                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        August 1, 2007

                                                                Charles R. Fulbruge III
                              No. 06-70040                              Clerk


                KEVIN MICHAEL WATTS, A/K/A KEVIN VANN,

                                                    Petitioner-Appellant,

                                  versus

                  NATHANIEL A. QUARTERMAN, DIRECTOR,
                TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                  CORRECTIONAL INSTITUTIONS DIVISION,

                                                     Respondent-Appellee.


_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                     Case No. SA-05-CA-1029-OG
_________________________________________________________________


Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

          Petitioner     Kevin   Michael    Watts   appeals   the    district

court’s denial of his petition for a certificate of appealability

(“COA”) to pursue his claim for habeas relief from a death penalty.

The district court did not err.       We deny a COA.

                I.   FACTUAL AND PROCEDURAL BACKGROUND

          The    underlying   facts   are   adequately   recited       by   the

district court.      See Watts v. Quarterman, 448 F. Supp. 2d. 786,


     *
      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this opinion should not be published and is not precedent except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.
792-95 (W.D. Tex. 2006).       In brief, on the morning of March 1,

2002, Watts entered the Sam Won Gardens restaurant in San Antonio,

Texas, brandishing a Tec-22 pistol.       Before demanding any money,

Watts murdered restaurant employees Hak Po Kim, Yuan Tzu Banks, and

Chae Sun Shook, shooting them execution-style in the back of the

head.     He then ordered Hye Kyong Kim, the wife of Hak Po Kim, to

retrieve her dying husband’s wallet and car keys from his pants

pocket.    Watts told her to empty the cash register.        Holding Mrs.

Kim at gunpoint, Watts ordered her into the Kims’ vehicle and fled

the scene with her. For several hours, Watts sadistically tortured

and sexually assaulted Mrs. Kim both in the vehicle and later in

his mother-in-law’s apartment – at one point allowing his roommate

to rape her.    Watts himself repeatedly sodomized Mrs. Kim, forced

her to ingest narcotics, and attempted to insert the Tec-22 pistol

into her vagina.    San Antonio Police captured Watts only after he

unsuccessfully attempted to escape by ramming the Kims’ vehicle

into two police cruisers.

            Watts was indicted and found guilty of capital murder and

was sentenced to death.        The Texas Court of Criminal Appeals

affirmed the conviction and sentence.      See Watts v. State, 2004 WL

3218854 (Tex. Crim. App. Dec. 15, 2004) (unpublished).          Watts did

not seek review in the United States Supreme Court.

            His application for a state writ of habeas corpus was

denied.    See Ex Parte Watts, 2005 WL 2659444 (Tex. Crim. App. Oct.

19, 2005)     (unpublished).    Watts   timely   filed   a   federal   writ

                                   2
petition in the district court, which denied habeas relief and

refused to grant a certificate of appealability (COA).       Watts

accordingly filed the instant application for COA with this court.

                        STANDARD OF REVIEW

          Watts’s right to appeal the denial of habeas relief is

governed by the COA requirements of the Antiterrorism and Effective

Death Penalty Act of 1996.    See 28 U.S.C. § 2253(c); Slack v.

McDaniel, 529 U.S. 473, 478, 120 S. Ct. 1595, 1600 (2000); Morris

v. Dretke, 379 F.3d 199, 203 (5th Cir. 2004).         The COA is a

jurisdictional prerequisite to review by this court and will not be

granted unless the petitioner demonstrates a substantial showing of

the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2);

Tennard v. Dretke, 542 U.S. 274, 282, 124 S. Ct. 2562, 2569 (2004).

Because Watts challenges the district court’s dismissal of habeas

relief on the basis of procedural default, he must show that

jurists of reason would find it debatable whether his petition

states a valid claim of the denial of a constitutional right and

whether the district court was correct in its procedural ruling.

See Slack, 529 U.S. at 484, 120 S. Ct. at 1604; Morris, 379 F.3d at

204.   The decision to grant a COA is, however, a threshold

determination and does not require “full consideration of the

factual or legal bases adduced in support of the claim.”        We

instead conduct only “an overview of the claims in the habeas

petition and a general assessment of their merits.”    Miller-El v.



                                3
Cockrell, 529 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003).          Since

this is a capital case, we resolve any doubt surrounding the

propriety of issuing a COA in Watts’s favor.              See Cardenas v.

Dretke, 405 F.3d 244, 248 (5th Cir. 2005), cert. denied, __U.S.__,

126 S. Ct. 2986 (2006).

                             II.   DISCUSSION

          In his application, Watts takes issue with two of the

district court’s adverse rulings.           He contends first that the

federal court erred because it rejected his contention that the

state trial court violated his Eighth and Fourteenth Amendment

rights to present mitigating evidence during the penalty phase of

his trial. The trial court allegedly excluded certain testimony of

Linda Mockeridge, a clinical social worker, chemical dependency

counselor, and self-described “mitigation specialist.”1           Second,

Watts objects to the court’s holding that he procedurally defaulted

this claim in the state courts.

          The   procedural     background    of   these   contentions   is

illuminating.   Following the trial’s guilt phase, the trial judge

held a Daubert hearing outside the presence of the jury during

which Mockeridge described her professional qualifications and the

     1
      Had Mockeridge been allowed to fully testify, Watts asserts
that she would have opined on a variety of psychological and
environmental factors that negatively affected Watts’s childhood
development, including sexual molestation, substance abuse, an
impaired decisionmaking capacity, and a host of other purportedly
mitigating characteristics that he claims would have influenced
the jury’s decision to punish him with death. See Watts, 448 F.
Supp. 2d. at 801.

                                     4
extent   of    her    research   into    Watts’s         personal    history.     She

concluded      that   Watts   was   likely     in    a    state     of   drug-induced

psychosis at the time of the offense.               On cross-examination by the

state, Mockeridge admitted that she had been unaware of the legal

definition of the phrase “mitigating evidence” before she prepared

for Watts’s trial; that she had never previously testified in a

capital case or been recognized as a mitigation expert; and that

her formal training in “mitigation science” consisted only of a

three-day seminar conducted by the Texas Defenders Service.                       The

prosecution then objected to the introduction of her testimony.

The trial judge nonetheless overruled the objection, stating that

Mockeridge would be permitted to testify as an expert, but that the

court would not certify her to the jury as an expert in the field

of “mitigation science.”            The trial judge further ruled that a

summary chart prepared by Mockeridge that contained various hearsay

statements would not be displayed to the jury, and that the

prosecution’s concerns regarding the chart’s nonhearsay contents

would be disposed of on a question-by-question basis in open court.

              Watts called Mockeridge as a witness during the penalty

phase of his trial.           As she did during the Daubert hearing,

Mockeridge testified before the jury that she had interviewed Watts

and certain of his family members and had reviewed his school,

jail, and psychiatric records.           Based on the assembled data, she

stated   her    belief   that    Watts   had    suffered       a    psychologically

traumatizing childhood and that he committed the murders while in

                                         5
a psychotic state.   The prosecution again objected that Mockeridge

was being offered as an expert.   In a discussion at the bench, the

trial judge accepted defense counsel’s explanation that the line of

questioning was merely an attempt “to prove up” the witness’s

qualifications, but admonished Watts’s counsel not to elicit any

inadmissible hearsay testimony from the witness:

     THE COURT:           I’m going to overrule the objection.
                          And as I said, in an abundance of
                          caution, I’m going to let her
                          [Mockeridge] testify. But, again,
                          remember the hearsay issue and the
                          chart issue.
     MS. TUSSAY-COOPER:   Yes, Your Honor.
     THE COURT:           And I will sustain the objection
                          then.
     MS. TUSSAY-COOPER:   All right. Thank you.

Watts cites this exchange in support of his contention that the

trial judge impermissibly ruled that Mockeridge could not testify

as an expert before the jury, and that Watts was thereby deprived

of the opportunity to provide crucial mitigation evidence in

violation of his constitutional rights. At that time, however, the

record demonstrates that defense counsel understood that the judge

was not sustaining an objection to Mockeridge’s status as an expert

because counsel continued to establish the expert’s qualifications

without objection from the state. Nonetheless, Watts’s counsel

neither attempted to elicit any further opinion testimony from the

witness nor sought to introduce any properly authenticated copies

of the records relied upon by Mockeridge and used in the summary




                                  6
chart.2   In short, besides the hypothesis that Watts committed his

crimes during a drug-fueled psychosis, defense counsel made no

effort whatsoever to introduce any further opinion testimony from

Mockeridge.

           After the jury was charged, Watts’s counsel offered the

summary chart and an affidavit-style report authored by Mockeridge

as a bill of exceptions, which was accepted by the court.      The

trial judge noted for the record that the objection to the chart

concerned only the hearsay testimony contained therein.      Watts

raised no point of error on direct appeal concerning the trial

court’s rulings on the Mockeridge testimony.     These issues were

first raised in his state habeas petition and were held to be

procedurally barred.

           Based on these events, the federal district court ruled

correctly that federal courts are bound by the state courts’

determination that Watts’s claim concerning the limitation of

Mockeridge’s testimony is procedurally barred.   “This Circuit has

held that the Texas contemporaneous-objection rule is strictly or

regularly applied evenhandedly to the vast majority of similar

claims, and is therefore an adequate procedural bar.”      Parr v.

Quarterman, 472 F.3d 245, 253 (5th Cir. 2006) (quoting Dowthitt v.

Johnson, 230 F.3d 733, 752 (5th Cir. 2000)) (internal quotation

     2
      The defense made no attempt to call witnesses, such as
Watts’s family members or acquaintances, who possessed personal
knowledge of Watts’s traumatic childhood or any other purportedly
mitigating evidence contained in the summary chart.

                                 7
marks omitted).       Watts made no attempt to contemporaneously object

to the trial court’s evidentiary rulings at trial or on direct

appeal and thereby failed to preserve his claim of constitutional

error.   He raised a point of error regarding the trial court’s

evidentiary      ruling   for    the   first   time    in   his    state   habeas

application, which, under Texas law, is too late.                 Federal habeas

review is barred here because Watts’s violation of the state

procedural rule represents an independent and adequate basis to

support the judgment.      See Pippin v. Dretke, 434 F.3d 782, 792 (5th

Cir. 2005); Rowell v. Dretke, 398 F.3d 370, 375 (5th Cir. 2005).

No jurist of reason could find otherwise.                   This conclusion is

dispositive for denial of COA.

           Irrespective of procedural bar, however, Watts suggests

that the trial court’s evidentiary ruling amounts to error of a

constitutional dimension because it allegedly led defense counsel

to believe that instead of excluding only the hearsay portions of

the   summary    chart,   the    trial   court   had    actually     ruled   that

Mockeridge      was   entirely   precluded     from    providing     any   expert

testimony whatsoever.       The state habeas court’s findings of fact

address this issue and explain that, whatever the particular

wording the trial court used in overruling the state’s objection,

all parties understood the ruling to be confined only to the

contents of the chart, and that it in no way limited Mockeridge’s

ability to offer any otherwise admissible expert opinion testimony.

This rendition is obviously accurate, because immediately after the

                                         8
ruling defense counsel returned to the same line of questioning

establishing Mockeridge’s professional background and status as an

expert witness without objection from the state.                       Had defense

counsel sincerely understood the trial judge’s ruling to be a

categorical bar to Mockeridge’s offering any opinion testimony,

there is no reason why counsel would have persisted in proving up

Mockeridge’s qualifications as an expert. The witness’s ability to

offer    opinion     testimony    independent       of   the   chart’s     hearsay

statements was neither limited nor revoked by the trial judge’s

ruling, as the post-ruling behavior of both parties confirms.                  The

federal court did not misconstrue the trial record, and the state

courts made no unreasonable determination of relevant facts.

            Further, Watts’s contention that he was not required to

contemporaneously object at trial because he submitted a post-trial

bill of    exceptions      to   the   trial    court,    raises   no    reasonably

debatable issue concerning the violation of his constitutional

rights.3    While the submission of mitigating evidence is highly

relevant    to     the   assessment    of     a   capital   defendant’s      moral

     3
      Watts cites our decision in Mayo v. Lynaugh, 893 F.2d 683,
686-88, 690 (5th Cir. 1990), for the proposition that the
submission of mitigation evidence in the form of an offer of
proof preserves a claim of trial error even without a
contemporaneous objection. Mayo says nothing of the sort. Mayo
involved the fact-specific question whether procedural default
attached to petitioner’s untimely asserted Penry claim when the
state failed to raise the procedural-default issue below. Id. at
686. Watts has neither asserted a Penry claim, nor can he
suggest that the state failed to argue that he had procedurally
defaulted on challenging the trial court’s evidentiary ruling.
Mayo is inapposite.

                                        9
blameworthiness, see, e.g., Rompilla v. Beard, 545 U.S. 374, 377-

79, 125 S. Ct. 2456, 2460-62 (2005), the contemporaneous-objection

requirement is not abrogated in the context of capital sentencing,

nor are the rules of evidence or the prohibition against hearsay.

See, e.g., McGinnis v. Johnson, 181 F.3d 686, 693 (5th Cir. 1999),

cert. denied, 528 U.S. 1125, 120 S. Ct. 955 (2000).                     Thus, the

state courts’ evidentiary rulings are not inherently suspect. Even

if they were incorrect, however, federal habeas relief may be

granted only under exceptional circumstances when the evidentiary

ruling violates a specific constitutional right or is so egregious

that it renders the trial fundamentally unfair.                Brown v. Dretke,

419    F.3d   365,   376    (5th   Cir.    2005),    cert.    denied,   __U.S.__,

126 S. Ct. 1434 (2006); McGinnis, 181 F.3d at 693 (ruling limiting

expert psychologist’s hearsay testimony during penalty phase did

not violate due process because the exclusion did not render the

trial “fundamentally unfair”). A due process violation arises only

when    the   excluded     evidence   “is      a   crucial,   critical,    highly

significant factor in the context of the entire trial.”                 Johnson v.

Puckett, 176 F.3d 809, 821 (5th Cir. 1999).

              Watts’s sole evidentiary contention is that the trial

court stifled his ability to present Mockeridge’s full range of

“expert” opinion.          Watts does not challenge the accuracy of the

ruling that he could not present as fact the hearsay statements

underlying Mockeridge’s conclusions. So understood, this complaint

does not concern crucial or critical evidence within the meaning of

                                          10
the due process clause.         Watts has made no showing that jurists of

reason would find merit in his constitutional claim or that our

refusal   to    address     his   claim   will    result   in   a   fundamental

miscarriage of justice.           See Coleman v. Thompson, 501 U.S. 722,

749-50, 111 S. Ct. 2564, 2565 (1991).

            For these reasons, we conclude that Watts’s failure to

timely assert his evidentiary objection in state court bars what

otherwise      would   be   a     substantively    unmeritorious     claim   of

constitutional error.        Watts’s request for COA is DENIED.




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