Wednesday, August 3, 2011
Media Advisory: Martin Robles scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information on Martin Robles, a Texas inmate scheduled to be executed after 6 p.m. on Wednesday, August 10, 2011. A Nueces County jury found Robles guilty of two counts of capital murder for killing John Commisky and Jesus “Chuy” Gonzalez. The same jury later answered the special issues in a manner that a sentence of death was imposed by the trial court.

FACTS OF THE CRIME

In the early morning hours of November 12, 2002, Martin Robles and Joe David “Magic” Padron entered a house in Corpus Christi and fatally shot John Commisky and Jesus Gonzalez.

Antonio Ortiz testified that he was asleep in the front room when he heard shots being fired in the house. He got up, looked down the hall and saw two men—dressed in black and wearing masks—firing at Commisky and Gonzalez. Ortiz had prior run-ins with Robles and Padron before and recognized them as the shooters by their body shapes. Eventually, the shooting stopped and Ortiz heard the men walking out, so he got up and peeked outside where he could see Robles and Padron getting into a maroon Chevrolet Trail Blazer and taking off their masks. The vehicle then drove off. Ortiz identified Robles in the courtroom as one of the people he saw taking off a mask.

After seeing Robles and Padron drive off, Ortiz ran to the back of the house and saw that Commisky and Gonzalez were dead. He checked to see that no one else was in the house and then called 911. Police found the bodies of the victims on a bed in the house.

Autopsies determined that Gonzalez had been shot at least fifteen times, primarily in the head, while Commisky was shot at least fourteen times, mostly in the back. Commisky and Gonzalez were shot from a distance of no more than two-and-a-half feet away. After investigation, Robles and Padron were arrested for killing Commisky and Gonzalez.

In a conversation with another inmate following his arrest, Pardon said he and Robles went to the house and “went to the room and shot them two people." Another inmate overheard a conversation between Robles and Padron. Padron claimed that he had killed for Robles, but Robles corrected him and stated that Padron froze at the critical moment and Robles had to go through with the killing.

FACTS RELATED TO PUNISHMENT

The State introduced evidence in the punishment phase of the trial regarding Robles' criminal history, including his previous conviction for murder, his assaultive conduct, possession of a shank, and disciplinary problems while in prison for murder. The State also introduced Robles’ extensive juvenile record, his misdemeanor history, and his gang involvement which resulted in his classification as part of a “Security Threat Group” by prison administrators.

A female testified that a year before the trial, Robles broke into her family’s home and pistol-whipped her father after threatening the entire family.

PROCEDURAL HISTORY

12/19/2002 -- A Nueces County grand jury indicted Robles on three counts of capital murder.
9/2/2003 -- A jury found Robles guilty of two counts of capital murder.
9/5/2003 -- After a separate punishment hearing, the jury found that death was warranted.
9/18/2003 -- Robles was formally sentenced to death by the trial court.
4/26/2006 -- The Texas Court of Criminal Appeals affirmed Robles’ verdict and sentence.
4/21/2005 -- Robles filed a state application for a writ of habeas corpus.
6/14/2006 -- The Texas Court of Criminal Appeals denied state habeas relief.
6/11/2007 -- Robles filed a federal petition for a writ of habeas in U.S. District Court.
3/6/2009 -- The federal district court denied relief.
4/6/2009 -- Robles filed a notice of appeal to the 5th Circuit United States Court of Appeals.
9/8/2009 -- The Fifth Circuit court affirmed the federal district court’s denial of relief and denial of a certificate of appealability.

Texas Execution Information Center by David Carson.

Martin Robles, 33, was executed by lethal injection on 10 August 2011 in Huntsville, Texas for the murder of two people in their home.

On 12 November 2002, Robles, then 24 and Joe "Magic" Padron, 26, entered a Corpus Christi house in the early morning and shot two occupants - John Commisky and Jesus Gonzalez, both 19 - to death. They then went outside and drove away in a maroon Chevrolet Trail Blazer. A third occupant of the house, Antonio Ortiz, called 9-1-1 after the killers left.

The autopsies determined that Gonzalez had been shot at least fifteen times, mainly in the head, while Commisky was shot at least fourteen times, mostly in the back. They were both shot from a distance of no more than two-and-a-half feet.

At Robles' trial, Ortiz testified that he was asleep in the front of the house when he heard shots being fired. He got up and looked down the hall to see two men dressed in black and wearing masks, shooting at Commisky and Gonzalez. Ortiz testified that even though the shooters were wearing masks, he recognized them as Robles and Padron based on their builds and his previous encounters with them. He also testified that he saw the men removing their masks after they got in their vehicle, and he recognized Robles as one of the men who removed his mask.

Two jail inmates also testified. One said Padron told him that after two attacks on their gang, Raza Unida, had taken place, he and Robles went to the house "to take care of business". They saw the person sleeping on the couch, but passed by him because they thought he was a woman. They then "went to the room and shot them two people". Another inmate testified he overheard Padron telling Robles he had killed for him, but Robles corrected him and stated that Padron froze at the critical moment and Robles had to go through with the killings.

Robles had a prior conviction for being a party to a murder with a deadly weapon. Felipe Quiroz, 21, was killed after a gang argument. Although Robles was not the shooter, he was present and armed. He was sentenced to six years in prison, which he served from 1995 to 2001. He had been out for about a year when he murdered Commisky and Gonzalez. He also had a lengthy juvenile criminal history.

On one arm, Robles had a tattoo of a demon eating the brains of Jesus Christ. At the punishment phase of his trial, he was instructed to show the tattoo to the jury. He was given the option of either removing his shirt in the courtroom or allowing the jury to take photographs of the tattoo into deliberations with them. He chose to remove his shirt. "And he didn't put the shirt back on," prosecutor James Sales recalled later. "He sat there, with his muscle shirt on, the rest of the trial and closing arguments."

A jury convicted Robles of capital murder in September 2003 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 2006. All of his subsequent appeals in state and federal court were denied. Joe David Padron, who at the time of the killings had just completed a ten-year sentence for involuntary manslaughter with a deadly weapon, was convicted of capital murder and sentenced to life in prison. He remains in custody as of this writing.

On a web site operated by German death penalty opponents, Robles admitted he was in a gang, but claimed he was "wrongfully convicted" because "gang members just don't win." "I was set up by the cops", he wrote, without elaborating.

Robles declined requests to be interviewed and did not request a last meal. No one attended his execution on his behalf, or for his victims. The only people present at his death were prison staff and reporters. Robles' last words were reported as either "I love you, Israel," or "I love Israel." He was pronounced dead at 6:21 p.m.

Corpus Christi Caller Times

"Man executed for deaths of 2 Corpus Christi teens." (Associated Press Wednesday, August 10, 2011)

HUNTSVILLE — Convicted killer Martin Robles was executed Wednesday evening for the shooting deaths of two young men nearly nine years ago who belonged to a rival street gang in Corpus Christi. Robles, 33, had little to say from the gurney. Asked by the warden if he had a final statement, he replied: "I love Israel."

He took several deep breaths as the lethal drugs began flowing into his arms, then began snoring. Within a minute, his breathing stopped. He was pronounced dead at 6:21 p.m., nine minutes after the drugs started. He had exhausted his appeals and no late court actions to try to spare him were made as his lethal injection neared. There were no relatives or friends to watch him die. Prison officials said he had removed all names from his list of visitors, refused a phone call earlier Wednesday from a relative and declined make a final meal request. No representatives of his victims were present in the death chamber.

Robles became the ninth prisoner executed in Texas this year. Another four are set to die next month.

Robles had a lengthy criminal record as a juvenile, then was convicted of murder when he was 17 and sentenced to six years in prison. He had been out of prison about a year after serving the full sentence when he was arrested for the November 2002 shooting that killed two 19-year-olds, Jesus Omar Gonzalez and John Commisky.

Evidence showed Robles, who dropped out of school after the eighth grade, belonged to a gang called the Raza Unida, or "RU," that was squabbling over drug-dealing turf and feuding violently with another gang that counted the victims as members. Testimony at his trial showed Robles and a companion put on dark clothing and masks before dawn on Nov. 12, 2002, climbed a fence and entered the Corpus Christi home where Gonzalez and Commisky were asleep. Robles carried a 9 mm pistol. His partner, Joe David Padron, had an assault rifle. They opened fire.

Autopsy results showed Gonzalez was shot at least 15 times, most of the shots to his head. Commisky had at least 14 bullet wounds, most of them in his back. The autopsies determined the shots were fired from no more than 2 feet away.

A third rival gang member in the house, Tony Ortiz, ran to where his grandmother was sleeping, escaped the gunfire but looked out a window as the shooters left and recognized them as Robles and Padron. He called police and identified the gunmen, who were arrested. Padron got a life prison term. Robles received the death penalty. Robles declined to speak with reporters as his execution date approached.

James Sales, who prosecuted Robles, described him as "one of those guys when you look in the eyes, you don't really see anything behind them." Sales said during jury selection, Robles, seated at the defense table next to him, warned the district attorney, "You got nothing but peanuts on me. You got peanuts."

At the punishment phase of his trial, jurors were shown Robles' extensive tattoos, including one on his arm of a demon eating the brains of Jesus Christ. "I told the jury, I don't know what it means, but I know that's evil and I know that's what he represents," Sales recalled. He said the judge, over the objection of Robles' attorneys, gave Robles the choice of jurors viewing the tattoos on photos or in person. Robles said he'd take off his shirt for them. "And he didn't put the shirt back on," Sales said. "He sat there, with his muscle shirt on, the rest of the trial and closing arguments." The tattoo episode surfaced as an issue in early appeals of Robles' case. The Texas Court of Criminal Appeals, however, said his choice of tattoos was "some evidence of his character."

Prison records showed Robles began using marijuana and inhalants at the age of 10. By 14, when he joined a gang to do drug running and carjacking, he was into acid. At 15, he was doing cocaine. He also was a suspect but never tried for a slaying at a drug house run by the Texas Syndicate, another gang.

Reuters News

"Gang member executed in Texas for double homicide," by Karen Brooks. (Wed, Aug 10 2011)

AUSTIN, Texas (Reuters) - Texas on Wednesday executed a man for killing two gang rivals in a shooting that happened shortly after he had served time for another homicide. Martin Robles, 33, and another man entered a home in Corpus Christi on November 12, 2002, and used a gun to kill John Commisky and Jesus "Chuy" Gonzalez, both 19, as they slept, according to a report by the Texas Attorney General's Office.

Robles was given a lethal injection of drugs and pronounced dead at 6:21 p.m. local time, said Jason Clark, a Texas Department of Criminal Justice spokesman. Robles requested no visitors on his side, and no one showed up to witness the execution on behalf of the victims, Clark said.

His last words were, "I love you, Israel," according to Clark, who said he did not know what that meant or who Israel might be. Robles did not request a last meal, officials said.

Robles was the 31st person executed in the United States this year and the ninth executed in Texas, the most active state in the nation for executing prisoners. Five more executions are scheduled in Texas for September.

The AG's report said that on the night of the killing, Gonzalez was shot at least 15 times, mostly in the head, while Commisky was shot 14 times, mostly in the back. A witness in the house recognized Robles when he removed his mask as he got into a car to drive away, the report said. His accomplice, Joe David Padron, was tried separately and sentenced to life in prison. Two inmates testified that Robles said he had killed the men, including one inmate who said Robles told him Padron had not pulled the trigger.

Robles had a long criminal record at the time of the shooting, including an extensive juvenile record and disciplinary issues while he was serving time in prison for a killing he committed at age 17.

In an Internet posting from 2004, Robles referred to himself as a gang member "with tattoos, bullet wounds, scars and a pretty smile" who had been wrongly convicted because "gang members don't win." "I like to fight, shoot dice, and explore the club scene," he wrote. "I like drinking on occasion and love sex. I've been incarcerated most of my adult life, so there's lots of things I've never experienced but I regret nothing."

At the time of the killings, Robles had been out of prison for about a year after serving six years in the shooting death of Felipe Quiroz, 21, in Corpus Christi. Police said that shooting happened after an argument between Quiroz, Robles and other gang members.

Huntsville Item

"Gang killer executed in Huntsville on Wednesday," by Cody Stark. (Thu Aug 11, 2011)

HUNTSVILLE — Convicted murderer Martin Robles became the ninth death row inmate to be executed in Texas this year Wednesday night.

Robles, who was responsible for the shooting deaths of two rival teenage gang members in Corpus Christi in 2002, went quitely. He did not request a final meal and only had a short statement to make before the lethal dose of drugs took effect. “I love Israel,” the 33-year-old Robles said. After several deep breaths, Robles closed his eyes and quit moving. He was pronounced dead at 6:21 p.m. None of his family members showed up to witness the execution and neither did anyone representing the two victims, Jesus Omar Gonzales and John Commisky.

Robles had a lengthy criminal record as a juvenile, then was convicted of murder when he was 17 and sentenced to six years in prison. He had been out of prison about a year after serving the full sentence when he was arrested for the November 2002 shooting that killed Gonzalez and Commisky, according to the Associated Press.

Evidence showed Robles, who dropped out of school after the eighth grade, belonged to a gang called the Raza Unida, or “RU,” that was squabbling over drug-dealing turf and feuding violently with another gang that counted the victims as members. Testimony at his trial showed Robles and a companion put on dark clothing and masks before dawn on Nov. 12, 2002, climbed a fence and entered the Corpus Christi home where Gonzalez and Commisky were asleep. Robles carried a 9mm pistol. His partner, Joe David Padron, had an assault rifle. They opened fire.

Autopsy results showed Gonzalez was shot at least 15 times, most of the shots to his head. Commisky had at least 14 bullet wounds, most of them in his back. The autopsies determined the shots were fired from no more than 2½ feet away. A third rival gang member in the house, Tony Ortiz, ran to where his grandmother was sleeping, escaped the gunfire but looked out a window as the shooters left and recognized them as Robles and Padron. He called police and identified the gunmen, who were arrested.

Padron got a life prison term. Robles received the death penalty.

There are six more executions scheduled this year. Steven Woods, who was convicted of the 2001 murders of Ronald Whitehead and Bethena Brosz, is set to die on Sept. 13.

ProDeathPenalty.Com

John Commisky, Jesus Gonzalez, Gavino Moreno, and Tony Ortiz sold crack cocaine out of a home on Mary Street in Corpus Christi. Because the Raza Unida gang had a heavy presence in the neighborhood, the men were supposed to, but did not, pay RU a percentage of the money they earned from selling cocaine out of the home. Moreno testified that "if you don't pay a percentage, then the RU deal with you."

In the early morning of November 12, 2002, Moreno was inside the Mary Street home when he looked outside and saw a man standing in the driveway wearing a ski mask. He saw a second man, also wearing a ski mask, jump over the fence in front of the house. Moreno ran out the back door. At this time, Ortiz was asleep in the house when he heard gunshots. He saw two masked men standing in the back room of the house. One was shooting an AK-47, and the other was shooting a nine millimeter handgun. Commisky and Gonzalez died inside the home from multiple gunshot wounds. When the shooting stopped, Ortiz looked out the window and saw Joe David Padron and another man getting into an SUV.

Padron was sentenced to life in prison. Both killers have served time in prison for other murders as well. John Commisky's mother Juanita said recently, "I'm always sad and I think about my son all the time. I wish he was here." Speaking about the family members of Martin Robles, she said, "I'm sorry for what's happening. May God bless them."

Death Row USA

2. Januar 2004

Martin Robles # 999457
Polunsky Unit D.R.
3872 FM 350 South
Livingston, Texas 77351 U.S.A

Hello. My name is Martin Robles and I am looking for a penpal. I am from Corpus Christi, Texas and seeking someone who is cool with writing a death row inmate in their spare time.

I am a 25 year old Mexican who was wrongfully convicted and condemned to die for a double homicide involvong gang members. I have lil faith in the judicial system for I am a gang member myself and gang members just don't win. So I've accepted my fate and would like to make new friends before I pass away.

I'm 5'6'' with tattoos, bullet wounds, scars, and a pretty smile.I weigh about 180 and work out to stay in shape. I'm an ex-convict so I've spent 6 years in prison before for a murder conviction when I was 17 years of age. I got to spend 13 months of freedom before I was set up by the cops.

I like to fight, shoot dice, and explore the club scene. I like drinking on occasion and love sex. I've been incarcerated most of my adult life, so there's lots of thing I've never experienced but I regret nothing. I come from a loving family and wish to spend my remaining years getting to know someone as a friend. With that said, I leave as I came, with smiles and good intents.

Martin Robles

Robles v. State, Not Reported in S.W.3d, WL 1096971(Tex.Crim.App. 2006) (Direct Appeal)

On Direct Appeal from Nueces County.

PRICE, J., delivered the opinion of the Court, in which MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, and HOLCOMB, JJ., join.

The appellant and his codefendant, Joe David Padron, illegally entered a home while the occupants were asleep and shot and killed Jesus Gonzalez and John Commisky. For this conduct, a Nueces County jury convicted the appellant of two counts of capital murder.FN1 Pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial court sentenced the appellant to death. FN2 Direct appeal to this Court is automatic.FN3 The appellant raises nine points of error. We shall affirm. FN1. Tex. Pen.Code § 19.03(a)(2).

FN2. Tex.Code Crim. Proc. Art. 37.071 § 2(g). FN3. Tex.Code Crim. Proc. Art. 37.071 § 2(h).

II. Jury Selection

In his first point of error, the appellant claims that the trial court erred in denying him a full and fair voir dire examination by restricting relevant inquiry concerning the facts of the case. Juror questionnaires asked jurors to state any questions they had. Venire Member Julian Sanchez asked, “Why two lives?” During Sanchez's voir dire, defense counsel referred to that question in the following exchange:

[Defense counsel]: What did you need to know, sir? [Sanchez]: I just-Why was [sic] two lives taken? Q: Okay. A: That's it. Q: What I think the state's evidence is gonna be is that the two people that were killed were in a gang, and- [Prosecutor]: Your Honor, I'm going to object to [defense counsel] telling this juror what my evidence is going to be in the trial, or, actually, what any of [the] evidence is gonna be in the trial. I think that's improper. [Defense counsel]: Judge, I-That's a new one on me, because any time you voir dire the jury, you've gotta give them an idea about what the evidence is gonna be, so you can get their biases and things like that. THE COURT: I don't agree with you. I think that's for opening statements. You can discuss matters, but you cain't [sic] discuss what the evidence is gonna be. [Prosecutor]: You can discuss issues, but not evidence. THE COURT: I agree. [Prosecutor]: And that, I think, is what the law is. [Defense counsel]: Well, note my- THE COURT: Rephrase-you can ask the same questions, [defense counsel], just rephrase the question. [Defense counsel]: Some of the issues in the case would be the fact that they're gonna claim that my client was in a gang, and that the two fellows that were killed we're [sic] in a gang- [Prosecutor]: Judge, that's just- THE COURT: You're doing the same thing. [Prosecutor]:-ignoring the Court's ruling, and is going around it, and I object. [Defense counsel]: Judge, if the Court is instructing me not to go into the evidence that I expect the state to show, for the purpose of voir dire, that's fine, and I won't do it, if I can get a specific instruction from the Court. THE COURT: The instruction is, do not go into specifics of what you expect the evidence to show. [Defense counsel]: Okay. THE COURT: You can go into specifics of, how do you feel about gangs, if, you know, the evidence were to show? If-Do you understand? [Defense counsel]: I understand the Court's ruling. THE COURT: I'm telling you, you can do the same thing, [defense counsel], without telling the juror, This is what we expect the evidence to show. Okay? Now, opening statements is a completely different situation. [Defense counsel]: Very well.

On appeal, the appellant contends that the trial court's instruction prevented him from discussing with Sanchez and the remaining venire members what the evidence was expected to show and from exploring their biases and prejudices.

The appellant has not preserved this issue for review. Although there was some initial disagreement between defense counsel and the prosecutor about what could be asked, defense counsel ultimately asked the trial court to state its instruction on the issue. After hearing the trial court's instruction, defense counsel said “okay” and “very well.” He did not state an objection for the record and did not request a running objection with respect to other venire members.FN4 Point of error one is overruled. FN4. Tex.R.App. P. 33.1.

In his second point of error, the appellant claims that the trial court erred in granting the State's challenge for cause to venire member Angela Cox, in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The appellant contends that Cox was wrongly disqualified on the basis of her views about the death penalty.FN5

FN5. See Wainwright v. Witt, 469 U.S. 412, 424 (1985) (holding that a potential juror is not challengeable for cause on the basis of scruples against the death penalty unless her views would prevent or substantially impair the performance of her duties as a juror in accordance with her instructions and oath).

Cox stated repeatedly that she would answer the special issues in such a way as to result in a death sentence only in cases involving a child victim or a victim who had been tortured; in all other circumstances, including those alleged in the appellant's indictment, Cox stated that she would always answer the issues in such a way that a life sentence would be imposed. Cox was unwavering in her position, restating at the close of her voir dire that she would vote to impose the death penalty only in these circumstances: “Just children and torture.” The State's challenge for cause on these grounds was granted.

In Rocha v. State,FN6 we upheld the trial court's granting of the State's challenge for cause against a venire member who stated that she could never consider the death penalty for a murder committed in the course of a robbery. We explained that a venire member is challengeable for cause if she could never vote to impose the death penalty for a statutorily classified capital murder offense because the person does not accept that offense as a valid criterion for imposing a sentence of death.FN7

FN6. 16 S.W.3d 1, 8 (Tex.Crim.App.2000). FN7. Ibid.

In this case, Cox said that she could never consider the death penalty in any case that did not involve child victims or victims of torture. She would never answer the punishment issues in such a way as to result in the death penalty for a murder committed in the course of a robbery that did not involve these types of victims. The trial court did not abuse its discretion in granting the State's challenge for cause. Point of error two is overruled.

II. Evidentiary Issues
A) Hearsay Statement Against Interest

In his third point of error, the appellant claims that the trial court erred by allowing hearsay testimony from Robert Lara. Lara testified about statements made to him by Joe David Padron, in which Padron implicated himself and the appellant in the murders. The testimony was admitted as statements against penal interest. The appellant argues that the statements were not against Padron's penal interest and were not corroborated by circumstances indicating trustworthiness as required by Rule of Evidence 803(24).FN8

FN8. The appellant also alleges that the statements were admitted in violation of the Confrontation Clause as interpreted by Crawford v.. Washington, 541 U.S. 36, 68 (2004) (holding that hearsay statements that are testimonial must have been made by an unavailable declarant with a prior opportunity for cross-examination to satisfy the Confrontation Clause), but he did not assert an objection on constitutional grounds at trial and therefore has not preserved the issue for review. Tex.R.App. P. 33.1.

In a hearing outside the presence of the jury, Lara testified that he and Padron were assigned to the same cell block designated for members of the Raza Unida gang. Lara stated that, when Padron was first brought into the cell block, he did not know Lara and asked one of the other gang members in the cell block if Lara could be trusted. Once assured that Lara was trustworthy, Padron began telling everyone that he did not understand how he had been caught so quickly and that he suspected the appellant had “snitched.” Lara later had a private conversation with Padron in which Padron told him about committing the instant offense with the appellant.

Padron said that the appellant picked him up in a truck or Bronco and told him that they were “going to take care of business.” When they arrived at the house where the murders were to take place, they took the chain off the fence and went in through a side or back door at the kitchen. They saw someone who they thought was a woman asleep on the couch, and they continued looking until they found a room where there were two people lying in a bed. Padron stated that he was the one with the high-caliber rifle. He said that he and the appellant just started shooting.

Lara's testimony before the jury was substantively the same as the testimony he gave during the hearing, but he also testified that Padron had told him about some of the events leading up to the murders, including a stabbing of two gang members and a drive-by shooting at a gang member's house. Lara testified that, according to Padron, the appellant said that the drive-by shooting was the “last straw” and that “enough was enough.”

The appellant objected to the admission of Lara's testimony as hearsay and argued that it was not admissible as statements against Padron's penal interest because Padron would not have anticipated any penal consequences from bragging to a fellow gang member about his participation in a homicide. The appellant makes the same arguments on appeal. Texas Rule of Evidence 803(24) provides that a hearsay statement against the declarant's penal interest may be admissible if corroborating circumstances clearly indicate the statement's trustworthiness. A trial court's ruling on the admissibility of a hearsay statement pursuant to a hearsay exception is a matter of discretion and reviewed under an abuse of discretion standard. FN9

FN9. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003); Cunningham v. State, 877 S.W.2d 310, 313 (Tex.Crim.App.1994).

Padron's statements were clearly against his penal interest. His statements that he and the appellant shot the victims inculpated himself in a capital murder. The concern that statements of a co-defendant that inculpate the defendant might be an effort at blame-shifting does not apply here because the statements inculpate Padron and the appellant equally. FN10. See Dewberry v. State, 4 S.W.3d 735, 744-45 (Tex.Crim.App.1999) (stating “admission against a co-defendant declarant's interest can be admissible [under Rule 803(24) ] against the defendant so long as it is sufficiently against the declarant's interest to be reliable”).

We are not persuaded by the appellant's argument that the statements were not against Padron's penal interest because Padron was merely bragging to other gang members, which would have actually elevated his status within the gang. The statements implicated Padron in a very serious crime regardless of how they might have been viewed by other gang members. There is always a risk that the person to whom a statement is made will, for any number of reasons, repeat the statement to others or even to authorities. As explained by a court of appeals addressing this exact issue:

[The declarant] and possibly others were bragging about their participation in the crime. While the declarant may have intended it to enlarge his reputation or uttered it merely for the irrational pleasure of reliving the event, the statement was essentially a confession to the crime. Confessing to criminal conduct is usually against one's interest, at least to the extent that an addressee will later reveal the statement to the authorities in an effort to exonerate himself or another accused. FN11. Vasquez v. State, 902 S.W.2d 627, 635 (Tex.App.-El Paso 1995), rev'd on other grounds, 919 S.W.2d 433 (Tex.Crim.App.1996).

We conclude that Padron's statements were against his penal interest, despite the fact that the statements might have increased his status with other gang members. We must now determine if corroborating circumstances clearly indicate the statement's trustworthiness.

Padron's statements about the crime suggest trustworthiness because the details generally could not have been learned from a newspaper or other outside source. For instance, Padron described the fence and, to some extent, the lay-out of the house. He stated that he remembered seeing a woman asleep on the couch and described finding the targets asleep on a bed in another room. He also identified the stated motives for the murder: the stabbing of Padron's fellow gang members and a drive-by shooting of a named gang member's house.

The possibility that the statements might have been fabricated by Padron for the purpose of increasing status among gang members is a factor to consider. However, Lara testified that Padron checked with another gang member in the cell block to make sure Lara could be trusted before talking openly about his involvement in the crime. Padron obviously felt that he could speak freely to fellow gang members whom he trusted. Lara's potential motives for fabrication should be considered in addressing trustworthiness as well, but in this case there are sufficient indicia of reliability within the statement itself to outweigh these concerns.

Given the context in which the statements were made and the details revealed in the statements, the trial court did not abuse its discretion in finding that there were corroborating circumstances that clearly indicated that the statements were trustworthy. Point of error three is overruled. In his fourth point of error, the appellant claims that the trial court violated his confrontation rights by limiting the cross-examination of Robert Lara and Vino Garcia about their agreements with the State. The appellant has failed to preserve this issue for review with regard to each witness.

The appellant cross-examined Lara extensively about his criminal history, his pending charges in an aggravated robbery case, and his deal with the State in the aggravated robbery case in exchange for his testimony against the appellant. Although the appellant elicited the fact that the pending aggravated robbery case involved a weapon, he was not allowed to elicit testimony about the type of weapon used or whether there was an injured victim. The appellant argued that he should have been allowed to go into those facts to establish witness bias, but he never articulated a legal basis in support of his position. On appeal, he asserts a Confrontation Clause violation. But the Confrontation Clause is not the only authority applicable to the appellant's claim. The Rules of Evidence also address impeachment regarding witness bias. FN12 Because the appellant did not identify the basis of his position at trial, he did not preserve the Confrontation Clause issue he now raises on appeal.FN13

FN12. See, e.g., Tex.R. Evid. 611, 613(b). FN13. Tex.R.App. P. 33.1.

The appellant's complaint that his cross-examination of Garcia was limited improperly is not preserved for review because the appellant never attempted to cross-examine Garcia, and therefore never obtained a ruling, about the matters he now complains he was not allowed to address. The appellant claims he avoided these matters with Garcia because of the trial court's ruling on the issue during Lara's testimony. Regardless of the appellant's belief that the trial court would rule against him, he was required to seek a ruling in order to preserve error with respect to Garcia.FN14 Point of error four is overruled. FN14. Tex.R.App. P. 33.1.

B) Demonstrative Evidence

The appellant's fifth, sixth, and seventh points of error pertain to the appellant's compelled display of a tattoo during the punishment phase of trial. According to descriptions in the record, the tattoo at issue depicted “Jesus with a demon devouring his brains.” The tattoo was on the appellant's shoulder, and the appellant was required to remove his jacket and shirt to display it. Prior to the admission of the punishment evidence and during a hearing outside the presence of the jury, the appellant made a motion in limine in anticipation of the State's offering of the tattoo. The appellant argued that the tattoo was not relevant, that any relevance was substantially outweighed by its prejudicial effect, and that admitting it would violate the appellant's rights under the Fifth and Sixth Amendments. The State argued that the tattoo showed “a complete disrespect to Christ, the person that stood for peace and love and forgiveness” and was therefore relevant to future dangerousness. The State also noted that although it would not violate the appellant's rights to require him to take off his shirt in the courtroom, it preferred to offer photographs of the tattoo.

The trial court asked the appellant whether he would prefer to display the tattoo in photographs or by disrobing in the courtroom, if the evidence were to be admitted. The court reminded the appellant that the jury was allowed to take photos with them into the jury room. Without waiving any of his objections to the admission of the evidence, the appellant stated that he would prefer to disrobe. The court stated that it would not allow admission of photos and would rule on the appellant's disrobing when the issue came up during trial.

The prosecutor's opening punishment statement warned the jury that, in addition to some gang-related tattoos, they would see “some disturbing tattoos of demons and religious figures, and the most offensive tattoo, you're gonna see a tattoo on his arm-of a demon eating the brains of Christ on his arm.” After opening statements and before calling its first witness, the State asked the appellant to stand and take off his jacket and shirt in order to display his tattoos to the jury. The appellant repeated his objections. The trial court overruled the objections and directed the appellant to stand and display his tattoos from counsel table. The appellant complied.

In closing arguments, the prosecutor argued that the tattoos were displayed to the jury “to educate you as to [the appellant's] philosophies, his belief systems, what he is about.” He elaborated: [Y]ou have a demon eating the brains of Christ. There was Christ, with the crowns, and what kind of looks like grapes, and then you have a demon putting it like that. Now, I don't know what that means, but to me it's a bad thing. That to me is a philosophy. I don't know if it's satanic .... but it tells you something about him as a person, that ought to tell you where his belief system is.

In his fifth point of error the appellant claims that the compelled display of the tattoo was a violation of his right not to incriminate himself under the Fifth Amendment. The Fifth Amendment does not protect against the compelled production of every sort of incriminating evidence.FN15 The privilege protects a person only against being incriminated by his own compelled testimonial communications.FN16 Testimonial communications are those that “explicitly or implicitly, relate a factual assertion or disclose information.” FN17 The appellant argues that the tattoo was testimonial because the State argued that it communicated his “philosophies and belief systems.”

FN15. Fisher v. United States, 425 U.S. 391, 408 (1976). FN16. Ibid.; see also Williams v. State, 116 S.W.3d 788, 791 (Tex.Crim.App.2003). FN17. Doe v. United States, 487 U.S. 201, 210 (1988).

The United States Supreme Court has held that documentary communications are not compelled testimonial communication within the meaning of the Fifth Amendment when voluntarily prepared prior to the requested production. FN18 Production of a pre-existing document does not “compel the [defendant] to restate, repeat, or affirm the truth of the contents of the documents.” FN19

FN18. Fisher, 425 U.S. at 409-410 & n. 11 (stating that one reason subpoenaed documents were not “compelled testimonial communications” is because “the preparation of all of the papers sought in these cases was wholly voluntary” and “unless the Government has compelled the subpoenaed person to write the document ... the fact that it was written by him is not controlling with respect to the Fifth Amendment”). FN19. Ibid.

Although the tattoo's relevance is derived from what it communicated to others, the appellant was not compelled by State actors to create it. In this way, the appellant's tattoo is more akin to a pre-existing documentary communication than to a compelled testimonial communication. The appellant was merely asked to show the jury something he had created voluntarily before his appearance in court. The exhibition of the tattoo did not compel the appellant to say anything about its meaning. The trial court did not violate the appellant's Fifth Amendment rights by requiring him to display the tattoo. Point of error five is overruled.

In his sixth point of error, the appellant claims that the trial court erred in allowing the State to use the appellant's tattoo as a reason for imposition of the death penalty in violation of due process, equal protection, and freedom from cruel and unusual punishment. Specifically, the appellant contends that the State's argument that the tattoo represented the appellant's philosophy and was therefore relevant to the issue of future dangerousness improperly injected religion into the case.

During the punishment phase of a capital murder trial, evidence may be presented as to any matter the court deems relevant to the special issues, including the defendant's background or character.FN20 A defendant's choice of tattoos is some evidence of his character.FN21 Tattoos may also be evidence of the defendant's beliefs or his motive for committing the crime. FN22 This kind of evidence is relevant to the issue of future dangerousness.FN23

FN20. Tex.Code Crim. Proc. Art. 37.071 § 2(a). FN21. Conner v. State, 67 S.W.3d 192, 201 (Tex.Crim.App.2001). FN22. Banda v. State, 890 S.W.2d 42, 62-63 (Tex.Crim.App.1994). FN23. Conner, 67 S.W.3d at 201; Banda, 890 S.W.2d at 62; cf. Corwin v. State, 870 S.W.2d 23, 35 (Tex.Crim.App.1993) (recognizing that defendant's drawing of “a large green monster holding a bloody-bladed axe in one hand and the scalp of a woman in the other with a body wrapped in the tail” had “an inferential bearing on his character for violence, which relates in turn to the question of future dangerousness”).

The State did not inject the issue of religion into the case. Any reference to religion was raised by the tattoo alone. The prosecutor did not refer to the appellant's religion or lack thereof. He stated that the tattoo depicted a “demon eating the brains of Christ” and that this depiction might be viewed as an expression of the appellant's philosophy and beliefs. These are matters relevant to character and therefore have a bearing on an assessment of future dangerousness. The federal cases relied upon by the appellant are distinguishable because they all involved references to religion that were made at the guilt or innocence phase of the trial where character is not in issue. FN24 Point of error six is overruled.

FN24. United States v. Giry, 818 F.2d 120, 132-33 (1st Cir.1987); United States v. Goldman, 563 F.2d 501, 504-05 (1st Cir.1977).

In the appellant's seventh point of error, he argues that the prejudicial effect of the tattoo substantially outweighed any probative value it had on the issue of future dangerousness in violation of Rule of Evidence 403. Rule 403 favors admission of relevant evidence and implies a presumption that relevant evidence is more probative than prejudicial.FN25 “All testimony and physical evidence will likely be prejudicial to one party or the other. It is only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value that Rule 403 is applicable.” FN26 A proper 403 analysis includes, but is not limited to, consideration of four factors: (1) the probative value of the evidence; (2) its potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence.FN27 Questions of admissibility under Rule 403 are subject to review only for an abuse of discretion.FN28

FN25. McFarland v. State, 845 S.W.2d 824 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963 (1993). FN26. Jones v. State, 944 S.W.2d 642, 653 (Tex.Crim.App.1996), cert. denied, 522 U.S. 832 (1997). FN27. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App.2005). FN28. Ibid.

The appellant contends that, because there was no connection or nexus between the type of tattoo and the nature of the crime or the motive behind the crime, the tattoo had little probative value apart from its religious significance. The State argues that the tattoo was evidence relevant to the special issue on future dangerousness because it was indicative of the appellant's character. The State also argues that the tattoo was prejudicial, but not unfairly so because the appellant chose to have the tattoo “depicting that which is evil triumphing over that which is good.”

We will assume, without deciding, that the trial court erred in admitting the tattoo before the jury. Even so, we conclude that the appellant was not harmed by the trial court's admission.

Because no constitutional error is involved when evidence is admitted under Rule 403, we look to the nonconstitutional standard in Rule of Appellate Procedure 44.2(b). Under Rule 44.2(b), reviewing courts should disregard any error that did not affect the appellant's substantial rights.FN29 We have interpreted this to mean that the conviction should not be reversed when, after examining the record as a whole, the reviewing court has a fair assurance that the error did not influence the jury or had but a slight effect.FN30 In assessing the likelihood that the jury's decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.FN31 We also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error.FN32

FN29. Tex.R.App. P. 44.2(b). FN30. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). FN31. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002). FN32. Id. at 355-56.

The record does not contain a photo of the tattoo.FN33 The record does not reflect the tattoo's size, how graphic it was, how detailed, or even the distance between the jurors and the appellant as he displayed the tattoo. The presentation of the tattoo appears to have been brief, and did not require the appellant to approach the jury. It was mentioned by the prosecutor in his opening statement during the punishment phase, and it was the first order of business before the jury in the punishment phase of the trial. It was also mentioned in the closing arguments.

FN33. The State did offer into evidence a photograph of the Raza Unida “stampa” which is tattooed on the appellant's forearm. A large tattoo on his upper arm is also visible in that photograph, but it is not clearly depicted and the record makes no reference as to what that tattoo might be.

The evidence presented during the guilt phase of the trial, which was relevant to the jury's punishment-phase determination of future dangerousness, included testimony that the appellant broke into a house at 3 a.m., looking for one of the sons in the family. He waved a gun around, threatened family members, and struck the father in the face with the gun before leaving. He shot and killed the two victims while they were asleep in bed.

During the punishment phase, the State presented evidence that, before the appellant's involvement in this case, the appellant pled guilty to murder with a deadly weapon and was sentenced to six years' imprisonment. Although the appellant was not the shooter in that offense, he was armed.

The appellant's records from the Department of Criminal Justice indicate that he began using marijuana and inhalants at age ten, mushrooms and acid at age fourteen, and cocaine at age fifteen. He was an admitted alcoholic. He also admitted to joining the “Clyde Crew” gang at age fourteen. The appellant reported that activities of the Clyde Crew gang included car-jacking and running drugs. While serving his sentence on his murder conviction, the appellant was the subject of four disciplinary reports. Two of the incidents involved altercations with other inmates, one was a failure to follow orders, and in one, the appellant was found in possession of a weapon, a metal rod with a sharpened point. Prison records reflect that prior to his murder conviction, the appellant was arrested eleven times, and was placed several times in the county juvenile facility.

The tattoo was not particularly critical to the State's case, although it was the only evidence of its kind. The facts of the case were very serious: entering a family home in the early morning hours, killing two people and injuring another man. The offense in this case, along with the evidence demonstrating the appellant's escalating and increasingly violent criminal behavior, was much more relevant to the jury's decision on the appellant's future dangerousness than the tattoo. Under these circumstances, we have a fair assurance that admission of the tattoo did not influence the jury or had but slight effect. Point of error seven is overruled.

C. Disciplinary Reports

In his eighth point of error, the appellant claims that the trial court erred in allowing inadmissible hearsay accounts of uncharged prison misconduct. Specifically, the appellant complains about two Department of Criminal Justice disciplinary reports. The appellant contends that the reports were inadmissible hearsay under Rule of Evidence 803(8)(B), as matters observed by “other law enforcement personnel.”

The reports were included within a penitentiary packet designated as State's Exhibit 75. When the State proffered Exhibit 75, the appellant stated that it contained “extraneous hearsay matters” and asked if they could have a hearing on it later. The court noted the appellant's objection and stated that the packet would be reviewed before being released to the jury and portions would be redacted, if necessary.

After the State's last punishment witness, the prosecutor re-offered Exhibit 75. Outside the presence of the jury, the appellant objected to one report on the ground that the policemen involved in the incident were not identified by name and to another report as being “hearsay within a business record.” On appeal, the appellant contends the reports were inadmissible because they were matters “observed by other law enforcement personnel” under Rule 803(8)(B). The appellant's trial objections do not comport with the specific claim he now raises on appeal. He has failed to preserve error.FN34 Point of error eight is overruled.

FN34. Tex.R.App. P. 33.1; Resendiz v. State, 112 S.W.3d 541, 547 (Tex.Crim.App.2003), cert. denied, 541 U.S. 1032 (2004).

D. Evidence of the Potential for Parole Law Changes

In point of error nine, the appellant claims that the trial court erred in allowing the State to elicit testimony that the parole laws could change so that the appellant might be released on parole before the expiration of forty years on a life sentence. Prior to the appellant's case at punishment, the appellant presented a motion in limine asking the court to instruct the State “not to allude to any possibilities that the laws would change as far as the period of time [the appellant] would have to serve if he receives a life sentence.” The motion was granted.

During the punishment phase, the appellant called Dr. Dennis Longmire, who testified as an expert about various aspects of the Texas penal system. Longmire testified that a person who receives a life sentence must serve forty years before he is eligible for parole. The appellant then asked Longmire if the law had changed over the years regarding the amount of time that must be served. Longmire responded: Well, I believe the law began to change around '93-1993. Prior to 1993, capital murderers sentenced to life, capital life, became eligible for parole in around 12 years or 15 years. In '93 there was a requirement that they be-that they spend at least 35 calendar years, and then, in '95 that became 40 calendar years, and so, at this point in time that's the current law....

During the State's cross-examination of Longmire, the prosecutor asked to approach the bench, and then stated that he believed that the appellant had violated his own motion in limine by asking Longmire about how the parole law had changed over the years. The prosecutor sought permission to ask Longmire whether it was possible that the law could change in the other direction. The court agreed that the appellant had opened the door with his question and allowed the following cross-examination about which the appellant now complains:

[Prosecutor]: I believe, Dr. Longmire, that you testified, under [defense counsel's] direct examination, that the law has changed over the years regarding what the minimum parole eligibility is for parole. Is that correct? A: That's correct. Q: Is there any guarantee you can have for this jury- [objection made and overruled] A: Is there any guarantee, Dr. Longmire, you can offer this jury that the legislature will not reverse their position on what the minimum parole eligibility will be over the next few years? [objection made and overruled] A: I can't guarantee what the Texas legislature will do in any case.

On re-direct examination, the appellant elicited testimony from Longmire that the current trend in Texas was toward harsher punishments and that there was no reason to think that a change in the parole eligibility law would apply retroactively to the appellant.

The appellant's motion in limine sought to preclude the State from asking Longmire questions suggesting that the law could change affecting the period of time required to be served on a life sentence in a capital case. Despite his own motion, the appellant asked Longmire whether the laws had changed in the past regarding the amount of time to be served on a life sentence. The trial court correctly ruled that the appellant's question about past laws that have changed opened the door to the prosecutor's questions asking whether those laws could change in the future.FN35 The appellant's ninth point of error is overruled.

FN35. See Ripkowski v. State, 61 S.W.3d 378, 393-94 (Tex.Crim.App.2001); Fuentes v. State, 991 S.W.2d 267, 279 (Tex.Crim.App.1999).

The judgment of the trial court is affirmed.

COCHRAN, J., concurred in point of error eight and otherwise joins the opinion of the Court. KELLER, P.J., concurred.

Robles v. Thaler, 344 Fed.Appx. 60 (5th Cir. 2009) (Habeas)

Background: After defendant's conviction for capital murder and sentence to death was affirmed, 2006 WL 1096971, defendant filed a petition for writ of habeas corpus. The United States District Court for the Southern District of Texas, 2009 WL 594629, denied the petition. Defendant applied for a certificate of appealability (COA).

Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that: (1) federal habeas review of defendant's procedurally defaulted state court claims was barred, and (2) grammatically incorrect usage of the term “mitigates against” in jury instruction was not unconstitutionally vague. COA denied.

JERRY E. SMITH, Circuit Judge:

Martin Robles seeks a certificate of appealability (“COA”) from the denial of his petition for habeas corpus. We deny his application for a COA.

I.

Robles and an accomplice entered a dwelling while the occupants were asleep and shot and killed two persons. He was convicted of capital murder and sentenced to death. He appealed to the Texas Court of Criminal Appeals, which denied his direct appeal and his petition for a writ of habeas corpus. Robles filed a federal habeas petition, raising due process, Eighth Amendment, and Free Exercise Clause claims. The district court denied the petition, and he seeks a COA on his due process and Eighth Amendment claims.

II.

Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner must secure a COA as a “jurisdictional prerequisite” to appealing the denial of habeas relief.FN1 A COA will be granted only on “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To apply that standard, however, we conduct only a “threshold inquiry” and must issue a COA if “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338, 123 S.Ct. 1029 (citations and internal quotations omitted). “Indeed, 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. FN1. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also 28 U.S.C. § 2253(c)(2).

In death penalty cases, we resolve in the petitioner's favor any doubt about whether a COA should issue. Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005). Nevertheless, “issuance of a COA must not be pro forma or a matter of course,” and “a prisoner seeking a COA must prove ‘something more than the absence of frivolity.’ ” Miller-El, 537 U.S. at 337-38, 123 S.Ct. 1029 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Where the district court denies habeas relief on procedural grounds without reaching the underlying constitutional claims, the petitioner is additionally required to show that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

III.

Robles presents three claims of constitutional violation, all of which were rejected by the district court. Each of those claims requires discussion.

A.

Robles argues that the death penalty in Texas violates the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's guarantee of due process. The district court found that those claims were procedurally defaulted because Robles failed to raise them on direct appeal to the Texas Court of Criminal Appeals.

We find it undebatable among jurists of reason that Robles's Eighth and Fourteenth Amendment claims were procedurally defaulted. “When a state court declines to hear a prisoner's federal claims because the prisoner failed to fulfill a state procedural requirement, federal habeas is generally barred if the state procedural rule is independent and adequate to support the judgement.” Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir.2001). Where a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless he “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

In his federal habeas petition, Robles failed to show cause for his default and did not claim a fundamental miscarriage of justice. Instead, he now contends that a facial challenge to the Texas death penalty law is structural in nature and can be raised anytime. He cites no authority capable of supporting such an assertion and offers no other argument for why this court should ignore the independent and adequate procedural default. It is undebatable among jurists of reason that the district court was correct in its procedural ruling, and this conclusion is sufficient to deny a COA on the issue.

Even assuming arguendo that those constitutional claims have not been defaulted, Robles fails to raise any constitutional issue the resolution of which would be debatable among jurists of reason. “We are bound by Supreme Court precedent which forecloses any argument that the death penalty violates the Constitution under all circumstance[s].” United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998). Robles does not even attempt to show that the Texas death penalty law is unconstitutional as applied to him. Instead, he raises only a facial challenge-arguing that the death penalty in any form violates the Eighth and Fourteenth Amendments.

This court, however, “cannot invalidate the statute on the ground that it might conceivably be applied to reach an unconstitutional result in some other defendant's case.” United States v. Robinson, 367 F.3d 278, 290 (5th Cir.2004) (citations omitted). To succeed on a facial challenge on grounds other than the First Amendment, Robles must show that “no set of circumstances exists under which the [challenged statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Robles makes no such argument, so even if his claims were not defaulted, his categorical arguments based on the Eighth and Fourteenth Amendments fail to raise an issue that is debatable among jurists of reason.

B.

Robles contends that a grammatical error in the jury charge concerning the mitigation special issue violated his constitutional rights, because its phrasing could confuse the jury and render them incapable of giving effect to mitigating evidence. A capital sentencing jury must “be able to consider and give effect to a defendant's mitigating evidence in imposing [a] sentence.” Penry v. Johnson, 532 U.S. 782, 797, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (internal quotation marks, citations, and brackets omitted). The trial court instructed the jury as follows:

You shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty. Robles argues that the term “mitigates against” is grammatically incorrect and that this usage error created confusion among jurors such that they were not able to give effect to mitigating evidence.

Robles's claim of grammatical error is correct; grammar, however, is not the legal standard. An instruction is not unconstitutionally vague if the challenged term has “some ‘common sense core of meaning ... that criminal juries should be capable of understanding.’ ” Tuilaepa v. California, 512 U.S. 967, 973, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (quoting Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)). It takes more than bare grammatical error to render a jury charge constitutionally problematic.

The term “mitigates against” has the common sense core of meaning necessary to pass constitutional muster. First, the term is pervasive in everyday contemporary language. As demonstrated by the government, the pages of popular periodicals and web sites are replete with its usage. Moreover, it has been used repeatedly, without apparent vagueness or confusion, in caselaw. The Supreme Court has employed the phrase freely in a significant number of death penalty cases.FN2 Likewise, this court has employed the term without reservation in a variety of recent decisions.FN3 That prevalence, in both everyday usage and legal precedent, strongly suggests a “common sense core of meaning” that criminal juries can understand and apply.

FN2. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 251 n. 13, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007); Delo v. Lashley, 507 U.S. 272, 281, 113 S.Ct. 1222, 122 L.Ed.2d 620 (1993); Franklin v. Lynaugh, 487 U.S. 164, 170, 183, 184, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). FN3. See, e.g., United States v. Alfaro, 555 F.3d 496, 500 (5th Cir.2009); Smith v. Quarterman, 515 F.3d 392, 412 (5th Cir.2008); United States v. Arias-Robles, 477 F.3d 245, 249 (5th Cir.2007).

Even without that widespread use, however, the meaning of the phrase remains manifest when read in the context of the full charge. The words “mitigates against” follow immediately after the words “militates for.” The sentence structure suggests a clear contrast and, when read in context, the meaning of the later term is plain. Common sense suggests a meaning opposed to the words preceding the disjunctive, and the jury was not likely to be confused by its usage. The mitigation charge was not unconstitutionally vague, so this issue is not debatable among jurists of reason.

C.

Robles posits that the mitigation instruction placed an unconstitutional limitation on mitigating evidence. He concedes that the initial jury charge contained the appropriate language required under Texas law, but he argues that the court's failure specifically to refer the jury to both relevant sections of the initial charge when presented with a jury question violated his rights.

One section of the jury charge during the penalty phase instructed that “you shall consider mitigating evidence to be evidence that the jury might regard as reducing a defendant's moral blameworthiness.” Robles argues that this instruction unconstitutionally limited the jury's consideration of mitigating evidence to that which relates to moral blameworthiness and therefore precluded consideration of other relevant mitigating evidence. The full charge, however, specifically instructed the jurors to take into account “all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant.”

Robles concedes that the full charge was valid but contends that, when the jury requested clarification of the term “mitigating,” the court improperly pointed only to the former provision and neglected to direct the jury's attention to the latter. That argument fails to identify any mistake on the part of the trial court, much less a mistake of constitutional significance.

“[J]uries are presumed to follow their instructions.” Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Robles contends that the trial court's narrow response to the jury's request for a definition of mitigating evidence created a risk that the jury would not follow the entire charge. The full charge, however, was properly administered, and a narrow yet fully accurate response to a jury question will not upset the presumption that the jury followed its instructions.

As a response to a specific jury question regarding “mitigation,” the direction of the jury to the most relevant provision in the punishment charge was perfectly reasonable and appropriate. Moreover, there was nothing in that provision that in any way contradicted the previous instruction to consider “all of the evidence.” It merely contained the most direct guidance on the definition of mitigation and had none of the restrictive implications argued by Robles. Therefore, this claim in the COA application also fails to raise an issue that is debatable among jurists of reason.