                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                               May 19, 2003

                  UNITED STATES COURT OF APPEALS         Charles R. Fulbruge III
                       FOR THE FIFTH CIRCUIT                     Clerk


                     _______________________


                           No. 02-50818

                     _______________________


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

 CLARENCE EDWARD TERRY, JR. also known as Clarence Edward Terry,

                                                Defendant-Appellant.

_________________________________________________________________

          Appeals from the United States District Court
                for the Western District of Texas
                    Civil Docket #W-01-CR-25-1
_________________________________________________________________



Before JONES and BENAVIDES, Circuit Judges, and KAZEN*, District
Judge.

PER CURIAM:*




     *
      District Judge for the Southern District of Texas, sitting by
designation.
     *
      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this opinion should not be published and is not precedent except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.
            The court has carefully considered this appeal in light

of the briefs and oral arguments of counsel. Finding no reversible

error of fact or law, we affirm the conviction and sentence.

            Terry first objects to the district court’s instruction

to the jury to consider his guilt of the lesser offense of second

degree murder if “. . . after all reasonable efforts, you are

unable to reach a verdict, . . .” on first degree murder.               Even

assuming that Terry properly preserved his objection to this

instruction,    which   follows    the     Fifth    Circuit   pattern   jury

instructions, the trial court did not err.            This instruction was

more favorable to the defense than the 1990 version, which required

the jury to acquit the defendant before they could move on to the

lesser offense.

            Terry also contends that the court’s instruction to the

jury on a sudden quarrel was inadequate, but this issue must be

reviewed for plain error only.             The term “sudden quarrel” is

sufficiently clear as not to have required further definition by

the district court.     There was no error.

            Third, Terry asserts that his counsel was ineffective for

failing to object to “expert” testimony regarding blood splatter

evidence,   particularly   because       the   district   court   practically

invited such an objection.        Even if the testimony was improperly

admitted, however, Terry cannot establish prejudice under the



                                     2
Strickland test, due to the overwhelming weight of the evidence

against him.

            Similarly,   because   of   the    extensive   incriminating

evidence against Terry, especially his own confession, Terry’s

challenge    to   the    sufficiency    of    malice   aforethought   and

premeditation evidence lacks merit.           The gruesome details and

extended duration of the attack on Nicole Johnson fully supported

the jury’s determination.

            AFFIRMED.




                                   3
