                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    REVISED NOVEMBER 3, 2005
                                                            October 12, 2005
                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit             Charles R. Fulbruge III
                                                                Clerk


                          No.     04-70025




                      JESUS LEDESMA AGUILAR

                                              Petitioner - Appellant


                                VERSUS


  DOUG DRETKE, Director, Texas Department of Criminal Justice,
               Correctional Institutions Division


                                              Respondent - Appellee



          Appeal from the United States District Court
               For the Southern District of Texas




Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Petitioner, Jesus Ledesma Aguilar (Aguilar), was convicted of

capital murder and sentenced to death in Texas state court for the

murders of Annette and Leonardo Chavez, Sr.         In this appeal,

Aguilar challenges the district court’s dismissal of his habeas

petition. Aguilar seeks COA on six claims on which relief was

denied by the district court.   He also seeks reversal on the merits
of the single claim on which the district court granted COA.              For

the reasons discussed below, we deny habeas relief on that claim.

We also deny COA on the remaining claims.

                                     I.

     Petitioner was convicted in Texas state court of capital

murder   for   intentionally   and   knowingly    causing   the   death   of

Leonardo Chavez, III and his wife, Annette Chavez, during the same

criminal transaction.    The essential facts are summarized below.

     Aguilar and Rick Esparza, who were longtime friends, worked

together in the sale of marijuana.         Rick initially worked for

Aguilar beginning in November 1994 in transporting marijuana from

their homes in Texas to Mississippi in Rick’s vehicle.             Shortly

thereafter, another supplier asked Rick to transport marijuana to

Mississippi, and he began dealing without Aguilar.            Apparently,

Aguilar felt Rick was stealing his business, and this caused

friction between the two men.

     Aguilar began stopping by Rick’s trailer and accusing Rick of

running drugs without him.     Rick testified that Aguilar threatened

Rick’s life on a number of occasions.            Rick stated that he was

afraid of Aguilar because he had seen “the way [Aguilar] hurts

people.”

     In spite of Aguilar’s threats, Rick maintained his own drug

courier business. Rick often asked his sister, Annette Chavez, and

her family to stay at his home during out-of-town trips.           On June

8, 1995, Rick and his wife took a load of drugs to Mississippi.

                                      2
Annette, her husband Leo, and their two children, Leo Jr. (nine

years old) and Lincoln (about two years old), stayed at Rick’s

home.

      Aguilar spent much of the afternoon and evening of June 9

drinking with friends.         At approximately 9:00 p.m., he was at a

friend’s   house      with,    among     others,     David    and   Chris   Quiroz

(Aguilar’s nephew).       Their host eventually went to bed. As David

Quiroz was leaving, he saw Aguilar and Chris Quiroz walk toward a

red Buick owned by Chris’ mother.

      At approximately 5:00 a.m., Leo, Jr. was awakened from his bed

in Rick’s trailer by the sound of a gunshot.                 Leo, Jr. got out of

bed and entered the kitchen.           Because there was no wall between the

rooms,   Leo,   Jr.    could    see     into   the   living    room,   which   was

illuminated by a small lamp.           Leo, Jr. saw his parents on the floor

with two men standing over them.               Leo, Jr. testified that the

“American” man told his father to “[g]et your fat ass up,” and then

saw the man shoot his father.           The “Mexican” man then took the gun

and shot his mother.1         Leo, Jr. ran to the neighbors for help.           A

pathologist testified it was obvious from markings on Leo Sr.’s and

Annette’s bodies that they were severely beaten before they were

shot.

      That afternoon, Daniel Pena was driving around with Aguilar

and Chris Quiroz when Aguilar asked Daniel to go to Rafael Flores,

  1
   A pathologist testified as an expert witness for the state and
stated that the couple had been shot “execution style.” 20 TR 738.

                                          3
Jr.’s residence. Aguilar offered to sell a .22 caliber revolver to

Rafael. Rafael bought the revolver and gave it to his brother, who

in turn gave it to their father.             The police later received a tip

that    they   could   recover    the    murder    weapon    from   the    Flores’

residence, which they did. After recovering the weapon, the police

lab compared bullets from .22 caliber revolver with the .22 caliber

bullets recovered from the Chavezes’ bodies. The ballistics expert

could not rule this revolver in or out as the murder weapon.

       Approximately    two     weeks    after    the    murders,    Leo,    Jr.’s

grandmother was reading the newspaper when Leo, Jr. saw a picture

and told her that two of the men in the picture were the men who

“hurt” his parents.       His grandfather took Leo, Jr. to the police

station where Leo, Jr. identified Chris Quiroz as the “American”

who shot his father, and Aguilar as the “Mexican” who shot his

mother. Leo was unable to identify Aguilar in a police lineup, but

an investigator for the Cameron County Sheriff’s office testified

that Leo, Jr. became visibly upset when Aguilar entered the lineup

room.

       Following the guilty verdict and affirmative findings on the

Texas special issue, the trial court sentenced Aguilar to death in

accordance with Texas law.          The Texas Court of Criminal Appeals

affirmed Aguilar’s conviction and sentence and the United States

Supreme Court denied certiorari.             See Aguilar v. State, No. 72,470

(Tex. Crim.     App.   1997),    cert.       denied,   523   U.S.   1139    (1998).



                                         4
Aguilar then filed a state application for post conviction relief

which the Texas Court of Criminal Appeals denied. Ex Parte Aguilar,

No. 36,142-01 (Tex. Crim. App. June 10, 1998). Aguilar later filed

his federal habeas corpus petition.       At an evidentiary hearing

before a magistrate judge, Aguilar asked the court to dismiss his

petition without prejudice so that he could return to state court

and raise unexhausted claims.    The request was granted.   Aguilar’s

successive state habeas petition was dismissed by the Texas Court

of Criminal Appeals as an abuse of the writ in November 2001.    Five

days later, he filed another federal habeas corpus petition.     The

state moved for summary judgment on the writ and the motion was

referred to a magistrate judge for Report and Recommendation.     The

magistrate judge recommended that all of Petitioner’s claims be

denied, except one.   The magistrate judge recommended that Aguilar

be granted relief on his claim that he was deprived of due process

by the trial court’s failure to charge the jury on a lesser

included offense of non-capital murder.    The district court judge

accepted all the magistrate judge’s recommendations, except on the

lesser included offense claim.    The district court concluded that

Petitioner was not entitled to relief on this claim and dismissed

his petition.   The district court later granted COA on Aguilar’s

lesser included offense claim.

                                 II.

                                 A.

     Aguilar filed his federal habeas petition after the enactment

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of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), and therefore, the provisions of that act govern our scope

of   review.     AEDPA   prohibits    a   federal    court   from    granting     an

application for habeas corpus with respect to any claim that was

adjudicated on the merits in state court proceedings unless that

adjudication “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,” or “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) (1996).              Further, the state court’s

factual    determinations     are    presumed     correct    and     can   only   be

rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

                                          B.

      We consider first Aguilar’s argument that the trial court

violated his Fourteenth Amendment right to due process of law when

it refused his request for a lesser included offense charge to the

jury.   The district court granted COA on this claim.

      In Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389

(1980), the Supreme Court held that a lesser included offense

charge is constitutionally required in capital cases “when the

evidence unquestionably establishes that the defendant is guilty of

a serious, violent offense--but leaves some doubt with respect to

an element that would justify conviction of a capital offense...”

A defendant is entitled to the instruction if the jury could

                                          6
rationally acquit the defendant on the capital crime and convict on

the non-capital crime. Cordova v. Lynaugh, 838 F.2d 764, 767 (5th

Cir. 1998), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.

2d 932 (1988).2

       Aguilar argues that this standard is satisfied because the

evidence supported a finding that he did not act in concert with

Quiroz in the murders of both Annette and Leo Chavez, Sr.           Aguilar

contends that a reasonable jury could have found that he only

murdered one of the victims, Annette; that Quiroz acted on his own

volition when he shot Leo, Sr., and that Aguilar simply followed

suit.    Based on this view of the evidence, Aguilar argues that a

rational jury could have acquitted him of the capital crime and

convicted him of the non-capital crime, and therefore Beck required

the court to give the lesser included offense instruction.

       The   state   charged   Aguilar   with   the    capital   offense   of

committing two murders during the same transaction.              (“A Person

commits an offense if the person commits murder as defined under

Section 19.02(b)(1) and...the person murders more than one person:

during the same criminal transaction....”             Tex. Pen. Code Ann. §


   2
     Texas law is consistent with the federal constitutional rule.
In Texas, the courts apply a two prong test to decide whether a
defendant is entitled to a lesser included offense charge. See
Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).
The first requirement is that “the lesser included offense must be
included within the proof necessary to establish the offense
charged.” Id. at 672.     The second prong requires that “some
evidence must exist in the record that if the defendant is guilty,
he is guilty only of the lesser offense. Id.

                                     7
19.03(a)(7)(A)).   The state is not required to prove that the same

person committed both murders.        According to the Texas law of

parties, “[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....”    Tex. Pen. Code Ann. § 7.02(a)(2).

     The evidence was clearly sufficient to establish that Aguilar

participated in the murder of Leo, Sr.    The question is whether the

evidence would permit a reasonable jury to make a contrary finding:

that Quiroz acted alone in Leo’s murder without encouragement or

other participation by Aguilar.   After reviewing the record, we are

satisfied it would not permit a rational jury to find that if

Aguilar is guilty, he is only guilty of murdering Annette.     As the

district court pointed out, Aguilar–and not Quiroz–had the motive

to kill Esparza or his family members.      The evidence established

that Aguilar had been to the trailer home on several earlier

occasions, threatening Esparza, and had previously discussed with

Annette Chavez the whereabouts of Esparza.       Aguilar entered the

Esparzas’ trailer with his eighteen-year-old nephew (Quiroz), who

had no connection to the Chavezes or Esparza or with Aguilar’s

marijuana trafficking.    The two entered the trailer with a firearm

and proceeded to severely beat the Chavezes.    Then, the couple was

shot “execution style” within minutes of each other.     There is no


                                  8
evidence in the record supporting Aguilar’s contention that he did

not have intent to kill both Leo and Annette when he and Quiroz

entered the residence.3    A reasonable jury, who would find that

Aguilar was the second shooter in this double murder, could not find

that he did not encourage or otherwise participate in the shooting

of Leo, Sr.   We therefore conclude that the district court did not

err in rejecting Aguilar’s Beck claim.

                                III.

                                 A.

       Next, we address Petitioner’s claims for COA.   Under AEDPA,

Aguilar must obtain a COA before he can appeal the district court’s

denial of his habeas petition. 28 U.S.C. 2253(c)(1).     This court

will grant a COA if Aguilar makes a substantial showing of the

denial of a constitutional right, which includes showing that

“reasonable jurists could debate whether (or for that matter, agree

that) the petition should have been resolved in a different manner

or that the issues presented were ‘adequate to deserve encouragement

to proceed further.’” Miller El v. Cockrell, 537 U.S. 322, 336, 123

S.Ct. 1029, 1039 (2003) (citing Slack v. McDaniel, 529 U.S. at 484

(2000)).    To satisfy this standard, Aguilar must demonstrate that



   3
   In Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367
(1982), the Supreme Court made clear that the jury must be
permitted to consider a verdict of guilt of a noncapital offense
“in every case” in which “the evidence would have supported such a
verdict.” Id. at 610 (citing Beck v. Alabama, 447 U.S. at 627, 100
S.Ct. at 2384.

                                 9
reasonable jurists could find the district court’s resolution of his

constitutional claims debatable. Id. at 336.                 Further, when the

denial of relief is based on procedural grounds, then Petitioner

must show that “jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.”                 Slack,

592 U.S. at 484.      It is clear that petitioner need not show that the

appeal will succeed in order to obtain a COA.                  Id. at 337.     We

consider each of Petitioner’s claims below.

                 B.    Ineffective Assistance of Counsel

     First, Petitioner contends that his Sixth and Fourteenth

Amendment rights to effective assistance of counsel were violated

because    direct     appeal    counsel      failed   to   properly   brief   his

sufficiency of the evidence argument on direct appeal in state

court.     In Aguilar’s initial state habeas application, he did not

assert this specific claim of counsel error as a ground for relief.

In his successive habeas application, Aguilar did assert this error

as a ground for relief.              The Texas Court of Criminal Appeals

dismissed the claim as procedurally defaulted under Texas Criminal

Procedure Article 11.071(5)(a) as an abuse of the writ.                       The

district    court     found    the   claim     unexhausted    and   procedurally

defaulted.    Because Aguilar did raise the claim in his second state

habeas application, we disagree with the district court that the

claim was not exhausted. We agree with the district court, however,

that the claim was procedurally barred from federal habeas review.

     As the Supreme Court stated in Coleman v. Thompson, 501 U.S.

                                          10
722, 750, 111 S.Ct. 2546, 2551 (1991), “[i]n all cases in which a

state prisoner has defaulted his federal claims in state court

pursuant to an independent and adequate state procedural rule,

federal habeas review of the claims is barred unless the prisoner

can demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate that

failure    to   consider    the   claims   will   result    in   a   fundamental

miscarriage of justice.”          This court has consistently held that

Texas’     abuse-of-writ     rule    is    ordinarily      an    “adequate     and

independent” procedural ground on which to base a procedural default

ruling.    Henderson v. Crockwell, 333 F.3d 592, 605 (5th Cir. 2003);

Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999); Matchett v.

Dretke, 380 F.3d 844, 848 (5th Cir. 2004).

     The    state   court    dismissed     Aguilar’s    claim     based   on   an

independent and adequate state remedy: the successive writ was

dismissed as an abuse of writ under Texas Code of Criminal Procedure

article 11.071 § 5(a).       In his request for relief, Aguilar makes no

attempt to argue actual prejudice or a fundamental miscarriage of

justice as required by Coleman.           We therefore find that reasonable

jurists would not debate whether the district court was correct in

its ruling and we deny COA on this claim.

                     C. Meaningful Appellate Review

     Next, Aguilar argues that the Texas Court of Criminal Appeals

was biased on direct appeal and it relied on facts not in the

record.    The district court found the claim procedurally defaulted

                                      11
because it was raised for the first time in Aguilar’s second state

habeas petition and dismissed as an abuse of writ pursuant to Texas

Code of Criminal Procedure article 11.071 § 5(a).       As discussed

above, the Supreme Court recognized that a procedural bar exists to

federal habeas review if the state court dismisses the application

based on independent and adequate state grounds.   Because the Texas

Court of Criminal Appeals found that Aguilar’s second state habeas

petition was an abuse of the writ under Texas Code of Criminal

Procedure article 11.071 § 5(a), and because Aguilar has not

attempted to show actual prejudice or a miscarriage of justice, no

reasonable jurists could find the district court’s procedural ruling

incorrect.

             D. Failure to Appoint Ballistics Expert

     Aguilar also argues that the trial court’s failure to appoint

a ballistics expert to testify on behalf of Petitioner violated his

right to due process.       The state called Ronald Richardson, a

firearms expert.    He testified that both victims were killed by .22

caliber slugs.     The bullets removed from the victims’ bodies were

badly damaged, and the expert was unable to determine whether they

were fired from the .22 caliber pistol the state contended was the

murder weapon.   Before trial, Aguilar filed a written motion asking

the court to provide a ballistics expert “to testify as to the

potential weapon used in the alleged murders and evidence of

ballistics in general.”      He argued generally that the “expert

witness [was] important in this case and proceeding to trial without

                                  12
the witness would be prejudicial to the Defendant and would not

afford him a fair trial....”            The trial court denied his motion.

In an oral pre-trial motion Aguilar again asked the court to provide

a ballistics expert without giving specific reasons as to how it

would aid in his defense.4

       The state habeas court rejected Aguilar’s claim because of his

failure to provide an affidavit from trial counsel explaining what

expert witness he anticipated calling, and how his defense was

actually prejudiced through his inability to present that expert.

       Habeas   relief    may    be    granted   for   failure   to    appoint    a

ballistics expert where the evidence is both 1) critical to the

conviction, and 2) subject to varying expert opinion.                 See Scott v.

Louisiana, 934 F.2d 631, 633 (5th Cir. 1991); Yohey v. Collins, 985

F.2d 222, 227 (5th Cir. 1993). The defendant must also “demonstrate

something   more   than    a    mere    possibility    of   assistance     from   a

requested expert.” Yohey at 227 (citing Moore v. Kemp, 809 F.2d 702,

712 (11th Cir.), cert. denied, 481 U. 1054, 107 S.Ct. 2192, 95

L.Ed.2d 847 (1987)).            The magistrate judge and district judge


   4
     The defense asked the trial judge for permission to hire its
own ballistics expert, stating: “The ballistics expert that
appeared here for the Department of Public Safety last time, Your
Honor, I think without, you know, really going into much of his
testimony, I think was very inconclusive to some of his
determinations, inconclusive as to what type – you know, the
caliber, things of that nature, Judge. I would like to have an
opportunity and I would like to have a ballistics expert come in
here to be able to differentiate between .22 and .25 calibers,
slugs, location of powder burns, types of powders that are used for
ballistic purposes, projectile, things of that nature....”

                                         13
rejected Aguilar’s claim because he failed to satisfy either prong

of the test set forth in Scott and Yohey.      The record evidence

supports the conclusion that the state’s inconclusive ballistics

evidence—that the bullets could have been but were not necessarily

fired from the purported murder weapon—was not critical to the

conviction.   Also, Aguilar failed to provide any evidence that his

desired expert could have excluded the gun as the murder weapon.

     In his COA application for the first time, Aguilar now claims

that tests could have been performed to show that the gun had not

been fired in years or that the gun did not have the victims’ blood

on it, in order to prove it was not the gun used in the murders.

However, the record reveals that Aguilar never asked the trial court

for appointment of a ballistics expert or other expert to show there

was no blood splatter on the weapon or that it not been fired

recently.   He also produced no evidence of the likelihood that such

evidence could be recovered from the weapon.

     The record fully supports the state habeas court finding that

Aguilar failed to show that evidence from a ballistics expert would

have been beneficial to his case or that the evidence is subject to

varying expert opinion.   For the first time Aguilar, in support of

his application, provided this court with several articles and books

discussing the uncertainty of forensic science and how test results

may be inaccurate.    These treatises, however, are not helpful in

showing how a ballistics expert would have assisted Aguilar in

proving his innocence.

                                 14
       Because Aguilar has failed to show that a ballistics expert

would have assisted him in proving his innocence or that the

evidence in this case would be subject to varying opinion, we find

that    reasonable    jurists      would    not       find   the   district    court’s

assessment of defendant’s constitutional claims debatable or wrong

and therefore deny COA.

                           F.   Sufficiency of Evidence

       Aguilar also seeks a COA on grounds that the evidence was

insufficient to support the jury’s finding that he was a party to

the    murder   of   Leo    Chavez,   Sr.       and    the   finding    that   he   was

responsible for the murder of Annette Chavez.

       In determining a sufficiency of the evidence claim, a court

should consider whether “after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.”    Jackson v. Virginia, 443 U.S. 307, 319 (1979).                   On direct

appeal, the Court of Criminal Appeals found that the evidence was

sufficient to support the jury’s finding that Aguilar was a party

to the murders.      The court considered the eye-witness testimony of

Leo Chavez, Jr. and his identification of Aguilar as the person

directly responsible for the death of his mother.                      The court also

observed that Aguilar, and not Quiroz, was the person with the

motive to kill the people in the trailer home.                       The court also

discussed the fact that Aguilar sold the .22 caliber revolver that


                                           15
was later discovered by the police and offered by the state as a

possible murder weapon. Based on the foregoing evidence, the Court

of Criminal Appeals found that a rational jury could find beyond a

reasonable doubt that appellant was criminally responsible for the

deaths of both victims and that the victims were killed during the

same criminal transaction.

     The district court adopted the magistrate judge’s opinion that

“[u]nder the very deferential Jackson standard, this was sufficient

to support the jury’s finding that Aguilar was a party to the second

murder.” Based on the evidence presented at trial, we conclude that

the district court’s conclusion based on the deferential Jackson

standard was not debatable or wrong and we therefore deny COA.

                G.   Appearance Before Jury in Shackles

     In his final claim, Aguilar argues that his right to due

process   was   violated   because   he   appeared   before   the   jury   in

shackles.   The state habeas court rejected the claim on the ground

that Aguilar should have raised the claim on direct appeal and on

the additional ground that he did not refer to any specific

objections in the trial record.           On federal habeas review, the

district court also refused to grant relief because Aguilar did not

reference any specific or timely objection and only provided a

statement in an affidavit by his trial counsel that he “requested”

that Aguilar not be shackled in the presence of the jury.            In his

COA request to this court, Aguilar once again gives us no record

reference where he objected to the fact that he was shackled in the

                                     16
presence of the jury and in our review of the trial record, we found

no such objection.

     In Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App.

1996), the court found that claims which should have been raised on

direct appeal are procedurally defaulted.     Furthermore, in Busby v.

Dretke, 359 F.3d 708, 719 (5th Cir.), this court established that

“the Gardner rule set forth an adequate state ground capable of

barring federal habeas review.”        In the instant case, Aguilar’s

claim that he was shackled in front of the jury should have been

raised on direct appeal.

     We conclude that reasonable jurists could not debate whether

the state court erred in its procedural ruling regarding Aguilar’s

failure to raise his shackling claim on direct appeal. We therefore

deny COA on this claim.

                            Conclusion

     For the reasons stated above, we AFFIRM the district court’s

judgment denying habeas relief on his claim that he was entitled to

the lesser included offense jury charge.      We also DENY COA on the

remaining claims.




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