                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                            September 9, 2003
               IN THE UNITED STATES COURT OF APPEALS
                                                         Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                    Clerk



                            No. 03-50031
                          Summary Calendar



ENRIQUE ESTRADA, JR.,

                                     Petitioner-Appellant,

versus

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

                                     Respondent-Appellee.


                      ---------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. SA-01-CV-1072-EP
                      ---------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Enrique Estrada, Jr., a Texas prisoner, appeals from the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus

petition, in which he challenged his 1997 jury-trial conviction

of two counts of indecency with a child, his daughter.      The jury

assessed sentences of 10 years in prison.    The district court

granted Estrada a certificate of appealability on his federal

habeas claims that:   (1) his jury instructions were

     *
        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that this opinion should not be published and is not precedent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.
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                               - 2 -

unconstitutional in that they permitted the jury to convict him

upon less-than-unanimous agreement as to which conduct

constituted the offense; (2) appellate counsel performed

ineffectively by failing to raise the jury-instructions on direct

appeal; and (3) the trial court improperly admitted into evidence

an inculpatory statement taken from Estrada, allegedly in

violation of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), and Edwards v. Arizona, 451 U.S. 477 (1981).

     Federal habeas relief may not be granted upon any claim that

was “adjudicated on the merits in State court” unless the

adjudication “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.”   28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 529

U.S. 362, 409 (2000).

     Estrada, who was a U.S. Army sergeant at the time of the

offense, argues that his jury charge violated state and military

law as well as the Constitution, because the indictment counts

charged in the conjunctive that he performed three distinct acts

against his daughter that constituted the indecency offense,

whereas the jury was instructed in the disjunctive that it could

find him guilty if he committed any one of the three charged

acts.   Habeas relief under 28 U.S.C. § 2254 is reserved for

vindication of federal constitutional rights.   See Martinez v.

Johnson, 255 F.3d 229, 246 (5th Cir. 2001).   The Supreme Court

has not held that the Constitution imposes a jury unanimity

requirement.   See Hoover v. Johnson, 193 F.3d 366, 368 & n.2 (5th
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                                - 3 -

Cir. 1999) (citing Richardson v. United States, 526 U.S. 813, 821

(1999)).   A trial court is authorized to instruct a jury that it

may find that the defendant committed an offense by one or more

specified means, even if the offense is charged in the

conjunctive.    See Schad v. Arizona, 501 U.S. 624, 631 (1991);

Capps v. Collins, 900 F.2d 58, 59 n.2 (5th Cir. 1990) (“Use of

the conjunctive rather than the disjunctive in the indictment did

not oblige the state to prove both.”).     The same is true under

Texas state law.    See, e.g., Kitchens v. State, 823 S.W.2d 256,

258 (Tex. Crim. App. 1991); Cruz v. State, 742 S.W.2d 545, 546

(Tex. App. 1988).

     Because the jury-instruction claim would have been meritless

even under state law, Estrada has not demonstrated either that

appellate counsel performed deficiently by failing to raise the

claim on direct appeal or that he, Estrada, was prejudiced by

such failure.   See Strickland v. Washington, 466 U.S. 668, 689-94

(1984); Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994).

Estrada has not established that the state courts unreasonably

applied federal constitutional law in rejecting either of his

claims involving the jury instructions.

     Estrada argues that his confession was unconstitutionally

admitted because he was not timely read his rights under Miranda

and because military officials violated his rights under

Edwards by failing to heed his request that his retained attorney

be present during the interrogation.   Estrada’s Miranda claim is

meritless.   Even if it is assumed arguendo that Miranda warnings

should have been given to him by his commanding officer when the
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commanding officer told him to meet with U.S. Criminal

Investigations Command (“CID”) Special Agent Mathius Kraus, any

technical violation of Miranda by the officer was harmless

because Estrada subsequently was properly informed of his rights

under Miranda and waived those rights prior to confessing.      See

Oregon v. Elstad, 470 U.S. 298, 318 (1985) (suspect who made

inculpatory but voluntary statement that was “technically in

violation” of Miranda was “not thereby disabled from

[subsequently] waiving his rights and confessing after he ha[d]

been given the requisite Miranda warnings”).

     The state courts and the federal courts failed to address

specifically Estrada’s claim that his rights under Edwards were

violated when the CID agent failed to ensure the presence of his

counsel, after Estrada had made a request for counsel to the

sergeant who escorted him to the CID meeting.    Such a request

would have been imputable to the CID Agent, Kraus, see Arizona v.

Roberson, 486 U.S. 675, 687-88 (1988); Michigan v. Jackson, 475

U.S. 625, 634 (1986), and would appear to form the basis of a

cognizable Edwards claim given that such request for counsel was

not heeded.   See Edwards, 451 U.S. at 484 (“an accused . . .

having expressed his desire to deal with the police only through

counsel, is not subject to further interrogation by the

authorities until counsel has been made available to him, unless

the accused himself initiates further communication, exchanges,

or conversations with the police”).    Such a claim, however, is

subject to harmless-error review.     See Arizona v. Fulminante, 499

U.S. 279, 310 (1991).   In order to grant federal habeas relief
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                               - 5 -

under such a review, the trial error must have a “‘substantial

and injurious effect or influence in determining the jury’s

verdict.’”   Brecht v. Abrhamson, 507 U.S. 619, 637 (1993)

(citation omitted).   Although “‘a confession is like no other

evidence’” and “‘is probably the most probative and damaging

evidence that can be admitted against a criminal defendant,’”

Goodwin v. Johnson, 132 F.3d 162, 182 (5th Cir. 1997) (citations

omitted), the admission of Estrada’s statement did not have a

“substantial and injurious effect or influence” because a wealth

of other evidence regarding the charged conduct supported the

jury’s verdict.   Accordingly, Estrada cannot show that any

constitutional error with respect to the admission of the

statement was anything other than harmless.

     The judgment of the district court is AFFIRMED.
