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          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                  May 15, 2012

                                  No. 11-70032                    Lyle W. Cayce
                                                                       Clerk

DONNIE LEE ROBERTS,

                                            Petitioner–Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                            Respondent–Appellee



                 Appeal from the United States District Court
                       for the Eastern District of Texas


Before KING, JOLLY, and GRAVES, Circuit Judges.
KING, Circuit Judge:
        Donnie Lee Roberts was convicted of capital murder and sentenced to
death. The Texas Court of Criminal Appeals rejected both his direct and
postconviction appeals. He then filed for federal habeas relief in the district
court. The district court rejected his petition for habeas relief, but granted him
a certificate of appealability to pursue three claims arising from his sentencing
hearing dealing with, respectively, the restrictions on his expert’s testimony, the
alleged ineffective assistance of his trial counsel in failing to object to victim
impact testimony, and the restriction on execution impact testimony. Roberts’s
first claim is procedurally defaulted and, alternatively, fails on the merits. His
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                                 No. 11-70032

ineffective assistance claim also fails on the merits, and his execution impact
claim is procedurally barred. We, therefore, AFFIRM the district court’s denial
of habeas relief to Roberts.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The district court summarized the facts underlying Donnie Lee Roberts’s
(“Roberts”) case as follows:
             At the time of the murder, [Roberts] lived with the victim,
      Vicki Bowen. [Roberts] was unemployed, often drank alcohol, and
      used cocaine. Bowen worked as a dental assistant. On October 15,
      2003, she went shopping with co-worker Brenda Bland, but she did
      not show up for work the next day. Because Bowen was a punctual
      person who always called if she was going to be late, Bland became
      concerned and went to Bowen’s house to check on her. When Bland
      arrived at the home, she found the front door open. After knocking
      and receiving no answer, Bland entered the home and found Bowen
      dead. Bland noticed that Bowen was still in the scrubs she had worn
      at work the previous day. She was covered by a blanket and was
      lying face down with her head turned to the side in a pool of blood.
      Blood spatters were present in the living room on the coffee table,
      the couch, and the walls. The medical examiner would later
      determine that Bowen died from two gunshot wounds to the head.
            It was immediately apparent from an examination of the
      scene that Bowen’s television and her son’s truck were missing.
      That same day, the police found [Roberts] after tracking down the
      stolen truck. It was later determined that [Roberts] had taken the
      truck, the television, Texans/Titans football tickets, jewelry, a
      Western Union money order, a .22 rifle, and a .22 pistol. [Roberts]
      had sold the football tickets for one hundred dollars. He had bought
      cocaine from Edwin Gary on October 15 on three different occasions,
      the last of which involved trading the .22 caliber pistol. [Roberts]
      had apparently abandoned the .22 rifle, later determined to be the
      murder weapon, a few blocks from where he was found. The
      Western Union money order was found in the residence at which
      [Roberts] had parked his truck, but the television and the jewelry
      were never recovered.
            [Roberts] was interviewed and gave a confession. In that
      confession, he acknowledged that he had “a crack cocaine problem”


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                                  No. 11-70032

      and that he would go to bars, get drunk, and then look for drugs.
      With regard to the victim’s death, [Roberts] said, “I pointed the gun
      at her and I told her just give me some money.” Later in the
      interview, [Roberts] stated: “I pointed the gun at her and I said, ‘if
      you’d just give me some money.’ And she said ‘No.’ And then I said,
      ‘Look, it doesn’t have to be this way.’ That’s all I remember saying
      to her. And the next thing I know, I shot her.”
            At trial, [Roberts] testified to a different sequence of events.
      He claimed that he picked up the .22 rifle because it was out of
      place, near the door. He also claimed that he saw what looked like
      a .22 pistol in Bowen’s pocket and that she moved her hand to her
      pocket to reach for it. He then said that he “must have chambered
      a round into the .22 rifle at that time,” but he did not remember if
      he pulled the safety off. He also claimed that he did not remember
      his gun firing but that he knows it did. [Roberts] further testified
      that he did not intend to rob Bowen at the time he shot her, but he
      admitted to taking items of her property later.
Roberts v. Thaler, No. 1:09cv419, 2011 WL 5433982, at *1–2 (E.D. Tex. Nov. 7,
2011) (citing Roberts v. State, 220 S.W.3d 521, 524–25 (Tex. Crim. App. 2007)).
      Roberts was found guilty of capital murder on October 15, 2004, and,
following a subsequent sentencing hearing, was sentenced to death on October
27, 2004. Id. at *2. Roberts’s conviction and sentence were both affirmed by the
Texas Court of Criminal Appeals (“TCCA”) on direct appeal. See Roberts, 220
S.W.3d at 524–25. His petition for state postconviction relief was denied, with
the TCCA adopting most, but not all, of the lower court’s findings and
conclusions. See Ex parte Roberts, Nos. 71,573-01, 71,573-02, 2009 WL 1337443,
at *1 (Tex. Crim. App. May 13, 2009).
      Roberts then filed for federal habeas relief in the district court for the
Eastern District of Texas, raising nineteen claims for relief. See Roberts, 2011
WL 5433982, at *2–3. The district court rejected all of Roberts’s claims for
habeas relief on a variety of procedural and substantive grounds on November
7, 2011. Id. at *26. On December 7, 2011, the district court granted Roberts a
certificate of appealability (“COA”) to continue to pursue three of his claims

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before this court: (1) that his right to be free from cruel and unusual punishment
was violated when the trial court refused to let his expert testify during
Roberts’s sentencing that Roberts’s combined use of alcohol and cocaine caused
him to commit the capital murder; (2) that he was denied the effective assistance
of counsel when his trial counsel failed to object during the sentencing hearing
to testimony that Roberts alleges was improper victim impact evidence from an
extraneous crime; and (3) that his right to be free from cruel and unusual
punishment was violated when the trial court refused to allow testimony from
Roberts’s family member as to how his execution would impact her. We first
address the proper standard of review under the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, and then resolve each of
Roberts’s claims in turn.
                               II. DISCUSSION
A. Standard of Review
      The district court’s grant of a COA to Roberts gives us jurisdiction to
review his claims. See 28 U.S.C. § 2254(c)(1)(A); Miller–El v. Cockrell, 537 U.S.
322, 335–36 (2003). “In an appeal of the district court’s denial of habeas relief,
‘this court reviews the district court’s findings of fact for clear error and its
conclusions of law de novo, applying the same standard of review that the
district court applied to the state court decision.’” Austin v. Cain, 660 F.3d 880,
884 (5th Cir. 2011) (quoting Jones v. Cain, 600 F.3d 527, 535 (5th Cir. 2010)).
      Roberts’s appeal is governed by AEDPA, 28 U.S.C. § 2254. Under
§ 2254(d)(1), if the state court denied the petitioner’s claim on the merits, a
federal court may grant habeas corpus relief only if the state court’s adjudication
of his claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States . . . .” To be clear, “a federal habeas
court may not issue the writ simply because that court concludes in its

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independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000) (emphasis
added); see also Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (“It bears
repeating that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.”). “A state court’s decision is contrary to
clearly established federal law if it applies a rule that contradicts the governing
law set forth in Supreme Court cases . . . or if the state court decide[s] a case
differently than the United States Supreme Court previously decided a case on
a set of nearly identical facts.” Jones, 600 F.3d at 535 (citations and internal
quotation marks omitted). Similarly, “[a] state court’s decision involves an
unreasonable application of clearly established federal law if the state court
‘correctly identifies the governing legal rule but applies it unreasonably to the
facts of a particular prisoner’s case.’” Fields v. Thaler, 588 F.3d 270, 273 (5th Cir.
2009) (quoting Williams, 529 U.S. at 407–08).
      AEDPA also governs our review of factual determinations. See Chester v.
Thaler, 666 F.3d 340, 348 (5th Cir. 2011). Under § 2254(e)(1), the state court’s
factual findings are accorded a presumption of correctness and the petitioner
may only rebut this presumption with clear and convincing evidence. See
Miller–El v. Dretke, 545 U.S. 231, 240 (2005). Moreover, we may not grant
habeas relief unless the state court determination “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2).
      Finally, we may not review a habeas claim “if the last state court to
consider that claim expressly relied on a state ground for denial of relief that is
both independent of the merits of the federal claim and an adequate basis for the
court’s decision.” Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001) (emphasis
added). Thus, “[a]s a rule, a state prisoner’s habeas claims may not be

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entertained by a federal court when (1) a state court [has] declined to address
[those] claims because the prisoner had failed to meet a state procedural
requirement, and (2) the state judgment rests on independent and adequate
state procedural grounds.” Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (citation
and internal quotation marks). The twin requirements of independence and
adequacy demand that the state court’s dismissal must “‘clearly and expressly’
indicate that it rests on state grounds which bar relief, and the bar must be
strictly or regularly followed by state courts, and applied to the majority of
similar claims.” Finley, 243 F.3d at 218 (quoting Amos v. Scott, 61 F.3d 333,
338–39 (5th Cir. 1995)). Put differently, “[t]o produce a federally cognizable
default, the state procedural rule ‘must have been ‘firmly established and
regularly followed’ by the time as of which it is to be applied.’” Busby v. Dretke,
359 F.3d 708, 718 (5th Cir. 2004) (quoting Ford v. Georgia, 498 U.S. 411, 424
(1991)). A petitioner may not overcome a procedural default based on
independent and adequate state grounds, unless the prisoner can establish cause
for the default and actual prejudice as a result of the alleged violation of federal
law, or that the failure to consider his claims would result in a fundamental
miscarriage of justice because he is “actually innocent” of the offense underlying
his conviction or “actually innocent” of the death penalty. Williams v. Thaler,
602 F.3d 291, 307 (5th Cir. 2010) (citing Schlup v. Delo, 513 U.S. 298, 326–27
(1995); Sawyer v. Whitley, 505 U.S. 333, 340 (1992)). While our normal procedure
is to consider issues of procedural default first, we may nonetheless opt to
examine the merits first, especially when procedural default turns on difficult
questions of state law. Busby, 359 F.3d at 720.
B. Roberts’s First Claim: The Limitation on His Expert’s Testimony
      Roberts’s first claim is that his rights under the Eighth Amendment were
violated when the trial court refused to allow his expert, Dr. Katherine McQueen
(“Dr. McQueen”), to testify that it was Roberts’s combined use of alcohol and

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crack cocaine that caused him to commit the capital murder. The trial court held
a pre-sentencing evidentiary hearing to determine what the scope of Dr.
McQueen’s testimony would be. Roberts, 220 S.W.3d at 527–28. Upon reviewing
Dr. McQueen’s qualifications, the basis for her testimony, and arguments from
both sides, the trial court determined that Dr. McQueen could not give her
“opinion about whether [Roberts’s addiction to cocaine and alcohol] had some
bearing on th[e] offense.” Id. at 529. Dr. McQueen was permitted to testify that
there was statistical evidence showing a correlation between the combined use
of alcohol and cocaine and violence, that this relationship was stronger when
both drugs were ingested together rather than individually, and that Roberts
was addicted to both. Id. However, during the sentencing hearing itself,
Roberts’s counsel attempted to ask Dr. McQueen, “[W]as there some or is there
some relationship to Donnie Roberts’[s] dependence on alcohol, dependence on
cocaine, dependence on a combination thereto in relationship to the events of the
[day of the murder]?” Id. at 529–30. The prosecution objected and the objection
was sustained. Id. at 530.
       On direct appeal before the TCCA, Roberts argued that, by not permitting
Dr. McQueen to testify that his combined use of alcohol and drugs caused him
to commit the offense, the trial court excluded constitutionally relevant
mitigating evidence. Id. at 528. The TCCA first noted that Roberts’s “brief fails
to address the reason the trial court did exclude the evidence: that appellant had
failed to make the requisite showing of reliability under [Texas] Rule [of
Evidence] 702.” Id.1 “Consequently,” the TCCA concluded, “[Roberts]’s briefing

       1
         Texas Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.” In the capital context, Kelly v.
State, 824 S.W.2d 568 (Tex. Crim. App. 1992), provides the governing standard for evaluating
the relevance and reliability of expert testimony.
        Roberts’s brief before the TCCA noted that “the trial court would not allow [his expert]

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is inadequate, and his point of error is subject to rejection on that ground alone.”
Id. On this point, the TCCA cited to Texas Rule of Appellate Procedure 38.1,
which, inter alia, provides that “[t]he brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and
to the record.” TEX. R. APP. PROC. 38.1(i). However, the TCCA then stated,
“Nevertheless, we turn to the merits.” Roberts, 220 S.W.3d at 528. The TCCA
proceeded to reject Roberts’s claim on the merits, id. at 528–31, holding that “the
trial court could reasonably conclude that [Dr. McQueen’s] pharmacological
knowledge and [previous] studies were not a sufficient basis from which to draw
a scientific conclusion about how any particular individual would behave.” Id.
at 530. The district court noted that the TCCA rejected Roberts’s claim on
procedural grounds, but apparently did not agree with its reasoning: “The
parties have not cited, and this Court has not found, authority holding that the
rule forbidding inadequate briefing is strictly or regularly applied evenhandedly
to the vast majority of similar claims. In light of this uncertainty, the Court finds
it easier to resolve this claim on its merits.” Roberts, 2011 WL 5433982, at *14.
The district court then considered Roberts’s claim on the merits and concluded
that “the state court’s rejection of this claim was neither contrary to, nor the
result of an unreasonable application of, clearly established federal law, as



to give her ultimate opinion that [Roberts’s] drug use caused Roberts to commit the crime in
this case.” Roberts only referred to the issue of relevancy when he stated, without providing
any citations, that “[s]uch evidence [as it relates to the circumstances of the particular offense]
is . . . so highly relevant according to the Supreme Court that it may not be excluded.” Roberts
may have been attempting to argue, relying on Lockett v. Ohio, 438 U.S. 586 (1978), and
Tennard v. Dretke, 542 U.S. 274 (2004), that state relevancy requirements must yield to the
constitutional guarantee that “the [capital] sentencing process must permit consideration of
the character and record of the individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process of inflicting the penalty of
death.” Lockett, 438 U.S. at 601 (citation and internal quotation marks omitted). But Roberts
never actually made this point before the state courts—at least not with any clarity—nor did
he cite to any of the relevant Texas statutes or cases that govern this area of law. Indeed,
Roberts makes no reference to procedural default in his briefing on this claim before this court.

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determined by the Supreme Court of the United States in Tennard [and]
Barefoot . . . .” Id. at 16.
       While the TCCA may well have disposed of Roberts’s claim on grounds of
procedural default, its analysis was brief and a credible argument could be made
that the TCCA was merely noting—rather than holding—that Roberts’s claim
was inadequately briefed and thus could be “subject to rejection on that ground
alone.” Roberts, 220 S.W.3d at 527. If the TCCA did find Roberts’s claim
procedurally barred, then we must first consider whether this conclusion
precludes review of the substance of his habeas claim. See Rocha v. Thaler, 619
F.3d 387, 400 (5th Cir. 2010). Given that the TCCA “clearly and expressly” relied
on Texas’s rule regarding adequate briefing in disposing of Roberts’s claim on
this procedural ground, Finley, 243 F.3d at 218, we must examine the TCCA’s
application of this rule in previous cases. We have not had occasion to consider
this issue within our circuit.2
       A survey of the TCCA’s capital sentencing jurisprudence reveals that it
regularly rejects claims, both on direct and postconviction review, on the basis
that these claims are inadequately briefed. See, e.g., Leza v. State, 351 S.W.3d
344, 358 (Tex. Crim. App. 2011) (“The appellant directs us to nowhere in the
record where any such complaints were registered in the trial court, nor have we
found any. Nor does he now offer any justification for treating these arguments



       2
         This court has encountered inadequate briefing as a form of procedural default in
habeas cases arising from the Texas courts, but has either not had occasion to consider it
directly or has only addressed it in the COA context. In Salazar v. Dretke, 419 F.3d 384,
395–96 (5th Cir. 2005), this court confronted a situation where the TCCA had rejected a
petitioner’s argument on procedural grounds of inadequate briefing. However, the district
court concluded that the State had failed to invoke the procedural bar doctrine before the trial
court and had abandoned this claim on appeal. Id. at 395 n.20. Accordingly, the panel did not
address this issue. In Heizelbetz v. Johnson, No. 98-41474, 1999 WL 642862, at *6 (5th Cir.
July 26, 1999), an applicant for a COA was denied the certificate on a claim that the TCCA
concluded was inadequately briefed. The panel concluded that the applicant had failed to
“make a credible showing that his claim [wa]s not procedurally barred.” Id.

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as immune from ordinary principles of procedural default, in contemplation of
the framework for error preservation . . . . For this reason, we regard his
arguments under this point of error as inadequately briefed and decline to reach
their merits.”) (footnotes omitted); Lucio v. State, 351 S.W.3d 878, 896 (Tex.
Crim. App. 2011) (“Appellant’s brief contains no argument or citation to any
authority that might support an argument that if she is guilty, she is guilty only
of injury to a child. . . . We decide that this point of error is inadequately briefed
and presents nothing for review as this Court is under no obligation to make
appellant’s arguments for her.”); Murphy v. State, 112 S.W.3d 592, 596 (Tex.
Crim. App. 2003) (“[B]ecause appellant does not argue that the Texas
Constitution provides, or should provide, greater or different protection than its
federal counterpart, appellant’s point of error is inadequately briefed.”); Salazar
v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001) (dismissing multiple claims
on grounds that “[a]ppellant has briefed these points together, but his brief
presents no authority in support of his argument”); Heitman v. State, 815 S.W.2d
681, 690 n.23 (Tex. Crim. App. 1991) (“We do not, by this opinion, retreat from
our [prior] pronouncement . . . that briefs asserting rights under Article I, Sec.
10 of the Texas Constitution were inadequate if they did not provide either
argument or authority in support of that assertion.”).
       While the district court was correct to note that we have not decided
whether Texas’s rule regarding inadequate briefing in the capital context
constitutes a valid procedural bar to federal habeas relief, we hold now that
under the prevailing standards, Texas’s rules have been “regularly followed by
[its] courts, and applied to the majority of similar claims.” Finley, 243 F.3d at
218. Other district courts in our jurisdiction have held as much. See, e.g.,
Woodard v. Thaler, 702 F. Supp. 2d 738, 750–51 & n.9 (S.D. Tex. 2010).3 Our

      3
        One exception is Oliver v. Dretke, No. 1:04CV041, 2005 WL 2403751, at *9 (E.D. Tex.
Sept. 29, 2005), where the court found that “[i]t is not clear that Rule 38.1 has been so

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sister courts of appeal, in addressing analogous provisions from other states,
have likewise found them to act as independent and adequate state procedural
bars. See House v. Hatch, 527 F.3d 1010, 1029–30 (10th Cir. 2008) (holding that
New Mexico’s requirement of adequate briefing is an independent and adequate
procedural bar to federal habeas relief); Clay v. Hatch, 485 F.3d 1037, 1040–41
(8th Cir. 2007) (holding that Arkansas’s proper abstracting rule is an
independent and adequate procedural bar to federal habeas relief).
       In this case, if the TCCA did invoke the briefing requirements of Texas
Rule of Appellate Procedure 38.1 to bar Roberts’s claim, then its determination
constituted an independent and adequate state ground for denial of relief that
procedurally bars federal habeas review. Moreover, Roberts cannot show any
cause for his default nor does he claim that any miscarriage of justice would
result from enforcing such a bar. See Coleman v. Thompson, 501 U.S. 722, 750
(1992). Consequently, we disagree with the district court’s determination that
Roberts’s inadequate briefing does not pose a bar to federal habeas review.
       However, because a credible argument could be made that the TCCA did
not expressly bar Roberts’s claim, we also consider the merits of his claim.
Roberts concedes that Dr. McQueen was permitted to testify that Roberts was
addicted to alcohol and cocaine, and that there is “a very strong connection
between substance use and dependence and violent acts and, in particular,
between dependence on both alcohol and cocaine and violent acts.” Roberts, 220
S.W.3d at 531 (internal quotation marks omitted). Nevertheless, Roberts
appears to take issue with the TCCA’s conclusion, adopted by the district court,
that “the trial court [did not] err[] when it decided to prevent Dr. McQueen from



consistently applied as to constitute an adequate and independent state ground for decision,
[and so] the Court finds that the issue has not been procedurally defaulted.” The district court
provided nothing—neither citations nor reasoning—beyond this bald statement. Such
conclusory statements are unpersuasive.

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taking the extra step of opining whether alcohol and drug dependence was
related to [Roberts]’s violent conduct” on the night of the murder. Id. Roberts
argues that this restriction left Dr. McQueen’s testimony “in the abstract and not
personal so that the jury could give effect to the mitigating evidence that
‘reduced the defendant’s moral blameworthiness’ as contemplated in Tennard
[v. Dretke, 542 U.S. 274 (2004)].”
      Roberts’s argument appears to rest on both Tennard—where the Court
held that the Eighth Amendment requires that the jury be able to consider and
give meaningful effect to a capital defendant’s mitigating evidence—and Barefoot
v. Estelle, 463 U.S. 880 (1983)—where the Court refused to enact a constitutional
per se bar to expert testimony regarding a defendant’s future dangerousness.
But neither case, either individually or in combination, supports Roberts’s claim.
The jury was not prevented from giving meaningful effect to the testimony of Dr.
McQueen; rather, Dr. McQueen was prevented from specifically stating that
Roberts’s dependence on drugs and alcohol caused him to commit the homicide.
This restriction came after Dr. McQueen was unable to show any reliable basis
for such testimony, being unable to cite any specific scientific research for her
conclusions. Roberts, 220 S.W.3d at 528–29. Nonetheless, Dr. McQueen was
permitted to testify broadly and the jury was fully entitled to draw Roberts’s
preferred inference that drugs and alcohol were mitigating factors in the crime
after hearing Dr. McQueen’s testimony. We see no unreasonable application of
Tennard by the TCCA in upholding the trial court’s limitation on Dr. McQueen’s
testimony.
      Moreover, Roberts has shown no unreasonable application of Barefoot. Dr.
McQueen was permitted to testify about Roberts’s drug and alcohol addiction
and the relationship of such an addiction to violent behavior. Indeed, Roberts
was permitted to present the testimony of a second expert confirming the impact
of Roberts’s cocaine and alcohol addiction on his psychology and opining that

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Roberts would not pose a future danger. Barefoot stands for the proposition that
expert testimony predicting a defendant’s future dangerousness is not per se
inadmissible. See Barefoot, 463 U.S. at 896–97 (explaining that because future
dangerousness “is a constitutionally acceptable criterion for imposing the death
penalty,” and it is “not impossible for even a lay person sensibly to arrive at that
conclusion, it makes little sense, if any, to submit that psychiatrists, out of the
entire universe of persons who might have an opinion on the issue, would know
so little about the subject that they should not be permitted to testify”).4 Barefoot
does not require that any mitigating testimony that might be offered by an
expert be admitted into evidence. Accordingly, the TCCA did not unreasonably
apply federal law when it affirmed the trial court’s restrictions on Dr. McQueen’s
testimony.
       In sum, Roberts’s claim is both procedurally barred and fails on the merits.
Consequently, we affirm the district court’s denial of habeas relief on this claim.
C. Roberts’s Second Claim: Ineffective Assistance of Counsel
       Roberts’s second claim on appeal is that he was denied the effective
assistance of counsel when his trial lawyer failed to object to testimony from the
victim of a robbery that Roberts previously committed. See Roberts, 2011 WL
5433982, at *16. To provide the setting, at the sentencing phase of Roberts’s
trial, the State introduced evidence of a series of Roberts’s prior offenses,
including a confession to law enforcement officers that he had committed a
previous murder and a confession that he had badly injured his brother on his
brother’s wedding night.          As part of this evidence, the prosecution called
Elizabeth Thomas, the victim of a robbery by Roberts, to testify about the
robbery and the anxieties and emotional problems that the robbery had caused


       4
        Moreover, as the district court properly observed, there are questions about the
ongoing vitality of Barefoot in the wake of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.
579 (1993). See Flores v. Johnson, 210 F.3d 456, 464–66 (5th Cir. 2000) (Garza, J., concurring).

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her. Roberts, 220 S.W.3d at 531.5 The testimony about Roberts’s prior offenses
was followed by testimony from the mother, father, and son of the victim for
whose death Roberts was on trial about the impact of the murder on them. On
direct appeal to the TCCA, Roberts contended that Thomas’s testimony about
the impact of Roberts’s robbery on her life was improper victim impact evidence
under the TCCA’s holding in Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim.
App. 1997), and that counsel should have objected to its introduction. The TCCA
disagreed that Thomas’s testimony constituted improper victim impact evidence,
explaining that “‘[v]ictim impact’ evidence is evidence of the effect of an offense
on people other than the victim. . . . [and] [t]he evidence presented here was
evidence of the effect on a different offense on the victim (of the extraneous
offense) . . . .” Roberts, 220 S.W.3d at 531 (footnote omitted) (emphasis in
original). The TCCA then concluded that the evidence was admissible and “even
if it weren’t, counsel was not ineffective for failing to lodge an objection based
upon a case that is clearly distinguishable from the present case.” Id. The
district court surveyed Cantu and other cases dealing with this class of evidence
and concluded that the TCCA’s position was not unreasonable because “Roberts’s
trial counsel could reasonably have believed, based upon state court precedent,
that objecting to the admission of the victim impact evidence in his case would
have been futile.” Roberts, 2011 WL 5433982, at *20.
      Ineffective assistance of counsel claims are governed by the standards laid
out in Strickland v. Washington:
      First, the defendant must show that counsel’s performance was
      deficient. . . . Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that
      counsel’s errors were so serious as to deprive the defendant of a fair
      trial, a trial whose result is reliable. Unless a defendant makes both


      5
         The State also had two experts testify that Roberts suffered from various
psychological disorders and would pose a future danger.

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                                   No. 11-70032

      showings, it cannot be said that the conviction or death sentence
      resulted from a breakdown in the adversary process that renders
      the result unreliable.
466 U.S. 668, 687 (1984). In order to satisfy the performance prong, “the
defendant must show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. “The proper measure of attorney
performance remains simply reasonableness under prevailing professional
norms.” Id.; see also Wiggins v. Smith, 539 U.S. 510, 521 (2003). Strickland’s
second prong focuses on the result of counsel’s deficient performance: “When a
defendant challenges a death sentence . . . , the question is whether there is a
reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695. In this context, “[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Put
differently, “[i]n assessing prejudice under Strickland, the question is not
whether a court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have been
established if counsel acted differently. . . . Instead, Strickland asks whether it
is ‘reasonably likely’ the result would have been different.” Harrington v.
Richter, 131 S. Ct. 770, 791–92 (2011) (citations and internal quotation marks
omitted). Thus, Strickland demands that the likelihood of a different result
“must be substantial, not just conceivable.” Id. at 792.
      However, this two-prong standard is itself subject to the dictates of
AEDPA. “Surmounting Strickland’s high bar is never an easy task. . . .
Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both highly deferential, . . . and when the two apply in tandem,
review is doubly so . . . .” Premo v. Moore, 131 S. Ct. 733, 739–40 (2011) (citations


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                                  No. 11-70032

and internal quotation marks omitted). The Supreme Court has admonished
that “[f]ederal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id. at 740 (emphasis added);
see also Harrington, 131 S. Ct. at 785 (“The pivotal question is whether the state
court’s application of the Strickland standard was unreasonable. This is
different from asking whether defense counsel’s performance fell below
Strickland’s standard. . . . A state court must be granted a deference and
latitude that are not in operation when the case involves review under the
Strickland standard itself.”).
      In the instant case, the key issue is whether Roberts’s trial counsel was
ineffective in failing to object to the testimony of a victim of an extraneous
offense. We “ha[ve] made clear that counsel is not required to make futile
motions or objections.” Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (citing
Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984) (per curiam)). Accordingly,
if any objection by Roberts’s trial counsel would have been futile, then the failure
to object would not fall below the difficult standard enunciated above.
      Determining whether an objection would have been futile depends on the
state of the law regarding victim impact evidence. To be clear, the Eighth
Amendment does not per se bar the introduction of victim impact evidence in
capital cases. See Payne v. Tennessee, 501 U.S. 808, 827 (1991). Rather, the
germane constitutional prohibition restricts the introduction of “evidence . . .
that is so unduly prejudicial that it renders the trial fundamentally unfair” and
violates the Due Process Clause of the Fourteenth Amendment. Id. at 825.
However, the Court left questions about the relevancy of such evidence to the
states. Id. at 826–29.

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                                       No. 11-70032

       In a series of cases beginning with Ford v. State, 919 S.W.2d 107 (Tex.
Crim. App. 1996), the TCCA set about fleshing out this standard.6 Most relevant
for our purposes is Mathis v. State, 67 S.W.3d 918 (Tex. Crim. App. 2002), where
the TCCA confronted a situation in which a defendant had shot three people,
killing one and leaving another quadriplegic, but the defendant was on trial only
for the murder. Id. at 927. At the defendant’s sentencing, the State called the
nurse of the paralyzed victim to discuss the victim’s medical care needs. Id. at
928. The TCCA allowed the evidence, explaining:
       Unlike in [previous cases], in which the evidence involved testimony
       regarding both the victim’s good qualities and the effect that her
       death had on family members, the testimony in the present case did
       not involve testimony about how third persons were affected by the
       crime, nor was there any discussion about the character of the victim.
       [The nurse]’s testimony focused solely on the medical procedures
       involved in the care of [the victim]. Appellant’s characterization of
       [the nurse]’s testimony as victim impact evidence is incorrect.
Id. at 928 (emphasis added). Mathis and its reasoning figured prominently in
shaping two later TCCA decisions. In Guevara v. State, 97 S.W.3d 579, 583–84
(Tex. Crim. App. 2003), the TCCA held that the testimony of a victim of an
extraneous offense about the impact of that offense on another victim’s mental
impairment was permissible under Mathis. The TCCA further expanded on this
reasoning in Garcia v. State, 126 S.W.3d 921, 929 (Tex. Crim. App. 2004), when

       6
          Initially, the TCCA drew on Payne in concluding that certain kinds of victim impact
evidence might plausibly be relevant to a defendant's moral culpability for capital murder.
Ford, S.W.2d at 115–16. The next year, however, in Cantu v. State, the TCCA circumscribed
this ruling. In Cantu, the defendant was involved in the murder of two teenage girls, but was
initially tried for one of the murders. Cantu, 939 S.W.2d at 631. During his capital sentencing
hearing, the prosecution introduced the testimony of the mother of the victim not named in
the indictment. Id. at 635–36. The TCCA held that it was error for the trial court to admit this
evidence as “[t]he danger of unfair prejudice to a defendant inherent in the introduction of
‘victim impact’ evidence with respect to a victim not named in the indictment on which he is
being tried is unacceptably high.” Id. at 637. Such evidence was irrelevant and inadmissible
for the purposes of capital sentencing, the TCCA concluded, effectively combining both
inquiries. Id. Cantu’s reach has, in turn, been circumscribed by the decisions we describe
below.

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                                       No. 11-70032

confronted with the prosecution’s attempt to introduce medical records from a
bystander wounded in the defendant’s shooting of a police officer:
       In Mathis v. State . . . we stated that “victim impact evidence” is
       “generally recognized as evidence concerning the effect that the
       victim’s death will have on others, particularly the victim’s family
       members.” Appellant mischaracterizes Luna’s medical records as
       victim impact evidence. The records did not reveal anything about
       Luna’s good character or how third persons were affected by the
       death of the victim named in the indictment (the police officer). The
       records reflected in the most technical terms Luna’s medical
       condition while in the hospital. While the records might have been
       irrelevant or inadmissible for other reasons, they were not
       irrelevant or inadmissible because they were victim impact
       evidence, as appellant claims.
       This was the state of Texas law at the time of Roberts’s trial in 2004.7
Under AEDPA, we must ask “whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard,” Premo, 131 S. Ct. at 740,
given the above legal framework and our holding that the failure to lodge futile
objections does not qualify as ineffective assistance. Koch, 907 F.2d at 527.
Roberts seeks to persuade us that there is no such argument given that three of
the TCCA’s judges dissented from the majority’s finding that the facts of
Roberts’s case differed from those of Cantu. Roberts, 220 S.W.3d at 535–36
(Meyers, J., dissenting). But the dissent of some judges does not mean that no
reasonable argument could be made supporting the TCCA’s conclusion that

       7
         The TCCA later handed down its opinion in Mays v. State, 318 S.W.3d 368, 393 (Tex.
Crim. App. 2010), in which it upheld the admissibility in a capital sentencing of the testimony
of two officers involved in a police shootout but who were not named as victims of the crimes
for which defendants were tried because they testified regarding their own injuries and the
losses in their lives. While Mays is directly on point with the situation facing Roberts, it was
decided after Roberts’s trial and so cannot be cited for the proposition that any objection by
Roberts’s trial counsel would have been futile. Naturally, “there is no general duty on the part
of defense counsel to anticipate changes in the law.” Green v. Johnson, 116 F.3d 1115, 1125
(5th Cir. 1997). However, counsel should endeavor to “present solid, meritorious arguments
based on directly controlling precedent.” Ries v. Quarterman, 522 F.3d 517, 532 (5th Cir. 2008)
(citation and internal quotation marks omitted).


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                                  No. 11-70032

Roberts’s trial counsel concluded that Cantu was “clearly distinguishable” from
Roberts’s situation. Id. at 531. Indeed, the TCCA cited Mathis, Guevara, and
Garcia—all cases that highlighted the fact that Cantu’s holding did not apply to
testimony dealing with the impact of an extraneous offense on a victim of that
extraneous offense—to this effect. Id. at 531 n.25. It would not have been an
unreasonable application of Strickland to conclude, as the TCCA and the district
court did, that any objection by Roberts’s trial counsel would have been futile in
light of the TCCA’s post-Cantu “victim impact” jurisprudence. See Adams v.
Thaler, 421 F. App’x 322, 332–34 (5th Cir. 2011) (“[Appellate] counsel could have
reasonably concluded that pursuing the argument that [the] . . . testimony [of a
victim injured during the capital offense but whose injuries were not part of the
capital indictment] was inadmissible would have been futile in light of the
TCCA’s holding in Mathis that certain testimony about a victim injured in the
same criminal episode is admissible.”).
      Our conclusion is bolstered by AEDPA’s standard of review. We are not
reviewing the TCCA’s evaluation of its own precedents, but instead applying
Strickland’s deferential standard under the auspices of AEDPA. And under
AEDPA, “[a] state court must be granted a deference and latitude that are not
in operation when the case involves review under the Strickland standard itself.”
Harrington, 131 S. Ct. at 785.
      We affirm the district court’s denial of relief on Roberts’s second claim on
appeal.
D. Roberts’s Third Claim: Execution Impact Testimony
      The third claim that Roberts received a COA for and raises on appeal is
that the trial court violated his right to be free from cruel and unusual
punishment when it denied his niece the opportunity to testify about how his
execution would impact her. See Roberts, 2011 WL 5433982, at *23. When
Roberts proposed to ask his niece about the impact of his execution on her, the

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                                       No. 11-70032

prosecution objected and the trial court upheld the objection. Roberts, 220
S.W.3d at 532. Roberts did not make an offer of proof as to what his niece’s
testimony would have been. Id. The TCCA concluded that Roberts failed to
preserve this error by failing to make an offer of proof, and that the state trial
court did not abuse its discretion by excluding this testimony. Id. The district
court found Roberts’s claim to be procedurally defaulted and that Roberts had
not argued that he fell within any of the relevant exceptions. Roberts, 2011 WL
5433982, at *23. Thus, the district court dismissed his claim with prejudice. Id.
       We first consider the question of procedural default. The requirement of
an offer of proof comes from Texas Rule of Evidence 103(a)(2), which provides
that “[e]rror may not be predicated upon a ruling which . . . excludes evidence
unless a substantial right of the party is affected, and . . . the substance of the
evidence was made known to the court by offer, or was apparent from the context
within which questions were asked.”8 A short statement by counsel or even a
brief question-and-answer with the witness will satisfy the offer of proof
requirement. Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim. App. 2009). The
requirement may also be satisfied if “the substance of the evidence is apparent
from the context within which the questions were asked.” Fairow v. State, 943
S.W.2d 895, 897 n.2 (Tex. Crim. App. 1997).
       In the present case, the TCCA clearly and expressly relied on Rule
103(a)(2) in adjudicating Roberts’s claim. The relevant question, then, is whether
the TCCA has applied this procedural requirement “strictly or regularly” in “the
majority of similar claims” in the capital context. Finley, 243 F.3d at 218. A
survey of the TCCA’s capital jurisprudence reveals consistent application in
capital cases. See, e.g., Mays, 285 S.W.3d at 891 (“Because the appellant failed


       8
        The TCCA also cited its decision in Jackson v. State, 33 S.W.3d 828, 838 (Tex. Crim.
App. 2000), in holding that the trial court did not abuse its discretion by excluding Roberts’s
execution impact testimony.

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                                  No. 11-70032

to make a proper offer of proof, we hold that he did not preserve his complaint
for appeal.”); Fairow, 943 S.W.2d at 897 n.2 (“While it is true that appellant
made no offer of proof indicating [the witness]’s answers to the questions, the
substance of the evidence is apparent from the context within which the
questions were asked.”); Williams v. State, 937 S.W.2d 479, 489 (Tex. Crim. App.
1996) (“Moreover, appellant failed to make an offer of proof. To preserve error
regarding the exclusion of evidence, an offer of proof is required.”); Chambers v.
State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993) (“Rule 103(a)(2) of the Rules of
[] Evidence require that when evidence is excluded the proponent establish the
substance of the excluded evidence by making on offer of proof. . . . Appellant
wholly failed to explain why this evidence should have been permitted and what
he hoped to establish with the evidence.”) (citations omitted).
      Moreover, we have previously made clear that the failure to preserve an
issue for appeal by failing to make a proper offer of proof constitutes an
independent and adequate procedural bar. See Wheat v. Johnson, 238 F.3d 357,
360 (5th Cir. 2001) (“We agree with the Texas Court of Criminal Appeals that
the offer of proof was not properly preserved . . . . [Petitioner] makes no attempt
on appeal to show either cause or prejudice for this procedural default; he is
therefore barred from now bringing the claim on federal habeas review.”). In his
brief before us, Roberts does not attempt to show cause and prejudice or a
fundamental miscarriage of justice, nor can we discern either exception.
      Consequently, we affirm the district court’s conclusion that Roberts’s
execution impact claim is procedurally barred.
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s denial of habeas
relief to Roberts.




                                        21
