Texas Man Executed for Murder of Supermarket Owner

Txexecutions.org

Billy Frank Vickers, 58, was executed by lethal injection on 28 January 2004 in Huntsville, Texas for the murder of a man during an attempted robbery.

On 12 March 1993, Phillip Kinslow, 50, drove home from the convenience store that he owned in Arthur City. In his truck, he carried a bag containing the day's receipts. He also carried a .38-caliber revolver.

When Kinslow stopped to open the gate to his property, he was ambushed by Vickers, then 47, and Tommy Perkins, 40. Vickers was armed with a revolver. When Vickers demanded the money, he and Kinslow exchanged gunfire. Kinslow was hit once in the chest and twice in the right arm.

He got back into his truck and drove toward the house. Kinslow's wife, Dania, hearing the gunfire, looked outside and watched her husband veer off the road and crash into a tree. Kinslow died of his wounds at a local hospital.

The next day, police received a report of a suspicious person about two miles from Kinslow's residence. Upon arrival, officers found Vickers walking with the help of makeshift crutches constructed from tree branches. He had been shot twice in the left leg.

A bullet recovered from Vickers' knee was confirmed to have been fired from Kinslow's .38-caliber handgun. Investigators also found a hat and a roll of duct tape in a wooded area near Kinslow's gate. The hat contained some of Vickers' hairs. Upon searching Vickers' residence, police found several .22-caliber long rifle cartridges that were of the type that killed Kinslow.

At Vickers' trial, Jason Martin testified that he, Vickers, and Tommy Perkins had plotted to rob Phillip Kinslow. Martin testified that the three of them had gone to Kinslow's store on at least four occasions to prepare for the robbery, noting what time the lights were turned off and what time Kinslow left for home.

On one occasion, they followed Kinslow home in order to discover where he lived. After a few more visits to Kinslow's property, they decided that the gate would be a good place for an ambush.

Martin testified that on the day of the murder, he drove Vickers and Perkins to Kinslow's property, dropped them off, and drove to a vacant lot.

Their plan was for Vickers and Perkins to rush Kinslow at the gate, tie him up with duct tape, take the pickup, and drive to the vacant lot. There, they would take the money bag and leave the victim's truck, making their getaway in Martin's truck.

Martin testified that he heard a gunshot and waited for Vickers and Perkins, but they didn't come. He drove around for hours trying to find them, but never saw either one of them. The next morning, Perkins came to Martin's house and told him that Kinslow had a gun and that he and Vickers shot each other.

Vickers had a lengthy criminal record, with convictions for burglary, arson, and aggravated assault with a deadly weapon. He had been in and out of prison four times.

A jury convicted Vickers of capital murder in October 1993 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in December 1996. All of his subsequent appeals in state and federal court were denied.

Tommy Perkins Jr. was convicted of capital murder and sentenced to life in prison. In exchange for his testimony, Jason Paul Martin pleaded guilty to aggravated robbery with a deadly weapon and received a 25-year sentence. Both men are still in custody at this writing.

Vickers had previously been scheduled for execution on 9 December 2003. That day, his lawyer filed a lawsuit in federal court, challenging the constitutionality of lethal injections involving the chemical pancuronium bromide. A lower court rejected the lawsuit, and as of midnight, the U.S. Fifth Circuit Court of Appeals had not yet made a ruling.

Even though no stay had been issued, the Huntsville warden decided, upon the advice of Texas Attorney General Greg Abbott, not to execute Vickers that evening. The Fifth Circuit and the U.S. Supreme Court later rejected the lawsuit, and Vickers' trial judge signed a new death warrant for 28 January 2004.

Vickers' attorney, Keith Hampton, told a reporter that the state's failure to execute his client on the scheduled date amounted to cruel and unusual punishment. "They prepared Vickers for death, the motion to stay his execution had been denied, and he had to wonder until midnight whether or not he was going to be executed. ... It violated the Eighth Amendment," Hampton said. Hampton filed a motion to attempt to halt Vickers' execution a second time, but the U.S. Supreme Court rejected that appeal Wednesday afternoon. "I'm innocent," Vickers told a reporter from death row. "I never confessed to shooting anyone."

In his last statement, Vickers admitted to killing Phillip Kinslow. "It was nothing personal, I was just trying to make a living," he said. Vickers then took credit for more than a dozen other killings. "I'm sorry, but I am not sure how many. There must be a dozen or 14, I believe, all total." He only mentioned one specific case: "One I would like to clear up his Cullen Davis, where he was charged with shooting his wife," Vickers said, without elaborating. Davis, a former Texas oil millionaire, was tried and acquitted of killing his 12-year-old stepdaughter in 1976. Davis's wife, Priscilla, was also shot, and her boyfriend was killed.

"I wish to say to my family, I'm sorry for all the grief I've put you through," Vickers added. He was pronounced dead at 6:21 p.m.

Jack Strickland, a former prosecutor who worked on the Cullen Davis case, said that he had never heard of Vickers and doubted that he was involved in the shooting. "I certainly don't put any stock in it, not the slightest bit," Strickland said.

Texas Executes Inmate After Surprise Confession

Reuters News

Wed. January 28, 2004

HUNTSVILLE, Texas (Reuters) - A Texas inmate was executed by lethal injection on Wednesday for a 1993 slaying but not before making the surprise confession he was a hired killer who had played a part in the murder of about a dozen other people.

Billy Frank Vickers, while strapped to a gurney in the Texas death chamber, told execution witnesses, "Down through the years there were several more that I had done or had a part of ... there must be a dozen or 14, I believe, all total." Prison spokeswoman Michelle Lyons said authorities did not know if he was telling the truth. "We have no idea yet," she said.

Vickers, saying he would "like to clear some things up," tried to exonerate two accomplices to his crime, an inmate imprisoned for a separate killing and even Texas millionaire Cullen Davis, who was tried for the murder of his wife and acquitted in a notorious 1970s case.

Vickers, 58, said he or someone else committed the crimes for which they were accused or convicted. He said he had been paid to kill people, including the man for whose murder he was executed. "And all of these, it was never nothing personal. It was just something I did to make a living. I am sorry for all the grief I have caused," he said.

Vickers was condemned for shooting to death Phillip Winslow on March 12, 1993, while robbing him outside his Arthur City home in northeastern Texas. Winslow, 50, who had a gun, shot back before he died, wounding Vickers in the knee. Accomplices Tommy Perkins and Jason Martin were sentenced to life in prison and 25 years, respectively.

Vickers had been set to die in December but got a reprieve because of a last-minute appeal charging lethal injection constituted cruel and unusual punishment. It was later rejected in the federal courts and a new execution date was set.

He was the fourth person put to death this month in Texas, which leads the nation in executions with 317 since 1982.

For his final meal, Vickers requested a four-egg omelet with cheese and onions, a bowl of chili, four slices of fried bologna, four pieces of toast, four slices of cheese, fried potatoes with a bowl of gravy, sliced tomato, hot coffee and black walnut or vanilla ice cream.

Billy Vickers (TX) - Jan. 28

The state of Texas is scheduled to execute Billy Vickers, Jan. 28, for the 1993 murder of Phillip Kinslow in Lamar County. Vickers, a white man, allegedly shot and killed Phillip Kinslow while attempting to rob him and take his car.

Vickers argues that he had ineffective counsel during his trial. It has been shown time and time again that in many states, public defenders do not have the experience, knowledge, and ability to argue capital murder cases. In addition, the evidence against Vickers was circumstantial. Perkins, one of Vickers’ accomplices, testified against him saying he saw Vickers shoot Kinslow. However, Perkins, who was involved in the robbery aspect of the crime, was the only alleged witness. And although Perkins’ girlfriend testified against Vickers as well, her testimony was considered hearsay.

A recent study of Texass state-appointed lawyers has found a state of disgrace: In 39 percent of the cases, appeals lawyers made no apparent effort to investigate the cases against their clients to determine whether the defendants were improperly convicted or possibly innocent. Incompetent and inexperienced lawyers were routinely appointed to handle cases, including one with a cocaine problem and another with bipolar disorder. In the case of Leonard Rojas, executed one year ago, his lawyer admitted that he was under three separate probations from the State Bar while representing Rojas – all for mishandling other clients because he was on medication for bipolar disorder.

These findings are shocking, and one more example of how the system revictimizes those who are already suffering from poverty, abuse, and mental illness.

Vickers is one of three Texans set to be executed in a three-day span in December. This is another example of Texas’ enthusiastic use of capital punishment. Please contact Governor Perry and urge him to support a moratorium on executions in Texas as well as a re-evaluation of the state’s death penalty system.

Vickers Executed After Second Trip to Death House

Houston Chronicle

AP - Jan. 28, 2004

HUNTSVILLE -- Condemned inmate Billy Frank Vickers, expressing remorse and taking credit for more than a dozen other killings, was executed this evening for the slaying of a North Texas grocery store owner during a botched robbery almost 11 years ago. Vickers, 58, acknowledged fatally shooting Phillip Kinslow, 50, near his home outside Arthur City, about 100 miles northeast of Dallas on March 12, 1993. In December, Vickers insisted he wasn't responsible for Kinslow's death.

"It was nothing personal, I was just trying to make a living," Vickers said. "I wish to say to my family, I'm sorry for all the grief I've put you through," he said after he was strapped to the death chamber gurney.

Vickers then said there were "several more that I had done or that I had been a part of, and I'm sorry but I am not sure how many. There must be a dozen or 14, I believe, all total."

He died at 6:21 p.m., six minutes after lethal dose began. It was his second visit to the death house in about seven weeks. On Dec. 9, he spent about 10 hours in a small holding cell just outside the death chamber while the courts considered an appeal challenging the constitutionality of the lethal drug combination used in executions.

When the appeal was not resolved by midnight, six hours after he was scheduled to die, the execution warrant expired and Vickers was returned to death row. It marked the first time since Texas resumed carrying out capital punishment in 1982 that a condemned inmate's death warrant expired without a reprieve or without his death.

According to testimony at his trial, Vickers, who had a lengthy criminal record, was the mastermind of a plot to rob Kinslow, who was known to carry the day's receipts home from his rural grocery store. What Vickers and a pair of accomplices didn't know was that Kinslow also carried a gun. Instead of fleeing with cash, Vickers was shot three times and Kinslow was fatally shot in the chest. "He was limping down the road when we found him," McCoy said of Vickers, who was hobbling on makeshift crutches about two miles from the shooting scene.

"Kind of at first, he denied it," the sheriff said. "He finally broke down a week or so later, said he was there." A bullet in Vickers' knee came from Kinslow's .38-caliber pistol. His shoe print was found at Kinslow's gate. A hat found nearby had hairs that matched his hair. And .22-caliber hollow-point shells found at his home matched the bullets fired at Kinslow.

Vickers first went to prison in 1967 with a 2 1/2-year term for burglary. Then he picked up at least two more burglary convictions, plus multiple arson convictions and a federal gun possession conviction.

Tommy Perkins, 51, also with Vickers at the Kinslow shooting scene, received life in prison. Jason Martin, 34, the getaway driver waiting nearby when the gunfire erupted, got 25 years.

Inmate Spared Last Month is Executed

By Michael Graczyk - Fort Worth Star-Telegram

Associated Press - January 28, 2004

HUNTSVILLE, Texas -- Condemned inmate Billy Frank Vickers, expressing remorse and taking credit for being involved in more than a dozen other killings was executed Wednesday evening for the slaying of a grocery store owner during a botched robbery.

Vickers, 58, acknowledged fatally shooting Phillip Kinslow, 50, near his home outside Arthur City, about 100 miles northeast of Dallas on March 12, 1993. In December, Vickers insisted he was innocent. "It was nothing personal; I was just trying to make a living," Vickers said. "I wish to say to my family: I'm sorry for all the grief I've put you through," he said after he was strapped to the death chamber gurney. Vickers then said there were "several more that I had done or that I had been a part of, and I'm sorry but I am not sure how many. There must be a dozen or 14, I believe, all total."

He specifically mentioned his involvement in the Cullen Davis case in Fort Worth. The former Texas oil millionaire was accused and later acquitted of killing his stepdaughter in 1976. "One I would like to clear up is Cullen Davis - where he was charged with shooting his wife," Vickers said.

In 1976, Davis was charged with killing his second wife's 12-year-old daughter at his Fort Worth mansion. Priscilla Davis, his second wife, who died in 2001 of unrelated causes, was among the wounded. Her boyfriend was killed. Cullen Davis was acquitted of his stepdaughter's murder and was later acquitted of murder-for-hire charges in a separate case.

Jack Strickland, a former prosecutor who worked on the Davis case, said Wednesday night that he had never heard of Vickers and doubted that he was involved in the 1976 shooting. "For some perverse reason known only to him (Vickers), he once again screwed with the system. I certainly don't put any stock in it, not the slightest bit," Strickland said. At the time, Davis was worth an estimated $400 million and believed to be the richest man to stand trial on murder charges. "All of these it was never nothing personal," Vickers said, without elaborating on what may have been his role in the Davis case. "It was just something I did to make a living."

He also specifically referred to an inmate serving a life term for a murder in Lamar County, but said the inmate's father was responsible. "I did not do it, but I was with his daddy when it was done," he said. "I am sorry for all the grief I have caused. I love you all. That is all I have to say."

Six minutes later, at 6:21 p.m., he was pronounced dead. Relatives and friends of both Vickers and Kinslow watched him die. The Kinslow relatives chose to not speak with reporters after the execution, the fourth this year in Texas.

It was Vickers' second visit to the death house in about seven weeks. On Dec. 9, he spent about 10 hours in a small holding cell just outside the death chamber while the courts considered an appeal challenging the constitutionality of the lethal drug combination used in executions.

A similar appeal failed Wednesday, with the U.S. Supreme Court ruling about 30 minutes before he was taken to the death house. Back in December, when an appeal was not resolved by midnight, six hours after he was scheduled to die, the execution warrant expired and Vickers was returned to death row. It marked the first time since Texas resumed carrying out capital punishment in 1982 that a condemned inmate's death warrant expired without a reprieve or without his death.

According to testimony at his trial, Vickers, who had a lengthy criminal record, was the mastermind of a plot to rob Kinslow, who was known to carry the day's receipts home from his rural grocery store.

What Vickers and a pair of accomplices didn't know was that Kinslow also carried a gun. Instead of fleeing with cash, Vickers was shot three times and Kinslow was fatally shot in the chest. "He was limping down the road when we found him," Lamar County Sheriff B.J. McCoy said of Vickers, who was hobbling on makeshift crutches about two miles from the shooting scene.

"Kind of at first, he denied it," the sheriff said. "He finally broke down a week or so later, said he was there." A bullet in Vickers' knee came from Kinslow's .38-caliber pistol. His shoe print was found at Kinslow's gate. A hat found nearby had hairs that matched his hair. And .22-caliber hollow-point shells found at his home matched the bullets fired at Kinslow.

Vickers first went to prison in 1967 with a 2 1/2-year term for burglary. Then he picked up at least two more burglary convictions, plus multiple arson convictions and a federal gun possession conviction.

Tommy Perkins, 51, also with Vickers at the Kinslow shooting scene, received life in prison. Jason Martin, 34, the getaway driver waiting nearby when the gunfire erupted, got 25 years.

"Didn't You Know? Brutal Killers Have Feelings, Too!"

By Daniel Ruth - Tampa Tribune

Dec 20, 2003

Oh, for crying out loud, what's next? Death row inmates appealing their sentences on the grounds that the last meal is too high in cholesterol? Alas, the application of the death penalty in 30 states, including Florida, was the focus of a recent challenge based on the appeals of three dead men squawking who complained their sentences should be set aside largely because capital punishment might hurt their feelings.

In yet another example of how political correctness has reached Felliniesque proportions of surrealism, at least one federal appeals court agreed with them. If you didn't know better, you would think the criminal justice system had been hijacked by Oprah before the full U.S. Supreme Court stepped in to overrule the lower bench.

Two Texas prisoners, Kevin Lee Zimmerman and Billy Frank Vickers, as well as Tennessee inmate Abu-Ali Abdur Rahman, initially won stays of their executions on grounds that one of the three drugs used in lethal injections hurts.

At issue was the drug pancuronium bromide, which is injected into a condemned prisoner to paralyze muscles, including the diaphragm. Attorneys argued the drug can cause a prisoner to suffocate before losing consciousness. And thus, one of the mouthpieces wrote, "Even a slight dosage error or administration can leave the prisoner conscious but paralyzed while dying, a sentient witness to his or her long, slow, lingering asphyxiation.'' Now, I know this isn't a pristine legal response, but: Yeah? So? Isn't the whole idea of capital punishment to get as dead as possible?

Very Bad People

Yet Judge Ellen Hobbs Lyle opined in the Rahman case that the use of pancuronium bromide creates the impression that the ``subject gives all the appearances of a serene expiration when actually the subject is feeling and perceiving the excruciatingly painful death of lethal injection.'' Ahem. Since when was an execution supposed to be a Dr. Phil experience?

Even if you assume a condemned prisoner indeed may endure a few moments of suffocating consciousness as the rest of the fatal pharmaceutical cocktail is being injected into a vein, by all accounts the execution procedure takes no more than a few minutes. It's called the death penalty! It's not a fraternity initiation rite, or a school paddling, or the first day of Marine Corps training at Parris Island.

The state is in the process of killing people, very bad people. And if they should be inconvenienced by a few moments of discomfort, well, who really cares - aside from the object of all the attention, that is? Did Vickers worry about Philip Kinslow's unease when he shot the grocery owner in 1992 during a botched robbery?

How considerate of Leslie Hooks Jr.'s well-being was Zimmerman as he stabbed the oil field worker 31 times?!? Do you think empathy started to manifest itself after the 13th puncture? Maybe the 22nd? Or perhaps Zimmerman, overcome with compassion, decided not to deliver a 32nd incision. What a guy! Then there's the hail-fellow-well- met Rahman, who broke into the home of Patrick Dennis, bound and gagged his victim, then stabbed him six times. You could make a case that Dennis had more than enough time to contemplate what was about to happen to him than the moments Rahman might be disconcerted on the gurney awaiting his own fate.

Offensive Sparks

The irony is that lethal injection became the de rigeur method of execution because the body politic supposedly had grown squeamish about the idea of instantaneously turning someone's brains into polenta by virtue of the electric chair - even though this technique, unsightly though it may be, worked like a charm. Lethal injection was sort of the Martha Stewart answer to capital punishment. It was quiet and peaceful, with the condemned prisoner simply drifting off. No offensive sparks flying to unnerve the witnesses.

Fortunately, the U.S. Supreme Court ruled capital punishment is not intended to be ``serene'' or necessarily painless. And despite whatever flaws lethal injection may involve, they pale in comparison to the misdeeds of its recipients. What now? An appeal based on the argument that the lethal cocktail is not FDA-approved? Sigh.

Execution Rescheduled Tonight

Huntsville Item

January 28, 2004

Six weeks after he avoided a trip to the Texas death chamber, Billy Frank Vickers is again scheduled to be executed tonight inside the Huntsville "Walls" Unit.

On Dec. 9, Vickers became the first man in the 20 years since Texas reinstated the death penalty to have his death warrant expire. The U.S. Supreme Court did not make a ruling on an appeal that claimed the chemicals used in a lethal injection constituted a cruel and unusual punishment.

The warrant was valid for after 6 p.m. Dec. 9. Therefore, when the clock struck midnight Dec. 10, the warrant was no longer valid. A week later, the Supreme Court ruled against Vickers' appeal, and a new execution date was set.

According to information provide by the Texas Attorney General's Office, Vickers and two accomplices scouted the small combination gas station/grocery store in Arthur City, owned by 53-year-old Phillip Kinslow. Knowing he carried home the day's receipts in a satchel-type bag, the trio planned to ambush Kinslow the night of March, 12, 1993.

On the night of the crime, as Kinslow's wife, Dania, awaited the arrival of her husband, she heard what sounded like "rapid gun fire" coming from the area in front of her home. She watched as her husband drove his truck toward the house, veered off the road, and crashed into a tree.

Kinslow's family found Kinslow slumped in the seat with what proved to be a fatal gunshot wound to his chest. Inside the truck, the family found Kinslow's money bag and his handgun, which had recently been fired and contained six spent .38 caliber shells. The medical examiner subsequently confirmed Kinslow had been shot once in his chest and twice in his right arm. A .22 caliber bullet that had lodged in Kinslow's spine was recovered during the autopsy.

Approximately 22 hours after the shooting, the police received a report of a suspicious person about two miles from the Kinslow residence. Upon arrival, officers found Vickers walking with the help of some makeshift crutches constructed out of tree branches because he had been shot twice in his left leg.

A bullet recovered from Vickers' knee was confirmed to have been fired from Kinslow's .38 caliber handgun. Investigators also discovered that a shoe print found near the Kinslows' gate was made by the same size, brand and style of shoe Vickers was wearing when he was found.

The police also located a toboggan hat and a roll of duct tape in a nearby wooded area. The hat contained hairs that were consistent with those collected from Vickers' head. Finally, when police searched Vickers' home, they located several .22 caliber, long rifle, hollow point shells that were of the same sort as the bullet that killed Phillip Kinslow.

Jason Martin, one of Vickers' co-defendants who testified pursuant to a plea agreement, recounted how he, Vickers and a man named Tommy Perkins decided to rob Kinslow. Martin, Vickers and Perkins went to Kinslow's store on at least four occasions in preparation for the robbery.

Martin drove Vickers and Perkins back to Kinslow's house on at least two occasions to look around. They discovered two locked gates leading up to the house, and Perkins suggested that the gates provided a good place to ambush Kinslow.

At trial, Perkins testified that when Kinslow got out of his truck, Vickers said something to him and the man turned to face Vickers. Vickers then asked Kinslow "did he want to die," and both men started shooting at one another.

Vickers v. Cockrell, 72 Fed.Appx. 40 (5th Cir. 2003) (Habeas).

Petitioner convicted of capital murder petitioned for a writ of habeas corpus. The United States District Court for the Eastern District of Texas denied habeas relief, and refused the petitioner's application for a certificate of appealability (COA). On the petitioner's application for a COA, the Court of Appeals held that: (1) there was sufficient evidence that petitioner personally shot and killed victim in the course of an armed robbery to support conviction; (2) to establish a miscarriage of justice, petitioner had to show that he was actually, rather than legally, innocent of the charges brought against him; and (3) petitioner's failure to present his ineffective-assistance of appellate counsel claim to the state courts precluded him from establishing that his procedural default should be excused through cause and prejudice. Application denied.

Vickers was charged by indictment under Tex. Penal Code Ann. § 19.03(a)(2), which states that a person commits capital murder if he commits murder during the commission of another felony--in this case, the aggravated robbery of Phillip Kinslow. At the guilt/innocence phase, the jury found Vickers guilty as charged. At the sentencing phase, the jury answered the two special issues in the affirmative: There was a probability that Vickers would constitute a continuing threat to society; and Vickers caused Kinslow's death, intended to kill Kinslow, or anticipated the loss of a human life. As the jury did not find sufficient mitigating circumstances to warrant a sentence of life imprisonment, the trial court imposed a sentence of death.

* * *

At Vickers's trial, Jason Martin testified that he, Vickers, and Tommy Perkins planned to rob the Arthur City Superette, which was run by Kinslow. On the day of the murder, the three men met at Vickers's home. Perkins had a .38 caliber handgun and Vickers had a .22 caliber handgun.

The threesome spent the day drinking, "casing" Kinslow's home and the Superette, and following Kinslow about his daily activities. Perkins and Vickers decided that if Kinslow left his vehicle to open or close one of the gates around his home, they would rush him, bind him with duct tape, take his money, and steal his pickup. The three men left Vickers's home in possession of duct tape, a police scanner, and ski masks.

On the way to the Kinslow residence, Vickers put the .22 caliber handgun on the dashboard of the truck. Martin let Perkins and Vickers out of the truck; Vickers was carrying the duct tape and the .22 caliber handgun. Martin, the getaway driver, was aware that if Kinslow resisted, he would suffer physical force or injury. Martin drove around for a short while, then went to the agreed meeting point.

After Martin turned off the engine of his truck, he heard a gunshot and Vickers yelling. Martin then the scene, learning later that Kinslow had been shot and killed. Martin then went home and passed out. The next morning, Perkins came to Martin's residence where he told Martin that Vickers had been shot in the knee. Perkins related that he and Vickers had waited by the gate and that, as Kinslow got out of his truck, Perkins saw that Kinslow had a gun. Vickers rushed Kinslow, a struggle ensued, and gunshots were fired. After the shooting, Kinslow got back in his truck and drove down the driveway.

A medical examiner had previously testified that Kinslow had a gunshot wound in his chest and that the bullet had gone through his right lung and into his spinal column, causing death. The bullet recovered from Kinslow's spinal column was a .22 caliber.

Latricia Dangerfield testified that she was Perkins's girlfriend. She recounted that, in the early morning after the murder, Perkins told her that "Sonny [Vickers] had got hurt, and they went out to rob this guy and it didn't go the way it was supposed to."

Dangerfield admitted that Perkins had told her that he had seen that the victim had a gun when he went to open the gate. Perkins also told Dangerfield that Vickers asked Kinslow if he wanted to die and Kinslow asked Vickers the same question, whereupon both started shooting; that Kinslow jumped in his truck and drove away; and that Vickers and Perkins ran away from the scene.

Dangerfield was also told by Perkins that he had been asked by Vickers why he (Perkins) had not shot his gun, stating that he (Vickers) had not heard any shots from Perkins. Finally, Perkins told Dangerfield that he had not shot Kinslow. Vickers acknowledges that both Martin and Dangerfield testified that Perkins told them that it was Vickers, not Perkins, who had fired the shots that struck Kinslow.

Vickers maintains, however that this "circumstantial" evidence is countered by other circumstantial evidence showing that he was not in fact the shooter. He contends that because the evidence gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, a reasonable jury must necessarily entertain a reasonable doubt. Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985).

This contention is without merit. Both Martin and Dangerfield testified as to what they were told by an eyewitness to the shooting; such testimony is direct evidence of Vickers's guilt. [FN2] Even if the testimony were circumstantial, however, Vickers still is not entitled to relief.

* * *

CONCLUSION

For the reasons set forth above, we conclude that Vickers has failed to demonstrate any basis for entitlement to a COA. Consequently, his application must be rejected. COA DENIED.