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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-50443
_______________
DEXTER HOOVER,
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 29, 1999
Before GARWOOD, SMITH, and
commit, and had committed, the offense of
BENAVIDES, Circuit Judges.
burglary of a building. The indictment
included a list of acts allegedly committed by
JERRY E. SMITH, Circuit Judge:
Hoover, any one of which, the state
contended, would serve to fulfill the overt act
Dexter Hoover appeals the denial of his
element of the conspiracy charge.
petition for writ of habeas corpus, challenging
the jury instructions given in his trial for
Hoover requested an instruction requiring
conspiracy in state court, claiming that by
the jury, by special ballot, to indicate which
omission the instructions denied him the
overt act or acts it unanimously agreed had
assurance of a unanimous jury verdict as
satisfied the overt-act requirement of the
guaranteed by the Texas Constitution.
conspiracy charge. The trial court denied the
Because we find no error cognizable within the
motion and, instead, recited the list of available
limited scope of review permitted to us, we
overt acts and explained that, to find Hoover
affirm.
guilty, the jury would need also to find that he
and at least one of the alleged co-conspirators
I.
had committed "one or more" of the
Hoover was charged with engaging in
enumerated acts, though "not necessarily that
organized criminal activity. The indictment
two persons performed the same overt act
charged that he had combined with others to
together." The court instructed that to find

Hoover guilty, it needed to reach a unanimous
to be as to the overt act that involves
verdict.
this Defendant, and an overt act as it
relates with these two other defendants.
The jury arguments of both sides helped to
clarify this charge with regard to the question
The intermediate state appellate court
whether the unanimity needed to extend to the
affirmed in an unpublished opinion on the
jury's selection of particular overt acts. In the
ground that, under Texas law, a general
defense's opening statement, counsel
verdict satisfies the unanimity requirement
explained that
under these circumstances if the defense has
not objected to the sufficiency of the evidence
I anticipate that the judge will instruct
supporting any of the alleged overt acts. The
you . . . [that] no person may be
Texas Court of Criminal Appeals refused
convicted of an offense unless each
Hoover's petition for discretionary review.
elementSSeach element, not justSSyou
Hoover then filed an application for habeas
know, weSSsix of us agree that overt act
relief in state court, which was denied without
number five occurred, and four of us
written order.
agree that overt act number fifteen
occurred, and eleven of us agree that
Hoover filed the instant federal habeas
overt act number twenty-two occurred.
petition, raising, among others, a claim that the
No, but each elementSSI mean, it
jury instructions were improper because they
doesn't have to be all twenty-two, but
did not guarantee juror unanimity. After
all twelve have to agree on at least one.
Hoover was denied relief in the district court,
this court issued a certificate of appealability
Meanwhile, in his closing, the prosecutor
solely on the jury-instruction question, and
told the jury that
that is thus the only issue before us.
[n]ow, as you vote on these overt acts,
II.
I would suggest to you that whoever the
The district court's denial of Hoover's habeas
chairman of the jury may be, that you
petition is, as to questions of law, subject to de
take them up individually and say, "How
novo review. See Dyer v. Johnson, 105 F.3d
many of you believe that Overt Act
607, 609 (5th Cir. 1996). The scope of our
No. 1 has been proved beyond a
review of the underlying state-court
reasonable doubt?" . . . You know if
prosecution, however, is established by the
it's unanimous by twelve, or it's ten to
Antiterrorism and Effective Death Penalty Act
two, or nine to three, whatever, put it
of 1996 ("AEDPA"). See Lindh v. Murphy,
out to the side. And take each one of
521 U.S. 320, 335-36 (1997) (applying
them like that, and go through all of
AEDPA to habeas cases filed after its effective
them. But all it takes to convict is one
dates of April 24, 1996). That statute sets a
of these overt acts as it relates to this
standard of review under which federal habeas
Defendant doing something in
relief is denied
furtherance of this conspiracy and an
overt act relating to at least two other
with respect to any claim that was
defendants. So if you find and believe
adjudicated on the merits in State court
that all four of these people came up
proceedings unless the adjudication of
here to Junction on January the 14th and
the claim . . . (1) resulted in a decision
15th and committed this burglary, and as
that was contrary to, or involved an
to those two overt acts, if you find . . .
unreasonable application of, clearly
yes, that's what happened, we all agree
established Federal law, as determined
that that overt act is true and correct
by the Supreme Court of the United
beyond a reasonable doubt, it doesn't
States.
make any different about the other overt
acts. Your unanimous verdict only has
28 U.S.C. � 2254(d) (1998). In applying this
2

standard, we must decide (1) what was the
offense, and each of these methods may be
decision of the state courts with regard to the
submitted alternatively in the charge to the
questions before us and (2) whether there is
jury." Renfro v. State, 827 S.W.2d 532,
any established federal law, as explicated by
635-36 (Tex. App.SSHouston [1st Dist.] 1991,
the Supreme Court, with which the state court
pet. ref'd) (internal citations and quotations
decision conflicts.
omitted). Finally, Texas makes a practice of
upholding jury verdicts in conspiracy cases,
III.
even where the trial court fails entirely to
In this case, the state courts decided that
instruct the jury that it must agree on the
the state constitution's unanimous verdict
same overt act, if the defense fails to object
guarantee is satisfied when the jury
that the evidence was insufficient to support
instructions include a list of acts any one of
any of the alleged overt acts. See Daniel v.
which might qualify as the overt act required
State, 704 S.W.2d 952 (Tex. App.SSFort
by the definition of the crime charged; the
Worth 1986, no pet.) (citing Vasquez v. State,
defense does not object that any of these acts
665 S.W.2d 484, 486 (Tex. Crim. App. 1984).
is supported by insufficient evidence; the court
The trial court here satisfied these
admonishes the jury that its verdict must be
requirements.
unanimous; and the opening statement of the
defense and the closing statement of the
IV.
prosecution clarify that the jury must be
The next step, then, is to discover what, if
unanimous with regard to which overt act(s)
any, "clearly established federal law, as
were committed to satisfy the relevant criminal
explicated by the Supreme Court," might be
element; but the defense is denied a request to
offended by this state-court practice. We first
have submitted to the jury a special verdict
note that we cannot find, as petitioner would
form that would have required the jury to
like, that the state court violated any federal
specify which overt act(s) it found to have
right to a unanimous verdict in state court,
satisfied the element. This decision is
because the Supreme Court "has not held that
consistent with Texas practice, which supports
the Constitution imposes a jury unanimity
considering the jury instructions and the
requirement."2 We therefore look for more
arguments of counsel together to determine
subtle ways in which Hoover's trial may have
the jury's understanding of its duties, and
violated rights explicated by the Court.
whether that understanding was sufficient to
negate possible error in the jury instruction or
The possibility arises that the state court
rendered such error harmless.1
violated Hoover's rights by allowing the jury
to select amongst the list of available overt
Texas practice also comports with listing
acts for the one it thought satisfied the overt
the enumerated overt acts to the jury and
act requirement, without agreeing unanimously
allowing it to select those acts (if any) that it
to the same overt act, and identifying that one.
finds to have been committed and therefore to
Supreme Court text gives a bit of support to
satisfy the overt act requirement of the
this contention. As the Richardson Court
conspiracy charge. "Each count of a charging
noted,
instrument may contain as many separate
paragraphs charging that offense as necessary,
Finally, this Court has indicated that the
as long as no more than one offense is charged
in any count . . . . An indictment may allege
different methods of committing the same
2 See Richardson v. United States, 119 S. Ct.
1707, 1712 (1999) (citing Johnson v. Louisiana,
406 U.S. 356, 366 (1972) (Powell, J., concurring)
1 See Gowans v. State, 995 S.W.2d 787 (Tex.
(noting that "in criminal cases due process of law
App.-Houston [1st Dist.] 1999, no pet.); Ramos v.
is not denied by a state law which dispenses with
State, 991 S.W.2d 430 (Tex. App.SSHouston [1st
. . . the necessity of a jury of twelve, or unanimity
Dist.] 1999, pet. ref'd).
in the verdict")).
3

Constitution itself limits a State's power
therefore cannot agree with Hoover that the
to define crimes in ways that would
failure of the state court to require the jury to
permit juries to convict while
identify the overt act to which it had
disagreeing about means, at least where
unanimously agreed violated an independent
that definition risks serious unfairness
constitutional right.
and lacks support in history or tradition.
Schad v. Arizona, 501 U.S., at 632-633,
The Supreme Court has, however,
111 S. Ct. 2491 (plurality opinion); id.,
explicated one narrow constitutional right of
at 651, 111 S. Ct. 2491 (SCALIA, J.,
relevance to state court practice in this case.
concurring) ("We would not permit . . .
While federal law does not establish a
an indictment charging that the
unanimous jury requirement for state-court
defendant assaulted either X on Tuesday
proceedings, the Texas Constitution does
or Y on Wednesday . . . .").
provide such a right in felony trials.4 The
Supreme Court has held that, when a state
Richardson, 119 S. Ct. at 1711.
guarantees a structural protection, it violates
the Due Process Clause of the federal
Further consideration of Richardson
Constitution if it fails meaningfully to vindicate
reveals, however, that the Court did not
therein, and has not elsewhere, explicated a
constitutional requirement that state-court
juries must agree to a single act that satisfies
the overt act element of the relevant crime,
and then identify that act in a special ballot. In
(...continued)
fact, the Court has not even firmly established
[w]here . . . an element of robbery is force
such a requirement for federal juries.3 We
or the threat of force, some jurors might
conclude that the defendant used a knife to
create the threat; others might conclude he
3 In Richardson, the Court held that "a jury in
used a gun. But that disagreementSSa
a federal criminal case cannot convict unless it
disagreement about meansSSwould not
unanimously finds that the Government has proved
matter as long as all 12 jurors unanimously
each element . . . . [A] federal jury [, however,]
concluded that the Government had proved
need not always decide unanimously which of
the necessary related element, namely that
several possible . . . means the defendant used to
the defendant had threatened force."
commit an element of the crime." Richardson,
119 S. Ct. at 1710. The Court there considered a
Id.
challenge to a continuing criminal enterprises
("CCE") conviction. It held that the jury in CCE
We note that the Court did not require, even
cases must agree unanimously which three acts had
when directing that the jury agree unanimously as
been committed by a defendant accused of having
to the specific act taken, either that this unanimity
undertaken a CCE, because it understood each of
requirement be made clear from the instructions
those acts to be an independent element of the
without reference to the statements of counsel to
crime. Id. at 1709.
the jury, or that the court instruct the jury not only
unanimously to agree on a specific act, but also to
Had the Court understood the relevant element
identify that act in a specific verdict. Even if
of the crime to be merely that a "series" of acts had
Texas were required to vindicate its unanimous-
been committed, however, then, said the Court, the
jury guarantee in the same way that the federal
acts making up that series would merely have been
courts ensure the Sixth Amendment guarantee, we
"means" of committing the element, and jury
cannot say that it has failed to do so in these
unanimity as to which means (which criminal acts)
circumstances, under the narrow scope of review
had actually been performed would not be
permitted us under the AEDPA.
necessary, so long as each juror agreed that a
"series" had been performed. The Court attempted
4 See TEX. CONST. ART. V, � 13; TEX. CODE
to illustrate this distinction by explaining that
CRIM. PROC. ANN. art. 36.29 (West 1998)
(continued...)
(guaranteeing a jury trial in felony criminal cases).
4

that guarantee.5 We assume, arguendo only,
foundation for decisionmaking, one of
that this principle applies outside the context
the more obvious merits of our federal
of Evitts and related cases. Accordingly, the
system is the opportunity it affords each
only federal question is to determine whether
State, if its people so choose, to become
Texas, having guaranteed the right to a
a `laboratory' and to experiment with a
unanimous verdict, has so deviated from that
range of trial and procedural
guarantee as to have denied federal due
alternatives.
process of law.
Johnson v. Louisiana, 406 U.S. 356, 376
V.
(Powell, J., concurring).
The state courts' decision that the
guarantee of unanimity was sat isfied by the
We certainly cannot therefore say that the
practice in this case does not violate due
Supreme Court requires that Texas, in
process. There is no suggestion in the
vindicating its right to a unanimous verdict in
Supreme Court's jurisprudence that a state,
felony cases, follow exactly the procedures
having established a guarantee of a unanimous
established by federal courts in vindicating the
jury in felony cases, must vindicate that right in
right to a unanimous verdict in federal criminal
conspiracy trials by requiring that the trial
cases. Instead, we can require of Texas
court either (1) give instructions to the jury,
merely that it not "withdraw [the right]
explicit in themselves without regard to the
without consideration of applicable due
arguments of counsel, that it must agree as to
process norms."6 Evitts, 469 U.S. at 400-01.
which act in a list of overt acts the defendant
There is no reason, under these facts, to think
had committed before it could find him guilty
that, under "established Federal law, as
of conspiracy; or (2) require that the jury issue
determined by the Supreme Court of the
a special verdict signifying which of the overt
acts it has found the defendant to have
committed. Rather, to the extent that it has
6 In defining these "applicable due process
expounded law in this field at all, the Court has
norms," the Court has instructed that
indicated that states must be allowed to
determine for themselves, within reason, what
[o]nce it is determined that due process
procedures satisfy the rights guaranteed by
applies, the question remains what process
those states.
is due. It has been said so often by this
Court and others as not to require citation of
[A]t least in defining the elements of the
authority that due process is flexible and
right of jury trial, there is no sound basis
calls for such procedural protections as the
for interpreting the Fourteenth
particular situation demands. Consideration
of what procedures due process may require
Amendment to require blind adherence
under any given set of circumstances must
by the States to all details of the federal
begin with a determination of the precise
Sixth Amendment standards. . . . [I]t
nature of the government function involved
strains credulity to believe that [the Civil
as well as of the private interest that has
War Amendments] were intended to
been affected by governmental action. To
deprive the States of all freedom to
say that the concept of due process is
experiment with variations in jury trial
flexible does not mean that judges are at
procedure. In an age in which empirical
large to apply it to any and all relationships.
study is increasingly relied upon as a
Its flexibility is in its scope once it has been
determined that some process is due; it is a
recognition that not all situations calling for
procedural safeguards call for the same kind
5 See U.S. CONST. AMEND. XIV; Evitts v.
of procedure.
Lucey, 469 U.S. 387, 400-01 (1985) (holding that
because Kentucky allowed criminal appeals, it was
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)
required to administer them in a manner consistent
(internal citations and quotations omitted); see also
with federal Due Process Clause).
Goldberg v. Kelly, 397 U.S. 254, 262 (1970).
5