United States Court of Appeals
For the Fifth Circuit

Beunka Adams v. Rick Thaler, Director

ClarkProsecutor.org

Texas Department of Criminal Justice

Adams, Beunka
Date of Birth: 12/10/1982
DR#: 999486
Date Received: 08/30/2004
Education: 10 years
Occupation: laborer
Date of Offense: 09/02/2002
County of Offense: Cherokee
Native County: Cherokee
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5' 6"
Weight: 179

Prior Prison Record: None.

Summary of incident: On 09/02/2002 in Cherokee County, Texas, Adams entered a convenience store and robbed a twenty-four year old white male and shot him one time in the head. Adams then attempted to rob, kidnap and sexually assault two other adult white females. Adams then fled the scene with an unknown amount of money.

Texas Attorney General

Media Advisory: Beunka Adams scheduled for execution

Thursday, April 19, 2012

AUSTIN – Pursuant to an order entered by the 2nd Judicial District Court in Cherokee County, Beunka Adams is scheduled for execution after 6 p.m. on April 26, 2012. In 2002, a Cherokee County jury found Adams guilty of murdering Kenneth Wayne Vandever during the course of committing a felony.

FACTS OF THE CRIME

The U.S. Court of Appeals for the Fifth Circuit described the murder of Mr. Vandever as follows:

On September 2, 2002, Petitioner Beunka Adams, along with Richard Cobb, robbed a convenience store in Rusk, Texas. At the time of the robbery, Candace Driver and Nikki Dement were working in the store, and the only customer present was Kenneth Vandever. Vandever, who was described as mentally challenged, often “hung around” the store, helping clean and take out the trash. At approximately 10:00 p.m., Adams and Cobb, wearing masks, entered the store. Cobb carried a 12-gauge shotgun. Adams ordered Driver, Dement, and Vandever to the front of the store and demanded the money in the register. After the women complied, Adams demanded the keys to a Cadillac parked in front of the store. Driver, who had borrowed the car to drive to work, retrieved the keys from the back room.

Adams then ordered the three victims into the Cadillac with Adams and Cobb, and Adams drove toward Alto, Texas. During the drive, Adams removed his mask after Dement recognized him because they had gone to school together. Adams then repeatedly told the victims that they would not be hurt, and that he just needed money for his children. At some point, Adams turned off the road and drove the vehicle into a field that was described as a pea patch.

The group got out of the car, and Adams ordered Driver and Vandever into the trunk. Adams then escorted Dement away from the car and sexually assaulted her. After leading Dement back to the Cadillac, Adams released Driver and Vandever from the trunk, and he told the victims that he and Cobb were waiting for Adams’s friends to arrive. Sometime thereafter, Adams decided to let the three victims walk away. He reconsidered a few moments later, however, and Driver stated that Adams feared the victims would reach a house before he and Cobb could get away. Adams and Cobb then made the three victims kneel on the ground. He tied the women’s hands behind their backs using their shirts but left Vandever unrestrained. The victims were unable to remember who was carrying the shotgun through these events.

Adams and Cobb stood behind the victims for several minutes, and the victims could tell they were discussing something, though they were out of audible range. The women then heard a single shot. Adams asked, “Did we get anybody?” and Driver answered, “No.” They heard a second shot a few moments later, and Vandever cried out, “They shot me.” A third shot struck Dement. When Dement fell forward, Driver fell forward as well, pretending to be hit. Adams, carrying the shotgun, approached Driver and asked if she was bleeding. Driver did not answer, hoping the men would believe she was dead. When Driver did not immediately answer, Adams said, “Are you bleeding? You better answer me. I’ll shoot you in the face if you don’t answer me.” Driver answered, “No, no, I’m not bleeding.” Adams then fired the shotgun right next to her face, and, though the pellets only hit her lip, she did not move, pretending to be dead.

Adams and Cobb turned to Dement and asked her the same questions. She feigned death, and the men started kicking her when she did not answer. Adams then grabbed Dement’s hair and held up her head while one of the men shined a lighter on her face to see if she was still alive. Dement continued feigning death, and Driver heard Cobb say, “She’s dead. Let’s go.” That was the only time any of the victims heard Cobb speak. After Adams and Cobb left, Driver and Dement, each fearing that the other was dead, got up and ran in separate directions. Driver had minor injuries, but Dement had been shot directly in the left shoulder. By the time police arrived at the pea patch, Vandever, who had been shot in the chest, had died from the shotgun wound.

PROCEDURAL HISTORY

In September 2002, a Cherokee County grand jury indicted Adams for murdering Kenneth Wayne Vandever during the course of committing a felony. A Cherokee County jury found Adams guilty of murdering Kenneth Wayne Vandever. After the jury recommended capital punishment, the court sentenced Adams to death by lethal injection. Judgment was entered August 30, 2004.

On June 27, 2007, the Texas Court of Criminal Appeals rejected Adams’s direct appeal and affirmed his conviction and sentence. On January 14, 2008, the U.S. Supreme Court rejected Adams’s direct appeal when it denied his petition for certiorari.

After exhausting his direct appeal, Adams sought to appeal his conviction and sentence by filing an application for a state writ of habeas corpus with the Texas Court of Criminal Appeals. On November 21, 2007, the high court denied Adams’s application for state habeas relief.

Adams filed a successive state habeas petition which was dismissed as an abuse of the writ by the Court of Criminal Appeals on April 29, 2009.

On January 8, 2009, Adams attempted to appeal his conviction and sentence in the federal district court for the Eastern District of Texas. The federal district court denied his petition for federal writ of habeas corpus on July 26, 2010.

On March 31, 2011, the U.S. Court of Appeals for the Fifth Circuit rejected Adams’s appeal when it affirmed the federal district court’s order denying Adams a federal writ of habeas corpus.

On October 11, 2011, the U.S. Supreme Court rejected Adams’s appeal a second time when it denied his petition for a writ of certiorari.

Adams filed another state habeas petition which was dismissed by the Court of Criminal Appeals on February 15, 2012.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented with information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of Adams’s trial, the jury heard that Adams had participated in two previous aggravated robberies with Cobb.

Texas man dies for 2002 killing

By Cody Stark - ItemOnline.com

April 26, 2012

HUNTSVILLE — A Cherokee County man convicted of murder asked for forgiveness moments before his was put to death Thursday. Beunka Adams said there was not a day that went by that he did not wish that the night of Sept. 2, 2002 could not be undone. He and another man robbed a convenience store and shot three people, one fatally. “To the victims, I’m very sorry for everything that happened,” Adams said. “I am not the malicious person that you think I am. I was real stupid back then. I made a great many mistakes.”

After Adams told his family members he loved them and apologized once more to the victims and their families, the lethal injection was carried out and he was pronounced dead at 6:25 p.m., nine minutes after the lethal dose was administered.

The U.S. Supreme Court denied a request by Adams’ attorneys to review his case Thursday afternoon, paving the way for the execution. The defense contended that he had deficient legal help at his trial and during early appeals. Adams had won a reprieve from a federal district judge earlier in the week, but the 5th U.S. Circuit Court of Appeals reinstated execution Wednesday after an appeal was filed by the Texas Attorney General’s Office.

He was one of two men convicted and sentenced to death for the murder of Kenneth Vandever on Sept. 2, 2002. Adams and Patrick Cobb, who is currently on death row for his role in the slaying, entered a convenience store in Rusk and robbed the place with a shotgun. Adams and Cobb then forced Vandever and two female clerks into a car belonging to one of the women and kidnapped them. One of the women was sexually assaulted and the other, along with Vandever, was forced into the trunk of the car when the group stopped about 10 miles away in Cherokee County. All three victims were forced to their knees and shot. Vandever died as a result of the shooting, but the two women survived.

Nikki Ansley, one of the surviving victims, witnessed the execution Thursday. She said she was glad Adams apologized, but that justice had to be carried out. “He asked for forgiveness and I forgive him, but he had to pay the consequences,” Ansley said after the execution was carried out.

Adams and Cobb were arrested several hours after the shootings in Jacksonville. Adams was identifiable because he had slipped off his mask after one of the women said she thought she knew him. During questioning by police, Adams “didn’t fully say what he did but enough to show guilt under the law of parties,” said Cherokee County District Attorney Elmer Beckworth.

That Texas law makes an accomplice equally culpable as the actual killer. Beckworth said evidence pointed to Cobb as the gunman, although testimony at trial showed Adams bragged to another jail inmate that he was the shooter. The law of parties became an issue in some of Adams’ appeals, with his lawyers arguing trial lawyers and earlier appeals attorneys should have contested jury instructions related to the law. Assistant Attorney General Ellen Stewart-Klein countered in court documents that Adams showed “total participation in a capital murder and the moral culpability required of one sentenced to death.”

Cobb, who was 18 at the time of the holdup, was convicted and sentenced to die in a separate trial eight months before Adams, who was 19 at the time of the crime. Evidence tied the two to a string of robberies that happened around the same time.

Texas man executed for role in robbery-shooting

By Michael Graczyk - The Houston Chronicle

Friday, April 27, 2012

HUNTSVILLE, Texas (AP) — A Texas man condemned for a robbery in which three people were shot, one fatally, apologized to a woman who survived the 2002 attack and family members of the slain man before receiving a lethal injection Thursday.

Beunka Adams said he was a stupid kid in a man's body at the time of the crime, which started at a convenience store southeast of Dallas and ended in a remote area several miles away. "Everything that happened that night was wrong," Adams, 29, said, as he stared at the death chamber ceiling, never looking at the people who gathered to watch his final moments. "If I could take it back, I would. ... I messed up and can't take that back."

His death was carried out less than three hours after the U.S. Supreme Court rejected a last-day appeal to postpone the execution, the fifth this year in Texas. Adams' attorneys had asked the nation's highest court to halt the lethal injection, review his case and let him pursue appeals claiming he had deficient legal help at his trial and during earlier stages of his appeals. He won a reprieve from a federal district judge earlier this week, but the Texas attorney general's office appealed the ruling, and the 5th U.S. Circuit Court of Appeals reinstated the death warrant Wednesday.

Adams expressed love to his family Thursday and asked those witnessing his execution to avoid letting any hate they had for him consume them. "I really hate things turned out the way they did," he said. "For everybody involved, I don't think any good came out of it." He took about a dozen breaths, then started to wheeze and snore. Eventually, he became still. He was pronounced dead at 6:25 p.m. CDT, nine minutes after the lethal drugs began to flow into his body.

Adams and another man were sent to death row for the slaying of Kenneth Vandever, 37, who was in a convenience store on Sept. 2, 2002, in Rusk, about 115 miles southeast of Dallas, when two men wearing masks walked in. The men announced a holdup; one of them was carrying a shotgun. After robbing the store, Adams and Richard Cobb, both from East Texas, drove off with the two female clerks and Vandever in a car belonging to one of the women.

Testimony at Adams' trial showed he gave the orders during the holdup and initiated the abductions. They drove to a remote area about 10 miles away in Cherokee County, where Adams ordered Vandever and one woman to get inside the car trunk and then raped the other woman. Testimony also showed he forced all three to kneel as they were shot. Vandever was fatally wounded. The women were kicked and shot again before Cobb and Adams, believing they were dead, fled. Both women were alive, however, and one was able to run to a house to summon help. "He asked for forgiveness and I forgive him, but he had to pay the consequences," said one of the women, Nikki Ansley, referring to Adams after witnessing his execution. She survived being raped and shot but continues to suffer painful injuries from the gun blast.

The Associated Press usually does not identify victims of rape, but Ansley has publicly acknowledged it and agreed to be interviewed. Now a nurse, she said standing a few feet from Adams and watching the drugs take his life was contrary to her instincts to want to aid others. "I help people in surgery," she said. "Standing in there, it was a feeling that I didn't want to help him." Her mother, Melinda Ansley, said Adams' apology could never erase the damage he caused. "It's not going to fix the hole in her back," she said, referring to her daughter's wound from the shooting.

Donald Vandever, the father of the slain man, said Adams' execution "doesn't really change anything." "As far as I'm concerned, it was way too easy on him," he said.

Adams and Cobb were arrested several hours after the crime, about 25 miles to the north in Jacksonville. Adams was identifiable because he had slipped off his mask after one of the women said she thought she knew him.

Cobb, who was 18 at the time of the holdup, was convicted and sentenced to die in a separate trial eight months before Adams, who was 19 at the time of the crime. Evidence tied the two to a string of robberies that happened around the same time. Cobb does not yet have an execution date set. At Adams' trial, Adams was portrayed as Cobb's follower. The two had met as ninth-graders at a boot camp.

Beunka Adams

ProDeathPenalty.com

On September 2, 2002, Candace Driver and Nikki Dement were working at BDJ's convenience store in Rusk, Texas. Kenneth Vandever, a customer described as mentally challenged who often "hung around" at BDJ's and helped take out the trash, was in the store with Candace and Nikki when two masked men entered the store. One of the men was armed with a shotgun and demanded money. The two men were later identified as Beunka Adams and his co-defendant, Richard Cobb.

After taking the money from the cash register, Adams demanded the keys to a Cadillac parked outside. After Candace produced her car keys, Adams forced her, along with Nikki and Kenneth, into the car. As Adams drove Candace's car, Nikki said, "I know you, don't I?" Adams said "Yes," and took his mask off. When they arrived at a remote pea patch near Alto, Cobb pointed the shotgun at Candace and Kenneth and Adams ordered them to get into the trunk of the Cadillac. Adams then took Nikki to a more secluded spot, away from the car, and sexually assaulted her. Later, Adams led Nikki back to the Cadillac and let Candace and Kenneth out of the trunk, but he tied the two women's arms behind their backs and made them kneel on the ground while the two robbers made their escape.

Adams and Cobb seemingly developed a plan to leave Kenneth untied so that he could free the women once Adams and Cobb were far enough away from the scene. Adams, however, believed that Kenneth was attempting to untie the women too soon, so he returned and ordered Kenneth to kneel behind the women. Candace heard Kenneth say that "it was time for him to take his medicine and that he was ready to go home." The women then heard a single gunshot. Adams asked, "did we get anybody?" And Candace said, "No." Shortly thereafter, a second shot was fired, and Kenneth cried out, "They shot me." Kenneth Vandever died from the gunshot wound. Seconds later, Candace heard another shot, and Nikki fell forward. Candace fell forward as well, pretending to be hit.

Adams approached Candace and asked her if she was bleeding. He was carrying the shotgun. Candace did not immediately answer in the hope that Adams would believe she had been killed. Adams then said, "Are you bleeding?" You better answer me. I'll shoot you in the face if you don't answer me." When Candace said, "No, no, I'm not bleeding," Adams shot her in the face, hitting her lip. Adams and Cobb then turned to Nikki, asking her the same questions. Adams kicked Nikki for about a minute, joined by Cobb. Then they picked her up by her hair and held a lighter to her face to see if she was still alive. Candace feigned death for fear of being shot again. She heard Cobb say about Nikki, "She's dead. Let's go." That was the only time that Candace ever heard Cobb speak.

After Adams and Cobb left, Candace got up and ran barefooted down the deserted country road and banged on the door of the first house she saw. After Candace had left, Nikki got up, and after walking in a different direction, found help at another house. Shortly after the women spoke with authorities, Cobb and Adams were located and arrested.

From a family history: Kenneth Vandever, for a change, had everything going for him. Kenneth was born in Dallas, a "normal, everyday, run-of-the-mill kid," to hear his dad Don talk. Don and his first wife divorced when Kenneth and his brother, Jerry, were in elementary school. When Kenneth graduated from Caddo Mills High in 1983, he had already managed the local Dairy Queen for two years, and he was mapping out a career as an architect. Less than a week after graduation, he began summer school at Eastfield Junior College in Dallas, making an A- and a B+ in the hardest of his core subjects. But on Labor Day, Kenneth fell asleep at the wheel of his car, and the ensuing accident resulted in massive head injuries. He lay in a coma for 10 days. With his memory and much of his intellect nearly gone, it was impossible for Kenneth to hold a job. The Vandevers moved to Rusk in 1986, specifically to open the auto parts business, something Don figured could support Kenneth when he was gone.

Don said Kenneth began spending evenings at BDJ's store after he learned that one of the store's female employees was working while pregnant. "He didn't like to see her mopping and sweeping, so he would do it," he said. "It gave him a feeling of being useful, and he liked that. "And he was upset when Sister Pate (the Rev. Jan Pate's mother) worked. He wanted to be there to help her." In reality, said Bri'Ann Driver, the store's office manager, Kenneth committed himself to being at the store any night when a lady was working.

Kenneth Vandever was more than just a customer to Pate - he was kind of like one of the family. He spent many days sipping coffee right outside their doors. In fact, he even told them he was their guardian angel. They never knew how true those words would be. Had Candice Driver and Nikki Ansley not played dead after being shot, they too may not have survived. Driver was able to recount those frightening moments to her boss and pastor. "She said while she was in the trunk of the vehicle," says Pate. "The only thing she could remember was brother Pate preaching last Sunday keep the name of Jesus on the end of your tongue and she said they could hear me all the way to Alto." It seems Vandever had felt threatened by his murderers before. His parents told police Adams and a white male had been to their house for some unknown reason, now no one will ever no why. Richard Cobb also received a death sentence.

County killer Beunka Adams loses state appeal

By Kelly Young - Jacksonville Daily Progress

June 30, 2007

The Texas Court of Criminal Appeals unanimously upheld the August 2004 capital murder conviction of Beunka Adams Wednesday.

Adams and his accomplice, Richard Cobb, both Cherokee County residents, were sentenced to death for the murder of Kenneth Wayne Vandever in September 2002. Cobb’s appeal came before the state court of appeals in February of 2007, and was likewise denied.

Adams was sentenced to death by lethal injection for what began as an aggravated robbery and culminated in the execution-style killing of Vandever. Cobb and Adams robbed the BDJ’s convenience store in Rusk and kidnapped Vandever (a customer) and two store clerks, Candice Driver and Nikki Ansley Dement.

Taking the keys to Driver’s vehicle, the pair then drove their three captives to a remote field near Alto, where Adams sexually assaulted one of the girls. The victims were made to kneel, and then all three were shot and left for dead. Both females survived their wounds, but Vandever, a mentally challenged 37-year-old, did not.

Beckworth and then Assistant District Attorney David Sorrell represented the state at trail, and Beckworth again represented the state on direct appeal.

Adams’ attorney at appeal, Stephen Evans, presented ten points of error in his client’s criminal case. The court voted 9 to 0 that the objections held no merit. The court affirmed both the trial court’s judgment and the sentence of death.

Both men still have other appeals available to them. Currently the ruling on the Findings of Fact and Conclusions of Law in the state writ of habeas corpus is pending for both Adams and Cobb.

“If relief is denied on the state writ of habeas corpus, the trial court will then set an execution date. That process could take between three and six months. At that point, Adams will file a federal writ of habeas corpus,” said District Attorney Elmer Beckworth. “When the execution date is set, the federal writ will stay that, so we are still looking at several years before the execution.”

Beckworth said that if the appeals process for Adams and Cobb follows the same track as other capital punishment cases he has worked, execution should take place approximately seven to nine years after the offense.

“The death sentence was warranted in these cases due to the nature of the crimes. They committed aggravated robbery, aggravated kidnapping, aggravated sexual assault, attempted murder and murder. In addition, they committed two aggravated robberies in the week prior to the murder,” Beckworth said.

Both Adams and Cobb are currently being held on death row at the Polunsky Unit in Livingston, Texas. Adams was 19-years-old at the time of the murder. Cobb was 18.

Adams v. State, Not Reported in S.W.3d, 2007 WL 1839845 (Tex. Crim. App. 2007) (Direct Appeal)

Background: Defendant was convicted after a jury trial in the 2nd Judicial District Court, Cherokee County, of capital murder, and he was sentenced to death.

Holdings: On automatic appeal, the Court of Criminal Appeals, Cochran, J., held that: (1) evidence was legally and factually sufficient to prove that defendant participated as a party in shooting of victim; (2) evidence in punishment phase was sufficient to support finding that defendant was a future danger to society; and (3) defendant failed to establish prima facie case of discrimination in the composition of county's grand juries. Affirmed.

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

In August 2004, a jury convicted appellant of capital murder.FN1 Based on the jury's answers to the special issues,FN2 the trial judge sentenced appellant to death.FN3 Direct appeal to this Court is automatic.FN4 After reviewing appellant's ten points of error, we find them to be without merit. Therefore, we affirm the trial court's judgment and sentence of death.

FN1. Tex. Penal Code Ann. § 19.03(a). FN2. Tex.Code Crim. Proc. art. 37.071, §§ 2(b) & (e). FN3. Tex.Code Crim. Proc. art. 37.071, § 2(g). FN4. Tex.Code Crim. Proc. art. 37.071, § 2(h).

Facts

On September 2, 2002, Candace Driver and Nikki Dement FN5 were working at BDJ's convenience store in Rusk, Texas. Kenneth Vandever, a customer described as mentally challenged who often “hung around” at BDJ's and helped take out the trash, was in the store with Candace and Nikki when two masked men entered the store. One of the men was armed with a shotgun and demanded money. The two men were later identified as appellant and his co-defendant, Richard Cobb. FN5. Between the time of the offense and the time of trial, Nikki Ansley married, taking the name Nikki Ansley Dement. She is referred to throughout this opinion by her married name, Nikki Dement.

After taking the money from the cash register, appellant demanded the keys to a Cadillac parked outside. After Candace produced her car keys, appellant forced her, along with Nikki and Kenneth, into the car. As appellant drove Candace's car, Nikki said, “I know you, don't I?” Appellant said “Yes,” and took his mask off. When they arrived at a remote pea patch near Alto, Cobb pointed the shotgun at Candace and Kenneth and appellant ordered them to get into the trunk of the Cadillac. Appellant then took Nikki to a more secluded spot, away from the car, and sexually assaulted her. Later, appellant led Nikki back to the Cadillac and let Candace and Kenneth out of the trunk, but he tied the two women's arms behind their backs and made them kneel on the ground while the two robbers made their escape. Appellant and Cobb seemingly developed a plan to leave Kenneth untied so that he could free the women once appellant and Cobb were far enough away from the scene. Appellant, however, believed that Kenneth was attempting to untie the women too soon, so he returned and ordered Kenneth to kneel behind the women. Candace heard Kenneth say that “it was time for him to take his medicine and that he was ready to go home.”

The women then heard a single gunshot. Appellant asked, “Did we get anybody?” And Candace said, “No.” Shortly thereafter, a second shot was fired, and Kenneth cried out, “They shot me.” Kenneth Vandever died from the gunshot wound. Seconds later, Candace heard another shot, and Nikki fell forward. Candace fell forward as well, pretending to be hit. Appellant approached Candace and asked her if she was bleeding. He was carrying the shotgun. Candace did not immediately answer in the hope that appellant would believe she had been killed. Appellant then said, “Are you bleeding? You better answer me. I'll shoot you in the face if you don't answer me.” When Candace said, “No, no, I'm not bleeding,” appellant shot her in the face, hitting her lip.

Appellant and Cobb then turned to Nikki, asking her the same questions. Appellant kicked Nikki for about a minute, joined by Cobb. Then they picked her up by her hair and held a lighter to her face to see if she was still alive. Candace feigned death for fear of being shot again. She heard Cobb say about Nikki, “She's dead. Let's go.” FN6 That was the only time that Candace ever heard Cobb speak. After appellant and Cobb left, Candace got up and ran barefooted down the deserted country road and banged on the door of the first house she saw. FN6. In fact, Nikki had not died. She was life-flighted to a hospital, but she had suffered broken ribs, a broken shoulder blade, and a collapsed lung. The shotgun blast had torn away a 15 by 12 centimeter “divot” of skin and tissue on her left shoulder blade.

Sufficiency of the Evidence

In his first point of error, appellant alleges that the evidence at trial was neither legally nor factually sufficient to support the capital-murder verdict because the State failed to prove that he intentionally and personally shot and killed Kenneth Vandever. He notes that neither Candace nor Nikki actually saw who pulled the trigger of the shotgun when Kenneth was killed. FN7. Appellant arguesNo witness put the gun in [appellant's] hand during the killing of Vandever, nor was the weapon found with the possession or control of [appellant], nor was any comment even overheard by either [Candace or Nikki] that could be induced to conclude that [appellant] shot Vandever.

When deciding whether evidence is legally sufficient to support a conviction, we assess all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.FN8 Evidence is factually insufficient when, although legally sufficient, it is “so weak” that the verdict “seems clearly wrong or manifestly unjust,” or it is “against the great weight and preponderance of the evidence.” FN9 FN8. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). FN9. Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex.Crim.App.2006).

Appellant was indicted for intentionally causing the death of Kenneth Vandever by shooting him with a firearm in the course of committing or attempting to commit (1) robbery or kidnaping of Candace Driver, Kenneth Vandever, or Nikki Dement, or (2) aggravated sexual assault of Nikki Dement. The charge authorized the jury to convict appellant as a principal or as a party.

The jury heard testimony from both Candace Driver and Nikki Dement that from the time appellant and Cobb entered BDJ's convenience store until they left, appellant was in charge, giving orders, and threatening the victims with the shotgun. Appellant demanded the money from the register at BDJ's as well as the keys to the car parked outside. Appellant ordered Candace and Kenneth into the trunk of the car, and appellant sexually assaulted Nikki. Later, appellant forced the women to kneel with their hands tied behind their backs. Appellant took charge of his and Cobb's escape from the scene, but then he returned and ordered Vandever to kneel as well. When Candace heard the first shot, appellant asked if anyone was hit. When she said no, the shot that killed Kenneth was fired. Candace testified that when appellant approached her after Nikki was shot, he was holding the shotgun, and she said that it was appellant who fired the shotgun when he learned that she was not bleeding. Nikki testified that appellant lifted her by her hair and kicked her to find out if she was still alive.

The jury also heard testimony from Lavar Bradley, who had been incarcerated with appellant in the Cherokee County Jail, that appellant bragged that he had fired the shotgun “because Cobb didn't have the balls to do it.”

From this evidence, the jury could have reasonably inferred that appellant fired the shot that killed Kenneth Vandever. Or, because the jury was charged on the law of parties, the jury could have found that appellant, acting with the intent that Cobb kill Kenneth, aided and assisted his co-defendant in that murder.FN10 While the State's evidence may not conclusively show that appellant fired the shot that killed Kenneth, at the very least, the evidence, viewed in the light most favorable to the verdict, established beyond a reasonable doubt that appellant participated as a party. Thus, the evidence was legally sufficient to support the jury's verdict. Furthermore, the evidence is factually sufficient because it is not so weak that the verdict is clearly wrong and manifestly unjust, nor is it against the great weight and preponderance of the evidence. Appellant makes no separate argument about the factual sufficiency of the evidence except to reiterate that no witness and no testimony conclusively demonstrated that the hand that fired the fatal shot at Kenneth was his own. But that is not the standard by which either legal or factual sufficiency is judged because the jury could find appellant guilty if he either fired the fatal shot himself or assisted his co-defendant in committing the murder. Appellant fails to make any argument that he was not involved in the robbery-murder or that there was legally or factually insufficient evidence that he intended Kenneth's death and assisted Cobb in committing that act. Point of error one is overruled. FN10. Rabbani v. State, 847 S.W.2d. 558-59 (Tex.Crim.App.1992).

Admission of Evidence

In points of error two through four, appellant complains of the admission, during the punishment phase, of testimony concerning extraneous violent acts.FN11 Appellant argues that the admission of this testimony violated both his Sixth Amendment right to confrontation and the provisions of Article 37.071, § 2(a).

FN11. Appellant does not specify precisely what evidence should have been excluded. He claims that “the State presented certain witnesses, that through the course of their testimony, related facts intimating extraneous acts, through reference to records and documents, in particular, the material proffered in the course of testimony by Dr. Tynus McNeel (R.R. Vol.61, pg.80) and Mr. A.P. Merillat (R.R. Vol.63, pg.118).

To preserve error for appellate review, a party must make a timely and specific objection or motion at trial, and there must be an adverse ruling by the trial court.FN12 The rules of evidence also require an objection to a ruling admitting evidence.FN13 Failure to preserve error at trial forfeits the later assertion of that error on appeal.FN14 In fact, almost all error-even constitutional error-is forfeited if a party fails to object. FN15 We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence.FN16 This is true even though the error may concern a constitutional right of the defendant.FN17

FN12. Tex.R.App. P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App.1999). FN13. Tex.R. Evid. 103(a)(1). FN14. Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999). FN15. Tex.R.App. P. 33.1(a); Aldrich v. State, 104 S.W.3d 890, 894-95 (Tex.Crim.App.2003). FN16. Saldano v. State, 70 S.W.3d 873, 889 & nn 73-74 (Tex.Crim.App.2002). FN17. Id.

Appellant admits that he did not object to the admission of this evidence at trial, and he does not argue that his current complaints fall within any exceptions to the contemporaneous objection rule. As a result, appellant has forfeited appellate review of any error associated with the admission of the complained-of testimony. Points of error two through four are overruled.

Future Dangerousness

In his fifth point of error, appellant claims that the evidence is insufficient to support the jury's affirmative answer to the future-dangerousness punishment issue.FN18 Appellant asserts that the State's evidence “establishes nothing more than appellant was a troubled child who acted out by getting [sic] and had trouble adhering to the management of the juvenile authority.” FN18. Tex.Code Crim. Proc. art. 37.071, § 2(b)(1).

A jury may consider a variety of factors when determining whether a defendant will pose a continuing threat to society.FN19 We must view all of the evidence in the light most favorable to the jury's finding and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found beyond a reasonable doubt that the answer to the future dangerousness issue was “yes.” FN20

FN19. See Wardrip, 56 S.W.3d at 594 n. 7; Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987). FN20. Ladd v. State, 3 S.W.3d 547, 557-58 (Tex.Crim.App.1999).

The State introduced evidence that, in the days preceding the instant offense, appellant participated in two aggravated robberies with Cobb. During those offenses, appellant had remained outside, and no one was physically hurt or injured. Following those offenses, appellant kept the shotgun and shells used in the robberies. Both appellant and Cobb planned the robbery at BDJ's. Unlike the other two robberies, appellant decided to go into the store with Cobb at BDJ's.

The jury heard that during this robbery, appellant was the leader. He did nearly all the talking, including commanding Cobb and giving orders to the three victims. The jury also heard that it was appellant who initiated the kidnaping and was in charge during that time. At the scene of the sexual assault and shootings, appellant was again doing all of the talking and giving orders. Candace testified that appellant threatened to kill her if she did not do what he said. Nikki testified that it was appellant who sexually assaulted her. The jury also heard that it was appellant who forced all three victims to kneel. After the first shot was fired, appellant questioned whether anyone had been hit, and it was appellant who fired the shotgun again when Candace said she was not bleeding. Appellant then began kicking Nikki in the chest so hard that he fractured her ribs and then lifted her up by her pony-tailed hair to see if she was still alive.

The State also presented evidence that appellant was in charge of Cobb's and his escape from the scene of the shootings. While his statements to law enforcement downplayed his role, appellant later bragged about the shooting to another jail inmate. Further, the State produced evidence of appellant's bad character as a law-abiding citizen. Additionally, the State presented expert psychiatric testimony that appellant fit the profile of a person for whom there is a probability of future dangerousness. A rational jury could determine from this evidence that, beyond a reasonable doubt, there was a probability that appellant would commit criminal acts of violence in the future so as to constitute a continuing threat to society. Point of error five is overruled.

Sufficiency of the Evidence Regarding the Mitigation Issue

In his sixth point of error, appellant argues that the evidence is insufficient to support the jury's negative answer to the mitigation special issue. This Court, however, does not review the jury's finding on the mitigation issue for sufficiency of the evidence because “the determination as to whether mitigating evidence calls for a life sentence is a value judgment left to the discretion of the fact finder.” FN21 Appellant's sixth point of error is overruled. FN21. Green v. State, 934 S.W.2d 92, 106-07 (Tex.Crim.App.1996); Colella v. State, 915 S.W.2d 834, 845 (Tex.Crim.App.1995); Hughes v. State, 897 S.W.2d 285, 294 (Tex.Crim.App.1994).

Constitutionality of Article 37.071

In his seventh point of error, appellant argues that the Texas death-penalty scheme violates the Eighth Amendment prohibition against cruel and unusual punishment because it allows jurors too much discretion in deciding who receives the death penalty and who does not. This Court has previously considered and rejected this claim, and appellant has given us no reason to reconsider it here.FN22 The seventh point of error is overruled. FN22. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999); McFarland v. State, 928 S.W.2d 482, 519 (Tex.Crim.App.1996).

In his eighth point of error, appellant alleges that the Texas death-penalty scheme is unconstitutional under Penry v. JohnsonFN23 because the mitigation issue “sends mixed signals to the jury thereby rendering any verdict reached in response to that special issue intolerably unreliable.” Penry is distinguishable because, in that case, the jury received a judicially crafted nullification instruction.FN24 Here, the jury received the statutorily prescribed question required under Texas law, which does not contain a nullification instruction.FN25 No error exists.FN26 The eighth point of error is overruled.

FN23. 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). FN24. Penry, 532 U.S. at 789-90. FN25. Tex.Code Crim. Proc. art. 37.071, § 2(e)(1). FN26. See McFarland, 928 S.W.2d at 488-89.

In his ninth point of error, appellant argues that Article 37.071 is unconstitutional because it places the burden on him to prove that there are mitigating circumstances rather than requiring the State to prove insufficient mitigating circumstances beyond a reasonable doubt. This Court has previously rejected this claim, and appellant has given us no reason to revisit the issue here.FN27 The ninth point of error is overruled. FN27. See Perry v. State, 158 S.W.3d 438, 446-48 (Tex.Crim.App.2004), cert. denied, 546 U.S. 933, 126 S.Ct. 416, 163 L.Ed.2d 317 (2005); Blue v. State, 125 S.W.3d 491, 500-01 (Tex.Crim.App.2003).

Challenge to the Grand Jury Array

In his tenth point of error, appellant complains of the trial court's refusal to quash the indictment against him because the grand jury allegedly was not comprised of a representative cross-section of Cherokee County citizens. In his motion to quash, appellant alleged that the grand jury that handed down the indictment was comprised of twelve non-Hispanic citizens and as such its composition was not representative of the population of Cherokee County, which is 8.9 percent Hispanic. Appellant argues that he has presented a prima facie case of discrimination because his evidence shows that, over the course of the statistical period presented, approximately sixteen grand jurors should have been Hispanic, but that the actual number was considerably less. FN28. See Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

During the hearing on his motion to quash, appellant presented evidence consisting of Cherokee County grand jury lists, census materials, and telephone books for the preceding ten years prior to his trial. However, this evidence showed no definitive demographic conclusions about the number of Hispanics who served on grand juries during that time.FN29 In fact, testimony during the hearing showed that several grand jurors whom appellant believed were non-Hispanic were known to be Hispanic by either the district clerk or the district judge. FN29. See Ovalle v. State, 13 S.W.3d 774, 779-80 & n. 22 (Tex.Crim.App.2000).

While the record does show that no one with an identifiably Hispanic surname sat on the grand jury that indicted appellant, we have previously noted that relying on surnames alone is not a reliable indication of the heritage of individuals chosen for grand jury service.FN30 However, even if we were to rely on identifiably Hispanic surnames, as appellant suggests, his argument would fail. In the two years before appellant was indicted, ten percent of the grand jurors in Cherokee County had identifiably Hispanic surnames. In the eight most recent grand juries, over seven percent of the grand jurors had identifiably Hispanic surnames. Census records show that the Hispanic population of Cherokee County during this time ranged from 7.9 to 8.9 percent. FN30. Id.

While the grand jury that indicted appellant contained no grand jurors with identifiable Hispanic surnames, after examining the records of recent earlier grand juries, we are not able to conclude that the absence of identifiable Hispanics on appellant's grand jury was caused by purposeful discrimination. The tenth point of error is overruled. We affirm the judgment of the trial court.

Cobb v. State, Not Reported in S.W.3d, 2007 WL 274206 (Tex. Crim. App. 2007) (Direct Appeal)

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

Appellant was convicted in January 2004, of capital murder. Tex. Penal Code § 19.03(a). Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced Appellant to death. Art. 37.071, § 2(g). FN1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). After reviewing Appellant's eight points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment and sentence of death.

Appellant argues his first three points of error together. In point of error one, he asserts that Article 37.071 violates the Fourteenth Amendment to the United States Constitution because it “implicitly put the burden of proving the mitigation special issue on appellant rather than requiring a jury finding against appellant on that issue under the beyond a reasonable doubt standard.” In point of error two, he alleges that the trial court erroneously overruled his motion to hold the statute unconstitutional. In point of error three, he contends that the trial court erred “by failing to instruct the jury at punishment that they could only answer the mitigation special issue ‘no’ if the State proved a negative answer [to] that issue beyond a reasonable doubt.”

Appellant cites Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), in support of his claims. He asserts that these cases establish that the State should bear the burden of proving beyond a reasonable doubt that there is insufficient mitigation evidence to support a life sentence. We have previously addressed and rejected this argument. Resendiz v. State, 112 S.W.3d 541, 550 (Tex.Crim.App.2003); Rayford v. State, 125 S.W.3d 521, 534 (Tex.Crim.App.2003). Points of error one, two, and three are overruled.

In point of error four, Appellant argues that Article 37.071 violates the Eighth Amendment prohibition against cruel and unusual punishment because it allows the jury too much discretion and lacks the minimal standards and guidelines necessary to avoid an arbitrary and capricious imposition of the death penalty. We have previously addressed and rejected this claim, and we decline to revisit the issue. Jones v. State, 119 S.W.3d 766, 790 (Tex.Crim.App.2003); Moore v. State, 999 S.W.2d 385, 408 (Tex.Crim.App.1999). Point of error four is overruled.

In point of error five, Appellant complains that Article 37.071 violates the Eighth Amendment as interpreted in Penry v. Johnson, 532 U.S. 782 (2001), because the mitigation special issue sends “mixed signals” to the jury. We rejected this claim in Jones. 119 S.W.3d at 790. The mitigation special issue does not send “mixed signals” because it permits the jury to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant. Perry v. State, 158 S.W.3d 438, 448-449 (Tex.Crim.App.2004). Point of error five is overruled.

In point of error six, Appellant asserts that the trial court “erred in overruling the motion to quash the indictment because the grand-jury members were discriminatorily or otherwise improperly selected.” See Castaneda v. Partida, 430 U.S. 482 (1977). Challenges to the composition of grand juries are provided for in Article 19.27, which states: Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. A person confined in jail in the county shall upon his request be brought into court to make such challenge.

We have interpreted Article 19.27 to mean that the array must be challenged at the first opportunity, which ordinarily means when the grand jury is impaneled. Muniz v. State, 672 S.W.2d 804, 807 (Tex.Crim.App.1984), citing Muniz v. State, 573 S.W.2d 792 (Tex.Crim.App.1978). If it is impossible to challenge the array at that time, then the array may be attacked in a motion to quash the indictment before trial commences. Id. However, if a defendant had an opportunity to challenge the array when it was impaneled and failed to do so, he may not challenge it at a later date. Id.

On September 3, 2002, Appellant was incarcerated in the county jail and had counsel appointed for him. On September 23, 2002, the grand jury was impaneled, and Appellant was indicted. The prosecutor verbally notified counsel of the date that the case would be presented to the grand jury. No challenge was made to the array on or before September 23, 2002. Appellant was in custody, represented by counsel, and aware, at the time the grand jury was impaneled, that he was to be the object of its scrutiny. See Muniz, 573 S.W.2d at 796. Appellant's later challenge to the array in his motion to quash the indictment was untimely. Point of error six is overruled.

In point of error seven, Appellant argues that the trial court erroneously excluded the testimony of two defense expert witnesses, Dr. Seth Silverman and Dr. Joan Mayfield, because their testimony was relevant to his duress defense. A trial court's admission or exclusion of evidence is subject to an abuse of discretion standard on appellate review. Sells v. State, 121 S.W.3d 748, 766 (Tex.Crim.App.2003). If the trial court's decision was within the bounds of reasonable disagreement we will not disturb its ruling. Id.

Section 8.05 of the Texas Penal Code provides for the affirmative defense of duress if “the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.” TEX. PENAL CODE § 8.05(a). “Compulsion” exists “only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” TEX. PENAL CODE § 8.05(c). Appellant argued at trial that he shot the victim because he was acting under duress from his co-defendant, Beunka Adams. Appellant testified that Adams told him, “[I]f only one does the shooting then only one is leaving,” and he believed that Adams would kill him if he did not do as he was told.

Appellant made bills of exception presenting the proposed testimony of Silverman and Mayfield. Silverman would have testified that Appellant was “more suggestible” to outside forces and less able “to consider other options” than an “average person” because he was neglected by his chemically dependent mother as a child and suffered from depression and chemical dependency as an adult. Mayfield would have testified that Appellant had cognitive weaknesses that were consistent with fetal-alcohol syndrome; thus, he was more susceptible to compulsion and less likely to consider other alternatives than an average person.

The State argued at trial that compulsion was measured by an objective standard, rather than a subjective standard, and thus “any testimony from an expert that this individual ... is more likely to be compelled than the average person simply is not relevant or material to the issues in this case as far as duress is concerned.” TEX. R. EVID. 401, 402; TEX. PENAL CODE § 8.05(c). The trial court agreed that the duress defense was “based upon a person of reasonable firmness” and was “not based upon a particular Defendant and the particular Defendant['s] susceptibility to influence.” The trial court sustained the State's objection and refused to allow “any testimony that would relate to whether or not this Defendant is more susceptible to influence or duress than the average ordinary person of reasonable firmness.”

The trial court did not abuse its discretion. The inquiry is whether a “person of reasonable firmness” would be incapable of resisting the pressure to engage in the proscribed conduct, not whether this particular defendant could have resisted in light of cognitive weaknesses, depression, chemical dependency, and the neglect he suffered as a child. It is an objective inquiry rather than a subjective one. See United States v. Willis, 38 F.3d 170, 176 (5th Cir.1994); Wood v. State, 18 S.W.3d 642, 651 n. 8 (Tex.Crim.App.2000); Kessler v. State, 850 S.W.2d 217, 222 (Tex.App.-Fort Worth 1993, no pet.). Appellant also argues that the expert testimony of Silverman and Mayfield was admissible to show his state of mind, citing Fielder v. State, 756 S.W.2d 309 (Tex.Crim.App.1988). However, Fielder is not applicable here because this is not a case of family violence in which a defendant raises self-defense. Id.; Art. 38.36(b)(1) and (2). The trial court did not abuse its discretion in excluding the testimony. Point of error seven is overruled.

In point of error eight, Appellant claims that the trial court erroneously denied his motion for new trial, which was based on allegations of prosecutorial misconduct. Appellant alleged in his motion that the State failed to timely disclose evidence that was necessary to effectively cross-examine and impeach State's witnesses William Thompsen and Nickie Dement. Thompsen, who was incarcerated in the Cherokee County Jail at the same time as Appellant, testified at trial that Appellant told him that he planned to falsely place the blame for the instant offense on Adams, “[s]aying that [Adams] had threatened him, that if he didn't take part in the killing that he wouldn't live to see the crime either.” When defense counsel asked Thompsen on cross-examination if he received any benefit as a result of his cooperation in Appellant's case, he replied: “No, sir, I didn't. There was no deal made whatsoever.” Dement testified that Appellant and Adams robbed the convenience store where she and Candace Driver worked and kidnapped her, Driver, and customer Kenneth Vandever, the victim in the instant case. She testified that they were taken to a second location, where Adams sexually assaulted her, and Adams and Appellant shot her, Driver, and Vandever. She described the ordeal in detail and explained Appellant's role in the events that transpired.

Appellant argued in his motion for new trial that the prosecutor failed to disclose: (1) “the full extent of the arrangements and agreements made” concerning the testimony of Thompsen, and (2) the fact that Dement “was in the process of writing a book for publication concerning this offense” and “was scheduled to appear for a taping of the ‘Montel Williams' Nationally Broadcast Television Show soon after the conclusion of the trial.” Under Brady v. Maryland, 373 U.S. 83 (1963), a prosecutor has an affirmative duty to turn over material, exculpatory evidence. Impeachment evidence is included within the scope of the Brady rule. United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence withheld by a prosecutor is “material” if there is “a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.” Id. at 682. A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” Id. Thus, a due-process violation has occurred if a prosecutor: (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a probability of a different outcome. Id.; Thomas v. State, 841 S .W.2d 399, 404 (Tex.Crim.App.1992).

At the hearing on the motion for new trial, Appellant introduced into evidence two letters pertaining to Thompsen. One letter was written by Thompsen to the prosecutor, Elmer C. Beckworth, Jr., on December 26, 2002. In this letter, Thompsen referenced a meeting with Beckworth and investigator Randy Hatch, stating: “At our meeting in Mr. Hatch's office on 12-19-02 you agreed to completely clear this charge as well as try to have the parole hold lifted so I could get released.” Another letter was written by Beckworth on January 10, 2003. Although it was addressed “to whom it may concern,” Beckworth testified that it was sent to Thompsen's parole officer, Roy Shamblin. The letter stated: “Please be advised that this office will not seek prosecution on [William Thompsen] for the offense of Unlawful Possession of Firearm by Felon. If anything further is needed please contact this office.”

Defense counsel testified that the State provided him with the letter from Beckworth at the end of the guilt phase of the trial, after Thompsen had already testified. Beckworth explained that he first became aware that defense counsel did not have possession of that particular letter “on the morning before final arguments.” He discovered that the letter had inadvertently been placed in Adams' file and gave it to defense counsel before closing arguments. On March 25, 2004, after Appellant's trial, Beckworth also discovered that the letter from Thompson to Beckworth had inadvertently been placed in Adams' file and immediately faxed it to defense counsel.

Beckworth testified that the State did not make any deal with Thompsen regarding his charge for unlawful possession of a firearm by a felon. Forrest Phifer, Thompsen's attorney, also testified that he was present at the meeting with Hatch and Beckworth and that no deals were made in exchange for Thompsen's testimony. Phifer explained that Thompsen had not been indicted for the charge, and it was Phifer's standard practice to file a motion for an examining trial in cases without indictments. Both Phifer and Beckworth testified that cases in Cherokee County are routinely dismissed at the magistrate level when a defense attorney files a motion for an examining trial. Beckworth testified that he did not prosecute Thompsen on the charge, not because of any deal for his testimony, but because the case was “just not prosecutable,” explaining as follows:

With reference to Mr. Thom[p]sen's case the offense report indicated that he was riding a four wheeler on a location and law enforcement found him in possession of a firearm, that he was-indicated to them that he was going to do some target practicing in a field or in the woods somewhere. My experience in over 20 years of felony prosecution the citizens of Cherokee County and East Texas generally are not real fond of weapons offenses, very difficult to get a jury in a felon in possession with a firearm. And in situations where someone is hunting the weapon is in their home or something like this where it's target practicing and there is no other crimes involved or activities indicating a danger situation it is very difficult to get a conviction and most of those cases are not prosecuted and are declined on the basis of insufficient evidence.

In this particular case, parole was notified that we were not going to prosecute, some of that took place through Mr. Hatch, and unknown to me until a point shortly before trial at which time the Defense was made aware of it, I believe Mr. Hatch did ask Mr. Shamblin [for] leniency for [Thompsen] and I believe that was developed by the defense during the trial. The record reflects that the defense was able to argue at trial that Thompsen received a benefit in exchange for his testimony. When cross-examined at trial by defense counsel, Thompsen admitted that the State never showed up for the examining trial and that Hatch made a phone call to his parole officer on his behalf. Defense counsel also made the following statements in this regard during his closing argument:

Mr. Beckworth wants to talk about Mr. Thompsen. Mr. Thompsen got a benefit. Randy Hatch called his parole officer and asked for leniency. Mr. Thompsen got another benefit. When his examining trial came up the State didn't even show up so all charges against him were dismissed.

Appellant has failed to show that the letters pertaining to Thompsen were “material” as required by Brady. Thompsen, his attorney, and the prosecutor all denied that there was a deal in exchange for his testimony. Thompsen, however, acknowledged at trial that the State asked his parole officer for leniency and ultimately failed to prosecute him for the unlawful possession of a firearm by a felon charge. Even if the evidence were material, the jury was aware of the same matters referenced in the letters and was able to take this into consideration in their deliberations at trial. Thus there was no reasonable probability that the outcome of the trial would have been different if defense counsel had known about the letters earlier. Bagley, 473 U.S. at 682.

Nickie Dement testified at the hearing on the motion for new trial that she was not writing a book about the incident and that she had never indicated to anyone that she planned to write a book. She testified that she contacted the Montel Williams Show via telephone “a week or so after trial had begun” and that she appeared on the show “[a] week or two after the trial.” Defense counsel testified that he did not know about Dement's appearance on the show “until after the close of the testimony” in Appellant's trial. Beckworth testified as follows:

I had no knowledge either at the time of trial or since then concerning Nickie Dement writing any kind of book concerning this experience. The only information I had concerning an appearance on the Montel Williams' Show occurred I think the Friday evening after the first week of trial and Ms. Dement's father contacted me indicating that she might appear on the Montel Williams' Show and what he told me was that it was concerning something about the job's [sic] people get and how they were after they are a victim of crime and how that alleviates it.

During the time that the Jury was out on punishment I believe I spoke further with the Ansley family and discovered that the Montel Williams' Show may be more detailed about it, but that it was not going to take place until a week or two later. I did express concern about it but my concern was related to jury selection in the Adams case.

Appellant has not shown that Dement's planned appearance on the Montel Williams Show was “material” evidence. He states in his brief that he could have used this evidence to argue “that she was, perhaps, embellishing her testimony so as to make a greater impact, or notoriety, concerning her upcoming television appearance.” Appellant, however, has failed to show that Dement actually embellished her testimony in any way. Further, although Dement initiated contact with the television show staff, she testified that they already “knew the story” without her telling them about it. There is no reasonable probability that the outcome would have been different if the State had informed defense counsel during trial about Dement's planned television show appearance. Point of error eight is overruled.

We affirm the judgment of the trial court.

Adams v. Thaler, 421 Fed.Appx. 322 (5th Cir. 2011) (Habeas)

Background: After his death sentence for capital murder was affirmed, 2007 WL 1839845, and his state habeas applications dismissed, petitioner filed for a federal writ of habeas corpus. The United States District Court for the Eastern District of Texas, 2010 WL 2990967, denied the application. Petitioner appealed.

Holdings: The Court of Appeals held that: (1) state court determination that trial counsel's failure to introduce testimony of codefendant was not ineffective assistance of counsel was not unreasonable application of federal law; (2) petitioner failed to overcome procedural default on grounds of cause for default and actual prejudice; (3) state court determination that appellate counsel's failure to challenge extraneous victim impact testimony was not ineffective assistance of counsel was not unreasonable application of federal law; and (4) state court determination that state death penalty statute did not violate Eighth or Fourteenth Amendments was not unreasonable application of federal law. Affirmed.

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.

Habeas petitioner Beunka Adams was convicted and sentenced to death in Texas state court for the capital murder of Kenneth Vandever. Adams filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Texas pursuant to 28 U.S.C. § 2254. The district court denied Adams's petition but granted Adams a certificate of appealability on all of his claims. For the reasons detailed below, we affirm the judgment of the district court denying Adams's petition.

BACKGROUND

On September 2, 2002, Petitioner Beunka Adams, along with Richard Cobb, robbed a convenience store in Rusk, Texas. At the time of the robbery, Candace Driver and Nikki Dement were working in the store, and the only customer present was Kenneth Vandever. Vandever, who was described as mentally challenged, often “hung around” the store, helping clean and take out the trash. At approximately 10:00 p.m., Adams and Cobb, wearing masks, entered the store. Cobb carried a 12–gauge shotgun. Adams ordered Driver, Dement, and Vandever to the front of the store and demanded the money in the register. After the women complied, Adams demanded the keys to a Cadillac parked in front of the store. Driver, who had borrowed the car to drive to work, retrieved the keys from the back room.

Adams then ordered the three victims into the Cadillac with Adams and Cobb, and Adams drove toward Alto, Texas. During the drive, Adams removed his mask after Dement recognized him because they had gone to school together. Adams then repeatedly told the victims that they would not be hurt, and that he just needed money for his children. At some point, Adams turned off the road and drove the vehicle into a field that was described as a pea patch.

The group got out of the car, and Adams ordered Driver and Vandever into the trunk. Adams then escorted Dement away from the car and sexually assaulted her. After leading Dement back to the Cadillac, Adams released Driver and Vandever from the trunk, and he told the victims that he and Cobb were waiting for Adams's friends to arrive. Sometime thereafter, Adams decided to let the three victims walk away. He reconsidered a few moments later, however, and Driver stated that Adams feared the victims would reach a house before he and Cobb could get away. Adams and Cobb then made the three victims kneel on the ground. He tied the women's hands behind their backs using their shirts but left Vandever unrestrained. The victims were unable to remember who was carrying the shotgun through these events.

Adams and Cobb stood behind the victims for several minutes, and the victims could tell they were discussing something, though they were out of audible range. The women then heard a single shot. Adams asked, “Did we get anybody?” and Driver answered, “No.” They heard a second shot a few moments later, and Vandever cried out, “They shot me.” A third shot struck Dement. When Dement fell forward, Driver fell forward as well, pretending to be hit. Adams, carrying the shotgun, approached Driver and asked if she was bleeding. Driver did not answer, hoping the men would believe she was dead. When Driver did not immediately answer, Adams said, “Are you bleeding? You better answer me. I'll shoot you in the face if you don't answer me.” Driver answered, “No, no, I'm not bleeding.” Adams then fired the shotgun right next to her face, and, though the pellets only hit her lip, she did not move, pretending to be dead.

Adams and Cobb turned to Dement and asked her the same questions. She feigned death, and the men started kicking her when she did not answer. Adams then grabbed Dement's hair and held up her head while one of the men shined a lighter on her face to see if she was still alive. Dement continued feigning death, and Driver heard Cobb say, “She's dead. Let's go.” That was the only time any of the victims heard Cobb speak. After Adams and Cobb left, Driver and Dement, each fearing that the other was dead, got up and ran in separate directions. Driver had minor injuries, but Dement had been shot directly in the left shoulder. By the time police arrived at the pea patch, Vandever, who had been shot in the chest, had died from the shotgun wound.

A grand jury indicted Adams for the capital murder of Kenneth Vandever pursuant to Texas Penal Code § 19.03(a)(2).FN1 Adams pleaded not guilty, and the case was tried before a jury. The jury found Adams guilty of capital murder and sentenced him to death. FN1. In 2002, section 19.03(a)(2) provided, “A person commits [capital murder] if he commits murder as defined under Section 19.02(b)(1) and ... the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation.” Tex. Penal Code Ann. § 19.03(a)(2) (West 2003). Section 19.02(b)(1) provided, “A person commits [murder] if he ... intentionally or knowingly causes the death of an individual.” Tex. Penal Code Ann. § 19.02(b)(1) (West 2003).

The Texas Court of Criminal Appeals (TCCA) affirmed Adams's conviction and sentence on direct appeal. Adams v. State, No. AP–75023, 2007 WL 1839845 (Tex.Crim.App. June 27, 2007). Adams filed a state habeas application, in which he asserted, among other claims, several ineffective assistance of counsel claims. The TCCA referred the application to the trial court and the trial court heard evidence on Adams's claims, including testimony from both of Adams's trial attorneys. The trial court entered findings of fact and conclusions of law and recommended denying Adams's habeas application. The TCCA adopted the trial court's findings of fact and conclusions of law and denied Adams's application. Ex parte Adams, No. WR–68066–01, 2007 WL 4127008 (Tex.Crim.App. Nov. 21, 2007). Adams filed a second state habeas application on December 29, 2008, asserting two new claims related to the jury instructions given during the sentencing phase of his trial. The TCCA dismissed the application as an “abuse of the writ.” Ex parte Adams, No. WR–68066–02, 2009 WL 1165001 (Tex.Crim.App. Apr. 29, 2009).

Before the TCCA ruled on his second habeas application, Adams filed a federal habeas petition on January 8, 2009, in which he asserted ten claims for relief, including the two claims that he had presented in his second state habeas application. After the TCCA dismissed Adams's second application, the district court dismissed the two claims Adams had presented in his second state habeas application as procedurally barred and denied the remaining claims. Adams v. Thaler, No. 5:07–cv–180, 2010 WL 2990967 (E.D.Tex. July 26, 2010). The district court granted Adams a certificate of appealability (COA) on the ten claims Adams presented in his federal habeas petition and on the issue whether two of his claims are procedurally barred.

STANDARD OF REVIEW

Adams's petition is governed by the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA “imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, ––– U.S. ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations and internal quotation marks omitted). Under AEDPA, if a state court has adjudicated a habeas petitioner's claim on the merits, a federal court may grant habeas relief only if the state court's 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).

“A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts.” Gray v. Epps, 616 F.3d 436, 439 (5th Cir.2010) (citing Williams v. Taylor, 529 U.S. 362, 404–08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “To merit habeas relief, a state habeas court's application of federal law must be not only incorrect but ‘objectively unreasonable.’ ” Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir.2010) (quoting Renico, 130 S.Ct. at 1865). A state court's factual findings “shall be presumed to be correct,” but the petitioner may rebut this presumption with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

DISCUSSION

I. Richard Cobb Testimony

Adams first claims that his trial counsel was ineffective for failing to present evidence to the jury that Adams's co-defendant, Richard Cobb, confessed to firing the shot that killed Kenneth Vandever. To prevail on his ineffective assistance of counsel claim, Adams must show (1) that his trial counsel's performance was deficient, and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the performance prong, “a petitioner must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Judicial scrutiny of counsel's performance is “highly deferential” and “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 689–90, 104 S.Ct. 2052. “[A] conscious and informed decision on trial tactics and strategy cannot be the basis of constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Richards v. Quarterman, 566 F.3d 553, 564 (5th Cir.2009) (citation and internal quotation marks omitted). The prejudice prong requires a petitioner to demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The TCCA concluded that Adams's counsel rendered effective assistance because counsel's decision not to present evidence of Cobb's confession was sound trial strategy. Under AEDPA, our review is limited to a consideration of whether the TCCA's holding was an unreasonable application of Strickland. See Henderson v. Quarterman, 460 F.3d 654, 665 (5th Cir.2006). We cannot say that the TCCA's determination that Adams's counsel rendered adequate assistance was unreasonable.

Adams and Cobb were tried separately, and Cobb's trial occurred first. During his trial, Cobb testified on his own behalf, stating that he never intended anyone to be hurt during the robbery. He testified that the robbery was Adams's idea and gave the following version of events: According to Cobb, the two had planned to enter and exit the store quickly, but Adams ordered the three victims to accompany them in the vehicle when they left the store. Cobb stated that when the group arrived at the pea patch, it was Adams who was in control of the situation, and, after assaulting Dement and using the victims's shirts to restrain their arms, Adams told Cobb that there had been a “change in plans” and “we are going to have to off them.” Cobb testified that Adams told Cobb to fire the shotgun at the victims. According to Cobb, he did not want to shoot the victims and pretended that the shotgun had jammed so he would not have to shoot them. Adams grabbed the gun to fix the “jam” and fired the first shot that did not hit any of the victims. Adams then gave the gun back to Cobb and directed him to shoot at the victims. When Cobb hesitated, Adams told Cobb that if only one of them did the shooting only one of them was leaving, i.e., that Adams would kill Cobb if Cobb did not shoot at the victims. Cobb stated that he was scared of Adams so he fired the shot that hit Vandever. Adams then took the gun from Cobb and fired the shot that hit Dement. Adams approached the girls and fired the shot close to Driver's face. Cobb also testified that Adams was the only one to kick Dement to see if she was still alive.

In Adams's trial, his attorneys presented a similar but reversed defense. They argued that Adams was following Cobb's orders during the robbery and that Adams never intended that anyone be hurt. To underscore Adams's lack of lethal intent, Adams's counsel stressed Adams's statements in the car that he did not want anyone to be hurt and that he only robbed the store because he needed money for his children. They argued that the only shot Adams fired was the one that he fired at Driver. They argued that Cobb ordered Adams to shoot Driver, but that Adams must have purposefully missed in order to spare her life because he fired the gun at such close range he could not have missed unless he intended to do so.

At one point during the trial the State agreed to tell the jury that Cobb fired the shot that killed Vandever but only if the jury would also hear that Adams had fired the shot that struck Dement. Adams's counsel decided not to take the agreement, instead arguing to the jury that Adams had not fired either of the shots that struck Vandever and Dement. The State presented testimony from Adam's former cellmate, Lavar Bradley, who testified that Adams had confessed to the shooting, but Adams's counsel vigorously cross-examined Bradley about his motives for testifying and Bradley could not say which particular shots Adams had confessed to firing. To prove that Adams had not fired the two shots that struck Vandever and Dement, Adams's counsel presented testimony from James Hamilton, Cobb's former cellmate, who testified that Cobb had confessed to shooting Vandever. Adams's counsel also emphasized that Dement and Driver were unable to definitely say who fired the shot that killed Vandever and the one that struck Dement. The State even conceded during its closing argument that “the testimony of Candace Driver and Nikki [Dement] doesn't prove who shot Kenneth Vandever.”

Adams argues that if the jurors had heard Cobb's testimony that he fired the fatal shot, they would not have sentenced him to death because they would have concluded that Adams did not intend to kill Vandever. Adams also argues that his counsel was ineffective for failing to enter into the stipulation offered by the State. At the hearing held on Adams's first state habeas application, both of Adams's attorneys testified that they considered all of the evidence and decided against presenting Cobb's testimony for strategic reasons. They stated that presenting Cobb's testimony or entering into the stipulation with the State would have undermined their defense because Cobb had testified that Adams threatened him, that Adams had fired the shot that struck Dement, and that Adams was the only one to kick Dement.

Adams cannot overcome the strong presumption that his counsel's decision not to present the Cobb evidence was a reasonable strategic choice. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (noting that counsel must have “wide latitude” in making tactical decisions). Given the tenor of Adams's defense at trial, his counsel's decision not to present the Cobb testimony was a reasoned trial strategy. Under Texas law, if Adams's counsel had presented the portion of Cobb's testimony in which Cobb admitted to shooting Vandever, the State would have been able to enter the remainder of the transcript, including the damaging portions of Cobb's testimony, into evidence under the rule of optional completeness. See Tex.R. Evid. 107. Similarly, if Adams's counsel had called Cobb to testify, the State could have cross-examined Cobb on any of his previous testimony. This additional evidence would have undermined Adams's defense that Cobb was the aggressor and that Adams was the one simply following orders.

For the same reasons, Adams cannot demonstrate that he suffered prejudice as a result of his counsel's failure to introduce the Cobb testimony. In determining whether a petitioner suffered prejudice, we are to “exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like,” and instead we are to consider “the totality of the evidence” before the jury. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. If the Cobb testimony had been before the jury, there would have been evidence that Adams directed Cobb to shoot Kenneth Vandever and that Adams was the one to shoot Nikki Dement. Although Cobb's testimony would have demonstrated that Adams did not fire the fatal shot, the remainder of Cobb's testimony is so inculpatory that the exclusion of his testimony does not undermine our confidence in the outcome of the trial.FN2 See id. at 694, 104 S.Ct. 2052.

FN2. Attached to both his state and federal habeas petitions, Adams provided an affidavit from an investigator who interviewed a juror who had served on Adams's jury. The investigator stated that the juror told the investigator that knowing of Cobb's confession “would have made a difference in his punishment decision.” We cannot consider the affidavit as evidence of prejudice because such statements by jurors are inadmissible. Fed.R.Evid. 606(b); Summers v. Dretke, 431 F.3d 861, 873 (5th Cir.2005). Moreover, there is nothing in the affidavit to suggest that the juror was told about the portions of Cobb's testimony that were damaging to Adams's defense.

II. Jury Instructions Regarding Intent

Adams's next two claims relate to the jury instructions given during the sentencing phase of his trial. After the jury found Adams guilty of capital murder, the jury was required to answer several special issues to determine whether Adams would be sentenced to death. During the guilt/innocence phase, the jury was instructed that they could find Adams guilty under the law of parties, Tex. Penal Code Ann. § 7.02.FN3 Therefore, the jury could find Adams guilty of capital murder even if they found that Cobb, not Adams, fired the shot that killed Kenneth Vandever. Because Adams was convicted under the law of parties, the jury was required to answer an additional special issue regarding Adams's intent during the sentencing phase:

FN3. Section 7.02 provides: (a) A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. (b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Tex. Penal Code Ann. § 7.02 (West 2003).

Do you find from the evidence beyond a reasonable doubt that BEUNKA ADAMS, the defendant himself, actually caused the death of KENNETH WAYNE VANDEVER, the deceased, on the occasion in question, or, if he did not actually cause the deceased's death, that he intended to kill the deceased or another or that he anticipated that a human life would be taken? Adams argues that his sentence of death violates the Eighth Amendment because the jury could have sentenced him to death if they found that he only anticipated that a human life would be taken, a level of culpability too low to warrant the death penalty under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). He also argues that his appellate counsel was ineffective for failing to raise the issue on direct appeal.

Adams did not present these claims in his initial state habeas application, and when he tried to exhaust the claims in a subsequent application, the TCCA dismissed the subsequent application as an “abuse of the writ.” The district court below dismissed these claims as procedurally defaulted, concluding that the TCCA had dismissed the claims for failure to follow state-law procedure. On appeal, Adams appears to concede that our circuit precedent compels the conclusion that his claims are procedurally defaulted but argues that he meets the standard to overcome the procedural default.

A. Procedural Default

We first address whether Adams's claims are, in fact, procedurally defaulted. A federal court generally cannot review the merits of a state prisoner's habeas petition if the prisoner presented his constitutional claim to the highest available state court but the court dismissed the claim on an adequate and independent state-law procedural ground rather than deciding the claim on the merits. Coleman v. Thompson, 501 U.S. 722, 729–30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Under Texas law, after the filing of a prisoner's initial state habeas application in a death penalty case, the TCCA cannot consider the merits of a subsequent application unless the application satisfies one of three requirements. The application must allege specific facts establishing that: (1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application ... because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; (2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial.... Tex.Code Crim. Proc. art. 11.071, § 5(a) (West 2005). If an application does not meet any of the standards in section 5(a), the TCCA must dismiss the application as an abuse of the writ. Id. § 5(c).

Adams argues that the TCCA's perfunctory dismissal of his subsequent application as an abuse of the writ was not based on an adequate and independent state-law procedural ground. He contends that the language of the dismissal order is ambiguous as to whether the TCCA reached the merits of his claim and that, under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), we must presume that the TCCA rested its decision on federal law.

We recently clarified our understanding of the Texas abuse of the writ doctrine in a pair of cases. See Balentine v. Thaler, 626 F.3d 842 (5th Cir.2010); Rocha v. Thaler ( Rocha I ), 619 F.3d 387 (5th Cir.2010), clarified and panel rehearing denied, Rocha v. Thaler ( Rocha II ), 626 F.3d 815 (5th Cir.2010). Under Balentine and Rocha, we must first determine which of the subsections quoted above the TCCA relied upon in dismissing Adams's subsequent application. The TCCA's dismissal order simply stated, “We have reviewed the application and find that the allegations do not satisfy the requirements of Article 11.071, Section 5. Therefore, we dismiss this application as an abuse of the writ.” Ex parte Adams, 2009 WL 1165001, at *1. Where, as here, the TCCA does not identify the subsection on which it relied in dismissing the application as an abuse of the writ, we look to the application itself to determine the subsection the petitioner relied on in presenting his subsequent application to the TCCA. Balentine, 626 F.3d at 854. In his second state habeas application, Adams specifically alleged that his application met the requirements of subsections 5(a)(2) and 5(a)(3). He did not claim under section 5(a)(1) that the factual or legal basis was unavailable at the time he filed his initial state habeas application. FN4 Therefore, we do not consider whether the TCCA reached the merits of Adams's claims in determining whether Adams's application met the requirements of section 5(a)(1).

FN4. Adams's claims are based on Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), both of which were decided before the filing of his initial application, and Adams alleged no new factual basis for his claims.

Although Adams identified section 5(a)(2) as a basis for his subsequent application, section 5(a)(2) is inapplicable. Adams did not argue that no reasonable juror would have found him guilty beyond a reasonable doubt. See Ex parte Brooks, 219 S.W.3d 396, 398 (Tex.Crim.App.2007) (“[A]n applicant must accompany constitutional-violation claims with a prima facie claim of actual innocence in order to satisfy the requirements of [section 5(a)(2) ].”). Instead, all of the arguments in his subsequent petition relate to the instructions given during the sentencing phase of trial. Because we must focus on the arguments presented to the TCCA, we conclude that Adams's only asserted basis for the TCCA to entertain his subsequent petition was section 5(a)(3).

We squarely addressed the TCCA's summary dismissal of a claim under § 5(a)(3) in Rocha. There, the TCCA specifically stated that Rocha's application had not met the requirements of section 5(a)(3) and the court dismissed the application as an abuse of the writ. Rocha I, 619 F.3d at 399. We held that the TCCA had dismissed Rocha's application on independent and adequate state-law procedural grounds, and we were thus prevented from reviewing the claims in the dismissed application because they were procedurally defaulted. Id. at 402–06; see also Rocha II, 626 F.3d at 826 & n. 44. Adams concedes that our decisions in Rocha and Balentine compel the conclusion that his Enmund/Tison claims are procedurally defaulted. Therefore, we can reach the merits of Adams's claims only if he can overcome the procedural default.

B. Cause and Prejudice

A petitioner can overcome a procedural default in one of two ways. First, he can show “cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Second, a federal court can review the merits of the petition if the petitioner can show that failure to do so would result in a fundamental miscarriage of justice. Id. One way to demonstrate a fundamental miscarriage of justice is to show that the petitioner is actually innocent of the death penalty. Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

Adams does not argue that he can overcome the procedural default under the fundamental miscarriage of justice exception because he is actually innocent of the death penalty. This argument is therefore waived.FN5 Elizalde v. Dretke, 362 F.3d 323, 328 n. 3 (5th Cir.2004); see also Dowthitt v. Johnson, 230 F.3d 733, 741 n. 6 (5th Cir.2000) (finding that petitioner had waived “sub-issues” that would support his actual innocence claim because they were presented in his reply brief and not in his opening appellate brief).

FN5. Even if Adams had not waived this argument by failing to brief it, he would not be able to demonstrate that, “but for a constitutional error, no reasonable juror would have found [him] eligible for the death penalty.” Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). If the allegedly infirm language were removed from the jury instruction, the evidence before the jury was sufficient such that reasonable jurors could find that Adams actually caused Vandever's death or that he intended to cause the death of Vandever or another.

Adams instead argues that he can demonstrate cause and prejudice for the procedural default. Specifically, he argues that his claims were procedurally defaulted due to the ineffective assistance of his trial and appellate counsel in failing to raise the claims at trial and on appeal. Adams's claim that his counsel was ineffective for not raising the issue at trial and on appeal could have been brought in his first state habeas application. Although Adams was represented by counsel in filing his first application, he cannot overcome the procedural default by claiming that his state habeas counsel was ineffective for failing to raise his claims, and in any event Adams has not made this argument. See Ries v. Quarterman, 522 F.3d 517, 526 n. 5 (5th Cir.2008) (“[T]he ineffective assistance of state habeas counsel cannot provide cause to excuse a procedural default.”). Therefore, Adams cannot demonstrate cause sufficient to overcome the procedural default, and we affirm the district court's dismissal of Adams's Enmund/Tison claims.

III. State's Expert on Future Dangerousness

The district court granted Adams a COA on his claim that his trial counsel rendered ineffective assistance by failing to investigate and fairly challenge the State's expert on future dangerousness, Dr. Tynus McNeel, who testified on behalf of the State that Adams was a continuing threat to society. The district court denied the claim, concluding that Adams had not demonstrated that his counsel's performance was deficient or that he was prejudiced in any way. Adams has abandoned this claim by failing to brief it on appeal. See Banks v. Thaler, 583 F.3d 295, 329 (5th Cir.2009) (“It is well established, of course, that an appellant abandons all issues not raised and properly presented in its initial brief on appeal.”).

IV. Extrinsic Victim Impact Testimony

Adams next claims that the trial court erroneously allowed Nikki Dement to give “extraneous victim impact testimony,” and that his appellate counsel was ineffective for failing to recognize and brief the issue on direct appeal. During the sentencing phase of Adams's trial, Dement testified on behalf of the State regarding the effect the shooting has had on her life. She testified that her injuries affected her school and career options, that she was unable to enjoy her wedding and honeymoon because she was still recovering, and that the lasting effects of her injuries had caused problems with her pregnancy. She also testified that she had trouble sleeping at night and that she could not be alone in her house at night. Adams's trial counsel objected to Dement's testimony as extraneous victim impact testimony because Vandever, not Dement, was the victim of the capital murder for which Adams was convicted. Adams's appellate counsel, however, did not raise the issue in his direct appeal to the TCCA.

Ineffective assistance of appellate counsel claims are governed by the test set forth in Strickland v. Washington. Amador v. Quarterman, 458 F.3d 397, 410 (5th Cir.2006). Therefore, Adams must demonstrate that his appellate counsel's performance in not raising his claim was deficient and that he was prejudiced by the deficient performance because the outcome of his appeal would have been different. Id. at 410–11. “Counsel need not raise every nonfrivolous ground of appeal, but should instead present solid, meritorious arguments based on directly controlling precedent.” Ries v. Quarterman, 522 F.3d 517, 531–32 (5th Cir.2008) (citation and internal quotation marks omitted).

The Supreme Court has held that there is no per se bar under the Eighth Amendment to the admission of victim impact testimony. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Rather, the admission of such evidence during the punishment phase is limited only by the Due Process Clause of the Fourteenth Amendment if the evidence “is so unduly prejudicial that it renders the trial fundamentally unfair.” Id. at 825, 111 S.Ct. 2597. Texas has limited the introduction of victim impact testimony in certain circumstances. For example, in Cantu v. State, 939 S.W.2d 627 (Tex.Crim.App.1997), the TCCA held that the trial court had erred in admitting victim impact testimony from the mother of a victim not named in the indictment because the evidence was extraneous to the crime charged. Id. at 637. The defendant had participated in the murder of two teenage girls but was indicted for only one of the murders. Id. at 635. The TCCA held that the testimony regarding the other victim's character and the impact of her death on her family was irrelevant and unduly prejudicial because the defendant had not been indicted and tried for the murder of that victim. Id. at 637.

After Cantu, the TCCA further defined the categories of victim-related evidence that would be permitted in the sentencing phase “Victim character” evidence—“evidence concerning good qualities possessed by the victim”—and “victim impact” evidence—“evidence concerning the effect that the victim's death will have on others, particularly the victim's family members”—are admissible, with some limitations, in the sentencing phase with regard to the victim of the crime for which the defendant was convicted. Mosley v. State, 983 S.W.2d 249, 261–62 (Tex.Crim.App.1998). Since Mosley, the TCCA has permitted testimony that relates to the victim of a crime not described in the indictment but that does not fall into the category of “victim impact” or “victim character” testimony. Mathis v. State, 67 S.W.3d 918, 928 (Tex.Crim.App.2002) (finding no error in the admission of testimony from the caregiver of a victim injured in the same criminal episode but not named in the indictment because the testimony did not involve the character of the victim or the effect of her injuries on third persons); Roberts v. State, 220 S.W.3d 521, 531 (Tex.Crim.App.2007) (finding no error in the admission of testimony from the victim of a previous crime because “ ‘[v]ictim impact’ evidence is evidence of the effect of an offense on people other than the victim”); Mays v. State, 318 S.W.3d 368, 393 (Tex.Crim.App.2010) (finding no error in the admission of testimony from two officers involved in a police shootout but not named as victims of the crimes for which the defendant was indicted because they testified about their own injuries and losses).

In denying Adams's claim, the TCCA found that Cantu was factually distinguishable from the present case because the testimony was given by a victim of one of the underlying offenses and the victim did not testify about her good character or the effect of her injuries on her family. Instead she testified about the details of her injuries and their long term effect on her. The court concluded that Dement's testimony was admissible under Mathis because she was injured in the same criminal episode as the victim of the capital murder and that evidence from a victim of an extraneous offense as to the emotional effect on her is admissible under Roberts. The TCCA thus held that Adams's appellate counsel had not rendered ineffective assistance by failing to raise the issue on appeal.

The TCCA's holding is not an unreasonable application of Strickland. With Cantu among the guiding precedents, the argument that the trial court erred in admitting Dement's testimony during the punishment phase of Adams's trial was certainly cognizable and nonfrivolous. However, the TCCA decided Mathis three years before Adams's counsel filed his appellate brief and his counsel could have reasonably concluded that pursuing the argument that Dement's testimony was inadmissible would have been futile in light of the TCCA's holding in Mathis that certain testimony about a victim injured in the same criminal episode is admissible.

Moreover, Adams cannot demonstrate that he was prejudiced by his appellate counsel's performance because he cannot show that the outcome of his appeal would have been different if his counsel had briefed the issue. Although Roberts and Mays were decided after Adams's appeal, those cases demonstrate that the TCCA will not find error in the admission of the testimony of a victim of a crime not described in the indictment when the victim testifies regarding her own injuries and the effect the crime had on her own life. We therefore affirm the district court's denial of this claim.

V. Burden of Proof on Mitigation Issue

Adams next claims that the Texas statute authorizing the jury to impose the death penalty is unconstitutional. Article 37.071 of the Texas Code of Criminal Procedure requires the jury to make several findings to determine whether the defendant will receive a sentence of death. First, the jury is asked to determine beyond a reasonable doubt “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex.Code Crim. Proc. art. 37.071, § 2(b)(1) (West 2006). Second, if the defendant is convicted under the law of parties, as discussed above, the jury is asked whether, beyond a reasonable doubt, “the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.” Id. § 2(b)(2). If the jury answers both of these questions in the affirmative, the jury is then asked to determine, considering all evidence presented at the guilt/innocence phase and at the punishment phase, whether any evidence mitigates against imposition of the death penalty. Id. at § 2(e)(1).

Adams argues that his Eighth and Fourteenth Amendment rights were violated because the statute impermissibly placed the burden of proving the mitigation issue on him, rather than requiring the State to prove the absence of mitigating factors beyond a reasonable doubt. He argues that under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), any fact that increases the available punishment, including the absence of mitigating evidence, must be proved by the State beyond a reasonable doubt.

The district court concluded that this claim was foreclosed by our decisions in Rowell v. Dretke, 398 F.3d 370 (5th Cir.2005), and Granados v. Quarterman, 455 F.3d 529 (5th Cir.2006). We agree. The Texas Court of Criminal Appeals has held that under the Texas statutory scheme a defendant is eligible for the death penalty once the jury answers the first and, if applicable, the second special issues, which both require proof beyond a reasonable doubt, in the affirmative. Perry v. State, 158 S.W.3d 438, 446–48 (Tex.Crim.App.2004) (“By the time the jury reaches the mitigation special issue, the prosecution has proven all aggravating ‘facts legally essential to the punishment.’ ” (quoting Blakely v. Washington, 542 U.S. 296, 313, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)); Blue v. State, 125 S.W.3d 491, 500–01 (Tex.Crim.App.2003) (“Under Article 37.071, there is no authorized increase in punishment contingent on the jury's finding on the mitigating special issue.”). We concluded in Granados that under Texas law “a finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death.”) 455 F.3d at 537. We therefore held that the statute does not violate Apprendi or Ring because “the state was required to prove beyond a reasonable doubt every finding prerequisite to exposing [the defendant] to the maximum penalty of death.” Id. at 536; see also Rowell, 398 F.3d at 378 (“No Supreme Court or Circuit precedent constitutionally requires that Texas's mitigation special issue be assigned a burden of proof.”). Adams concedes that his claim is foreclosed by our precedent and that he presents this claim only to preserve it for possible further review. We therefore affirm the district court's denial of this claim.

VI. Limitations on Mitigating Evidence

In his federal habeas petition, Adams claimed that his Eighth and Fourteenth Amendment rights were violated because the Texas death penalty statute impermissibly limits the evidence that jurors can consider to be mitigating. The statutory jury instruction asks the jury to consider, in answering the mitigation special issue, the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant. Adams argued that the instruction led the jury to believe they could not consider mitigating evidence that did not fall within these categories. The district court held that this claim was procedurally defaulted because Adams failed to raise it on direct appeal in state court, but the court granted Adams a COA on the issue whether the district court erred in finding procedural default. However, Adams has abandoned this issue by failing to brief it on appeal. See Banks, 583 F.3d at 329 (“It is well established, of course, that an appellant abandons all issues not raised and properly presented in its initial brief on appeal.”).

VII. Jury Instruction on Failure to Answer the Special Issues

Adams next claims that the trial court should have instructed the jury that their failure to answer the special sentencing issues would result in the imposition of a life sentence. Under the Texas capital sentencing scheme, the jury must unanimously answer the first two special issues in the affirmative before the court can impose the death penalty. Tex.Code Crim. Proc. art. 37.071, § 2(d)(2). To answer the issues in the negative, ten of the twelve jurors must agree. Id. In addition, a sentence of death requires a unanimous negative answer on the mitigation issue and ten jurors must agree in order to answer the mitigation issue affirmatively. Id. § 2(f)(2). If the jury answers “no” to either of the first two special issues or “yes” to the third special issue on mitigation, or if the jury fails to answer any of the special issues, the court must sentence the defendant to life in prison. Id. § 2(g).

In Adams's case, the trial court instructed the jury that it would impose a life sentence if they answered the first two questions in the negative or the mitigation issue in the affirmative. The verdict form told the jury that the foreperson was not to sign the form if the jury could not agree on an answer to any of the special issues, but the jury was not informed that if they failed to reach an answer on any of the three issues, the court would automatically impose a life sentence. Adams argues that failing to inform the jury that a life sentence, rather than the death penalty, would result if at least ten jurors agreed on the special issues or if the jury reached no agreement on the special issues may have confused the jurors and prevented them from individually voting against the death penalty.

Adams relies on the Supreme Court's decisions in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), in which the Court held unconstitutional jury instructions that may have prevented the jury from considering mitigating evidence unless all twelve jurors found the existence of a particular mitigating circumstance. We have repeatedly rejected the argument that jury instructions similar to those given in Adams's case are unconstitutional under Mills and McKoy. Hughes v. Dretke, 412 F.3d 582, 594 (5th Cir.2005); Miller v. Johnson, 200 F.3d 274, 288–89 (5th Cir.2000); Hughes v. Johnson, 191 F.3d 607, 628–29 (5th Cir.1999).

Adams concedes that this claim is foreclosed by our precedent and that he raises the issue only to preserve it for possible further review. He also concedes that we have concluded that any finding that the jury instructions given in this case were unconstitutional would be an extension of Mills that we would be barred from applying under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Hughes v. Dretke, 412 F.3d at 594 (“Because we are barred by Teague from extending Mills, no clearly established federal law calls into doubt the Texas death penalty statute.”). We therefore affirm the district court's denial of this claim.

VIII. Meaningful Appellate Review

Adams next claims that the State violated his Eighth and Fourteenth Amendment rights by failing to provide meaningful appellate review of the sufficiency of the mitigating evidence he presented. As noted above, the jury was asked to answer three special issues relating to punishment. After answering the first two issues in the affirmative, the jury answered “No” to the following question: Taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, do you find that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?

On direct appeal, Adams argued that he presented sufficient mitigating evidence to warrant the imposition of a life sentence rather than the death penalty. In keeping with its precedent, the TCCA held that it “does not review the jury's finding on the mitigation issue for sufficiency of the evidence because ‘the determination as to whether mitigating evidence calls for a life sentence is a value judgment left to the discretion of the fact finder.’ ” Adams v. State, 2007 WL 1839845, at *4 (quoting Green v. State, 934 S.W.2d 92, 106–07 (Tex.Crim.App.1996)). Adams argues that his constitutional rights were violated under Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), and Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), when the State failed to accord “meaningful appellate review” to every determination relevant to the punishment issue.

We first note that this claim may be procedurally defaulted. In denying Adams's state habeas application, the TCCA stated that the claim was procedurally barred because it was not raised on direct appeal. The TCCA also alternatively considered and rejected Adams's claim on the merits, but “[t]hat the court reached these additional conclusions does not undermine the explicit invocation of the procedural bar.” Busby v. Dretke, 359 F.3d 708, 718 (5th Cir.2004) (citing Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)). The district court nonetheless declined to hold that the claim was procedurally defaulted because Adams did present this issue to the TCCA in his brief on direct appeal.

We need not decide whether the claim is procedurally defaulted, however, because it is easily rejected on the merits. Busby, 359 F.3d at 720 (“Although the question of procedural default should ordinarily be considered first, we need not do so invariably.” (citation and internal quotation marks omitted)). We have previously addressed the same argument and held that the appellate review of death sentences afforded by Texas courts is constitutionally sound. Woods v. Cockrell, 307 F.3d 353, 359–60 (5th Cir.2002); Moore v. Johnson, 225 F.3d 495, 506–07 (5th Cir.2000). Adams concedes that this claim is foreclosed by our prior cases and that he raises the issue only to preserve it for possible further review. Therefore, we affirm the district court's denial of this claim.

IX. Unbridled Discretion

Adams's final claim also relates to the third special issue regarding mitigation. Adams argues that the Texas death penalty statute violates the Eighth and Fourteenth Amendments because it allows the jury “unbridled discretion” to impose the death penalty in answering the mitigation special issue. The core of Adams's argument is that the mitigation special issue does not provide the jury with any guidance in choosing which mitigating factors they should consider to determine whether there is sufficient mitigating evidence that would warrant the imposition of a life sentence rather than the death penalty. The TCCA denied this claim because it found that once the jury finds the factors that make the defendant eligible for the death penalty, under Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994), the jury must be given wide discretion not to impose the death penalty.

In Tuilaepa, the Supreme Court distinguished between the two aspects of the capital sentencing decision: the eligibility decision and the selection decision. Id. at 971–72, 114 S.Ct. 2630. The Court has already confirmed the constitutionality of Texas's procedure for determining the existence of aggravating circumstances to make the eligibility decision. See Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (opinion of Stewart, Powell, and Stevens, J.J.); see also Sonnier v. Quarterman, 476 F.3d 349, 366–67 (5th Cir.2007). In making the selection decision, the jury must be allowed to make “an individualized determination” by considering “relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime.” Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630 (citation omitted). Indeed, the jury “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.’ ” Id. at 979–80, 114 S.Ct. 2630 (quoting Zant v. Stephens, 462 U.S. 862, 875, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)). In exercising its discretion, the jury “need not be instructed how to weigh any particular fact in the capital sentencing decision.” Id. at 979, 114 S.Ct. 2630.

The question as posed to the jury asked them to consider the circumstances of the offense, evidence of the defendant's character, evidence of the defendant's background, and the personal moral culpability of the defendant, precisely the considerations mandated by the Court in Tuilaepa. The jury was also instructed that “mitigating evidence” includes “evidence that a juror might regard as reducing the defendant's moral blameworthiness.” Therefore, the jury's decision was based on “an individualized determination on the basis of the character of the individual and the circumstances of the crime,” Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630 (emphasis omitted), and the TCCA's decision was not an unreasonable application of clearly established federal law, see Johnson v. Cockrell, 306 F.3d 249, 256 (5th Cir.2002) (denying a COA on a similar contention that the Texas death penalty scheme affords juries “unfettered discretion”).

CONCLUSION

For the foregoing reasons, we affirm the district court's judgment denying Adams's petition for a writ of habeas corpus.

Beunka Adams