                       Revised June 2, 1999

                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                              No. 96-40760



                             JAMES BEATHARD,
                                                     Petitioner-Appellant,

                                 VERSUS


                      GARY JOHNSON, Director,
               Texas Department of Criminal Justice,
                      Institutional Division,
                                              Respondent-Appellee.




           Appeal from the United States District Court
                 for the Eastern District of Texas
                              May 26, 1999


Before JONES, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:

            I. MOTION FOR CERTIFICATE OF PROBABLE CAUSE

      Appellant-Petitioner    James       Beathard   (“Beathard”)   seeks   a

Certificate of Probable Cause1 to appeal the district court’s grant


  1
   This case is governed by the standards for federal collateral
review of state court convictions that applied before the habeas
corpus statutes were amended by the Antiterrorism and Effective
Death Penalty Act of 1996 because Beathard’s federal habeas corpus
petition was filed before the effective date of the act. See Lindh

                                      1
of summary judgment in favor of Respondent Gary Johnson (“the

State”) in Beathard’s federal writ of habeas corpus attacking his

Texas capital murder conviction.      We grant the Certificate of

Probable Cause to Appeal.    See Barefoot v. Estelle, 463 U.S. 880,

893 (1983). Because both Beathard and the State have briefed and

argued the merits of Beathard's appeal, we proceed directly to

disposition of the appeal.

                 II. FACTS AND PROCEDURAL HISTORY

     On March 4, 1985, Beathard was convicted for the capital

murder of Marcus Lee Hathorn in the course of burglary after a jury

trial in the 258th Judicial District Court of Trinity County,

Texas.   The jury affirmatively answered the two special sentencing

issues submitted pursuant to former TEX. CRIM. PROC. CODE ANN. §

37.071(b)(West 1984), and the state trial court assessed Beathard’s

punishment at death.   The Texas Court of Criminal Appeals affirmed

the conviction and sentence on direct appeal.       See Beathard v.

State, 767 S.W.2d 423 (Tex.Crim.App. 1989).

     Beathard filed an application for writ of habeas corpus in

state court, pursuant to TEX. CRIM. PROC. CODE ANN. § 11.07 (West

1984), which was denied by order dated May 26, 1993.     On October

17, 1994, Beathard filed an application for federal habeas corpus

relief pursuant to 28 U.S.C. § 2254.    The district court granted

summary judgment for the State, denying that application.        We


v. Murphy, 521 U.S. 320 (1997).

                                  2
affirm.

A. Beathard's trial

     The following version of the facts was developed by the

evidence, including co-defendant Gene Hathorn, Jr.'s (“Hathorn”)

testimony, at Beathard's trial.

     Beathard became friends with his accomplice, Gene Hathorn,

Jr., when they were employed as psychiatric security technicians at

Rusk State Hospital in Rusk, Texas.    In January 1984, Beathard left

Rusk State Hospital and enrolled in classes at Stephen F. Austin

University in Nacogdoches, Texas.        Gene Hathorn, Jr. supplied

Beathard, now unemployed, with small quantities of marijuana and

cocaine to sell for a commission.     During the spring and summer of

1984, they spent many evenings together, often discussing Gene

Hathorn, Jr.'s desire to kill his father, stepmother, and half-

brother.

     Gene Hathorn, Sr., his wife, Linda Hathorn and son Marcus

Hathorn lived in a trailer on eight acres in rural Trinity County,

Texas.    In 1983, Gene Hathorn, Sr. received a $150,000 settlement

on an injury claim.   Gene Hathorn, Jr. decided to kill his family

out of animosity over a borrowed truck and because he believed he

would inherit the settlement money. Gene Hathorn, Jr. described to

Beathard his plan to commit “the perfect murder,” which required an

accomplice who could provide a false alibi.        The plan included

leaving clues to convince the police that the family had been



                                  3
killed during a burglary by “a bunch of drug crazed niggers.”

     In July 1984, Gene Hathorn, Jr. offered to give Beathard a

$12,500 share of the expected inheritance to help him murder his

family.    Beathard agreed to do it because he needed the money to

pay off a child support arrearage.

     On October 9, 1984, Gene Hathorn, Jr. and Beathard left Rusk

at 3:00 p.m. in a borrowed Dodge Colt.       Gene Hathorn, Jr. supplied

three    murder   weapons,   ammunition,   gloves,   some     Negroid    hairs

gathered from a barber shop and some butts of cigarettes that had

been “smoked by black people.”      The two men went to the library at

Stephen F. Austin University and stopped at other public places to

create an alibi.     They then drove to a rural area to do some target

practice with the sawed-off shotgun.

     After nightfall, they arrived at Gene Hathorn, Sr.'s trailer

house.     Gene Hathorn, Jr. fired the shotgun through a picture

window, hitting Gene Hathorn, Sr. and Marcus Hathorn.                Beathard

entered through the back door and shot all three victims with a

pistol.    Gene Hathorn, Sr. was then shot in the head with a rifle.

They planted the Negroid hairs and cigarette butts at the crime

scene and    stole   several   items,   including    some    guns,   a   video

cassette recorder and the family's van.        The van was driven to a

nearby African American community and abandoned.            The other stolen

items and two of the murder weapons were dumped into a river.

     Beathard returned to his girlfriend's house at approximately

12:30 a.m. on October 10, 1984.      Beathard was wearing overalls and

                                    4
was visibly upset.      Although law enforcement officers requested

that Beathard produce the overalls several days later, they were

never recovered.

     Beathard testified at the guilt-innocence stage of his trial

that he was present at the scene of the murders, but that he was

tricked into being there and that he hid outside while Gene

Hathorn, Jr. fired all of the shots.

B. Gene Hathorn, Jr.'s trial

     Gene   Hathorn,    Jr.   was   separately   tried,   convicted   and

sentenced to death for murdering his father in the course of a

burglary.   Hathorn's testimony at Beathard's trial was read to the

jury at his own trial and Hathorn repeated the identical story on

the witness stand.     Hathorn claimed that he only fired one shot at

his father through the window and that Beathard repeatedly shot the

three victims in the house, stole their property and planted the

false clues to deceive the police.       When Trinity County District

Attorney Joe Price (“Price”) cross-examined Hathorn at Hathorn's

trial, he accused Hathorn of being the inside man while Beathard

fired the shotgun through the window from outside the trailer.

C. Beathard's Motion for New Trial

     Beathard filed an out-of-time motion for a new trial after

Hathorn was convicted and sentenced to death, while his own direct

appeal was pending.     Hathorn testified at the evidentiary hearing

on Beathard’s motion for new trial that Beathard was not involved


                                     5
in the murder of his family, giving a version of the facts that

supported the version of events given by Beathard at Beathard's

trial.   The trial court denied Beathard's out-of-time motion for

new trial from the bench without making any findings of fact or

conclusions of law.

D. State Habeas Proceeding

     Beathard filed a petition for habeas corpus in state court,

setting out numerous claims for relief.       On August 29, 1991, the

trial court conducted an evidentiary hearing on Beathard's state

habeas application, limited to Beathard's claims that his first

attorney, Hulon Brown (“Brown”), had a conflict of interest that

adversely affected his performance and that Price, the prosecutor,

knowingly failed to correct Hathorn's false testimony at Beathard's

trial.    The trial court issued written findings of fact and

conclusions of law, but made no recommendation to the Texas Court

of Criminal Appeals concerning whether Beathard was entitled to

habeas corpus relief.

     The trial court found that Brown withdrew shortly after he

became   aware   of   the   conflict   of   interest   growing   out   of

representing both Beathard and Hathorn.          Concerning Hathorn's

allegedly false testimony at Beathard's trial, the trial court

found that Price took three different positions about the roles

that Beathard and Hathorn played in the murders: 1) Price argued at

Beathard's trial that Beathard “entered the trailer and killed the



                                   6
family   while   Hathorn     remained       outside;”    2)   Price   argued   at

Hathorn's trial that Hathorn probably entered the trailer and

killed his family while Beathard remained outside; and 3) at the

state habeas hearing, Price took the position that Beathard fired

one shot through the window at Hathorn's father with a shotgun and

both men fired shots inside of the house.               The trial court found

that Beathard “probably was the person who fired the first shot

from outside the trailer into the head of Gene Hathorn, Sr., with

the shotgun.”

     The    Texas   Court    of   Criminal     Appeals    held   that   all    of

Beathard's claims for relief were without merit in a one page

order.     Two judges dissented without written opinion.

E. Federal Habeas Proceeding

     The district court denied Beathard's requests for discovery

and a federal evidentiary hearing and, finding no genuine issue of

material fact, granted the State's motion for summary judgment.

Beathard appealed.

                            III. ISSUES PRESENTED

     Beathard presents nine issues in his request for certificate

of probable cause to appeal:

     1. Whether a federal evidentiary hearing on Beathard’s
     attorney conflict of interest claim is mandatory because
     the state courts did not resolve material questions of
     fact about the credibility of witnesses who testified at
     the state court hearing on that claim.

     2. Whether Beathard is entitled to habeas relief on his
     attorney conflict of interest claim because         the

                                        7
     prosecutor told the jury that his first lawyer was the
     same “crooked” attorney who intended to have him give
     perjured testimony in his co-indictee’s fraudulent civil
     rights case.

     3. Whether a federal evidentiary hearing on Beathard’s
     claim that the prosecutor knowingly used his co-
     indictee’s false testimony about their roles in the
     murder is mandatory under the first Townsend v. Sain,
     372 U.S. 293 (1963), circumstance because the state
     courts did not decide whether the prosecutor had
     knowledge of the lie.

     4. Whether a federal evidentiary hearing on Beathard’s
     unexhausted Brady v. Maryland, 373 U.S. 83 (1963), claim
     is mandatory because the state courts did not resolve a
     credibility contest between his trial counsel and the
     district attorney about whether the exculpatory statement
     of a prosecution witness was suppressed.

     5. Whether a federal evidentiary hearing on Beathard’s
     Giglio v. United States, 405 U.S. 150 (1972), claim is
     mandatory because the state courts did not resolve
     material questions of fact about the claim at the state
     court hearing.

     6.   Whether Beathard is entitled to discovery on his
     Giglio claim.

     7.    Whether the federal district court erroneously
     granted the State’s motion for summary judgment of five
     of Beathard’s claims without obtaining a relevant part of
     the state court record.

     8. Whether the trial court’s refusal to instruct the
     jury that no adverse inference could be drawn from
     Beathard’s decision not to testify at the punishment
     stage of his trial was not harmless.

     9. Whether the prosecutors urged the jury to draw an
     unconstitutional adverse inference from Beathard’s
     decision not to testify at the punishment stage of his
     trial.

     Beathard's   seven   substantive   claims   have   been   properly

exhausted.   At the direction of this court, the State filed a reply


                                  8
brief focusing on Points of Error Three and Five.

                             IV. DISCUSSION

A. Attorney conflict of interest

     1. Background and district court ruling

     Beathard was arrested for the triple murder of the Hathorn

family on November 3, 1984. Beathard retained attorney Hulon Brown

on November 5, 1994.       Brown had been representing Hathorn for

several months in two separate criminal charges and a civil rights

action   against   the   local   police   department.   Brown   did   not

represent Hathorn in connection with the        instant murder charges.

Beathard was indicted ten days later, on November 15, 1985.       Brown

realized that Beathard and Hathorn had antagonistic positions and

therefore ceased to represent Beathard when he was indicted.

However, because he had never made a notice of appearance in the

case, he never filed a motion to withdraw.       Beathard then retained

David Sorrels, who represented him throughout the remainder of the

trial proceedings. Beathard asserts that Brown’s representation of

Hathorn in the unrelated matters created a conflict of interest

which resulted in ineffective assistance of counsel during the ten

days he represented Beathard and infected the entire trial.

     A petitioner claiming ineffective assistance of counsel must

demonstrate:

     first . . . that counsel’s performance was deficient.
     This requires showing that counsel made errors so serious
     that counsel was not functioning as the “counsel”
     guaranteed the defendant by the Sixth Amendment. Second,

                                    9
       the defendant must show that the deficient performance
       prejudiced the defense.    This requires showing that
       counsel’s errors were so serious as to deprive the
       defendant of a fair trial, a trial whose result is
       reliable.   Unless a defendant makes both showings it
       cannot be said that the conviction or death sentence
       resulted in a breakdown of the adversarial process that
       renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 787 (1984). In some cases,

prejudice in ineffective assistance of counsel claims is presumed.

“One such circumstance is present when counsel is burdened by an

actual conflict of interest.”         Beets v. Collins, 986 F.2d 1478,

1483    (5th   Cir.     1993).    However,    in    the   context    of   these

proceedings, when a claim of ineffective counsel in based on an

alleged conflict of interest, “a defendant who raised no objection

at trial must demonstrate that an actual conflict of interest

adversely affected his lawyer’s performance.”             Cuyler v. Sullivan,

446 U.S. 335, 348 (1980).

       The   district    court   identified   the   proper   legal   inquiry,

reviewed the proceedings of the evidentiary hearing held in state

court and concluded: 1) Brown was not aware of a conflict of

interest until Beathard was indicted for capital murder; 2) Brown

became aware that Hathorn and Beathard had antagonistic positions

only after Beathard gave several conflicting statements against

Brown’s advise, at which time Brown withdrew; 3) there is no

evidence that Brown gave advice inconsistent with Beathard’s best

interests and Brown’s representation of Beathard was not adversely

affected by any conflict. Based on these conclusions, the district

                                      10
court   held   that   Brown’s   representation     did    not    amount    to

ineffective assistance of counsel.

      2. Denial of Federal Hearing

      (Point of Error 1)

      Beathard’s first point of error urges this court to reverse

the summary judgment entered in favor of the State because he was

entitled to, but was denied, an evidentiary hearing in federal

court on his ineffective assistance of counsel claim.                 We will

reverse for a federal evidentiary hearing if we find 1) that

Beathard has alleged facts that would entitle him to relief if they

were true, see Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir.

1996); 2) there is some basis in the record to conclude that such

facts are disputed, see Koch v. Puckett, 907 F.2d 524, 530 (5th

Cir. 1990);    and 3) the merits of the factual dispute were not

resolved in the state hearing.    See Townsend v. Sain, 372 U.S. 293,

313   (1963)(the   first   Townsend   situation    in    which   a    federal

evidentiary hearing is mandatory).

      Beathard contends that the state court, although presented

with the question, did not decide when Brown became subjectively

aware of his actual conflict of interest.         The state habeas trial

court found that “Brown withdrew from representing Mr. Beathard

shortly after learning that there was a conflict.”                   Ex parte

Beathard, Writ. No. 22, 106-01, at 5-6 Texas Court of Criminal

Appeals, May 3, 1993 (unpublished).       Beathard contends that this


                                   11
finding of fact is equivalent to no finding because it is too

indefinite and that the state court should have found that Brown

knew about the conflict on November 5, 1984, after his first

meeting with      Beathard.    Further,    Beathard      argues   that   he   is

entitled to an evidentiary hearing to establish that Brown chose to

forego certain defense strategies as a result of his conflict of

interest, and to explore whether the prosecutor would have been

receptive    to    a   plea   bargain    during    Brown’s     ten     days   of

representation but for the fruits of Brown’s conflict.

       Beathard’s claim fails because he has not asserted facts that,

if established, entitle him to relief.             See Perillo, 79 F.3d at

444.     Assuming that Brown had an actual conflict of interest

beginning on November 5, 1984, Beathard has not pleaded facts that

meet the adverse effect prong of Cuyler.           See Cuyler, 466 U.S. at

348. “[T]o show adverse effect, a petitioner must demonstrate that

some plausible defense strategy or tactic might have been pursued

but was not, because of the conflict of interest.”             See Perillo v.

Johnson, 79 F.3d 441, 449 (5th Cir. 1996).              Beathard proposes in

this appeal four defense strategies that were not pursued: 1) Brown

failed to advise Beathard to try to make a deal to testify against

Hathorn; 2) Brown did not stay in the room while District Attorney

Price interrogated Beathard on November 5, 1984; 3) Brown did not

adequately   prepare    Beathard   to    testify   in    the   grand   jury   on

November 14, 1984; and 4) Brown did not interview Hathorn about the


                                    12
murders during his ten day representation of Beathard.

     It is undisputed that, during the ten days between arrest and

indictment, Brown gave sound advice to Beathard (do not talk to the

law enforcement authorities, but if you choose to make a statement,

tell the truth) which Beathard ignored. It is also undisputed that

Beathard told conflicting stories to Brown, to the police and to

the grand jury during this time period.                      Given the specific

circumstances     of    Brown’s    representation,         including    Beathard’s

refusal to follow his counsel’s advise, his lying, the short window

of time Brown remained involved in Beathard’s representation and

the pre-indictment stage of the proceedings, we do not find that

Beathard    has   demonstrated      any       plausible      alternative     defense

strategy or tactics that might have been pursued, but were not, due

to Brown’s conflict of interest.                We therefore do not find it

necessary    to   remand    this   case    to     district    court    for   further

evidentiary development.

     3. Guilt by association with Brown

     (Point of error 2)

     Beathard,     in    his   second     point    of    error,   contends    he    is

entitled to habeas corpus relief even without an evidentiary

hearing because Brown’s conflict of interest left the jury with the

impression    that      Beathard   was     guilty       simply    because    of    his

association with Brown.        Evidence admitted during Beathard’s trial

established that Beathard was involved as a witness in the civil



                                         13
case Brown had filed for Hathorn, that Hathorn believed Brown was

“crooked” and ”money hungry,” and that Beathard met with Brown

during the early stages of the capital murder prosecution.

      It is well established that the government may not attempt to

prove a defendant’s guilt by showing that he associates with

“unsavory characters.”      See United States v. Singleterry, 646 F.2d

1014, 1018 (5th Cir. Unit A June 1981)(finding plain error where

the prosecutor asked the defendant whether he associated with

felons). Guilt-by-association evidence is excludable because it

lacks relevance or is unduly prejudicial.             See United States v.

Polasek, 162 F.3d 878, 884 n.2 (5th Cir. 1998).              Normally, rulings

concerning the admissibility of evidence are entrusted to the

discretion of the trial court, see id. at 883, and such errors do

not rise to the level of constitutional violations.                 Beathard

does not attempt to argue that the evidence was inadmissible due to

relevance   or   undue   prejudice,     but    rather    that     he   received

ineffective assistance because the evidence raises the specter of

guilt simply by his association with Brown.                  Beathard cites no

authority, and we are aware of none, for the proposition that when

the allegedly unsavory person with whom one associated is one’s

lawyer,   that   lawyer’s   assistance    is    per     se    constitutionally

ineffective.2    This contention is without merit.


  2
   Beathard cites Dawan v. Lockhart, 31 F.3d 718 (8th Cir. 1994),
to support his argument.    In that case, Dawan’s attorney also
represented a co-defendant who implicated Dawan in a robbery and

                                   14
B. Prosecutor’s Use of Co-indictee’s False Testimony

     1. Which man entered the trailer?

     (Point of Error 3)

     Beathard urges this court to reverse the summary judgment for

the state and remand for a federal evidentiary hearing on his claim

that the prosecutor knowingly failed to correct Hathorn’s false

testimony at Beathard’s trial.        In his third point of error,

Beathard alleges that his Fourteenth Amendment right to due process

of law was violated when Hathorn testified that Beathard was the

“inside man” during the murders and prosecutor Price not only

failed to challenge him, but also argued this version of the facts

to the jury in closing argument in spite of Price’s personal belief

that Beathard was the “outside man.”

     The record from Beathard’s trial reveals that the jury heard

Beathard’s version of the facts (that he remained outside, while

Hathorn went into the trailer) and Hathorn’s version of the facts


then entered a plea bargain. That attorney continued to represent
Dawan, offering the co-defendant’s testimony (contradictory to his
prior statement) to exonerate Dawan. The prosecutor cross-examined
the co-defendant, vilifying the still-mutual attorney. The Eighth
Circuit held that Dawan had shown actual conflict and adverse
effect, sufficient under Cuyler to merit habeas relief on the basis
of ineffective assistance of counsel.      Dawan is factually and
legally distinguishable from the present case. Beathard was only
briefly associated with Brown, and Brown never represented Hathorn
in this case. Further, the statements at issue had nothing to do
with Brown’s decisions in Beathard’s case. Further, the Eighth
Circuit’s grant of relief was based on a classic conflict-and-
adverse-effect analysis of the ineffective assistance of counsel
claim rather than an “association-with-unsavory-characters” claim.
For these reasons, we do not find it persuasive.

                                 15
(that Hathorn shot through the window and Beathard entered the

trailer.) Price presented essentially the same two versions of the

facts at Hathorn’s trial, with the exception that he cross-examined

Hathorn concerning whether or not he entered the trailer, rather

than presenting Beathard’s live testimony to that effect.                           Hathorn

denied it, and stuck to his story presented in Beathard’s trial.

Price’s questions do not amount to evidence.                  Beathard emphasizes

the fact that Price adopted one theory of the case in closing

argument at Beathard’s trial and a different theory in closing

argument at Hathorn’s trial.                 Again, closing arguments are not

evidence.     Moreover, a prosecutor can make inconsistent arguments

at the separate trials of codefendants without violating the due

process clause.        See Nichols v. Scott, 69 F.3d 1255, 1274 (5th Cir.

1995). Beathard’s due process claim is premised on the Fourteenth

Amendment’s      prohibition         against      the   knowing   use     of    perjured

testimony.      See Giglio v. United States, 405 U.S. 150 (1972).                      The

record   does    not       support    such    a   claim.     Price      had    two    live

eyewitnesses to the crime, both charged with capital murder and

both accusing the other of being the most culpable.                            Each jury

heard both stories.          Price, as well as every juror involved, knew

that both of the stories could not have been true.                               Further

development      in    a    federal     evidentiary        hearing   of       who    Price

personally believed to be telling the truth will not establish a

violation of Beathard’s due process rights. In addition, Hathorn’s


                                             16
recantation of his earlier statements, made after both trials were

completed, which is inconsistent with his own statements, with

Beathard’s versions of the events and with other evidence, does not

raise a fact question requiring a federal evidentiary hearing on

Beathard’s due process claim.



      2. Had Hathorn been offered a deal in exchange for testimony?

      (Points of error 5 and 6)

      Beathard’s fifth and sixth points of error make the related

arguments that he is entitled to discovery and to a federal

evidentiary   hearing   to   establish   that   the   prosecutor   allowed

Hathorn to testify falsely that he had not been promised anything

for his cooperation with the state.       The prosecutor testified in

the state habeas evidentiary hearing that there was no deal between

Hathorn and the State.       During the state habeas corpus hearing,

Beathard offered the affidavit of Walter Shiver, a felon and former

mental patient at Rusk State Hospital and friend of Hathorn,

stating that, at the prosecution’s direction, he had promised

Hathorn that Hathorn would not be charged with capital murder if he

testified at Beathard’s trial.3     The district court did not err in



  3
   The state trial court initially sustained the state’s hearsay
objections to the affidavit, but noted that it would be included in
the record forwarded to the Court of Criminal Appeals as Beathard’s
offer of proof. Later, the court indicated that it would admit the
affidavit. However, in its final order, the court stated that it
had sustained the state’s objection to the Shiver affidavit.

                                   17
denying a federal evidentiary hearing on the issue of Hathorn’s

putative deal with the prosecution when the only basis offered to

establish a disputed fact question was an inadmissible affidavit.

C.       BRADY CLAIM

          (Point of error 4)

          Beathard contends that he is entitled to a federal evidentiary

hearing on his claim that Price failed to disclose two pieces of

Brady material4 which could have been used to create a reasonable

doubt about whether his crime was a capital offense.                There is no

dispute that, prior to either trial, Price had garnered statements

from two individuals, Shiver and Larry Brown.

          Shiver told Price that Hathorn called him on the day after the

murders because he was looking for a place to hide from the police,

and confided that he “got a piece of the gold” or “a piece of the

money.” Shiver stated that he took this to mean that Hathorn stole

money from his father’s wallet after the murder.            Beathard asserts

that Price did not disclose this statement prior to trial and that

the defense might have used the statement to impeach Hathorn’s

testimony that he never entered the trailer or saw his father’s

wallet on the night of the murders and in obtaining further

evidence that Hathorn was the inside man.             See Giles v. State of

Md.,      386   U.S.   66,   74   (1967)(“[T]he   defense   might    have   made


     4
   See Brady v. Maryland, 373 U.S. 83 (1963)(requiring disclosure
to defendant of material in possession of the prosecution that is
favorable to the defense and material to guilt or punishment).

                                        18
effective use of the report at the trial or in obtaining further

evidence. . . .”)

     Brown testified at Beathard’s trial that Hathorn had attempted

to recruit him as an accomplice in his plan to kill his family and

that Hathorn planned “to shoot through windows and walls” without

indicating who would do the shooting.         Brown’s pretrial statement

to Price was more specific, stating that Hathorn had said, “all you

have to do is walk up and shoot through the window,” from which,

according to Beathard’s argument, a juror could have inferred that

Hathorn planned for an accomplice to be the outside man.

     The district court found this claim without merit on three

separate bases: 1) the prosecution turned the statements over prior

to trial; 2) even if they were not turned over, no habeas relief is

warranted because the statements were not favorable to the accused;

and 3) the statements were not material and would have had no

effect   on   the   results   of   the    trial   or   the   preparation   or

presentation of the defendant’s case.

     Beathard contends that he is entitled to a federal evidentiary

hearing because the state court did not make a finding of fact

concerning whether or not Price turned the two statements over to

Beathard prior to trial.       However, we conclude that because the

statements were not favorable to Beathard and would have had no

effect on the outcome of the trial, the district court did not err

in finding this claim with merit.             Beathard is therefore not

entitled to remand for a federal evidentiary hearing concerning

                                     19
whether the statements were turned over to Beathard prior to trial

as Price testified at the state habeas evidentiary hearing.

D. HATHORN’S TRIAL RECORD

     (Point of Error 7)

     Beathard   complains   that   the    district     court   rejected   the

factual allegations made in his federal habeas petition without

reviewing the record of Hathorn’s trial. Because of the importance

of reviewing capital sentences on a complete record, see Dobbs v.

Zant, 506 U.S. 357, 358 (1993), Beathard urges us to reverse the

order for summary judgment and remand this case to the district

court to reconsider in light of the relevant part of Hathorn’s

record.    Beathard   contends     that    his   due    process   claim    on

suppression of Brady material and the conflicting positions taken

by the prosecutor can only be evaluated after a detailed comparison

of the Beathard’s trial and Hathorn’s trial.             Even assuming the

truth of the facts asserted (i.e. that Price did not turn over two

witness statements and that Price argued in Hathorn trial a theory

of the case inconsistent with the theory the State relied on in

Beathard’s trial), we have determined that there is no basis for

reversing the district court’s decision.             We therefore find it

unnecessary to remand this case to the district court for review of

Hathorn’s record.

D. RIGHT AGAINST SELF INCRIMINATION

     (Points of Error 8 and 9)


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     Beathard testified that he was innocent at the guilt phase of

his trial and exercised his Fifth Amendment right not to take the

stand at the punishment phase.                Beathard argues that the penalty

stage of his trial was tainted by a double violation of his right

against    self    incrimination.         The     trial     court   declined,   over

Beathard’s       objection,     to    instruct       the   jury   that   no   adverse

inference could be drawn from his silence at the penalty stage.

During closing arguments, the prosecution referred to Beathard’s

failure to demonstrate remorse or guilt and to his perjury during

the guilt phase.

     Upon request of a defendant, a trial court shall instruct

jurors    that    they    may   not    draw    any    adverse     inference   from   a

defendant’s failure to testify at the guilt-innocence stage of

trial.    See Carter v. Kentucky, 450 U.S. 288 (1981).                    This rule

also applies to the punishment phase if a defendant requests the

instruction.      See United States v. Flores, 63 F.3d 1342, 1376 (5th

Cir. 1995).        However, failure to give the instruction may be

harmless error.          See id.      On direct appeal, the Texas Court of

Criminal Appeals recognized that Beathard was entitled to a no

adverse inference instruction at the punishment phase of his trial.

See Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989).

However, it found the error to be harmless under Chapman v.

California, 386 U.S. 18 (1967).               See Beathard, 767 S.W.2d at 433.

Beathard argues here that the refusal to give the instruction was


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a violation of his Fifth Amendment right against self-incrimination

and was not harmless.

       The    district   court      concluded       that    Beathard      could   not

demonstrate that he was in any way harmed by the failure of the

trial court to issue a no adverse inference instruction during

punishment.      Given the fact that Beathard had testified at the

guilt phase and the fact that the trial court instructed each juror

individually prior to trial on Beathard’s right not to testify, the

district      court   held   that    the    error    in    failing   to    give   the

instruction was harmless.           We agree.

       Finally, Beathard contends that the prosecutor’s comments

violated the Fifth Amendment prohibition against a prosecutor

commenting either directly or indirectly on a defendant’s decision

not to testify at trial.         See Griffin v. California, 380 U.S. 609

(1965).      In determining if a comment made in closing argument is a

comment on the defendant’s decision not to testify, a court must

determine if the prosecutor’s intention was to comment on the

defendants decision or was of such a character that it would be

construed as such by the jury.              See United States v. Smith, 890

F.2d   711,    717    (5th   Cir.    1989).       The     comments   made    by   the

prosecutors do not show an intent to comment on defendant’s failure

to testify nor were they of such a character that they could be

construed as such by the jury.                  The comments were directed at

Beathard’s various statements given prior to trial and to his


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testimony at trial. The comments could not reasonably be construed

as   comments      upon   Beathard’s   failure      to   testify   during   the

punishment stage. We therefore hold that Beathard’s claim that his

Fifth Amendment right to self incrimination was violated is without

merit.

                                V. CONCLUSION

      Based   on    the   foregoing,   we   grant    Beathard’s    motion   for

certificate of probable cause to appeal and affirm the district

court’s grant of summary judgment for the State.

      Certificate of probable cause to appeal GRANTED.                Summary

judgment AFFIRMED.




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