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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-41395
_______________
DAVID RAY HARRIS,
Petitioner-Appellee-
Cross-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellant-
Cross-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
November 18, 2002
Before JOLLY, SMITH, and EMILIO M.
in his capital trial was unconstitutionally pre-
GARZA, Circuit Judges.
cluded from giving mitigating effect to evi-
dence of his alcoholism and that the admission
JERRY E. SMITH, Circuit Judge:
of evidence of an extraneous offense of which
he had been acquitted denied him a fair trial.
The State of Texas appeals the grant of a
We affirm in part, reverse in part, and render
writ of habeas corpus pursuant to 28 U.S.C.
judgment in favor of the state.
§ 2254. The petitioner, David Harris, cross-
appeals the rejection of his claims that the jury

I.
effect to Harris's mitigating evidence related
In 1985, Harris entered the apartment of
to provocation and that Harris was prejudiced
Mark Mays while Mays and his girlfriend,
by ineffective assistance of counsel. We affirm
Roxanne Lockard, were sleeping. Armed with
the rejection of the remaining claims.
a revolver, Harris went into the bedroom and
awakened them. After instructing Mays to
II.
lock himself in the bathroom, Harris led Lock-
At the sentencing phase, the jury answered
ard out of the apartment at gunpoint and di-
affirmatively the three special issues related to
rected her to get into his truck.
deliberateness, future dangerousness, and inad-
equate provocation. Consequently, Harris was
Mays emerged from the apartment with a
sentenced to death. Citing Penry v. Lynaugh
gun, and the two men exchanged fire. Ac-
("Penry I"), 492 U.S. 302 (1989), and Penry
cording to Harris, Mays shot first, hitting Har-
v. Johnson ("Penry II"), 532 U.S. 782 (2001),
ris in the neck, then in the shoulder, before
Harris contended that the Texas special issues
Harris began shooting at Mays. After shooting
framework was unconstitutional as applied to
Mays several times, once at close range, Harris
his case, because it precluded the jury from
left. He was found guilty of capital murder.
giving effect to potentially mitigating evidence
related to provocation by the victim and Har-
This appeal raises several claims related to
ris's alcohol abuse. The district court granted
the conduct of the sentencing phase of the
relief on the claim based on the evidence of
trial. The state appeals the district court's
provocation and rejected the claim as to evi-
grant of habeas relief that was based on two of
dence of alcohol abuse. We conclude that the
Harris's claims: first, that the special instruc-
special issues permitted the consideration of
tions given to the jury failed to provide an ade-
both types of mitigating evidence.
quate vehicle for the jury to give effect to
Harris's evidence of provocation; and second,
A.
that the failure of counsel to present certain
In Penry I, 492 U.S. at 328, the Court held
items of potentially mitigating evidence consti-
that the Texas special issues were constitution-
tuted ineffective assistance. Harris cross-
ally deficient as applied to the defendant,
appeals the rejection of his additional claims
because they failed to provide the sentencing
that the special issues were unconstitutionally
jury with an adequate means of giving effect to
flawed in that they precluded the jury from
mitigating evidence of severe mental retarda-
giving effect to evidence of Harris's alcohol-
tion and abuse. Harris claims that these spe-
ism; that the prosecutor's allegedly improper
cial issues likewise precluded the jury from
closing argument during the guilt-innocence
giving mitigating effect to his evidence of alco-
phase denied Harris a fair trial; and that Harris
hol abuse, in violation of Penry I.
was denied a fair sentencing determination by
the admission of evidence of an extraneous of-
To form the basis of a Penry claim, mitigat-
fense of which he had been acquitted.
ing evidence "must demonstrate a `uniquely
severe permanent handicap[] with which the
The district court erred in deciding that the
defendant was burdened through no fault of
jury instructions at the punishment phase pro-
vided an insufficient vehicle for the jury to give
2

his own.'"1 Under this definition, neither
weight apart from intoxication at the time of a
evidence of alcoholism nor evidence of intoxi-
crime," James, 987 F.2d at 1121 n.6, the sec-
cation at the time of the offense constitutes
ond special issue, which relates to future dan-
Penry evidence.2
gerousness,5 provided a means for giving miti-
gating effect to Harris's evidence that he is an
The jury was able to give mitigating effect
alcoholic. See id. at 1121.
to the evidence of Harris's alcoholism through
its answers to the first and second special is-
Trial counsel presented testimony at the
sues. Evidence of intoxication can be fully
sentencing phase that Harris's history of vio-
considered under the first special issue,3 which
lent conduct stemmed from his alcoholism,
asked the jury to evaluate the deliberateness of
which could be brought under control. The
Harris's conduct.4 Furthermore, to the extent
jury reasonably could have considered this tes-
that "alcoholism has independent mitigating
timony when evaluating whether Harris was a
continuing danger to society. See id. There-
fore, the district court was correct in rejecting
1
Harris's Penry claims based on his mitigating
Turner v. Johnson, 106 F.3d 1178, 1189 (5th
evidence related to alcoholism and intoxica-
Cir. 1997) (quoting Graham v. Collins, 950 F.2d
1009, 1029 (5th Cir. 1992) (en banc), aff'd, 506
tion.
U.S. 461 (1993)).
B.
2 See Lackey v. Scott, 28 F.3d 486, 489 (5th
Citing Penry II, the district court held that
Cir. 1994) ("Unlike Penry's mental retardation and
the third special issue6 did not provide the jury
childhood abuse, `voluntary intoxication is not the
with an effective means for consideration of
kind of uniquely severe permanent handicap[ ] with
evidence that Mays fired his weapon first. In
which the defendant was burdened through no fault
Penry II, 532 U.S. at 789, jurors were given
of his own that requires a special instruction to
the same three special issues submitted in this
ensure that the mitigating effect of such evidence
case. They also were given a supplemental
finds expression in the jury's sentencing decision.'"
"nullification instruction," directing jurors to
(quoting Cordova v. Collins, 953 F.2d 167, 170
answer any special issue in the negative, ir-
(5th Cir. 1992) (internal quotes omitted)); Tucker
respective of the evidence on that special is-
v. Johnson, 115 F.3d 276, 282 (5th Cir. 1997)
("[S]elf-inflicted chronic drug and alcohol abuse
sue, if they believed the mitigating circum-
and the resulting arrested emotional development
stances rendered a life sentence more appro-
do not constitute a unique handicap `with which the
priate than death. Id. at 789-90. In essence,
defendant was bur dened through no fault of his
own.'").
3 The first special issue reads as follows: "Was
5 The second special issue reads: "Is there a
the conduct of the defendant that caused the death
probability that the defendant will commit criminal
of the deceased committed deliberately and with the
acts of violence that will constitute a continuing
reasonable expection [sic] that the death of the
threat to society?"
deceased or another would result?"
6 The third special issue poses the question:
4 Tucker, 115 F.3d at 282; Lackey, 28 F.3d at
"Was the conduct of the defendant in killing the
489; James v. Collins, 987 F.2d 1116, 1121 (5th
deceased unreasonable in response to the provoca-
Cir. 1993); Cordova v. Collins, 953 F.2d at 170.
tion, if any by the deceased?"
3

the jury could give effect to the nullification in-
slaughter defense at the guilt-innocence phase.
struction only by answering one of the special
issues untruthfully. Id. at 799. The Court held
that this nullification instruction failed to
The state trial court's construction of the
provide an adequate vehicle for the jury to
third special issue defines the provocation
make a reasoned moral response to Penry's
inquiry more broadly than is the case with the
mitigating evidence, because it "it made the
guilt-innocence inquiries of self-defense and
jury charge as a whole internally contradictory,
manslaughter.7 In other words, a reasonable
and placed law-abiding jurors in an impossible
jury could find that the evidence of provoca-
situation." Id.
tion was insufficient to justify a verdict of
voluntary manslaughter but sufficient to justify
The district court noted that by rejecting
a negative answer to the third special issue.
Harris's defense of voluntary manslaughter,
Indeed, Harris's trial counsel specifically told
the jury found that the killing was not done
the jurors, during argument at the punishment
"under the immediate influence of passion
phase, that their guilty verdict did not foreor-
based upon adequate cause." At the sentenc-
dain an affirmative answer to the third-special
ing phase, the court continued, a juror who be-
issue. Therefore, the district court erred in
lieved that Harris should receive a life sentence
granting relief to Harris on this issue.
instead of the death penalty, because the victim
shot first, could act on that belief only by an-
III.
swering in the negative the third special issue,
The district court held that counsel's failure
which addresses whether the defendant's con-
to present certain items of potentially mitigat-
duct in killing the victim was reasonable in
ing evidence at the punishment phase consti-
light of any provocation.
tuted ineffective assistance of counsel. In par-
ticular, the court cited the failure of trial coun-
The court reasoned that such a response
sel to introduce evidence concerning Harris's
would be inconsistent with the jury's rejection
troubled childhood and family background,
of Harris's manslaughter defense and that a
drug and alcohol problems, and prior prison
juror could not logically answer the third spe-
record.
cial issue in the negative. As a result, the
court concluded, the jury could not give miti-
We need not decide this question, for, even
gating effect to the evidence of provocation.
assuming arguendo the correctness of the
court's substituted findings and its conclusion
Penry II is inapplicable here, because the
that counsel's conduct constituted deficient
jurors were not directed to give untruthful re-
performance, the court erred in holding that
sponses or to violate their oaths to give effect
this performance prejudiced the defense under
to the mitigating evidence. There are no in-
Washington, 466 U.S. at 694, which requires
ternal contradictions of the sort created by the
the claimant to demonstrate that "there is a
nullification instruction considered in Penry II.
reasonable probability that, but for counsel's
Further, even if Penry II were applicable, the
district court erred in holding that a negative
answer to the third special issue is inconsistent
7 See Evans v. State, 601 S.W.2d 943, 946
with the jury's rejection of the voluntary man-
(Tex. Crim. App. 1980); Brown v. State, 554
S.W.2d 677, 678-79 (Tex. Crim. App. 1977).
4

unprofessional errors, the result of the pro-
been repeatedly beaten by his father, that while
ceeding would have been different." In the
his parents were imprisoned he spent time in
context of a claim that counsel rendered inef-
an abusive foster home, and that he had been
fective assistance by failing to present evidence
returned to the custody of his abusive parents
at the punishment phase of a capital murder
upon their release from prison. Williams, 529
trial, the inquiry is whether there is a reason-
U.S. at 395-96.
able probability that, had the evidence been
presented, it would have altered the punish-
The jury could have viewed much of the
ment verdict.8
evidence omitted by Harris's trial counsel as
either mitigating or aggravating. Testimony
The district court based its finding of pre-
regarding Harris's family background would
judice on its comparison of the circumstances
reveal that despite some emotional abuse, he
of Harris's case to those in two similar cases,
came from a stable family environment. In
Duhamel v. Collins, 955 F.2d 962 (5th Cir.
addition, evidence relating to his "good" pri-
1992), and Williams v. Taylor, 529 U.S. 362
son record would include a description of his
(2000). Harris's mitigating evidence is similar
violent behavior while incarcerated, and taken
to that which this court characterized as
as a whole likely would be aggravating rather
"weak" in Duhamel, 955 F.2d at 966. The
than mitigating. The failure to present such
proposed evidence of Harris's mental retarda-
double-edged evidence is not prejudicial.10
tion is his IQ score of 88 in the seventh grade.
This is not strongly mitigating evidence such
Finally, there is overwhelming evidence of
that its omission is likely to cause prejudice.9
violence in Harris's background, which ne-
Similarly, the evidence of an abusive child-
gates the likelihood that additional evidence
hood is less than compelling. Harris's evi-
would have resulted in a different outcome.
dence of abuse includes testimony that, al-
See Santellan v. Cockrell, 271 F.3d 190, 198
though he was raised in a stable family envi-
(5th Cir. 2001), cert. denied, 122 S. Ct. 1463
ronment, his father played favorites among his
(2002). In light of the overall weakness of the
children and blamed Harris for the death of his
proposed mitigating evidence, and the fact that
brother. This evidence pales in comparison to
its introduction would have resulted in the pre-
that omitted by the trial attorneys in Williams,
sentation of additional evidence of Harris's
in which the Court held that the defendant had
past violent conduct, there is no reasonable
proved prejudice. The mitigating evidence
probability that the presentation of this addi-
available there demonstrated that the defen-
tional evidence would have altered the out-
dant's parents were imprisoned for criminal
come of the punishment verdict. Therefore,
neglect of their children, that defendant had
Harris failed to demonstrate prejudice, and the
district court erred in granting relief on his
claim of ineffective assistance.
8 See Washington, 466 U.S. at 695; Mann v.
Scott, 41 F.3d 968, 983-84 (5th Cir. 1994).
9 See Duhamel, 955 F.2d at 966 (holding that
10 See, e.g., Ransom v. Johnson, 126 F.3d 716,
the omission of evidence that the defendant "was
723-24 (5th Cir. 1997); Cockrum v. Johnson, 119
moderately mentally retarded with an IQ of 56" did
F.3d 297, 301, 303-05 (5th Cir. 1997); Faulder v.
not result in prejudice).
Johnson, 81 F.3d 515, 519-20 (5th Cir. 1996).
5

IV.
tor's statements were improper, prosecutorial
Harris contends that his right to a fair trial
remarks are a sufficient ground for habeas re-
was compromised by the prosecutor's improp-
lief only if they are so prejudicial that they
er closing arguments at the guilt-innocence
render the trial fundamentally unfair.11 Such
phase of the trial. Specifically, Harris com-
unfairness exists "only if the prosecutor's
plains that the prosecutor improperly asked the
remarks evince `either persistent and pro-
jury to convict him on the basis of the alleged
nounced misconduct or . . . the evidence was
expectations and knowledge of the commu-
so insubstantial that (in probability) but for the
nity. The following exchange forms the basis
remarks no conviction would have
of his claim:
occurred.'"12
Mr. McWilliams [the prosecutor]: La-
The prosecutor's remarks were neither re-
dies and gentlemen, there's one verdict
peated nor pronounced,13 and in light of the
that's proper in this case. You've
known it since yesterday, the verdict
that family and those police officers and
11 Ortega v. McCotter, 808 F.2d 406, 410 (5th
the people of Jefferson County know is
Cir. 1987) (quoting Whittington v. Estelle, 704
proper in this case SS
F.2d 1418, 1421 (5th Cir. 1983)); Kirkpatrick v.
Blackburn, 777 F.2d 272, 281 (5th Cir. 1985); see
Mr. Powell [defense]: Your Honor, we
also Jackson v. Johnson, 194 F.3d 641, 653 (5th
would object to counsel arguing that the
Cir. 1999) ("[T]he appropriate inquiry is . . .
jury should base their decision on the
whether the prosecution's comments so infected the
expectation of anybody, except on the
trial with unfairness that there is a reasonable
evidence.
probability that the result would have been differ-
ent if the proceeding had been conducted prop-
erly.").
The Court: Sustained.
12 Kirkpatrick, 777 F.2d at 281 (quoting Whit-
Mr. Powell: We would further request,
tington, 704 F.2d at 1421); see also Menzies v.
Your Honor, that the Court instruct the
Procunier, 743 F.2d 281, 288-89 (5th Cir. 1984)
jury to disregard Mr. McWilliams' state-
("[A] prosecutor's improper argument will, in it-
ment.
self, exceed constitutional limitations in only the
most `egregious cases.'" (quoting Houston v. Es-
The Court: So instructed.
telle, 569 F.2d 372, 382 (5th Cir. 1978)).
13
Mr. McWilliams: It's the verdict that
In an attempt to create the impression that the
we know you will return, because it's
contested remarks were repeated, Harris quotes the
justice in this case. It's not justice be-
prosecutor in misleading fashion. Specifically,
Harris quotes the prosecutor's remarks after the
cause I say it is. It's justice because you
initial objection was sustained as follows: "It's
know it from the evidence you have here
[the verdict desired by the family, police, and the
. . . . That verdict is guilt of Capital
people] the verdict we know you will return . . . ."
Murder.
The descriptive aside inserted into this quote is
misleading, because it is not apparent that the
Even if Harris is correct that the prosecu-
prosecutor is using the pronoun "it" to incorporate
(continued...)
6

considerable evidence of guilt, there is no rea-
collateral estoppel, Ashe v. Swenson, 397 U.S.
sonable probability that, in their absence, the
436 (1970), that doctrine "does not preclude
result would have been different. That is, "we
[the state] from relitigating an issue when it is
cannot say that the prosecutor's remarks in
presented in a subsequent action governed by
this case were a crucial, critical, highly signif-
a lower standard of proof," Dowling v. United
icant factor upon which the jury based its ver-
States, 493 U.S. 342, 349 (1990).
dict of guilty." Accordingly, those statements
did not render Harris's trial fundamentally
Because "extraneous offenses offered at the
unfair.
punishment phase of a capital trial need not be
proven beyond a reasonable doubt," Vega, 149
V.
F.3d at 359, the relevant standard of proof
Harris contends that he was deprived of a
necessarily was lower than that at Harris's
fair sentencing determination by the introduc-
criminal trial for kidnaping. Collateral estop-
tion of evidence concerning a crime for which
pel therefore did not preclude the introduction
he had been indicted but acquitted. During the
of evidence pertaining to these charges, and
sentencing phase, the state introduced evi-
Harris's due process rights were not violated.
dence that Harris had been charged with burg-
See Vega, 149 F.3d at 359.
lary, robbery, attempted robbery, and kidnap-
ing. He eventually was acquitted of kidnaping
In summary, we REVERSE the grant of
and argues that the introduction of this evi-
habeas relief, AFFIRM the denial of all re-
dence was contrary to the collateral estoppel
maining claims, and RENDER judgment in
aspect of double jeopardy and thus constituted
favor of the state.
a violation of his due process rights.
The introduction of evidence of extraneous
offenses of which the defendant has been ac-
quitted is consistent with due process. Vega v.
Johnson, 149 F.3d 354 (5th Cir. 1998). Al-
though due process requires the application of
13(...continued)
the preceding objectionable statements appealing to
community expectations.
In fact, the context omitted by Harris supports
a very different construction of the remarks: "It's
the verdict that we know you will return, because
it's justice in this case. It's not justice because I
say it is. It's justice because you know it from the
evidence you have here . . . . That verdict is guilt
of Capital Murder." When the statement is viewed
in its entirety, the most reasonable reading is that
"it" refers to a verdict of guilty, not the verdict
expected by the community.
7