Tuesday, June 14, 2011
Media Advisory: Milton Mathis scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Milton Wuzeal Mathis, who is scheduled to be executed after 6 p.m. on Tuesday, June 21, 2011. In Sept 1999, Mathis was sentenced to death for the Fort Bend County murders of Travis Brown and Daniel Hibbard.

FACTS OF THE CRIME

On December 15, 1998, Mathis shot three people in the head at a house in Fort Bend County. Killed were Travis Brown and Daniel Hibbard. The third victim, Melanie Almaguer, survived but is paralyzed from the neck down. Mathis also pointed the gun at Melanie’s mother, Esmerelda Lester, and discovered that he was out of bullets. Mathis then rummaged through the house, set fire to Brown’s room, and finally left in Brown’s car.

Police arrested Mathis after identifying him as the killer. Officers discovered that Mathis had told his father to lie for him and had persuaded his girlfriend to give him an alibi, which she maintained until confronted by police. A fellow inmate testified that Mathis showed no remorse for the shootings and stated that he wished he had killed all of them. Mathis testified that he had shot all three people and taken Brown’s car.

PROCEDURAL HISTORY

On September 9, 1999, after a jury found Mathis guilty of capital murder and after a separate punishment phase hearing, the trial court imposed a sentence of death.

The Texas Court of Criminal Appeals affirmed Mathis’s conviction and sentence on direct appeal. Mathis filed an application for state writ of habeas corpus in February 2001. In April 2002, the Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied relief.

Mathis filed a federal habeas petition on April 3, 2003. A federal district court denied Mathis’s federal writ in February 2004.

On June 20, 2003, Mathis filed a second state habeas application, based on Atkins v. Virginia. On February 17, 2004, Mathis submitted a “Motion For New Trial and for Abatement” in district court. His second state habeas application was denied on March 3, 2004.

On March 9, 2004, a federal district court denied Mathis’s motion for a new trial. On March 19, 2004, Mathis moved the federal district court to reconsider its denial of his request to stay and abate proceedings; the federal district court denied his request on April 6, 2004. On April 8, 2004, Mathis filed a notice of appeal, and on August 12, 2004, he sought a certificate of appealability (COA) from the United States Court of Appeals for the Fifth Circuit.

On February 2, 2005, Mathis filed a motion for a stay of execution in the Fifth Circuit court; and on March 7, 2005, he filed an amended motion for stay of execution and a motion to stay proceedings pending adjudication of his Atkins claim in state court. On March 11, 2005, Mathis’s COA and stay motions were denied by the Fifth Circuit court. Mathis’s petition for rehearing was denied on April 8, 2005, and his motion to stay his execution was denied April 12, 2005.

On April 15, 2005, Mathis filed his third application for state habeas relief, claiming that he is mentally retarded and exempt from the death penalty under Atkins v. Virginia. He filed a motion for stay of execution in the Texas Court of Criminal Appeals on April 18, 2005, and a petition for certiorari review in the U.S. Supreme Court on the same day. The Court of Criminal Appeals granted Mathis’s motion to stay on April 19, 2005, but the Supreme Court denied his petition for certiorari on June 23, 2005.

An evidentiary hearing on Mathis’s mental retardation claim was held September 12-15, 2005, and on September 20, 2006, Mathis’s third application for state habeas relief was denied.

On September 29, 2006, Mathis sought authorization from the Fifth Circuit court, as required by the federal habeas statute, for leave to file another federal habeas petition in district court. On April 2, 2007, the motion was granted. And on April 4, 2007, Mathis’s second federal habeas petition was filed. The court dismissed Mathis’ petition on March 31, 2008. Mathis appealed to the Fifth Circuit court, but was denied on August 20, 2010. Mathis’ petition for certiorari review was denied on February 28, 2011.

On April 10, 2011, Mathis filed a motion under Federal Rule of Civil Procedure 60(b), seeking relief from the judgment in Mathis v. Dretke, which was entered seven years earlier. The federal district court denied relief on April 29, 2011, denied Mathis’s request for COA on May 17, 2011, and denied his motion to stay his execution pending appeal on May 31, 2011. Mathis filed a notice of appeal at the Fifth Circuit court. That matter is now pending.

On May 31, 2011, Mathis filed a clemency petition with the Board of Pardons and Parole.

On June 20, 2011, Mathis filed the following with the U.S. Supreme Court: an original habeas corpus petition, a cert petition, a motion for stay of execution, and an application for a certificate of appealability. On June 20, 2011, the State filed a brief in opposition to Mathis's petition for certiorari, application for certificate of appealability, and application for stay of execution. On June 21, 2011, the state filed its brief in opposition to the original petition for writ of habeas corpus filed by Mathis.

On June 21, 2011, Mathis filed a subsequent state habeas application. The Texas Court of Criminal Appeals dismissed Mathis's subsequent state writ. On June 21, 2011, the U.S. Supreme Court denied Mathis's two petitions and three stay requests.

PRIOR CRIMINAL HISTORY

During the punishment phase of his trial, the State presented evidence of Mathis’s prior criminal history, including an aggravated robbery, various assaults and thefts, and a charge of resisting arrest. The State presented additional evidence that Mathis had been repetitively belligerent and disruptive at school and that he had gotten into a fight with jailers while incarcerated.

Texas Execution Information Center by David Carson.

Milton Wuzael Mathis, 32, was executed by lethal injection on 21 June 2011 in Huntsville, Texas for the murder of two men.

On 15 December 1998, six people were in a house together. Chris Lentsch, the owner, rented rooms to Travis Brown and Daniel Hibbard, 31. All three occupants were home, as were three visitors - Esmerelda Lester, Lester's 15-year-old daughter, Melanie Almaguer, and Mathis, then 19. Brown and Mathis were together in Brown's room, while the others were in Lentsch's room.

At about 8:30 a.m., multiple shots were fired in Brown's room. Mathis then walked out and saw Lentsch in the kitchen. According to Lentsch's trial testimony, Mathis claimed that Brown had just shot himself. Lentsch told Mathis to put the gun down, but instead, Mathis ordered Lentsch back into his room with the others. According to Lentsch, he then "calmly" walked up to Almaguer and shot her in the head. Next, he shot Hibbard in the head. Next, he pointed the gun at Lester and pulled the trigger, but the gun was out of bullets. Mathis then rummaged through the house, set fire to Brown's room, threatened Lester and Lentsch, and left in Brown's car. Almaguer survived the shooting, but was permanently paralyzed from the neck down. Brown and Hibbard died.

Lentsch's house was reputedly a well-known drug house.

At his trial, Mathis initially testified that he was not at the house on the morning of the shootings. The defense then motioned for a recess. After the recess, Mathis testified that he had lied in his previous testimony. He admitted being at the house, shooting all three victims, and taking Brown's car. He claimed that he shot Brown in self-defense after Brown had threatened to shoot him. He testified that after he shot Brown, everyone in the house began "hollering and screaming," and he panicked. "I never aimed the gun," he stated. "I just walked in there and heard them all screaming, and I was just pointing the gun and pulled the trigger. So I never aimed ... I didn't mean to hurt nobody, sir. I'm not a killer."

The defense argued that Mathis' reckless mental state justified a manslaughter conviction, instead of murder. The surviving eyewitnesses, however, testified that Mathis was calm when he shot Almaguer and Hibbard. At the time of the killings, Mathis was on probation for an aggravated robbery conviction. At age 19, he had no prior prison record, but he had an extensive juvenile criminal record.

A jury convicted Mathis of capital murder in September 1999. The Texas Court of Criminal Appeals affirmed the conviction and sentence in February 2002. All of his subsequent appeals in state and federal court were denied.

Mathis had previously been scheduled to be executed on 20 April 2005, but the Texas Court of Criminal Appeals stayed that execution date so that his claim of mental retardation could be considered. The courts subsequently determined that he was not retarded.

On a web site maintained by opponents of the death penalty, Mathis protested his sentence and stated, "I am not an animal, nor am I a menace to society, that cannot be rehabilitated." He wrote, "I was just a kid that made some bad decisions in his life. But haven't we all made mistakes?"

As Mathis's execution approached, his lawyers filed further appeals arguing that he was mentally impaired. The U.S. Supreme Court rejected his appeal the afternoon of his execution. The execution was delayed for about a half hour as the Texas Court of Criminal appeals considered the appeal.

Mathis's paralyzed victim, Melanie Almaguer, attended his execution, seated in a wheelchair and accompanied by her husband. "I never meant to hurt you," Mathis said to her in his last statement. "You were just at the wrong place at the wrong time. I am not asking for your forgiveness. All I have to worry about is God forgiving me. I hope you get better. To the doctors, make sure you take care of her." He also thanked his friends and relatives, and asked for mercy for himself and "these people carrying out this mass slaughter."

"The system has failed me," Mathis said. "This is what you call a miscarriage of justice. Life is not supposed to end this way ... I just ask the Lord, when I knock at the gates, you just let me in." The lethal injection was then started. He was pronounced dead at 6:53 p.m.

Huntsville Item

"Mathis executed for double slaying," by Tori Brock. (Tue Jun 21, 2011, 11:43 PM CDT)

HUNTSVILLE — As Milton Mathis lay strapped to a gurney inside the Huntsville “Walls” Unit Tuesday night, he called his execution a “mass slaughter.” Mathis was executed for the 1998 slaying of Travis Brown III, 24, and Daniel Hibbard, 31, inside a known drug house in Fort Bend County.

Mathis also shot 15-year-old Melony Almaguer in the face. While Almaguer survived the shooting, she remains paralyzed from the chest down. Mathis, who was 19 at the time, also attempted to shoot two more victims, but his gun either jammed or misfired.

Almaguer attended Tuesday's execution, where she was addressed by Mathis. “I never meant to hurt you,” he said. “You were just in the wrong place at the wrong time. I am not asking for your forgiveness. All I have to worry about is God forgiving me. I hope you get better. To the doctors, make sure you take care of her.”

Mathis thanked his supporters, friends and family and asked them to take care of his mother. “To everybody, know that I love you and I am OK,” he said. “Lord, have mercy on my soul. Lord, have mercy on these people's soul. Life is not supposed to end this way. I ask God that when I knock at the pearly gates, that you open up and let me in.”

Mathis continued to speak as the lethal dose began to take effect, resulting in a string of unintelligible words before he sputtered and died. The lethal dose began flowing at 6:44 p.m. and Mathis was pronounced dead at 6:53.

For his final meal, Mathis requested five Texas burgers all the way with bacon, five fried pork chops, five pieces of fried chicken, five pieces of fried fish, an order of chili cheese fries with a whole jalapeno, an order of regular fries and an extra large gallon of fruit punch.

Two more executions are scheduled for July, two in August and three in September.

Houston Chronicle

"Milton Mathis executed for Houston double slaying," by Michael Graczyk. (AP June 21, 2011 9:12PM)

HUNTSVILLE, Texas — Convicted killer Milton Mathis was executed Tuesday evening for fatally shooting two people inside a Houston crack house in 1998, becoming the sixth death row inmate executed in Texas this year. The lethal injection was carried out shortly after the U.S. Supreme Court rejected appeals from his defense attorneys, who argued that Mathis was mentally impaired and therefore ineligible for execution.

Mathis, 32, was condemned for a shooting spree that killed Travis Brown III, 24, and Daniel Hibbard, 31, less than two weeks before Christmas in 1998. A 15-year-old girl, Melony Almaguer, also was shot and left paralyzed. Almaguer, seated in a wheelchair and accompanied by her husband, was among a small group of people who watched Mathis die from behind a window at the Huntsville Unit of the Texas Department of Criminal Justice. "I never meant to hurt you," Mathis, strapped to a gurney with tubing taped to his arms, told Almaguer. "You were just at the wrong place at the wrong time." Her husband stood with his hand on her shoulder and at one point brushed her face with his hand. They declined to speak with reporters after leaving the prison.

Mathis thanked his friends and relatives, and asked for mercy for himself and "these people carrying out this mass slaughter." "The system has failed me," he said. "This is what you call a miscarriage of justice. Life is not supposed to end this way ... I just ask the Lord, when I knock at the gates, you just let me in."

He yawned and gasped, then began snoring as the lethal drugs began taking effect. Nine minutes later, at 6:53 p.m. CDT, he was pronounced dead.

An unsuccessful late appeal to the Texas Court of Criminal Appeals briefly delayed the punishment. In their appeal filed Monday with the Supreme Court, his attorneys also argued that Mathis' claims of mental impairment hadn't been reviewed by any federal court because of a "procedural quagmire" and "freakish coincidence" of state and federal legal issues involving the timing of his appeals. Attorney Lee Kovarsky also argued that if Mathis was executed, he likely would have the lowest IQ of any Texas inmate put to death since the Supreme Court nine years ago barred execution of the mentally impaired.

One test cited in Mathis' appeals put his IQ as low as 62, below the threshold of 70 considered by the courts to be the level for deciding mental impairment. Other tests showed Mathis' IQ considerably higher. State attorneys cited a federal appeals court ruling declaring it was a "mystery how Mathis could have scored 10-20 points higher on his IQ test before trial as compared to after his conviction." State attorneys said the low test results could have been the result of his heavy drug use, including PCP and "Fry," a marijuana cigarette soaked in embalming fluid laced with PCP, alcohol and codeine cough syrup.

State lawyers who opposed the reprieve argued Mathis was not mentally impaired and that his claims were thoroughly litigated in a state court proceeding which included an evidentiary hearing with expert defense witnesses and legal assistance for Mathis. "Mathis has already been afforded the requested relief in state court — review of his mental retardation claim — he fails to demonstrate that his right to further review is clear and indisputable," Laura Grant Turbin, an assistant Texas attorney general, told the Supreme Court.

Mathis testified at his 1999 trial that he wasn't at the scene of the shooting, even though his lawyers had told jurors he was there. After meeting with his attorneys, he changed his testimony to acknowledge he was present, explaining he was afraid when he didn't initially tell the truth. He said he shot Brown in self-defense because Brown had threatened to shoot him. And he said he panicked and opened fire on Hibbard and Almaguer. Testimony from the girl's mother showed that he also tried to shoot her but his gun was out of bullets. Before he fled, Mathis set fire to Brown's room and then stole Brown's Cadillac, according to evidence. At the time of the shooting, Mathis was on probation for aggravated robbery.

Mathis also was set for execution in 2005, but it was halted a day before his scheduled execution date by the Texas Court of Criminal Appeals, which wanted to review his claims. Mathis refused to speak with reporters in the weeks leading up to his execution. One of his trial attorneys, Pheobe Smith, described him as cooperative and respectful but acknowledged that the facts of the case didn't help the defense team. "I look at this case as a failure on our part," she said. "I don't think Milton Mathis should be on death row."

Fred Felcman, the Fort Bend County assistant district attorney who prosecuted Mathis, called him a violent individual and "a little thug." "He'd already been assaulting people and killing people's dogs and holding them for ransom," Felcman said. "People were almost more upset by the dogs than by killing people. ... He's got a low IQ but he's very street savvy and very street smart."

Houston Chronicle

"No apologies from executed Houston crack house killer; Murderer tells paralyzed woman she was in wrong place, wrong time," by Mike Tolson. (June 21, 2011, 9:11PM)

HUNTSVILLE — Milton Wuzael Mathis, who killed his best friend and an acquaintance in a fit of drug-fueled paranoia at a southwest Houston crack house, was put to death for his crime Tuesday night as a woman paralyzed in the shooting spree looked on.

Almost two hours after the U.S. Supreme Court rejected his final appeal, Mathis, 32, was brought into the execution chamber. Behind a window in one of the witness rooms sat Melony Almaguer, who was shot by Mathis between the eyes on the morning of Dec. 15, 1998. She survived and later testified against him, but is paralyzed from the waist down.

Mathis, the sixth person executed in Texas this year, acknowledged Almaguer and said he had not wanted to hurt her. He said that he hoped doctors would continue to give her good medical care. "You were in the wrong place at the wrong time," Mathis said. "I won't ask for your forgiveness. I only ask for the Lord's forgiveness."

Condemns system

Mathis looked up from the gurney to acknowledge two friends who had come as his personal witnesses, and in his last statement he thanked them, his supporters and family. He then denounced the state for executing him and hundreds of others. "The system has failed me," he said. "This is what you call a miscarriage of justice. I ask the Lord to have mercy on my soul and on the souls of all who are participating in this mass slaughter. Life shouldn't end this way."

Mathis did not apologize for his actions but repeatedly asked for divine assistance.

"God is bringing me home," he said. "There will be no more frustration, no more dealing with the madness. Lord, when I come knocking, I just ask that you open your gates and let me in." He paused, leading prison personnel to begin administration of the first of the three-drug fatal cocktail. Mathis continued to speak for about 15 seconds, saying finally, "I can feel my life …." He gasped several times, fell silent, then snored for 20 seconds. He was pronounced dead at 6:53.

IQ tests an issue

Mathis, who did not speak to reporters in the weeks before his execution, never fully explained why he began shooting those present in the known crack house in Fort Bend County. He killed his friend, Travis Brown III, 24, and Daniel Hibbard, 31. Mathis shot Almaguer at close range and tried to shoot several others, but his semi-automatic pistol jammed.

Two others who were at scene and could have been victims also testified against him, as did a Fort Bend County Jail inmate who said Mathis told him he wished he had killed everyone in the house.

Mathis' lawyers never challenged the state's version of events but claimed that he was mentally challenged to the point of retardation, which, if proved, would have exempted him from capital punishment. They said one of his IQ tests in prison returned a score of 62, suggestive of retardation. The state argued that other tests had higher scores, and that his adult behavior demonstrated that he functioned above the level of a retarded person.

Toxic environment?

Mathis testified at trial that Brown, his friend, had pulled out the pistol and that he had wrestled it away from him, fearing for his life. Mathis' trial attorney, Steven Rocket Rosen, contended at trial that the environment of the crack house was toxic and that Mathis had become paranoid that morning that he was going to be killed. But the testimony of the girl, whom he shot in the face, was too much to overcome, Rosen said.

Mathis' conviction occurred before the U.S. Supreme Court ruled that execution of the mentally retarded is no longer permissible, but Mathis was granted a hearing later to determine whether he met the criteria. A Fort Bend County district judge ruled that he did not, and a prosecutor dismissed Mathis as a "street-smart, conniving thug."

ProDeathPenalty.Com

On December 15, 1998, at approximately 8:00 or 8:30 a.m., Esmerelda Lester and her 15-year old daughter Melanie Almaguer went to Chris Lentsch’s home. Lentsch rented rooms to Travis Brown and Daniel Hibbard. Brown and Milton Wuzael Mathis were in Brown’s room. While Lester, Almaguer and Hibbard sat in Lentsch’s room, Lentsch went into the kitchen. Shortly thereafter, Lentsch heard gunshots from Brown’s room and turned to see Mathis exiting the room with a gun in his hand. Mathis claimed that Brown had just shot himself. Lentsch told Mathis to put the gun down, but Mathis ordered Lentsch and the other three back into Lentsch’s room where he calmly walked up to Almaguer and shot her in the head, leaving her alive, but permanently paralyzed from the neck down. The bullet passed through Melanie's forehead and mouth and lodged in her shoulder, where it remains.

Mathis then shot Hibbard in the head, causing his death. Mathis finally pointed the gun at Esmerelda Lester, whereupon he discovered that he was out of bullets. Mathis thereafter rummaged through the house, set fire to Brown’s room, threatened Esmerelda and Lentsch, and finally left in Brown’s car. The police identified Mathis as the killer and went to arrest him. Upon being arrested, Mathis became violent. Officers discovered that Mathis had told his father to lie for him and had persuaded his girlfriend to give him an alibi, which she maintained until confronted by the police. A fellow inmate testified that Mathis showed no remorse for the shootings and stated that he wished he had killed them all.

Mathis took the stand and at first testified that although he had been to the house earlier, he was not there on the morning of the shootings. After defense counsel requested a recess, Mathis took the stand and stated that he had lied in his previous testimony. He then testified that he was at the house at the time of shootings, and admitted that he had shot all three people and taken Brown’s car. Mathis claimed he shot Brown in self-defense after Brown had threatened to shoot him. He claimed that he shot the others because he panicked after shooting Brown.

During the punishment phase, the State put on evidence of Mathis’s prior criminal history, including an aggravated robbery, various assaults and thefts, and a charge for resisting arrest. The State presented additional evidence that Mathis had been repetitively belligerent and disruptive at school and that he had gotten into a fight with jailers while incarcerated.

Mathis v. State,67 S.W.3d 918 (Tex.Crim.App. 2002) (Direct Appeal)

Defendant was convicted in the 268th District Court, Fort Bend County, Brady G. Elliott, J., of capital murder. On automatic direct appeal, the Court of Criminal Appeals, Meyers, J., held that: (1) evidence was legally sufficient to support jury's affirmative answer to future dangerousness issue; (2) determining juror's views on capital punishment would have prevented or substantially impaired performance of her duties was not an abuse of discretion; (3) defendant failed to rebut prosecutor's race-neutral explanations for striking jurors; (4) evidence did not support instruction on lesser-included offense of manslaughter; (5) failing to object to prosecutor's comments concerning defendant's non-testimonial courtroom demeanor was not ineffective assistance of counsel; and (6) punishment phase testimony of nurse who cared for victim who survived shooting spree was not victim impact testimony. Affirmed. Johnson, J., filed a concurring opinion. Cochran, J., filed a concurring opinion in which Womack, Hervey, and Holcomb, JJ., joined.

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

Appellant was convicted of capital murder in September 1999. Tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). FN1. Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure.

On December 15, 1998, at approximately 8:00 or 8:30 a.m., Esmerelda Lester and her 15–year old daughter Melanie Almaguer went to Chris Lentsch's home. Lentsch rented rooms to Travis Brown and Daniel Hibbard. Brown and appellant were in Brown's room. While Lester, Almaguer and Hibbard sat in Lentsch's room, Lentsch went into the kitchen. Shortly thereafter, Lentsch heard gunshots from Brown's room and turned to see appellant exiting the room with a gun in his hand. Appellant claimed that Brown had just shot himself. Lentsch told appellant to put the gun down, but appellant ordered Lentsch and the other three back into Lentsch's room where he calmly walked up to Almaguer and shot her in the head, leaving her alive, but paralyzed from the neck down. Appellant then shot Hibbard in the head, causing his death. Appellant finally pointed the gun at Lester, whereupon he discovered that he was out of bullets. Appellant thereafter rummaged through the house, set fire to Brown's room, threatened Lester and Lentsch, and finally left in Brown's car.

The police identified appellant as the killer and went to arrest him. Upon being arrested, appellant became violent. Officers discovered that appellant had told his father to lie for him and had persuaded his girlfriend to give him an alibi, which she maintained until confronted by the police. A fellow inmate testified that appellant showed no remorse for the shootings and stated that he wished he had killed them all.

Appellant took the stand and at first testified that although he had been to the house earlier, he was not there on the morning of the shootings. After defense counsel requested a recess, appellant took the stand and stated that he had lied in his previous testimony. He then testified that he was at the house at the time of shootings, and admitted that he had shot all three people and taken Brown's car. Appellant claimed he shot Brown in self-defense after Brown had threatened to shoot him.FN2 He claimed that he shot the others because he panicked after shooting Brown. FN2. Appellant claimed Brown held the gun to appellant's head and threatened to kill him. Appellant testified he knocked the gun out of Brown's hand, and when Brown started walking toward him, appellant closed his eyes and pulled the trigger.

During the punishment phase, the State put on evidence of appellant's prior criminal history, including an aggravated robbery, various assaults and thefts, and a charge for resisting arrest. The State presented additional evidence that appellant had been repetitively belligerent and disruptive at school and that he had gotten into a fight with jailers while incarcerated.

In his tenth point of error, appellant claims that the evidence presented at trial was legally insufficient to support the jury's finding that he would be a continuing threat to society. See Art. 37.071 § 2(b)(1). In reviewing the sufficiency of the evidence at punishment, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Allridge v. State, 850 S.W.2d 471 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). The facts of the crime alone can be sufficient to support the affirmative finding to the special issue. Allridge, 850 S.W.2d at 488. Additionally, we have consistently defined “society” as encompassing both the prison population and the free population. See Griffith v. State, 983 S.W.2d 282, 300 n. 9 (Tex.Crim.App.), cert. denied, 528 U.S. 826, 120 S.Ct. 77, 145 L.Ed.2d 65 (1999).

The facts in the instant case demonstrate a calculated crime which culminated in execution-style killings. The State's evidence reflected that appellant was always in control of his actions and showed no remorse. In addition to these facts, the State showed that appellant had a litany of past behavior problems and had committed a number of criminal violations. Given the facts in the instant case, and the nature and number of the other extraneous acts shown, a rational jury could reasonably have concluded that appellant would continue to be a threat to society. The evidence is legally sufficient to support the jury's affirmative answer to the future dangerousness issue. Jackson and Allridge, both supra. Point of error ten is overruled.

In his first two points of error, appellant claims the trial court erred in denying his challenges for cause to two venirepersons. To preserve error on allegedly erroneously denied challenges for cause, an appellant must demonstrate that he asserted a clear and specific challenge for cause, that he used a peremptory challenge on the complained-of venireperson, that all of his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). The record in the instant case shows that appellant used only thirteen of his fifteen peremptory challenges. Appellant has failed to preserve error on these points. Points of error one and two are overruled.

In his third point of error, appellant claims the trial court erred in granting the State's challenge for cause to venireperson Villamayor based on her views against the death penalty. Under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), a venireperson may be excluded for cause consistent with the Sixth Amendment to the United States Constitution when his views on capital punishment are such that they would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Clark v. State, 929 S.W.2d 5, 6–7 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1116, 117 S.Ct. 1246, 137 L.Ed.2d 328 (1997); Vuong v. State, 830 S.W.2d 929, 942 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992); Moody v. State, 827 S.W.2d 875, 888 (Tex.Crim.App.), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). Prospective jurors may not be excused merely because their beliefs about the death penalty might influence the decision-making process. Clark, supra.

Two weeks prior to Villamayor's individual questioning, the trial judge explained to the entire panel of veniremembers the procedural sequence of a death penalty case. The judge told the panel that the jury is first called upon to decide whether a capital murder defendant is guilty. The judge continued to explain that, if the jury found the defendant to be guilty, then the trial continued into a second phase where punishment was determined. The judge stressed to the veniremembers that a Texas jury is never required to assess a sentence of death or life imprisonment. Rather, the jury is required to answer a series of questions, and the answers to those questions would dictate to the judge what punishment should be assessed. Finally, the judge described to the panel the questions the jury would be required to answer.

During Villamayor's individual questioning, the prosecutor first went through several answers she had given on her questionnaire indicating that she was morally opposed to the death penalty. The prosecutor also noted responses in which Villamayor had indicated that she believed that there were circumstances in which the death penalty was appropriate. However, in response to specific questioning, Villamayor commented that killing just two individuals was not such a case. Rather, Villamayor stated that she felt the death penalty was appropriate only in such cases as when a person “kill[ed] a whole village.”

The prosecutor then reminded Villamayor of the judge's instructions and explanations two weeks earlier and proceeded to expand upon the procedure followed in the punishment phase of a capital trial, the meanings of the questions asked, and the law involved.FN3 As the prosecutor explained the mitigation question and asked the venireperson questions concerning it, the following exchange occurred: FN3. Before a veniremember can be properly challenged for cause, the law must be explained to her and she must be asked whether she can follow that law regardless of her personal views. See Jones, 982 S.W.2d at 390.

[PROSECUTOR:] [A]re you of such a nature, ma'am, that you will almost always answer this [mitigation question] yes because then you know the person probably would receive a Life Sentence? Are you in that category, or would you go ahead and look at it and then answer it appropriately? * * * MS. VILLAMAYOR: I would probably be in that category. [PROSECUTOR:] That you would automatically answer it? MS. VILLAMAYOR: Yes, I think I would. [PROSECUTOR:] Are your—are your feelings about the Death Penalty, is that the reason why you would probably automatically always find mitigating circumstances? MS. VILLAMAYOR: Yes. * * * [PROSECUTOR:]—are your beliefs so strong, ..., you are going to have problems setting them aside? MS. VILLAMAYOR: I believe they are. [PROSECUTOR:] Do you think—let me ask you one last time in regard to—and in a different fashion so that we are clear and there is no conflict here. Do you—do you believe that your personal opinions, your personal beliefs about the Death Penalty, being opposed to it, is going to substantially affect you in answering this question regarding mitigating circumstances? MS. VILLAMAYOR: Yes.

The prosecutor then challenged Villamayor for cause and the judge passed her to the defense for questioning. During defense counsel's questioning, Villamayor continued to state that her beliefs would influence her judgment and she was not sure that she could be open-minded during the process. Given the totality of the voir dire, the trial judge was within his discretion in determining that Villamayor's views on capital punishment were such that they would have prevented or substantially impaired the performance of her duties as a juror in accordance with her instructions and her oath. Wainwright, supra; see also Colburn v. State, 966 S.W.2d 511, 518 (Tex.Crim.App.1998). Point of error three is overruled.

Appellant asserts in his fourth and fifth points of error that the trial court erred in overruling his Batson challenge to the State's use of peremptory strikes on prospective jurors J. Grooms and M. Adams.FN4 See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Under Batson, a defendant must initially establish a prima facie showing of racial discrimination in the State's exercise of its peremptory strikes. The burden then shifts to the State to articulate race-neutral explanations for its questioned strikes. Once the prosecutor has articulated race-neutral explanations, the burden shifts back to the defendant to show that the explanations are really a pretext for discrimination. FN5 The trial court must then determine whether the defendant has carried his burden of proving racial discrimination. The trial court's determination is accorded great deference and will not be overturned on appeal unless it is clearly erroneous. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000).

FN4. At trial appellant challenged nine of the State's strikes, but on appeal he complains only about the strikes to Grooms and Adams. FN5. Once the responding party has offered a race-neutral explanation for a peremptory challenge and the trial court has ruled on the ultimate question of purposeful discrimination, the preliminary issue of whether the party raising the Batson challenge made a prima facie case becomes moot. See Malone v. State, 919 S.W.2d 410, 412 (Tex.Crim.App.1996).

During the Batson hearing in the instant case, the prosecutor explained that he had struck venireperson Grooms because she had indicated that she was in favor of the death penalty only in those instances where the defendant requested the death penalty and the crime was of the most violent nature. She also noted that she felt the death penalty was imposed too often and that Texas had put a lot of people to death. With regard to prospective juror Adams, the prosecutor told the judge that he had struck her because she had indicated that she needed proof beyond any doubt and because she had two children, one of whom was about appellant's age.

The trial court then gave appellant an opportunity to rebut the prosecutor's explanations. Appellant responded by stating that the prosecutor used his strikes in a improper manner and that this was the most blatant violation of due process he had seen in twenty-three years of practicing law. The trial court overruled the Batson claim.

The State's explanations were facially race-neutral and appellant did not point to any evidence of pretext. The trial court did not abuse its discretion in finding that appellant failed to carry his burden of showing purposeful discrimination. See Pondexter, v. State, 942 S.W.2d 577, 581–82 (Tex.Crim.App.1996)(defendant's rebuttal insufficient to establish State's explanations were pretext); Chambers v. State, 866 S.W.2d 9, 25 (Tex.Crim.App.1993)(“absent some other evidence which rebuts the State's race-neutral explanation, we will not disturb the trial court's finding that the State's explanation is legitimate”). Appellant's fourth and fifth points of error are overruled.

In his sixth point of error, appellant claims the trial court erred in refusing to instruct the jury on the lesser-included offense of manslaughter in the death of Daniel Hibbard, the second victim named in the indictment. He asserts that a finding that he was guilty of a lesser degree of criminal homicide in Hibbard's case would necessarily negate one of the elements required to convict him of capital murder. He contends that the evidence raising the issue of whether he was guilty of the lesser degree of criminal homicide came from his own testimony. Specifically, appellant repeatedly denied during his testimony that he had intended to kill anyone. He claimed that he killed Brown in self-defense and then just pulled the trigger in a panic when Hibbard turned around, but insisted he was acting recklessly and not intentionally.

To determine whether a charge on a lesser-included offense should be given, this Court has implemented a two-step test. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); Royster v. State, 622 S.W.2d 442, 444 (Tex.Crim.App.1981) (plurality opinion). The first step is to decide whether the offense is a lesser-included offense of the offense charged. See Article 37.09; see also, e.g., Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Aguilar, 682 S.W.2d at 558. We have recognized that manslaughter is a lesser-included offense of capital murder. See Cardenas v. State, 30 S.W.3d 384, 392–93 (Tex.Crim.App.2000). Hence, the first prong of the test is satisfied.

The second step of the Aguilar/Rousseau test requires an evaluation of the evidence to determine whether there is some evidence that would permit a jury rationally to find that the defendant is guilty only of the lesser offense. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998); Rousseau, 855 S.W.2d at 672. In other words, there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense. Moore, 969 S.W.2d at 8. The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113–14 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001); Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App.1997).

Contrary to appellant's claim that he shot Brown in self-defense, the medical examiner testified that Brown had suffered two bullet wounds to the head, one of which entered from the back. The evidence of appellant's actions following Brown's shooting reflected that he was calm and calculated, not that he was panicked or frightened. He shot Almaguer between the eyes and Hibbard in the head. Although appellant claimed he acted “recklessly” with the gun and did not intend to kill anyone, his testimony about the shootings was fraught with inconsistencies. For example, he vacillated between insisting he had not aimed the gun when shooting and stating that he had indeed aimed and shot:

I did not actually know at the time that I was—I was shooting [Almaguer]. I did aim the gun and pull the trigger, but I never meaned [sic]—I just shot. I never aimed it or anything. It just hit her.... I never said I didn't aim the gun and pull the trigger. I have been telling you the whole time that I did aim the gun and pull the trigger .... after they started hollering and screaming, then I went in there and that's when I aimed and pulled the gun and pulled the trigger.... I said I pointed the gun—I said I pointed it—I aimed—I didn't mean to just point it.... I just pointed it and shot.... I just pointed the gun and shot. I wasn't even really just looking ... when I shot the gun, but I did aim it over there. I wasn't never even looking ... I just pulled the trigger.... I just closed my eyes and shoot [sic].

Appellant's testimony that he did not intend to kill anyone does not amount to evidence upon which a jury could rationally find appellant only acted recklessly with respect to killing Hibbard, and not intentionally. Appellant had already shot and killed Brown with two shots to the head. He admitted to aiming and firing the gun. With four shots, he killed two people and hit the third between her eyes. Those who saw him testified his actions were calm and collected. In a similar case, Wesbrook v. State, 29 S.W.3d 103 (Tex.Crim.App.2000), the defendant killed five people. He sought an instruction on a lesser-included offense of aggravated assault. We upheld the trial court's refusal of the instruction:

The evidence must establish the lesser-included offense as a valid alternative to the charged offense. In the instant case, the trial record shows appellant acted intentionally, or at the least, knowingly, when he walked into an apartment armed with a high-powered rifle. He fired a single shot at close range into the chest of the first victim, a highly vulnerable part of the body. After witnessing the damage that resulted from his actions, appellant continued to fire the weapon, again at close range, into four more individuals, choosing as his target, either their head, chest, or abdomen. Physical evidence from the scene and the condition of the bodies suggest that one victim was shot as he attempted to escape from the apartment and another was shot while on his knees. The only contrary evidence that this was not an intentional or knowing act is appellant's own assertion that he did not intend to kill. Given the state of the entire record, this was not evidence from which a jury could rationally conclude that appellant was guilty only of aggravated assault. Wesbrook, 29 S.W.3d at 113–14 (emphasis added); see also Jackson v. State, 992 S.W.2d 469, 475 (Tex.Crim.App.1999) (not entitled to instruction on the lesser-included offense of aggravated assault when evidence showed appellant, at least, guilty of homicide). Apart from appellant's own testimony that he did not intend to kill anyone, there was no other evidence in support of such theory, and in fact the evidence refuted that testimony. We hold appellant's testimony does not supply evidence upon which a jury could rationally find appellant's actions toward Hibbard were merely reckless and were not at least knowing. Hence, appellant has failed to satisfy the second prong of the Aguilar/Rousseautest. Appellant's sixth point of error is overruled.

In his seventh point of error, appellant complains that “[t]he prosecutor committed reversible error when he referred to [a]ppellant in final argument as a ‘despicable piece of human trash.’ ” Appellant failed to object at trial to the prosecutor's arguments, however, and therefore forfeited his right to complain about this issue on appeal. Tex.R.App. P. 33.l; Ladd v. State, 3 S.W.3d 547, 569 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Appellant urges us to overrule Cockrell v. State, 933 S.W.2d 73 (Tex.Crim.App.1996), in which we held that a defendant must pursue to an adverse ruling his objections to jury argument. Appellant argues that such inflammatory, prejudicial statements cannot be cured by an instruction to disregard, and thus it would be pointless to object in order to secure an ineffective instruction. But even if an the error was such that it could not be cured by an instruction, appellant would be required to object and request a mistrial. Nonetheless, we decline to overrule Cockrell, a case perfectly in line with Rule of Appellate Procedure 33.1 and the policies underlying preservation of error. Point of error seven is overruled.

In his eighth point of error, appellant claims his trial counsel failed to render effective assistance by neglecting to object to the prosecutor's comments during final argument concerning his non-testimonial courtroom demeanor.

To show an ineffective assistance of counsel claim, an appellant must first demonstrate that his trial counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)(adopted by this Court in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986)). Second, he must also show that his counsel's deficient performance was so serious that it prejudiced his defense, rendering the trial unfair and the verdict suspect. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). In other words, appellant must show by a preponderance of the evidence that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and that this deficient performance rendered the result of the proceeding unreliable. Strickland, supra; McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). Appellant made no effort to prove the prejudice prong under Strickland. Ladd v. State, 3 S.W.3d 547, 570 (Tex.Crim.App.1999); Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App.1999). Point of error eight is overruled.

In his ninth point of error, appellant claims the trial court erroneously overruled his objection to “victim impact” testimony concerning surviving victim Almaguer. Appellant relies on Cantu v. State, 939 S.W.2d 627 (Tex.Crim.App.1997), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997) as support for his claim. FN6. Although appellant discusses Cantu, he does not actually develop an argument regarding the admission of the evidence.

In Cantu, supra, the defendant was involved in the kidnaping, rape and murder of two girls in the same criminal episode. During the punishment phase of his trial for the kidnaping, rape and murder of one of the girls, the State presented testimony from the mother of the second victim regarding her daughter's good character, the family's search for her, and the impact of the crime on the family. The defendant objected that this “victim impact” evidence regarding a victim not named in the indictment was not relevant to the special issues, and that it was more prejudicial than probative. Id. at 636. We agreed that the evidence as to her good character, activities she enjoyed, and the impact of her death on her family was not relevant as appellant was not on trial for her murder and such evidence served no purpose other than to inflame the jury. We held such evidence to be irrelevant and highly prejudicial. Id. at 637.

The testimony at issue in the present case, however, is distinguishable from that evidence which was at issue in Cantu.

During the punishment phase of appellant's trial, the State called Janelle Manning, a nurse who had been caring for Almaguer for approximately four months, to testify. Appellant objected, arguing that although the testimony of Manning was relevant, he felt that the prejudicial effect of the testimony far exceeded its probative value. The State, in response to appellant's objection, argued that it would only be asking Manning to testify about the medical care provided to Almaguer on a daily basis and the things that were done in order to keep Almaguer alive. The trial court agreed to allow Manning to testify, however, it limited the testimony to the technical procedures required in the day-to-day care of Almaguer, while expressly curtailing any testimony regarding the psychological impact of Almaguer's paralysis, or any testimony pertaining to her feelings of pain.

In Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999), we discussed the meaning of “victim impact” and “victim character” evidence. We explained that “victim impact” evidence is evidence that is “generally recognized as evidence concerning the effect that the victim's death will have on others, particularly the victim's family members.” Id. at 261. “Victim character” was defined as evidence that is “generally recognized as evidence concerning good qualities possessed by the victim.” Id.

The testimony at issue here does not fall under either category of victim-related evidence. Unlike in Cantu, in which the evidence involved testimony regarding both the victim's good qualities and the effect that her death had on family members, the testimony in the present case did not involve testimony about how third persons were affected by the crime, nor was there any discussion about the character of the victim. Manning's testimony focused solely on the medical procedures involved in the care of Almaguer. Appellant's characterization of Manning's testimony as victim impact evidence is incorrect. Point of error nine is overruled.

Appellant's conviction is affirmed.JOHNSON, J., joined the majority except as to point nine and filed a concurring opinion.COCHRAN, J., filed a concurring opinion joined by WOMACK, HERVEY, HOLCOMB, JJ.

JOHNSON, J., filed a concurring opinion.

I join the majority, except as to point of error nine, and concur in that point. Melanie Almaguer was both a witness to the offense charged in the indictment before the jury and the victim of an offense not charged in it. Her testimony was appropriate during the guilt/innocence phase as to guilt and during the punishment phase as to future dangerousness. Her testimony and obvious physical condition were probative of those two issues. However, the intimate details of her daily life, which were introduced through the testimony of Janice Manning, had no such probative value. It seems to me that such evidence is not admissible, not because it is non-victim “victim-impact” testimony, but because it is irrelevant to the issue of future dangerousness and cumulative of the testimony of Melanie Almaguer.

Ms. Almaguer testified that appellant had fired a bullet into her head at close range and that the bullet had passed through her forehead and mouth and had lodged in her shoulder, where it remains. She testified, and the jury could see, that she is permanently paralyzed from the neck down. A reasonable juror would infer that “permanently paralyzed from the neck down” means that she had lost control of all bodily functions in that area of her body. The reasonable juror would then conclude that those functions would have to be attended to by another. The precise details of what that care required was not probative as to future dangerousness, but could be highly prejudicial.

The facts which are probative of future dangerousness are that appellant killed Brown and Hibbard, then shot Ms. Almaguer at close range, apparently without provocation, and that he chose to shoot her in the head, a wound which had a high probability of death or serious permanent disability. He intended her death. Manning's testimony added nothing substantive to that discussion. I would hold that admission of her testimony was error.

That said, I believe that the admission of Manning's testimony was harmless in this case. The facts of the case may be sufficient to establish future dangerousness. Allridge v. State, 850 S.W.2d 471, 488 (Tex.Crim.App.19991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). Beside the mere facts of the case, the state called at the punishment phase nine witnesses who testified that appellant has a history of violent behavior dating back to high school and continuing to the time of trial. There was testimony that appellant has engaged in violent behavior both in free society and while in custody. Given the other punishment evidence, it is probable that Manning's testimony, while inflammatory and irrelevant, had but a slight effect on the jury's decision.

The rest of the question of harm is the effect of the use of Manning's testimony during closing statements, during which the prosecutor urged the jury to remember the intimate details of Ms. Almaguer's toileting needs when it considered the issue of future dangerousness. Such details were irrelevant to future dangerousness and appear to be intended to inflame the emotions of the jurors. I would hold that such argument was error. Again, given the facts of the case and the evidence presented at punishment, I would find the error harmless in this case.

COCHRAN, J., filed a concurring opinion in which WOMACK, HERVEY, and HOLCOMB, JJ., joined.

I join the majority opinion in every respect. I add this concurrence for two reasons. First, I respectfully disagree with Judge Johnson's concurrence insofar as she concludes that Ms. Manning's evidence was erroneously offered and admitted on the punishment issue of “future dangerousness.” Second, I think we should distinguish “victim impact” evidence which concerns the emotional consequences upon the crime victim's relatives from “victim impact” evidence which concerns the physical or psychological consequences of the defendant's conduct upon a crime victim himself.

Nothing in the record suggests that the State offered Ms. Manning's testimony during the punishment phase of this capital murder trial solely on the issue of appellant's future dangerousness. Clearly, this evidence was also relevant FN1 under article 37.071(e)(1) as evidence militating against appellant's mitigation question.FN2 I cannot conclude that the permanent paraplegic injuries that fifteen-year-old Melanie Almaguer suffered, including the impact of those physical injuries upon her daily life, are not relevant “circumstances of the offense” with which to assess appellant's moral culpability for this crime. In assessing a defendant's moral culpability, it is highly probative that the child he attempted to murder, by shooting her in the head at close range will, for example, be confined to a wheelchair for the rest of her life, just as it is relevant that she will be required to wear diapers, be lifted into a bathtub, and never be able to bear children. If, in assessing the defendant's moral culpability, the jury is entitled to consider the defendant's difficult childhood, why then should it not be entitled to consider the difficult adulthood that his victim will suffer as a direct consequence of his criminal actions?

FN1. Indeed, at trial, appellant's counsel admitted the relevance of this evidence. He argued that the trial court should have excluded the evidence as unfairly prejudicial under rule 403. However, a defendant may not claim that the consequences of his conduct were so gruesome that the jury should not hear or see of those consequences. As this Court stated in Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App.1995): The photographs are gruesome. That is to say, they are disagreeable to look at, but they depict nothing more than the reality of the brutal crime committed. The photographs are powerful visual evidence, probative of various aspects of the State's theory of the offense including the brutality and heinousness of the offense. Appellant must realize that it is precisely the quality which we describe as “powerful” which gives rise to his arguments that the photographs are prejudicially inflammatory. But when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence. See also, Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). FN2. Tex.Code Crim. Proc. art. 37.071(e)(1) sets out the defendant's mitigation question: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. (emphasis added).

Judge Johnson states that the jury properly heard that appellant “intended her [Ms. Almaguer's] death. Manning's testimony [regarding Melanie Almaguer's injuries and care] added nothing substantive to that discussion.” FN3 I cannot agree. The actual physical consequences of the injuries appellant inflicted, as well as their continuing physical impact upon one of his chosen victims, are probative of his moral culpability, as is the fact that he intended to kill her. FN3. Ante at 921.

Moreover, there is an important legal and factual distinction between “victim impact” testimony and testimony that shows the actual physical disabilities and impairments suffered by a person as a result of the defendant's criminal conduct. The expression “victim impact” testimony has become a legal term of art in capital murder jurisprudence. According to the Supreme Court, “victim impact” evidence may be admitted in a capital murder prosecution to show the victim's “uniqueness as a human being.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Such evidence is admissible at the punishment stage because: “the state has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family....” Id.

The objected-to evidence in this case, however, was not that type of “victim impact” testimony. Instead, it was the testimony of Ms. Almaguer's nurse, who explained how this young girl's physical abilities had been drastically and permanently affected by appellant's act of shooting her in the head. Ms. Almaguer is permanently paralyzed; she has lost most of her normal bladder and bowel functions; she must be catheterized every few hours; she must have special “bladders” positioned and repositioned on her chair throughout the day to avoid bedsores; and she must take a variety of medications to control muscle spasms, and to ward off possible renal failure and neurological problems.

In Miller–El v. State, 782 S.W.2d 892, 894–95 (Tex.Crim.App.1990), a non-capital case, this Court found that a doctor's testimony, which was exactly analogous to the nurse's testimony in this case, was both relevant and admissible at the punishment stage. In Miller–El, the doctor's testimony was summarized as follows:

[Dr.] Harrison outlined for the jury the “special needs” that “[a] spinal chord [sic] patient, as we call them, ... will have ... related to their injury for the rest if their life.” He testified that as a result of his paralysis, Hall will never regain bladder and bowel control. Nor will he ever recover sexual and procreative functions. He will be required to maintain a constant vigilance to prevent infection and bed sores. Recurring spasticity may ultimately deprive him even of the use of a wheelchair. 782 S.W.2d at 894. This Court held that evidence of the extent of a victim's physical injuries and future physical impairment is admissible as a circumstance of the offense “so long as a factfinder may rationally attribute moral culpability to the accused for the injury.” Id. at 896; see also Stavinoha v. State, 808 S.W.2d 76, 78–9 (Tex.Crim.App.1991) (in aggravated sexual assault case, testimony of psychological trauma suffered by child victim and physical manifestations of that trauma was properly admitted). Surely, this jury could rationally attribute moral culpability to appellant for the permanent physical injuries he inflicted upon Ms. Almaguer by shooting her in the head. I fail to understand why one would hold this evidence, a shooting victim's future physical impairment, admissible in a non-capital case, but inadmissible in a capital murder punishment hearing under a theory that it either lacks any probative value or that it is substantially more prejudicial than probative.

Just as civil courts distinguish between subjective “mental anguish” and “pain and suffering” on the one hand, and objective “physical impairment” on the other hand, so too can judges in criminal cases distinguish between a victim's (or his family's) mental anguish and his or her physical disabilities. The former, because they are so purely subjective and incapable of objective demonstration, are much more likely to be unfairly prejudicial.

Sometimes both kinds of “victim impact” evidence, both subjective emotional injuries and objective physical disabilities, are highly probative and admissible. At other times, it is appropriate for a court to exercise its discretion to exclude the emotional impact evidence while admitting the evidence of physical repercussions. This trial judge did the latter, by admitting evidence of Ms. Almaguer's physical injuries and future physical impairment, but excluding the more subjective evidence of her emotional trauma. I do not fault him in the least.

With these comments, I join the opinion of the Court.

Mathis v. Dretke, 124 Fed.Appx. 865 (5th Cir. 2005) (Habeas)

Background: Defendant convicted of capital murder and sentenced to death, affirmed at 67 S.W.3d 918, petitioned for a writ of habeas corpus. The United States District Court for the Southern District of Texas denied relief, and defendant appealed, seeking a certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) district court lacked the power to extend the time to file a notice of appeal after denying habeas relief; (2) failure to hold a live evidentiary hearing before recommending that defendant be denied habeas relief was not a violation of his due process rights; (3) refusal to instruct the jury on the lesser included offense of manslaughter did not violate the defendant's constitutional rights; (4) trial court did not violate defendant's due process rights in failing to conduct a competency hearing sua sponte; (5) evidence that may have been improperly withheld by the State was not material for Brady purposes; and (6) defendant was not denied effective assistance of counsel. Denied.

PER CURIAM:

Petitioner-Appellant Milton Mathis (“Mathis”) was convicted of capital murder and sentenced to death for the 1998 murder of Travis Brown and Daniel Hibbard. He now seeks a certificate of appealability (“COA”) from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We deny Mathis' request for a COA on each issue.

FACTUAL AND PROCEDURAL HISTORY

A grand jury indicted Mathis for the capital murder of more than one person during the same criminal transaction under Texas Penal Code § 19.03(a)(7). Mathis was represented at trial by Steven Rosen and Pheobe Smith (hereinafter “trial counsel”). The Texas jury found Mathis guilty of capital murder as charged in the indictment and further answered Texas' special issues in a manner that required imposition of a death sentence. As summarized by the Texas Court of Criminal Appeals on direct review, the facts are as follows:

On December 15, 1998, at approximately 8:00 or 8:30 a.m., Esmerelda Lester and her 15-year old daughter Melanie Almaguer went to Chris Lentsch's home [a known drug house]. Lentsch rented rooms to Travis Brown and Daniel Hibbard. Brown and appellant were in Brown's room. While Lester, Almaguer and Hibbard sat in Lentsch's room, Lentsch went into the kitchen. Shortly thereafter, Lentsch heard gunshots from Brown's room and turned to see appellant exiting the room with a gun in his hand. Appellant claimed that Brown had just shot himself. Lentsch told appellant to put the gun down, but appellant ordered Lentsch and the other three back into Lentsch's room where he calmly walked up to Almaguer and shot her in the head, leaving her alive, but paralyzed from the neck down. Appellant then shot Hibbard in the head, causing his death. Appellant finally pointed the gun at Lester, whereupon he discovered that he was out of bullets. Appellant thereafter rummaged through the house, set fire to Brown's room, threatened Lester and Lentsch, and finally left in Brown's car.

The police identified appellant as the killer and went to arrest him. Upon being arrested, appellant became violent. Officers discovered that appellant had told his father to lie for him and had persuaded his girlfriend to give him an alibi, which she maintained until confronted by the police. A fellow inmate testified that appellant showed no remorse for the shootings and stated that he wished he had killed them all. Appellant took the stand and at first testified that although he had been to the house earlier, he was not there on the morning of the shootings. After defense counsel requested a recess, appellant took the stand and stated that he had lied in his previous testimony. He then testified that he was at the house at the time of shootings, and admitted that he had shot all three people and taken Brown's car. Appellant claimed he shot Brown in self-defense after Brown had threatened to shoot him. He claimed that he shot the others because he panicked after shooting Brown. Mathis v. State, 67 S.W.3d 918, 921 (Tex.Crim.App.2002) (footnote omitted).

On February 13, 2002, Mathis' conviction and sentence were affirmed on automatic direct appeal to the Texas Court of Criminal Appeals. Id. at 928. Mathis did not seek certiorari review in the Supreme Court. Mathis' state habeas proceedings were held concurrent to his direct appeal. The trial-level state habeas court issued findings of fact and conclusions of law recommending that Mathis' state habeas application be denied. On April 3, 2002, the Court of Criminal Appeals adopted the lower court's findings and conclusions and denied habeas review. Ex parte Milton Wuzael Mathis, No. 50,722-01 (Tex.Crim.App. April 3, 2002) (unpublished). On the same day, Mathis filed his application for a federal writ of habeas corpus in the Southern District of Texas, raising six points of error. Concomitantly, Mathis filed a successive state habeas petition asserting a claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). His successive state habeas petition was dismissed by the Court of Criminal Appeals because a federal proceeding was pending. See Ex parte Soffar, 120 S.W.3d 344 (Tex.Crim.App.2003) (noting Texas' long standing practice, based on abstention doctrine, of dismissing a second state habeas application if there is a pending federal proceeding). On February 2, 2004, the federal district court denied relief and denied COA sua sponte. Mathis v. Dretke, Civil No. H-03-CV-1138 (S.D.Tex. Feb. 6, 2004) (unpublished). Mathis submitted a motion for new trial and for abatement in the federal district court, requesting reconsideration and that the district court suspend federal proceedings pending completion of state proceedings. See Ex parte Soffar, 143 S.W.3d 804 (Tex.Crim.App.2004) (holding that a successive state habeas petition may be considered if any concurrent federal proceedings are stayed pending completion of state proceedings). The district court denied his motion. Mathis now seeks a COA from this court.

STANDARD OF REVIEW

Mathis filed a notice of appeal in the instant case after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEPDA”) therefore, his right to appeal is subject to the AEDPA's amended version of 28 U.S.C. § 2253. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (stating that AEDPA applies to all habeas petitions pending after April 24, 1996).

Before an appeal may be entertained, a prisoner who was denied habeas relief must first obtain a COA from a circuit judge. Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Id. at 336, 123 S.Ct. 1029. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [ ] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 337, 123 S.Ct. 1029. At the COA stage, we do not apply the deferential AEDPA standard of review, found in 28 U.S.C. § 2254, for the merits of the habeas petition. Id. at 342, 123 S.Ct. 1029 (“Before the issuance of a COA, the Court of Appeals had no jurisdiction to resolve the merits of petitioner's constitutional claims.”). Thus, our immediate task is to determine, not the ultimate merits of Mathis' claims, but only whether Mathis has demonstrated that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595).

DISCUSSION

We turn first to Mathis' claim that the district court erred in denying his motion to stay proceedings. A COA is not a prerequisite to review the denial of a motion to stay proceedings. See 28 U.S.C. § 2254(a) (permitting federal courts to entertain applications for writ of habeas corpus for relief from a “judgment of a State court”); see also Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir.2002) (stating that a COA is not required when an appeal does not implicate the merits of a district court's denial of a habeas petition). Accordingly, we may consider the merits of Mathis' claim. A district court's refusal to grant a stay in a habeas proceedings is reviewed for abuse of discretion. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir.1998) (citation omitted).

Because Mathis submitted his motion to stay proceedings after the final judgment dismissing his habeas petition, the district court concluded that the only matter left for it to stay was the time to file a notice of appeal. The district court held that it did not have the power to extend the time to file a notice of appeal indefinitely. We agree. Notwithstanding Mathis' status as a prisoner, a federal habeas proceeding is a civil proceeding, Wilkens v. Johnson, 238 F.3d 328, 330 (5th Cir.2001), therefore, it is subject to Rule 4(a) of the Federal Rules of Appellate Procedure. Rule 4(a)(5) constrains the district court's ability to extend the time to file a notice of appeal to either “30 days after the prescribed time or 10 days after the date when the order granting the motion is entered.” Fed. R.App. P. 4(a)(5). To allow the district court to extend the time to file a notice of appeal for an indeterminate period, which is essentially what the district court would do if it granted a stay in this situation, would be wholly inconsistent with the language of the rules requiring an expeditious filing of a notice of appeal. Accordingly, it was not an abuse of discretion for the district court to deny Mathis' motion to stay proceedings.

We now turn to the other issues Mathis raises in his application for a COA, specifically, he raises five errors: that (1) the refusal to conduct a live evidentiary hearing in the state habeas proceeding violated his due process rights and interfered with the district court's ability to perform its function under § 2254; (2) the trial court violated his constitutional rights by refusing to give an instruction of manslaughter with respect to the killing of Daniel Hibbard; (3) the trial court erred in failing to conduct a competency hearing sua sponte at trial; (4) the prosecution violated his due process rights by withholding impeachment evidence relating to the State's witness Gregory Jackson; and (5) his trial counsel's representation at trial was ineffective and resulted in actual prejudice at his trial and sentencing. For the following reasons, we deny Mathis' request for a COA.

I. Live Evidentiary Hearing

Mathis' raises two claims, which we have consolidated here, concerning the state habeas court's failure to hold a live evidentiary hearing before recommending that he be denied relief. Mathis argues that the failure to hold a live evidentiary hearing was a violation of his due process rights. Moreover, he contends that the inadequacies in the record interfered with the district court's ability to apply the proper review under § 2254. This latter argument seems to be related to the district court's duty, under § 2254, to afford a presumption of correctness to a State court's determination of a factual issue. See 28 U.S.C. § 2254(e)(1). Stated another way, Mathis seems to argue that without a full hearing in the state court, the district court could not assume the state court's findings were correct and thereby, must conduct plenary review of the factual issues. Mathis argues that important factual issues still needed to be developed and absent a live hearing, the state court did not provide a sufficient record on which the district court could evaluate Mathis' arguments.

The district court concluded that Mathis did not exhaust his constitutional claim, that the denial of an evidentiary hearing violated his due process rights, in state court. Despite finding that Mathis' claim was procedurally barred, the district court nonetheless went on to consider the merits. The district court held that complaints about state habeas proceedings are not a basis for federal habeas relief and notwithstanding, the federal courts do not have the power to grant the relief Mathis sought, namely, ordering that state evidentiary proceedings be conducted. In addition, the district court rejected Mathis' argument that ADEPA's deferential review is applied only after state courts have conducted a full and fair hearing.

Mathis argues that in his “motion for hearing on issues raised in writ of habeas corpus,” presented to the state habeas court, he stated that a denial of a hearing on the issue of ineffective assistance of counsel would be a due process violation. In addition, he asserts that he clearly indicated in the motion that his arguments were based on the Eighth and Fourteenth Amendments. Even assuming arguendo that Mathis' claim was exhausted in state court, we are not persuaded that a COA should be issued. It is well established that “infirmities in state habeas proceedings do not constitute grounds for federal habeas relief. We look only to the trial and direct appeal.” FN1 Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992). Moreover, Mathis' argument that any deficiencies in the record impeded the district court's ability to apply deferential review pursuant to § 2254, fails to recognize that ADEPA “jettisoned all references to a ‘full and fair hearing’ from the presumption of correctness accorded state court findings of fact.” Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir.2001). There is no requirement that a full and fair hearing be conducted before the district court may afford deference to the state court's factual findings.

FN1. Mathis unsuccessfully tries to distinguish Duff-Smith, supra, and Henderson v. Cockrell, 333 F.3d 592 (5th Cir.2003), by noting that, as opposed to the present case, federal court hearings were conducted in those cases. However, we find that distinction inconsequential. Furthermore, while we may agree with the premise of Mathis' statement that a fair hearing should not be trivialized as an “infirmity,” we feel his argument overlooks the core of the holding in Duff-Smith and Henderson, namely, that on habeas review we look to only the trial and direct appeal.

II. Lesser Included Offense Instruction

Next, Mathis argues that the trial court violated his constitutional rights by refusing to give an instruction to the jury on the lesser included offense of manslaughter with respect to the death of Daniel Hibbard, in accordance with Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The Supreme Court in Beck held that a death sentence imposed after a conviction of a capital offense is unconstitutional where the jury was prohibited from considering a verdict of guilty of a lesser included offense. “Subsequent decisions by this court have consistently held that a state trial court may not, under Beck, refuse a lesser-included-offense instruction if the jury could rationally acquit on the capital crime and convict for the noncapital crime.” East v. Scott, 55 F.3d 996, 1005 (5th Cir.1995) (internal quotation marks and citations omitted).

During the trial, Mathis testified that he shot Brown in self-defense because Brown was threatening to shoot him. He alleged that after he shot Brown, everyone else present in the house began “hollering and screaming.” Mathis stated at trial that “I never aimed the gun. I just walked in there and heard them all screaming, and I was just pointing the gun and pulled the trigger. So I never aimed. I am not a target-or nothing like that sir. I don't know how to shoot a gun like that ... I didn't-I didn't mean to hurt nobody, sir. I'm not a killer, sir.' ” Mathis' trial counsel argued that Mathis' testimony demonstrated a mental state of recklessness in the killing of Hibbard and therefore, a manslaughter instruction should be given. Mathis' testimony went against the great weight of the evidence and the surviving eyewitnesses' testimony that he was calm and calculated when he shot Hibbard. The trial court denied trial counsel's request; instead the trial court instructed the jury it could return a conviction of capital murder or murder.

In Beck, the Supreme Court invalidated an Alabama statute that prohibited the trial court from giving a lesser included offense instruction in a trial for a capital crime. As the Supreme Court later explained in Schad v. Arizona, Beck sought to prevent a scenario where a jury, convinced that a defendant was guilty of a serious, violent crime but not sure that he was guilty of a capital crime, was faced with a situation where they had to vote for a capital conviction or let the defendant go free. 501 U.S. 624, 646, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (quotation marks omitted).

‘[O]n the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason-its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty [in Alabama] may encourage it to acquit for an equally impermissible reason-that, whatever his crime, the defendant does not deserve death.... [T]hese two extraneous factors ... introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.’ We repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented.... As we later explained in Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), ‘[t]he absence of a lesser included offense instruction increases the risk that the jury will convict ... simply to avoid setting the defendant free.... The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.’ This central concern of Beck simply is not implicated in the present case, for petitioner's jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence. Id. at 646-47, 111 S.Ct. 2491 (internal citations omitted).

In Schad, the trial court gave a jury instruction for the non-capital offense of second-degree murder. The petitioner argued that the jury should have been given an instruction for simple robbery. The Schad Court rejected the petitioner's argument, concluding that as long as the jury had an option other than capital conviction or acquittal, even if that third option was second-degree murder and not robbery, the jury's capital murder verdict did not implicate a Beck violation. Id. at 647, 100 S.Ct. 2382.

Here, the jury found Mathis guilty of capital murder under Texas Penal Code § 19.03(a)(7) for the murder of more than one person during the same criminal transaction. Mathis argues that a capital murder charge under § 19.03(a)(7) is really two murder convictions plus an affirmative finding of the same transaction. He argues that Beck must be applied to each homicide in his capital murder charge. He contends that the jury was faced with the all or nothing dilemma of either convicting Mathis under a higher mental state for Hibbard's murder or letting him go free for that killing, and thereby, under Beck, the trial court violated his constitutional rights when it did not allow the jury to consider the lesser included offense of manslaughter as to Hibbard. A finding of recklessness as to the killing of Hibbard would necessarily negate one of the elements required to convict him of capital murder.FN2

FN2. Mathis also argues that the jury charge presented a problem akin to the one in Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), in that, without a manslaughter instruction, jurors who did not believe that one murder conviction fully addressed the fact of two killings would have to nullify a truthful finding that the petitioner killed Hibbard in order to compromise on a verdict which only held him accountable for the murder of Brown. However, the jury instruction here was not internally contradictory nor did it present the ethical dilemma faced by jurors instructed under the unconstitutional charge in Penry. We therefore reject this argument.

The Court of Criminal Appeals rejected Mathis' argument because it held that his trial testimony alone did not present enough evidence for the jury to rationally find that his shooting of Hibbard was simply reckless. The Court of Criminal Appeals held that a lesser included offense instruction should only be given by a trial court where a valid rational alternative to a capital conviction can be found in light of all the evidence. The district court affirmed, holding that the state court ruling was not contrary to, or an unreasonable application of, federal law. In addition, the district court read Beck as prohibiting a situation where the jury was faced with only two choices, either convict the defendant of a capital offense or acquit. Under that interpretation, no constitutional violation occurs if the trial court provided the jury with the option of convicting the defendant of a non-capital offense. Because, the jury was given the option of convicting Mathis of a non-capital offense, the district court concluded no constitutional violation occurred, even if the trial court denied a specific lesser-included offense instruction. We agree with the district court's latter conclusion.

The crux of Mathis' argument is parallel to that presented by the petitioner in Schad. Id. at 646-48, 100 S.Ct. 2382. The petitioner there was charged with murder committed during the course of a robbery, a capital offense, but he maintained that he was guilty of only simple robbery. The jury was instructed on capital murder and second-degree murder. Schad argued that if the jury believed his defense theory, and thought him guilty of only robbery, there was no verdict through which they could express that view; the jury was therefore faced with either convicting him of murder or letting him go free. The Supreme Court rejected the petitioner's argument that “the jurors should have been given the opportunity to return a verdict in conformity with their reasonable view of the evidence.” Id. at 647, 100 S.Ct. 2382 (internal quotation marks and citation omitted). The assertion that a petitioner is entitled to instruct the jury on every lesser included offense supported by the evidence, the Schad Court said, is a misapprehension of the constitutional principles in Beck. Id. at 646, 100 S.Ct. 2382. Instead, the Schad Court reiterated that the goal of Beck was to eliminate an all or nothing choice between capital conviction or innocence. Id.

Here, the trial court gave instructions as to capital murder, murder, and self-defense. Thus, the jury was not faced with a situation where they might be “convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime [and] might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.” Id. Here, if the jury believed that Mathis was guilty of a serious, violent crime but did not want to impose the death penalty, they had the choice of imposing a sentence of murder. Because this conclusion is not one about which reasonable jurist could differ, we decline to issue a COA.

IV. Competency hearing

Mathis's fourth claim concerns his contention that the trial court violated his due process rights in failing to conduct a competency hearing sua sponte during trial. Mathis bases his procedural competency argument on one central incident at trial. Mathis' defense theory depended on his explanation of the shootings. When Mathis was called to testify he initially stated that he was not present at the house when the murders occurred, to the surprise of his attorney and against the great weight of the evidence. Trial counsel immediately requested a recess so that he could consult with Mathis. Counsel also suggested to the trial court that this “breakdown in communications” may be attributable to Mathis' well-documented history of “some mental problems, some episodes, some trauma to him.” After a brief break, Mathis returned to the witness stand. He admitted he had lied about not being at the house at the time of the shootings. He stated that “the reason why I lied is because I was already on probation and everything and I knew-I knew exactly what I would face if I told the truth about me being there. I was lying because, because I was scared.” Mathis argues that his illogical lie, especially considering that his defense strategy hinged on his testimony, suggested that he did not grasp the gravity of his situation and he did not appreciate the need to cooperate with trial counsel, which he asserts indicated his incompetency. On habeas review before this court, Mathis makes only a claim for a procedural error for failure to ensure competency not a substantive claim that he was actually incompetent.

Constitutional due process requires that the trial of an accused may be conducted only when they are legally competent. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). A court must sua sponte conduct an inquiry into a defendant's mental capacity if the evidence raises a bona fide doubt as to the defendant's competency. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); see also Lokos v. Capps, 625 F.2d 1258 (5th Cir.1980). In considering whether a hearing should have been conducted into the defendant's mental status, “[t]he question is: Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about defendant's competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense.” Id. at 1261. The test to determine whether a Pate procedural violation has occurred is an objective one based on what was known to the trial court at the time of the trial. Id. (citation omitted). The Supreme Court has not articulated a precise standard for what should indicate a bona fide doubt, but generally the Court focuses on three factors that should be considered: (1) the existence of a history of irrational behavior, (2) defendant's demeanor at trial, and (3) a prior medical opinion. See e.g., Drope, 420 U.S. at 180, 95 S.Ct. 896. Even one of these factors, standing alone, may be sufficient to signal a constitutional violation. Id.

The state habeas court held that there was insufficient evidence to raise a bona fide doubt as to Mathis' competency to stand trial. The state court noted there was strong indicia of Mathis' competency, namely his demeanor at trial and the examinations by two mental health experts who did not challenge his competency. The district court further noted that two ex parte hearings were held apparently for the purpose of determining Mathis' competency. Although the record does not indicate what rulings resulted from those hearings, Mathis was apparently found competent. The district court concluded that Mathis failed to demonstrate objective facts known to the trial court during trial which would have signaled any doubt as to his competency. Our review of the trial record also indicates that Mathis understood the nature of the proceedings, and otherwise acted competently; accordingly, we can not issue a COA.

The only evidence Mathis points to that he argues should have raised a “red flag” concerning his competency is the statement made by trial counsel concerning Mathis history of mental problems and the “illogical lie” Mathis told at trial that he was not present at the house at the time of the shootings. First, vague statements made by defense counsel of mental problems, without additional evidence, are not sufficient to raise a bona fide doubt of competency. See Pedrero v. Wainwright, 590 F.2d 1383, 1388 (5th Cir.1979) (quoting Jordan v. Wainwright, 457 F.2d 338, 339 (5th Cir.1972) (finding defense counsel's “naked suggestion that the defendant may be incompetent” insufficient to warrant a competency hearing)). Moreover, Mathis' lie, although illogical and probably detrimental to his case, was not sufficient to raise a bona fide doubt as to his competency. Accord Davis v. Woodford, 384 F.3d 628, 645-46 (9th Cir.2004) (holding that although defendant's behavior was recalcitrant and detrimental to his case, the trial judge did not err in not conducting a competency hearing where the defendant otherwise demonstrated he understood the proceedings and what was at stake). Mathis rationally explained why he lied, he was scared. Furthermore, in his explanation he explicitly stated he “knew exactly what [he] would face” if he told the truth, thus demonstrating that he had a “ ‘rational as well factual understanding of the proceedings against him.’ ” Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (citation omitted). We therefore cannot justify the issuance of a COA.

V. Withholding of Impeachment Evidence

Mathis claims the prosecution violated his constitutional rights by failing to reveal evidence that could have been used to impeach Gregory Jackson, a prosecution witness. Jackson testified that he and Mathis were incarcerated together while Mathis was awaiting trial. He alleged that Mathis confessed to the killings and expressed no remorse. Even more damaging, Jackson alleged that Mathis stated “the only thing he [Mathis] resented is that he didn't kill everybody that was in the house.” Mathis asserts several pieces of evidence were improperly withheld, specifically (1) the full extent of Jackson's criminal record; (2) that Jackson had repeatedly contacted the district attorney's office, seeking an opportunity to testify for the prosecution against other defendants; (3) any offers that might have been made to Jackson in return for his testimony; and (4) that there might be some questions as to Jackson's mental capacity and the prosecution in another context had earlier questioned Jackson's credibility; and (5) the testimony of other cellmates who could refute Jackson's testimony.

The district court concluded that Mathis failed to show that the State did not turn over all materials in its possession to him or that Mathis could not have obtained such evidence with reasonable and diligent effort. Furthermore, even assuming the prosecution had withheld evidence, the district court concluded that Mathis did not show that the evidence was material to his conviction or sentence because Jackson's testimony was only a small portion of the significant evidence presented by the State.

The Supreme Court in Brady v. Maryland held that the suppression by the prosecution of evidence favorable to the accused “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Three factors must be present to constitute a Brady violation: “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). Unless the “evidence is ‘material for Brady purposes, [its] suppression [does] not give rise to sufficient prejudice to overcome [a] procedural default.’ ” Id. at 698, 124 S.Ct. 1256 (quoting Strickler, 527 U.S. at 282, 119 S.Ct. 1936). In order to prove materiality, the defendant must show that with the suppressed evidence there is “a reasonable probability of a different result.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

“[W]hen information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.” United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980). Brady does not place any burden upon the Government to conduct a defendant's investigation or assist in the presentation of the defense's case. United States v. Marrero, 904 F.2d 251, 261 (5th Cir.1990) (citations omitted).

The State argues that no evidence was suppressed because all of the evidence challenged by Mathis was either in the prosecution's open file, part of the public record, or inadmissible. Mathis counters that while “in theory [trial counsel] could have combed through sealed records” looking for the evidence they say was suppressed, they would not have known where to look “without some guidance by the prosecution.”

Mathis' argument is unavailing. It is well established that the prosecution has no duty under Brady to give defense counsel guidance as to where in the prosecution's open file to find exculpatory evidence. United States v. Mulderig, 120 F.3d 534, 541 (5th Cir.1997) (“ ‘There is no authority for the proposition that the government's Brady obligations require it to point the defense to specific documents with a larger mass of material that it has already turned over.’ ”); see also Marrero, 904 F.2d at 260-61. The evidence in the prosecution's open file was not suppressed because Mathis' counsel had equal access to it.

However, we find unpersuasive the State's argument that they had no duty to disclose exculpatory evidence that was available in the public record. Specifically, the State contends that Jackson's competency evaluation and evidence that he tried to claim he was incompetent in a previous trial, were available in his file in the district clerk's office. In addition, Jackson's file also contained evidence that he previously tried to act as a confidential informant in other cases but he was repeatedly rebuffed by the State because they questioned his credibility. As the Supreme Court has previous noted, when a prosecutor asserts they have complied with Brady through their open file policy, defense counsel may reasonably rely on that file to contain all the relevant exculpatory materials the state is obligated to disclose pursuant to Brady. Strickler v. Greene, 527 U.S. 263, 283 n. 23, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quotation marks omitted); accord Banks, 540 U.S. at 694-96, 124 S.Ct. 1256. “If the State failed under a duty to disclose the evidence, then its location in the public record, in another defendant's file, is immaterial.” Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir.2004) (citation omitted). In Johnson, a murder accomplice, who was also a witness at the accused's trial, stipulated under oath that he shot the victim; the accused did not know at trial about the accomplice's stipulation. The district court relied on the fact that the stipulation was available in the public record to hold that a counsel exercising due diligence could have discovered it. The Fifth Circuit reversed the district court's denial of COA because we found that reasonable jurists could debate whether it was prosecutorial misconduct to not disclose the stipulation to the accused. Id.

Even though the evidence pointed to by the defense may have been improperly withheld by the State, no Brady violation can be found if the evidence is not material, i.e., unless there is a reasonable probability there would have been a different result at trial. At the guilt/innocent phase of the trial, Jackson testified that Mathis confessed to shooting Brown and Hibbard. Additionally, there was significant evidence at trial that Mathis shot Brown and Hibbard, including Mathis' own testimony and the testimony of the surviving eyewitnesses. Thus, even if Mathis could have further impeached Jackson's testimony at the guilt/innocence phase, it would not have “ ‘put the whole case in such a different light.’ ” Banks, 540 U.S. at 698, 124 S.Ct. 1256 (citation omitted).

Jackson also testified Mathis said he regretted that he did not kill everybody in the house. The prosecution repeated Jackson's statement at the sentencing phase twice, during opening and closing statements. The jury was required to answer two special questions at the sentencing phase: (1) whether they found from the evidence, beyond a reasonable doubt, that there is a probability the Defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (2) whether they found there was sufficient mitigating circumstances to warrant the imposition of a sentence other than death. The jury answered yes to the first question and no to the latter. Mathis argues that Jackson's testimony was critical evidence that painted Mathis as a remorseless and cold-blooded killer who posed a continuing threat to society. However, the prosecution also put forth witnesses who testified as to Mathis' prior criminal history-including a girlfriend he assaulted, police officers who he assaulted, and teachers who kicked him out of high school for disciplinary problems. In addition, a corrections officer testified to Mathis' ongoing disciplinary problems in jail during the course of the trial and the nurse of Mathis' paralyzed victim, Almaguer, testified to the measures necessary to keep her alive on a day-to-day basis. Although Jackson's averment-that Mathis was remorseless-was damning, we agree with the district court that there was sufficient evidence independent of Jackson's testimony for the jury to find that Mathis posed a continuing threat of violence. We find that reasonable jurists could not debate this conclusion, and decline to issue a COA.

VI. Ineffective Assistance of Counsel

Mathis' other claims relate to his assertion that his trial counsel's performance was ineffective. Mathis argues that his trial counsel failed to (1) discover impeachment evidence against Gregory Jackson; (2) object to testimony by Esmerelda Lester, a surviving eyewitness from the shootings, when she stated that she heard that “there was a hit on [her] head;” (3) object when the prosecution called Mathis “a despicable piece of human trash;” (4) investigate and develop mitigating evidence that he had a low IQ; and (5) present expert testimony that he suffered from frontal lobe damage. We address each one in turn.

To make a substantial showing of the denial of his Sixth Amendment right to reasonably effective assistance of counsel, Mathis must demonstrate “that counsel's performance was deficient,” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, a petitioner “must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. 2052. Judicial scrutiny of counsel's performance must be “highly deferential” and we must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689, 104 S.Ct. 2052. To establish prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

A. Failure to investigate impeachment evidence

The district court affirmed the state habeas court's conclusion that Mathis' trial counsel's pre-trial investigation of impeachment evidence was not ineffective. Furthermore, the district court averred that even if trial counsel should have investigated Jackson's background more thoroughly, there was no indication that the deficiency prejudiced the defense. The jury was well-aware that Jackson had a criminal record because it was mentioned in both direct and cross examination. The district court observed that trial counsel vigorously cross-examined Jackson, calling him a thief, a burglar, a robber, a cheater, and a liar. Accordingly, the district court held that there was not a reasonable probability that there would have been a different outcome had trial counsel more thoroughly tried to impeach Jackson's testimony.

Our review of the record likewise indicates that trial counsel thoroughly challenged Jackson about his credibility during cross-examination. Mathis argues that counsel should have been aware of the impeachment evidence concerning Jackson that was available in the public record. However, as previously noted, the Supreme Court has stated that defense counsel may reasonably rely on a prosecutor's open-file to contain all relevant exculpatory materials the state is obligated to disclose when a prosecutor asserts they have complied with Brady through their open-file policy. Strickler, 527 U.S. at 282 n. 23, 119 S.Ct. 1936. Mathis' counsel was not ineffective in failing to find the information about Jackson that was not contained in the prosecutor's open-file, even if that information was available in the public record. However, even if trial counsel was obligated to discover the impeachment evidence against Jackson, reasonable jurists could not disagree that there is no probability that there would have been a different result at trial. See Section V, supra. We therefore decline to issue a COA.

B. Failure to object to Lester's testimony

Mathis argues that his trial counsel was ineffective for failing to object to certain comments made during the guilt-innocence phase of the trial by Emeralda Lester, a surviving eyewitness and mother of paralyzed victim Melanie Almaguer. On direct examination, the prosecutor asked Lester where she had been living since the shooting. Lester responded that she had been living “[f]rom motel to motel” because she was in hiding. The prosecutor replied, “Why?” to which Lester stated, “Because it was on the streets that there was a hit on my head.” Mathis asserts that Lester's comment implied that he may be responsible for a serious extraneous offense-namely, solicitation of the murder of a witness, in order to preclude Lester from testifying against him. Mathis contends that Lester's testimony, in tandem with Jackson's testimony, implied that he was remorseless and violent. Furthermore, Mathis argues that had his trial counsel objected to Lester's testimony, it would have warranted a mistrial.

The district court concluded that Mathis failed to show that an objection to Lester's testimony would have created a reasonable probability of a different result, especially in light of the significant independent evidence establishing that Mathis had a violent criminal history and displayed no remorse. Although the gravamen of Mathis' argument is that Lester's testimony affected the jury's decision in sentencing, the testimony itself occurred during the guilt-innocence phase of the trial. Even assuming that the jury retained this information as part of their sentencing deliberations, the district court noted that Lester did not state that Mathis was responsible for the “hit on [her] head,” nor that the “hit” was a direct result of the shootings or the trial.

We agree, and find that reasonable jurists could not disagree with the district court's conclusion. In addition, we note that Mathis himself admits that there was evidence, independent of Lester's vague comment, that could have established that Mathis was remorseless and violent. Mathis' brief states that Lester's testimony “dovetailed with Jackson's testimony about the petitioner's supposed ‘regret’ ” and “Lester's testimony, like Jackson's, provided strong evidence of an ongoing ‘remorseless' attitude and tendency towards violence.” We thereby can not issue a COA.

C. Failure to object to prosecutor's statement

Mathis objects to the prosecutor calling him “a despicable piece of human trash” during closing statements and asserts that his trial counsel was ineffective for failing to object to the prosecutor's use of language. He contends that the jury is likely to be influenced by an experienced prosecutor's personal opinion. He also argues a characterization that he is trash implies that he deserves to be discarded, i.e., that he deserves to die. The district court concluded that Mathis failed to show that the failure to object resulted in prejudice or made the proceedings fundamentally unfair. Trial counsel had also used trenchant language in closing arguments in reference to the victims, which the state habeas court concluded could have justified an equally vitriolic response from the prosecution; the district court held that the state habeas court's conclusion was not contrary to or an unreasonable application of federal law.

The prosecutor's comment was very likely an impermissible interjection of his personal beliefs into the closing arguments, however, we are unconvinced that a COA should be issued. Even if trial counsel had objected, the statement would not have constituted reversible error. See e.g., United States v. Hayes, 444 F.2d 472, 474 (5th Cir.1971) (“Because of the overwhelming evidence of guilt, it can hardly be said that appellants were prejudiced in the minds of the jury by the prosecutor's comment. Even taking the view most favorable to appellants, such remarks do not constitute the type of ‘obvious and substantial’ error which would be grounds for reversal.”); see also United States v. Shaw, 701 F.2d 367 (5th Cir.1983) (prosecutor's comment [he had never seen a “colder, more cold blooded, remorseless defendant”] did not prejudicially affect defendant's substantial rights considering overall strength of evidence against him and failure of prosecutor to convey impression that he possessed private or extrinsic information supporting belief.). In light of the overwhelming evidence presented of his guilt, there is no probability that an objection from trial counsel would have resulted in a different outcome at trial.

D. Failure to investigate low intelligence/mental retardation.

The evidence presented to the state trial court showed Mathis to have a low range of intelligence but all above the threshold for mental retardation. Specifically, the expert's report indicated that Mathis' full scale I.Q. was 79, his verbal I.Q. was 77 and his performance I.Q. was 85. Testing performed by a psychologist for the Texas Department of Criminal Justice after his conviction reflect different results. Those results show Mathis to have a full scale I.Q. of 62, verbal I.Q. of 65 and a performance I.Q. of 60. The district court held that Mathis failed to present evidence that reasonable counsel, at the time of trial, would have investigated his possible mental retardation further. Nonetheless, the district court concluded that even without the evidence of mental retardation, trial counsel “covered the same ground” in presenting evidence that Mathis' drug use impaired his ability to reason and function normally; thus there is no reasonable probability that evidence of mental retardation would have changed the result.

We decline to issue a COA on this issue because trial counsel did not fall below objective standards of reasonableness in their investigation of Mathis' intelligence. It is not asserted that trial counsel failed to investigate mental capacity. Cf. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (finding Strickland claim meritorious where counsel failed to conduct an adequate investigation into defendant's background). To the contrary, Mathis took an I.Q. test prior to trial and scored low, but above the threshold for mental retardation. Mathis makes no argument that a reasonable counsel at the time of trial would have investigated further. It is a mystery how Mathis could have scored 10-20 points higher on his I.Q. test before trial as compared to after his conviction. However, trial counsel was not deficient in their performance to trust the results of the initial I.Q. tests.

E. Mitigating evidence of frontal-lobe damage

Mathis presented an affidavit from Pheobe Smith, who along with lead counsel, Steven Rosen, was Mathis' counsel at trial. Smith averred that in her investigation of mitigation evidence, she interviewed Dr. Stephen Martin, Ph.D., a neurological expert. Based on neurological tests performed by Dr. Martin's associate, Dr. Martin was prepared to testify that Mathis had frontal lobe brain damage and that the brain damage impaired Mathis' ability to think and function normally, particularly when under stress. Smith stated in her affidavit that she did not known why Steven Rosen chose not to present this potentially mitigating evidence and she felt that it was ineffective assistance of counsel to not present the testimony of Dr. Martin.

“[C]ounsel's failure to develop or present mitigating background evidence is not per se deficient performance.... Strickland requires that we defer to counsel's decision not to present mitigating evidence or not to present a certain line of mitigating evidence when that decision is both fully informed and strategic, in the sense that it is expected, on the basis of sound legal reasoning, to yield some benefit or avoid some harm to the defense.” Moore v. Johnson, 194 F.3d 586, 615 (5th Cir.1999) (internal citations omitted). The state habeas court held that trial counsel's decision not to put Dr. Martin's evidence before the jury was part of sound trial strategy and did not fall below an objective standard of reasonableness. The district court determined that the state habeas court did not fully adjudicate the claim on its merits because it did not consider the prejudice prong of the Strickland analysis, and consequently the prejudice prong may be reviewed de novo. See Henderson, 333 F.3d at 600-01(finding that the ADEPA's standard of review does not apply to the deficient performance prong of Strickland claim because the state court did not address that part of petitioner's claim).

Without addressing the question of whether trial counsel was deficient for not presenting Dr. Martin's evidence, on de novo review the district court concluded that Mathis did not satisfy the prejudice prong of the Strickland analysis. After noting that Mathis stated that his frontal lobe damage was not caused by a physical injury but was instead attributable to his drug use, the district court concluded that trial counsel presented other mitigating evidence with the same “mitigating thrust.” Specifically, the district court stated that the testimony of Dr. Jesse A. Reed, a psychologist who testified about the effect drug abuse had on Mathis, was similar in kind to Dr. Martin's averments because they both would have presented to the jury facts stating that drugs impaired Mathis' judgment and contributed to his criminal history. Accordingly, the district court held that there was no reasonable probability of a different result because the jury was able to consider evidence with the same mitigating effect. We agree, and further find that reasonable jurists could not debate this point; therefore, we deny a COA.

Conclusion