Thursday, November 6, 2008
Media Advisory: Denard Sha Manns Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Denard Sha Manns, who is scheduled to be executed after 6 p.m. on Thursday, November 13, 2008. In 2002, Manns was convicted of capital murder and sentenced to death for the robbery and murder of Michelle Robson in her home in Killeen.

FACTS OF THE CRIME

On November 19, 1998, Michelle Robson was found dead in a bathtub in her Killeen home. She had been shot five times with a .22 caliber gun. There was no sign of forced entry, an indication that the murderer likely was someone the victim knew.

At one time, Denard Manns lived with his half-brother, Bamberg, and his cousin, Eric Williams, who lived two doors down from the victim. Williams owned a .22 caliber pistol.

On November 18th, Williams found a bullet on the floor in front of his dresser. A short time later, Manns arrived and told Williams that he had been at the residence earlier that day. When Williams learned that Robson had been killed with a .22, he turned his gun over to the police. A firearms expert determined that at least one of the bullets recovered from the victim's body was fired from Williams' gun. Fingerprint testing of the gun revealed fingerprints from Williams and one fingerprint from Manns. No fingerprints from Bamberg were found on the gun.

Robson was found wearing a black brassiere, which had semen stains on it. DNA testing showed that DNA from the semen stains matched Manns’ DNA.

On November 19th, Manns went to the residence of friend. He left at the home a jacket, which the friend later turned over to law enforcement investigators. In one of the pockets was a cigarette butt containing Manns’ DNA. A friend of the victim identified the jacket as belonging to Robson.

While Manns was at the friend’s residence, several rings fell out of his pants pocket. One of these rings was turned over to the police. A department store receipt showed that Robson purchased a ring with markings consistent with the ring that had been turned over.

CRIMINAL HISTORY AND PUNISHMENT EVIDENCE

Testimony at his trial showed Manns was indicted in 1992 for fifteen counts of robbery in the Bronx, and that he pled guilty to two of the counts. Manns admitted to robbing about ten people.

Manns had previously been convicted of disorderly conduct, attempted criminal mischief, criminal mischief, petty larceny, possession of a controlled substance (twice), unauthorized use of a motor vehicle, two counts of attempted robbery, and three counts of robbery.

Manns had been imprisoned twice in a penitentiary in New York. During the first period of incarceration, which was for two years, Manns incurred 17 disciplinary infractions. During the second period of incarceration, Manns was disciplined fifteen times.

While in the Bell County Jail, as he awaiting trial for the robbery and murder of Michelle Robson, Manns swung his fist at a jailer who began a routine search for contraband before allowing access to the prison law library. When the jailer blocked Manns’ swing, Manns threatened to kill the jailer, and he threatened other officers at the jail. Manns was also disciplined in the Bell County Jail for possessing a razor-sharp metal object that he had hidden in his mattress.

PROCEDURAL HISTORY

Nov. 18, 1998 – Manns raped, murdered and robbed Michele Robson.
Dec. 8, 1998 – Manns was arrested.
Jan. 21, 2000 – Manns entered a plea of not guilty.
Jan. 18, 2002 – The State’s motion to amend the indictment was granted.
Feb. 4, 2002 – Jury selection for Manns’ trial started.
Feb. 25, 2002 – The trial for Manns began.
Feb. 28, 2002 – The jury found Manns guilty. He decided not to appear for sentencing.
March 1, 2002 – Manns was sentenced to death by Judge Joe Carroll of 27th District.
May 7, 2003 – Manns filed a direct appeal raising six points of error.
Nov. 10, 2003 – Manns filed an application for state writ of habeas corpus.
Dec. 17, 2003 – The Texas Court of Criminal Appeals affirmed the conviction and sentence.
Jan. 12, 2004 – A mandate was issued from the Court of Criminal Appeals.
July 14, 2004 – The convicting court recommended the denial of relief on his claims.
Sept. 29, 2004 – The Texas Court of Criminal Appeals denied relief.
Sept. 29, 2005 – Manns filed a federal habeas corpus petition in U.S. District Court.
Oct. 15, 2005 – Manns filed a supplemental Writ.
Dec. 1, 2005 – Manns filed a motion in district court to “extinguish” the writ.
Dec. 7, 2005 – Judge Smith denied Manns’ motion to extinguish.
Apr. 21, 2006 – The U.S. District Court dismissed the habeas petition.
Aug. 22, 2006 – The U.S. District Court denied a certificate of appealability.
Jan. 9, 2007 – Manns filed an application for COA in the Fifth U.S. Circuit Court of Appeals.
June 4, 2007 – The Fifth Circuit Court affirmed the denial of habeas relief.
June 12, 2007 – Trial Court Judge Joe Carroll set execution for Jan 24, 2008.
July 6, 2007 – Manns petitioned the U.S. Supreme Court for certiorari review.
Sept. 25, 2007 – Certiorari granted in Baze v. Kentucky.
Jan. 7, 2008 – The U.S. Supreme Court denied certiorari review.
Apr. 16, 2008 – Baze decision held that lethal injection protocol is constitutional.
Aug. 13, 2008 – Execution date set for Nov. 13, 2008.

Houston Chronicle

"Ex-con from NY executed for soldier's slaying," by Michael Graczyk. Nov. 14, 2008)

HUNTSVILLE, Texas — New York ex-con Denard Manns' move to Texas ended in the state's death chamber. Manns, 42, who came to Texas after his parole from a second armed robbery prison term in New York, was executed Thursday night for the robbery, rape and fatal shooting of an Army medic at her apartment near Fort Hood almost exactly 10 years ago.

In a brief statement from the death house gurney, he criticized his lawyers for what he said was an unjust trial and an appeals lawyer for what he contended were phony appeals claims. But he thanked another appeals attorney for taking on his case when the lawyer no longer was supposed to be involved. "I'm ready for the transition," he said.

Ten minutes later, he was pronounced dead, making him the 17th convicted killer executed this year in the nation's most active death penalty state and the second in as many days. Another three lethal injections are scheduled for next week in Texas.

Manns had no last-day appeals in the courts and the Texas Board of Pardons and Paroles on Wednesday had refused to commute his sentence to life in prison.

He'd moved in with a cousin and half brother in Killeen in Central Texas following his 1998 parole from New York. In his native New York City he had piled up a string of offenses and was known as a subway robber, preying on commuters traveling alone. But he insisted he wasn't responsible for the Nov. 18, 1998, slaying of 26-year-old Michelle Robson, who was stationed at Fort Hood and lived with her husband off the base and a few doors down from the former hair stylist and mural painter from Harlem.

Asked last week if he knew who committed the murder, Manns told The Associated Press from a tiny visiting cage outside death row: "That's not for me to discuss. Police get paid to ask those questions and find out. I would never tell them."

DNA and fingerprint evidence implicated Manns, who also was found with some of the slain woman's property, said Murff Bledsoe, the Bell County prosecutor who handled the case.

Investigators believed Robson, from Newton, Iowa, at least recognized her killer because there was no indication of a break-in at the apartment. Her husband, Clay Wellenstein, had gone home for a Thanksgiving visit to his family in upstate New York when he learned of his wife's slaying. "I would like to know: Why?" Wellenstein, who had been married to Robson for less than a year, said this week. "And there's never going to be an answer to it."

No relatives of Robson attended the execution. Wellenstein said Manns "should be strung out to hang and suffer."

Manns said DNA evidence tying him to the crime was wrong. "I know for a fact they weren't going to give me a fair break anyway," he told the AP.

Robson was found dead in a bathtub, shot five times with a .22-caliber pistol. Manns' cousin, Eric Williams, owned such a pistol, found a bullet on the floor in his room and turned the gun over to police after learning of his neighbor's death with a similar weapon. Tests showed at least one of the bullets recovered from the woman had been fired from the gun. Tests also showed Manns' fingerprint on the weapon. Other evidence showed Manns left a jacket belonging to Robson at the home of a friend the day her body was discovered and that he had a ring of Robson's.

Manns said he got the jacket from a friend and the jewelry belonging to the victim from a drug addict. He said he took the gun from some friends who were trying to shoot it, accounting for his prints.

Manns was arrested the following month and tried in 2002. After his conviction, Manns refused to appear in court at the punishment phase of his trial. "He said he didn't want to," Frank Holbrook, one of his trial attorneys, recalled. "He was taking a nap. "He was a very unusual person."

Jurors who decided he should die learned he'd been indicted in 1992 for 15 counts of robbery in New York City. He pleaded guilty to two counts. He also had convictions for disorderly conduct, criminal mischief, larceny, controlled substance possession and unauthorized use of a motor vehicle.

Manns was paroled in early 1998 after serving nearly six years of a five- to 10-year term for armed robbery — his second prison term for armed robbery, then came to Texas.

Three more executions are scheduled for consecutive nights next week in Texas, starting Tuesday with Eric Cathey, 37, condemned for the abduction and fatal shooting of a Houston woman whose boyfriend was reputed to a drug dealer.

Killeen Daily Herald

"Manns executed by state," by Justin Cox. (Friday, November 14, 2008, 5:32 AM)

Denard Manns drew his last breath shortly before 6:30 p.m. Thursday, becoming the 17th person executed in Texas in 2008. The execution came less than a week shy of the 10th anniversary of the crime that put him on death row.

More than 800 miles north off Interstate 35, rain began to pour down on the Iowa gravesite of Manns' victim, Army medic Michele Christine Robson. "Maybe I'm reading too much into it," said Robson's childhood friend, Tina Rorabaugh, minutes after the execution. "It started raining really hard," moments before she was told the execution had been carried out.

Rorabaugh had known Robson since the third grade and grew up less than two blocks away. Robson was a bridesmaid in Rorabaugh's wedding 14 years ago named her first daughter Gracie Michele, after her fallen friend.

It's been a difficult 10 years, she said, constantly waiting. But now it's done. "I feel better. I'm glad it's over," Rorabaugh said. "Hate consumes you. Even though I didn't know the man, I had a hate for him that was pretty deep. Now I just pray for the family so they can move on. It's been a long 10 years."

Manns, 42, uttered what appeared to be a brief prayer three times and was pronounced dead at 6:24 p.m., 10 minutes after the lethal drugs began to flow. "From Allah he came and from Allah he shall return," Manns said from the death chamber gurney.

He criticized by name his trial attorneys for what he said was an unfair trial, criticized an appeals lawyer for "purposely bringing up claims that did not exist," and thanked another lawyer for taking on his appeal after he was supposed to be off the case. Manns expressed love to friends and then said, "I'm ready for the transition."

Manns was a recent parolee from New York, where he had been imprisoned a second time for armed robbery. Evidence showed he was living with relatives two doors down from the victim's apartment. There was no sign of forced entry, leading authorities to believe she knew her attacker.

Manns' fingerprint was found on the .22-caliber pistol identified as the murder weapon. His DNA was detected on clothing on her body, and at the time of his arrest, he was in possession of her jacket and was carrying her jewelry. Court files show he told a fellow inmate details of the crime that only the killer would have known because they had not been made public.

ProDeathPenalty.com

Denard Sha Manns was indicted in Texas state court for the November 1998 death of Michele Christine Robson. The indictment charged Manns with capital murder and alleged that Manns intentionally caused Christine’s death in the course of committing or attempting to commit robbery, kidnapping, and aggravated sexual assault. Manns pleaded “not guilty” and proceeded to a jury trial in February 2002 before the 27th District Court of Bell County, Texas. He was convicted of capital murder on March 1, 2002, and was sentenced to death.

On November 18, 1998 in Killeen, Denard Manns entered the Killeen home of a 26-year old Christine Robson. He raped her and then shot her in the head and chest 5 times with a .22-caliber gun, leaving her body in the bathtub of her home. He then took credit cards and cash and fled in Christine's vehicle. Manns had been recently paroled from a New York state prison after his second conviction for armed robbery and was living with relatives two doors from the victim's apartment. There was no sign of forced entry. Christine Robson was a US Army Combat Medic with the 21st Combat Support Hospital at Ft. Hood. The evidence in the case was quite clear: Manns' fingerprint was found on the murder weapon, his DNA was found on Christine's bra, he had Christine's jacket and ring.

In addition, he confessed to another inmate, telling him details that had not been made public and only the killer could have known. Manns said he got her jacket from a friend who had committed burglaries in the neighborhood, the jewelry from a drug addict, and also blamed his half-brother for the slaying. Manns has had two prior execution dates in 2008. In August, Manns was given a stay of execution because his lawyer has been removed from his case. Manns previously had an execution date set for January 2008 but it was set aside while the US Supreme Court considered the constitutionality of lethal injection.

DeathPenaltyNews Blog

"Denard Manns put to death in Huntsville, Texas." (Friday, November 14, 2008)

A New York parolee with an extensive criminal record was executed Thursday [Nov. 13, 208] night for robbing, raping and fatally shooting an Army medic at her apartment near Fort Hood.

"From Allah he came and from Allah he shall return," Denard Manns said from the death chamber gurney. He criticized by name his trial attorneys for what he said was an unfair trial, criticized an appeals lawyer for "purposely bringing up claims that did not exist," and thanked another lawyer for taking on his appeal after he was supposed to be off the case.

Manns expressed love to friends and then said, "I'm ready for the transition." He uttered what appeared to be a brief prayer 3 times and was pronounced dead at 6:24 p.m. CST, 10 minutes after the lethal drugs began to flow.

Manns, 42, who came to Texas after a 2nd prison sentence in New York for armed robbery, was condemned for the murder 10 years ago of Michelle Robson, 26. Manns' appeals in the courts were exhausted and the Texas Board of Pardons and Paroles, acting Wednesday on a petition filed by his lawyer, refused to commute his sentence to life in prison.

The former hair stylist and mural painter from Harlem in New York City insisted he had nothing to do with the 1998, attack on Robson, who lived a few doors down from where Manns was living with a half brother and a cousin at an apartment complex in Killeen in Central Texas. Asked last week if he knew who committed the murder, Manns told The Associated Press from a tiny visiting cage outside death row: "That's not for me to discuss. Police get paid to ask those questions and find out. I would never tell them."

DNA and fingerprint evidence implicated Manns, who also was found with some of the slain woman's property, Murff Bledsoe, the Bell County prosecutor who handled the case, said. "You don't forget death penalty cases," he said. "It was a very bad crime. ... There wasn't any evidence he knew her very well. There was no evidence they were friends."

Investigators believed Robson, from Newton, Iowa, at least recognized her killer because there was no indication of a break-in at the apartment where she lived with her husband, also a soldier stationed at Fort Hood. Clay Wellenstein had gone home for a Thanksgiving visit to his family in upstate New York when he learned of his wife's slaying.

He said he knew Manns only enough to say hello if they passed each other. "I would like to know: Why?" Wellenstein, who had been married to Robson for less than a year, said this week. "And there's never going to be an answer to it." Manns, he said, "should be strung out to hang and suffer."

Manns said DNA evidence tying him to the crime was wrong. "I know for a fact they weren't going to give me a fair break anyway," he told the AP.

Robson was found dead in a bathtub, shot 5 times with a .22-caliber pistol. Manns' cousin, Eric Williams, owned such a pistol, found a bullet on the floor in his room and turned the gun over to police after learning of his neighbor's death with a similar weapon. Tests showed at least one of the bullets recovered from the woman had been fired from the gun. Tests also showed Manns' fingerprint on the weapon. Other evidence showed Manns left a jacket belonging to Robson at the home of a friend the day her body was discovered and that he had a ring of Robson's.

Manns said he got the jacket from a friend and the jewelry belonging to the victim from a drug addict. He said he took the gun from some friends who were trying to shoot it, accounting for his prints. Manns was arrested the following month and tried in 2002.

"He was a very unusual person," one of his trial lawyers, Frank Holbrook, recalled, noting Manns sometimes refused to go to court during jury selection. "He was just bored with it," Holbrook said.

Then after his conviction, Manns again refused to appear in court at the punishment phase of the trial. "He said he didn't want to," Holbrook said. "He was taking a nap."

Jurors who decided he should die learned he'd been indicted in 1992 for 15 counts of robbery in the Bronx, N.Y., where he was known as a subway bandit who preyed on commuters traveling alone. He pleaded guilty to two counts. He also had convictions in New York for disorderly conduct, criminal mischief, larceny, controlled substance possession and unauthorized use of a motor vehicle. "I'm not no angel, far from an angel," Manns acknowledged from prison.

Manns was paroled in early 1998 after serving nearly 6 years of a 5- to 10-year term for armed robbery his 2nd prison term for armed robbery, then came to Texas.

Manns becomes the 17th condemned inmate to be put to death this year in Texas, and the 422nd overall since the state resumed capital punishment on December 7, 1982. Manns becomes the 183rd condemned inmate to be put to death in Texas since Rick Perry became Governor in 2001.

3 more executions are scheduled for consecutive nights next week in Texas, starting Tuesday with Eric Cathey, 37, condemned for the abduction and fatal shooting of a Houston woman whose boyfriend was reputed to a drug dealer.

Manns becomes the 33rd condemned inmate to be put to death this year in the USA and the 1132nd overall since the nation resumed executions on January 17, 1977.

Sources: Associated Press & Rick Halperin

Manns v. State, 122 S.W.3d 171 (Tex.Crim.App. 2003.) (Direct Appeal).

Background: Defendant was convicted in the 27th District Court, Bell County, Joe Carroll, Judge, of capital murder and was sentenced to death. Defendant appealed.

Holdings: The Court of Criminal Appeals, Keller, P.J., held that:
(1) evidence was factually sufficient to support conviction;
(2) as a matter of first impression, defendant's fellow inmate was not agent of state when he conversed with defendant, and, thus, there was no violation of the Sixth Amendment right to counsel when defendant made incriminating statement;
(3) videotape of police interview showing defendant's attempt to burn his fingertips with cigarette was admissible under the impeachment exception to the exclusionary rule; and
(4) evidence was legally sufficient on issue of future dangerousness. Affirmed.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, PRICE, HOLCOMB and COCHRAN, JJ., joined. Appellant was convicted in February 2002 of capital murder.FN1 Pursuant to the jury's answers to the punishment special issues, the trial judge sentenced appellant to death.FN2 Direct appeal to this Court is automatic.FN3 Appellant raises six points of error. We shall affirm.

FN1. TEX. PEN. CODE § 19.03(a). FN2. See TEX. CODE CRIM. PROC., Art. 37.071 §§ 2(b), (e), and (g). Unless otherwise indicated, all future references to articles refer to the Texas Code of Criminal Procedure. FN3. Art. 37.071 § 2(h)

I. FACTUAL SUFFICIENCY-GUILT

In point of error six, appellant contends that the evidence was factually insufficient to support his conviction. Specifically, he contends that the evidence was insufficient to identify him as the perpetrator. He asserts that the evidence consisted of a stain on an item of the victim's clothes, along with an “undated” fingerprint on the barrel of a weapon to which more than one person had access. He also asserts that there was an “original suspect” whose access to the weapon was as much as, or more than, appellant's, and he claims that the jury heard the case in a vacuum-being led by the State to believe appellant was the only possible guilty party. Earlier references in appellant's brief and evidence in the record suggest that appellant's reference to an “original suspect” is to his half-brother, Murray Bamberg.

A. The law

Under the factual sufficiency standard, an appellate court conducts a neutral review of all the evidence, both for and against the jury's verdict, and determines whether “the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” FN4 The appellate court should reverse only if it determines that a manifest injustice has occurred.FN5

FN4. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). FN5. Id. at 12.

B. The evidence against appellant

The evidence against appellant was much weightier than his brief suggests. There were at least six significant items of evidence tying appellant to the murder: (1) his proximity to the victim, (2) his access to, and fingerprint on, the murder weapon, (3) his DNA on the victim's brassiere, (4) his possession of the victim's jacket, (5) his possession of the victim's ring, and (6) his admission of guilt to a third party.

1. Proximity

Michelle Robson, the victim, was found dead in a bathtub on November 19, 1998. There was no sign of forced entry-indicating that the murderer was likely someone the victim knew. At one time, appellant lived with his half-brother Bamberg and his cousin Eric Williams. Bamberg and Williams lived two doors down from the victim.

2. The murder weapon

The victim suffered five gunshot wounds from a .22 caliber gun. Eric Williams owned a .22. Bamberg and appellant both knew where the gun was kept. Williams often kept the back door to his home unlocked because Bamberg had no key. About 8:30 or 9:00 in the evening on November 18th, Williams found a bullet on the floor in front of his dresser. He called Bamberg, who had no explanation for the bullet's presence. Shortly thereafter, appellant arrived and told Williams that he had been at the residence earlier that day. When Williams learned that the victim had been killed with a .22, he turned his gun over to the police. A firearms expert determined that at least one of the bullets recovered from the victim's body was fired from Williams's gun. The other bullets could not be excluded as having come from the gun. Fingerprint testing of the gun revealed fingerprints from Williams and one fingerprint from appellant. No fingerprints from Bamberg were found on the gun.

3. Appellant's DNA

The victim was found wearing a black brassiere, which had semen stains on it. DNA testing showed that DNA from the semen stains matched appellant's DNA. The probability of another person matching the DNA profile was one in 869,600,000,000 for black persons, and even lower for persons of Caucasian or Hispanic descent.

4. The victim's jacket

On November 19th, appellant went to the residence of friend, Barbara Feazell. He left at the home a jacket, which Feazell later turned over to law enforcement investigators. In one of the pockets was a cigarette butt containing appellant's DNA. Kellie Lynn Meyer, a friend of the victim, identified the jacket as belonging to the victim.

5. The victim's ring

While appellant was at Feazell's, several rings fell out of his pants pocket. One of these rings was turned over to the police. A Von Maur department store receipt showed that the victim purchased a ring with markings consistent with the ring that had been turned over.

6. Confession to a third party

Richard Ray Broome was in the county jail awaiting parole revocation proceedings. He was known by other inmates as a “jail house lawyer,” who helped other inmates with legal research and other legal matters. Appellant asked Broome for his opinion about the proceedings connected with this case. Appellant told Broome that the government had a gun with his fingerprint on it. Appellant later clarified that the gun was a .22. He further said the government had the gun that killed a woman but could not prove it because a .22 caliber bullet shatters when it hits the bone. The fact that the murder weapon was a .22 was not published in the media. Later, appellant showed Broome a letter from Bamberg and said, “This is the man that handed me to them on a silver platter after I shot the woman.”

C. The evidence in appellant's favor

In his brief, appellant points to no favorable evidence, other than to suggest that Bamberg was the perpetrator. There was some evidence that Bamberg was the original suspect. One could infer that, as appellant's half-brother, Bamberg might have similar DNA. He also had access to the murder weapon and lived near the victim. There was also evidence that Bamberg was a criminal. The letter shown to Broome was apparently written while Bamberg was an inmate in the prison, and Williams referred to Bamberg as a thief.

There is some other evidence, not mentioned in appellant's discussion of this point of error, that might be construed as favorable. Appellant testified at trial that he did not commit the murder. He testified that he obtained the victim's jacket from an acquaintance who committed burglaries in the neighborhood. He testified that he obtained a film canister full of gold jewelry from a drug addict. Though appellant told police that there would be no reason for his fingerprints to be on Williams's gun, he testified that he had taken it away from some of Bamberg's friends who were trying to shoot it. Appellant further testified that he had never been inside the victim's apartment and had never had sex with her.

D. Analysis

Given the above, we cannot find that the evidence supporting conviction was so obviously weak as to render the jury's verdict manifestly unjust. Nor do we find the supporting evidence to be greatly outweighed by contrary proof. The only contrary proof appellant points to is his suggestion that Bamberg committed the crime. But, the evidence linking Bamberg to the crime is rather weak. Although Bamberg also had access to the murder weapon, his fingerprints were not on it. And while Bamberg's DNA might be similar to appellant's (although there was no evidence of that), he is only a half-brother and so half of his DNA would be from a different source. Moreover, Bamberg was not linked to the victim's jacket or ring, and he did not confess to a third party. The evidence was factually sufficient. Point of error six is overruled.

II. BROOME'S TESTIMONY

In point of error one, appellant complains that Broome's testimony violated his Sixth Amendment right to counsel because Broome was a state agent who deliberately elicited appellant's incriminating statements. Because we find that Broome was not an agent of the State when he conversed with appellant about appellant's pending prosecution, we hold that there was no violation of the Sixth Amendment.

A. Factual background

In the 1980's, Broome was on parole for the offense of unauthorized use of a motor vehicle and was arrested for violating that parole. While he was in jail pending revocation proceedings, he obtained information about a murder. In 1992, he testified against the murder defendant, who was sentenced to ninety-nine years in prison. Although Broome had hoped the information he obtained would help him in front of the parole board, his parole was revoked anyway.

Broome was later convicted of possession of methamphetamine and sentenced to twelve years in prison. He was subsequently paroled. On September 2, 1999, Broome was arrested for driving while intoxicated (misdemeanor) and also because of a parole-violation warrant. Broome began negotiating with the District Attorney's office and the Temple Police Department regarding information he claimed to possess regarding drug cases. Billy Curry, an investigator for the District Attorney, helped arrange a meeting between Broome, himself, an assistant district attorney, and members of the Temple Police Organized Crime Unit. Although Broome supplied some information, he was not promised anything.FN6 Nor was he asked to obtain any additional information. The county attorney expressed a willingness to dismiss the DWI case if the parole board would agree not to revoke Broome's parole, but the parole board would not agree.

FN6. In a letter dated February 3, 2000, Broome stated that, in exchange for his cooperation on the drug cases, he wanted the State to release him on the street, pay his attorney, pay him $500, reinstate his driver's license, give him clothes, and give him a say about whom he would testify against. None of these conditions were met.

During February and March of 2000, Broome shared a cell with appellant. In February, Scott Stevens, Broome's attorney, advised the District Attorney's office that Broome had information about appellant's case that might be helpful. Broome was brought to the District Attorney's office on February 24th, and Curry was given the task of taking Broome's statement. Both Curry and Broome testified at trial that Curry made no promises or offers and that he did not ask Broome to elicit any more information. Curry told Broome that, if he had further need to contact the District Attorney's office, he should do so through his attorney. Curry testified that this admonition was routinely given to inmates who had pending cases.

A subsequent communication between Broome and his attorney's office led Broome to believe that the meeting with Curry had not been authorized by Stevens. As a result of this misunderstanding, Broome wrote a letter to Curry complaining that Curry had misled him about whether the February 24th interview had been authorized by his attorney. In the letter Broome further stated, “Also, the information you requested me to obtain I have.” At trial, Broome explained that this statement was a lie and that he made it because he was mad and he had read a case in the law library that held “if you were asked to do this then they couldn't use you to testify.” Broome had written the number of the case on the front of the envelope containing the letter. Broome also stated in the letter that he had a lot of things on his mind and found things hard to recall after more than a week or two. At trial, Broome denied that this latter statement was some sort of negotiating tactic.

When the misunderstanding was later cleared up, Broome's attorney contacted the District Attorney's office to arrange a second meeting. Stevens recalled from his prior conversations with Broome that Broome “had given information, that he got the impression that the information may or may not be enough, but that he was not asked for more information; and then after that time he contacted me about having more information and asked me to recontact the D.A.'s office.” Pursuant to this request for a second meeting, Curry interviewed Broome on March 3rd. Curry testified that no offers, inducements, or promises were made to Broome at this meeting. Curry also testified that he did not imply at this meeting that anything would happen as a result of Broome's statement.

Broome denied that avoiding parole revocation was a motive for offering information about appellant. He testified that the parole issue was “dead in the water” because the parole board had already indicated that his parole would be revoked. He also denied that the information would speed up his release because the parole board had designated him to “serve all” and his new release date was for mandatory supervision.

Stevens testified that the District Attorney's office made no promises, but it was Stevens's understanding that “if the District Attorney's Office felt like that there was assistance that merited or there was information that merited some consideration, that they might give that consideration at some point in the future if he gave the information.” Stevens's testimony did not make clear how and when he came to this understanding. At some point after both interviews with Broome, the District Attorney's office decided that Broome's information was worth dismissing the DWI, if the County Attorney would agree. The County Attorney agreed, and the DWI was dismissed on March 20th. That same day, Broome's parole was revoked.

Finally, the record does not delineate which portions of Broome's testimony relate to information given in the first interview and which portions relate to the second interview. Broome's testimony regarding the defendant's statements has already been detailed in the factual sufficiency portion of this opinion.

* * *

We need not, at this point, try to define precisely when someone becomes a government agent for Massiah purposes. Under the facts of this case, viewed in the light most favorable to the trial court's ruling, Broome was not a government agent.

Curry and Broome both testified that there was no agreement between Broome and the government during the times Broome spoke with appellant. The evidence shows Broome attempted to strike a deal but was unsuccessful. The government eventually rewarded him by dismissing his misdemeanor DWI prosecution, but that decision was made after Curry's second interview with Broome-after Broome had already obtained all the information that was later used at trial. Curry and Broome also testified that Broome was never asked or instructed to elicit information from appellant. Although Broome's letter to Curry (saying “the information you requested me to obtain I have”) was some evidence to the contrary, under Guzman the trial court was within its discretion to believe the testimony of the State's witnesses.

We are left with evidence of two remarks attributable to the government that were not subject to a factual dispute: (1) Broome's defense counsel's testimony of his understanding that the District Attorney's office might give consideration if there was information that merited consideration, and (2) Curry's testimony that he told Broome to consult his attorney if he wished to contact the District Attorney's office in the future. Even if we assume that someone in the District Attorney's Office made a statement regarding “information meriting consideration,” and that it occurred before Broome elicited some or all of the information from appellant-an assumption not clearly born out in the record-such a statement was simply a noncommittal response. Broome was not told anything he did not already know: useful information is sometimes rewarded. But no promise of reward was made here, and the District Attorney's office made no attempt to encourage the further gathering of information.

As for Curry's admonition to Broome to consult his attorney if he wanted further contact with the District Attorney's office, that statement appears to be an attempt by Curry to respect Broome's right to counsel, rather than some sort of instruction or encouragement to obtain more information. Curry even testified that that statement was routinely given at the end of interviews with inmates who had pending prosecutions (as was the case with Broome), and the trial court was within its discretion to believe that explanation.

Viewed with the proper deference to the trial court's ruling, the evidence in this case shows that Broome was an entrepreneur who exploited appellant for his own gain. The government did nothing to encourage Broome's behavior but merely accepted the information Broome had to offer. We conclude that these circumstances are not enough to give rise to an agency relationship, and therefore, Broome was not an agent of the government when he elicited appellant's incriminating statements. Point of error one is overruled.

III. EXTRANEOUS OFFENSES

In point of error two, appellant contends that the State improperly impeached him with evidence of extraneous, unadjudicated offenses. Appellant testified at the guilt phase of trial. During direct examination, appellant admitted that he had been convicted of several robberies in New York. On cross-examination, he also admitted that he had been charged with more robberies than the ones he pled guilty to. The testimony showed that in 1992 appellant was indicted for fifteen counts of robbery in the Bronx, but he pled guilty to only two counts. Appellant admitted to robbing about ten people. Appellant's complaint on appeal is that the State impeached him not only with his convictions but also with the other offenses for which he was charged. Appellant contends that he attempted to prevent this allegedly improper impeachment in a hearing outside the presence of the jury.

Appellant had filed a motion in limine to require the State to approach the bench before going into extraneous offenses. In accordance with the motion, the State approached the trial court for a hearing outside the presence of the jury. In this hearing, the State revealed its intent to mention not only the convictions but also the associated charged offenses that did not result in conviction. The following colloquy occurred:

[PROSECUTOR]: Additionally, Your Honor, the defendant, when he was talking about that he robbed people on the trains and all the time he was talking plural, I believe we have the right to go into those specific extraneous offenses. [DEFENSE COUNSEL]: Well, that's what he was convicted of. We had to explain to the jury. [PROSECUTOR]: As he stated he was charged with a lot of robberies and he worked out a plea bargain so that he didn't have to plead to all the ones he admitted doing, and so I'm going to talk to him about that because he said it. THE COURT: Yeah. Okay. Well, you might take it up outside the presence of the jury and ask the question, and I could hear the question and the answer; but it sounds to me on first-but it sounds to me like it's proper cross-examination. But I don't know. I haven't heard the objection or the question yet. [PROSECUTOR]: Judge, generally what I will ask him is how many people did he rob on the subways with the fake gun or whatever. I will ask him about the number of counts that were in the charges on him and what those actual charges were. THE COURT: Okay.[DEFENSE COUNSEL]: Like I said, he talked about them, Judge. He pled guilty to them so - THE COURT: Okay. That's fine. All right sir. We will see you back in about 15 minutes.

Defense counsel lodged no objections during the prosecutor's subsequent cross-examination of the defendant regarding the extraneous offenses.

Although a motion in limine does not preserve error, error can be preserved by a timely objection made in a hearing outside the presence of the jury.FN94 However, we disagree with appellant's contention that he attempted to prevent the admission of the complained-of evidence during the hearing outside the presence of the jury. The record reveals that defense counsel raised no objection to the State's proposed line of questioning during the hearing. And because appellant also raised no objection during the subsequent cross-examination, he has failed to preserve error.FN95 Point of error two is overruled.

FN94. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003). FN95. Tex.R. Evid. 103(a)(1).

IV. THE VIDEOTAPE

In point of error three, appellant contends that the trial court erred in allowing the State to impeach his testimony with an illegally obtained videotaped statement. He complains that the statement was illegally obtained because it was the fruit of an arrest made without probable cause. He cites the Fourth Amendment as authority for his argument. He also appears to argue that his statement should be suppressed because it was involuntary and inherently unreliable.

A. Factual background

Bamberg gave the police a tip that appellant was involved in the murder and that he would be at Williams's apartment. The police approached appellant, drew their weapons, ordered appellant to lie down on the ground, handcuffed him, placed him in the back of a patrol car, and transported him to the police station. Officer Ortiz testified that, at the time appellant was handcuffed, he was told that he was not under arrest. At the police station, appellant was taken to an interview room. From that point forward, appellant was videotaped.

In the interview room, Ortiz took off appellant's handcuffs. He explained to appellant that the police had detained him in the manner they did for their own safety and appellant's safety rather than to effectuate an arrest. He further told appellant he was not under arrest and he was free to leave at any time. On cross-examination, Ortiz admitted that there were locked doors between appellant and the station's exit. During his testimony, Ortiz never explained what safety concerns required detaining appellant in the manner that occurred. Appellant testified that officers did indeed tell him in the interview room that their method of transporting him to the station was due to security concerns, and they left appellant with the impression that “all I had to do was say, you know, realistically did I know anything about the murder-which I didn't-and to give them a statement and I was free to leave.”

Before asking any questions, the officers gave Miranda warnings. Appellant gave an exculpatory version of events and denied any involvement in the crime. During the interview, appellant falsely told the police that his name was Charles Manns. At trial, appellant testified that he did so because he knew he had an outstanding parole warrant and would be arrested if the officers learned his true identity. Sometime during the interview, after the warnings were given, appellant attempted to burn his fingertips with a cigarette he was smoking. Sometime after this attempt, appellant was fingerprinted. Near the end of the interview, officers did learn appellant's identity and as a result discovered the outstanding parole warrant. After that discovery, appellant was arrested.

The State did not present evidence regarding any portion of this interview in its case-in-chief. During appellant's direct examination at trial, defense counsel questioned appellant about the interview and about some of his responses. The State later cross-examined appellant regarding whether he had touched his fingertips with a cigarette: Q. You remember smoking cigarettes in there? A. Yes. Q. You remember what you did with those cigarettes other than smoke them? A. I had cigarettes-I had cigarettes left that was in my pocket. Q. Okay. Do you remember anything else you did with a burning cigarette? A. Anything else I did with a burning cigarette? Q. Uh-huh. Other than smoke it. A. No. Q. Remember touching it to your fingertips? A. No. Q. Didn't do that, did you? A. No. Q. Why would you do that anyway? A. I didn't do that. The defense raised no objection to this line of questioning.

After cross-examining appellant on a number of matters, the State requested a hearing outside the presence of the jury. In that hearing, the State requested that the trial court admit into evidence the portion of the videotaped interview that reflected appellant's attempt to burn his fingertips. Although defense counsel conceded that he himself delved into the content of the interview in direct examination, he objected to showing the portion of the videotape in question:

We had previously filed a motion contending that any such statements were illegally obtained as a result of an illegal arrest. Now I know I went into some parts of the statement. It was my intent at the time though concerning that the statement be admissible and used afterwards for impeachment purposes. I did not specifically address with Mr. Manns the issue of him touching his a [sic] cigarette to the tips of his fingers during that statement. It's my understanding they intend to show that to the jury. We would object to showing that to the jury at this point in time. Our position still is that any statements obtained from Denard Manns on November 23, '98, the videotaped confessions, were illegally obtained as a result of an arrest made without probable cause.

In both the motion to suppress and his oral objection, defense counsel cited Article I, § 9 of the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure.

B. Procedural problems

There are a number of procedural problems that impede addressing this issue on the merits. Initially, appellant seems to concede that impeachment is an exception to prohibitions against admitting illegally obtained evidence but attempts to circumvent this exception by urging an involuntary confession claim. However, such a claim was not urged at trial, and we will not consider it.FN96 There is also a question about whether any Fourth Amendment claim has been properly preserved. At trial, appellant cited to state constitutional and statutory provisions but did not cite to the Fourth Amendment. In addition, appellant's brief refers to a “statement” that was improperly admitted, but no statement was admitted-appellant's attempt to burn his fingertips was nontestimonial conduct. Appellant does not discuss in his brief the nature of the videotape evidence, though we discovered the nature of this evidence by reading the record at the record citations he provided. However, assuming arguendo that we can reach the merits of a complaint about the admission of the portion of the videotape involving appellant's attempt to burn his fingertips, his argument fails. FN96. See Tex.R.App. P. 33.1(a).

C. Impeachment

We need not decide whether the videotape evidence was legally obtained. The State did not introduce the evidence in its case-in-chief but used it solely for impeachment purposes. According to the Supreme Court, evidence obtained in violation of the Fourth Amendment FN97 may be used to impeach the defendant's trial testimony.FN98 Moreover, the impeachment evidence need “not squarely contradict the defendant's testimony on direct examination” so long as it contradicts his testimony on cross-examination and the cross-examination “questions would have been suggested to a reasonably competent cross-examiner.” FN99 Proper impeachment evidence includes physical evidence.FN100 Impeachment is allowed because “[i]t is essential ... to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth.” FN101 And impeachment evidence is allowed “even though its introduction is certain to result in conviction in some cases.” FN102 However, the impeachment exception is narrowly crafted to guard against perjury while giving the defendant the greatest possible leeway to testify on his own behalf: “But the exception leaves defendants free to testify truthfully on their own behalf; they can offer probative and exculpatory evidence to the jury without opening the door to impeachment by carefully avoiding any statements that directly contradict the suppressed evidence.” FN103

FN97. Although appellant relied upon the Texas Constitution and Article 38.23 at trial, his brief does not cite those provisions or explain how their protections might differ from the Fourth Amendment. Consequently, we will analyze the claim solely under Fourth Amendment jurisprudence. FN98. Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1953); United States v. Havens, 446 U.S. 620, 624-628, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980). FN99. Havens, 446 U.S. at 621, 626, 100 S.Ct. 1912. FN100. Id. at 623, 100 S.Ct. 1912 (T-shirt). FN101. Id. at 626-627, 100 S.Ct. 1912. FN102. Stone v. Powell, 428 U.S. 465, 485, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). FN103. James v. Illinois, 493 U.S. 307, 314, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990).

Although appellant did not testify in his direct examination about his nonverbal conduct during the videotaped interview, he did testify about statements he made during that interview. This testimony was designed to convey the impression of forthrightness in his interview with the police and in his testimony at trial. Appellant's conduct during the interview was relevant to rebut that impression. Even if it had not been relevant, however, no objection was made to the State's line of questioning. Because appellant denied committing the conduct, the State was permitted to offer the videotape evidence under the impeachment exception to the exclusionary rule. Point of error three is overruled.

V. SUFFICIENCY OF THE EVIDENCE-FUTURE DANGEROUSNESS

A. Legal sufficiency

In point of error four, appellant contends that the evidence is legally insufficient to support the jury's affirmative answer to the future dangerousness special issue.FN104 Under a legal sufficiency review of this special issue, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society.FN105 “We have enumerated a non-exclusive list of factors” that may be considered in conducting such a review:

FN104. That special issue asks: “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Article 37.071, § 2(b)(1). FN105. Smith v. State, 74 S.W.3d 868, 870 (Tex.Crim.App.2002).

(1) the circumstances of the capital offense, including the defendant's state of mind and whether he was acting 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.FN106

In the light most favorable to the verdict, the evidence shows the following: The crime was a brutal robbery-rape-murder of someone who had at one time been a neighbor. Appellant had previously been convicted of disorderly conduct, attempted criminal mischief, criminal mischief, petty larceny, possession of a controlled substance (twice), unauthorized use of a motor vehicle, attempted robbery (two counts), and robbery (two separate occasions: the first time with one count, the second time with two counts). Appellant had robbed at least ten people with what appeared to be a gun. FN107 In one of the robberies, after appellant had taken the victim's money, he attempted to take a gold necklace the victim was wearing. The victim hit appellant in the chin and ran, but appellant followed and engaged in a scuffle. After seeing two police officers who noticed the scuffle, appellant escaped-with the victim's necklace.

FN107. There was testimony that a fake gun was confiscated from appellant upon his arrest.

Appellant had been incarcerated twice in a penitentiary in New York. During the first period of incarceration, a two year period, appellant incurred seventeen disciplinary infractions. One of those infractions involved his possession of a plexiglass shard from a broken mirror. During the second period of incarceration, appellant was disciplined fifteen times.

While awaiting trial for the current offense in the Bell County jail, appellant was disciplined for possessing a homemade tattoo needle. In another incident, a Bell County jailer caught appellant fighting with another inmate. In yet another incident, appellant swung his fist at a Bell County jailer who began a routine search for contraband before allowing access to the prison law library. When the jailer blocked appellant's swing, appellant said, “Touch me again, m----r f-----r, and I'm going to kill you.” Despite appellant's warning, the jailer proceeded with the search. Appellant then stated, “I told you, you touch me, I'm going to kill you.” At that point, other officers came to take appellant back to his cell. While being returned to his cell, appellant made threats to the jailer and the other officers. Appellant was also disciplined in the Bell County jail for possessing a razor-sharp metal object that he had hidden in his mattress.

Under this record, we find that the evidence was legally sufficient to show a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. Point of four is overruled.

B. Factual sufficiency

In point of error five, appellant contends that the evidence was factually insufficient to support the jury's answer to the future dangerousness special issue. We do not conduct a factual sufficiency review of this special issue.FN108 Point of error five is overruled.

FN108. McGinn v. State, 961 S.W.2d 161, 166-169 (Tex.Crim.App.), cert. denied, 525 U.S. 967, 119 S.Ct. 414, 142 L.Ed.2d 336 (1998).

The judgment of the trial court is affirmed.

Manns v. Quarterman, 236 Fed.Appx. 908 (5th Cir. 2007) (Habeas).

Background: Following appellate affirmance, 122 S.W.3d 171, of his state court conviction of capital murder and his sentence of death, and denial of his state court application for writ of habeas corpus, petitioner sought writ of habeas corpus. The United States District Court for the Western District of Texas denied petition, and petitioner sought certificate of appealability (COA).

Holdings: The Court of Appeals, King, Circuit Judge, held that:
(1) mitigation special issue which failed to allocate burden of proof as to mitigation did not send “mixed signals” to jury in violation of Eighth Amendment;
(2) petitioner had no constitutional due process right to have absence of mitigating factors found by sentencing jury beyond reasonable doubt; and
(3) aggravating offenses were not elements of capital murder. Certificate of appealability denied. Garza, J., concurred specially with opinion.

KING, Circuit Judge:

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

Petitioner-appellant Denard Sha Manns seeks a certificate of appealability (“COA”) to appeal the district court's judgment denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Manns has not made a substantial showing of the denial of a constitutional right, we DENY his COA application.

I. BACKGROUND

Manns was indicted in Texas state court for the November 1998 death of Michele Robson. The indictment charged Manns with capital murder and alleged that Manns intentionally caused Robson's death in the course of committing or attempting to commit robbery, kidnapping, and aggravated sexual assault. Manns pleaded “not guilty” and proceeded to a jury trial in February 2002 before the 27th District Court of Bell County, Texas. He was convicted of capital murder on March 1, 2002, and was sentenced to death. Manns appealed his conviction and sentence to the Texas Court of Criminal Appeals, which affirmed. See Manns v. Texas, 122 S.W.3d 171 (Tex.Crim.App.2003).

On November 10, 2003, Manns filed a state application for a writ of habeas corpus. The 27th District Court of Bell County, Texas, entered findings of fact and conclusions of law and recommended that Manns's application be denied. The Court of Criminal Appeals summarily adopted the trial court's findings and conclusions and denied Manns's application on September 29, 2004. See Ex Parte Manns, No. 59,664-01, slip op. (Tex.Crim.App. Sept. 29, 2004) (per curiam) (unpublished opinion).

Manns filed a federal petition for a writ of habeas corpus in the Western District of Texas on September 29, 2005 and an amended petition on October 14, 2005. The district court denied the petition on April 21, 2006. See Manns v. Dretke, No. W-04-CA-332, slip op. (W.D.Tex. Apr. 21, 2006) (unpublished opinion). Manns timely filed a notice of appeal and moved for a COA, but the district court denied Manns's COA request. Manns now seeks a COA from this court to appeal the district court's denial of his habeas petition.

* * *

A. Claims Two and Four: Burden of Proof on Mitigating Factors

1. Background

We first address Manns's second and fourth claims. Both claims relate to the mitigation special issue submitted to the jury during the sentencing phase of his trial and to the lack of any explicit assignment of a burden of proof on the question.

In accordance with the version of article 37.071, section 2(e)(1) of the Texas Code of Criminal Procedure as it then existed, the jury was asked:

Do you find from the evidence, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, that there is a sufficient mitigating circumstance or circumstances that a sentence of life imprisonment rather than a death sentence be imposed?

See Tex.Code Crim. Proc. Ann. art. 37.071 § 2(e)(1) (Vernon Supp.2004) (amended 2005). Although the jury was asked whether there were mitigating factors sufficient to warrant a sentence of life imprisonment rather than death, the jury was not instructed whether the burden of proof on the question was borne by the state or by Manns.

In his second claim, Manns contends that the lack of any burden-of-proof allocation sent “mixed signals” to the jury in violation of Penry v. Johnson ( Penry II ), 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). And in his fourth claim, Manns asserts that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the state should have been required to prove beyond a reasonable doubt the absence of sufficient mitigating evidence warranting a sentence of life imprisonment.

The state asserts here, as it did before the district court, that Manns did not exhaust these claims in state court. True, Manns raised these claims for the first time in his federal habeas petition; he did not raise them at any point in his original state criminal proceedings or in his state habeas application. Even though Manns failed to exhaust these claims in state court, the district court proceeded to the merits and denied the claims. The district court was permitted to deny Manns habeas relief on the merits of his claims notwithstanding his failure to exhaust. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”). We perform a threshold inquiry into the merits of Manns's claims to determine whether jurists of reason could disagree with the district court's denial of the claims.

2. Claim Two: Penry Claim

Manns asserts that the mitigation special issue sent “mixed signals” to the jury and thereby violated the Eighth Amendment under Penry II. The district court denied Manns's claim, observing that Manns received the instruction required by article 37.071, section 2(e)(1), which does not contain a nullification instruction as prohibited by Penry II.

Manns's claim is not the typical Penry claim-i.e., that the mitigation special issue presented to the jury did not permit the jury to consider and give full effect to Manns's mitigating evidence. See, e.g., Scheanette v. Quarterman, 482 F.3d 815, 824-25 (5th Cir.2007). Manns does not argue that the jury received mixed signals about how to give full effect to his mitigating evidence. In fact, Manns's COA request does not even identify what mitigating evidence, if any, he presented to the jury.

Instead, Manns opines that the jury received mixed signals in violation of Penry II because the mitigation special issue did not explicitly allocate the burden of proof on the question. He asserts that the jury's answer to the mitigation special issue may have turned on whether the jury believed it should begin its deliberations with a presumption of a death sentence or a presumption of a sentence of life imprisonment.FN1 In essence, Manns posits that Penry II requires the trial court to instruct the jury regarding which party bears the burden of proof in order to avoid sending prohibited mixed signals.

FN1. The heart of Manns's argument is as follows:[Under Penry II,] [t]he question here then becomes whether the statutory “mitigation” issue submitted to the jury in this case also suffers from the constitutional flaw of sending “mixed signals.” To pose the question is to answer it, for [the Texas Court of Criminal Appeals] has already acknowledged that the statutory issue is unclear as to the burden of proof.... As discussed above, the practical effect is even worse, as ... the burden seems to fall on the defense. Jurors can focus their deliberations on whether a defendant has produced sufficient evidence to convince them a death sentence should not be imposed. On the other end, jurors could focus on whether the State disproved or rebutted the mitigating evidence produced by the defendant. Put another way, a juror can begin deliberations with either a presumption that a death sentence is appropriate, or a life sentence is appropriate. A juror's answer may well depend on which presumption he uses, and how he approaches the issue. With such conflicting interpretations, there is no way for a juror to determine how they should approach answering the issues. In this situation it is more than probable that jurors may have different views of how the issues should be approached.

But Penry II simply does not address which party bears the burden of proof on the mitigation special issue, nor does it require that the burden be assigned to a particular party. Instead, Penry II reaffirmed that the jury must “be able to ‘consider and give effect to [a defendant's mitigating] evidence in imposing sentence.’ ” 532 U.S. at 797, 121 S.Ct. 1910 (emphasis omitted) (alteration in original) (quoting Penry v. Lynaugh ( Penry I ), 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)). The Supreme Court held that a judicially crafted nullification instruction did not permit the jury to give full effect to the defendant's mitigating evidence in part because “[a]t best, the jury received mixed signals” from the combination of the nullification instruction and an instruction to follow the oath and the law. See Penry II, 532 U.S. at 802, 121 S.Ct. 1910. The district court observed that Manns's jury did not receive a nullification instruction and implicitly concluded that the jury therefore did not receive Penry II's prohibited “mixed signals.” Jurists of reason could not disagree with the district court's resolution of Manns's claim, and accordingly we deny Manns's COA request on this claim.

3. Claim Four: Apprendi/Ring Claim

Manns also contends that his Fourteenth Amendment due process rights were violated because the mitigation special issue implicitly placed the burden of proving sufficient mitigating factors onto Manns. Manns posits that under Apprendi and Ring, the state must bear the burden of proving beyond a reasonable doubt that there are insufficient mitigating circumstances to warrant the imposition of a sentence of life imprisonment rather than death. The district court denied this claim, observing that the same argument has been rejected at both the state and federal level.FN2

FN2. The district court cited Russeau v. Texas, 171 S.W.3d 871 (Tex.Crim.App.2005), Resendiz v. Texas, 112 S.W.3d 541, 549-50 (Tex.Crim.App.2003), and Resendiz v. Dretke, No. 4:05-CV-1604, 2005 WL 2171890 (S.D.Tex. Sept. 7, 2005) (unpublished opinion).

In previous cases, we have denied COA applications on this very issue, see Scheanette, 482 F.3d at 828-29, and Rowell v. Dretke, 375-78 (5th Cir.2005), and for the same reasons we do so in this case as well. Under Apprendi and Ring, the aggravating factors permitting the elevation of the sentence from life imprisonment to death must be found by a jury. See Ring, 536 U.S. at 609, 122 S.Ct. 2428. But nothing in Apprendi or Ring addresses mitigating factors. See Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428 (“[Ring] makes no Sixth Amendment claim with respect to mitigating circumstances.”). As this court has observed, the absence of mitigating factors need not be proved by the state beyond a reasonable doubt because “a finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death.” Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir.), cert. denied, --- U.S. ----, 127 S.Ct. 732, 166 L.Ed.2d 568 (2006). Moreover, the Supreme Court recently made clear that its decision in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that “a state death penalty statute may place the burden on the defendant to prove that mitigating circumstances outweigh aggravating circumstances,” is still controlling. Kansas v. Marsh, --- U.S. ----, 126 S.Ct. 2516, 2524, 165 L.Ed.2d 429 (2006). Jurists of reason could not disagree with the district court's resolution of this claim. Accordingly, Manns's request for a COA on this claim is denied.

B. Claim 1: Lack of Juror Unanimity on Manner of Committing Capital Murder

We turn next to Manns's first claim. Manns contends that his Fourteenth Amendment right of due process and his Sixth Amendment right of trial by jury were violated because the trial court did not require the jury to unanimously agree whether the offense elevating murder to capital murder was robbery, kidnapping, or aggravated sexual assault.FN3 Manns first presented this claim in his state habeas application.FN4 The Court of Criminal Appeals rejected Manns's argument, relying on Kitchens v. Texas, 823 S.W.2d 256 (Tex.Crim.App.1991).FN5 Manns again presented the argument in his federal habeas petition. The federal district court also relied on Kitchens in rejecting Manns's argument. Manns now seeks a COA on this claim.

FN3. Although Manns's first claim is predicated on both the Fourteenth Amendment and the Sixth Amendment, the right of juror unanimity “is more accurately characterized as a due process right than as one under the Sixth Amendment.” Schad v. Arizona, 501 U.S. 624, 634 n. 5, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion).

FN4. The state contends that Manns did not exhaust his state remedies on this claim. But in his state habeas application, Manns asserted that his constitutional rights of due process and trial by jury were violated because the jury instructions “did not require all twelve jurors to agree on whether the aggravating factor elevating murder to capital murder was kidnapping, robbery[,] or aggravated sexual assault.” Consequently, Manns fairly presented this claim to the state courts and therefore exhausted his state remedies. We thus proceed with a threshold inquiry into the district court's resolution of his claim.

FN5. The Court of Criminal Appeals did so indirectly by summarily adopting the findings and conclusions of the state district court, which relied on Kitchens.

The indictment charged Manns with capital murder, which was defined in 1998 in relevant part as “intentionally commit[ting] ... murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation.” Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 1998) (amended 2003). The indictment alleged that Manns “caus[ed] the death of an individual, namely, MICHELE ROBSON, by shooting the said MICHELE ROBSON with a firearm ... in the course of committing or attempting to commit the offense[s] of kidnapping[,] ... robbery[,] ... [and] aggravated sexual assault of the said MICHELE ROBSON.” The state trial court instructed the jury:

[I]f you believe from the evidence beyond a reasonable doubt, that the defendant, DENARD MANNS, ... intentionally commit[ted] murder by causing the death of an individual, namely, MICHELE ROBSON, by shooting the said MICHELE ROBSON with a firearm, and (1) the defendant was then and there in the course of committing or attempting to commit the offense of kidnapping of the said MICHELE ROBSON; or
(2) ... robbery of the said MICHELE ROBSON; or
(3) ... aggravated sexual assault of the said MICHELE ROBSON,
you will find the defendant guilty of the offense of Capital Murder....

The jury reported on a general verdict form its finding that Manns was “guilty of the offense of Capital Murder as alleged in the indictment.”

Manns argues that his constitutional rights were violated because the jury was not required to unanimously agree on which aggravating offense (i.e., kidnapping, robbery, or aggravated sexual assault) elevated his crime to capital murder. The thrust of Manns's argument is that the aggravating offenses enumerated in section 19.03(a)(2) are separate elements of the offense of capital murder, not merely alternate means of committing capital murder. As such, Manns contends, the jury should not have been permitted to find him guilty of capital murder without agreeing unanimously on at least one particular offense enumerated in section 19.03(a)(2).

In Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), a plurality of the Supreme Court “concluded that when a statute enumerates alternative routes for its violation, whether jurors must be unanimous with respect to a particular route depends on two questions.” United States v. Edmonds, 80 F.3d 810, 815 (3d Cir.1996) (en banc). The first question involves an inquiry into legislative intent: “[D]id the legislature intend the different routes to establish separate ‘offenses,’ for which unanimity is required as to every fact constituting the offense, or different ‘means' of violating a single offense, for which unanimity is not required?” Id.; see also Schad, 501 U.S. at 636-37, 111 S.Ct. 2491 (plurality opinion). The second inquiry is constitutional in nature: “[I]f the legislature intended the alternative routes to be mere means of violating a single statute, is the statute's definition of the crime unconstitutional under the Due Process Clause?” Edmonds, 80 F.3d at 815; see also Schad, 501 U.S. at 632, 111 S.Ct. 2491 (plurality opinion).

In Kitchens, the Texas Court of Criminal Appeals answered the first Schad question with regard to the crime of capital murder in Texas. The Kitchens court determined that the offenses enumerated in section 19.03(a)(2) do not establish separate elements but rather are merely “differing methods of committing one offense.” 823 S.W.2d at 257-58. The court explicitly condoned the use of a general verdict in a capital-murder trial, whereby the jury need not be unanimous as to which of the enumerated offenses elevates murder to capital murder. Id.

Manns contends, however, that Kitchens was wrongly decided. He criticizes the perceived lack of thoroughness in Kitchens's analysis, contending that the Court of Criminal Appeals did not perform a sufficient inquiry into the Texas legislature's intent as contemplated by Schad and Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). He maintains that the Kitchens court instead simply “declare[d], essentially by judicial fiat, that any alternative theories of commission of an offense as defined within a single penal statute will invariably and always be regarded as nothing more than ‘means' of satisfying the elements of the statute.” He argues that a proper inquiry into legislative intent yields the conclusion that the Texas legislature intended for section 19.03(a)(2) to create separate elements, not merely to provide alternative methods for committing a single crime. He relies primarily on the statute's language, but he also argues that even if the statute is ambiguous, there should essentially be a presumption that the statute creates separate elements. Finally, Manns opines that Kitchens no longer represents the view of the Texas courts. He argues that the Court of Criminal Appeals revisited the issue of juror unanimity in Ngo v. Texas, 175 S.W.3d 738 (Tex.Crim.App.2005), and that Ngo's rationale supports a conclusion that section 19.03(a)(2) enumerates elements of capital murder, not merely manner and means of proving a single element. FN6

Manns also asserts that the Court of Criminal Appeals specifically held in Rodriguez v. Texas, 146 S.W.3d 674 (Tex.Crim.App.2004), that the alternative theories of capital murder enumerated in section 19.03(a)(2) do in fact constitute elements of the offense. The Rodriguez court did state that the offense of capital murder includes “aggravating ‘nature of circumstances and/or nature of conduct elements' [that] are elements of the offense.” 146 S.W.3d at 677. But the court appears to have been recognizing simply that in a capital-murder case the state must-in addition to proving that the defendant intentionally caused an individual's death-also prove “that the accused engaged in other criminal conduct (i.e., kidnapping, robbery, aggravated sexual assault, escape from a penal institution) or had knowledge of certain circumstances (i.e., that the victim was a peace officer).” Id. (quoting Patrick v. Texas, 906 S.W.2d 481, 491 (Tex.Crim.App.1995)). The Rodriguez court did not state that it was in any way modifying or overruling Kitchens.

But in construing the Texas legislature's intent, a federal habeas court is bound by the statutory interpretation set forth by the Texas court. By rejecting Mann's claim and relying on Kitchens, the Court of Criminal Appeals effectively determined that under Texas law, robbery, kidnapping, and aggravated sexual assault are simply alternate means of committing the crime of capital murder. Cf. Schad, 501 U.S. at 637, 111 S.Ct. 2491 (plurality opinion) (“In the present case, for example, by determining that a general verdict as to first-degree murder is permissible under Arizona law, the Arizona Supreme Court has effectively decided that, under state law, premeditation and the commission of a felony are not independent elements of the crime, but rather are mere means of satisfying a single mens rea element.”). On habeas review, the district court is not permitted to second-guess the Texas court's interpretation of Texas law but must instead respect it as controlling. See id. at 636, 111 S.Ct. 2491 (plurality opinion) (“If a State's courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.” (citing Mullaney v. Wilbur, 421 U.S. 684, 690-91, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Murdock v. City of Memphis, 20 Wall. 590, 87 U.S. 590, 22 L.Ed. 429 (1874))). In disposing of Manns's due process claim, the district court respected Kitchens as controlling, and jurists of reason could not disagree with that resolution of Manns's claim.FN7 Accordingly, we deny his request for a COA on this claim.

FN7. Manns did not go on to argue in the district court (and does not argue here) that under Schad's second prong, Texas's definition of capital murder, as construed by the Court of Criminal Appeals, violates due process. Hence, we do not address it.

C. Claim 3: Ineffective Assistance of Counsel

Lastly, Manns claims that he received ineffective assistance of counsel. He argues that his appellate counsel provided constitutionally deficient assistance by failing to raise on direct appeal the issue of the lack of juror unanimity as to which enumerated offense elevated murder to capital murder, even though this issue had been preserved in the trial court.FN8 Manns presented this claim in both his state habeas application and in his federal habeas petition.

FN8. Manns made other arguments in his state and federal habeas petitions about the effectiveness of his appellate counsel. But he does not address these arguments in his COA request.

Manns's ineffective-assistance-of-counsel claim is governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Under the Strickland standard, Manns must show that his appellate counsel's performance was objectively unreasonable and that it prejudiced him. See id. To establish prejudice, Manns must demonstrate a reasonable probability that absent his appellate counsel's unreasonable performance he would have prevailed on appeal. See id. at 285-86, 120 S.Ct. 746.

Manns has not shown that jurists of reason could disagree with the district court's denial of his claim of ineffective assistance of counsel. Assuming arguendo that Manns's appellate counsel's failure to present the juror-unanimity argument on direct appeal was objectively unreasonable, Manns cannot demonstrate prejudice. As we explained above, Manns has not made a substantial showing that the trial court's failure to require the jury to be unanimous on which offense elevated murder to capital murder deprived him of a constitutional right. As a result, he has also failed to demonstrate prejudice-i.e., a reasonable probability that had his appellate counsel made the juror-unanimity argument, he would have prevailed on direct appeal. Consequently, Manns's request for a COA on this claim is denied as well.

IV. CONCLUSION

For the foregoing reasons, Manns's request for a COA is DENIED.

EMILIO M. GARZA, Circuit Judge, specially concurring: I concur in the majority opinion but write separately to voice concern that Kitchens was wrongly decided. Under both of Schad's inquiries-statutory construction of Texas's capital murder statute and due process-the specific felony offense elevating murder to capital murder is a separate element of the crime of capital murder, not, as the Texas Court of Criminal Appeals has held, a “differing method[ ] of committing one offense.” Kitchens v. Texas, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); see Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 1998) (amended 2003).

The distinction between the elements of a crime and the means of committing an element of a crime is often less than clear, but Texas's capital murder statute is straightforward. To commit capital murder, a defendant must not only have the requisite actus reas and mens rea of murder, but he also must commit a felony that is, in and of itself, a separate crime, which comes with its own actus reas and mens rea requirements. See, e.g., Tex. Penal Code Ann. § 20.03(a) (kidnaping); Id. § 29.02(a) (robbery); Id. § 22.021(a) (aggravated sexual assault). The act of committing kidnaping, or robbery, or aggravated sexual assault is not an alternate means by which one commits capital murder. Means are “preliminary factual issues which underlie the verdict,” Schad v. Arizona, 501 U.S. 624, 631-32, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (internal quotations omitted), and consist of alternate theories in the commission of an element of the offense-for example, using a gun versus using a knife in committing aggravated sexual assault. The mens rea element can also be established by various means, for example, committing murder that is premeditated or an act of passion. Here, however, the underlying felony offense is a separate crime in and of itself, which, if its elements are proved beyond a reasonable doubt, elevates murder to capital murder and hence is an element of the crime of capital murder. Cf. Richardson v. United States, 526 U.S. 813, 817-19, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999); Apprendi v. New Jersey, 530 U.S. 466, 496, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“[T]he fact that New Jersey ... has also made precisely the same conduct the subject of an independent substantive offense” is probative as to whether the conduct is an element of the crime). I concur in denying COA because we are required under Schad to defer to Texas's own interpretation of its capital murder statute.