Tuesday, February 28, 2007

Media Advisory: Joseph Nichols Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Joseph Bernard Nichols, who is scheduled to be executed after 6 p.m. Wednesday, March 7, 2007. A Harris County jury sentenced Nichols to death the for 1980 murder of Claude Shaffer, Jr.

FACTS OF THE CRIME

On October 13, 1980, Nichols and Willie Ray Williams drove to a spot near Joseph’s Delicatessen and Grocery in Houston and entered the deli. Williams was armed with a .380 semi-automatic pistol; Nichols had a snub-nosed .38 revolver. Both men pointed their pistols at deli employee Claude Shaffer, Jr., who was behind the counter near the cash register.

When Shaffer saw the guns he began to bend over or squat down. Both Nichols and Williams then opened fire on Shaffer, who collapsed behind the counter. Deli employee Cindy Johnson testified that she was watching Shaffer after Nichols and Williams pointed their guns at him and that Shaffer never reached for a gun that he kept under the counter.

Investigators found a fully loaded .45 semi-automatic pistol on a shelf under the counter. There were no fingerprints on it and no .45 caliber fired bullets or empty shell casings were found.

After firing at Shaffer, Nichols and Williams ran to the door and Nichols went out. Williams either exited or partially exited and then turned and fired once more at Shaffer. Williams went behind the counter and grabbed the deli’s cash box, then ran out of the deli with his gun and the cash box. Nichols and Williams then joined co-defendants Charlotte Parker and Evelyn Harvey in a waiting car and drove away.

Nichols told Parker and Harvey “he had shot the man” and “he thought he shot him in the chest,” and that Williams said he had run back into the deli and shot the man again. A few days later, Williams, Nichols, Parker, and Harvey were arrested. Shaffer died from a single gunshot wound.

CRIMINAL HISTORY

Nichols was convicted of theft in 1979 and pleaded guilty to an April 1980 robbery for which he was sentenced to felony probation for nine years. Nichols was serving this probation when he killed Shaffer. Additionally, Nichols robbed a convience store on August 13, 1980, shooting the clerk in the shoulder when he did not respond fast enough to Nichols’s demand for more money. Nichols continued to demand additional money as the clerk was bleeding from his wound.

Further, on October 11, 1980, two days before the deli shop murder, Nichols committed another robbery of a convenience store, aiming his pistol at the clerks. There was also evidence that when booked into jail following his arrest for the Shaffer murder, Nichols stated he would “shoot any deputy that got in his way.” Finally, there was evidence that in June 1981, while in jail awaiting trial, Nichols conspired with others to engage in an escape involving the use of a firearm and other weapons.

PROCEDURAL HISTORY

AP - March 8, 2007

HUNTSVILLE, Texas — More than 26 years after he and a friend robbed a Houston convenience store where a clerk was fatally shot, Joseph Nichols wound up in the same death house where a dozen years earlier his partner was executed for the same crime. The similarities between Nichols and his longtime friend, Willie Ray Williams, ended in their final moments. Williams in 1995 spoke of "love and peace of Islam" as he was executed.

Nichols, 45, described by Texas Department of Criminal Justice officials as uncooperative throughout the day, had to be carried to the death chamber, then used his final statement while strapped to the gurney Wednesday evening for a profanity-filled diatribe against a supervisory corrections officer. "That's all I got to say," he barked. He winked toward a window where his parents and three brothers watched. He was pronounced dead seven minutes later.

The lethal injection was the second carried out in Texas in as many days and the eighth this year in the nation's busiest capital punishment state. Nichols and Williams were both convicted and condemned for the Oct. 13, 1980, slaying of Claude Shaffer.

"We're feeding and clothing him all these years and his family has had all these extra years with him," Claudette Shaffer, the daughter of the shooting victim, said after watching Nichols die. "They had a chance to say goodbye. We've never had that chance. Something is askew." Nichols' vulgar final statement, she said, "just reaffirmed the image I had of him: No feeling, no remorse, no concern for anyone."

She said she was eager to tell her 90-year-old mother, who couldn't attend the execution because of health concerns, of Nichols' death. "She is going to be very happy," Shaffer said. "She's been waiting since 1982."

Nichols' execution came despite appeals and protests from death penalty opponents that focused on the fact one bullet wound killed Shaffer, 64, and that Williams was prosecuted and convicted of being the shooter. Nichols, who said he'd fled the store when the fatal shot was fired, also was labeled as the shooter by Harris County district attorneys who prosecuted the case.

Prosecutors defended Nichols' conviction, saying Texas' law of parties makes non-triggermen just as culpable in crimes like Shaffer's murder. Nichols' lawyer, J. Clifford Gunter III, took the case to the U.S. Supreme Court, which previously had rejected Nichols' appeals. Gunter argued Nichols had been deprived "of a complete and meaningful post-conviction review of his case."

Less than two hours before Nichols was to die, the high court turned down his appeal. "There's nothing else we can do," Gunter said. "It's a sad day."

Nichols was tried twice. At the first trial, jurors were unable to agree on the death penalty and a mistrial was declared. It's the second trial that Nichols' lawyers accused prosecutors of changing tactics, suppressing evidence and arguing he was the shooter so jurors would be more inclined to decide on a death sentence, which they did.

"They had a parties charge (to the jury)," said Roe Wilson, who handles capital case appeals for the Harris County District Attorney's Office, denying any improper manipulations of evidence. "They were told the prosecution thought Nichols was the shooter, but there was no ballistics evidence. "And even if Nichols wasn't actually the one who hit him, under the law of parties Nichols was still guilty." The fatal bullet could not be recovered for ballistics tests.

"I never denied being there," Nichols said recently from death row, his home since he was 20. "I'm not telling you I'm not guilty of anything." But he insisted that when Williams fired the fatal shot, "I had already left." In the robbery, Williams "got some change," he said. "I got nothing."

March 1, 2007

On the morning of Oct. 13, 1980, 19-year-old Joseph Nichols and 24-year-old Willie Ray Williams entered Joseph's Delicatessen in Houston and approached the counter where 70-year-old Claude Shaffer was at the register. Williams and Nichols each pulled out a gun and pointed it at Shaffer, in an attempt to rob the store.

According to court records, Shaffer reached for a gun hidden behind the counter; as he ducked behind the counter, Nichols fired – his single bullet lodged somewhere behind a magazine rack, and he ran from the store. Williams also began to retreat but stopped at the front door. He fired at Shaffer – who was now standing, his back toward the door. The bullet killed Shaffer instantly; Williams returned to the counter, grabbed the cash box, and ran.

Nichols and Williams were arrested, and each was charged with capital murder. Three months later, in January 1981, after confessing to the killing, Williams pled guilty and was sentenced to die; he was executed in January 1995. Nichols pled not guilty: He'd been involved with the robbery but did not intend for Shaffer to die, nor did he take part in the murder. Nichols was tried twice for Shaffer's murder – a deadlocked jury prompted a mistrial the first time around; the second trial ended with a guilty verdict and a death sentence. He is scheduled for execution on March 7.

It might be tempting to assume that Nichols' 25-year stay on the row is an affirmation that the Texas capital punishment system functions properly – that a quarter-century behind bars means the courts have had ample opportunity to review his appeals and have concluded, based on all relevant evidence, that his execution will pass constitutional muster. But that isn't true: With less than a week until his execution, there remain serious questions about whether Nichols' execution is legally justifiable.

His is a case plagued by prosecutorial misconduct and incomplete judicial review. Harris Co. officials withheld from Nichols' attorneys the true identity and whereabouts of a crucial eyewitness, Teresa Ishman, one of two deli employees working with Shaffer the morning of the murder.

According to court records, Ishman told prosecutors it was Williams and not Nichols who killed Shaffer, and she confirmed that Nichols fled before the murder. Moreover, at Nichols' second trial, prosecutors completely changed the official theory of the crime in order to secure a conviction and death sentence.

At Nichols' first trial, prosecutors argued that Williams fired the fatal shot – an assertion backed up by the physical evidence and the testimony of the county medical examiner – and sought to convict Nichols not as the shooter but as a party to the killing. But the jury deadlocked because Nichols wasn't the triggerman. So at the second trial, in February 1982, prosecutors argued instead that Nichols was the one who fired the fatal shot – even though Williams had already confessed to the killing and had been sentenced to die.

State and federal courts have considered these omissions before, but only in "isolation," says Nichols' attorney, Clifford Gunter, with the Houston firm Bracewell & Giuliani. On Feb. 20, Gunter again appealed Nichols' case, arguing that taken together, the problems with his prosecution are so egregious that the death sentence should be overturned.

"Nichols has been inadvertently subjected to a procedural quagmire that has prevented his unconstitutional conviction from being fully reviewed," Gunter argues. "As a result, no court has ever addressed all of the constitutional violations that led to Nichols' conviction for a crime he did not commit … a crime for which the confessed murderer … has already been executed." In short, the court has never ruled whether the individual instances of misconduct could have the cumulative effect of rendering his punishment unconstitutional.

In Williams' case, Harris Co. prosecutors asserted that the evidence conclusively proved him the killer: "That is all there is to it. It is scientific. It is consistent. It is complete. It is final, and it is in evidence," they argued – evidence they offered again during Nichols' first trial. At Nichols' second trial, however, prosecutors abandoned all that evidence and argued that Nichols was the shooter; this strategy was possible only because the state continued to conceal eyewitness Ishman from the defense, argues Gunter.

Instead, prosecutors offered only the testimony of another deli employee, Cindy Johnson, who claimed Nichols fired the fatal shot. (According to Ishman, Gunter later discovered, there was no way Johnson could've seen anything because she hid in the bathroom once the robbery began.) By hiding Ishman, the prosecution was able to convince jurors Nichols was the shooter: "And I'll tell you that it was [Nichols'] hand that did the killing," declared the prosecutor. "How do you know that? [Johnson] saw it. She told you."

A federal district judge first overturned Nichols' conviction based on the state's changed theory of the crime (a due process violation), but the 5th U.S. Circuit Court of Appeals reversed, ruling that the error wasn't severe enough to "undermine confidence" in the guilty verdict. In a subsequent proceeding, the court similarly ruled that hiding Ishman from the defense was not so egregious as to undermine the verdict.

While Gunter hopes that the courts will now finally consider the errors' cumulative effect and will throw out Nichols' death sentence, given the complicated nature of the rules governing death-case appeals, it seems unlikely. In fact, "the rules against successive petitions are so onerous" that it is unlikely the courts will consider anything more than whether the appeal was filed properly, says UT law professor Jordan Steiker. "By successfully hiding their misconduct, the prosecution gets the benefit of a process designed to 'streamline' appeals. It is one of the ways that court doctrine rewards prosecutorial misconduct."

Gunter has also filed a petition with the Board of Pardons and Paroles, asking that Nichols' death sentence be commuted to life behind bars – ordinarily, Steiker says, that would be the way to go with a case like Nichols'. "If we had any sort of clemency process, this would be the perfect kind of case," where the executive branch would step in to correct an injustice the courts are ill-equipped to handle. But, he said, "That's not Texas."

03/07/2007

Condemned inmate Joseph Nichols acknowledges being in a Houston convenience store more than a quarter century ago, accompanied by a friend and attempting to hold up the place.

What baffles Nichols, however, is why he's likely to die Wednesday evening when his friend pleaded guilty to fatally shooting the 70-year-old store clerk — who died of a single bullet wound — and already has been executed for the slaying. "I was there, I don't deny that," Nichols said recently from death row, where he's been locked up for 25 years for the 1980 death of Claude Shaffer. "I never told them, word for word, that I killed this man."

Nichols, 45, would be the eighth prisoner executed this year in Texas, the nation's busiest capital punishment state, and the second in as many nights taken to the death house at the Huntsville Unit of the Texas Department of Criminal Justice. Tuesday evening, Robert Perez, 48, who prosecutors said was a high-ranking officer in the notorious Mexican Mafia prison gang, received lethal injection for a double killing in San Antonio in 1994.

Nichols was convicted and condemned for the Shaffer slaying, although he and his lawyers, along with death penalty opponents, cited what they contended were questionable tactics in Harris County's prosecution of Nichols. Willie Williams, Nichols' partner on Oct. 13, 1980, was convicted of the same crime and was executed 12 years ago.

"One bullet and two shooters," said Nichols' lawyer, J. Clifford Gunter III. "There's no getting around that." Gunter went to the U.S. Supreme Court, arguing in a late appeal that prosecutorial misconduct and legal appeals procedures left Nichols "in a procedural quagmire" that barred his conviction from being fully reviewed.

Roe Wilson, who handles capital case appeals for the Harris County district attorney's office, said it made no difference if Nichols didn't actually fire the fatal shot. Nichols originally was tried under the Texas law of parties, which makes one defendant as culpable as his partner in a crime, but jurors were unable to reach agreement on the death penalty and a mistrial was declared. Nichols missed by 30 days a change in Texas law that would have given him an automatic life term when jurors were unable to reach unanimity on a death sentence. Instead, he was tried a second time.

In that trial, Nichols' lawyers accused prosecutors of changing tactics and arguing he was the shooter so jurors would be more inclined to decide on a death sentence, which they did. "They had a parties charge (to the jury)," Wilson said, denying any improper manipulations of evidence. "They were told the prosecution thought Nichols was the shooter, but there was no ballistics evidence."

Both Nichols and Williams told police they shot toward Shaffer, and jurors heard testimony from a girlfriend of one of the shooters that when Nichols returned to their car outside the store, he said he thought he shot the victim in the chest. "They knew both people said: 'I shot toward him,'" Wilson said, referring to the jury. "And even if Nichols wasn't actually the one who hit him, under the law of parties Nichols was still guilty." The fatal bullet could not be recovered for ballistics tests.

Nichols was 20 when he arrived on death row. "Honestly, I thought I'd be dead at 25," he said, describing his years in prison as good and positive. "I was able to grow and do a few things, experience life and meet different people. Think about it: You've got people in other parts of the world in a worse position." If he had received a life term, under guidelines then in place, he could have become eligible for parole after 20 years. "I've already served a life sentence," he said.

On Tuesday evening, Perez, who had been linked to more than a dozen slayings in the mid 1990s in San Antonio, told his wife, two sons and a brother, who watched through a window, that he loved them "and never forget." And as the drugs were being administered, he remarked: "I got my boots on, like the cowboys." Seven minutes later he was pronounced dead.

Reuters News

Mar 7, 2007

HUNTSVILLE, Texas (Reuters) - A man who spent 25 years on Texas death row was executed by lethal injection on Wednesday for a 1980 murder after prison officials had to carry him to the death chamber.

Joseph Nichols, 45, was the second person in as many days and the eighth person put to death this year in Texas. The state leads the nation with 387 executions since 1982, when it reinstated the death penalty six years after the U.S. Supreme Court lifted a capital punishment ban.

He refused to walk to the death chamber but did not put up a fight, a prison spokeswoman said. In his last statement, he cursed prison staffers.

Nichols was convicted and sentenced to die for shooting Claude Shaffer during the robbery of a Houston food store on October 13, 1980. An accomplice, Willie Williams, was executed on January 31, 1995, after pleading guilty to the crime.

Lawyers for Nichols and death penalty opponents fought Nichols' executions on grounds that Shaffer had one bullet wound in his body, yet Houston prosecutors accused both Williams and Nichols in their separate trials of being the shooter. The Texas Coalition to Abolish The Death Penalty accused state prosecutors of presenting false evidence and suppressing favorable eyewitness testimony at trial.

The case wound its way through the courts for years before Nichols' final appeal was rejected by the U.S. Supreme Court shortly before he was executed. Nichols did not request a last meal.

Joseph Bennard Nichols, 45, was executed by lethal injection on 7 March 2007 in Huntsville, Texas for the robbery and murder of a store employee.

On 13 October 1980, Nichols, then 19, Willie Williams, 24, Charlotte Parker, and Evelyn Harvey drove to a spot near Joseph's Delicatessen and Grocery in Houston. Williams and Nichols went inside, both carrying guns. Williams had a .380 semi-automatic pistol, and Nichols had a snub-nosed .38-caliber revolver. Both men went to the back of the store first, then approached the counter. Nichols got a corndog. Williams set a quart of beer on the counter near the cash register.

Both men then drew their guns and pointed them at Claude Shaffer, 70, who was behind the counter. When Shaffer saw the guns, he tried to get down, but the gunmen opened fire. They then ran to the door. Nichols exited, but Williams stopped at the door, then went back inside and fired once more at Shaffer. Williams then went behind the counter, grabbed the cash box, and ran back out and joined Parker and Harvey in the car. They drove around to the side of the building to pick up Nichols, then drove off. The four were arrested a few days later.

Shaffer died from a single gunshot wound. The question of who fired the fatal shot was an important issue at Williams' and Nichols' trials and in appeals. The Harris County Medical Examiner, Dr. Espinola, testified that Shaffer died from a shot that entered his upper back, below his left shoulder and exited from the right side of his chest. He testified that the victim also had a superficial wound on the right side of his head, which was "consistent with a grazing type of gunshot wound," but could also have been caused by hitting his head on the corner of a hard object in a fall, and, in any case, was not a serious injury.

There were no bullets or bullet fragments found in the victim's body. Investigators found two empty .380 cartridge cases from Williams' pistol in the deli and an intact, misfired .380 round (with a firing pin indentation on the cartridge rim) just outside the door. A .38-caliber unjacketed lead bullet was found in a stack of comic books behind the counter.

At Nichols' trial, Williams, who had already pleaded guilty at his own trial, testified that Nichols drew his gun first, then Williams drew his. Shaffer then bent down, and Nichols said something to the effect of "don't go for the gun" or "don't be doing it." Shaffer came up with a gun, but before he could shoot, Nichols fired his gun at him. Williams testified that he pulled the trigger on his gun, but it misfired. Williams said that he saw no blood and that Shaffer was still squatting behind the counter when he re-entered the deli and shot at him again.

Nichols did not testify, but in a statement he gave to police, he said, "he came up with a pistol ... so we reacted and shot."

Cindy Johnson, another deli employee who was the only other person in the store, testified that when Nichols and Williams were at the counter, Nichols shot first, but Williams also shot, and two or three shots were fired at that time. She said that after those shots, Shaffer collapsed and there was blood on his head. She also testified that Shaffer never reached for a gun that was kept behind the counter, although in an earlier sworn statement, she said he did reach for it.

A .45-caliber semiautomatic pistol was found on a shelf behind the counter, but it was fully-loaded and had not been fired, and there were no fingerprints on it. Charlotte Parker testified that after Williams and Nichols were in the car, Nichols said, "I think I hit him in the chest," and that Williams said he shot him in the shoulder.

The defense argued that Nichols was not guilty of murder even under the law of parties, because Williams fired the fatal shot when he re-entered the deli, which was an independent decision Williams made after Nichols had already left. The prosecution argued that because the victim was crouching behind the counter and the bullet went through his torso, the shot couldn't have been fired from the door area. The state also argued that even if Williams did fire the fatal shot, Nichols, who planned the robbery, chose the location, and fired a gun at the victim, was responsible under the law of parties.

Nichols had a previous conviction for theft in 1979, and he pleaded guilty to an April 1980 robbery and was sentenced to nine years' probation. In August 1980, he robbed a convenience store, shooting the clerk. On 11 October, two days before the deli murder, he committed another convenience store armed robbery.

Nichols' first trial ended in a mistrial. The jury found him guilty, but could not agree on the sentence because of doubts over whether he fired the fatal shot. Under existing law, Nichols was retried. (A month later, a change in the law went into effect that a life sentence would automatically be imposed if the jury could not agree on a sentence in a capital murder case.)

On retrial in March 1982, Nichols was convicted and sentenced to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 1988.

In August 1992, a U.S. district judge vacated Nichols' conviction and ordered a new trial. The court ruled that the jury should have been instructed to consider whether Nichols fired the fatal shot. The court also said that the state contradicted itself by arguing that Nichols was the shooter, whereas previously, at Williams' trial, the state argued that Williams was the shooter.

In November 1995, the U.S. Fifth Circuit Court of Appeals reversed the district court's decision and reinstated Nichols' conviction and death sentence, ruling that the jury did not need to be instructed to consider whether Nichols fired the fatal shot. The appeals court also ruled that the district court's decision to grant Nichols a new trial on the basis of the prosecution's statements at Williams' trial was unsupported by law or precedent. All of Nichols' subsequent appeals were denied.

Willie Ray Williams was convicted in January 1981 of capital murder, after pleading guilty, and was sentenced to death. He was executed in 1995.

"I'm not telling you I'm not guilty of anything," Nichols said in an interview from death row, but when Williams fired the fatal shot, "I had already left." He said that in the robbery, Williams "got some change. I got nothing."

Of his 25 years on death row, Nichols said, "Honestly, I thought I'd be dead at 25," and that his time on death row was good and positive. "I was able to grow and do a few things, experience life and meet different people." "I don't want to die, but I've come to terms. No doubt, I'm regretful."

According to the Texas Department of Criminal Justice's director of public information, Michelle Lyons, Nichols did not resist being taken from his cell to the death chamber, but he "didn't cooperate either" and had to be carried and strapped to the gurney by the five-man tie-down team. Earlier in the day, Nichols was "uncooperative and belligerent," Lyons said.

On October 13, 1980, Nichols, Willie Ray Williams and two women drove to an apartment building in Houston, Texas, intending to rob a nearby grocery store. Committing the robbery was Nichols’ idea.

Armed with guns, Nichols and Williams entered the grocery. Seventy-year old Claude Shaffer, Jr. was working as a deli clerk behind the counter. Nichols pointed his gun at Claude, and Claude made a movement that Nichols interpreted as gun retrieval. Nichols then shot at Claude Shaffer. Williams also shot at Claude while fleeing the store, but he returned to the counter to take the cash box. Claude was killed by one bullet to the back. The women drove Nichols and Williams away from the scene. The quartet were arrested soon thereafter.

At the punishment phase of Nichols's trial, the state submitted evidence that Nichols had been convicted of theft in 1979, and had pleaded guilty in May 1980 to an April 1980 robbery for which he was sentenced in July 1980 to nine years’ felony probation, which he was serving when he committed the instant offense.

Additionally, it was shown that on August 13, 1980, Nichols committed an armed robbery of a convenience store, shooting the clerk in the shoulder when he did not respond speedily enough to Nichols’ demand for more money. Nichols continued to demand more money as the clerk was bleeding from his wound.

Further, on October 11, 1980, two days before the present offense, Nichols committed another robbery of a convenience store, aiming his pistol at the clerks. There was also evidence that when booked into jail following his arrest for the instant offense, Nichols had stated he would “shoot any deputy that got in his way.”

Finally, there was evidence that in June 1981, while in jail awaiting trial, Nichols conspired with others to engage in an escape involving the use of a firearm and other weapons.

Defendant was convicted in the 178th Judicial District Court, Harris County, Dan E. Walton, J., of capital murder, and he appealed. The Court of Criminal Appeals, White, J., held that: (1) defendant voluntarily chose to waive his constitutional rights and confess; (2) although trial court erred in excusing prospective juror on its own motion, such error was not reversible; (3) failure of trial court to sua sponte charge jury that law of parties may not be applied to punishment special issues was not fundamental error; and (4) evidence supported jury's affirmative findings on special issues at punishment phase. Affirmed. Clinton and Campbell, JJ., concurred in result. Teague, J., dissented with statement.

WHITE, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code Sec. 19.03(a)(2).FN1 After finding appellant guilty, the jury returned affirmative findings to the three special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death. We will affirm.

FN1. This is the second time appellant has been tried and convicted for this offense. The first trial ended in a mistrial at the punishment phase when the jury could not reach a unanimous verdict on special issue number two. See, Art. 37.071(b)(2), V.A.C.C.P., and this Court's response to appellant's ninth point of error. With leave of this Court, appellant has filed two briefs raising a total of twenty-six points of error.FN2 For logistic purposes, we will not address the points of error in numerical order, but will address them in chronological trial order, consolidating points whenever possible.

FN2. Mr. E. Neil Lane, Esq., one of appellant's trial attorneys, filed a brief raising six points of error. Mr. Brian Wice submitted a second brief on appellant's behalf after being allowed to substitute as appellate counsel. Tex.R.App.Proc., R. 7 and 74( o ). This second brief raises twenty points of error and constitutes the majority of the issues addressed in this opinion. All references to appellant's points of error are to those raised in Mr. Wice's brief unless otherwise noted.

The relevant facts may be briefly stated. On October 13, 1980, at approximately 9:00 a.m., appellant and Willie Ray Williams entered Joseph's Delicatessen and Grocery with the plan to commit a robbery. As they approached the cash register, both men pulled guns on Claude Shaffer, the seventy year old victim. Shaffer bent down behind the counter, and it is controverted whether he was reaching for an unloaded pistol kept behind the store counter or whether he was simply taking cover. Appellant stated “Don't try it” and opened fire on Shaffer. It is unclear whether appellant's shots hit Shaffer.

Appellant and Williams then turned and started to flee. As they reached the door, Williams turned and shot at Shaffer. Again, it is unclear which shot contacted the victim. Both men fled but, after running out of the Deli, Williams stopped and went back into the Deli, alone. Williams took the cash box from behind the counter where the victim had been standing and ran out of the store. Both men were picked up by two females in a blue Toyota.

Although shot in the left temple and shoulder, Shaffer died as a result of a single gunshot wound to his back. Ballistics investigation could not determine which gun caused this wound. Appellant and Williams netted a total of eight or nine dollars from the robbery.

In his eighth point of error, appellant challenges the admissibility of his confession. His argument, while extremely amorphous, can be organized into a three-fold challenge. First, appellant asserts a Sixth Amendment violation, second, an involuntary Miranda FN3 waiver and third, a violation of his Fifth Amendment request for counsel. After a careful review of each we find that the confession was properly admitted.

The relevant facts from the suppression hearing are as follows. Pursuant to statements given by other participants in the offense and a photo I.D. made by a witness, appellant became a suspect of the instant offense. Officer R.D. Anderson, a detective with the Houston Police Department assigned to the case, learned that appellant would be returning to the home of Eddy Henderson on the evening of October 17, 1980. Officer Anderson and his partner, Dollins, went to Henderson's home at approximately 7:40 p.m. and awaited appellant's arrival. Appellant arrived within 30 minutes, was placed under arrest and read his Miranda warnings.

Appellant was taken to the Houston Police Department where he was once more given his Miranda warnings. Appellant then, after acknowledging that he understood his rights, waived them and gave a tape recorded and written confession to the instant offense. The confession was signed at 10:15 p.m. The face of the confession contains the requisite warning and waiver of rights as required by Art. 38.22, V.A.C.C.P. The confession read as follows:

“My name is Joseph Bernard Nichols. I am 19 years of age. I live at 3922 Prudence with friends. I was born on 9-8-61. I was coming from the motel. I think it was the Act II Motel. I was with Will, Charlotte and Evelyn. We were riding and we got on a conversation about robbing. We came upon this little store off of Fannin Street. Charlotte was driving. We passed by the store the first time and we saw one car parked in front of the store. We all decided that this was all right to hit.

“We parked down the street in front of some apartments. Me and Will went in the store. We pulled out our guns on the dude behind the cash register and told him to put the money in the sack. The man behind the counter started bending over behind the counter. He had bent over so far that we couldn't see him. Then he came up with a pistol. I guess he was getting ready to shoot. He was fixing to shoot us. So we reacted and shot. I was scared cause I just knew that he was fixing to shoot one of us. So we reacted and shot.

“I ran out of the store and through the alley and around to the back of the apartment complex. I ran around to the front of the apartments and I didn't see the car and I stood in the middle of the street looking around for the car, and then they came around the corner. I jumped in the car and we went straight home on Prudence. “On Wednesday I took the gun back to the dude that I got it from. I don't know his name. He just hangs on the corner of Calumet and Live Oak. I want to say that we did not mean to kill the man. When he come up from behind the counter, he had pulled a gun on us.” [/s/] Joseph Nichols.

At the suppression hearing, appellant testified that at approximately 3:00 p.m. on the day of his arrest he injected preludin, drank some beer and smoked marihuana. Tyrone Williams, a friend of appellant's who was with appellant throughout the day of arrest and who also partook of some intoxicants, testified that appellant appeared “high” after initially ingesting the intoxicants. On cross-examination, Williams further testified that appellant was at all times able to walk and talk, knew where he was and was not “out of his head.”

At the conclusion of the suppression hearing, the trial court found the confession admissible and made the following findings of fact: appellant was sufficiently warned of his Miranda rights; he voluntarily, knowingly and intelligently waived these rights before confessing; he was not under the influence of any drugs or other intoxicants at the time of giving the confession, and he did not request an attorney. Absent a clear abuse of discretion, such findings by the trial court will be upheld. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Cannon v. State, 691 S.W.2d 664 (Tex.Cr.App.1985) cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986).

Appellant first contends that his Sixth Amendment right to counsel was violated by the admission of his confession into evidence. However, at the time appellant signed his confession he was merely under arrest and being questioned. The Sixth Amendment right to the assistance of counsel is not invoked until formal adversary judicial proceedings have been initiated. United States v. Gouveia, 467 U.S. 180, 187-189, 104 S.Ct. 2292, 2296-2298, 81 L.Ed.2d 146 (1984); Brewer v. Williams, 430 U.S. 387, 398-399, 97 S.Ct. 1232, 1239-1240, 51 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 688-689, 92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411 (1972); Dunn v. State, 696 S.W.2d 561, 565 (Tex.Cr.App.1985) cert. denied, 475 U.S. 1089, 106 S.Ct. 1478, 89 L.Ed.2d 732 (1986). The mere arrest and subsequent questioning of a person does not constitute sufficient formalization of proceedings to trigger the Sixth Amendment requirement of counsel. Appellant's Sixth Amendment contention is overruled.

Appellant secondly challenges the admissibility of his confession on the ground that because of intoxication, he lacked the capacity to knowingly and voluntarily waive his Miranda rights. Appellant bases this contention on the fact that he consumed preludin, marihuana and beer six to seven hours prior to confessing. Whether appellant was even under the influence of these drugs at the time he gave his confession is disputed. The trial court made a finding of fact that appellant was not, and we find nothing in the record to indicate that this finding was an abuse of discretion.

Even if appellant was under the influence of intoxicants at the time of confessing, this would not automatically render the confession involuntary. Intoxication, while relevant, is not per se determinative of the voluntariness of a confession. United States v. Brown, 535 F.2d 424, 427 (8th Cir.1976); Vasquez v. State, 163 Tex.Cr.R. 16, 288 S.W.2d 100, 109 (1956). The central question is the extent to which appellant was deprived of his faculties due to the intoxication. Vasquez, supra at 109; Dickey v. State, 284 S.W.2d 901 (Tex.Cr.App.1955); Halloway v. State, 162 Tex.Cr.R. 322, 175 S.W.2d 258, 259 (1943). If appellant's intoxication rendered him incapable to make an independent, informed choice of free will, then his confession was given involuntarily. Jurek v. Estelle, 623 F.2d 929, 937 (5th Cir.1980).

All the witnesses at the suppression hearing testified that appellant was coherent and in control of all his faculties. His speech was not slurred and three experienced police officers testified that appellant did not show any signs of intoxication. A toxicologist testified that, given the amount of drugs appellant testified that he consumed, the time span involved and the offset effect of the depressants and stimulants, appellant would have been rational at the time he confessed.

Appellant himself testified that he knew what he was doing but that he would not have been so easily “persuaded” into giving a confession had he not taken the drugs. He admitted that he was not physically abused or threatened in any manner. Appellant also testified that he was currently on probation for robbery and that as a result of that arrest, he was aware of his constitutional rights. He remembered that his Miranda warnings were given to him numerous times and that he had read and signed his confession. There is no evidence that appellant's will was in any way overborne.

Appellant adds the assertion that his age and intellect contributed to his inability to intelligently waive his Miranda rights. We find no support for this contention in the record. Appellant testified that he was nineteen years old at the time of confessing and fully able to read and write the English language. There was no evidence that he had an inferior intellect and his prior experiences with the criminal justice system is a fact in favor of voluntary waiver. Lovell v. State, 525 S.W.2d 511, 513-514 (Tex.Cr.App.1975).

The evidence clearly supports the trial court's finding that appellant knowingly, voluntarily and intelligently waived his rights and gave a confession without being under the influence of intoxicants. In fact, the instant evidence of appellant's possible intoxication does not compare to the evidence adduced in other cases where intoxication rendered the confessions involuntary.See and compare, Townsend v. Sain, 372 U.S. 293, 304-309, 83 S.Ct. 745, 752-755, 9 L.Ed.2d 770 (1963) (statement involuntary where defendant was 19 year old drug addict going through withdrawal and was given “truth serum”); Mincey v. Arizona, 437 U.S. 385, 398-402, 98 S.Ct. 2408, 2416-2419, 57 L.Ed.2d 290 (1978) (confession rendered involuntary when given while injured in hospital almost to point of coma); People v. Fordyce, 200 Colo. 153, 612 P.2d 1131, 1134 (1980) (confession made while in intensive care and after ingestion of morphine to the point of saturation held involuntary); DeConingh v. State, 433 So.2d 501 (Fla.1983) cert. denied, 465 U.S. 1005, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984) (confession rendered involuntary where given while on thorazine and valium and while out of touch with reality).

Moreover, the instant evidence of intoxication falls far below the evidence adduced in cases where intoxication was held to be insufficient to render the confession involuntary. See and compare, United States v. Sledge, 546 F.2d 1120 (4th Cir.1977) cert. denied, 430 U.S. 910, 97 S.Ct. 1185, 51 L.Ed.2d 588 (1977) (defendant's claim that he was “high” due to an intravenous injection of heroin and preludin two and one-half hours before confessing rejected in view of police testimony that he was coherent); United States v. Wilkins, 659 F.2d 769, 775 (7th Cir.1981) (fact that defendant was under influence of injected drugs at time of questioning overridden by nurse's testimony that defendant appeared coherent); United States v. Faul, 748 F.2d 1204, 1220 (8th Cir.1984) (statements made three days after extensive surgery voluntary where defendant was advised of Miranda rights and appeared coherent); Mallott v. State, 608 P.2d 737, 743 (Alas.1980) (blood alcohol level of .31 which would render 90% of population unable to function did not render confession involuntary); Atkins v. State, 452 So.2d 529, 531-532 (Fla.1984) (confession voluntary when given after approximately six hours had passed between ingestion of Quaalude and beer and the giving of the confession); Holcomb v. State, 254 Ga. 124, 326 S.E.2d 760, 762 (1985) (where defendant was sufficiently warned but was suffering withdrawal symptoms from amphetamines and cocaine, confession was voluntary); State v. Lamb, 213 Neb. 498, 330 N.W.2d 462, 467 (1983) (blood alcohol level of .224 not render confession involuntary where defendant was coherent); King v. State, 585 S.W.2d 720 (Tex.Cr.App.1979) (heroin taken on the day of confessing did not render confession involuntary); Boggs v. Commonwealth, 229 Va. 501, 331 S.E.2d 407, 415 (1985) cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 347 (1986) reh. denied, 475 U.S. 1133, 106 S.Ct. 1666, 90 L.Ed.2d 207 (confession voluntary with evidence of alertness and comprehension where defendant consumed a six pack of beer, and a fifth of whiskey, smoked marihuana, and took two hits of speed). For a thorough compilation of applicable caselaw see, 25 A.L.R. 4th 419. Appellant's capacity argument is overruled.

In his final contention under his eighth point of error, appellant asserts a violation of his Fifth Amendment request for counsel. Appellant claims that he requested an attorney two times prior to confessing and both requests were denied. The trial court found that appellant did not invoke his right to counsel and again, we find nothing in the record to indicate that this was an abuse of discretion.

As is often the case, this argument comes down to a swearing match between appellant and the arresting officers. The trial court, who is the exclusive judge of the credibility of the witnesses and the weight to be given the testimony at the suppression hearing, believed the testimony of the officers. Hawkins v. State, 613 S.W.2d 720, 731-732 (Tex.Cr.App.1981) cert. denied, 454 U.S. 919, 102 S.Ct. 422, 70 L.Ed.2d 231 (1981) reh. denied, 454 U.S. 1093, 102 S.Ct. 660, 70 L.Ed.2d 632. Officers Anderson and Dollins were with appellant from the time of his arrest through the time he gave his confession. Both testified that appellant never requested an attorney.

Appellant testified that he first requested counsel while he was being arrested by Officer Anderson. Appellant stated that, as Officer Anderson was handcuffing and searching him, he told Tyrone Williams to call his attorney. Such an indirect request for counsel, to a third party, even if true, would not be sufficient to invoke appellant's right to counsel. See, Russell v. State, 727 S.W.2d 573 (Tex.Cr.App.1987) (defendant's question to interrogating officer of whether presence of counsel was necessary not invoke right to counsel); Collins v. State, 727 S.W.2d 565 (Tex.Cr.App.1987) (defendant's question of whether he would get an attorney upon arrival in Houston not invoke right to attorney); Kelly v. State, 621 S.W.2d 176, 178 (Tex.Cr.App.1981) (defendant's request for mother to get him an attorney in presence of officer who heard such request not invoke right to counsel); Cannon v. State, 691 S.W.2d 664, 673 (Tex.Cr.App.1985) (defendant's request for bartender to call his attorney not sufficient to invoke right); Curtis v. State, 640 S.W.2d 615, 618 (Tex.Cr.App.1982) (defendant's asking brother to get his attorney and later question to interrogating officer of how he would be provided a court-appointed attorney did not invoke right to counsel).

Appellant further testified that his second request for counsel was made to Officer Anderson at the police station just prior to confessing. Officer Anderson and Dollins denied that such a request was made. The trial court, who is in the best position to hear the testimony and see the demeanor of the witnesses found the testimony of the officers more believable. This the trial court is free to do, Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978) cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 250 (1979), reh. denied, 439 U.S. 998, and we find that the evidence supports the trial court's conclusions.

After a careful review of the totality of the record, we find that appellant voluntarily chose to waive his constitutional rights and confess. The confession was properly admitted. Appellant's eighth point of error is overruled.

*****

In his eleventh point of error (first point of error in counsel Lane's brief), appellant contends that the trial court fundamentally erred by failing to charge the jury at punishment that they could not rely on the law of parties in answering the special issues in violation of Green v. State, 682 S.W.2d 271 (Tex.Cr.App.1984) cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985). Appellant concedes, however, that he failed to request or object to the absence of such a charge. The failure to object to the charge waives all but fundamental error. Art. 36.19, V.A.C.C.P.; Duffy v. State, 567 S.W.2d 197, 204 (Tex.Cr.App.1978) cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978).

The error, to constitute fundamental proportion, must be egregious and create such harm that it deprives appellant a fair and impartial trial. Art. 36.19, supra; Almanza v. State, 686 S.W.2d 157, 171-172 (Tex.Cr.App.1985). After a careful review of the totality of the record, we find no such error or harm.

First, the failure of the trial court to sua sponte charge the jury that the law of parties may not be applied to the special issues does not constitute fundamental error. In Green v. State, supra, this Court reversed prior caselaw to follow the 8th Amendment requirements announced by the U.S. Supreme Court in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

The Enmund Court held that there must be some proof that the defendant either killed, attempted or intended to kill or contemplated a killing before a death sentence could be imposed. Enmund, supra. In Green, we determined that application of Enmund required that the law of parties could not be applied to the punishment issues in a capital murder case. Green, supra at 287. In dicta we further noted:

Upon request by a capital murder defendant or the State, the jury is to be instructed at the punishment phase that only the conduct of the defendant can be considered at the punishment phase, and that the instructions pertaining to the law of parties at the guilt stage cannot be considered. Appellant did not request any such charge in this case.FN11 Green, supra at 287, n. 4. Appellant seizes upon this language from Green to argue that it was fundamental error for the court to omit an “anti-parties” charge at punishment.

However, such a charge is not required by Green, supra, or Enmund, supra, nor is it mandated by any Texas statute. See, Stewart v. State, 686 S.W.2d 118, 124 (Tex.Cr.App.1984) cert. denied, 474 U.S. 866, 106 S.Ct. 190, 88 L.Ed.2d 159 (1985). While it is abundantly clear that an “anti-parties” charge would be acceptable and, in fact, applauded by this Court, see, 8 McCormick and Blackwell, Texas Criminal Forms and Trial Manual, Sec. 81.15, p. 289 (9th Ed.1985) and 3 Texas Criminal Practice Guide, Sec. 75.103, p. 75-58.1, the failure to give such a charge, absent a request or objection, does not constitute fundamental error.

Further, we find that appellant was not egregiously harmed by the lack of such a charge. Although the jury was charged on the law of parties at the guilt stage, it cannot be presumed that they considered the same during punishment. To the contrary, the careful trial court, while not having the benefit of the Green decision at the time of trial,FN12 voir dired the jury on the fact that the law of parties, while applicable at guilt, was not applicable to the punishment special issues. Moreover, the special issues themselves incorporate the Enmund-Green requirements by directly focusing upon solely the defendant's culpability. See, Cuevas v. State, 742 S.W.2d 331, 343 (Tex.Cr.App.1987); Buxton v. State, 699 S.W.2d 212, 214-215 (Tex.Cr.App.1985) cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986); Meanes v. State, 668 S.W.2d 366, 375-378 (Tex.Cr.App.1983) cert. denied, 466 U.S. 945 (1984); Green, supra at 287. The evidence adduced in the instant case, concerning appellant's conduct, substantially supports the jurys' affirmative answers to the special issues.FN13 Because appellant's conduct alone was sufficient to sustain the affirmative answers, we cannot find that he suffered egregious harm from the lack of an “anti-parties” charge at punishment.

FN12. We note that appellant's trial took place in 1982, two years prior to our decision in Green, supra. FN13. See our discussion of appellant's fifth, sixth and seventh points of error, post, wherein we address the sufficiency of the evidence to support the three special issues.

While a prophylactic “anti-parties” instruction should be given at punishment, upon request, the absence of such an instruction in the instant case did not constitute egregious error or harm. See, Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986); Skillern v. Estelle, 720 F.2d 839 (5th Cir.1983); Rector v. State, 738 S.W.2d 235, 241 (Tex.Cr.App.1986); Marquez v. State, 725 S.W.2d 217, 225 (Tex.Cr.App.1987) cert. denied, --- U.S. ----, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987). Appellant's eleventh point of error (first point of error in the Lane brief) is overruled.

In appellant's twelfth through twentieth points of error he alleges improper jury argument at both the guilt-innocence and punishment phases of trial.FN14 Appellant concedes, however, that, with the exception of one, there was no trial objection to any of the challenged arguments. Generally, jury argument error is waived by the defendant's failure to object or request an instruction to disregard. Briddle v. State, 742 S.W.2d 379, 390 (Tex.Cr.App.1987); Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982); Esquivel v. State, 595 S.W.2d 516, 522 (Tex.Cr.App.1980) cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). Also see, Tex.R.App.Proc., R. 52(a); 23 Tex.Jur.3d, sec. 2928, pp. 743-744 and sec. 2931, pp. 749-750. This rule is founded on the appellate presumption that an instruction to disregard will be obeyed by the jury, thus curing any possible error. See, Waldo v. State, 746 S.W.2d 750, 753-54 (Tex.Cr.App.1988); Gardner v. State, 730 S.W.2d 675, 696 (1987) cert. denied, --- U.S. ----, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987). Also see, 23 Tex.Jur.3d, sec. 2932, 751-756. However, an exception arises where the argument is so prejudicial that an instruction to disregard would not have cured harm. Romo, supra; Smith v. State, 541 S.W.2d 831 (Tex.Cr.App.1976) cert. denied, 430 U.S. 937, 97 S.Ct. 1565, 51 L.Ed.2d 783 (1977). See, e.g., Montoya v. State, 744 S.W.2d 15, 37 (Tex.Cr.App.1987, Opinion on appellant's Motion for Rehearing); Waldo, supra; Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App.1975). Unless the prosecutor's argument was so prejudicial that an instruction to disregard could not have removed its ill effects from the mind of jury, reversal will not result. Appellant does not allege, and, after a careful review of the record, we do not find that any of the challenged arguments had such an irrevocable effect.FN15 Consequently, error, if any, is deemed waived. Appellant's twelfth through nineteenth points of error are overruled.

FN14. Appellant, after “recognizing”, in a footnote, this Court's prohibition against multifarious points of error, Tex.R.App.Proc., R. 74(d), proceeds to assert numerous multifarious points concerning jury argument error. Regardless of appellant's disclaimer that he grouped different points to expedite review, we find it to be much more expedient to follow the rules. In the interest of justice, and due to the finality of the punishment, the points were reviewed, Tex.R.App.Pro., R. 74(p), however, we warn against future violations. See, Woodard v. State, 696 S.W.2d 622, 625 (Tex.App.-Dallas 1985, no pet.).

FN15. Appellant, acknowledging the general rule that failure to object waives error, goes on to argue that the cumulative effect of all of the unobjected to arguments constitutes fundamental harm. We find this argument untenable. See, McIlveen v. State, 559 S.W.2d 815, 823 (Tex.Cr.App.1977). Not only did the contested arguments not, in and of themselves, cause egregious harm, but the majority of the arguments were, in fact, proper. See, Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). For example, the argument challenged in appellant's twelfth point of error, concerning the prosecutor's assessment of appellant's intent or expectation of harm, is not a comment on appellant's failure to testify, but a reasonable deduction from the evidence showing that appellant planned the robbery, entered the store with a loaded gun, pointed and fired at close range. See, Rogers v. State, 598 S.W.2d 258, 263-264 (Tex.Cr.App.1980).

Likewise, the thirteenth point attacks the prosecutor's reference to a plea bargain given to an accomplice witness as an argument outside the record when, in fact, this argument was an invited response based on facts fully in the record, as introduced by appellant, and initially argued by appellant. Further, the argument challenged in the fourteenth point is not an improper plea for conformance to community expectations, but a proper “you” and “they” textbook plea for law enforcement. Haynes v. State, 627 S.W.2d 710, 714 (Tex.Cr.App.1982). See, 23 Tex.Jur.3d, sec. 2910, p. 715-718. Finally, in appellant's eighteenth point, the argument that appellant would kill to escape from jail is not an argument outside the record, but a reasonable deduction supported by the evidence that appellant attempted an armed escape while pending trial.

In his twentieth point of error, appellant raises the only point challenging an objected to jury argument. However, the trial objection was that the argument was “not a correct statement of the evidence.” The judge admonished the jury to rely on their own recollection of the evidence before overruling the objection. On appeal, appellant contends that the argument was a comment on his failure to call punishment witnesses. Because the challenge on appeal does not comport with the objection at trial, nothing is presented for review. Sharp v. State, 707 S.W.2d 611 (Tex.Cr.App.1986); Guzmon v. State, 697 S.W.2d 404, 411 (Tex.Cr.App.1985) cert. denied, 475 U.S. 1090, 106 S.Ct. 1479, 89 L.Ed.2d 734 (1986); Miller v. State, 566 S.W.2d 614, 619-620 (Tex.Cr.App.1978). Further, any possible error raised by the trial objection was cured by the court's admonishment. Appellant's twentieth point of error is overruled.

In his fifth, sixth and seventh points of error, appellant challenges the sufficiency of the evidence to support the jury's affirmative findings to the three special issues of Art. 37.071(b), V.A.C.C.P., submitted at punishment. Our review of the evidence must be in the light most favorable to the verdict to determine whether a rational trier of fact could have found the elements of each of the special issues to have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Combs v. State, 643 S.W.2d 709 (Tex.Cr.App.1982). Although appellant was convicted under a parties theory, it is now well-settled that the law of parties may not be applied to the special issues at the punishment phase. Enmund, supra; Green, supra. Thus, our review will encompass and assess appellant's conduct alone.

The jury was not charged on the law of parties or given an “anti-parties” charge at the punishment phase. They were instead given the special issues of Art. 37.071(b), each focusing entirely and exclusively on appellant's conduct, and instructed that before returning affirmative findings, they must find that the evidence supports each issue beyond a reasonable doubt. The jury so found. After a careful review of the evidence adduced at the guilt-innocence and punishment phases of trial, we find the evidence sufficient to sustain their verdict. O'Bryan, supra; Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978) cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978).

In point of error number five, appellant contends that the evidence is insufficient to sustain the jury's affirmative finding to special issue number one FN16 Specifically, appellant challenges the sufficiency of the evidence to support deliberateness. FN16. “[W]hether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result....” Art. 37.071(b)(1), V.A.C.C.P.

While this Court has properly insisted upon deferring to the Legislature the task of defining the term deliberate, we have approximated its meaning in accordance with “common usage” as something more than intentional, Heckert v. State, 612 S.W.2d 549, 552 (Tex.Cr.App.1981), and something less than premeditation, Granviel v. State, 552 S.W.2d 107, 123 (Tex.Cr.App.1976) cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977), a “conscious decision involving a thought process which embraces more than mere will to engage in the conduct.” FN17 Lane v. State, 743 S.W.2d 617, 628-631 (Tex.Cr.App.1987); Marquez, 725 S.W.2d at 243-244; Williams v. State, 674 S.W.2d 315, 320-322 (Tex.Cr.App.1984); Russell v. State, 665 S.W.2d 771, 780 and 783-787 (Clinton, J., dissenting) (Tex.Cr.App.1983) cert. denied, 465 U.S. 1073, 104 S.Ct. 1428, 79 L.Ed.2d 752 (1984) reh. denied, 466 U.S. 932, 104 S.Ct. 1720, 80 L.Ed.2d 192; Fearance v. State, 620 S.W.2d 577, 584 (Tex.Cr.App.1981) (Opinion on appellant's Motion for Rehearing) cert. denied, 454 U.S. 899 (1981); Ferguson v. State, 36 Tex.Cr.R. 60, 35 S.W. 369, 370 (1896). Thus, the evidence must support the jury's affirmative finding that appellant's conduct alone constituted a conscious decision-greater than mere will-to cause the death of the victim.

FN17. We note that the Legislature has not, as yet, accepted our oft repeated invitation to statutorily define “deliberate” in the context of 37.071(b)(1). See, Lane, supra at 628, n. 7, 630, n. 11 and 630-631 (Duncan, J., concurring); Williams, supra at 322, n. 6. Thus no explicit definition can be applied herein. Once again we note the need for a statutory definition and exemplify the clarification to be afforded by legislative action in this area.

The evidence adduced relevant to deliberateness is as follows. Appellant confessed to his participation in the robbery during the course of which a man was killed. He instigated and planned the robbery, picked the store to be “hit”, entered the store with a loaded .38 snub-nose revolver, pointed it at the elderly victim and demanded money. When the victim crouched down behind the counter, appellant stated “Don't try it” and opened fire. Although it is disputed as to which defendant's shots caused the fatal wound, FN18 it is clear that appellant fired the first shot at close range.

Additionally, it was shown at punishment that appellant had committed numerous prior robberies, one in which he shot the victim. This evidences the fact that the instant killing was done by an experienced robber rather than an excited amateur. A few days after the commission of the offense appellant returned the gun to its owner, thus probative of further pre-planning by appellant to commit the instant offense-hence the need to borrow the gun.

FN18. In appellant's co-defendant's case, Williams, supra, we stated that Wiliams fired the fatal shot. This assumption was based upon Williams' guilty plea and statements accepting responsibility for the murder. However, there is no conclusory proof that the single deadly chest wound was fired by Williams. In fact, evidence adduced in the instant case points toward appellant having fired the deadly shot. Just after the shooting, appellant told the driver of the getaway car that he had to shoot the victim. Appellant also told another accomplice that he fired the first shot which he thought hit the victim in the chest.

Additionally, as argued by the prosecution, the angle of the chest wound was consistent with appellant's position during the robbery. It is factually unknown and evidentiarily improvable who fired the fatal shot, but this does not negate the deliberateness of appellant's individual actions. Santana v. State, 714 S.W.2d 1 (Tex.Cr.App.1986).

In our opinion affirming appellant's co-defendant's case, Williams, supra, we stated, In Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976) [cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977) ], the defendant entered a grocery store, pointed a gun at the attendant and told him he was being robbed. The attendant made a motion ‘behind his jacket’ and the defendant called to his co-defendant, after his own gun misfired. The co-defendant shot and killed the attendant.

The two defendants then took the money and left. In Smith the evidence was sufficient to support a deliberateness finding even for the defendant who did not actually shoot the victim. The facts of the instant case are more compelling than those in Smith. [citation omitted] We find the evidence sufficient to support the jury's affirmative finding on the issue of deliberateness.FN19

FN19. Although Smith, supra, was decided prior to our decision in Green, supra, it is still viable authority. In Green we approvingly cited Smith stating, “In Smith this Court found the evidence sufficient to support the affirmative answers to the special issues based upon facts concerning the defendant's individual conduct.” Green, supra at 286.

Thus, the findings in Smith comport with Enmund-Green requirements. Williams, supra at 321. Just as in Smith, the near mirror-image facts of the instant case, as was recognized in Williams, supra, are sufficient to sustain the jury's finding that appellant individually engaged in a thought process which activated the intentional murder, thus showing deliberateness. Also see, Livingston v. State, 739 S.W.2d 311, 338-339 (Tex.Cr.App.1987); Carter v. State, 717 S.W.2d 60, 67-68 (Tex.Cr.App.1986) cert. denied, --- U.S. ----, 108 S.Ct. 467, 98 L.Ed.2d 407 (1987); Santana, supra at 5-7; Cordova v. State, 698 S.W.2d 107, 112-113 (Tex.Cr.App.1985) cert. denied and appeal dismissed, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986); Green, supra at 287-289; Selvage v. State, 680 S.W.2d 17, 21-22 (1984); Smith v. State, 676 S.W.2d 379, 393 (Tex.Cr.App.1984) cert. denied, 471 U.S. 1061, 105 S.Ct. 2173, 85 L.Ed.2d 490 (1985). Appellant's fifth point of error is overruled.

In his sixth point of error, appellant challenges the sufficiency of the evidence to sustain the jury's affirmative finding to the second special issue.FN20 Factors to be considered in determining the sufficiency of the evidence to support future dangerousness are the facts of the instant offense, appellant's prior criminal record and any mitigating circumstances. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987); Livingston, supra at 340 and cases cited therein. FN20. [W]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society....” Art. 37.071(b)(2), V.A.C.C.P.

The evidence adduced relevant to future dangerousness is as follows:

I. Nature of Offense:

Appellant, by his own confession, entered the store with a loaded gun with the full intent to commit a robbery. He masterminded the robbery, picked the appropriate store to “hit”, drew his gun, demanded money and opened fire first, aiming directly at the victim crouching behind the counter at close range. is controverted whether the victim was crouching to reach for a gun or to seek cover,FN21 but what is known is that appellant's response to the victim's protective action was a controlling directive, “Don't try it” just before opening fire. While the facts of the instant case may not, in and of themselves, be sufficient to sustain a finding of future dangerousness, see e.g., O'Bryan v. State, 591 S.W.2d 464, 480-481 (Tex.Cr.App.1979), they are supportive of a planned, calculated and cold-blooded robbery during which appellant did not hesitate to use his gun.

FN21. Appellant and Williams contend that the victim pulled a gun, but an eyewitness testified that the victim never touched or reached for the gun. Although a gun was routinely kept behind the store counter, it was found after the robbery in its usual place and devoid of fingerprints. It seems highly implausible that the victim pulled up the gun, was fatally shot and then replaced the gun in its normal place, all without leaving any fingerprints.

II. Prior Criminal Record

Appellant's criminal history exhibits a propensity for violent offenses. In early 1979, appellant was convicted of theft. On July 7, 1980, appellant was placed on nine years' felony probation for a robbery conviction. It was during this probationary period that appellant committed the instant capital murder.

On August 13, 1980 appellant committed an attempted capital murder while robbing a clerk at a Stop-N-Go convenience store. The facts of this robbery are particularly violent in that appellant demanded money at gunpoint and, when the clerk gave all he had, appellant demanded more. When the clerk was not looking for the additional money quickly enough, appellant shot him in the left shoulder, just above the heart. According to the victim, blood was “shooting out” from his body and appellant remained unthwarted, in the same position and continued to demand money.

On October 11, 1980 just two days prior to the instant capital murder, appellant committed another aggravated robbery at a convenience store wherein he took the clerks' wallets and the money from the cash registers at gunpoint.

Finally, on June 14, 1981, while in jail pending trial for the instant offense, appellant took part in a contemplatedly violent escape plan involving a loaded gun, homemade knives and tear gas. Appellant's jail report reflects that he tried to take over and run the cell block and that he had a “poor attitude, very cocky, states at booking that he will shoot any deputy that got in his way. Subject has very aggressive attitude and potential agitator.”

III. Mitigating Factors:

Appellant was nineteen years old at the time of committing the instant offense and, unlike many capital defendants, had 13 character witnesses willing to testify for him at punishment. The testimony adduced from these witnesses was that, while in high school, appellant was an outstanding athlete, had average grades and presented no known disciplinary problems. Appellant had dropped out of high school at age 17 to support his wife who had just had a baby.

Several family friends testified that they thought appellant could be rehabilitated. Appellant's nineteen year old wife testified that appellant had a small child and should be given another chance. His parents testified that they got divorced when appellant was seven but both had a good relationship with their son. They felt that appellant was in trouble because of the pressures of supporting a family and because he fell in with a bad crowd.

There is evidence to support the jury's determination that appellant would commit criminal acts of violence in the future constituting a continuing threat to society. Appellant's statement that he would “shoot any[one] that got in his way” is borne out through his prior criminal history and the facts of the instant capital murder.

A reasonable jury could have found that appellant had a proven propensity for aggravated robberies wherein he exhibited no hesitation to open fire on the chosen victim which was not outweighed by the mitigating factors of his young age, family pressures and possible amendability to rehabilitation. Further, it was reasonable for a jury to have not found the “bad crowd” argument extensively mitigating in light of the fact that some of the prior aggravated offenses were committed by appellant, acting alone, and, in the offenses in which he acted with others, he took an instigative and leadership role. Appellant's sixth point of error is overruled.

In point of error number seven (point two in the Lane brief) appellant challenges the sufficiency of the evidence to support the jury's affirmative finding to special issue number three.FN22 We find this contention meritless. The only support for even the submission of this special issue is the controverted evidence that the victim was reaching for a gun in self-defense.FN23 Even if this were true, a robbery victim has a right to defend himself without such defense rising to the level of “provocation.” A reasonable and rational trier of fact could have found that the seventy year old victim did not provoke appellant and, moreover, appellant's act of opening fire at point blank range was not, in any respect, a reasonable response to the victim's defensive actions. See, Smith, 676 S.W.2d at 393; Smith, 540 S.W.2d at 696-697; Williams, supra at 321. Appellant's seventh point of error (second Lane point) is overruled.

*****

The judgment of conviction is affirmed.

Background: Defendant convicted of capital murder, affirmed at 754 S.W.2d 185, petitioned for a writ of habeas corpus. The United States District Court for the Southern District of Texas denied relief. Defendant appealed, and sought a certificate of appealability (COA).

Holding: The Court of Appeals, Edith H. Jones, Chief Circuit Judge, held that testimony of witness whose location and identity were not disclosed by the prosecution was not material, as required for a Brady violation. Affirmed.

EDITH H. JONES, Chief Judge:
This case is before us a second time, following the exhaustion in the state courts of a Brady claim that surfaced during Nichols' first federal habeas proceeding. The basis for that claim, the State's alleged suppression of identifying information for an eyewitness to the offense, has been discussed at length (or otherwise noted) by several courts. See e.g., Nichols v. Scott, 69 F.3d 1255, 1259-65 (5th Cir.1995); Ex Parte Joseph Bennard Nichols, No. 21,253-02 (Tex.Crim.App. March 12, 2003); Nichols v. Collins, 802 F.Supp. 66, 79 (S.D.Tex.1992).

The district court denied Nichols a certificate of appealability (COA). In an abundance of caution, we grant COA based on the admonition in Miller-El I FN1 that a petitioner's “claim can be debatable even though every jurist of reason might agree, after ... the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. at 1040. However, for reasons stated herein, we conclude that Nichols has not demonstrated that the Texas courts unreasonably applied Brady to the facts of his case. Thus, we deny his request for habeas relief.

I. PROCEDURAL BACKGROUND

In 1982, a Texas jury convicted and sentenced to death Joseph Bennard Nichols for the 1980 capital murder of Claude Shaffer, Jr. The Texas Court of Criminal Appeals (“TCCA”) affirmed Nichols' conviction on April 13, 1988. Nichols v. Texas, 754 S.W.2d 185 (Tex.Crim.App.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 819, 102 L.Ed.2d 808 (1989). Nichols filed his first state habeas application on May 23, 1991, which the TCCA denied later that year.

In January of 1992, Nichols filed his first federal habeas petition. During an evidentiary hearing granted by the district court, Nichols contended that the State had suppressed information concerning a material, exculpatory witness in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court ordered the State to release and retry Nichols and expressly preserved Nichols' Brady claim for state exhaustion purposes. Nichols v. Collins, 802 F.Supp. 66, 79 (S.D.Tex.1992). This court reversed the district court's grant of habeas relief. Nichols v. Scott, 69 F.3d 1255 (5th Cir.1995), cert. denied, 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076 (1996).

Nichols filed his second state habeas application on December 23, 1996, to exhaust his Fourteenth Amendment Brady claim.

*****

The TCCA remanded Nichols' case for an evidentiary hearing. The state habeas court found that although the State failed to inform defense counsel properly of the location and true identity of an eyewitness, Teresa Ishman,FN2 her testimony was neither exculpatory nor material. Thus, the state habeas court rejected Nichols' Brady claim and denied his request for habeas relief in 2001. The TCCA affirmed the state habeas court in 2003. Ex Parte Nichols, No. 21, 253-02 (Mar. 12, 2003), cert. denied, 540 U.S. 1218, 124 S.Ct. 1504, 158 L.Ed.2d 152 (2004).

FN2. Ishman is also referred to as “Teresa McGee” and “McGee” in the record because “McGee” is the name that she was using at the time the offense occurred. Her other aliases include “Teresa Henry” and “Tina Henry.”

On July 10, 2003, Nichols filed his second federal habeas petition based on the Brady claim, which the district court denied on the merits. The court also sua sponte denied Nichols a COA. Nichols v. Dretke, No. H-92-36, slip op. (S.D.Tex. May 25, 2004). Nichols then filed the instant petition for COA before this court.FN3

FN3. Because neither side addressed the issue, we requested letter briefs from the parties inquiring whether Nichols' second federal habeas petition qualifies as “successive” under 28 U.S.C. § 2244(b)(2)(B). They correctly responded that Nichols' petition is not successive because, after Nichols discovered and requested resolution of his Brady claim in the midst of the evidentiary hearing for this first federal habeas petition, the habeas court dismissed the claim without prejudice to refiling for state exhaustion purposes. See e.g., Stewart v. Martinez-Villareal, 523 U.S. 637, 644, 118 S.Ct. 1618, 1621-22, 140 L.Ed.2d 849 (1998).

II. THE CRIME AND THE PROSECUTION

On October 13, 1980, Nichols, Willie Ray Williams, Charlotte Parker, and Evelyn Harvey drove to an apartment building in Houston, Texas, intending to rob a nearby grocery store. Committing the robbery was Nichols' idea. Armed with guns, Nichols and Williams entered the grocery. Seventy-year old Claude Shaffer, Jr. (“Shaffer”) was working as a deli clerk behind the counter. Nichols pointed his gun at Shaffer, and Shaffer made a movement that Nichols interpreted as gun retrieval. Nichols then shot at Shaffer. Williams also shot at Shaffer while fleeing the store, but he returned to the counter to take the cash box. Shaffer was killed by one bullet to the back. Parker and Harvey drove Nichols and Williams away from the scene. The quartet were arrested soon thereafter.

The State's first attempt at prosecuting Nichols ended in a mistrial. FN4 A description of Nichols' second trial appears in this court's previous opinion:

FN4. That Nichols' first case resulted in a mistrial does not inform our analysis as “inconsistent verdicts are constitutionally tolerable.” Dowling v. United States, 493 U.S. 342, 353-54, 110 S.Ct. 668, 675, 107 L.Ed.2d 708 (1990). In any event, Nichols has failed to set forth information regarding events that led to the mistrial in his first case, especially in light of the state habeas court's rejection of his proposed finding that the jury in the first trial focused on whether Shaffer pulled a gun. As such, Nichols has failed to demonstrate how any inconsistency between his first and second trials “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the [second jury's] verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. at 1566.

In February 1982, Nichols was tried before another jury on the same indictment. Generally the same evidence was presented as at his first trial in July 1981. The prosecutor was the same as in that first trial. In the guilt/innocence phase, Williams was called as a defense witness but claimed his Fifth Amendment privilege and refused to testify.

The defense then put in evidence Williams' testimony as given at Nichols' first trial. At the close of the evidence on the guilt/innocence stage of the trial, the trial court extensively instructed the jury on the Texas law of parties (see note 9, supra ) such that the jury could, depending on what else it found, find Nichols guilty as charged either for personally having fired the fatal shot or for the fatal shot fired by Williams, if that was done pursuant to and in furtherance of their conspiracy to rob the deli and should have been anticipated by Nichols as a result of carrying out the conspiracy.

The defense argued, as it had at Nichols' first trial, that Williams fired the fatal shot from the deli door as he exited and came back in, and that this was, in the words of the charge, “the separate act of Willie Ray Williams, acting independently,” for which Nichols would not be responsible. The state primarily argued that Nichols fired the fatal shot. But, it also argued extensively, in the alternative, that even if Williams had fired the fatal shot, Nichols was guilty of capital murder under the law of parties. The jury returned its verdict finding Nichols guilty of capital murder.

At the subsequent punishment phase the state submitted evidence that Nichols had been convicted of theft in 1979, and had pleaded guilty in May 1980 to an April 1980 robbery for which he was sentenced in July 1980 to nine years' felony probation, which he was serving when he committed the instant offense. Additionally, it was shown that on August 13, 1980, Nichols committed an armed robbery of a convenience store, shooting the clerk in the shoulder when he did not respond speedily enough to Nichols' demand for more money. Nichols continued to demand more money as the clerk was bleeding from his wound.

Further, on October 11, 1980, two days before the present offense, Nichols committed another robbery of a convenience store, aiming his pistol at the clerks. There was also evidence that when booked into jail following his arrest for the instant offense, Nichols had stated he would “shoot any deputy that got in his way.”

Finally, there was evidence that in June 1981, while in jail awaiting trial, Nichols conspired with others to engage in an escape involving the use of a firearm and other weapons. The defense called fifteen witnesses. Many testified they thought Nichols could be rehabilitated, that he was nineteen at the time of the offense, and that at school he had had average grades, had been an excellent athlete, and had presented no disciplinary problems.

His parents divorced when he was seven, but both maintained a good relationship with him. He married, and dropped out of school, at about age seventeen to support his young child. His parents thought he had gotten into trouble due to the pressure he was under to support his young child and because he got in with a bad crowd.

The court submitted the three punishment special issues to the jury (see note 6, supra ). No instruction was given respecting the law of parties. The defense argued, among other things, that the fatal shot was fired by Williams, and that any shooting was in reaction to Shaffer's having grabbed his gun. Emphasis was put on Nichols' youth, his family, his character witnesses, and his potential for rehabilitation.

The state argued that Nichols fired the fatal shot, but did not argue any of the special issues solely on that theory. It stressed Nichols' prior offenses and conduct in jail. Neither side argued that the verdict of guilty established or meant that Nichols fired the fatal shot, or that any of the special issues were to be answered by reference to Williams', rather than Nichols', state of mind or conduct or the like. On February 26, 1982, the jury returned its verdict answering all three special issues in the affirmative, and the court sentenced Nichols to death. Nichols did not testify at either stage of his February 1982 trial.

The charge also submitted the lesser included offense of murder. Thus, for example, the prosecutor argued: ‘This lawsuit, if you really boil it down, concerns itself with parties, the law of parties given to you in number five and number six of this charge. Note that in parties to be guilty of capital murder as a party to it, a defendant does not have to fire the fatal shot that killed somebody.’ (Emphasis added).

The prosecutor further argued: ‘The Judge has instructed you to find the defendant guilty of capital murder if you believe from the evidence, number one, that he's involved in a conspiracy to rob, number two, that at the time of the robbery he was doing something to help or make that robbery successful, that there was a murder and that somebody had the specific intent to kill somebody, either Jojo had it or Willie had it, either one. It doesn't matter.

That the murder was done in furtherance of the original plan of the robbery, to help it in some way or to get away, immediate flight therefrom. And you must believe that this murder was an offense that the defendant should have anticipated. If you believe those five things from the evidence it will be your duty to find that man guilty of capital murder.' (Emphasis added).

Additionally the prosecutor argued: ‘The defense is saying that what you really have here is a situation where there are cracks in the law and we want you to let Jojo Nichols slip through these cracks and get away. Well, the legislature thought about that. They're not completely dumb up there. Somebody told them what to do. And they have the law of parties. It fills in the cracks. It's like the mortar in a brick wall. You guys are all responsible when you go in there with loaded guns under certain conditions. Was there a conspiracy to rob, rob them of anything, money, guns, anything else. Was there a conspiracy to rob.

The defense admits that, yes, there was. When the robbery occurred, was Jojo doing anything to promote or assist that robbery? The defense admits, yes, he was pointing a gun, telling you to put money in the sack and fired a gun. The defense admits it. He fired a gun before he ran out that door.

Was there a murder? You bet. And it doesn't matter who killed him under our law, under this rule of parties. Was it reasonable to expect that this could happen? Of course.' (Emphasis added).

For example, in respect to the first special issue, dealing with deliberateness, the prosecutor argued: ‘Was his conduct deliberate. He doesn't have to fire the fatal shot. But was his conduct deliberate. You bet it was deliberate. It was even more than that. He planned that robbery. He picked that store. It was a premeditated robbery. He thought about the fact that he's going to need a gun when he went in there. You know that he meant to use it because it was loaded and you know he fired that gun into an innocent man.’ (Emphasis added). Nichols v. Scott, 69 F.3d at 1262-64 (footnotes omitted).

It should also be noted that Nichols (in his confession), Williams (through his prior testimony), and deli employee Cindy Johnson all testified about the series of events and shots inside the deli during the robbery. Nichols told his confederates as they drove from the scene that he thought he had shot Shaffer in the chest and that Williams shot Shaffer in the shoulder. Williams' testimony was that when he and Nichols drew guns on Shaffer, Shaffer pointed a gun at them, and Nichols shot at Shaffer first; Williams shot at Shaffer as Williams was fleeing toward the door.

Johnson had given an initial police statement indicating that Shaffer squatted behind the counter reaching for a gun. At trial, however, she disavowed this statement as a mistake and testified firmly instead that Shaffer did not reach for anything. Finally, the medical examiner's testimony tended to support the State's theory that Nichols shot Shaffer, although the fatal bullet was not identified and this conclusion was based on inference from the bullet's trajectory through Shaffer's body.

III. THE BRADY VIOLATION

The current habeas petition involves the State's alleged suppression of Ishman's location and identity. The following facts were developed in the state habeas hearing. Ishman, a deli employee, was also inside the store during the robbery and shooting. She left the scene just as the police arrived. The deli owner, Dean McDaniel, informed police of Ishman's departure.

An officer, running outside to catch Ishman, saw a black female enter a vehicle but was unable to stop her at that time. McDaniel informed the police that Ishman asked not to work at the deli right after the shooting, that she requested employment at another establishment he owned, and that he fired her instead. Nichols' defense counsel were aware of McDaniel's statements concerning Ishman.

Ishman was later located by a prosecutor and an investigator prior to the Williams trial. She was extremely uncooperative and initially denied witnessing the crime. The State's prosecutor informed Nichols and his counsel in writing that the police had interviewed Ishman, but claimed that he did not recall the substance of the interview.

In preparation for Nichols' second trial, the State attempted to subpoena Ishman in Houston under the name “Teresa McGee,” but the subpoena was returned marked “return to sender, undeliverable as addressed.” An investigator for the prosecution then traced Ishman to her hometown of Bogalusa, Louisiana, and ascertained that she had been in scrapes with the law there. The State concluded that Ishman was not a credible witness and dropped her from its witness list.

The state habeas court found that the State knew Ishman/McGee's true name, location, and Social Security number, and, thus, also knew that Ishman could not be served at the address used on the subpoena. However, the state habeas court refused to find that the State failed to disclose Ishman as a witness or that the State knew the substance of Ishman's testimony before Nichols' trial.

The state habeas court also found that although Ishman had informed a prosecutor, prior to the Williams trial, that she saw Shaffer draw a gun before Nichols and Williams fired their guns, there was also credible evidence that Ishman failed to provide this information to the police or to the prosecutor responsible for Nichols' trial.

The state habeas court further found that, as part of the State's argument that Nichols fired the fatal shot, the State relied heavily on the testimony of Cindy Johnson. However, the state court rejected Nichols' proposed finding that the jury focused on whether Shaffer pulled a weapon. Finally, the state habeas court concluded that Nichols failed to show that Ishman's testimony would have been material in light of the record as a whole.FN5

FN5. We agree with the district court that the state habeas court made a scrivener's error where, at one point, it appears to endorse a conclusion that Ishman's testimony was material. All of the court's other findings and conclusions cut against this isolated discrepancy.

*****

The critical issue in this case is whether Ishman's testimony would have been helpful to Nichols and therefore material-in the punishment phase.

During argument, Nichols' counsel conceded that the issue of whether the victim, Mr. Shaffer, was shot while he was attempting to retrieve a weapon under the counter was a red herring.FN11 This left the issue of whether Ishman's suppressed testimony would have either undercut any testimony by Johnson that aided the State in establishing that Nichols rather than Williams fired the shot that killed Shaffer or assisted Nichols in establishing that Williams fired the fatal shot. After a careful review of the record we conclude that there is no material difference in the testimony of Johnson and Ishman bearing on whether Nichols or Williams fired the fatal shot.

FN11. When asked about the materiality of testimony regarding Shaffer possibly retrieving a weapon, Nichols' counsel conceded that “the gun issue is a red herring” and “doesn't get this petition where it needs to go.”

Both Johnson and Ishman placed the two gunmen in essentially the same position when the initial shots were fired. The medical examiner's opinion that Nichols fired the fatal shot was based primarily on Nichols' position. Because Ishman's testimony did not undermine Johnson's testimony as to the positions of Nichols and Williams relative to Shaffer, Ishman's testimony would not have undercut Johnson's testimony on this point.

Both Johnson and Ishman testified that after the robbers demanded money, Shaffer stooped down and both Nichols and Williams fired at Shaffer. Ishman's testimony, therefore, is not helpful in resolving whether Nichols or Williams fired the fatal shot.

So even if Ishman had testified that Johnson was in the kitchen or the bathroom at the time of the shooting and not in a position to see the robbery and shooting, Ishman's testimony was not materially different from Johnson's. It is true that in the guilt phase of the trial the prosecutor argued: “and I'll tell you that it was [Nichols'] hand that did the killing. How do you know that? Cindy [Johnson] saw it. She told you.”

What Johnson actually testified to was that after two or three shots were fired by either or both of the robbers she saw Shaffer go down and saw him bleeding from the side. Contrary to the prosecutor's argument, Johnson's testimony in this respect was not helpful in resolving whether Nichols or Williams fired the shot that produced the injury that caused Shaffer to fall to the floor.

So stripped to its essence both Johnson and Ishman stated that both Nichols and Williams were pointing pistols at Shaffer, and shortly thereafter multiple shots were fired by one or both robbers. Johnson testified that as she ran toward the back of the store she saw Shaffer go down; this was a detail that Ishman did not address.

Both Johnson and Ishman heard one or more shots fired after they ran to the back of the deli. This is presumably the shot Williams fired after he came back into the store to grab the cash box. As far as the initial shots that were fired-which both Johnson and Ishman claimed to have witnessed-both thought that Nichols and Williams fired shots at Shaffer. Under these circumstances we conclude that had the State disclosed Ishman's identity and location so that she could have been called by Nichols as a witness, her testimony would not have contradicted Johnson's testimony in any material way insofar as establishing whether Nichols rather than Williams fired the fatal shot.

Nichols would have us focus on only that part of Ishman's testimony in which she stated that Johnson was already in the restroom when Ishman ran from the store and therefore Johnson was not in a position to have seen the shooting. But Nichols cannot choose selected portions of Ishman's testimony to the exclusion of others. He must establish that Ishman's testimony in its entirety would have materially benefitted his defense. Nichols has not persuaded us from this record that Ishman's testimony would have achieved this result. See, e.g., Miller v. Dretke, 431 F.3d 241, 245 (2005)(“In determining whether evidence is material for Brady purposes, we must consider the cumulative effect of all suppressed evidence, rather than ruling on each item individually.”)(citing Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995) (Habeas).

Following affirmance of his conviction for murder, 754 S.W.2d 185, and denial of habeas corpus in the state court, prisoner under sentence of death sought federal habeas corpus. The United States District Court for the Southern District of Texas, David Hittner, J., 802 F.Supp. 66, granted writ in part and denied writ in part. Appeals were taken. The Court of Appeals, Garwood, Circuit Judge, held that: (1) instructions and specials issues at punishment phase did not preclude jury from adequately considering mitigating effect of defendant's claimed nontriggerman status; (2) defendant was not party to trial of codefendant and, thus, was not in jeopardy in codefendant's trial and result of codefendant's trial could not collaterally estop state in prosecution of defendant; (3) state habeas fact-findings were entitled to presumption of correctness; (4) prosecutor's allegedly improper arguments did not warrant habeas relief; and (5) trial defense counsel was not ineffective. Affirmed in part and reversed in part.

GARWOOD, Circuit Judge:

Petitioner-appellee, cross-appellant Joseph Bennard Nichols (Nichols) was convicted of capital murder and sentenced to death. After exhausting his Texas state court remedies, Nichols sought a writ of habeas corpus in the district court below and the court granted relief. Respondent-appellant (Respondent), the director of the Texas Department of Criminal Justice, now appeals to this Court. Nichols cross-appeals the district court's denial of certain of the remainder of his claims. We affirm in part and reverse the district court's grant of habeas corpus relief.

Facts and Proceedings Below

About 9:00 a.m. on the morning of October 13, 1980, Nichols, Willie Ray Williams (Williams), Charlotte Parker (Parker), and Evelyn Harvey (Harvey) drove to a spot in front of an apartment building near Joseph's Delicatessen and Grocery in Houston, Texas. Nichols and Williams mutually intended to rob this establishment, Nichols having suggested it as a target. Williams was armed with a .380 semi-automatic pistol; Nichols had a snub-nosed .38 revolver.

Parker parked the car and Nichols and Williams got out and entered the deli. After entering, Nichols and Williams first went to the back of the store, and then approached the counter. Nichols got a corndog. Williams set a quart of beer on the counter near the cash register. Behind the counter was deli employee Claude Shaffer, Jr. (Shaffer). Nichols, and then Williams, each drew their respective pistols and pointed them at Shaffer.

When Shaffer saw the guns he began to bend over or squat down. Nichols then said something to the effect of “don't go for the gun” or “don't be doing it.” Nichols then shot at Shaffer, and immediately thereafter Williams pulled the trigger on his gun, but it is unclear whether it then discharged.FN1 Shaffer then either fell or squatted down behind the counter. Nichols and Williams ran to the door. Nichols exited. Williams either exited or partially exited and then, according to his testimony at Nichols' trial, turned and fired once at Shaffer, who was still squatting behind the counter.

Williams testified that Shaffer fell back, that he (Williams) went behind the counter to Shaffer, turned him over, grabbed the deli's cash box, and ran out of the deli, carrying his gun and the cash box.FN2 He was picked up by Parker and Harvey, got into the car with them, and they drove around the side of the deli building where they saw Nichols, who then got in the car with them.

Harvey testified that Nichols told them “he had shot the man” and “he thought he shot him in the chest,” and that Williams said he had run back into the deli and shot the man. Parker testified that Nichols said “I think I hit him in the chest,” and that Williams said “he [Williams] shot the man in the shoulder.” FN3 A few days later, Williams, Nichols, Parker, and Harvey were arrested.

FN1. Nichols' statement (Nichols did not testify) says “we”-he and Williams-then shot at Shaffer. Nichols' and Williams' statements were given October 17, 1980, after their arrests earlier that day. Williams' statement mentions only Nichols shooting at this time. Williams' testimony at Nichols' trial is that Nichols drew his gun first, that Williams then drew his, each pointing them at Shaffer; that Nichols fired his gun; that Williams then pulled the trigger on his gun, but nothing happened and it did not discharge (Williams' testimony at his own trial does not mention his pulling the trigger on his gun at this time).

Williams testified at Nichols' trial that Nichols fired only once and that “he [Nichols] was aiming at the man [Shaffer]” and “wasn't aiming it behind him or somewhere else or aiming it at the floor or anything” but “was aiming at that man.” However, Williams testified that he thought Nichols missed Shaffer because Shaffer, who was squatting, did not go down and Williams saw no blood.

Cindy Johnson (Johnson), one of the two other deli employees then on duty, testified that at this time Nichols shot first, but that Williams also then shot, and that in all three, or possibly two, shots were fired at that time. She said that after these shots Shaffer collapsed and there was blood on his head. James Rivera (Rivera), standing at a nearby bus stop, saw Nichols and Williams enter the deli, shortly thereafter heard two or three noises like “backfires,” turned, and then saw Nichols and Williams run out of the deli.

Nichols' statement says “We pulled our guns on the dude behind the cash register and told him to put the money in the sak [sic]. The man behind the counter started bending over behind the counter ... and then he came up with a pistol ... so we reacted and shot.” Williams' testimony at Nichols' trial was that after Nichols and he pulled their guns on Shaffer, Shaffer bent down and came up with a gun from under the counter, pointed it at Williams, whereupon Nichols fired; Shaffer, according to Williams' testimony, never fired (and there is no evidence that he did).

At his own trial, Williams testified that “before he [Shaffer] got it [the gun] all the way up, Joe [Nichols] fired” and then Shaffer “went down” in “a squatting position.” Johnson testified that she was watching Shaffer, who was looking at her, after Nichols and Williams had pointed their guns at him and that Shaffer never touched a gun and did not reach for a gun; she admitted, however, that in an earlier sworn statement she had said that after “one of the men pulled a gun” Shaffer, who kept a gun under the counter, “reached for his gun and both of the black men shot Claude.”

Other evidence showed that the gun, a .45 semi-automatic pistol, belonged to another deli employee, and was found just after the robbery in its accustomed place on a shelf under the counter, with a fully-loaded clip in the handle but no shell in the chamber; there were no fingerprints on it (Williams testified that when he went back in and got the cash box, he looked for Shaffer's gun but did not see it). No .45 caliber fired bullets or empty shell casings were found.

FN2. At his trial Williams testified that when he and Nichols ran into each other exiting the deli: “I attempted to go out the door, coming behind Joe [Nichols], and he [Nichols] turned to me and said shoot-shoot.” Williams, being then asked “And what did you do, sir?”, replied “I just turned and shot.”

FN3. Rivera (see note 1, supra ) testified that after he saw Nichols and Williams run out of the deli, Williams then, gun in hand, just in front of the deli door, “looked like he raised his hand and aimed the gun at me”; Rivera turned away in fright, and when he looked back both Nichols and Williams were gone; he then heard another shot and saw Williams run out of the deli with “a strong box” in his hand; Williams dropped the box, picked it up, and ran off.

The testimony of the Harris County Medical Examiner, Dr. Espinola, established without contradiction that Shaffer died from a single gunshot wound that entered his “left upper back about seven and three fourths [inches] to the left of the midline and three and one half inches below the top of the shoulder” and exited-without hitting any bones or “hard objects” within the body-“on the right side of the chest, 18 and one half inches from the right of the midline and 11 inches below the top of the shoulder.”

The wound would have caused “almost immediate disability” or “collapse.” Shaffer also had a superficial two and a quarter inch slanting laceration on the right side of his head, which was “consistent with a grazing type of gunshot wound” and “could also be consistent with a person that hit their head on the corner of an object or anything like that in a fall.” The head wound was not disabling. No bullet or bullet fragment was found in or on Shaffer's body.

Two empty .380 cartridge cases-ejected from Williams' pistol-were found in the deli, as was also a whole .380 brass-jacketed projectile or bullet, which had been fired from Williams' weapon. A whole, unfired .380 brass-jacketed bullet and cartridge (with firing pin indentation on the cartridge rim) was found just outside the deli door. Lead bullet fragments were found on the inside of the deli door and near there on the floor along with brass jacket fragments. Also found in the deli-in a stack of comic books behind the counter-was a whole lead bullet that had been fired from a .38-caliber weapon. This was a revolver-type bullet that had never been jacketed.FN4

FN4. Nichols' gun was apparently never recovered. His statement says that after the robbery and before his arrest he had given it back to the individual-neither whose name nor address he knew-from whom he had borrowed it.

In January 1981, Williams pleaded guilty to a charge of capital murder of Shaffer,FN5 and, accordingly, the trial court directed the jury to return a verdict of guilty at the guilt/innocence phase of his trial. As evidence of his guilt, the state presented Williams' written confession, as well as the testimony of several witnesses including Dr. Espinola. Pursuant to the court's direction, the jury returned a verdict of guilty. At the subsequent punishment phase of Williams' trial, the defense presented Williams' testimony and the testimony of five witnesses concerning Williams' nonviolent character.

The defense also called Nichols during the punishment phase, but Nichols asserted his Fifth Amendment privilege and declined to testify. The punishment charge included no instruction respecting the law of parties. The jury returned a verdict at the punishment phase of Williams' trial answering in the affirmative each of the three special issues then provided for by Tex.Code Crim.Proc. art. 37.071(b).FN6 Pursuant to art. 37.071(e), Williams was accordingly sentenced to death. His conviction and sentence were affirmed on appeal. Williams v. State, 674 S.W.2d 315 (Tex.Crim.App.1984).

FN5. The indictment alleged that Williams “did while in the course of committing and attempting to commit the robbery of Claude Shaffer, Jr., hereafter styled the Complainant, intentionally cause the death of the Complainant by shooting the Complainant with a gun.”

Nichols was also indicted for the capital murder of Shaffer.FN7 In July 1981, Nichols was tried before a jury on his plea of not guilty. Williams testified as a defense witness at the guilt/innocence stage of this trial, and his testimony was generally consistent with his prior testimony and statement. FN8 The jury charge at the guilt/innocence stage included instructions on the Texas law of parties.FN9

Based in large part on Williams' testimony, the defense argued that the fatal shot was fired by Williams from the deli door when he came back in and got the cash box, and that Nichols was not guilty under the law of parties because the planned robbery was over and Williams was acting independently. The state argued that Williams' testimony that he shot Shaffer from the door when he came back in was not worthy of belief “because he's got to shoot through the cash register and all that junk to get here.”

The state also argued that Nichols told Harvey that “he shot first, that he shot the man in the chest, in the chest area, the body, not in the head, not in the leg, not in the arm, but in the chest area, the body. That's what the defendant did.” However, the main thrust of the state's argument was that regardless of who fired the fatal shot, and regardless of whether Williams' testimony was credited, Nichols was guilty under the law of parties.

The jury returned a verdict finding Nichols guilty of capital murder. The punishment stage of the trial then ensued, testimony was presented by the state and the defense, and the case was submitted to the jury on the three statutory special issues (see note 6, supra ). The punishment charge included no instruction on the law of parties. After considerable deliberation, the jury foreman announced that the jury had arrived at a verdict on two of the special issues, and tendered to the court a verdict form in which the first and third special issues were each answered “yes,” and the second special issue (future dangerousness) was not answered.

The court ruled the verdict was incomplete, refused to accept it, and returned the jury for further deliberations. The jury eventually sent a note stating “the jury is still unable to reach a verdict on the remaining special issue.” Thereafter, defense counsel moved for a mistrial because the jury could not reach a verdict. The court explained to Nichols personally that if a mistrial were declared then the matter would be retried before another jury. After ascertaining that Nichols understood and that he personally requested and moved for a mistrial, the court, on July 31, 1981, called the jury back in, announced that a mistrial had been declared, and formally discharged the jury.

FN7. The indictment alleged that Nichols “did while in the course of committing and attempting to commit robbery, intentionally cause the death of Claude Shaffer, Jr., hereafter styled the Complainant, by shooting the Complainant with a gun.”

FN8. Williams' testimony at Nichols' first trial did not, however, include that referenced in note 2, supra. Nichols did not testify during either phase of the July 1981 trial.

Texas law has long recognized that the law of parties is applicable to a case and may be properly charged on if raised by the evidence even if not alleged in the indictment. Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978); Crank v. State, 761 S.W.2d 328, 351 (Tex.Crim.App.1988); Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App.), cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991). Indeed, this was the Texas law well prior to the enactment (in 1973) of arts. 7.01 and 7.02. See Pitts at 900; Frias v. State, 376 S.W.2d 764, 765 (Tex.Crim.App.1964) (“ ‘The acts which make the defendant a principal need not be alleged in the indictment. A principal offender may be charged directly with the commission of the offense although it may not have actually been committed by him ...’ ”).

The assistant district attorney trying the case thereafter interviewed some of the jurors and, as the district court below found, “learned from those jurors that whether or not Nichols was the ‘triggerman’ had caused problems for the jury in considering the death penalty.” Nichols v. Collins, 802 F.Supp. 66, 75 (S.D.Tex.1992).

In February 1982, Nichols was tried before another jury on the same indictment. Generally the same evidence was presented as at his first trial in July 1981. The prosecutor was the same as in that first trial. In the guilt/innocence phase, Williams was called as a defense witness but claimed his Fifth Amendment privilege and refused to testify. The defense then put in evidence Williams' testimony as given at Nichols' first trial.FN10

At the close of the evidence on the guilt/innocence stage of the trial, the trial court extensively instructed the jury on the Texas law of parties (see note 9, supra ) such that the jury could, depending on what else it found, find Nichols guilty as charged either for personally having fired the fatal shot or for the fatal shot fired by Williams, if that was done pursuant to and in furtherance of their conspiracy to rob the deli and should have been anticipated by Nichols as a result of carrying out the conspiracy.FN11

The defense argued, as it had at Nichols' first trial, that Williams fired the fatal shot from the deli door as he exited and came back in, and that this was, in the words of the charge, “the separate act of Willie Ray Williams, acting independently,” for which Nichols would not be responsible. The state primarily argued that Nichols fired the fatal shot. But, it also argued extensively, in the alternative, that even if Williams had fired the fatal shot, Nichols was guilty of capital murder under the law of parties.FN12 The jury returned its verdict finding Nichols guilty of capital murder.

*****

At the subsequent punishment phase the state submitted evidence that Nichols had been convicted of theft in 1979, and had pleaded guilty in May 1980 to an April 1980 robbery for which he was sentenced in July 1980 to nine years' felony probation, which he was serving when he committed the instant offense. Additionally, it was shown that on August 13, 1980, Nichols committed an armed robbery of a convenience store, shooting the clerk in the shoulder when he did not respond speedily enough to Nichols' demand for more money. Nichols continued to demand more money as the clerk was bleeding from his wound.

Further, on October 11, 1980, two days before the present offense, Nichols committed another robbery of a convenience store, aiming his pistol at the clerks. There was also evidence that when booked into jail following his arrest for the instant offense, Nichols had stated he would “shoot any deputy that got in his way.” Finally, there was evidence that in June 1981, while in jail awaiting trial, Nichols conspired with others to engage in an escape involving the use of a firearm and other weapons.

The defense called fifteen witnesses. Many testified they thought Nichols could be rehabilitated, that he was nineteen at the time of the offense, and that at school he had had average grades, had been an excellent athlete, and had presented no disciplinary problems. His parents divorced when he was seven, but both maintained a good relationship with him. He married, and dropped out of school, at about age seventeen to support his young child. His parents thought he had gotten into trouble due to the pressure he was under to support his young child and because he got in with a bad crowd.

The court submitted the three punishment special issues to the jury (see note 6, supra ). No instruction was given respecting the law of parties. The defense argued, among other things, that the fatal shot was fired by Williams, and that any shooting was in reaction to Shaffer's having grabbed his gun. Emphasis was put on Nichols' youth, his family, his character witnesses, and his potential for rehabilitation.

The state argued that Nichols fired the fatal shot, but did not argue any of the special issues solely on that theory. FN13 It stressed Nichols' prior offenses and conduct in jail. Neither side argued that the verdict of guilty established or meant that Nichols fired the fatal shot, or that any of the special issues were to be answered by reference to Williams', rather than Nichols', state of mind or conduct or the like. On February 26, 1982, the jury returned its verdict answering all three special issues in the affirmative, and the court sentenced Nichols to death.

FN13. For example, in respect to the first special issue, dealing with deliberateness, the prosecutor argued: “Was his conduct deliberate. He doesn't have to fire the fatal shot. But was his conduct deliberate. You bet it was deliberate. It was even more than that. He planned that robbery. He picked that store. It was a premeditated robbery. He thought about the fact that he's going to need a gun when he went in there. You know that he meant to use it because it was loaded and you know he fired that gun into an innocent man.” (Emphasis added).

One of Nichols' trial attorneys, E. Neil Lane (Lane), was appointed to represent Nichols on direct appeal. After receiving leave from the court, attorney Brian Wice was allowed to substitute as Nichols' appellate counsel. Wice filed a supplemental brief that raised twenty points of error. After considering each of the issues raised in the original brief filed by Lane and each of the issues raised in the Wice supplemental brief, the Texas Court of Criminal Appeals affirmed the conviction and sentence. Nichols' conviction became final on January 9, 1989, when the United States Supreme Court denied certiorari. See Nichols v. State, 754 S.W.2d 185 (Tex.Crim.App.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 819, 102 L.Ed.2d 808 (1989). FN14

FN14. Affirmance by the Court of Criminal Appeals was unanimous except for one judge who noted, without elaboration, that he would have sustained Lane's point of error concerning the trial court's sua sponte excuse of a prospective juror; two judges concurred in the result without opinion.

In May 1989, Nichols, now represented by new counsel, two attorneys of a leading Houston law firm, filed an 86-page application for habeas corpus in the Texas trial court. Amended applications were filed on June 9, 1989, January 8, 1990, and June 6, 1990, the latter being some 123 pages long. The state filed an answer and amended answer supported by affidavits.

On October 19 and November 2, 1990, the Texas trial court conducted an evidentiary hearing on Nichols' claims of ineffective assistance of counsel and his statistical challenge to the Texas death penalty statute as unconstitutional in its application. The trial court on June 28, 1991, entered an order recommending denial of all relief and adopting verbatim the state's amended proposed findings of fact and conclusions of law.

On December 12, 1991, the Texas Court of Criminal Appeals denied all relief in an order stating in relevant part: “The trial court, after holding an evidentiary hearing, has entered findings of fact and conclusions of law and recommended the relief sought be denied. This Court has reviewed the record with respect to the allegations now made by applicant and finds that the findings and conclusions entered by the trial court are supported by the record. The relief sought is denied.”

Nichols, represented by the same counsel who represented him in his state habeas proceedings, in January 1992 filed the instant petition under 28 U.S.C. § 2254 in the district court below. Nichols asserted numerous claims before the district court, including (1) that the punishment special issues precluded the jury from considering or giving effect to mitigating character evidence and to evidence that Nichols did not kill Shaffer; (2) that the prosecutor's use of contradictory theories at the trials of Williams and Nichols violated the doctrines of judicial estoppel, collateral estoppel, due process, and the duty to seek justice; (3) that Williams should have been compelled by the court to testify for the defense because he waived his right to remain silent when he testified at the first Nichols trial; (4) that retrial of Nichols constituted double jeopardy; (5) that the prosecutor knowingly failed to correct perjured testimony given by Parker about her cooperation agreement with the state and created the false impression in his summation that she was unaware of a promise of leniency that her attorney received in exchange for her testimony; (6) that the Texas death penalty statute and its consistent interpretation by the Court of Criminal Appeals operated to deny Nichols his rights under the Sixth, Eighth, and Fourteenth Amendments; (7) that Nichols was denied effective assistance of both trial and appellate counsel; (8) that Nichols was denied a meaningful direct appeal; and (9) that various instances of claimed prosecutorial misconduct occurred. The state answered and moved for summary judgment.

The district court held an evidentiary hearing in March 1992.FN15 On August 31, 1992, the district court granted habeas relief and ordered Nichols released or retried within 120 days.FN16 The district court based its decision to grant relief on its conclusions that (1) the major mitigating thrust of Nichols' claimed nontriggerman role in the offense was beyond the scope of any of the punishment special issues; (2) by arguing that Nichols fired the shot that killed Shaffer after obtaining a death sentence against Williams for killing Shaffer, the state violated principles of constitutional collateral estoppel; and (3) the foregoing two conclusions, taken in combination with certain aspects of the state habeas proceedings, resulted in denial of Nichols' due process rights. Nichols, 802 F.Supp. at 71-79.

The district court determined, however, that the referenced aspects of the state habeas proceeding did not preclude the state habeas court's findings from being accorded the presumption of correctness called for by 28 U.S.C. § 2254(d), id. at 70, except the district court declined to accord that presumption to the finding that “ ‘[t]he jury was presented with overwhelming evidence that both applicant [Nichols] and Williams shot Shaffer,’ ” “because the record, as a whole, does not fairly support such factual determination” in that “the only conclusion which the record supports is that both Williams and Nichols shot at Shaffer but that either Williams or Nichols actually shot Shaffer.” Id. at 75 (original emphasis).FN17

*****

Since, as we have held, the jury was not unconstitutionally prevented from taking into account Nichols' claimed non-triggerman status in answering the punishment special issues, and the state was not constitutionally barred or estopped from arguing that the shot fired by Nichols was the fatal shot, therefore neither of these matters can form the basis for a proper claim of constitutional cumulative error. That leaves only the matter of the state habeas proceedings. However, errors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction. An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it “is an attack on a proceeding collateral to the detention and not the detention itself.” Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992) ( “infirmities in state habeas proceedings do not constitute grounds for federal habeas relief”), cert. denied, 507 U.S. 1056, 113 S.Ct. 1958, 123 L.Ed.2d 661 (1993); Vail v. Procunier, 747 F.2d 277 (5th Cir.1984) (same). See also Franzen v. Brinkman, 877 F.2d 26 (9th Cir.1989); Hopkinson v. Shillinger, 866 F.2d 1185, 1218-1220 (10th Cir.1989); Bryant v. State of Md., 848 F.2d 492 (4th Cir.1988); Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir.1986); Williams v. Missouri, 640 F.2d 140, 143 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981).

Accordingly, the district court erred in its holding that Nichols was entitled to relief on the court's cumulative error theory.