Texas Department of Criminal Justice

Inmate: Daroyce Lamont Mosley
Date of Birth: 10/16/1974
TDCJ#: 999171
Date Received: 11/14/1995
Education: 12 years
Occupation: laborer
Date of Offense: 07/21/1994
County of Offense: Gregg
Native County: Gregg County, Texas
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 06' 02"
Weight: 211 lb
Prior Prison Record: None
Co-Defendants: Ray Donald Mosley (uncle), and 16 year old juvenile.

Tuesday, August 21, 2007

Media Advisory: DaRoyce Mosley scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about DaRoyce Lamont Mosley, who is scheduled to be executed after 6 p.m. Tuesday, August 28, 2007.

On October 28, 1995, Mosley was found guilty of the 1994 capital murder of Patricia Colter and was sentenced to death. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

Wearing ski masks and brandishing handguns, DaRoyce Lamont Mosley and his uncle, Ray Don Mosley, entered Katies’ Lounge in Kilgore, Texas, at 11:45 p.m. on July 21, 1994, as night waitress Sandra Cash was closing up for the evening.

Ray Don, the first to burst through the door, approached Cash and demanded the money. As Cash slid a box containing money toward Ray Don, he shot her twice.

DaRoyce Mosley shot the four customers who were at the lounge, Patricia Colter, Duane Colter, Alvin Waller, and Luva Congleton. All four customers died while Cash’s injuries left her permanently paralyzed from the chest down. Despite her shock-induced state, Cash still managed to call 9-1-1.

Both Mosleys and a juvenile went to Christopher “Kaboo” Smith’s home after the crime. DaRoyce Mosley divided the money evenly between himself, Ray Don, the juvenile, and Kaboo, with each receiving a total of seventy-seven dollars.

The next day, Mosley bought a new car and picked up his brother, Kaboo and the juvenile. Police pulled Mosley over and arrested the juvenile. At the time, the police were unaware of Mosley’s involvement in the robbery and killings at the lounge. Nonetheless, the police asked all the occupants of the car if they would voluntarily come to the police station, and everyone agreed.

At the police station, Mosley stated that he had no involvement in the robbery and murders. Later that evening, however, Mosley was arrested based on information the police received from Smith. When informed he was under arrest, [Mosley] cried out, “Oh what have I done. I've ruined my life. I'm going to spend the rest of my life in jail.” Mosley confessed that he shot the four people at Katies’ Lounge and that Ray Don shot Cash, the lone victim to survive the robbery.

PROCEDURAL HISTORY

• August 4, 1994 -- A Gregg County grand jury indicted DaRoyce Mosley for the capital murder of Patricia Colter committed during the offense of robbery of Sandra Cash.

• October 28, 1995 -- A jury found Mosley guilty of capital murder.

• October 30, 1995 -- Following a separate punishment hearing, Mosley was sentenced to death.

• July 1,1998 -- The Texas Court of Criminal Appeals affirmed Mosley’s conviction and sentence.

• April 19, 1999 -- The U.S. Supreme Court denied Mosley’s petition for certiorari review of the direct appeal judgment.

• October 9, 1997 -- Mosley filed an application for writ of habeas corpus with the state trial court.

• December 14, 1998 -- Mosley filed a supplemental application for writ of habeas corpus with the trial court.

• March 15, 1999 -- An evidentiary hearing was held in the state trial court.

• June 30, 1999 -- The Texas Court of Criminal Appeals declined to follow the trial court’s recommendation, and ultimately denied Mosley’s first state habeas application. The court also dismissed Mosley’s supplemental application as an abuse of the writ.

• January 10, 2000 -- The U.S. Supreme Court denied Mosley’s petition for certiorari review of the state habeas judgment.

• June 30, 2000 -- Mosley filed a federal petition for writ of habeas corpus in a federal district court.

• March 31, 2003 -- The federal district court granted the state’s motion for summary judgment and denied Mosley the relief requested in his federal habeas petition.

• June 20, 2003 -- The federal district court granted Mosley a certificate of appealability with regard to three of his claims, but denied COA on th rest of his claims.

• July 24, 2003 -- Mosley filed an application for additional certificate of appealability with the 5th U.S. Circuit Court of Appeals. September 8, 2003 -- The 5th Circuit Court denied Mosley’s request for additional COA.

• May 17, 2004 -- The 5th Circuit Court issued an opinion affirming the judgment of the district court on the three issues considered on appeal.

• June 18, 2004 -- The 5th Circuit Court denied Mosley’s petition for rehearing by the full court.

• September 16, 2004 -- Mosley petitioned the U.S. Supreme Court for a writ of certiorari.

• February 22, 2005 -- The Supreme Court denied Mosley’s petition for certiorari.

• May 18, 2007 -- The trial court issued an order setting Mosley’s execution date for August 28, 2007.

PRIOR CRIMINAL HISTORY

According to TDCJ, Mosley did not have a prior criminal record before this offense was committed.

Inmate executed for death of woman during Kilgore robbery

By Michael Graczyk - Houston Chronicle

Associated Press - Aug. 28, 2007

HUNTSVILLE, Texas — A former high school honors student was executed late Tuesday evening for the death of a woman who was one of four people gunned down in a holdup at an East Texas bar. The lethal drugs were not administered to DaRoyce Mosley until the U.S. Supreme Court resolved a late appeal, about five hours after the scheduled time for the execution. He was executed about an hour before his death warrant would have expired.

In a brief final statement, Mosley said he appreciated the love and support he had received over the years. "I will see you when you get there," he told witnesses, including his mother and sister. "Keep your heads up. To all the fellows on the row, the same thing. Keep your head up and continue to fight." He expressed love again and as the lethal drugs began flowing, he remarked, "I can taste it." Nine minutes later, at 10:57 p.m. he was pronounced dead. His mother and sister cried and sobbed as he died.

Mosley, 32, was the 22nd Texas inmate executed this year and the first of three to die on consecutive evenings in the nation's most active death penalty state. Mosley didn't deny walking into the Kilgore bar intending to rob the place, but insisted his uncle who accompanied him was responsible for the slayings 13 years ago. The uncle, Ray Don Mosley, now 44, took a plea bargain and is serving life in prison.

DaRoyce Mosley said he wrongly confessed to the slayings of Patricia Colter, 54; her husband, Duane, 44; Alvin Waller, 54; and Luva Congleton, 68. Sandra Cash, then 32, who worked at Katie's Lounge in Kilgore, was shot in the spine but was able to call police.

A Gregg County jury condemned Mosley for Patricia Colter's death. He was denied clemency by the Texas Board of Pardons and Paroles and late appeals to the courts argued that threats from Mosley's uncle coerced him into the shooting spree. The Texas Court of Criminal Appeals and the 5th U.S. Circuit Court of Appeals rejected his appeals earlier Tuesday and his attorneys went to the Supreme Court late in the day.

"Made for a really long day," Shari O'Brien, Colter's sister, said after watching Mosley die. "I know he won't be able to do this to another family." "I got my satisfaction and my justice as far as DaRoyce is concerned," added another sister, Virginia Hutsell. "But Ray Don is still alive. I don't like that."

Cash, the lone survivor, last weekend told a lawyer working for Mosley that the uncle ordered Mosley to fire the shots. But Cash, according to attorney John Weigel, refused to elaborate on what Mosley did after the threat and cut off her conversation by saying only that Mosley "deserved to die for ruining her life and for being involved in the killings of those people."

Cash's comment "would have either supported a theory of the case that DaRoyce ran or that he acted under duress," said Gary Bledsoe, one of Mosley's trial lawyers. "It clearly is quite significant in terms of whether there is mitigation and whether DaRoyce is likely to commit future acts of dangerousness." The jury that condemned him had to agree they believed Mosley was a future threat.

Clement Dunn, one of the prosecutors at Mosley's trial, said he was confident the jury's verdict was correct, certain that detectives investigated the case appropriately and agreed with all the appeals that upheld the verdict. "And I feel good about being able to say that," he said.

Mosley had no previous prison record. He grew up in an impoverished area of Kilgore but succeeded in high school. He won a spot on the student council, played sports, made the honor roll and then attended Kilgore College. But he said peer pressure from others in his neighborhood prompted him to slide, and eventually to accompany his uncle on the robbery.

"It's not so much that I wanted to," he told The Associated Press in a recent interview from death row, saying he fled when the shooting started. "I turned around and ran out, and here I am. It's a messed-up situation all around. "These people are fixing to execute me. It's hard not to be bitter. ... I know I shouldn't be here. It'd be easier if I did it. If I killed four people, I'd deserve it and I'd prepare for it. But that's not the case with me. How do you prepare yourself to die if you're not ready to die?"

Evidence showed Mosley and his uncle split $308 taken from the bar among themselves, a 16-year-old friend of DaRoyce Mosley's who accompanied them that night, and a friend who was related to the juvenile. The juvenile who authorities determined left before the gunfire was given a two-year jail sentence.

Mosley said he turned down a plea deal for three life terms. "I figured I'd be found not guilty," he said. "If anything, it'd be armed robbery. It didn't work out."

On Wednesday, John Joe Amador, 32, was set to die for the 1994 shooting death of a San Antonio taxi driver. Then on Thursday, Kenneth Foster, 30, faced lethal injection for his role as the getaway driver when a San Antonio man, Michael LaHood, was gunned down on his driveway in 1996. Foster's case has attracted attention from death penalty opponents because another man, Mauriceo Brown, fired the fatal shot and Foster was convicted under Texas' law of parties, which makes an accomplice equally culpable. Brown was executed last year.

Txexecutions.org

DaRoyce Lamont Mosley, 32, was executed by lethal injection on 28 August 2007 in Huntsville, Texas for the murder of four people while robbing a bar.

Just before midnight on 21 July 1994, Sandra Cash, a waitress at Katie's Lounge in Kilgore, was closing up for the night, placing the evening's receipts in a fishing tackle box.

The were four customers in the lounge: Patricia Colter, 53, her husband Duane Colter, 44, her ex-husband Alvin Waller, 54, and Luva Congleton, 68. Suddenly, Mosley, then 19, his uncle, Ray Don Mosley, 31, and Marcus Smith, 16, burst in wearing toboggan hats and brandishing handguns.

Ray Don approached waitress Sandra Cash and said, "Give me the money, you white bitch." Cash slid the tackle box containing $308 toward Ray Don. He then fired a shot that struck her hand, which she was holding near her face, then he shot her in the stomach. DaRoyce then shot the four customers. The Colters and Congleton were each shot once in the back of the head. Waller was shot twice in the head and once in the thigh. All four customers died. Cash survived and called 911. She was permanently paralyzed from the chest down.

The next day, the police received several tips about the crime. Ricky Wheat, who lived across the street from Katie's Lounge, informed the police that Ray Don and DaRoyce Mosley and Marcus Smith were talking with him outside his residence on the night of the murder, and that Ray Don had a gun. He said Ray Don told him there was some money in the area and he had to have it. The Mosleys and Smith then left, and returned about thirty minutes later with a tackle box. They requested a ride to the home of Christopher "Kaboo" Smith, who was Marcus Smith's cousin and DaRoyce Mosley's best friend.

Christopher Smith told police that on the evening of the murders, DaRoyce Mosley was at his residence with a gun. He left, then later returned with Ray Don and Marcus. Kaboo said that Ray Don stated they had killed people in Katie's Lounge. Kaboo expressed disbelief, to which DaRoyce replied, "We did it." DaRoyce then divided the money evenly between the four of them, with each person receiving $77.

The next day, police pulled over DaRoyce, who was driving with his brother and the Smith cousins, and asked them to come to the police station to answer some questions. They agreed. Mosley was asked about the lounge murders and denied any involvement in the crime. Later that evening, however, the police arrested Mosley based on information they received from Marcus Smith. He then admitted to shooting two of the victims at Katie's Lounge.

In a third statement, however, he admitted being present but denied shooting anyone. He also informed the police that he wore a toboggan hat during the crime, and had thrown it into the woods near Ricky Wheat's residence.

Mosley then accompanied police in searching for the hat. The hat was found, and a glove was found near it. Mosley then admitted to wearing a glove during the robbery. The police informed him that the glove could be examined for residue which would indicate whether the person wearing it had fired a gun, and asked Mosley if he would like to add anything to his statements.

Mosley then gave his fourth and final statement. He said that Ray Don went in first and shot the waitress. The customers were all sitting at a table. After his uncle fired a shot, he then shot one of the female customers in the back of the head from about five feet away. The other woman got up and ran under a pool table.

DaRoyce stated that Ray Don ordered him to shoot all of them or get shot, and that he was pointing a gun at him. DaRoyce then shot a male customer who was still sitting at the table, then he bent down next to the pool table and shot the other woman twice. He said that the second man was coming toward him with a pool cue, and he shot him three times. He stated that Marcus Smith left after the shooting started and met back up with them across the street after it was over. When Ray Don confronted Smith about leaving, he replied that he was trying to steal them a car.

At age 19, Mosley had no prior criminal record. In high school, he was on the student council, played sports, and made the honor roll. He then went on to attend Kilgore College. He said that peer pressure from others in his neighborhood prompted him to accompany his uncle on the robbery.

A jury convicted DaRoyce Mosley of the capital murder of Patricia Colter in October 1995 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and verdict in May 1998. All of his subsequent appeals in state and federal court were denied.

Ray Donald Mosley, who had a prior history of theft, trespassing, and interfering with police apprehension, and was on parole at the time of the murders, pleaded guilty to murder and was sentenced to life in prison. Marcus Smith was given a two-year sentence.

In an interview from death row the week before his execution, Mosley claimed that he ran from the lounge when the shooting started. "I turned around and ran out, and here I am. It's a messed-up situation all around." "It'd be easier if I did it," Mosley said, referring to his upcoming execution. "If I killed four people, I'd deserve it and I'd prepare for it. But that's not the case with me." He said that he turned down a plea deal for three life sentences. "I figured I'd be found not guilty. If anything, it'd be armed robbery. It didn't work out."

Mosley's execution was delayed for about five hours while the U.S. Supreme Court considered his final appeal. In his last statement, he expressed encouragement to his family and to his fellow death row inmates. The lethal injection was then started. Mosley remarked, "I can taste it." He was pronounced dead at 10:57 p.m.

ProDeathPenalty.com

Daroyce Lamont Mosley was convicted of capital murder for the death of Patricia Colter on October 28, 1995, and sentenced to death on November 3, 1995.

Patricia Slack Colter, a Wal-Mart employee, her husband Duane Colter, who worked at a local ceramic company, her ex-husband Alvin Waller, and Luva Congleton, were keeping 32-year-old waitress Sandra Cash company as she closed up Katie’s Lounge in Kilgore, Texas on July 21, 1994.

Sandra was placing the receipts for the evening in a tackle box Katie’s used to store money. She looked out the window and saw two men walking up and joked that she would have to make the men mad because she had already "closed everything up."

At approximately 11:45 p.m., two armed men wearing ski masks kicked open the door. The first man through the door said, “Give me the money, you white bitch.” Sandra and the four patrons of Katie’s were white; Mosley and the others arrested for the robbery and murders were black. While sliding the tackle box towards the gunman, Sandra was shot in the wrist and went through her hand as she attempted to shield her face. She was then shot in the stomach and fell to the floor. She remembered hearing more gunfire but could remember little else. Even in her shock induced state, she nonetheless managed to call 911. "Please help me. I'm choking."

Sandra had a total of nine holes in her body from approximately three to six bullets, two of which were recovered from her at the hospital, a third was found behind the bar by police. Sandra had wounds to her wrist, right breast and abdominal cavity. However, the most serious wound went across her upper body, perforating both lungs and going through her spinal cord, and she was left paralyzed from the chest down.

When police and EMS arrived shortly thereafter, they discovered the bodies of Patricia and Duane Colter, Alvin Waller, and Luva Congleton as well as a gravely wounded Sandra Cash. The Colters were found closest to the front door. Their bodies were face down and blood was seeping from their heads into the carpeting.

Autopsies revealed that the Colters each died from a single gunshot wound to the back of the head. Bullets were recovered. Luva was also shot in the back of the head, but no bullet was recovered at autopsy. Buddy, an oil well employee, was shot twice in the head - one through the left eye and one in the back of the head - and once in the thigh; any one of the three wounds would have been fatal.

There was gunpowder on Buddy's face, giving silent testimony that his killer had put the gun directly against his eye before pulling the trigger. Luva, a retiree, had tried to hide under the pool table but she was shot where she was. Forensics determined that the gun that shot Sandra was not the same gun that shot Alvin and the Colters.

DaRoyce Mosley, Marcus Smith, and Ray Don Mosley, Mosley’s uncle, were arrested separately on July 22 after the police received several tips. One such tip was from a man who lived across the street from Katie’s Lounge. He informed police that Ray Don, along with Marcus and Mosley, had spoken with him on July 21 outside his residence.

Ray Don, who was in possession of a pistol, told the informer that there was some money in the area and that he had to have it. This party of three left the man's property, and returned 30 minutes later with a tackle box, requesting a ride. The informant stated that Ray Don told him he had shot someone over at Katie’s Lounge.

Another tip was from “Kaboo”, Mosley’s best friend and Marcus’s cousin. Kaboo told police that on the evening of the murders he saw Mosley with a gun, which Mosley claimed to have gotten from a neighbor. Mosley left, but returned with Marcus and Ray Don. Ray Don stated that they had killed people in Katie’s Lounge. After Kaboo expressed his disbelief, Mosley responded, “We did it.” Then Mosley divided the contents of the tackle box evenly between Kaboo, Ray Don, and Marcus, each party receiving $77.00.

On July 22, 1994, after pulling over Mosley to arrest Marcus, the police asked Mosley if he would voluntarily go to the police station to answer some questions. Mosley agreed. At first, Mosley averred that he had nothing to do with the robbery and murders at Katie’s Lounge. After the police received information from Marcus, however, they arrested Mosley.

At this point, Mosley made a second oral statement and admitted to shooting two of the people at Katie’s Lounge. Mosley requested and received the presence of his grandparents before continuing further. In the third statement, which was transcribed, Mosley insisted that the offense had been planned in advance, but that once it was time to go through with the plan, he did not want to participate.

Although he admitted to being present at Katie’s Lounge when the shootings occurred, he denied shooting anyone. He also informed the police that he had been wearing a ski mask or toboggan during the offense and had thrown it in the woods near the informant's residence.

Based upon information in the third statement, law enforcement officers requested Mosley accompany them in search of the discarded hat. A glove was found near the toboggan, and Mosley then admitted to wearing a glove during the robbery. Law enforcement agents explained to Mosley that they could tell by the residue on the glove whether the person wearing it had fired a gun. They asked if Mosley had anything to add to his previous statements. At this time Mosley made another oral statement, indicating that he had shot four people at Katie’s Lounge and Ray Don had shot the woman behind the bar.

After a period of rest, Mosley made his final statement to police. Ray Don went in first and told everybody to get down. They were still sitting up in the chairs and I heard a shot. The people looked at me and it scared me and I shot a lady at the table. I was about five feet from her and I shot her in the back of the head. Another lady got up and ran. Ray Don told me to kill them. Ray Don told me to shoot them or get shot. When I looked at Ray Don, he was pointing the gun at me. He said this after I had already shot the first lady. Then I shot a man who was sitting by the first lady I shot. I don’t know where I shot the man at. I was about the same distance I was when I shot the lady. By this time the lady that ran had gotten under the pool table. I told the lady to get out from under the pool table. Ray Don said, “Fuck that, shoot her.” Then I shot the lady under the pool table twice in the head. I bent down next to the pool table and shot her twice. Then Ray Don was behind the bar and had shot behind there. I came from around the pool table and another man was by the bar.

The man got up and was coming towards me with a pool stick. Ray Don said, “Shoot him boy, shoot him.” I just turned my head away and shot three times. The man fell after I had shot three times. Ray Don had gotten the money in a big box from behind the bar. The box was dark colored. Then we ran out and ran across the street. Ray Don started hollering and asking me where Marcus was at. I kept telling him I didn’t know. Then we saw Marcus come up behind us after we crossed Highway 136.

Ray Don asked Marcus where he had been and Marcus told him he had been trying to break in a car. Marcus went into Katie’s when Ray Don and I went in. After I shot the first lady, I looked around and Marcus had left Katie’s.

Helen Wrag, Luva Congleton’s niece, testified that her aunt "...was a happy person. She liked people. Q. Did she ever meet a stranger? A. No sir. Q. Was that part of her personality that she did well with people? A. Yes sir, she had people that ask for her [waitress] station." Tricia Kappan’s testified regarding her mother Patricia Colter, her step-father Duane Colter, and her father, Alvin Waller. "Well, Mamma and Daddy still loved each other, but it was — they were like best friends. And when Mamma met Duane, Mamma was his whole life. And they were just all friends.

Daddy lived in a trailer behind my mother’s house. He was going through a tough time and needed a place to go. And so my mother had a travel trailer behind her house, and he stayed there. And a lot of the time, he just slept in the extra bedroom at the other end of the trailer where Mamma and Duane were. They were just all really good friends. And they hardly went anywhere without each other. They just were all very close. Duane was a very special person to me. I was sixteen. I was already grown. But when my mother met him and introduced us, I was kind of shocked and everything, but the more I was around him, the more you just couldn’t help but just love him to death. He was just so sweet. He was like a big kid, you know. He was just great.

My mother was my sole supporter. She had been through so much in her life that I felt like anything that she was going to have to go through, that I was going to be there with her and I could go through it with her. There was some times, you know, when we would move away and my brother would stay with Grandmother, but I couldn’t stand it. I was always afraid, you know, something might happen to her or she wouldn’t be strong enough to pull through something. I was just a kid, but I would think, you know, if I was there, I could help her through it; I could pull her through. And then whenever I got married, it was like I just wanted to prove to her that I was a big girl and I could take care of myself and she need not spend all of her money on me. She was always buying things for everybody. I would just think if she wouldn’t buy stuff for everybody else, she could buy it for herself. But I always thought I would be there to take care of her and she would be there to take care of me. And she was my right arm. She was my backbone."

Does DaRoyce Mosely deserve to Die ?

(This headline was used for a magazine article about DaRoyce published in the Texas Monthly in February 1996.)

Having corresponded with DaRoyce for a year, met him in person, read the article and talked to people who knew him, I feel the answer has to be, NO.

DaRoyce Mosley is a highly intelligent young black man who happened to be born in a town called Kilgore in the state of Texas where racism is still rife. Black people are in a minority, and attitudes towards them are still reminiscent of the days of slavery. The fact that DaRoyce managed to graduate, with honours from the local high school is something of a miracle. He was an extremely academic young man who pushed himself to succeed at school against all the odds.

He was the only black student in his classes and his two closest friends were white. He was known to the local community as one of the first black people who broke through racial boundaries. Before the incident for which he was arrested and charged, he had never been in trouble with the police. As a boy of eight he had assumed responsibility for his brothers and sisters, often left alone by his very young mother who had a drugs problem. He never had the experience of a father figure. The man who was his father was known to the family, but he never took on the responsibilities of being a parent.

Without the support of his aunt and uncle and grandparents, who knows what would have happened to DaRoyce. However, what changed the events of DaRoyce's life was living with his grandparents and his uncle Ray Don, a known criminal in the year when his friends all went off to university. The decision to stay in Kilgore might be the one which will result in death by lethal injection.

After his friends went off to university, it was as if DaRoyce's support network had gone. He began hanging out with very different people, one of them being his uncle, Ray Don, who his grandmother had warned him against. It was as if all those years of being the high achieving student had reduced him to the figure of an 'Uncle Tom'.

His uncle, apparently tormented and provoked him. And implied he wasn't really a man. Now we could all say, DaRoyce had the intelligence to be able to withstand this, but we can't really know what it feel like to be a black man in a community such as Kilgore. For some reason, DaRoyce agreed to accompany his uncle, Ray Don, on a robbery. Ray Don was known to the local community as a hardened criminal; someone to be scared of;not someone to really hang around with. What happened at 'Katies' that night is fairly horrific; four white people were shot dead.

Yet the person brought in and charged for the murder was DaRoyce. He does not deny being there, but he does deny the fact that he actually shot anyone. He broke down and confessed after 16 hours questioning. He had no lawyer present, and being only 19, had no concept about what he was really admitting to. Other people maintained that RayDon had bragged about being the person responsible, but at the trial, no one seemed interested in these statements. According to his white friend, Shannon who testified at his trial, the whole case turned in to a race issue, with the prosecution trying to put across the view that DaRoyce was a black man who wanted revenge on whites.

Everyone who knew him was totally shocked at the fact that not only was he found guilty, but that he received the death penalty. There was no forensic evidence that linked DaRoyce to the shootings, the whole trial consisted on other peoples accusations and DaRoyce's 'confession'. Later, DaRoyce told his lawyers that the truth was that he had followed his uncle into Katie's but ran out when his uncle killed the bar maid.

Unfortunately he was advised not to speak at his trial, something he bitterly regrets now. A report frm the Forensic Science Associates supports this statement but the courts denied the money to DaRoyce which was needed to pay them. Can you help DaRoyce? You can write to him at the following address;

DaRoyce Mosley+999171 Polunsky Unit, 3872 FM 350 South, Livingston 4 Texas, 77351, USA.

Raised in KilgoreIs poorest black neighborhood, he was an honors graduate with a bright future until he was convicted of killing four whites. But the case is still hotly disputed, and the question remains..., Does DaRoyce Mosley Deserve to Die? by Skip Hollandsworth

IN THE EAST TEXAS TOWN OF KILGORE, KATIE'S WAS JUST ANOTHER beer joint perched next to Texas Highway 135. Inside, there were a few tables the size of hubcaps, a small pool table, a jukebox, and some Dallas Cowboys posters tacked to the plywood walls. The customers were white working-class people. Most of the men who stopped in for the 81 bottled beer were oil-field workers still trying to make a living from the dregs of what was once the largest oil field in the world. They arrived in unwashed pickup trucks. They wore shirts that had their first names sewn above their pockets. Their wives or girlfriends often came along, sitting at separate tables, smoking cigarettes and calling each other "honey." The owner, a rusty-voiced woman named Katie Moore who had been operating East Texas honky-tonks for more than thirtv vears. liked to call Katie's a "quiet little family place."

But on the night of July 21. 1994. Sandra Cash, the 32-year-old barmaid who was paid S30 a night to serve the beer, crawled to the phone and made a 911 call. "Please help me." she rasped. "I am choking." A young Kilgore police officer, one of the first to arrive at Katie's. was young horrified by what he saw that for months afterward he needed counseling. Behind the bar. Cash was barely alive. her spinal cord severed by as many as six shots that had been fired into her. The four customers who had been at Katie's that night were crumpled on the floor, each one shot in the head.

Patricia Colter, a 54-year-old Wal-Mart employee, and her 44- year-old husband. Duane, who worked at a Kilgore company that built ceramic toilet fixtures, were closest to the front door; face down, blood from their heads seeping into the carpet. Alvin "Buddy" Waller, a 54 year-old oil-well worker; was lying a few feet away with a pool cue in his hand. He had been shot once in the leg, once in the back of the head. and once through the left eye.

Because of the gunpowder on his face, investigators knew that the killer had stuck the gun right up to Waller's eye and pulled the trigger. Luva Congleton, a 68-year-old retiree, had crawled under the pool table to lude. The killer had walked to the pool table, leaned down, and shot her. The only item missing from Katie's was a gray fishing tackle box that Cash used to keep the bar receipts. It held $308.

Throughout the night and into the next morning, officers and agents arrived from the Federal Bureau of Investigation; the Bureau of Alcohol. Tobacco. and Firearms (ATF); the Texas Rangers; the Department of Public Safety "s mobile crime laboratory; two sheriffs departments: and the Kilgore Police Department. The mayor came. The local press showed up too. Describing Patricia Colter in her younger years, a reporter for the Kilgore News Herald wrote, -'She] looked like she could have gone to Hollywood and become a movie star." Katie's regulars stood behind the yellow police tape and told anyone who would listen that the killer or killers had to have come from Goat Hill, a poor black neighborhood just down the highway. "Crack city," one, called it. "Nigger heaven." said another.

Two days later, the police announced they had found the killer. nineteen-year-old Goat Hill resident DaRovce Mosley, a former honors student at Kilgore High School, member of the student council, and starter on the basketball team who had gone on to Kilgore College. Tall and smooth-skinned, with a dazzling, broad smile, DaRovce was one of the few black teenagers whom any Kilgore resident knew by name. "He was just about the first kid to cross the racial lines in Kilgore, which is saving a lot for a town that's still got some Old South in it," said his friend William Linn. a former high school classmate who is white. "I mean, it's no secret that whites and blacks here keep their distance from one another.

ButDaRoyce made a point of making white friends. He kept saying that he wanted to be successful and that he didn't want to be stuck in his part of town." DaRoyce's arrest-and the district attorney's decision to seek the death penalty-was unfathomable to many Kilgore residents. This was a kid, people said over and over, who talked about becoming a doctor or a lawyer. "I'd have called him studious," said former Kilgore mayor Bob Barbee. "'Respectful' is the word I would always use to describe him," added Kathy McMillan, a schoolteacher whose son was one of DaRoyce's closest friends. "'He'd come over to spend the night here, and he'd always carry on an intelligent conversation with us in this very gentle voice." But after an all-night interrogation, DaRoyce had signed a confession in which he admitted that he had agreed to accompany his 31-year-old uncle, Ray Don Mosley, on a robbery along with Marcus Smith, a 16yearold Goat Hill teenager with a juvenile record. DaRoyce said that although he had tried several times that night to back out of the robbery, his uncle Ray Don, one of the most feared criminals in the Goat Hill neighborhood, persuaded him to come inside the bar.

"I had never done anything bad before, and I felt like doing something bad," DaRoyce said in the confession. After they walked in, he said, Ray Don shot Sandra Cash. "The people looked at me and it scared me and I shot a lady at a table," DaRoyce said. He then said Ray Don pointed a gun at him and ordered him to kill everyone else or be shot himself.

For the police, the case was open and shut. But plenty of Kilgore's citizens were convinced that the confession was not the truth. DaRovce's friends insisted that he hated guns: When he had gone along with them on camping trips, he wouldn't hold a gun, let alone shoot one.

A psychiatrist and a psychologist who arrived separately to interview DaRoyce said that nothing about his personality fit the profile of a mass murderer. It was also peculiar, they said, that DaRoyce had given -a series of different stories during his all-night interrogation before finally saying that he did the killings. "I believe that, during the night he confessed, he was under intense pressure, emotionally broken down, his mind almost dissociated from reality," said Louis-Victor Jeantv, an Austin psychiatrist who spoke to DaRoyce for several hours. "He was trying to please a group of angry police officers because that is his nature."

After his arrest. DaRoyce told his attorneys that he had been so scared during his interrogation that he had lied to the police. The real story, he said, was that in a moment of weakness, trying to prove to a belligerent Ray Don that he was not a "punk," he went along on the robbery but ran out the door once Ray Don started shooting. To those who knew the strapping, insolent Ray Dononce described by a lawyer as "a walking piece of dynamite"-it was absurd that the police were apparently believing his confession, in which he said that he shot Sandra Cash but then threw down his gun once DaRoyce began shooting everyone else. Did the police really think that Ray Don Mosley, the man who organized the Katie's robbery, deliberately dropped his gun?

At least five Goat Hill residents later gave sworn statements that they personally heard Ray Don claim he had murdered everyone at Katie's. (Ray Don would not be interviewed for this article.) Charline Jackson, Ray Don's sister and DaRoyce's mother, said Ray Don came by her house , told her he had committed the killings , and then added that he enjoyed looking at the blood coming out of the backs of the white people's heads.

For a death penalty case, in which the truth is supposed to be obvious , the reseemed to be as many questions as answers. Indeed the cases ent the town into turmoil, forcing its citizens to confront the fine line between guilt and innocence and between justice and compassion. As one longtime teacher at the high school would later say, "After DaRoyce's arrest, none of us here were ever the same again."

"THIS DOESN'T FEEL RIGHT, DOES IT?" DAROYCE ASKED ME WHEN I first met him in a holding cell at the courthouse just before his tria l this past October. He gave me a sympathetic smile, his liquid brown eyes blinking be hind his wire-rimmed glasses. "No matter what that district attorney says, people he reknow I'm not some monster," he said. '`They know this isn't right."

About 115 miles east of Dallas, Kilgore, population 11,000, is still very much a part of the South. not the Southwest. A Confederate flag flies over the local police department, and Gregg County (where Kilgore is located) is named after a Confederate hero. Because of the town's past-in the thirties it was a kind of Texas Eden, its land brimming with oil-some remarkably wealthy, sophisticated residents live there. But the oil patch is also home to a large number of blue -collar workers whose talk would chill even the bravest blackman. Sitting one night in Katie 's, Iliste ned to some roughnecks discussing a black employee at an oil-drilling operation.

One man said to his buddy across the table, "I told that nigger boy, `Get your ass in the truck or I'll put my pipe wrench around your scraw ny nigger neck."' Goat Hill residents say that when they walk past Katie's, patrons occasionally stand in the doorway and shout, "Get on out of here, niggers!" According to Sandra Cash, Katie makes it clear to her barmaids that black people are not welcome.

Although other black neighborhoods a rescattered around Kilgore, which is about 15 percent black, none is as dilapidated as Goat Hill, which is on the northwest edge of town. Many of the frame homes look like their roofs are about to buckle. Concrete blocks prop up the front porches. Few homes have air conditioning units; one has carpets ta pled to the outside walls to provide insulation in the winter.

A ditch runs through Goat Hill where water and oil dripping from a leaky pipeline settle for weeks at a time. It is a barren world of unwed pregnant teenage girls, aimless young men who don't finish high school, mothers and grandmothers who, if they work, usually find jobs as domestics for the richer whites, and a few grown men who have not abandoned their families. About the only white people whose t foot in Goat Hill are members of a new drug-prevention program called Turn Around Kilgore. On Saturdays the mostly prosperous white citizens march in front of the homes of suspected drug dealers and chant, "Hi-de -hi-de-hi-de -ho, drug dealers got to go.„

Charline Mosley Jackson was only fourteen and unmarried when she gave birth to DaRoyce. She told me that she had been a teenage drug abuser. Charline had four more children. But she spent much of her time on the streets, moving from man to man, often leaving home for a couple of days. DaRoyce is not sure who his father is. When he was eight, he got a job bagging groceries in return for me at and bread to feed his younger brother and sisters. On nights when the electricity in the house was turned off because Charline hadn't paid the bill, DaRoyce built a fire in the bathtub to keep him a nd the other children warm.

One evening the children heard Charlines creaming in the front part of the house. Her brother; Ray Don Mosley, had come by, started an argument, then pulled out a knife and slashed Charline across her breasts. To those who knew Ray Don, the attack was no surprise. "When we were growing up, we all ran the other way if we saw him," said Tracey Arch, a student at Kilgore Junior College and a former Goat I Hill resident. "He'd rather hit you than talk to you."

Ray Don's parents, Raymond and Francis Mosley, couldn't control him when he was younger. "Ray Don's mind was just different, that's the only way I can explain it," said Francis, who works as a cook at a local nursing home. "He always talked about how he hated white people and wanted to get them." As a teenager, Ray Don turned to small-time crime.

By the late eighties his adult rap sheet included aggravated assault, sexual assault, drug possession, attempted burglary, and fraud. In a statement to a private investigator, a Kilgore woman said that after she had accepted Ray Don's offer of a ride home from a party, he drove down a dirt road and held a gun to her head while another man raped her. Another woman, an exgirlfriend, said in a separate affidavit that Ray Don had gotten angry and held as hotgun to her head. "Oh my, you should have seen him," Francis told me, "jumping on his women and dragging them up and down the yard." Francis Mosley had made it a point to warrn her grandson about Ray Don. She took DaRoyce to see him at the county jail. "This is my own son I'm talking a bout now," Francis would tell young DaRoyce, "but you becare ful of him. He gets so mad his eyes turn blood red."

Through most of his childhood, DaRoyce hardly saw Ray Don. When DaRoyce was in elementary school, his mother dumped her children at the home of her uncle and aunt, Joe Rogers and Johnnie Mae Johnson, who lived just outside Kilgore in the community of Fredonia. Charline didn't return to see them for at least a year. While the other children were split up among various relatives, DaRoyce stayed with Joe Rogers and Johnnie Mae. The Johnsons didn't have much money for their own children J oe Roge rs wa s a s e lf-employed auto repairman and welder--but they treated DaRoyce like a son. Most important, they kept him a way from Goat Hill. "Before he came to us, he lived in a shack that half the time didn't have water or gas," said Johnnie Mae. "I remember when his mother came back around and told him he could move back in with her in Goat Hill, he said he'd It was as to nishing, people said, how DaRoyce pushed himself to succeed at school. He made As and B's, earning the name" bookworm" from his family, most of whom hadn't made it through high school." I was the only black kid in the honors advanced classes at school," DaRoyce said. "So who else was I supposed to talk to, ot her than the white guys? " He started to go to white kids' parties. He even went a long with one of his white friends to Kilgore's august First Presbyterian Church. DaRoyce was remarkably out going: He loved teasing people and being a class clown in high school. But he told me he didn't always like hanging around other black kids or going to their parties because the rewas usually a fight. "DaRoyce would get upset at the way the tougher black kids would act," said Kathy McMillan, the mother of DaRoyce's friend Aaron, who is white.

"One night Aaron and DaRoyce were driving a round and Stopped to talk to some girls. Then another car of black kids came by total k. Well, the girls went back to their own car a few minutes later and their purses were gone. Everyone knew who took the m-t he black kids. DaRoyce was soup set. He kept saying this was the kind of thing that gave all blacks a bad name. "It had to have been a difficult balancing u: t for DaRoyce. "The black guys in the neighborhood would say, `Look at DaRoyce. lies trying to be better than us. Look at that honky lover, that Uncle Tom,"' DaRoyce told me. "I didn't want to be white. I just wanted to make something of myself." But many white students refused to accept him. Some taunted other whites who were close to DaRoyce. In his senior year in high school, he lost his starting position on the basketball team after he broke his hand in a fight with a white classmate who had called his buddy Aaron a "nigger lover." "I went over to that guy's house," DaRoyces aid, "and I told him I don't disrespect people and I hadn't given him any reason to disrespect me. And I said I didn't appreciate that `nigger's hit. One thing led to a not her and we ended up fighting." At another party he attended with Aaron, a fight broke out and DaRoyce got in the middle of it. He suddenly found several white guys surrounding him, including some members of the Kilgore College football team. "Everybody started shouting, `Let's lynch the nigger, "'said William Linn, who was also there. "DaRoyce got the crap beat out of him. Then. after he left, the cops arrived and one of the white guys hosting the party told them, `Man, everything was fine until that nigger DaRoyce came around."' When I asked DaRoyce about his exposure to racism in Kilgore, he shrugged as if it was of little importance to him. "You have your prejudiced people, you expect that, " he said. His white friends said DaRoyce never see me despecially angry about race relations or felt a need to settle any scores.

The polar opposite of his uncle Ray Don, DaRoyce never had a single brush with the law. As the super in tendent of schools would later say, DaRoyce was "a happy-go-lucky student-part of the better class of students who obeyed authority and followed directions. But after graduation in May 1993, when some of his white friends he aded to Austin or San Marcos for college, DaRoyce made a fateful decision. He decided to spend a year at Kilgore College to get some basic courses out of the way and save money to attend the University of Texas at Austin. Because he didn't own a car, he moved back to Goat Hill to live with his grandparents, Francis and Raymond Mosley. "DaRoyce kept saying, `I'll be joining you, I'll be ioin ine vou. "' said Aaron McMilIan, a handsome UT premed major who dresses in starched shirts, pressed khakis, and Roper boots. "Now all I think about is how different things would be if he had just gotten out of town. " No one can say for certain what happened that year at the Mosleys' rickety three - bed room house, where a paint in gof the Lord's Supper hang s o n the l iving room wall and a lucky horse shoe is nailed to the front porch. Ray Don was not around: He was on his way to prison for violating the conditions of a probated sentence he had received for stealing a Pontiac Fire bird. DaRoyce spent much of his spare time in Goat Hill hanging out with a teenager named Chris "Caboo" Smith, his team mate on the Kilgore High basketball team until he had been shot by a neighborhood teenager after an argument, leaving him paralyzed. In the afternoon Caboo would wheel himself out to the street and talk to whoever came by. Among the young men who whiled away their time in front of Caboo's house, it was crucial not to be considereds of t- not to cave in when challenged at basketball games in the park or act too sweet for a girl. Some of the homies liked to talk about "jack moves " and "gank moves "Goat Hill slang for robberies. "But DaRoyce acted very polite," said Tracey Arch.

"My mother was always surprised by the way head dressed her as Mrs. If we were all hanging out by Caboo's, and some one's mother drove by, DaRoyce would hide the beer lie was drinking to show respect." One thing, however, did change in DaRoyce life: His academic work started to suffer. By the end of the 1994 spring semester, his grade point average had plummeted to 1 .5 and he was placed on scholastic probation. " I was goof in goff ," DaRoyce told me, obviously embarrassed. He spent chunks of his days at the student union, playing pool and table tennis and talking to "the honeys." He found himself hanging around Caboo's in the evenings until midnight.

By the end of his freshmanyear he had lost his $ 2,250 annual grant for student aid, though administrators said he could get it back if he took classes in summer school to improve his GPA. But DaRoyce said he would pay for school himself the next fall and prove what he could accomplish. He never got that chance. In June 1994 Ray Don Mosley returned from state prison to Kilgore and moved in to the same cramped house where DaRoyce was living with his brother, sisters, and grandparents.

HE SMOKED CRACK. HE REFUSED TO get a job. He peppered DaRoyce with insults to see if he would fight or cry. He called him "Mr. Kilgore," "punk," and "pussy." He liked to sav DaRoyce was "too much," meaning he acted too white. "He said DaRoyce had too nice any big ideas, " said Francis. For whatever reason, Ray Don was determined, said DaRoyce's great-aunt Johnnie Mae Johnson, "to bring DaRoyce down to his level. I'll never forget Ray Don saying, ` If I have to go to the Big House again, then I'm going to take some one with me. And whatever I do, it's going to be some thing big." ' DaRoyce told me that Ray Don and Marcus Smith, a sixteen-year-old who lived down the street, would of ten regale one another with stories of burglaries and other crimes they had commtted. Inevitably, Ray Don would turn to DaRoyce and say, "Man, you need to do something. You're acting too nice. " "No, man, " DaRoyce would reply, " I' m not down for that. It 's not my style." "One time, you punk, it ain't going to hurt you, " Ray Don would say.

"What outsiders don't understand is that in that poor neighborhood, being called as is sy, a punk, is a terrible blow," said Louis-Victor Jeanty, the psychiatrist who interviewed DaRoyce. "And the man saying this to DaRoyce was Ray Don, this evil legend in the community who had nearly killed DaRoyce's own mother. I'm certain DaRoyce was so scared of Ray Don that the rewas no question of following him, because if he didn' t, something bad would ha ppe n to hi m." I asked DaRoyce directly why he couldn't walk away from Ray Don. "I guess, you know," he said hesitatingly, "Ray Don was my uncle and I never. had done anything with him and I guess I'd do that to get him off my back. If we robbed somebody or stole something, then I could say, `Yeah, I did it, now get off my back. You can't] say I haven't done it before. 'So I just thought I'd get it out of the way, get him off my back, so he would leave me alone and quit throwing it up in my face."

What do omed DaRoyce, however, was his decision to go along on a robbery of Katie's, a place that made Ray Don seet he. In sworn statements to the police, many Goat Hill residents said they heard Ray Don say that he wanted to either burn Katie's down or shoot the people in the re. DaRoyce told me that Ray Don would say, "I want to rob all them prejudice d m- f- s up the re at Katie's. Somebody needs to rob them. " DaRoyce insisted to met hatne it her Ray Donnor Marcus said anything to him about shooting anyone when they planned the robbery. He said he made it clear that he was not going to participate actively in the robbery. "I told them, `If y a'll grab them one y, that's just you doing it . I'll just be the re ."'

On the night of July 21, 1994, Ray Don showed up at Caboo's with a .380 semiautomatic pistol he had bought from a fifteen year-old crack dealer. He showed it to Marcus and DaRoyce. Marcus later told investigators that DaRoyce said to Ray Don, "We're going to chill. "But when Ray Don and Marcus began to head off to get a second gun, also a . 380 semiautomatic, from a young man who lived behind Caboo's house, DaRoyce suddenly said," No, I'll get it ." Why would DaRoyce, who hated guns, make sure to get one for himself? DaRoyce told me he did it to keep Marcus from getting the gun. "I knew that if both Ray Don and Marcus had guns, they probably would kill somebody, because they would both try to be bad; so I got the gun, because I knew I wouldn't shoot anybody ."

Exactly what happened the remainder of that night is hotly disputed. But according to witness statements obtained by the police, this much is known: The trio went back to the Mosley house to put on gloves, bandannas, and ski masks. As they walked to Katie's, a neighborhood acquaintance named Napoleon Wheat drove by in his pickup truck and shouted to Marcus, "What's up, Cuz? Is you trying to rape some body? " Ray Don then went to the nearby home of Napoleon's brother, Darrell, to see if he could borrow a gun. Ironically, Darrell, who had been drinking throug ho ut th e n ight, had gone in to Katie's just a couple of hours earlier and ordered a beer. The barmaid, Sandra Cash, called the police, who came and took Darrell outside and asked him what he was doing there. A few minutes later, Darrell left .

Back at his house, Darrell told Ray Don that he didn't have a gun. Ray Don, DaRoyce, and Marcus then he aded to ward Katie's. According to one of DaRoyce's statements, he kept "beggin g off " because he was scared. He said too many people in the neighborhood knew what they were going to do. " And they [Ray Don and Marcus] started cussing me, calling me ad a mn punk and stuff like that. I said, `I ain't no punk, I'm just scared. 'They were like, `Naw, naw, we said we was going to do this. We was all in this to get her." ' When they got to Katie's, Ray Don, who was in front, told Marcus to bring up the rear so DaRoyce wouldn 't run off. A few minutes later, the three of them returned to Darrell Wheat's house. One of the Wheat brothers gave the trio a ride back to Caboo's house, where they divided the $ 308 taken from the bar. DaRoyce then went home, and Ray Don went off to buy some crack with his money. But like a psychopath who needed to return to the scene of his crime, Ray Don showed up at Katie's at one-thirty in the morning to watch the police coming in and out of the bar.

He also came back the next morning to watch the bodies being carried out. Two young Goat Hill women later said that when they gave Ray Don a ride the day after the murders, he proudly told them he had done the shootings because a man at Katie's had once called him a nigger. Three other residents later signed affidavits saying Ray Don told them he had committed the murders. Meanwhile, DaRoyce spent the day after the slayings buying a used car. His down payment was money he had received in an insurance settlement over a minor car accident. He then picked up some friends - including Caboo and Marcus - and drove to the Longview mall, where he bought some new shoes, shirts, and as weatsuit. Either out of ut te r remorselessness or because he was in some state of denial. DaRoyce was going right along with his life. " I was shocked, so shocked," DaRoyce told me. "I felt bad about what had happened. But what a m I supposed to do? Breakdown and cry ? Do you want everybody to know? "

Right off, the police went looking for Darrell Wheat. He told them about DaRoyce, Ray Don, and Marcus. That Friday evening, less than 24 hours after the shootings, the three of them were picked up by the police and interviewed at the Kilgore Police Department. Initially, DaRoyce told F B I agent James Hersley, who had been asked by Kilgore officials to assist on the case, that he spent the evening at Caboo's house and had never gone to Katie's.

In another room, Marcus was saying that he had turned and fled before the shooting started. But in a third room, Ray Don was talking. He said DaRoyce had gone in to Katie's and told everyone to lie on the floor. Ray Don said that after shooting Sandra Cash twice, "I threw [ my] gun down and DaRoyce was shooting the people sitting at the table in the back of the head. .. . The people at the table were just falling on the floor. I saw a man near the pool table raise up a pool stick that he had. DaRoyce shot the man with the pool stick several times. DaRoyce also told me later that he had shot a lady up under the pool table." Around three in the morning, FBI agent Hersley confronted DaRoyce with the new information and told him that he was being arrested for murder.

According to Hersley, DaRoyce cried out, "Oh, what have I done. I've ruined my life. I'm going to spend the rest of my life in jail." DaRoyce then said he had shot two people and Marcus had shot two. After more time passed, Hersley and a Texas Ranger asked DaRoyce if they could tape - record his statement.

During that session, DaRoyce changed his story again, saying that he had panicked and that Marcus had pulled the gun from his hand and shot everyone. When Hersley asked DaRoyce why he had earlier said that he and Marcus had each shot two people, DaRoyce replied that Ray Don and Marcus "had told me that if anybody went down, they were going to say that I shot two people, even though I didn' t shoot anybody. .. They were going to say that we all had something to do with it ." After sunrise, about seven in the morning, ATF agent Larry Smith asked DaRoyce to show him where he threw the ski mask that he had worn in the robbery. When they got to the scene, Smith saw a glove, which DaRoyce admitted was his. Smith recalled that he said to DaRoyce, "You know, we can run gun powder tests of your glove to find out if you were the shooter at Katie's."

At that point, said Smith, DaRoyce said he was ready to change his statement and admit that he had shot all four people at Katie's. (DaRoyce heated ly told me that he never made a confession to Smith at the scene.) Instead of taking the new statement from DaRoyce immediately, Smith suggested that every one get some sleep. Six hours later, DaRoyce said he killed the Katie's customers because Ray Don had pointed a gun to his head. According to witnesses in the room, after the eight-page, single spaced confession was printed out, DaRoyce read it carefully for at least thirty minutes before signing it. It was 3:50 on a Saturday afternoon, more than sixteen hours after the police had started questioning him.

ALTHOUGH THE CASE LOOKED AIRtight, there were significant problems. The glove and clothes that DaRoyce wore that night showed no trace of blood from the four victims and no trace elements of gunpowder residue. Ballistics and autopsy tests showed that the gun DaRoyce got from the man who lived behind Caboo had been the one used to murder the four customers at Katie's. But a blood spot inside the small box where the gun was kept when the police recovered it matched Ray Don's. Blood matching that of Buddy Waller, one of the victims, was also found all over the side of one of Ray Don's tennis shoes. "Bloods patter" tests showed that Walle Fs blood had hit Ray Don's shoe at a high velocity, undoubtedly as a result of the force of a bullet entering Waller's flesh.

In other words, Ray Don had to be standing very close to Waller when he was shot. To further complicate matters, Marcus Smith said that when he saw Ray Don and DaRoyce after the shootings, Ray Don was covered with blood, but DaRoyce had no blood on him at all. Ronald Dodson and Richard Stengel, two longtime fire arms and toolmark examiners for the Bexar County Forensic Science Center in San Antonio, were asked by the defense attorneys to study the crime scene.

They studied the shell casings that had been ejected from the two pistols. By noting the location of each casing on the floor, it was possible to determine where the killer or killers were standing when the shots were fired. Dods on and Stengel found that a shell casing lodged under the pool table next to Luva Congleton's body had come not from the gun DaRoyce supposedly used but from Ray Don's gun. If Ray Don had shot his gun only when he first came into the bar, as he said he did, his gun's casings would have flown toward the right corner. Although police investigators suggested that the casing had been kicked by officers and ambulance attendants when they got to the bar; Dods on said it was impossible for some one to have kicked that casing on a carpeted floor all the way across the room and around the other side of Luva Congle ton's body.

Trying to understand how Ray Don's blood got ins ide the gun box, Dodson and Stengel wondered whether Ray Don had used both guns that night. Dodson had been a homicide detective in St. Louis for ten years before coming to San Antonio. He was a hard-boiled cop who had investigated more than five hundred homicides and written a major paper in college on the importance of the death penalty. He almost never testified for defense attorneys. "But the more I kept looking at the evidence from the crime scene," he told me, the more I was convinced that DaRoyce froze at the door and didn't s hoot anybody, and Ray Don took the gun from DaRoyce." I asked Dodson about the police department's theory that Ray Don didn't shoot Buddy Waller because the blood spatter was only on the side of Ray Don's shoe, meaning that Ray Don had to be standing on the side of or away from Waller when he was shot. "Oh, that's easy," said Dods on. "I think after Buddy Waller had been shot in the leg and the head, Ray Don stood right over him, his foot at a side ways angle to his face, and he shot him through the eye. You have to ask yours elf if DaRoyce Mosley could be capable of doing s ome thing that vicious ."

When I asked DaRoyce to tell me what really took place that night, he did admit tha the had followed Ray Don into the bar. "Ray Don told me to shoot the lady in front of me. Is aid, `I'm not going to shoot a nybody.' He said, `Shoot her, godda mmit.' Is a id, `I'm not going to shoot a nybody.' He snatched the gun out of my hand and I turned to run." "But why didn't you ever go back to the police and tell them that Ray Don had killed those people? " DaRoyce's body seemed to sag, and it appeared for a moment that he was about to break into tears . "I don't know . I honestly don't know," he said. "I didn't know I could just go back [to the police ]. I felt [that since] I had already given several different statements, they would think that this one was also a lie ."

AFTER DAROYCE'S ARREST, SOME SUPportive Kilgore citizens anonymously placed a n a d in the K ilgore new spa pe r a nnounc ing the DaRoyce Mosley Benefit Fund. "Friends of DaRoyce Mosley plead for your help to SAVE HIS LIFE," read the ad, which also showed a picture of DaRoyce from his high school ye arbook. There were, however, plenty of towns people convinced that DaRoyce was a cold-blooded killer. Relatives of the Katie's victims began showing up at pretrial hearings we a ring black arm bands w ith the word "justice" emblazoned on them in gold lette rs.

The tension escalated when DaRoyce's great-uncle Joe Rogers Johnson used his entire life savings, $15,000, to hire Austin attorney Gary Bledsoe, the head of the Texas chapter of the National Association for the Advancement of Colored People, to defend DaRoyce. The 43-year-old Bledsoe -a tall, surprisingly gentle -voiced man who prefers cow boy hats, boots, and bolo ties asked Cynthia Orr, a San Antonio defense attorney who specializes in capital punishment cases, to be his partner. (She worked pro bono.) They immediately caused an uproar when they alleged that the police were desperate to convict DaRoyce because they needed to prove they could successfully solve a case. (The Kilgore Police Department had been embarrassed by the infamous 1983 Kentucky Fried Chicken murder case, in which five Kilgore citizens had been abducted and were later found dead in an adjoining county. Although the police quickly ide ntified four suspects, they were never brought to trial because of a lack of evidence.) "There has been a feeling in the community that maybe its police department isn't up to snuff," Bledsoe told me.

The two attorneys further inflamed the community when they said that the police and prosecutors didn't care about the facts in the case because DaRoyce is black. In one motion to the court asking for a change of venue, Bledsoe and Orr wrote , "The local criminal justice system is still infected with racism, and many members of the community still hold racist be liefs that have not changed since the Civil War." Bledsoe said that during one of his visits to the county jail to see DaRoyce, a jailer unleashed a large German she pherd just to scare him. It was no different, Bledsoe said, than police using German she pherds to attack civil-rights demonstrators in the sixties. Gregg County sheriff Bobby Weaver said the dog was never unleashed. "I am not ca lling him a liar," We aversnapped about Bledsoe , "but he is coming close ." In their most damaging attack, Bledsoe and Orr charged that Ray Don had worked out a deal with prosecutors to keep himself off death row.

At a pretrial hearing, Ray Don was brought to the witness stand. Although Ray Don invoked the Fifth Amendment to keep from answering most questions, the judge did order him to answer one question Bledsoe posed about his making an agreement with the district attorney to testify against his nephew in exchange for DaRoyce's being tried first. Ray Don said yes. Bledsoe then asked if "high-ranking public officials" had assured him that he would not get the death penalty if he took the stand against DaRoyce. Again, Ray Don invoked the Fifth Amendment, and this time the judge ruled that Ray Don didn't have to answer to avoid self-incrimination. "Somethings tinks,'' Ronald Dods on told me. "I've been around too long not to smell a deal." iAs the capital murder trial began this past October, the case could be seen either as a small-town version of the 0. J. Simpson trial, with defense attorneys blatantly playing the race card, or as a reenactment of To Kill a Mockingbird, with callous white officials unfairly prosecuting a black man. Rumors had swept through Kilgore that the Ku Klux Klan was planning to bomb DaRoyce's grandmother's house if DaRoyce was acquitted. There were also rumors that a group of black men had vowed to burn down Katie's if DaRoyce was convicted. Because of the publicity, it had been difficult to find jurors. When 500 county residents were summoned to the courthouse for jury selection, only 207 showed up.

After the jury of eleven whites and one black was finally seated, Gregg County district attorney David Brabham-a wiry man with a thick East Texas drawl and a forceful speaking style-told jurors that DaRoyce's confession superseded any of what he called the "technical arguments" of defense attorneys. "DaRoyce went into Katie's Lounge for the thrill of it, for the thrill of doing something devious," Brabham said.

DaRoyce, who had turned 21 the day before testimony began, sat quietly at the defense table in a gray jacket, dark pants, and a purplish tie. There were days when he softly waved to some nicely dressed white spectators who sat toward the back: parents and former high school classmates from the wealthier side of town. His grandmother Francis, and his mother, Charline, who had gotten off drugs and started singing in the church choir, whispered "We love you" as he was escorted in and out of the courtroom each day. It was hard for the people in the - courtroom not to like him.

During a recess, state district judge Alvin Khoury, who was presiding over the trial, gave DaRoyce a chocolate-chip cookie. One of the trial's most dramatic moments came when Chris "Caboo" Smith was wheeled to the witness stand. In a mumbling voice, he told the jury that on the night of the shootings, DaRoyce came back to his house and said, "We did it." He said DaRoyce told him that he had shot the woman under the pool table. When Caboo was asked if DaRoyce had ever said that Ray Don had threatened or intimidated him, Caboo said no. DaRoyce appeared flabbergasted.

Bledsoe tried to show that Caboo was biased because he is Marcus Smith's first cousin. (Marcus earlier had been given only a two-year sentence at a juvenile facility because the juvenile judge concluded that he had left Katie's before the crime was committed.) But Caboo said in court that he was DaRoyce's "best friend." Desperate, Bledsoe tried to paint Caboo as a drug dealer who couldn't be trusted, based upon the fact that Caboo sat out in front of his house while people drove by. Caboo just shook his head and said he didn't deal drugs. Later, when DaRoyce's final confession was read aloud, jurors could be seen giving angry looks his way.

In response, LouisVictor Jeanty and Gary Mears, a Tyler psychologist who also had seen DaRoyce, testified that they thought the confession was unreliable. Thev gave various explanations of why DaRoyce might have said those things: He was already guilt-ridden about going along with Ray bon's burglary scheme, he was slightly delusional because he had been kept up throughout the night, or he thought the police would stop badgering him if he just said what he thought they wanted him to say.

The explanations might have been more persuasive if the jurors had heard from DaRoyce himself. But the defense lawyers didn't call him to the stand. (Bledsoe told me he was worried that DaRoyce would be "too susceptible" to Brabham's suggestions.) What's more, when the defense tried to present testimony showing Ray Don to be a murderer, Judge Khoury ruled it inadmissible, proclaiming, "Ray Don Mosley is not the one on trial here."

The law in a death penalty case required prosecutors to prove beyond a reasonable doubt that there was a "probability" DaRovce would commit future acts of criminal violence--which they never did. The lone witness they could find to testify about DaRoyce's allegedly violent personality was a longtime Kilgore High School history teacher named Manta Ann Ater, who had a reputation, one former student later said, as "a busybody meddling type."

Ater testified that when she taught DaRoyce in 1992, he was so disruptive that she sent a small stack of disciplinary notes about him to the office. More than just being the class clown, she said. "he craved attention." She said when she once told him that he could do great things some day if he just harnessed his energy, he replied, "I will be famous some day, but it won't be by following your dumb rules."

It seemed preposterous that prosecutors believed DaRoyce should be put to death based on a teachers assertions that he had acted up in her classroom. The defense presented other teachers who said DaRoyce was not a discipline problem. and the school's vice principal testified that he never received any notes from Ater about DaRoyce. But in their final arguments. prosecutors asked the jurors to imagine DaRoyce standing behind them when they are at a convenience store. "Wouldn't your heart skip a beat?" assistant prosecutor Rebecca Simpson asked.

The jurors listened closely, and after an afternoon's deliberation. thev returned to the courtroom to announce their decision. They had determined that DaRoyce would constitute a constant and violent threat to society and that there were no mitigating circumstances to justify a life sentence in prison. Judge Khoury asked DaRoyce to stand before the bench. "DaRoyce," he said in even tones, "by law, I have no choice but to assess your punishment as death." For a moment DaRoyce didn't move. Then he looked at Bledsoe, the man who had become his father figure, and mouthed, "What?" Charline rose, then collapsed on the floor, her body convulsing spasmodically.

The victims' relatives hugged and wept. Outside in the hallway, a distraught black woman told a television reporter, "You people know that if it had been a white person who had killed all those people, he wouldn't have gotten the death penalty." But Brabham was unmoved. "DaRoyce was exposed to opportunities," he said. "He had the intelligence and the ability to do something with his life, and he chose to go the other way." When I later asked Brabham whether he would also seek the death penalty in Ray Don's case, he paused, then finally said, "The case is still pending, and that's all I can say on the matter."

WEEKS LATER, KILGORE CITIZENS were still talking about the trial. Some were able to explain away the discrepancies in DaRoyce's case by saying that as long as he was involved in something in which innocent people were killed, he should pay. "If DaRoyce hadn't gone along, maybe Ray Don would have backed out," one Kilgore resident who sat through the trial told me. But when I talked to Ron Dodson, he shook his head and said, "Goddam, I hate to sound liberal, I really do. But i, there are too many questions about this case for it to end with the death penalty. This kid participated in a robbery in which four people were killed-and that should definitely involve a jail term. But putting this kid to death? Oh, man, no." At the all-black, 122-year-old Kilgore Baptist Church, where Ch~rline sang in the choir, the Reverend Gary Walker preached about Jesus' followers in the New Testament who had been thrown in jail. "The Lord opened the prison doors for them, and he can do it for us," Walker said. Meanwhile, at Katie's, where the dark bloodstains from the killings were still visible on the carpet, I heard a man cheerfully tell a new barmaid, "Don't you worry, honey. As long as I'm sitting here, no nigger's going to come through that door alive."

In mid-December I parked outside the red-brick walls of the Texas Department of Criminal Justice's Ellis I Unit, near Huntsville. A prison guard in a watchtower buzzed me through the barbed-wire gates. In the small front yard of the unit was a nativity scene; a banner reading "Merry Christmas" had been placed above the front door. In the room where visitors are allowed to talk to death row inmates, DaRoyce came out in handcuffs, followed by a prison guard. A thick wire screen separated us, but when I leaned forward, I was able to see DaRoyce giving me that same sympathetic smile. "It's unreal," he said., "It's unreal." He told me that just before his transfer to the Ellis I Unit, he had seen Ray Don in the county jail. He said Ray Don promised to tell the police the truth about the shootings. "But saying and doing are two different things," DaRoyce said. "I have no way of knowing what he'll do. I don't know how to get him to tell the truth." Eventually, I got to the question I had been wanting to ask him since the trial. Why did he confess to all the killings after the ATF agent told him there might be gunpowder residue on his glove? DaRoyce shrugged and told me that on the way to Katie's that night, when the three of them were in some woods, he had pulled out the gun and shot it into the air just to see what it felt like. "You got to realize," he said, "that I had the glove on when I shot the gun. And Ray Don had told me that was the gun he had used to kill the people. So I felt like it [the murder rap] was going to come back on me."

I stared at him. In their earlier statements, no one-not Ray Don, not Marcus, not DaRoyce himself-had said anything about DaRoyce's shooting a gun in the woods. He could tell I was skeptical about this latest story. "But what did you possibly think was the advantage of confessing?" I asked. "I thought it would be a lot easier on me if I said I was forced to do it, that Ray Don made me do it against my will."

DaRoyce might have been telling the truth. Ballistics experts testified that any gunpowder residue on his glove could have been washed off by the heavy rain that fell in Kilgore shortly after the shootings. And the police had never been able to locate all the bullets in Katie's that supposedly came from his gun that night. Still, it was a difficult story for me to swallow. I doubted that I was ever going to know for sure what DaRoyce had done on that one crazed, panic-stricken night in which he gave in to the diseased culture of Goat Hill and the relentless prodding of his uncle. A prison official walked by to notify me that my time was up. The official had other work to do: The execution of a young black man who had shot a Dallas police officer was scheduled for that night. The man had been kept in a cell just three cellblocks away from DaRoyce's. "You know I shouldn't be here. You know I shouldn't be here," DaRoyce said to me as I rose. "I'm different than these other guys. They're like Ray Don--his type of people, people always in trouble."

A guard put the handcuffs on DaRoyce and began to lead him away. But DaRoyce turned and asked, "You aren't going to give up on me, are you?" I didn't know what to say. There was a metallic sound as the prison door closed behind him.

Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998) (Direct Appeal)

Defendant was convicted in the trial court, Gregg County, Alvin G. Khoury, J., of capital murder. Appeal was automatic. On rehearing, the Court of Criminal Appeals, Keller, J., held that: (1) evidence supported conviction; (2) equal protection clause was not violated by method of selection of grand jury foreman; (3) disqualification of trial judge was not warranted; (4) prosecutor's allegedly inappropriate statements during closing argument were harmless; and (5) victim character evidence was admissible. Affirmed. Mansfield, J., concurred and filed opinion. Price, J., concurred in judgment. Overstreet, J., dissented and filed opinion. Meyers, J., dissented and filed opinion in which Baird, J., joined.

KELLER, Judge, delivered the opinion of the Court, in which McCORMICK, P.J., and MANSFIELD, HOLLAND and WOMACK, JJ. Joined. Our prior opinions are withdrawn.

Appellant was convicted in October 1995 of capital murder. Tex. Penal Code § 19.03(a)(2).FN1 Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 § 2(g). FN2 Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises points of error numbered through 176.FN3 We will affirm.

FN1. § 19.03(a)(2) provides that a person commits capital murder when he commits murder under § 19.02(b)(1) and “the person intentionally commits the murder in the course of committing or attempting to commit ... robbery” (ellipsis inserted). FN2. Unless otherwise indicated all future references to Articles refer to Code of Criminal Procedure. FN3. There are no points of error numbered 75-77. We adopt appellant's numbering for ease of reference.

A. SUFFICIENCY OF THE EVIDENCE

1. Guilt

In point of error 126, appellant contends that the evidence is legally insufficient to establish his guilt per the indictment: intentionally causing the death of Patricia Colter while in the course of committing and attempting to commit the robbery of Sandra Cash. Specifically, appellant asserts that the State failed to prove his intent to cause the death of Patricia Colter.

Viewed in the light most favorable to the verdict, the evidence at trial established the following: At approximately 11:45 p.m. on July 21, 1994, Sandra Cash, the night waitress at Katie's Lounge in Kilgore, was closing up for the evening and placing the night's receipts, including about $308 in cash, into a tackle box Katie's used for money. Four customers remained and were keeping her company.

Cash looked out the window and saw two men walking up and joked that she would have to make the men mad because she had already “closed everything up.” Suddenly, the door was kicked open and two men in ski masks came in and stated they were there to rob them. Both men were brandishing guns. The man that burst through the door first said, “Give me the money, you white bitch.” Cash slid the tackle box towards this first man, but he shot her anyway. As Cash shielded her face with her hands, the shot hit her in the wrist and went through her hand. She was then shot in the stomach and she fell to the floor. Cash remembered hearing more gunfire, but could remember little else after she was shot. However, in this shock-induced state, Cash still managed to call 911.

When the police and emergency medical services (EMS) arrived shortly thereafter, they discovered the bodies of the four customers: Patricia and Duane Colter, Luva Congleton, and Alvin Waller. Cash, the only survivor, was removed by EMS and taken to the hospital. Cash had nine holes in her body from approximately three to four bullets, two of which were recovered from her at the hospital; the police recovered a third bullet from behind the bar where Cash was shot. Cash had wounds to her wrist, heel, right breast, and abdominal cavity. However, the most serious wound went across her upper body, perforating both lungs and going through her spinal cord thereby leaving her permanently paralyzed from the chest down. All three recovered bullets were fired from the same gun.

At the autopsies, the medical examiner determined Patricia and Duane Colter each died from a single gunshot wound to the back of the head. Both bullets were recovered from the victims. Congleton also died from a gunshot wound to the back of the head, but the bullet exited and was not recovered at the autopsy. Waller received three gunshot wounds-two to the head and one to his thigh. Any one of the three wounds would have been fatal.

Appellant, Marcus Smith, and Ray Don Mosley (appellant's uncle) were separately arrested the next evening after the police received information from various sources. Ricky Wheat gave the police one of their first leads. Ricky lived across the street from Katie's Lounge and testified that on the evening of July 21, 1994, he and his brothers, Darrell and Napoleon, and some other guys were sitting in the front yard drinking beer. Ray Don, his friend, walked up and stated there was some money in the area and he had to have it. Ray Don was accompanied by Marcus and a man later identified as appellant. Ricky noted Ray Don had a pistol on him at the time. The three men stayed about five minutes and then walked off. Ricky eventually went inside.

About thirty minutes later, Ray Don returned and stated he had shot someone over at Katie's and needed a ride. Ricky refused, but Napoleon agreed. Marcus and appellant then came walking up from the direction of an abandoned building. Napoleon and Darrell then gave Ray Don, Marcus, and appellant a ride. Ricky testified the men had a tackle box that he had not noticed the first time the men had come by.

After first stating appellant was not involved with the crime, Christopher “Kaboo” Smith, appellant's best friend and Marcus's cousin, also gave information to the police. On the evening of July 21, 1994, appellant told Kaboo he planned to “make a gank move” at Katie's that night.FN4 Later that evening, Kaboo saw appellant with a gun. Appellant stated he got the gun from Kaboo's neighbor, Stanley Rossum, and was going to use it to rob Katie's. Kaboo recognized the gun as belonging to Rossum. Appellant left, but when he returned later he stated, “We did it.” Ray Don and Marcus came into Kaboo's room shortly thereafter. FN4. Kaboo testified that a “gank move” means to rob or steal.

Appellant told Kaboo some of what happened during the robbery at Katie's. Appellant stated that Ray Don had shot the lady behind the counter and had told appellant to get the people from underneath the pool table. Appellant said he complied, told the people they were moving too slow, and shot them. Appellant never stated he had been forced into doing the robbery in any way.

Appellant then brought in a box and began counting the money inside. Appellant divided the money evenly between himself, Kaboo, Ray Don, and Marcus, each receiving seventy-seven dollars. Although Kaboo had not helped with the robbery, he testified he took a share of the money “just because [he] wanted it.” FN5 Appellant and Kaboo then discussed appellant's plans to buy a new car the next day with the proceeds of an insurance check he had received. FN5. Kaboo eventually returned his share of the money to the police.

After appellant purchased his car the next day, he went to see Kaboo. They went to the mall where appellant spent his seventy-seven dollars on shoes, cologne, a shirt, and shorts. Afterwards they went to Taco Bell. Appellant told Kaboo he had taken his grandfather with him to buy the car. When appellant and his grandfather went out to eat afterwards, appellant told his grandfather he was involved in the crime, but after seeing the shocked look on his grandfather's face, appellant told him he was just playing. Also, upon returning from the mall, appellant had picked up his brother, Franceosa, and Marcus.

The police pulled them over and arrested Marcus. The police were unaware of appellant's involvement at this time. However, the police asked all the occupants of the car if they might voluntarily come to the police station to answer some questions. Everyone agreed. While driving them to the police station, Kaboo stated appellant seemed nervous and scared “like it was on his conscience.” The occupants of the car agreed they would not say anything to the police. Kaboo changed his mind the next day.

Once at the police station, appellant stated he had no involvement in the robbery and murders. However, later that evening appellant was arrested due to information received from Marcus. When informed he was under arrest, appellant cried out, “Oh what have I done. I've ruined my life. I'm going to spend the rest of my life in jail.” Appellant stated he shot two of the people in Katie's. He then agreed to answer more questions about the crime, but requested that his grandparents be there when he did so. The police arranged to have his grandparents come in.

Once his grandparents arrived, appellant gave an oral confession, which was made into a written statement. In this confession, appellant stated the offense had been planned a couple of days before. He further stated that once it was time to commit the crime, he did not want to participate; and, although he was present during the offense, he did not shoot anyone. He did admit to borrowing a gun from Stanley Rossum, but claimed Marcus took it from him once they were inside Katie's. Appellant also told them he had been wearing a toboggan during the offense and had thrown it into the woods near Nate Wheat's house.

The next morning, Special Agent Larry Smith of the Bureau of Alcohol, Tobacco, and Firearms FN6 asked appellant if he would be willing to show him and the police where he had thrown the toboggan. Appellant agreed and directed Smith to an area next to an abandoned building near Katie's where the toboggan and a glove were recovered.

Appellant admitted he had been wearing the glove during the robbery. Smith advised him there were scientific tests that could be run on the glove to determine if it had been worn when firing a gun. He then asked if appellant had anything to add to the statements he had already given. At this point, appellant stated he shot four people at Katie's and Ray Don shot the girl behind the bar. He further admitted he had used a .380 automatic pistol he borrowed from someone named Stanley. Appellant agreed to make another written statement later that day after getting some rest.

FN6. Along with the Kilgore Police Department, Texas Rangers, and County Sheriff's Office, the Federal Bureau of Investigation and Bureau of Alcohol, Tobacco, and Firearms also assisted in the investigation.

Appellant gave his final confession later that day. Appellant stated that the idea of committing the crime came up because he told Ray Don and Marcus that he felt like “doing something devious.” Appellant said he had never done anything bad before and he felt like doing something bad. Ray Don suggested robbing Katie's.

He further stated that although he told them on July 21, 1994, that he did not feel like doing it anymore, he went along with it anyway and borrowed a gun from Stanley. Ray Don had also obtained a gun. Appellant then described the crime:

Ray Don went in first and told everybody to get down. They were still sitting up in the chairs and I heard a shot. The people looked at me and it scared me and I shot a lady at the table. I was about five feet from her and I shot her in the back of the head. Another lady got up and ran. Ray Don told me to kill them. Ray Don told me to shoot them or get shot. When I looked at Ray Don, he was pointing the gun at me. He said this after I had already shot the first lady. Then I shot a man that was sitting by the first lady I shot. I don't know where I shot the man at. I was about the same distance I was when I shot the lady. By this time the lady that ran had gotten under the pool table. I told the lady to get out from under the pool table. Ray Don said, “Fuck that, shoot her.” Then I shot the lady under the pool table twice in the head. I bent down next to the pool table and shot her twice. Then Ray Don was behind the bar and had shot behind there. I came from around the pool table and another man was by the bar. The man got up and was coming towards me with a pool stick. Ray Don said, “Shoot him boy, shoot him.” I just turned my head away and shot three times. The man fell after I had shot three times. Ray Don had gotten the money in a big box from behind the bar. The box was dark colored. Then we ran out and ran across the street. Ray Don started hollering and asking me where Marcus was at. I kept telling him I didn't know. Then we saw Marcus come up behind us after we crossed Highway 135. Ray Don asked Marcus where he had been and Marcus told him he had been trying to break in a car. Marcus went into Katie's when Ray Don and I went in. After I shot the first lady, I looked around and Marcus had left Katie's.

Police recovered the .380 automatic pistol which had been returned to Stanley Rossum. Ballistic tests showed this was the same gun used to fire the bullets recovered from the bodies of Patricia Colter, Duane Colter, and Alvin Waller.FN7

The bullets recovered from Sandra Cash were fired from a different weapon.FN8 Tom Bevel, blood-stain pattern expert and crime reconstructor, also testified that due to the location of impact spatter and other evidence, it was his opinion that there were two weapons used by two different shooters, one shooting the four deceased victims and one shooting the surviving victim. He further stated that both Patricia and Duane Colter were shot in an execution-style manner.

FN7. As stated previously, no bullets were recovered from the body of Luva Congleton. FN8. This second weapon was never recovered.

In reviewing a sufficiency question, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App.1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 717, 133 L.Ed.2d 670 (1996).

The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986).

Viewed in the light most favorable to the verdict, the evidence shows appellant planned the robbery and brought with him a deadly weapon, a .380 automatic pistol,FN9 in order to accomplish the task. The jury may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. Ross v. State, 861 S.W.2d 870, 873 (Tex.Crim.App.1992); Godsey v. State, 719 S.W.2d 578, 581-82 (Tex.Crim.App.1986).

Further, the evidence shows that Patricia Colter was shot in the back of the head from a distance of probably less than five feet. Applying the Jacksoncriteria to the facts of this case, we find a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally caused the death of the Patricia Colter. Point of error 126 is overruled.

* * *

In point of error 78, appellant contends that the State improperly struck at appellant over the shoulders of counsel. The following occurred during State's argument:

[PROSECUTOR]: There is only one route to the truth. It is by traveling on the main road. That will take you to your proper destination. But you must stay on the main road. The defense has attempted to get you off the main road, to divert you. They don't want you to stay on the main road because they know where that will take you. [DEFENSE COUNSEL]: Your Honor, I'll object to this improper comment on counsel and object to counsel testifying. COURT: Overruled. [PROSECUTOR]: They want you to take a side road, a series of side roads, rabbit trails, and a rabbit trail that will lead you to a dead-end. The truth is not there.

Appellant contends that the prosecutor's argument constituted an improper attack on defense counsels' honesty.

“This Court maintains a special concern for final arguments that result in uninvited and unsubstantiated accusation of improper conduct directed at a defendant's attorney.” Orona v. State, 791 S.W.2d 125, 128 (Tex.Crim.App.1990). Trial judges should assume responsibility for preventing this type of argument. Wilson v. State, 938 S.W.2d 57, 60 (Tex.Crim.App.1996). In its most egregious form, this kind of argument may involve accusations of manufactured evidence, Orona, 791 S.W.2d at 129, or an attempt to contrast the ethical obligations of prosecutors and defense attorneys, Wilson, 938 S.W.2d at 58-60. The comments in the present case are milder, merely indicating that the defense attorneys would attempt to use argument to divert the jury's attention or obscure the issues.

We have indicated in the past that such mild comments may not be erroneous, so long as they can be interpreted as an attack on arguments made by the defense counsel. Gorman v. State, 480 S.W.2d 188, 190 (Tex.Crim.App.1972)(Prosecutor said of defense counsel: “Don't let him smokescreen you, he has smoke-screened you enough”). However, that holding has been brought into question by more recent precedent indicating that legitimate arguments by defense counsel cannot serve as a basis for permitting prosecutorial comments that “cast aspersion on defense counsel's veracity.” Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995)(Prosecutor stated that defense counsel “wants to mislead you a little bit by saying....”).

Although it is impossible to articulate a precise rule regarding these kinds of argument, it is fair to say that a prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel's character.

In the present case, the argument referred to counsel personally and, although not saying so explicitly, it suggested that counsel wanted to divert the jury from the truth. We will assume the argument was inappropriate.FN15 FN15. More authorities supporting the inappropriateness of the comments are discussed below, in connection with the harm analysis.

Assuming that the trial court should have sustained appellant's objection, we must determine whether the error warrants reversal. Error is not reversible if it is harmless. In the past, we determined the harmfulness of this type of error by conducting a harm analysis under former Tex.R.App. P. 81(b)(2) and asking whether there is a “reasonable possibility” that the improper argument might have contributed to conviction. Wilson, 938 S.W.2d at 61. However, with the advent of the new rules of appellate procedure, the proper harm analysis to be conducted depends upon the kind of error involved. For constitutional errors, the old Rule 81(b)(2) standard remains, now present in Tex.R.App. P. 44.2(a). But nonconstitutional errors are governed by a new standard, formulated in Rule 44.2(b).

Although a special concern, improper comments on defense counsel's honesty have never been held to amount to a constitutional violation. Instead we have characterized such comments as falling outside the areas of permissible argument. Wilson, 938 S.W.2d at 59. We find that such comments constitute “other errors” within the purview of Rule 44.2(b).

Rule 44.2(b) provides that: “Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” The rule is taken directly from Federal Rule of Criminal Procedure 52(a) without substantive change. See Notes and Comments, Tex.R.App. P. 44. Hence, in construing the impact of Rule 44.2(b), federal caselaw would appear to provide especially useful guidance.

In applying the federal rule to improper argument cases, federal courts generally look to three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). United States v. Millar, 79 F.3d 338, 343 (2nd Cir.1996); United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir.1994).

Comments similar to those found in the present case have been addressed by several federal circuit court decisions. The Tenth Circuit addressed a defense claim that the prosecutor improperly commented on defense counsel by stating that the defendant's attorney “has attempted ... to confuse the issue, throw sand in your eyes.” United States v. Wilshire Oil Co. of Texas, 427 F.2d 969, 978 n. 15 (10th Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 59 (1970).

While finding the remarks to be improper, the court held that “even if they were prejudicial their impact was promptly removed by the trial court's instruction to the jury.” Id. In a First Circuit case, the prosecutor made various statements about the defense attorneys, such as, “they want like to scramble your heads, confuse you,” “[t]hey wanted to confuse your head,” and “[d]o not let the attorneys here intimidate you, ladies and gentlemen-.” United States v. Ortiz-Arrigoitia, 996 F.2d 436, 440 (1st Cir.1993), cert. denied, 511 U.S. 1003, 114 S.Ct. 1368, 128 L.Ed.2d 45 (1994).

The trial judge overruled objections to these comments. Id. The appellate court was “not persuaded that these comments were so prejudicial as to require reversal.” Id. at 441. But, the court added, “We do not understand ... why, after numerous warnings from this court, the prosecuting attorneys ... persist in spiking their arguments with comments that put their cases at risk.” Id. (ellipses inserted).

While the First and Tenth Circuits have found this type of argument to be clearly improper (though not reversible), the Second and Fifth Circuits have expressed less certainty about the impropriety of such criticisms of defense counsel. In Millar, the prosecutor argued that the defense of the case was “hog wash” and that the defense counsel had created a “smoke screen.” The prosecutor also urged members of the jury to ask themselves whether defense counsel was trying to “confuse” them or “lead them astray.” 79 F.3d at 343-344. The Second Circuit held: “The comments were mildly inappropriate, if that, and clearly do not rise to the level of severity sufficient to require reversal.” Id. at 344.

The court contrasted the case before it with an earlier case it had reversed when the prosecutor, during argument, differentiated the ethical roles of prosecutors and defense attorneys with regard to finding the truth. Id. (contrasting with United States v. Friedman, 909 F.2d 705, 709 (2d Cir.1990)(prosecutor argued: “while some people ... go out and investigate drug dealers and prosecute drug dealers and try to see them brought to justice, there are others who defend them, try to get them off, perhaps even for high fees.”)(ellipsis in original)). In Palmer, the prosecutor argued:

Defense counsel wants you to focus on these little discrepancies: was [Palmer] ten feet away, was he fifteen feet away. Did he take two steps this way and then go north or did he run straight north. He wants you to focus on those little, tiny, immaterial matters, because he wants to confuse you. He wants to throw up a smoke screen. 37 F.3d at 1086.

The Fifth Circuit commented that “the context of the instant statements reveals that the prosecutor merely outlined his view of the defense strategy.” Id. The court further explained that, given the testimony of certain witnesses, the prosecutor's comment did not amount to a mischaracterization. Id.

We turn now to the three-factor test discussed in Millar and Palmer. From the above discussion, we conclude that the comments in the present case were mildly inappropriate. Such comments do not directly accuse the defense attorneys of lying, and the comments do not suggest that any evidence was manufactured. See also Dinkins, 894 S.W.2d at 357 (similar comments not as egregious as an accusation that defense counsel manufactured evidence).

At most, the comments indicate that the defense may be attempting to distort the jury's view of the evidence through clever argument. Such a comment does not inject new facts into the record, and the jury is in a position to evaluate the truthfulness of the prosecutor's assertion. Such a comment may even backfire if the jury disagrees with the prosecutor's assessment of defense counsels' actions. We do not condone the prosecutor's actions, but the severity of the misconduct is relatively small. The first factor of the harm test does not weigh very heavily in appellant's favor.

Turning to the second factor, we find that no curative action was taken. In fact, the prosecutor apparently reemphasized the statements after the trial court overruled appellant's objection. Nevertheless, we find that the third factor weighs heavily in favor of the State. The State had appellant's own confession and his admissions to a third party.

The confession also led the State to a gun confirmed by ballistics tests to be the murder weapon for at least three of the victims of the incident including the victim named in the indictment. Given the mildness of the comments and the strength of the State's case, we find the error to be harmless. Point of error 78 is overruled.

D. PUNISHMENT

In points of error 1 through 4, appellant contends that the trial court erred in admitting evidence concerning the good character of victims of the offense. He argues that victim character evidence is inadmissible under United States and Texas precedents.

He also argues that the trial court additionally erred in admitting evidence of the character of victims other than Patricia Colter because the other victims were not named in the indictment and were therefore extraneous offense victims. The “extraneous offense” contention was not made to the trial court. Hence, that argument has not been preserved for review. Former Tex.R.App. P. 52(a)(now rule 33.1(a)(2)(A)).

As for his argument concerning victim character evidence, appellant contends that United States and Texas precedents treat “character” and “impact” evidence differently. “Impact” evidence is generally recognized as evidence concerning the effect the victim's death will have on others, particularly the victim's family members. “Character” evidence is generally recognized as evidence concerning good qualities possessed by the victim. Appellant contends that, while impact evidence is admissible, character evidence is not.FN16

FN16. We presuppose in our analysis that the defendant contesting the admission of victim impact and character evidence was unaware, at the time of the crime, of the victims' character or of the impact that the victims' deaths will have on others. Victim impact and character evidence of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerousness and moral culpability.

However, the Supreme Court has never distinguished between the two types of evidence. That Court noted the importance of the trier of fact having evidence “of the specific harm caused by the defendant.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

The Court noted that information about the victim can be an important humanizing factor essential for just decision-making in a death-penalty trial: “[T]urning the victim into a ‘faceless stranger at the penalty phase of a capital trial’... deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a [capital] murder.” Id. (citation omitted, ellipsis and bracketed material inserted).

Hence, the Court concluded “that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed.” Id. at 827, 111 S.Ct. 2597 (emphasis added). While rejecting a per se rule excluding victim character and impact evidence, the Supreme Court did recognize the possibility that “unduly prejudicial evidence” could be introduced and held that the Due Process Clause would provide a mechanism for relief under those circumstances. Id. at 825, 111 S.Ct. 2597.

The Court suggested that undue prejudice might exist when the evidence is designed to encourage “a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy.” Id. at 823, 111 S.Ct. 2597.

In Ford v. State, 919 S.W.2d 107 (Tex.Crim.App.1996), we held admissible testimony from survivors of the crime and from the decedent's father concerning the effect of the crime on their lives. Id. at 115-116. In Smith v. State, 919 S.W.2d 96 (Tex.Crim.App.1996), a majority of this court held that testimony concerning the victim's good character is inadmissible. Id. at 102 (plurality opinion); Id. at 104 (Overstreet, J. concurring).

Three judges concurred in Smith without opinion. And in a concurring opinion, Judge Mansfield opined that victim character evidence should be admissible. Id. at 104-107. He noted a coworker's testimony concerning the victim's dedication to her students. Id. at 106. He also noted the victim's sister's testimony concerning the victim's love of animals, her degree in special education, and her membership in the national guard. Id. at 106-107. Judge Mansfield contended that such evidence was relevant to show “who Miss Birky was-that she was more than just a name” and that appellant had failed to show that the evidence was unfairly prejudicial under Texas Rule Criminal of Evidence 403.

If Smith were the final word on the subject, appellant's argument that all victim character evidence is inadmissible would have some force. But more recently, we decided Johnson v. State, 1997 WL 209527, --- S.W.2d ---- (Tex.Crim.App.1997). In Johnson, four members of this Court held that victim impact evidence was admissible but victim character evidence was not. Id. at 4, at ---- (plurality opinion). But, in a concurring opinion joined by three other judges (Keller, Price, and Holland, JJ.), Presiding Judge McCormick opined that no distinction existed between impact and character evidence and that all such evidence was admissible as relevant to the statutory mitigation special issue. Id. at 16, at ---- (McCormick, P.J. concurring).

In a separate concurring opinion, Judge Mansfield contended that both victim character and victim impact evidence were admissible so long as only close family members (parents, grandparents, spouses, siblings) were permitted to testify. Id. at 18, at ---- (Mansfield, J. concurring). Judge Mansfield contended that such evidence would be relevant and would not be subject to exclusion under Rule 403. Id. Earlier in his opinion, however, he opined that Rule 403 might play a role in limiting admission of victim impact and victim character evidence in general. Id. at 17, at ----.

Hence, a majority of this Court has approved the introduction of victim character evidence-four without qualification (as it relates to the mitigation special issue) and one if only close family members testify. Our jurisprudence in this area has been somewhat inconsistent and confusing at times. We take this opportunity to announce a consistent, if not always clear-cut rule to be followed in future cases: Both victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence.FN17

Rule 403 limits the admissibility of such evidence when the evidence predominantly encourages comparisons based upon the greater or lesser worth or morality of the victim. When the focus of the evidence shifts from humanizing the victim and illustrating the harm caused by the defendant to measuring the worth of the victim compared to other members of society then the State exceeds the bounds of permissible testimony. We recognize that this standard does not draw a bright and easy line for determining when evidence concerning the victim is admissible and when it is not.

Trial judges should exercise their sound discretion in permitting some evidence about the victim's character and the impact on others' lives while limiting the amount and scope of such testimony. Considerations in determining whether testimony should be excluded under Rule 403 should include the nature of the testimony, the relationship between the witness and the victim, the amount of testimony to be introduced, and the availability of other testimony relating to victim impact and character. And, mitigating evidence introduced by the defendant may also be considered in evaluating whether the State may subsequently offer victim-related testimony.

FN17. In the present case, the defense and the State entered into an agreement permitting the State to introduce victim-related testimony before the defendant introduced mitigating evidence. The defendant waived any objection related to the timing of the introduction of the State's evidence.

We find Judge Mansfield's concern in Johnson that limits be placed upon who may testify to be a valid one, but we do not believe that an absolute rule limiting testimony to family members within a certain degree of relationship is viable. More distantly related family members, close friends, or coworkers may, in a given case, provide legitimate testimony. That will depend on the closeness of the personal relationship involved, the nature of the testimony, and the availability of other witnesses to provide victim-related testimony. We do note that victim impact and character testimony from strangers, including those who learned about the case in the media and those who did so as participants in a criminal investigation, will rarely, if ever, be admissible under Rule 403. See Janecka, 937 S.W.2d at 473.

At the same time, we caution that victim impact and character evidence may become unfairly prejudicial through sheer volume. Even if not technically cumulative, an undue amount of this type of evidence can result in unfair prejudice under Rule 403. Hence, we encourage trial courts to place appropriate limits upon the amount, kind, and source of victim impact and character evidence.

Finally, we observe that victim impact and character evidence is relevant only insofar as it relates to the mitigation issue. Such evidence is patently irrelevant, for example, to a determination of future dangerousness. The mitigation issue, on the other hand, asks whether, after considering all the evidence, sufficient mitigating circumstances exist to warrant imposing a life sentence instead of the death penalty. See Article 37.071 § 2(e)(emphasis added). Mitigating evidence is defined as that which “a juror may regard as reducing the defendant's moral blameworthiness.” Article 37.071 § 2(f)(4).

Victim-related evidence is relevant to show that the mitigating circumstances are not “sufficient” to warrant imposing a life sentence.FN18 Such evidence would be wholly irrelevant if appellant affirmatively waived submission and reliance upon the mitigation special issue. Although we have held that the former “deliberateness” special issue could not be waived by a defendant, even upon affirmative request, Powell v. State, 897 S.W.2d 307, 314-318 (Tex.Crim.App.1994)(plurality opinion); Id. at 318 (Clinton, J. concurring), the mitigation special issue is distinguishable.

In Powell, we explained that “ Article 37.071 required that a jury find, beyond a reasonable doubt, that appellant committed murder with ‘deliberateness' before he could be sentenced to death.” Id. at 316. The issue, in part, “define [d] capital murder punishable by death.” Id. But the mitigation issue carries no burden of proof that must be carried by the State before a death sentence can be imposed. Penry v. State, 903 S.W.2d 715, 766 (Tex.Crim.App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).

The issue, instead, confers upon the jury the ability to dispense mercy, even after it has found a defendant eligible for the death penalty. See McFarland, 928 S.W.2d at 520. Hence, a defendant can waive reliance upon and submission of the mitigation issue, and if he does, victim impact and character evidence would be irrelevant and hence inadmissible. Such a waiver must, however, be affirmative and express.

FN18. Relying upon Eldridge v. State, 940 S.W.2d 646, 653-654 (Tex.Crim.App.1996), McFarland v. State, 928 S.W.2d 482, 518 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997), and Lawton v. State, 913 S.W.2d 542, 557 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996), Judge Meyers contends that aggravating evidence is irrelevant to the mitigation special issue. But Eldridge, McFarland, and Lawton did not directly address that question; instead, those cases focused on a defendant's argument that the United States Constitution required a burden of proof regarding aggravating circumstances. See above citations. But, the mitigation issue does not require the jury to consider or find any aggravating circumstances, and hence, no burden of proof upon the State was required. See above citations.

While these cases have some language indicating that the mitigation question does not involve aggravating circumstances, such language should properly be viewed as simply observing that the issue does not require their consideration. Such an observation does not, however, preclude permitting the jury to consider aggravating factors in making its evaluation. We disavow any language in those cases that suggests otherwise.

Relying upon Wolfe v. State, 917 S.W.2d 270, 278 (Tex.Crim.App.1996), Judge Meyers contends that permitting consideration of aggravating circumstances within the mitigation issue makes it unconstitutionally open-ended. Judge Meyers apparently believes that Wolfe 's language to the effect that future dangerousness and other issues “limit” the jury's discretion to consider aggravating factors means that aggravating circumstances have no place in the mitigation special issue. But the passage relied upon by Judge Meyers immediately follows a quotation from the Supreme Court's opinion in Penry v. Lynaugh, 492 U.S. 302, 327, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). See Wolfe, 917 S.W.2d at 278.

That quotation refers to the requirement that “a sentencer's discretion to impose the death sentence” be narrowed. Id. (emphasis in original). The passage in Wolfe regarding “limits” on considering aggravating circumstances should be read as covering aggravating circumstances used to “impose” the death penalty. The present case, however, involves aggravating circumstances used to determine whether the jury should “decline to impose” the death penalty, and Wolfe 's language about “limits” is not directed to that situation.

The difference between the two situations is illustrated by the Supreme Court's discussion of the difference between the eligibility and selection requirements in a death penalty case. All that is constitutionally required to narrow the sentencer's discretion is one aggravating factor that applies to a subclass of defendants convicted of murder. Tuilaepa v. California, 512 U.S. 967, 971-72, 114 S.Ct. 2630, 2634-35, 129 L.Ed.2d 750, 759 (1994).

This requirement of at least one narrowing, aggravating factor is sometimes known as the “eligibility” requirement. Id. That eligibility requirement is satisfied in Texas by aggravating factors contained within the elements of the offense, the future dangerousness special issue, and sometimes, other “non-Penry” special issues. Without findings on those particular aggravating factors, a death sentence cannot be imposed. Once the eligibility requirement is satisfied, the only remaining requirement is a “selection” decision: permitting the sentence to exercise an “individualized” determination of whether a defendant should in fact receive a death sentence “on the basis of the character of the individual and the circumstances of the crime.” Id. at 971-74, 114 S.Ct. at 2634-36, 129 L.Ed.2d at 759-760.

This “selection” decision “must be expansive enough to accommodate relevant mitigating evidence so as to assure an assessment of the defendant's culpability,” id at 972-74, 114 S.Ct. at 2635-36, 129 L.Ed.2d at 760, but the Supreme Court has never precluded the use of aggravating circumstances as part of the process of an individualized determination of culpability. Such a process could hardly be considered “individualized” if half of the equation (relevant aggravating circumstances) were excluded. We simply recognize in the present case that the jury may consider aggravating factors in its selection decision. In determining whether to dispense mercy to a defendant after it has already found the eligibility factors in the State's favor, the jury is not, and should not be, required to look at mitigating evidence in a vacuum. Wolfe does not hold to the contrary, but if it did, it would be inconsistent with Supreme Court precedent.

Finally, Judge Meyers contends that Armstrong v. State, 718 S.W.2d 686, 695 (Tex.Crim.App.1985) precludes the introduction of a victim's good character to rebut evidence of the defendant's good character. But in Armstrong, the evidence was introduced in support of the future dangerousness special issue. See Id. That there is no logical link between the two types of evidence within the framework of the future dangerousness issue does not mean the same holds true for the mitigation issue.

The mitigation issue concerns a defendant's moral culpability, and to a limited extent, the victim's good character is relevant to a culpability determination. Armstrong was, of course, decided before the application of the mitigation issue in capital cases in Texas. Moreover, to the extent that it may conflict with the admissibility of victim-related evidence, Armstrong was overruled sub silentio by Johnson.

With these considerations in mind, we turn to the present case. Appellant complains about the testimony of three witnesses who were related to the victims. Helen Wrag, Luva Congleton's niece, testified that her aunt ... was a happy person. She liked people. Q. Did she ever meet a stranger? A. No sir. Q. Was that part of her personality that she did well with people? A. Yes sir, she had people that ask for her [waitress] station. (Bracketed material and ellipsis inserted). Appellant also complains about Tricia Kappan's testimony regarding Patricia Colter, Duane Colter, and Alvin Waller (Tricia's mother, stepfather, and father respectively):

Well, Mamma and Daddy still loved each other, but it was-they were like best friends. And when Mamma met Duane-that was-Mamma was-Mamma was his whole life. And they just-they were just all friends. Daddy lived in a trailer behind my mother's house. He was going through a tough time and needed a place to go. And so my mother had a travel trailer behind her house, and he stayed there. And a lot of the time, he just slept in the extra bedroom at the other end of the trailer where Mamma and Duane were. They were just all really good friends. And they hardly went anywhere without each other. They just were all very close. And appellant complains about the emphasized portion of the following testimony from Tricia concerning Duane Colter:

Duane was a very special person to me. I was sixteen. I was already grown. But when my mother met him and introduced us, I was kind of shocked and everything, but the more I was around him, the more you just- you just couldn't help but just love him to death. He was just so sweet. He was like a big kid, you know. He was just great. (Emphasis added).FN19 Appellant also complains about the emphasized portion of the following testimony from Tricia concerning Patricia Colter: FN19. We note that, in his brief, appellant quotes only the emphasized portion of this passage.

My mother was my sole supporter. She had been through so much in her life that I felt like anything that she was going to have to go through, that I was going to be there with her and I could go through it with her. There was some times, you know, when we would move away and my brother would stay with Grandmother, but I couldn't stand it. I was always afraid, you know, something might happen to her or she wouldn't be strong enough to pull through something. And so I would think, you know-I was just a kid, but I would think, you know, if I was there, I could-I could help her through it, you know, I could, you know pull her through. And then whenever I got married, it was like I just wanted to prove to her that I was a big girl and I could take care of myself and she need not think-you know, need not spend all of her money on me. She was always buying things for everybody. And I kept-you know, I would just think if she wouldn't buy stuff for everybody else, you know, she could buy it for herself. But I always thought I would be there to take care of her and she would be there to take care of me. And she was my right arm. She was my backbone. (Emphasis added).FN20 FN20. We note that, in his brief, appellant quotes only the emphasized portions of the passage, placing an ellipsis between them.

Finally, appellant contends that the trial court permitted Robert Waller to read a poem about the victims. He provides no record references and we find no poem in the testimony. We do find a portion of testimony in which Robert read an earlier “victim impact” statement that he had made concerning the effects that his mother, father, and stepfather had on his life.

We find appellant's argument that the above evidence should have been excluded to be unpersuasive. While the evidence relates to some degree to the character of the victims, it is heavily intertwined with the impact of the victims' loss on family members. Moreover, the evidence appears in this case to serve the function of humanizing the victims rather than drawing unwarranted comparisons between them and other members of society.

The State introduced just three witnesses to give testimony concerning the four victims of the incident, and the entire, combined testimony of these witnesses takes up a mere 34 pages in the court reporter's record. We find that admission of this testimony did not violate Rule 403.

Appellant also argues that the State improperly made a comparative judgment about the victims in closing argument. However, appellant did not object to the argument at trial. He cannot preserve error with respect to argument by objecting to evidence simply because the evidence and argument address similar subject matter. Tex.R.App. P. 52(a)(now rule 33.1(a)(2)(A)); Anderson v. State, 932 S.W.2d 502, 507 (Tex.Crim.App.1996), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997)(argument error with regard to parole not preserved by requesting jury charge on parole issue). Points of error 1 through 4 are overruled.

In point of error 109, appellant contends that the trial court erred in excluding testimony from defense expert Dr. Jedlika regarding future dangerousness. In an offer of proof, appellant proffered the following testimony he wanted admitted: (1) 98 percent of convicted murderers do not commit any more violent crimes within 15 years after release. (2) An inmate becomes eligible for parole on a capital life sentence after 40 years. (3) Very few people commit crimes over age 60; no measurable statistical difference exists between crime rates for 60-year-old murder convicts and 60-year-olds who have not committed a previous crime.FN21 FN21. We do note that testimony was admitted from defense expert Louis-Victor Jeanty, a psychiatrist, that violence tends to decrease with age. (4) Murderers are less likely to kill prison guards than burglars are. (5) Being a prison guard is not a dangerous occupation. (6) The death penalty is not cost effective.

(7) There is no evidence that the death penalty has an additional deterrent effect over imprisonment. (8) There is a difference as far as future dangerousness is concerned between serial killers and single transaction multiple murderers.

Dr. Jedlika did not offer any testimony concerning any characteristics peculiar to appellant. Items (5), (6), and (7) merely constitute attacks on the validity of the death penalty scheme and are, for that reason, irrelevant to the jury's factfinding task. Rachal v. State, 917 S.W.2d 799, 817 (Tex.Crim.App.), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996). Item (2) was given to the jury in its instructions. See point of error 103 below. Items (1), (3), (4), and (8) may be relevant in the context of expert testimony concerning the specific characteristics and background of the defendant and their effect on future dangerousness. Matson v. State, 819 S.W.2d 839, 851 (Tex.Crim.App.1991); Rachal, 917 S.W.2d at 817. But none of Dr. Jedlika's testimony related to appellant's characteristics and background; no questions, hypothetical or otherwise were asked regarding whether a person with appellant's characteristics would pose a future danger. Hence, the general testimony relating to recidivism was not shown to be relevant to appellant. Point of error 109 is overruled. The judgment of the trial court is AFFIRMED.

Mosley v. Dretke, 370 F.3d 467 (5th Cir. 2004) (Habeas)

Background: State prisoner whose conviction of capital murder was affirmed on appeal, 983 S.W.2d 249, petitioned for writ of habeas corpus. The United States District Court for the Eastern District of Texas, John H. Hannah, Jr., J., denied the petition, and petitioner appealed.

Holdings: The Court of Appeals, Edith Brown Clement, Circuit Judge, held that:
(1) state appellate court's determination that prejudice, as required to establish ineffective assistance of counsel claim, could not be presumed from the filing of petitioner's brief on appeal from capital murder conviction, was not contrary to, or an unreasonable application of, clearly established federal law so as to warrant federal habeas relief;
(2) fact that state trial court forced petitioner's attorney to begin the penalty phase the same say the jury returned a guilty verdict did not violate petitioner's Sixth Amendment right to counsel;
(3) state appellate court's application of Supreme Court case involving due process claim, rather than Supreme Court case involving equal protection claim, to determine petitioner's claim that his right to equal protection was violated by the discriminatory manner in which grand jury forepersons were selected, contradicted clearly established federal law, and thus warranted federal habeas relief in the form of having the correct test applied; and
(4) petitioner failed to establish a degree of underrepresentation of blacks as grand jury forepersons over a significant period of time, as required to make out a prima facie violation of equal protection rights. Affirmed.

EDITH BROWN CLEMENT, Circuit Judge:

Petitioner DaRoyce Lamont Mosley (“Mosley”) argues that he is entitled to habeas relief because: (1) prejudice should have been presumed on his ineffective assistance of appellate counsel claim; (2) his right to due process was violated by the trial court's decision to begin the penalty phase of his trial on Saturday instead of Monday; and (3) his right to equal protection was violated by the discriminatory manner in which grand jury forepersons were selected. Because we find no constitutional violations, we AFFIRM.

I. FACTS AND PROCEEDINGS

Mosley was convicted of capital murder for the death of Patricia Colter on October 28, 1995, and sentenced to death on November 3, 1995.

Patricia Colter, along with her husband Duane Colter, her ex-husband Alvin Waller (“Waller”), and Luva Congleton (“Congleton”), were keeping waitress Sandra Cash (“Cash”) company as she closed up Katie's Lounge in Kilgore, Texas on July 21, 1994. Cash was placing the receipts for the evening in a tackle box Katie's used to store money.

At approximately 11:45 p.m., two armed men wearing ski masks burst through the door. The first man through the door said, “Give me the money, you white bitch.” FN1 While sliding the tackle box towards the gunman, Cash was shot in the hand as she attempted to shield her face. She was then shot in the stomach, but nonetheless managed to call 911. This is all that Cash, the sole survivor, was able to recall. FN1. Cash and the four patrons of Katie's were white; Mosley and the others arrested for the robbery and murders were black.

Cash and the bodies of the Colters, Waller, and Congleton were found by police and EMS upon their arrival. Autopsies revealed that the Colters each died from a single gunshot wound to the back of the head. Bullets were recovered. Congleton was also shot in the back of the head, but no bullet was recovered. Waller was shot twice in the head, and once in the thigh; any one of the three wounds would have been fatal. Forensics determined that the gun that shot Cash was not the same gun that shot Waller and the Colters.

Mosley, Marcus Smith (“Marcus”), and Ray Don Mosley (“Ray Don”), Mosley's uncle, were arrested separately on July 22 after the police received several tips. One such tip was from Ricky Wheat, who lived across the street from Katie's Lounge. He informed police that Ray Don, along with Marcus and Mosley, had spoken with him on July 21 outside his residence.

Ray Don, who was in possession of a pistol, told the informer that there was some money in the area and that he had to have it. This party of three left the Wheat property, and returned 30 minutes later with a tackle box, requesting a ride. Ricky Wheat stated that Ray Don told him he had shot someone over at Katie's Lounge.

Another tip was from Christopher “Kaboo” Smith (“Kaboo”), Mosley's best friend and Marcus's cousin. Kaboo told police that on the evening of the murders he saw Mosley with a gun, which Mosley claimed to have gotten from Stanley Rossum, a neighbor. Mosley left, but returned with Marcus and Ray Don. Ray Don stated that they had killed people in Katie's Lounge. After Kaboo expressed his disbelief, Mosley responded, “We did it.” Then Mosley divided the contents of the tackle box evenly between Kaboo, Ray Don, and Marcus, each party receiving $77.00.

On July 22, 1994, after pulling over Mosley to arrest Marcus, the police asked Mosley if he would voluntarily go to the police station to answer some questions. Mosley agreed.

At first, Mosley averred that he had nothing to do with the robbery and murders at Katie's Lounge. After the police received information from Marcus, however, they arrested Mosley. At this point, Mosley made a second oral statement and admitted to shooting two of the people at Katie's Lounge. Mosley requested and received the presence of his grandparents before continuing further.

In the third statement, which was transcribed, Mosley insisted that the offense had been planned in advance, but that once it was time to go through with the plan, he did not want to participate. Although he admitted to being present at Katie's Lounge when the shootings occurred, he denied shooting anyone. He also informed the police that he had been wearing a ski mask or toboggan during the offense and had thrown it in the woods near the Wheat residence.

Based upon information in the third statement, law enforcement officers requested Mosley accompany them in search of the discarded hat. A glove was found near the toboggan, and Mosley then admitted to wearing a glove during the robbery. Law enforcement agents explained to Mosley that they could tell by the residue on the glove whether the person wearing it had fired a gun. They asked if Mosley had anything to add to his previous statements.

At this time Mosley made another oral statement, indicating that he had shot four people at Katie's Lounge and Ray Don had shot the woman behind the bar. After a period of rest, Mosley made his final statement to police.

Ray Don went in first and told everybody to get down. They were still sitting up in the chairs and I heard a shot. The people looked at me and it scared me and I shot a lady at the table. I was about five feet from her and I shot her in the back of the head. Another lady got up and ran. Ray Don told me to kill them. Ray Don told me to shoot them or get shot. When I looked at Ray Don, he was pointing the gun at me. He said this after I had already shot the first lady. Then I shot a man who was sitting by the first lady I shot. I don't know where I shot the man at. I was about the same distance I was when I shot the lady. By this time the lady that ran had gotten under the pool table. I told the lady to get out from under the pool table.

Ray Don said, “Fuck that, shoot her.” Then I shot the lady under the pool table twice in the head. I bent down next to the pool table and shot her twice. Then Ray Don was behind the bar and had shot behind there. I came from around the pool table and another man was by the bar. The man got up and was coming towards me with a pool stick. Ray Don said, “Shoot him boy, shoot him.” I just turned my head away and shot three times. The man fell after I had shot three times. Ray Don had gotten the money in a big box from behind the bar.

The box was dark colored. Then we ran out and ran across the street. Ray Don started hollering and asking me where Marcus was at. I kept telling him I didn't know. Then we saw Marcus come up behind us after we crossed Highway 136. Ray Don asked Marcus where he had been and Marcus told him he had been trying to break in a car. Marcus went into Katie's when Ray Don and I went in. After I shot the first lady, I looked around and Marcus had left Katie's. Mosley was indicted for the capital murder of Patricia Colter on August 4, 1994.

During his trial, Mosley was represented by Gary Bledsoe (“Bledsoe”), Cynthia Orr (“Orr”), and Gerald Goldstein (“Goldstein”). The jury returned a guilty verdict Saturday, October 28, 1995. The penalty phase of the trial began the same day; the jury returned a death sentence on November 3, 1995.

Bledsoe and Orr represented Mosley on direct appeal to the Texas Court of Criminal Appeals. That court affirmed his conviction and sentence. Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App.1998). The Supreme Court of the United States denied Mosley's petition for a writ of certiorari on April 19, 1999. Mosley v. Texas, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

Before the affirmation of his conviction and sentence on direct appeal, Mosley commenced his state post-conviction action on December 14, 1997. Although the trial court recommended that he be granted relief on his ineffective assistance of counsel (“IAC”) claim, the Texas Court of Criminal Appeals denied Mosley's application for state habeas relief. Mosley's petition for writ of certiorari as to his state habeas claims was denied by the Supreme Court on January 10, 2000. Mosley v. Texas, 528 U.S. 1083, 120 S.Ct. 807, 145 L.Ed.2d 679 (2000). Mosley's present writ of habeas corpus was filed on June 30, 2000 in the district court for the Eastern District of Texas. Although the district court denied habeas relief, it granted a certificate of appealability on the three claims now before this Court.

* * *

A. Ineffective Assistance of Counsel on Appeal

The first issue before us is whether the state court's determination that prejudice could not be presumed from the filing of Mosley's appellate brief is contrary to, or an unreasonable application of, clearly established federal law. Mosley contends that because his brief on direct appeal was filed late, and because the brief itself was “woefully inadequate,” prejudice should have been presumed. The Government counters that Mosley failed to show prejudice, much less that prejudice should be presumed.

Relief based upon an IAC claim, under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may only be granted if the petitioner demonstrates both that counsel was deficient and that the deficiency prejudiced the petitioner's defense. 466 U.S. at 687-88, 690, 104 S.Ct. 2052. In extremely rare circumstances, however, prejudice may be presumed from the delinquent performance of counsel.

This presumption of prejudice may occur if there is a complete denial of counsel, or if “counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Mosley does not contend that counsel was not present or available during direct appeal; we therefore assume that he contends that the prosecution's case was not tested because of the sub-standard briefing on appeal.

Uncontested evidence reveals that the brief submitted on direct appeal FN2 was a 205 page tome, raising 173 FN3 points of error. This brief was filed after several extensions of time, and was nonetheless ultimately filed late. The brief was never proofread in its entirety. On direct appeal, the court addressed roughly 20 of the 173 points of error. Several sets of objections were repeated later in the brief, while others were not addressed because they were inadequately briefed. There was testimony suggesting that the brief was prepared after the expiry of the last filing deadline.

FN2. Mosley makes much of the briefing deficiencies of counsel at trial; these deficiencies, however, are of no moment to the present petition, because he failed to apply for and receive a COA on this issue. FN3. The Court of Criminal Appeals noted that although there were apparently supposed to be 176 points of error, there were no points of error numbered 75-77, so in reality there were only 173 points of error.

Despite these inadequacies, it is clear from the thoughtful opinion from the Court of Criminal Appeals that Mosley's appellate counsel did subject the prosecution's case to meaningful testing. This is unlike the brief in Passmore v. Estelle, 607 F.2d 662, 663-64 (5th Cir.1979), which was a presumptively-prejudicial one page anomaly.

In the case at bar counsel provided adequate grounds for appeal for the court to review, and, ultimately, to deny. That the brief contained assignments of error above (or below) and beyond those addressed by the court does not make the brief presumptively prejudicial. We therefore decline to grant habeas relief on this claim.

B. Due Process

Mosley next contends that the state court's ruling that the trial court's refusal to allow counsel additional time to prepare for the punishment phase was not a violation of his due process rights is contrary to, or an unreasonable application of, clearly established federal law. Mosley maintains that his due process rights were violated when the trial court forced his attorney to begin the penalty phase on Saturday after the jury returned a verdict in the guilt phase. As was his stance with respect to his IAC claim, Mosley again claims that prejudice can be presumed under Cronic.

The jury returned a guilty verdict on Saturday, October 28, 1997. The Government indicated that it had its witnesses on 30 minute call to proceed with the penalty phase. Orr objected, indicating to the court that she understood that even if the guilty verdict were returned on Saturday, the penalty phase would not begin until Monday, October 30, 1997.

Because this was her understanding, Orr had failed to prepare any strategy overall, had failed to prepare a strategy for cross-examining witnesses, and had failed to have defense witnesses on call. It was later revealed that Goldstein was scheduled to do the penalty phase, and that Orr had never intended to perform these duties.

Based upon the preferences of the jury, the court refused Orr's request for a continuance until Monday. Instead, Orr was given two hours to prepare for the penalty phase of the trial.

In his brief to this Court, Mosley offers no cases to support a due process claim based upon a trial court's ruling that the penalty phase would commence immediately after the guilt phase of a trial. Because the due process claim has not been briefed to this Court, we decline to examine it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993) (finding that a defendant abandons arguments by failing to argue them in the body of his brief).

Although Mosley claims this portion of his brief amounts to a due process challenge, the cases he cites in support of his contention are for Sixth Amendment deprivation of effective assistance of counsel. Out of an abundance of caution, we will address his claims with respect to the sentencing phase of the trial as IAC claims. In so doing, we cannot find this lack of preparation for one portion of his trial deficient. As the Supreme Court noted in Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) “[n]ot every restriction on counsel's time or opportunity to investigate or consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel.... [O]nly an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel.” (emphasis added) (citations and quotations omitted).

In Slappy, the Supreme Court found no violation of the defendant's right to counsel despite the fact that replacement counsel had been appointed six days prior to the beginning of trial. The circumstances here are even less problematic, primarily because Orr was chief counsel throughout the guilt phase of the trial. She was intimately acquainted with Mosley and the facts of the case. She had heard all of the testimony and had an opportunity to observe the jury. That Orr had been warned that the penalty phase would begin after the resolution of the guilt phase, and chose to ignore that warning, does not rise to the level of ineffective assistance of counsel.

C. Equal Protection

The final, and most contentious, issue before us is whether the state court's determination that there was no equal protection violation in the selection of the grand jury foreperson is contrary to, or an unreasonable application of, clearly established federal law. Mosley asserts that the Court of Criminal Appeals's application of the due process, instead of equal protection test, violates Supreme Court precedent. The Government insists that the use of the due process test was not in violation of clearly established Supreme Court precedent, even though the state court's methodology was contrary to Fifth Circuit precedent.

At the heart of the matter are two Supreme Court cases: Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), and Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984). Rose addressed a possible equal protection violation in the selection of grand jury forepersons. Hobby, on the other hand, addressed a possible due process violation in the selection of grand jury forepersons.

(1) Rose v. Mitchell and the Equal Protection Clause

In Rose, four black men indicted for capital murder filed pleas in abatement, seeking dismissal of their indictments “on the grounds that the grand jury array, and the foreman, had been selected in a racially discriminatory fashion.” 443 U.S. at 548, 99 S.Ct. 2993 (emphasis added).

In Tennessee, a grand jury consisted of 12 members, with the foreperson making up the thirteenth. The 12 grand jury members were selected by a key man system, in which three commissioners compiled a list of qualified potential jurors from which the grand jurors were selected at random. The foreperson, on the other hand, was appointed by the judge of the court for a two year term. Id. at n. 2. The pleas in abatement were denied, and the four were found guilty of first-degree murder. Id. at 549, 99 S.Ct. 2993. On direct appeal, the convictions were affirmed. Id. After post-conviction proceedings, the Supreme Court granted certiorari to consider the equal protection claim with respect to the selection of the foreperson of the grand jury. Id. at 550, 99 S.Ct. 2993.

The court first determined that racial discrimination did pose a potential for harm, even in the context of the selection of grand jury forepersons. 443 U.S. at 554, 99 S.Ct. 2993. It then reviewed the evils sought to be eradicated by the Equal Protection Clause, observing that “[d]iscrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice. Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process.” Id. at 555-56, 99 S.Ct. 2993.

It is for this reason that the Supreme Court “recognized that a criminal defendant's right to equal protection of the laws has been denied when he is indicted by a grand jury from which members of a racial group purposefully have been excluded.” Id. at 556, 99 S.Ct. 2993.

The Supreme Court then addressed concerns expressed in the concurrence that the remedy necessary for discrimination in the selection of the grand jury-quashing the indictment-was too drastic. The Court noted that even if the original indictment were quashed, the defendant could still be re-indicted, and re-convicted, with the same proof used at the first trial, so long as the procedure used “conforms to constitutional requirements.” 443 U.S. at 552, 99 S.Ct. 2993 (citations omitted). While recognizing this as a cost, the Court nonetheless insisted this was the remedy necessary if discrimination were found in the selection of the grand jury or the grand jury foreperson. Id. at 551, 99 S.Ct. 2993.

Reviewing the facts of the case before it, the Court reminded readers that habeas relief was only available if discrimination were proved. “[I]n order to show that an equal protection violation has occurred in the context of grand jury foreman selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.” 443 U.S. at 565, 99 S.Ct. 2993 (citations omitted).

A prima facie case of discrimination may be established only if three requirements are met: (1) the group is a recognizable, distinct class, singled out for different treatment; (2) the degree of underrepresentation is calculable by comparing the proportion of the group in the total population to those called to act as grand jury forepersons over “a significant period of time”; (3) the selection procedure is susceptible of abuse. Id. If the defendant makes such a prima facie showing, the burden shifts to the state to rebut that showing.

The Supreme Court determined that, although arguendo the first and third requirements had been met, the degree of underrepresentation had not been established. 443 U.S. at 566, 99 S.Ct. 2993. The defendants based their case for underrepresentation solely on the testimony of three former grand jury foremen from the county in question. The Court concluded that the testimony did not cover any significant period of time and failed to include any numerical data on the total number of grand jury forepersons appointed during the critical period of time, and thus that the defendants failed to establish a prima facie case of discrimination. Id. at 570-71, 99 S.Ct. 2993.

(2) Hobby v. United States and the Due Process Clause

The Supreme Court in Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984), faced a similar set of facts but wholly different constitutional claims than it did in Rose. Hobby, a white male defendant, alleged that discrimination against blacks and women in the selection of federal grand jury forepersons resulted in a violation of his right to due process under the Fifth Amendment. 468 U.S. at 341-42, 104 S.Ct. 3093. Because of this discrimination, Hobby asserted, the indictment against him should have been quashed. Id. at 343, 104 S.Ct. 3093.

The Supreme Court disagreed. It first observed that, while due process rights were implicated in the discriminatory selection of a grand jury, no such rights were implicated by the discriminatory selection of a grand jury foreperson. “Unlike the grand jury itself, the office of grand jury foreman is not a creature of the Constitution; instead, the post of foreman was originally instituted by statute for the convenience of the court.” 468 U.S. at 344, 104 S.Ct. 3093.

The Court found that Hobby's due process rights were not impinged upon by the selection of a grand jury foreperson in a discriminatory fashion. The role of the foreperson in a federal grand jury, the Court observed, is purely ministerial. Given the ministerial purpose of the position, “discrimination in the selection of one person from among the members of a properly constituted grand jury can have little, if indeed any, appreciable effect upon the defendant's due process right to fundamental fairness.” Id. at 345, 104 S.Ct. 3093 (emphasis added).

Hobby argued that Rose compelled a different result and that the Supreme Court should set aside his indictment. 468 U.S. at 346, 104 S.Ct. 3093. The Court disagreed, finding Hobby's reliance on Rose misplaced. First the Court noted that the defendants in Rose were of the same race as those excluded from the jury.FN4

The Court also observed that the state of Tennessee used a unique method to select the jury foreperson in Rose. In the federal system, under which Hobby was indicted, the jury foreperson was selected from among the twelve grand jurors, while in Rose the twelve grand jurors were selected, and then the judge selected a thirteenth person as the jury foreperson, effectively putting on the grand jury a “surrogate of the judge.” Id. at 348, 104 S.Ct. 3093.

Finally, the Court distinguished Rose because of the role the foreperson was to play on the Tennessee grand jury as opposed to the federal grand jury. In Tennessee, the foreperson had investigative and administrative power, while in the federal system, the role was ministerial in nature. Id. at 348-49, 104 S.Ct. 3093. The Hobby Court concluded that Rose “assumed ... that discrimination with regard to the foreman's selection would require the setting aside of a subsequent conviction,” but that “[n]o such assumption is appropriate here, however, in the very different context of a due process challenge by a white male to the selection of foremen of federal grand juries.” Id. at 349, 104 S.Ct. 3093 (emphasis added).

FN4. After the Supreme Court's decision in Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998), which extended standing to white criminal defendants raising equal protection and due process objections to discrimination against black persons in grand jury selection, this point of distinction is no longer relevant.

(3) Mosley's Equal Protection Claim under Hobby

When Mosley brought his equal protection claim, the Texas Court of Criminal Appeals on direct appeal concluded that Hobby, and not Rose, controlled. It determined that, although Rose was directed at an equal protection claim, as was Mosley's claim, the ministerial nature of the Texas state grand jury foreperson, along with the method of foreperson selection, made the case more closely resemble the facts outlined in Hobby. Mosley v. State, 983 S.W.2d 249, 256 (Tex.Crim.App.1998).

In dismissing Mosley's appeal on this issue, the court intoned that Mosley's own equal protection interests are satisfied by the impartial selection of the members of the grand jury. That selection ensures that the decision-making process is not tainted by racial discrimination. Because the foreman's additional duties are merely ministerial, they do not impact an appellant's right to a grand jury determination of probable cause to go forward with a prosecution. Id. Despite federal cases to the contrary, the Texas Court of Criminal Appeals followed its precedent in Rousseau v. State, 855 S.W.2d 666, 687-688 (Tex.Crim.App.1993), and upheld the constitutionality of Mosley's indictment under Hobby.

The decision of the Texas Court of Criminal Appeals to apply Hobby to the case at bar flatly contradicts the clearly established federal law of Rose. The distinction between Hobby and Rose lies not with the role of the foreperson, but rather with the nature of the alleged injury. Johnson v. Puckett, 929 F.2d 1067, 1071 (5th Cir.1991).

The Texas court mistakenly assumed that only Mosley's equal protection interests were implicated by the selection of a grand jury foreperson. This is simply not the case. When Mosley makes an equal protection challenge, he also represents the interests of those who are not selected as grand jury forepersons. While these “non-selects” may have no due process interests in being a grand jury foreperson, they undoubtedly have an equal protection interest in performing the duties of foreperson. Id. “This [equal protection] injury to society as a whole, as well as the stigmatization and prejudice directed against a distinct group, exists regardless of the extent of the grand jury foreman's authority.” Id.

The Supreme Court in Rose unequivocally stated that “in order to show that an equal protection violation has occurred in the context of grand jury foreman selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.” 443 U.S. 545, 565, 99 S.Ct. 2993, 61 L.Ed.2d 739 (emphasis added).

Nothing in Hobby purported to address an alleged equal protection violation or to change the test for equal protection violations as elucidated in Rose. Rose provides the three-step test for evaluating an equal protection claim; the Texas state court simply failed to apply this standard. The decision reached by the Texas state court is in direct conflict with Rose, and therefore Mosley is entitled to habeas relief, in the form of having the correct test applied.

(4) Mosley's Equal Protection Claim under Rose

Applying Rose to the facts at hand, Mosley has failed to make a prima facie showing of discrimination. There is no question that Mosley, as a black man, is a member of a recognizable group.

Mosley also satisfies the third prong of the Rose test, which inquires as to whether the process for selecting grand jury forepersons is susceptible to abuse. Potential members of grand juries in Gregg County are selected either using the grand jury commissioner system or a jury wheel system. Under Texas law, “[w]hen the grand jury is completed, the court shall appoint one of the number foreman.” Tex.Code Crim. Proc. Ann. art. 19.34 (1977).

This unfettered discretion permits the trial court to select the foreperson by simply looking at the grand jury members. “In cases in which the jury commissioners have had access to the racial identity of potential grand jurors while engaged in the selection process, the Supreme Court has repeatedly found that the procedure constituted a system impermissibly susceptible to abuse and racial discrimination.” Rideau, 237 F.3d at 488. A judge in Texas has access to the race of potential grand jury forepersons as the entire grand jury array is visible to him. “Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate.” Alexander v. Louisiana, 405 U.S. 625, 631, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (citations omitted).

Not only is this method of selecting a foreman opaque, but the Government effectively established by its own testimony the susceptibility of the process to abuse. The prosecuting attorney for Mosley's case, Richard Dunn (“Dunn”) testified at the hearing to quash the indictment that, in his years in the District Attorney's office, from 1982 to the date of the hearing, he had noticed a pattern in the selection of grand jury forepersons. He testified:

[In] '87 ... it began to be noticeable to me, perhaps even a few years later on, that there were not any African-Americans from our community who had actually presided and been Foreman of the Grand Jury. Since it was the law, and we submit it still is, that when the job is ministerial in nature only, the race of the Foreman doesn't make that much difference so long as the overall process is not under-representative which we did not believe it to be. However, there came a time-and that time-and I wish I could give everybody a date on this with more precision-but I can tell everyone here that that happened on-what I'm about to describe happened some time in mid to late 1991. I talked to Mr. Brabham [the district attorney] and related my concerns to him that, even from the standpoint of appearance and from no other standpoint, and fundamentally dealing with respect to the process, setting aside what some Appellate Court might or might not say, that I was beginning to be concerned that we did not have any African-American Grand Jury Foreman-or that we had not. I recalled one-I happened to recall one from 1983 who had been Foreman. But from 1984, '85, '86-particularly beginning with '85, I was aware that there had not been a Grand Jury Foreman who was African-American. Based on that-as I said approximately that time-we'll say the middle of 1991, I approached each of our District Judges, Judge Khoury [presiding over the Mosley trial] and Judge Starr, and mentioned to them that I saw this as something they just needed to be aware of.

There was further testimony that, from January 1991, the time at which Dunn alerted the judges of Gregg County of the trend he had noticed, until the time of Mosley's trial, 20.8% of all grand jury forepersons were black. The most pressing concern is whether Mosley presented a degree of underrepresentation of blacks as grand jury forepersons over a significant period of time, and thereby satisfied the second prong of Rose. Reviewing the voluminous record on the matter, we conclude that he has not adequately established underrepresentation.

At a hearing on Mosley's motion to quash his indictment, the trial court was presented with the following uncontroverted testimony: according to the 1990 census, 17.3% of the adult voting age population of Gregg County was black; from the beginning of 1984 through the end of 1994, sixty-three grand jury forepersons were selected, only five of whom, or 7.9%, were black. The absolute difference between the percentage of voting age blacks in Gregg County and the percentage of blacks chosen as grand jury forepersons is 9.4%.FN5

FN5. When the group in question makes up a sufficiently large proportion of the overall population, absolute disparity is the only disparity used by this Court to determine underrepresentation. We leave open the possibility that if the distinctive group at issue makes up less than 10% of the population, comparative disparity may be used. United States v. Butler, 615 F.2d 685, 686 (5th Cir.1980), denial of petition for rehearing en banc.

It is true that the Supreme Court “has never announced mathematical standards for the demonstration of systematic exclusion of blacks.” Rideau v. Whitley, 237 F.3d 472, 487 (5th Cir.2000) (citations and internal quotations omitted). This Court has, however, recognized that absolute disparities of 19.7%, 14.7% and 13.5% are sufficient to satisfy this prong of the Rose test. Id. at 486 (citing Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) and Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967)). This Court has also recognized that absolute disparities of 10% or less are insufficient to establish statistical discrepancies worthy of relief. See United States v. Maskeny, 609 F.2d 183, 190 (5th Cir.1980) (finding that the disparity offered by the defendant was less than 10% and therefore did “not make out a constitutional violation”).FN6

We find the reasoning employed in Maskeny persuasive, and again do not believe that the Supreme Court intended the amount of disparity necessary to prove purposeful discrimination in the jury venire in violation of the Equal Protection Clause to be different from the amount of disparity necessary to make a prima facie case under Rose. In the present case, we find an absolute disparity of 9.4% is insufficient to make out a prima facie equal protection violation under Rose.

FN6. In Maskeny, this Court recognized that while the 10% figure it was using came from an equal protection case where purposeful discrimination needed to be shown, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) overruled in part by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), nothing in Supreme Court jurisprudence suggested that the necessary amount of disparity would differ between an equal protection claim and a Sixth Amendment cross-section. 609 F.2d 183, 190 (1980).

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.