Thursday, October 16, 2009
Media Advisory: Bobby Woods scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Bobby Wayne Woods, who is scheduled to be executed after 6 p.m. on October 23, 2008. In May of 1998, Woods was tried, convicted, and sentenced to death for the kidnapping and murder of eleven-year-old Sarah Patterson in Granbury. Due to pre-trial publicity the case was tried in Llano County.

FACTS OF THE CRIME

On April 30, 1997, Woods entered the home of his former girlfriend through an open bedroom window and abducted her children, 11-year-old Sarah and nine-year-old Cody, driving them to grave yard, where he beat and stomped Cody into unconsciousness. Woods then drove Sarah to secluded area where he raped her and cut her throat, resulting in her death. Woods confessed to the kidnapping and murder and led police to Sarah’s body.

PROCEDURAL HISTORY

Jun. 4, 1997–A Hood County grand jury indicted Woods for capital murder in the kidnapping and slaying of Sarah Patterson.
May 28, 1998 – The trial court sentenced Wood to death, after a jury found him guilty of capital murder.
Sep. 15, 1999 – Woods filed a state writ application in the trial court.
Jun. 14, 2000 – Woods’ conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals.
Sep. 13, 2000 – The Court of Criminal Appeals denied Woods’ application for state habeas relief.
Feb. 20, 2001 – The U.S. Supreme Court denied both Woods’ certiorari petitions - direct appeal and state habeas.
Dec. 11, 2000 – Woods filed a petition for writ of habeas corpus in a federal district court.
Feb. 8, 2002 – The federal district court denied Woods’ habeas petition.
Feb. 24, 2003 – The Fifth U.S. Circuit Court of Appeals partially denied Woods’ request for a certificate of appealability and otherwise affirmed the district court’s judgment. Woods did not seek certiorari review of this decision.
Apr. 8, 2003 – Woods filed a subsequent state habeas corpus application in the Texas Court of Criminal Appeals.
May 21, 2003 – The Court of Criminal Appeals remanded Woods’ case to the trial court for a determination of his Atkins claim.
Apr. 27, 2005 – The Court of Criminal Appeals adopted the trial court’s findings and denied relief to Woods.
Sep. 27, 2005 –Woods lodged a successive federal habeas petition in federal district court containing his Atkins claims.
Oct. 13, 2005 – Woods filed a motion for authorization to file successive habeas in the Fifth U.S. Circuit Court of Appeals.
Dec. 1, 2005 – The Fifth Circuit Court permitted Woods to file a successive petition containing his Atkins claims.
May 16, 2006 – The district court denied relief on Woods’ successive petition.
Jul. 23, 2007 – The Fifth Circuit Court denied Woods’ request for a COA on his successive habeas petition.
Jan. 17, 2008 – Woods was set for execution but the date was withdrawn due to the temporary moratorium.
Oct. 15, 2007 – Woods filed a motion to stay the execution and a writ of prohibition in the Texas Court of Criminal Appeals.
Sep. 10, 2008 – Woods state court litigation was dismissed by the Court of Criminal Appeals.
Oct. 23, 2008 – Woods is scheduled for execution.

Huntsville Item Online

"Texas executes killer of 11-year-old girl." (Associated Press December 04, 2009 10:24 am)

— A 44-year-old Texas man was executed Thursday evening for raping and murdering an 11-year-old girl, despite pleas from his attorneys he was too mentally impaired to qualify for capital punishment.

Bobby Wayne Woods received lethal injection about a half-hour after the U.S. Supreme Court refused to halt his punishment, which was delayed briefly until the high court ruled in his case. His lawyers had argued Woods was mentally impaired, making him ineligible for execution, and that previous appeals to spare Woods’ life were unsuccessful because of shoddy work by his lawyer at the time.

Tests administered to Woods put his IQ anywhere from the 60s to the 80s. An IQ of 70 is considered the threshold for mental impairment.

Woods was convicted of capital murder and sentenced to die for the April 1997 slaying of Sarah Patterson, his ex-girlfriend’s daughter. She and her 9-year-old brother were snatched from their home in Granbury, near Fort Worth. Sarah’s throat was slit with a knife. Her brother was beaten and left for dead but survived to testify against Woods. Asked by a warden if he had a final statement, Woods lifted his head from the pillow on the death chamber gurney and replied: “Bye. I’m ready.” Eight minutes later, at 6:40 p.m. CST, he was pronounced dead.

“I’m not a person that likes harm done to anybody, but I believe in justice being done,” Larry Patterson said after watching his daughter’s killer die. “She had no choice. She didn’t get a second chance.”

The execution was the 24th and last scheduled for this year in Texas, where 18 inmates received lethal injection in 2008 in the nation’s busiest capital punishment state. At least five already are scheduled for 2010, including two in January.

In the appeal to the Supreme Court, Woods’ lawyer, University of Texas law professor Maurie Levin, argued the performance of Woods’ state-appointed attorney during earlier appeals was “so egregious” the prisoner’s mental impairment claims could not be accurately assessed. She pointed out the attorney has since been removed from a list of lawyers eligible to represent condemned inmates but by the time she got the case, “the damage had been done.”

State attorneys told the high court no constitutional right exists for an inmate to have an effective appeals attorney and Woods’ claim of due-process violations “does not change that fact.” They also argued Woods’ mental impairment claims already have been rejected by the courts and the last-ditch appeals improperly duplicated those rejections. Woods blamed Patterson’s death on a cousin who subsequently committed suicide. He said injuries to her brother were the result of an accident.

“We went walking around graveyards, horsing around by a fence,” Woods told The Associated Press last year from death row. “Cody jumped on my back and hit a fence post. “I guess I panicked.”

At his trial, Cody Patterson testified Woods attacked him, and prosecutors presented a mountain of evidence implicating Woods in Sarah’s killing, including signed confessions.

“I put this behind me a lot of years ago,” said Cody Patterson, now 21, who stood outside the prison and chose not to see Woods die. “It has been a long time coming. I’m glad to know it’s done. I knew it was going to be done sooner or later. “I seen his picture... That’s all I wanted to see,” he said, adding that he recovered from his injuries and that nightmares about the attack have stopped, but that he still had “the scars on the back of my head.”

Richard Hattox, the former Hood County district attorney who prosecuted Woods, said authorities also had DNA evidence of the girl’s blood on Woods’ knife, her blood on his shoe and his DNA on her panties, which were found in Woods’ car. “How could there be little doubt?” Hattox said Wednesday. “Every bit of his appeal effort has been expended toward his claim of retardation. And there’s no proof he is retarded.”

Dallas Morning News

"Granbury girl's killer executed, despite claims of mental impairment. (AP 12:00 AM CST on Friday, December 4, 2009)

HUNTSVILLE – A 44-year-old Texas man was executed Thursday evening for raping and murdering an 11-year-old girl, despite pleas from his attorneys he was too mentally impaired to qualify for capital punishment.

Bobby Wayne Woods received lethal injection about a half-hour after the U.S. Supreme Court refused to halt his punishment, which was delayed briefly until the high court ruled in his case. His lawyers had argued Woods was mentally impaired, and that previous appeals to spare Woods' life were unsuccessful because of shoddy work by his lawyer at the time.

Tests administered to Woods put his IQ anywhere from the 60s to the 80s. An IQ of 70 is considered the threshold for mental impairment.

Woods was convicted of capital murder and sentenced to die for the April 1997 slaying of Sarah Patterson, his ex-girlfriend's daughter. She and her 9-year-old brother were snatched from their home in Granbury, near Fort Worth. Sarah's throat was slit with a knife. Her brother was beaten and left for dead but survived to testify against Woods.

Asked by a warden if he had a final statement, Woods lifted his head from the pillow on the death chamber gurney and replied: "Bye. I'm ready." Eight minutes later, at 6:40 p.m., he was pronounced dead.

In the appeal to the Supreme Court, Woods' lawyer, University of Texas law professor Maurie Levin, argued the performance of Woods' state-appointed attorney during earlier appeals was "so egregious" the prisoner's mental impairment claims could not be accurately assessed.

State attorneys told the high court no constitutional right exists for an inmate to have an effective appeals attorney, and Woods' claim of due-process violations "does not change that fact." They also argued Woods' mental impairment claims already have been rejected by the courts and the last-ditch appeals improperly duplicated those rejections.

Woods blamed Patterson's death on a cousin who subsequently committed suicide. He said injuries to her brother were the result of an accident. At his trial, Cody Patterson testified Woods attacked him, and prosecutors presented a mountain of evidence implicating Woods in Sarah's killing, including signed confessions. "I put this behind me a lot of years ago," said Cody Patterson, now 21, who stood outside the prison and chose not to see Woods die. "It has been a long time coming. I'm glad to know it's done. "I seen his picture... That's all I wanted to see," he said, adding that he recovered from his injuries and that nightmares about the attack have stopped, but that he still had "the scars on the back of my head."

Richard Hattox, the former Hood County district attorney who prosecuted Woods, said authorities had DNA evidence of the girl's blood on Woods' knife, her blood on his shoe and his DNA on her panties, which were found in Woods' car.

Houston Chronicle

"Inmate executed for raping, killing 11-year-old," by Michael Graczyk. (Associated Press Dec. 4, 2009, 6:54AM)

HUNTSVILLE — A 44-year-old Texas man was executed on Thursday evening for raping and murdering an 11-year-old girl, despite pleas from his attorneys he was too mentally impaired to qualify for capital punishment.

Bobby Wayne Woods received lethal injection about a half-hour after the U.S. Supreme Court refused to halt his punishment, which was delayed briefly until the high court ruled in his case. His lawyers had argued Woods was mentally impaired, making him ineligible for execution, and that previous appeals to spare Woods' life were unsuccessful because of shoddy work by his lawyer at the time.

Tests administered to Woods put his IQ anywhere from the 60s to the 80s. An IQ of 70 is considered the threshold for mental impairment.

Woods was convicted of capital murder and sentenced to die for the April 1997 slaying of Sarah Patterson, his ex-girlfriend's daughter. She and her 9-year-old brother were snatched from their home in Granbury, near Fort Worth. Sarah's throat was slit with a knife. Her brother was beaten and left for dead but survived to testify against Woods.

Asked by a warden if he had a final statement, Woods lifted his head from the pillow on the death chamber gurney and replied: “Bye. I'm ready.” Eight minutes later, at 6:40 p.m. CST, he was pronounced dead. “I'm not a person that likes harm done to anybody, but I believe in justice being done,” Larry Patterson said after watching his daughter's killer die. “She had no choice. She didn't get a second chance.”

The execution was the 24th and last scheduled for this year in Texas, where 18 inmates received lethal injection in 2008 in the nation's busiest capital punishment state. At least five already are scheduled for 2010, including two in January.

In the appeal to the Supreme Court, Woods' lawyer, University of Texas law professor Maurie Levin, argued the performance of Woods' state-appointed attorney during earlier appeals was “so egregious” the prisoner's mental impairment claims could not be accurately assessed. She pointed out the attorney has since been removed from a list of lawyers eligible to represent condemned inmates but by the time she got the case, “the damage had been done.”

State attorneys told the high court no constitutional right exists for an inmate to have an effective appeals attorney and Woods' claim of due-process violations “does not change that fact.” They also argued Woods' mental impairment claims already have been rejected by the courts and the last-ditch appeals improperly duplicated those rejections.

Woods blamed Patterson's death on a cousin who subsequently committed suicide. He said injuries to her brother were the result of an accident. “We went walking around graveyards, horsing around by a fence,” Woods told The Associated Press last year from death row. “Cody jumped on my back and hit a fence post. “I guess I panicked.”

At his trial, Cody Patterson testified Woods attacked him, and prosecutors presented a mountain of evidence implicating Woods in Sarah's killing, including signed confessions.

“I put this behind me a lot of years ago,” said Cody Patterson, now 21, who stood outside the prison and chose not to see Woods die. “It has been a long time coming. I'm glad to know it's done. I knew it was going to be done sooner or later. “I seen his picture... That's all I wanted to see,” he said, adding that he recovered from his injuries and that nightmares about the attack have stopped, but that he still had “the scars on the back of my head.”

Richard Hattox, the former Hood County district attorney who prosecuted Woods, said authorities also had DNA evidence of the girl's blood on Woods' knife, her blood on his shoe and his DNA on her panties, which were found in Woods' car. “How could there be little doubt?” Hattox said Wednesday. “Every bit of his appeal effort has been expended toward his claim of retardation. And there's no proof he is retarded.”

TexNews.Com

"Bobby Wayne Woods sentenced to death." (AP Friday, May 29, 1998)

LLANO, Texas (AP) -- Bobby Wayne Woods was sentenced to death Thursday for the abduction and murder of 11-year-old Sarah Patterson last year. Woods, 32, also received a 40-year sentence for attempted capital murder in the injuring of the girl's 9-year-old brother. Defense attorneys had asked for a sentence of life in prison.

The Granbury man was convicted last week of abducting Sarah and her brother, Cody, slashing Sarah's throat and knocking Cody unconscious. Cody told police to "kill Bobby Woods for me" after he was found wandering in a cemetery. About a dozen witnesses, including Sarah's best friend, testified this week in the punishment phase of Woods' trial.

Sarah's diary was among the evidence prosecutors offered. "Dear Diary. Guess what? Bobby moved out and we are so, so, so, so happy," says an entry dated two months before Sarah was killed. In another entry, the girl wrote, "I don't like Cody, and I hate Bobby."

A psychologist hired by the defense testified Woods is mentally retarded and no longer a threat to society. But he acknowledged he hadn't examined Woods. A psychiatrist put on the stand by prosecutors said Woods is not retarded and could commit future violent acts.

During the trial, Woods admitted taking the children from their mother's home last April 30 and knocking Cody unconscious. But Woods claimed Sarah was killed by his cousin, who committed suicide shortly after the crime. Woods had been kicked out of the Patterson home days before the attack by the children's mother, Schwana Patterson, who faces trial on charges alleging injury to a child. Prosecutors say she heard her children screaming but didn't help. She has denied the charges.

Cody testified he was awaken by his sister's screams as Woods beat the girl in the bed the children shared. He said Woods told them to follow him, and all three went to a graveyard. The boy testified that Woods told him to get out of the car and told Sarah to get in the front seat and lie down. Cody said Woods choked him and knocked him unconscious. The boy later had surgery to remove skull fragments from his brain.

Woods claimed his cousin, Jody Milton, agreed to "take care of" Sarah, whose body was found with her throat slashed. Milton hanged himself shortly after the girl's death.

The trial was moved to Llano, 65 miles northwest of Austin, because of extensive news coverage in the Dallas-Fort Worth area.

ProDeathPenalty.Com

In the early morning hours of April 30, 1997, Bobby Wayne Woods went to the home of his ex-girlfriend Schwana Patterson in Granbury, Texas. Though they had previously lived together, the two had split up. Woods later admitted to having used drugs before going to the house, including "crank" and PCP.

Schwana was not at home when Woods arrived, but he found an open window into the bedroom where Schwana's two children, Sarah, 11, and Cody, nine, were sleeping. He grabbed Sarah by the foot; Cody awoke to Sarah's screams as Woods beat her chest. Woods forced the two children to leave through the window in their nightclothes and took the children in his car to a cemetery. Enroute, Cody, in the back seat, noticed a black-handled knife in the back of the car.

At the cemetery, Woods took Cody out of the car and asked him if his mother was seeing anyone else. He hit Cody, bashed him against a tree and commenced strangling him in front of the car. Cody later testified that he thought he was going to die. He awoke some time later, crawled over a fence, and attracted the attention of a horseback rider who called the police.

The police later found Woods and told him that they had the "whole story" from Cody. They asked him to tell them where to find Sarah, hoping that she was still alive. Woods told them, "You will not find her alive. I cut her throat." He then led the police to Sarah's body and gave them two written statements. In the statements, he admitted to having had sexual contact with Sarah before leaving the house, that he had taken drugs, and that after Cody fell unconscious in the cemetery, Sarah had started screaming. He left with her in the car toward a bridge on Highway 144. She continued to yell that she would tell the police that he had hit Cody. He attempted to quiet her by holding a knife to her throat. According to his statement, Sarah jerked and the knife cut her throat. Her body was clothed in an inside-out shirt, a sports bra, and a pair of shorts, without panties. Her throat had been deeply cut, severing her larynx and several major arteries and veins, causing massive external bleeding that was the cause of her death.

Later investigation found Woods's semen on Sarah's bedcover, indicating that he had had sexual contact with her. This was borne out in other evidence, including statements by Woods himself, Sarah's friends, notes she had left in her diary indicating that she hated Woods and wanted him gone, and that she had contracted the sexually-transmitted disease Human Papilloma Virus ("HPV") and Woods was also infected with HPV. When Sarah's body was later found, forensic evidence including larvae development in her traumatized genitals also indicated that she had been sexually molested shortly before her death. In addition to finding Woods's semen on Sarah's blanket, investigators found a large butcher knife, stained with Sarah's blood, inside a trash bag that Woods had borrowed from a neighbor the morning after he abducted Sarah and Cody. The bag also contained a pawn ticket bearing Woods's signature and address for items he admitted stealing from the Patterson home. Sarah's blood was on Woods's jersey, which was in the back of his car; her panties were on the car's floorboard. There was evidence that Woods had scratches on his face and arms on the day after the murder that were not there the day before.

Woods was arrested and charged with capital murder and was indicted on June 4, 1997, in Hood County, Texas. The indictment charged him with the murder of Sarah Patterson in the course of committing or attempting to commit the kidnapping of Sarah and Cody Patterson, or in the alternative, the murder of Sarah in the course of committing or attempting to commit the aggravated sexual assault of Sarah. He was also indicted for the attempted capital murder of Cody, arising out of the same criminal transaction. On Woods's motion, venue was changed to Llano County, where he pleaded not guilty.

At trial, Woods testified on his own behalf and admitted to the general contours of that morning's events, including the abductions, but not to the murder. Woods claimed the children were "accidentally" injured. He said he had taken them to a graveyard where they were "playing" and Cody had jumped on his back and was accidentally hurt when Woods stumbled against a fence post. He then blamed a cousin who had died before the trial for Sarah's murder, however the DNA evidence clearly pointed to Woods. Woods was found guilty by the jury on May 21, 1998.

During the punishment phase of the trial, the jury was presented with evidence of Woods's future dangerousness, including toxicology evidence rebutting Woods's claims that he was under the influence of drugs at the time of the murder and witnesses who testified regarding Woods's affinity for knives and his propensity to taunt people with them. There was psychiatric testimony that Woods had an antisocial personality disorder. When combined with his violent tendencies, he posed a continuing threat to commit future acts of criminal violence.

Following the punishment hearing, the jury returned affirmative answers on May 28 on the issues relating to Woods's future dangerousness and intent to commit murder, and a negative answer on the existence of mitigating circumstances to justify a life sentence. The Llano County trial court sentenced Woods to death.

In October 2008, the Texas Court of Criminal Appeals halted Woods's scheduled execution to investigate new claims by his attorneys that he was mentally retarded. About the claims, Richard Hattox, the prosecutor from Woods's capital murder trial said, "There was no history of mental retardation. There were no special education classes ever afforded him. He graduated on time, wasn't held back in any grades. He was functional. He had a driver's license." Prior to being arrested for this murder, Woods had worked as a short order cook. The prison psychologist testified that Woods IQ was 83 and that there was no history of mental health treatment. Testimony also showed that Woods had checked out over 100 books from the prison library.

Death Row USA

Bobby W. Woods - TEXAS PLANS HIS DEATH ON OCTOBER 23, 2008 - STAYED
Texas' next planned death for Bobby Woods - December 3, 2009

Bobby W. Woods last statement consisted of three words: "Bye. I'm ready."

The Supreme Court in 2002 banned capital punishment for the mentally retarded but created a legal grey area by leaving it to states to define mental retardation. Texas authorities sided with prosecutors who stressed that Woods qualified for capital punishment. RIP

Only on KXAN: Condemned Murderer Removed From Scheduled Execution List (Dec 24, 2007)

Bobby Wayne Woods was removed from the death row's scheduled execution list this month by the 355th District Court in East Texas. Woods was sentenced to death in 1998 for the abduction and murder of 11-year-old Sarah Patterson in 1997. KXAN Austin News has been trying to reach the court since December 11 for an explanation, but our phone calls have not been returned.

Defense attorneys had asked for a sentence of life in prison.

The Granbury man was scheduled to be executed in January, 2008 for abducting Sarah and her brother, Cody, slashing Sarah's throat and knocking Cody unconscious. Cody told police to "kill Bobby Woods for me" after he was found wandering in a cemetery. About a dozen witnesses, including Sarah's best friend, testified in the punishment phase of Woods' trial. Sarah's diary was among the evidence prosecutors offered. "Dear Diary. Guess what? Bobby moved out and we are so, so, so, so happy," says an entry dated two months before Sarah was killed. In another entry, the girl wrote, "I don't like Cody, and I hate Bobby."

A psychologist hired by the defense testified Woods is mentally retarded and no longer a threat to society. But he acknowledged he hadn't examined Woods. A psychiatrist put on the stand by prosecutors said Woods is not retarded and could commit future violent acts.

During the trial, Woods admitted taking the children from their mother's home and knocking Cody unconscious. But Woods claimed Sarah was killed by his cousin, who committed suicide shortly after the crime. Woods had been kicked out of the Patterson home days before the attack by the children's mother, Schwana Patterson, who faces trial on charges alleging injury to a child. Prosecutors say she heard her children screaming but didn't help. She has denied the charges.

Cody testified he was awaken by his sister's screams as Woods beat the girl in the bed the children shared. He said Woods told them to follow him, and all three went to a graveyard. The boy testified that Woods told him to get out of the car and told Sarah to get in the front seat and lie down. Cody said Woods choked him and knocked him unconscious. The boy later had surgery to remove skull fragments from his brain.

Woods claimed his cousin, Jody Milton, agreed to "take care of" Sarah, whose body was found with her throat slashed. Milton hanged himself shortly after the girl's death.

The trial was moved to Llano, 65 miles northwest of Austin, because of extensive news coverage in the Dallas-Fort Worth area. Woods, 32, also received a 40-year sentence for attempted capital murder in the injuring of the girl's 9-year-old brother.

Source: http://www.kxan.com/Global/story.asp?S=7539928&nav=menu73_6_13

1-22-2004

Hi,

I guess I can tell you about myself some. I am 5,8 tall and I am at 188 pounds - I have blonde hair - I like to go camping, fishing and swimming and I like to cook, working out - I can do 3000 push up without stopping, I can do it in 30 minutes, I can do 2000 sit up with stopping and do pull ups, run and I like doing the weight-bar too. I also like hiking in the woods and fast cars. I am going to send a picture of myself, my mom is going to send it to me as soon possible. It will have me and my grandmom on it. It was taking 3 months ago. My mother name is Doris and my grand mother name is Ruby Woods but I call her mom. She had me all my life that's how come I call her mom.

What am I looking for is a pen pal. I have just one, she is from Germany. She is very nice, she goes to school and works anyway. I would like to get some in the States if I can, overseas ok, too. I do not care who it is women or a man. I have got letter before and I write them back but that all I do not hear anything else from them. I think my spelling and writing is ok. I like to have someone who will not make fun of my writing and spelling.... Back to the pen pal thing, like I said women or man but I get better a long with women than man. I get along with most of the women, here not the men, not one of them...HaHaHa. Anyway I hope I did not forget anything, ask me and I will tell you ok. I guess that's all for now, hope to hear from you soon.

Bobby Woods

P.S. I would like to tell my story but I can not spell all the big words and sometimes when I write something it does not come out right. It going to take me a little time. I have to find someone to help me with the spelling, the one beside me makes fun of me so do not ask them anything with spelling anyway.

Bobby W. Woods #999270
Polunsky Unit D.R. - 3872 FM 350 South - Livingston, Texas 77351 - USA
·22.01.2004

February 20, 2004

I am writing to you to tell you a little about my case, that was not said and there was a lot of things like:

1. The shoe was to small for my feet, they were 9 or 8 ½ but my size is 10 or 10 ½. (Jody was a 9 not me).

2. The blanket they have was not the kid's, it was mine and hers but D.A. (District attorney) said it was the kid's.

3. Jody killed himself 27 days later, he killed her, not me. I tried telling them that before he killed himself. I put it in writing before he killed himself. The night they put me in jail they said I was lying, he did not do it and 27 days later he was dead. But at trial they said I could not use the one I wrote, they threw it out at trial, they said I couldn't use it. See, that's not right, is it? I had a handwritten confession.

4. At trial they said we did not get married but we did. My mom was there, she was there when we got married and we got the marriage license in Grandbury. But at trial they said I was not and I didn't live there but a month but I been living there ½ year. See that what they said at trail, that how they got kiddniping but check this out: They found semon on a blanket so they said sexual assult to but the blanket was not the kids it was my and her not the kid's. They said at trail I never live there so my semon should not be there so I tryed to have sex with her but I did not try to have sex that what they said. They had me up 3 days, I did not get no sleep at all. They had writing out a confession and had me sign it. I had 3 days no sleep at all... I did not write that one they did.

5. Now I have the mental retardation do you knew about that they can kill anyone that mental retarded. My IQ was 66 at trail but they trying to say it 70. Now that I lived there now for over a year ½ but at trail they said i was not living there that how they got kiddning so now they saying I lived , there something not right here anyway. Now I could get a life setence on mental retardation I hope or a new trail I would like a new trail with a good lawyer I did have a good at the time I wish she did not try to help me at the D.A. said what he want that was all.

The Lawyer I have now he is filling my paper work late one time he filling it 3 weeks later to the C.C.A. about the mental retardation and the handwriting confession saying my cousin killed her before he killed himself 27 days later. But he did not filling in time the C.C.A. want to hear anything about the confession or alley was 3 weeks late on filling the paper work any way the C.C.A. sent me back to state court on mental retardation, not confession that not the first time he has filled my paper work too late.

There are a lot more things I have to say .....

Bobby Woods

September 27, 2004

Woods wants off Texas death row

A hearing to determine whether convicted murderer Bobby Wayne Woods has mental retardation began Monday morning in Hood County District Court and should last two or three days, according to the district clerk's office. Woods, who in May 1998 was found guilty of the April 1997 kidnapping and murder of 11-year-old Sarah Patterson, has been on death row since his trial.

If found to have mental retardation, Woods could be removed from death row. Judge C.C. Cooke is hearing the case presented by attorney Rick Alley, who represents Woods. Mack Cobb and John Neil from the Texas Attorney General's office represent the state.

Woods had been the live-in boyfriend of Sarah Patterson's mother Schwanna in their Rolling Hills Shores home. In the early morning hours of April 30, 1997, Woods kidnapped Sarah and her brother Cody from the home. Woods beat Cody and left him for dead at Thorp Spring Cemetery. Sarah's body was found with a slashed throat two days later off Highway 144 South.

Woods confessed to the murder but recanted at his trial, blaming a cousin who committed suicide after the murder. After Woods' trial, held in Llano after his lawyers won a change of venue, he appealed to the 2nd Court of Appeals in Fort Worth. The court upheld the conviction.

Source : Hood County News

Woods v. State, 14 S.W.3d 445 (Tex.Crim.App. 2000). (Direct Appeal)

Defendant was convicted in the 355th District Court, Hood County, Tom Crum, J., of attempted capital murder. Defendant appealed. The Court of Appeals, Holman, J., held that: (1) failure to specify offense in arrest warrant did not render evidence inadmissible; (2) evidence that defendant kidnapped victim was sufficient to support conviction; (3) finding that child victim was competent to testify was within district court's discretion; (4) improper comment to venire panel did not warrant dismissal of panel; and (5) probative value of photograph of victim was not outweighed by its prejudicial effect. Affirmed.

DIXON W. HOLMAN, Justice.

Appellant Bobby Wayne Woods was charged with the offense of attempted capital murder. A jury found him guilty and sentenced him to life in prison. Because we have found no reversible error and have overruled all seven points, we affirm.

BACKGROUND

Eight-year-old Cody Patterson shared a bed with his older sister Sarah in their three bedroom Granbury home. Sarah was eleven-years-old and in the fifth grade. During the early morning hours of April 30, 1997, Cody was awakened by his sister's screams. Fearing for his safety, Cody remained silent while Appellant beat Sarah with his fists. After Appellant finished hitting Sarah, he instructed her and Cody to crawl out their bedroom window. Cody and Sarah obeyed although they were not afforded an opportunity to dress or put on their shoes. Cody testified that he did not want to leave.

After putting Cody and Sarah into a car belonging to his grandmother, Appellant drove four miles to the Thorp Springs Cemetery. On the way, Appellant hit Cody. When they arrived at the cemetery, Appellant ordered Cody to exit the vehicle and for Sarah to lie down in the front seat. Once outside the car, Appellant struck Cody several more times in the head. Appellant also grabbed Cody around the neck, choked him for nearly five minutes, and Cody eventually passed out. When he regained consciousness, Cody believed he was going to die. He could not see well because he was experiencing triple vision, and he did not have enough strength to stand or scream for help.

Schwana Patterson, Cody and Sarah's mother, discovered that Cody and Sarah were missing around 6:00 a.m. on April 30, 1997. After a cursory search of the house and its surroundings revealed that the children had not dressed or gone to school, the authorities were notified. Officer Russell Ford responded and arrived at the Patterson home around 6:46 a.m. Officer Ford inspected the Patterson residence and noticed an open window over the bed in the rear bedroom where Cody and Sarah had been sleeping. The officer concluded that Cody and Sarah had been abducted.

During the course of the day, some of the people who saw Appellant noticed that he had scratches on his face and right arm. Appellant gave at least five different accounts of how the scratches occurred. Appellant told Officer Todd Law that he received the scratches while hauling off some brush for Ed Blakeney. When Ed Blakeney asked Appellant what had happened to him, Appellant responded that he had been jumped by three guys and that he had run through some briars to escape. Appellant stated to Ann Fifer that he had the shingles. Appellant also told Officer Fred Bauer that he had been scratched by a pet squirrel, but at the police station said it was a cat. As the evidence began to implicate Appellant in Cody and Sarah's disappearance, a team of investigators was assembled to conduct an interview with Appellant.

Officers stopped him on Highway 144. Appellant agreed to follow them to the law enforcement center for questioning. Due to Appellant's inconsistent answers and demeanor during the interview, investigators decided to inform Appellant of his Miranda rights. Appellant authorized officers to search his vehicle at that time, and he soon admitted that he had burglarized the Patterson home on April 29, 1997. The affidavit of Chief Deputy Sheriff Larry Goin was presented to Magistrate Judy B. Watson around 6:04 p.m. stating that Appellant had confessed to Goin that Appellant had stolen a VCR and a Sega video game from the Patterson home. Magistrate Watson issued an arrest warrant based on the officer's affidavit and the warrant was executed around 6:30 p.m. that day, April 30, 1997.

Hank Courtney, who was exercising his horse on his lease near the cemetery, discovered Cody at 6:40 p.m. and took him to the nearest house where they called 911. Cody was soon taken by ambulance to Cooks Children's Hospital in Fort Worth. Dr. Jan Leah Lamb treated Cody at the hospital. Cody had suffered a series of depression fractures to the back of his skull, which forced it inward due to the force of the blows. Cody also suffered a series of blows across the front lobe of his skull, which resulted in such severe swelling that there was no shape left. Cody was bruised and had red welts over his entire body, because he had been beaten badly and stung by ants. Cody also was severely sunburned and dehydrated.

At 8:59 a.m. on May 2, 1997, Magistrate Watson issued a warrant authorizing officers to arrest Appellant for the attempted capital murder of Cody Patterson. Appellant signed a written statement that afternoon:

I WENT INTO THE HOUSE AND GOT THE KIDS FROM THE HOUSE AND LEFT, GOING TO WAL-MART. CODY AND SARAH WERE FIGHTING IN THE CAR.... I REACHED AROUND AND SLAPPED CODY ON HIS ARM. I TURNED AND DROVE TOWARD THE GRAVEYARD. I TOOK CODY OUT OF THE CAR TO TALK TO HIM AND TELL HIM I WAS SORRY FOR HITTING HIM. SARAH SAID SHE WAS GOING TO TELL THEIR MOTHER THAT I HIT CODY. CODY BEGAN TO YELL AT ME AND I HIT CODY TWICE IN THE BACK OF HIS HEAD....

POINTS ON APPEAL

Appellant argues first that the evidence is factually insufficient to sustain his conviction. Second, he contends that the evidence is legally insufficient. In his third point, Appellant complains that the trial court abused its discretion by allowing Cody to testify without conducting a competency hearing outside the presence of the jury. Fourth, Appellant challenges the trial court's refusal to dismiss the venire panel. Fifth, he argues that the trial court abused its discretion by denying his motion to suppress evidence because of a defect in the April 30, 1997 arrest warrant. Sixth, Appellant contends that the trial court abused its discretion by excluding exculpatory evidence from a co-defendant. And last, Appellant complains that the trial court abused its discretion by admitting duplicative photographs. We will address point five first.

THE ARREST WARRANT

Article 15.02(2) of the Texas Code of Criminal Procedure provides that a valid warrant must state that the defendant is accused of some offense against the State, naming the offense. See Tex.Code Crim. Proc. Ann. art. 15.02(2) (Vernon 1977). Appellant's fifth point on appeal complains that the April 30, 1997 arrest warrant was deficient because it did not specifically name the offense for which he was charged, i.e.-burglary; and therefore, all evidence obtained as a result of that arrest was inadmissible at trial.

The purpose of requiring the State to specifically name the offense for which a person is to be arrested is to provide the defendant with notice of the offense for which he is charged. See Smith v. State, 811 S.W.2d 665, 669 (Tex.App.-Houston [14 th Dist.] 1991, pet. ref'd). The April 30, 1997 warrant was written on the second page of the deputy sheriff's two-page affidavit that stated probable cause for the arrest. The affidavit described the specific property that was stolen. It included the name of an eye-witness who saw Appellant with possession of the property. It stated that Appellant had confessed that he took the property and that he had pawned it. The final sentence of the affidavit stated that “I [the deputy sheriff] therefore allege that [Appellant], on or about 4-29-97 entered a habitation owned by Schwana Patterson without her consent to commit theft.” Because the affidavit and warrant were a single document, Appellant had notice that he was being arrested for entering Schwana's house and taking her property, all without her consent.

In Dunn v. State, the Court of Criminal Appeals held that “[e]vidence obtained by a police officer acting in good faith reliance upon a warrant based upon a magistrate's determination of probable cause should not be rendered inadmissible due to a defect found in the warrant subsequent to its execution.” 951 S.W.2d 478, 479 (Tex.Crim.App.1997). There is no evidence other than conjecture that the warrant was issued for an improper purpose. In Deputy Goin's affidavit, the magistrate was given probable cause to support the issuance of the April 30 th warrant. The record indicates that Appellant was arrested by officers acting in objective good faith reliance upon that warrant, which was based on probable cause and issued by a neutral magistrate. There were lawful grounds to arrest Appellant for burglary, and the trial court did not abuse its discretion by denying Appellant's motion to suppress evidence. We overrule Appellant's fifth point.

FACTUAL SUFFICIENCY

Appellant argues that the evidence is factually insufficient to prove beyond a reasonable doubt that he kidnapped Cody Patterson. This court has the authority to review fact questions in criminal cases. See Clewis v. State, 922 S.W.2d 126, 129-30 (Tex.Crim.App.1996). In reviewing the factual sufficiency of the evidence to support a conviction, we are to view “all the evidence without the prism of ‘in the light most favorable to the prosecution.’ ” Id. at 129 (citing Stone v. State, 823 S.W.2d 375, 381 (Tex.App.-Austin 1992, pet. ref'd, untimely filed)). We may only set aside the verdict if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. See Johnson v. State, No.1915-98, slip op. at 17, 2000 WL 140257, at *8 (Tex.Crim.App. Feb. 9, 2000). Clewis, 922 S.W.2d at 129. In performing this review, we are to give “appropriate deference” to the fact finder. Clewis, 922 S.W.2d at 136. We may not reverse the fact finder's decision simply because we may disagree with the result. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Instead, we may find the evidence factually insufficient only where necessary to prevent manifest injustice. See id.

A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. See tex. Penal Code Ann. § 20.03(a) (Vernon 1994). “Abduct” means to restrain a person with the intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found or using or threatening deadly force. See tex. Penal Code Ann. § 20.01(2)(A), (B) (Vernon Supp.2000). After beating Sarah with his fists and waking Cody, Appellant ordered Cody and Sarah to crawl out their bedroom window around 3:30 a.m. He then loaded the children into a car without their consent and drove them four miles away to a remote cemetery. Cody testified that he did not want to go with Appellant because he feared being beaten. Appellant admitted striking Cody in the car and in the cemetery. Appellant left Cody in the cemetery for roughly fourteen hours after fracturing his skull. There is no evidence that Appellant adopted Cody or that he had court-approved custody. The only evidence that Appellant did not kidnap Cody is Appellant's own testimony stating that he was going to take the children to Wal-Mart and that Schwana knew that he had taken the children riding around late at night on prior occasions. After reviewing the entire record, we hold that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule point one.

LEGAL SUFFICIENCY

In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict. See Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The legal sufficiency of the evidence is a question of law. The issue on appeal is not whether we as a court believe the State's evidence or believe that the defense's evidence outweighs the State's evidence. See Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991); Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). Our duty is not to reweigh the evidence from reading a cold record but to act as a due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App.1996). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. See Matson, 819 S.W.2d at 846.

Appellant signed a written statement after being charged and arrested for the attempted capital murder of Cody Patterson. Appellant confessed to taking Cody and Sarah from their home and driving them to a remote cemetery. He admitted to hitting Cody in the arm and in the back of the head. Cody testified that he was scared and that he had been awakened by Sarah's screams as Appellant assaulted her. Cody did not want to go and was afraid that he was going to be beaten. Dr. Lamb testified that Cody had suffered a severe beating and sustained severe injuries to his head. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the essential elements of kidnapping beyond a reasonable doubt. We overrule point two.

THE COMPETENCY HEARING

Whether a child witness is competent to testify is reviewed under an abuse of discretion standard. See Reyna v. State, 797 S.W.2d 189, 191 (Tex.App.-Corpus Christi 1990, no pet.). An abuse of discretion occurs where a trial judge acts arbitrarily and unreasonably, without reference to guiding rules or principles of law. See Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.-Amarillo 1991, pet. ref'd). A trial court has wide discretion in determining the admissibility of evidence. See id.; s ee also Dorsett v. State, 761 S.W.2d 432, 433 (Tex.App.-Houston [14 th Dist.] 1988, pet. ref'd). To determine whether the trial court abused its discretion, we must review the entire testimony of the child. See Dufrene v. State, 853 S.W.2d 86, 88 (Tex.App.-Houston [14 th Dist.] 1993, pet. ref'd).

Appellant's third point on appeal claims that Cody was not competent to testify. As a general rule, a child is competent to testify unless, after being examined by the court, he does not appear to possess sufficient intellect to relate transactions with respect to which he is interrogated. See tex.R. Evid. 601(a)(2). Inconsistencies and conflicts in the child's testimony do not automatically rule him incompetent; rather, they are simply factors affecting the weight of the child's credibility. See Upton v. State, 894 S.W.2d 426, 429 (Tex.App.-Amarillo 1995, pet. ref'd).

After reviewing the record, we hold that the trial court did not abuse its discretion by finding that Cody was competent to testify. Both the prosecutor and the trial judge asked Cody numerous questions to determine whether he knew the difference between a truth and a lie. The prosecutor also asked questions to determine whether Cody was able to accurately perceive the events of the alleged crime and whether Cody could articulate his perceptions in a reliable manner. After hearing Cody's responses and perceiving his demeanor on the witness stand, the trial court reasonably could have concluded that he was competent to testify. We overrule Appellant's third point.

THE VENIRE PANEL

After the voir dire of the venire panel, Appellant's attorney, outside the jury's presence, requested a jury shuffle. When the district clerk returned with the new list, she apologized to the venire panel and stated that “this was Shelly's [Appellant's trial counsel] fault.” Appellant's counsel objected and argued that the clerk's comment tainted the entire panel. The trial court then instructed the jury in the exact language Appellant requested: “[y]ou are instructed that the defense or the State has a right to ask for a shuffle. In any event you are instructed not to consider in any way who exercised their right to a jury shuffle.” The trial court then denied Appellant's request that the entire panel be dismissed. Appellant's fourth point complains of the denial.

Whenever a trial court instructs the jury to disregard an improper comment, it is presumed that the jury will follow the court's instruction unless the remark or comment was so prejudicial or extreme that the instruction is incapable of removing the harm. See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987); Calderon v. State, 847 S.W.2d 377, 380 (Tex.App.-El Paso 1993, pet. ref'd). Where a prejudicial comment is made in front of a jury, a party complaining of it must develop a sufficient record demonstrating harm. See Smith v. State, 907 S.W.2d 522, 527 (Tex.Crim.App.1995); Haynes v. State, 627 S.W.2d 710, 711 (Tex.Crim.App.1982). Because Appellant's counsel did not develop the record and there is no evidence that the court's failure to dismiss the panel contributed to Appellant's conviction, we overrule point four. See tex.R.App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

EXCULPATORY EVIDENCE CLAIM

Appellant's sixth point contends that the trial court erred by not allowing allegedly exculpatory evidence in during Appellant's case-in-chief. Appellant argues that the consent to search form of Schwana Patterson contained language that could have undermined the State's theory that Appellant was the person who attempted to murder Cody.

We must evaluate the trial court's ruling under an abuse of discretion standard of review. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990). Evidence is relevant if it tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” tex.R. Evid. 401. All relevant evidence generally is admissible. See tex.R. Evid. 402. Appellant's burden as the proponent of the evidence is to demonstrate the consent form's relevancy. See Alvarado v. State, 912 S.W.2d 199, 215 (Tex.Crim.App.1995); Meador v. State, 812 S.W.2d 330, 333 (Tex.Crim.App.1991).

Appellant has not shown a connection between Schwana Patterson's consent to search form and the issues before the court. There is no evidence to support the inference that the evidence would have been exculpatory or favorable to Appellant. The trial judge determined that Appellant failed to meet his burden of establishing the form's relevance under Rule 401 and we will not reverse a trial court ruling that falls within the zone of reasonable disagreement. See Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391 (op. on reh'g). Having carefully considered the evidence, we do not find the trial court abused its discretion by excluding the consent form. We overrule point six.

THE PHOTOGRAPHS

Appellant argues in his appellate brief that the sixth and seventh photographs of Cody Patterson should not have been admitted because they were cumulative. Appellant failed to identify either photograph by its exhibit number. The reporter's record's master exhibit list indicates that the sixth and seventh photographs of Cody Patterson admitted at trial were State's exhibit numbers 34 and 35. Although Appellant's point could be dismissed for inadequate briefing under tex.R.App. P. 38.1(h), we will address its contentions.

State's exhibit number 34 was a 30” x 40” color photograph depicting the injuries to the back of Cody's head. Appellant pointed out that a similar photograph, State's exhibit number 26, had already been admitted and that State's exhibit number 34 should be excluded under Rule 403. A trial court has considerable discretion in deciding whether to admit or exclude photographs into evidence. See Huffman v. State, 746 S.W.2d 212, 222 (Tex.Crim.App.1988). Appellate courts are limited to determining whether the danger of unfair prejudice substantially outweighs the photograph's probative value. See tex.R. Evid. 403; Barnes v. State, 876 S.W.2d 316, 326 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994); Tidrow v. State, 916 S.W.2d 623, 631 (Tex.App.-Fort Worth 1996, no pet.). Among the factors a court may consider are the number of photographs offered, their detail and size, whether in color or black and white, whether close-up, and whether the body is clothed or naked. See Barnes, 876 S.W.2d at 326; Tidrow, 916 S.W.2d at 631. A court also may consider the availability of other means of proof and circumstances unique to the case. See Tidrow, 916 S.W.2d at 631. In short, a photograph should be excluded if it is so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty rationally deciding the critical issues of the case after viewing it. See id.

State's exhibit number 34 was offered in conjunction with Dr. Lamb's testimony describing the extent of Cody's head injuries. While a total of seven photographs were entered into evidence, State's exhibit number 34 was the only close-up photograph showing the back of Cody's head. It was no larger than any of the rest of the photographs. State's exhibit number 26 also showed the back of Cody's head, but it was farther away, taken from a different angle, and not as clear as State's exhibit number 34. We hold that the trial court properly admitted the photograph, and that it is not so horrifying or appalling that a juror of normal sensitivity would have difficulty rationally deciding the critical issues of the case after viewing it. It is relevant to the issues of the trial, and we conclude that it is more probative than prejudicial. See tex.R. Evid. 403.

When State's exhibit number 35 was offered into evidence, Appellant objected, but he failed to state a reason for the objection. To preserve a complaint for appeal, a party must have presented a timely objection stating the specific grounds for the desired ruling if they are not apparent from the context of the objection. See tex.R.App. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265. When that is not done, error is not preserved, and the complaint is waived. See Taylor v. State, 939 S.W.2d 148, 155 (Tex.Crim.App.1996). Because Appellant failed to preserve error for appellate review of State's exhibit number 35, we overrule point seven.

CONCLUSION

Because we have found no reversible error and have overruled all seven of Appellant's points, we affirm the trial court's judgment.

Woods v. Cockrell, 307 F.3d 353 (5th Cir. 2002). (Habeas)

Texas state death penalty inmate requested a certificate of appealability (COA) in order to obtain review of a decision of the United States District Court for the Western District of Texas, Sam Sparks, J., which denied his habeas petition. The Court of Appeals, Robert M. Parker, Circuit Judge, held that: (1) Texas appellate court did not violate due process by reviewing sufficiency of evidence of future dangerousness in capital murder trial under Jackson standard; (2) Texas appellate court's refusal to review jury's determination of whether special mitigating factors existed to sentence a defendant otherwise fully qualified for death instead to life in prison did not violate due process; and (3) inmate was not entitled to Simmons instruction. Denied.

ROBERT M. PARKER, Circuit Judge:

Petitioner Woods, a Texas state death penalty inmate, requests a certificate of appealability (“COA”) under 28 U.S.C. §§ 2253-2254 on two issues. First, whether the standard of review used by the Texas Court of Criminal Appeals when reviewing the sufficiency of the evidence relating to the jury's determination of the special issue of future dangerousness, and whether its refusal to review the trial jury's determination of the sufficiency of mitigating evidence at all, violates constitutional due process and equal protection. Second, whether the Texas trial court, upheld by the appellate court, erred in refusing to instruct the jury pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). We deny Woods's request on each issue. In the early morning hours of April 30, 1997, Woods went to the house of his former girlfriend, Schwana Patterson, in Granbury, Texas. Though they had previously lived together, the two had split up. Woods later admitted to having used drugs before going to the house, including “crank” and PCP. Schwana was not at home when Woods arrived, but he found an open window into the bedroom where Schwana's two children, Sarah, 11, and Cody, nine, were sleeping. He grabbed Sarah by the foot; Cody awoke to Sarah's screams as Woods beat her chest.

He forced the two children to leave through the window in their nightclothes. Later investigation found Woods's semen on Sarah's bedcover, indicating that he had had sexual contact with her. This was borne out in other evidence, including statements by Woods himself, Sarah's friends, notes she had left in her diary indicating that she hated Woods and wanted him gone, and that she had contracted the sexually-transmitted disease Human Papilloma Virus (“HPV”). Woods was also infected with HPV. When Sarah's body was later found, forensic evidence including larvae development in her traumatized genitals also indicated that she had been sexually molested.

Woods took the children in his car to a cemetery. Enroute, Cody, in the back seat, noticed a black-handled knife in the back of the car. At the cemetery, Woods took Cody out of the car and asked him if his mother was seeing anyone else. He hit Cody and commenced strangling him in front of the car. Cody later testified that he thought he was going to die. He awoke later, crawled over a fence, and attracted the attention of a horseback rider who called the police.

The police later found Woods and told him that they had the “whole story” from Cody. They asked him to tell them where to find Sarah, hoping that she was still alive. Woods told them, “You will not find her alive. I cut her throat.” He then led the police to Sarah's body and gave them two written statements. In the statements, he admitted to having had sexual contact with Sarah before leaving the house, that he had taken drugs, and that after Cody fell unconscious in the cemetery, Sarah had started screaming. He left with her in the car toward a bridge on highway 144. She continued to yell that she would tell the police that he had hit Cody. He attempted to quiet her by holding a knife to her throat. According to his statement, Sarah jerked and the knife cut her throat.

Her body was clothed in an inside-out shirt, a sports bra, and a pair of shorts, without panties. Her throat had been deeply cut, severing her larynx and several major arteries and veins, causing massive external bleeding that was the cause of her death.

In addition to finding Woods's semen on Sarah's blanket, investigators found a large butcher knife, stained with Sarah's blood, inside a trash bag that Woods had borrowed from a neighbor the morning after he abducted Sarah and Cody. The bag also contained a pawn ticket bearing Woods's signature and address for items he admitted stealing from the Patterson home. Sarah's blood was on Woods's jersey, which was in the back of his car; her panties were on the car's floorboard. There was evidence that Woods had scratches on his face and arms on the day after the murder that were not there the day before.

Woods was arrested and charged with, inter alia, capital murder and was so indicted on June 4, 1997, in Hood County, Texas. The indictment charged him with the murder of Sarah Patterson in the course of committing or attempting to commit the kidnaping of Sarah and Cody Patterson, or in the alternative, the murder of Sarah in the course of committing or attempting to commit the aggravated sexual assault of Sarah. He was also indicted for the attempted capital murder of Cody, arising out of the same criminal transaction.

On Woods's motion, venue was changed to Llano County, where he pleaded not guilty. At trial, Woods testified on his own behalf and admitted to the general contours of that morning's events, including the abductions, but not to the murder. Instead, he offered a version which tended to implicate his cousin. He was found guilty by the jury on May 21, 1998. Following a punishment hearing, the jury returned affirmative answers on May 28 on the issues relating to Woods's future dangerousness and intent to commit murder, and a negative answer on the existence of mitigating circumstances to justify a life sentence. The Llano County trial court sentenced Woods to death.

Woods appealed the conviction and sentence to the Texas Court of Criminal Appeals, and concurrently filed a state application for writ of habeas corpus. The Court of Criminal Appeals affirmed in an unpublished opinion. Woods v. State, No. 73,136 (Tex.Crim.App. June 14, 2000). His motion for rehearing was denied and the court entered a mandate on September 13, 2000. The Court of Criminal Appeals also denied Woods's habeas petition in an unpublished opinion based on the findings of the trial court. Ex parte Woods, No. 44,856-01 (Tex.Crim.App. Sept. 13, 2000). The United States Supreme Court denied certiorari on February 21, 2001. Woods v. Texas, 531 U.S. 1155, 121 S.Ct. 1105, 148 L.Ed.2d 975 (2001). Woods petitioned for federal habeas relief in the United States District Court for the Northern District of Texas on December 11, 2000. That court transferred the case to the Western District of Texas, which entered its ruling on summary judgment on February 8, 2002. Pursuant to 28 U.S.C. § 2253(c), which provides that a prisoner may not appeal the denial of a petition for habeas corpus under § 2254 without first obtaining a COA from a circuit judge, Woods now seeks a COA on these issues from us in a petition filed April 25, 2002.

II. Standard of Review.

Woods's federal habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Thus, the AEDPA applies to his COA application. Lindh v. Murphy, 521 U.S. 320, 335-36, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Nobles v. Johnson, 127 F.3d 409, 412-13 (5th Cir.1997). To prevail on an application for a COA, a petitioner must make a “substantial showing of the denial of a constitutional right, a demonstration that ... includes showing that reasonable jurists could debate whether... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Moore v. Johnson, 225 F.3d 495, 500 (5th Cir.2000), cert. denied, 532 U.S. 949, 121 S.Ct. 1420, 149 L.Ed.2d 360 (2001), quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

In assessing whether a petitioner has demonstrated a substantial showing of the denial of a constitutional right, we must keep in mind the deference scheme laid out in 28 U.S.C. § 2254(d). See Moore, 225 F.3d at 501.

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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). “Section 2254(d)(1) provides the standard of review for questions of law and mixed questions of law and fact.” Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir.2000). The court may grant habeas relief under the “unreasonable application” clause “if the state court identifies the correct governing legal principle but applies it incorrectly, or expands a legal principle to an area outside the scope intended by the Supreme Court.” Id. Furthermore, the state court's application “must be ‘unreasonable’ in addition to being merely ‘incorrect.’ ” Id. In other words, the appropriate inquiry is “ ‘whether the state court's application of clearly established federal law was objectively unreasonable.’ ” Id. (quoting Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). With respect to the “contrary to” clause of § 2254(d)(1), “a federal court may grant the writ if the state court has arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court on a set of materially indistinguishable facts.” Id.

We review a district court's grant of summary judgment in a habeas proceeding de novo. Soffar v. Johnson, 237 F.3d 411, 449 (5th Cir.2000). “When reviewing summary judgment on a petition for habeas corpus, consistent with the provisions of 28 U.S.C. § 2254(d), we ‘presume all state court findings of fact to be correct in the absence of clear and convincing evidence.’ ” Id.; Caldwell, 226 F.3d at 372.

“Because the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [the petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).

III. Analysis.

As a preliminary matter, we must address the scope of Woods's petition. He “submits that a certificate of appealability should issue herein to consider all of the issues raised by the Petitioner ... and [ ] that the following matters merit issuance of a certificate of appealability by way of example only [.]” Woods then briefed in some detail the two issues we now review. In the district court, Woods raised 28 issues on federal habeas review. Several of them overlapped the two issues presented before us. The district court denied all 28 in an order dated February 8, 2002.FN1 To the extent that Woods's petition might be construed to embrace any of his prior issues beyond those that we now address, they are denied as inadequately briefed and waived. Martin v. Cain, 246 F.3d 471, 475 n. 1 (5th Cir.), cert. denied, 534 U.S. 885, 122 S.Ct. 194, 151 L.Ed.2d 136 (2001) (issues not briefed will not be considered); Dardar v. Lafourche Realty Co., 985 F.2d 824, 831 (5th Cir.1993) (“[q]uestions posed for appellate review but inadequately briefed are considered abandoned”).

FN1. In his later petition for COA to the district court, Woods also asserted that a COA “should issue herein to consider all of the issues raised by the Petitioner before the court herein and the following matters by way of example only.” He then briefed three issues. On April 12, 2002, the district court considered only those three issues, although noting that some number of Woods's original habeas grounds were incorporated into them, and granted a COA on one, that being the admissibility of Woods's confession. As to the other two, the same issues now raised before us, the district court denied a COA.

A. Texas appellate review of the sufficiency of the evidence.

Woods contends that the Texas Court of Criminal Appeals violates constitutional due process using the standard under which it reviews evidence of future dangerousness for sufficiency and by refusing to review the sufficiency of mitigating evidence. He also makes the unsupported contention that such reviews are a violation of constitutional equal protection, but did not brief that assertion and does not seriously argue it. We will address the due process issue and treat the equal protection issue as abandoned.

Woods first argues that the Texas appellate court applies the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) to the determination of the sufficiency of the evidence to support the jury's finding of his future dangerousness. He contends that the more stringent standard of Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996) should be applied instead.

The Texas Court of Criminal Appeals has ruled that the Texas constitution imposes a requirement for an appellate court to review the factual sufficiency of the elements of an offense that is more stringent than that imposed under the United States Constitution's due process clause. Id. at 129-30. In that regard, a Texas court of appeals “views all the evidence without the prism of ‘in the light most favorable to the prosecution’ ... [and] sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Id. at 129. In so doing, the Court of Criminal Appeals rejected the use of Jackson as the appropriate standard in noncapital cases. Id. Jackson requires only “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

The Court of Criminal Appeals does not, however, apply the Clewis standard to determining whether a finding of future dangerousness in a capital murder case has met federal constitutional due process. See, e.g., Chamberlain v. State, 998 S.W.2d 230, 232-33 (Tex.Crim.App.1999). Instead, it explicitly applies the Jackson standard. Woods attempts to convince us that the Clewis standard should have been used by the state and that the Texas state standard should be that adopted on federal review. We refuse.

The Clewis standard is rooted in the Texas constitution. Clewis, 922 S.W.2d at 130. It applies to the power to review questions of fact when proving the elements of an offense in criminal cases. Id. Jackson, on the other hand, reflects the federal constitutional due process standard. We apply that standard in our review of federal habeas petitions. See, e.g., Santellan v. Cockrell, 271 F.3d 190, 193 (2001). We note that the state appellate court observed the federal standard of review on the question of future dangerousness-as distinct from a finding on the elements of an offense-in a capital murder case. It did so knowing that we would do so on federal habeas review. We cannot impose a Texas constitutional standard for the factual review of the elements of a crime on the state's courts of appeals when reviewing the issue of a defendant's future dangerousness. Neither do we adopt other than the federal standard.

During the punishment phase of the trial, the jury was presented with evidence of Woods's future dangerousness, including toxicology evidence rebutting Woods's claims that he was under the influence of drugs at the time of the murder and witnesses who testified regarding Woods's affinity for knives and his propensity to taunt people with them. There was psychiatric testimony that Woods had an antisocial personality disorder. When combined with his violent tendencies, he posed a continuing threat to commit future acts of criminal violence. Additionally, there was evidence regarding the opportunities that life-sentenced capital offenders had to commit violence in a prison environment. Woods countered with evidence from jailers that he had not caused any problems while incarcerated before and during the trial and that he had become suicidal after his conviction. He also presented evidence of borderline mental retardation and the ability of the Texas penal system to control such prisoners. A defense psychologist disagreed that Woods had an antisocial personality disorder and that Woods would probably not commit criminal acts of violence in a prison environment. A family physician also offered testimony challenging whether Woods was the source of the HPV infection found in Sarah. On the balance, the jury returned a finding of future dangerousness. On review under Jackson, the Texas Court of Criminal Appeals's decision to deny relief was not unreasonable and we will not disturb it.

Woods next argues that the Texas appellate court's refusal to review the jury's determination of whether special mitigating factors existed to sentence a criminal otherwise fully qualified for death instead to life in prison, is a violation of due process. This is precisely the issue we answered in Moore v. Johnson as a pure question of law. See Moore, 225 F.3d at 505.

A capital murder trial in Texas proceeds in a bifurcated process. In the first, or “guilt-innocence,” phase, a defendant's eligibility for consideration of the death penalty is determined. Once that eligibility is determined, the trial proceeds to the second, or “punishment,” phase, wherein the defendant is either selected for death or for the alternative sentence of life imprisonment. In that phase, the state presents the jury with evidence of certain aggravating factors, including the manner of the offense and future dangerousness. The defendant also presents the jury with mitigating evidence. The jury is then asked to determine whether the aggravating factors have been shown beyond a reasonable doubt, thus qualifying the defendant for selection for the death penalty. If so, the jury is then asked whether the defendant's mitigating evidence is sufficient to warrant the imposition of a life sentence rather than the death penalty. The Texas Court of Criminal Appeals has explained that:

[i]n Texas, this mitigating evidence is admissible at the punishment phase of a capital murder trial. Once admitted, the jury may then give it weight, if in their individual minds it is appropriate, when answering the questions which determine sentence. However, “[t]he amount of weight that the factfinder might give any particular piece of mitigating evidence is left to ‘the range of judgment and discretion’ exercised by each juror.” See Colella v. State, 915 S.W.2d 834, 844 (Tex.Crim.App.1995) (quoting Banda v. State, 890 S.W.2d 42, 54 (Tex.Crim.App.1994); Johnson v. State, 773 S.W.2d 322, 331 (Tex.Crim.App.1989), aff'd, Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)). No burden of proof exists for either the state or the defendant to disprove or prove the mitigating evidence. Colella, 915 S.W.2d at 844. Thus, each juror individually and subjectively determines what evidence, if any, is sufficient to mitigate against the imposition of the death penalty.

The Texas Court of Criminal Appeals has consistently refused to review such a subjective determination on the part of individual jurors. See Colella, 915 S.W.2d at 845 (“[b]ecause the weighing of ‘mitigating evidence’ is a subjective determination undertaken by each individual juror, we decline to review the evidence for sufficiency”).

We held in Moore that Texas is within the ambit of federal law as interpreted by the United States Supreme Court. See Moore, 225 F.3d at 507. We did so in view of Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994), in which the Supreme Court distinguished between a jury's “eligibility decision” and its “selection decision.” It is the eligibility decision that must be made with maximum transparency to “make rationally reviewable the process for imposing a sentence of death.” Moore, 225 F.3d at 506 (quoting Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630). On the other hand, a jury is free to consider a “myriad of factors to determine whether death is the appropriate punishment. Indeed, the sentencer may be given unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty.” 225 F.3d at 506 (quoting 512 U.S. at 979-80, 114 S.Ct. 2630). It is the jury's subjective and “narrowly cabined but unbridled discretion to consider any mitigating factors,” 225 F.3d at 507, that Texas refrains from independently reviewing. We continue to hold that Texas may correctly do so.

Woods argues that the approach taken by the Court of Criminal Appeals conflicts with the Supreme Court's ruling in Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). He characterizes Johnson as imposing a requirement on a reviewing court to balance a defendant's capacity for rehabilitation using the mitigating evidence of his character and background against the circumstances of the murder and any other violent acts to review the sufficiency of evidence. We disagree. Johnson was, at the time it was decided, the “latest in [the Supreme Court's] series of decisions in which the Court has explained the requirements imposed by the Eighth and Fourteenth Amendments regarding consideration of mitigating circumstances by sentencers in capital cases.” Id. at 359, 113 S.Ct. 2658 (emphasis added). The Court then reviewed its decisions on the role and availability of mitigating evidence to juries, from the earliest in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), through Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), among others.

Some of those decisions specifically examined aspects of the Texas capital crime special issues as they applied to giving a jury a meaningful way to give effect to mitigating evidence. In particular, the Court distinguished the facts in Johnson, regarding the jury's ability to give effect to the defendant's youth at the time of the crime, from those in Penry v. Lynaugh, regarding the jury's ability to give effect to the defendant's evidence of mental retardation and childhood abuse. Johnson, 509 U.S. at 364-73, 113 S.Ct. 2658. The only apparent reference to the duty of a reviewing court is that the Court had “held that a reviewing court must determine ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’ ” Id. at 367, 113 S.Ct. 2658, quoting Boyde, 494 U.S. at 380, 110 S.Ct. 1190.

We decline to read Johnson as Woods propounds. We instead reiterate our previous holding on this issue in Moore and rule that Woods has not made a substantial showing of the denial of a constitutional right and that the Texas Court of Criminal Appeals is not unreasonable in its refusal to review the sufficiency of mitigating evidence.

Finally, we note that if Woods had successfully argued on either of these two sufficiency-of-review issues, he still could not apply the result to his case. His reading of either Clewis or Johnson, or both, would impose a new rule of law not made retroactive by the Supreme Court. Therefore, he would be barred from its use under the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

B. The Simmons issue.

Woods finally attempts to extend the jury instruction requirement of Simmons v. South Carolina, supra, to cover his circumstance, citing only that “[s]uch an instruction is required to comport with due process.” By that statement, we infer that Woods raises this argument under color of the Fourteenth Amendment.

Woods argues that Simmons, Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and O'Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) hold that where future dangerousness is at stake, a jury must be told of the fact that the prisoner, if given a life sentence rather than a death sentence, would serve a significant period of incarceration before he could be released on parole. He blatantly misstates the meaning of those decisions.

Simmons requires that where a defendant's future dangerousness is at issue and state law prohibits his release on parole after being sentenced to life imprisonment, the jury must be informed that the defendant is parole-ineligible. 512 U.S. at 171, 114 S.Ct. 2187 (“[t]he State may not create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole”). The pertinent aspect of that ruling as it applies to Woods's case is that publishing such information to the jury is required only where state law provides for life imprisonment without possibility of parole as an alternative to the death penalty.

Skipper held that a state's refusal to admit a defendant's evidence of good behavior in prison during the punishment phase of his capital trial prevented the presentation of relevant mitigating evidence to the jury in violation of the Eighth, 476 U.S. at 4, 106 S.Ct. 1669, and Fourteenth, id. at 5 n. 1, 106 S.Ct. 1669, Amendments.

In O'Dell, the Court held that the rule of Simmons was not a “new rule” within the meaning of Teague v. Lane, supra. Neither did it fall within one of the exceptions to Teague because it was not a “watershed rule of criminal procedure.” It therefore was inapplicable retroactively on collateral review, even for a defendant who six years earlier had been sentenced to death while prevented from informing his jury that if sentenced to life, he would have been parole-ineligible. 521 U.S. at 165-66, 117 S.Ct. 1969.

Under his misreading of these cases, Woods would analogize his situation to that of Simmons. He argues that the alternative sentence to the death penalty in Texas is life imprisonment with parole-eligibility after 40 years and that such a “significant period of incarceration” should be treated identically to life imprisonment without possibility of parole for the purposes of informing the jury. In addition to the language of Simmons itself, we have recognized that parole eligibility in a life sentence fails to trigger its rule. We interpret Simmons to require that a jury be informed about the defendant's parole eligibility only when (1) the state argues that a defendant represents a future danger to society, and (2) the defendant is legally ineligible for parole. See Miller v. Johnson, 200 F.3d 274, 290 (5th Cir.), cert. denied, 531 U.S. 849, 121 S.Ct. 122, 148 L.Ed.2d 77 (2000). That is not the case here.

Even if Simmons could be read as Woods asserts, it would be a new rule of constitutional criminal procedure and thus Teague-barred. O'Dell, 521 U.S. at 165-66, 117 S.Ct. 1969; Wheat v. Johnson, 238 F.3d 357, 361-62 (5th Cir.), cert. denied, 532 U.S. 1070, 121 S.Ct. 2226, 150 L.Ed.2d 218 (2001) (holding that extending the Simmons rule to the Wheat facts would establish a new rule of constitutional law, which is barred on collateral review by Teague). Therefore, Woods cannot make a substantial showing of the denial of a constitutional right.

IV. Conclusion.

For the reasons stated herein, find that the state court's application of clearly established federal law was neither objectively unreasonable nor opposite to the conclusions of the Supreme Court. We therefore DENY Woods's petition for COA on all issues.

Woods v. Quarterman, 493 F.3d 580 (5th Cir. 2007). (Successive Habeas)

Background: Following denial of his successor petition for habeas corpus relief in Texas state court, state inmate, who had been sentenced to death based upon his conviction for capital murder, filed successive federal habeas petition, asserting that he was mentally retarded and therefore ineligible for the death penalty pursuant to the Supreme Court's decision in Atkins v. Virginia. The United States District Court for the Western District of Texas, Sam Sparks, J., denied relief, but granted inmate a certificate of appealability (COA) on his claim. Inmate appealed.