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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-2077
JAMES DEMOUCHETTE,
Petitioner-Appellant,
versus
JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(September 9, 1992)
Before POLITZ, Chief Judge, HIGGINBOTHAM and DUHÉ, Circuit Judges.
POLITZ, Chief Judge:
James Demouchette, whose execution has been set by the Texas
authorities for September 22, 1992, seeks federal habeas relief and
a stay of execution. The district court denied the habeas request,
denied a certificate of probable cause and recalled its previously
issued stay of execution. In his motions for CPC and for a stay of

execution Demouchette urges error under Penry v. Lynaugh.1
Concluding that the disposition of this matter is directed by our
recent en banc decision in Graham v. Collins,2 we deny both the
motion for CPC and the motion for stay of execution.
Background
As detailed by the Texas Court of Criminal Appeals,3
Demouchette and his brother Chris entered a Pizza Hut restaurant in
Houston, Texas around midnight of October 17, 1976, shortly before
closing. Manager Geoffrey Hambrick locked up and the Demouchettes
joined Hambrick, Scott Sorrell, the assistant manager and an
acquaintance of one of the brothers, and Chuck White, a friend of
Sorrell's, at a booth and table. After a few minutes of idle
conversation Hambrick, hearing White say, "I'd think twice before
I pulled that trigger," turned to see Demouchette shoot White in
the head with a large caliber revolver. Demouchette then shot
Hambrick. The bullet struck him on the side of the head. Hambrick
slumped over and pretended to be dead; he retained consciousness.
A third shot rang out and Hambrick heard what he presumed to be
Sorrell falling.
1
492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
2
950 F.2d 1009 (5th Cir.) (en banc), cert. granted, _____
U.S. _____, 112 S.Ct. 2937, 119 L.Ed.2d 563 (1992).
3
Demouchette v. State, 731 S.W.2d 75 (Tex.Cr.App. 1986),
cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987).
2

The Demouchettes ransacked the back room. Returning to the
dining room where Sorrell was making gurgling sounds, Demouchette
told Chris, "Get the keys." There was another shot and Sorrell's
gurgling ceased. The keys were taken from Hambrick and the
Demouchettes left. Hambrick called the police.
Sorrell died at the scene; White died shortly thereafter.
Hambrick recovered from his wounds. The cash register had been
emptied and stereo equipment was missing.
A jury convicted Demouchette of the capital murder of Sorrell
under Texas Penal Code § 19.03(a)(2). During the penalty phase of
his trial, Demouchette presented expert testimony that he suffered
from antisocial personality disorder, a chronic abnormality marked
by impulsivity, an inability to learn from experience, and
callousness towards others. Although both mental health experts
called by Demouchette testified that his acts of violence resulted
from impulse rather than plan, the jury answered the first special
issue, whether Demouchette had killed deliberately, in the
affirmative and likewise answered the second special issue
concerning future dangerousness. In accordance with the Texas
statute, the judge sentenced Demouchette to death.4 The Texas
4
Under Tex. Code Crim. Proc. Ann. Art. 37.071(b) (Vernon
1981), since amended, the jury must answer special issues:
(1) whether the conduct of the defendant that caused the death of
the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat
to society; and (3) if raised by the evidence, whether the conduct
of the defendant in killing the deceased was unreasonable in
response to the provocation, if any, by the deceased. If the jury
unanimously answers "yes" to each issue submitted, the court must
3

Court of Criminal Appeals affirmed the conviction and sentence.5
Demouchette invoked 28 U.S.C. § 2254 and sought habeas relief.
The state expressly waived exhaustion of collateral state remedies.
The district court conducted an evidentiary hearing at which
Demouchette's trial attorney testified about mitigating evidence
which he decided not to present because of the structure of the
Texas death penalty statute. The district court denied relief,
denied a certificate of probable cause, and vacated an earlier
granted stay of execution. Demouchette timely sought CPC and a
stay of execution.
Analysis
When a district court denies a certificate of probable cause,
we lack jurisdiction to decide the appeal unless we first
decide to grant one. We may issue a certificate of
probable cause only when the petitioner makes a
substantial showing of the denial of a federal right. To
make a substantial showing, the petitioner must
demonstrate that the issues are debatable among jurists
of reason.6
The issues raised by Demouchette are no longer debatable before
this court; they are foreclosed by circuit precedent.
sentence the defendant to death; otherwise the sentence is life
imprisonment. The third special issue was not relevant and was not
submitted.
5
Demouchette v. State, supra.
6
Cordova v. Collins, 953 F.2d 167, 169 (5th Cir.)
(internal quotations and citations omitted), cert. denied, _____
U.S. _____, 112 S.Ct. 959, 117 L.Ed.2d 125 (1992).
4

Demouchette's principal argument is that the Texas death
penalty statute was unconstitutional as applied to him because the
jury was unable, without a special instruction, to give full
mitigating effect to his evidence of antisocial personality
disorder. Invoking Penry, Demouchette contends that his
personality disorder had relevance to his moral culpability beyond
his propensity to act without deliberation. He further notes that
the disorder functioned only as an aggravating factor with respect
to the probability of recidivism. Under these circumstances,
Demouchette maintains, Penry requires the giving of a special
instruction, which was denied in his case.
Applying Penry's teachings in Graham, sitting en banc we
stated:
Penry clearly stands for the proposition that merely
because the mitigating evidence has any relevance to a
negative answer to one of the special issues does not
necessarily suffice in all cases to sustain application
of the Texas statute. Penry's evidence has some such
relevance to the first issue. The more difficult
question is whether the Texas statute can operate as
written in any case where the mitigating evidence, though
all clearly relevant to support a negative answer to one
or more of the issues, nevertheless also has any
mitigating relevance whatever beyond the scope of the
special issues. Penry can fairly be read as precluding
use of the Texas statutory scheme in any such situation.
But, Penry can also fairly be read as addressing only a
situation where some major mitigating thrust of the
evidence is substantially beyond the scope of any of the
issues. That, indeed, was the case in Penry, where as to
the third issue the mitigating evidence was all
essentially irrelevant, as to the second issue it was
only affirmatively harmful to the defense, and as to the
first issue its favorable relevance was essentially minor
but its "major thrust" was beyond the scope of the
5

issue.7
In Graham we adopted the latter reading of Penry, holding that a
special instruction was required only if a "major mitigating
thrust"8 of the evidence was substantially beyond the scope of all
the special issues.
Here, the jury was able to give mitigating effect to
Demouchette's personality disorder evidence in deciding whether he
acted deliberately. A "major thrust" of his expert testimony was
that an antisocial personality acts on impulse rather than
deliberation. Although a reasonable juror might have found that
this evidence had independent mitigating value in reducing moral
culpability, we cannot say with assurance that a major mitigating
thrust of the evidence was substantially beyond the reach of the
deliberateness issue. Accordingly, Demouchette's argument that he
was entitled to a special jury instruction is foreclosed by Graham.
Demouchette further contends that the operation of the Texas
death penalty scheme so hampered his trial attorneys in developing
a mitigation defense as to deprive him of effective assistance of
counsel. To the extent this is a claim of constructive denial of
sixth amendment rights, we rejected this argument in May v.
Collins,9 explaining that a rule allowing such ineffective
7
950 F.2d at 1026-27 (emphasis in original).
8
Id., 950 F.2d at 1027.
9
948 F.2d 162 (5th Cir. 1991), cert. denied, _____ U.S.
_____, 112 S.Ct. 907, 116 L.Ed.2d 808 (1992).
6

assistance claims would be impossible to cabin because tactical
decisions concerning the type of evidence to present in sentencing
proceedings "are always channelled by the requirements of the
statute under which the state proceeds."10 To the extent the
argument would fault trial counsel's decision to forego developing
mitigating evidence that might also be hurtful, it offers no more
than the eighth amendment contention which likewise is foreclosed.
For these reasons, the application for a certificate of
probable cause and the motion for stay of execution are DENIED.
10
May, 948 F.2d at 167; see also Black v. Collins, 962 F.2d
394, 407 (5th Cir.), cert. denied, _____ U.S. _____, 112 S.Ct. 2983
(1992).
7