Citations:

Scheanette v. State, 144 S.W.3d 503 (Tex.Crim.App.,2004) (Direct Appeal).
Scheanette v. Office of Chief Disciplinary Counsel, Not Reported in F.Supp.2d, 2005 WL 3147874 (N.D.Tex. 2005) (Pro Se).
Scheanette v. Quarterman, 482 F.3d 815 (5th Cir. 2007) (Habeas).

Final/Special Meal:

Two spicy fried leg quarters, french fries and ketchup and two spicy fried pork chops.

Final Words:

"My only statement is that no cases ever tried have been error-free. Those are my words. No cases are error-free." He did not acknowledge the six witnesses who attended on behalf of his victims.

Texas Department of Criminal Justice

Texas Attorney General

Monday, February 2, 2009

Media Advisory: Devon Scheanette Scheduled To Be Executed

AUSTIN– Devon Scheanette is scheduled to be executed after 6 p.m. on Tuesday, February 10, 2009, for raping and strangling a woman at her home in Arlington.

FACTS OF THE CRIME

On December 24, 1996, Norman and Brenda Norwood became worried when their niece, twenty-two-year-old Wendie Prescott, failed to show up for a planned shopping trip with her sister. When Prescott had not called or appeared by 11 that evening, the Norwoods went to Prescott’s apartment in Arlington and found Prescott’s naked body lying face down in a partially filled bathtub. Her neck was wrapped in duct tape which trailed down behind her back to her wrists and ankles, which were also wrapped in duct tape. Prescott had been sexually assaulted.

An autopsy revealed that Prescott had been manually strangled. The medical examiner opined that Prescott’s hands had been bound behind her back prior to her death.

Arlington police found a fingerprint in the dust on the television stand in the living room of Prescott’s apartment. The print was submitted to DPS and the FBI for comparison in their data bases, but no match was returned. However, in the summer of 2000, the print was resubmitted to the FBI computer system which, through the use of new technology, led the FBI analyst to conclude that the print found in Prescott’s apartment matched the known print of Dale Scheanette. Scheanette was arrested later that day. Fingerprints taken at the time of arrest matched the print found in Prescott’s apartment, and DNA samples taken from Scheanette matched semen samples obtained from an autopsy of Wendie Prescott.

During the punishment phase of Scheanette’s trial, the State linked Scheanette to five brutal sexual assaults, and one other capital murder, committed both before and after the Prescott murder.

Scheanette was connected to the September 17, 1996, rape and murder of 26-year-old Christine Vu, whose body was found lying face down in a half-filled bathtub in her home at the same apartment complex where Prescott lived. Like Prescott, Vu was naked, with her hands, ankles, and neck wrapped with duct tape. An autopsy revealed that Vu had been strangled and drowned. Arlington police matched Scheanette’s fingerprints to a print found in Vu’s apartment and Scheanette’s DNA to samples collected during Vu’s autopsy.

Scheanette was also connected to the September 21, 1998, rape of another woman in her apartment. DNA evidence collected from a sexual assault investigation matched Scheanette’s DNA samples. Scheanette was linked to the October 2, 1998, sexual assault of a female Dallas police officer after she arrived home from work. Scheanette’s DNA matched DNA samples collected as evidence in the assault on the officer. The officer lived yards away from the residence of the woman who was sexually assaulted the prior month.

Scheanette was connected to the December 18, 1998, sexual assault of a woman at her Lancaster apartment. Scheanette’s DNA sample matched DNA samples collected as evidence in the assault on the woman. The State also introduced evidence of a fourth sexual assault committed on February 23, 1999, against a college student who was attacked after going to bed for the night. DNA evidence collected during the sexual assault examination matched the DNA samples taken from Scheanette.

Finally, the State connected Scheanette to the October 26, 1999, sexual assault of a woman after she had gone to sleep in her apartment. DNA evidence from the sexual assault examination matched Sheanette’s DNA sample.

In addition to this evidence, the State introduced testimony that, while incarcerated awaiting trial, jail guards found concealed in Scheanette’s cell a triangular piece of plexiglass, which could have been used as a weapon, and which was prohibited under jail rules. Finally, the State introduced evidence of a previous burglary conviction from 1999.

PROCEDURAL HISTORY

In January 2003, Scheanette was convicted by jury and sentenced to death by a Tarrant County state district court judge. The Texas Court of Criminal Appeals affirmed Scheanette’s conviction on September 15, 2004. The U.S. Supreme Court denied Scheanette’s petition for writ of certiorari on January 10, 2005

On September 23, 2004, the trial court entered findings of fact and conclusions of law recommending the denial of state habeas. However, on April 13, 2005, the Texas Court of Criminal Appeals remanded Scheanette’s case to the trial court for the development of additional facts pertaining to his ineffective assistance of counsel claims.

While his state application was pending before the Texas Court of Criminal Appeals, Scheanette filed a federal habeas petition on March 14, 2005, in the Eastern District of Texas. The case was transferred to the Northern District of Texas, Fort Worth Division on August 2, 2005. That district court granted the state’s motion to dismiss without prejudice so that Scheanette could exhaust all available state court remedies.

The Texas Court of Criminal Appeals denied all relief on November 9, 2005, and reformed its opinion on December 14, 2005.

The federal district court denied Scheanette’s federal habeas petition on April 10, 2006, and his request for a certificate of appealability on April 11, 2006. The Fifth U.S. Circuit Court of Appeals denied Scheanette’s request for COA on March 26, 2007. An execution date was set for November 27, 2007, but was withdrawn on October 8, 2007, in light of the stay of execution issued by the Texas Court of Criminal Appeals in In re Heliberto Chi.

Almost two years after the federal district court’s April 10, 2006, denial of federal habeas corpus relief, Scheanette filed a motion seeking relief from that court’s judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure. The district court denied this motion on March 19, 2008. Scheanette filed a second motion for relief, which the district court denied on April 18, 2008. The district court denied Scheanette’s third motion on May 23, 2008. Scheanette then filed, on June 3, 2008, a notice of appeal from the denial of his Rule 60 motion and from all judgments and orders entered by the district court, and a request for COA to appeal these denials in the Fifth U.S.Circuit Court of Appeals. The district court denied his request for COA.

Scheanette filed a fourth motion for relief from judgment, which the district court again denied on July 9, 2008. This was followed by another notice of appeal and a request for COA, which was denied on July 15, 2008. Scheanette also filed a third notice of appeal.

Thus, Scheanette currently has three appeals pending before the Fifth U.S. Circuit Court of Appeals, seeking COA of the district court’s denial of his Rule 60 motions. All have been consolidated and are being considered together. After numerous delays in filing (all attributed to Scheanette), the court has given him until January 26, 2009 to refile a petition for COA which complies with the page and word-limitations for briefs filed in the Fifth Circuit Court.

PRIOR CRIMINAL HISTORY

According to TDCJ website, Scheanette has no prior prison record. • However, the State connected Scheanette – through DNA evidence – to five aggravated rapes and one other capital murder. • While in jail, Scheanette violated jail rules by possessing a triangular piece of plexiglass which could have been used as a weapon. • Scheanette has a previous burglary conviction from 1999.

Texas "Bathtub Killer" executed

By Michael Graczyk - Houston Chronicle

Associated Press - Feb. 10, 2009

HUNTSVILLE, Texas — A Louisiana man whose slayings terrorized a suburban Dallas-Fort Worth area and earned him the nickname the "Bathtub Killer" quietly went to his death.

Dale Devon Scheanette, 35, said from the death chamber gurney Tuesday evening that "no cases ever tried have been error free." He repeated the comment. "No cases are error free," he said, then told the warden standing next to him to proceed. Nine minutes later, Scheanette was pronounced dead.

He was condemned for killing an Arlington woman, Wendie Prescott, was charged with the slaying of a second woman and was blamed for the rapes of at least five other women. His signature murders occurred at the same apartment complex in Arlington in 1996 with his victims found in half-filled bathtubs, strangled, raped and bound with duct tape. Prescott, 22, was killed on Christmas Eve in 1996. Scheanette was charged but not tried for killing Christine Vu, 25, three months earlier.

Relatives of each woman were among the witnesses to Scheanette's lethal injection. They declined to speak with reporters. The execution was the seventh this year in Texas. Another is set for Thursday evening in the nation's most active death penalty state.

Scheanette acted as his own lawyer in late appeals. His sister, acting on his behalf, filed a three-page handwritten motion Tuesday seeking a reprieve from the U.S. Supreme Court. It was turned down less than an hour before he was taken to the death chamber.

The slayings went unsolved for more than three years because detectives couldn't match a fingerprint at the murder scenes to anyone. Finally, in 1999, Scheanette was arrested for a burglary outside Dallas and his prints entered into a criminal database were tied to the killings. DNA then strengthened the confirmations and also pointed to his involvement in the other rapes.

"He personifies evil," said Greg Miller, the Tarrant County district attorney who prosecuted Scheanette in 2003. "I've been doing this 35, 36 years. I've had others who have killed and done bad things. But he's at the top of the list." Prosecutors and defense lawyers said it was uncertain what set Scheanette off. Evidence showed that at some time before the Prescott and Vu killings, the native of Ouachita Parish in northern Louisiana had lived at the apartment complex where both women lived and died.

Scheanette declined to speak with reporters as his execution date neared. At his trial, lawyers tried to show the evidence was insufficient to convict him. "We brought in his family to show he had a pretty good family unit and that he got along well," said J.R. Molina, his trial attorney. "The DNA evidence, the fingerprint evidence that came in, were very strong. Several other instances of burglary, break-ins and rapes that he committed, that was pretty strong evidence to show to a jury."

Prescott's aunt and uncle, concerned when she failed to show up for a shopping trip with her sister, went to her apartment and found her dead.

After jurors convicted him of capital murder for the Prescott slaying, prosecutors in the punishment phase of the trial called to the witness stand five women who testified how they were beaten, threatened and raped by Scheanette. "I am convinced that testimony of those five women was very therapeutic for them," Miller said, describing the women as crying and hugging one another after leaving the witness stand. "It was a pretty moving event. ... It was a miracle he didn't kill any of the other women."

Miller, however, said he was left to wonder how many others Scheanette may have raped or killed. "The possibility certainly exists," said Tommy LeNoir, the Arlington homicide detective who investigated the slayings. "I will tell you this, without reservation, that the right person is in this position, that the person who took the lives of these two ladies, I have absolutely no reservation that the person responsible is Dale Scheanette."

On Thursday, another inmate linked to multiple slayings and rapes was set to die. Johnny Ray Johnson, 51, was convicted of the 1995 rape-slaying of Leah Joette Smith, whose head was slammed repeatedly into a cement street curb in Houston after she refused to have sex with him.

Texas death row inmate guilty of 1996 Arlington 'bathtub murders' to be executed

By Debra Dennis - Dallas Morning News

Monday, February 9, 2009

ARLINGTON – Police Detective Tommy Le Noir remembers the alarm that gripped this city in 1996 after two young women were found strangled in the bathtubs of their east Arlington apartment complex. "There was a lot of fear in the community and in the Police Department," Le Noir said. "The fear is that you don't want this to happen again. At that time there was some incredible panic in those apartment complexes. People moved out in masses. It was just an incredible time."

Tuesday night, almost 13 years after the crimes, the state plans to execute 35-year-old Dale Devon Scheanette for the so-called "bathtub murders" of Wendie Prescott and Christine Vu. On Friday, the Texas Board of Pardon and Paroles voted unanimously against asking Gov. Rick Perry to commute Scheanette's death sentence.

Fort Worth attorney Richard Alley, who represented Scheanette on appeal, said he has not been his attorney for more than a year. "I was withdrawn at his request," Alley said this week, adding that Scheanette has since handled his own appeals, which thus far have been unsuccessful. "I was the lawyer on deck. Then he took over from there."

4 years later

It took police four years to link Scheanette to the crimes – the result, Le Noir said, of strong criminal science. A fingerprint was left at Prescott's apartment, but police could not immediately match it. Using advanced technology, investigators eventually linked it to Scheanette. They also matched his fingerprints to a print found in Vu's apartment. "We strongly suspected it was the same person without the forensics," Le Noir said. "Eventually we did get a genetic link. We knew we had the same suspect. We also had, in both cases, some comparable latent fingerprints at both scenes." Scheanette was also linked to sexual assaults in Lancaster and at the University of Texas at Arlington. But it was the macabre slayings that drew the public's attention – and fear.

Prescott, 22, and Vu, 26, were neighbors of Scheanette's at the Peartree apartments. On Christmas Eve 1996, Prescott had planned a shopping trip with her sister. When her family didn't hear from her, an uncle went to her apartment. There, he found Prescott naked in a partially filled bathtub. Her wrists and feet were tied with duct tape and she had been strangled and raped, police said. Prescott's slaying came three months after Vu, an elementary school teacher, was found dead inside her apartment. She, too, had been raped and strangled and left in her bathtub.

Brenda Norwood, Prescott's aunt, said she hopes Scheanette has come to terms with his crimes and accepted responsibility for his actions. "I hope he asks God to forgive him to save his soul," said Norwood, of Mansfield. "I had to forgive because I can't live with that. I can't hate him for what he did because that would not bring Wendie back. You have to move on."

Norwood said her niece worked as a teacher's aide at Erma Nash Elementary in Mansfield, but she also was enrolled in a beauty college. She loved to dress up and spend time with her family and friends, her aunt said. "Wendie was a beautiful young lady," Norwood said. "She was always hugging people. She was very affectionate. She loved people, not things. She treated people the way she wanted to be treated."

Witnessing execution

Norwood said she and the rest of Prescott's family have no plans to attend Scheanette's execution. "I have no desire to go down and witness that because that will not enhance my life at all," she said. "You have to let the law of the land prevail."

But Vu's family said that they will be there. Not for revenge against her killer, but to honor her life. "Most of us, we have had closure," said Dr. Kim Kuo, Vu's sister who said she plans to witness the execution. "We've accepted [Christine's death], but I will go mainly to bear witness for her."

Kuo said the family is proud that her sister was able to achieve her lifetime goal of becoming an educator. Vu was a third-grade teacher at Moore Elementary in Arlington. As a child, Kuo said, Vu frequently placed their younger siblings in front of a chalkboard, taking charge of their lessons. "She loved children," Kuo said. "I wished she had had a chance to have her own kids."

ProDeathPenalty.com

On Christmas Eve of 1996, Norman and Brenda Norwood became worried about their 22-year-old niece, Wendie Prescott, a teaching assistant, when she failed to show-up for a planned shopping trip with her sister. Around 11:00 p.m., Norman went to Wendie's apartment, only to discover her naked body lying face down in a partially filled bathtub. Her neck, hands and feet were tied in duct tape, which trailed from her neck down behind her back to her hands and feet.

The medical examiner believed that she had been bound in this fashion prior to death. The autopsy revealed that Wendie had been manually strangled, with the possibility that her immersion in the tub also played a role in her death. A sexual assault examination was conducted and sperm samples collected and preserved for DNA testing. Though investigators found a high-quality dust print at the apartment, initial comparisons yielded no matches.

In 1999, DNA evidence from the murder was matched to evidence from a sexual assault at the University of Texas at Arlington and from a rape in Grand Prairie. In the summer of 2000, the print from Wendie's apartment was resubmitted to the FBI computer system, which, through the use of new technology, was able to narrow the list of possible matches. One of the matches scored over 2500 points, almost 1000 points more than the next highest score.

A FBI analyst concluded the print found in Wendie's apartment matched the known print of Dale Devon Scheanette who had been arrested for a De Soto burglary in March, 1999. It was Scheanette's first arrest, so it was the first time he was fingerprinted and entered into the FBI database. After obtaining a search warrant, officers obtained saliva samples from Scheanette. DNA testing matched the DNA extracted from these samples to the DNA extracted from Wendie Prescott's corpse with a statistical certainty of one in 763 million.

At the punishment phase of Scheanette's trial, the State connected Scheanette to yet another capital murder, that of 26-year-old teacher, Christine Vu. Three months before Wendie's murder, Christine's body was found bound with duct tape, naked and in a half-filled bathtub in the same apartment complex that Wendie lived in, The Peartree Apartments. Scheanette lived in the same complex but moved out before Wendie's murder, had no criminal record and no connection to either victim, so he was not considered a suspect. The State also tied Scheanette to five brutal sexual assaults.

The State also introduced evidence that, while incarcerated awaiting trial, jail guards found concealed in Scheanette's cell a contraband triangular piece of plexiglass that could have been used as a weapon. Finally, the State introduced evidence of a burglary conviction from 1999.

During the punishment phase, various family members and a chaplain testified on Scheanette's behalf. In January 2003, a Texas jury deliberated for an hour and a half before they convicted Scheanette of capital murder and sentenced him to death for the murder of Wendie Prescott while in the course of committing or attempting to commit sexual assault on her.

Prosecutors began the punishment phase with testimony from women whom Scheanette is accused of raping. Authorities say DNA evidence links him to their assaults. One woman described how the sound of breathing in her Grand Prairie apartment in October 1999 awakened her. She testified that a man raped her at gunpoint. "I was pregnant," the woman testified. "I prayed for God not to forsake me." As her attacker was leaving, she asked him why he raped her. "He said, 'I don't know. I'm mad at the world,' " she testified. Another woman described a brutal rape at her Lancaster apartment in December 1998. The woman testified that she fought back, which enraged her attacker enough that he kicked down her bedroom door. Her 2-year-old son pleaded with the man, "Let my mom go!" as he slapped the man's legs, she testified. Scheanette also raped a police officer at her Lancaster apartment. The officer told jurors that she was in uniform at a gas station in 1995 or 1996 when Scheanette befriended her and said he lived in a nearby Lancaster apartment complex. She testified that the two spoke several times by phone over the next six months but never dated, because she "had a bad vibe." Scheanette often referred to himself as a "jack of all trades" during their conversations, she testified. In October 1998, as her attacker used her handcuffs to restrain her after he assaulted her, she asked him how he got into her apartment. "He said he was a 'jack of all trades,' " the woman testified. "When I heard that, I thought, 'Was that him?' " She later told authorities about the connection. Members of Christine's family said they were pleased with the guilty verdict.

"The person responsible has been convicted," her brother, Hiep Vu, said. "We feel he is responsible for Christine's murder as well. We've waited six years for this." Thang Khuu waited six years to face the man accused of raping and killing his fiancée — Christine Vu, a third-grade teacher at Morton Elementary School in Arlington. "I want the guy to look me in the eye and to see what he did to me," said Khuu, who still carries a photo of Christine in his wallet. "I have waited to see someone go through a trial for this. The crime is unforgivable." Thang Khuu found Christine's body in their apartment, and was questioned as a possible suspect. He volunteered to provide hair and saliva samples for DNA testing and was cleared. At Morton Elementary School in Arlington, where Vu taught for several years, fellow teacher JoAnna Robbins still wonders why her friend was killed. Scheanette's arrest did not erase the pain but brought a sense of closure, Robbins said. This case was profiled on an episode of A&E's Cold Case Files.

Texas Execution Information Center by David Carson

Txexecutions.org

Dale Devon Scheanette, 35, was executed by lethal injection on 10 February 2009 in Huntsville, Texas for the rape and murder of a woman in her apartment.

On 17 September 1996, the body of Christine Vu, 26, was found lying face down in a half-filled bathtub in her Arlington apartment. Her hands, ankles, and neck were wrapped with duct tape. An autopsy showed that she had been raped, strangled, and drowned. A fingerprint was found in her apartment, and a DNA sample was collected during the autopsy, but this evidence did not lead to any suspects.

On 24 December 1996, Norman and Brenda Norwood became worried when their 22-year-old niece, Wendie Prescott, failed to show up for a planned shopping trip with her sister. At around 11:00 p.m., Mr. Norwood went to Prescott's apartment, which was in the same apartment complex where Vu's body was found three months earlier. Norwood found his niece's body lying face down in the bathtub. Her neck, wrists, and ankles were wrapped in duct tape and were all connected together with a band of duct tape down her back.

An autopsy showed that she had been sexually assaulted and bound in this fashion prior to her death, which was caused by manual strangulation. The medical examiner was uncertain as to whether her immersion in the bathtub contributed to her death. Investigators recovered a high-quality fingerprint from a television stand in Prescott's apartment, and sperm samples were recovered, but no matches were returned from law enforcement data bases.

The killings, which the media dubbed the work of the "Bathtub Killer", remained unsolved for years. In May 1999, Dale Scheanette was arrested in Dallas County for criminal mischief. He was convicted and sentenced to 12 months in jail.

In the summer of 2000, Arlington police resubmitted the fingerprint from the Prescott murder to the FBI computer system. An FBI analyst found a conclusive match with Scheanette's fingerprints, which entered the system in 1999. Scheanette was arrested and a saliva sample was taken from him. The DNA from Scheanette's saliva was matched to the DNA from the sperm sample extracted from Prescott's corpse with a statistical certainty of 1 in 763 million. Scheanette's fingerprint and DNA evidence were also matched to the samples taken from Vu's murder.

After his arrest, Scheanette was also connected to the sexual assaults of four other women in their apartments the Dallas-Fort Worth area from September 1998 to October 1999.

A jury convicted Scheanette of the capital murder of Wendie Prescott in January 2003 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in September 2004. All of his subsequent appeals in state and federal court were denied.

Scheanette was charged with Vu's murder, but was not tried.

Scheanette declined to speak with reporters while on death row. At his execution, when asked if he wanted to make a last statement, he paused, then said, "My only statement is that no cases ever tried have been error-free. Those are my words. No cases are error-free." He did not acknowledge the six witnesses who attended on behalf of his victims. The lethal injection was then started. He was pronounced dead at 6:21 p.m.

Canadian Coalition Against the Death Penalty

Dale Scheanette - Texas Death Row

I would like for you to know that I love kids and animal wild life as well to cook (French), read a lot, believe in God, fishing, music - classic rock, rap and country... I like to be competitive sports, I like to travel around country, go out to clubs, picnic, family-orientated. I especially believe education is important for all. I like flowers, I like to look at dream homes, gardens, I like to listen… I love to pick my girlfriend’s clothes as well as shoes, nail color, and toe nail polish color. I like women of all races, as well as people, I like to go on family vacations, Oprah, my favorite book: “Old Yeller”, second “Where the Red Fern Grows”, and third “Julius Caesar. I like to read the Bible in whole, every year…

Wishes/Desires/Likes/Dislikes…

First to learn to type better, get more education, hug my kids, take my sons fishing, to go on safari hunt, not to kill - to see animals, go to Brazil, train dogs, cars, loud music, wood working, to leave this hell hole on death row, get a better relationship with God, own my own business, go to car shows & dog shows, swim, get married again have a family. I’m easy to get along with, like movies, I love all women but I have a like for mix breed women (red), I’m pretty much bi-racial towards people I talk to, wish I could change the world-to end racism, teach people the importance of life, I would dove to go to a Pat Benetar concert as well as Match Box Twenty, love to go out with the Everlast ad girl in the Source Magazine September issue 2003 page 128 But hey I’m just me, you treat me with respect, I’m cool, I can get along with all people regardless of race or religion, go to Indonesia, there are so many things that I would like to do, I can’t name all of them… I love soccer, baseball, I no longer like boxing, I don’t like how the state of Texas is denying us (capital defendants) equal protection, I like to go scuba diving, I would love to go on a cruise, go to a beach with white sand, I’d love to paint my cell sky blue with stained wood siding and a little stucco as well, but to be serious this is not a good place for no one, I love to go to Niagara Falls, go to France, I wished I could live in the country with a big ranch full of cows and horses and chickens etc…

Dale's Penpal Request From Lamp of Hope

Hello,My name is Dale Devon Scheanette, 29 years old. I’m an Acadian (aka Cajun) from Monroe, Louisiana. I am currently a Texas Death Row inmate. I have been here for only a few days. I’m looking for a pen pal to communicate with through the mail. I’m in my cell twenty three hours a day with no one to talk to. I have no TV. I’m looking for someone who understands my situation, someone to just correspond with me. All races accepted (Note: would really like to especially communicate with a penfriend from Mid East or North Africa, India, Pakistan, Brazil etc.). There are no strings attached in order to correspond with me. I’m waiting to hear from you.

Dale Scheanette #999440
Polunsky Unit
3872 FM 350 South
Livingston TEXAS 77351

Scheanette v. State, 144 S.W.3d 503 (Tex.Crim.App.,2004) (Direct Appeal).

Background: Defendant was convicted by jury in the Criminal District Court No. 4, Tarrant County, Mark Kent, J., trial court of capital murder and was sentenced to death.

Holdings: On automatic direct appeal, the Court of Criminal Appeals, Meyers, J., held that: (1) defendant was not entitled to ask prospective jurors during voir dire whether they could consider and give full deliberation to parole board requirements for release on parole; (2) jury instruction on punishment telling jury to consider all the evidence when considering mitigation was error; (3) error was harmless; (4) defendant was not entitled to jury instruction linking findings on future dangerousness to findings on mitigation; and (5) record was insufficient to support claim of ineffective assistance of counsel. Affirmed.

In January 2003, a jury convicted appellant of capital murder. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071, § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises eight points of error with two subpoints but does not challenge the sufficiency of the evidence at either stage of trial.FN2 We affirm.

FN1. Unless otherwise indicated, all references to Articles refer to the Code of Criminal Procedure. FN2. After counsel filed a brief on appellant's behalf, appellant filed a pro se brief in which he raised twenty-six additional points of error, including several sub-points. Appellant also filed documents setting forth corrections to his original brief and adding numerous additional points of error. Appellant does not have a right to hybrid representation. Patrick v. State, 906 S.W.2d 481, 498 (Tex.Crim.App.1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996); Lockhart v. State, 847 S.W.2d 568, 569 n. 1 (Tex.Crim.App.1992), cert. denied, 510 U.S. 849, 114 S.Ct. 146, 126 L.Ed.2d 108 (1993). Neither does he have a constitutional right to represent himself on direct appeal. Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 163-64, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). Thus, we will not address any of appellant's pro se points.

CONSTITUTIONALITY OF DEATH PENALTY STATUTE

In point of error two, appellant claims that the mitigation issue is unconstitutional because it fails to require the trial court to instruct the jury that the State bears the burden of proof beyond a reasonable doubt on the mitigation issue. Appellant relies upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to support his position. We have previously addressed and rejected this argument. Hankins v. State, 132 S.W.3d 380, 386 (Tex.Crim.App.2004). Point of error two is overruled.

Appellant claims in his fifth point of error that the Texas death-penalty scheme is unconstitutional under the Fifth and Eighth Amendments “because it leads the State to execute an unacceptable number of innocent defendants.” He further asserts that, under the cruel and unusual punishment clause of the Eighth Amendment, “the constitutionality of the death penalty must be determined and redetermined by the courts in keeping with evolving standards of decency and current knowledge about its operation.”

While the execution of an innocent person might violate federal due process and be considered cruel and unusual punishment, appellant does not claim that he is innocent. He therefore fails to demonstrate that his due process rights or his right to be free from cruel and unusual punishment have been violated by application of our death-penalty statute. Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Paredes v. State, 129 S.W.3d 530, 540 (Tex.Crim.App.2004). Appellant's fifth point of error is overruled.

Appellant complains in his sixth point of error that the Texas death-penalty statute under which he was sentenced violates the Eighth Amendment as interpreted in Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001)(“Penry II”), because the mitigation instruction sends “mixed signals” to jurors. This Court has previously addressed and rejected this claim. Jones v. State, 119 S.W.3d 766, 790 (Tex.Crim.App.2003), cert. denied, 542 U.S. 905, 124 S.Ct. 2836, 159 L.Ed.2d 270 (2004). Point of error six is overruled.

VOIR DIRE

In his eighth point of error, appellant alleges that the trial court erred in restricting voir dire on the issue of parole. Specifically, appellant wanted to inform the prospective jurors that two-thirds of the members of the parole board must vote in favor of releasing an inmate on parole, after first receiving a copy of a report on the probability that the inmate would commit another offense upon release. See Tex. Gov't Code § 508.046. Appellant then wanted to ask them whether they could “consider and give full deliberation to the parole board requirements for release on parole.” Appellant also sought to question the prospective jurors about whether they could consider the parole board release information when deliberating and answering the special issues. He argues that recent legislative changes open the door for full consideration by the jury of any procedures relating to parole and the parole board. Art. 37.071, § 2(e)(2)(B).

This precise issue was raised in Hankins, 132 S.W.3d at 384. In that case, this Court reiterated that it has historically held that parole is not a proper matter for jury consideration. Id. We recognized that the Legislature amended Article 37.071, effective September 1, 1999, to provide that a jury may now be instructed on a capital defendant's eligibility for parole, however, we held that this provision was narrowly drawn and did not render every aspect of parole law an issue for jury consideration.FN3 Hankins, 132 S.W.3d at 385. We further held that:

FN3. Article 37.071 was amended as follows: Under the law applicable in this case, if the defendant is sentenced to imprisonment in the institutional division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without consideration of any good conduct time. It cannot accurately be predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of those laws will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted.

Art. 37.071 § 2(e)(2)(B). The provision expressly discourages speculation on the parole process by providing that application of the parole laws cannot be accurately predicted “because the application of those laws will depend on decisions made by prison and parole authorities.” [Citation omitted.] The legislature could have written the 1999 amendments more broadly to impart more information but chose not to. Accordingly, precedent maintaining that parole is not a proper issue for jury consideration remains in effect except to the extent explicitly provided for in Article 37.071 § 2(e)(2)(B). Hankins, 132 S.W.3d at 385. The trial court did not abuse its discretion by refusing to allow appellant to voir dire the prospective jurors as requested. Point of error eight is overruled.

CHARGE ISSUES

In points of error one and one-A, appellant asserts that the trial court erred when it “judicially amended [the mitigation issue] by grafting the evidentiary requirements of [the future dangerousness issue] onto the mitigation issue.” He asserts that this error in the charge rendered the death-penalty statute unconstitutional as applied to him and violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, appellant complains of the following instruction given in the punishment charge:

In deliberating on Special Issue No. 1 [future dangerousness] and Special Issue No. 2 [mitigation], the Jury shall consider all the evidence admitted at the guilt or innocence phase and the punishment phase, including evidence of the defendant's background or character or circumstances of the offense that militates for or mitigates against imposition of the death penalty.

Appellant claims that the judge's change in the statutory language improperly allowed the jury to consider evidence supporting a death sentence as well as evidence mitigating against a death sentence when answering the mitigation issue. Thus, appellant claims his “vehicle for consideration of mitigation evidence [was] a legal shell void of a legitimate opportunity for a jury to grant ‘mercy’ in the context of a capital-murder sentencing.” In other words, appellant argues that Article 37.071, § 2(e)(1) requires the jurors to be informed that when deliberating on the mitigation issue, they should consider only that evidence that mitigates against imposition of the death penalty, as opposed to the charge that was given that instructed them to consider aggravating as well as mitigating evidence.

Appellant is correct that the judge slightly amended the statutory language when he included this instruction in the charge. Article 37.071, § 2(d)(1) requires a trial court to charge the jury that: in deliberating on the [future dangerousness and anti-parties] issues ... it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.

The trial court's amendment to the language of this instruction made it apply when the jury was deliberating on the mitigating issue as well as on the future dangerousness issue. Although this was an incorrect recitation of the statute, appellant failed to object to its inclusion in the charge. Thus, the record would have to show that appellant suffered egregious harm from any error in the instruction in order for this case to be reversed. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984)(op. on reh'g).

Article 37.071, § 2(e)(1) directs the court to instruct the jury to “tak[e] into consideration all of the evidence” when determining whether there are sufficient mitigating circumstance to warrant the imposition of a sentence of life imprisonment. This language was given to the jury. By its plain language, the statute requires the jury to look at all of the evidence and not just evidence a juror might consider to be mitigating. For example, victim-impact evidence may be relevant to counteract the mitigating evidence the defendant is entitled to introduce. See, e.g., Prystash v. State, 3 S.W.3d 522, 536 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000). Following appellant's analysis, none of this evidence would be admissible because it would be rendered irrelevant. This is not the law. Because the jury is entitled to consider all of the evidence, any improper addition to the language in the instruction did not harm appellant. Points of error one and one-A are overruled.

In points of error seven and seven-A, appellant claims that the trial court erred at punishment in failing to submit to the jury two charges he requested. Specifically, appellant asserts that the court should have submitted the following: 1. In answering [the mitigation issue], you are instructed to disregard any finding you made beyond a reasonable doubt against the mitigation issue related to [the future dangerousness issue]. In considering [the mitigation issue], you may not consider any negative finding previously made on the issue of mitigation. 2. To release on parole an inmate who is convicted of a capital felony who must serve 40 calendar years before becoming eligible for release on parole, all members of the board must vote on the release on parole of the inmate and at least two-thirds of the members must vote in favor of the release on parole. A member of the board may not vote on the release unless the member first receives a copy of a written report from the department on the probability that the inmate would commit an offense after being released on parole. During your deliberations, you will not consider or discuss any possible action of the Board of Pardons and Paroles or the Governor.

The future dangerousness question asks the jury to consider all of the evidence, including factors that a jury may consider aggravating, to determine whether there is a probability that a defendant will continue to commit criminal acts of violence which constitute a threat to society. The jury is also permitted, although not required, to consider this same evidence when deliberating on the mitigation issue. Hankins, 132 S.W.3d at 385; Mosley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

However, the factfinder's purpose differs when considering evidence in the context of each respective issue. Hankins, 132 S.W.3d at 385. In the context of the future dangerousness question, the jury considers all of the evidence in order to determine whether to “impose” the death penalty, whereas, in the context of the mitigation issue, the jury considers the evidence in order to determine whether the jury should “decline to impose” the death penalty. Hankins, 132 S.W.3d at 385-86. An affirmative finding on the future dangerousness question does not necessarily compel a negative answer on the mitigation question. Id. The trial court did not err in refusing the first requested issue.

Further, the trial court did not err in refusing the second requested issue. With the exception of the instruction explicitly set out in Article 37.071, § 2(e)(2)(B), parole is otherwise not a proper issue for jury consideration in capital cases. Id. The court's punishment charge tracked the Article 37.071, § 2(e)(2)(B) statutory language. The trial court did not abuse its discretion in denying appellant's requested charge. FN4 Points of error seven and seven-A are overruled.

FN4. Appellant also complains that the capital-punishment statute allows a jury to give full consideration to parole, in contrast to the noncapital-punishment statute which admonishes the jury that they are “not to consider the manner in which the parole law may be applied to this particular defendant” and provides that “evidence on the operation of parole and good conduct time laws” is not permitted. Compare Art. 37.071 with Art. 37.07. We do not address this argument since he did not complain about the charge on this basis at trial. Tex.R.App. Proc. 33.1.

EFFECTIVE ASSISTANCE OF COUNSEL

Appellant asserts in his third point of error that trial counsel rendered ineffective assistance of counsel by presenting punishment testimony “that established ... beyond a reasonable doubt” that he was a continuing threat to society. Specifically, appellant complains about the testimony of defense psychologist Gilda Kessner. Based upon studies of violence in the penitentiary setting, various statistical values, and extrapolation from the various data sources, Kessner testified that there was an “18.8% chance” that appellant would commit acts of violence in the penitentiary.

In his fourth point of error, appellant contends that his counsel rendered ineffective assistance when counsel presented testimony from S.O. Woods, the former assistant director of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID), that “delegitimatized a capital life sentence as a viable sentencing option.” Woods generally testified about how inmates are classified at TDCJ-ID. He also offered testimony on how he expected appellant to be classified. The State then used cross-examination to establish that a wide range of weapons are available to the inmates in the penitentiary system, and the penitentiary does not guarantee a violence-free environment.

The proper standard for reviewing an ineffective assistance of counsel claim was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this Court in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986). Under Strickland, an appellant must first demonstrate that his trial counsel's performance was deficient. Secondly, he must show that his counsel's deficient performance was so serious that it prejudiced his defense, rendering the trial unfair and the verdict suspect. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002); Chambers v. State, 903 S.W.2d 21, 33 (Tex.Crim.App.1995). The analysis is undertaken in light of the “totality of the representation” rather than by examining isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance. McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993).

Under most circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the strong presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. As this Court recently explained, rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: “[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id. A reviewing court can frequently speculate on both sides of an issue, but ineffective assistance claims are not built on retrospective speculation; rather, they must “be firmly founded in the record.” Id.

From the information available to us, we can only speculate as to why counsel acted or failed to act as they did. Id.; Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Without more, we must presume that counsel acted pursuant to a reasonable trial strategy. Id. Points of error three and four are overruled.

We affirm the judgment of the trial court. WOMACK, J., concurs.

Scheanette v. Office of Chief Disciplinary Counsel, Not Reported in F.Supp.2d, 2005 WL 3147874 (N.D.Tex. 2005) (Pro Se).

Scheanette v. Quarterman, 482 F.3d 815 (5th Cir. 2007) (Habeas).

Background: Following affirmance of state conviction for capital murder and sentence of death, and exhaustion of state post-conviction remedies, state prison inmate sought federal habeas relief. The United States District Court for the Northern District of Texas, John H. McBryde, J., 2006 WL 929334, denied petition, and denied request for certificate of appealability (COA). Inmate applied for COA before Court of Appeals.

Holdings: The Court of Appeals, W. Eugene Davis, Circuit Judge, held that: (1) defense attorney did not engage in ineffective assistance at penalty phase by introducing expert evidence related to future dangerousness; (2) Fourteenth Amendment claim arising from alleged misstatement of law in mitigation instruction was procedurally barred; (3) no prejudice resulted from alleged misstatement of law in mitigation instruction; (4) “all evidence” mitigation instruction did not violate Eighth Amendment; (5) future dangerousness instruction was not impermissibly vague; and (6) state's treatment of mitigation issue did not violate Sixth Amendment. Motion denied.

W. EUGENE DAVIS, Circuit Judge:

Convicted of capital murder and sentenced to death, Dale Devon Scheanette (“Scheanette”) petitions for a Certificate of Appealability (“COA”) from the district court's denial of federal habeas corpus relief. Because we find that reasonable jurists could not debate the propriety of the district court's decisions regarding Scheanette's multiple alleged constitutional errors, we deny Scheanette's application for a COA.

I. FACTS AND PROCEEDINGS

The district court summarized the facts in its opinion denying Scheanette's habeas corpus petition as follows:

On Christmas Eve of 1996, Norman and Brenda Norwood became worried about their twenty-year old niece, Wendie Prescott, when she failed to show-up for a planned shopping trip with her sister. Around 11:00 p.m., Norman went to Prescott's apartment, only to discover her naked body lying face down in a partially filled bathtub. Her neck, hands and feet were tied in duct tape, which trailed from her neck down behind her back to her hands and feet. The medical examiner believed that she had been bound in this fashion prior to death. The autopsy revealed that Prescott had been manually strangled, with the possibility that her immersion in the tub also played a role in her death. A sexual assault examination was conducted and sperm samples collected and preserved for DNA testing.

Though investigators found a high-quality dust print at Prescott's apartment, initial comparisons yielded no matches. In the summer of 2000, however, the print was resubmitted to the FBI computer system, which, through the use of new technology, was able to narrow the list of possible matches. One of the matches scored over 2500 points, almost a 1000 points more than the next highest score. A FBI analyst concluded the print found in Prescott's apartment matched the known print of Scheanette. This conclusion was later confirmed by two Arlington investigators. After obtaining a search warrant, officers obtained saliva samples from Scheanette. DNA testing matched the DNA extracted from these samples to the DNA extracted from Prescott's corpse with a statistical certainty of one in 763 million.

At the punishment phase, the State connected Scheanette to yet another capital murder, that of twenty-six year old Christine Vu. [The State also tied Scheanette to five brutal sexual assaults.]The State also introduced evidence that, while incarcerated awaiting trial, jail guards found concealed in Scheanette's cell a contraband triangular piece of plexiglass that could have been used as a weapon. Finally, the State introduced evidence of a burglary conviction from 1999.

During the punishment phase, various family members and a chaplain testified on Scheanette's behalf. A retired employee of the Texas Department of Criminal Justice, S.O. Woods, also testified concerning the security measures taken in prison for handling violent inmates. Finally, Dr. Gilda Kessner testified concerning Scheanette's future dangerousness.FN1. Scheanette v. Dretke, No. 4:05-CV-718-A, Memorandum Opinion and Order, 2006 WL 929334 (N.D.Tex. Apr. 10, 2006).

In January 2003, a Texas jury convicted Scheanette of capital murder and sentenced him to death for the murder of Wendi Prescott while in the course of committing or attempting to commit sexual assault on her. The Texas Court of Criminal Appeals (the “TCCA”) affirmed Scheanette's conviction and sentence. FN2 The Supreme Court denied Scheanette's pro se petition for writ of certiorari in January 2005.FN3 FN2. Scheanette v. State, 144 S.W.3d 503 (Tex.Crim.App.2004). FN3. Scheanette v. Texas, 543 U.S. 1059, 125 S.Ct. 872, 160 L.Ed.2d 785 (2005).

Scheanette subsequently initiated state habeas proceedings. The trial court entered findings of fact and conclusions of law recommending the denial of state habeas relief. However, on April 13, 2005, the TCCA remanded Scheanette's case to the trial court for the development of additional facts pertaining to his ineffective assistance of counsel claims.FN4. Ex parte Scheanette, No. WR-59,466-01, 2005 WL 913120 (Tex.Crim.App. Apr.13, 2005).

While his state application was pending before the TCCA, Scheanette filed a pro se federal habeas petition in the Eastern District of Texas. The case was transferred to the Northern District of Texas. The district court granted Director Dretke's motion to dismiss without prejudice so that Scheanette could exhaust all available state court remedies.FN5. Scheanette v. Dretke, No. 4:05-CV-489-A (N.D.Tex. Aug. 25, 2005).

After the TCCA denied all habeas relief,FN6 Scheanette filed a federal habeas petition in the district court. The district court denied relief. FN7 Scheanette filed a notice of appeal, which the district court construed as a request for certificate of appealability (“COA”), which was denied.FN8 Scheanette now petitions this court directly for a COA. FN6. Ex parte Scheanette, No. WR-59,466-01, 2005 WL 3429304 (Tex.Crim.App. Dec.14, 2005). FN7. Scheanette v. Dretke, No. 4:05-CV-718-A, Memorandum Opinion and Order, 2006 WL 929334 (N.D.Tex. Apr. 10, 2006). FN8. Scheanette v. Dretke, No. 4:05-CV-718-A, Order (N.D.Tex. Apr. 11, 2006).

*****

III. DISCUSSION

Scheanette requests a COA on seven separate claims. We review the claims in turn.

A. Claims One and Two

Scheanette argues that his defense counsel were constitutionally ineffective because they called two punishment phase witnesses, Dr. Gilda Kessner (“Dr. Kessner”) and S.O. Woods (“Woods”), whose testimony provided little or no benefit to the petitioner, but rather helped the State establish his future dangerousness.

To establish ineffective assistance of counsel, Scheanette must satisfy the two-prong test set forth in Strickland v. Washington.FN21 First, Scheanette must show that his counsel's performance was deficient.FN22 We determine whether counsel's performance was deficient “by examining whether the challenged representation fell below an objective standard of reasonableness.”FN23 “ Strickland does not allow second guessing of trial strategy and must be applied with keen awareness that this is an after-the-fact inquiry.”FN24 Therefore, Scheanette must overcome a strong presumption that his counsel's conduct falls within the wide range of reasonable professional assistance.FN25

FN21. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). FN22. Id. FN23. Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir.2003) (citing Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir.1999)). FN24. Granados v. Quarterman, 455 F.3d 529, 534 (5th Cir.2006). FN25. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

To prevail, Scheanette must also show that his counsel's deficient performance was prejudicial, i.e., that the errors were so serious as to “deprive [him] of a fair trial, a trial whose result is reliable.”FN26 But because, as will be discussed immediately below, no reasonable jurist could debate the district court's conclusion that Scheanette's counsel rendered adequate performance, we will not consider whether the alleged errors Scheanette relies on could have prejudiced his defense. FN26. Id. at 687, 104 S.Ct. 2052.

In light of the horrendous evidence the state produced against Scheanette, defense counsel sought to offer mitigating evidence to support an argument that Scheanette would not pose a future danger if given a life sentence. Counsel presented testimony from Scheanette's sister, Scheanette's mother, and a chaplain concerning positive evidence of Scheanette's background and character. Defense counsel also presented the testimony of Dr. Kessner regarding risk assessment evidence, which focused on the statistically low probability of prison violence. In defense counsel's “strategic view, evidence, such as risk assessment, that focused on statistically low prison violence, would enhance [the] theme that the jury would not have to kill” Scheanette.FN27

On direct examination, Dr. Kessner testified that there was an 18.8% chance that Scheanette would commit acts of violence in prison, which was just over the standard base rate of 16.4% for all individuals serving life sentences for murder. Dr. Kessner also testified concerning Scheanette's decreased risk factors, such as his age, and remarked on Scheanette's good family support network, average intelligence, and vocational ability. Dr. Kessner noted that Scheanette was among other inmates when he was in county jail, and he did not exhibit assaultive behavior. In its closing arguments, the State argued that the 18.8% figure provided by Dr. Kessner is a “ probability that the defendant would commit criminal acts of violence,” as required by Tex.Code Crim. Proc. Ann. art. 37.071, § 2(b); and therefore, the jurors “know what the answer to the [future dangerousness] question is.” FN27. Affidavit of defense counsel, David A. Pearson.

As additional mitigation evidence, defense counsel presented the testimony of Woods regarding institutional evidence, which emphasized the heightened security provided for prisoners such as Scheanette. Defense counsel “concurred with the leading capital litigators that Woods would appeal well to a practical juror who would be impressed with the professional expertise of the Institutional Division at controlling life sentenced offenders.”FN28

On direct examination, Woods generally testified about how inmates are classified at the Texas Department of Criminal Justice (“TDCJ”). He also testified that, if sentenced to life in prison, Scheanette would likely be assigned to a high-risk “level-five” security institution. The State then used cross-examination to establish that a wide range of weapons are available to the inmates in the penitentiary system, and the penitentiary does not guarantee a violence-free environment. The prosecutor also elicited testimony that a shank found in Scheanette's cell at the Dallas County jail is a stabbing/puncture instrument.FN29

On re-direct, Woods testified that the shank led to a disciplinary infraction which must be reported under state law when Scheanette is transferred such that the classification committee would take it into consideration. FN28. Affidavit of defense counsel, David A. Pearson. FN29. Scheanette also complains of the following testimony elicited on cross-examination:

Q. [The Prosecutor]: From your review of the reports, did it appear to you that Dale Scheanette had exercised a level of planning in each of these cases? A. [Woods]: Very much so. Q. [The Prosecutor]: Just like the Texas Seven? A. [Woods]: Very similar.

The TCCA reviewed these claims on direct appeal and found the record insufficient to support a claim of ineffective assistance of counsel. FN30 In reaching its conclusion, the TCCA presumed that defense counsel acted pursuant to a reasonable trial strategy. On state habeas review, the convicting court made findings of fact and conclusions of law concerning Scheanette's allegations of ineffective assistance of counsel and found that defense counsel had “sound and strategic tactical reasons for introducing” the expert testimony of Woods and Dr. Kessner. The TCCA adopted all of the trial judge's findings and conclusions.FN31

FN30. Scheanette v. State, 144 S.W.3d at 510. FN31. Ex parte Scheanette, No. WR-59466-01, 2005 WL 3429304.

After considering Scheanette's arguments, the federal district court also denied relief, concluding that Scheanette failed to meet either Strickland prong. Regarding deficient performance, the court concluded that trial counsel objectively employed a reasonable strategy and it was “at a loss as to what other types of evidence ... counsel could have introduced on his behalf to rebut the existing evidence as to his future dangerousness,” given the State's evidence establishing Scheanette as a brutal murderer and serial rapist.

The state court reasonably concluded that Scheanette's defense counsel did not render ineffective assistance by offering the punishment phase testimony of Woods and Dr. Kessner. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”FN32 In light of the thorough investigation conducted by Scheanette's trial counsel,FN33 we conclude that these carefully considered tactical decisions introduced at the punishment phase were objectively reasonable. Scheanette has not demonstrated that the state court's decision is contrary to, or an unreasonable application of, clearly established federal law. Accordingly, the district court's assessment was not debatable.

FN32. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (internal citation and quotations omitted). FN33. For example, defense counsel employed a mitigation specialist, and obtained mental health and juvenile records in an attempt to uncover potential mitigation evidence. Defense counsel Pearson attended a seminar focused on presenting risk assessment evidence and personally observed the use of such risk assessment evidence in capital cases.

In addition, a featured speaker at the seminar recommended that litigators present the institutional evidence offered by Woods and Pearson knew that two defense attorneys had been successful in obtaining a life sentence in a death penalty case using similar evidence. In preparation for Woods's testimony, Pearson read a transcript of Woods's testimony in another capital case and also personally observed Woods's testimony in a capital case.

B. Claim Three

For the first time, Scheanette argues that his defense counsel were ineffective for failing to object to an instruction limiting the statutory effect of the mitigation special issue.FN34. Specifically, the jury was instructed that: In deliberating on Special Issue No. 1 and Special Issue No. 2, the Jury shall consider all of the evidence admitted at the guilt or innocence phase and the punishment phase, including evidence of the defendant's background or character or circumstances of the offense that militates for or mitigates against imposition of the death penalty.

We need not consider whether jurists of reason would find the district court's resolution of this issue debatable because Scheanette did not first raise this claim in the district court.FN35 We have stated that “[a] district court must deny the COA before a petitioner can request one from this court.” FN36 Thus, prior to appellate review, the district court must “deny COA as to each issue presented by the applicant.”FN37 Because Scheanette failed to seek a COA from the district court on this issue, we will not consider the issue.FN38

FN35. See Brewer v. Quarterman, 466 F.3d 344, 346 (5th Cir.2006). FN36. Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.1998) (internal citation and quotations omitted). FN37. Id. FN38. Scheanette's claim also fails on the merits because the two-prong Strickland test is not satisfied. Assuming that prong one of Strickland is satisfied by trial counsel's failure to object to the instruction, Scheanette was not prejudiced because the instruction gave adequate guidance to the jury to consider both aggravating and mitigating evidence when determining its response to the special issues.

C. Claim Four

In his fourth claim, Scheanette argues that the trial court violated his Eighth and Fourteenth Amendment rights when its instruction went beyond the language of the mitigation special issue (Special Issue No. 2). Specifically, the jury was instructed that:

In deliberating on Special Issue No. 1FN39 and Special Issue No. 2, the Jury shall consider all of the evidence admitted at the guilt or innocence phase and the punishment phase, including evidence of the defendant's background or character or circumstances of the offense that militates for or mitigates against imposition of the death penalty. FN39. Special Issue No. 1 is the future dangerousness special issue.

Scheanette argues that, contrary to the instruction, the statute requiring the jury to consider the special mitigation issue prohibits the jury-in its consideration of this issue-from considering evidence that militates for the death penalty. Tex.Code Crim. Proc. art. 37.071, § 2(e)(1) requires Texas juries in capital cases to answer the following question on mitigation:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.FN40. Tex.Code Crim. Proc. art. 37.071, § 2(e)(1) (emphasis added).

On direct appeal, Scheanette argued, as he does now, that the charge in question violated his Eighth and Fourteenth Amendment rights.FN41 However, before the district court, Scheanette argued violations of the Sixth and Fourteenth Amendments. Because Scheanette did not first request a COA from the district court on Eighth Amendment grounds, we will not consider his claim in that regard.FN42

FN41. See Scheanette v. State, 144 S.W.3d at 507. FN42. See Whitehead, 157 F.3d at 388.

Scheanette's Fourteenth Amendment claim is procedurally barred. A federal habeas court “will not consider a claim that the last state court rejected on the basis of an adequate and independent state procedural ground.” FN43 Scheanette failed to object to the jury charge at the time of trial. We have recognized a federal petitioner's failure to comply with the Texas contemporaneous objection rule as an adequate and independent state procedural bar to federal habeas review.FN44

FN43. Busby v. Dretke, 359 F.3d 708, 718 (5th Cir.2004)(citing Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). FN44. See Rowell v. Dretke, 398 F.3d 370, 375 (5th Cir.2005); Graves v. Cockrell, 351 F.3d 143, 152 (5th Cir.2003).

On direct appeal, the TCCA specifically stated that because Scheanette failed to object to the jury instruction, he would have to show egregious harm from any error in the instruction in order to obtain relief.FN45 The TCCA found no harm from the instruction because the jury was entitled under the law to consider all of the evidence in determining its answer to the mitigation issue. For this reason, the TCCA denied Scheanette's claim. On state habeas review, the TCCA adopted the trial court's conclusion that Scheanette's claim was “not cognizable because the issue[ ] had already been raised and rejected on direct appeal.”FN46

After recognizing that Scheanette failed to object to the jury charge in the trial court, the district court agreed with the TCCA that any improper language in the jury instruction did not harm Scheanette, and thus, concluded that Scheanette failed to show that the TCCA's decision was contrary to, or involved an unreasonable application of, clearly established federal law. FN45. Scheanette v. State, 144 S.W.3d at 507. FN46. See Ex parte Scheanette, No. WR-59,466-01, 2005 WL 3429304. This issue was designated as points of error twenty-one and twenty-two in Scheanette's state habeas application.

As a result, Scheanette's Fourteenth Amendment challenge to the jury instruction is procedurally barred unless Scheanette can show cause and actual prejudice for the default or that failure to address the merits of the procedurally defaulted claim will work a fundamental miscarriage of justice. FN47 Scheanette has failed to show cause for his counsel's failure to object.FN48 In addition, even assuming Scheanette could show cause for his default, he is unable to show any resultant prejudice because, as stated by the TCCA on direct appeal:

FN47. Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. 2546. FN48. Scheanette now raises a Strickland claim regarding this issue. However, he does not allege his counsel's ineffectiveness as cause to excuse the procedural default. Regardless, a constitutional claim alleged as cause for a procedural default must itself be exhausted; and, as previously discussed, Scheanette's ineffective assistance of counsel claim in this regard is unexhausted. See Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

Article 37.071, § 2(e)(1) directs the court to instruct the jury to “tak [e] into consideration all of the evidence ” when determining whether there are sufficient mitigating circumstance[s] to warrant the imposition of a sentence of life imprisonment. By its plain language, the statute requires the jury to look at all of the evidence and not just evidence a juror might consider to be mitigating.FN49 Scheanette v. State, 144 S.W.3d at 507-08 (emphasis in original).

Scheanette has offered no contrary clearly established federal law to dispute this finding. Furthermore, Scheanette presents no evidence indicating that our dismissal of this claim for procedural default would work a “fundamental miscarriage of justice.” As a result, reasonable jurists could not debate whether the district court was correct in its ruling of procedural default. FN50. Even if Scheanette's claim was not procedurally barred, the state court's resolution of the issue raised by Scheanette did not involve an unreasonable application of federal law. No clearly established federal law supports Scheanette's argument that the jury is precluded from considering all of the evidence when determining its answer to the mitigation special issue, and we have never adopted such a rule. At most, the judge's amendment to the mitigation instruction amounts to a violation of the Texas statute, and not a constitutional violation.

D. Claim Five

Scheanette argues that the mitigation instruction was not effective in telling the jury how to consider the mitigating evidence because it sent “mixed signals” in violation of the Eighth Amendment as interpreted in Penry v. JohnsonFN51 (“ Penry II”). More specifically, Scheanette argues that the amended jury instruction prevented the jury from considering and giving effect to any mitigating evidence when answering the mitigation special issue, and that any mitigating evidence could not be given effect in the future dangerousness special issue. FN51. 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).

On direct appeal, the TCCA noted that it had “previously addressed and rejected this claim,” and denied Scheanette relief.FN52 On state habeas review, the TCCA adopted the trial court's conclusion that this claim was not cognizable because the issue was already raised and rejected on direct appeal. FN53 The federal district court concluded that Scheanette “failed to show that the complained-of instructions were contrary to, or involved an unreasonable application of, clearly established federal law.”FN54 Specifically, Scheanette failed to persuade the court that the jury was not able to consider and give effect to his mitigating evidence, as required by Penry II.FN55 Reasonable jurists could not debate the district court's decision.

FN52. Scheanette v. State, 144 S.W.3d at 506. FN53. Ex parte Scheanette, No. WR-59,466-01, 2005 WL 3429304 (Tex.Crim.App. Dec.14, 2005). FN54. Scheanette v. Dretke, No. 4:05-CV-718-A, Memorandum Opinion and Order (N.D.Tex. Apr. 10, 2006). FN55. Id.

In Penry II the Supreme Court reiterated its previous holding in Penry v. Lynaugh FN56 (“ Penry I ”) that the key is “that the jury be able to ‘ consider and give effect to [a defendant's mitigating] evidence in imposing sentence.’ ”FN57 In order to grant relief on a Penry I claim, this court must determine: “(1) whether the mitigation evidence has met the low threshold for relevance, and, if so, (2) that the evidence was beyond the effective scope of the jury.”FN58

FN56. 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). FN57. Penry II, 532 U.S. at 797, 121 S.Ct. 1910 (citing Penry I, 492 U.S. at 319, 109 S.Ct. 2934) (emphasis in original). FN58. Bigby v. Dretke, 402 F.3d 551, 564-65 (5th Cir.2005) (internal citation and quotations omitted).

The Supreme Court defined relevant mitigating evidence as “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.”FN59 Scheanette presented testimony from Dr. Kessner and from Woods, both concerning Scheanette's future dangerousness; and testimony from Scheanette's sister, a chaplain, and Scheanette's mother to provide positive evidence of Scheanette's background and character. “Relevant mitigating evidence does not have to be linked to his conduct, but only show that it could lead a jury to find that a sentence other than death is warranted.”FN60 Applying the low threshold articulated by the Supreme Court in Tennard v. Dretke,FN61 it is clear that the evidence submitted by Scheanette constitutes relevant mitigating evidence.

Thus, Scheanette must have been-and was-allowed to present this evidence to the jury. We now turn to Scheanette's contention concerning the constitutionality of the jury instruction given by the trial judge during the sentencing phase. A mere possibility that the jury was precluded from considering mitigating evidence does not establish Penry I error. FN62 “[T]he proper inquiry ... is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.”FN63

FN62. See Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). FN63. Id.; see Saffle v. Parks, 494 U.S. 484, 490-92, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).

We conclude that the jury was able to consider and give effect to Scheanette's relevant mitigating evidence. In Scheanette's case, the jury was required to answer the following special issues:

Special Issue No. 1

Do you find the evidence beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?

Special Issue No. 2

Taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character or background, and the personal moral culpability of the defendant, do you find that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?

Unlike Penry II, the trial judge's instruction in this case did not suggest to the jury that it should provide false answers to either of these special issues. Scheanette's claim that the instruction in effect “nullified” the mitigation special issue is unsupported. As discussed above, in determining its answer to the mitigation issue, the jury was entitled to consider all of the evidence. In addition, we have no reason to believe that the jury was confused or misled in answering the mitigation special issue.

Moreover, even assuming that Scheanette is correct that the instruction “nullified” the mitigation special issue, Scheanette's mitigating evidence could be considered and given effect under the future dangerousness special issue.FN64 Specifically, the testimony of Woods addressing the rigorous security measures at TDCJ and Dr. Kessner regarding Scheanette's relative likelihood of committing a serious violent act in prison over the course of a capital life term could be fully considered within the future dangerousness special issue. In addition, Scheanette's familial and chaplain mitigation testimony is good character evidence, recognized as falling within the future dangerousness special issue.

FN64. See Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (“We believe that there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination.”); Graham v. Collins, 506 U.S. 461, 475-76, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (holding that Texas special issues permitted jurors to consider mitigating evidence of youth, family background and positive character under future dangerousness issue); Franklin v. Lynaugh, 487 U.S. 164, 178, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality opinion) (finding that petitioner's evidence of a good disciplinary record during his period of incarceration was “fully considered by the jury when it was asked to answer the [future dangerousness] [i]ssue”); see, e.g., Newton v. Dretke, 371 F.3d 250, 256-257 (5th Cir.2004) (youth, good character, church attendance, cooperation with police, unfaithful/drug dealing spouse, and impoverished background); Beazley v. Johnson, 242 F.3d 248, (5th Cir.2001) (good character); Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir.1999) (positive character traits); James v. Collins, 987 F.2d 1116, 1121-22 (5th Cir.1993) (cooperation with police, remorse, impoverished and abusive family history, positive familial ties despite troubled upbringing); Barnard v. Collins, 958 F.2d 634, 640-41 (5th Cir.1992) (good character, including evidence of carpentry skills, work history, and familial responsibility and support).

In sum, the state court's decision was neither contrary to, nor an unreasonable application of, federal law. As a result, reasonable jurists would not debate the district court's resolution of this issue.

E. Claim Six

In claim six, Scheanette argues that his death sentence offends due process of law because the future dangerousness issue dilutes the State's burden of proof and fails to define “probability.” The future dangerousness issue instructed the jury to answer the following question:

Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society?FN65. Tex.Code Crim. Proc. art. 37.071, § 2(b)(1) (emphasis added).

On state habeas review, the TCCA adopted the findings of the state trial court that this claim is procedurally defaulted because Scheanette failed to raise the claim on direct appeal.FN66 Procedural default aside, the state trial court further found that state law precedent precluded relief. FN66. Ex parte Scheanette, No. WR-59,466-01, 2005 WL 3429304.

The district court agreed with the TCCA that this claim was procedurally defaulted because Scheanette did not raise the claim on direct appeal and Scheanette failed to show cause and prejudice for his default or that failure to consider this claim would result in a fundamental miscarriage of justice. The district court also addressed the merits of Scheanette's claim, concluding that the state court's substantive resolution of the issue did not involve an unreasonable application of federal law because submission of the future dangerousness issue to a jury in a capital case had been specifically held constitutional by the Supreme Court, and thus, acceptance of Scheanette's argument was barred by Teague v. Lane.FN67 Moreover, the court noted that this court has “repeatedly rejected attacks on a court's failure to define ‘probability’ in this context on the ground that such term is not constitutionally vague.” FN67. 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

Reasonable jurists could not debate the district court's dismissal of Scheanette's claim on grounds of procedural default. Texas law requires that a petitioner must raise a claim on direct appeal before it can be raised on state habeas,FN68 and this rule is an “adequate state ground capable of barring federal habeas review.”FN69 In addition, the Texas court's alternative resolution of this claim was neither contrary to, nor an unreasonable application of, federal law. The future dangerousness issue has been held constitutional by the Supreme CourtFN70 and we have repeatedly held that the term “probability” as used in the Texas special issue is not so vague as to require additional instructions (such as definition by the court). FN71 As a result, reasonable jurists could also not debate the district court's dismissal of Scheanette's claim on substantive grounds. FN68. See Ex parte Townsend, 137 S.W.3d 79, 81-82 (Tex.Crim.App.2004); Ex parte Nelson, 137 S.W.3d 666, 668 (Tex.Crim.App.2004). FN69. See Busby v. Dretke, 359 F.3d at 719. FN70. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); see Rowell v. Dretke, 398 F.3d at 379. FN71. See, e.g., Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir.1996); James v. Collins, 987 F.2d at 1120 & n. 5.

F. Claim Seven

Lastly, Scheanette relies on Apprendi v. New JerseyFN72 and Ring v. ArizonaFN73 to argue that the Texas mitigation special issue is unconstitutional because it does not require the prosecution to prove the nonexistence of mitigating factors beyond a reasonable doubt.FN74

FN72. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). FN73. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). FN74. In particular, Scheanette asserts violations of the Sixth, Eighth, and Fourteenth Amendments. Scheanette refers to a Fifth Amendment violation in the title of this claim, but refers to violations of the Sixth, Eighth, and Fourteenth Amendments in his closing remarks. If Scheanette is now arguing a Fifth Amendment violation, Scheanette's Fifth Amendment claim is waived because he did not seek a COA from the district court on this basis. See Brewer v. Quarterman, 466 F.3d at 346.

On direct appeal, the TCCA denied relief on this claim, finding that it had “previously addressed and rejected this argument.”FN75 On state habeas review, the TCCA adopted the state trial court's conclusions that this claim be denied because it had already been raised and rejected on direct appeal; and because the TCCA had already ruled on and rejected this claim. The district court also denied relief on this claim, concluding that because neither Apprendi nor Ring require a mitigating factor to be established beyond a reasonable doubt, Scheanette failed to identify any erroneous or unreasonable application of clearly established federal law. FN75. Scheanette v. State, 144 S.W.3d at 505 (citing Hankins v. State, 132 S.W.3d 380, 386 (Tex.Crim.App.2004)).

Reasonable jurists would not debate the district court's dismissal of this claim because it has been previously rejected in both stateFN76 and federal court, and is not supported by Supreme Court authority. FN76. The TCCA has previously remarked that “the burden is implicitly placed upon the [defendant] to produce and persuade the jury that circumstances exist which mitigate against the imposition of death ...;” and the court is “unaware of any constitutional requirement that the burden of proof regarding mitigating evidence be placed on either party, and to the extent that the burden is on [the defendant], we note that it is not unconstitutional to so place the burden.” Lawton v. Texas, 913 S.W.2d 542, 557 (Tex.Crim.App.1995) (en banc); see Hankins, 132 S.W.3d at 386.

We have specifically held that the Texas death penalty scheme did not violate either Apprendi or Ring by failing to require the state to prove beyond a reasonable doubt the absence of mitigating circumstances.FN77 In Granados v. Quarterman, we stated that “the state was required to prove beyond a reasonable doubt every finding prerequisite to exposing [the defendant] to the maximum penalty of death,”FN78 and we concluded that “a finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death.”FN79 In sum, the Texas court's denial of relief was neither contrary to, nor an unreasonable application of, federal law. As a result, reasonable jurists would not debate the district court's dismissal of Scheanette's claim.

IV.

For the foregoing reasons, we DENY the motion for a Certificate of Appealability. MOTION DENIED.