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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-40532
_______________
TRACY LEE GIVENS,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
September 6, 2001
Before JONES, SMITH, and DeMOSS,
I.
Circuit Judges.
In 1992, Givens attended a party with three
friends. When they heard that some revelers
JERRY E. SMITH, Circuit Judge:
had brought shotguns to the party, the group
retrieved their own firearms. A verbal skir-
Tracy Givens appeals the denial of his
mish ensued between two of the young men
petition for writ of habeas corpus. Finding no
and quickly escalated into shots fired at ran-
error, we affirm.
dom into the air, prompting most of those
present to flee in a panic.

Givens and Adrian Oliver rode away from
this presentation rendered his assistance inef-
the melee with friends. As another car ap-
fective; and (3) counsel's failure to raise this
proached their vehicle, Givens and Oliver
issue on appeal rendered his assistance ineffec-
thought they heard a gunshot and began firing
tive.
at the other car; no one in that car had a gun.
The shots from Oliver's weapon mortally
II.
wounded a passenger in the other car, and in
Because Givens filed his habeas petition
the subsequent trial of Givens and Oliver, Giv-
before the effective date of the Anti-Terrorism
ens was convicted of "murder as a party."
and Effective Death Penalty Act ("AEDPA"),
his petition is governed by the pre-AEDPA
During the punishment phase of Givens's
standards. Green v. Johnson, 160 F.3d 1029,
trial, the state presented evidence that he had
1035 (5th Cir. 1998). "Under pre-AEDPA
been placed on a type of probation for six
law, 28 U.S.C. § 2254(d) required federal
months for burglary. The state also presented
courts in habeas corpus proceedings to accord
evidence of arrests for aggravated assault,
a presumption of correctness to state court
theft of a semi-automatic pistol, and posses-
findings of fact, while state court determina-
sion of cocaine. None of these arrests ever
tions of law were to be reviewed de novo."
was adjudicated.
Magouirk v. Warden, 237 F.3d 549, 552 (5th
Cir. 2001). There are no factual findings, be-
Givens's counsel did not object to the ad-
cause the trial court did not issue an order on
mission of these unadjudicated offenses as evi-
Givens's application, and the Court of Crimi-
dence. On cross-examination, counsel ob-
nal Appeals denied the application without
tained admissions that Givens was never found
written order.
guilty of any juvenile delinquent conduct and
voluntarily had participated in the juvenile
A.
probation program. Givens appealed, but his
Givens complains of the presentation of evi-
counsel did not challenge the admission of this
dence of unadjudicated extraneous offenses
evidence; the Texas Court of Criminal Appeals
during the punishment phase. We grant ha-
affirmed.
beas relief only when "the violation of the
state's evidentiary rules results in a denial of
Givens filed a state habeas application, ar-
fundamental fairness." Herrera v. Collins, 904
guing, inter alia, that the trial court had erred
F.2d 944, 949 (5th Cir. 1990). "[T]he errone-
in allowing the introduction of extraneous, un-
ous admission of prejudicial evidence can jus-
adjudicated offenses and that his lawyer's fail-
tify habeas corpus relief only if it is material in
ure to object at trial or raise the issue on ap-
the sense of a crucial, critical, highly significant
peal had denied him effective assistance of
factor." Anderson v. Maggio, 555 F.2d 447,
counsel. The state court and the federal dis-
451 (5th Cir. 1977) (internal quotation omit-
trict court denied his habeas petitions, but we
ted).
granted a COA to examine whether (1) the
trial court had denied him a fair trial by allow-
Givens was sentenced in September 1992,
ing the presentation of evidence of unadjudi-
when Texas permitted the introduction of evi-
cated extraneous offenses during the punish-
dence "as to any matter the court deems
ment phase; (2) counsel's failure to object to
relevant to sentencing, including the prior
2

criminal record of the defendant." TEX. CRIM.
App. 1992).3 Thus, because the law was un-
PROC. CODE art. 37.07 § 3(a) (Vernon Supp.
settled at the time of Givens's sentencing, the
1991) (emphasis added). The legislature had
trial court did not err in following the current
amended the statute to include the italicized
majority rule, so the admission of the evidence
language in 1989, but before that amendment,
did not deprive Givens of a fair trial.
the Court of Criminal Appeals had held such
evidence inadmissible. See Murphy v. State,
B.
777 S.W.2d 44, 57 (Tex. Crim. App. 1989).
Givens contends that his attorney was inef-
fective because he did not object to the evi-
From the 1989 amendment until shortly af-
dence of the unadjudicated extraneous offens-
ter Givens's trial, Texas courts generally con-
es. To prevail on an ineffective-assistance
strued the amended statute as allowing evi-
claim, Givens must show both that "counsel's
dence of unadjudicated extraneous offenses at
performance was deficient" and that the "de-
the sentencing phase of a noncapital trial,1
ficient performance prejudiced the defense."
though a minority had reached the opposite
Strickland v. Washington, 466 U.S. 668, 687-
conclusion.2 Not until three months after Giv-
88 (1984). A "deficient performance" is one
ens's conviction and sentencing did the Court
that "fell below the objective standard of rea-
of Criminal Appeals resolve the debate in favor
sonableness." Id. at 688.
of the minority position. See Grunsfeld v.
State, 843 S.W.2d 521, 523-26 (Tex. Crim.
Because Texas law was unsettled, counsel
reasonably could have believed that the law
permitted such evidence. See Sharp v. John-
1 See, e.g., Lafayette v. State, 835 S.W.2d 131,
son, 107 F.3d 282, 289-90 (5th Cir. 1997).
133 (Tex. App.SSTexarkana 1992, no writ) (find-
Therefore, Givens cannot show that the failure
ing that the additional language reflected a leg-
to object was deficient performance.4 Because
islative intent to broaden the spectrum of acceptab-
le evidence); Robles v. State, 830 S.W.2d 779, 783
(Tex. App.SSHouston [1st Dist.] 1992, pet. ref'd);
Rexford v. State, 818 S.W.2d 494, 496 (Tex.
3 See also Chatham v. State, 889 S.W.2d 345,
App.SSHouston [1st Dist.] 1991), pet. ref'd);
352 (Tex. App.SSHouston [14th Dist.] 1994, pet.
Gallardo v. State, 809 S.W.2d 540, 541-42 (Tex.
ref'd) (explaining the fluctuations in the law in this
App.SSSan Antonio 1991), vacated, 849 S.W.2d
area). The legislature amended the statute again
825 (Tex. Crim. App. 1993); Hubbard v. State,
after Grunsfeld to allow the admission of evidence
809 S.W.2d 316, 319-20 (Tex. App.SSFort Worth
of unadjudicated extraneous offenses at the sen-
1991) aff'd in part, rev'd in part, 892 S.W.2d 909
tencing phase of a noncapital crime. See Voisine v.
(Tex. Crim. App. 1995); McMillian v. State, 799
State, 889 S.W.2d 371, 372 (Tex. App.SSHouston
S.W.2d 311, 314 (Tex. App.SSHouston [14th
[14th Dist.] 1994, no writ). This amendment,
Dist.] 1990), vacated, 844 S.W.2d 749 (Tex.
however, applied only to offenses committed on or
Crim. App. 1993); Huggins v. State, 795 S.W.2d
after September 1, 1993. Brown v. State, 6
909, 911 (Tex. App.SSBeaumont 1990, pet. ref'd).
S.W.3d 571, 583 n.7 (Tex. App.SSTyler 1999, pet.
ref'd).
2 See, e.g., Grunsfeld v. State, 813 S.W.2d 158,
171 (Tex. App.SSDallas 1991), aff'd, 843 S.W.2d
4 We have held that an attorney's failure to ob-
521 (Tex. Crim. App. 1992); Blackwell v. State,
ject to the admission of evidence of unadjudicated
818 S.W.2d 134, 141 (Tex. App.SSWaco 1991, no
offenses in a presentence report is conduct that
writ) (following Grunsfeld).
(continued...)
3

a failure to prove either deficiency or prejudice
dered the trial and appeal fundamentally unfair.
prevents Givens from prevailing, we need not
Under Texas law at that time, if counsel failed
reach the issue of prejudice. See Washington,
to lodge an objection at trial, nothing was
466 U.S. at 687.
preserved for appellate review. See TEX. R.
APP. P. 52(a) (Vernon Supp. 1991).5 Thus,
C.
challenging the admission of unadjudicated ex-
Givens asserts that counsel was ineffective
traneous offenses on appeal would have been
for neglecting to challenge the admission of
frivolous.
the extraneous-offense evidence on appeal.
"Persons convicted of a crime are entitled to
Givens's counsel acted objectively reason-
receive effective assistance of counsel in their
ably in declining to raise an unreviewable is-
first appeal of right," but counsel is not re-
sue. Because the court could not review the
quired to raise every nonfrivolous issue.
alleged error, no prejudice could have resulted
Green, 160 F.3d at 1043. We apply the Wash-
from the failure to raise it.
ington test to counsel's performance on ap-
peal. Id. Additionally, Givens must show that
AFFIRMED.
the failure to raise the issue on appeal rendered
the entire proceedings, trial and appeal, funda-
mentally unfair. See Goodwin v. Johnson, 132
F.3d 162, 174-75 (5th Cir. 1997). Givens
bears the "highly demanding and heavy burden
in establishing actual prejudice," not merely
that "the errors had some conceivable effect on
the outcome of the proceeding." Williams v.
Taylor, 529 U.S. 362, 394 (2000).
On appeal, counsel challenged (1) the suf-
ficiency of the evidence to support the convic-
tion and (2) the refusal of the trial court to
give jury instructions for lesser included of-
fenses. The only issue before us is whether his
failure to raise this particular objection ren-
4(...continued)
falls below an objective standard of reasonable-
ness. Spriggs v. Collins, 993 F.2d 85, 89-90 (5th
Cir. 1993). In Spriggs, however, we construed
Texas law before the 1989 amendments. More-
over, Grunsfeld had been decided, clarifying the
law and affirming the pre-1989 position. Thus,
5 See also Esquivel v. State, 595 S.W.2d 516,
Spriggs is inapplicable to the narrow time span
522 (Tex. Crim. App. 1980); Reyna v. State, 797
relevant to this case, in which the interpretation of
S.W.2d 189, 193 (Tex. App.SSCorpus Christi
the applicable statute was unsettled.
1990, no writ).
4