                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                            F I L E D
                    IN THE UNITED STATES COURT OF APPEALS                      June 30, 2004
                             FOR THE FIFTH CIRCUIT
                            ______________________                       Charles R. Fulbruge III
                                                                                 Clerk
                                     No. 02-51354
                                ______________________

                                   ELOY M. GARCIA,

                                                           Petitioner-Appellant,
                                         versus

 DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
               CORRECTIONAL INSTITUTIONS DIVISION,
                                             Respondent-Appellee.
      ____________________________________________________

                Appeal from the United States District Court
                      for the Western District of Texas
           _____________________________________________________
                                  (02:cv:2)


Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.


DENNIS, Circuit Judge:*

       Petitioner Elroy M. Garcia was convicted of murder after a

jury       trial   in   Texas    state   court    and   sentenced   to    20    years’

imprisonment. He brings the present § 2254 habeas corpus petition,

alleging both that his court-appointed trial counsel provided

constitutionally insufficient representation and that erroneous

jury instructions allowed the jury to convict him of murder based

on a finding of mere reckless or negligent behavior.                           Because

Garcia does not demonstrate that these alleged errors prejudiced

       *
     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this opinion should not be published and is not precedent except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.

                                           1
him to the extent necessary to afford him habeas relief, we AFFIRM

the district court’s denial of his § 2254 petition.

                                         I.

     On August 23, 1997, the victim, Nelson Elemen, Jr., drove with

his father and a friend to a house where Garcia and his brother,

Martin Garcia, were located.       Elemen, Jr. exited his vehicle and

began to argue with Martin Garcia.         Eventually a fight erupted, in

which   Martin    Garcia   was   knocked      to   the    ground,    apparently

unconscious.     With Martin Garcia lying on the ground, Elemen, Jr.

began to walk back to his vehicle when Elroy Garcia, who had been

standing behind a bush, shot Elemen, Jr. four times – once in the

shoulder, twice in the stomach, and once in the back.               When Elemen,

Sr. exited the vehicle to assist his son, Elroy Garcia shot Elemen,

Sr. in the leg and face.     Elemen Jr. died at the scene.

     At trial, Garcia did not argue that he did not intend to shoot

Elemen, Jr. but instead argued that the killing was justified

because it was in defense of himself and his brother.                   Despite

these arguments, the jury convicted him of               murder and sentenced

him to twenty years in prison; the conviction and sentence were

affirmed on appeal.    Garcia later applied for state habeas relief,

presenting the same claims raised in this petition; state habeas

relief was denied.

     Garcia then filed the present § 2254 habeas petition in

federal district court on December 14, 2001, arguing that (1) his



                                     2
indictment was “constructively amended” by his jury charge and that

his trial counsel provided ineffective assistance by not objecting

to this “constructive amendment”; (2) his trial counsel provided

ineffective assistance by not objecting to the improper definitions

of “intentionally” in his jury charge; and (3) that the jury

instructions as a whole improperly allowed the jury to convict him

of murder based on a finding of mere reckless or negligent conduct.

The magistrate who considered the petition recommended that the

district court deny relief on all grounds.       The district court

adopted the recommendation and denied relief.         Garcia timely

appealed.

                                     II.

     Garcia raised the claims before us today in his state habeas

petition, and the state court denied these claims on their merits.

Therefore, we cannot grant Garcia habeas relief unless the state

court “adjudication of the claim resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the

United   States.”1   “The   ‘unreasonable   application’   [standard]

requires the state court decision to be more than incorrect or




     1
      28 U.S.C. § 2254(d)(1).

                                 3
erroneous.      The state court's application of clearly established

law must be objectively unreasonable.”2

                                              A.

     Garcia first contends that his jury charge “constructively

amended” his indictment.         When a jury charge presents a jury with

a theory of a crime that was not charged in the indictment, it has

“constructively amended” the indictment in violation of the Sixth

Amendment,      which    provides     that     the   accused     in    a   criminal

prosecution has the right “to be informed of the nature and cause

of the accusation” against him.3               Garcia claims that the trial

court in this case violated his constitutional rights by presenting

the jury with a charge that allowed it to convict him of murder

based on a finding that he intended to cause serious bodily injury

and committed an act clearly dangerous to human life that causes

the death of an individual (“Seriously Bodily Injury Murder”),

while    his   indictment      only   charged      him   with   intentionally   or

knowingly      causing   the    death    of     an   individual       (“Intentional

Murder”).      He also claims that he received ineffective assistance

from his trial counsel who did not object to the jury charge.




     2
     Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal
citations omitted).
     3
     See Ricaldy v. Procunier, 736 F.2d 203, 207 & n.4 (5th Cir.
1983) (holding that it is a Sixth Amendment violation “when a
criminal defendant is convicted of a crime he was never charged
with committing”).

                                         4
     The indictment in this case charged Garcia only with murder

under Tex. Penal Code § 19.02(b)(1)–Intentional Murder.                           The

abstract section of the jury charge, however, defined murder both

as   Intentional     Murder       and       under      Tex.      Penal     Code     §

19.02(b)(2)–Serious Bodily Injury Murder.                 Notably, the State

presented no evidence or arguments indicating that Garcia committed

Serious Bodily Injury Murder but not Intentional Murder.                          In

addition, the application section of the jury charge instructed the

jury only to apply the definition of Intentional Murder as charged

in the indictment.        Garcia’s counsel did not object to the jury

charge at trial.

     “[Garcia] faces an extraordinarily heavy burden [because]

[i]mproper jury instructions in state criminal trials do not

generally form the basis for federal habeas relief."4                      In fact,

“[t]he burden of demonstrating that an erroneous instruction was so

prejudicial   that   it    will   support     a     collateral    attack    on    the

constitutional validity of the state court's judgment is even

greater than the showing required to establish plain error on

direct appeal."5 Garcia must demonstrate that the jury instruction

is “so egregious as to rise to the level of a constitutional




     4
     Tarpley v. Estelle, 703 F.2d 157, 159 (5th Cir. 1983)
(internal citations omitted).
     5
      Id. (internal citations and quotations omitted).

                                        5
violation     or    so   prejudicial     as   to    render      the    trial   itself

fundamentally unfair."6

      In     the   particular       context   of    an       alleged    constructive

amendment, courts “must determine whether the instruction permitted

the   jury    to   convict    the    defendant     on    a    factual    basis    that

effectively modified an essential element of the offense charged,”

or if it is “merely another of the flaws that mar [the trial’s]

perfection but do not prejudice the defendant.”7                      In making this

determination, the court should examine not just the jury charge,

but the facts permitted in evidence and the arguments of the

parties.8

      We hold that the jury charge in this case, combined with the

evidence and arguments presented by the parties, did not permit the

jury to convict Garcia of a crime with which he was not charged.

The jury heard evidence that Garcia shot the victim four times–once

in the shoulder, twice in the stomach, and once in the back–after

the   victim       pushed    down    Garcia’s      brother      and     knocked   him

unconscious.        Garcia based his trial defense on the theory of

self-defense. Garcia did not present evidence that he did not

intend to shoot the victim or that he intended to shoot him but

only to cause significant bodily injury.                 Instead, Garcia argued


      6
       Id. (internal citations and quotations omitted).
      7
       Restivo, 8 F.3d at 279.
      8
       See id.

                                         6
that he shot the victim in defense of himself and his brother – a

theory that the jury rejected by returning a guilty verdict.

     Even assuming that the definition of Serious Bodily Injury

Murder in the abstract section of the jury charge was improper,

based on the evidence presented at trial and the way in which

Garcia argued his case, Garcia has not demonstrated that the jury

instruction permitted the jury to convict him on a factual basis

not charged      in     the   indictment.      Accordingly,   Garcia   has   not

demonstrated that the jury instruction was “so egregious as to rise

to the level of a constitutional violation or so prejudicial as to

render the trial itself fundamentally unfair."9

     Garcia also claims that he received ineffective assistance

from his trial counsel who did not object to the jury instruction.

According to the familiar standard articulated in Strickland v.

Washington, to demonstrate constitutionally ineffective assistance

of his appointed counsel Garcia must prove both “that counsel’s

performance was deficient” and “that the deficient performance

prejudiced his defense.”10         To demonstrate deficient performance,

Garcia must prove more than a simple mistake by his counsel; Garcia

must overcome the presumption that counsel’s actions did not fall

“below an objective standard of reasonableness.”11             To demonstrate


     9
      Tarpley, 703 F.2d at 159.
     10
          466 U.S. 668, 687      (1984).
     11
          Id. at 688.

                                           7
prejudice,      Garcia    must      prove       that    “there    is    a     reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”12

     Assuming for the sake of argument both that the jury charge

constructively      amended      Garcia’s        indictment      and    that    Garcia’s

counsel provided ineffective assistance by not objecting to the

amendment, we still reject Garcia’s ineffective assistance claim

because Garcia was not prejudiced by his counsel’s failure to

object to the jury instruction.

     For Garcia’s claim to succeed, we must find that there is a

reasonable     probability       that,   but      for    counsel’s      unprofessional

errors, the result of the proceeding would have been different.                       In

other words, we must ask “whether, from all of the evidence, the

jury could have had a reasonable doubt concerning [Garcia]’s intent

to kill, and could have convicted him of intent to cause serious

bodily injury.”13        As explained above, the evidence presented in

this case, taken as a whole, indicates that there is not a

reasonable probability that the jury convicted Garcia of Serious

Bodily     Injury   Murder    but    did    not        believe   that    he    committed

Intentional Murder.        Accordingly, counsel’s failure to object to

the inclusion of the allegedly erroneous jury instruction did not

prejudice Garcia because there is not a reasonable probability


     12
          Id. at 694.
     13
          Ricalday v. Procunier, 736 F.2d 203, 208 (5th Cir. 1984).

                                            8
that, but for the error, the result of the proceeding would have

been different.

                                             B.

     Garcia next claims that his trial counsel was ineffective

because he failed to object to the definitions contained in the

jury charge.       Specifically, he argues that the jury instruction

stated that “intentionally” could refer, not just to the result of

Garcia’s conduct, but to the conduct itself.                       Garcia argues,

therefore,      that    the   jury     could      have   relied        on   erroneous

instructions and convicted Garcia based on a belief that Garcia

intended to “pull the trigger” but did not intend to kill his

victim.

     A federal habeas court reviewing an improper jury instruction

in a criminal trial must ask “whether the ailing instruction by

itself so infected the entire trial that the resulting conviction

violates     due   process,   not     merely      whether    the   instruction    is

undesirable, erroneous, or even universally condemned.”14                      Courts

should “[l]ook[] at the charge as a whole and in the context of

trial, including the arguments of counsel” in order to determine if

“there is [any] reasonable likelihood that the jury applied the

construction in a constitutionally impermissible way.”15                     For the

reasons     discussed    above   in    the     context      of   the    constructive


     14
          Kinnamon v. Scott, 33 F.3d 462, 465 (5th Cir. 1994).
     15
          Id. (internal citations and quotations omitted).

                                         9
amendment, even assuming that the jury instructions in this case

are   improper,   we   hold   that   they      do   not   rise   to   the   level

necessitating habeas relief.

      In order for Garcia’s claim to succeed, a reasonable jury

would have had to believe that Garcia shot his victim four times,

including once in the back, but did not intend to kill him.                   In

addition, the jury must have believed this even though Garcia never

argued that he did not intend to kill the victim, but instead

argued that he killed the victim in self-defense.                Looking at the

evidence and arguments presented at trial, we hold that there is no

“reasonable likelihood” that the jury applied its instructions in

a   constitutionally    impermissible       way.      Accordingly,     we   deny

Garcia’s request for habeas relief on this point.

                                          C.

      Finally, Garcia argues that the jury instructions as a whole

allowed the jury to convict him on legally insufficient grounds.

Specifically, he alleges that the jury charge’s definitions of

“knowingly” and “intentionally” were “so expanded and generic in

nature” that they allowed the jury to convict him based on mere

reckless or negligent behavior.       He also alleges that he received

ineffective assistance from his trial counsel when counsel failed




                                     10
to object to these jury instructions.16       We do not agree.   The

definitions of both “intentional” and “knowing” conduct were taken

verbatim from Tex. Pen. Code § 6.03.          These definitions are

commonly accepted and proper definitions of intentional and knowing

conduct17 that did not allow the jury to convict Garcia based on a

finding of mere reckless or negligent conduct.18     Accordingly, we

reject Garcia’s final claim.19


     16
      The state contends that we should not address this claim
on its merits because Garcia did not raise it in district court
in his § 2254 petition. However, the State responded to this
claim in its answer to Garcia’s § 2254 petition, undercutting its
argument that Garcia raises it for the first time here.
Accordingly, we address this claim on its merits.
     17
      Cf. Model Penal Code § 2.02 (providing similar definitions
of intentionally/purposefully and knowingly).
     18
          The jury was instructed that:

              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 cause the result.

              A person acts knowingly, or with knowledge,
              with respect to the nature of his conduct or
              to circumstances surrounding his conduct when
              he is aware of the nature of his conduct or
              that the circumstances exist. A person acts
              knowingly, or with knowledge, with respect to
              a result of his conduct when he is aware that
              his conduct is reasonably certain to cause
              the result.

     19
      Because the jury instructions did not impermissibly allow
the jury to convict Garcia on a finding of recklessness or



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                              III.

     Because Garcia’s claims are ultimately without merit, we

AFFIRM the district court’s decision denying Garcia’s petition.

AFFIRMED.20




negligence, we hold that Garcia’s trial counsel did not provide
ineffective assistance by refusing to object to them.
     20
      Because we deny Garcia’s petition on its merits, we need
not address the State’s contention that the petition was not
timely filed.



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