Thursday, November 12, 2009
Media Advisory: Robert Lee Thompson scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Robert Lee Thompson, who is scheduled to be executed after 6 p.m. on November 19, 2009. Thompson was convicted and sentenced to die in a state district court for the 1996 murder of Mansor Bhai Rahim Mohammed, a convenience store clerk.

FACTS OF THE CRIME

On December 5, 1996, Thompson, armed with a .25 caliber semiautomatic, and Sammy Butler, armed with a .38 caliber revolver, entered a 7-Evenings food Store in Houston.

Thompson pointed his pistol at store clerk Mubarakali Meredia, who was at the counter, and told him to open the cash register and hand over all of the money. Thompson shot Meredia in the abdomen when he did not move quickly enough. Thompson also shot at Meredia’s cousin, Mansor Bhai Rahim Mohammed, who also worked at the shop, when Rahim began running toward the rear of the store. At Butler’s trial, the State offered evidence that Butler also shot at Rahim, and threatened several other customers.

Thompson then shot Meredia three more times as he lay on the floor. Thompson ordered Meredia to get up and get the money for him. Meredia did so. Then Thompson put his pistol to Meredia’s neck and pulled the trigger. Nothing happened because Thompson had run out of bullets. Thompson hit Meredia on the head with the butt of his gun and struck him with the cash register drawer. Nonetheless, Meredia survived.

Thompson took the money and ran out of the store, while Butler grabbed a stack of lottery tickets and followed behind Thompson. Thompson jumped into the driver’s seat of their car, while Butler got into the passenger’s seat, rolled down his window, and fired two shots at Rahim who had run to the front door. One bullet hit Rahim in the chest, and he died.

PROCEDURAL HISTORY

On April 2, 1997, a Harris County grand jury indicted Thompson for capital murder for the robbery and killing of Mansoor Bhai Rahim Mohammed. A jury found Thompson guilty of capital murder on March 25, 1998. On April 1, 1998, following a separate punishment hearing, the jury answered “Yes” to the first special sentencing issue, future dangerousness. The jury also answered “Yes” to the second special issue, finding that Thompson caused the death, or intended to kill, or anticipated that a human life would be taken. The jury answered “No” to the third special issue, whether mitigating circumstances existed warranting a sentence of life imprisonment. In accordance with state law, the trial court assessed Thompson’s punishment at death. The Texas Court of Criminal Appeals affirmed Thompson’s conviction. The U.S. Supreme Court denied Thompson’s petition for the writ of certiorari on December 15, 2003.

Thompson filed a state application for writ of habeas corpus in the trial court on July 13, 2000, while his direct appeal was still pending. On January 25, 2005, the trial court entered findings of fact and conclusions of law recommending Thompson’s application be denied. The Texas Court of Criminal appeals ordered further briefing on two of Thompson’s allegations related to his accomplice’s conviction for a lesser included offense. On November 9, 2005, the Court of Criminal Appeals rejected both of Thompson’s briefed claims with an opinion, adopted the trial court’s findings and conclusions regarding all of Thompson’s other claims, and denied the application. Thompson filed a federal habeas petition in a U.S. district court on October 20, 2006. The district court dismissed Thompson’s petition with prejudice and denied a certificate of appealability (COA) on November 29, 2007. On December 10, 2007, Williams filed a motion to alter or amend the judgment, which the district court denied on December 21, 2007. The United States Court of Appeals for the Fifth Circuit denied Thompson a COA on August 19, 2008. The U.S. Supreme Court denied Thompson’s petition for certiorari on March 23, 2009.

Thompson filed a subsequent state habeas application in the trial court on June 16, 2009. The Texas Court of Criminal appeals dismissed the application with a written order on September 16, 2009. To date, Thompson has not filed a petition for certiorari from the dismissal of his subsequent state habeas application.

EVIDENCE OF FUTURE DANGEROUSNESS

During the punishment phase, the jury heard evidence that the robbery-murder in which Rahim was killed was only one part of a robbery-murder spree during which Thompson, as the triggerman, had committed two additional capital murders within twenty-four hours of Rahim’s killing. (Thompson had three pending capital murder charges at the time of trial).

Huntsville Item Online

"Inmate executed after Perry rejects clemency." (Associated Press November 19, 2009 10:55 pm)

Texas inmate Robert Lee Thompson was executed Thursday evening for his part in a fatal Houston store holdup after Gov. Rick Perry rejected a parole board’s recommendation to spare Thompson because he wasn’t the gunman.

Thompson, 34, was an accomplice to triggerman Sammy Butler when 29-year-old store clerk Mansoor Bhai Rahim Mohammed was gunned down 13 years ago. Butler received life in prison. A jury gave Thompson death.

Thompson’s lawyer told the Texas Board of Pardons and Paroles Thompson’s punishment wasn’t fair and the panel voted 5-2 Wednesday to recommend his sentence be commuted to life. Perry didn’t have to follow their rare recommendation and the execution was carried out about 45 minutes after his decision.

Thompson, in brief comments from the death chamber gurney, invoked Allah as his God, thanked friends and his mother for their love and support and urged his mother, who sobbed as she watched through a window: “Smile, be happy, don’t cry.” He said he had not meant any harm to his victims’ families, none of whom was present. “I know Allah will forgive me,” he said. “Allah is the forgiver.”

His mother cried uncontrollably, stomped her feet and finally demanded to be taken from the witness area before her son was pronounced dead at 6:19 p.m., nine minutes after he was injected with the lethal drugs. Thompson was the 23rd inmate executed this year in Texas and the second this week.

Earlier Thursday, Thompson also lost an appeal before the U.S. Supreme Court to stop the punishment. The parole board’s 5-2 vote came in response to a petition from Patrick McCann, Thompson’s attorney, who argued the case was similar to that of Kenneth Foster, who also was convicted and sentenced to die under the Texas law of parties. Under that law, offenders conspiring to commit one felony like robbery can all be held responsible for another ensuing crime, such as murder. “After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed, I have decided to uphold the jury’s capital murder conviction and capital punishment for this heinous crime,” Perry said in a statement. “There is no reason to set aside the capital murder conviction handed down by a Texas jury and upheld by numerous state and federal courts.”

Perry commuted Foster’s sentence to life two years ago. Foster became only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed. In the first case, in 2004, Perry rejected the board’s recommendation and mentally ill prisoner Kelsey Patterson was executed. Perry’s explanation for commuting Foster’s sentence was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio. In Thompson’s case, he and Butler were tried separately.

At least half a dozen other Texas inmates have been executed under the law of parties. The U.S. Supreme Court since 1982 has barred the death penalty for co-conspirators who don’t themselves kill. The justices made an exception in 1987, however, ruling that the Eighth Amendment didn’t prohibit the execution of someone who plays a major role in a felony that results in murder and whose mental state is one of reckless indifference. McCann’s appeal before the Supreme Court raised questions about the competence of Thompson’s trial lawyers.

Evidence at his trial showed Thompson, who is black, told detectives he went on a two-month crime spree in 1996 because God told him to do something about Middle Eastern and Asian store clerks who discriminated against blacks. The killing was one of three he acknowledged to authorities. In two of the slayings, Thompson told detectives he was the gunman.

In a recent interview with The Associated Press, Thompson said he wasn’t against punishment for crime. “That’s the foundation of our system,” he said. “But I am against the unfairness of the system, the way it picks and chooses.” Thompson was 21 at the time of Mohammed’s shooting. Another clerk at the same store was shot four times by Thompson but survived. “I wasn’t thinking of this being wrong. It was more: You’re not doing us right,” he said of the store clerks. “They rob us. They watch us like crazy. We’re all victims.” Asked if he’d ever killed someone, he replied: “No one died in front of me. I’ve shot at people. Different things happen.”

Evidence showed he and Butler were responsible for at least eight other convenience store robberies, three of them resulting in deaths. Thompson blamed the spree on the recklessness of youth. “It was impulsive ... nothing planned,” he said. “Just — Bam!”

Dallas Morning News

"Parole board urges clemency for man set to die," by Michael Graczyk. (AP 11/18/2009)

The Texas Board of Pardons and Paroles, in a highly unusual move, is recommending commuting the sentence of a convicted murderer set to die Thursday to life in prison. Robert Lee Thompson's on death row for his part in the fatal shooting of Houston convenience store clerk 13 years ago. The board's action Wednesday leaves the decision on whether Thompson lives or dies with Gov. Rick Perry.

The 34-year-old Thompson was condemned under the Texas law of parties for being an accomplice when 29-year-old Mansoor Bhai (BYE) Rahim (rah-HEEM') Mohammed was gunned down 13 years ago. Thompson's partner, Sammy Butler, received a life term while Thompson got death.

Houston Chronicle

"Perry rejects advice to spare Houston killer," by Allan Turner. (Nov. 19, 2009, 5:48PM)

Houston killer Robert Lee Thompson is headed to the death chamber tonight after Gov. Rick Perry rejected the Texas Board of Pardons and Parole's clemency recommendation. Perry's announcement came shortly after the U.S. Supreme Court rejected an appeal from Thompson's lawyers. Thompson's execution is scheduled for 6 p.m.

"After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed, I have decided to uphold the jury’s capital murder conviction and capital punishment for this heinous crime," Perry said in a written statement. "There is no reason to set aside the capital murder conviction handed down by a Texas jury and upheld by numerous state and federal courts."

Thompson, 34, didn't fire the shot that killed convenience store clerk Mansoor Rahim during a 1996 robbery, but was still sentenced to die under Texas' so-called “law of parties,” which says a defendant can be sentenced to death for participating in a capital crime.

Court documents indicate the robbery of the Seven Evenings convenience store was to have been a final stickup in a series committed by Thompson and his accomplice, Sammy Butler. The store was staffed by Rahim and a cousin, Mubarakali Meredia and, in a death row interview, Thompson said he had harbored resentment against merchants he considered exploitative of blacks.

Thompson approached Meredia at the checkout counter, pulled a pistol and demanded money. As the clerk opened the register, Thompson shot him four times. He then spotted Rahim at the store's rear and fired two shots in his direction. Then, trial records indicate, Thompson aimed his weapoon at Meredia's neck and pulled the trigger a fifth time. Out of ammunition, the pistol failed to fire. He then pistol-whipped the clerk and beat him over the head with the cash tray. Meredia survived the attack.

As the robbers fled — Thompson at the getwaway car's wheel, Butler in the passenger seat — Rahim charged into the parking lot. Butler fired two shots, killing him.

Even though Thompson did not fire the fatal bullet, under Texas' law of parties, he was a killer as culpable as Butler and eligible for the death penalty.

Thompson was tried first and sentenced to death. In Butler's case, prosecutors failed to prove he intended to kill Rahim. He was sentenced to life in prison.

The case bore similarities to the only case in which Perry voluntarily commuted a death sentence to life in prison. In August 2007 he spared the life of Kenneth Foster, who had been convicted of capital murder in a law of parties case stemming from a deadly San Antonio traffic altercation.

As with Thompson, Foster, who had been the getwaway driver in a series of robberies, did not fire the lethal bullet. Texas' law of parties stipulates that a person may be held culpable if he “solicits, encourages, directs, aids or attempts to aid the other persons to commit the offense.” Additionally, it holds that if one felony offense grows out of the commission of another felony — a murder stemming from a robbery, for example — all parties in the first crime may be held responsible for the second.

Thompson was the second Harris County killer scheduled for execution this week. On Tuesday, U.S. District Judge Lee Rosenthal granted Gerald Eldridge a 90-day stay so that he could receive further psychological evaluation. His attorney, Lee Wilson, argued that Eldridge, 45, might be seriously mentally ill and incompetent to be exeucted. Eldridge was convicted in the 1993 murder of his former girlfriend, Cynthia Bogany, 28, and her 9-year-old daughter, Chirrisa.

ProDeathPenalty.Com

In December 1996, Robert Lee Thompson and Sammy Butler robbed a convenience store while armed with handguns. During the robbery, Thompson approached the cash register, pointed his gun at the clerk behind the counter, and demanded money. He shot that first clerk in the stomach when he did not move quickly enough. Then he shot at, but missed, a second clerk, Mansoor Bhai Rahim Mohammed, who was running toward the back of the store. Turning his attention back to the first clerk, who was lying on the floor, he shot him three more times before demanding he get up and give him the money. That first clerk did so, after which Thompson put his handgun to the first clerk's neck and pulled the trigger. Upon discovering he already had fired all of the bullets in that weapon, he hit that first clerk over the head with the cash register drawer. He then fled with Butler. As Thompson drove away, Butler fired his handgun from the passenger window and fatally shot Mansoor (at whom Thompson had previously, unsuccessfully shot). The first clerk survived and testified at Thompson's trial.

Thompson's indictment charged he caused the victim's death during the robbery by shooting him with a firearm. At the time of his trial in March 1998, Thompson had three capital murder, and several aggravated robbery, charges pending against him, including the one at hand, stemming from similar robberies. Regarding all of those charges, by the time his counsel was appointed, he had made statements to the police confessing his involvement in all of them. The jury was instructed it could find Thompson guilty of capital murder if he: (1) specifically intended to kill, and did kill, the victim; (2) intended to kill the victim by "soliciting, encouraging, directing, aiding, or attempting to aid" Butler's shooting him during the robbery; or (3) conspired with Butler to commit the robbery and Butler's shooting the victim "was committed in furtherance of the conspiracy and was an offense that Thompson should have anticipated". The jury found him guilty. In response to the jury's answers to the special issues, Thompson was sentenced to death.

Thompson v. State, Not Reported in S.W.3d, 2003 WL 21466925 (Tex.Crim.App. 2003). (Direct Appeal)

Defendant was convicted in a jury trial in the trial court, Harris County, of intentional murder while in the course of committing or attempting to commit robbery, for which he was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Womack, J., held that: (1) defendant waived for appellate review issue as to whether police officer's testimony constituted improper expert testimony as to defendant's truthfulness; (2) allegation of defendant's character witness that juror made comment on witness' or defendant's race did not necessitate investigation into possible prejudice or bias on juror's part; (3) defense counsel did not render ineffective assistance of counsel; and (4) defendant waived for appellate review issue as to whether trial court lessened State's burden of proof on special issue. Affirmed.

Holcomb, J., concurred in judgment. Johnson, J., dissented in part. WOMACK, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, KEASLER, HERVEY, and COCHRAN, JJ., joined.

On March 25, 1998, a Harris County jury convicted the appellant of the intentional murder of Mansoor Bhai Rahim Mohammed while in the course of committing or attempting to commit robbery on December 5, 1996. Tex. Penal Code § 19.03(a)(2). Pursuant to the jury's answers to the special issues in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial court sentenced the appellant to death. Art. 37.071, § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). The appellant raises ten points of error. He does not contest the sufficiency of the evidence. We affirm. In his first point of error, the appellant argues that the trial court should have sustained his objection to Officer Milton F. Waters's testimony that he believed the appellant was telling the truth when the appellant professed his “philosophy of life.” FN2 At trial, the appellant objected to Waters' testimony on the ground that it was speculative. In his brief, he argues that Waters' testimony constituted improper expert testimony as to the truthfulness of the appellant's statement. Because his trial objection does not comport with the issue raised on appeal, he has preserved nothing for our review. Tex.R.App. Proc. 33.1(a); Knox v. State, 934 S.W.2d 678, 687 (Tex.Crim.App.1996); Barnes v. State, 876 S.W.2d 316, 325 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). We overrule point of error one.

FN2. During an audiotaped statement to the police admitted at trial, the appellant professed his “philosophy” behind killing foreign convenience store owners, in part: [W]hen I found out that my girlfriend she was pregnant, you know, a lot of pressures come on me. So, I began to talk to God ... and a lot of things that we have done, you know, I don't want people to think that I'm crazy. I don't want you to look at me and say that he got a mental problem ‘cause don't nobody know God's heart on how it is. Don't nobody know what God puts on a man heart. Only that man and God knows that he comes together with, you know. So, it's just like I wasn't going out to just rob people for money and to hurt them. It wasn't that; it was I was looking at my people how we can be here all our lives. We can't get a job unless somebody help us out. We can't get it on our own selves. Or, you never hear about our people in the news talking about positive black people too much, unless, it is, unless you're a singer or you in sports and stuff like that. You never hear the positive things.... You know, you never hear the positive things about vice-presidents, or, or like, like in big major companies you never hear the things about accountants, you know, you know different, different positions that a lot of people get credit for that you never hear black people getting credit for. And it's funny how other people can come from other countries, come to this country, the government give them money to start off, give ‘em money, enough money to send their children to schools, where we got children here, we got people here, you know, that, that want opportunities to go to school, want to have start, you know, money to start off a small business, you know, stuff like that. You can't get that kind of stuff being as an African American because if people say you can, you can't ‘cause I'd have tried it. My credit, before my credit, you know, just ever got messed up, I tried to get a grant. You know, I'd had, never had no bad credit, never had no loans to go to school and stuff like that. You know, opportunities just like that never came to me. And, so you know, I look at it, they [Japanese, Chinese, Vietnamese, and Middle Eastern people] come to our country. They come in our communities. They spend our money .... ‘cause, you know, they come over here, they not giving back to our communities that you're taking from. And when we come to your stores, ah they, we go in their stores, they watch us, they, they always following us thinking we gonna steal ‘cause we black. You know it's the point that you can't feel comfortable when you spending your own money. You know, and you going in their store ‘cause you can't help but go to their store ‘cause it's in our community. But when you have black-owned stores and stuff like that, you never get ‘em in our community ‘cause it's never that opportunity for black people to have their own stores.... So, it wasn't that I was robbing them for their money-it was just a point, how can you come in our neighborhoods and do us like that and think we not God's people.... The only image that you get from a black person on the news is, is robbing, killing, and stuff like that. That's all you see. But in God's heart and in God's eye, who's to say that's wrong? Who's to say that God put you in a store, to own that store, and you made promises to Him and by you disobedient to him that he won't punish you for it ‘cause He will. Regardless if it's gonna be me, using me, it's gonna be somebody that you gonna get punished for. And in your heart, you know you being punished.... You know you just been judged.... [ Sic et passim ].

In his second point of error, the appellant alleges that the trial court violated the Fifth and Fourteenth Amendments by refusing defense counsel's request to investigate the core prejudices behind one juror's statement, “poor little black boy,” following the testimony of Tommy Collier. During the punishment phase, Collier, a character witness for the appellant, testified that the appellant was active in his church, that the appellant's life was worth sparing, and that Collier did not agree with the appellant's “philosophy of life.” As Collier left the stand, one juror allegedly remarked “poor little black boy.” Both Collier and the appellant are African-American. Collier testified outside of the jury's presence that a male juror had made the statement, although Collier could not identify the juror. The trial court refused defense counsel's request to question each of the male jurors individually about the statement.

For obvious reasons, we have long held that voir dire examination is the time to uncover potential prejudice or bias in prospective jurors during voir dire, and that a defendant who begins the inquiry in the middle of the trial is not acting timely. [D]efense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror's inability to be impartial, truthful, and the like. Unless defense counsel asks such questions, we must hold … that the purportedly material information which a juror fails to disclose is not really “withheld” so as to constitute misconduct which would warrant reversal. Jones v. State, 596 S.W.2d 134, 137 (Tex.Crim.App.1980), overruled on other grounds, Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App.1984); see Gonzales v. State, 3 S.W.3d 915, 916-17 (Tex.Crim.App.1999). Because defense counsel did not diligently question the jurors about racial bias during voir dire, an alleged bias manifested later does not constitute juror misconduct.

Perhaps more importantly, the statement that the witness heard is not a clear manifestation of racial bias against the appellant. To begin with, it is not clear whether the statement referred to the witness or the appellant. If it did refer to the appellant, it is not clear whether it was sincere or ironic. If it was ironic, it is not clear that racial animosity was its gravamen. It seems at least possible that it could have been a skeptical summary of the witness's depiction of the appellant, which was markedly different from the other evidence that the jury had heard about his character. That is, the remark could have been the juror's opinion that the witness wanted the jury to see the appellant as just a poor, little, black boy.

Therefore, we do not sustain the appellant's argument that the trial court violated the Fifth or Fourteenth Amendments in refusing to allow counsel to probe any alleged racial bias through mid-punishment phase questioning. We overrule point of error two.

In points of error three, four, seven, eight, nine, and ten, the appellant contends that trial counsel rendered ineffective assistance under the federal and state constitutions. Because we have adopted the federal standard for reviewing claims of ineffective assistance of counsel under the corresponding provision of the Texas Constitution, Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986), we will analyze both federal and state constitutional claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must first demonstrate that his trial counsel rendered deficient performance, proving by a preponderance of the evidence that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88 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). Secondly, he must show that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694; see also Williams v. Taylor, 529 U.S. 362, 390-95, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (reaffirming Strickland's prejudice standard as the proper standard in most cases). In assessing claims of ineffective assistance of counsel on direct appeal, this Court has indulged a strong presumption that counsel's actions fall within the wide range of reasonable professional assistance, absent evidence to the contrary. Busby v. State, 990 S.W.2d 263, 268-69 (Tex.Crim.App.1999), cert. denied, 520 U.S. 1081 (2000); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Furthermore, the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Strickland, 466 U.S. at 690.

There is often a procedural problem as well. A claim of ineffective assistance of counsel often is better made by habeas corpus because an appellate record usually does not disclose relevant facts, particularly about counsel's strategic choices. This is especially so when the alleged error of counsel is one of omission. We will not apply the general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal. Jackson v. State, 973 S.W.2d 954 (Tex.Cr.App.1998). Cf. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714, 71 U.S.L.W. 4310 (2003) (adopting same rule for federal courts, and resolving a circuit split).

We shall take up the appellant's points in the order in which they arose at trial.

In his ninth point of error, the appellant argues that he received ineffective assistance of counsel when the State forced defense counsel to agree to excuse Juror West. Because Juror West indicated on her questionnaire that participating as a juror in the instant case would negatively affect her schooling, the State probed her answer and discovered that she would probably have to drop her classes for the semester if she served as a juror, something she did not want to do.FN3 Regardless, she said that she could still act as a fair and impartial juror. The State, defense counsel, the trial court, and the appellant then engaged in the following exchange: [State]: I'll agree to let this lady go so she can go to school if they want to agree. [Defense counsel]: I guess we have to agree. [State]: I'm sorry. [Defense counsel]: That's fine Terrance. We agree. [The Court]: Do you agree with that, Mr. Thompson? [The appellant]: Yes, sir. FN4. Article 35.05 states: “One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled.”

In his tenth point of error, the appellant contends that he was denied the effective assistance of counsel when the State questioned a prospective juror outside of defense counsel's presence. After a recess during individual voir dire examination, the prosecutor initiated the voir dire examination of Juror Honc with the following exchange: [Prosecutor]: Good Morning, Mister-is it Honc? [Honc]: That's correct. Q: It's Honc. How are you doing? A: Just fine. Q: Again, my name is Terrance Windham. I'm real pleased to meet you, sir. You met Mr. Greenlee [defense counsel] and Connie [defense counsel] and Casey [prosecutor] yesterday. They're out right now, but they'll be back in.

The appellant cites the prosecutor's statement-“They're out right now”-as proof that neither defense counsel were in the court room while the prosecutor examined Juror Honc.

Counsel's statement is ambiguous as to which of the three people the prosecutor was referring, and it seems more likely that it referred to the co-counsels on both sides. Further, the record does not support the contention that both defense counsel missed Juror Honc's voir dire. Defense counsel Greenlee began his voir dire of Juror Honc immediately upon the conclusion of the prosecutor's examination. Without any additional evidence that counsel indeed missed the voir dire of Juror Honc, the appellant has failed to provide this Court enough information even to initiate a Strickland analysis. See Tex.R.App. Proc. 38.1. We overrule point of error ten.

In his seventh point of error, the appellant alleges that trial counsel rendered ineffective assistance for failing to request a charge on the lesser-included offense of murder. Without objection, the trial court's charge authorized the jury to convict the appellant of the offense of capital murder as a principal or as a party, or the lesser-included offense of aggravated robbery. The appellant argues that the jury may have believed that the appellant only knowingly caused the death of the victim, thereby entitling the appellant to a charge on the lesser-included offense of murder.

In order to establish his claim that trial counsel rendered ineffective assistance for failing to request the instruction, the appellant must show that he was entitled to an instruction on the lesser-included offense of murder. Kinnamon v. State, 791 S.W.2d 84, 97 (Tex.Crim.App.1990) (since the evidence did not authorize submission of a murder instruction as a lesser-included offense, the appellant's trial counsel did not render ineffective assistance for failing to request it), overruled on other grounds, Cook v. State, 884 S.W.2d 485 (1994). Since Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981), we have consistently held that the appellant must meet a two-prong test to establish his entitlement to present to the jury a charge on a lesser-included offense: “first, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense.” 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); see also Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985). The second prong of the test requires that the record contain some evidence “that would permit a jury rationally to find that … he is guilty only of the lesser included offense.” Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App.1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998).

The capital murder statute under which the State indicted the appellant requires an intentional murder committed in the course of robbery. Tex. Penal Code § 19.03(a)(2). The murder charge the appellant asserts the trial court should have included requires a person to intentionally or knowingly cause the death of an individual. Id. at § 19.02(b)(1). Because the proof necessary for capital murder committed in the course of robbery includes the elements of murder, murder is a lesser-included offense of capital murder. See Art. 37.09. The appellant admitted in a taped confession to planning the robbery of the Braeswood convenience store with the co-defendant, Sammy Butler. Upon first arriving at the convenience store, the appellant purchased a beer and left. A short time later, he and Butler returned to the store to exchange the beer. Mohammed's cousin, Mubarakali Meredia, was working behind the cash register at the time. When Meredia handed the appellant a bag for the new beer, the appellant pulled out a .25 caliber pistol and demanded all of the money from the register. Meredia opened the cash register and “began to go down” behind the counter. The appellant shot Meredia in the abdomen, and Meredia fell to the floor. The appellant then went behind the counter to retrieve the money, pistol-whipped Meredia, and shot him three or four more times. The appellant ordered Meredia to get up and hand over the money, and Meredia complied.

Meanwhile, Mohammed and a customer, who were standing at the meat counter, ducked down behind the counter when they heard the gunshots. Butler, who was standing near the front door, shot at them with a .38 caliber gun. Butler grabbed a case of lottery tickets, and he and the appellant fled the store. As they got in the car, they saw Mohammed approaching the front door of the store. According to the appellant, Butler then began shooting at Mohammed through the glass door. The confession included the following: Q [Investigator Waters]: Okay. And, then you run outside and get in the car, and you are driving and Sammy is in the passenger side? A [The appellant]: Yes. Q [Waters]: And he-he shoots at the store, or is somebody coming up to the door? A: Well, he shoots-And, the man [Mohammed] was coming up and going back. He just shot basically at the window just to make the man go run back in the store as we get away. * * * Q [Sergeant Swaim]: Do you know how times-how many times Sammy shot at this guy? Was it once or twice, or? A: Well, he just, you know, he shot. * * * Q [Waters]: He shot once inside the store and once outside. A: No, he just kept on shooting. He unloaded and I unloaded. Q [Swaim]: Okay, you weren't-you weren't like counting the shots? A: No. Q [Swaim]: But, he-he was shooting at this guy? A: Yeah. Q [Swaim]: So you think this guy is coming out to try to see where y'all went, get a license plate number, or something like that? A: Yeah. Q [Swaim]: I'm assuming that's why- A: Yeah. Q [Swaim]: Sammy shot him....

The appellant argues that Butler only knowingly committed murder by shooting at the door of the convenience store, which would not prove the intent element of capital murder, entitling the appellant to an instruction on the lesser-included offense of murder.

To decide whether defense counsel's failure to request a charge constitutes ineffective assistance, we would first have to decide whether such a failure would be below an objective standard of reasonable professional competence. As is usual in an appeal, the record does not indicate the reason for counsel's omitting to request the charge. Therefore it is not possible on this record to decide the first issue. Of course, if that issue were decided in the appellant's favor, we would still have to decide whether he was prejudiced, which would require one or two more decisions: whether the evidence would have entitled a party to a charge on the lesser-included offense of murder (a point on which we express no opinion), and, if it did, whether the outcome of the case would have been different in reasonable probability. Point of error seven is overruled.

In point of error eight, the appellant alleges that trial counsel rendered ineffective assistance in failing to object to the testimony of three witnesses who testified to the character of the victims during the guilt-innocence phase. He specifically complains of the following four exchanges between the witnesses and the State: [State]: Did you know the people who ran that store, the clerks that worked there? [Floyd]: Yes. Q: And had you known them for a while? A: Yes. Q: What type of people were they? A: They were nice people. If you come in the store they talked with you, smile and laugh with them. They were very nice people. I knew them. * * * [State]: Was he down there on the floor with you, the clerk? [Floyd]: Yes, he was over me. Q: On top of you? A: Yes. Q: Was it like he was shielding you, trying to protect you? A: Yes. * * * [State]: Did you know the clerks that worked there? [Scott]: Yes. Q: Were they pretty good people? A: Yes. * * * [State]: Did you know that clerk? [Brown]: I've seen him from going in the store. Q: Okay. And was he always pretty nice to you when you went in the store? A: Yes, very.

The appellant relies on Texas Rule of Evidence 404(a)(2) for the proposition that the State may not introduce victim character evidence unless it specifically rebuts evidence that the victim was the first aggressor. In fact, Rule 404(a)(2) disallows evidence of a person's character or trait of his character “ for the purpose of proving action in conformity therewith on a particular occasion, except ... to rebut evidence that the victim was the first aggressor” (emphasis added).

Again the record does not disclose the reason why counsel did not object, which may have been strategic. If the omission was below the standard of reasonable professional competence, there would remain two questions: whether the evidence was introduced to prove that the victims acted in conformity with their character, rather than to establish the witnesses' general familiarity with the convenience store and its clerks, and whether a successful objection would have affected the outcome of the trial in reasonable probability. We overrule point of error eight.

In his third point of error, the appellant argues that his trial counsel lessened the State's burden of proof on the appellant's extraneous offenses, ensuring an affirmative answer to the future dangerousness special issue.FN5 See Art. 37.071, § 2(b)(1).

FN5. The appellant also alludes to a due process violation. Not only has the appellant inadequately briefed this point, to address it would render all of point three multifarious. See Tex.R.App. Proc. 38.1; Dunn v. State, 951 S.W.2d 478, 480 (Tex.Crim.App.1997).

During defense counsel's closing argument on punishment, he stated: And in the State of Texas-which may very well be different than other states-you're allowed to hear evidence of unadjudicated extraneous offenses; and, so, the State brought you seven of those, two of which were capital murders. Now, your role in that particular process, in terms of viewing the extraneouses, is not to find [the appellant] guilty of extraneous offenses. That may or may not be for another jury to decide. Your duty and responsibility-the information was given to you to help you, if it does, in trying to answer the notion of whether or not this young man would be a threat in the future.

The appellant argues that counsel alleviated the State's burden of proof on extraneous offenses, when, in fact, counsel explained to the jury that its role was not to render a verdict on the extraneous offenses but to consider them in assessing the special issues-a true statement.

It seems unlikely that the argument would have such an effect, especially since it was not contrary to the court's charge: [Y]ou may consider such evidence only if the extraneous crime or bad act has been shown by the State beyond a reasonable doubt to have been committed by the defendant.... The presumption of innocence alone is sufficient for you to find that the defendant did not engage in the extraneous offense or act of misconduct that has been placed in evidence unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt or responsibility therefor after careful and impartial consideration of all the evidence in the case. [Emphasis added].

Because the appellant has failed to establish that trial counsel rendered deficient or prejudicial performance, we overrule point of error three.

In point of error four, the appellant argues that trial counsel rendered ineffective assistance of counsel by lessening the State's burden of proof on the second special issue.FN6 During punishment phase closing arguments, counsel Williams paraphrased the second special issue as requiring the jury to determine whether the appellant was “responsible for the killing in some kind of way.” The appellant believes that counsel's statement alleviated the State's burden of proof on the second special issue, a trend since voir dire.FN7

FN6. In the instant case, the trial court submitted to the jury the second special issue, pursuant to Article 37.071, § 2(b)(2): Do you find from the evidence beyond a reasonable doubt that [the appellant], the defendant himself, actually caused the death of Mansoor Bhai Rahim Mohammed, on the occasion in question, or if he did not actually cause the death of Mansoor Bhai Rahim Mohammed, that he intended to kill Mansoor Bhai Rahim Mohammed or another, or that he anticipated that a human life would be taken? FN7. The appellant also argues that co-counsel's statements-“And there are just a few things I want to point out to you. I don't know what they could be. [Lead counsel] really covered just about everything we need to talk to you about.”-alleviated the State's burden of proof on the second special issue. He fails to offer this Court any reasoning for this claim, nor can the Court glean one. See Tex.R.App. Proc. 38.1.

Our view of the record is that counsel adhered to a strategy first manifested during voir dire, when he concentrated his questioning regarding the special issues almost exclusively on future dangerousness and mitigation. Likewise, during closing arguments on punishment, counsel Williams merely paraphrased the second special issue following counsel Greenlee's fuller explication.

Absent evidence to the contrary, we must presume that counsel strategically decided to avert attention from the second special issue throughout trial, first during voir dire,FN8 and later in punishment phase closing arguments. See Busby, supra. It would be a reasonable strategic decision that the other special issues were more likely to swing in the appellant's favor, and that counsel should avoid repetition of an issue that, in light of the jury's guilty verdict, was weak. Because we conclude that counsel's actions conformed with trial strategy, we overrule point of error four.

FN8. The appellant cites several instances of the State's and trial court's voir dire where the appellant believes defense counsel should have objected. Further, he believes defense counsel should have more fully explicated the issue during his own voir dire of the jurors.

In points of error five and six, the appellant argues that the trial court lessened the State's burden of proof on the second special issue by explaining to the jury during voir dire that it need find only that the appellant should have anticipated the victim's death to answer the second special issue affirmatively, in violation of the state and federal due course of law and fair trial provisions.FN9 The appellant failed to object to the trial court's voir dire of the jury, therefore failing to preserve this error for review. Tex.R.App. Proc. 33.1(a); Knox, 934 S.W.2d at 687; Barnes, 876 S.W.2d at 325. We overrule points of error five and six.

FN9. The trial court's charge on parties following guilt-innocence and the second special issue track the statutory language required by Tex. Penal Code § 7.02 and Art. 37.071, § 2(b)(2), respectively.

Finding no reversible error, we affirm the judgment of the trial court.

HOLCOMB, J., concurred in the judgment. JOHNSON, J., dissented as to Point Two.

Ex parte Thompson, 179 S.W.3d 549 (Tex.Crim.App. 2005). (PCR)

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

Applicant was convicted of capital murder for the shooting death of Mansor Bhai Rahim Mohammed during an aggravated robbery at the 7-Evenings Food Store in Houston. Based upon the jury's answers to the special issues set out in Article 37.071,FN1 the trial court set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal.FN2

FN1. Tex.Code Crim. Proc. art. 37.071(b) & (e)(1). FN2. Thompson v. State, No. 73,128, 2003 WL 21466925 (Tex.Crim.App. June 25, 2003) (not designated for publication).

Applicant raises six claims in his habeas corpus application filed pursuant to Article 11.071 of the Texas Code of Criminal Procedure. We ordered the parties to brief two of those claims which we rephrased: 1) Whether applicant is factually innocent of the offense of capital murder; and 2) Whether applicant was deprived of the effective assistance of counsel due to his trial counsel's failure to request a charge on felony murder. Both of these claims hinge upon the “newly available” fact that Sammy Butler, applicant's triggerman-accomplice, was convicted of felony-murder after applicant's trial.

Applicant's position on the first claim is that There is no evidence that Applicant personally killed the complainant. To the contrary, the only evidence is that Butler committed the offense. Thus, Applicant's guilt is derivative of Butler's guilt. Simply stated, at most Applicant is guilty of the offense for which Butler is guilty.

Regarding the second claim, applicant argues that the only viable defense strategy in his trial was to request a jury instruction on felony-murder-a strategy which succeeded in the accomplice's trial. Because applicant's counsel did not request an instruction on felony-murder, applicant contends that his trial attorney provided ineffective assistance of counsel under Strickland v. Washington.FN3 FN3. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

For the reasons set out below, we reject both of these claims. As for his remaining claims, we adopt the trial court's findings of fact and conclusions of law. Based upon those findings and our independent review, we deny relief.

I.

The State's evidence at trial showed that applicant and Sammy Butler acted together in planning the armed robbery at the 7-Evenings Food Store. Applicant told Butler that this would be their last robbery and it was going to be “a big one.” Applicant, armed with a .25 caliber semiautomatic weapon, went into the convenience store to exchange a beer he had purchased earlier. Butler, armed with a .38 caliber revolver, came into the store with him.

Applicant approached Mubarakali Meredia, who was tending the counter, pointed his pistol at Mr. Meredia, and told him to open the cash register and hand over all of the money. Applicant shot Mr. Meredia in the abdomen when he did not move quickly enough. He shot at Mr. Meredia's cousin, Mansor Bhai Rahim Mohammed, who also worked at the shop, when he began running toward the back of the store.FN4 Applicant then shot Mr. Meredia three more times as he lay on the floor. He ordered Mr. Meredia to get up and get the money for him. Mr. Meredia did so. Then applicant put his pistol to Mr. Meredia's neck and pulled the trigger. Nothing happened. He had run out of bullets. So applicant hit Mr. Meredia on the head with the butt of his gun and struck him with the cash register drawer. Nonetheless, Mr. Meredia survived.

FN4. At Butler's trial, the State offered evidence that Butler pulled out his .38 revolver, also shot at Mr. Rahim, and threatened several other customers during this time.

Applicant took the money and ran out of the store. Butler grabbed a stack of lottery tickets as he followed behind applicant. Applicant jumped into the driver's seat of their car, while Butler got into the passenger's seat, rolled down his window, and fired two shots at Mr. Rahim who had run to the front door. One bullet hit Mr. Rahim in the chest, and he died.

Based upon this evidence, the jury convicted applicant of capital murder. During the punishment phase, the jury heard evidence that this robbery-murder was only one part of a robbery-murder spree during which applicant, as the triggerman, had committed two additional capital murders.FN5 Based upon all of the evidence submitted, the jury found that applicant would pose a future risk of danger and that there were no mitigating circumstances that would call for a life sentence. The judge sentenced him to death. FN5. Applicant had three pending capital murder charges at the time of trial.

Approximately six months after applicant's conviction, his accomplice, Sammy Butler, was tried for capital murder. The jury in that case returned a guilty verdict on the lesser-included offense of felony-murder and sentenced Butler to life imprisonment.

II.
A. Claim of Factual Innocence

Applicant contends that he is factually innocent of capital murder because a different jury found Sammy Butler guilty only of felony-murder.FN6 He argues that his accomplice liability for the robbery-murder of Mr. Rahim hinges upon Butler's conviction in a separate trial rather than the evidence of his and Butler's conduct and mental states in applicant's own trial. Applicant argues that “it is the intent of the killer which determines whether the offense is a capital murder or a felony-murder. If the actual killer intended the death, it is a capital murder. If he did not, it was not capital murder.” Applicant misinterprets the law.

FN6. According to applicant, Butler's conviction of the lesser-included offense of felony-murder “is a jury finding after a full trial, a finding binding upon the State under the principles of collateral estoppel. Both Butler's acquittal of capital murder and his availability to testify are facts which were unavailable at the time of Applicant's trial.”

Under Section 7.02(a), a person is criminally responsible for a capital-murder offense committed by another person's conduct, if (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; [or] (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.]

Thus, applicant could be found guilty of capital murder under Section 7.02(a) if he had the intent to kill someone during this aggravated robbery, and (1) he caused or aided a totally innocent person to shoot and kill Mr. Rahim, or (2) he solicited, encouraged, directed, or aided Sammy Butler to commit capital murder.FN7

FN7. Put another way, the evidence must show that, at the time of the offense, the parties were acting together, each contributing some part toward the execution of their common purpose. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994).

Furthermore, under Section 7.02(b), a person may be found guilty of capital murder if the following conditions are met: [I]f, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

The jury in this case was instructed that it could find applicant guilty of capital murder in any of three different ways: as the actual triggerman; as a party to Sammy Butler's shooting of Mr. Rahim under Section 7.02(a)(2); or as a co-conspirator to the aggravated robbery under Section 7.02(b). Under the first two theories, the jury was required to find that applicant himself intended the death of Mr. Rahim; under the third theory the jury was required to find that applicant should have anticipated Mr. Rahim's death as a consequence of his and Butler's agreement to commit aggravated robbery and Mr. Rahim's death occurred in furtherance of that crime.

If the jury found that applicant and Sammy Butler conspired to commit an aggravated robbery, and either one of them shot and killed Mr. Rahim (intentionally or unintentionally), either or both of them may be convicted of capital murder if Mr. Rahim was killed in furtherance of the aggravated robbery and his murder was one that should have been anticipated as a part of this aggravated robbery.

There is nothing in Texas law that limits applicant's criminal responsibility for the conduct of his accomplice, Sammy Butler, to only those specific crimes for which a jury has convicted Butler. In fact, Texas law is exactly the opposite. Section 7.03(2) of the Penal Code states that it is no defense that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.FN8

FN8. Tex. Pen.Code § 7.03(2); see, e.g., Singletary v. State, 509 S.W.2d 572, 578 (Tex.Crim.App.1974) (noting that “an accomplice is not entitled to a new trial or reversal just because a subsequently tried principal has been acquitted. The fact that another jury acquitted the principal in a subsequent trial does not by itself entitle an accomplice to the same offense to a new trial. In many instances different juries reach opposite results on the same evidence.”) (citations omitted); Reece v. State, 521 S.W.2d 633, 634-35 (Tex.Crim.App.1975) (either of two co-defendants could be convicted of aggravated robbery although one of them was convicted only of “simple” robbery; “the evidence was sufficient to support a conviction of aggravated robbery for either defendant”); see generally, Donald M. Zupanec, Acquittal of Principal, or His Conviction of Lesser Degree of Offense, as Affecting Prosecution of Accessory, or Aider and Abettor, 9 A.L.R.4th 972 (1981 & 2005 Supp.).

It is well-established that one accomplice may be found guilty of a different, more serious offense than other accomplices.FN9 Indeed, the acquittal of the principal does not prevent conviction of his accomplice. FN10 And it does not matter whether the acquittal of the principal occurs before or after the accomplice's trial.FN11 What matters under Section 7.02(a) is the criminal mens rea of each accomplice; each may be convicted only of those crimes for which he had the requisite mental state. As Professor LaFave notes:

FN9. See generally, 1 Charles E. Torcia, Wharton's Criminal Law § 34 (15th ed. & 2004 Supp.); Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 582 (1957); see, e.g., People v. Garcia, 28 Cal.4th 1166, 124 Cal.Rptr.2d 464, 52 P.3d 648, 652 (2002) (noting that “[b]ecause an aider and abettor may potentially be guilty of a more serious offense than the shooter ... the absence of a shooter's conviction is not dispositive of the aider and abettor's exposure to liability”); State v. Kaplan, 124 N.H. 382, 469 A.2d 1354, 1355 (1983) (conviction of wife who pleaded guilty to accomplice role in murder of husband would not be reversed even though principal, an alleged contract killer, was acquitted, and noting that “ ‘conviction of an accomplice is thus premised upon proof of the commission of the criminal act, rather than on the guilt of the principal’ ”) (citation omitted); Jeter v. State, 261 Md. 221, 274 A.2d 337, 338-39 (1971) (collecting cases and concluding that virtually all American jurisdictions hold that the subsequent acquittal of a principal does not affect the trial or conviction of an accomplice). The North Carolina Supreme Court has traced this principle back three hundred years to Wallis' Case, 1 Salk. 334. See State v. Whitt, 113 N.C. 716, 18 S.E. 715, 716 (1893). The Model Penal Code also adopts this position. See Model Penal Code § 2.06(7) (2001) (accomplice can be convicted “though the person claimed to have committed the offense ... has been acquitted”).

FN10. The controlling case on this issue is Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), in which Standefer was accused of aiding and abetting a revenue official, Cyril Niederberger, in accepting compensation beyond that authorized by law. Niederberger was acquitted of accepting unlawful payments. After Niederberger's trial and before his own trial, Standefer moved to dismiss the charges and argued that he could not be convicted of aiding and abetting the principal when the principal had been acquitted. His motion was denied, he was convicted, the court of appeals affirmed, and the Supreme Court granted certiorari. Standefer raised two issues before the Supreme Court: (1) the federal aiding and abetting statute was not intended to authorize prosecution of an aider and abettor after the principal had been acquitted; and (2) the doctrine of nonmutual collateral estoppel barred the government from prosecuting him after Niederberger's acquittal.

The Supreme Court traced the origins of aiding and abetting back to English common law and noted that at early common law all parties to a felony received the death penalty; therefore, certain procedural rules were developed to shield accessories from such severe punishment. 447 U.S. at 15, 100 S.Ct. 1999. Among them was the rule that an accessory could not be convicted without the prior conviction of the principal offender: “In every way, ‘an accessory [followed], like a shadow, his principal.’ ” Id. (quoting 1 J. Bishop, Criminal Law § 666 (8th ed. 1892)). This procedural bar applied only to the prosecution of accessories in felony cases, not in misdemeanor cases where an accessory could be prosecuted after the principal was acquitted. Id. at 15-16, 100 S.Ct. 1999. In 1848, Parliament enacted a statute which permitted an accessory to be convicted even though the principal was acquitted. Id. at 16, 100 S.Ct. 1999. Congress followed in 1899 by enacting the first statute in this country which provided that “all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the crime or aid and abet in its commission, though not present, are principals, and to be tried and punished as such.” Id. at 17-18, 100 S.Ct. 1999. The Supreme Court, in its discussion of the historical law on aiding and abetting, stated, “Read against its common-law background, the provision evinces a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense.” Id. at 19, 100 S.Ct. 1999. Thus, all participants in a crime “are punishable for their criminal conduct; the fate of other participants is irrelevant.” Id. at 20, 100 S.Ct. 1999.

Moving to the issue of collateral estoppel, the Court noted that several aspects of criminal law make nonmutual estoppel against the government when a principal is acquitted inappropriate. Id. at 21-22, 100 S.Ct. 1999. These include limited discovery rights, a prohibition against a directed verdict on behalf of the government, a bar against the government seeking appellate review of an acquittal, and a jury's unfettered right to acquit out of compassion or compromise. Id. at 22, 100 S.Ct. 1999. Furthermore, “[t]he application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law.” Id. at 23, 100 S.Ct. 1999. Thus, evidence that is admissible against one accomplice may be inadmissible against others, preventing the government from presenting all of its possible proof against some of the participants in the crime. Id. at 23-24, 100 S.Ct. 1999. Although “symmetry of results may be intellectually satisfying, it is not required”; thus, the acquittal of a principal does not bar the conviction of an accomplice. Id. at 25, 100 S.Ct. 1999. FN11. See Owens v. State, 161 Md.App. 91, 867 A.2d 334, 340 (2005) (noting that the “clear answer given by other courts and treatise writers” is that even after a principal has been acquitted of a crime, another person can be convicted for his role in aiding and abetting the commission of that same crime).

The notion that the accomplice may be convicted, on an accomplice liability theory, only for those crimes as to which he personally has the requisite mental state, is applicable in a variety of circumstances. It means, for example, that one may not be held as an accomplice to the crime of assault with intent to kill if that intent was not shared by the accomplice. But this limitation has proved most significant in the homicide area, where the precise state of mind of the defendant has great significance in determining the degree of the offense. To determine the kind of homicide of which the accomplice is guilty, it is necessary to look to his state of mind; it may have been different from the state of mind of the principal and they thus may be guilty of different offenses. Thus, because first degree murder requires a deliberate and premeditated killing, an accomplice is not guilty of this degree of murder unless he acted with premeditation and deliberation. And, because a killing in a heat of passion is manslaughter and not murder, an accomplice who aids while in such a state is guilty only of manslaughter even though the killer is himself guilty of murder. Likewise, it is equally possible that the killer is guilty only of manslaughter because of his heat of passion but that the accomplice, aiding in a state of cool blood, is guilty of murder.FN12. 2 Wayne R. LaFave, Substantive Criminal Law § 13.2(c) at 346-47 (2d ed. 2003).

Thus, what is essential to applicant's conviction of capital murder as a party under Section 7.02(a)(2) FN13 is evidence that supports a finding, beyond a reasonable doubt, that he intended the death of Mr. Rahim and that he assisted Sammy Butler in causing that death.FN14 FN13. Because of our disposition of this first claim under Section 7.02(a)(2), we need not address the applicability of applicant's conspiracy liability under Section 7.02(b) which does not require proof of applicant's intent to cause Mr. Rahim's death. FN14. The jury was not instructed, during the guilt stage, on the law of transferred intent under Section 6.04(b). Thus, the charge required the jury to find that applicant intended the death of Mr. Rahim, rather than some other person under Section 7.02(a)(2).

The evidence of applicant's intent to kill is not merely sufficient, it is overwhelming: Applicant came to the convenience store armed with a semiautomatic pistol; Applicant knew that Butler came to the convenience store armed with a .38 revolver; Applicant intentionally pointed his pistol at Mr. Meredia and demanded money; Applicant intentionally shot Mr. Meredia in the abdomen; Applicant intentionally shot Mr. Meredia three more times as he lay on the ground; Applicant intentionally shot at Mr. Rahim who was fleeing to the back of the store; Applicant intentionally put his semiautomatic pistol against Mr. Meredia's neck and pulled the trigger; the only reason Mr. Meredia did not die from that intentional act was because applicant's revolver was out of bullets; Applicant intentionally hit Mr. Meredia over the head with the butt of his revolver; Applicant intentionally struck Mr. Meredia with the cash register drawer. From this evidence of applicant's obvious intent to kill Mr. Meredia and his repeated attempts to do so, any reasonable juror could conclude that applicant also intended that his accomplice, Sammy Butler, kill Mr. Rahim. Applicant argues that, even though he may have acted with malice aplenty and attempted to kill and intended to kill, the offense of capital murder was never committed by anyone because a different jury found that Butler did not intentionally kill Mr. Rahim. He relies upon the first sentence of Section 7.03 which reads:

In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission....FN15 FN15. Tex. Pen.Code § 7.03 (emphasis added).

Applicant argues that Butler's subsequent acquittal of capital murder proves that, under Section 7.03, no capital murder was ever committed. Applicant misreads Section 7.03. That provision applies to the proof offered at applicant's trial, not the evidence offered in some other trial. It was in applicant's trial that the State bore the burden of offering “proof of commission of the offense” of capital murder. And indeed it did. There is evidence aplenty that Sammy Butler, as well as applicant, intended to cause Mr. Rahim's death: Butler came to the convenience store armed with a .38 revolver; Butler knew that applicant came to the convenience store armed with a semiautomatic pistol; Butler knew that applicant shot Mr. Meredia several times; Butler shot at Mr. Rahim and another customer while applicant was shooting at Mr. Meredia; Butler threatened to shoot other customers while applicant was grabbing the money from the cash register; Butler did shoot in the direction of Mr. Rahim a second time while both robbers were still in the store;

After applicant and Butler got into their getaway car, Butler rolled down the passenger-side window and shot Mr. Rahim who had run to the door of the store; Butler shot at Mr. Rahim twice; One of those shots hit Mr. Rahim in the chest and killed him. Applicant told police during his oral confession that Butler “kept shooting. He unloaded and I unloaded.” FN16. Applicant's confession was admissible at his own trial but not at Butler's trial.

It might be possible to conclude that Butler did not aim at Mr. Rahim or intend to shoot him in the chest. But applicant's jury was certainly entitled to believe that Butler's two shots were not a sheer accident, and that Mr. Rahim's death was not the result of a wayward bullet that fortuitously ended up striking the unlucky man.FN17 It was entitled to conclude that Butler intended precisely what occurred-Mr. Rahim's death.FN18 And it was also entitled to conclude that applicant intended that Butler shoot and kill Mr. Rahim just as applicant surely would have killed Mr. Meredia if only he had not first run out of bullets.

FN17. As a part of this claim, applicant contends that he has “newly available” evidence from Butler who would testify that he did not intend to kill Mr. Rahim. But this is not newly available-Butler, like applicant, gave a written confession shortly after his arrest. Applicant's trial counsel stated that he was familiar with the confession in which Butler admitted his participation in the robbery at the 7-Evenings store and that he shot and killed Mr. Rahim. Butler stated then (and presumably would state now) that he did not intend to kill Mr. Rahim. Applicant's trial counsel was aware of Butler's confession at the time of trial and Butler's assertion that he did not intend to kill Mr. Rahim matched applicant's same assertion about Butler's conduct in his confession. Applicant's counsel stated that there was nothing in Butler's confession that caused him to change-or want to change-his overall trial strategy.

The jury in Butler's trial apparently believed that statement, while the jury in applicant's trial did not believe that Butler unintentionally killed Mr. Rahim. We cannot dispute the right of two different juries in two different trials to reach two different verdicts concerning two different defendants based upon two different sets of admissible evidence. FN18. It is both a common-sense inference and an appellate presumption that a person intends the natural consequences of his acts, Whitlock v. State, 146 Tex.Crim. 594, 600, 177 S.W.2d 205, 208 (1943), and that the act of pointing a loaded gun at someone and shooting it toward that person at close range demonstrates an intent to kill. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996); Flanagan v. State, 675 S.W.2d 734, 744-45 (Tex.Crim.App.1984) (op. on reh'g); Womble v. State, 618 S.W.2d 59, 64 (Tex.Crim.App.1981).

In sum, there was ample evidence offered at applicant's trial that Sammy Butler committed the offense of capital murder and that applicant assisted or encouraged him in that endeavor by his own acts of attempting to commit the capital murder of Mr. Meredia. The fact that the jury in Butler's trial declined to convict him of capital murder does not affect the validity of applicant's capital murder conviction.FN19

FN19. Applicant argues that his “factual innocence” claim is cognizable under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), as one involving both a constitutional violation and a “gateway” innocence claim. But it is not. Applicant makes no showing that he is innocent of capital murder or that the State violated his constitutional rights by trying him before his accomplice, Sammy Butler.

Thus, although the verdict in Butler's trial may be “newly available evidence,” it is not evidence that shows (or even tends to show) applicant's innocence of capital murder. Therefore, we adopt the trial court's findings of fact and conclusions of law concerning applicant's claim of factual innocence.

B. Claim of Ineffective Assistance of Counsel

Applicant also contends that his trial counsel provided constitutionally deficient assistance because he failed to request an instruction on the lesser-included offense of felony-murder.FN20 Applicant further contends that his counsel's deficient performance probably caused the jury to return a verdict of capital murder rather than felony-murder. Applicant raised this ineffective assistance claim on direct appeal, arguing that trial counsel should have “request[ed] a lesser-included offense charge as it would apply to the offense of murder.” FN21 This Court rejected that claim because the record did not contain sufficient information concerning trial counsel's strategy. It does now.

FN20. Applicant asserts this claim under both the Sixth Amendment to the United States Constitution and under the Texas Constitution, article I, § 10. Because he provides no separate analysis under the Texas Constitution, we will presume that applicant's position is that the two provisions are identical for purposes of his claim. See Heitman v. State, 815 S.W.2d 681, 690 n. 22 (Tex.Crim.App.1991).

FN21. On direct appeal, applicant contended that trial counsel should have requested an instruction on simple murder because the jury might have believed that applicant only “knowingly” caused the death of the victim.

In his affidavit, applicant's trial counsel stated that the defense strategy that he and his co-counsel decided upon was that applicant did not anticipate Butler's murder of Mr. Rahim: The basis of our cross-examination, and defensive strategy was that Mr. Thompson knew of and intended to participate in an aggravated robbery, but in no way did he either know or anticipate that someone would be killed, especially under the circumstances of the complaining witness' death.... This was the argument that I made to the jury during the guilt phase of the trial. However, based on the confessions, and the actions of Mr. Thompson while inside the store, i.e. Mr. Thompson shot someone, who did not die, Mr. Williams and I concluded that a request for a lesser included instruction of felony murder was not shown by the evidence.FN22

FN22. At the time defense counsel was appointed, applicant had three pending capital murder charges and three aggravated robbery charges. Applicant had given oral confessions admitting his involvement in all of those pending cases. Concern about the admissibility of extraneous offenses would surely have been at the forefront of defense counsel's mind as he planned his strategy for the guilt phase of this trial.

Thus, trial counsel made the reasoned strategic decision that their strongest argument was that applicant did not and could not have anticipated that Butler would shoot Mr. Rahim as the two departed from the convenience store. That argument was at least as strong-if not stronger-than the argument that Butler did not intend to kill Mr. Rahim and that his act of shooting at him twice was an unforeseeable accident, albeit an act clearly dangerous to human life. Applicant's attorney noted that this defensive position was carried through to the punishment phase concerning the “anti-parties” special issue: FN23

FN23. That special issue read as follows: Do you find from the evidence beyond a reasonable doubt that Robert Lee Thompson, the defendant himself, actually caused the death of Mansor Bhai Rahim Mohammed, on the occasion in question, or if he did not actually cause the death of Mansor Bhai Rahim Mohammed, that he intended to kill Mansor Bhai Rahim Mohammed or another, or that he anticipated that a human life would be taken?

This charge, unlike the one at the guilt stage, did incorporate the doctrine of transferred intent. With regard to Special Issue 2, the argument was centered on 1. The fact that Mr. Thompson was not the shooter. 2. That the manner in which the complainant was killed, i.e. as they drove away, Mr. Butler shot in the dark and the complainant was standing at the door. Mr. Thompson was in no way responsible for the death of Mr. Rahim, and could not have anticipated that Butler would shoot as they were driving away and it was dark. 3. That Mr. Thompson's intent was to commit an aggravated robbery and nothing more, which he did. As applicant's counsel noted, this strategy was ultimately unsuccessful, perhaps because of the evidence of applicant's two other capital murders. But counsel did not create those facts.

Applicant now argues that he was not entitled to any charge on the lesser-included offense of aggravated robbery, but he was entitled to a charge on felony-murder. He states that, “given those undisputed facts [of applicant's attempts to kill Mr. Meredia and shoot Mr. Rahim] no one could plausibly argue that Applicant should not have reasonably anticipated that Butler might engage in violence, including shooting a person.” Such a strategy, argues applicant, is “laughable.”

Applicant notes that in Solomon v. State,FN24 this Court held that a person charged with capital murder is not entitled to a lesser-included instruction on aggravated robbery unless there is evidence showing one of three things: (1) there was no murder; (2) the murder was not committed in furtherance of a conspiracy; or (3) the murder should not have been anticipated.FN25 In this case, as applicant candidly admits, there is ample evidence that (1) there was a murder; (2) the murder was committed in furtherance of a conspiracy; and (3) the murder should have been anticipated. Thus, he argues, it was error to charge the jury on this lesser included offense. Perhaps so, but it certainly did not harm applicant, and at least it gave the defense attorneys something solid to argue during closing arguments. FN24. 49 S.W.3d 356 (Tex.Crim.App.2001). FN25. Id. at 369.

Applicant then turns around and contends that counsel should have requested a lesser-included instruction on felony-murder. But submission of felony-murder is not warranted unless there is evidence that shows: (1) for purposes of party liability under Section 7.02(a)(2), applicant himself did not intend the death of Mr. Rahim or another; (2) for purposes of conspiracy liability under Section 7.02(b), Butler's act of shooting Mr. Rahim was not committed in furtherance of a conspiracy; or (3) for purposes of conspiracy liability under Section 7.02(b), applicant should not have anticipated that Butler would shoot Mr. Rahim.

In arguing that he was not entitled to a charge on aggravated robbery, applicant agrees that there is no evidence supporting prong (2) or (3). And he fails to point to any evidence that affirmatively shows that applicant himself did not intend the death of Mr. Rahim or another. Applicant relies, instead, upon his oral confession to the police in which he describes Butler's action and surmises about Butler's intent: Well, he [Butler] shoots-And, the man was coming up and was going back. He just shot basically at the window just to make the man go run back in the store as we got away.

This description of Butler's actions and intent, however, is not evidence that affirmatively shows that applicant had no intent to kill.FN26 And, under the law of parties, it is applicant's intent that is determinative of his guilt for either capital murder or felony-murder.

FN26. See Salinas v. State, 163 S.W.3d 734, 741-42 (Tex.Crim.App.2005). In Salinas, another capital murder case involving the law of parties, we rejected the contention that defense counsel was ineffective for failing to request an instruction on felony-murder. Id. There, as here, “[t]he critical question is whether the evidence showed that appellant (as a principal or party) had the intent only to rob or to kidnap, and he did not have the intent to kill.” Id. at 742. We noted in Salinas that “[w]hether appellant was the actual actor or criminally responsible for the acts of his cohorts by virtue of the law of parties, the evidence shows not only an intent to commit robbery or a lesser included offense, but also the intent to kill.” Id. (emphasis in original). The same is true in the present case; applicant points to no evidence that affirmatively demonstrates his lack of intent to kill.

The evidence was clearly sufficient to establish that applicant participated in the murder of Mr. Rahim and intended his death. The question concerning an entitlement to the lesser-included of felony-murder is whether the evidence would permit a rational jury to make a contrary finding: that is, based upon the evidence, could a rational jury conclude that Butler acted entirely alone in the shooting death of Mr. Rahim, and that applicant did not intend or anticipate this murder? FN27 That evidence need be only more than a mere scintilla, and it may be impeached or contradicted, but it must be sufficient, if believed, to at least permit a rational jury to return a verdict on the lesser-included offense.FN28 Under this standard, applicant was not entitled to a charge on felony-murder and therefore his counsel was not ineffective for failing to request such a charge.FN29

FN27. See Aguilar v. Dretke, 428 F.3d 526, 531-32 (5th Cir.2005) (holding that Texas capital murder defendant was not entitled to charge on lesser-included offense of murder when co-defendant caused death of second victim but defendant had motive to kill victim or his family members). As the Fifth Circuit explained: The evidence was clearly sufficient to establish that Aguilar participated in the murder of Leo, Sr. The question is whether the evidence would permit a reasonable jury to make a contrary finding: that Quiroz acted alone in Leo's murder without encouragement or other participation by Aguilar. After reviewing the record, we are satisfied it would not permit a rational jury to find that if Aguilar is guilty, he is only guilty of murdering Annette. As the district court pointed out, Aguilar-and not Quiroz-had the motive to kill Esparza or his family members. The evidence established that Aguilar had been to the trailer home on several earlier occasions, threatening Esparza, and had previously discussed with Annette Chavez the whereabouts of Esparza. Aguilar entered the Esparzas' trailer with his eighteen-year-old nephew (Quiroz), who had no connection to the Chavezes or Esparza or with Aguilar's marijuana trafficking. The two entered the trailer with a firearm and proceeded to severely beat the Chavezes. Then, the couple was shot “execution style” within minutes of each other. There is no evidence in the record supporting Aguilar's contention that he did not have intent to kill both Leo and Annette when he and Quiroz entered the residence. A reasonable jury, who would find that Aguilar was the second shooter in this double murder, could not find that he did not encourage or otherwise participate in the shooting of Leo, Sr. We therefore conclude that the district court did not err in rejecting Aguilar's Beck [ v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) ] claim. Id. at 531-32.

FN28. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993) ( “some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense”) (emphasis in original); see also Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.1988) (holding that a lesser included offense instruction should be given “if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater”).

FN29. Salinas, 163 S.W.3d at 742; see also Fuentes v. State, 991 S.W.2d 267, 272-73 (Tex.Crim.App.1999) (counsel in capital murder trial not ineffective for failing to request lesser-included offense of felony-murder instruction because “there is no evidence upon which a jury could rationally have found that appellant did not intend to kill when he shot the deceased.”).

Applicant argues that there was no downside to asking for an instruction on the lesser-included offense of felony-murder. But there might well have been a very serious downside had applicant offered any evidence of lack of intent or had he engaged in any cross-examination that might raise an issue concerning his lack of intent to kill. Once applicant opens the door to the issue of murderous intent, the State would presumably walk right through that door with the evidence of the two extraneous capital murders that applicant himself committed to prove that he had a murderous intent on this occasion just as he had on those two other occasions.FN30

FN30. See, e.g., Navarro v. State, 154 S.W.3d 795, 797-98 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (evidence of other violent acts toward his intended victim admissible under Rule 404(b) in capital murder trial to prove both defendant's intent to kill and absence of mistake in attempting to kill his intended victim); Johnson v. State, 932 S.W.2d 296, 302-04 (Tex.App.-Austin 1996, pet. ref'd) (in capital murder trial, evidence of extraneous offense was admissible to prove the culpable mental state of intent to kill when the accused presented evidence to dispute that intent).

When judging an attorney's conduct in retrospect, we cannot assume that only his conduct might have been different. We must assume that, as in a chess game, if a defendant hypothesizes a different strategy or move by his pawn or queen, the State would have altered its strategy and made a different move with its chess pieces as well. In this case, applicant's case at the guilt phase might have been considerably worsened had he attempted to raise an issue concerning his intent to kill. Therefore, we cannot conclude that his counsel's chosen strategy-to forego an attack upon the State's case concerning his own intent to kill and instead concentrate on a plausible argument (albeit largely unsupported by evidence) that applicant could not have anticipated Butler's act of shooting Mr. Rahim-was a constitutionally ineffective one.

We therefore adopt the trial court's findings of fact and conclusions of law, and based upon those findings and our own independent review, we deny relief on all claims.

KELLER, P.J., filed a concurring opinion.

Thompson v. Quarterman, 292 Fed.Appx. 277 (5th Cir. 2008). (Habeas)

Background: Following appellate affirmance, 2003 WL 21466925, of his conviction of capital murder and sentence of death, and of his state court petition for post-conviction relief, 179 S.W.3d 549, petitioner sought federal habeas relief. The United States District Court for the Southern District of Texas denied petition and, sua sponte, denied certificate of appealability (COA). Petitioner filed motion to amend judgment or for issuance of COA. The district court denied motion, and petitioner sought COA from the Court of Appeals.

Holdings: The Court of Appeals held that: (1) district court did not abuse its discretion in denying petitioner's motion to expand the record; (2) district court did not abuse its discretion in denying petitioner's motion for discovery; (3) petitioner's conviction and sentence did not violate due process or equal protection; (4) petitioner did not receive ineffective assistance of trial counsel; (5) district court did not abuse its discretion in denying petitioner's request for stay to permit him to exhaust one IAC claim in state court; and (6) it lacked jurisdiction to consider COA request based upon cumulative IAC claim not presented in COA request in district court. Certificate of appealability denied.

PER CURIAM: Robert Lee Thompson was sentenced to death in Texas state court for capital murder. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), he seeks a certificate of appealability (COA) for each of the 15 issues on which the district court denied federal-habeas relief. Along that line, he also requests remand for discovery and for a hearing on one of those issues. Because he fails to make the requisite showing, a COA is DENIED.

I.

In December 1996, Thompson and Butler robbed a convenience store while armed with handguns. See Ex parte Thompson, 179 S.W.3d 549, 551 (Tex.Crim.App.2005). During the robbery, Thompson approached the cash register, pointed his gun at the clerk (first clerk) behind the counter, and demanded money. Id. He shot that first clerk in the stomach when he did not move quickly enough. Id. Then he shot at, but missed, a second clerk (ultimately, the victim) who was running toward the back of the store. Id. Turning his attention back to the first clerk, who was lying on the floor, he shot him three more times before demanding he get up and give him the money. Id. That first clerk did so, after which Thompson put his handgun to the first clerk's neck and pulled the trigger. Id. Upon discovering he already had fired all of the bullets in that weapon, he hit that first clerk over the head with the cash register drawer. Id. He then fled with Butler. Id. As Thompson drove away, Butler fired his handgun from the passenger window and fatally shot the second clerk/victim (at whom Thompson had previously, unsuccessfully shot). Id. The first clerk survived and testified at Thompson's trial.

Thompson's indictment charged he caused the victim's death during the robbery by shooting him with a firearm. At the time of his trial in March 1998, Thompson had three capital murder, and several aggravated robbery, charges pending against him, including the one at hand, stemming from similar robberies. Id. at 551 n. 5. Regarding all of those charges, by the time his counsel was appointed, he had made statements to the police confessing his involvement in all of them.

The jury was instructed it could find Thompson guilty of capital murder if he: (1) specifically intended to kill, and did kill, the victim; (2) intended to kill the victim by “soliciti[ing], encourag[ing], direct[ing], aid[ing], or attempt[ing] to aid” Butler's shooting him during the robbery; or (3) conspired with Butler to commit the robbery and Butler's shooting the victim “was committed in furtherance of the conspiracy and was an offense that [Thompson] should have ... anticipated”. See id. at 552. The jury found him guilty. Id. at 551. In response to the jury's answers to the special issues, Thompson was sentenced to death. Id.

Thompson filed a motion for new trial on 15 August 2001. (This motion is not in the direct-appeal record. It is in the state-habeas record because it was filed by Thompson in those proceedings.) The motion relied upon Butler's affidavit (attached to the motion), which stated he (Butler) did not intend to kill the victim, and upon Butler's conviction for the lesser offense of felony (unintentional) murder (for which judicial notice was requested). Thompson did not receive a new trial.

On direct appeal, Thompson raised procedural-error and ineffective-assistance-of-counsel claims (his issues 6-13 & 15 here). The Texas Court of Criminal Appeals (TCCA) affirmed his conviction, and the Supreme Court of the United States denied review. Thompson v. State, No. 73128, 2003 WL 21466925 (Tex.Crim.App.25 Jun.2003) (en banc) (unpublished), cert. denied 540 U.S. 1091, 124 S.Ct. 960, 157 L.Ed.2d 797 (2003).

While his direct appeal was pending, Thompson requested state post-conviction relief. He claimed that he was factually innocent of capital murder and that his conviction violated the Constitution (his issues 1-2 & 4 here). As he had in his motion for new trial, he relied upon Butler's “I did not intend to kill” statement and his felony-murder conviction; he attached Butler's affidavit and trial transcript. He contended the State violated his due process rights under Brady by suppressing the statement Butler made to investigators that Butler did not intend to kill the victim (his issue 3 here). He also claimed ineffective-assistance-of-counsel on several grounds (including his issues 7, 10, 14, & arguably 5 here). Thompson attached affidavits from his appellate counsel and another local attorney who had reviewed his trial record, opining he received ineffective assistance. The State responded on 29 November 2000 with, inter alia, a 28 November 2000 affidavit from Thompson's trial counsel, explaining his trial preparation and strategy. On 22 December 2004, Thompson filed his proposed findings of fact and conclusions of law, attaching trial counsel's: (1) affidavit (again); (2) letter to appellate counsel; and (3) file from Thompson's trial.

The state-habeas trial court adopted the State's proposed findings of fact and conclusions of law on 25 January 2005, and recommended denying relief. On 13 April 2005, the TCCA ordered supplemental briefing on Thompson's claims for factual innocence and ineffective assistance of counsel for failure to request a felony-murder instruction. State-habeas relief was denied by the TCCA in an opinion that, inter alia, adopted the state-habeas trial court's findings and conclusions. Ex parte Thompson, 179 S.W.3d 549.

Thompson then requested federal habeas relief on 15 issues. In an extremely comprehensive, detailed, and well-reasoned 62-page opinion, relief was denied, as were his motions for expansion of the record, discovery, an evidentiary hearing, and a stay (in order to develop a record regarding his claims). Thompson v. State, No. 4:06-CV-148 (S.D. Tex. 30 Nov. 2007) (unpublished). In that opinion, a COA was also denied, sua sponte. Id.

Thompson moved to amend the judgment, seeking relief or a COA on all claims. The district court denied reconsideration. Thompson v. State, No. 4:06-CV-148 (S.D. Tex. 21 Dec. 2007) (unpublished).

II.

Thompson seeks a COA on each of the 15 issues raised in his federal petition. He also maintains the district court erred in denying his motions to expand the record with certain unspecified documents, and for discovery, an evidentiary hearing, and a stay.

Thompson's 28 U.S.C. § 2254 habeas application is subject to AEDPA. E.g., Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Under AEDPA, Thompson may not appeal the denial of habeas relief unless he first obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Miller v. Dretke, 404 F.3d 908, 912 (5th Cir.2005) (citations omitted). The district court must first decide whether to grant a COA; only if it is denied by that court may a COA on that issue be requested here. Fed. R.App. P. 22(b)(1). Having been denied a COA by the district court, Thompson requests one from this court on each of his 15 issues.

To obtain a COA, Thompson must make “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To make such a showing when the district court's habeas denial is on the merits of an issue, Thompson must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further” (reasonable-jurists standard). Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595) (internal quotation marks omitted).

When the district court's denial of relief for a claim is based on a procedural ruling, such as the claim's being unexhausted, the requisite showing is expanded. See Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir.2006) (citing Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000)), cert. denied --- U.S. ----, 127 S.Ct. 2099, 167 L.Ed.2d 817 (2007). “In that situation, the applicant must show jurists of reason would find debatable whether: the habeas petition states a valid claim of the denial of a constitutional right; and the district court's procedural ruling was correct.” Id. (citation omitted) (emphasis added) (reasonable-jurists/procedural standard).

In deciding whether to grant a COA, we can make only a threshold inquiry into the district court's application of AEDPA to Thompson's constitutional claims; we may not consider the factual or legal merits in support of the claims. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. “When a court of appeals sidesteps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.” Id. at 336-37, 123 S.Ct. 1029.

For purposes of our threshold inquiry, we are cognizant that, under AEDPA, the district court was required, with limited exceptions described below, to defer to the state court's resolution of Thompson's claims. Those exceptions turn on the character of the state-court's ruling. Foster, 466 F.3d at 365.

First, on questions of law, as well as mixed questions of law and fact, the district court was required to defer to the state-court's decision unless it “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court”. 28 U.S.C. § 2254(d)(1); see Miller, 404 F.3d at 913. The state-court's decision is considered contrary to clearly established federal law if it “reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts”. Miller, 404 F.3d at 913 (quoting Miniel v. Cockrell, 339 F.3d 331, 337 (5th Cir.2003)) (internal quotation marks omitted).

Second, our threshold inquiry must recognize the district court's obligation to defer to the state-court's factual findings, unless they “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”. 28 U.S.C. § 2254(d)(2). Along that line, the district court was required to presume the state-court's factual findings were correct; Thompson had to rebut that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Moreover, our threshold inquiry requires consideration of a COA request against the backdrop of the elements of Thompson's underlying constitutional claim. See Miller, 404 F.3d at 913. Needless to say, meaningful review of the district court's ruling, for COA purposes, on whether Thompson made the requisite 28 U.S.C. § 2253(c)(2) “substantial showing of the denial of a constitutional right” requires our considering these elements.

In the light of the district court's well-reasoned and thorough opinion, and essentially for the reasons stated in it, reasonable jurists could not debate the district court's rulings-for either the reasonable-jurists or the reasonable-jurists/procedural standards. This is especially true in the light of Thompson's conclusory briefing for most of the 15 requested COAs. Nevertheless, we address each claim.

A.

As a threshold matter, Thompson complains that the district court erred in denying his motions for factual development of the record. He seeks remand or a stay to develop the factual basis for several of his 15 claims. The district court denied his motions for expansion of the record, discovery, and an evidentiary hearing “because he failed to identify the evidence he wanted to produce, he did not show good cause for discovery, and did not show that he had diligently attempted to develop the record in state court”. Thompson, No. 4:06-CV-148 (21 Dec. 2007) (discussing Thompson, No. 4:06-CV-148 (30 Nov. 2007) (denying motions)). Such denials are reviewed for abuse of discretion. See, e.g., In re Liljeberg Enters., Inc., 304 F.3d 410, 433 n. 43 (5th Cir.2002) (expansion of the record) (citation omitted); Clark v. Johnson, 202 F.3d 760, 766 (5th Cir.2000) (discovery and evidentiary hearing).

At issue are only Thompson's COA requests. These alleged procedural errors are not phrased as COA requests, but they bear upon his requests. We consider them here for purposes of ruling on those COA requests. See Reyes v. Quarterman, 195 Fed.Appx. 272, 278-79 & n. 2 (5th Cir.2006) (per curiam) (unpublished) (considering procedural issues before addressing COA requests); Clark, 202 F.3d at 765-68 (considering procedural issues in context of COA requests). Most of those requests are inadequately briefed; nevertheless, we will address each request.

1.

First, Thompson sought expansion of the record with “the following materials, including but not limited to ... (1) Letters predating the filing of the petition in district court; (2) Documents; (3) Exhibits; (4) Answers under oath; [and] (5) Written Interrogatories propounded/approved by the judge (if so directed)”. Thompson's motion identifies no specific documents. As the district court found: “Thompson's motion makes no effort to show what omissions exist in the record, ... specific material he wants to include, or why that material is necessary.... [It] is, in essence, a general discovery request”. Thompson, No. 4:06-CV-148 (30 Nov. 2007).

As noted, as well as discussed below, Thompson also sought discovery. The district court considered the motions together, and denied them for “lack of specificity”. Id. Accordingly, the district court did not abuse its discretion in denying expansion of the record.

2.

Second, Thompson sought discovery to obtain unspecified documents from an assistant district attorney and serve interrogatories on the jurors, defense counsel, assistant district attorney, and bailiff for his trial, as well as “others as necessary”. As noted, this motion, too, was denied for “lack of specificity”. Id. “A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (quoting R. Governing § 2254 Cases 6(a)). “ ‘[W]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry’ ”. Id. at 908-09, 117 S.Ct. 1793 (quoting Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969)). On the other hand, “[c]onclusionary allegations are not enough to warrant discovery under Rule 6 of the Federal Rules Governing Section 2254 Petitions; the petitioner must set forth specific allegations of fact. Rule 6 ... does not authorize fishing expeditions”. Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994) (citations omitted); see also Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir.2000) (finding no abuse of discretion).

As discussed, the district court ruled the motions “lack[ed] the necessary specificity”. Thompson, No. 4:06-CV-148 (30 Nov. 2007). As such, Thompson did not “point to specific evidence that once existed and may continue to exist that holds the potential to exonerate him.... [And he] has not shown any likelihood that physical evidence exists that would render his request for information ... more than a ‘fishing expedition’ ”. Reed v. Quarterman, 504 F.3d 465, 477 (5th Cir.2007) (citation omitted). Accordingly, it was not an abuse of discretion to deny discovery. See id. (finding no abuse of discretion); United States v. Webster, 392 F.3d 787, 802 (5th Cir.2004) (denying COA on denial of discovery because petitioner “failed to identify, with specific allegations, any dispositive factual disputes”).

3.

Third, Thompson sought an evidentiary hearing. His motion maintained: he did not receive a full, fair evidentiary hearing in state court; and “[t]he facts in dispute from the state trial court are the effective assistance of the trial counsel[,] the failure to disclose relevant Brady v. Maryland information ... [, and] the failure of the trial court to conduct a hearing on a potentially racist comment by a jury member”. The district court ruled the motion “lack[ed] specificity and fail[ed] to make the necessary showing that such development is permitted by [AEDPA] or necessary for the proper adjudication of the claims”.

Thompson now asserts the lack-of-specificity denial of his motion is erroneous because the state court did not hold a “true hearing” and specificity “is impossible to provide” without discovery. He does not challenge the district court's ruling he failed to show such factual development would be permitted by AEDPA or to provide sufficient specificity. Under 28 U.S.C. § 2254(e)(2), an evidentiary hearing is only appropriate when “(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”. Comeaux v. Cain, 204 Fed.Appx. 471, 474 n. 4 (5th Cir.2006) (holding district court erred in granting hearing where petitioner “clearly cannot meet these requirements”) (quoting 28 U.S.C. § 2254(e)(2)) (emphasis added).

As Thompson does not show, or attempt to show, that he meets § 2254(e)(2)(A)'s requirements, the denial of an evidentiary hearing was not an abuse of discretion.

B. As stated, Thompson seeks a COA on 15 issues. They relate to: whether his capital-murder conviction or death sentence violates the Constitution (his issues 1, 2, & 4); whether the State suppressed exculpatory evidence in violation of his due-process rights (his issue 3); whether the trial court's procedural and evidentiary errors violated his Constitutional rights (his issues 6, 9, & 15); and whether his counsel's assistance was ineffective, in violation of his Sixth Amendment right (his issues 5, 7-8, & 10-14). As stated above and discussed below, none satisfies the above-defined reasonable-jurists or reasonable-jurists/procedural standards for obtaining a COA.

1.

Initially, Thompson seeks a COA for his three claims that his conviction and sentence violate the Constitution.

a.

First, Thompson seeks a COA on whether he is factually innocent of capital murder, so that his conviction violates due process. Relying on Butler's conviction for only felony murder and citing Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), he asserts he cannot be held liable for capital murder because: “The state ... cannot hold the vicarious liability of a party to a higher standard than the actual liability of the true perpetrator”; and he did not shoot the victim and was not responsible for Butler's actions. (Emphasis in original.)

Tison, however, holds the imposition of the death penalty upon a major participant in a felony who showed reckless indifference to human life is not a violation of the due-process clause. 481 U.S. at 158, 107 S.Ct. 1676. Instead, the Constitution requires that a death sentence “be tailored to [a defendant's] personal responsibility and moral guilt”. Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). And, under Texas law, Thompson can be criminally responsible for capital murder even if Butler, who fired the fatal shot, is not. See Tex. Penal Code § 7.02(a) (defendant intended to kill someone during the aggravated robbery and solicited, encouraged, directed, or aided his accomplice, who also had that intent, to do so), (b) (defendant conspired to commit aggravated robbery and the death was a consequence he should have anticipated); Ex parte Thompson, 179 S.W.3d at 552-54.

The state-habeas trial court ruled Thompson's factual-innocence claim was a sufficiency-of-the-evidence claim, which is not reviewable in state-habeas proceedings. Ex parte Thompson, 179 S.W.3d at 551 (adopting state-habeas trial court's findings of fact and conclusions of law). On the other hand, the TCCA ordered supplemental briefing on this issue. Ultimately, the TCCA held the jury could have convicted Thompson under any of three theories and had sufficient evidence to find him guilty of capital murder, and also adopted the state-habeas trial court's ruling. Id. at 551-57.

The district court held: Thompson did not show any of those three theories violates due process as described in Enmund, 458 U.S. 782, 102 S.Ct. 3368, and Tison, 481 U.S. 137, 107 S.Ct. 1676; and “the Constitution does not require that Thompson's conviction and sentence be less severe than Butler's”. Thompson, No. 4:06-CV-148 (30 Nov. 2007).

b.

Next, Thompson seeks a COA on whether his capital-murder conviction or resulting death sentence, in the light of Butler's felony murder conviction and less-than-death sentence, violates due process or equal protection. He asserts the Constitution is violated because Butler was convicted of only felony murder and was not sentenced to death. As support, he cites Hopkins v. Reeves, 524 U.S. 88, 94, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998) (stating death penalty cannot be imposed where defendant “was a minor participant in the crime and neither intended to kill nor had shown reckless indifference to human life” (citations omitted)), and Enmund, 458 U.S. at 797, 102 S.Ct. 3368 (holding Eighth Amendment does not allow imposition of the death penalty on one who does not kill, attempt to kill, or intend or contemplate that a killing would occur). Thompson relies, however, on Butler's felony murder conviction. He does not contend that he was a minor participant who did not attempt to kill, intend that a killing occur, or show reckless indifference to human life.

As discussed above, the Constitution is not violated where, as here, the focus was on the defendant's actions and intent. See Enmund, 458 U.S. 782, 102 S.Ct. 3368; Tison, 481 U.S. 137, 107 S.Ct. 1676. In that regard, the TCCA ruled Thompson's conviction and sentence did not violate the Constitution because sufficient evidence showed he was a major participant in, and showed reckless indifference to human life during, the aggravated robbery. Ex parte Thompson, 179 S.W.3d at 551 (adopting state-habeas trial court's findings of fact and conclusions of law). Similarly, the district court ruled Thompson's Constitutional rights were not violated because “his conviction was based on his own criminal culpability”. Thompson, No. 4:06-CV-148 (30 Nov. 2007).

2.

Thompson requests a COA for his claim that the State's suppression of evidence-Butler's statement to investigators that he (Butler) did not intend to kill the victim-violated Thompson's due-process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Brady held: “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment”. Id. at 87, 83 S.Ct. 1194. Our court has made clear, however, that, “when 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) (citations omitted); see also United States v. Runyan, 290 F.3d 223, 246 (5th Cir.2002) (citation omitted).

The TCCA held Thompson failed to show the State violated Brady by withholding Butler's statement because Thompson's trial counsel testified (via affidavit attached to the State's response in state-habeas proceedings) that he reviewed Butler's statement and spoke with him in preparation for Thompson's trial. Ex parte Thompson, 179 S.W.3d at 551 (adopting state-habeas trial court's findings of fact and conclusions of law). In fact, as the district court noted, Thompson apparently waived this claim in his state-habeas proceedings, after the State introduced his counsel's affidavit, by conceding the claim was “without merit in that [Thompson's] trial counsel had access to Butler's custodial statement”.

Thompson does not contest the affidavit, access to the statement, or waiver of the claim. (Moreover, Thompson also abandoned this claim by failing to brief it.)

3.

Thompson seeks a COA for his claims that three procedural and evidentiary rulings violated his Constitutional rights.

a.

Thompson requests a COA on whether the trial court's failure to investigate a juror's alleged statement resulted in Thompson's being tried by a biased jury, in violation of his due-process rights under Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). During the punishment phase of Thompson's trial, a defense witness reported that, as he stepped down after testifying about Thompson, he overheard a male juror say “poor little black boy”. The trial court held a hearing, and the witness testified he interpreted it as a racist comment. The trial court, however, denied defense counsel's request to ask each male juror if he made the comment, and, if so, whether he harbored any racial prejudice.

Citing Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), Thompson maintains no hearing was held, and complains that his counsel should have been permitted to interrogate the male jurors. Remmer, a jury-tampering case, holds: “The trial court ... should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate”. Id. at 229-30, 74 S.Ct. 450. “[D]eterminations made in Remmer-type hearings will frequently turn upon testimony of the juror in question”. Smith v. Phillips, 455 U.S. 209, 217 n. 7, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

On the other hand, trial courts have wide discretion to control the flow of trial, and are not required to conduct a hearing on juror misconduct-as opposed to jury tampering. See, e.g., United States v. Webster, 750 F.2d 307, 338 (5th Cir.1984). “In determining whether to conduct a hearing in [a jury misconduct case,] the court must balance the probable harm” from emphasizing the misconduct against the likely prejudice from the misconduct. Id. (quoting United States v. Chiantese, 582 F.2d 974, 980 (5th Cir.1978)) (alteration in original). The ultimate inquiry is whether “the intrusion affect[ed] the jury's deliberations and thereby its verdict”. United States v. Olano, 507 U.S. 725, 739, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

On direct appeal, the TCCA found “the statement that the witness heard is not a clear manifestation of racial bias”. Thompson, 2003 WL 21466925, at *2. It noted the statement could have been referring to the witness, or even if not, its underlying basis could have been sincerity or irony. Id. It denied the claim, ruling: “Because defense counsel did not diligently question the jurors about racial bias during voir dire, an alleged bias manifested later does not constitute juror misconduct”. Id. “ [V]oir dire examination is the time to uncover potential prejudice or bias in prospective jurors ... and ... a defendant who begins the inquiry in the middle of the trial is not acting timely”. Id. at *1.

Under Texas law, as recognized by the district court, “if a defendant later ‘wishe[s] to show bias on the part of a juror, [the] proper remedy [is] a motion for new trial with an accompanying affidavit by a juror showing such bias' ”. Thompson, No. 4:06-CV-148 (30 Nov. 2007) (quoting Norman v. State, 588 S.W.2d 340, 347 (Tex.Crim.App.1979)) (alteration in original). Thompson's new-trial motion (from his trial, but, as noted, found only in his state-habeas record), however, does not mention juror bias. The district court noted: Thompson's claim speculates that further inquiry would have revealed harmful, racial prejudice; and the state trial court implicitly found no jury bias threatened the fairness of Thompson's punishment-phase. Id.

The district court held Thompson had not met his burden to show the TCCA's denial of this claim was unreasonable under AEDPA. Id. Thompson does not challenge these rulings, urging only that the trial court's denying a hearing was “harmful”.

b.

Second, Thompson seeks a COA for his claim that the trial court lowered the State's burden of proof on the second special issue during sentencing (in violation of his Sixth, Eighth, and Fourteenth Amendment rights), by stating, during voir dire, that the jurors would be asked if Thompson “ should have anticipated that a human life would be taken”. (Emphasis added.) There was no contemporaneous objection made to the court's statement. The second special issue submitted to the jury asked if Thompson “actually caused the death[,] ... intended to kill [the victim] or another, or that he anticipated that a human life would be taken”.

On direct appeal, the TCCA denied relief because “[Thompson] failed to object to the trial court's voir dire of the jury, therefore failing to preserve this error for review”. Thompson, 2003 WL 21466925, at *7 (citations omitted). The district court ruled it could not consider this claim because it was procedurally barred; and that, even if it were not, the claim failed because the trial court's special-issue instructions during the punishment-phase did not include the contested “should have” language. Thompson, No. 4:06-CV-148 (30 Nov. 2007).

Here, Thompson failed to brief this claim; therefore, it is abandoned.

c.

Third, Thompson seeks a COA for whether the state trial court violated his Sixth Amendment right to a fair trial by admitting an officer's testimony.

During the punishment phase of trial, the jury heard a recording of Thompson's statements to officers following his arrest, explaining, inter alia, the robbery (and others he admitted committing) as God's punishment of members of certain ethnic groups operating businesses in his community. Following the recording, one of those officers was asked: “Did you have a feeling, sir, that he was telling the truth about this philosophy of his?” The officer responded, “Yes”. Thompson's counsel's objection to this testimony as speculative was overruled.

On direct appeal, Thompson asserted that the officer's opinion about Thompson's truthfulness was inadmissible expert testimony. The TCCA held this issue was not preserved for appeal because Thompson's objection at trial was made on different grounds. Thompson, 2003 WL 21466925, at *1.

The district court held this claim was procedurally barred, because Texas' rule requiring Thompson to have made the same objection at trial as raised on appeal, in order to preserve the issue for appeal, is “an adequate and independent state ground that procedurally bars federal habeas review of [this claim]”. Thompson, No. 4:06-CV-148 (30 Nov. 2007) (quoting Fisher v. State, 169 F.3d 295, 300 (5th Cir.1999)). Although Thompson maintains his objection at trial was sufficient to preserve it for appeal, the district court stated: “Federal courts generally do not assess whether a state court improperly applied its own procedural law”. Id. (citing Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). The district court held, alternatively, that, even if the merits were reached, Thompson had not shown the testimony made his trial unfair so as to entitle him to habeas relief. Id. (citing Little v. Johnson, 162 F.3d 855, 862 (5th Cir.1998) (“In habeas actions, this court does not sit to review the mere admissibility of evidence under state law.”); Shaw v. Estelle, 686 F.2d 273, 275 (5th Cir.1982)).

4.

Last, Thompson seeks a COA for each of the following eight contentions that he received ineffective assistance of counsel (IAC) under the Sixth Amendment from his trial counsel: (1) consenting to the dismissal of a prospective juror; (2) being absent during the voir dire of a prospective juror; (3) ignoring available defensive strategies, including failing to obtain and introduce favorable expert testimony or introduce Butler's “I had no intent to kill” statement; (4) failing to request a lesser-included-offense instruction; (5) failing to investigate and present mitigating evidence; (6) failing to object to good-character-of-the-victim evidence; (7) discussing Thompson's extraneous offenses in closing argument; and (8) misstating the jury's sentencing duty in his punishment-phase closing argument. In addition, he seeks a COA on the claim that these errors cumulatively amount to IAC.

In state court, to make a substantial IAC showing, Thompson was required to establish both: (1) his counsel's deficient performance; and (2) resulting prejudice. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Of course, for habeas review under AEDPA, the state court's performance and/or prejudice rulings are generally reviewed only to determine whether the state-court decision is unreasonable, not whether, in federal court, petitioner has shown each IAC prong. E.g., Schaetzle v. Cockrell, 343 F.3d 440, 443-44 (5th Cir.2003). Generally, as stated, that task must be accomplished in state court. Id.

In state court, to establish deficient performance, Thompson had to “show that counsel's representation fell below an objective standard of reasonableness”. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Judicial scrutiny of counsel's performance must be “highly deferential”, and courts 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. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. Indeed, “[a] conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness”. Crane v. Johnson, 178 F.3d 309, 314 (5th Cir.1999) (citation and internal quotation marks omitted).

In state court, to establish prejudice, Thompson had to “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”. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

a.

First, Thompson seeks a COA for his claim that his counsel's failure to object to the dismissal of a prospective juror was IAC. After the State and defense counsel agreed to dismiss this potential juror, who would have had to withdraw from her college classes in order to serve on the jury, Thompson told the trial court he agreed with the potential juror's dismissal.

On direct appeal, the TCCA ruled: in the light of Thompson's consenting to the potential juror's dismissal, Thompson failed to show his counsel's agreement was “deficient performance, much less prejudicial performance”. Thompson, 2003 WL 21466925, at *3. The district court denied relief, noting Thompson did not contest his consent to the dismissal. Thompson, No. 4:06-CV-148 (30 Nov. 2007).

b.

Second, Thompson seeks a COA for his claim that his counsel's absence during the State's voir dire of a prospective juror constituted IAC. As evidence of his counsel's absence, he cites the State's saying, “You met Mr. Greenlee [defense counsel] and Connie [defense co-counsel] and Casey [co-prosecutor] yesterday. They're out right now, but they'll be back in”. Defense counsel conducted his voir dire of that juror immediately following the State's.

On direct appeal, the TCCA denied this claim because “the record does not support the contention that both defense counsel missed [the] voir dire ”. Thompson, 2003 WL 21466925, at *3. It declared the State's statement ambiguous and cited the lack of other evidence indicating their absence. Id.

In denying relief, the district court found Thompson “made no effort to substantiate his claim that trial counsel ‘abandoned’ him during jury selection”. Thompson, No. 4:06-CV-148 (30 Nov. 2007). Thus, Thompson failed to refute the state court's findings by the requisite clear and convincing evidence. In addition, he makes no attempt to do so here.

c. Third, Thompson seeks a COA for his IAC claim that his right to counsel was violated by his trial counsel's failure to investigate, prepare, or employ a successful strategy, as reflected by his failure to: (1) obtain or introduce favorable psychiatric testimony; or (2) introduce Butler's statement that he (Butler) did not intend to kill the victim and urge Thompson's innocence due to Butler's lacking that intent.

At trial, counsel chose not to present expert testimony on Thompson's future dangerousness, explaining to the trial court that the appointed expert's opinion, based on Thompson's statements to her, was unfavorable. During state-habeas proceedings, Thompson's trial counsel submitted an affidavit to that effect (“the psychiatric evaluation ... was anything but mitigating”). That affidavit also explained that the failure to introduce Butler's statement at trial was also a strategic decision (“nothing in [Butler's] statement caused me to change my overall defensive strategy, because they planned the robberies and brought guns”).

i.

For the failure to introduce expert testimony, raised in the state-habeas proceedings, the TCCA found: [T]he trial court granted defense counsels' ... motion for an independent psychiatric evaluation of [Thompson].... [That expert] evaluated [Thompson] ... and [Thompson] admitted to [her] that he committed robberies and that he would continue the same course of action if he were given a gun.... [The expert] considered [Thompson] a sociopath who cared only for his aunt and had no respect for others' lives.... [D]efense counsel elected not to present the testimony of [that expert] because her testimony was not beneficial to the defense.... [D]efense counsels' punishment strategy was to demonstrate ... that [Thompson's] age and lack of criminal record was sufficiently mitigating to warrant an affirmative answer to the third special issue. Ex parte Thompson, 179 S.W.3d at 551 (adopting state-habeas trial court's findings of fact and conclusions of law). The TCCA ruled this performance was not deficient or prejudicial, noting “counsels' voir dire and trial strategy were not premised on the results of [Thompson's] psychiatric evaluation”. Id.

Thompson contends counsel should have learned the expert's opinion before the eve of trial, in order for a different expert to be retained. The district court denied relief, finding: “The record defeats any inference that, even if trial counsel had [the expert's] opinion before trial, it would have changed the defensive strategy”. Thompson, No. 4:06-CV-148 (30 Nov. 2007). Thompson provides no evidence that another expert's opinion would have differed. He challenges these rulings by urging only: the court cannot know counsel's strategy would have remained the same if the expert's unfavorable opinion had been learned sooner. There is no support in the record for this proposition, which is, in fact, rebutted by trial counsel's affidavit. Nor does the record support that the expert's opinion was not learned until the eve of trial.

ii.

Trial counsel's failure to introduce Butler's statement (that Butler did not intend to kill the victim) was raised in Thompson's state-habeas petition. As discussed above, Thompson could have been found guilty even if Butler did not intend to kill the victim. See Tex. Penal Code § 7.02(a)(1) (if he intended to kill and aided Butler's shooting), (b) (if he conspired to commit aggravated robbery and the death was a consequence he should have anticipated); Ex parte Thompson, 179 S.W.3d at 552-54.

Based on trial counsel's affidavit, the TCCA found: “[Trial counsel] made a strategic choice not to argue that the shooting ... was unintentional, even though he had reviewed co-defendant Butler's statement, because counsel found the stronger course of action was to argue that [Thompson] should not have anticipated Butler's shooting”. Ex parte Thompson, 179 S.W.3d at 551 (adopting state-habeas trial court's findings of fact and conclusions of law). It held Thompson failed to show deficient performance or prejudice, stating: “[T]hat another attorney might have pursued [a] different strategy will not support a finding of ineffective assistance of counsel”. Id.

The district court ruled: “The evidence strongly supported the conclusion that Thompson intended to kill, regardless of Butler's intent. Thompson has not shown that the state court's conclusion that trial counsel did not provide ineffective assistance was contrary to, or an unreasonable application of, federal law”. Thompson, No. 4:06-CV-148 (30 Nov. 2007).

Thompson contests that his counsel chose not to introduce the statement because it reinforced that the men planned the robberies and supported an inference that they intended to kill, as trial counsel stated in his affidavit. Thompson contends that counsel “failed to understand the significance of [Butler's] statement or simply failed to pursue it in a timely way”. Thompson also urges that discovery should have been permitted by the district court “[t]o resolve a potential dispute over the use of [Butler's] statement”. As explained above, Thompson's motions for factual development failed to, inter alia, convey what “potential dispute” exists that could entitle him to relief; and the denial of discovery was not an abuse of discretion.

d.

Fourth, Thompson seeks a COA for his claim that his trial counsel's failure to object to evidence of the victim's good character deprived him of his Sixth Amendment right to effective counsel. During the guilt-innocence phase of his trial, witnesses testified that both store clerks were nice, good people; and that the victim had shielded a bystander from bullets during the robbery.

On direct appeal, the TCCA noted the failure to object “may have been strategic”. Thompson, 2003 WL 21466925, at *6. In denying the claim, it ruled Thompson had not shown the evidence was inadmissible or that a successful objection would have affected his trial's outcome. Id.

The district court held: although Thompson cited Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), for the proposition that “a victim's general character should not be an issue in a trial, especially in guilt innocence”, Thompson had not shown how his counsel could have excluded this testimony. Thompson, No. 4:06-CV-148 (30 Nov. 2007).

Thompson asserts the evidence is inadmissible under Payne because this is an extraordinary circumstance where his character should not be compared to the victim's, because he did not shoot the victim. Payne dealt, however, with character evidence introduced during the sentencing phase of a trial, and held such evidence may be relevant and admissible as to the jury's decision. Payne, 501 U.S. at 827, 111 S.Ct. 2597. It also states: “In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief”. Id. at 825, 111 S.Ct. 2597. Thompson has made no showing that this testimony rendered his trial fundamentally unfair.

e.

Fifth, Thompson seeks a COA for his claim that his trial counsel was ineffective for failing to request an instruction on felony murder, forcing the jury to convict him of an offense more serious than he committed or set him free, in violation of his due-process rights under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (holding death penalty is unconstitutional where evidence supported a lesser-included offense on which the jury was not instructed). Thompson makes no effort, however, to show the jury could have found he was guilty of felony, rather than capital, murder. As noted, the jury was instructed it could find Thompson guilty of capital murder if he: (1) specifically intended to kill, and did kill, the victim during the robbery; (2) intended to kill the victim by “soliciti[ing], encourag[ing], direct[ing], aid[ing], or attempt[ing] to aid” Butler's shooting him; or (3) conspired with Butler to commit the robbery and Butler's shooting the victim “was committed in furtherance of the conspiracy and was an offense that [Thompson] should have [ ] anticipated”. See Ex parte Thompson, 179 S.W.3d at 552.

This claim was denied on direct appeal, the TCCA ruling that Thompson had not shown a reasonable probability of a different outcome, had the lesser-offense instruction been requested. Thompson, 2003 WL 21466925, at *4-5. It expressed no opinion on whether counsel's performance was deficient (noting the absence of an affidavit from him) or whether the evidence at trial entitled Thompson to such an instruction. Id. at *5.

On state-habeas review, the State introduced Thompson's trial counsel's earlier-discussed affidavit stating that, in the light of the evidence of Thompson's conduct and confessions, counsel decided not to challenge the State's evidence of Thompson's intent to kill or to request an instruction on unintentional murder because such an instruction was not supported by the evidence. The TCCA ordered supplemental briefing on this claim.

In its subsequent opinion, the TCCA noted that the claim was denied on direct appeal because the direct-appeal record did not contain “sufficient information concerning trial counsel's strategy”, but that the state-habeas record did. Ex parte Thompson, 179 S.W.3d at 557. The TCCA held Thompson's counsel was not ineffective because, considering the evidence at trial, Thompson was not entitled to a felony-murder instruction. Id. at 558-60. It ruled: Thompson “fails to point to any evidence that affirmatively shows [Thompson] did not intend the death of [the victim] or another”; and the evidence of his “intent to kill is not merely sufficient, it is overwhelming”. Id. at 559. It also noted that, if Thompson's counsel had challenged the evidence of his intent to kill, “the State would presumably walk right through that door with the evidence of two extraneous capital murders [Thompson] committed to prove that he had a murderous intent on this occasion just as he had on those two other occasions”. Id. at 560.

The district court, after reviewing Texas law, trial counsel's affidavit, and the TCCA's decision, agreed. Thompson, No. 4:06-CV-148 (30 Nov. 2007). It ruled: “Trial counsel made a strategic decision not to seek a felony murder instruction. The [TCCA's] affirming of that decision is amply supported. There is no basis for relief....” Id. Here, Thompson fails to point to evidence that could show he lacked the intent to kill, or otherwise demonstrate his entitlement to such an instruction.

f.

Sixth, Thompson seeks a COA on his IAC claim that his counsel's failure to investigate and present mitigating evidence for the punishment phase of trial violated his Sixth Amendment right under Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Two affidavits attached to his federal habeas petition (from his mother and grandmother) and four filed with his subsequent request for a stay (from family and friends) attest to his difficult childhood and good character. Thompson asserts this claim was presented to the state courts, without the six affidavits, as part of his IAC-for-failure-to-investigate claim in state-habeas proceedings. This claim also appears to have been included on direct appeal, as part of his IAC-in-the-punishment-phase claim (discussed in the next subpart).

In the alternative, he contends the district court erred by denying his request for a stay so that he could exhaust this claim in state court. Again, a denial of such a stay is reviewed for abuse of discretion. Brewer v. Johnson, 139 F.3d 491, 492-93 (5th Cir.1998) (citations omitted). A stay should only be granted if: (1) the petitioner had good cause for his failure to exhaust; (2) his claim is not plainly meritless; and (3) he has not engaged in an intentional delay. See, e.g., Rhines v. Weber, 544 U.S. 269, 277-78, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). The district court noted Thompson made none of those showings. Thompson does not explain why he did not file his motion for a stay until several months after filing his federal habeas petition. Thus, the district court did not abuse its discretion in denying a stay.

The state-habeas trial court made the following, above-quoted findings with regard to his IAC-for-failure-to-investigate claim: [T]he trial court granted defense counsels' ... motion for an independent psychiatric evaluation of [Thompson].... [That doctor] evaluated [Thompson] ... and [Thompson] admitted to [her] that he committed robberies and that he would continue the same course of action if he were given a gun.... [The doctor] considered [Thompson] a sociopath who cared only for his aunt and had no respect for others' lives.... [D]efense counsel elected not to present the testimony of [that doctor] because her testimony was not beneficial to the defense.... [D]efense counsels' punishment strategy was to demonstrate ... that [Thompson's] age and lack of criminal record was sufficiently mitigating to warrant an affirmative answer to the third special issue. Ex parte Thompson, 179 S.W.3d at 551 (adopting state-habeas trial court's findings of fact and conclusions of law).

The district court noted Thompson: “never presented this claim in state court” and “concedes that ‘any subsequent state-habeas writ would likely be dismissed [as successive] under the state's ... abuse of the writ doctrine’ ”. Thompson, No. 4:06-CV-148 (30 Nov. 2007). Thus, the claim is unexhausted and would be procedurally barred. Id.; see also Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir.2008) (explaining claim must be first considered by state courts, and its dismissal under the abuse of the writ doctrine is an independent and adequate state ground for denial that procedurally bars it from federal habeas review) (citations omitted).

Nevertheless, the district court proceeded to consider the merits of the claim. Thompson, No. 4:06-CV-148 (30 Nov. 2007). It found that trial counsel was familiar with Thompson's background, and that three defense witnesses testified to Thompson's good character and living with relatives while his parents were incarcerated. Id. It also noted that trial counsel's affidavit, presented by the State during state-habeas proceedings, stated: “there simply was not much in the way of mitigation to provide” and “Mr. Thompson did not want [his attorneys] to present any evidence in the way of mitigation”. Id. It noted Thompson did not contradict his trial counsel's statement that he did not want his attorneys to introduce mitigating evidence, and, thus, could not show deficient performance. Id. Further, in the light of the earlier-described six new affidavits, it held Thompson had not shown “a reasonable probability of a different result had counsel adopted [Thompson's] proposed punishment phase strategy”. Id.

As in district court, Thompson makes no effort to overcome the procedural bar or contest his trial counsel's affidavit. He instead urges the district court erred in ruling he did not show a reasonable probability that his mitigation evidence would have affected his sentence.

g.

Seventh, Thompson requests a COA on whether his trial counsel's failure to object to the admission of “the many extraneous offenses that the State was intent on introducing at [the] punishment” phase constituted IAC. The State's punishment-phase evidence showed Thompson confessed to committing two other murders during four similar aggravated robberies (with Butler, during the week preceding the victim's death).

Thompson's counsel objected, initially and unsuccessfully, to the admission of Thompson's confessions on the basis that they were not voluntary. Thompson maintained on direct appeal that the confessions were admitted without objection, because counsel's original objections (voluntary intoxication) were abandoned at the pre-trial hearing on admissibility. During the punishment-phase of trial, counsel did not dispute the truthfulness of Thompson's confessions, instead characterizing Thompson's conduct as an aberration in an otherwise law-abiding life. The jury was instructed to consider the other offenses “only if the extraneous crime or bad act has been shown by the State beyond a reasonable doubt to have been committed by [Thompson]”.

This issue was raised on direct appeal and in state-habeas proceedings, in the context of whether this failure, coupled with counsel's stating that the jury could consider the extraneous offenses, lowered the State's burden of proof so as to constitute IAC. See Thompson, 2003 WL 21466925, at *6-7. The TCCA ruled, on direct appeal: Thompson failed to establish either deficient or prejudicial performance. Id. at *7.

The district court determined that, under AEDPA, the state-court decision was not unreasonable because Thompson confessed to the extraneous offenses and provided no basis to challenge the admission of evidence to prove his involvement in them. Thompson, No. 4:06-CV-148 (30 Nov. 2007). Thompson urges: even though he admitted to committing these offenses, his counsel should have requested a hearing to determine beyond a reasonable doubt that he committed them and minimize or factually challenge them during the punishment phase. He cites no authority for this proposition.

h.

Eighth, Thompson seeks a COA on his IAC claim that his co-counsel's closing during the punishment phase lowered the State's burden of proof on the second special issue. That issue required the jury to find Thompson “actually caused the death ... [or] intended to kill [the victim] or another or that he anticipated that a human life would be taken”. His co-counsel, in closing, rephrased it this way: “that he's responsible for this killing in some kind of way”.

The TCCA denied relief on this claim on direct appeal, ruling: co-counsel's statement was not deficient performance because, “[a]bsent evidence to the contrary, we must presume that counsel strategically decided to avert attention from the second special issue”. Thompson, 2003 WL 21466925, at *7. It noted the jury was instructed according to Texas law.

On state-habeas, the TCCA noted this issue “need not be considered” because it had been decided on direct appeal, and held, in any event, that Thompson failed to show “deficient performance, much less harm”, from the alleged error. Ex parte Thompson, 179 S.W.3d at 551 (adopting state-habeas trial court's findings of fact and conclusions of law).

The district court found: co-counsel's statement would not have lowered the burden of proof or changed the jury's special-issues verdict because the jury's instructions properly tracked Texas law. Thompson, No. 4:06-CV-148 (30 Nov. 2007).

i.

Finally, Thompson requests a COA on whether these eight claimed errors constitute IAC if considered cumulatively. He also relies on one of his trial counsel's “extensive disciplinary history”, as presented in his state-habeas petition.

Thompson did not present this cumulative-error issue in his COA request in district court. Along that line, as discussed supra, before this court can consider a COA request ( i.e., determine whether reasonable jurists could debate the district court's decision), a COA for that issue must have been denied by the district court. See, e.g., Brewer v. Quarterman, 466 F.3d 344, 346 (5th Cir.2006), cert. denied, --- U.S. ----, 128 S.Ct. 63, 169 L.Ed.2d 52 (2007); Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.1998). In other words, “lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider” a COA belatedly requested here. Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir.1998) (citation omitted).

III.