                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                   June 19, 2007
                        FOR THE FIFTH CIRCUIT
                        _____________________                 Charles R. Fulbruge III
                                                                      Clerk
                             No. 06-70037
                        _____________________

LARRY DONNELL DAVIS,

                                               Petitioner - Appellant,

                                versus

NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CORRECTIONS,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                Respondent - Appellee.


           Appeal from the United States District Court
           for the Northern District of Texas, Amarillo
                      USDC No. 2:03-CV-00001


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     Larry Donnell Davis was convicted of capital murder and

sentenced to death in March 1999 for the August 1995 murder of

Michael Barrow during the course of a robbery.        The district court

denied   federal   habeas   relief,   but   granted   a   certificate      of

appealability (“COA”) authorizing Davis to appeal his claim that

the prosecutor violated his Fifth and Fourteenth Amendment rights

by commenting, during closing argument at the guilt-innocence phase




     *
      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this opinion should not be published and is not precedent except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.
of trial, on Davis’s failure to testify.     We AFFIRM the district

court’s denial of habeas relief.

                                  I.

     On August 28, 1995, Michael Barrow’s parents found him dead

inside his house in Amarillo, Texas.    He had suffered blunt force

trauma to his face and head, as well as puncture and laceration

wounds on his head, neck, and chest.   Bloody footprints were found

on his upper torso.    An autopsy revealed that while Barrow was

still alive, his sternum had been broken and his heart wall had

been ruptured.   According to the medical examiner, it was likely

that the rupture was caused by a stomp or kick to Barrow’s chest.

     The State introduced into evidence Davis’s confession, in

which he admitted his involvement in a gang plot to murder Barrow

and steal his property.     In his confession, Davis stated that he

was approached by Raydon (“Ray-Ray”) Drew, and his brother, Donald

Drew.   The Drew brothers needed money, and Ray-Ray wanted to earn

a “teardrop” tattoo as a member of the Crips street gang.      They

planned to kill Barrow, who was an acquaintance of theirs, and they

offered Davis Barrow’s stereo and chrome wheels from Barrow’s car

in exchange for his help.

     Davis confessed that on the night of the murder he, Ray-Ray,

and Donald Drew went to Barrow’s house, along with two “look-outs”.

Davis, Ray-Ray, and Donald Drew went inside Barrow’s house and

visited with him, then Ray-Ray hit Barrow on the head with a

weight.   They tied his feet and moved him toward the bathroom.

                                   2
Donald Drew left.    Ray-Ray asked Davis for his knife, and Davis

gave it to him.   Ray-Ray then repeatedly stabbed Barrow with the

knife.    When the knife handle broke, Ray-Ray continued stabbing

Barrow with the blade.   Davis handed Ray-Ray an ice pick, and Ray-

Ray then attacked Barrow with the ice pick.    While Davis and Ray-

Ray were gathering Barrow’s property to steal, they heard Barrow

cough.    They discovered that he had untied his feet.    Davis hit

Barrow in the mouth and held him down while Ray-Ray hit Barrow with

a pipe.   Davis then got a butcher knife from Barrow’s kitchen and

gave it to Ray-Ray, who began to stab Barrow with it.    Despite all

of these efforts, they still were not sure Barrow was dead, so

Davis instructed Ray-Ray to stand on Barrow’s neck.      Davis said

that both he and Ray-Ray got blood on their shoes.

     In his confession, Davis said that Ray-Ray acted alone in

inflicting Barrow’s fatal injuries.    He admitted, however, that he

tied Barrow’s hands with a bandanna, supplied Ray-Ray with each of

the weapons he used to attack Barrow, and held Barrow down while

Ray-Ray attacked him.    He further admitted that he encouraged Ray-

Ray and gave him instructions on how to accomplish the killing.   He

also admitted that he took some of Barrow’s property and pawned it.

     Acting on information provided by Davis, the police found the

bloody shoes and clothing Davis had worn on the night of the murder

in the attic of his girlfriend, Cynthia Green.      Green testified

that on the night of the murder, she observed scratches on Davis’s

face, arms, and legs, and a bruise on his forehead.   She testified

                                  3
further that she pawned jewelry, a television, a VCR, and a tape

rewinder that Davis gave to her.          She testified that he told her

those items belonged to Ray-Ray.              The items were identified as

having been stolen from Barrow’s home.              Barrow’s bank card was

found in Davis’s wallet, along with a pawn ticket that had belonged

to Barrow.

     Davis’s former wife, Katherine Davis, testified that Davis

confessed his involvement in the murder to her when she visited him

in jail shortly after his arrest.

     The State introduced photographs of a shoe print on Barrow’s

chest, in the spot where Barrow’s sternum was broken.              It also

presented testimony that the shoe print on Barrow’s chest matched

the pattern on the bottom of the shoes worn by Davis on the night

of the murder.

     The defense strategy was to attempt to convince the jury that

Davis was guilty of aggravated robbery or murder, but not capital

murder,   because   he   was   only       a   passive   participant.   The

prosecution, however, argued that the jury could convict Davis of

capital murder, either by finding him to be a party to a felony

murder, or by finding that Davis personally delivered the blow to

Barrow’s chest that ruptured his heart.

     The jury found Davis guilty of capital murder. His conviction

and sentence were affirmed on direct appeal.            Davis v. State, No.

73,458 (Tex. Crim. App. October 23, 2002) (unpublished), cert.

denied, 538 U.S. 1004 (2003).     The Texas Court of Criminal Appeals

                                      4
adopted the state court’s findings of fact and conclusions of law

and denied state habeas relief in December 2002.                   Ex parte Davis,

No. 54,457-01 (Tex. Crim. App. December 18, 2002).

     Davis filed an application for federal habeas relief in July

2003.    The district court denied relief, Davis v. Quarterman, No.

2:03-CV-001     (N.D.   Tex.    July    31,        2006).    It    granted   a   COA

authorizing Davis to appeal its holding that the state court did

not unreasonably apply federal law in holding that the prosecutor’s

improper, unconstitutional comment on Davis’s silence was harmless

error.

                                        II.

     Davis is not entitled to habeas relief unless the state

court’s adjudication of his prosecutorial misconduct claim “(1)

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; or (2)

resulted   in    a   decision    that        was    based   on    an   unreasonable

determination of the facts in light of the evidence presented in

the State Court proceeding.”           28 U.S.C. § 2254(d).

                                        A.

     Davis’s claim is based on the following argument made by the

prosecutor during rebuttal closing argument in the guilt-innocence

phase of trial:

           And what you will determine is Larry Donell
           Davis’ shoes stepped on that boy three times.
           Maybe more. There was even one of his prints

                                         5
         on the pants. Let me tell you, when this man
         with the teardrop on his eye, who sits here
         silently --

              MR. CLARK:    Your Honor --

              MR. MURPHY:      --    and   sits   there   and
         watches while --

              MR. CLARK: That is a direct comment on
         his failure to testify, and we object.

              THE COURT:   I will sustain the objection.

              MR. CLARK: Please instruct the jury to
         disregard that last comment.

              THE COURT: Ladies and gentlemen, please
         disregard the last statement.

              MR. CLARK:    Move for a mistrial.

              THE COURT:    and the Motion to --

              MR. CLARK:    For mistrial is denied?

              THE COURT:    Is denied.

              MR.   MURPHY:   --  watches  while   his
         attorneys get up here, and say: What’s going
         on here? Has the state caused you to tell you
         this lie? No. The physical evidence brings
         you here. And let me tell you what he did.
         He instructed him. He provided him with three
         weapons, according to his own mind, and they
         talked about earning a teardrop just like he
         wears on his eye, before they ever got there.
         He provides him three weapons, as a party to
         this crime, and then he stoops down and he
         bursts the heart of this boy. That’s what the
         physical evidence shows you. You want to get
         theatric? I’m going to win the Oscar for the
         Best Actor or Best Attorney in a Prosecuting
         Role. Because I am right.

    Davis filed a motion for new trial claiming, inter alia, that

the prosecutor’s comment on his failure to testify violated his


                                 6
Fifth and Fourteenth Amendment rights.           The trial court conducted

an evidentiary hearing, at which three witnesses testified for the

defense.    According to these witnesses, the prosecutor pointed his

finger directly at Davis while making the challenged comments, his

face was very red, he was speaking in a loud voice, and he was

trembling and shaking when he finished his argument.                 The only

witness for the state was the jury foreman, who testified that the

jury was instructed not to consider Davis’s failure to testify as

evidence against    him;   that    the   court    instructed   the    jury   to

disregard what the prosecutor said; and that, to his knowledge, the

jury followed the trial court’s instructions.             The trial court

denied the motion for new trial.

     Davis raised the claim again on direct appeal.                  The Texas

Court of Criminal Appeals held that the prosecutor made a direct

comment on Davis’s failure to testify and emphasized the comment

when he raised his voice, walked toward Davis, and pointed directly

at Davis.     The court assumed, arguendo, that the trial court’s

instruction to disregard the improper comment did not cure the

error.   However, the court concluded that the comment amounted to

harmless error because none of the criteria set forth in Anderson

v. Nelson, 390 U.S. 523, 524 (1968) were met:              The comment on

Davis’s failure to testify “entailed a single comment, the emphasis

of the State’s argument was the evidence, and there was no evidence

that supported acquittal.”        Davis v. State, No. 73,458, at 5.



                                     7
     Davis     presented   this   claim   again    in   his   state   habeas

application. The state habeas trial court concluded that the claim

was not cognizable in the state habeas proceeding because it had

been raised and rejected by the Court of Criminal Appeals on direct

appeal.     The Texas Court of Criminal Appeals held that the state

habeas trial court’s findings and conclusions were supported by the

record, and denied state habeas relief.

     Davis     raised   the   claim   again   in    his    federal    habeas

application.     The district court accepted the conclusion of the

Texas Court of Criminal Appeals that the prosecutor’s comment

violated Davis’s Fifth and Fourteenth Amendment rights, but held

that the Texas court’s decision that the prosecutor’s error did not

substantially and injuriously affect the verdict of guilt was not

an unreasonable application of federal law.             The district court

reasoned:

                  Given the brevity of the comment, the
             lack of evidence to support an acquittal and
             the overwhelming evidence of guilt in this
             case, it is not likely that the prejudicial
             effect of the prosecution’s comment was
             significant. It was merely a single comment
             by the prosecution, and the trial court
             promptly ordered the jury to disregard the
             comment. The emphasis of the State’s case, as
             well as the emphasis of the comment itself,
             was on the strength of the evidence.       The
             prosecution did not rely on an inference of
             guilt from Davis’s silence. To the contrary,
             the great thrust of the prosecution’s case was
             the strength of the evidence, including
             evidence given by Davis himself in his
             confession.   There is virtually no evidence
             that would have supported acquittal.


                                      8
Davis v. Quarterman, No. 2:03-CV-001, at 15-16.

     The district court held that Davis had failed to exhaust the

issue of the effect of the improper comment on the punishment phase

of his trial and, therefore, any claim regarding the punishment

phase was procedurally defaulted.1            The district court stated

further that, even if it were to consider the merits of the claim,

the prosecutor’s comment did not have a substantial and injurious

effect on the punishment phase.            We now turn to consider the

clearly established federal law governing claims such as this, and

then consider whether the Texas courts’ resolution of Davis’s claim

is contrary to, or an unreasonable application of, that law.

                                    B.

     In Griffin v. California, the Supreme Court held “that the

Fifth    Amendment,   in   its   direct    application   to   the   Federal

Government and in its bearing on the States by reason of the

Fourteenth Amendment, forbids either comment by the prosecution on

the accused’s silence or instructions by the court that such

silence is evidence of guilt.”            380 U.S. 609, 615 (1965).     In

Chapman v. California, 386 U.S. 18 (1967), the Court held that

Griffin error is subject to harmless-error analysis.           Id. at 25;

     1
      On appeal, Davis persists in asserting that the error also
affected the outcome of the punishment phase of his trial. The
district court’s grant of a COA is limited to the guilt-innocence
phase of trial. Accordingly, we will not consider Davis’s argument
that the prosecutor’s improper comment during closing argument at
the guilt-innocence phase affected the verdict at the punishment
phase. See Goodwin v. Johnson, 224 F.3d 450, 459 & n.6 (5th Cir.
2000).

                                     9
see also United States v. Hasting, 461 U.S. 499, 505 (1983)

(holding    that    the    court    of    appeals    erred      by     asserting    its

supervisory      powers,    and    by    not   applying     the      harmless    error

doctrine, in reviewing claim of Griffin error).                 In 1968, the Court

held that “comment on a defendant’s failure to testify cannot be

labeled harmless error in a case where such comment is extensive,

where an inference of guilt from silence is stressed to the jury as

a basis of conviction, and where there is evidence that could have

supported acquittal.”        Anderson v. Nelson, 390 U.S. at 523-24.                 In

Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that in

habeas proceedings, the test for harmless error is “whether the

error   ‘had     substantial      and    injurious    effect      or    influence    in

determining the jury’s verdict.’” Id. at 623 (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)).

     The error of which Davis complains falls into the category of

trial error, which “‘occur[s] during the presentation of the case

to the jury,’ and is amenable to harmless-error analysis because it

‘may ...    be     quantitatively        assessed    in   the   context     of   other

evidence presented in order to determine [the effect it had on the

trial].’”   Id. at 629 (quoting Arizona v. Fulminante, 499 U.S. 279,

307-08 (1991)).        Accordingly, Griffin errors, such as the one

claimed by Davis, are reviewed for harmless error in the context of

the entire record.        See United States v. Robinson, 485 U.S. 25, 33

(1988).

                                          C.

                                          10
     As we have noted, the Texas Court of Criminal Appeals applied

Anderson v. Nelson, and concluded that the Griffin error in this

case was harmless, because the comment was not extensive, an

inference of guilt from silence was not stressed to the jury as a

basis of conviction, and there was no evidence that could have

supported acquittal.   Based on our review of the entire record, we

are satisfied that the state court’s conclusion is neither contrary

to, nor an unreasonable application of, clearly established federal

law as determined by the Supreme Court of the United States.

     During individual voir dire, each person who was selected to

serve on the jury was advised by the prosecutors that Davis had a

constitutional right not to testify and that his failure to testify

could not be considered as evidence of his guilt.   All but one of

those jurors was questioned on voir dire by the prosecutor who made

the comments at issue.

     At the close of all the evidence in the guilt-innocence phase,

the trial court instructed the jury, orally and in writing, that:

          Our law provides that a defendant may testify
          in his own behalf if he elects to do so.
          This, however, is a privilege accorded a
          defendant, and in the event he elects not to
          testify, that fact cannot be taken as a
          circumstance against him. In this case, the
          defendant has elected not to testify, and you
          are instructed that you cannot and you must
          not refer or allude to that fact throughout
          your deliberations, or take into consideration
          for any purpose whatsoever as a circumstance
          against the defendant.




                                11
       The     improper    comment      was    an   incidental       statement   in    an

argument by the prosecution that focused on the strength of the

evidence against          Davis.2       The    trial   court       promptly   sustained

defense counsel’s objection to the improper comment and instructed

the jury to disregard it.             The prosecution did not urge the jury to

infer that Davis was guilty because he failed to testify.                      Instead,

the prosecution argued that Davis should be found guilty of capital

murder based on the strength of the evidence against him, which

included his confession. As the district court observed, and as we

have       confirmed   based     on   our     review   of    the    record,    there   is

virtually no evidence that would have supported acquittal.                             We

fully agree with the district court that, considering the brevity

of the comment, the very strong evidence of guilt, and the absence

of evidence that would have supported an acquittal, the improper

comment       did   not   have   a    substantial      and    injurious       effect   or

influence in determining the jury’s verdict.                         Accordingly, the

state court did not unreasonably apply clearly established federal

law when it concluded that the error was harmless.


       2
      The State argues that the prosecutor’s comment was an invited
reply to the defense closing argument and therefore did not violate
the Fifth and Fourteenth Amendments. The Texas Court of Criminal
Appeals held, however, that the comment was improper, and that
“[t]he prosecutor’s statement in conjunction with his physical
actions was of such character that the jury would naturally and
necessarily take it as such.” Davis v. State, No. 73,458, at 4.
That conclusion is neither contrary to, nor an unreasonable
application of, clearly established federal law. Accordingly, we
defer to the state court’s conclusion that the challenged comment
violated the rule established in Griffin.

                                              12
                              III.

     For the foregoing reasons, the judgment of the district court

denying federal habeas relief is

                                                       AFFIRMED.




                               13
