Summary:

After purchasing marijuana from Joel Dominguez at the B&G Convenience store in Waco, Parr returned to the store with his friend, Earl Whiteside, in order to retrieve his money. Both Parr and Whiteside were armed. When they arrived at the store, they forced Dominguez and his friend Mario Chavez to walk to a fenced area beside the store. Parr then pistol-whipped Dominguez and demanded that Dominguez return all his money. After Dominguez complied with Parr’s demand, Parr told Whiteside to “smoke ‘em.” Whiteside then shot Chavez in the hand and Parr shot Dominguez in the head, killing him. Earl Dewane Whiteside was convicted of aggravated robbery and sentenced to 15 years in prison.

Citations:

Parr v. State, Not Reported in S.W.3d, 2006 WL 1544742 (Tex.Crim.App. 2006). (Direct Appeal)
Parr v. Thalerr, 481 Fed.Appx. 872 (5th Cir. 2012). (Federal Habeas)

Final/Special Meal:

Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.

Final/Last Words:

"First of all, Shonna, talk to your brother. He'll tell you the truth about what happened to your husband. I told Bubba to tell you what happened. Now my statement to the world. I am in the midst of the truth. I am good. I am straight, don't trip. To all my partners, tell them I said, like Arnold Schwarzenegger, 'I'll be back.' I'm on my way back. ... These eyes sill close, but they will be opened again. My understanding of God is, Jesus has got me through." He then expressed love to his family and thanked his spiritual advisor, then told the warden he was ready.

Carroll Joe Parr
Date of Birth: 10/18/1977
DR#: 999479
Date Received: 06/04/2004
Education: 3 years
Occupation: laborer
Date of Offense: 01/11/2003
County of Offense: McLennan
Native County: McLennan
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5' 07"
Weight: 178

Prior Prison Record: #810942 on a 2 year state jail sentence for possession of a controlled substance.

Summary of Incident: On January 11, 2003, in McLennan County, Texas, Parr and a co-defendant approached two adult Hispanic males outside a grocery store, pointed guns at them and told them to get out of their car. Parr and co-defendant forced the victims to the side of the building where they demanded their money. After the victims gave their wallets, Parr asked if they had anymore. When one of the victims answered no, Parr shot him, resulting in his death.

Carroll Joe Parr

ProDeathPenalty.com

On January 11, 2003, Carroll Joe Parr arranged to purchase marijuana from Joel Dominguez outside the B&G Convenience store in McLennan County. After the drug deal was completed, Parr returned to the store with his friend Earl Whiteside because he wanted to get his money back. Parr and Whiteside saw Dominguez standing outside the store with his friend Mario Chavez and made them walk into a fenced area beside the store. Parr struck Dominguez multiple times in the head with his gun, demanding money. Dominguez complied and gave him all the money he was carrying. Parr told Whiteside, who wanted to leave, to "smoke 'em." Whiteside shot Chavez in his hand. Parr shot Dominguez at close range in his head, and Dominguez died from his injuries.

Parr testified that he had planned the drug deal, but stated that he was not involved in the robbery and that his friend Damion Montgomery did the shooting. However, both Chavez and Whiteside identified Parr as the person who shot Dominguez. Further, four people - Parr's girlfriend Dawanna Harrison, Parr's friend Ricky Garcia, Parr's cellmate Kenneth Reneau, and Montgomery - all testified that Parr confessed to them that he was the shooter.

At punishment, the State presented evidence showing an escalating pattern of disrespect for the law. Parr was convicted of three counts of delivery of cocaine on November 26, 1996, and was placed on probation. On January 8, 1998, Parr violated the terms of his probation and was sentenced to two years in state jail. After his release, he was convicted of evading arrest on December 29, 2000, and of possession of marijuana on December 13, 2001. There was evidence that Parr had committed a number of violent unadjudicated offenses, including a shooting at a residence in 2002 and an assault in 2003. Also, there was significant evidence regarding his involvement in the unadjudicated murder of Ronnie Zarazua on December 9, 2001.

The State introduced evidence indicating that Parr was without regret or remorse for the alleged killing of Zarazua or the murder of Dominguez, and that he expressed a willingness to engage in future violent acts. Whiteside testified that immediately after killing Zarazua, Parr returned to the site where he had dumped the body to show it to him. Whiteside claimed that Parr told him that he had killed Zarazua because he was supposed to testify against Parr's friend Milton Crosby. He also said that Parr did not express any remorse for the killing, stating that he was "keeping it real" for Crosby. Harrison also testified that Parr drove her to the area where he had shot Zarazua and told her that he did it because Zarazua was going to testify against one of his friends. Similarly, witnesses claimed that after shooting Dominguez, Parr did not express remorse and was angry with Whiteside for not killing Chavez because he did not want to leave a witness behind.

In the Court of Criminal Appeals of Texas

No. AP-74,973

Carroll Joe Parr, Appellant
v.
The State of Texas

SUFFICIENCY OF FUTURE DANGEROUSNESS

In his eighth point of error, appellant claims that the evidence presented at trial was legally insufficient to support the jury's finding that he would be a continuing threat to society. See Art. 37.071, §2(b)(1). Appellant essentially argues that there was no evidence except for "speculation and conjecture" that he would be a danger to free society in forty years, when he would be eligible for parole, and that the focus should therefore be on his danger to prison society, not free society.

In reviewing the sufficiency of the evidence at punishment, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. Jackson v. Virginia, 443 U.S. 307 (1979); Alllridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993).

We have held that the circumstances of the offense alone may be sufficient to support a jury's finding of future dangerousness. Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996). Evidence showing "an escalating pattern of disrespect for the law" can be used to support a finding of future dangerousness. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Future dangerousness can also be supported by evidence showing a lack of remorse and/or indicating an expressed willingness to engage in future violent acts. Rachal v. State, 917 S.W.2d 799, 806 (Tex. Crim. App. 1996), cert. denied 519 U.S. 1043 (1996). We have also consistently held that the jury considers both free society and prison society in determining future dangerousness. Morris v. State, 940 S.W.2d 610, 613 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1278 (1997). The length of a defendant's incarceration is not relevant to this issue. Id.

Viewed in the light most favorable to the verdict, the evidence presented at trial showed the following: On January 11, 2003, appellant arranged to purchase marijuana from Joel Dominguez outside the B&G Convenience store in McLennan County. After the drug deal was completed, appellant returned to the store with his friend Earl Whiteside because he wanted to get his money back. Appellant and Whiteside saw Dominguez standing outside the store with his friend Mario Chavez and made them walk into a fenced area beside the store. Appellant struck Dominguez multiple times in the head with his gun, demanding money. Dominguez complied and gave him all the money he was carrying. Appellant told Whiteside, who wanted to leave, to "[s]moke 'em." Whiteside shot Chavez in his hand. Appellant shot Dominguez at close range in his head, and Dominguez died from his injuries.

Appellant testified that he had planned the drug deal, but stated that he was not involved in the robbery and that his friend Damion Montgomery did the shooting. However, both Chavez and Whiteside identified appellant as the person who shot Dominguez. Further, four people-appellant's girlfriend Dawanna Harrison, appellant's friend Ricky Garcia, appellant's cellmate Kenneth Reneau, and Montgomery-all testified that appellant confessed to them that he was the shooter.

At punishment, the State presented evidence showing an escalating pattern of disrespect for the law. See King, 953 S.W.2d at 271. Appellant was convicted of three counts of delivery of cocaine on November 26, 1996, and was placed on probation. On January 8, 1998, appellant violated the terms of his probation and was sentenced to two years in state jail. After his release, he was convicted of evading arrest on December 29, 2000, and of possession of marijuana on December 13, 2001. There was evidence that appellant had committed a number of violent unadjudicated offenses, including a shooting at a residence in 2002 and an assault in 2003. Also, there was significant evidence regarding his involvement in the unadjudicated murder of Ronnie Zarazua on December 9, 2001.

The State introduced evidence indicating that appellant was without regret or remorse for the alleged killing of Zarazua or the murder of Dominguez, and that he expressed a willingness to engage in future violent acts. Whiteside testified that immediately after killing Zarazua, appellant returned to the site where he had dumped the body to show it to him. Whiteside claimed that appellant told him that he had killed Zarazua because he was supposed to testify against appellant's friend Milton Crosby. He also said that appellant did not express any remorse for the killing, stating that he was "keeping it real" for Crosby. Harrison also testified that appellant drove her to the area where he had shot Zarazua and told her that he did it because Zarazua was going to testify against one of his friends. Similarly, witnesses claimed that after shooting Dominguez, appellant did not express remorse and was angry with Whiteside for not killing Chavez because he did not want to leave a witness behind.

A rational jury could have concluded from all of this evidence that appellant would continue to be a threat to society. Accordingly, we hold the evidence legally sufficient to support the jury's affirmative answer to the future dangerousness issue. Jackson, 443 U.S. 307; Allridge, 850 S.W.2d 471. Appellant's eighth point of error is overruled.

VOIR DIRE ISSUES

In his fifth point of error, appellant claims that the trial court erred in granting the State's challenge for cause to veniremember Roderick Dylan Garrett. The trial court found that Garrett was unable to follow the law and fulfill his duty as a juror because of his views on the death penalty. Wainwright v. Witt, 469 U.S. 412 (1985). Appellant argues that the record does not support the trial court's finding because it shows that even though Garrett was strongly opposed to the death penalty, he indicated that he could follow the law in accordance with his oath.

Veniremembers who can set aside their beliefs against capital punishment and honestly answer the special issues are not challengeable for cause. Id. at 424. Veniremembers are challengeable for cause if their views regarding the death penalty would prevent or substantially impair the performance of their duties in accordance with their instructions and oath. Id.

We review a trial court's ruling on a challenge for cause with considerable deference because the trial court is in the best position to evaluate a veniremember's demeanor and responses. Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998). We will reverse a trial court's ruling on a challenge for cause only if a clear abuse of discretion is evident. Id. When a veniremember's answers are vacillating, unclear, or contradictory, we accord particular deference to the trial court's decision. Id. We will not second guess the trial court when the veniremembers are persistently uncertain about their ability to follow the law. Id.

When initially questioned by the prosecutor, Garrett explained that he could never recommend a death sentence and would always answer the special issues so that a life sentence would result. He explained that the death penalty was contrary to his religious beliefs. However, when defense counsel questioned Garrett, he agreed that he could put his religious beliefs aside and recommend the death penalty. Thereafter, the prosecutor questioned Garrett about his contradictory responses in the following exchange:

Q. And so if you were selected as a juror, the Judge would give you an oath that says that you must follow the law.

A. Uh-huh.

Q. Okay. And the law would require that you base your verdict on the evidence. But your personal convictions, as I understand them, would require you to say, I don't care what the evidence says, I'm not going to issue a death penalty.

A. (Nodded head.)

Q. You're shaking your head yes that you agree with that?

A. Uh-huh.

Q. Okay. So you see where there is a conflict between the law and your personal convictions which [are] most precious to you? Your personal convictions or the law?

A. On my own, I mean, because we have laws, but then, you know, I believe in - -

Q. You've got to live with yourself, right?

A. Yes, sir.

Q. So your personal convictions are more important to you than the law?

A. We've got to have the law.

Q. Well, which is it?

A. I don't know.

Q. Are you going to follow your belief - -

A. I believe in the law. I believe in the law.

Q. - - that you can't give the death penalty?

A. I believe in the law but I'm still not - - I couldn't do one for the death penalty. That's just not - - I was brought up better than that.

Even after this exchange, Garrett continued to vacillate in his answer. When defense counsel questioned Garrett about the issue, he reiterated that he could answer the special issues in a way that would result in the death penalty in the "worst of the worst" cases. Subsequently, in response to the trial court's question: "Would you answer [the special issue] truthfully even though you knew that that truthful answer would lead to the Court sentencing someone to death?" Garrett answered: "Yes, I could do that." However, in response to the prosecutor's later question if he could answer the special issues in a way that would result in the death penalty, Garrett answered that he could never recommend the death penalty. Finally, when defense counsel asked if he could be truthful in answering the special issues, Garrett answered: "Yes, I'll be truthful, to the best of my ability I'll be truthful."

The State challenged Garrett for cause arguing that he had vacillated back and forth so many times on this issue that he could not be a juror in this case. The trial judge found that Garrett would not be able to follow the law and granted the challenge for cause.

The trial judge's ruling is supported by the record. Because Garrett vacillated as to his ability to follow the law, we defer to the decision of the trial judge, who was in a position to actually see and hear him in the context of voir dire. The trial court did not abuse its discretion in granting the State's challenge for cause. Appellant's fifth point of error is overruled.

In his sixth and seventh points of errors, appellant claims that the trial court erred in denying his challenges for cause to veniremembers Dipak Patel and John Timpani. Appellant argues that Patel and Timpani were challengeable for cause because they were biased towards imposing the death penalty for anyone convicted of an intentional murder. Art. 35.16 (c)(2).

To show harm from a trial court's erroneous denial of a challenge for cause, appellant must show that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of veniremember; (3) all of his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997). By statute, appellant was granted fifteen peremptory strikes. Because he used only twelve, his peremptory challenges were not exhausted. Thus, appellant has not shown harm. Appellant's sixth and seventh points of error are overruled.

EXTRANEOUS OFFENSE

In his ninth point of error, appellant claims that the State's failure to prove an extraneous offense beyond a reasonable doubt at punishment violated his Eighth and Fourteenth Amendment rights. Appellant argues that the State failed to prove that he was involved in a drive-by shooting which took place at the residence of his ex-girlfriend LaShala Hardin in 2002.

Appellant fails to cite to any authority in support of his claim, and thus it is inadequately briefed. Tex. R. App. P. 38.1. Further, appellant's claim is without merit. Article 37.071 does not require that the State prove all elements of an extraneous offense beyond a reasonable doubt. See Art. 37.071; Adanandus v. State, 866 S.W.2d 210, 233 (Tex. Crim. App. 1993). We have held that the admissibility of extraneous offenses under Article 37.071 does not violate the Eighth Amendment, because the State retains the burden to prove the special issues beyond a reasonable doubt. Adanandus, 866 S.W.2d at 233. We have also held that the admissibility of extraneous offenses does not violate the Fourteenth Amendment. Id. Appellant's ninth point of error is overruled.

CONSTITUTIONALITY AND RELATED ISSUES

In his fourth point of error, appellant claims that the evidence was insufficient to support the jury's finding on the mitigation special issue. This Court does not conduct a sufficiency review of the mitigation special issue. Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997). Appellant argues that our refusal to review the sufficiency of the mitigation special issue is unconstitutional because it denies him "meaningful appellate review." We have previously rejected this argument, and we decline to reconsider it here. Id. Appellant's fourth point of error is overruled.

In his tenth point of error, appellant claims that the trial court's failure to instruct the jury that a single holdout juror on any of the special issues would result in an automatic life sentence was unconstitutional. We have repeatedly rejected this argument and upheld the constitutionality of Article 37.071, section 2(a), which expressly forbids this type of instruction. Draughon v. State, 831 S.W.2d 331 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993); Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996). Appellant's tenth point of error is overruled.

Appellant raises several challenges to Texas' death-penalty statute in his remaining points of error. In his first point of error, appellant claims that the death-penalty scheme is unconstitutional because it implicitly puts the burden of proving the mitigation special issue on the appellant. Appellant relies on Ring v. Arizona, 536 U.S. 584 (2002), Apprendi v. New Jersey, 530 U.S. 466 (2000), and their progeny to support his argument. In his second point of error, appellant cites Gregg v. Georgia, 428 U.S. 153, 189 (1976), and Justice Blackmun's dissent in Callins v. Collins, 510 U.S. 1141 (1994), claiming that the death-penalty statute is unconstitutional because it allows the jury too much discretion in determining who should live and who should die, and lacks the minimal standards and guidance necessary for the jury to avoid the arbitrary and capricious imposition of the death penalty. In his third point of error, appellant claims that the death-penalty statute violates the Supreme Court's decision in Penry v. Johnson "because the mitigation special issue sends mixed signals to the jury thereby rendering any verdict reached in response to that special issue unreliable." See Penry, 532 U.S. 782 (2001) (Penry II). In his eleventh through thirteenth points of error, appellant claims that the failure to define the terms "probability," "criminal acts of violence," and "society" in the future dangerousness special issue is unconstitutional.

This Court has previously rejected all of these claims, and appellant does not persuade us to revisit them. Williams v. State, 692 S.W.2d 671 (Tex. Crim. App. 1984); Blue v. State, 125 S.W.3d 491 (Tex. Crim. App. 2003), cert. denied, 543 U.S. 853 (2004); Escamilla v. State, 143 S.W.3d 814 (Tex. Crim. App. 2004), cert. denied, 125 S. Ct. 1697 (2005). Appellant's first through third and eleventh through thirteenth points of error are overruled.

We affirm the judgment of the trial court.

Meyers, J.

Delivered: June 7, 2006

Do Not Publish

1. Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.

Parr v. Thaler, 481 Fed.Appx. 872 (5th Cir. 2012). (Federal Habeas)

Background: Following affirmance of capital murder conviction and death sentence, 2006 WL 1544742, and denial of state habeas corpus application, 2006 WL 2879762, petitioner filed application for federal habeas corpus relief. The United States District Court for the Western District of Texas denied the petition and petitioner moved for a certificate of appealability (COA).

Holdings: The Court of Appeals, Edith H. Jones, Chief Judge, held that: (1) defense counsel's failure to peremptorily strike juror despite defendant's contrary instruction was not ineffective assistance; (2) potential juror's vacillation on death penalty supported dismissal for cause; (3) jury instructions did not prevent jury from considering mitigating evidence; (4) terms used in punishment phase jury instructions were not unconstitutionally vague; (5) Texas rule requiring at least 10 jurors to agree to answer negatively on punishment issues but 12 to agree on affirmative answers did not violate defendant's constitutional rights; and (6) use of unadjudicated criminal conduct at trial's punishment phase did not violate the constitution. Application denied.

EDITH H. JONES, Chief Judge:

This petition arises out of Carroll Parr's (“Parr” or “Petitioner”) appeal of his capital murder conviction and death sentence.FN1 Parr's conviction is a result of a robbery and shooting of Joel Dominguez (“Dominguez”). After purchasing marijuana from Dominguez at the B & G Convenience store in Waco, Texas, Parr returned to the store with his friend, Earl Whiteside (“Whiteside”), in order to retrieve his money. Both Parr and Whiteside were armed. When they arrived at the store, they forced Dominguez and his friend Mario Chavez (“Chavez”) to walk to a fenced area beside the store. Parr then pistol-whipped Dominguez and demanded that Dominguez return all his money. After Dominguez complied with Parr's demand, Parr told Whiteside to “[s]moke ‘em.” Whiteside then shot Chavez in the hand and Parr shot Dominguez in the head, killing him. FN1. All the facts contained in this section are also in the district court opinion.

At trial Parr was convicted of capital murder of Dominguez. During the punishment phase, the state presented evidence showing an escalating pattern of disrespect for the law and that Parr was without regret or remorse for the killing of Dominguez. In addition to the evidence surrounding the murder of Dominguez, the state also presented evidence of an unadjudicated murder of Ronnie Zarazua (“Zarazua”) and a drive-by shooting, both allegedly committed by Parr. After reviewing the evidence, the jury concluded that Parr would continue to be a threat to society and sentenced him to death. Petitioner's conviction and sentence were affirmed by the Texas Court of Criminal Appeals, Parr v. State, No. 74,973, 2006 WL 1544742 (Tex.Crim.App. June 7, 2006) (unpublished), cert. denied, 549 U.S. 1120, 127 S.Ct. 937, 166 L.Ed.2d 718 (2007). Parr also filed his state application for writ of habeas corpus while awaiting the result of his direct appeal. See Ex Parte Parr, No. WR–65443–01, 2006 WL 2879762 (Tex.Crim.App. Oct. 11, 2006). After his state habeas application was denied, Petitioner then filed for federal habeas relief, which the district court denied on March 28, 2011. See W.D. Tex. Docket # 25. Petitioner now moves for a Certificate of Appealability (“COA”) from this court. Having reviewed the Petitioner's motion in light of the state court decisions and record, as well as the federal district court's decision, we deny the COA.

Standard for Certificate of Appealability

AEDPA, 28 U.S.C. § 2253(c)(2), requires a petitioner seeking a COA to make “a substantial showing of the denial of a constitutional right.” The Supreme Court has stated that “[a] petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 1034, 154 L.Ed.2d 931 (2003). “Importantly, in determining this issue, we view the Petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).” Druery v. Thaler, 647 F.3d 535, 538 (5th Cir.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 1550, 182 L.Ed.2d 180 (2012). When reviewing a state court claim adjudicated on the merits, we defer to the state court's decision regarding that claim, unless the decision “[is] contrary to, or involve[s] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... [is] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.2000) (quoting 28 U.S.C. § 2254(d)(1)–(2)). “Factual findings are presumed to be correct, and a Petitioner has the burden of rebutting this presumption with clear and convincing evidence.” Brown v. Dretke, 419 F.3d 365, 371 (5th Cir.2005) (citing 28 U.S.C. § 2254(e)(1)), cert. denied, 546 U.S. 1217, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006).

DISCUSSION

On appeal, Petitioner argues that a COA should be granted for six reasons: (I) he received ineffective assistance of counsel because his trial counsel deferred to his command to allow Billy Foy Sanders to sit as a juror; (II) the trial court erroneously dismissed juror Garret (“Garret” or “vascillating juror”); (III) the Texas death penalty jury instructions set out an unconstitutional definition of mitigating circumstances that prevents the jury from giving independent effect to all the mitigating circumstances; (IV) the punishment phase jury instructions are unconstitutional because the terms “probability,” “criminal acts of violence,” and “society” are not defined; (V) the Texas 12–10 rule affirmatively misleads reasonable jurors regarding their role in the sentencing process and is therefore unconstitutional; and (VI) the state's use of extraneous unadjudicated offenses that were not established beyond a reasonable doubt at the punishment phase of the trial was unconstitutional.

I. Ineffective Assistance of Counsel

Parr's first point relates to juror Billy Foy Sanders, a former law enforcement officer who Parr insisted to his attorneys was an acceptable juror. Although Parr's ineffective assistance of counsel claim was rejected in his state habeas application, the district court found the claim not to be procedurally barred because “a state court determination that an ineffective assistance of counsel claim is waived if not raised on direct appeal is neither firmly established nor regularly followed in Texas.” W.D. Tex. Docket # 25 at 11. The state does not challenge this ruling. The district court then applied the two-prong test developed by the Supreme Court to evaluate whether counsel's performance was inadequate and concluded that Parr failed to establish either of the two-prongs. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (Petitioner must establish (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense so as to deprive him of a fair trial). The district court concluded there was no ineffective assistance because the right to defend oneself is a personal right that necessarily entails the ability to make certain fundamental decisions regarding one's representation by counsel. W.D. Tex. Docket # 25 at 11–13.FN2 The district court also noted that “the state habeas court's factual determination that the decision to keep juror Sanders was based upon Petitioner's voluntary choice also bars further review.” Id. at 14. FN2. The district court based its conclusion on a Supreme Court decision that was “within the context of examining a defendant's right to self-representation....” W.D. Tex. Docket # 25 at 13 (citing Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). Additionally, the district court held that Parr failed to make a showing of prejudice. Id. at 13. Parr presented “nothing to indicate that the juror was biased, incompetent, or ineligible” and there was no evidence “that the jury's decision in this case was swayed by this one particular juror.” Id. at 13–14.

On appeal, Petitioner alleges a COA is warranted because “Parr was effectively denied counsel when making the decision not to peremptorily strike the panel member, and in the alternative, trial counsel was ineffective in not disregarding the ‘directive’ of Mr. Parr.” Petitioner makes no attempt to prove prejudice in this court. Instead, Parr argues that prejudice need not be shown because the trial judge failed to warn Parr of the dangers of self-representation when he took over his defense by deciding that Sanders would sit on the jury. Petitioner reasons that counsel abandoned their role as advocates when they allowed Parr to determine that Sanders would sit on the jury. Because the trial judge did not warn Parr of the dangers of “self-representation” when this occurred, there was error, and prejudice need not be shown.

In the alternative, Petitioner contends trial counsel were ineffective for allowing Parr to “commit judicial suicide.” The federal district court should have determined whether Parr's trial counsel protected Parr's “constitutional right to a fair and impartial jury by using voir dire to identify and ferret out jurors who are biased against the defense.” That constitutional right, Petitioner argues, was violated as a result of trial counsel's ineffectiveness in failing to peremptorily strike Sanders despite Parr's instruction. Parr asserts that no prejudice need be shown under Strickland if counsel allow the impaneling of a biased juror. Parr's creative arguments are not enough to show that the district court's decision was debatable among jurists of reason. First, there is no support for applying United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), to this situation. Cronic embodies a carefully tailored ruling applicable only when a complete “breakdown in the adversarial process” has occurred because of counsel's absence or entire failure to subject the prosecution's case to adversarial testing. Id. at 662, 104 S.Ct. at 2049. That Cronic cannot apply where counsel, fully engaged in the defense, satisfy their ethical duty to adhere to the client's demand—even if the demand seems to them misguided—is abundantly demonstrated in a series of cases that have evaluated counsel's acquiescence under the Strickland test. See, e.g., Moore v. Johnson, 194 F.3d 586, 605–06 (5th Cir.1999) (citing Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)); United States v. Masat, 896 F.2d 88, 92 (5th Cir.1990); Lowenfield v. Phelps, 817 F.2d 285, 292–93 (5th Cir.1987). We have stated, “Neither the Supreme Court nor this court has ever held that a lawyer provides ineffective assistance by complying with the client's clear and unambiguous instructions to not present evidence.” Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir.2007).

Second, reasonable jurists could not debate the court's conclusion that, tested against Strickland, counsel's failure to override Parr's insistence on seating Sanders as a juror was not constitutionally ineffective. The decision did not fall below the deferential constitutional standard of competence. See Roberts v. Dretke, 381 F.3d 491, 499–500 (5th Cir.2004), and cases cited above. Nor did Parr attempt to prove that Sanders was biased or that Parr was “prejudiced,” other than by Sanders's voting with the majority of jurors.

II. Did the trial court erroneously dismiss a “vacillating juror?”

The district court found that the dismissal of Garret, the vacillating venireman, was clearly supported by the exchange with Garret recited in the Court of Criminal Appeals' opinion.FN3 W.D. Tex. Docket # 25 at 15. Petitioner failed to establish “by clear and convincing evidence that the state court's factual determination was erroneous.” Id. Additionally, “the state court's decision was not in conflict with clearly established federal law as determined by the Supreme court, nor was it based on an unreasonable determination of the facts in light of the evidence.” Id. As a result, the district court held that the trial court properly dismissed Garret as a potential juror. FN3. See Parr v. State, No. AP–74973, 2006 WL 1544742, at *3 (Tex.Crim.App.2006).

On appeal, Petitioner urges error in excluding Garret, because Garret never stated his beliefs would deter him from serving as an impartial juror. Petitioner concedes that the exclusion of a juror for cause is a finding of fact “based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province.” Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985). “In a capital case, a prospective juror may not be excluded for cause unless the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.” Drew v. Collins, 964 F.2d 411, 416 (5th Cir.1992), cert. denied, 509 U.S. 925, 113 S.Ct. 3044, 125 L.Ed.2d 730 (1993) (quotations omitted). “[T]his standard likewise does not require that a juror's bias be proved with unmistakable clarity. This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.” Witt, 469 U.S. at 425–26, 105 S.Ct. at 852–53. Petitioner must show that the state court's factual determination was erroneous by clear and convincing evidence in order to prevail.

After reviewing the exchange between Garret and the court, we agree with the district court: “[t]he record reflects that the juror's attitude toward the death penalty would prevent him from making an impartial decision.” W.D. Tex. # 25 at 15; See Parr v. State, No. AP–74973, 2006 WL 1544742, at *3 (Tex.Crim.App.2006) (illustrating Garret's contradictory responses). A juror can be excused for cause if his ability to impose the death penalty under the state-law framework is substantially impaired. See Uttecht v. Brown, 551 U.S. 1, 9, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007). In addition, “in determining whether the removal of a potential juror would vindicate the State's interest without violating the defendant's rights, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.” Id. Here, Garret's assurances that he would consider imposing the death penalty did not overcome the reasonable contrary inference that he was in fact substantially impaired in his ability to impose the death penalty under the state-law framework. See id. at 17–18, 127 S.Ct. at 2228–29. Reasonable jurists could not debate the court's conclusions that the state court neither made an unreasonable determination of the facts in light of the evidence nor failed to follow clearly established federal law as determined by the Supreme Court. The COA was properly denied.

III. Did the Texas death penalty jury instructions prevent Parr's jury from giving full effect to his mitigating evidence?

The district court rejected the Petitioner's contention because it found the mitigation special issue presented to the jury sufficient under Penry v. Johnson ( Penry II), 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). W.D. Tex. # 25 at 21. Petitioner alleged an instruction similar to that struck down in Coble v. Quarterman, 496 F.3d 430 (5th Cir.2007), but the court noted that Parr's jury was not given the Coble instruction. The court then held the sentencing scheme to be proper because the instruction gave the jury the opportunity to “express its reasoned moral response to the defendant's mitigating evidence.” In contrast to the judicially crafted nullification instructions at issue in Penry II and Coble, the instruction that Petitioner's jury was given pursuant to a later Texas law “allowed the jury to consider all of Petitioner's mitigating evidence.” Petitioner requests a COA to redress confusion caused by the Texas jury instructions concerning the death penalty. Petitioner believes the jury instruction given in his case is problematic because “the jury must conduct a balancing act between the mitigating evidence against circumstances militating in favor of the death penalty in order to determine if they were sufficient under the mitigation special issue.” Parr contends that the jury was unable to do so because the jury instruction provided a definition regarding mitigating circumstances that is not constitutionally authorized and prevented the jury from giving independent effect to his mitigating circumstances.

As Petitioner concedes, the exact instruction now at issue has been upheld in this court previously in Scheanette v. Quarterman, 482 F.3d 815, 824, 826–27 (5th Cir.2007). Notwithstanding his disagreement with our decision, Petitioner's challenge is barred by Scheanette. Id. at 825–26. As a result, reasonable jurists could not disagree with the district court's resolution of Parr's constitutional claims or that this issue is not adequate to deserve encouragement to proceed further.

IV. Is the Texas capital sentencing scheme unconstitutional because it fails to define the terms “probability,” “criminal acts of violence,” and “society?”

The district court held that this claim lacked merit because both the Supreme Court and Fifth Circuit have upheld the Texas capital sentencing regime. W.D. Tex. # 25 at 19–20. The Supreme Court originally approved the Texas capital sentencing scheme in Jurek v. Texas, 428 U.S. 262, 268–75, 96 S.Ct. 2950, 2954–58, 49 L.Ed.2d 929 (1976), when it held “that the constitutionally required narrowing function was performed at the guilt-innocence stage.” West v. Johnson, 92 F.3d 1385, 1406 (5th Cir.1996). Petitioner contends that the punishment phase jury instructions are unconstitutional because the instructions utilize vague terms such as “probability,” “criminal acts of violence,” and “society.” Parr asserts that these terms do not provide adequate guidance to the jury and enable the jury to base their decision upon improper considerations. This contention lacks merit. As the district court noted, it is well settled that the terms “probability,” “criminal acts of violence,” and “society” are not unconstitutionally vague in this context. See, e.g. Turner v. Quarterman, 481 F.3d 292, 299–300 (5th Cir.2007), cert. denied, 551 U.S. 193, 127 S.Ct. 2352, 168 L.Ed.2d 85 (2007) (finding the terms “probability,” “criminal acts of violence,” and “continuing threat to society” did not require further definition).FN4 Reasonable jurists could not disagree with the district court's rejection of this point. FN4. See also W.D. Tex. # 25 at 19–21 (listing numerous cases where the terms at issue have been declared to not be unconstitutional).

V. Is the Texas 12–10 Rule unconstitutional?

The district court held that the 12–10 rule did not violate Petitioner's right to due process or his right to be free from cruel and unusual punishment because those claims were foreclosed by Fifth Circuit precedent. W.D. Tex. # 25 at 23. Tex.Code Crim. Proc. Art. 37.071 §§ 2(d)(2) and 2(f)(2) require at least ten jurors to agree to answer negatively on the punishment issues but twelve to agree on affirmative answers. On appeal, Petitioner contends the 12–10 rule is unconstitutional because a reasonable jury would be “affirmatively misled regarding its role in the sentencing process.” (quoting Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 2010, 129 L.Ed.2d 1 (1994)). Petitioner posits that the 12–10 rule violates the constitutional principles discussed in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Allegedly, the 12–10 rule violates the Eighth and Fourteenth Amendments because it diminishes the perceived legal effect of a single juror's vote, which leads to a “majority rules” mentality. Petitioner asserts that the state court's decision was contrary to and involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1).

The precedents Parr relies on do not support his position. This court holds that the Texas 12–10 rule does not run afoul of either Mills or McKoy because “[u]nder the Texas system, all jurors can take into account any mitigating circumstance. One juror cannot preclude the entire jury from considering a mitigating circumstance.” Jacobs v. Scott, 31 F.3d 1319, 1329 (5th Cir.1994). In addition, this court has found arguments based on Mills aiming to invalidate the Texas 12–10 rule to be barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Druery, 647 F.3d at 542–45 (citing numerous Fifth Circuit cases holding that Teague barred the court from extending Mills to invalidate the Texas 12–10 rule). FN5 FN5. Petitioner does not brief how his rights are violated under the Sixth Amendment.

Petitioner's Eighth Amendment challenge to the 12–10 rule is also barred by Miller v. Johnson, in which this court rejected the argument that the 12–10 rule created the risk that “a reasonable juror could have believed that their individual vote was not meaningful unless some threshold number of jurors were in agreement on that particular special issue.” Miller, 200 F.3d 274, 288 (5th Cir.2000). Finally, Petitioner's due process claim is contrary to Hughes v. Dretke, 412 F.3d 582, 593–94 (5th Cir.2005) (rejecting a due process challenge to the Texas 12–10 rule). In sum, reasonable jurists could neither disagree with the district court's resolution of this claim nor conclude that this issue deserves encouragement to proceed further.

VI. Is the state's use of extraneous unadjudicated offenses that were not established beyond a reasonable doubt at the punishment phase of the trial unconstitutional?

The district court held that this claim was without merit for two reasons. W.D. Tex. # 25 at 15–16. First, “[t]here is no federal constitutional prohibition against the introduction of extraneous, unadjudicated criminal conduct at a trial's punishment phase.” Id. at 15 (citing Brown v. Dretke, 419 F.3d at 376 (5th Cir.2005), cert. denied, 546 U.S. 1217, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006)). Second, the Constitution does not require “that unadjudicated extraneous offenses be proved beyond a reasonable doubt for evidence of those offenses to be admitted at trial.” Id. at 16 (quoting Brown v. Dretke, 419 F.3d at 376–77). Petitioner contends that the district court failed to respond to the argument with which it was presented, specifically, that the State proved a number of extraneous offenses using only speculation and conjecture, and did not even attempt to establish them reliably, let alone beyond a reasonable doubt. In essence, he asserts, the jury could have been unfairly influenced by innuendoes rather than proven facts.

We reiterate, as noted, that there is no constitutional prohibition under the Eighth or Fourteenth Amendments against the introduction of extraneous evidence at the punishment phase and the Constitution does not require extraneous offenses to be proved beyond a reasonable doubt. Petitioner's claim lacks constitutional merit. Notwithstanding the absence of constitutional support for Parr, it must be recalled that at the punishment phase of trial, the state bore the burden of persuading the jury beyond a reasonable doubt to answer the special issues in its favor. Adanandus v. State, 866 S.W.2d 210, 233 (Tex.Crim.App.1993), cited in Parr v. State, 2006 WL 1544742, at *4. Reasonable jurists could neither disagree with the district court's resolution of this claim not conclude that this issue deserves encouragement to proceed further.

CONCLUSION