1 See Lackey v. State, 819 S.W.2d 111 (Tex. Crim. App. 1989),

for a detailed recitation of the facts.

2 At the time, the Texas capital sentencing statute required

the court to sentence the defendant to death if the jury returned

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 93-8529

_____________________________________

CLARENCE LACKEY,

Petitioner-Appellant,

VERSUS

WAYNE SCOTT, Director,

Director, Texas Department of Criminal Justice

Institutional Division,

Respondent-Appellee.

______________________________________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________________________________

(August 2, 1994)

Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge:

Clarence Lackey, a Texas death row inmate, appeals the

district court's decision denying his petition for writ of habeas

corpus. We affirm.

BACKGROUND

In 1983, a Texas jury found Clarence Lackey guilty of

capital murder.1 At the punishment phase of the trial, the jury

answered affirmatively the special issues submitted under the

former Tex. Code Crim. Proc. Ann. art. 37.071(b),2 requiring the
affirmative findings on each of the following issues:

(1) whether the conduct of the defendant that

caused the death of the deceased was committed

deliberately and with the reasonable expectation that

the death of the deceased or another would result;

(2) whether there is a probability that the

defendant would commit criminal acts of violence that

would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct

of the defendant in killing the deceased was

unreasonable in response to the provocation, if any, by

the deceased.

Tex. Code Crim. Proc. Ann. art. 37.071(b). The first two issues

were submitted to the jury at the punishment phase of Lackey's

trial.

2

trial court to impose a death sentence. In 1989, the Texas Court

of Criminal Appeals affirmed Lackey's conviction and sentence. 

See Lackey v. State, 819 S.W.2d 111 (Tex. Crim. App. 1989). 

Shortly thereafter, the Supreme Court decided Penry v. Lynaugh,

492 U.S. 302 (1989). Lackey petitioned the Court of Criminal

Appeals for rehearing in light of that opinion. After

considering Lackey's Penry claims, the court affirmed the

judgment. See Lackey v. State, 819 S.W.2d 111, 128 (Tex. Crim.

App. 1991). Following this affirmance, Lackey sought a writ of

habeas corpus in state court, which was denied. Lackey then

filed a federal habeas petition and request for a stay of

execution. The district court granted the stay, and after

briefing and an evidentiary hearing, denied relief. This appeal

followed. 

DISCUSSION

I. Penry Claims
3

During the punishment phase of Lackey's trial, he requested

an instruction regarding mitigating evidence, which was denied. 

On appeal, Lackey contends that the trial court's refusal to give

the requested instruction unconstitutionally restricted his

opportunity to present mitigating evidence. Specifically, Lackey

argues that, without the requested instruction, the Texas special

issues did not allow the jury to give mitigating effect to the

following evidence: (1) his intoxication at the time of the

offense; (2) his history of excessive drinking; (3) his low

intelligence; and (4) his childhood abuse. In support of his

arguments, he relies on the Supreme Court's decision in Penry,

492 U.S. at 302 (1989), and the cases that have clarified its

holding.

In Penry, the Supreme Court held that, absent additional

instructions to the jury, the Texas special issues did not permit

the jury to give effect to the mitigating evidence of Penry's

mental retardation and history of childhood abuse. According to

the Court, in the absence of an instruction defining the term

"deliberately" in the first special issue, the jury may have been

precluded from giving effect to their possible opinion that

Penry's mental retardation and history of childhood abuse made

him "less able than a normal adult to control his impulses or to

evaluate the consequences of his conduct" and thus less

personally culpable. Id. at 323. With respect to the second

issue, the Court found that the mitigating evidence was a doubleedged sword: it mitigated his culpability and at the same time it
3 Lackey bases his Penry claim on evidence proffered at a

hearing on federal habeas, as well as evidence proffered at his

trial. Our review, however, is limited to evidence presented at

trial. See, e.g., Anderson v. Collins, 18 F.3d 1208, 1214-15

(5th Cir. 1994). 

4

indicated that he would be dangerous in the future. Id. at 324. 

Finally, the evidence was not relevant to the third issue. The

Court concluded that the state court erred by not instructing the

jury that it could consider and give affect to the mitigating

evidence of Penry's mental retardation and childhood abuse by

declining to impose the death sentence.

Subsequent to Penry, the Supreme Court explained that a

state's refusal to give additional instructions does not amount

to constitutional error unless there is a "'reasonable likelihood

that the jury applied the challenged instruction in a way that

prevents the consideration of constitutionally relevant

mitigating evidence.'" Johnson v. Texas, 113 S. Ct. 2658, 2669

(1993) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). 

Applying this standard, we hold that Lackey's mitigating evidence

did not require additional instruction. 

At the punishment phase of the trial,3 Lackey called Dr.

Herbert Modlin, a psychiatrist and expert witness, to testify. 

Dr. Modlin described Lackey as a "periodic drinker"))a person who

does not need daily drinks, but when he does drink, he often

drinks too much causing him to blackout. Dr. Modlin attributed

Lackey's crime to an alcohol-induced blackout that caused Lackey

to lose contact with reality and rendered him capable of engaging

in automatic behavior. Lackey adduced additional evidence that
4 Lackey attempts to characterize his propensity to overindulge

as a permanent handicap by claiming that he is an alcoholic. The

evidence does not, however, support is claim. Lackey presented

5

his drinking problem was treatable, that he was a good candidate

for treatment, and that diagnostic and treatment facilities were

available to him in prison. Dr. Modlin concluded that, in his

expert opinion, Lackey was not likely to pose a future threat to

society. 

We have previously stated that the Texas sentencing scheme

does not preclude the jury from giving mitigating effect to

evidence of a defendant's voluntary intoxication at the time of

the offense. See, e.g., James v. Collins, 987 F.2d 1116, 1121

(5th Cir.), cert. denied, 114 S. Ct. 30 (1993); Cordova v.

Collins, 953 F.2d 167, 170 (5th Cir.), cert. denied, 112 S. Ct.

959 (1992). Unlike Penry's mental retardation and childhood

abuse, "voluntary intoxication is not the kind of 'uniquely

severe permanent handicap[] with which the defendant was burdened

through no fault of his own' that requires a special instruction

to ensure that the mitigating effect of such evidence finds

expression in the jury's sentencing decision." Cordova, 953 F.2d

at 170 (quoting Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir.

1992), aff'd, 113 S. Ct. 892 (1993)). "[E]vidence of voluntary

intoxication can be given full effect by the jury in deciding

whether the defendant acted deliberately." Id. Furthermore, the

sentencing jury could have reasonably taken into consideration

Dr. Modlin's testimony that Lackey would not be a future threat

to society in answering the second issue.4 
no expert diagnosis that he suffered from alcoholism. To the

contrary, Dr. Modlin described Lackey as a "periodic drinker." 

5 Lackey attempts to characterize his poor academic record and

low IQ as mental retardation. This characterization is

unfounded. Although at age fourteen Lackey tested in the mildly

retarded range, Dr. Modlin explained that IQ tests are not

reliable until age sixteen. Tests given to Lackey after the age

of sixteen indicated below average intelligence, but not

retardation.

6

Likewise, no special instruction was necessary to effectuate

evidence presented on Lackey's history of childhood abuse or low

intelligence. At the sentencing hearing, Lackey's mother told

the jury that during his childhood she and Lackey were physically

abused by his father. With regard to his low intelligence, both

Lackey's mother and Dr. Modlin testified that Lackey did poorly

in school. Additionally, Dr. Modlin testified that Lackey's IQ

was below normal.5 This evidence was not relevant to the first

special issue because there was no suggestion that Lackey's

criminal act was attributable to his low intelligence or

childhood abuse. See Madden v. Collins, 18 F.3d 304, 307 (5th

Cir. 1994) (stating that to be relevant there must be a nexus

between the mitigating evidence and the criminal act). To the

contrary, Dr. Modlin testified that Lackey's background and

psychological profile could not explain his crime. Furthermore,

Lackey's trial counsel argued to the jury that the evidence of

Lackey's low intelligence and history of childhood abuse were not

offered to excuse Lackey's crime, but rather to show that he

would not be a future danger to society. We conclude that the

jury could have reasonably considered this evidence in answering
7

the second issue. 

Because Lackey's mitigating evidence, as proffered, was

within the jury's effective reach, acceptance of Lackey's claim

would require this Court to announce a new rule of constitutional

law. Consequently, federal habeas relief is foreclosed. See

Teague v. Lane, 489, U.S. 288, 311 (1989). 

II. Intoxication/Insanity Instruction 

Lackey contends that the following instruction, given

pursuant to section 8.04 of the Texas Rules of Criminal

Procedure, prevented the jury from giving mitigating effect to

his evidence of voluntary intoxication at the time of the

offense: 

You are instructed that under our law neither

intoxication nor temporary insanity of mind caused by

intoxication shall constitute any defense to the

commission of crime. Evidence of temporary insanity

caused by intoxication may be considered in mitigation

of the penalty attached to the offense.

By the term "intoxication" as used in this Charge

is meant that at the time of the conduct charged, the

defendant, as a result of voluntary intoxication,

either did not know that his conduct was wrong or was

incapable of conforming his conduct to the requirements

of the law which he has found to have violated.

Now, if you find from the evidence that the

defendant, Clarence Allen Lackey, at the time of the

commission of the offense for which he is on trial was

laboring under temporary insanity as above defined,

produced by voluntary intoxication as defined, that you

may take such temporary insanity into consideration in

mitigation of the penalty which you attach to the

offense for which you have found him guilty.

Lackey argues that the instruction precluded the jury from

considering mitigating evidence of voluntary intoxication that

did not rise to the level of temporary insanity. In effect,

Lackey is arguing that the jury was precluded from considering
8

evidence that he did not ask them to consider. He did not

present evidence or argue at trial that his voluntary

intoxication amounted to anything less than temporary insanity. 

Rather, he presented evidence that his criminal conduct was

attributable to an "alcoholic blackout," which caused him to lose

contact with reality and rendered him capable of engaging in

automatic behavior. Because Lackey failed to proffer evidence of

non-insane intoxication in mitigation of punishment, whether the

jury could properly consider it is not a proper subject for

habeas review. See Delo v. Lashley, 113 S. Ct. 1222, 1225 (1993)

("Nothing in the Constitution obligates state courts to give

mitigating circumstantial instructions when no evidence is

offered to support them.") 

III. Interference of the Texas Capital Sentencing Scheme

With Counsel's Presentation of Evidence

Appellant argues that the Texas capital sentencing statute

unconstitutionally interfered with his trial counsel's ability to

make decisions about his defense. Specifically, Lackey argues

that because mental health evidence could be considered in

aggravation of the second special issue, the statutory scheme

prevented his trial counsel from developing and presenting

mitigating evidence about his mental condition. We have

considered and rejected this precise argument in previous cases. 

See Black v. Collins, 962 F.2d 394, 407 (5th Cir.), cert. denied,

112 S.Ct. 2983, (1992); May v. Collins, 948 F.2d 162, 166-68 (5th

Cir. 1991), cert. denied, 112 S. Ct. 907 (1991). 

IV. Ineffective Assistance of Counsel
6 On state habeas and on federal habeas before the district

court, Lackey claimed that his trial counsel was ineffective for

four reasons: (1) failure to request a competency trial; (2)

failure to object to the exclusion for cause of certain

prospective jurors; (3) failure to properly cross-examine trial

witnesses; and (4) failure to request an instruction on parole

during the punishment phase. None of these arguments encompasses

Lackey's arguments before this Court. 

9

Lackey suggests that his trial counsel rendered ineffective

assistance by failing to produce a mental health expert to develop

a nexus between Appellant's childhood abuse and his violence as an

adult. He also suggests that his appellate counsel was ineffective

for failing to pursue a challenge to the state law prohibition

against informing jurors of the legal effect of a failure to agree

on answers to the special issues. Because Lackey did not raise

these claims before the state court on habeas review or the federal

district court,6 we cannot consider his claims here. Alexander v.

McCotter, 775 F.2d 595, 603 (5th Cir. 1985); see also Barnard v.

Collins, 958 F.2d 634, 643 n.12 (5th Cir. 1992), cert. denied, 113

S. Ct. 990 (1993).

V. Denial of Funds for expert assistance

Lackey contends that the trial court unconstitutionally denied

him funds for the assistance of non-psychiatric experts. The

district court correctly found that Appellant had procedurally

defaulted the claim in state court. Lackey did not request such

assistance on the record or obtain a ruling, and the state habeas

court held this claim was procedurally barred. When a state-law

default prevents the state court from reaching the merits of a

federal claim, that claim cannot be reviewed absent a showing of
7 Tex. Code Crim. Proc. Ann. art. 37.071.

10

cause and prejudice. Ylst v. Nunnemaker, 501 U.S 797 (1991);

Cowart v. Hargett, 16 F.3d 642, 644-45 (5th Cir. 1994). Because

Lackey has not even attempted to argue cause and prejudice, we are

precluded from considering his claim.

VI. Punishment-phase Instructions Regarding Jury Agreement

Appellant claims his constitutional rights were violated by a

statutory prohibition against informing jurors of the effect of

their failure to agree on a punishment phase issue.7 The district

court properly held that this claim was procedurally barred. As

noted by the district court, the state habeas court rejected

Lackey's claim on the ground that he did not object to the jury

charge or request a special instruction. Furthermore, Appellant

has not argued circumstances permitting our review of his defaulted

claim.

VII. Failure to Define Reasonable Doubt

Lackey contends that the state court violated his

constitutional rights by refusing to apply retroactively the

principles of Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.

1991). In Geesa, which was decided after Lackey's trial but before

Lackey's conviction became final, the Texas Court of Criminal

Appeals announced a new rule requiring a definition of the term

"reasonable doubt" in jury instructions in criminal trials. The

state court also announced that the new rule would only apply to

criminal cases where the trial occurred after Geesa. Appellant

argues that Geesa is based on federal law, and therefore, Griffith
11

v. Kentucky, 479 U.S. 314 (1987), requires that it be given

retroactive treatment.

Contrary to Lackey's assertions, the rule announced in Geesa

was not required by the federal constitution or law. See Victor v.

Nebraska, 114 S.Ct. 1239 (1994) (stating that "the Constitution

neither prohibits trial courts from defining reasonable doubt nor

requires them to do so"); see also Thompson v. Lynaugh, 821 F.2d

1054, 1060-61 (5th Cir.), cert. denied, 483 U.S. 1035 (1987)

(noting that "attempts by trial courts to define 'reasonable doubt'

have been disfavored by this Court"). Thus, the federal

retroactive principles discussed in Griffith have no bearing on the

state's application of its new rule. See American Trucking Ass'ns

Inc. v. Smith, 497 U.S. 167, 177 (1990). 

Alternatively, Appellant argues that the state court's refusal

to give retroactive application to Geesa violated his right to

equal protection. Because Lackey has not made any attempt to show

this Court that the state did not have a rational basis for its

refusal to apply the rule of Geesa retroactively, we reject

Lackey's claim. See Johnson v. Louisiana, 406 U.S. 356, 363-65

(1972). 

VIII. Cumulative Effect of Errors

Lackey contends that the cumulative effect of the foregoing

alleged errors constituted an independent constitutional violation.

Because Lackey has not shown any error, much less constitutional

error, we must reject his contention. 

IV. Execution After Long Imprisonment
12

Finally, Appellant notes that he has been on death row since

1983 and argues that executing him after his lengthy incarceration

"makes no measurable contribution to accepted goals of punishment."

He also argues that the addition of the death penalty to his

lengthy incarceration is "grossly out of proportion to his isolated

act." We will not address the merits of these arguments for two

reasons. First, Appellant raises these arguments for the first

time on appeal. See Alexander, 775 F.2d 603. Second, granting

Lackey the relief he seeks would require us to create a new rule.

See Teague, 489 U.S. 311.

CONCLUSION

For the foregoing reasons, the district court's denial of

Lackey's petition for writ of habeas corpus is AFFIRMED, and the

stay of execution issued by the district court is VACATED.