Wednesday, January 6, 2010
Media Advisory: Gary Johnson scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Gary James Johnson, who is scheduled to be executed after 6 p.m. on Tuesday, January 12, 2010. A Walker County jury sentenced Johnson to death in August 1989 for the murders of James Hazelton, a ranch manager, and Peter Sparagana, Hazelton’s brother-in-law, at a ranch near Huntsville.

FACTS OF THE CRIME

On the evening of April 30th, 1986, Bill and Shannon Ferguson were in their pasture when they saw a truck pull over near a gate of the adjacent Triple Creek Ranch. They noticed someone get out of the truck, heard a chain rattle on the gate, and observed someone from the truck go through the gate and onto the ranch. The truck’s headlights had been turned off.

Concerned there was a burglary in progress, Mrs. Ferguson ran to her house to call the ranch managers, the Hazeltons. Fifteen minutes later, the Fergusons observed Jim Hazelton’s truck appear at the same gate on Highway 30. Unable to enter that gate, Hazelton backed up and entered the ranch from another location. Eventually, the Fergusons heard a gunshot after Hazelton’s truck stopped, prompting Mrs. Ferguson to rush to her house to phone police.

While Mrs. Ferguson was calling authorities, Mr. Ferguson remained in the pasture watching to see if anyone exited the gate. Several minutes after the first gunshot, Mr. Ferguson heard several shots fired in rapid succession. After a brief silence, Mr. Ferguson heard someone plead for his life. The pleas were silenced by two more shots. When the police arrived, they discovered the bodies of Jim Hazelton and Peter Sparagana dead from bullet wounds fired at close range.

At trial, the State presented evidence from three of Gary Johnson’s brothers—Tracey, Randy, and Ricky. Tracey Johnson testified that Gary came to Missouri during the fall of 1986, returned Tracey's .44 caliber pistol and asked him to destroy it because the pistol had been involved in a double murder in which Gary and their brother Terry had participated.

During that same visit to Missouri, Ricky Johnson testified that Gary Johnson was in possession of the .44 caliber pistol; that Gary admitted killing one man with the gun; and that Gary and Terry had also killed a second man. A state firearms examiner later identified a bullet fragment retrieved from Hazelton’s body as being fired from the same .44 caliber pistol Gary returned to Tracey.

Randy Johnson testified that Gary told him of the events that transpired at the Triple Creek Ranch. Gary told Randy that he (Gary) and Terry were out at the Triple Creek to steal something when two men “got the drop on them.” While Terry distracted them, Gary shot one of the men. Gary and Terry caught the other man, brought him back to the barn, made him kneel, and tied his hands behind his back. While the second man pleaded for mercy, Gary shoved the gun in his mouth. The medical examiner later testified that the second man died from a contact bullet wound to the mouth.

Gary Johnson explained the reason for killing the two men to his brother Randy: “Dead men don’t talk.” Terry Johnson was sentenced to 99 years in state prison after being convicted of murder in the case.

EVIDENCE OF FUTURE DANGEROUSNESS

At the penalty phase of the trial, the State presented evidence that Gary Johnson shot and killed a neighbor’s dog from a distance of 75 to 100 yards while the dog was standing a few feet from the neighbor. The State also presented evidence that Johnson was carrying a loaded handgun when he was arrested for the murders of Hazelton and Sparagana. A psychiatrist, testified for the State. Based on a hypothetical question that summarized the testimony about Johnson, the psychiatrist concluded that Johnson would be a future danger to society.

PROCEDURAL HISTORY

04/30/86 - Johnson killed James Hazelton and Peter Sparagana.
06/23/88 - A Walker County grand jury indicted Johnson for capital murder.
08/19/88 - A Walker County jury convicted Johnson of capital murder.
08/19/88 - A Walker County district judge officially sentenced Johnson to death.
12/16/92 - The Texas Court of Criminal Appeals affirmed Johnson’s conviction and sentence.
10/04/93 - The United States Supreme Court denied Johnson’s petition for a writ of certiorari.
08/30/96 - Johnson filed an original application for a state writ of habeas corpus.
10/20/04 -The Texas Court of Criminal Appeals denied state habeas relief.
10/19/05 - Johnson filed a petition for a federal writ of habeas corpus.
09/28/07 - A Houston U.S. district court denied habeas relief and issued.
09/09/08 - The United States Court of Appeals for the Fifth Circuit granted a certificate of appealability on two issues.
01/07/09 - The federal appeals court affirmed the federal district court’s denial of habeas relief.
10/05/09 - The United States Supreme Court denied Johnson’s petition for certiorari review.
09/30/09 - The trial court scheduled Johnson’s execution for Tuesday, January 12, 2010.
01/05/10 -- Johnson filed a petition for a writ of certiorari, and an application for stay of execution.

Huntsville Item

"Man executed for ranch murders," by Mary Rainwater. (January 12, 2010 11:13 pm)

After more than 20 years on death row, convicted murderer Gary Johnson was executed Tuesday for the shooting deaths of two men at a Huntsville area ranch in 1986. Johnson, 59, the second to die by lethal injection in Texas this year, was pronounced dead by Texas Depart-ment of Criminal Justice officials at 6:26 p.m., just 11 minutes after the lethal dose began at 6:15 p.m.

A Walker County jury sentenced Johnson to death in August 1988 for the murders of Peter Sparagana, 23, and James Hazelton, 28, at the Triple Creek Ranch, located about 10 miles west of Huntsville off state Highway 30. Hazelton’s brother, George, was the only family member to observe Johnson’s execution, standing just a few feet away and watching through a glass window in silence.

At first declining offers to make a last statement, Johnson directed his comments to family members and friends in the personal witness room, including his daughter, a brother and sister-in-law and friends. “Tell my family goodbye,” he said. “... you tell the rest of them what they did was wrong for letting me fall for what they did. I never done anything in my life to anybody.”

Hazelton, the ranch manager, and Sparagana, Hazelton’s brother-in-law, were called to the Triple Creek Ranch on the evening of April 30, 1986, by neighbors Bill and Shannon Ferguson, who observed Johnson and his brother, Terry, burglarizing the ranch. Hazelton and Sparagana discovered Terry Johnson but didn’t see his brother, who opened fire with a .44-caliber Magnum pistol and shot Sparagana, according to evidence and statements from Terry Johnson.

Hazelton tried to run but was caught by Gary Johnson, who once worked for him. “He put the gun in Hazelton’s mouth,” Frank Blazek of Huntsville, the prosecutor at Johnson’s trial, told the Associated Press. “Hazelton begged for his life and people across the way, in the nearby pasture, couldn’t see all this but could hear a man begging for his life.”

Shannon Ferguson, told the AP last week that she’s always “felt kind of responsible” for the two men being murdered because they wouldn’t have investigated if she hadn’t called. But Ferguson also believes if she ignored the Johnson brothers’ suspicious activity, “I think they probably would have gone on and murdered more people.”

At the trial, Gary Johnson’s brother, Randy, testified that Gary Johnson told him of the events that transpired at the Triple Creek Ranch — that the pair were at the ranch to steal something when two men “got the drop on them.” Johnson explained the reason for killing the two men to his brother, Randy, stating that “dead men don’t talk.”

Earlier Tuesday, Gary Johnson’s lawyers asked the U.S. Supreme Court to stay his execution, saying he was nearly blind, in poor health and posed no danger to society if he was spared from the death chamber. The court rejected their plea. Terry Johnson, now 62, took a plea deal with a 99-year prison term.

Houston Chronicle

"Former worker who shot 2 at Texas ranch executed," by Michael Graczyk. (AP Jan. 12, 2010, 6:55PM)

HUNTSVILLE — Convicted killer Gary Johnson was executed Tuesday for fatally shooting a ranch foreman and another man who interrupted his burglary of a southeast Texas ranch nearly 24 years ago. Johnson, 59, was the second inmate to receive lethal injection this year in the state that executes the most prisoners. At least six others have execution dates scheduled for the coming months.

He was condemned for the April 1986 slayings of James Hazelton, 28, and Hazelton’s brother-in-law, Peter Sparagana, 23. The two were gunned down while investigating a call from a neighbor who reported intruders had driven through a chained gate at the Triple Creek Ranch about 10 miles west of Huntsville.

Hazelton’s brother, George, was among who watched Johnson die. He stood just a few feet away and watched through a glass window. He declined to meet with reporters following the execution. One of Johnson’s brothers, Dell, and a daughter were among witnesses in an adjacent room.

Johnson declined the warden’s offer to make a final statement. “Just tell my family good bye,” he said. But then, his voice choking with emotion, he urged relatives to tell other family members “what they did was wrong for letting me take the fall for what they did.” “I never done anything in my life to anybody,” he said. Eleven minutes later, at 6:26 p.m. CST, he was pronounced dead.

It took about two years for investigators to assemble their case against Johnson, who once worked at the ranch, and his brother, Terry. The brothers became suspects after the neighbor who saw men drive into the ranch described distinctive brake lights on their truck.

Terry Johnson, 62, took a plea deal with a 99-year prison term. Gary Johnson went to trial on capital murder charges, was convicted and sentenced to death. “This was not their first nighttime burglary,” recalled Frank Blazek, the prosecutor at Johnson’s trial. “They knew the various pastures and that was part of a pattern they had.”

Hazelton and Sparagana discovered Terry Johnson but didn’t see his brother, who opened fire with a .44-caliber Magnum pistol and shot Sparagana, according to evidence and statements from Terry Johnson. Hazelton tried to run but was caught by Gary Johnson, who once worked for him. “He put the gun in Hazelton’s mouth,” Blazek said. “Hazelton begged for his life and people across the way, in the nearby pasture, couldn’t see all this but could hear a man begging for his life.”

Shannon Ferguson, the neighbor who called Hazelton about the suspicious truck entering the ranch, and her husband were in a pasture tending to a horse about to give birth. She said last week she’s always “felt kind of responsible” for the two men being murdered because they wouldn’t have investigated if she hadn’t called. But Ferguson also believes if she ignored the Johnson brothers’ suspicious activity, “I think they probably would have gone on and murdered more people.” The murder weapon was recovered at the home of another Johnson brother in Union, Mo.

Johnson declined to speak with reporters in the weeks preceding his scheduled execution. Before arriving on death row, he had no previous prison record. Trial testimony showed that in 1972, in his native Missouri, he paid $150 in restitution to a man whose dog he shot and killed. The dog’s owner was a few feet away at the time. Blazek said investigators found the same slogan etched in concrete outside Johnson’s home and on a T-shirt he was wearing in a photograph: “Kill them all and let God sort them out.” “It indicated a callousness about human life,” he said.

Earlier in the day, Johnson’s lawyers asked the U.S. Supreme Court to stay his execution, saying he was nearly blind, in poor health and posed no danger to society if he was spared from the death chamber. The court rejected their plea.

KVIA-TV

"Former worker who shot 2 at Texas ranch executed." (Associated Press - January 13, 2010 6:45 AM ET)

HUNTSVILLE, Texas (AP) - Convicted killer Gary Johnson talked about "taking the fall" before he was executed over a 1986 double slaying at a ranch near Huntsville. He was condemned for the shooting deaths of James Hazelton and Hazelton's brother-in-law Peter Sparagana during an apparent burglary attempt. Johnson formerly worked at the ranch.

Johnson last night at first declined the warden's offer to make a final statement. He said: "Just tell my family good bye." But then, his voice choking with emotion, Johnson urged relatives to tell other family members "what they did was wrong for letting me take the fall for what they did." He also said: "I never done anything in my life to anybody."

The inmate's older brother, Terry Johnson, took a plea deal with a 99-year prison term over the killings during a burglary attempt.

APNews

"Former worker who shot 2 at Texas ranch executed," by Michael Graczyk. (Jan 12, 7:52 PM (ET)

HUNTSVILLE, Texas (AP) - Convicted killer Gary Johnson was executed Tuesday for fatally shooting a ranch foreman and another man who interrupted his burglary of a southeast Texas ranch nearly 24 years ago. Johnson, 59, was the second inmate to receive lethal injection this year in the state that executes the most prisoners. At least six others have execution dates scheduled for the coming months.

He was condemned for the April 1986 slayings of James Hazelton, 28, and Hazelton's brother-in-law, Peter Sparagana, 23. The two were gunned down while investigating a call from a neighbor who reported intruders had driven through a chained gate at the Triple Creek Ranch about 10 miles west of Huntsville.

Hazelton's brother, George, was among who watched Johnson die. He stood just a few feet away and watched through a glass window. He declined to meet with reporters following the execution. One of Johnson's brothers, Dell, and a daughter were among witnesses in an adjacent room.

Johnson declined the warden's offer to make a final statement. "Just tell my family good bye," he said. But then, his voice choking with emotion, he urged relatives to tell other family members "what they did was wrong for letting me take the fall for what they did." "I never done anything in my life to anybody," he said. Eleven minutes later, at 6:26 p.m. CST, he was pronounced dead.

It took about two years for investigators to assemble their case against Johnson, who once worked at the ranch, and his brother, Terry. The brothers became suspects after the neighbor who saw men drive into the ranch described distinctive brake lights on their truck.

Terry Johnson, 62, took a plea deal with a 99-year prison term. Gary Johnson went to trial on capital murder charges, was convicted and sentenced to death.

"This was not their first nighttime burglary," recalled Frank Blazek, the prosecutor at Johnson's trial. "They knew the various pastures and that was part of a pattern they had." Hazelton and Sparagana discovered Terry Johnson but didn't see his brother, who opened fire with a .44-caliber Magnum pistol and shot Sparagana, according to evidence and statements from Terry Johnson. Hazelton tried to run but was caught by Gary Johnson, who once worked for him. "He put the gun in Hazelton's mouth," Blazek said. "Hazelton begged for his life and people across the way, in the nearby pasture, couldn't see all this but could hear a man begging for his life."

Shannon Ferguson, the neighbor who called Hazelton about the suspicious truck entering the ranch, and her husband were in a pasture tending to a horse about to give birth. She said last week she's always "felt kind of responsible" for the two men being murdered because they wouldn't have investigated if she hadn't called. But Ferguson also believes if she ignored the Johnson brothers' suspicious activity, "I think they probably would have gone on and murdered more people."

The murder weapon was recovered at the home of another Johnson brother in Union, Mo.

Johnson declined to speak with reporters in the weeks preceding his scheduled execution. Before arriving on death row, he had no previous prison record. Trial testimony showed that in 1972, in his native Missouri, he paid $150 in restitution to a man whose dog he shot and killed. The dog's owner was a few feet away at the time.

Blazek said investigators found the same slogan etched in concrete outside Johnson's home and on a T-shirt he was wearing in a photograph: "Kill them all and let God sort them out." "It indicated a callousness about human life," he said.

Earlier in the day, Johnson's lawyers asked the U.S. Supreme Court to stay his execution, saying he was nearly blind, in poor health and posed no danger to society if he was spared from the death chamber. The court rejected their plea.

ProDeathPenalty.Com

Bill and Shannon Ferguson were in their pasture on the evening of April 30, 1986, waiting for a mare to foal. Sometime before 10:00 p.m., they saw a truck pull over near a gate to the adjacent Triple Creek Ranch. They saw someone get out of the truck, heard a chain rattle on the gate, and saw the truck go through the gate and onto the ranch. Other evidence showed that the original chain had been cut and a new lock had been placed on the gate. The truck’s headlights were off, but Mrs. Ferguson noticed an unusual brake light pattern on the truck (four large round lights, two on each side, one above the other). Mrs. Ferguson went to the barn and called the Triple Creek Ranch. She spoke to the wife of Jim Hazelton, the ranch manager, and told her that a burglary might be taking place because a truck had entered the ranch with its lights off. Mrs. Hazelton told Mrs. Ferguson that her husband would be right out.

Fifteen minutes later, the Fergusons saw Triple Creek Ranch manager Jim Hazelton’s truck appear at the same gate. Hazelton was unable to enter the ranch through that gate, so he backed up and entered the ranch from another location. Eventually the Fergusons heard Hazelton’s truck stop. When they heard a gunshot, Mrs. Ferguson went back to the barn to call the Walker County Sheriff’s Department and Mrs. Hazelton. While Mrs. Ferguson was gone, Mr. Ferguson remained in the pasture.

Several minutes after the first gunshot, Mr. Ferguson heard several shots fired in rapid succession. After a brief silence, Mr. Ferguson heard someone plead for his life. The pleas were silenced by two more shots. When the law enforcement officials arrived, they discovered the bodies of Jim Hazelton and his brother-in-law, Peter Sparagana. Mrs. Hazelton was Peter's sister. Walker County Deputy Sheriff Allen McCandles saw a truck matching Shannon Ferguson’s description of the truck driven by the intruders in Gary James Johnson’s pasture after the shootings, and he saw Johnson driving the truck numerous times. Another law enforcement officer testified that two of the lights on the back of Johnson’s truck were removed in the two weeks after the murders. Johnson and his brother Terry Del Johnson were arrested for the murders two years later.

Three of Johnson’s brothers, Tracey, Randy, and Ricky, testified for the State at trial. Tracey testified that Johnson came to Missouri during the fall of 1986, returned Tracey’s .44 caliber pistol, and asked Tracey to destroy it because the gun had been used in a double murder in which Johnson and another brother, Terry, participated. Ricky testified that, during that same visit to Missouri, Johnson was in possession of the .44 caliber pistol, he admitted killing one man with the gun, and he said that he and Terry also killed a second man. A state firearms examiner later identified a bullet fragment retrieved from Hazelton’s body as having been fired from the same .44 caliber pistol that Johnson returned to Tracey.

Randy testified that Johnson told him that Johnson and Terry were out at the Triple Creek to steal a welder, tires, livestock feed and other items when two men “got the drop on them”; while Terry distracted them, Johnson shot one of the men; Johnson and Terry caught the other man, brought him back to the barn, made him kneel, and tied his hands behind his back; and while the second man pleaded for mercy, Johnson shoved the gun in his mouth. The medical examiner testified that Jim Hazelton died from a contact bullet wound to the mouth. Randy testified that Johnson told him the two men were killed because “dead mean don’t talk.”

The defense called Johnson’s brother, Terry, as a witness. Terry testified that Gary Johnson killed both of the victims. He testified that his brother Gary’s favorite expression was “kill them all, let God sort them out.” The defense also presented testimony from two inmates in the Walker County Jail that Terry Johnson told them that he (Terry) had killed both of the victims.

At the penalty phase of the trial, the State presented evidence that Johnson shot and killed a neighbor’s dog from a distance of 75 to 100 yards, while the dog was standing a few feet from the neighbor. The State also presented evidence that Johnson was carrying a loaded handgun when he was arrested for the murders. Johnson’s uncle testified for the defense at the penalty phase that he had never seen Johnson act violently. Johnson’s former boss and a co-worker testified that Johnson was hard-working, respectful, and non-violent. Johnson’s ex-wife testified that Johnson was never violent toward their children, and never drank or used drugs. The jury found that Johnson had acted deliberately and with a reasonable expectation that death would result, and that it was probable that Johnson would commit future acts of criminal violence that constitute a continuing threat to society. The trial court sentenced to Johnson to death. Co-defendant Terry Del Johnson was convicted of murder and sentenced to 99 years after testifying against his brother and accepting a plea bargain to avoid a death sentence.

Execution Watch

"Jury assesses death penalty; Huntsville Panel deliberates half an hour," by Kathy Fair. (Houston Chronicle 8/20/1988)

HUNTSVILLE - A 37-year-old ranch hand who a Dallas psychiatrist said would "most certainly" commit future acts of violence was sentenced to death Friday for the 1986 slayings of two men.

A jury of seven men and five women - which also heard a Bryan psychologist say such predictions were irresponsible - deliberated about 35 minutes before assessing the penalty to Gary Johnson, convicted of murdering James M. Hazelton, 28, and Peter J. Sparagana, 23, on April 30, 1986, during a burglary at the Triple Creek Ranch.

Hazelton was the ranch manager, and he and Sparagana, his brother-in-law, had gone to the ranch after being notified of a possible burglary in progress.

Johnson covered his face with his hands and cried softly after the verdict was read. "Most certainly an individual with that type of history and behavior would continue to commit acts of violence," Dallas psychiatrist James Grigson testified Friday.

However, Grigson, nicknamed "Dr. Death," admitted that he had never examined Johnson or his criminal history. His opinion about Johnson's future danger was based, he said, on Walker County District Attorney Frank Blazek's description of Johnson's one prior arrest and the Triple Creek slayings.

Johnson had been arrested 17 years ago for shooting a neighbor's dog and later paid $150 restitution to the man, according to court testimony. Testimony that Johnson had bragged to his brothers that he had killed Hazelton and Sparagana indicates that he "doesn't have any regard for human life," said Grigson, who has testified in 186 capital murder cases.

But Wendell L. Dickerson, a Bryan psychologist called by the defense to testify during the sentencing phase of the trial, labeled such "blind predictions" as professionally irresponsible and highly subject to error. Studies have indicated that the error rate for criminals predicted not to be a future danger is seven in every 100,000 cases, Dickerson said. But the error rate in predictions that someone will be a future danger to society is two out of three, Dickerson added.

Another defense witness, James Marquart, a professor of criminology at Sam Houston State University, said his research indicates that Grigson has said virtually the same thing about the future dangerousness of defendants in every capital cases in which he has testified.

Blazek had told jurors he thought the death penalty was the appropriate punishment for the "brutality, the cold bloodedness, the viciousness of the killings."

Ridley told jurors the death sentence would not be fair because Johnson's co-defendant in the slayings, his 41-year-old brother, Terry, had been offered a plea bargain by authorities in exchange for testifying against his brother.

Terry Johnson's trial is pending. The plea bargain called for him to testify in exchange for a reduction of the charge to murder and a sentence of 40-75 years. "I find that very interesting when the state has given an agreement to a man whom they now believe is the trigger man," Ridley said.

"Legal history of case: Attorney Jim Skelton's legal analysis of Johnson's journey through court."
DOB: October 17, 1950. Age 59 Walker County

Co-Defendant: Terry Johnson, Gary Johnson's brother. Terry was convicted of murder and was assessed 99 years in prison.

FACTS: On the evening of April 30th, 1986, Bill and Shannon Ferguson were in their pasture when they saw a truck pull over near a gate of the adjacent Triple Creek Ranch. They noticed someone get out of the truck, heard a chain rattle on the gate, and observed someone from the truck go through the gate and onto the ranch. The truck's headlights had been turned off. Concerned there was a burglary in progress, Mrs. Ferguson ran to her house to call the ranch managers, the Hazeltons.

Fifteen minutes later, the Fergusons saw Jim Hazelton's truck at the same gate on Highway 30. Unable to enter that gate, Hazelton backed up and entered the ranch from another location. Eventually, the Fergusons heard a gunshot after Hazelton's truck stopped, prompting Mrs. Ferguson to rush to her house to phone police. While Mrs. Ferguson was calling authorities, Mr. Ferguson remained in the pasture watching to see if anyone tried to leave. Several minutes after the first gunshot, Mr. Ferguson heard several shots fired in rapid succession. After a brief silence, Mr. Ferguson heard someone plead for his life. The pleas were silenced by two more shots.

When the police arrived, they discovered the bodies of 28-year-old Jim Hazelton and his 23-year-old brother-in-law, Peter Sparagana. dead from bullet wounds fired at close range. Each man was shot three times from at least two different guns. Gary Johnson was a former employee at the ranch.

Procedural History

April 30, 1986: Gary Johnson shot and killed James Hazelton and Peter Sparagana.
June 23, 1988: A Walker County grand jury indicted Johnson for capital murder.
August 19, 1988: A Walker County jury convicted Johnson for capital murder.
August 19, 1988: Gary Walker was tried and convicted of capital murder. Gary Johnson three brothers, Tracey, Randy, and Ricky, testified for the State.

Tracey Johnson testified that Gary came to Missouri during the fall of 1986, several months after the two Texas murders, and asked him to destroy his .44 caliber pistol because it had been involved in a double murder in which Gary and their brother Terry had participated. During that same visit, Ricky testified that Gary Johnson showed a .44 caliber pistol and admitted killing one man with the gun; and that He and Terry had also killed a second man. A state firearms examiner later identified a bullet fragment retrieved from Hazelton's body as being fired from the .44 caliber pistol.

Randy Johnson said Gary told him that he and Terry were at the Triple Creek to steal something when two men “got the drop on them.” While Terry distracted them, Gary shot one of the men. Gary and Terry caught the other man, brought him back to the barn, made him kneel, and tied his hands behind his back. While the second man pleaded for mercy, Gary shoved the gun in his mouth. The medical examiner later testified that the second man died from a contact bullet wound to the mouth. Gary Johnson explained the reason for killing the two men: “Dead men don't talk.”

Terry Johnson was convicted of murder and was sentenced to 99 years in prison after being convicted of murder. Gary Johnson was convicted of capital murder and was assessed the death penalty. At the penalty phase of the trial, the State presented evidence that Gary Johnson shot and killed a neighbor's dog from a distance of 75 to 100 yards while the dog was standing a few feet from the neighbor. The State also presented evidence that Johnson was carrying a loaded handgun when he was arrested for the murders of Hazelton and Sparagana. A psychiatrist, testified for the State. Based on a hypothetical question that summarized the testimony about Johnson, the psychiatrist concluded that Johnson would be a future danger to society.

December 16, 1992: The Court of Criminal Appeals affirmed Johnson's conviction and sentence. On October 4, 1993, the United States Supreme Court denied Johnson's petition for a writ of certiorari.

August 30, 1996: Johnson filed a state application for a writ of habeas corpus. Relief was denied on October 20, 2004. October 19, 2005: Johnson filed a federal petition for habeas corpus. Relief was denied by a Houston United States District Court on September 28, 2007 - A Houston U.S. district court denied habeas relief. On September 9, 2008, the Fifth Circuit granted a certificate of appealability on two issues and thereafter affirmed the federal district court's denial of habeas relief on January 7, 2009. On October 5, 2009, the United States Supreme Court denied Johnson's petition for certiorari review.

Johnson v. State, 853 S.W.2d 527 (Tex.Cr.App. 1992). (Direct Appeal)

Defendant was convicted of capital murder and was sentenced to death by the 12th Judicial District Court, Walker County, Jerry A. Sandel, J., and he appealed. The Court of Criminal Appeals, Benavides, J., held that: (1) defendant was not entitled to accomplice-witness instruction where defendant called the accomplice himself; (2) evidence was sufficient for jury to return affirmative finding on question of future dangerousness; (3) law of parties was applicable in determining whether two persons were murdered in the same transaction, but defendant could not be put to death for being party to murder absent finding of deliberateness; (4) there was no egregious error in instruction on the special issue concerning deliberateness; and (5) defendant's mitigating evidence was sufficiently taken into account in connection with the future dangerousness issue. Affirmed.

Baird and Maloney, JJ., concurred in the result. Clinton, J., filed a dissenting opinion.

BENAVIDES, Judge.

Appellant was convicted of Capital Murder for intentionally killing James Hazelton and Peter Sparagana during the same criminal transaction. Tex.Penal Code Ann. § 19.03(a)(6)(A) (West 1990). After the jury returned an affirmative answer to both special issues submitted under Tex.Crim.Proc.Code Ann. Art. 37.071(b) (West 1988), the judge assessed a sentence of death. The judgement of the trial court is affirmed.FN1

FN1. By per curiam order we withdrew our original opinion of December 19, 1990. The cause was resubmitted on original briefs on May 23, 1991.

I.

On the evening of April 30th, 1986, Bill and Shannon Ferguson were in their pasture waiting on a mare to foal. Sometime before 10:00 p.m. they observed a truck heading in an eastward direction pull over near a gate of the adjacent Triple Creek Ranch. They noticed someone get out of the truck, heard a chain rattle on the gate, and observed someone from the truck go through the gate and onto the ranch. The truck's headlights had been turned off, but Mrs. Ferguson noticed that when the driver of the truck applied the brakes, an unusual brake light pattern appeared. Concerned there was a burglary in progress, Mrs. Ferguson ran to her house to call the ranch managers, the Hazeltons. Other evidence showed that the original chain had been cut and a new lock had been placed on the gate.

Fifteen minutes later, the Fergusons observed Jim Hazelton's truck appear at the same gate on Highway 30. Unable to enter that gate, Hazelton backed up and entered the Ranch from another location. Eventually, the Fergusons heard Hazelton's truck stop. Upon hearing a gunshot, Mrs. Ferguson rushed to her house to phone Mrs. Hazelton and the police.

While Mrs. Ferguson was calling the police, Mr. Ferguson remained in the pasture watching to see if anyone exited the gate. Several minutes after the first gunshot, Mr. Ferguson heard several shots fired in rapid succession. After a brief silence, Mr. Ferguson heard someone plead for his life. The pleas were silenced by two more shots. When the police arrived, they discovered the bodies of Jim Hazelton and Peter Sparagana, Hazelton's brother-in-law, dead from bullet wounds fired at close range.

At trial the State presented damaging evidence from three of appellant's brothers-Tracey, Randy, and Ricky. Tracey Johnson testified that appellant came to Missouri during the fall of 1986, returned Tracey's .44 caliber pistol and asked him to destroy it because the pistol had been involved in a double murder in which appellant and their brother Terry had participated.

During that same visit to Missouri, Ricky Johnson testified that appellant was in possession of the .44 caliber pistol; that appellant admitted killing one man with the gun; and that appellant and Terry had also killed a second man. A state firearms examiner later identified a bullet fragment retrieved from Hazelton's body as being fired from the same .44 caliber pistol appellant returned to Tracey.

Randy Johnson also testified that appellant told him of the events that transpired at the Triple Creek Ranch. Appellant told Randy that he and Terry were out at the Triple Creek to steal something when two men “got the drop on them.” While Terry distracted them, appellant was able to shoot one of the men. Appellant and Terry caught the other man, brought him back to the barn, made him kneel, and tied his hands behind his back. While the second man plead for mercy, appellant shoved the gun in his mouth. The medical examiner later testified that the second man died from a contact bullet wound to the mouth. Appellant explained the reason for killing the two men to his brother Randy: “Dead men don't talk.”

II. In the first point of error, appellant contends that he was entitled to an accomplice-witness instruction under Tex.Code Crim.Proc.Ann. Art. 38.14 (West 1979): A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Appellant requested the instruction because of the testimony of Terry Johnson, appellant's brother, who was indicted for the same offense. As part of a plea agreement with the state, Terry Johnson had agreed to testify against his brother. The state, however, decided their evidence was complete without Terry's testimony and chose not to call Terry to the witness stand. During defense's case-in-chief, appellant attempted to inculpate Terry by calling him to testify. On direct examination by defense counsel Terry testified as to his participation in the robbery and inculpated appellant in the killing of Hazelton and Sparagana.

Appellant recognizes prior case law which indicated that when an accomplice is called by the defense to testify on behalf of the defense, no accomplice-witness instruction is required. But appellant argues the rationale for such a rule was based on the old “voucher” rule which is no longer in effect, and thus appellant was entitled to the instruction. See Russeau v. State, 785 S.W.2d 387 (Tex.Crim.App.1990). However, in Selman v. State, this Court reaffirmed the “established principal in this State that testimony elicited from a witness called by the accused and offered by the accused is not accomplice-witness testimony which must be corroborated as contemplated under Article 38.14.” 807 S.W.2d 310, 311 (Tex.Crim.App.1991); see also Brown v. State, 576 S.W.2d 36, 42 (Tex.Crim.App.1979); Cranfil v. State, 525 S.W.2d 518, 520 (Tex.Crim.App.1975); Aston v. State, 656 S.W.2d 453, 456 (Tex.Crim.App.1983) (trial court erred in giving accomplice-witness instruction where witness was called by defense). The very language of the rule illustrates its inapplicability to appellant's cause. The statute begins, “A conviction cannot be had upon the testimony of an accomplice ...” supra. But the State did not rely on the accomplice's testimony but closed its case-in-chief without calling him. It did not seek a conviction based upon the testimony of Terry Johnson. The statute provides for situations where a conviction is based in some part on the testimony of an accomplice. In this case, the witness was called by the defense, and his testimony as to the events of the crime was elicited by the defense. While the State did cross-examine the witness concerning his testimony, the witness had already testified as to the events of the crime. See Selman, supra (Miller, J. concurring opinion). As we opined in Selman, “accomplice-witness testimony must be corroborated and the jury so instructed only when the State calls the witness and seeks to rely on such witness's testimony.” 807 S.W.2d at 311. This is not the type of evidence which must be corroborated under the statute. No accomplice-witness instruction was required.

Point of error three is related to point of error one. Appellant complains that because the trial court failed to give an accomplice-witness instruction during the guilt-innocence phase, the evidence is insufficient to support the jury's affirmative finding to special issue number one during the punishment phase. Appellant contends, among other things, that if the testimony of Terry Johnson was excluded the remaining evidence is circumstantial as to the issue of deliberateness and the jury was left in the position of guessing how the actual deaths occurred. But since all of his arguments are predicated on the contention that the trial court improperly failed to instruct the jury on the accomplice-witness rule during the guilt-innocence phase, we reject appellant's arguments.

We find there is sufficient evidence to find appellant acted deliberately. The facts at the guilt stage of the trial alone can often be sufficient to support the affirmative finding of the jury to the special issues at the penalty stage of the trial. Williams v. State, 773 S.W.2d 525, 538 (Tex.Crim.App.1988), cert. denied, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 207 (1989). “A jury must find ‘a moment of deliberation and the determination on the part of the actor to kill’ before it is justified in answering ‘yes' to special issue number one.” Kinnamon v. State, 791 S.W.2d 84, 95-96 (Tex.Crim.App.1990). The determination of deliberateness must be found from the totality of the circumstances. Williams, 773 S.W.2d at 539; Cannon v. State, 691 S.W.2d 664, 677 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986). In determining the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict. Dunn v. State, 819 S.W.2d 510, 513 (Tex.Crim.App.1991); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Hazelton died as a result of gunshot wounds to the head, a contact type gunshot wound to the face into the neck, and a graze wound to the right shoulder. The medical and firearms examiner identified the fragments retrieved from the neck of Hazelton as being fired from the .44 caliber pistol retrieved from appellant's brother Tracey. There were also .38 caliber fragments retrieved from the gunshot wound to the head. The medical examiner's testimony and the evidence of the position of the body was consistent with someone being shot at point blank range in the face, and then when Hazelton was lying on the ground he was again shot in the head by someone standing over the body. The contact wound to the face could illustrate deliberateness.

But in addition to the wounds, Terry Johnson testified during defense's direct that he told appellant someone was coming up in a truck through the woods. Appellant's reply was that they would have to shoot it out because he was not going to get caught. While Terry went to look for a means of escape, appellant hid in waiting. The evidence reflects much more than an intentional killing of Hazelton. Appellant recognized and determined that by killing Hazelton and Sparagana, he could not be implicated because, as he told Randy: “Dead men don't talk.” Viewed in the light most favorable to the verdict, the evidence is sufficient to allow a rationale juror to have found beyond a reasonable doubt that appellant deliberately killed Hazelton. Appellant's first and third points of error are overruled.

III.

In appellant's second point of error, he contends that the evidence was insufficient for the jury to return affirmative finding to the question of future dangerousness. Again, in determining the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict. Dunn v. State, 819 S.W.2d 510, 513 (Tex.Crim.App.1991); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The jury can consider numerous factors in determining whether the defendant poses a continuing threat to society including, but not limited to, the following: 1. The circumstances of the capital offense, including the defendant's state of mind and whether he or she was working alone or with other parties; 2. The calculated nature of the defendant's acts; 3. The forethought and deliberateness exhibited by the crime's execution; 4. The existence of a prior criminal record, and the severity of the prior crimes; 5. The defendant's age and personal circumstances at the time of the offense; 6. Whether the defendant was acting under duress or the domination of another at the time of the commission of the offense; 7. Psychiatric evidence; and 8. Character evidence. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987).

Specifically, appellant claims that “the mere fact of two persons being murdered in the same transaction should not be considered a special factor” on the issue of future dangerousness in the second special issue. See Tex.Code Crim.Proc.Ann. Art. 37.071(b)(2) (West 1988). But it is not the mere fact of two persons being murdered that is a special factor. No killing exists in a vacuum. The circumstances of the offense, and the events surrounding it may provide greater probative value than any other evidence regarding the probability of future acts of violence. Alexander v. State, 740 S.W.2d 749, 761 (Tex.Crim.App.1987); see also Vuong v. State, 830 S.W.2d 929, 935 (Tex.Crim.App.1992); Sosa v. State, 769 S.W.2d 909, 912 (Tex.Crim.App.1989); Moreno v. State, 721 S.W.2d 295 (Tex.Crim.App.1986). We are unwilling to abandon this view and to disregard the circumstances of the offense in making our sufficiency review.

During the punishment hearing, a state's expert testified that the defendant represented a future threat to society. There was also testimony from a neighbor that appellant shot and killed his dog. Appellant fired a semi-automatic rifle at a range of 75 to 100 feet killing the dog which was approximately 3 to 5 feet from appellant's neighbor. When the jury considered the second issue, the circumstances surrounding the criminal act itself were certainly more damaging than the testimony at punishment. Evidence at trial also indicated appellant had previously worked on the ranch. This work presented appellant ample opportunity for him to prepare a plan for the burglary. Appellant and his brother entered the Triple Creek Ranch late at night. They cut the gate's lock and replaced the lock with one of their own to prevent detection and entered the ranch heavily armed with an intention of stealing a specific welder that appellant had observed at the ranch.

When appellant and his brother heard the approaching truck, instead of fleeing the scene, appellant hid in waiting. As Hazelton and Sparagana approached, appellant's brother distracted Hazelton providing appellant an opportunity to shoot Hazelton and capture Sparagana. Appellant then had Sparagana get on his knees, and while Sparagana plead for mercy, appellant shoved the pistol barrel in Sparagana's mouth and fired. The purpose for both murders was that “dead men don't talk.” The circumstances of the offense are such that the jury could rationally find beyond a reasonable doubt that appellant presented a future threat to society. See Vuong, 830 S.W.2d at 935. Accordingly, appellant's second point of error is overruled.

IV.

In points of error four, five, and six, appellant attacks the court's charge during the guilt-innocence phase of the trial on numerous grounds including the constitutionality of Tex.Penal Code Ann. § 19.03(a)(6)(A).FN2. Section 19.03 of the Penal Code provides, in pertinent part, that:(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and: ...(6) the person murders more than one person:(A) during the same criminal transaction; or(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct. In point of error four, appellant contends § 19.03(a)(6)(A) is unconstitutional in its application, violating the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 13, of the Texas Constitution, and that the statute is unconstitutionally vague and indefinite under numerous provisions of the Texas and U.S. constitutions. We disagree.

While appellant complains that § 19.03(a)(6) violates the Texas Constitution, appellant proffers no argument or authority as to the protection offered by the Texas Constitution or how that protection differs from the protection guaranteed by the U.S. Constitution. We decline to pursue appellant's Texas Constitutional arguments for him. Narvaiz v. State, 840 S.W.2d 415 (Tex.Crim.App.1992); Morehead v. State, 807 S.W.2d 577, 579 n. 1 (Tex.Crim.App.1991); McCambridge v. State, 712 S.W.2d 499, 501-502 n. 9 (Tex.Crim.App.1986); Tex.R.App.Proc. 74 and 210.

With regard to the claims under the U.S. Constitution, we note that prior to the enactment of § 19.03(a)(6) the Supreme Court upheld the constitutionality of the Texas capital punishment scheme in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (plurality opinion). When analyzing whether a state's capital murder scheme is violative of the Eighth Amendment, the Supreme Court has continually considered whether the scheme sufficiently narrows or limits the class of death-eligible defendants and whether the scheme allows a jury to sufficiently consider the mitigating evidence. Jurek v. Texas, 428 U.S. at 273-274, 96 S.Ct. at 2957; Blystone v. Pennsylvania, 494 U.S. 299, 305, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990).

Initially we must decide whether the Texas capital murder scheme, with the enactment of § 19.03(a)(6), complies with the Eighth Amendment by sufficiently narrowing the class of death-eligible defendants. In Blystone v. Pennsylvania, the Supreme Court noted “[the] presence of aggravating circumstances serves the purpose of limiting the class of death-eligible defendants, and the Eighth Amendment does not require that these aggravating circumstances be further refined or weighed by the jury.” 494 U.S. at 306-07, 110 S.Ct. at 1083. While we note that with the addition of Tex.Penal Code § 19.03(a)(6) the Texas capital murder scheme is broader than it existed when Jurek was decided, the addition of a second “murder” to the list of aggravating circumstances, such as rape, burglary, kidnapping, etc., does not make the Texas statute overbroad so as to violate the Eighth Amendment. The addition of this aggravating circumstance to the Texas capital murder scheme adequately channels the jury's discretion in the assessment of punishment, thus satisfying the Eighth Amendment. Narvaiz v. State, supra; Blystone v. Pennsylvania, 494 U.S. 299, 305, 110 S.Ct. 1078, 1083 (1990). We reject appellant's facial attack to the statute in his fourth point of error.

In the same point of error, appellant additionally argues that the statute is void for vagueness because the statute fails to define the terms “criminal transaction” and “same scheme or course of conduct.” Initially, appellant must show that the statute is unconstitutional as applied to him. Vuong, 830 S.W.2d 929, 941 (Tex.Crim.App.1992); Parent v. State, 621 S.W.2d 796, 797 (Tex.Crim.App.1981). Because the phrase “same scheme or course of conduct” relates to § 19.03(a)(6)(B) which was inapplicable to his conviction, the constitutionality of that portion of the statute may not be challenged. See Vuong, 830 S.W.2d at 941; Parent, 621 S.W.2d at 797.

We also find that the term “criminal transaction” is not vague as applied to the facts of this case. There is no dispute on appeal that appellant and his brother entered the property with the intent to steal certain specified items from the Ranch. While appellant and his brother were in the course of this transaction, two men discovered their presence. While one of the men was distracted appellant shot him. The other man was caught and shot execution style. Appellant's brief only suggests that appellant, himself, did not murder both men, but that instead his brother actually pulled the trigger. While these issues may present a defense to the capital murder charge, we cannot see how this even raises the issue of whether the murders were committed within the same “criminal transaction.” As we stated in Vuong, “[e]ven the most narrow construction of the term ‘same criminal transaction’ would include the type of actions the jury determined were committed by appellant.” 830 S.W.2d at 941. Appellant's constitutional challenge to the statute on the basis that it is void for vagueness is also rejected in appellant's fourth point of error.

In both points of error four and five, appellant recognizes the general rule that the law of parties applies to the capital murder statute. Nevertheless he contends the legislature did not intend for the law of parties to apply to the newly enacted § 19.03(a)(6)(A). We refuse to read such an exception in the statute. This Court has continually held that the law of parties announced in §§ 7.01 and 7.02 is applicable to capital murder cases. Crank v. State, 761 S.W.2d 328, 351 (Tex.Crim.App.1988), cert. denied, 493 U.S. 874, 110 S.Ct. 209, 107 L.Ed.2d 162 (1989); English v. State, 592 S.W.2d 949, 955 (Tex.Crim.App.), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980); Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Crim.App. [panel op.] 1979); Pitts v. State, 569 S.W.2d 898 (Tex.Crim.App.1978) (en banc). It would be an anomaly for this court to say the law of parties under §§ 7.01 and 7.02 applies to capital murder cases except under § 19.03(a)(6), where there is no language in the statute indicating such an exception. See Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991); Garcia v. State, 829 S.W.2d 796, 799 (Tex.Crim.App.1992) (plurality opinion) (“As jurists, we are obliged to implement the expressed will of our legislature, not the will it keeps to itself.”)

Appellant's final arguments, intertwined within points of error four, five and six, are based on the assumption that the law of parties does not apply to § 19.03(a)(6)(A). At trial during the guilt-innocence stage, the jury was instructed on the law of parties under Tex.Penal Code §§ 7.01 and 7.02.FN3 (West 1990). Appellant's argument is both a constitutional argument and a challenge to the interpretation of the statute. FN3. The jury was instructed on the law of parties under § 7.01(a), which states:A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both.

The trial court also instructed the jury under § 7.02(a)(2) and (b):(a) A person is criminally responsible for an offense committed by the conduct of another if: . . . . (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense ...(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Appellant contends a capital murder conviction based on the law of parties under § 7.02(b) is unconstitutional under Enmund v. Florida, 458 U.S. 782, 788, 102 S.Ct. 3368, 3371, 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Appellant's reliance on Enmund and Tison are misplaced.

The Texas capital murder scheme does not allow an individual to be put to death for merely being a party to a murder. As this court said in Cuevas v. State: To be convicted of a capital felony in Texas, a defendant must intentionally or knowingly cause the death of an individual in certain enumerated circumstances. See V.T.C.A., Penal Code Sec. 19.03. Of course, application of the law of parties at the guilt phase means it is possible for a non-triggerman, such as appellant, to be convicted of a capital offense. However, a capital defendant will be assessed the death penalty only if the jury answers the special issues of Art. 37.071(b) in the affirmative. Special issue number one requires the jury to determine “whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased would result.” Because the law of parties may not be applied in answering this issue, an affirmative verdict is possible only when the jury finds that the defendant's own conduct satisfies both parts of special issue number one. Therefore, the first special issue of Art. 37.071(b) includes the Enmund and Tison findings. 742 S.W.2d 331, 343 (Tex.Crim.App.1987), cert. denied 485 U.S. 1015, 108 S.Ct. 1488, 99 L.Ed.2d 716 (1988). The Texas special issue contained in Art. 37.071(b) sufficiently limits the imposition of death so as to meet constitutional challenges under Enmund or Tison. Having found that an individual may be found guilty of capital murder based on the law of parties and the statute is constitutional as applied to appellant, his fourth, fifth, and sixth points of error are overruled.

V. Appellant next complains of certain instructions given to the jury in the court's punishment charge. The instructions immediately preceded the first special issue and provided as follows: In answering Special Issue No. 1 you are instructed that before you may answer “yes” to Special Issue No. 1, you must find from the evidence, beyond a reasonable doubt, that the defendant, Gary Johnson, either solely caused the death of James Hazelton and Peter Sparagana by shooting them with a handgun, or that the defendant contemplated that the death of James Hazelton and Peter Sparagana would result while acting as a party or in furtherance of a conspiracy to commit the offence [sic] of burglary of a building.

Appellant's seventh, eighth and ninth points of error essentially complain of error in the use of three specific terms-“contemplated,” “party,” and “conspiracy,” respectively in the instruction quoted above. Because appellant failed timely to object to the Court's charge, appellant must claim any such error was ‘fundamental,’ and “... he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’-in short ‘egregious harm.’ ” Almanza v. State, 686 S.W.2d 157 at 171 (Tex.Cr.App.1984).

In point of error seven, appellant contends that the trial court's insertion of the word “contemplated” rises to the level of egregious harm because of its vague and indefinite nature and thus, since the court did not give a concomitant definition of the term, appellant was denied due course of law under Article I, Sections 10, 13 and 19 of the Texas Constitution. Because the court failed to define “contemplated” in the charge, appellant argues the jury did not examine appellant's conduct but rather what appellant may have contemplated. We do not believe that the term “contemplated” has become so technical that it is a legal term of art requiring the trial court to define the term. As opined in Russell v. State:

Where terms used are words simple in themselves and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms, and under such circumstances such common words are not necessarily to be defined in the charge to the jury. [Citations omitted.] 665 S.W.2d 771, 780 (Tex.Crim.App.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1428, 79 L.Ed.2d 752, rehearing denied, 466 U.S. 932, 104 S.Ct. 1720, 80 L.Ed.2d 192 (1984). The jury was entitled to give the term the common and ordinary meaning of the word. We are not persuaded that the trial court erred in failing to instruct the jury on the definition of “contemplated.”

Appellant also argues that the preparatory instruction for special issue one is fundamentally defective because it allows the jury to answer in the affirmative without any regard to the specific conduct of the defendant. While the preparatory instruction, by itself, may not focus the jury's attention on the conduct of appellant, special issue one clearly does: Was the conduct of [appellant] that caused the death of the deceased, James Hazelton and Peter Sparagana, committed deliberately and with the reasonable expectation that the death of the deceased or another would result. [Emphasis added.] Because the first special issue correctly focuses the jury's attention on the conduct of appellant, and no egregious harm is shown, his seventh point of error is overruled.

Appellant further complains that the term “party” in the preparatory instruction constitutes an instruction on the law of parties, such that, appellant can be sentenced to death for being merely a party to the offense. Appellant correctly notes that the law of parties cannot be applied to the punishment phase of a capital murder trial. Green v. State, 682 S.W.2d 271 (Tex.Crim.App.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985). When the law of parties is presented to the jury in the guilt phase of a trial, a trial court should give an “anti-parties” charge at punishment when requested. Belyeu v. State, 791 S.W.2d 66, 73 (Tex.Crim.App.1989), cert. denied, 499 U.S. 931, 111 S.Ct. 1337, 113 L.Ed.2d 269 (1991); Webb v. State, 760 S.W.2d 263, 268 (Tex.Crim.App.1988); Cuevas v. State, supra.

Appellant argues that failure to give such an instruction is harmful whether or not an objection is made, thus requiring a reversal under Tex.R.App.P. 81(b)(2). We disagree. Absent an objection or request, an “anti-parties” charge is not required by statute or by the constitution. Belyeu v. State, 791 S.W.2d at 73; Green v. State, 682 S.W.2d 271 (Tex.Crim.App.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985). Because no objection is made, appellant's eighth point of error is rejected.

Appellant specifically complains in point of error nine that the preparatory instruction was fundamentally defective because it lessened the prosecutor's burden. Appellant believes the jury was authorized to answer affirmatively to special issue number one, if appellant was shown to be “in furtherance of a conspiracy to commit the offense of burglary of a building.” Essentially, appellant argues, if the jury found appellant participated in a conspiracy they were authorized to answer the special issue in the affirmative. The charge merely instructed the jury that if, at the guilt phase of the trial, their guilty verdict was predicated upon § 7.02(b), criminal responsibility involving conspiratorial liability, then at the punishment phase, in order to warrant the affirmative finding, it was mandated that the jury find from the evidence beyond a reasonable doubt that appellant “contemplated” that the death of the victims would result. Coupled with the instruction focusing on appellant's own conduct causing the death of the victims which was committed by him deliberately with the reasonable expectation that death would result, we fail to see any egregious harm which could have resulted from the trial court's instruction. Point of error nine is overruled.

VI. Appellant's tenth point of error alleges that the trial court erred in failing to instruct the jury on the requested definition of “deliberately.” This Court has previously addressed the issue of defining “deliberately” and held no definition is required. We decline to reconsider the issue here. Lewis v. State, 815 S.W.2d 560, 563 (Tex.Crim.App.), cert. denied, 503 U.S. 920, 112 S.Ct. 1296, 117 L.Ed.2d 519 (1991), and cases cited therein.

VII.

In the eleventh, twelfth, and thirteenth points of error, appellant contends that the Texas capital murder statute is unconstitutional on its face and as applied. He claims a violation of the Eighth Amendment of the U.S. Constitution based upon the trial court's failure to submit an additional instruction that takes into account appellant's mitigating evidence.

This Court addressed appellant's facial challenge to the Texas statutory sentencing scheme recently in Lewis v. State. We opined: It is plain from a reading of Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) and Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) that the statutory method of assessing the death penalty in Texas can be administered in a manner consistent with the Eighth Amendment of the United States Constitution. Whether it is so administered in fact depends upon the circumstances of individual cases. But, in any event, the capital sentencing procedure is not itself unconstitutional for its failure to provide for jury consideration of mitigating evidence. 815 S.W.2d at 567. The central question in analyzing the constitutionality of the Texas statutory scheme is the application of the capital sentencing procedure, and whether the special issues sufficiently allow for the jury to consider any mitigating evidence.

Appellant directs this Court's attention to the following mitigating evidence in support of his constitutional challenge: 1) evidence of lack of violent behavior towards other persons, 2) evidence that he was a hard worker at his last place of employment, 3) testimony by his ex-wife that he was non-violent, 4) and testimony from an expert witness specifically challenging the state expert's ability to predict future dangerousness.

The evidence of appellant's non-violent behavior and the evidence that he is a hard working individual are mitigating in nature. However, the mitigating effect of such evidence can be considered within the second special issue. See Mooney v. State, 817 S.W.2d 693, 705-6 (Tex.Crim.App.1991); Boyd v. State, 811 S.W.2d 105, 111 (Tex.Crim.App.), cert. denied, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991); Ex Parte Baldree, 810 S.W.2d 213 (Tex.Crim.App.1991); Ex Parte Ellis, 810 S.W.2d 208, 211 (Tex.Crim.App.1991). On the other hand, the evidence from appellant's expert witness is not in itself mitigating evidence, but rather a challenge to the credibility or the weight of the State's expert witness. The jury could consider any mitigating effect of the testimony in assessing the weight or credibility of the State's expert in the consideration of the special issue. Accordingly appellant's points of error are overruled.

VIII.

In the fourteenth point of error, appellant contends the trial court committed fundamental error by failing to charge the jury on the issue of provocation as required by Tex.Crim.Proc.Code Ann. Art. 37.071(b) (West 1988), which states: On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury: ... (3) If raised by the evidence, whether the conduct of the defendant in killing the deceased was reasonable in response to the provocation, if any, by the deceased.

The third special issue must be given if raised by the evidence. Robinson v. State, 851 S.W.2d 216 (Tex.Crim.App.1991), reh'g granted on other grounds, (July 3, 1991). In support of his argument that it was raised by the evidence, appellant points to the testimony of Mr. Ferguson who testified he heard five to seven shots fired. Because appellant's .44 magnum revolver only held six shots, appellant asks us to infer that one of the victims fired first, and in such a manner that it provoked appellant to shot him. Such is more in the nature of speculation than a permissible inference, especially since all the evidence indicates quite to the contrary that in fact appellant initiated the violence. Appellant additionally points to the testimony of Terry Johnson in support of his contention that a gun fight ensued. However a more careful reading of Terry's testimony supports the contrary. Terry testified during the defense's direct examination that appellant told him that “as soon as he hit [Hazelton] he fired a shot at him, Hazelton boy fired a shot at him as he was going down.” Additionally, Terry testified that when they heard the approaching truck, Terry told appellant that they were going to get caught. Appellant replied, “the only thing we can do is shoot it out with them.” None of the evidence presented raises an inference that appellant was provoked into shooting Hazelton. No error was committed by the trial court's failure to sua sponte charge the jury on the third special issue. Appellant's fourteenth and final point of error is overruled. The judgement of the trial court is affirmed.

BAIRD and MALONEY, JJ, concur in the result.

CLINTON, Judge, dissenting.

Appellant presented evidence that he is not a man of violent character, that he neither drinks nor takes drugs, and that he was a diligent employee respectful of his coworkers. These character traits do not fall squarely within the ambit of Penry v. Lynaugh, supra, and they obviously carry little weight as mitigating evidence with the majority today. Nevertheless, it is not plain to me that jurors would find these facets of appellant's character insignificant in making the normative evaluation whether he deserves to live in spite of his crime. The Supreme Court has not expressly limited its view of “relevant” mitigating evidence to those circumstances necessarily bearing on personal culpability for the particular offense committed or those aspects of the defendant's background or makeup to which his crime may be, at least in part, attributable. See Skipper v. South Carolina, 476 U.S. 1, at 4-5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1, 7 (1986). To the contrary, there is every indication a majority of the Supreme Court believes “[e]vidence of voluntary service, kindness to others, or of religious devotion” to be relevant inasmuch as it “might demonstrate positive character traits that might mitigate against the death penalty.” Franklin v. Lynaugh, 487 U.S. 164, at 186, 108 S.Ct. 2320, at 2333, 101 L.Ed.2d 155, at 173 (1988) (O'Connor, J., concurring). Appellant's proffered evidence was of the same ilk. Because jurors in this cause were precluded from effectuating that evidence beyond the scope of special issues under Article 37.071, § (b), V.A.C.C.P., appellant has been sentenced to death in contravention of the Eighth Amendment. His conviction should be reversed and remanded for new trial. Article 44.29(c), V.A.C.C.P.

I also disagree with the majority's treatment of appellant's first point of error. Article 38.14, V.A.C.C.P., reads substantially as it has read since originally promulgated as Art. 653 of the Old Code, viz: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

The majority concludes that a defense witness may not be considered an accomplice for purposes of this statute, and thus concludes the trial court did not err in failing to submit appellant's requested instruction at the conclusion of the guilt phase of trial. In this I believe the majority errs.

It is true that in relatively recent years the Court has said that, e.g., “Article 38.14, supra, is not construed to require corroboration of a witness called by the accused. Brown v. State, 476 S.W.2d 699 (Tex.Cr.App.1972); Davis [sic] v. State, 162 Tex.Cr.R. 280, 284 S.W.2d 713 (1955).” Jenkins v. State, 484 S.W.2d 900, at 902 (Tex.Cr.App.1972). Reasoning from this proposition, the Court later concluded that any testimony offered by an accused “is not that of an accomplice witness.” Cranfil v. State, 525 S.W.2d 518, 520 (Tex.Cr.App.1975); Aston v. State, 656 S.W.2d 453, 455 (Tex.Cr.App.1983). All of these holdings seem to me to derive from a misunderstanding of earliest holdings construing predecessors to Article 38.14, supra.

In Joseph v. State, 34 Tex.Cr.R. 446, 30 S.W. 1067 (1895), the decomposed body of a newborn was found in a cistern, and Joseph was charged with infanticide. Marie Nicholas, a woman with whom Joseph was “engaged in the business of peddling,” testified that: “she gave birth to the child; that she did so in a privy on the premises; that, after its birth, it uttered a cry, and she took it up, and it immediately died; and that by herself, without any knowledge on the part of any person, she disposed of it in the cistern.” Id., 30 S.W. at 1068. The trial court gave an accomplice witness instruction pursuant to then Article 741 of the 1879 Code of Criminal Procedure. After quoting the statute, this Court observed: “If there was a crime committed in this case, certainly Marie Nicholas was an accomplice. She was not introduced by the state as a witness, and all her testimony was in favor of the defendant; and yet the jury were told that, if the state relied for a conviction in any measure upon her testimony, they were to discredit it to the extent of requiring its corroboration before they would be authorized to convict. While this might be true as an abstract proposition, yet, without a pertinent charge telling the jury in this connection that the same rule did not apply to said witness where her testimony was in favor of the defendant, it was liable to mislead and confuse the jury, and to discredit said witness when they should come to consider her testimony. Under such a charge they were liable to regard the same rule applicable to the state as equally applicable to the defendant, and to require that she be corroborated before they would be authorized to acquit the defendant upon the testimony of said witness alone. We believe that the charge was erroneous as to said witness.” Id., 30 S.W. at 1068-69.

A year later, in Williams v. State, 37 S.W. 325 (Tex.Cr.App.1896), the accused appealed his conviction for incest. “The appellant proposed to prove by his said daughter, in substance, that at no time had he ever had carnal intercourse with her.” He sought a continuance to obtain her presence, and in the process of holding it should have been granted, the Court opined: “The law does not require the testimony of an accomplice to be corroborated, when given for the accused. The statute forbids conviction upon the testimony of an accomplice, unless corroborated, but does not require such testimony to be corroborated when given for the accused.” Id. Thus, the Court indicated that when an accomplice witness testifies purely to facts favorable to an accused, an instruction pursuant to the statute, without qualification, would be error inasmuch as it might lead the jury to believe, contrary to the law, that an accomplice witness's testimony must be corroborated not only before it may support a conviction, but also before it may support an acquittal.FN1 That is to say, a jury must not be misled to believe that testimony from an accomplice that exculpates an accused need also be corroborated under the statute.

FN1. Prior to this Court's decision in Daviss v. State, 162 Tex.Cr.R. 280, 284 S.W.2d 713 (1955), see text post, the rule was stated in the second edition of Branch's as follows:“When an accomplice testifies for the defendant it is error to charge that if the State relies for a conviction in any measure upon his testimony it must be corroborated, if the charge omits to also inform the jury that the same rule does not apply to his testimony given in favor of the defendant.” (Emphasis added.)2 Branch's Annotated Penal Code, § 744 (2d ed. 1956).

Two points must be noted. First, the Court did not hold in these cases that a witness called by the defendant to give exculpatory testimony cannot be considered an accomplice. Quite the contrary, both Joseph and Williams identify the defense witness as an accomplice, “[i]f there was a crime committed” at all. Second, by “given for the accused,” the Court did not mean simply that the testimony was proffered during the defendant's presentation of evidence, but that the testimony was exculpatory, admitted solely in an effort to persuade the jury to acquit, not to convict, as would be impermissible sans corroboration under the statute. These cases do not address the question whether the statute requires corroboration of an accomplice who is called by the defendant, but gives testimony upon which the jury could rationally rely to convict. Facially, the statute would appear to require corroboration in the premises, for it contains no express or implicit qualification based upon which party sponsors the accomplice witness.

Nevertheless, on opinion on appellant's motion for rehearing in Daviss v. State, 162 Tex.Cr.R. 280, 284 S.W.2d 713, at 714 (1955), the Court held that inculpatory testimony from an accomplice witness, when the witness is proffered by the accused, need not be corroborated under the statute. Without further elaboration, the Court simply cited Joseph and Williams, both supra, and concluded that no corroboration was required because the testimony at issue had been “given for the accused.” The holding of Daviss was uncritically accepted and expanded in Jenkins, Cranfil, and Aston, all supra, to the point that we now say that no witness called by an accused can be an accomplice at all. It seems to me these cases thwart the very purpose of Article 38.14, supra.

Frequently the State must offer an accomplice immunity or leniency in order to induce him to forego constitutional privileges against self-incrimination and testify. There is reason to mistrust testimony of an accomplice under those circumstances, for he has every incentive to fabricate, or to downplay his own involvement in the offense to the detriment of the accused. He wants to appease the State and “to save his own skin.” But suppose an accused can prove some exculpatory fact through no means other than the testimony of an accomplice who otherwise has an abundance of inculpatory testimony to give. If the State declines to call that witness, must the accused suffer loss of the benefit of Article 38.14, supra, simply because he must rely on that witness for partial exculpation? An accomplice witness willing to relinquish his testimonial privilege without benefit of a deal with the State, willing to establish some small point in favor of the accused because it does not concomitantly incriminate him, may nevertheless harbor strong incentive to inculpate an accused in other aspects to deemphasize his own involvement in the crime. As to those inculpatory aspects of his testimony, the same reasons exists to mistrust his testimony as had the State itself called the accomplice. Moreover, in this cause Terry Johnson had worked out a plea agreement with the State in exchange for testimony at appellant's trial. That the State then declined to call him in its case-in-chief does not relieve the pressure he was under to testify in such a way as to appease the State. Under such circumstances “the aura of distrust” does not lift simply because appellant himself called the witness to the stand.

I cannot imagine a rationale for holding that an accomplice witness called by an accused who gives inculpatory testimony is not subject to the statutory corroboration requirement, unless it is a remnant of the “voucher” notion-that a party is bound to the testimony of the witnesses he presents, and any grounds for mistrust must fall away. This “voucher” requirement has been largely discredited on the sensible ground that a party must take his witnesses as he finds them. See 3A Wigmore, Evidence, Chadbourn rev. 1970, § 898; McCormick, Evidence, Cleary ed. 1984, § 38. Accordingly, Rule 607 of the Federal Rules of Evidence has abandoned the former common law prohibition against a party impeaching its own witness, at least on its face.FN2 Except for the gender-neutral terminology in the current federal rule, our Tex.R.Cr.Evid., Rule 607 is identical to its federal counterpart. Having abandoned “voucher” in the context of impeachment, I can see no compelling reason that we should cling to it in the context of construing the corroboration requirement of Article 38.14, supra. I would therefore hold the trial court erred in failing to give the requested instruction.FN3

FN2. Caselaw requirements of “surprise” and “damage” as prerequisites to impeaching one's own witness are conspicuously absent from Federal Rule 607. These requirements were designed to protect against a party calling a witness he knows will testify adversely to his cause solely so that he might introduce as “impeachment” a prior inconsistent statement of that witness, hoping the jury will consider the statement for its substantive content, the hearsay rule notwithstanding. The drafters of Federal Rule 607 dispensed with this problem by “proposing a definition of hearsay which excluded prior inconsistent statements, thereby making such evidence admissible for all purposes.” 27 Wright & Gold, Federal Practice and Procedure: Evidence § 6091 (1990), at 483. Because by this scheme prior inconsistent statements were to be admitted for any purpose, there would no longer exist an incentive to present a witness solely to “impeach” him with one, and the necessity for showing surprise and damage as a prerequisite to impeachment of one's own witness would disappear. “Unfortunately, ... Congress would reject Rule 801 as proposed and greatly limit the class of prior inconsistent statements that may be considered ‘not hearsay.’ Congress made no effort to revise Rule 607 in light of the changes made to Rule 801(d)(1)(A).” Id. Commentators and federal courts have struggled with the question of whether, and if so how, to read “surprise” and “damage” requirements back into Rule 607, in view of the fact that prior inconsistent statements are still considered inadmissible hearsay. Id., § 6093, at 496-515. Because Tex.R.Cr.Evid., Rule 801(e)(1)(A) echoes Federal Rule 801(d)(1)(A), presumably this Court will eventually confront a similar problem.

FN3. One of appellant's other brothers testified during the State's case-in-chief that appellant had admitted to him facts that were substantially the same as those Terry Johnson later testified to, insofar as they inculpated appellant. Under these circumstances the Court has held under earlier incarnations of Article 36.19, V.A.C.C.P., that failure to give an accomplice instruction “was not calculated to injure the rights of the defendant....” Saucier v. State, 156 Tex.Cr.R. 301, 235 S.W.2d 903, at 909-910 (1951), and cases cited therein. Because I believe that it was reversible error not to give appellant's requested mitigation instruction, I need not address the question of harm. Although the majority correctly disposes of appellant's remaining points of error, a few bear further comment. In his seventh, eighth, and ninth points of error appellant alleges the trial court erred in instructing the jury at the punishment phase of trial that it must find appellant either “solely caused the death” of the two victims, or else “contemplated” that they would be killed. In my view this instruction was not only not erroneous, it was probably necessary if a sentence of death was to pass Eighth Amendment muster in this cause.

In Cuevas v. State, 742 S.W.2d 331, 343 (Tex.Cr.App.1987), the Court held that the first special issue alone is sufficient to meet the demands of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). I do not believe that invariably to be the case, however.

We have held that when a jury convicts a capital accused as a party under the provisions of V.T.C.A. Penal Code, § 7.02(a)(2), the verdict of guilty entails a sufficient finding under Enmund and Tison, both supra. See Webb v. State, 760 S.W.2d 263, at 268-69 (Tex.Cr.App.1988); Tucker v. State, 771 S.W.2d 523, at 530 (Tex.Cr.App.1988). This is so because: “before the accused may be found criminally responsible for the conduct of another who ‘intentionally commits the murder,’ under the provisions of V.T.C.A. Penal Code, § 7.02(a)(2), it must be shown the accused harbored a specific ‘intent to promote or assist the commission of’ the intentional murder the other committed. Meanes v. State, [668 S.W.2d 366,] at 375-76 [ (Tex.Cr.App.1983) ]; Rector v. State, 738 S.W.2d 235, 244 (Tex.Cr.App.1986); See also Martinez v. State, 763 S.W.2d 413, 420 n. 5 (Tex.Cr.App.1988). One could hardly indulge an intent to promote or assist in the commission of an intentional murder without, at a minimum, intending or contemplating that lethal force would be used. In short, that the jury may not have believed [a capital accused] pulled the trigger of the actual murder weapon is of no moment. Because it was required to find an intent to promote or assist commission of an intentional murder before the jury could convict [him] as a party to the offense in the first instance, we cannot say its later punishment verdict was ‘fatally defective’ under Enmund.” FN4. Emphasis in the original. Webb v. State, supra. The same cannot be said where the jury may have reached a verdict of guilty relying upon a conspiracy theory of parties under V.T.C.A. Penal Code, § 7.02(b). That provision reads: “(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

Under § 7.02(b), supra, a jury could convict a capital accused upon no more than a finding that the killing “should have been anticipated as a result of the carrying out of the conspiracy.” That a result “should have been anticipated” does not necessarily mean a capital accused did in fact intend or contemplate it, or even that he harbored “the reckless indifference to human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death.” Tison v. Arizona, 481 U.S. at 157, 107 S.Ct. at 1688, 95 L.Ed.2d at 144. A guilty verdict premised upon § 7.02(b), supra, will not meet the dictates of Enmund and Tison.

Furthermore, the first special issue will also prove insufficient to ensure that Enmund and Tison have been met where a capital accused has been convicted under a conspiracy theory of parties. The jury is to focus on “the conduct of the defendant that caused the death of the deceased” under Article 37.071(b)(1), V.A.C.C.P. When a capital defendant has been found guilty as a party under § 7.02(a)(2), supra, we have construed Article 37.071(b)(1), supra, to require that what must be scrutinized for deliberateness is not the conduct of the primary actor which directly caused the death, but the conduct of the defendant by which he solicited, aided, encouraged or directed that killing. Meanes v. State, supra, at 375-76; Martinez v. State, supra, at 420, n. 5. Analogously, unless we are to hold that the law of parties does apply at the punishment phase of a capital case-something we expressly declined to do in Green v. State, 682 S.W.2d 271 (Tex.Cr.App.1984)-then what must be shown to have been deliberate on the part of a capital accused found guilty under § 7.02(b), supra, is his conduct as a conspirator. But again, because that is conduct which may have been committed without actual anticipation that death would result, application of the first special issue in this context may not satisfy Enmund and Tison after all.

Thus, the instruction given in this cause, that if the jury finds appellant himself was not the triggerman it must find at least that he “contemplated” that death would result, may very well have been necessary to render any sentence of death imposed as a consequence of the jury's answers to special issues valid under the Eighth Amendment. Appellant contends the instruction operated to lessen the State's burden of proof on the issue of his deliberateness, in violation of due process and due course of law. But the only finding of deliberateness required by Article 37.071(b)(1), supra, focuses on appellant's conduct as a conspirator in the underlying felony. Requiring a finding for purposes of the Eighth Amendment that appellant at least “contemplated” that death would result as a consequence of carrying out the conspiracy only serves to increase the State's burden beyond that which the statute alone imposes, not to decrease it.FN5

FN5. Whether the instruction given here is authorized or even permitted under Article 37.071, supra, is quite another question, cf. State v. Wagner, 309 Or. 5, 786 P.2d 93 (1990), but one which appellant does not now raise. For this reason I also agree with the majority's ultimate disposition of appellant's seventh, eighth, and ninth points of error. Nevertheless, because in my view the trial court erred in failing to give the requested Penry instruction, I respectfully dissent.

Johnson v. Quarterman, 306 Fed.Appx. 116 (5th Cir. 2009). (Habeas)

Background: Following affirmance on direct appeal of petitioner's state court capital murder conviction and death sentence, 853 S.W.2d 527, he filed petition for writ of habeas corpus. The United States District Court for the Southern District of Texas, John D. Rainey, J., 2007 WL 2891978, denied petition. Certificate of appealability (COA) was granted.

Holdings: The Court of Appeals held that: (1) state's suppression of evidence of the hypnosis of one witness and the attempted hypnosis of another witness did not violate Brady; (2) defendant was not deprived of effective assistance of counsel; and (3) exclusion of expert witness affidavits was warranted. Affirmed.

Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM

Gary Johnson was convicted of capital murder and sentenced to death for the 1986 murders of James Hazelton and Peter Sparagana during the same criminal transaction. We granted a certificate of appealability (“COA”) authorizing Johnson to appeal the district court's denial of habeas relief for Johnson's due process and ineffective assistance of counsel claims. We AFFIRM.

I.

The recitation of the facts that follows is drawn from the opinions of the Texas Court of Criminal Appeals and the district court. Bill and Shannon Ferguson were in their pasture on the evening of April 30, 1986, waiting for a mare to foal. Sometime before 10:00 p.m., they saw a truck pull over near a gate to the adjacent Triple Creek Ranch. They saw someone get out of the truck, heard a chain rattle on the gate, and saw the truck go through the gate and onto the ranch.FN1 The truck's headlights were off, but Mrs. Ferguson noticed an unusual brake light pattern on the truck (four large round lights, two on each side, one above the other). Mrs. Ferguson went to the barn and called the Triple Creek Ranch. She spoke to the wife of Jim Hazelton, the ranch manager, and told her that a burglary might be taking place because a truck had entered the ranch with its lights off. Mrs. Hazelton told Mrs. Ferguson that her husband would be right out.

FN1. Other evidence showed that the original chain had been cut and a new lock had been placed on the gate.

Fifteen minutes later, the Fergusons saw Triple Creek Ranch manager Jim Hazelton's truck appear at the same gate. Hazelton was unable to enter the ranch through that gate, so he backed up and entered the ranch from another location. Eventually the Fergusons heard Hazelton's truck stop. When they heard a gunshot, Mrs. Ferguson went back to the barn to call the Walker County Sheriff's Department and Mrs. Hazelton.

While Mrs. Ferguson was gone, Mr. Ferguson remained in the pasture. Several minutes after the first gunshot, Mr. Ferguson heard several shots fired in rapid succession. After a brief silence, Mr. Ferguson heard someone plead for his life. The pleas were silenced by two more shots. When the law enforcement officials arrived, they discovered the bodies of Jim Hazelton and his brother-in-law, Peter Sparagana.FN2. Mrs. Hazelton is Peter Sparagana's sister.

Walker County Deputy Sheriff Allen McCandles saw a truck matching Shannon Ferguson's description of the truck driven by the intruders in Johnson's pasture after the shootings, and he saw Johnson driving the truck numerous times. Another law enforcement officer testified that two of the lights on the back of Johnson's truck were removed in the two weeks after the murders.

Three of Johnson's brothers-Tracey, Randy, and Ricky-testified for the State at trial. Tracey testified that Johnson came to Missouri during the fall of 1986, returned Tracey's .44 caliber pistol, and asked Tracey to destroy it because the gun had been used in a double murder in which Johnson and their brother, Terry, participated.

Ricky testified that, during that same visit to Missouri, Johnson was in possession of the .44 caliber pistol, he admitted killing one man with the gun, and he said that he and Terry also killed a second man. A state firearms examiner later identified a bullet fragment retrieved from Hazelton's body as having been fired from the same .44 caliber pistol that Johnson returned to Tracey.

Randy testified that Johnson told him that Johnson and Terry were out at the Triple Creek to steal something when two men “got the drop on them”; while Terry distracted them, Johnson shot one of the men; Johnson and Terry caught the other man, brought him back to the barn, made him kneel, and tied his hands behind his back; and while the second man pleaded for mercy, Johnson shoved the gun in his mouth. The medical examiner testified that the second man (Hazelton) died from a contact bullet wound to the mouth. Randy testified that Johnson told him the two men were killed because “dead mean don't talk.”

The defense called Johnson's brother, Terry, as a witness. (Defense counsel's decision to do so is the basis for Johnson's ineffective assistance of counsel claim.) Terry testified that Johnson killed both of the victims. The defense also presented testimony from two inmates in the Walker County Jail that Terry Johnson told them that he (Terry) had killed both of the victims.

At the penalty phase of the trial, the State presented evidence that Johnson shot and killed a neighbor's dog from a distance of 75 to 100 yards, while the dog was standing a few feet from the neighbor. The State also presented evidence that Johnson was carrying a loaded handgun when he was arrested for the murders. Dr. James P. Grigson, a psychiatrist, testified for the State. Based on a hypothetical question that summarized the testimony about Johnson, Dr. Grigson concluded that Johnson would be a future danger to society.

Johnson's uncle testified for the defense at the penalty phase that he had never seen Johnson act violently. Johnson's former boss and a co-worker testified that Johnson was hard-working, respectful, and non-violent. Johnson's ex-wife testified that Johnson was never violent toward their children, and never drank or used drugs. Dr. James Marquart, a sociologist, testified for the defense. He had studied the post-conviction criminality of sixty-nine convicted murderers whose sentences were subsequently reduced or commuted, and none of them had ever killed again. He pointed out that the American Psychiatric Association takes the position that it is impossible to make a future dangerousness assessment with 100 percent certainty. He testified that his study of cases in which a prosecution expert predicted future dangerousness showed that the expert was wrong two-thirds of the time. Dr. Wendell Lee Dickerson, a psychologist, testified that the American Psychiatric Association holds that psychiatrists who, like Dr. Grigson, purport to predict future dangerousness with a high degree of certainty, “are engaging in practice little short of quackery.”

The jury found that Johnson had acted deliberately and with a reasonable expectation that death would result, and that it was probable that Johnson would commit future acts of criminal violence that constitute a continuing threat to society. The trial court sentenced to Johnson to death.

Johnson's conviction and sentence were affirmed on direct appeal. Johnson v. State, 853 S.W.2d 527 (Tex.Crim.App.1992). The Supreme Court denied certiorari. Johnson v. Texas, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993). The Texas Court of Criminal Appeals denied Johnson's application for state habeas relief. Ex parte Johnson, No. 55,377-01 (Tex.Crim.App. Oct. 20, 2004). The district court denied Johnson's petition for federal habeas relief and denied a COA. Johnson v. Quarterman, No. H-05-3581, 2007 WL 2891978 (S.D.Tex. Sept. 28, 2007).

Johnson requested a COA from this court to appeal the denial of relief as to three claims. Based on our “threshold inquiry,” consisting of “an overview of the claims in the habeas petition and a general assessment of their merits,” Miller-El v. Cockrell, 537 U.S. 322, 327, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), this court granted a COA for Johnson's claims that (1) his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated by the State's suppression of evidence that the Fergusons, who testified for the State at trial, had been hypnotized; and (2) his trial counsel rendered ineffective assistance by calling Johnson's brother, Terry, as a witness at the guilt phase of trial. Johnson v. Quarterman, 2008 WL 4155471 (5th Cir. Sept.9, 2008). We denied a COA for Johnson's claim that the district court erred by refusing to consider the affidavits of attorneys on the issue of whether Johnson's trial counsel rendered constitutionally ineffective assistance, on the ground that it was unnecessary. Id.

The parties submitted supplemental briefs on the merits of the claims for which a COA was granted. Having considered the briefs and based on our review of the record of the state court trial, and the state and federal habeas proceedings, we conclude that the state court's decision to deny relief on these claims is not based on an unreasonable determination of the facts in the light of the evidence presented, and is neither contrary to, nor an unreasonable application of, clearly established federal law. We therefore AFFIRM the district court's denial of federal habeas relief, for the reasons that follow.

II.

Johnson is not entitled to federal habeas relief on his claims unless the state court's adjudication of the claims (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 state court's factual determinations “shall be presumed to be correct,” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “In reviewing the district court's application of § 2254(d) to the state court decision, we review the district court's findings of fact for clear error and its conclusions of law de novo.” Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir.2008). We address Johnson's Brady claim first, and then turn to his claim of ineffective assistance of counsel.

A.

Johnson argues that the prosecution violated his right to due process by suppressing evidence that the Fergusons, who testified for the State at the guilt-innocence phase of the trial, were hypnotized. The law governing claims that prosecutors improperly withheld evidence from a defendant is clearly established. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). “The Due Process Clause of the Fourteenth Amendment requires prosecutors to disclose to a defendant, on request, any evidence which is favorable and material to the issue of guilt or punishment.” Titsworth v. Dretke, 401 F.3d 301, 306 (5th Cir.2005). “This disclosure requirement imposes a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.” Id. (internal quotation marks and citation omitted). To establish his Brady claim, Johnson must demonstrate that: “(1) the prosecutor suppressed evidence, (2) favorable to the defense, and (3) material to guilt or punishment.” Pippin v. Dretke, 434 F.3d 782, 789 (5th Cir.2005) (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194). “The suppressed evidence is material if there is ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Id. (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

In 1997, Johnson's state habeas counsel discovered evidence indicating that Mrs. Ferguson had been hypnotized by agents of the Walker County Sheriff's Office on June 10, 1986 (nearly six weeks after the murders on April 30, 1986). An attempt to hypnotize Mr. Ferguson was unsuccessful. Johnson filed a supplemental state habeas application in which he contended that the suppression of this evidence violated his due process rights under Brady and state law, citing Zani v. State, 758 S.W.2d 233 (Tex.Crim.App.1988). FN3 FN3. Zani deals with the admissibility of hypnotically enhanced testimony under Texas evidence law.

The state habeas court conducted an evidentiary hearing on the claim and made the following findings and conclusions: According to the presentation by Petitioner's counsel, the State suppressed from the defense information that two [of the] State's witnesses, Mr. and Mrs. Ferguson, had been hypnotized by agents of the State during the investigation, and that said information was not divulged to the defense prior to trial, and that said hypnotized evidence presented by the State during trial was therefore tainted under the Court of Criminal Appeals decision in Zani v. State, 758 S.W.2d 233.

This court finds:

(a) In the evidence presented during the habeas corpus hearing, by the ex-District Attorney in charge of this prosecution, and his law enforcement agents, and the trial counsel Hal Ridley, that it was undisputed that Mr. and Mrs. Ferguson did undergo a hypnosis session in June, 1987, and that said witnesses did testify for the State, and that defense counsel Ridley was never told about the existence of this hypnosis enhanced testimony.

(b) This court finds, therefore, that as a matter of law, relevant and material evidence was, in fact, suppressed from the defense prior to trial, by the State's failure to notify Ridley that hypnosis sessions had been performed upon these State witnesses. See Zani v. State, supra, which requires the State to notify the defense where hypnosis sessions are conducted as part of the State's investigation.

(c) During the hearing in this case, the State presented evidence from the sheriff's deputy who performed the hypnosis sessions on both Mr. and Mrs. Ferguson, and other witnesses who were involved in this investigation. It appears that the sheriff deputy who performed this hypnosis session, Mr. Rick Berger, performed this session at the instruction of Chief Deputy Sheriff Ted Pierce, of the Walker County Sheriff's office, who was in charge of this investigation, and that Mr. Berger did not follow the guidelines recommended by the Court of Criminal Appeals in the Zani decision.

(d) Mr. Berger was not shown to have the necessary qualifications to perform such hypnosis sessions. No preliminary statement was taken from the witnesses by Berger to determine what the witnesses recalled. The session was apparently tape recorded, but the tape recordings are now missing. There is no showing that the witnesses received any psychological counseling prior to the session, and absent any recorded evidence of said session, this court finds that the hypnosis session was not properly conducted pursuant to the guidelines as set out in Zani v. State, supra, since none of the witnesses had any present recollection of the procedures used during said session.

(e) Therefore, evidence was suppressed from the defense, and that such evidence was not shown by the State, as required by the law, to be admissible in any Texas trial court proceeding.

(f) However, the State introduced evidence during the hearing that Mr. Ferguson was not hypnotized, but Mrs. Ferguson was, and that prior to the hypnosis session, Mrs. Ferguson gave a full and complete written statement to other law enforcement agents, which comported in general with her trial testimony. The state has taken the position that since none of Mrs. Ferguson's testimony was apparently altered by the hypnosis session to the detriment of Petitioner, that the admission of this hypnosis evidence should be considered to be harmless error.

(g) As to the State's argument that such evidence was not harmful to Petitioner, this court would defer to the Court of Criminal Appeals for further ruling on the issue of “harmless error,” since such determination is a question of law, which must ultimately be determined by the Court of Criminal Appeals on review of this habeas corpus action.

Therefore, this court finds that error was committed in that evidence was suppressed from the defense, and that such evidence was not shown to be admissible under the law available at that time, or even now. The trial court will defer any final decisions to the Court of Criminal Appeals as to whether or not the admission of this hypnotically enhanced testimony constitutes reversible error or not, under the harmless error standards applicable to this proceeding.

The Court of Criminal Appeals noted that the trial judge had deferred to it for a determination on a question of law presented in Johnson's supplemental state habeas application. The Court of Criminal Appeals adopted the trial judges findings and conclusions and, based on those findings and conclusions and its own review, found all of Johnson's claims to be without merit and denied relief. Ex parte Johnson, No. 55,377-01 (Tex.Crim.App. Oct. 20, 2004).

The district court observed that the question of whether any error was harmless is legally inapplicable to a Brady claim, because claims of Brady error are not subject to harmless error analysis. Kyles v. Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Furthermore, the state habeas court did not cite Brady or any other federal law; the only case it cited was Zani. As a result, the district court found that the state habeas court apparently had analyzed the claim under state law. Accordingly, the district court concluded that it owed no deference under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) to the state court's finding of materiality.

In any event, the district court held that, even if the state habeas court had found that the evidence of hypnosis was material under Brady, such a finding was an unreasonable application of Supreme Court precedent and was not entitled to any deference. The district court stated that Supreme Court precedent clearly established that evidence is material under Brady “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The district court reasoned that, even assuming that the disclosure of the evidence of hypnosis would have completely destroyed the credibility of the Fergusons' testimony, there was not a reasonable probability that the result of Johnson's trial would have been different.

The district court characterized the Fergusons' testimony as merely providing context for the murders. It stated that, even if they had never testified, the jury still would have heard testimony that two dead bodies were found on the ranch; that both men died from gunshot wounds; and that Johnson returned a .44 caliber handgun to his brother and admitted participating in a double murder. The only significant detail that the jury might not have heard if the Fergusons had not testified was Mrs. Ferguson's observation of the unusual brake light pattern on the truck. The district court concluded that, although this detail, and Johnson's possession of a truck with similar brake lights, strengthened the State's case, it was not a dispositive fact in the light of Johnson's admissions to his brothers and his possession of the murder weapon. The district court concluded that the evidence was, therefore, not material under Brady.

Johnson argues, first, that the district court erred by failing to defer to the state habeas court's determination that the suppressed evidence is material. This contention is without merit. The state habeas court did not cite Brady or federal law in its findings and conclusions, and it deferred to the Court of Criminal Appeals on the question of whether the suppression of the hypnosis evidence was harmless. As the district court correctly observed, harmless error analysis does not apply to Brady claims. Accordingly, we agree with the district court's determination that the state habeas court's finding of materiality was based on state evidence law, and not Brady. The district court therefore did not err by failing to defer to the state habeas court's finding of materiality.

Johnson contends further that the district court applied an incorrect standard of materiality. According to Johnson, the correct inquiry is whether there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact. He argues that the evidence of hypnosis is material under that standard because, if defense counsel had known that the Fergusons had been hypnotized, he could have persuaded the trial court exclude their testimony. In his supplemental brief, Johnson cites cases holding that, when the defense is informed of the use of hypnosis, there are no due process violations. He argues that it is, therefore, logical to assume that if the evidence of hypnosis is suppressed, thus denying the defense the opportunity to challenge it, there are due process problems.FN4 In his supplemental reply brief, Johnson argues that the standard for materiality can differ from state to state, depending on state law. He contends that, in a state such as Texas, where the state courts have determined that the prosecution must reveal to the defense even a mere attempt to hypnotize a prospective witness, the failure to do so must be material. Johnson contends that the lack of disclosure deprived him of his right, under state law, to a pretrial hearing on the issue; that he was deprived of the opportunity to make appropriate inquiries of prospective jurors as to their knowledge and predilection as to hypnosis evidence, in order to challenge their fairness to consider such evidence; that he was deprived of the opportunity to secure expert witnesses to challenge the hypnotically enhanced testimony presented, and to confront and cross-examine the State's witnesses before the jury on the reliability of their recollections under hypnosis; and that he was deprived of an opportunity to challenge the hypnotically enhanced testimony on direct appeal.

FN4. Johnson's argument refers to Confrontation Clause violations resulting from the failure to disclose evidence of hypnosis. He did not present a claim for violation of his rights under the Confrontation Clause and did not request or obtain a COA authorizing him to appeal as to any such claim.

Contrary to Johnson's assertion, the district court applied the correct standard of materiality: whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Under that standard, the evidence of the hypnosis of Shannon Ferguson and the attempted hypnosis of Bill Ferguson is not material because there is not a reasonable probability that the result of Johnson's trial would have been different had the evidence of hypnosis been disclosed. That is so because the evidence is clear that the hypnosis had no effect on the testimony of Bill and Shannon Ferguson, and thus no “hypnotically enhanced” testimony was presented at trial. The evidence is undisputed that the attempt to hypnotize Mr. Ferguson was not successful. Mrs. Ferguson had described the unusual configuration of the brake lights on the truck to law enforcement officers on the night of the murders, nearly six weeks before she was hypnotized. Her description of the brake lights after hypnosis was the same as before hypnosis. Accordingly, her trial testimony was not enhanced or affected by the hypnosis. Furthermore, as the district court correctly concluded, even if the Fergusons' testimony had been excluded, there is no reasonable probability that Johnson would have been acquitted.

Deputy Ted Pierce testified at the guilt-innocence phase of the trial that he found out about the distinctive taillight pattern on the night of the murders, when he talked to Bill and Shannon Ferguson. He said that they gave him a description of the truck with the four taillights, and that he put out a “be on the lookout” alert for it. Deputy Pierce testified that late that night or early the following morning, a constable told him that Gary Johnson drove a truck like the one described by Mrs. Ferguson. Allan McCandles, a Walker County deputy sheriff, testified at trial that he heard over the radio on the night of the murders a witness's description of the vehicle involved in the murders as having four large taillights, two on each side, one above the other, and a Koenig-type bed.

At the state habeas evidentiary hearing, the State introduced into evidence a transcript of Ranger Wesley Stiles's interview of Shannon Ferguson on May 4, 1986 (over a month prior to the hypnosis session). In that interview, Mrs. Ferguson described the brake lights on the truck in the same manner that she described them in her testimony at trial. She also stated in the interview, consistent with her testimony at trial, that the day after the murders, she saw a vehicle, like the one she had seen the night before, at Gary Johnson's home.

At the state habeas evidentiary hearing, the State also introduced into evidence a copy of the Walker County Sheriff's Department offense report. It states that Shannon Ferguson described the taillights to Officer Pierce on the night of the murders: The vehicle appeared to be a utility truck, similar to a Gulf States truck or a Koenig truck with tool boxes. There were two brake lights in the regular place and there were two more that appeared to be on the tool boxes. All four brake lights were round in shape.

The offense report states further that Johnson was a possible suspect as of May 6, 1986 (before the hypnosis in June), because he drove a truck with lights like those described by Mrs. Ferguson. Mr. Ferguson testified at the state habeas evidentiary hearing that he and his wife were up most of the night after the murders and that all she talked about was the taillights on the truck and that the truck had to be a utility-type vehicle. He testified further that they saw such a vehicle the very next day, and she was convinced it was the same one.

Mrs. Ferguson also testified at the state habeas evidentiary hearing. She stated that she described the configuration of the taillights on the vehicle on the night of the murders; that she saw a vehicle with the same light configuration parked at a trailer house the following day; and that she gave the same information to Ranger Stiles when he interviewed her on May 4, 1986. Mrs. Ferguson testified that she did not remember anything under hypnosis that she had not remembered before, and that she provided no new information to the interviewer; and, therefore, the hypnosis had no effect whatsoever on her trial testimony.

Ridley, Johnson's trial counsel, testified at the state habeas evidentiary hearing that, if he had known that the Fergusons had been hypnotized, he would have tried to find out what they were saying prior to the hypnosis to see if it was consistent with what they said afterward. He said he possibly would have moved for a hearing and would, at least, have interviewed the person who hypnotized them. Ridley testified that the major point of Shannon Ferguson's testimony was the configuration of the lights on the back of the truck. He acknowledged that she had talked about those lights in her statement to the police before she was hypnotized, and that she had said she observed a vehicle with the same type of taillights at Gary Johnson's trailer the day after the murders.

Rick Berger, who performed the hypnosis, testified that Mr. Ferguson was not susceptible to hypnotism and that when he checked “yes” on the form to indicate that new information was obtained as a result of hypnosis of Shannon Ferguson, he meant that it was new information to him, not that it had not already been provided to law enforcement.

Thus, the evidence-both at trial and at the state habeas evidentiary hearing-is clear that the hypnosis had no enhancing effect on the Fergusons' testimony at trial. Accordingly, the suppressed evidence of the hypnosis was not material and Johnson was not prejudiced by the State's failure to disclose it. Even if we assume that the Fergusons' testimony would have been excluded by the state court had the evidence of hypnosis been disclosed to the defense, it would not have affected the outcome of the trial in the light of the substantial other evidence of Johnson's guilt. Indeed, the Fergusons' testimony centered altogether on establishing by circumstantial evidence that Johnson was present when the murders occurred, a fact that was hardly disputed at trial; the focus of the defense was who did the actual killing.

Because the evidence of hypnosis was not material, within the meaning of Brady, the decision of the Texas Court of Criminal Appeals denying relief on Johnson's Brady claim, was not contrary to, or an unreasonable application of, clearly established federal law.

We now turn to consider Johnson's ineffective assistance of counsel claim.

B.

Johnson argues that he was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his trial counsel called Johnson's brother, Terry, as a witness, knowing that Terry would testify that Johnson had shot both of the victims. To establish a Sixth Amendment violation, Johnson must prove that his counsel rendered deficient performance and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To receive federal habeas relief on his ineffective assistance claim, Johnson must establish that the decision of the Texas Court of Criminal Appeals is either contrary to, or an unreasonable application of, Strickland. See Blanton, 543 F.3d at 235.

Terry was charged with capital murder along with Johnson. Terry was arrested on May 20, 1988. That same day, he gave a written statement to law enforcement authorities implicating his brother, Gary Johnson, in the shooting of both victims. On June 23, 1988, Terry spoke to Johnson's trial counsel, Ridley. During that interview, Terry told Ridley that he had made a deal with the prosecutors and that Gary Johnson had killed both of the victims. On July 18, 1988, Terry entered into an agreement with the State, pursuant to which the State waived the death penalty and Terry agreed to plead guilty to murder, for which he would be sentenced to a term of years to be decided after full review of the case.

In his opening statement for the defense, made after the State had rested its case-in-chief without calling Terry as a witness, Ridley asserted that Terry, acting alone, had murdered both of the victims, and that Ricky, Randy, and Tracey testified as that did out of fear of what Terry would do to them or their families. Ridley called Terry as one of the witnesses for the defense. Terry denied firing any shots, and testified that Gary shot both of the victims. In his lengthy testimony, Terry also admitted that he gave a statement to police, implicating his brother Gary, within twenty to thirty minutes after he was arrested, in order to spare himself from the death penalty. On cross-examination, he testified that Gary's favorite expression was “kill them all, let God sort them out.”

At the state habeas evidentiary hearing, Ridley testified that he was fully aware that Terry had maintained from the beginning that Gary Johnson did all of the shooting. Ridley testified that he had anticipated that Terry would testify for the prosecution in its case-in-chief. When the State rested without having called Terry, Ridley testified that he “was concerned because I already felt there was sufficient evidence to implicate Gary in both killings, and what I was trying to do was pin the blame, quite frankly, on Terry Johnson.” Ridley explained that he was surprised by Randy Johnson's trial testimony, because in statements made to Ridley prior to trial, Randy had exculpated Gary Johnson and stated that Terry had killed both of the victims. Ridley believed that Randy's testimony was the most harmful evidence presented by the State. He wanted to show the jury that Terry had made a deal with the State, and he wanted the details of the deal before the jury. He also wanted to show that Terry was not a credible witness, and that he had sold out his own brother to save his neck. Ridley testified that he wanted the jury to see Terry because he thought that was Gary Johnson's best chance for acquittal. He explained that, as a trial lawyer, sometimes you have to get into some things that hurt you in order to get some things that also help you, and that he really thought there was a chance of defeating the capital murder charge against Gary Johnson by showing that he was an accomplice of Terry in the murders. Ridley pointed out that Louie John Brown and Bruce Edward Davis testified that Terry had told them that he had committed both of the murders. Ridley stated that, even if he had not called Terry and had only called Brown and Davis, the State might have called Terry in rebuttal as its “smoking gun” witness. He explained that he did not “want Terry Johnson, of all people, to be the last person they heard from in the case.”

The state habeas court found that Ridley called Terry as a witness for three purposes: (1) to impeach Terry as to his credibility and show him to be the perpetrator who made a deal for a life sentence; (2) to get this information before the jury for use as mitigation against a death sentence; and (3) to try to get an accomplice witness instruction. The state habeas court ruled:

The court finds that Terry Johnson testified that Petitioner killed both individuals. The court also finds that by putting Terry Johnson on the stand, Petitioner was able to inform the jury that Terry Johnson had made a deal for life imprisonment with the State and impeach Terry Johnson by two witnesses who stated Terry Johnson told them he had committed both killings.... The court also finds the combination of Terry Johnson's testimony and the impeachment by two witnesses who testified Terry Johnson admitted the killings is a reasonable trial strategy.

Therefore, the court finds that the decision to put Terry Johnson on the witness stand for the purpose of impeaching him and showing his relatively lighter sentence of life, was a decision of strategy that does not fall below the level of competence of trial counsel.

The state habeas court also observed that Johnson's guilt was established through Randy's testimony that Johnson admitted shooting one victim and putting a gun in the mouth of the other, and the testimony of the medical examiner that the second victim had died from a gunshot wound inflicted by a gun near the victim's mouth. The state habeas court also held that the decision to put Terry on the stand did not harm Johnson. Instead, it stated that the fact that Terry made a deal for life was a strike against the death penalty for Johnson.

The district court pointed out that Johnson himself, in his pleadings and briefs, had acknowledged that the testimony of his brothers Randy and Ricky, and the testimony of the medical examiner, created a strong inference that Johnson shot both of the victims. The district court stated that Johnson's counsel was left with the options of trying to discredit the testimony about Gary's admissions to his brothers or of arguing that, while Johnson put the gun in the second victim's mouth, someone else pulled the trigger. Instead, counsel chose to offer the jury the alternative theory that Terry shot the victims and sold out his brother to avoid a death sentence. In order to accomplish this goal, counsel called Terry as a witness to try to discredit him. The district court concluded that the fact that, in hindsight, the strategy was unsuccessful does not change the fact that it was a legitimate strategic choice by counsel.

Johnson acknowledges that Ridley's decision to call Terry as a witness was a strategic decision, but he argues that the strategy was so unsound that it is unconstitutional. He acknowledges that the testimony of his brothers, Randy and Ricky, could be taken as establishing that he (Johnson) admitted having committed both murders, but he asserts that their testimony was not clear. He argues that calling Terry to impeach Terry's credibility and show Terry to be the perpetrator who made a deal for a life sentence could not have benefited him at the guilt-innocence phase because, even if Ridley had been successful in impeaching Terry, the testimony still would have resulted in demonstrating that he (Johnson) was guilty as a party. He contends that putting Terry on the stand for the purpose of getting an accomplice witness instruction was not a reasonable strategy, because even if he had been successful, the State could easily point to the testimony of Randy and Ricky as corroborating Terry's testimony. Finally, he argues that calling Terry as a defense witness to present mitigating evidence was of no benefit to him at the guilt phase of trial. Johnson argues that confidence in the outcome is undermined because Terry's testimony turned the case from a weak punishment case to a strong one. He notes that he had one fifteen-year-old misdemeanor conviction, no felony convictions, and no history of violent behavior. Furthermore, there was no psychiatric testimony that he had any psychotic tendencies. He therefore contends that it is extremely doubtful that the jury would have found him to be a future danger to society without Terry's testimony.

In support of his ineffective assistance claim, Johnson attached to his federal habeas petition the affidavits of five attorneys experienced in Texas capital law. All five attorneys stated in their affidavits that no reasonable trial counsel would have used the strategy that Johnson's trial counsel used in this case.FN5 The district court refused to consider the affidavits, because the proffered expert testimony did not assist the court within the meaning of Rule 702 of the Federal Rules of Evidence. The district court explained:

FN5. One of the “expert” affidavits was signed by Roy Greenwood, who was appointed as co-counsel for Johnson on direct appeal, along with Ridley (Johnson's trial counsel). Greenwood signed Johnson's brief on direct appeal. In that brief, in connection with his argument that the trial court erred in failing to give an accomplice witness instruction, he argued that calling Terry as a witness was crucial to the defense, especially because the State refused to call Terry. He stated in that brief that he “simply had to have the jury view Terry Johnson, and review his story, and then be able to impeach brother Terry with other admissions, threats, misstatements, etc., in order to allow the jury to arrive at the truth as to the culpability for these murders.”

This court is intimately acquainted with the legal standards governing ineffective assistance of counsel claims. Expert testimony purporting to tell the court how those legal standards apply to the facts of a particular case invade the court's province as trier of the law, and are not helpful to the court in determining the facts of the case. Because the proposed expert testimony both moves beyond the appropriate boundaries of expert testimony and is unhelpful to the court in its role as trier of fact, the affidavits will not be considered.

We conclude that, for the reasons given by the district court, the district court did not abuse its discretion in refusing to consider the attorney affidavits. We agree with the reasoning of the Eleventh Circuit in Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir.1998): [I]t would not matter if a petitioner could assemble affidavits from a dozen attorneys swearing that the strategy used at his trial was unreasonable. The question is not one to be decided by plebiscite, by affidavits, by deposition, or by live testimony. It is a question of law to be decided by the state courts, by the district court, and by this Court, each in its own turn.

With respect to the merits of Johnson's ineffective assistance claim, we agree with the district court's assessment that the state court did not unreasonably apply Strickland in denying relief. Although counsel's decision to call Terry as a witness ultimately was not a successful strategy, the state court did not unreasonably apply Strickland in determining that it was not deficient performance. Even assuming that it was deficient performance, the state court's determination that Johnson was not prejudiced is neither contrary to, nor an unreasonable application of, Strickland. Terry's testimony did not add significantly to the substantial other evidence of Johnson's guilt that was already before the jury. As the state habeas court found, Randy had already testified that Johnson told him that he (Johnson) shot “the one with the gun” and that they caught “the other man” and that he (Johnson) stuck the gun in his mouth. Because the state courts did not unreasonably apply Strickland, the district court did not err in denying federal habeas relief on Johnson's ineffective assistance of counsel claim.

III.