                                   United States Court of Appeals,

                                              Fifth Circuit.

                                             No. 92–2262.

                           Darryl Elroy STEWART, Petitioner–Appellant

                                                   v.

   James A. COLLINS, Director Texas Department of Criminal Justice, Institutional Division,
Respondent–Appellee

                                            Nov. 27, 1992.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, DUHÉ, and WIENER, Circuit Judges.

        PER CURIAM:

        Petitioner who was sentenced to death in a state capital murder trial appeals denial of federal

habeas relief. The district court dismissed with prejudice the petitioner's application for writ of habeas

corpus leaving its previously granted stay of execution in effect pending appeal. It granted a

certificate of probable cause and petitioner timely appealed. Petitioner urges error under Penry v.

Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Concluding that the disposition

of this matter is directed by our recent en banc decision in Graham v. Collins, 950 F.2d 1009 (5th

Cir.) (en banc ), cert. granted, ––– U.S. ––––, 112 S.Ct. 2937, 119 L.Ed.2d 563 (1992), we affirm

the district court.

                                              Background

        Stewart and an accomplice, Kelvin Kelley, decided to rob Donna Kate Thomas in her

apart ment after they noticed her apartment door ajar. During the course of the burglary the men

attempted a sexual offense and ultimately murdered the victim. Each man confessed to a version of

the offense in which the other was implicated as the principal actor. Stewart's prosecution was based

on Kelley's testimony which was corroborated by the testimony of the victim's young daughter and

other state witnesses.

        Stewart was convicted by a jury for capital murder committed during the burglary of a

habitation. During the sentencing phase of the trial, the jury responded affirmatively to the two
special issues submitted in accordance with Tex.Code Crim.Proc.Ann. Art. 37.071, and punishment

was assessed at death. His conviction was affirmed, 686 S.W.2d 118, and he applied to the district

court for the Great Writ and a stay. A stay was granted but the writ was subsequently denied.

       Stewart argues on appeal, that in responding to the statutory punishment phase issues, the jury

was unable to consider and give mitigating effect to his self-described, non-triggerman role in the

commission of the offense. Stewart characterized himself as a lookout man who did not intend to kill

the victim and did not assume an active role in the murder. The district court correctly concluded

that, if the jury believed that Stewart was not the triggerman, the jury could give effect to that

understanding of the evidence in answering the punishment phase issues.

                                               Analysis

        Penry v. Lynaugh held that where mitigating evidence has relevance to moral culpability

beyond the scope of the Texas death penalty statute's special issues, unless special instructions are

given, the jury is unable to express its reasoned moral response in determining whether death is an

appropriate punishment. Penry, 492 U.S. at 318–19, 109 S.Ct. at 2946–47. In Graham v. Collins,

however, this Court held that Penry "does not invalidate the Texas statutory scheme, and that Jurek1

continues to apply, in instances where no major mitigating thrust of the evidence is subst antially

beyond the scope o f all the special issues." 950 F.2d at 1027. In Stewart's case, the first special

issue2 clearly encompasses any evidence that he was merely an accomplice in the killing and lacked

the intent to kill. The first special issue inquires solely into Stewart's conduct. The law of parties3




   1
    Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (Texas capital
sentencing procedure of article 37.071 upheld).
   2
     Whether the defendant's acts "were committed deliberately and with the reasonable
expectation that the death of the deceased or another would result." Tex.Code Crim.Proc.Ann.
art. 37.071(b)(1).
   3
    Texas' law of parties provides that "(a) [a] person is criminally responsible as a party to an
offense if the offense is committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both; (b) [e]ach party to an offense may be charged with commission
of the offense." Tex.Penal Code Ann. § 7.01 (1974).
is not even applied to the punishment deliberations.4 In fact, the record shows that during the

punishment phase, counsel for Stewart argued to the jury that it should consider, when responding

to the special issues, whether Stewart was in fact the triggerman or merely an accomplice. "Although

a reasonable juror might have found that this evidence had independent mitigating value in reducing

moral culpability, we cannot say with assurance that a major mitigating thrust of the evidence was

substantially beyond the reach of the deliberateness issue." See Demouchette v. Collins, 972 F.2d 651

(5th Cir.1992). Thus, the jury required no separate instruction.

        Stewart's argument that the jury was precluded from considering this evidence as a mitigating

factor under the future dangerousness issue in the second special issue is equally unavailing. Given

counsel's arguments to the jury during the punishment phase, the petitioner has not shown that the

jury was precluded from considering his status as non-triggerman. Id.

        Stewart does not satisfy his burden of demonstrating a "reasonable likelihood that the jury ...

appli[ed] the challenged instructions in a way that prevent[ed] the consideration of constitutionally

relevant evidence." Boyde v. California, 494 U.S. 370, 371, 110 S.Ct. 1190, 1191, 108 L.Ed.2d 316

(1990). The punishment phase issues allowed the jury to give mitigating effect to Stewart's alleged

non-triggerman status if they chose to credit his version of the offense.

        Finally, although not clear from the petitioner's brief, to the extent that he challenges the

district court's ruling regarding whether or not Stewart had the requisite mental state for culpability

established in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), we affirm

the holding of the district court finding that the jury verdict and its answers to the special issues

together with the Court of Criminal Appeals' holding satisfy Enmund and Cabana v. Bullock, 474

U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986).

        Accordingly, the judgment of the district court denying habeas relief is affirmed and the stay

of execution issued by the district court is lifted.


   4
    In other words, the jurors could not have answered the first issue affirmatively if they had
determined that Stewart was guilty under the law of parties and that he did not have the requisite
intent. The jury was required to consider only Stewart's individual mental state, not that of his
coconspirator.
