which the jury must answer, reads as follows: “Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, Derrick Lamone Johnson, would commit criminal acts of violence that would constitute a continuing threat to society?” Petitioner acknowledges that courts have refused to define the term “society,” reasoning that the term has a common understanding and that such explanation would be redundant.

Before the trial court, state appellate court and the federal district court Petitioner argued that the term “continuing threat to society” was vague, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. Petitioner argued to the district court that the trial court's failure to define certain critical terms, including “continuing threat to society,” thereby unconstitutionally failed to narrow the class of persons eligible for the death penalty. The argument made before the state courts and the federal district court regarding this phrase, however, did not include the specific argument he makes to us that “continuing threat to society” should include “prison.”

The first time that Petitioner made his argument that “society” should have been defined to include “prison” was in his Motion for New Trial in the federal district court. Motions for a new trial, however, “ ‘cannot be used to raise arguments which could, and should, have been made before the judgment issued. Moreover, they cannot be used to argue a case under a new legal theory.’ ” Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990) (quoting FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986) (citations omitted)). In the state courts, and in his pre-judgment arguments to the district court, Petitioner argued generally that “society” was vague and ambiguous. He cannot now change his argument in post-judgment motions and on appeal. Because he failed to bring his argument in a timely manner, a writ of habeas corpus cannot be issued on it.

“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State....” 28 U.S.C. § 2254(b)(1). “To exhaust his state remedies, a habeas petitioner must fairly present the substance of his claim to the state courts.... The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition.” Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001) (citing Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982)). Consequently, Johnson's failure to raise this claim in the Texas courts means that he has failed to exhaust state court remedies as required by section 2254(b). Id. See also Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.1999); Nobles v. Johnson, 127 F.3d 409, 419-22 (5th Cir.1997).

Furthermore, Johnson is now precluded from returning to the Texas courts by the Texas Code of Criminal Procedure, which prohibits a successive state habeas application unless, e.g., “the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application ... because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.” Tex.Code Crim. Proc. Ann. art. 11.071, § 5(a)(1). See, e.g., Nobles, 127 F.3d at 422 (discussing article 11.071, § 5). “[T]his bar represents an additional adequate state procedural ground which bars federal review of his claim. If a petitioner fails to exhaust state remedies, but the court to which he would be required to return to meet the exhaustion requirement would now find the claim procedurally barred, then there has been a procedural default for purposes of federal habeas corpus relief.” Finley, 243 F.3d at 220 (citations omitted). Because the argument that “society” should include “prison” is different from the vagueness argument and was raised for the first time in Petitioner's Motion for New Trial, we are precluded from considering it. Therefore, Petitioner's “society” argument does not warrant the issuance of a COA.FN9

FN9. Alternatively, it is also clear that jurists of reason would not disagree with the district court's conclusion that “society” or “continuing threat to society” need not be defined. As the district court noted and amply supported with citations, “[t]his Circuit has consistently approved the use of the term[ ] ... ‘continuing threat to society’ without definition over objections that they are unconstitutionally vague as used in these sentencing instructions.” Johnson v. Quarterman, 2007 WL 2735638, (N.D.Tex.2007); see, e.g., Leal v. Dretke, 428 F.3d 543, 553 (5th Cir.2005). The district court correctly concluded that it was bound on this issue by Circuit precedent.

IV.

Petitioner next argues that the trial court's refusal to allow the jury to consider his eligibility for parole violated his due process rights under the Fifth and Fourteenth Amendments. He complained that the sentencing jury was not allowed to fairly consider his future dangerousness in light of the fact that Texas law required him to serve a mandatory forty years before being eligible for parole.FN10 The trial court instructed the jury as follows:

FN10. It should be noted that at the time of Petitioner's trial, Texas law required any person serving a life sentence to serve at least 40 years before becoming eligible for parole. Johnson, 2007 WL 2735638 at *11. Under current Texas law, which is inapplicable here, life without parole is now the alternative sentence to a death sentence. See Tex.Code Crim. Proc. Ann. art. 37.071.

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 law [sic] will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted. You are further instructed that you cannot consider how long the defendant might be required to serve a sentence that is imposed. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and are no concern of yours. FN11. Johnson, 2007 WL 2735638 at *6 (emphasis in original).

Petitioner alleges that the italicized portion of the instruction misled the jury into thinking that he could be released sooner than the law permits. He argues that the jury should have been instructed specifically on his parole eligibility after forty years.

The district court quoted the following rule from Simmons v. South Carolina: [I]f the State rests its case for imposing the death penalty at least in part on the premise that the defendant will be dangerous in the future, the fact that the alternative sentence to death is life without parole will necessarily undercut the State's argument regarding the threat the defendant poses to society. FN12. Id. at *11 (N.D.Tex.2007) (quoting Simmons, 512 U.S. 154, 168-69, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)) (emphasis added).

Therefore, as the district court concluded, “ Simmons requires that the jury be instructed about the defendant's parole eligibility ‘only where state law provides for life imprisonment without possibility of parole as an alternative to the death penalty.’ ” FN13 The Simmons rule just described does not apply to this case because under Texas law Petitioner would have been eligible for parole.FN14 Furthermore, following this Circuit's precedent, the district court explained that “any extension of Simmons would be barred under the non-retroactivity doctrine announced in Teague [ v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ].” FN15

FN13. Id. (quoting Simmons, 512 U.S. at 156, 114 S.Ct. 2187, and citing Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000); Woods v. Cockrell, 307 F.3d 353, 361 (5th Cir.2002)) (emphasis added). FN14. Id. at *11-12 (citing Miller v. Johnson, 200 F.3d 274, 290-91 (5th Cir.2000) (“[B]ecause Miller would have been eligible for parole under Texas law if sentenced to life, we find his reliance on Simmons ‘unavailing.’ ”)). FN15. Id. at *12 (citing Woods, 307 F.3d at 361-62; Coleman v. Quarterman, 456 F.3d 537, 544-45 (5th Cir.2006); Hughes v. Dretke, 412 F.3d 582, 591-92 (5th Cir.2005)).

Petitioner argues that this Circuit's cases holding that Simmons is inapplicable should not be applied to his case because the wording of the jury instruction cautioned the jury to not consider the forty year minimum, and so in this context, the jury instruction was misleading. But this same issue was recently addressed by this Court in Turner v. Quarterman, 481 F.3d 292 (5th Cir.2007). Turner argued that “where the state court did inform the jury that [he] would not be eligible for parole for forty years, it was a violation of due process and Simmons for the court then to inform the jury not to consider parole eligibility.” FN16 We concluded that Simmons was inapplicable and that in deciding future dangerousness, parole eligibility is irrelevant because the jury is entitled to consider that the inmate still poses a danger to other inmates.FN17 The argument Petitioner makes is the same as the one we rejected in Turner. We, therefore, deny a COA on this claim.

FN16. 481 F.3d at 298. FN17. Id.

V.

Finally, Petitioner requests a COA on his claim that the cumulative affect of the above violations denied his due process. We agree with the district court that “[t]here are no errors of a constitutional dimension properly before the court.” FN18 In this Circuit, “where individual allegations of error are not of constitutional stature or are not errors, there is ‘nothing to cumulate.’ ” FN19 Jurists of reason would not disagree with this conclusion that there was no error. We deny a COA on this claim.

FN18. Johnson, 2007 WL 2735638 at *31. FN19. Turner, 481 F.3d at 301 (quoting Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.1993)).

CONCLUSION