IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-70015

FABIAN HERNANDEZ, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:15-CV-51

Before CLEMENT, GRAVES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Fabian Hernandez was convicted in Texas state court and sentenced to 

death for murdering his wife and another man with her. He sought postconviction relief in state court, alleging numerous points of error. The Texas

Court of Criminal Appeals (“TCCA”) rejected his claims on their merits.

Hernandez then turned to the federal courts. The district court also rejected

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 29, 2018

Lyle W. Cayce

Clerk

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Hernandez’s claims and declined to issue a certificate of appealability (“COA”). 

He now seeks a COA from this court on two issues: (1) whether his appellate

counsel provided ineffective assistance by failing to raise certain arguments on 

appeal; and (2) whether the district court violated his Fifth and Eighth

Amendment rights by ordering him to submit to a comprehensive mentalhealth exam performed by the State’s expert. 

Finding no debate over the district court’s resolution of these issues, we 

deny Hernandez’s COA requests.

I.

Hernandez’s COA requests are governed by the Antiterrorism and 

Effective Death Penalty Act (“AEDPA”). We will grant a COA under AEDPA 

only if Hernandez can make a “substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is met if “reasonable 

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In a deathpenalty case, we resolve any doubts over whether a COA is proper in the 

petitioner’s favor. Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005). 

In deciding Hernandez’s COA questions, we must keep in mind the

extraordinary deference that AEDPA places around the TCCA’s conclusions of 

law and findings of fact. For it is through this deferential lens that the district 

court evaluated Hernandez’s constitutional claims. Under AEDPA, a federal 

court cannot grant habeas relief to a state prisoner on any claim adjudicated

on its merits by the state habeas court unless the state court’s decision “was 

contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United States . . . or . 

. . 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)(1)–(2).

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A decision is contrary to federal law when it either reaches a conclusion 

opposite to that of the Supreme Court on a question of law, or arrives at an 

opposite result on facts that are materially indistinguishable from those 

confronted by a relevant Supreme Court case. Sprouse v. Stephens, 748 F.3d 

609, 616 (5th Cir. 2014). And a decision involves an unreasonable application 

of federal law if it “correctly identifies the governing legal rule but applies it 

unreasonably to the facts of a particular prisoner’s case.” Perez v. Cain, 529 

F.3d 588, 594 (5th Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 362, 407–

08 (2000)). The state court’s decision must not just be wrong; it must be 

unreasonable—meaning no “fairminded jurist” could possibly agree with it. 

Harrington v. Richter, 562 U.S. 86, 101 (2011).

As for the state court’s factual findings, they are presumed correct unless 

rebutted by clear and convincing evidence establishing that the findings are

objectively unreasonable. Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) 

(citing 28 U.S.C. § 2254(e)(1)). To meet this high standard, Hernandez must 

show that a ‘“reasonable factfinder must conclude’ that the state court’s 

determination of the facts was unreasonable.” Blue v. Thaler, 665 F.3d 647, 

655 (5th Cir. 2011) (quoting Rice v. Collins, 546 U.S. 333, 341 (2006)). It is not 

enough that the federal habeas court would have reached a different conclusion 

in the first instance. Id.

II.

Hernandez contends that his appellate counsel was ineffective by failing 

to argue that the trial court erred by: (1) ruling in a pretrial hearing that Dr. 

Coons—the State’s mental-health expert—would be allowed to opine on 

Hernandez’s future dangerousness during the punishment phase; and (2) not 

allowing Dr. AuBuchon—Hernandez’s inmate-classification expert—to 

express a general opinion on Hernandez’s future dangerousness to the 

community.

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To establish an ineffective-assistance-of-counsel claim, Hernandez must

clear the high Strickland bar—that is, he must prove both that his counsel’s 

performance was deficient and that he was prejudiced as a result. Strickland 

v. Washington, 466 U.S. 668, 687 (1984). In the appeals context, this means

Hernandez must first show that his counsel failed to raise “a particular 

nonfrivolous issue” that “was clearly stronger than issues counsel did present.” 

Dorsey v. Stephens, 720 F.3d 309, 320 (5th Cir. 2013) (quoting Smith v. Robbins

528 U.S. 259, 288 (2000)). Counsel is required to raise only “[s]olid, meritorious 

arguments based on directly controlling precedent.” Id. (alteration in original) 

(quoting United Sates v. Conley, 349 F.3d 837, 841 (5th Cir. 2003)). Hernandez 

must then show “a reasonable probability that, but for his counsel’s 

unreasonable failure to [raise an issue], he would have prevailed on his 

appeal.” Id. at 321 (alteration in original) (quoting Smith, 528 U.S. at 285). 

A.

Turning to Hernandez’s first claim, we first note that Dr. Coons is a

psychiatrist and a lawyer. He has testified numerous times on the subject of 

future dangerousness in other capital murder trials. In a pretrial hearing, 

Hernandez argued that Dr. Coons’s methodology was unreliable. But the trial 

court disagreed, holding that Dr. Coons could testify as to Hernandez’s future 

dangerousness during the punishment phase. The State, however, never called 

him to the stand—largely because Hernandez refused to submit to Dr. Coons’s 

psychiatric examination. On direct appeal, Hernandez’s appellate counsel did 

not challenge the trial court’s pretrial ruling.1 

In his state-habeas case, Hernandez argued that his appellate counsel 

should have asserted the issue of Dr. Coons’s methodology on direct appeal. 

 

1 Before Hernandez’s appellate counsel filed his brief, the TCCA held that Dr. Coons’s 

methodology was in fact unreliable. See Coble v. Texas, 330 S.W.3d 253, 270–80 (Tex. Crim. 

App. 2010). But for reasons explained, this does not affect our analysis. 

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But the TCCA held that because Dr. Coons did not testify, his hypothetical 

opinion did not contribute to the jury’s verdict on Hernandez’s future 

dangerousness. Thus, it denied Hernandez’s ineffective-assistance claim since

he could not show how this issue would have resulted in reversal on appeal.

The district court found that the TCCA properly applied Strickland. We agree. 

Under Texas law, any error in a pretrial evidentiary ruling is rendered 

moot if the evidence is never admitted at trial. See Herron v. Texas, 86 S.W.3d 

621, 628 (Tex. Crim. App. 2002) (declining to reverse the district court even 

though its ruling on the admissibility of a confession was wrong because the 

confession was never admitted).2 This is so even in capital cases. For example, 

in Saldano v. Texas, the defendant wished to call his mental-health expert to 

testify that he had suffered psychological deterioration while on death row. 232 

S.W.3d 77, 82–83 (Tex. Crim. App. 2007). In a pretrial ruling, the trial court

held that the defendant could do so only if he first submitted to an examination

by the prosecutor’s mental-health expert. He refused. Id. at 83. On appeal, the 

defendant attempted to challenge that pretrial ruling, but the TCCA ruled that

to be entitled to appellate review, the defendant “was required to submit to the 

[psychiatric] examination and suffer any actual use by the State of the results 

of t[he] examination.” Id. at 90. Without doing so, any appellate review would 

be “practically impossible” and “wholly speculative.” Id.

Herron and Saldano are fatal to Hernandez’s claim. Because Dr. Coons

never testified, evaluating any harm caused by the trial court’s ruling is

speculative and not subject to appellate review. If Hernandez wanted to 

preserve his challenge to Dr. Coons’s methodology, then, as in Saldano, he was 

 

2 This is also a common principle of federal evidentiary law. See Luce v. United States, 

469 U.S. 38, 41–43 (1984) (holding that an in limine ruling permitting a defendant’s 

impeachment by prior conviction was not reviewable because the defendant never took the 

stand).

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required to submit to the examination and suffer actual prejudice from Dr. 

Coons’s testimony. Because he did not do so, appellate counsel acted 

reasonably by choosing not to raise the argument on appeal—an argument that

would have been frivolous under controlling law. 

Thus, we conclude that no reasonable jurist could debate the district 

court’s determination that the TCCA did not unreasonably apply Strickland to 

this claim. A COA is denied. 

B.

Hernandez’s second ineffective-assistance claim over the exclusion of Dr. 

AuBuchon’s future-dangerousness opinion fares no better. 

During the sentencing phase, Dr. AuBuchon testified for Hernandez. 

According to the doctor, Hernandez would not be a danger to the prison

population because he would be placed in a maximum-security prison unit in 

segregation detention due to his membership in the Barrio Azteca prison gang. 

In the segregation unit, he would be isolated from other inmates 24 hours a 

day. Put simply, prison officials would be able to control him. 

At the end of redirect examination, Hernandez’s trial attorney asked Dr. 

AuBuchon if Hernandez would “commit criminal acts of violence that 

constitute a continuing threat to society.” The prosecutor objected, arguing 

that Dr. AuBuchon was not qualified to give a general opinion on Hernandez’s 

future dangerousness. After voir dire, the trial court sustained the prosecutor’s 

objection. Moving on, Hernandez’s trial counsel called Dr. Cunningham, a 

forensic psychologist who stated that Hernandez had a low probability of 

committing future acts of violence while in prison. 

On direct appeal, Hernandez’s appellate counsel did not argue that the 

trial court should have allowed Dr. AuBuchon to answer the final redirect 

question. In the state-habeas proceeding, the TCCA held that appellate counsel 

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did not render ineffective assistance by not raising this claim. The district court 

agreed; as do we. 

Two weeks before Hernandez’s appellate brief was due, the TCCA, in a 

separate case, rejected an identical argument to the one Hernandez now argues 

his appellate counsel should have raised. In Renteria v. Texas, the trial court 

refused to let Dr. AuBuchon testify whether “there was a probability that [the 

defendant] will commit criminal acts of violence so that he constitutes [a] 

continuing threat to society in the future.” 2011 WL 1734067, at *40 (Tex. 

Crim. App. 2011) (unpublished) (second alteration in original). Assuming error, 

the TCCA still found that the trial court’s ruling was harmless given the other 

testimony allowed: Dr. AuBuchon had already stated that he believed the 

defendant would not be a future danger in prison, and Dr. Cunningham said

that “there was ‘not a probability’ that [the defendant] would commit acts of 

violence in prison.” Id.

Hernandez’s appellate counsel was also on the appellate team in

Renteria. Given that fact, it was reasonable for him not to raise the same 

argument again in Hernandez’s case. In both cases, Dr. AuBuchon was allowed

to testify that he did not think the defendants would commit acts of violence in 

prison. In both cases, the trial court refused to let Dr. AuBuchon opine

generally on the defendants’ future dangerousness outside of prison. And in 

both cases, Dr. Cunningham testified that the defendants had a low probability

of committing future acts of violence in prison. We rarely see such identical

facts.3 

 

3 Hernandez argues that Renteria should be ignored because it is not precedential.

While true, it does not change the fact that his appellate counsel would have reasonably

looked to Renteria for guidance in deciding which arguments to press on appeal. Appellate

counsel could have reasonably concluded that the TCCA would again reject the argument—

especially given the close temporal proximity and recurring actors. 

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As with the first ineffective-assistance claim, we hold that no reasonable 

jurist could debate the district court’s conclusion that the TCCA did not 

unreasonably apply Strickland to this claim. A COA is properly denied. 

III.

Hernandez next argues that the trial court violated his Fifth and Eighth

Amendment rights by refusing to allow his mental-health expert, Dr. Natalicio, 

to testify on Hernandez’s diminished mental capacity unless he first submitted 

to an examination performed by the State’s mental-health expert, Dr. Coons. 

Specifically, he takes issue with the trial court’s refusal to limit the scope of

Dr. Coons’s potential examination.

It is well established that when a criminal defendant “neither initiates a 

psychiatric evaluation nor attempts to introduce any psychiatric evidence,” his

right against self-incrimination under the Fifth Amendment protects him from

a compulsory examination by a hostile psychiatrist. Estelle v. Smith, 451 U.S. 

454, 468 (1981). But when “a defendant presents evidence through a 

psychological expert who has examined him, the government likewise is 

permitted to use the only effective means of challenging that evidence: 

testimony from an expert who has also examined him.” Kansas v. Cheever, 571 

U.S. 87, 94 (2013). In other words, by relying on the testimony of a mentalhealth expert who has examined him, the defendant waives his Fifth 

Amendment privilege. Nonetheless, the scope of that waiver is “limited to the 

issue raised by the defense,” and any testimony about the court-ordered 

psychiatric evaluation cannot go beyond this limited rebuttal purpose. Saldano 

v. Davis, 701 F. App’x 302, 309–10 (5th Cir. 2017) (per curiam); see also

Cheever, 571 U.S. at 97 (noting that ‘“[n]othing’ in our precedents ‘suggests 

that a defendant opens the door to the admission of psychiatric evidence on 

future dangerousness by raising an insanity defense at the guilt stage of the 

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trial’” (alteration in original) (quoting Powell v. Texas, 492 U.S. 680, 685–86 

n.3 (1989) (per curiam))).

Hernandez’s claim depends on two factual premises. Premise one: Dr. 

Natalicio’s proposed testimony on Hernandez’s diminished mental capacity

was only relevant to mitigation. Premise two: to form his opinion, Dr. Natalicio 

did not interview Hernandez; he relied only on the standardized tests he 

administered and background information gained from others. Based on these 

factual premises, Hernandez argues that the trial court erred by not similarly 

limiting the scope and methodology of Dr. Coons’s potential examination and 

allowing a comprehensive exam that could venture into the futuredangerousness issue.

Hernandez’s legal conclusion depends on the correctness of the factual 

premises. But the TCCA rejected both. Because of this, he must show that the 

TCCA’s rejection was not merely wrong, but objectively unreasonable by clear 

and convincing evidence. This, he fails to do. 

By Dr. Natalicio’s own testimony, he did far more than administer

standardized tests; he interviewed Hernandez over a wide variety of subjects 

for over seven-and-a-half hours. By his own admission, he was not hired merely 

to perform an “intellectual assessment.” Given these statements, the TCCA’s 

conclusion—that Dr. Natalicio’s evaluation was more comprehensive than 

Hernandez would have us believe—was not unreasonable. Neither was its 

conclusion that Dr. Natalicio’s testimony about Hernandez’s diminished

mental capacity was relevant not only to mitigation—as Hernandez suggests—

but also to the future-dangerousness issue. See Davis v. Texas, 313 S.W.3d 317, 

352 (2010) (rejecting the “hairsplitting distinction” between the issues of 

diminished capacity and future dangerousness). For example, a low 

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intelligence level could make Hernandez less likely to carry out a violent plan,

or conversely, it could reduce his control over his emotions.4 

Because these factual findings are reasonable, Hernandez’s legal 

argument fails. If Dr. Natalicio conducted extensive interviews, and if mental 

capacity is relevant to future dangerousness, then it was reasonable for the 

TCCA to conclude that the trial court properly refused to limit the scope of Dr. 

Coons’s examination in the manner Hernandez wanted.

Thus, no reasonable jurist could debate that the TCCA’s resolution of 

this claim was reasonable. A COA is denied.

IV.

For the foregoing reasons, all of Hernandez’s COA requests are DENIED.

 

4 Concluding that a defendant’s diminished mental capacity is relevant to future 

dangerousness could be classified as a legal conclusion, not a factual one. We do not think so. 

But even if we did, Hernandez has pointed to no Supreme Court case (and we could not find 

one) holding that diminished capacity is not related to future dangerousness. Thus, treating

diminished capacity as relevant to future dangerousness is not contrary to, nor an 

unreasonable application of, federal law. 

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