Harris v. Cockrell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-41395
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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.
GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The State of Texas appeals the grant of a
writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The petitioner, David Harris, cross-
appeals the rejection of his claims that the jury
in his capital trial was unconstitutionally pre-
cluded from giving mitigating effect to evi-
dence of his alcoholism and that the admission
of evidence of an extraneous offense of which
he had been acquitted denied him a fair trial.
We affirm in part, reverse in part, and render
judgment in favor of the state.

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

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

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

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

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

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considerable evidence of guilt, there is no rea-
sonable probability that, in their absence, the
result would have been different. That is, “we
cannot say that the prosecutor’s remarks in
this case were a crucial, critical, highly signif-
icant factor upon which the jury based its ver-
dict of guilty.” Accordingly, those statements
did not render Harris’s trial fundamentally
unfair.
V.
Harris contends that he was deprived of a
fair sentencing determination by the introduc-
tion of evidence concerning a crime for which
he had been indicted but acquitted. During the
sentencing phase, the state introduced evi-
dence that Harris had been charged with burg-
lary, robbery, attempted robbery, and kidnap-
ing. He eventually was acquitted of kidnaping
and argues that the introduction of this evi-
dence was contrary to the collateral estoppel
aspect of double jeopardy and thus constituted
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
collateral estoppel, Ashe v. Swenson, 397 U.S.
436 (1970), that doctrine “does not preclude
[the state] from relitigating an issue when it is
presented in a subsequent action governed by
a lower standard of proof,” Dowling v. United
States, 493 U.S. 342, 349 (1990).
Because “extraneous offenses offered at the
punishment phase of a capital trial need not be
proven beyond a reasonable doubt,” Vega, 149
F.3d at 359, the relevant standard of proof
necessarily was lower than that at Harris’s
criminal trial for kidnaping. Collateral estop-
pel therefore did not preclude the introduction
of evidence pertaining to these charges, and
Harris’s due process rights were not violated.
See Vega, 149 F.3d at 359.
In summary, we REVERSE the grant of
habeas relief, AFFIRM the denial of all re-
maining claims, and RENDER judgment in
favor of the state.
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.

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