                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 92-1742




STEPHEN RAY NETHERY,
                                               Petitioner-Appellant,


                              versus


JAMES A. COLLINS, Director,
Texas Department of Criminal
Justice, Institutional Division,
                                               Respondent-Appellee.




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

                          (June 11, 1993)


Before POLITZ, Chief Judge, KING and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:

     Stephen Ray Nethery was convicted of capital murder and

sentenced to death by the Texas state court.        With all direct

appeals and collateral state reviews exhausted he seeks federal

habeas relief.    The district court denied his application and

refused to grant a certificate of probable cause for appeal.     We

granted CPC.   For the reasons assigned, we affirm.
                              Background

     On the evening of February 22, 1981, Nethery met a woman in a

Dallas bar.    They consumed several strong drinks and he persuaded

her to leave the bar with him to go to a secluded spot to smoke

marihuana.    They drove to an area near a lake in a high crime area

and parked.      It was well after midnight.     Nethery made sexual

advances which his companion initially resisted. A pistol fell out

of his pocket.    He caused her to disrobe.   He did likewise and they

engaged in sexual relations over an extended period.     A police car

on patrol spotted them and pulled up alongside.          Two officers

exited their vehicle; Officer Phillip Brown approached the Nethery

auto and shined his flashlight inside. Officer John McCarthy stood

by the police auto.    As Officer Brown illuminated the interior of

Nethery's car the woman was attempting to put on her clothes;

Nethery was naked.     Officer Brown told them that they could be

arrested and instructed them to leave the area.

     At this point Brown turned to return to the police cruiser.

As he did, Nethery exited his car, rested his arm on the top of his

vehicle, said "I'm sorry," and fired three quick shots.        He hit

Officer McCarthy.     Officer Brown returned fire and Nethery ran

toward the lake.     Brown pursued and chased Nethery into the lake

where Nethery finally surrendered.     Upon returning to the parked

vehicles, Brown found his patrol partner on the ground, calling for

help on his mobile radio.       Officer McCarthy was rushed to the

hospital but subsequently died of the gunshot wound to the back of

his head.

     Nethery was indicted and tried for capital murder in Dallas
County.         Pursuant to Texas procedure,1 the jury first determined

his guilt and then considered three statutorily mandated special

issues.2        In response to these questions, the jury found (1) that

Nethery's conduct was deliberate and undertaken with the reasonable

expectation of McCarthy's death; (2) that there was a probability

that       Nethery   would   commit    further   criminal   acts   that   would

constitute a threat to society; and (3) that Nethery's conduct was

unreasonable in response to any provocation by Officer McCarthy.

Based on these answers, Nethery was sentenced to death by lethal

injection.3

       Nethery's appeal to the Texas Court of Criminal Appeals was

direct and automatic.         That court found no reversible error in any

of his 55 points of error.4           The Supreme Court denied his petition

for certiorari, rendering his conviction final, in early 1986.5

       Nethery next turned to the writ of habeas corpus.             The same

judge who had presided over his trial denied his first state

application and resentenced him to death.            Nethery maintains that

at this point the judge disclosed his close personal relationship

with Officer McCarthy.         Nethery appealed the denial to the Texas


       1
           See Tex. Code Crim. Proc. art. 37.071.
       2
     The jury was also instructed that it could consider evidence
of temporary insanity caused by intoxication.
       3
           Tex. Code Crim. Proc. art. 37.071.
       4
      Nethery v. State, 692 S.W.2d 686 (Tex. Crim. App. 1985) (en
banc), cert. denied, 474 U.S. 1110 (1986).
            5
            Nethery v. Texas, 474 U.S. 1110, 106 S.Ct. 897 (1986).


                                         3
Court of Criminal Appeals, adding a claim of judicial bias.                  That

court again denied relief.

      Nethery thereafter filed his first application for a federal

writ, which was dismissed for failure to exhaust a claim.                   He did

nothing until his execution was rescheduled, at which point he

returned to the state district court again seeking habeas relief.

This time a different judge was assigned to the case.                 The court

found no factual or legal basis for relief.              The Texas Court of

Criminal Appeals affirmed.

      Nethery then filed the instant application for federal habeas.

The district court assigned the matter to a magistrate judge who

held an     evidentiary   hearing.         The   magistrate   judge   found     no

credible evidence supporting Nethery's claim of judicial bias and

recommended that the application be denied.              The district court

adopted the recommendation and denied an application for CPC.                  We

granted CPC.

                                  Analysis

 I.   JUDICIAL BIAS

      Nethery claims that his trial was tainted by the presiding

judge's failure to disclose a close personal friendship with the

deceased officer. He contends that the relationship did not become

apparent until the judge went into "an emotional tirade" during a

resentencing hearing on Nethery's application for state habeas

relief.     The record of that hearing indicates that the judge

sentenced    Nethery   to   die   on       McCarthy's   birthday      and    then

immediately called a short recess.               After returning, the judge


                                       4
directed the clerk to send a copy of the death warrant to Nethery

so he could "study it" before he died.                 Nethery claims the judge

also professed a close friendship to the victim, although the

record is silent in this respect.               The state contends that the

judge simply was appalled by the senseless killing.

     The accused in any criminal trial is guaranteed the right to

an impartial tribunal.6            To secure relief on this basis, Nethery

had to establish that the judge was influenced by interests apart

from the administration of justice and that this bias or prejudice

resulted in rulings based on other than facts developed at trial.7

     Nethery's conclusion of bias is premised on the judge's

alleged friendship with Officer McCarthy.                The state habeas court

received conflicting affidavits from the trial judge and Nancy

Berry,    Nethery's       friend    and   spiritual    advisor,      regarding   the

judge's statements at the resentencing hearing.                    Berry claimed to

have heard the judge profess a friendship with the victim; the

judge denied       this    and     maintained   that    he   was    not   personally

acquainted with the victim. The record of the resentencing hearing

is silent with respect to the judge's supposed reference to a

friendship with the victim, corroborating the judge's version of

events.       The state habeas court found as a matter of fact that the

judge was not a personal friend of the victim.                Because it did not

follow on the heels of a full and fair hearing, this finding is not


          6
        Bradshaw v. McCotter, 785 F.2d 1327, 1329 (5th Cir.),
modified, 796 F.2d 100 (5th Cir. 1986).
    7
     United States v. Reeves, 782 F.2d 1323, 1325 (5th Cir. 1986).

                                           5
entitled to the statutory presumption of correctness.8

     Berry testified in the evidentiary hearing conducted a` quo,

stating, as she had in her affidavit, that she heard the trial

judge        profess       a    friendship     with       the   decedent    during    the

resentencing hearing.              The magistrate judge, citing her selective

recall of events, chose to discredit her testimony and concluded

that the "most petitioner has shown is that the trial judge was

offended          and   upset      by    the   brutal     and   senseless    nature    of

petitioner's crime."              The magistrate judge found the record of the

hearing and the state trial judge's affidavit more credible.                          Rule

52(a)'s command of deference to findings of fact, particularly

when,        as    here,       those    findings    are    premised   on    credibility

assessments, compels our rejection of this assignment of error.9



         8
       28 U.S.C. § 2254(d)(2).     The state habeas court did not
conduct an evidentiary hearing before discounting Berry's version
of events; rather, it adopted in whole the state's proposed
findings of fact two days after Nethery filed his petition.
Findings based solely on a paper record are not necessarily
entitled to a presumption of correctness. Ellis v. Collins, 956
F.2d 76 (5th Cir. 1992). "[I]t is necessary to examine in each
case whether a paper hearing is appropriate to the resolution of
the factual dispute underlying the petitioner's claim." May v.
Collins, 955 F.2d 299, 312 (5th Cir.), cert. denied, 112 S. Ct.
1925 (1992).     Notably, and for obvious reasons, unlike the
petitioners in Ellis and May, Nethery's petition was not considered
by the same judge who had presided over his trial; thus, there was
never a meaningful opportunity for the court to assess the
credibility of the conflicting affiants. Also significant is that
Nethery's version of events was not so facially insubstantial as to
render a hearing a mere gratuitous formality. To the contrary, the
record of the hearing and an independent news report both
documented that the judge became emotional during the hearing and
sentenced Nethery to die on what would have been Officer McCarthy's
birthday.
     9
        Anderson v. Bessemer City, 470 U.S. 564 (1985).

                                                6
II.   GRAND JURY COMPOSITION

      It is well established that the criminal defendant has no

constitutional right to a grand jury indictment before trial in

state criminal proceedings.10 A deficient indictment will, however,

provide a basis for federal habeas relief if the defect is so

significant that the convicting court lacked jurisdiction under

state law.11

      Under Texas law, a grand jury is composed of twelve grand

jurors.12       Once the grand jury is impaneled, nine grand jurors

constitute a quorum for doing business.13       A review of pertinent

           10
        Hurtado v. California, 110 U.S. 516 (1884); Hamilton v.
McCotter, 772 F.2d 171 (5th Cir. 1985).
      11
           Branch v. Estelle, 631 F.2d 1229 (5th Cir. 1980).
      12
           Tex. Const. art. V, § 13; Tex. Code Crim. Proc. art. 19.40.
           13
        "Grand and petit juries in the District Courts shall be
composed of twelve men; but nine members of a grand jury shall be
a quorum to transact business." Tex. Const. art. V, § 13.
     It became apparent during arguments in the course of the
hearing below that Nethery sought to argue that Texas law not only
requires the impaneling of twelve grand jurors but that twelve
grand jurors must be present to deliberate in every case.       The
state court did not address this contention.
     The district court, citing Drake v. State, 7 S.W. 868 (Tex.
App. 1888) and noting the state's waiver of the exhaustion
requirement, determined that Texas law imposed no such requirement.
Based on our review of the plain language of the Texas Constitution
and its Code of Criminal Procedure, as well as Texas case law, we
agree.   Hodges v. State, 604 S.W.2d 152 (Tex. Crim. App. 1980)
(holding nine grand jurors constitute a quorum for returning
indictments); see also In re Wilson, 140 U.S. 575 (1891) (no
jurisdictional defect where sufficient number of grand jurors voted
to indict notwithstanding fact that an insufficient number were
impaneled); 38 AM. JUR. 2D Grand Jury § 16 (1968) ("Unless the
statute is mandatory as to the number of grand jurors acting, the
excusing or absence of some of the panel will not affect an
indictment if enough remain to constitute the number necessary to
concur.").


                                    7
statements in Texas decisions, mostly in dicta and mostly from the

late    1800s    and   early   part    of       this   century,   suggests    that   a

conviction after indictment by a grand jury impaneled with more or

less than 12 members is void.14          Assuming, per arguendo, that these

cases reflect the current state of Texas law, and that proof of the

impanelment of less than 12 grand jurors would constitute grounds

for reversal on collateral attack, Nethery has failed to establish

that controlling fact herein.

       Nethery claims to have learned from a fellow inmate, who was

indicted by the same grand jury, that the grand jury was not

lawfully formed.       During the course of the evidentiary hearing in

this case, Nethery introduced the transcript of a hearing in his

fellow inmate's case in which the foreman of the grand jury noted

in passing that only nine grand jurors deliberated throughout the

grand jury's tour of duty.           The state objected to the introduction

of this transcript because the issue in the previous case was

whether the indictment had been forged; thus, there never had been

an opportunity to develop fully the testimony from the foreman with

respect to the number of grand jurors.                 The foreman did not testify

in the evidentiary hearing before the magistrate judge.

       Assuming, per arguendo, that the foreman's testimony in an

unrelated       proceeding     was    properly         admitted   under   a   hearsay

exception, and that this testimony can fairly be read to establish

the presence of only nine grand jurors during deliberation of both


       14
      E.g., Wilson v. State, 36 S.W.2d 733 (Tex. Crim. App. 1931)
(dicta).

                                            8
cases, the same result obtains.             Texas law clearly provides for

indictment   by    a   quorum   of   nine    grand    jurors;   the    foreman's

testimony, even if accepted as reliable, would, in fairness,

establish only that this number was present when the Nethery

indictment was handed up.            Hugh Lucas, an Assistant District

Attorney, testified that he supervised the operations of the grand

jury on the day Nethery was indicted, that twelve grand jurors were

impaneled, and that he personally witnessed at least nine of them

assemble to hear Nethery's case.            This testimony never has been

contradicted and is corroborated by court documents listing the

names of the 12 impaneled grand jurors.              This assignment of error

is without merit.

III. PROSECUTORIAL MISCONDUCT

     Nethery      charges   that     certain    statements      made    by   the

prosecution during closing arguments improperly pointed to his

failure to testify.      The Texas Court of Criminal Appeals found the

following statement by Nethery's lawyer to have invited reply:

     The prosecutor, when they were questioning you, told you
     it's not up to the state to prove motive. That's right.
     Nothing in the court's charge says they have to prove it.
     But I'll say this: If you have lack of motive, you're
     certainly entitled to consider that. According to Brown,
     he'd finished.    He was--both of them [had] finished.
     Turning to go back to their car. And you've got a man
     who knows that he's facing two police officers with guns
     and [he] gets out of the car and deliberately shoots and
     kills a policeman. Where's the logic? What reason is
     there?

In its closing the state responded:

     Motive? Mr. Goodwin wants a motive. Mr. Goodwin wants
     a reason. You told us, each and every one of you told us
     on voir dire that we could not, in many cases, bring you
     a motive or a reason and you agreed from that witness

                                       9
      stand that you would not force the State to show you a
      motive. And I'm sure it was explained to you that we
      can't show you a motive or a reason because many times it
      is known only to the defendant.       It's in that head
      (pointing to defendant). We can't cut that head open.

The trial court sustained a defense objection to the statement and

instructed the jury to disregard it but refused to declare a

mistrial.    The state argues that (1) even if the statement could be

interpreted as a comment on Nethery's silence, it was invited; (2)

to the extent the reply exceeded the invitation, if at all, the

error was either cured by the instruction; or (3) was harmless.

      While we hesitate to endorse the prosecution's remarks as an

appropriate and measured response to those of defense counsel, we

note that any unfair prejudice was, at most, slight.

      Defense counsel had opined that the state's failure to prove

a   motive   for    Nethery's   conduct        suggested   a   lack   of    criminal

responsibility.       The state was entitled to make an appropriate

response.      To    the   extent   the    prosecution     may   have      responded

excessively, we must view the error in light of the court's

curative instruction and consider whether the residual impact had

any "substantial and injurious effect or influence in determining

the jury's verdict."15

       15
        In Chapman v. California, 386 U.S. 18 (1967), the Court
considered whether the prosecution's reference to the defendants'
failure to testify at trial, in violation of the fifth amendment
privilege against self-incrimination, required reversal of their
convictions.   The Court rejected a proposed blanket rule which
would have required reversal in all cases of constitutional error,
preferring instead a rule requiring reversal whenever the error is
not harmless beyond a reasonable doubt.
     Since Chapman, the Court has drawn a distinction between
constitutional violations "of the trial type" and "structural
defects in the constitution of the trial mechanism, which defy

                                          10
      To say at this point that the jury drew the adverse inference

Nethery feared would be speculative at best.                   Nonetheless, even

assuming the statement caused each juror to consider Nethery's

failure to take the stand in his own defense and to draw an adverse

inference from it, we are not prepared to say that this assumed

error was harmful to the extent required under the controlling

standard.      Nor are we prepared to say that this assumed error was

not corrected by the court's curative instruction.16                   Rather, we

hold that any error associated with the prosecution's reply was

cured at trial and, in light of the overwhelming evidence of guilt,

had no       substantial    and     injurious   effect   or    influence   in   the

determination of Nethery's guilt or proper sentence.

IV.   JURY SELECTION

      During the course of jury selection the court excused for

cause      prospective     jurors    William    Keller   and   Debra   Pippi    and

declined defense invitations to excuse several other venire members

who indicated a preference for imposing death as a penalty for

murder.      Nethery complains of both decisions.

      In Wainwright v. Witt17 the Supreme Court approved the removal

of a prospective juror for cause where his views would "prevent or



analysis by harmless error standards." Arizona v. Fulminante, 499
U.S. ---, 111 S. Ct. 1246 (1991). The Court recently has held that
"trial type error" will serve as a basis for habeas relief only if
it "had substantial and injurious effect or influence in
determining the jury's verdict." Brecht v. Abrahamson, 113 S. Ct.
353 (1993). Chapman error, as alleged here, is trial error.
      16
           Donnelly v. De Christoforo, 416 U.S. 637 (1974).
      17
           469 U.S. 412 (1985).

                                         11
substantially impair" the performance of his duties in accordance

with his oath and the court's instructions.                        The Court recognized

that reliable assessment of the juror's ability to set aside

personal     convictions         depends    on        the    juror's        demeanor     and

credibility.      A juror's bias need not be proven with unmistakable

clarity.     Accordingly, judgments made at trial about a juror's

ability    to    abide    by   the   oath       and    the    court's       instructions,

notwithstanding moral convictions, are accorded a presumption of

correctness under 28 U.S.C. § 2254(d).18

     Venire      member    Keller    repeatedly         insisted       that    the     death

penalty was per se inappropriate and pointedly answered that he

would     vote   "no"     to   the   special          issues       regardless     of     the

instructions or the evidence, in order to avoid its imposition.

Only on cross-examination did he testify that it was "possible"

that he could answer the special issues in the affirmative.                               On

redirect by the state, Keller reiterated that he would vote "no" to

prevent the imposition of the death penalty and held to that

position during the judge's final examination. Venire member Pippi

likewise    expressed      her    disapproval         of     the    death    penalty     and

testified that she would find it difficult to cast aside her

convictions in favor of the court's instructions.                       We conclude and

hold that the dismissal of Keller and Pippi did not violate the

standard announced in Witt.

     Nethery exercised peremptory challenges to remove the venire


    18
      Duff-Smith v. Collins, 973 F.2d 1175 (5th Cir. 1992) (citing
Witt), cert. denied, 113 S. Ct. 1958 (1993).

                                           12
members he identifies as having been properly subject to strikes

for cause.          Even counting the strikes he used on these jurors,

Nethery did not exhaust his peremptory challenges.19              He was not

forced, therefore, to accept jurors he found objectionable, and the

court's refusal, erroneous or otherwise, to strike for cause those

prospective jurors he removed with peremptory challenges did not

cause harm of which Nethery may now complain.20

V.     MITIGATING EVIDENCE AND SPECIAL ISSUES

       In three distinct points of error, Nethery asserts that the

jury        could   not   give   effect   to   mitigating   evidence   of   his

intoxication in responding to the statutorily mandated special

issues. He first claims that the special issues as they existed at

the time of his trial21 did not allow the jury to consider evidence

       19
      In Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App.
1986), the court stated:
     When the trial court errs in overruling a challenge for
     cause against a venireman, the defendant is harmed only
     if he uses a peremptory strike to remove the venireman
     and therefore suffers a detriment from the loss of a
     strike.    Error is preserved only if the defendant
     exhausts his peremptory challenges, is denied a request
     for an additional peremptory challenge, identifies a
     member of the jury as objectionable and claims that he
     would have struck the juror with a peremptory challenge.
       20
      Ross v. Oklahoma, 487 U.S. 81 (1988) (finding no due process
or sixth amendment violation where capital murder defendant
exhausted his peremptory challenges removing a juror who should
have been excused for cause in the absence of a showing that any
juror who ultimately was seated was subject to removal for cause).
             21
         Texas has since revised the submission to require an
instruction informing the jury expressly to consider any mitigating
evidence in answering the three special issues. Tex. Code Crim.
Proc. art. 37.071(d)(1) (Vernon Supp. 1993).
     At the time of trial the issues were:

       (1)        whether the conduct of the defendant that caused

                                          13
of his intoxication or to incorporate their response into the

answers called for and, as a result, the court's refusal to provide

a separate instruction resulted in a violation of his eighth and

fourteenth amendment rights.          He next claims that the special

issues failed to apprise the jury about how it should consider

evidence which was probative of his future dangerousness and which

also mitigated his culpability. Lastly, he argues that the special

issues and instructions allowed the jury to consider only evidence

of future dangerousness.       We address these arguments collectively.

     In Penry v. Lynaugh,22 the Supreme Court held that the Texas

special issues were inadequate to allow meaningful consideration of

the mitigating effect of Penry's mental retardation.               The Court

based its conclusion on the direct inverse relation between the

evidence's mitigating and aggravating potential and the fact that

the special issues provided a means of expression only to the

aggravating character of this evidence in relation to the second

special issue--future dangerousness.            Thus, the jury's ability to

consider the mitigating effect in response to one of the three

questions     was   not   present   and    an   additional   instruction   was


             the   death   of   the    deceased   was   committed
             deliberately and with the reasonable expectation
             that the death of the deceased or another would
             occur;
     (2)     whether there is a probability that the defendant
             would commit criminal acts of violence that would
             constitute a continuing threat to society; and
     (3)     if raised by the evidence, whether the conduct of
             the   defendant  in    killing   the  deceased   was
             unreasonable in response to the provocation, if
             any, by the deceased.
     22
          492 U.S. 302 (1989).

                                      14
necessary.

     Nethery argues that the mitigating effect of his intoxication

likewise had relevance beyond the scope of any question asked in

Texas'     sentencing   scheme   and    that   the   absence   of   further

instruction prevented the jury from considering this evidence or

from expressing a favorable response.          He also assails the Texas

scheme in its entirety because it allegedly fails to provide the

jury with reasonable means of considering mitigating evidence and

directs attention unfairly towards aggravating factors.

     The Penry court expressly declined a sweeping invalidation of

the Texas scheme; such would have required announcing and applying

a "new rule."23   The Court thus did not invalidate the Texas scheme

in toto or mandate "special instructions whenever [the accused] can

offer mitigating evidence that has some arguable relevance beyond

the special issues."24 Rather, this court has construed the holding

in Penry to require additional jury instructions only where the

"major mitigating thrust of the evidence is beyond the scope of all

the special issues."25    We have held that the Texas special issues

are sufficiently broad in themselves to allow the jury to give

meaningful consideration to the accused's voluntary intoxication.26

     23
          Id.
     24
      Graham v. Collins, _____ U.S. _____, _____, 113 S. Ct. 892,
902 (1993).
     25
      Graham v. Collins, 950 F.2d 1009, 1027 (5th Cir. 1992) (en
banc), aff'd, 113 S. Ct. 892 (1993).
     26
       Cordova v. Collins, 953 F.2d 167 (5th Cir.), cert. denied,
112 S. Ct. 959 (1992); James v. Collins, 987 F.2d 1116 (5th Cir.
1992).

                                       15
Unlike      the   permanent   disability   suffered   by   Penry,   Nethery's

intoxication was a transitory condition which could be given

mitigating effect in response to the first or second special

issues.      Indeed, Nethery's trial counsel recognized as much and so

argued to the jury.       Nethery's arguments are either foreclosed by

controlling precedent or propose a new rule which we may not apply

on collateral review.27

VI.   FAILURE TO DEFINE TERMS USED IN THE SPECIAL ISSUES

      Nethery claims that the meaning of the terms "deliberately,"



     Unlike the dissent, we do not believe we have before us the
question whether the jury instruction as given, pursuant to
section 8.04 of the Texas Code of Criminal Procedure, affirmatively
precluded the jury's consideration of Nethery's purported
intoxication.   There was no prior submission to that effect in
either the state or federal courts. In fact, as the dissent notes,
the Texas courts found the objection Nethery actually presented to
be procedurally barred and also found that he was not so
intoxicated at the time of the offense as to warrant submission of
the temporary insanity instruction. Further, not only did Nethery
fail to preserve this point, he actually requested a definition of
insanity -- basing his later challenges on the denial thereof --
which would have created the precise prejudice the dissent fears.

     The dissent argues that the Texas courts have twice excused
procedural defaults where the defendant sought to argue a Penry
claim because "Penry 'constituted a substantial change in the
law. . . .'"        Selvage v. Collins, 816 S.W.2d 390, 392
(Tex.Crim.App. 1991) (citing Black v. State, 816 S.W.2d 350, 374
(Tex.Crim.App. 1991)).    It is unclear how this reading will be
affected by the Supreme Court's subsequent and more restrictive
reading of Penry in Graham.     More importantly, as the dissent
points out, the defaulted claim would be the total preclusion of a
jury's ability to consider mitigating evidence. That objection was
recognized, again, as the dissent points out, as early as 1976.
See Jurek v. Texas, 428 U.S. 262 (1976). We conclude that the
claim has not been presented to us at all and, in any event, that
Texas courts would find it to be barred. Accordingly, we do not
address its merits.

      27
           Graham, _____ U.S. at _____, 113 S. Ct. at 903.

                                      16
"probability,"   and   "society"   cannot    be   ascertained    and   thus

complains of their use in the special issues.           We have determined

that these words have a common meaning and adequately permit the

jury to effectuate its collective judgment.28       Thus, consideration

of this point is foreclosed.29

VII. FAILURE TO INFORM THE JURY OF THE EFFECT OF NOT ANSWERING THE
     SPECIAL ISSUES

     The jury was informed, pursuant to Article 37.071 of the Texas

Code of Criminal Procedure, that it could return a negative answer

to any special issue if ten or more of them so voted.                     An

affirmative response to any question required unanimity.           The jury

was not told of the consequence of its failure to muster fewer than

ten "no" votes or 12 "yes" votes.           Nethery contends that the

failure to so advise the jury caused the jury's responses to fall

short of the heightened need for reliability required of a verdict

in a capital case.

     Nethery muses that the jury's ignorance could lead to a

situation in which individual jurors felt compelled to reach a

consensus and, thus, one lone juror, assuming that he would have to

rally another nine "no" votes, would vote "yes" even though he felt

the appropriate answer was "no."        This lone juror theory presumes

that the juror would disregard the court's instructions to exercise

independent   judgment   and   vote   according    to    the   evidence   as

    28
      James, 987 F.2d at 1120 (citing Milton v. Procunier, 744 F.2d
1091 (5th Cir. 1984), cert. denied, 471 U.S. 1030 (1985)).
     29
       See United States v. Eckford, 910 F.2d 216, 220 (5th Cir.
1990) ("[P]rior panel opinions of this Court may not be disturbed
except on reconsideration en banc.").

                                   17
presented and the law as explained by the court.         Nethery contends

that the jury's ignorance about the effect of its verdict could

lead to a situation in which jurors feel compelled to reach a

consensus     because   Texas   juries    are   instructed,   pursuant   to

Article 37.071, that they "shall" reach a verdict.                We have

previously held that this type of claim -- which is based on the

principle announced by the Court in Mills v. Maryland30 -- proposes

a new rule under Teague v. Lane.31          Nethery's conviction became

final in 1986 -- two years before Mills was decided.           We thus do

not reach the merits of his claim.        Granting relief on this claim,

in contravention of the ordinary presumption that jurors follow the

trial court's instructions,32 would require our fashioning a new

rule of criminal procedure.33       This we decline to do.

     The judgment of the district court is AFFIRMED.




KING, Circuit Judge, dissenting:

    I respectfully dissent from the panel majority's affirmance of

the district court's denial of the writ of habeas corpus in

Nethery's case.      My disagreement with the majority is limited to


     30
             486 U.S. 367 (1988).

     31
          489 U.S. 288 (1989); Cordova v. Collins, 953 F.2d 167
(5th Cir. 1992).

     32
          See, e.g., Zafiro v. United States, 113 S. Ct. 933 (1993).
     33
          See Teague v. Lane, 489 U.S. 288 (1989).

                                     18
its disposition of Nethery's Eighth Amendment claim regarding his

mitigating evidence of voluntary intoxication at the time of the

crime.

                                      I.

          I initially note that I believe that the Supreme Court's

decision in Graham v. Collins, 113 S.Ct. 892 (1993), aff'g on other

grounds, 950 F.2d 1009, 1027 (5th Cir. 1992) (en banc), would

appear to require that the majority should, as a threshold matter,

address     whether   Nethery's   Penry    claim34   is   barred   under   the

nonretroactivity doctrine first announced in Teague v. Lane, 489

U.S. 288 (1989) (plurality opinion).        See Graham, 113 S. Ct. at 897

("Because this case is before us on Graham's petition for a writ of

federal habeas corpus, `we must determine, as a threshold matter,

whether granting [the habeas petitioner] the relief he seeks would

create a "new rule"' of constitutional law.") (citation omitted).35

The majority, however, cites a prior panel decision of this circuit

-- that was rendered after the Supreme Court's decision in Graham

-- which reached the merits of a Penry claim based on mitigating

evidence of intoxication without mentioning Teague.                In effect,

that panel held that the Teague doctrine does not bar the court

from reaching the merits in such a case.        See James v. Collins, 987

     34
          Penry v. Lynaugh, 492 U.S. 302 (1989).
     35
        Even if Graham does not require us to raise the issue sua
sponte, see Williams v. Collins, 1993 U.S. App. LEXIS 10195, 989
F.2d 841, ___ n.9 (5th Cir. May 4, 1993), I observe that the State
in this case expressly invoked Teague with respect to Nethery's
Penry claim, which would appear to require the majority to address
the Teague issue. Cf. Collins v. Youngblood, 497 U.S. 37 (1990).


                                    19
F.2d 1116, 1121 (5th Cir. 1993).36       Although I believe that the

panel decision in James mistakenly ignored the Supreme Court's

decision in Graham regarding the effect of Teague on Penry-type

claims, I agree with the majority that we appear to be bound by

James.    See Burlington N. R. Co. v. Brotherhood of Maintenance Way

Employees, 961 F.2d 86, 89 (5th Cir. 1992) (prior panel decision

binds subsequent panel unless intervening en banc or Supreme Court

decision).

                                   II.

         Nevertheless, even if this court were to apply Teague to

Nethery's case on a clean slate, I believe that Nethery's Eighth

Amendment rights were violated under Supreme Court authority firmly

in existence well before his conviction became final in 1986.    See

Nethery v. State, 692 S.W.2d 686 (Tex.Crim.App. 1985), cert.

denied, 474 U.S. 1110 (1986).    As I will explain below, I believe

cases such as Jurek v. Texas, 428 U.S. 262 (1976) (joint opinion of

Stewart, Powell & Stevens, JJ.), Lockett v. Ohio, 438 U.S. 586

(1978) (plurality), and Eddings v. Oklahoma, 455 U.S. 104 (1982),

dictate the result in this case.



A. The instructions given to Nethery's sentencing jury


    36
       In rejecting the habeas petitioner's Penry-type claim based
on mitigating evidence of intoxication, James relied on authority
from this circuit that antedated the Supreme Court's decision in
Graham. See James, 987 F.2d at 1121 (citing Cordova v. Collins,
953 F.2d 167, 170 (5th Cir. 1992)). I believe Cordova's implicit
holding that Teague is not a threshold issue to a Penry-type
challenge is no longer good law in view of the Supreme Court's
decision in Graham.

                                  20
     In contending that his Eighth Amendment rights were violated,

Nethery argues that the evidence of his intoxication at the time of

the crime could not be given adequate mitigating effect under the

three Texas "special issues" submitted to his capital sentencing

jury.37   The majority holds that a jury could adequately give

mitigating effect to evidence of intoxication if the jury was

submitted these three special issues.   I do not quarrel with the

abstract holding that, in answering the "deliberateness" query, a

rational jury could adequately give mitigating effect to evidence

of intoxication at the time of the crime.

      My dissent is not based on the operation of the statutory

special issues in isolation in Nethery's case; instead, it is based

on another instruction that the trial court submitted along with

the special issues that, in effect, took all three of the special

issues out of operation with respect to Nethery's mitigating

     37
       At the time of his trial, Article 37.071 of the Texas Code
of Criminal Procedure provided that the following three special
issues must be submitted to the jury at sentencing:

     (1) Whether the conduct of the defendant that caused the
     death of the deceased was committed deliberately and with
     the reasonable expectation that the death of the deceased
     or another would result;

     (2) Whether there is a reasonable probability that the
     defendant would commit criminal acts of violence that
     would constitute a continuing threat to society;

     (3) If raised by the evidence, whether the conduct of the
     defendant in killing was unreasonable in response to the
     provocation, if any, by the deceased.

TEX. CODE CRIM. PRO. Art. 37.071(b) (Vernon's 1981). Nethery's jury
was given three special issues based in substance on these three
statutory special issues.


                                21
evidence of intoxication.   Pursuant to a Texas statute38 applicable

to all criminal cases -- capital and non-capital -- the trial judge

instructed Nethery's jury that:

     Evidence of temporary insanity caused by intoxication may
     be introduced by the actor in mitigation of penalty
     attached to the offense for which he is being tried.
     "Intoxication" means disturbance of mental and physical
     capacity resulting from the introduction of any substance
     into the body.

Nethery v. State, 692 S.W.2d 686, 711 (Tex.Crim.App. 1985) (quoting

from Nethery's jury instruction) (emphasis added).

     A reasonable juror39 could read that instruction as providing

that Nethery's evidence of intoxication could not be considered at

all -- including under the special issues -- unless Nethery was so

intoxicated that he was rendered temporarily insane.   Indeed, this

      38
         See TEX. PEN. CODE § 8.04.    That provision provides in
pertinent part:

                    § 8.04.   Intoxication.

     (a) Voluntary intoxication does not constitute a defense
     to the commission of a crime.

     (b) Evidence of temporary insanity caused by intoxication
     may be introduced by the actor in mitigation of the
     penalty attached to the offense for which he is being
     tried. . . .

      Because of § 8.04, Texas criminal juries may not consider
evidence of a defendant's voluntary intoxication for any reason
during the guilt/innocence phase; a jury may only consider such
evidence during the sentencing phase, and then only if the
defendant's intoxication rose to the level of temporary insanity.
See Tucker v. State, 771 S.W.2d 523, 534 (Tex.Crim.App. 1988).
      39
         The Supreme Court has held that, in analyzing capital
sentencing issues in the context of jury instructions, courts must
ask how a reasonable juror could have interpreted the submitted
instructions. See California v. Brown, 479 U.S. 538, 541 (1987)
("`The question is . . . what a reasonable juror could have
understood the charge as meaning.'") (citation omitted).

                                  22
is precisely how the Texas Court of Criminal Appeals interprets §

8.04.     See Tucker v. State, 771 S.W.2d 523, 534 (Tex.Crim.App.

1988) ("[T]he [§ 8.04] instruction required the jury to find that

[the defendant's] intoxication at the time of the killings rendered

her temporarily insane before they could consider her drug use in

mitigation of punishment.            The charge on its face instructed the

jury to consider the mitigating evidence only in this light,

thereby implying that it may not be considered for any other

purpose.") (emphasis added); see also Volanty v. Lynaugh, 874 F.2d

243, 244 (5th Cir. 1989).           Of course, while intoxication that is so

severe     that   it   rises   to    the   level   of   temporary     insanity   is

quintessential mitigating evidence, so is intoxication that is not

so severe as to be tantamount to a state of insanity.40                  See Bell

v. Ohio, 438 U.S. 637, 640 (1978) (companion case to Lockett v.

Ohio,     438   U.S.   586   (1978));      see   also   Elliot   v.   State,   1993

Tex.Crim.App. LEXIS 84 at *39-40 (Tex.Crim.App.,                 April 14, 1993)

     40
       Nethery's evidence of alcohol and drug use was substantial
enough to permit a reasonable juror to find that he was
intoxicated. While the Texas Court of Criminal Appeals on direct
appeal specifically found that Nethery's evidence of intoxication
did not rise to the level of insanity, see Nethery v. State, 692
S.W.2d 686, 711-12 (Tex.Crim.App. 1985), the court did not find
that Nethery was not intoxicated. Id. at 712. A witness testified
at trial that Nethery drank a substantial amount of hard liquor and
smoked marijuana around the time of the crime. Nethery himself
stated that "he remembered drinking beer, whisky, and vodka, and he
remembered smoking some marijuana." Id. at 711. Nethery's bizarre
conduct -- stepping outside of his car totally nude and shooting
the police officer for no reason, see id. at 697 -- also supports
a finding of intoxication. Nethery met the evidentiary threshold
for Eighth Amendment purposes. See Sawyers v. Collins, 1993 U.S.
App. LEXIS 5596, 986 F.2d 1493 (5th Cir. March 23, 1993) (merits
of Penry-type claim not reached because defendant's evidence of
intoxication   insubstantial).      The   question   of   Nethery's
intoxication was one within the province of the jury.

                                           23
(Clinton, J., dissenting); Ex Parte Rogers, 819 S.W.2d 533, 537

(Tex.Crim.App. 1991) (Clinton, J., dissenting, joined by Baird &

Maloney, JJ.).41

      Even as early as Jurek, in 1976, total preclusion of a capital

sentencing      jury's      ability       to   consider     any      species   of

constitutionally relevant mitigating evidence was held to be an

Eighth Amendment violation.              See Jurek v. Texas, 428 U.S. at 272

("[T]he constitutionality of the Texas procedures turns on whether

the    [special     issues]      allow     consideration    of    particularized

mitigating factors."); see also Lockett v. Ohio, 438 U.S. at 604;

Eddings v. Oklahoma,        455 U.S. at 110.      Because Nethery's jury was

entirely precluded from considering the evidence of his non-insane

state of intoxication, I believe that the § 8.04 instruction given

by    the   trial   judge   in   Nethery's     case   was   a    straight-forward

violation of this well-established Eighth Amendment principle.

       41
        In Tucker v. State, supra, the Court of Criminal Appeals
observed -- without deciding the constitutionality of a § 8.04
instruction submitted in conjunction with the special issues --
that such a jury charge entirely precluded jury consideration of a
non-insane state of intoxication as mitigating evidence.       See
Tucker, 771 S.W.2d at 534. In a Texas case following Tucker, in
which a Penry-type challenge was made to capital sentencing
instructions that included both the § 8.04 charge and the three
statutory special issues, the Court of Criminal Appeals summarily
rejected the defendant's claim without any discussion or citation
of Tucker. See Ex Parte Rogers, 819 S.W.2d 533, 534 (Tex.Crim.App.
1991).    However, three dissenting judges argued that "this
instruction does not even purport to empower the jury to give
mitigating effect to evidence of voluntary intoxication that does
not rise to the level of temporary insanity. A juror who believed
a capital [defendant] was not so intoxicated as to be incapable of
appreciating the wrongfulness of his action [i.e., being
temporarily insane] might nevertheless find him less morally
culpable than would have been a sober man committing the same
crime." Id. at 537 (Clinton, J., dissenting, joined by Baird &
Maloney, JJ.).

                                          24
B. Is this claim properly before this court?

           Nethery   has   not   specifically    argued   that   the   §   8.04

instruction was the source of the Eighth Amendment violation that

he claims occurred at his trial.       Rather, he has simply argued that

mitigating evidence of his intoxication at the time of the crime

could not be given proper mitigating effect under the statutory

special issues submitted to his jury.           The majority believes that

the issue of the constitutionality of the operation of § 8.04 in

Nethery's case is not properly before this court.            I respectfully

disagree.

          I believe that we must necessarily address this specific

question as a collateral issue to the larger Eighth Amendment claim

raised.     See Ex Parte Rogers, 819 S.W.2d at 537 (Clinton, J.,

dissenting, joined by Baird & Maloney, JJ.).          As the Supreme Court

held in Graham, cases such as Lockett and Eddings require that a

capital defendant's sentence be upheld so long as all relevant

mitigating evidence was placed within "the effective reach of the

sentencer."    Graham, 113 S. Ct. at 902.        In order for the majority

to hold that Nethery's evidence of intoxication was properly

considered as mitigating evidence under the instructions given to

his capital sentencing jury, it thus must agree that Nethery's

evidence of intoxication was not beyond the effective reach of his

jury under the special issues.        In view of the § 8.04 instruction

given by Nethery's trial judge in addition to the statutory special




                                      25
issues, I cannot agree with that conclusion.42

       Furthermore, I believe that we may not avoid addressing the

effect     of   the   §   8.04   instruction   because,   in   considering    a

challenge to jury instructions, a court must review the entire

charge in order to determine the effect of the alleged defect.              See

California v. Brown, 479 U.S. at 543 (in a capital case, the Court

stated that "reading the charge as a whole, as we must . . ."); see

also United States v. Shaw, 894 F.2d 689, 693 (5th Cir. 1990);

United States v. Washington, 819 F.2d 221, 226 (9th Cir. 1987)

(asking "whether as a whole [the jury instructions] were misleading

or   inadequate").         Reviewing   the   entire   sentencing   charge    in

Nethery's case in order to determine whether Nethery's evidence of

intoxication was in "the effective reach" of his jury, Graham, 113

S. Ct. at 902, I do not believe that we simply may ignore the §

8.04 component of the capital sentencing charge, notwithstanding

Nethery's failure precisely to raise that particular issue.                 For

these reasons, I respectfully dissent.




      42
       Although this precise claim was not made by Nethery during
habeas review in state court, Nethery did argue that the trial
court's instructions were unconstitutional because "the jury was
not instructed to consider the mitigating evidence [of Nethery's
intoxication] in answering the special issues." State Habeas Op.
at p. 6.    The state habeas courts held that such a claim was
procedurally defaulted because no such instruction was sought by
Nethery at trial.    Since the time of Nethery's denial of state
habeas relief, however, a unanimous Texas Court of Criminal Appeals
has explicitly waived procedural defaults in Eighth Amendment
challenges to the Texas capital sentencing procedures in effect at
the time of Nethery's trial. See Black v. State, 816 S.W.2d 350
(Tex.Crim.App. 1991); Selvage v. Collins, 816 S.W.2d 390
(Tex.Crim.App. 1991).

                                       26
27
