Monday, May 10, 2010
Media Advisory: Kevin Varga scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Kevin Varga, who is scheduled to be executed after 6 p.m. on Wednesday, May 12, 2010, for the 1998 robbery and murder of David Logie in Greenville, northeast of Dallas.

FACTS OF THE CRIME

On September 1, 1998, Varga, Venus Anderson, Billy Galloway, and Deannee Ann Bayless, left Sioux Falls, South Dakota, in Galloway’s Bronco, intending to travel to Mexico.

They stopped at a motel in Greenville, Texas, where Anderson and Bayless went into the lounge and met David Logie. They eventually left with him in his car, with Bayless driving. Galloway and Varga followed in another vehicle. Bayless drove to a deserted area of town behind a building. Bayless and Logie got out of the car to have sex on the hood. A few minutes later, Anderson heard Galloway’s voice and saw him punching Logie. Logie was screaming, “Please don’t kill me, please. You can have my money...my car, anything, but please, please don’t kill me,” but Galloway kept hitting him.

After several minutes, Varga appeared from behind the car and handed Galloway an object. Logie was still lying on the ground screaming. Galloway began striking Logie with the object for several more minutes.

Police found a ball-peen hammer and pieces of a bloody tree limb near Logie’s body. After taking Logie’s wallet, the four dragged his body into the nearby woods. A medical examiner determined that Logie’s death was caused by blunt force injuries to the head.

PROCEDURAL HISTORY

--Varga was convicted and sentenced to death by a Hunt County jury.
--The Texas Court of Criminal Appeals affirmed Varga’s conviction and sentence on direct appeal.
--The Texas Court of Criminal Appeals also denied state habeas corpus relief.
--The federal district court denied Varga’s petition for writ of habeas corpus on February 28, 2008.
--U.S. Court of Appeals (5th Circuit) denied certificate of appealability on February 18, 2009.
--U.S. Supreme Court denied certiorari review of that decision on October 5, 2009.

--No litigation is currently pending.
On April 12, 2010, Varga filed a petition for clemency with the Texas Board of Pardons and Parole.

PRIOR CRIMINAL HISTORY

The jury heard evidence regarding Varga’s prior violent and criminal behavior, including:

• Varga and two other inmates attempted an escape while incarcerated at the Hunt County Jail.
• Several domestic calls made by ex-wife to police in which she accused Varga of hitting her.
• While incarcerated at a South Dakota prison, Varga was classified among the most aggressive prisoners who were viewed as “basically the predators of the institution.”
The jury did not hear the following evidence of Varga’s prior criminal history:

• Varga spent 18 month in a Michigan county juvenile detention center
• Varga spent 30 days in jail in Sioux Falls, South Dakota for simple assault
• Varga sentenced to 3 years in South Dakota for third degree burglary.
• Varga also received a ten-year sentence for grand theft.

Texas Execution Information Center by David Carson.

Kevin Scott Varga, 41, was executed by lethal injection on 12 May 2010 in Huntsville, Texas for killing a man during a robbery. Late in the summer of 1998, Varga, then 29; his girlfriend, Venus Anderson, 17; his friend Billy Galloway, 29; and Galloway's girlfriend Deannee Bayless, 30 - all of whom were on probation or parole in South Dakota - gathered up their belongings, loaded up Galloway's vehicle, and left South Dakota, intending to travel to Mexico.

After a few days, the group arrived in Wichita, Kansas, and checked into a hotel. They made plans to "roll" someone - i.e., to lure someone back to the hotel to blackmail or rob him. Varga instructed Anderson to choose someone who appeared old and weak, and not too heavy. Varga then stayed in the hotel room, while Galloway, Bayless, and Anderson went to a bar. Anderson and Bayless pretended to be sisters. Anderson picked up David McCoy, 48, while Bayless pretended to pick up Galloway. Bayless talked McCoy into returning to the hotel with them. Once there, Varga emerged from the bathroom with a metal pole and beat McCoy to death. The men then wrapped his body in a blanket and put it in their vehicle. The group then left Witchita, driving both Galloway and McCoy's cars. After Galloway's vehicle broke down, they abandoned it in a parking lot with the body still inside.

On 7 September, the group arrived in Greenville, Texas. They decided to roll another victim. Bayless and Anderson went to a motel, met David Logie, 37, in the lounge, and convinced him to go eat with them. With Bayless driving Logie's rental car, they left the parking lot together. Varga and Galloway followed them in McCoy's car. After a short time, Bayless pulled over near a building in a deserted area, ostensibly so that she and Logie could have sex on the hood. Logie exited the car with her. Varga and Galloway then appeared and began attacking Logie. Galloway struck him with his fists and knocked him down. He pleaded for his life for several minutes while Galloway beat him. Varga then handed Galloway an object, and the beating continued until Logie was dead. The group took Logie's wallet and credit cards and dragged his body into the woods. They burned McCoy's car and left Greenville in Logie's car. Police found a ball peen hammer and a tree limb near the body.

The group proceeded to San Antonio. Bayless and Anderson used Logie's credit cards at a shopping mall. Police followed them from the mall and pulled them over in a parking lot. After the officer separated them, Anderson confessed to the murders, and she and Bayless were arrested. Varga and Galloway were subsequently arrested at a strip club.

According to Anderson's testimony, the original plan the group devised in Wichita was for her to lure a man back to the room and that once his pants were down, Varga would emerge from hiding and blackmail him. Before she left the room, however, she saw Varga swinging a metal pole and heard him remark that it was "too long." Anderson further testified that after McCoy's murder, her three co-defendants began "jumping around and hugging each other and kissing each other and coming up to me and hugging me and asking me if I was all right and telling me it was all right ... the first murder was always that way, you know..."

Varga had prior felony convictions in South Dakota for burglary and grand theft. He was sentenced to 3 years and 10 years, respectively, for those convictions. Police also testified to responding several times to domestic dispute calls made by Varga's ex-wife, who accused him of hitting her.

A jury convicted Varga of capital murder in November 2000 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 2003. All of his subsequent appeals in state and federal court were denied.

Billy John Galloway was convicted of capital murder and sentenced to death. He was executed one day after Varga. Deannee Anne Bayless was convicted of murder and sentenced to 40 years in prison. Currently in custody, she becomes eligible for parole in 2018. Venus Joy Anderson received limited immunity in exchange for her testimony against the others. She served seven years in prison.

David Logie's father, John, attended Varga's execution, as did Varga's mother, Beth. A reporter described Varga as "upbeat and smiling" as his execution began. "I know I took someone very precious to you," he said to the victim's father in his last statement. "I wish what was torn from you was not." He asked for forgiveness and said that God had forgiven him. "You have to forgive me for you to gain the kingdom of Heaven," he said. Varga told his mother that he would "go to sleep and wake up with Jesus." He said "This is the only way God could save me, Mom." After Varga thanked the warden, a chaplain, and God, the lethal injection was started. Varga breathed a loud sigh and said "Oooh! Thank, you Jesus. I'm going, Mom." He was pronounced dead at 6:19 p.m.

Houston Chronicle

"South Dakota ex-con executed," by Michael Graczyk. (Associated Press May 12, 2010, 6:57PM)

HUNTSVILLE — A South Dakota parolee convicted of helping fatally beat and rob an Army officer before setting fire to his body 12 years ago was executed Wednesday in Texas.

Kevin Varga, 41, was upbeat and smiling as the lethal drugs were delivered into his arms. “I know I took someone very precious to you,” he told the parents and friends of David Logie as they watched through a window. “I wish what was torn from you was not.” He said he loved them, asked them for forgiveness but said he didn't require it “because God has forgiven me.” “I hope you find peace,” he said.

He turned his head toward his mother, who watched through a window in an adjacent room, and told her he would “go to sleep and wake up with Jesus.” “This is the only way God could save me, Mom,” he said. After thanking the warden, a chaplain and God, he uttered a loud sigh as the drugs began taking effect. “Oooh! Thank you Jesus,” he said. “I'm going, Mom.” He was pronounced dead seven minutes later, at 6:19 p.m.

Billy Galloway, 41, Varga's former cellmate in South Dakota and his partner in Logie's 1998 slaying was set to die Thursday in the same chamber. Like Varga, Galloway's appeals were exhausted.

Prosecutors said weeks after their parole from a South Dakota prison, Varga and Galloway and their two girlfriends drove south from Sioux Falls on Sept. 1, 1998. Over the next week, the group robbed and killed a man in Wichita, Kan., before doing the same to Logie, 37, an Army major from Fayetteville, N.C., behind a building in Greenville, about 50 miles east of Dallas.

Varga and Galloway were convicted of capital murder in Logie's death, and none of the four were tried in the slaying of the Kansas man, 48-year-old David McCoy. Venus Joy Anderson, Varga's 17-year-old girlfriend at the time of the killings, served a reduced seven-year prison term in Texas in exchange for her testimony. Deannee Bayless, Galloway's then-30-year-old girlfriend, is serving 40 years for Logie's murder and isn't eligible for parole until 2018.

Varga, a native of Kalamazoo, Mich., had been paroled from South Dakota in May 1998 after serving about half of a 10-year term for grand theft. Galloway, originally from Onondaga, N.Y., was paroled a month after his cellmate. He'd served time for theft, parole violation and attempted robbery.

Anderson testified Varga concocted a plan where she and Bayless would offer men sex then blackmail them. As part of the scheme, Varga and Galloway would come out of hiding, ambush their victim and rob him, she said. Anderson testified Varga beat McCoy with a metal pole and kicked him, and that he and Galloway were disappointed their victim was carrying only $80. McCoy's body was found wrapped in sheets in Galloway's SUV, which was abandoned a few blocks from where the slaying occurred.

The four took McCoy's car to Texas, where they planned a similar attack, Anderson said. She and Bayless propositioned Logie, who was in town on business, at a Holiday Inn bar in Greenville. When they went to a deserted area behind a building, Galloway and Varga showed up. Police said a hammer and bloody tree limb were found near Logie's battered body, which the four dragged into some woods and set on fire. The four took Logie's car to San Antonio, where they were arrested.

Attorney Toby Wilkinson tried convincing a jury at a trial in 2000 Varga was not a participant because there was little blood on him. “There's no doubt he was there,” Wilkinson said. “If Kevin helped in the beating, there would have been blood everywhere. But when he participates in the Wichita murder, and he stays with these people, then I think your average person says he deserves what he got because he knew what they were going to do and didn't leave.

“That's kind of what we were facing. Had we not had that first murder, the jury might have been more acceptable.”

Varga's lethal injection was the eighth this year in the nation's most active capital punishment state. He and Galloway were among at least 10 Texas inmates with execution dates in the coming weeks.

Huntsville Item

"South Dakota man executed for fatal beating," by Mary Rainwater. (May 12, 2010)

HUNTSVILLE — Former South Dakota resident Kevin Scott Varga, 41, was executed Wednesday for his role in the robbery and fatal beating of an army officer in Greenville in 1998. Varga’s lethal injection was carried out after his court appeals were exhausted and a clemency request rejected by the Texas Board of Pardons and Paroles.

In his final statement, Varga first addressed victim David Logie’s father, Jack Logie, and five friends of the victim’s family, asking for forgiveness from the family and voicing regret for his actions in Logie’s murder. “I know I took someone very precious to you — myself and Mr. Galloway, who you will see tomorrow,” Varga said. “Please forgive me. You have to forgive me for you to gain the kingdom of Heaven. “I wish what was torn from you was not,” he added. “I would pay it back a thousand times to bring back your loved ones. I would pay it gladly.”

In addressing his family, Varga’s words were directed to his personal witnesses, which included his mother, Beth Varga, and personal friend Kathryn Cox. “Mom, you are my strength... you didn’t do anything wrong,” he said. “This is nothing. I am going to go to sleep and wake up with Jesus. This is the only way God could save me.”

After Varga declared his readiness to the warden, the lethal cocktail of drugs were administered into Varga’s system at 6:12 p.m. He was pronounced dead just seven minutes later at 6:19 p.m.

Varga’s last few words, “Thank you Jesus. I am going Mom,” were uttered just before succumbing to the injection, with his mother declaring, “I love you so much, Kevin.” Victim’s witnesses remained quiet and solemn throughout the execution, with a family friend keeping a hand of support upon the back of the victim’s father throughout.

Varga, along with fellow South Dakotan Billy John Galloway, were sentenced to death row a decade ago in connection with the slaying of Logie on Sept. 9, 1998.

Prosecutors said weeks after their parole from a South Dakota prison, Varga and Galloway and their two girlfriends drove south from Sioux Falls on Sept. 1, 1998. Over the next week, the group robbed and killed a man in Wichita, Kan., before doing the same to Logie, 37, an Army major from Fayetteville, N.C., behind a building in Greenville, about 50 miles east of Dallas.

Varga and Galloway were convicted of capital murder in Logie’s death, and none of the four were tried in the slaying of the Kansas man, 48-year-old David McCoy.

Venus Joy Anderson, Varga’s 17-year-old girlfriend at the time of the killings, served a reduced seven-year prison term in Texas in exchange for her testimony. Deannee Bayless, Galloway’s then-30-year-old girlfriend, is serving 40 years for Logie’s murder and isn’t eligible for parole until 2018.

Anderson testified Varga concocted a plan where she and Bayless would offer men sex then blackmail them. As part of the scheme, Varga and Galloway would come out of hiding, ambush their victim and rob him, she said. Anderson testified Varga beat McCoy with a metal pole and kicked him, and that he and Galloway were disappointed their victim was carrying only $80. McCoy’s body was found wrapped in sheets in Galloway’s SUV, which was abandoned a few blocks from where the slaying occurred.

The four took McCoy’s car to Texas, where they planned a similar attack, Anderson said. She and Bayless propositioned Logie, who was in town on business, at a Holiday Inn bar in Greenville. When they went to a deserted area behind a building, Galloway and Varga showed up. Police said a hammer and bloody tree limb were found near Logie’s battered body, which the four dragged into some woods and set on fire. The four took Logie’s car to San Antonio, where they were arrested.

Varga’s lethal injection was the eighth this year in the nation’s most active capital punishment state. He and Galloway were among at least 10 Texas inmates with execution dates in the coming weeks. Galloway, 41, is set to die today in the same chamber. Like Varga, Galloway’s appeals were exhausted.

ProDeathPenalty.Com

During the late summer of 1998, Billy Galloway, his girlfriend, Deannee Bayless, Galloway's friend Kevin Varga, and Varga's girlfriend, Venus Joy Anderson, were all on probation or parole with the South Dakota Department of Corrections. On September 1, 1998, the four gathered their money and belongings, loaded up Galloway's automobile, and left South Dakota.

A few days later, the group arrived in Wichita, Kansas, and checked into a hotel. That evening, after discussing a plan to lure someone back to the hotel to blackmail or rob them, Galloway, Anderson, and Bayless went to a bar. According to Anderson, the group discussed "rolling" someone. When she asked what this meant, her cohorts explained that it entailed enticing an older man with money back to a hotel room and then blackmailing him after the others caught him in a compromising position.

At the bar, the three met David McCoy, and Bayless talked him into returning to the hotel with them. Once there, the men killed McCoy, wrapped his body in a blanket, and loaded it into Galloway's vehicle. Driving both Galloway's vehicle and McCoy's car, the group headed out of Wichita. After Galloway's automobile stopped running, they abandoned it in a parking lot with McCoy's body still inside.

The group arrived in Greenville, Hunt County, Texas, September 7, 1998. Galloway and Varga wanted more money, so they agreed to engage in the same pickup scheme that they had used in Kansas. Shortly thereafter, Bayless and Anderson met David Logie at the Holiday Inn and convinced him to go eat with them. With Bayless driving Logie's rental car, the three left the Holiday Inn parking lot. Galloway and Varga surreptitiously followed them in McCoy's car. Shortly thereafter, Bayless pulled off the road near a building. Bayless got out of the car with Logie and told Anderson that she and Logie were going to have sex on the hood of his car. About this time, Galloway appeared and began cursing and hitting Logie with his fist, knocking him down. Varga repeatedly struck Logie with a log, killing him. Bayless took Logie's wallet and credit cards. The group burned McCoy's vehicle and left Greenville in Logie's rental car.

The group traveled to San Antonio, where Bayless and Anderson used the credit cards Bayless had stolen from Logie at a local mall. As they were leaving the mall parking lot, the women noticed a police car behind them, and they pulled into a nearby Wal-Mart parking lot. The officer approached and separated the two women. After Anderson confessed to the murders, officers arrested Bayless and Anderson. Galloway and Varga were arrested later that night. Based on the information Anderson gave in her confession, the authorities located Logie's body near Greenville and notified Kansas authorities about McCoy's murder. Varga's accomplice Billy Galloway is scheduled to be executed the following day.

Rapid City Journal

"Death row inmate: No justice by execution," by Mary Rainwater. (Wednesday, May 5, 2010 9:27 pm)

LIVINGSTON, Texas -- Both family and time are heavy on the mind of 41-year-old former South Dakota resident Kevin Scott Varga, who sits on death row in the Polunsky Unit in Livingston, Texas. In just a week, Varga will make what is likely to be his last journey, to Huntsville, Texas, where he faces lethal injection on Wednesday for his part in the murder of a Greenville, Texas, man in 1998.

Varga, along with fellow South Dakotan Billy John Galloway, were sentenced to death row a decade ago in connection with the slaying of Maj. David Lawrence Logie on Sept. 9, 1998. The two were joined on a road trip by Deannee Ann Bayless and Venus Joy Anderson, also of South Dakota, all participating in the robbery-murder of Logie. The four also were accused, with Varga and Galloway, of the slaying of David McCoy of Wichita, Kan., in 1998. "I was outvoted," Varga said about how the four ended up in Texas. "We were going on a road trip. I wanted to go north and they wanted to go south. It was three against one."

In a Wednesday interview, Varga stated that he has never claimed to be completely innocent in regards to his part in the murders, but does maintain that he did not actively participate in their deaths. "I am not saying I am innocent, but I did not take an active part in the deaths," he said. "I don't believe I am a total innocent as that would indicate no culpability at all. "It was my idea to rob the men, but I maintain that I never intended for anyone to die," he said. "I am guilty in that I did not do anything to stop it."

Criminally negligent homicide, Varga said, would have been a more appropriate charge for his part in the robbery-murder -- a charge that, if convicted, carries a maximum prison sentence of two years in Texas. "I have served my time four times over now," he said. "This is not even close to being a just punishment for me. "It is ironic because Texas considers South Dakota to be a backwater place, yet I find the opposite to be true," he continued. "The moral standings and ideologies of people here are foreign to me. "The fact that Texas still maintains (the death penalty) with such fervor indicates to me a backwards way of thinking."

While all appeals have run out in Varga's case, there may be one more opportunity for clemency in the works to stop his execution. He gets updates on clemency efforts from his mother, who moved from Rapid City to Texas to be near her son. "I have friends all around the world praying for me," Varga said. "Many have written petitions on my behalf and have even brought my case to the pope. That the pope knows my name -- that blows me away."

During his 10-year stint on Texas' Death Row, Varga has maintained contact with his family back in South Dakota, which includes two sons: Richard, 18, in Sioux Falls, and Stephen, 20, in Rapid City. A brother also lives in Rapid City and a stepsister lives in Mobridge.

To the families of the Logie and McCoy, Varga said he felt that his death would not bring them justice, but only serve as vengeance for their loved one's death. "I apologize for the pain and anger," he said. "I know they feel I should die for what they consider to be my actions and what I consider to be my inactions. "But justice won't be done by my execution, only vengeance," he added. "If my execution were able to bring back their loved one, I'd willingly drop my appeal and bring them back."

Varga's execution will be the eighth death by lethal injection to take place in Texas this year. Galloway, also 41, is scheduled for execution the next day. Bayless and Anderson entered pleas to reduced charges and received lesser sentences.

Varga v. State, Not Reported in S.W.3d, 2003 WL 21466926 (Tex.Crim.App. 2003). (Direct Appeal)

Defendant was convicted by a jury in the trial court, Hunt County, of capital murder and sentenced to death. Defendant appealed. The Court of Criminal Appeals, Price, J., held that: (1) evidence was legally sufficient to prove that there was a probability that defendant would commit criminal acts of violence that would constitute a continuing threat to society; (2) trial court error in providing an improper definition of probability in the jury charge on future dangerousness did not deny defendant a fair and impartial punishment hearing; (3) trial court admission of autopsy photographs of the victims was not an abuse of discretion; and (4) trial court error, if any, in allowing the widow of one of the victim's to testify regarding her history as an abused child to rebut defendant's mitigation evidence, was harmless. Affirmed.

PRICE, J., delivered the unanimous opinion of the Court.

In his thirteenth point of error, the appellant claims that the evidence is legally insufficient to prove beyond a reasonable doubt that there is a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The appellant argues that “this case does not involve torture, disfigurement, necrophilia, body mutilation, or other circumstances that would justify a death sentence without additional evidence.” He points to a co-defendant as master-minding the murders and making the decisions for the group. He also points to evidence he says shows that he intended only to rob the victims and did not contemplate murder. The appellant argues that he was acting under the threatening influence of more controlling peers. The appellant emphasizes the State's lack of psychiatric testimony as a “noticeable hole” in their punishment evidence that merits consideration in our sufficiency review. The appellant argues that none of his prior crimes were particularly serious, violent or indicative of future dangerousness. Following is a summary of the pertinent evidence admitted during the guilt and punishment phases of the trial, viewed in a light most favorable to the verdict.

On September 1, 1998, the appellant, Venus Anderson, Billy Galloway, and Deannee Ann Bayless, left Sioux Falls, South Dakota, in Galloway's Bronco, intending to travel to Mexico. On their way south, the appellant asked Anderson if she knew what it meant to “roll” someone. He explained that it meant she would go to a bar, meet a man and take him back to their hotel room, where the appellant would be hiding. When she had the man with his pants down, the appellant would come out and blackmail the man for his money. Anderson agreed to the plan, and the appellant instructed her to choose someone who was older, somewhat weak, and not too heavy. Bayless was going to pretend to be Anderson's sister. In Wichita, Kansas, they decided to carry out the plan. Before leaving their hotel room for a bar, Anderson saw the appellant swing a metal pole around the room and heard him complain that it was too long.

The four went to a bar where Bayless and Anderson met David McCoy. The girls picked up Galloway and McCoy, and the four rode in McCoy's car to the hotel room, where the appellant was hiding in the bathroom with the metal pole. The appellant left the bathroom and entered the room with the pole. Anderson left the room but testified to hearing thuds. Anderson stepped around the corner with Galloway, and Galloway yelled out “that's enough.” McCoy was lying on the floor. Anderson testified that the appellant, Galloway, and Bayless began “jumping around and hugging each other and kissing each other and coming up to me and hugging me and asking me if I was all right and telling me it was all right ... [t]he first murder was always that way, you know.... And they kept hugging and kissing me.” When Bayless discovered just eighty dollars in McCoy's wallet, Galloway started kicking and spitting on McCoy's body and calling him names. Before leaving the room, they cut out the portion of the carpet soaked with blood and attempted to wipe blood from the walls. They wrapped McCoy's body in blankets and loaded it into the Bronco. They left the Bronco in a parking lot when it broke down a few blocks from the hotel.

McCoy's body was found several days later in a state of advanced decomposition. The medical examiner testified that the skull fractures in the back of McCoy's head were severe: “the bone was broken into so many small pieces they simply fell to the autopsy table.” In addition, there was a skull fracture on the floor of the skull of a type that most commonly occurs in car accidents. Both cheekbones, the jaw area, and the left eye socket were fractured. There were numerous lacerations about the head, including some that split the left ear in half. The cause of death was determined to be blunt force trauma to the head.

Meanwhile, after leaving the Bronco, the four continued south in McCoy's car. In Texas, they began to discuss “rolling” someone again. They went to a Holiday Inn in Greenville, where Anderson and Bayless went into the lounge and met David Logie. They eventually left with him in his car, with Bayless driving. Galloway and the appellant followed in McCoy's car. Bayless drove to a deserted area of town behind a building. Bayless and Logie got out of the car to have sex on the hood. A few minutes later, Anderson heard Galloway's voice and saw him punching Logie. Logie was screaming, “Please don't kill me, please. You can have my money ... my car, anything, but please, please, don't kill me,” but Galloway kept hitting him. After several minutes, the appellant appeared from behind the car and handed Galloway an object. Logie was still lying on the ground screaming. Galloway began striking Logie with the object for several more minutes. A police officer testified that a ball-peen hammer and pieces of bloody tree limb were later found near Logie's body. After taking Logie's wallet, the four dragged his body into the nearby woods. They drove McCoy's car into the woods and set it on fire. The medical examiner testified that there were extensive injuries to the head region. There were multiple fractures of the bones above the left eyebrow, fractures to the orbital ridge, the cheeks, the nose, the upper and lower jaws, mandible, teeth, and also other multiple lacerations about the head and upper body, which were consistent with having been struck with a hammer and/or a tree limb. A severely depressed skull fracture at the base of the skull caused a depression into the cranial vault. The body showed abrasions consistent with being dragged. The cause of death was determined to be blunt force injuries to the head.

The foursome continued south in Logie's car, arriving in San Antonio where Anderson and Bayless went shopping at a mall with Logie's credit cards while the appellant and Galloway went to a strip club. When Anderson and Bayless left the mall, they were pulled over by the police. Anderson confessed to the two murders and surrounding events when placed in the patrol car. The appellant and Galloway were arrested at the strip club.

During the punishment phase, the State put on evidence that the appellant and two other inmates attempted an escape while incarcerated at the Hunt County Sheriff's Department. When he was caught during the attempt, the appellant stated, “I had to try. I have nothing to lose.” The State presented evidence of several domestic dispute calls made by the appellant's ex-wife to police in which she accused the appellant of hitting her. Responding to one call, an officer saw the appellant strike someone twice in the head. There was testimony that, in the house where the appellant was living immediately before leaving with the three co-defendants on their road trip, police officers discovered the words “death is coming” written in mustard in the bottom of the sink. They also discovered the appellant's ex-wife's driver's license and what appeared to be a protective order on which was handwritten “fuck you”. The driver's license had been scratched with a knife or similar sharp object in an attempt to destroy the image of his ex-wife's face.

While incarcerated at a South Dakota prison, the appellant was classified among the most aggressive prisoners who were viewed as “basically the predators of the institution.” A prison official testified that the appellant preyed on weaker inmates and was a constant threat to security. The appellant had served time in prison at least twice on burglary charges.

In conducting a legal sufficiency review of the evidence to support the jury's affirmative finding on the future dangerousness issue, the reviewing court views the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence admitted during the guilt and punishment phases of the trial supports the jury's finding regarding future dangerousness.

The facts of these murders were horrible and gruesome. Both victims died as a result of severe beatings to the face and head. The appellant and his cohorts planned the murders in advance for the purpose of funding their road trip. The victims were targeted as weak and were lured away to secluded places by promises of sex where they were then attacked mercilessly.

In addition to the facts of the two murders, the State admitted evidence of an attempted escape from a county jail, the appellant's violent and assaultive conduct toward his ex-wife, possession of marijuana, the appellant's reputation for violence in prison, and his criminal record, including a conviction for theft and two convictions for burglary. Contrary to the appellant's arguments, the jury was not required to give controlling weight to the absence of psychiatric evidence or to view the evidence as the appellant views it. See Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App.1978). Viewed in the light most favorable to the jury's verdict, the evidence was legally sufficient to support the jury's verdict on the first special issue. Point of error thirteen is overruled.

In his first point of error, the appellant claims that the trial court erred by admitting evidence of other bad acts without requiring the State to show, prior to admission, that the appellant committed the alleged acts. Specifically, the appellant complains of admission of the following evidence at the punishment phase of the trial: (1) a photograph of a kitchen sink with the words “death is coming” written in it; (2) a photograph of the slashed driver's license of the appellant's ex-wife, Nicole Varga; (3) a photograph of a typed document with the words, “fuck you” printed across it; and (4) testimony describing the document on which Nicole Varga's driver's license was found. The appellant argues there was not a sufficient connection between this evidence and the appellant to establish that the appellant committed the acts.

Uncharged misconduct and other bad acts are admissible during the punishment phase of a capital murder case if they are clearly proven, relevant, and more probative than prejudicial. Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App.1996). Before these acts are relevant, the State must clearly prove that an offense was committed and that the accused was its perpetrator. Kemp v. State, 846 S.W.2d 289, 307 (Tex.Crim.App.1992). Admission of such evidence is within the sound discretion of the trial court. Ibid.

The appellant testified during the guilt phase of trial that he lived at 801 1/2 Southlake Avenue in Sioux Falls, South Dakota, in September of 1998, immediately before leaving town with his co-defendants on a road trip. During the punishment phase, Sergeant Marla Shrink testified that she was dispatched to the same address on September 4, 1998, to take photographs. She testified that written in a substance that appeared to be mustard in the bottom of the sink were the words, “death is coming.” She stated that the substance was not fresh, but was “dried up somewhat” and “crusty.” Shrink also testified that she took photographs of a protective order on which were handwritten the words “fuck you” and that Nicole Varga's driver's license was found with the protective order. She testified that it appeared that the driver's license had been scratched with a knife in an apparent attempt to destroy the image of the face. On cross-examination, defense counsel questioned whether others besides the appellant had access to the residence and whether the protective order might have been something else, like a parole plan.

Shrink's testimony was adequate to clearly prove that the extraneous acts occurred and that the appellant committed them. The appellant testified that he had been charged with domestic assault for assaulting his ex-wife. As a police officer, Shrink would know the difference between a protective order and a parole plan. And although other people may have had access to the appellant's residence, the appellant would have been more likely to have had a personal stake in a protective order involving his ex-wife than anyone else. Similarly, the appellant's involvement in two murders just hours or days after the words “death is coming” were written in the sink at his house is evidence that he, as opposed to some other person, wrote the words. A rational jury could have concluded that this evidence established by clear proof that appellant committed the acts. Thus, the ruling of the trial court was within the zone of reasonable disagreement. The court did not abuse its discretion in admitting the photographs and testimony. Point of error one is overruled.

In his second point of error, the appellant claims that the trial court erred when it gave an improper charge to the jury on the future dangerousness issue and that the trial court's error denied him a fair punishment hearing. The appellant alleges that both parties agreed to instructing the jury that the term “probability” meant “something that's more likely than not to occur.” However, the trial court instructed the jury that the definition of probability is “something that is more likely to occur that [sic] it is not.” The appellant argues that because the definition is different from that mutually agreed upon by the parties and was difficult to understand, the jury was forced to speculate about what it meant. The definition is confusing and does not make sense. The trial court erred in submitting it in such form.FN2

FN2. The State asserts that the court's definition most likely contained a typographical error and was meant to provide, “something that is more likely to occur than it is not.” (Emphasis added). That definition would have been consistent with the definition agreed upon by the parties.

Because the appellant failed to object to the complained-of definition, he therefore must show that the error was so egregious and caused such harm that he was denied a fair and impartial trial. Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000); Prystash v. State, 3 S.W.3d 522, 539 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). The error does not rise to the level of egregious harm in this case.

The record reflects that each juror was given a copy of the charge and encouraged to follow along as it was read aloud by the court before closing arguments and referred to during closing arguments. The record does not reflect whether the trial court read the definition correctly. However, during his closing argument, the prosecutor read the definition of probability correctly, referring the jurors directly to their copies of the charge: Now, I'm going to ask you to go to your charge and look where it talks about Special Issue 1, Paragraph 11. In the second paragraph under Special Issue No. 1, it says as follows, you are instructed that the definition of probability is something that is more likely to occur than it is not.

He expounded briefly on what that meant. A few minutes later, he again stated, “probability-you are instructed that the definition of probability is something that is more likely to occur than is not.” Defense counsel also touched on the definition of probability in his closing argument, stating, “Let's talk about the evidence that says there's a probability- that it's more likely than not-that [the appellant's] going to commit these criminal acts of violence....” (Emphasis added). Finally, when the jury's verdict was read aloud, the trial court read the definition correctly, and none of the jurors expressed disagreement.FN3 In light of the fact that the jurors heard the proper definition at least three times during closing argument when they had the opportunity to follow along on their copies of the charge and identify and correct the error, and both parties discussed and applied what probability meant in their arguments, and none of the jurors expressed disagreement at the court's reading of the verdict, there was no egregious harm. Point of error two is overruled.

FN3. Although the verdict form, like the charge, also contained the improper definition, the trial court read, Special Issue No. 1, is there a probability that the defendant, Kevin Scott Varga, would commit criminal acts of violence that would constitute a continuing threat to society? You are instructed the definition of probability is something that is more likely to occur than is not. Answer, we, the jury, unanimously find and determine beyond a reasonable doubt the answer to this special issue is yes, signed by the foreperson.

In his third point of error, the appellant claims that his trial counsel's failure to object to the improper definition of probability rendered the totality of counsel's representation during the punishment phase ineffective. The appellant refers to the erroneous definition of probability discussed in the previous point of error and argues that counsel's failure to object to the charge fell below an objective standard of reasonableness.

To establish a claim of ineffective assistance of counsel, the appellant must prove by a preponderance of the evidence that his counsel's performance fell below an objective standard of professional norms. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Id. at 689. Even if counsel's performance was deficient, the appellant must show that the deficient performance prejudiced his defense. That is, he must demonstrate a reasonable probability that, but for that deficiency, the outcome would have been different. Id. at 687. A reasonable probability means a probability sufficient to undermine confidence in the outcome of the proceedings. Ibid.

Regardless of whether counsel's performance fell within an objective standard of professional norms, the appellant cannot show that he was prejudiced for the same reasons discussed in the previous point of error. The jurors heard the proper definition at least three times during closing argument when they had the opportunity to follow along on their copies of the charge and identify and correct the error. Plus, both parties discussed and applied what probability meant in their closing arguments. Finally, none of the jurors expressed disagreement at the court's reading of the verdict at which time the court read the definition of probability properly. Point of error three is overruled.

In his fourth point of error, the appellant claims that the trial court erred in overruling his request for a mistrial after the State improperly impeached the appellant. The appellant complains of error arising from the following exchange during the appellant's testimony during the guilt phase of the trial: Q.[Prosecutor]: Well, were you a suspect in a strong-arm robbery in North Dakota-South Dakota? [Defense counsel]: Judge, I'm going to object- A.[The appellant]: Not that I'm aware of. [Defense counsel]:-at this time. If the question is, were you a suspect, I'm going to object to that. THE COURT: Sustain. Q.[Prosecutor]: Did you ever go up- [Defense counsel]: I'm going to ask for an instruction that the jury disregard [the prosecutor's] question. THE COURT: The jury will disregard anything about being a suspect in any crime. [Defense counsel]: And in addition, I'm going to move for a mistrial, Your Honor. THE COURT: Motion for mistrial is denied.

A mistrial is used to halt trial proceedings when an error occurs that is so prejudicial that further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). A trial court may properly exercise its discretion to declare a mistrial if an impartial verdict could not be reached under the circumstances or if a verdict of conviction could be reached but would necessarily be reversed on appeal due to an obvious error. See ibid. The asking of an improper question will rarely call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. The denial of a mistrial is reviewed under an abuse of discretion standard. Ibid.

The trial court did not abuse its discretion in denying the appellant's motion for a mistrial in the instant case. The question asked by the prosecutor suggested that the appellant was a “suspect,” not a convicted offender, and the appellant answered that he was not. The trial court could have reasonably concluded that the question was not so inflammatory as to be incurable by its instruction to disregard. Point of error four is overruled.

In his fifth point of error, the appellant claims that the trial court erred by admitting into evidence inflammatory and gruesome autopsy photographs of both victims. The appellant complains of State's Exhibit Numbers 196 through 199 and 214 through 217. The record on appeal contains black and white photocopies of the trial exhibits.

Exhibits 196 through 198 are photographs of victim David Logie. Exhibit 196 is a close-up view of Logie's face, and Exhibit 197 is a close-up view of Logie's lower face. As discussed previously, the medical examiner testified that there were extensive injuries of the head region. Referring to Exhibit 196, the medical examiner described the surface injuries and lacerations to Logie's face. The medical examiner further explained that Exhibit 197 shows the extensive injuries to the mouth area in particular, including lacerations to the inner gum of the lower lip and fractures of the mandible, lower jaw, and teeth. It also shows blunt trauma to the nose and eye areas and nose and check fractures.

Exhibit 198 depicts the fractures at the base of the skull. The medical examiner testified that it was necessary to remove the brain in order to fully view the extent of the injuries shown in Exhibit 198. The photograph shows the injuries from the inside-out so that the depressed skull fractures are viewed from inside the skull. Exhibit 199 is a full-body photograph of Logie before the autopsy began. The photograph was taken for the purpose of identifying the body and documenting that it was the same body recovered from the crime scene.

Exhibits 214 through 217 are photographs of victim David McCoy. Exhibit 214 is a full side-view of McCoy's unclothed body in the autopsy room. Exhibit 215 shows the injuries to the victim's skull and head. The skull is opened to better show the injuries to the inside of the cranium. The medical examiner testified that no other picture was offered showing this view of the injury. The medical examiner also testified that Exhibit 216 shows the scalp pulled back to reveal a portion of the skull that is missing. The medical examiner testified that this was the condition of the skull when the body was brought in and that there is no other photograph depicting this injury. Exhibit 217 is an overall view, head to toe, of McCoy's unclothed body in the autopsy room.

Admissibility of photographs is within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it falls outside the zone of reasonable disagreement. Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App.2002). The trial court applies a Rule 403 balancing test. Id. Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy. Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App.), cert. denied, 534 U.S. 855, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001). Even then, photographs might be admissible if the alteration was necessary to fully depict the extent of the injuries in certain cases when the photographs are highly probative and there is no danger that the jury would attribute the autopsy alteration to the defendant. Ripkowski v. State, 61 S.W.3d 378, 392-393 (Tex.Crim.App.2001); Salazar, 38 S.W.3d at 152.

None of the photographs were duplicative. In the instant case, both victims died of blunt force injuries to the head. The impact of their injuries was illustrated, in part, through the use of the photographic evidence. To the extent the medical examiner had made alterations to better illustrate the extent of the injuries, those alterations were explained during the testimony. The trial court did not abuse its discretion in concluding that the probative value of the photos was not substantially outweighed by the danger of unfair prejudice. Point of error five is overruled.

In his sixth point of error, the appellant claims that the State's punishment argument was so inflammatory and improper that it constituted fundamental error and denied the appellant a fair punishment hearing. In point of error seven, he argues that the effect of the argument was to deny fair consideration of the special issues. The appellant complains of the following argument: Now, one day you will meet your Maker, and I hope it's not a brutal way. I hope it's peacefully. But you will be in heaven one day. And at that time, you will see David McCoy and David Logie. And they will ask you, on Special Issue No. 3, did you make your verdict based on the law and the facts? Make sure that today when you make this decision that when you get to heaven you can tell them honestly, I made that decision based on the law and the facts, whatever your decision is. Are you surprised they're arguing for life? I'm not telling you what to come back and say. All I'm saying is when you get to heaven, make sure you can tell David Logie and David McCoy, I made my decision based on the law and the facts. Thank you.

The appellant did not object to the argument, and therefore, he failed to preserve error. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex.Crim.App.2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996). The appellant argues that an exception exists when the argument is so prejudicial that an instruction to disregard it would not cure the harm. Even then, a defendant must object to such argument and request a mistrial. Mathis, 67 S.W.2d at 926-27 (citing Cockrell, 933 S.W.2d 73). Points of error six and seven are overruled.

In point of error eight, the appellant argues that his trial counsel was ineffective for failing to object to the State's punishment argument discussed in points of error six and seven. To establish a claim of ineffective assistance of counsel, an appellant must prove by a preponderance of the evidence that his counsel's performance fell below objective standards of professional norms. Strickland, 466 U.S. at 687. There is a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Id. at 689. Even if counsel's performance was deficient, the appellant must show that the deficient performance prejudiced his defense. That is, he must demonstrate a reasonable probability that, but for that deficiency, the outcome would have been different. Id. at 687. A reasonable probability means a probability sufficient to undermine confidence in the outcome of the proceedings. Ibid.

A plea for law enforcement is a permissible area of jury argument. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). Urging the jury to be able to justify its verdict on the basis of the facts and the law is an appropriate plea for law enforcement. The jury is required by law to base its verdict on the law and the facts and should be able to justify its verdict to anyone on that basis. Cf. Whittington v. State, 580 S.W.2d 845, 847 (Tex.Crim.App.1979) (holding that prosecutor's comments in jury argument to be able to give their friends and neighbors an answer they could be proud of was a proper plea for law enforcement). The complained-of portion of the prosecutor's argument that the appellant argues does not constitute a proper plea for law enforcement is the reference to a hypothetical encounter between the jurors and the two victims “in heaven.” Assuming error in trial counsel's failure to object to this portion of the prosecutor's argument, the appellant's argument that, but for the trial counsel's failure to object, the jury would not have heard the prosecutor's emotional appeal as the final argument before beginning punishment deliberations does not meet the prejudice prong of the Strickland test. The appellant has not shown that, based on the record before us, a reasonable probability exists that, but for trial counsel's failure to object, the result of the punishment phase of trial would have been different. Point of error eight is overruled.

In his ninth point of error, appellant claims that the trial court erred by denying his request for discovery of the chain of custody documentation of the State's physical evidence, which deprived trial counsel of the information necessary to effectively represent the appellant and denied the appellant a fair trial. The appellant filed a pretrial “Motion For Production Of All Chain of Custody Documents,” in which he alleged that the State would attempt to introduce several items of physical evidence and sought discovery of the chain of custody documents. The appellant's motion was denied. Among the physical evidence introduced by the State at trial were the appellant's tennis shoes and blue jeans, containing blood spots on which DNA analysis had been conducted. The appellant argues that he was entitled to documentation of the chain of custody for this clothing pursuant to his previously-filed motion.

Defendants have no general right of discovery. Washington v. State, 856 S.W.2d 184, 187 (Tex.Crim.App.1993). But under Article 39.14, “[u]pon motion of the defendant showing good cause therefor,” the court may order the State to produce material evidence in its custody and control. Although the appellant now asserts grounds he says show “good cause” for receipt of the chain of custody documentation of his clothing, no such good cause was specifically pled in his motion.

The appellant alleged in his motion that the State would attempt to introduce several pieces of physical evidence, that the appellant was entitled to discover all documents regarding the chain of custody of all the physical evidence that the State intended to introduce, and that any failure by the State to produce the documents would prejudice him and deny his right to discovery. The motion contained general and conclusory allegations as to prejudice. It contained no allegations as to “good cause.” See Art. 39.14. The trial court did not abuse its discretion in denying the appellant's motion. Point of error nine is overruled.

In his tenth point of error, the appellant claims that the trial court erred in “switching definitions” of “reasonable doubt” during jury selection, creating a confusing situation among jurors, which called into question their deliberations and verdict and denied the appellant a fair trial. In his eleventh point of error, the appellant claims the trial court erred in charging the jury on a different definition of “reasonable doubt” than was used to instruct the jurors during jury selection, which denied the appellant a fair trial and punishment hearing.

General voir dire began on September 6, 2000, and individual questioning on September 11, 2000. This Court delivered Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App.2000), on October 4, 2000. Pursuant to Paulson, the trial court granted the State's request that the definition of “reasonable doubt” as defined under Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), no longer be used during voir dire or throughout trial. The appellant objected to the trial court's “switching definitions.” The appellant's objection was overruled, and the State's request granted.

In Paulson, 28 S.W.3d at 573, this Court overruled the portion of its opinion in Geesa which required a jury instruction on the definition of “reasonable doubt.” In dicta, we noted that “the better practice is to give no definition of reasonable doubt at all to the jury” but that “if both the State and the defense were to agree to give the Geesa instruction to the jury, it would not constitute reversible error for the trial court to acquiesce to their agreement.” Ibid. In other words, although there was nothing constitutionally wrong with the Geesa instruction, we held it was preferable for the jury to be given no definition. The appellant argues that in this case, where eleven of the jurors were instructed at voir dire under Geesa and one juror received no such instruction, having been questioned after Paulson, the jurors were necessarily confused and conflicted and applied different burdens of proof.

All jurors were appropriately instructed that the State must prove its case beyond a reasonable doubt. All jurors were provided a charge that did not define the phrase. By arguing that the jurors were necessarily confused and conflicted, the appellant assumes that if jurors have different understandings of a term or phrase, even if their understandings are constitutional and not inconsistent, they are necessarily confused and conflicted. While Geesa's definition is no longer required, the appellant has made no showing that it was unconstitutional. Furthermore, the appellant's allegations that the jurors were confused on the burden of proof are mere conjecture and are without merit. Points of error ten and eleven are overruled.

In his twelfth point of error, the appellant claims the trial court erred in allowing the widow of David Logie to testify about her history as an abused child to rebut the appellant's mitigation evidence. During the punishment phase, the appellant introduced considerable evidence of his abusive childhood and the potential effects of the abuse on his emotional and psychological development. In rebuttal, the State called Diane Logie, who testified that she had been physically abused from age six to thirteen by her stepfather. Her testimony about this was brief, just under two pages in the record. The State referred to the widow's testimony in its closing arguments, arguing that although Diane Logie had a bad childhood she, unlike the appellant, chose not to “go out and commit two brutal murders.”

The appellant argues that the testimony was irrelevant victim impact evidence. He argues that it was improper mitigation rebuttal because the testimony about the childhood abuse suffered by the victim's widow was not relevant to whether the jury should believe that circumstances beyond the appellant's control and in his childhood mitigate in favor of sparing his life. Even assuming that the testimony was irrelevant and improper rebuttal testimony, its admission was harmless. The murders committed in this case were brutal. The complained of testimony was unembellished and brief. Moreover, the point the State was attempting to make through the testimony was not particularly probative nor highly prejudicial, given that it is commonly known that many people experience bad or abusive childhoods and do not necessarily turn to a life of crime. For these reasons, any error in admission of the testimony was harmless. Tex.R.App. Proc. 44.2. Point of error twelve is overruled.

In his fourteenth point of error, the appellant claims that the trial court erred in refusing to instruct the jury during the punishment phase of trial to consider only the appellant's conduct and state of mind in answering the special issues. The jury was instructed on the law of parties in the charge for the guilt phase. During the punishment phase, the appellant requested that the court instruct the jury to disregard the parties instruction given in the guilt phase charge and to consider only the appellant's conduct and state of mind in determining the special issues. The trial court denied the appellant's request.

The punishment charge read, in part, “[I]n this punishment phase of trial you should not consider the instructions given you in the first phase, the guilt-innocence phase, of trial that relate to the law of parties and the responsibility of parties for the acts of others in determining what your answers to the Special Issues shall be.” The jury was then given the statutory anti-parties instruction. The jury was instructed that if the appellant himself actually caused Logie's death, or did not actually cause the deceased's death, but intended to kill the deceased or another, or anticipated that a human life would be taken, then the special issue must be answered in the affirmative. The appellant argues that the statutory anti-parties special issue was inadequate because the jury could legitimately answer it affirmatively upon concluding that the appellant merely anticipated that any human life might be lost, regardless of whether it found that the appellant had engaged in any personal conduct or possessed the intent to cause such result. As such, the appellant argues that the statutory issue failed to protect his constitutional right to avoid imposition of the death penalty for the wrongful conduct of others.

The law of parties may not be applied to the special issues. Martinez v. State, 899 S.W.2d 655, 657 (Tex.Crim.App.1994) (citing Green v. State, 682 S.W.2d 271, 287 (Tex.Crim.App.1984). While the law of parties can support a conviction for capital murder, the death penalty may be imposed only by examination of the mitigating and aggravating circumstances concerning the individual defendant. Green, 682 S.W.2d at 287 ( applying Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)). We have never held, however, that an anti-parties charge must contain particular language, so long as its purpose is met. Martinez, 899 S.W.2d at 657.

The appellant seems to argue that the anti-parties charge is responsible for ensuring a second or back-up finding of guilt by requiring a second finding of culpability and conduct on the part of the defendant. Rather, its purpose is to prevent jury confusion by instructing the jury that the parties law that applied during the guilt phase should not be applied to the special issues. Contrary to the appellant's argument, the possibility that the jury could conclude that the appellant only “anticipated that a human life would be taken” without an additional finding that the appellant engaged in conduct, does not render the charge constitutionally infirm. Admittedly, there is discussion in previous caselaw about conduct of the defendant. See Martinez, 899 S.W.2d at 657 (holding that instruction qualifies as anti-parties charge if it ensures a jury's punishment-phase deliberations based solely upon conduct of that defendant and not that of another party). But conduct is not required. A defendant's intentions and expectations can also be an appropriate basis of a jury's punishment-phase deliberations. Green, 682 S.W.2d at 287 ( citing Enmund, 458 U.S. 782, 800, 102 S.Ct. 3368, 73 L.Ed.2d 1140). An anti-parties charge should simply make clear that the special issues apply only to the defendant and the defendant's role in the instant offense, whether that role involved conduct or not. The statutory anti-parties charge was sufficient, and the trial court did not abuse its discretion by refusing the appellant's requested charge. See McFarland v. State, 928 S.W.2d 482, 516-17 (Tex.Crim.App.1996). Point of error fourteen is overruled.

In his fifteenth point of error, the appellant claims that the trial court erred in refusing to include in the punishment-phase jury charge the definitions of terms used in the special issues that the appellant claims effectively undermine the difference between a life sentence and the imposition of the death penalty. The appellant claims that the trial court should have defined several terms: society, continuing threat, commit, criminal acts of violence, constitute, anticipate that a human life would be taken, mitigating circumstance or circumstances, and personal moral culpability.

The appellant claims that the failure to define these terms renders the special issue unconstitutionally vague, and therefore, the special issue does not significantly narrow the class of people eligible for the death penalty. In support of his claim the appellant cites Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). In that case, the United State Supreme Court held that the Georgia Supreme Court's construction of the death penalty statute was unconstitutional because the words “outrageously or wantonly vile, horrible and inhuman” were too vague to restrain arbitrary and capricious infliction of the death sentence. Id at 428-429.

The appellant claims that the terms in the first special issue are unconstitutionally vague, but his bare assertion is unpersuasive. He fails to explain what it is about each term or phrase that renders them vague. As a result, we cannot say that the trial court erred in denying the appellant's request to define the terms. Point of error fifteen is overruled.

In his sixteenth point of error, the appellant claims that the Texas death penalty scheme violated his rights against cruel and unusual punishment and due process of law under the Eighth and Fourteenth Amendments of the United States Constitution by requiring at least ten “no” votes for the jury to return a negative answer to the punishment special issues. We have repeatedly considered and rejected identical arguments, and the appellant presents no new arguments to persuade us to revisit this issue. Johnson v. State, 68 S.W.3d 644, 656 (Tex.Crim.App.2002); Wright v. State, 28 S.W.3d 526, 537 (Tex.Crim.App.2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999). Point of error sixteen is overruled.

In his seventeenth point of error, the appellant claims that the Texas death penalty scheme denied him due process of law and imposed cruel and unusual punishment, in violation of the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution because of the impossibility of simultaneously restricting the jury's discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence mitigating against imposition of the death penalty. In his eighteenth point of error, the appellant asserts the same claim under the due course of law provision of Article I, Sections 13 and 19 of the Texas Constitution. The appellant relies on Justice Blackmun's dissent in Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994). We have previously rejected identical arguments, and the appellant presents no new arguments to persuade us to revisit these issues. McFarland, 928 S.W.2d at 520; Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). Points of error seventeen and eighteen are overruled.

In point of error nineteen, the appellant claims that the cumulative effect of the above-enumerated constitutional violations denied him due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution, even if no single infraction rose to that magnitude. In point of error twenty, the appellant makes the same claim under the due course of law provision of Article I, Sections 13 and 19 of the Texas Constitution. Because we have found no violation of the federal or state constitutions, the appellant's claims are without merit. See Chamberlain, 998 S.W.2d at 238. Points of error nineteen and twenty are overruled.

Varga v. Quarterman, 321 Fed.Appx. 390 (5th Cir. 2009). (Habeas)

PER CURIAM:

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

Kevin Scott Varga was convicted of capital murder and sentenced to death for killing David Logie in the course of committing robbery or for killing David Logie and David L. McCoy in the same criminal transaction. He was denied habeas relief in state habeas court and in federal district court and now seeks a Certificate of Appealability (“COA”) authorizing him to appeal the district court's denial of relief for four claims: (1) that he was denied his right to trial by an impartial jury and due process by the exclusion of a qualified venire member for cause on the basis of her conscientious scruples against the death penalty; (2) that his counsel was ineffective in not raising this exclusion on appeal; (3) that he was denied due process by the introduction of impermissible irrelevant victim impact or rebuttal evidence at the punishment phase; and (4) that he was denied his right to trial by an impartial jury because the jury was not required to find beyond a reasonable doubt that there were no mitigating circumstances sufficient to warrant a sentence of life imprisonment instead of death. Because we conclude that Varga has not made a substantial showing of a denial of a constitutional right, we deny the COA as to all four claims.

I. BACKGROUND

Petitioner Kevin Scott Varga was convicted of capital murder and sentenced to death for killing two men as part of an extortion scheme. Most of the evidence leading to his conviction came from the testimony of his seventeen-year-old co-defendant, Venus Anderson, who was granted limited immunity from prosecution in exchange for her testimony. According to Anderson, she and Varga, along with another man and woman, Billy Galloway and Deanee Ann Bayless, decided to drive together from South Dakota to Mexico. Varga suggested that they “roll” men along the way to make money: his plan was that Anderson would pick up a man at a bar and bring him back to a hotel, where Varga would be hiding. Varga would then come out of hiding and blackmail the men for money. Anderson agreed to this plan.

In Wichita, Kansas, Anderson, Bayless, and Galloway picked up David McCoy at a bar and brought him back to the hotel room. Varga, who had been hiding in the bathroom, entered the room with a metal pole. Anderson left the room but testified to hearing thuds and hearing Galloway yell “that's enough.” When Anderson returned McCoy was lying on the floor. The foursome wrapped McCoy's body in blankets and loaded it into their car, which they abandoned a few blocks away after it broke down. The body was found a few days later. At Varga's trial the medical examiner testified that McCoy suffered severe skull fractures; the cause of death was determined to be blunt force trauma to the head.

After abandoning the car the foursome continued south in McCoy's car. In Greenville, Texas, Anderson and Bayless picked up David Logie at a Holiday Inn. Anderson and Bayless left with Logie in his car, with Bayless at the wheel, and Galloway and Varga followed them. Bayless*392 drove to a deserted area of town, and Bayless and Logie got out of the car. Anderson testified that a few minutes later she heard Galloway's voice and saw him punching Logie. After several minutes Varga appeared from behind the car and handed Galloway an object, which Galloway used to strike Logie. A police officer testified at trial that a ball-peen hammer and pieces of a bloody tree limb were found near the body. The foursome took Logie's wallet and dragged his body into the woods, and set fire to McCoy's car. The medical examiner testified that Logie suffered extensive injuries to the head region, including multiple fractures and lacerations, that were consistent with having been struck with a hammer and/or a tree limb. The cause of death was determined to be blunt force injuries to the head.

The foursome continued south in Logie's car to San Antonio, Texas, where Anderson and Bayless went shopping using Logie's credit cards; Varga and Galloway went to a strip club. When Anderson and Bayless left the mall they were pulled over by the police, whereupon Anderson confessed to the murders and surrounding events. The police subsequently arrested Galloway and Varga.

Varga was convicted of capital murder in November 2000 under Tex. Penal Code Ann. § 19.03(a). During the punishment phase the prosecution presented evidence that Varga and two other inmates had attempted an escape while incarcerated at the Hunt County Sheriff's Department because, according to Varga, “I had to try. I have nothing to lose.” The prosecution also presented evidence that Varga's ex-wife had made several 911 calls in which she accused Varga of domestic abuse, and that an officer responding to one of the calls saw Varga strike someone twice in the head. Another police officer testified that, upon examining the house where Varga lived before leaving town and committing the murders, the officer found the words “death is coming” written in mustard on the bottom of the sink, as well as Varga's ex-wife's driver's license with the photo scratched out and a copy of a protective order on which someone had scrawled “fuck you.” Finally, the prosecution presented evidence that while previously incarcerated at a South Dakota prison Varga was classified as among the most aggressive prisoners and a prison official testified that he preyed on weaker inmates and was a constant threat.

Varga's conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals. Varga v. State, No. 73, 990, 2003 WL 21466926 (Tex.Crim.App.2003). Varga did not petition the Supreme Court for certiorari review. While his direct appeal was pending, Varga filed a state habeas petition, which was denied. Ex parte Varga, No. 59, 471-01 (Tex.Crim.App.2004). Varga then filed a habeas petition in federal district court, which was denied. The district court also denied a COA. Varga now appeals the denial of the COA.

II. STANDARD OF REVIEW

Federal habeas petitioners are not entitled to an appeal from a federal district court's denial of habeas relief as of right. See 28 U.S.C. § 2253(c)(1). To quality for a COA, a petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A COA is appropriate when “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.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). The question in considering whether to grant a COA is the “debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Where a district court has denied claims on procedural grounds, a COA is warranted only when “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and ... jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added).

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), petitioners appealing a state court capital punishment sentence in federal court must show that the state court's adjudication was either “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or “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). An adjudication is contrary to established federal law when it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). State court factual findings are entitled to a presumption of correctness under the statute. 28 U.S.C. § 2254(e)(1).

III. ANALYSIS
Claim One:

Varga's first claim is that he was denied an impartial jury and due process in violation of the Sixth and Fourteenth Amendments because a qualified venire member named Harvetta Machell Robertson was excluded from jury service on account of what every court to consider the question has deemed the basis of her vacillating answers and bias against the death penalty, but what Varga argues were actually permissible conscientious scruples. During extended questioning by both the prosecution and the defense, Robertson indicated that she had strong religious objections to the death penalty-in explaining her views she said “the end result is the same whether it's someone taking a gun or a knife or if it's someone who has been injected with-you know, because of a crime that they've been committed [sic], the end result is a life that's been taken,” and when asked “You have a moral belief that man should never take another man's life; that's reserved for God, right?” she said “Yes.” She indicated at several points that she would “have a very difficult time” voting for the death penalty.

Robertson testified multiple times that she believed she could follow the law as she was charged, and she testified that she would not make up mitigating circumstances or automatically return a life sentence even if the government proved its case. But she also testified that she believed her opposition to the death penalty “maybe would influence even to this point the way that I hear some things that are presented even before you get to the sentencing stage,” and that she did not know “how to set aside [her] personal beliefs.” At one point, during a discussion about whether she thought a death sentence “should” happen, she was asked “In this circumstance ... do you think that you could ever, ever give the death penalty?” and she answered “No.” The record does not clearly reflect what “circumstances” Robertson and counsel understood themselves to be discussing. At the end of counsels' questioning, the district court judge asked Robertson: “Can you set aside your strong feelings against the death penalty and answer the questions according to the evidence?” Robertson replied: “I can't say that I would be able to ... put ... my feelings about it aside.”

Varga raised this claim for the first time in his state habeas appeal. The state district court found that Robertson was “unclear about her ability to follow the law and not her personal religious beliefs,” and that her “bias against the death penalty would substantially impair her ability to carry out the oath and instructions in accordance with the law, and ... that there was sufficient bias to strike [her] for cause.” The Texas Court of Criminal Appeals adopted the findings and conclusions of the district court judge and denied habeas relief. The federal district court found that the state court's conclusions were not unreasonable applications of the law because Robertson, while stating that she could follow the law, also stated she could not give the death penalty and did not know how to put aside her beliefs. According to the district court, “the record before this Court supports the state habeas court's conclusion that Ms. Robertson's views against capital punishment would either prevent or substantially impair her ability to perform her duties as a juror with respect to the instructions and her oath.” Thus, the district court held, Varga's constitutional rights were not violated by her exclusion for cause. We agree.

The Sixth Amendment right to a fair trial guarantees an impartial jury. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 551, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Supreme Court held that the Sixth Amendment is violated where veniremen are excluded “simply because they voice[ ] general objections to the death penalty or express[ ] conscientious or religious scruples against its infliction” if such veniremen can still follow the law, id. at 522, 88 S.Ct. 1770. A prospective juror thus cannot be challenged for cause because of his opposition to capital punishment unless said opposition “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Excusal of a juror for cause in violation of Witherspoon is reversible error and not subject to harmless error review. Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987).

The Supreme Court has specifically indicated that an expressed willingness to follow the law does not necessarily overcome other indications of bias. Morgan v. Illinois, 504 U.S. 719, 735, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Morgan considered the question of whether a death-eligible defendant has a constitutional right to question prospective jury members as to whether they would always vote to return a punishment of death if authorized to do so. In explaining that general questions as to bias were insufficient to ferret out this type of bias (the opposite of the type in this case), the Court noted that “a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining ... dogmatic beliefs about the death penalty would prevent him or her from doing so.” Id. As an example, the Court quoted an exchange between the trial judge and a prospective juror in Witt: “THE COURT: Will you follow the law that I give you? “[A]: I could do that. “THE COURT: What I am concerned about is that you indicated that you have a state of mind that might make you be unable to follow the law of this State. “[A]: I could not bring back a death penalty. Morgan, 504 U.S. at 735 n. 9, 112 S.Ct. 2222 (alterations in original). This exchange, according to the Supreme Court, is one that illustrates the fact that a prospective juror may believe she can follow the law and yet will actually be so biased in one direction or another that her inclusion would infect a trial with fundamental unfairness. Id. at 735, 112 S.Ct. 2222. The corollary, of course, is that such a venire member would be properly excluded for cause because her beliefs would prevent or substantially impair the performance of her duties as a juror. See, e.g., Beuke v. Houk, 537 F.3d 618, 638 (6th Cir.2008) (holding on habeas review that state court exclusion of vacillating jurors for cause based on bias against capital punishment was a reasonable application of Morgan and Witt ).

The exclusion of a juror for bias under the Witherspoon- Witt standard is a question of fact subject to deferential review under AEDPA. Ortiz v. Quarterman, 504 F.3d 492, 501 (5th Cir.2007); see also Beuke, 537 F.3d at 638-39. The state court's resolution of this claim is thus presumed correct, and a habeas petitioner must rebut this presumption by clear and convincing evidence. Ortiz, 504 F.3d at 501.

Varga has not met this standard. Robertson's responses in voir dire are not as clearly inconsistent and contradictory as the exchange from Witt excerpted above. Robertson testified that she believed she could follow the law, that she would listen to the evidence, and that she would not automatically return a life sentence instead of a death sentence. But she also testified repeatedly that she would find serving on a capital jury extremely difficult, that she did not know how to set aside her beliefs, that she believed her beliefs would affect her perception of the government's case, and at one point, when asked point blank, said she could not return a verdict of death in “these circumstances.” Although the transcript does not clearly reflect what “these circumstances” meant in context, this minor ambiguity is not enough to make a dispositive difference. In essence Robertson gave, in longer form, the same answers given by the juror in Witt. Deference is paid to a trial judge's determination of bias precisely because the trial judge is there to see and hear the juror and is in the best position to make credibility determinations. Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Given Robertson's contradictory testimony, reasonable jurists could not disagree that Varga has failed to rebut the presumption of correctness accorded this ruling by clear and convincing evidence.

The second claim raised by Varga as the basis for a COA is an ineffective assistance of counsel claim against the counsel who represented him in the state court proceedings, based on the failure to appeal the exclusion of Robertson from the jury. The state habeas court found that Varga had not proven ineffective assistance of counsel because the trial court had not erred in excusing Robertson for cause based on her vacillation and her acknowledgment that her views on the death penalty would affect her performance as a juror. The Texas Court of Criminal Appeals adopted these conclusions and denied relief on this claim. The district court held that counsel was not ineffective for failing to raise this issue on appeal because, in a recent Texas Court of Criminal Appeals decision, that court held that a prospective juror who gave conflicting answers as to her opposition to the death penalty and ability to follow the law could be struck for cause. Russeau v. State, 171 S.W.3d 871, 879-80 (Tex.Crim.App.2005). The district court reasoned that given Russeau, Varga had not established that any claim his counsel had raised on direct appeal would have been decided differently or made any difference to the outcome of his appeal. We agree. The Supreme Court has articulated a now-familiar test for claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Sixth Amendment does not require appellate counsel to raise every non-frivolous claim available on appeal, since counsel's effort to serve his client to the best of his professional ability will often depend on strategic choices about which claims to pursue on appeal. Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). However, the Supreme Court has indicated that, while difficult, it is possible to make out a claim for ineffective assistance of counsel based on defense counsel's failure to raise certain issues on appeal. Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (“Notwithstanding Barnes, it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent.”). In Smith, the Supreme Court identified, as an example supporting this statement, the Seventh Circuit case of Gray v. Greer, 800 F.2d 644 (7th Cir.1986), in which that court stated that “[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Smith, 528 U.S. at 288, 120 S.Ct. 746 (quoting Gray, 800 F.2d at 646). In Gray, the Seventh Circuit further held that if appellate counsel “failed to raise a significant and obvious issue, the failure could be viewed as deficient performance” and that if the issue that was not raised “may have resulted in a reversal of the conviction, or an order for a new trial, the failure was prejudicial.” 800 F.2d at 646.

We have found that reasonable jurists could not disagree that the state court's exclusion of Robertson was a reasonable application of the law. Thus the state court was reasonable in finding that it was not ineffective assistance of counsel not to bring a likely meritless claim on appeal. Further, as the district court reasoned, Varga has not made any showing that the Texas Court of Criminal Appeals would have decided his case any differently than it decided a similar situation in Russeau, and thus has not made any showing that the outcome of his appeal would have been any different had counsel raised Robertson's exclusion on direct appeal. Reasonable jurists could not disagree that the state court's determination that counsel was not ineffective was a reasonable application of federal law.

Claim Three:

Varga contends that his due process rights were violated because, during rebuttal at the punishment phase, the state trial court allowed the prosecution, over the defense's objection, to elicit evidence from Logie's widow about abuse she suffered as a child at the hands of her step-father. Diane Logie, the widow of one of the men Varga was convicted of murdering, was permitted to describe for the jury physical and verbal abuse she endured at her step-father's hands between the ages of six and thirteen. Although Varga had testified as to his own childhood circumstances the defense did not argue that his childhood explained or excused his crime-the evidence was standard mitigation evidence offered to give the jury an understanding of Varga's character and history in order to enable them to make the individualized determination that the Constitution requires. See, e.g., Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). The prosecution, however, argued that implicit in Varga's testimony was an argument that people who suffer in childhood later commit crimes, and that Mrs. Logie's testimony was rebuttal to that argument since she suffered abuse in childhood but did not commit any crimes. The evidence was admitted on this basis. Varga argues on appeal that the evidence was irrelevant and that it was injurious because it intensified the jury's sympathy for Mrs. Logie and invited the jury to judge Varga based on Mrs. Logie's moral character.

The admission of unduly prejudicial evidence is a violation of the Due Process Clause of the Fourteenth Amendment if it renders the trial fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); see also Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). This circuit has held that “the erroneous admission of prejudicial evidence will justify habeas relief only if the admission was a crucial, highly significant factor in the defendant's conviction.” Wood v. Quarterman, 503 F.3d 408, 414 (2007). The Texas Court of Criminal Appeals, on direct and habeas review, and the district court below, in considering whether this testimony compromised the fairness of Varga's trial, assumed that it was irrelevant and improper rebuttal testimony but concluded that since it was advancing a well-known proposition (that people with bad childhoods do not always commit crimes), and was short and not inflammatory, it could not have seriously damaged his chances of obtaining life imprisonment instead of a death sentence. Any alleged error in its admission was thus deemed harmless.

Reasonable jurists could not disagree that the state court's determination that this error was harmless was a reasonable application of federal law. Mrs. Logie's evidence occupied only two pages of the trial transcript. The murders themselves were gruesome and the jury heard substantial evidence to this effect during the guilt phase of the trial. In addition, at the punishment phase, the State presented evidence that petitioner had attempted to escape from jail while awaiting trial; that police had been called to his house numerous times on domestic violence complaints, and that police had seen him strike someone during one of these calls; that police had found his ex-wife's driver's license with the face scratched out and a copy of a restraining order with “fuck you” written on it at his house; and that while previously incarcerated the defendant had preyed on other inmates and been a constant security risk. In the context of all this evidence the admission of Mrs. Logie's short testimony, while it may have been erroneous, cannot be said to have had such a substantial and injurious effect on the trial that it rendered it constitutionally unfair. See, e.g., O'Brien v. Dretke, 156 Fed.Appx. 724, 737-38 (5th Cir.2005) (unpublished) (denying COA on ground that any error in admission of testimony about defendant's gang affiliation at penalty phase was harmless where substantial evidence was presented about defendant's brutal rape and murder of a teenage girl and his past criminal history and violent behavior). The COA is denied as to this claim.

Claim Four:

Varga's final claim is that his sentence violates the Sixth Amendment, as applied in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because his death sentence did not require a jury to find beyond a reasonable doubt that there was an absence of mitigating circumstances warranting life imprisonment instead of death. The state habeas court held that the claim was procedurally barred because it had not been raised at trial, and alternatively that it was foreclosed by Fifth Circuit precedent. The district court held that the claim was procedurally barred in federal court because the state habeas court had denied relief on the basis of an independent and adequate state law ground, and that alternatively it was barred by Fifth Circuit precedent.

It is well established that a habeas petitioner's federal claim is defaulted when the last state court to consider it denied relief based on an adequate and independent state law ground. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). We have held that the Texas contemporaneous objection rule constitutes an adequate and independent state ground. Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir.1999).

Varga argues that the claim is not barred because his objection was not available at trial because, although Apprendi had already been handed down at the time, Ring had not. Even assuming arguendo that the claim is not procedurally barred, the substance of the claim is foreclosed by circuit precedent. This circuit has specifically held that the Texas death penalty scheme does not violate the Sixth Amendment even though it does not require the prosecution to prove the absence of mitigating factors beyond a reasonable doubt. Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir.2006). Where a district court has denied claims on procedural grounds, a COA is warranted only when “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and ... jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added).

Varga acknowledges that Granados and the cases following it foreclose his claim, but argues they were incorrectly decided and thus that reasonable jurists could disagree with the district court's denial of relief on this basis. However a panel of this circuit is not at liberty to overrule a prior decision of another panel of this circuit in the absence of en banc consideration or intervening Supreme Court precedent. United States v. Lipscomb, 299 F.3d 303, 313 (5th Cir.2002). Thus reasonable jurists could not disagree that the petition does not state a claim for relief on this ground, and the COA is denied as to Claim Four.

IV. CONCLUSION