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Revised October 26, 1996
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 98-50268
_____________________________________
GEORGE CORDOVA,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
______________________________________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________________________________
October 6, 1998
Before HIGGINBOTHAM, DAVIS, and DENNIS, Circuit Judges.
DAVIS, Circuit Judge:
George Cordova, a Texas death row inmate, seeks a certificate
of probable cause to appeal the district court's dismissal of his
habeas petition. We deny the certificate.
I.
Cordova was first convicted for the capital murder of Jose M.
Hernandez and sentenced to death in 1982. The Texas Court of
Criminal Appeals affirmed Cordova's conviction and sentence on
direct appeal. Cordova v. State, 698 S.W.2d 107 (Tex. Crim. App.
1985), cert. denied, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352

(1986). This court, however, overturned Cordova's conviction
because the trial court failed to instruct the jury on lesser
included offenses. Cordova v. Lynaugh, 838 F.2d 764 (5th Cir.
1988), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 932
(1988).
Cordova was retried in June 1989 and was again convicted of
capital murder. The jury affirmatively answered the two special
issues submitted under former article 37.071(b) of the Texas Code
of Criminal Procedure, and the trial court sentenced Cordova to
death by lethal injection. The Court of Criminal Appeals affirmed
Cordova's conviction and sentence, Cordova v. State, No. 70,926
(Tex. Crim. App., April 27, 1994), and the Supreme Court denied
Cordova's petition for writ of certiorari. Cordova v. Texas, 513
U.S. 1020, 115 S.Ct. 585, 130 L.Ed.2d 499 (1994).
Cordova filed a state habeas application, which he amended
twice. The trial court, following an evidentiary hearing on
Cordova's application, recommended that Cordova's habeas petition
be denied. The Texas Court of Criminal Appeals denied all relief
in October 1995. Ex parte Cordova, No. 16,148-02 (Tex. Crim. App.,
October 18, 1995). Cordova then filed his federal petition for
habeas relief. The district court denied Cordova's petition and
also denied a certificate of probable cause. Cordova v. Johnson,
993 F.Supp. 473 (W.D. TX 1998). This appeal followed.
II.
The State established essentially the same facts in the second
2

trial as we reported in our initial opinion. See Cordova v.
Lynaugh, 838 F.2d 764 (5th cir. 1988). In summary, at
approximately 2:30 a.m. on August 4, 1979, George Cordova, Manuel
Villanueva and two other men approached Hernandez and Cynthia West,
who were parked in a well-lit parking lot. West saw Cordova strike
Hernandez with a tire iron and Villanueva attack Hernandez with a
knife. Cordova dragged West out of the car and forced her to a
nearby wooded area where he, Villanueva, and a third man raped her.
After the attackers left, West returned to the parking lot and
discovered Hernandez lying dead in a pool of blood.
III.
The standard for granting a certificate of probable cause is
whether Cordova has made a substantial showing that he was denied
a federal right. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct.
3383, 77 L.Ed.2d 1090 (1983). The Anti-terrorism and Effective
Death Penalty Act ("AEDPA") is not applicable. After careful
consideration of the record, the briefs of the parties and oral
argument, and for the reasons set forth below, we deny the
certificate.
A.
Cordova argues first that the trial court's jury instructions
given during the punishment phase of his trial prevented the jury
from considering important mitigating evidence. Cordova predicates
this argument on the following charge, which the trial court gave
in the punishment phase of the trial:
3

"You are instructed that the law of the parties, on which
you were instructed at the first phase of the trial, has
no applicability to this phase of the trial. In
answering the Special Issues, you will consider only such
evidence, if any, as you may believe relevant to the
conduct, if any, of the defendant at the time of the
offense, and to his future conduct." (emphasis added)
Cordova contends that the language emphasized in the above
charge precluded the jury from considering his troubled background
and family history and the fact that Villanueva--his codefendant
and the triggerman--received a lighter sentence. He reasons that
the jury would reasonably conclude that it could not consider that
evidence because it is not evidence of his conduct at the time of
the offense.
We disagree. Giving the charge a common sense interpretation
in light of all that transpired at trial, we are satisfied that
there is no "reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consideration of
constitutionally relevant evidence." Boyde v. California, 494 U.S.
370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). In context,
it is clear that the court gave the challenged instruction to
explain that the "law of the parties,"1 which applied during the
guilt phase of the trial, did not apply to the jury's sentencing
determination.
1 The trial court gave the following "law of the parties"
charge: "A person is criminally responsible for an offense
committed by the conduct of another if acting with intent to
promote or assist the commission of the offense he solicits,
encourages, directs, aids or attempts to aid the other person to
commit the offense."
4

The challenged instruction supplemented the court's more
general instruction to the jury that it could consider
all of the evidence submitted to you in the trial of the
first part of this case wherein you were called upon to
determine the guilt or innocence of the defendant, and
all of the evidence, if any, admitted before you in the
second part of the trial wherein you are called upon to
determine the special issues hereby submitted to you.
The challenged instruction was obviously necessary to make it
clear that one of the legal principles applicable to the guilt
phase of the trial--the law of the parties--had no application in
the punishment phase. A reasonable jury, considering the court's
instruction as a whole, would not have interpreted it to preclude
them from considering Cordova's family background or the life
sentence his co-conspirator received. See Lauti v. Johnson, 102
F.3d 166, 169-70 (5th Cir. 1996); Drinkard v. Johnson, 97 F.3d 751,
757-64 (5th Cir. 1996).
Moreover, the record demonstrates that Cordova's counsel
understood that the jury could consider these mitigating factors.
During closing argument, Cordova's counsel went through the
juvenile case report and highlighted Cordova's difficult childhood.
Counsel also outlined the fact that codefendant, Villanueva,
pleaded guilty and that the state "saved his life." Defense
counsel drove this point home:
Where is the justice when the man who drives that cold
steel shaft into Jose Hernandez's neck is not before you
or any other jury and the state says "we are going to
save his life." And they bring the person to you who did
not do that act, and tells you, "we want him to be dead."
5

Thus, when the instructions are considered in their entirety,
in the context of the entire trial, they did not preclude the jury
from considering the mitigating evidence proffered by Cordova.

B.
Cordova argues next that the trial court violated Penry v.
Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), when
it refused to give a specific instruction to the jury authorizing
it to consider as a mitigating factor that Villanueva rather than
Cordova was the triggerman and that Villanueva received a life
sentence.
To the extent that Cordova contends that the jury was
prevented from considering as mitigating evidence that he was not
the triggerman, this argument is foreclosed by our cases. The
Texas capital sentencing scheme allows the jury to give adequate
consideration to evidence that the defendant was not the
triggerman. See Nichols v. Scott, 69 F.3d 1255, 1267-68 (5th Cir.
1995); Stewart v. Collins, 978 F.2d 199, 201 (5th Cir. 1992); Drew
v. Collins, 964 F.2d 411, 420-21 (5th Cir. 1992).
Cordova also argues that the jury was prevented under the
court's instruction from considering "that his
triggerman/codefendant received a lesser life sentence." This
court has held that a capital defendant is not entitled to
introduce evidence of a codefendant's sentence. In Brogdon v.
Blackburn, 790 F.2d 1164 (5th Cir. 1986), we held that the trial
court did not err in excluding evidence of a co-defendant's
6

sentence because that sentence was irrelevant to a defendant's
"'character, prior record, or the circumstances of the offense.'"
Id. at 1169 (quoting Lockett v. Ohio, 438 U.S. 586, 600 n.7, 98
S.Ct. 2954, 2962 n.7, 57 L.Ed.2d 973 (1978). See also Penry, 492
U.S. at 328, 109 S.Ct. at 2952.
Cordova argues that Brogdon does not control because in that
case we dealt with the admissibility of evidence of a codefendant's
sentence whereas in his case the evidence was admitted. He argues
that because the evidence of Villanueva's life sentence was
admitted during the punishment phase, the jury was entitled to give
effect to that evidence.
Cordova has failed to present any authority in support of his
argument that the court must give a Penry instruction directing the
jury to consider constitutionally irrelevant mitigating evidence.
We decline to announce such a rule. To accept Cordova's position
would eviscerate Penry by requiring a special instruction
regardless of the nature of the evidence. The defendant has no
right to receive a special instruction directing the jury to
consider certain mitigating evidence unless the evidence is
constitutionally mitigating. The evidence of Villanueva's sentence
had no relevance to Cordova's background or character or to the
circumstances of the offense that militate against imposing a death
sentence. Penry, 492 U.S. at 318, 109 S.Ct. at 2946. No Penry
instruction was required.
Cordova has failed to make a substantial showing of the denial
7

of a federally guaranteed right. We deny a certificate of probable
cause. We also vacate the stay of execution.
8