                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                   UNITED STATES COURT OF APPEALS
                                                               July 1, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 02-11201


                       JACKIE BARRON WILSON,

                                               Petitioner-Appellant,

                               versus

                     JANIE COCKRELL, DIRECTOR,
               TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                       INSTITUTIONAL DIVISION,

                                             Respondent-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                           (3:99-CV-809)
_________________________________________________________________

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     After federal habeas relief was denied Texas state prisoner

Jackie Barron Wilson, concerning a Texas capital murder conviction

for which he received a death sentence, the district court declined

to grant him a Certificate of Appealability (COA).     See 28 U.S.C.

§ 2253(c). Accordingly, Wilson seeks a COA from this court, asking

that we certify five issues for appeal:    (1) whether the district

court erred in not conducting an evidentiary hearing to determine



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
whether agreed-prospective-juror excusals, pursuant to Texas law,

violated the Equal Protection Clause of the Fourteenth Amendment

and (2) whether such agreed conduct violated that clause; (3)

whether the evidence was legally sufficient to show specific intent

to cause death; and (4) at trial and (5) on appeal, whether Wilson

received ineffective assistance of counsel.             Each COA request is

DENIED.

                                      I.

       Early on the morning of 30 November 1988, the body of a five-

year-old girl was found in a remote area.         She had been kidnapped

from     her   bedroom    earlier   that   morning;     sexually   assaulted

(including anally-raped and some form of vaginal penetration);

asphyxiated     (smothered     or   strangled);   and    run   over   by   an

automobile.

       Around 8:00 a.m. that day, the victim’s mother discovered her

daughter was missing.       The window above the child’s bed was raised

and the glass pane broken.

       The medical examiner determined that the cause of death could

be attributed to:        a major crush-force injury to the head, caused

by the tire of an automobile running over it; and asphyxiation from

smothering or strangulation.         Either was sufficient to cause her

death.     Bruising indicated the victim was still alive both when

sexually-assaulted and when run over by the vehicle.




                                      2
     Wilson   knew    the    victim.        He   had   recently   lived   in    the

apartment complex (the apartments) where the victim lived with her

mother,    brother,    and    live-in       babysitter.       Wilson      was   an

acquaintance of both the mother and the babysitter.                 (Wilson was

not living at the apartments at the time of the murder.)

     On 29 November, the evening prior to the victim’s death,

Wilson consumed alcohol, marijuana, and cocaine.                    Later that

evening, Wilson was seen driving an automobile in the direction of,

and was placed at, the apartments, including in one of them, after

midnight (early morning of 30 November; the victim was found later

that morning).

     Wilson’s fingerprints were found on both sides of pieces of

glass from the victim’s broken bedroom window.              Tire tracks on the

victim’s body matched two distinct types of tires that were on the

automobile Wilson admitted to driving the night before, and early

morning of, the murder.        Hair found on the undercarriage of the

vehicle and inside it had the same characteristics as the victim’s

hair, and carpet fibers from underneath the automobile matched

those from the carpet inside it.             Wilson, a Hispanic male, could

not be excluded as the contributor of DNA found on the victim (one

in 2083 Hispanic males shared characteristics of DNA found on anal

swab).    A chest or pubic hair recovered from the victim’s genital

area was determined to be Mongoloid, a racial group that includes

Hispanics.


                                        3
     Wilson was convicted on 27 September 1989 of murder in the

course of a kidnapping, a capital offense under Texas Penal Code §

19.03(a)(2); he was sentenced to death.             The Texas Court of

Criminal Appeals reversed the conviction and remanded the case for

a new trial.    Wilson v. State, 863 S.W.2d 59 (Tex. Crim. App. 1993)

(State’s    challenge-for-cause      of   venire     member     constituted

reversible error).

     At the remand trial in 1994, Wilson was again convicted and

sentenced to death.       The Court of Criminal Appeals affirmed.

Wilson v. State, No. 71,947 (Tex. Crim. App. 13 Feb.), cert.

denied, 522 U.S. 829 (1997).

     Wilson filed a state habeas application in June 1997.             The

next February,     finding   no   controverted,    previously   unresolved

facts, the convicting court entered an order, inter alia, denying

Wilson an evidentiary hearing; that September (1998), it adopted

the State’s proposed findings of fact and conclusions of law in

their entirety.      The Court of Criminal Appeals, adopting the

convicting court’s recommended findings and conclusions, denied

relief.    Ex Parte Wilson, No. 40,438-01 (Tex. Crim. App. 31 Mar.

1999).

     Wilson filed for 28 U.S.C. § 2254 federal habeas relief in

January 2000.    Following the State’s moving for summary judgment,

the matter was referred to a magistrate judge, who submitted an

extremely comprehensive report, with a recommended denial of habeas


                                     4
relief.      Wilson        v.    Cockrell,      No.     3:99-CV-809,    Findings,

Conclusions, and Recommendation of the Magistrate Judge (N.D. Tex.

31 July 2002) (Magistrate Judge’s Report).                   The district court

adopted that report and denied relief.                  Wilson v. Cockrell, No.

3:99-CV-809,       Order        Adopting       Findings,     Conclusions,          and

Recommendation of U.S. Magistrate Judge (N.D. Tex. 25 Sept. 2002).

     In December 2002, the district court denied Wilson’s COA

request.

                                        II.

     Wilson seeks review of the denial of habeas relief.                            As

required by the Antiterrorism and Effective Death Penalty Act

(AEDPA), he first seeks the requisite COA; without a COA, we lack

jurisdiction over the appeal.           28 U.S.C. § 2253(c)(1)(A).

     In determining whether a COA should issue, we must decide

whether Wilson “has made a substantial showing of the denial of a

constitutional right”.           28 U.S.C. § 2253(c)(2).         This “includes

[his] showing that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in

a different manner [by the district court] or that the issues

presented   were    adequate       to   deserve       encouragement    to    proceed

further”.   Slack v. McDaniel, 529 U.S. 473, 484 (2000)(internal

quotations and citations omitted).

     A COA determination “requires an overview of the claims in the

[federal]   habeas    petition      and    a    general    assessment       of   their


                                           5
merits”; again, in this regard, we must “look to the District

Court’s application of AEDPA and ask whether that resolution was

debatable amongst jurists of reason”.           Miller-El v. Cockrell, 537

U.S. 322, ___, 123 S. Ct. 1029, ___, 154 L. Ed. 2d 931, 950 (2003).

This threshold inquiry “does not require full consideration of the

factual or legal bases adduced in support of the claims.             In fact,

[AEDPA] forbids it”.       Id.

      Accordingly, to obtain a COA, Wilson need not show that his

appeal will    succeed.      Id.     On   the   other   hand,   there     is    no

requirement that a COA must always issue.         Id.   “A prisoner seeking

a COA must prove something more than the absence of frivolity or

the existence of mere good faith on his or her part”.                          Id.

(internal quotations and citation omitted).

                                     A.

      Wilson requests a COA for each of two issues involving agreed

prospective-juror excusals pursuant to TEX. CODE CRIM. PROC. § 35.05:

(1) whether the district court erred by not holding an evidentiary

hearing before ruling on the issue; and (2) whether the agreed

excusals violated the Equal Protection Clause.

      Regarding the factual basis for these claims, Wilson alleges:

the   venire   consisted    of   approximately    840   persons;     of   these

prospective    jurors,     166   listed   themselves    as   black   and       40,

Hispanic, on the questionnaires; the State and defense agreed to

excuse more than 600 venire members prior to questioning, pursuant


                                      6
to their answers to those questionnaires; and, after the agreed

excusals,    only    two     black    and       three      Hispanic   venire       members

remained.     (The    questionnaires            are     not   part    of    the    record.

Instead, Wilson has submitted two affidavits from law students who

examined them.)

     Of the black and Hispanic potential jurors who remained after

the excusals, none served on the jury.                            Two of those three

remaining Hispanic venire members were challenged for cause by the

defense,    with    Wilson    agreeing          on   the    record    to    one    of   the

dismissals.        Over    Wilson’s    objection,           the    third,    and    final,

Hispanic venire member was dismissed, based on a challenge for

cause by the State, because she could neither read nor write

English.    Both remaining black venire members were peremptorily

challenged by the State.

     At one point during voir dire, Wilson protested in open court:

            [W]e can’t get no [sic] Hispanics up there.
            They keep excusing all Hispanics. All blacks,
            all whites.    Anything the State goes with,
            they start being real lenient on the jury. My
            attorney seems to follow right along with
            them. What the hell am I sitting here for? I
            know I’m going to get railroaded again just
            like I did the first time, so what the hell am
            I sitting here for, then?

     Wilson claims an equal protection violation because of the

agreement to exclude almost all Hispanic and black venire members.

He also contends that no court has fully adjudicated this claim,

because no evidentiary hearing has been held.


                                            7
     In his state habeas petition, Wilson first raised an equal

protection claim based on the excusals; he contended the agreement

to excuse violated his equal protection rights under Mata v.

Johnson, 99 F.3d 1261 (5th Cir. 1996), vacated on other grounds,

105 F.3d 209 (5th Cir. 1997) (equal protection violation where all

black venire members excused by agreement).       He did not contend

that the excusals violated Batson v. Kentucky, 476 U.S. 79 (1986)

(peremptory challenges based on race violate equal protection); on

the other hand, he did contend he had shown a prima facie case of

race discrimination, as is required under the Batson framework.

     For   the   state   habeas   proceeding,   the   State   presented

affidavits from the trial judge, three district attorneys, and

defense counsel, who were involved in the jury selection; they

offered race-neutral reasons for excusing venire members in this

fashion.   The affidavits explained:     the prosecution and defense

would participate in “trading conferences” in which the parties

would, after reviewing the juror questionnaires, decide which

potential jurors to excuse by agreement; the conferences were held

in an effort to conduct “an efficient voir dire”; the discussions

regarding which potential jurors to excuse “centered strictly on

[their] answers to the various questions on the questionnaire and

not on [their] race”; the parties generally would “trade”, or agree

to excuse, on the basis of answers to the death penalty question;

specifically, potential jurors who answered “1" (appropriate in all


                                   8
murder cases) were excused along with jurors who answered “4" or

“5"(reluctance or unwillingness to impose) and “6" (none of above);

this was common practice, because it was thought these potential

jurors would not survive challenges for cause; and potential jurors

who answered the death penalty question “2" or “3" were also traded

if their answers to other questions disqualified them.

     Without   conducting   an   evidentiary    hearing,   the   court   of

conviction (but not the trial judge) rejected Wilson’s Mata claim;

as stated, the Court of Criminal Appeals adopted that court’s

findings and conclusions.        It found:     the affidavits described

above were believable and credible; and the agreed excusals were

based on either responses to the general death penalty question or

answers to various other questions.      It determined Wilson “failed

to present any credible evidence of an explicit or even an implicit

agreement” between the prosecutor, the defense counsel, and the

judge to exclude potential jurors based on race or any evidence

that the parties engaged in purposeful discrimination or collusion.

It also determined:   Wilson failed to prove he had not consented to

his attorneys’ actions or the agreed excusals;        he did not timely

object to the claimed exclusions; and, therefore, he invited any

error.

     Regarding a possible Batson claim, the Court of Criminal

Appeals determined the claim was not properly preserved and thus

was not cognizable on habeas review.         Regardless, it found Wilson


                                    9
had failed to prove any potential jurors were improperly excused

based on race and concluded, as a matter of law, that Wilson had

failed to establish a prima facie case of discrimination.

     As noted, the district court adopted the magistrate judge’s

report.    It assumed, without deciding, that Wilson had standing to

raise the Mata claim on behalf of the potential jurors; it also

assumed his earlier-quoted protest during voir dire preserved that

claim.     On the merits, it distinguished Mata:               “unlike Mata,

[Wilson] has presented no evidence that there was an agreement

between the parties ... to excuse potential jurors on the basis of

their race”.     See Magistrate Judge’s Report at 10-11 (emphasis in

original).      It found the agreed excusals also resulted in the

omission of a large number of non-minorities from the venire, and

“[w]ithout more than a showing that the agreed excusals had an

impact    on   the   racial   make-up    of   the   jury,   [Wilson]   has   not

established an Equal Protection claim under Mata”.             See id. at 11.

     As noted, the district court also reviewed the claim under

Batson.    “Giv[ing Wilson] the benefit of the doubt”, it “assumed”,

without deciding, that he had preserved the Batson claim through

his above-quoted protest and determined the statistical data was

sufficient     to    establish   a   prima     facie   case    of   purposeful

discrimination.       See id. at 12.     It held, however, that, through

the earlier-described affidavits presented for the state habeas

proceeding, the State “met its burden of producing evidence that

                                        10
the agreed excusals were made for reasons other than race”.            See id

at 12-13.    It noted that the trial record supported these reasons

and demonstrated lack of collusion: e.g., defense counsel objected

to the State’s challenge-for-cause of a prospective Hispanic juror

on Batson grounds; and the State accepted a Hispanic juror to serve

on the jury who was ultimately successfully challenged by the

defense.    See id. at 13.

      For these reasons, the district court concluded that the state

court’s determination “that [Wilson] had failed to establish an

equal protection violation under either Mata or Batson” was not “an

unreasonable application of, nor contrary to, federal law”.                  See

id.

                                        1.

      Wilson first requests a COA for whether the district court was

required to conduct an evidentiary hearing on the agreed-excusals

issue.     Wilson requested, but did not receive, such a hearing in

district court.     (As noted, Wilson had also requested, but failed

to receive, one in state court.)

      The district court found Wilson did not fail to develop his

factual    claim   in   state   court    and   was   thus   eligible   for    an

evidentiary hearing.      See 28 U.S.C. § 2254 (e)(2) (if petitioner

failed to develop facts in state court, no evidentiary hearing

except under certain circumstances).           Nevertheless, it noted that,

to obtain a hearing, a habeas petitioner has to show either a


                                        11
factual dispute which, if resolved in his favor, would entitle him

to relief or a factual dispute that would require development in

order to assess the claim.       See Magistrate Judge’s Report at 14-15

(citing Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir.), cert.

denied, 531 U.S. 957 (2000); Robison v. Johnson, 151 F.3d 256, 268

(5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999)).

       The district court determined Wilson was not entitled to a

hearing.      He “ha[d] not alleged any factual dispute with regard to

this claim” and “failed to even allege, much less present evidence,

that the statements made in the affidavits submitted by the parties

in the case are incorrect or not worthy of belief”.            See id. at 15.

       Section 2254 (e)(2) allows habeas evidentiary hearings in

certain instances; it does not require them.             The denial of an

evidentiary hearing is reviewed only for an abuse of discretion.

E.g., Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir.), cert.

denied, 531 U.S. 831 (2000); McDonald v. Johnson, 139 F.3d 1056,

1060   (5th    Cir.   1998)   (whether    hearing   required    committed   to

district court’s discretion).

       Assuming the district court could have granted an evidentiary

hearing pursuant to § 2254 (e)(2), the question for COA purposes is

whether reasonable jurists could find that the district court

abused its discretion in declining to grant one.               Because Wilson

did not allege that the affidavits were incorrect and no factual




                                     12
issues were before the district court, reasonable jurists would not

debate this issue.

                                       2.

       Concerning the agreed excusals, Wilson next requests a COA for

the claimed equal protection violation.               He contends the Court of

Criminal Appeals was unreasonable in its application of federal law

because it held, contrary to the subsequent holding of the federal

district court, that Wilson did not state a prima facie case of

discrimination for the excusals.

       Wilson has not shown, however, that jurists of reason would

debate the ultimate conclusion of both the state habeas court and

the federal district court:       that the excusals were not based on

race in violation of either Mata or Batson.                    Jurists of reason

would not disagree with the district court’s conclusion that, in

this regard, the state courts reasonably applied federal law.

                                   B.

       Wilson next requests a COA for whether the evidence was

legally sufficient to show specific intent to cause death; such

intent must be proved beyond a reasonable doubt for a capital

murder conviction.

       The evidence at trial demonstrated, inter alia:                 the victim

was kidnapped from her bedroom and viciously raped; the victim knew

(and    could   identify)    Wilson,        because    he    had   lived   in   the

apartments,     was   an   acquaintance       of   the      victim’s   mother   and


                                       13
babysitter, and at a birthday party earlier that year, had touched

the victim’s hair and spoken to her (causing her to jerk away); the

cause of death was both asphyxiation and a major crush force injury

to the head, caused by an automobile tire running over it; the

victim was found in a remote, secluded area; the asphyxiation and

major crush force injury were “fairly close together in time”; the

body was directly in front of the vehicle prior to being run over;

the   rear   tires   of   the   vehicle   left   an   acceleration   mark

approximately 29 feet from a pool of blood (where the victim’s head

was located), in a direct line with the victim’s body; and the

police believed that, from this distance, the driver would have had

ample time to avoid an object.

      Wilson contends the evidence was not legally sufficient to

prove his intent to kill the victim because, given the evidence,

any number of other scenarios are equally plausible.       He notes that

the State was unable to prove the exact circumstances surrounding

the death and suggests he may have smothered the victim with his

hand in an effort to quiet her while he sexually assaulted her (but

did not intend to kill her) and may have run over her with his

automobile in an effort to leave the scene quickly (again, without

intent to kill her).

      Wilson first raised this claim on direct appeal.          Applying

Jackson v. Virginia, 443 U.S. 307 (1979) (establishing standard for

sufficiency), the Court of Criminal Appeals, viewing the evidence



                                   14
“in the [requisite] light most favorable to the verdict”, had “no

trouble concluding that any rational trier of fact could conclude

beyond a reasonable doubt that [Wilson] intentionally caused the

death of the victim either by strangulation or running over the

victim with [an automobile]”.      Wilson, No. 71,947 at 1-2.

     Wilson raised the same issue in his state habeas proceeding.

The Court of Criminal Appeals determined, as a matter of law, that,

because it had already considered and rejected this issue on direct

appeal, Wilson was procedurally barred from raising it in his state

habeas application.    Nevertheless, it likewise determined, as a

matter of law, that the evidence was legally sufficient on the

issue of intent.

     The district court noted that, “under the Jackson standard, a

federal habeas court may find sufficient evidence to support a

conviction   even   though   the   facts   may   also   support   another

reasonable hypothesis consistent with a claim of innocence”.         See

Magistrate Judge’s Report at 16 (citing Gibson v. Collins, 947 F.2d

780, 783 (5th Cir. 1991), cert. denied, 506 U.S. 833 (1992)).         It

determined, under that standard:

          [A]ny rational jury could have found beyond a
          reasonable doubt that [Wilson], when he
          kidnapped a girl who knew him in the middle of
          the night from her home, anally raped her
          either before or after he took her to a remote
          location with little or no traffic, suffocated
          her so severely that the suffocation in and of
          itself was fatal, placed her in a grassy field
          several feet from the nearest road either
          before or after suffocating her, and ran her

                                   15
          over with a car parked several feet from her
          body in such a manner that the vehicle left
          tire marks on both her shoulder and her leg
          and caused a fatal wound to her head, intended
          for her to die either by suffocation or by
          being hit by his car.

Id. at 17-18.    Observing that the Court of Criminal Appeals, on

direct appeal, had held the evidence legally sufficient on intent

to kill, the district court concluded this was not an unreasonable

application of the Jackson standard.       See id. at 18.

     Wilson contends the district court failed to address his

contention that, when the circumstantial evidence is “ambiguous”

with respect to the applicable culpable mental state, rather than

in conflict (i.e., where there is circumstantial evidence to

support more than one inference), and the State presents no further

circumstantial   evidence   that,   if   credited,   would   resolve   the

ambiguity, due process will not tolerate a capital conviction.          He

contends the State failed in its burden of production on the issue

of intent, as well as in its overall burden of proof.

     Again, the State need not disprove every hypothesis, so long

as it produces evidence that allows a reasonable jury to infer the

elements of a crime beyond a reasonable doubt.       See, e.g.,   Gibson,

947 F.2d at 783.   Jackson instructs that “a federal habeas court

faced with a record of historical facts that supports conflicting

inferences must presume — even if it does not affirmatively appear

in the record — that the trier of fact resolved any such conflicts



                                    16
in favor of the prosecution, and must defer to that resolution”.

443 U.S. at 326.

     Wilson offers no legal theory or factual basis to support a

distinction      between   “conflicting”      and    “ambiguous”        evidence.

Jurists     of   reason    would    not    debate    the    district     court’s

determination that the Court of Criminal Appeals reasonably applied

Jackson.    In other words, reasonable jurists would agree with the

district court’s determination that the Court of Criminal Appeals

was reasonable in determining that the evidence, viewed in the

light most favorable to the conviction, was sufficient to allow a

reasonable juror to find, beyond a reasonable doubt, the requisite

intent to kill.

                                      C.

     Wilson’s two final COA requests concern the effectiveness of

his counsel both at trial and on appeal.                 Restated, he claims

ineffective      assistance    at   each    stage.         See   Strickland   v.

Washington, 466 U.S. 668, 684-86 (1984) (to establish ineffective

assistance, defendant must show deficient performance and resulting

actual prejudice).

                                      1.

     Wilson’s COA request for claimed ineffective assistance at

trial centers on two failures to object (concerning the requisite

intent     for   a   capital   murder      conviction)      that   he    insists

collectively caused prejudice. First, trial counsel did not object


                                      17
to portions of the prosecutor’s closing argument urging the jury to

convict Wilson of capital murder or nothing at all (rather than the

lesser included offense of felony murder).       Second, trial counsel

did not request that the instruction defining “intent” make clear

that the jury could not find Wilson’s objective was to cause death

merely because it was his objective to engage in the conduct that

did cause death.

                                   a.

      The jury was charged that it was authorized, should it find

Wilson not guilty of capital murder, to convict him of the lesser

included-offense   of   felony   murder.   The   prosecutor   made   the

following remarks in rebuttal closing argument, without objection:

               You can stand up here all day long and
          you can downplay all this physical evidence
          that you want to, but I’ll tell you one thing,
          [defense counsel] tells you he doesn’t have
          the burden of proof and he’s right about that.
          I have the burden of proof and I have the
          facts. And I’ll take my burden of proof and
          my facts any day. And folks, if you cannot
          convict this man right here based on the
          evidence that you got in the courtroom, then
          when you leave don’t you find him guilty of
          something lesser. If you can’t find this man
          guilty of specifically intending to kill that
          little girl, then you sign that not guilty
          form, and you let him walk out the door with
          you.

               And if you cannot convict this man for
          killing that little girl on the week and a
          half’s worth of evidence you have had in this
          courtroom, then when you leave here and walk
          out with him, you go call your senator and
          your representative because the next time they
          meet down in Austin you tell them, we’re not


                                   18
convicting anybody anymore in Dallas County
unless we have got a videotape of the offense,
because it doesn’t get any better than this,
folks.

                     ***

     You can turn your head to it and you can
ignore it, but it’s not going to go away.
[Defense counsel] has told you over and over
about that’s your business if you want to
believe this and that’s your business if you
want to believe that.       Well folks, your
business is this. You [sic] business is to
see that Jackie Wilson stands in this
courtroom and is held accountable and made to
stand to answer for what he did to that little
girl, for intending to kill her, intending to
kidnap her and doing both of those things,
with no more regard for her than an old sack
of clothes.

     When he was finished with her he threw
her out on the side of the road, and your
business is to see that he answers for it and
that he pays for it. And if you just don’t
think that you can look at this man after all
he’s done – and that brings me to a point. I
am not going to apologize to y’all for showing
you the photographs, and I know it was hard on
some people, but there’s a lot of people here
that have lived with those photographs and
these facts for a long time.      And I’m not
going to apologize to you for having to see
them. And I know that you will never forget
it, and I don’t want you to.

     But if I had to stand up here and show
you a thousand more of them I would do it if
that [sic] what it’s [sic] takes for this man
to be punished for what he has done ... You
can turn your back on it if you want to. But
[defense counsel] said one thing, that someone
that could do this and how they’re not normal.
You’re right, he’s not. And you better not
forget it you [sic].

     If you don’t have the stomach for it,
then you’re making a bad, bad mistake. I’m

                     19
          going to tell you one more time and I mean
          this with everything in me.     If you can’t
          fined [sic] guilty of capital murder, if you
          even have to consider the second verdict form
          on that page, then you sign the last one and
          we’ll let him go, because that’s not the
          evidence here. He is guilty of capital murder
          and capital murder only and that’s what I’m
          going to ask you to return.

Wilson contends his counsel was ineffective for failing to object

because these comments invited the jury to ignore the law by asking

them not to even consider the lesser-included offense of felony

murder in their deliberations.

     In denying relief on this issue on state habeas review, the

Court of Criminal Appeals determined that pursuant to Strickland,

failure to object did not constitute ineffective assistance.

     Regarding deficient performance, it ruled counsel’s failure to

object was not deficient because the prosecutor was: (1) properly

responding to defense counsel’s assertion in closing argument that

the jury had a choice between capital murder and felony murder and

should choose the latter; (2) not telling the jury to ignore the

law, but merely asserting that the evidence was so overwhelming

that any guilty verdict other than capital murder could not be

reasonably   deduced   from   the   evidence;   and   (3)   urging   law

enforcement — that the punishment should fit the crime. It further

recognized that, even if the statements were improper, the failure

to object would not ordinarily reflect deficient performance,

because a decision whether to object during closing argument is a


                                    20
matter of trial strategy; and Wilson had not shown the decision not

to object was not a matter of trial strategy.

       Regarding prejudice, the Court of Criminal Appeals determined

that Wilson was not harmed by the prosecutor’s statements.              First,

the jury charge contained proper instructions, and the jury is

presumed to have followed them.          Second, the statements could have

benefitted Wilson, because his counsel spent almost half of their

closing argument urging the jury to find him not guilty.

       The district court noted that, under Texas law, there are four

areas of permissible jury argument: (1) summations of the evidence;

(2) reasonable inferences or deductions from the evidence; (3)

responses to opposing counsel’s argument; and (4) pleas for law

enforcement. See Magistrate Judge’s Report at 24 (citing Wilson v.

State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996), abrogated on other

grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002)).

It determined the prosecution’s statements fell under (1), (3), and

(4).    See id. at 24-25.       It acknowledged that whether to object

during closing argument is a matter of trial strategy that a

federal habeas court should not lightly second-guess.             See id. at

25     (citing Drew v. Collins, 964 F.2d 411, 423 (5th Cir. 1992),

cert. denied, 509 U.S. 925 (1993)).

       The   district   court   agreed    that   Wilson   had   not   suffered

prejudice from the failure to object:            the jurors were instructed

regarding the mental state required for both a capital murder

                                     21
conviction and a felony murder conviction; and, as discussed supra,

that they had to find, beyond a reasonable doubt, intent to kill

the victim in order to convict Wilson of capital murder.    See id.

Accordingly, the district court concluded that the state habeas

court’s application of Strickland was “not ... unreasonable”.   See

id. at 26.   Reasonable jurists would not debate this conclusion.

In other words, they would agree with the district court that the

state court’s application of both Strickland prongs was reasonable.

                                 b.

     As noted, Wilson maintains the instruction on the requisite

intent allowed the jury to convict for capital murder, even if

Wilson did not intend his conduct to result in death.      The jury

charge at the guilt phase included the following definition for

intent:

          A person acts intentionally, or with intent,
          with respect to the nature of his conduct or
          to a result of his conduct when it is his
          conscious objective or desire to engage in the
          conduct or to cause the result.

(Emphasis added.)   The application paragraph of the charge stated:

          To warrant a conviction ... of capital murder
          you must find from the evidence beyond a
          reasonable doubt ... the defendant caused the
          death of ... [the victim], by causing the
          asphyxiation of ... [the victim] ... or by a
          crush force injury to [her] caused by striking
          [her] with a motor vehicle with the intention
          of thereby killing her. Unless you find from
          the evidence beyond a reasonable doubt that
          the   defendant,   on    the   said   occasion
          specifically intended to kill [the victim]


                                 22
            when he asphyxiated her or struck her with a
            motor vehicle, if he did, you cannot convict
            him of the offense of capital murder.

(Emphasis added.)

     Kinnamon v. State, 791 S.W.2d 84 (Tex. Crim. App. 1990), held

that a jury charge providing the full statutory definition of the

culpable mental state for a result-oriented offense was not error

when a reading of the charge as a whole showed the definition was

properly limited.        Cook v. State, 884 S.W.2d 485 (Tex. Crim. App.

1994), handed down approximately six weeks before Wilson’s second

trial began, overruled Kinnamon and held an intent instruction in

a simple (not capital) murder case must be limited to the result of

conduct    (i.e.,   it    was   error   for    a     court   to   not   limit    the

definitions of the culpable mental states as they relate to the

conduct elements involved in the particular offense).                   884 S.W.2d

at 490.

     A    concurring     opinion    noted     that    the    situation    is    more

complicated for capital murder: every capital murder has a “result

of conduct” element but also an aggravating feature that generally

involves some other element of conduct, either “nature of conduct”

or “circumstance surrounding conduct” or both.                    Id. at 493-94

(Maloney, J., concurring). It provided a sample definition section

of a charge.    Id. at 494.        Hughes v. State, 897 S.W.2d 285 (Tex.

Crim. App. 1994), cert. denied, 514 U.S. 1112 (1995), handed down

that same day, held, based on Cook, that it would be error in a

                                        23
capital murder case to include all conduct elements in the culpable

mental state definition if not all applied.      897 S.W.2d at 295-96.

     Wilson claims the given instruction was contrary to Cook and

Hughes and created a danger that the jury would find he intended

the result of his conduct simply because he intended to engage in

the conduct that resulted in the victim’s death.               Again, he

maintains   counsel   was   ineffective   for   failing   to   request   a

definition of “intentional” that made clear to the jury that it

could not find his conscious objective or desire was to cause death

merely because it was his conscious objective or desire to engage

in the conduct that caused the death.

     Regarding deficient performance vel non, the Court of Criminal

Appeals concluded that Cook and Hughes were not binding law at the

time of trial, because those opinions were not final until post-

trial (petition for rehearing filed in Cook; Hughes based on Cook);

and that, at best, the law on the issue was unsettled.         It further

found that the offense of intentional murder during the course of

kidnapping involves all three conduct elements (intentional murder

is a result of conduct offense and kidnapping requires proof of

awareness of nature of conduct and circumstances surrounding it).

Accordingly, it determined counsel’s performance was not deficient

for failing to request a more limited definition.

     Regarding prejudice vel non, the Court of Criminal Appeals

ruled that, concerning intent, the charge specifically stated the


                                  24
difference   between   “murder”   and   “capital    murder”.      Thus,   it

concluded Wilson was not harmed by his counsel’s failure to request

a specific intent instruction.

      The district court noted: both Cook and Hughes differentiated

between murder and capital murder; Cook noted in dicta that, in a

capital murder that involved more than one conduct element, it

would not be error for the definition of intent to include more

than the “result of conduct” definition; and, under Texas law,

kidnapping (the underlying offense that elevated murder to capital

murder) was a “nature of the conduct offense”.            See Magistrate

Judge’s Report at 27-28.    It thus determined it was not error for

the judge to have instructed on the definition of intent with

respect to both result of conduct and nature of conduct.           See id.

at 28.   It concluded that it was not deficient for counsel to not

object, especially based on dicta from a concurrence (suggesting a

better way to organize the charge).       See id.

      Regarding prejudice, the district court noted that a harmless

error analysis was required by both Cook and Hughes.           It concluded

that Wilson failed to establish that, had counsel objected, there

was a reasonable probability that the result would have been

different — he had not established either that, if sustained, he

would not have been convicted of capital murder, or that, if

rejected, the conviction would have been reversed on appeal.              See

id.   Further, it recognized that, under the harm analysis, it was

                                   25
appropriate to consider to what extent the culpable mental states

were limited by the above-quoted application paragraph contained in

the instruction.        After reading the application paragraph, the

district court ruled it was clear that the jurors were instructed

they could not convict Wilson of capital murder unless they found,

beyond a reasonable doubt, that he had the specific intent to kill

the victim.   See id. at 29.    Therefore, it ruled Wilson suffered no

prejudice.    See id.

      Accordingly, the district court concluded that the state

habeas court’s application of Strickland was not unreasonable.

Specifically, it found reasonable the state court’s conclusions

that: (1) there was no deficient performance in failure to object

because the relevant case law was not then binding precedent; (2)

there was no deficient performance because there was no error in

the charge; and (3) there was no prejudice because the application

paragraph correctly applied to the facts of the case the relevant

law for the mental state required for capital murder.      See id. at

30.   Reasonable jurists would not debate the district court’s

conclusion that the state court’s application of Strickland was

reasonable.

                                   2.

      On direct appeal, the Court of Criminal Appeals held the trial

court erred at the guilt phase by admitting evidence of Wilson’s

extraneous misconduct on the night of the offense.      Specifically,


                                   26
it held erroneous the admission of the testimony of an adult

resident of the apartments that Wilson broke into her apartment

that night through a window, began to fondle her, and offered her

drugs in exchange for sex.             It held this admission was violative of

Rule 404(b)       of    the    former     Texas     Rules       of    Criminal       Evidence.

Wilson, No. 71, 947 at 33-37.                  Nevertheless, it concluded that

other substantial evidence supported the conviction and held the

error was harmless beyond a reasonable doubt under TEX. R. APP. P.

81(b)(2).    Id.

     Wilson’s      counsel       did    not    seek       rehearing          following     this

appellate ruling.         Wilson bases ineffective assistance of counsel

on counsel’s not doing so.                (The State maintains Wilson had no

constitutional         right    to    the   assistance          of     counsel       for   such

rehearing request; we assume arguendo that he did.)

     Wilson contends that, when conducting this harm analysis on

direct appeal, the Court of Criminal Appeals mischaracterized the

other      evidence           presented        by     the            State      and        these

mischaracterizations led to that court’s conclusion that such other

evidence    was    more        substantial         than    it    was.          The    claimed

misstatements      were:        (1)     Wilson      gave   a    written        confession     —

instead, he gave a written statement but did not confess to the

crime; (2) Wilson’s blood and fingerprints were found inside and

outside the victim’s bedroom window — instead, the victim’s blood

was found in the bedroom along with Wilson’s fingerprints on the


                                              27
inside and outside of the window; (3) there were two distinct sets

of tires — instead, there were three tires of one type and one of

another; (4) hair, blood, and tissue samples from the undercarriage

of the vehicle were matched to the victim — instead, hair and hair

pieces found were consistent with the victim’s hair; and (5) the

victim was strangled — instead, asphyxiation could have been due to

either smothering or strangulation.           See id. at 36-37.      Therefore,

Wilson claims: a properly conducted harm analysis may have yielded

a determination that the extraneous misconduct error was not

harmless (resulting in a new trial); and, accordingly, appellate

counsel   was     ineffective    by   failing,    through    a     request   for

rehearing, to bring these distortions to the attention of the

appellate court.

     On   state    habeas   review,     the   Court   of    Criminal    Appeals

concluded that Wilson failed to establish a valid Strickland claim.

It determined there was no deficient performance:             Wilson received

meaningful appellate review (appellate brief presenting 45 points

of error, motion to supplement record, supplemental brief with

additional points of error, and petition for writ of certiorari

with the Supreme Court of the United States); appellate counsel

submitted a credible affidavit stating that, although the harm

analysis did      contain   a   few   inaccuracies,   he    made    a   reasoned

judgment that they were not significant enough to change the

outcome of the appeal (especially because the Court of Criminal


                                       28
Appeals had heard the appeal twice and was familiar with the

facts), so he focused instead on the certiorari petition; and the

alleged mischaracterizations were reasonable deductions from the

evidence, such that a motion for rehearing would have been an

exercise    in    futility.      The     Court   of    Criminal    Appeals       also

determined Wilson had suffered no prejudice because he had failed

to show a different outcome would have resulted had appellate

counsel requested rehearing.

      The district court determined that the performance by Wilson’s

appellate counsel was not deficient and that Wilson did not suffer

prejudice from the alleged omission. See Magistrate Judge’s Report

at 36-40.    According to the district court, Wilson failed to show

the   strategy      described   in     his    counsel’s     affidavit      was    not

reasonable.      See id. at 36-37.     In addition, he failed to establish

a reasonable probability that the result would have differed had

these inaccuracies been brought to the attention of the Court of

Criminal Appeals by a rehearing request.                  See id. at 37.          The

district    court    noted    that,    even   when    the   misstatements        were

corrected, overwhelming evidence of guilt remained. See id. at 37-

39.      Therefore,    it    concluded    that   the    state     habeas   court’s

application of both prongs of Strickland was reasonable.                    See id.

at 36.

      Reasonable jurists would agree that the district court was

correct in holding that the Court of Criminal Appeals’ application


                                         29
of Strickland was reasonable.     In other words, they would not

debate whether appellate counsel rendered deficient performance by

not seeking rehearing, nor would they debate whether not seeking

rehearing caused prejudice to Wilson.

                                III.

     For the foregoing reasons, the COA requests are

                                                       DENIED.




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