IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2928

BILLY JOE WOODS,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director, Texas

Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court for the

Southern District of Texas

February 7, 1996

Before KING, GARWOOD and DUHÉ, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Billy Joe Woods (Woods) appeals the

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

challenging his Texas capital murder conviction and sentence to

death.

Woods’ primary contention is that the punishment stage future

dangerousness testimony of prosecution witness Dr. Garcia violated

the rule of Estelle v. Smith

, 101 S.Ct. 1866 (1981), and

Satterwhite v. Texas

, 108 S.Ct. 1792 (1988), and his Fifth, Sixth,Miranda v. Arizona , 86 S.Ct. 1602 (1966).

T hibodeaux had been licensed in 1970 and his practice

consisted primarily of criminal defense work and family law, but he

had never defended a capital case. Heacock was licensed in 1963,

had practiced criminal law since then, and had tried several

capital cases. Heacock took primary responsibility for the case.

2 and Fourteenth Amendment rights, because Dr. Garcia had e xamined

Woods for competency prior to trial, but Woods’ counsel was not

notified of th e examination and Woods was not given appropriate

Miranda -type warnings. 1 The district court found that Dr. Garcia’s

challenged te stimony was harmless beyond a reasonable doubt,

applying the Chapman v. California

, 87 S.Ct. 824 (1967), standard.

Although our analysis in some respects slightly differs from that

of the district court, and we a pply the more lenient B recht v.

Abrahamson , 113 S.Ct. 1710 (1993), harmless error standard rather

t han the stricter Chapman standard, we ultimately agree with the

district cour t that the error in question was harmless under

Brecht

. The district court likewise rejected Woods’ other claims,

as do we respecting those he has complained of on appeal. We hence

affirm.

Facts and Proceedings Below

By indictment filed October 21, 1975, in state court in Harris

County, Woods was charged with capital murder committed October 10,

1975, in Houston, Texas, by intentionally killing Mable Ehatt

(Ehatt) while in the course of robbing and attempting to rob her.

Attorney Thib odeaux had been appointed to represent Woods on

October 16, 1975; on Oc tober 23, attorney Heacock was also

appoi nted to represent Woods. 2 On October 22, 1975, the stateDr. Garcia examined Woods for approximately thirty to fortyfive minutes; no tests were performed. Dr. Garcia’s report

concludes:

“Psychiatric examination revealed a rather manipulative,

caucasian male in no acute physical distress. He is well

oriented as to time, place, and person. There is no

evidence of a thought disorder, no de lusional thinking

and no delusions and/or halluc inations. Sensorium is

clear. He has no difficulty handling calculations and

there is no evidence of sensorium impairment. It is the

opinion that the subject can appreciate the criminality

of his a ctions and conform his conduct to the

requirements of the law. In addition, the subject has

sufficient factual and rational understanding of the

proceedings against him, enabling him to understand and

to assist in the preparation of a defense. There is no

psychiatric disorder for which he needs to receive

psychiatric treatment.”

Dr. Nottingham’s report similarly concludes:

3 moved for, and the trial court ordered, Woods to undergo a

psychiatric examination, with report to be filed in the papers of

the case by November 14, 1975. Although the motion and order were

filed in the papers of the case, they were not served on defense

counsel. The court-ordered examinations did not take place until

mid-December 1975. On December 15, 1975, Woods was examined by Dr.

Nottingham, a psychiatrist with the Harris County Psychiatric

Hospital, and on December 16, 1975, by Dr. Bloom, a psychologist,

and by Dr. Garcia, a psychiatrist, each also with the Harris County

Psychiatric Hospital. All three found Woods both sane and

competent to stand trial. The reports of Drs. Nottingham and Bloom

were not filed in the papers of the case (or put in evidence at

trial), and neither of them testified at trial. Dr. Garcia’s

report was filed in the papers of the case on January 15, 1976, but

was not put in evidence at trial. 3 Defense counsel were unaware“There does not appear to be any disease of the mind or

degree of mental defect which would interfere with this

individual’s ability to understand and appreciate the

nature and quality of his behavior and the consequences

of his acts. He is cognizant of the difference between

right and wrong and able to conform his behavior to the

expectations of the law and of society. In addition, he

is felt competent to aid his attorney in his own defense

and is felt, therefore, by this examiner to be of SOUND

MIND.”

The report of the psychologist, Dr. Bloom, reflects that Woods

was interviewed and administered some five tests which reflected,

inter alia

, full IQ of 80, verbal 81, performance 81, “functioning

in the dull normal range of intelligence” and having “the ability

to learn and to reason.” There was “no evidence of organic brain

dysfunction.” Although some test responses were described as

“suggesting immaturity and inadequate personality development” and

“insecurity,” the re “were no bizarre or otherwise pathognomonic

responses which would indicate the presence of a psychotic thought

disturbance.” The report concluded:

“The results of the examination indicate that Mr. Woods

is aware of the nature of the charges and proceedings

against him, and has the intellec tual capacity to

understand these in a rational way. He also has the

capacity to understand the difference between right and

wrong; to understand the nature, quality, and possible

consequences of criminal behavior ; and to conform his

behavior to the expectations of society and the law if he

so chooses. He also has the ability to consult with his

attorney in a rational manner in the preparation of his

defense. For these reasons, Mr. Woods is considered

competent to stand trial.”

The reports of Dr. Garcia and Dr. Nottingham reflect that

Woods was born December 20, 1946, was removed from his family home

at the age of six, and at age eight was, with one of his brothers,

placed with the Woods family, who adopted him. He left school in

the tenth grade, married at age twenty-two, and divorced a year

later. He was convicted of attempted aggravated rape in Louisiana

and was released from the Louisiana penitentiary in 1975.

4 that the examinations had been ordered or were going to be

conducted, and hence were not present at and did not advise Woods

respecting any of them.

Meanwhile, on January 12, 1976, defense counsel moved to have5

Woods examined for competency by psychiatrist Dr. Byrd, who had a

reputation of being pro-defense. On January 22, 1976, the trial

court granted the motion and ordered that the examination by Dr.

Byrd take place Ja nuary 25. Dr. Byrd examined Woods prior to

trial

—— though just when is not clear

— — and the results of his

examination were so adverse to the defense that defense counsel

asked him to refrain from writing or filing a report with the

court. There is no indication that Dr. Byrd ever wrote a report,

and he did not testify. He did advise defense counsel that he

found Woods competent to stand trial and sane at the time of the

offense, he c haracterized Woods as anti-social and mean, and

informed defense counsel that counsel would not want him, Dr. Byrd,

to testify.

Trial on the merits did not commence until July 1976. On July

6, just before the commencement of voir dire

, defense counsel filed

a motion requesting that the court instruct the district attorney

in various respects including, in the motion’s paragraph III, “not

[to] allude to or introduce results of any scientific tests made by

the State of Texas, specifically, psych iatric tests , fingernail

scrapings, pubic hairs or blood samples taken from the defendant”

(emphasis added), on the ground (stated in the motion’s paragraph

IV) that if allowed those matters would violate defendant’s Fifth

Amendment rights and “defendant was without counsel at the time of

the scientific tests.” The court’s notation at the foot of the

motion appears to indicate that it was granted “as to paragraph

III.” However, the transcript of the hearing on this and otherD uring the course of trial d efense counsel did object to

evidence of some of the items mentioned in the motion

—— e.g., pubic

hairs.

6 def ense motions indicates that the motion (which counsel orally

described at the hearing as relating to “a blood sample, hair,

maybe fingernail scrapings”) as there stated was overruled, though

apparently without prejudice to being presented later. There is no

indication that the motion was ever presented later. 4

At the guilt/innocence stage of trial, no issue was raised and

no evidence was presented concerning Woods’ sanity or competency.

The state’ s unrebutted evidence at the guilt/innocence stage is

generally summarized in the Texas Court of Criminal A ppeals’

opinion on Woods’ direct appeal:

“.

. . in the middle of the night appellant climbed up

some poles and lattice work to the balcony of the second

story apartment of a 63 year old woman [the victim, Mable

Ehatt] who was afflicted with cancer and could move about

only with the aid of a walker. Appellant forced the door

open from the balcony into the apartment and once inside

robbed the occupant and beat and strangled her to death.

H e also apparently attempted to perform some sort of

sexual act with her because she was found to be nude from

the waist down, sev eral hairs from her head were found

jammed in the z ipper of appellant’s fly which was open

w hen he was arrested at the scene, and a considerable

amount of feces and blood from the deceased were found on

the front of appellant’s trousers, shorts , shirt and

shoes.” W oods v. State

, 569 S.W.2d 901, 902 (Tex. Crim.

App. 1978), cert. denied , 101 S.Ct. 3145 (1981).

According to the police officers’ testimony, when they entered

the apartment (where the deceased had lived alone) it was “in

complete disarray,” the victim’s walker was turned over on the

floor, her purse had been emptied on the floor, and large

quantities of blood and human defecation were observed on the floorThe examiner, who examined the deceased at 7:30 a.m. October

10, 1975, testified that her condition was consistent with a time

of death shortly before the officers entered the apartment.

T he ex aminer explained that “the hyoid bone is the U-shaped

bone that sits high up in the neck. It’s comparable to the wish

bone in the chicken.”

7 of the living room and dining room. The deceased’s still warm body

was lying in the kitchen “in a good b it of blood and human

defecation,” with her head in the entryway between the dining room

and kitchen. She was naked from the waist down. There was blood

“from her mouth.” Her face and eyes were swollen and discolored,

“severe bruises” were visible on her head and back, and there was

“an extreme amount of blood in the a partment, on her and around

her.” Bits of body tissue were observed in the blood on the floor.

The victim’s sister testified that when her body was seen later one

of Ehatt’s eyes “looked like half of a tennis ball.” The medical

examiner testified that “the cause of death was a fractured hyoid

bone and fractured skull, blunt trauma to neck and head and manual

strangulation.” 5 The hyoid bone was fractured on both sides, which

the examine r testified “indicates constriction type of trauma;

that’s squeezing of the neck and resistance on th e part of the

victim.” 6 The deceased’s fractured skull could have been caused by

someone of Woods’ size striking her head with his fists (or kicking

her head with h is feet or hitting it with an object such as a

baseball bat).

The defendant was found by the police officers alone (except

for the deceased) in the apartment; the zipper on his fly was open,

and hairs from the deceased’s head were caught in it; hisN or has there ever been any showing or even allegation that

Woods was not guilty of the offense.

A psychologist who examined Woods in July 1988 at the request

of his habeas counsel submitted a report opining that

“Mr. Woods’ behavior in these offenses [the inst a nt

offense and a 1969 attempted rape] was overdetermined and

therefore, should be regarded more as a manifestation of

psychological or emotional imperatives than as merely an

extension of criminal intent. Viewed in terms of these

considerations, Mr. Woods’ conduct is consistent with

know n diagnoses of temporary states of mental illness

which, among other things, raises the rather strong

possibility that he was diagnosably insane at the time of

the offense.”

This report does not suggest that Woods was psychotic. Nor does it

state that he did not know his conduct was wrong, which is (and

was) the sole Texas test for insanity. Tex. Penal Code § 8:01(a)

(“as a result of severe mental disease or defect, did not know that

his conduct was wrong”).

Attorney Heacock stated in an affidavit (filed by the state in

response to Woods’ state habeas) that Woods

“admitted having committed the burglary, but denied

killing Mable Ehatt. He contended that he had met a

friend at a near-by bar and that, together, they walked

to Ms. Ehatt’s house and broke in. It was this ‘friend,’

according to Billy Joe , who killed Ms. Ehatt. When

pre ssed for details, however, Billy Joe could give us

none. He did not remember the name or the location of

the bar where he had met his friend, nor could he give us any information concerning his friend other than his

8 undershorts had blood and hair on them; there was blood and

defecation, still fresh, on his shoes. The officers at that time

observe d bruises and abrasions on the defendant’s knuckles,

abrasions on the palm of his hand, numerous scratches on his back

below the shoulders, and a long scratch on the back of his right

leg. The defendant had the deceased’s bracelet on his left wrist

and her hair brush and prescription medicine, and a woman’s

electric razor, in his pants pocket.

There was no defense evidence. 7 The jury found Woods guiltyfirst name.”

The objection in full was:

“This will be pertaining to the testimony I believe of a

Dr. Garcia, who would be a psychiatrist for the Harris

County forensic psychiatric unit. The basis for my

objection would be that the examination performed by Dr.

Garcia upon the defendant was without the consent or

permission of the defense attorneys involved in the case,

that the fact that the doctor examined the defendant and

elicited from him certain information, even t hough the

Code of Criminal Procedure does not permit the doctor to

testify to the discussions he had with the defendant, it

does allow the doctor to testify as to the end result of

his examination, to wit, his feeling or opinion of the

defendant’s competency; a nd also to the proposition of

question number two, that is, that there is a probability

that the defendant will commit further acts of violence

and continue to be a further threat to society. We feel

that this indirectly not only shall be used against him

as an abridgement of the Fifth Amendment rights, but also

will be used for the jury to decide question number two

so that his life may be taken. For these reasons, we

object to any testimony from Dr. Garcia or forensic

psychiatrists or psychologists based on that reason, if

it please the court.”

9 as charged.

Thereafter, just before the punishment phase of trial

commenced, defense counsel, out of the presence of th e jury,

unsuccessfully objected to the anticipated calling of Dr. Garcia as

a punishm ent stage witness for the state, on the ground that Dr.

Garcia’s examination of Woods was performed “without the consent or

permission of the defense attorne ys” and his testimony would

constitute “an abridgement of the Fifth Amendment rights.” 8

At the punishment stage, the prosecution first put in evidence

that in April 1970 Woods was convicted, in Louisiana state court,

on his plea of guilty, of attempted aggravated rape, committed

December 21, 1969, in New Orleans, and was sentenced to fifteen10

years in the penitentiary. The state then called Dr. Garcia, who,

after identifying himself as a psychiatrist, testified as follows:

“Q. Did you have an occasion to examine the defendant in

this case, Billy Joe Woods?

A. I have.

Q. Did you have an occasion to determine whether or not

or what type of mental label, if you will, you put as a

psychiatrist on the personality of the defendant?

A. Well, it’s customary that we address to the questions

asked by the court and they are gener ally questions of

competency. I did not include a psychiatric label in my

report to the court, since I was asked to address myself

to the issues of sanity and competency.

Q. Did you determine whether or not the man was

competent, insane?

A. I did.

Q. Was he competent?

A. In my opinion, he was.

Q. Now, if you will, let me state a hypothetical

situation to you and have you give your opinion as to the

affect [sic ] on this defendant, if that hypothetical

situation applied to the defendant. Assume that a person

in 1970 was convicted of the offense of attempted rape,

felony, sentenced to the penitentiary and then in 1975 at

three in the morning, climbed up a porch, up onto a porch

on the second floor balcony, kicked in a lady’s door

forcibly, went inside and completely ransacked, turned

everything in the apartment upside down, knocked things

over, took the lady’s bracelet, pill bottle, carried a

television downstairs from her apartment, beat her about

the head in such a way that her facial features were

obscure to the point of almost not being able to identify

the way she looked, tremendous beating, in other words,

fractured skull, strangulation, two fractures in the

hyoid bone, and then in some manner caused his pubic hair

to come in contact with her head while his pants were

down and at least he dressed in no mo re than his under

wear, had his pubic hair touching the lady’s head, and

the lady was sixty-two years old, invalid, who had to get

around on a walker in ord er to move about, and that he

killed this lady by b eating her and strangling her and

was then caught in the room with her, if t hat

hypothetical situation applied to this defendant, knowing

his mental background as you do

, can you tell us whether

it’s more likely than not that this defendant would

commit criminal acts of violence that would constitute a continuing threat to society?” (Emphasis added).

A t this point defense counsel objected, the objection w a sDefense counsel stated:

“MR. HEACOCK: If it please the court, I have some

objections to the question. One, it’s not a hypothetical

question. Second, there has been no predicate laid at

this point f or a doctor to answer such a question. I

feel it’s a vain attempt by the state to get a doctor to

answer a ques tion that due to medical probability he

cannot answer and I would object to it very strenuously,

if it please the court.

THE COURT: Overruled.

MR. HEACOCK: Note our exception.”

11 overruled, 9 and the direct examination continued as follows:

“Q (by Mr. Graham) Can you answer the question:

A. Okay. In relation to the hypothetical question you

presented, you described what sounds as a very aggressive

act.

Q. Very aggressive act?

A. Aggressive and violent act in association with a

person that has c ommitted similar violent acts in the

past

. In your final question, would you repeat the final

part of the question? Would he be more likely--

Q. Yes, sir. W ould he be more likely to commit

continued acts of violence that w ould constitute a

continuing threat to society ?

A. My answer to that would be yes.

Q. And what is the best method of determining what will

happen in the future or what someone will do in the

future?

A. W ell, we don’t really have any methods that’s very

accurate. In fact, statistical studies on prediction

have shown that the prediction of the members of the

judicial system is almost, if not more accurate, than the

people in the behavioral sciences

. That is, we in the

psychiatric profession and judges come pret ty close to

the same level of accuracy.

Q. Well, in your particular medical field, do you use

the past to determine the best you can what will happen

or what a person will do in the future?

A. We use much attitudinal assessments of a person’s

personality development; how they interact in society and

how they may project of possible behavior, but there are

many variables that usually are unforeseen that we cannot

even attempt to predict

. Q. Is what someone did in the past the best method you

have of determining--I know you are saying you can’t say to an absolute certainty what someone is going to do in

the future.

A. T he things that have occurred in the past are12

associated with the person at the time of examination,

together, is the best tool we have at the present time.

Q. T hat includes considering what a person did in the

past ?

A. That is correct

. Q. I s that what helped you to come to your answer a minute ago about a hypothetical situation ?

A. True .” (Emphasis added).

That concluded the direct examination. On cross-examination,

Dr. Garcia testified as follows:

“Q. Dr., how long did you spend with Mr. Woods when you

examined him?

A. I imagine between thirty to forty-five minutes, which

is pretty standard time for my examination.

Q. Standard time?

A. That is correct.

Q. You examined him one time ?

A. True

. Q. With the purpose in mind to determine his competency ?

A. True

. Q. You submitted certain standard tests to him?

A. I took a psychiatric examination.

Q. Was it just all verbal?

A. Psychiatric examination includes subjective

assessments of the history given by the examinee, as well

as objective assessment given by the examiner. I did not

administer any type of psychological tests. I’m not a

psychologist.

Q. And you came to your professional opinion after a

thirty to forty-five minute session, approximately?

A. True.

Q. When you started initiating your conversation with

him did you say anything about th e results of your

examination, your opinion would be used to seek the death

penalty on him?

A. No, I did not. I did tell him that the content of

the interview would be reported t o the court;

furthermore, he was told that he had the right to decline

to answer questions durin g the examination. But I did

not go to the other extreme, because I was not aware that

that would be the w ay it was at the time of the

examination.

Q. There was no attorney or anyone else, just he and you

when the interview took place?

A. That is correct.

Q. Now, you stated there are many variables. Are these

behavior type variables? What was the term?

A. Well, I did not so specify. T here are many things

that can enter in a person’s functioning that could alterArticle 37.071(b) then provided:

“(b) On conclusion of the presentation of the

evidence, the court shall submit the following issues to

the jury:

(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;

. . . .”

13 the course of their adjustment to either life or any kind

of situation

, whether t hey are environmental things or

facts occurring in their environment or things occurring

internally, cha nges in attitude and so on, b ut I don’t

have any way of knowing what those might be

. Q. Each living person that has a degree of--I hate to

use rationalist, but competency, a competent person

always has the chance or the possibility of changing

inside them, something that would change their behavioral

pattern?

A. That’s too broad a statement. I cannot say that

every person at some point does have that opportunity?

There’s some people that have a personality structure of

such nature that may not likely change, but again--

Q. By the same token, y o u can’t point at somebody and

say ‘That man will never change’, can you ?

A. There’s some people I could

. Q. Did you, for example, in this case ?

A. W ell, I was not asked that question. The question

was would a person in the hypothetical be more likely to

commit acts of violence and my answer to that was yes.

But if I would be asked to give an opinion with a degree

of accuracy greater than that, I cannot answer because I

can’t predict to that extent. ” (Emphasis added).

That concluded Dr. Garcia’s testimony, and no other evidence

was presented at the punishment stage of the proceedings.

Following argument of counsel, the court charged the jury,

submitting to it the de liberateness and future dangerousness

special issues called for by Tex. Code Crim. Proc. art. 37.071(b). 10

The jury returned an affirmative answer to each of the special14

issues, and the court accordingly sentenced Woods to death. The

conviction and sentence were affirmed on direct appeal, in which

W oods was represented by new counsel (Thornell), W oods v. State

,

569 S.W.2d 901 (Tex. Crim. App. 1978), and the Supreme Court denied

certiorari June 29, 1981. Woods v. Texas , 101 S.Ct. 3145 (1981).

Woods, represented by the same counsel who represented him on

direct appeal, in October 1981 sought habeas relief in the Texas

courts, contending that under Estelle v. Smith

, 101 S.Ct. 1866

(1981), the introduction of Dr. Garcia’s testim ony violated his

Fifth, Sixth, and Fourteenth Amendment rights because Woods was not

given proper warnings regarding his privilege against self

incrimination in respect to Dr. Garcia’s examination and because,

his counsel not having been notified of the examination or that it

would encompass future dangerousness, there was no opportunity to

consult with counsel in regard thereto. The Court of Criminal

Appeals denied relief. Ex parte Woods , 745 S.W.2d 21 (Tex. Crim.

App. 1988). It held that Estelle v. Smith “applied retroactively

as to both Fifth and Sixth Amendment violations” and that Woods had

adequately preserved his complaints regarding Dr. Garcia’s

testimony. E

x parte Woods at 25. It distinguished Estelle v.

Smith on the basis that there the psychiatrist Dr. Gr igson’s

testimony was that, based upon his examination of the defendant, he

considered the defendant a sociopath who would commit violent acts

in the future, while: “[i]n the instant case Dr. Garcia did not so

testify. He was asked a hypothetical question. His response was

based upon the hypothetical facts he was asked to assume.These findings and conclusions included the following:

“A jury could not reasonably cons true Dr. Garcia’s

testimony, including the cross-examination, as being

influenced by or derived from the court-ordered pretrial

psychiatric examination of Applicant.

. . . .

The prosecutor’s use of the phr ase ‘knowing his [the

defendant’s] mental b ackground as you do’ (R. 1366, L.

16), although argu ably improper in the context of the

hypothetical question, wa s harmless in light of Dr.

Garcia’s response and subsequent testimony which showed

that his opinion on future dangerousness was limited to

the hypothetical facts assumed and not derived or

influenced by his pretrial examination of Applicant for

sanity and competency.

Applicant is procedurally barred from complaining about

15 Hypothetical testimony alone by a qualified psychiatrist, even one

who has not examined the individual, is admissible and in such

cases Estelle v. Smith , supra, is not ordinarily applicable.” Ex

parte Woods at 25 (footnote omitted). On its analysis of Dr.

Garcia’s testimony, the Court of Criminal Appeals concluded:

“We cannot say, in the context of the entire

interrogation of Dr. Garcia including the crossexamination, that the answers to the hypothetical

question were influenced by and derived from the courtordered pretrial psychiatric examination. Dr. Garcia

indicated in his responses he was basing his answers upon the hypothetical, not upon the interview with applicant

or the applicant’s answers to any questions.” I d

. at 26.

Thereafter Woods, represented by still another set of counsel

(who have continued to represent him), in April 1988 filed another

state habeas application that was subsequently amended and

supplemented. In October 1988 the state trial court entered

f indings and conclusions and recommended that habeas relief b e

denied. 11 The Court of Criminal Appeals on July 7, 1989, deniedthe prosecutor’s remarks in closing argument (R. 1382, L. 3-16) as

Applicant lodged no objection to said remarks and in the context of

the entire argument, the comments: (1) were not so prejudicial

that no instruction could cure the harm; and (2) were not of such

character that the jury would naturally and n ecessarily construe

Dr. Garcia’s opinion to be derived from his limited examination of

Applicant for sanity and competency.”

T he district court denied a certificate of probable cause. We

carried the request for certificate of probable cause with the

case, directed the parties to fully brief the appeal as o n the

merits, and heard full oral argument. We now grant the certificate

of probable c ause and rule on the merits of the appeal. C f.

Anderson v. Collins , 18 F.3d 1208, 1223 n.18 (5th Cir. 1994).

16 relief “on the basis of the findings and conclusions entered by the

trial court.” In September 1990, Woods, represented by the same

counsel, filed still another state habeas application. The state

trial court entered findings and conclusions and recommended denial

of relief . The Court of Criminal Appeals again denied relief on

the basis of the trial court’s findings.

Woods, represen ted by the same counsel, then commenced the

instant habeas proceeding under section 2254. The district court

ultimately denied relief, and Woods brings this appeal. 12

Discussion

I. Dr. Garcia’s Testimony

The district court fol lowed S atterwhite v. Texas

, 108 S.Ct.

1792 (1988), and applied the harmless error standard of Chapman v.

California

, 87 S.Ct. 824 (1967). It found “beyond a reasonable

doubt that Dr. Garcia’s expert testimony on the issue of

Petitioner’s future dangerousness did not influence the sentencing

jury.”

Satterwhite was a direct appeal case involving an error

—— unlike17

certain other constitutional erro rs that “pervade the entire

proceeding,” Holloway v. Arkansas

, 98 S.Ct. 1173 (1978), being one

of the examples given

—— whic h the Court ruled would n ot require

reversal if it were harmless under th e Chapman standard.

Satterwhite a t 1797-98. To find such a constitutional error

harmless under the Chapman standard, the court would have to

conclude “beyond a reasonable doubt” that it “did not contribute to

the verdict.” S atterwhite at 1797. After the district court’s

decision here, the Supreme Court held in Brecht v. Abrahamson

, 113

S.Ct. 17 10 (1993), that constitutional errors of the kind not

requiring automatic reversal would be evaluated under Chap man ’ s

harmless “beyond a reasonable doubt” standard only on direct

appeal, and that in habeas cases the appropriate standard was the

“less onerous harmless-error standard” of K otteakos v. United

States

, 66 S.Ct. 1239 (1946), applicable to direct appeal review of

nonconstitutional claims. B recht

, 113 S.Ct. at 1714. Brecht

concluded tha t “[t]he imbalance of the costs and benefits of

applying the Chapman harmless error standard on collateral review

counsels in favor of applying a less onerous standard on habeas

review of constitutional error.” B recht at 1721-22. The K otteakos

standard requires that the error have resulted in “‘actual

prejudice,’” in other words “‘had substantial and injurious effect

or influence in determining the jury’s verdict.’” B recht at 1722.

The Brecht court also stated that

“ granting habeas relief merely because there is a

‘reasonable possibility’ that trial error contributed to

the verdict, see Chapman v. California , 386 U.S. at 24,

87 S.Ct. at 828 (quoting Fahy v. Connec ticut , 375 U.S.18

85, 86, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963)), is at

odds with the his t oric meaning of habeas corpus

—— to

afford relief to those whom society has ‘grievously

wronged.’” Brecht at 1721.

Thus, under B recht , a constitutional trial error is not so

harmful as to entitle a defendant to habeas relief unless there is

more than a mere reasonable possibility that it contributed to the

verdict. It must have had a s ubstantial effect o r influence in

determining the verdict. We recognize, however, that if our minds

are “in virtual equipoise as to the harmlessness,” under the Brecht

standard, of the error, then we must conclude that it was harmful.

O’Neal v. McAninch

, 115 S.Ct. 992, 994 (1995). Moreover, the

Brecht standard does not require in order for the error to be held

harmful that there be a “reasonable probability” that a bsent the

error the result would have been different. K yles v. Whitley

, 115

S.Ct. 1555, 1566-67 (1995).

In holding Dr. Garcia’s testimony was harmless b eyond a

reasonable doubt, the district court prop erly characterized the

doctor’s testimony as “equivocating and weak.” When asked by the

prosecutor what was “the best method” for predicting “what someone

will do in the future,” Dr . Garcia responded “we don’t have any

methods that’s very accurate.” He further stated that “prediction

of the members of the judicial system is al most, if not more

accurate, than the people in the behavioral sciences.” Later in

his direct testimony he stated, in answering a question concerning

determination of “what a person will do in the future,” that “there

are many variables that usually are unforeseen that we cannot even

attempt to predict.” While Dr. Garcia did testify that a person19

who commits a very aggressive and violent act and has previously

committed a similar violent act, as described in the hypothetical,

would be “more likely” to commit further violence, he never

expressly articulated what he meant by “more likely.” However, in

light of Dr. Garcia’s testimony as a whole, esp ecially his

testimony that the best predictive methods were not “very

accurate,” the most reasonable infer ence is that Dr. Garcia was

simply saying that such a person was “more likely” th an a person

who had not committed such violent acts to act violently in the

future. But beyond that common sense comparative

observation

—— equally within the ken of the juror or the

psychiatrist, as Dr. Garcia’s testimony suggested

—— Dr. Garcia was

unable to say “because I can’t predict to that extent.” We agree

with the district court that “[a] dispassionate reading of the

trial transcript reveals Dr. Garcia was of little help to the

prosecution” and “[h]is t estimony did not buttress the state’s

case.”

Dr. Garcia’s testimony is to be contrasted to that challenged

i n Estelle v. Smith and in Satterwhite

. In the former case, the

Supreme Court, without expressly addressing the matter of harmless

error (wh ich the state apparently never even raised), noted that

Dr. Grigson had testified

“(a) that Smith ‘is a ver y severe sociopath’; (b) that

‘he will continue his previous behavior’; (c) that his

sociopathic condition will ‘only get worse’; (d) that he

has no ‘regard for another human being’s property or for

their life, regardless of who it may be’; (e) that

‘[t]here is no treatment, no medicine . . . that in any

way at all modifies or changes this behavior’; (f) that

he ‘is going to go ahead and commit other similar or sameIn Estelle v. Smith , the Supreme Court affirmed the decision

of th is Court, S mith v. Estelle

, 602 F.2d 694 (5th Cir. 1979),

which in turn affirmed the district court’s grant of habeas relief.

We characterized Dr. Grigson’s testimony as “extremely damaging to

the defendant” and noted the parts of the doctor’s testimony later

mentioned by the Supreme Court and also other parts, such as “it is

not a stage he is going through. It’s only something he will

continue,” that the doctor said he was “absolutely

. . . convinced”

Smith was “on the far end of the sociopathic scale,” and that the

doctor said “certainly” Smith would commit similar acts in the

future. Id ., 602 F.2d at 697-698.

20 criminal acts if given the opportunity to do so’; and (g)

that he ‘has no remorse or sorrow for what he has done.’”

Estelle v. Smith , 101 S.Ct. at 1871. 13

Satterwhite was a direct appeal, and the Supreme Court applied

the Chapman harmless “beyond a reasonable doubt” st andard. The

Court found “it impossible to say beyond a reasonable doubt that

Dr. Grigson’s expert testimony on the issue of Satterwhite’s future

dangerousness did not influence the sentencing jury.” S atterwhite

,

108 S.Ct. at 1799. The Supreme Court described Dr. Grigson’s

testimony there as “powerful and unequivocal,” having given the

following summary of it:

“He stated unequivocably that, in his exper t opinion,

Satterwhite ‘ will present a continuing threat to society

by continuing acts of violence.’ He explained that

Satterwhite has ‘a lack of conscience’ and is ‘as severe

a sociopath as you can be.’ To illustrate his point, he

testified that on a scale of 1 to 1 0

—— w here ‘ones’ are

mild sociopaths and ‘tens’ are individuals with complete

disregard for human life

—— S atterwhite is a ‘ten plus.’

Dr. Grigson concluded his testimony on direct examination

with pe rhaps his most devastating opinion of all: he

told the jury t hat S atterwhite was beyond the reach of

psychiatric rehabilitation .” I d

. at 1799 (emphasis

added).

The contrast to Dr. Garcia’s testimony here could hardly be moreW e recognize that in Satterwhite the state had, in addition to

Dr. Grigson, other witnesses as to future dangerousness, including

a psychologist. However, the principal focus in S atterwhite was on

the nature and content of Dr. Grigson’s testimony, just as our

focus is principally on the nature and content of Dr. Garcia’s

testimony. The question, after all, is the effect of that

testimony, and it is therefore the testimony itself which must

initially be looked to. We are also aware that in S atterwhite the

Court observed that Dr. Grigson’s “testimony stands out

. . . because of his qualifications as a medical doctor specializing in

psychiatry” and that “Dr. Grigson was the only psychiatrist to

testify,” id

. at 1799, and that in th is case Dr. Garcia was

likewise the only psychiatrist to testify. Nevertheless, Dr.

Garcia affirmatively ind icated that a psychiatrist’s insight in

this respect was no more accurate than that of “members of the

judicial system,” so, unlike the situation in Satterwhite

, professional credentials and speciality were not of significant

importance here. Further, the facts and circumstances of this

offense were aggravated, savage, and brutal to a significantly

greater extent than in Satterwhite

. Finally, of course, and of

crucial importance, Satterwhite applied the more onerous “harmless

b eyond a reasonable doubt” Chapman standard, while we must ap ply

the less onerous standard of Brecht

.

21 complete. 14

It is also important to note that the constitutional

violations here are the examination of Woods by Dr. Garcia without

adequate Miranda warnings and without an opportunity to first

consult with counsel, contrary to the Fifth and Sixth Amendments as

made applicable to the states through the Fourteenth Amendment.

Estelle v. Smith

. Yet, as the district court observed,

“[b]asically, Dr. Garcia did not testify about the content of his

conversation with Petitio ner or Petitioner’s behavior during the

exam.” We also agree with the assessment of the state habeas court

that “[a] jury could not reasonably construe Dr. Garcia’s

testimony, including the cross-examination, as being influenced by

or derived from the court-ordered pretrial psychiatric examination

of Applicant” (see note 11, supra ). Moreover, the Texas Court of22

Criminal Appeals simila rly so concluded. E x parte Woods

, 745

S.W.2d at 26. We, of course, recognize that the prosecutor, by

first asking Dr. Garcia whether he had examined Woods, then asking

wha t sort of a psychiatric label he had ascribed to Woods, and

finally inserting the “kn owing his mental background as you do”

language into his lengthy hypothetical question just after

describing the ob jective facts of “that hypothetical situation,”

was attempting to have Dr. Garcia leave the impression with the

jury that his examination of Woods likely caused him to believe

Woods would commit future acts of violence. Certainly that attempt

was contrary to Estelle v. Smith

, because Woods received neither

adequate Miranda warnings nor the opportunity to consult with

cou nsel respecting the examination. But, the attempt was not

successful. Dr. Garcia plainly indicated that his examination

addressed only sa nity and competency, and the only testimony he

gave as to his findings o n examination was that in his opinion

Woods was competent. Dr. Garcia refused the prosecutor’s

invitation to put a psychiatric label on Woods or his personality,

and he further indicated on cross-examination that he made no

determination about whether Woods was an individual who could not

change. While the hypothetical question did include the “knowing

his mental background as you do” language, Dr. Garcia did not

answer the question as asked. Instead, he stated “[i]n relation to

the hypothetical question you presented, you described what sounds

like a very aggressive act,” an “aggressive and violent act in

association with a person that has committed similar violent acts23

in the past.” Dr. Garcia then asked that “the final part of the

question” be repeated. The prosecutor did so, but w ithout any

reference to “ knowing his background as you do,” instead merely

asking “[w]ould he be more likely to commit continued acts of

violence that would const itute a continuing threat to society?”

Dr. Garcia replied, “[m]y answer to that would be yes.” The plain

inference is that Dr. Garcia was speaking simply to what the

original question had labeled “that hypothetical situation” ( before

mentioning “knowing his background as you do”), namely a person who

had been convicted of attempted r ape in 1970 and sent to the

penitentiary, and, af ter release, committed the instant brutal

o ffense in 1975. That also is the reasonable reading of Dr.

Garcia’s reference to “a person in the hypothetical” in his answer

to the final question on cross-examination.

Woods points out that Dr. Garcia responded to the prosecutor’s

question “is what someone did in the past the best method” by

stating “[t]he things that have occurred in the past are associated

with the person at the time of examination.” However, Dr. Garcia,

whose testimony reflected he had not examined Woods concerning

future danger ousness, never stated that he made any such

“association” in respect to Woods. Indeed, he never testified that

Woods would be dangerous in the future. Moreover, immediately

after Dr. Garcia’s referenced answer came the following questions

and answers:

“Q. That includes considering what a person did in the

past?

A. That is correct.

Q. Is that what helped you to come to your answer aThis is consistent with the prosecutor’s statement in his

sentencing argument that “[t]he psychiatrist testified the past

conduct is one of the best ways to determine what somebody is going

to do in the future.”

W oods filed in the court below a September 25, 1990, affidavit

by Dr. Garcia in which he initially recounts his December 1975

examination of Woods, saying he “understood the examination was for

sanity and competency purposes only.” Woods relies on the

following statements in the affidavit:

“[T]he prosecutor asked me a long hypothetical question

relating to the future dangerousness of Mr. W oods but

inserted in that question a direction to me to consider

Mr. Woods’ mental background. I did as the prosecutor

asked and answered that question based no t only on the

facts stated to me in the prosecutor’s hypothetical but

also Mr. Woods’ background as it was known to me from my

examination. Therefore, my answer to the question was in

part influenced by and derived from my examination of Mr.

Woods in December of 1985 [sic].”

The state moved below to strike this affidavit on the grounds,

inter alia

, that “[n]either the affidavit nor the substance of its

conte nt were presented to the state courts” and Woods “offers

absolutely no reason why he could not have procured the affidavit

or the testimony of Dr. Garcia at an earlier time,” had been

“inexcusably neglectful in failing to present this evidence to the

state courts,” and “could easily have sought out Dr. Garcia long

before this.” Woods replied but offered no explanation whatever

24 minute ago about a hypothetical situation?

A. True.”

The “that” in the prosecutor’s above-quoted final question is most

reasonably understood as referring to the “what a person did in the

past” language from the immediately preceding question. 15

The message of Dr. Garcia’s opinion tes timony as to future

dangerousness

—— a s equivocal, uncertain, and confessedly not “very

accurate” as it was

—— is that it derived from and related to the acts

of violence detailed in the prosecutor’s question (and there

referred to as the “hypothetical situation”), not from Dr. Garcia’s

examination of Woods. 16for the failure to earlier procure the affidavit or present it to

the state courts. Indeed, he has not yet done so, though the state

has complained on this appeal of the district court’s denial of its

motion to strike. The district court denied the motion, saying it

“finds no evi dence” that Woods or his counsel “committed

inexcusable neglect.” However, the court made no reference to any

facts tending to excuse or explain the belatedness of the affidavit

or the failure to present it or its content to the state courts.

The district court stated “[t]he inexcusable neglect standard has

been equated to that of a ‘deliberate bypass’ standard,” giving a

“see also” citation to Townsend v. Sain

, 83 S.Ct. 745 (1963).

However, under Keeney v. Tamayo-Reyes

, 112 S.Ct. 1715 (1992),

handed down after the district court’s decision, the “deliberate

bypass” standard has been rejected for these purposes in favor of

the ordin ary “cause and prejudice” standard. We hold that as a

matter of law no “cause” (or anything even remotely approaching

cause) has been shown, and that the district c ourt erred in not

striking Dr. Garcia’s affidavit.

25 Woods relies on White v. Estelle

, 720 F.2d 415 (5th Cir.

1 9 83), as condemning under Smith future dangerousness opinion

testimony in response to hypothetical questions “thinly veiled and

patterning exactly” the defendant’s “prior criminal activity” and

“closely tailored to fit” the defendant “himself.” I d

. at 417.

However, there we observed that “[t]he questions had been preceded

by the testimony of each of the witnesses that t hey had examined

[the defendant] White and had concluded that he possessed an antisocial personality .” I d

. at 417 (emphasis added). Here, by

contrast, Dr. Garcia, although he stated he had examined Woods,

nevertheless expressly refused to put a psychiatric label on his

personality. Further, in W hite

, in affirming the district court’s

grant of habeas relief, we went on to state:

“ Dr. Brow n’s testimony in this regard was admittedly

based upon his court-ordered examination of White . Dr.

Brown testified that White had an anti-social

‘hedonistic’ personality (tied in by subsequent

ques tioning of the witness as being a ‘sociopath’), a

type of personality in which t reatment was bothS ee, e.g., the fo llowing from the cited pages of H olloway,

viz : “when a defendant is deprived of the presence and assistance

of his attorney, either throughout the prosecution or during a

critical stage in, at least, the prosecution of a capital offense,

reversal is automatic.” Id ., 98 S.Ct. at 1181.

26 unresponsive and with poor results

. . . oriented more or

less toward the moment and considered little in terms of

the future consequences of his acts, and that a sociopath

was characterized by an absence of remorse or guilt for

past crimes and an inab ility to profit from past

experience. The questioning was obviously directed

towards White’s propensity for future violence.” I d

. at

418 (emphasis added).

Again, nothing of the sort is present in Dr. Garcia’s testimony.

Finally, in White we declined to reverse the grant of habeas relief

on the basis of the state’s contention that the admission of the

testimony “was harmless beyond a reasonable doubt,” stating “[w]e

cannot conclude that evidence admitted on a crucial issue in

. . .

a capital case, in violation of W hite’s constitutional rights,

constituted harmless error beyond a reasonable doubt. See H olloway

v. Arkansas

, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 1181, 55 L.Ed.2d

426 (1978).” The cited passage of H olloway announces a rule of

automatic reversal. 17 After we handed down W hite

, the Supreme Court

in Satterwhite expressly rejected the Holloway automatic reversal

rule for Smith errors, and opted instead for the Chapman harmless

beyond a reasonable doubt standard. S atterwhite

, 108 S.Ct. at

1798. Later, in B recht

, the still more lenient Kotteakos “had

substantial and injurious effect or influence in de termining the

jury’s verdict” standard was adopted for habeas cases, as opposed

to direct appeals such as Satterwhite was. Woods’ reliance onW oods also cites Gholson v. Estelle

, 675 F.2d 734 (5th Cir.

1982), where we affirmed the grant of habeas relief for error in

admitting testimony of two psychiatrists, Drs. Holbrook and

Grig son, expressly based on their pre-trial examinations of the

defendant s contrary to S mith

. Dr. Holbrook “testified both

defendants were sociopaths” and that “their failure to demonstrate

‘remorse’ during the interview indicated there was a prob ability

they would commit criminal acts of violence in the future that

would constitute a continuing threat to society.” I d

. at 737. Dr.

Grigson testified “defendant Gholson was a sociopath ‘at the very

end of the scale in terms of severity’ and, if given the chance, he

would commit acts of criminal violence that would b e a threat to

society.” Id . “Both doctors testified that defendants exhibited

a lack of remorse, which was a quality, the doctors testified,

indicating a sociopathic tend ency” and “the doctors admittedly

relied upon defendants’ silence [at their pre-trial interviews with

the doctors] regarding their guilt or innocence in reaching their

conclusions.” Id . at 740. Obviously, all that is a far cry from

the present case. Further, while G holson does not address whether

an automatic rev ersal or some form of harmless error standard

applies, the concurring opinion there states “I cannot say, as

Texas urges, that we can conclude that the constitutional errors

were harmless beyond a re asonable doubt.” I d

. at 745. Clearly,

Gho lson

— — decided before Satterwhite and Brecht but after

Holloway

—— applied either a Chapman standard or a Holloway automatic

reversal approach. Gholson , like White , is inapposite.

27 White is misplaced. 18

To show prejudice and that Dr. Garcia’s future dangerousness

testimon y would be considered as based on his pre-trial

examination, Woods points to statements in the prosecutor’s closing

sentencing argument, namely,

“And talking about this particular defendant, the pain he

probably would cause in the future, a s Dr. Garcia told

you, Dr. Garcia testified from the hypothetical

situation, where the facts of this case were the same,

after he had talked to this defen dant he formed an

opinion as to what this defendant would do if he had done

that type of act. He said that it was more likely than

not the defendant would commit vi olent acts in the

future. That’s what Dr. Garcia testified to. The

psychiatrist, he’s talked to the defendant

. He’s trained

i n that area. You don’t have to take his word for it.

It’s your final decision to make, as it should be. But

that’s what he said, that’s what he testified to.”

(Emphasis added).T he prosecutor’s other brief inference s to Dr. Garcia’s

testimony were essentially efforts to m itigate its aspects that

were unfavorable to the prosecution. Thus, the prosecutor argued

“No way we can prove to an absolute c ertainty what the defendant

would do in the future, and Dr. Garcia testified to that.” What

Dr. Garcia actually said, however, was that prediction was not

merely short of “an absolute certainty,” but was not even “very

accurate.” Again, the prosecutor argued “But there’s some people,

ladies and gentlemen, as the Dr. testified, there are some people

who never change

. . . .” While Dr. Garcia did say this, he did

not say (and the prosecutor did not assert that he did) that Woods

was such a person; in fact, Dr. Gar cia expressly declined to so

state.

W hile the argument in this respect improperly went beyond Dr.

Garcia ’s testimony, complaint in that particular respect is

procedurally barred by failure to object, as the state habeas court

28 And, a few pages later in the transcript,

“.

. . we can prove to you there’s a probability he will

[commit violent acts], and that’ s as close as you can

ever get an d Dr. Garcia testified to that, more likely

than not the defendant would commit a violent act in the

future.” 19

However, Dr. Garcia did not testify that his opinion, that one who

committed an offense like the instant one five years after being

sentenced to the penitentiary for rape would be “more likely” to

commit continuing acts of violence, was based on his examination of

Woods. The doctor’s testimony refused to relate anything about his

examination of Woods specifically (other than that he had examined

h im for competence and found him to be so), and hence indi cated

that his said opinion was n ot based on his examination. Nor did

the prosecutor expressly assert t hat Dr. Garcia’s referenced

opinion was actually (or likely) based on his examination of Woods

(or that Dr. Garcia had so testified); he rather sought to

inferentially and indirectly suggest that such was likely the

case. 20found (see note 11, supra ).

The Court stated:

“The District Attorney highlighted Dr. Grigson’s

credentials and conclusions in his closing argument:

‘Doctor James Grigson, Dallas psychiatrist and

m edical doctor. And he tells you that on a

range from 1 to 10 he’s ten plus. Severe

sociopath. Extremely dangerous. A continuing

threat to our society. Can it be cured?

W ell, it’s not a disease. It’s not an

illness. That’s his personality. That’s John

T. Satterwhite.’” Id

.

29 We recognize that a prosecutor’s argument is properly looked

to and taken into account in evaluating whether certain testimony

was prejudicial. Indeed, in S atterwhite the Court called attention

to the prosecutor’s argument respecti ng Dr. Grigson’s testimony.

Id ., 108 S.Ct. at 1799. 2 1 But there is a crucial difference. In

Satterwhite , as we have noted, Dr. Grigson’s testimony was both

confessedly based on his examination of the defendant and “powerful

and unequivoc al.” The prosecutor there, who accurately

characterized Dr. Grigson ’s testimony, was recalling to the jury

and bringing into its focus “the powerful content of his [Dr.

Grigson’s] message.” I d

. Not so here. Here the prosecutor was

trying to make an imitation silk purse out of the sow’s ear which

was Dr. Garcia’s testimony. And he tried to exercise some damage

control in that respect. But there is no reasonable likelihood

that he changed the impact of Dr. Garcia’s testimony in the minds

of the jury. We must come back to what that testimony actually

was. As noted, it was equivocal, uncertain, and confessedly not

“very accurate,” and it did not purport to be based on examinationC f. Joiner v. State

, 825 S.W.2d 701, 704 (Tex. Crim. App.

1992) (“‘.

. . the circumst ances of the offense and the facts

surrounding it may furnish grea ter probative evidence than any

other evidence regarding the prob ability of future acts of

violence.’ A lexander v. State

, 740 S.W.2d 749, 761 (Tex. Crim.

App. 1987)”), cert. denied

, 113 S.Ct. 3044 (1993). S ee also, e.g.,

Holland v. State

, 761 S.W.2d 307, 325 (Tex. Crim. App. 1988) (“such

circumstances [of the charged offense] may alone, if severe enough,

be sufficient to support an affirmative answer to the second

30 of Woods or assessment of his personality. Without pretense of

special insight beyond that generally possessed by “members of the

judicial system,” Dr. Garcia simply made the common sense

observation

—— obvio u s to the jury anyway

—— that one who, having

recently been released from prison for attempte d rape, had

committed such a brutal and savage offense as shown by the evidence

here, was “more l ikely”

— — presumably “more likely” than those not

having committed such offenses

—— to commit future acts of violence.

The complained of references to Dr. Garcia’s testimony

constitute less than a tenth of the prosecutor’s sentencing

argument. The real strength of the prosecution case on future

dange rousness was the nature of the crime itself

— — the late night

entry into a stranger’s upstairs apartment, the extended and

repeated hands-on, brutally savage beating, mauling, and sexual

abuse of the sixty-three year old, ill and crippled female victim

until, bloody and smeared with feces, she eventually died with a

fractured skull and hyoid bone fractured on both sides

—— coupled with

the 1970 conviction and fifteen- year sentence for attempted

aggravated rape in 1969, from which Woods had doubtless not long

been released from prison when the instant offense was committed in

1975. 22 This was the main focus and theme of the prosecutor’sinterrogatory”), cert. denied

, 109 S. Ct. 1560 (1989); C arter v.

State

, 717 S.W.2d 60, 69 (Tex. Crim. App. 1986) (“.

. . the

circumstances of the capital offense charged, if severe enough, can

be sufficient to sustain an affirmative finding as to a defendant’s

likelihood to commit future acts of violence”), cert. denied , 108

S.Ct. 467 (1987); Santana v. State

, 714 S.W.2d 1, 8 (Tex. Crim.

App. 1986) (same).

The prosecutor went on to argue:

“The only answer to number two, is there a

31 sentencing argument from beginning to end. Thus, for example, the

prosecutor argued:

“I don’t see how any reasonable person listening to

this evidence, seeing this picture, it’s not fun to look

at. But it’s very necessary, ladies and gentlemen, for

you, in such an important position as you are in, to know

exactly what went on in that apartment, because this

particular defendant was there do ing it and he was

hitting that lady with his fists and he was actually

doing the brutal things that you see in these pictures

and I think you have every right to see them and a duty

to look at them and consider what he would do in the

future. If that doesn’t indicate or prove to you beyond

a reasonable doubt that he would be more likely than not

to commit a violent act in the future, I don’t see

whatever could. That’s even if he had never done

anything before. What kind of a person does it take to

do that, to absolutely beat someone that much? Can you

i magine how many times he had to hit that lady or kick

or, whatever he did, how many times he continued to do it

and strangled her to make sure she was dead, over and

over again? What I just can’t see anybody saying, ‘Well,

a person like that, will do something like that, probably

wouldn’t commit a violent act in the future.’ How could

you say that? I don’t see how you could, especially

faced with the fact what he had done in the past, just

five years ago, and you can take those penitentiary

records back in the jury room. I think you have already

read them pretty closely, and there is his picture. It

doesn’t look like he does today in his suit. He didn’t

look like he does today when he took Mrs. Ehatt’s life.

Look at that. Is that what he fashioned himself as?

Savage [Woods’ shirt had ‘savage’ on it]? And is our

society supposed to just sit by and let so mebody like

that have the opportunity to pummel someone into oblivion

with a record like he’s got, of the similar type felony

committed just five years earlier?” 23probability he will commit violent acts in the future, and the

actual wording probability the defendant would commit criminal acts

of violence that would constitute a continuing threat to society,

if he would not be a continuing threat to society, I don’t know who

would, ladies and gentlemen. I just don’t see how you could ever

have a case more in need of a yes answer than this. . . . I don’t

see how any case or any defendant’s actions could ever be

demonstrated any more graphically than he has left for you, the

defendant, this trail of felony conviction for attempted rape and

this poor lady that just happened to be home that morning at three

o’clock in the morning. It could have been anybody I guess, he

just happened to see her through the window or break in her back

door, then turn on the light.”

Earlier the prosecutor had referred to “people who would do a premeditated act, break into somebody’s house and killing the

people inside. What type of thinking does that take? That’s the

type of person that’s going to continue to do that type of thing in

the future.” Later, the prosecutor urged that Woods had

“demonstrated he’s not going to be changed twice now.” Earlier, he

had pointed out that Woods “attempted to rape a woman by force and

arms in 1970, got fifteen years for that and gets out, in 1975 does

the same thing or goes a little farther that time, to say the

least, and actually kills the lady.” Still earlier, the prosecutor

noted that the photographs in evide nce “doesn’t [sic] even come

close to getting you to understand what she [Ehatt] felt like when

she went through that hor rible death. And how much time it took

her to die, we don’t know, but those little photographs I’m sure

don’t scratch the surface of what she felt when she left the

earth.”

32 After the jury ha d returned its answer to the punishment

special issues and been polled, the trial judge thanked them for

their service, and went on to state, apparently spontaneously:

“First I want to say that, I want to commend the

attorneys, both the state and defense. Also, for what

it’s worth to you, I agree with your ve rdict. I was

district attorney for about eight years, and to me, this

was one of the most unconscionable, brutal, vicious

slayings I’ve ever even known, and in view of his past

record, conduct and viciousness of this case, I want you to appreciate your service.”

We concl ude that under the B recht standard Dr. Garcia’s

testimony and the prosecutor’s argument respecting it did not have

a substantial and injurious effect or influence in determining the33

jury’s verdict.

II. Other Contentions

A. Woods asserts that “[t]he operation of the Texas capital

sentencing scheme in this case forced defense counsel to withhold

available mitigating evidence, thereby depriving Mr. Woods of his

right to the assistance of counsel, and to an individ ualized

sentencing determination.”

This claim is without merit. We have consistently held that

a Penry v. Lynaug h , 109 S.Ct. 2934 (1989), claim may not be

predicated on “evidence” which was not offered or tendered

(conditionally or otherwise) at trial. S ee, e. g., Briddle v.

Scott

, 63 F.3d 364, 377-378 (5th Cir. 1995), and cases cited

therein. “We have likewise consistently rejected the related

argument th at the Texas statutory capital sentencing scheme is

invalid as preventing or chilling defense counsel’s development of

mitigating evidence.” Id . at 378, citing Lakey v. Scott , 28 F.3d

486 at 490 (5th Cir. 1994), cert. denied , 115 S.Ct. 743 (1995);

Crank v. Collins

, 19 F.3d 172 at 176 (5th Cir.), cert. denied

, 114

S.Ct. 2699 (1994); B lack v. Collins

, 962 F.2d 394 at 4 07 (5th

Cir.), cert. denied

, 112 S.Ct. 2983 (1992); May v. Collins

, 948

F.2d 162 at 166-68 (5th Cir. 1991), cert. denied

, 112 S.Ct. 907

(1992).

B. Woods next claims that the T e xas punishment special

issues function as aggravating circumstances, but are

unconstitutionally vague for this purpose absent proper limiting

instructions, and hence violate the rule of Maynard v. Cartwright

,34

108 S.Ct. 1853 (1988), and Walton v. Arizona

, 110 S.Ct. 3047

(1990). We rejected essentially the same contention in J ames v.

Collins

, 987 F.2d 1116, 1119-20 (5th Cir.), cert. denied

, 114 S.Ct.

30 (1993), and consequently we ov errule Woods’ claim in this

respect. In J urek v. Tex as , 96 S.Ct. 2950, 2955-57 (1976), the

Court held that the constitutionally required narrowing function,

performed in many other jurisdictions at the sentencing phase by

aggravating circumstances, under the Texas scheme was adequately

performed at the guilt/innocence stage by the narrow categories of

murder meeting the statutory definition of capital murder, the only

offense for which the death sentence could be imposed. This

analysis was confirmed in Lowenfeld v. Phelps

, 108 S.Ct. 546, 554-

555 (1988). In such a setting, further narrowing is not required

at the punishment phase. Lowenfield at 555. Further, Jurek held

that the Texas punishment phase issues do not function as

aggravating circumstances, id

. at 2956, but rather adequate l y

“guide and focus the jury’s o bjective consideration of the

particularized circumstances of the ind ividual offense and the

individual offender before it can impose a sentence of death.” I d

.

at 2957. J urek expressly rejects the contention that the second

punishment issue is impermissibly vague. I d

. at 2957-58. We have

likewise frequently rejected challenges to the lack of definition

of diverse terms in the first two punishment special issues. See

Milton v. Procunier

, 744 F.2d 1091, 1095-96 (5th Cir. 1984)

(“deliberately,” “probability,” and “criminal acts of violence”

“have a plain meaning of sufficient content th at the discretion35

left to the jury” is “no more than that inherent in the jury system

itself”), cert. denied

, 105 S.Ct. 2050 (1985); Thompson v. Lynaugh

,

821 F.2d 1054, 1060 (5th Ci r.) (“deliberately” and “reasonable

doubt” need not be defined as their “common meaning is sufficiently

clear to allow the jury to decide the special issues on

punishment”), cert. denied

, 108 S.Ct. 5 (1987); James at 1120 (not

necessary to define “deliberately,” “probability,” “criminal acts

of violence,” or “continuing threat to society”); N ethery v.

Collins

, 993 F.2d 1154, 1162 (5th Cir. 1993) (not necessary to

define “deliberately,” “probability,” or “soc iety”). S ee also

Pulley v. Harris

, 104 S.Ct. 871, 879 n.10 (1984) (Texas punishment

issues are not impermissibly vague as they have “a common sense

core of meaning”).

C. Woods claims he was denied effect ive assistance of

counsel in that his counsel did not present evidence of Woods’

“history as an abused child” before he was adopted at approximately

age eight or of his allegedly being mentally ill. The state habeas

court rejected these contenti ons. Defense counsel’s affidavits,

findings in accordance with which were made by the state habeas

court, reflect that counsel determined not to focus on Woods’ preadoption family life because Woods was twenty-nine at the time of

the offense and his brother, adopted at the same time and raised in

the same household, had no propensity for violence or criminal

behavior. Woods was lucid and communicative in the presence of

counsel, exhibited no indication of mental disorder, and was

capable of communicating with and understanding counsel. As a36

precautionary measure, counsel had him examined by psychiatrist Dr.

Byrd, known to be defense-ori ented, who found Woods competent to

stand trial and sane at the time of the offense. Dr. Byrd

characterized Woods as anti-social and mean and told counsel “that

I did not want him (Dr. Byrd) to testify. ” The results of Dr.

Byrd’s examination were “so devastating” from a defense standpoint

that counsel requested Dr. Byrd not to prepare a report.

“Considering that Dr. Byrd was more defense-oriented in his

evaluations than most psy chiatrists” counsel “thought it best to

refrain from psychiat ric testimony in Mr. Woods’ trial.”

Similarly, counsel were aware that Woods “had experienced problems

with alcohol abuse” but, as a matter of trial strategy, elected not

to introduce evidence of this because of counsel’s experience that

voluntary drug and alcohol abuse is not considered mitigating

evidence by jurors. Woods does not assert that these findings of

historic fact are not entitled to the presumption of correctness

under 28 U.S.C. § 2254(d) or that the district court, which relied

on counsel’s affidavits in this respect, erred in not affording an

evidentiary hearing as to these facts. We conclude that the

failure of de fense counsel to further explore psychiatric or

psychological examination or evidence, or matters concerning Woods’

problems with alcohol abuse or his early childhood, does not in

these circumstances constitute constitutionally deficient

performance under Strickland v. Washington

, 104 S.Ct. 2052 (1984).

See, e.g., Andrews v. Collins

, 21 F.3d 612, 623-24 (5th Cir. 1994).

Moreover, these avenues of explor ation are potential two-edgedT he only reference in Woods’ briefs in this Court to an

evidentiary hearing is a single sentence, unsupported by argument

or citation of authority, and not set out as a separate contention

or ground of error, in Wood s’ reply brief that “[a]t the very

minimum, an evidentiary hearing on the issue is necessary at which

the relative credibility of counsel and the adoptive parents could

be weig hed.” This does not suffice to preserve the matter for

appellate review. S ee, e .g., Stephens v. C.I.T. Group Equipment

Financing, Inc ., 955 F.2d 1023, 1026 (5th Cir. 1992). See also,

e.g., United States v. Hoster , 988 F.2d 1374, 1383 n.25 (5th Cir.

1993); United States v. Collins

, 972 F.2d 1385, 1393 n.5 (5th Cir.

37 swords, and the instant case was tried before P enry

. In such

circumstances, counsel is not constitutionally deficient for

failing to anticipate Penry

. S ee May v. Collins

, 904 F.2d 228, 234

(5th Cir. 1990) (Judges Reavley and King concurring), cert. denied

,

111 S.Ct. 770 (1991). C f. Smith v. Collins

, 977 F.2d 951, 960 (5th

Cir. 1992), cert. denied , 114 S.Ct. 97 (1993) (that there was not

“cause” excusing counsel’s procedural default does not mean that

counsel’s performance was constitutionally deficient).

There is a conflict in the affidavits before the state habeas

court respecting the degree of contact between defense counsel and

Woods’ adoptive parents, and whether the latter indicated the

desire not to testify. The state habeas court credited the

affidavits of defense counsel, finding th at the adoptive parents

expressed their unwillingness to testify. We have held that such

findings are entitled to a presumption of correctness under section

2254(d). S ee Briddle at 378 n.27; C arter v. Collins

, 918 F.2d

1198, 1202 (5th Cir. 1990) (citing cases). Woods does not argue

that this finding is not entitled to the section 2254(d)

presumption, or that the district court erred in denying him an

evidentiary hearing. 24 B ut even if the adoptive parents’ affidavits1992).

T here is no evidence Woods was intoxicated at the time of the

offense.

38 are accepted as accurate, no showing of prejudice is made. Their

affidavits were essentially t hat Woods had generally been a good

b oy, but started drinking when his brother went in the army, and

later was admitted to the state hospital for brief stays on two

occasions , once in 1965 and once in 1966 or 1967, “for help with

his drinking problems.” After this, he married and settled down,

but was later divorced. The affidavits indicate that the adoptive

parents essentially lost contact with Woods after he moved to

Louisiana some time in or before 1969.

However, counsel had made the strategic decision not to go

into Woods’ drinking problems 25 or to further explore psychiatric

evidence after Dr. Byrd’s evaluation, and, as noted , these

decisions were not constitutionally defic ient, and such evidence

clearly had the potential to backfire. As to the balance of what

is reflected in the affidavits of Woods’ adoptive parents

—— indeed,

as to the entirety of what is stated therein

—— there is no reasonable

probability that had such information been presented at trial the

result would have been different, and nothing in these affidavits

undermines our confidence in the outcome. Thus the S trickland

prejudice prong is not satisfied. See, e.g., Glass v. Blackburn

,

791 F.2d 1165, 1170-71 (5th Cir. 1986) (no reasonable probability

of different result from putative mitigating testimony of relatives

and friends who would plead for defendant’s life and describe hisW oods also complains of two brief sentences in counsel’s

argument about not calling his parents and Woods not being a “good

guy.” This was done to diffuse the prosecutor’s possible comments

in this respect, and we are unable to say that it was either

constitutionally deficient or that there is any reasonable

probability that but for these remarks the result would have been

different.

In a footnote on page 75 of his brief, Woods asserts that his

counsel rendered ineffective assistance on appeal and on the first

of his three state habeases. We reject this contention as facially

deficient. There is no constitutional entitlement to counsel on

state habeas (nor, for that matter, does Woods specify any

deficiencies or prejudice). S ee Co leman v. Thompson , 111 S.Ct.

2546 (1991). Woods (among other things) does not specify any

argument not made which if made would probably have (or even which

he contends would probably have) resulted in reversal on direct

appeal; he thus fails to allege prejudice. There was plainly no

total denial of counsel on appeal.

39 difficult home life as a youth, his father’s alcoholism, and his

sensitive and decent nature, in light of the nature of murders and

“the mental anguish endured by the victims, leading up to and

during their senseless murders

. . . [which] was exquisite”). S ee

also Andrews at 624; Callins v. Collins

, 998 F.2d 269, 278-79 (5th

Cir. 1993), cert. denied

, 114 S.Ct. 1127 (1994); Wilkerson v.

Collins

, 950 F.2d 1054, 1065 (5th Cir. 1992), cert. denied

, 113

S.Ct. 3035 (1993). 26

Woods’ complaints of ineffective assistance of counsel fail to

meet the Strickland criteria, and are therefore rejected.

D. Woods next contends t hat the Texas Court of Criminal

Appeals, in ruling on his ineffective assistance of counsel claims

in his second and subsequent habeas petitions, denied him equal

protection of the laws by applying the Strickland test rather than

“the less stringent ‘totality of the circumstances’ standard” of Ex

parte Duffy

, 607 S.W.2d 507 (Tex. Crim. App. 1980), which thatSee Nichols v. Scott , 69 F.3d 1255 at 1275 (5th Cir. 1995),

and authorities there cited.

T he jury was, of cou rse, at the same time told it could not

answer any special issue “yes” unless all twelve concurred in that

answer. If the requisite agreement (either way) was not achieved,

there would be no verdict, and a mistrial would follow.

40 court applies when reviewing claims that counsel was ineffective at

sentencing in non capital cases, citing Ex parte Walker

, 777 S.W.2d

427, 431 (Tex. Crim. App. 1989). Even laying to one side the rule

that deficiencies in state habeas proceedings do no t constitute

grounds for section 2254 relief as to the underlying conviction, 27

Woods’ complaint in this respect lacks merit. Capital defendants

are not any s ort of suspect class, and so only rational basis

scrutiny applies. G ay v. Lucas , 677 F.2d 1086, 1104 (5th Cir.

1982), cert. denied , 103 S.Ct. 1886 (1983). As expressly pointed

out in Strickland

, there is a rational basis for concluding that

the role of counsel in noncapital sentencing , which typically is

more informal and involves essentially “standardless discretion in

the sentencer,” “may require a different approach to the definition

of constitutionally effective assistance” than that appropriate to

capital sentencing w hich “is sufficiently like a trial in its

adversarial format and in the existence of standards for decision

. . . that co unsel’s role in the proceeding is comparable to

counsel’s role at trial.” Strickland at 2064.

F. Claim is also made that the instruction that the jury

could not answer any punishment special issue “no” unless at least

ten jurors concurred in that answer violated the rule of Mills v.

Maryland , 108 S.Ct. 1860 (1988). 28 We reject this contention.W e note that the trial court instructed the jury at sentencing

that it was not to consider the length of time Woods would serve to

satisfy a life sentence. There was no objection to this

instruction and Woods has not complained of it in this proceeding.

J urors are presumed to follow their instructions, Richardso n v.

Marsh

, 107 S.Ct. 1702, 1707 (1987), and there is no reason to

assume that they did not do so in this instance.

41 As we pointed out in Jacobs v. Scott

, 31 F. 3d 1319, 1328-29

(5th Cir. 1994), cert. denied

, 115 S.Ct. 711 (1995), this claim

lacks substantive merit as the instructi on at issue is wholly

dissimilar to that involved in Mills

. Further, Woods’ sentence

became final in 1981, many years before Mills was handed down, and

a ccordingly, as we held in Nethery

, 993 F.2d at 1162, and in

Cordova v. Collins

, 953 F.2d 167, 17 2-73 (5th Cir. 1992), it is

barred under Teague v. Lane , 109 S.Ct. 1060 (1989), as a new rule

not dictated by precedent existing when Woods’ conviction became

final.

G. Woods urges that Texas law unconstitutionally prevented

him from presenting at the sentencing hearing “an expert prepared

to testify that he would be required by l aw to serve at least 20

years in prison before becoming eligible for parole.” We note that

although the prosecutor argued future dangerousne ss, he did not,

contrary to what Woods seems to contend, ever argue or suggest that

Woods would or might be paro led if not sentenced to death, much

less that he might be paroled sooner than twenty years. 2 9 Woods

relies on Simmons v. South Carolina

, 114 S.Ct. 2187 (1994), but

Simmons

—— decided long after Woods’ conviction became final

—— involved

a statutory bar against ever being paroled.

We conclude that to apply Simmons here would violate theI n Andrade v. McCotter

, we found that the following claim did

not state a valid basis for a certificate of probable cause, viz :

“During the punishment phase deliberations, the jury

asked if Andrade would be eligible for parole if he

receiv ed a life sentence. Andrade asked the court to

instruct the jury that one convicted of capital murder

would not be eligible for parole until after serving 20

years. The court declined to answer the inquiry.” Id

. at 1190.

42 nonretroactivity principle of Teague

. S ee Allridge v. Sc ott , 41

F.3d 213, 222 n.11 (5th Cir. 1994), c ert. denied

, 115 S.Ct. 1959

(1995). Even apart from T eague

, we would have to reject Woods’

claim, for the same reasons we have rejected similar claims that

juries must be informed of Texas parole laws (which at no time have

prevented parole from ever being given). S ee Allridge at 220-222;

King v. Lynaugh

, 850 F.2d 1055, 1060 (5th Cir. 1988) (en banc),

cert. denied , 109 S.Ct. 820 (1989); Andrade v. McCotter , 805 F.2d

1190, 1192 (5th Cir.), stay denied

, 106 S.Ct. 1524 (1986); 30 O’Bryan

v. Estelle

, 714 F.2d 365, 388-89 (5th Cir. 1983), cert. denied

, 104

S.Ct. 1015 (1984). C f. California v. Ramos

, 103 S.Ct. 3446, 3458-

60 (1983). There is little reason to believe that a jury would

conclude that Woods would not con stitute a danger to society

(including that of the prison in which he would be incarcerated) if

he were released in twenty years but would constitute such a danger

if releas ed in twelve or fourteen years. C f. King at 1061.

Indeed, as we remarked in King

, “a suggestion to prospective jurors

that” the defendant “might return to [free world] society in twenty

years could very easily have predisposed them to impose a death

sentence.” I d

. A state can legitimately conclude that it isA nd, contrary to the suggestion in Woods’ present brief, there

is nothing to indicate that he ever had available or sought the

services of any parole “expert.” Moreover, Woods never objected to

the portions of the prosecutor’s punishment argument he now calls

attention to (and mischaracterizes) in this connection. This also

was found a procedural bar by the state habeas court.

43 pre ferable to instruct the jurors, as they were instructed here

(see note 29, supra ), not to consider su ch matters. S ee Ramos

.

That is distinct from the Simmons situation where there can never

be parole.

Finally, in any event the claim is procedurally barred, as

ruled by the state habeas court in Woods’ final state habeas.

Woods never offered or tendered any evidence concerning when he

would be eligible for parole, and never requested any instruction

in that regard, nor in any other manner ever ra ised the present

issue at trial. There is indeed nothing to suggest that Woods had

any desire at all to have parole considerations brought to the

jury’s attention. 3 1 For all the record reveals, he might have

objected to any such action. Woods has not shown

— — or attempted to

show

—— cause for the failure to raise this matter at trial. It is

procedurally barred. S ee McCoy v. Lynaugh

, 874 F.2d 954, 958 (5th

Cir.), stay denied , 109 S.Ct. 2114 (1989).

G. Complaint is next made that the prosecutor violated Booth

v. Maryland

, 107 S.Ct. 2529 (1987), and South Carolina v. Gathers

,

109 S.Ct. 2207 (1989), by introducing the testimony of the victim’s

sister, which Woods characterizes as “wholly unnecessary,” and by

references to the sister in t he prosecution’s sentencing phase

argument. Woods fails, however, to cite P ayne v. Tennessee

, 11144

S.Ct. 2597 (1991), which largely overruled Booth and Gathers . We

reject Woods’ contention.

To begin with, this claim is procedurally barred, as the state

habeas court ruled, because no objection was made to the sister’s

testimony or to the now complained of portions of the prosecution’s

argument. No “cause” for the failure to object is shown or even

claimed.

Further, we see no constitutional violation under Payne

. The

sister’s testimony identi fied the decedent, as the state had the

burden to do, and established that she had to use a walker, was

weakened by illness, and was sixty-three and lived alone; and the

sister likewise identified the pill bottle and bracelet in Woods’

possession as the decedent’s, establishing the robbery element of

the capital murder. The prosecutor’s two brief, passing references

to the sister’s painful sorrow were not so inflammatory as to

render the sentencing proceeding “fundamentally unfair.” S ee Payne

at 2608, 2612, 2614. There was no argument or evidence concerning

the “opinions of the victim’s family about the crime, the

defendant, and the appropriate sentence.” I d

. at 2612. The state

may properly determine that “for the jury to assess meaningfully

the defen dant’s moral culpability and blameworthiness, it should

have before it at the sentencing phase evidence of the specific

harm caused by the defendant.” Id . at 2608.

We reject Woods’ contentions in this respect.

H. Based on examination in 1988 by a psychologist retained

by Woods’ habeas counsel, it is contended that Woods is a person ofT he psychologist’s report (also quoted i n part in note 7,

supra ) s ays, “The result of IQ testing showed that Mr. Woods is

functioning in the Low Average range of intelligence but his true

intellectual potential is probably higher than is indicated by this

classification.” The report also says Woods was “alert, friendly

and cooperative

. . . oriented appropriately to time, person and

place; no signs indicative of delus ions or hallucinations were

evident,” and that “both receptive and expressive commun ication

modalities were intact and functional, and the same was true of

short- and long-term memory. No signs or symptoms indicative of

lateralized brain damage were observed, and there was no evidence

of bilateral weakness or motoric dysfunctions.” The report further

states that although Woods’ “psychological functioning presently is

less than average intellectually,” nevertheless “he possesses

sufficient ps ychological resources for a better than average

adjustment.”

T hree doctors and both his lawyers considered Woods competent

to stand trial. In a 1990 affidavit, Woods states that during the

tri al he “rarely received more than two or three hours sleep a

night” and “[c]onsequently, it was very difficult for me to stay

awake and to pay attention and understand what was going on at the

trial.” This says, at most, that it was “very difficult,” not that

Woods could not and did not do so. Reference is also made to

counsel’s affidavit stating that “on several occasions” he had to

“nudge” Woods “to keep him awake” during trial. But this same

affidavit, as well as other counsel’s, plainly reflect that Woods

was competent and “always lucid and communicative in our presence”

and “capable of communicating with and understanding his counsel.”

This does not show incompetency. See McCune v. Estelle , 534 F.2d

611, 612 (5th Cir. 1976). It does not suffice to “positively,

unequ ivocally and clearly generate a real, legitimate and

substantial doubt as to the mental capacity” of Woods. See

Enriquez v. Procunier , 752 F.2d 111, 114 (5th Cir. 1984).

45 borderline mental retardation and is immature and is therefore not

now eligible for execution. We reject this claim. Woods

overstates the psychologist’s conclusions, 32 but in any event his

claim is foreclosed by Penry , 109 S.Ct. at 2956-58.

I. Woods next contends that he was incompetent t o stand

trial due to sleep deprivation. No evidence supports this

contention. 33 Further, the state habeas court concluded Woods was

competent and there is no contention that its findings in this46

respect are not entitled to the presumption of correctness. We

reject this contention.

J. The remaining and final complaint raised by Woods on this

appeal is that introduction of eight photographs of the deceased’s

body viol ated Woods’ Eighth Amendment right to a fair trial. We

reject this contention.

“In reviewing state evidentiary rulings, our role is limited

to determining whether a trial judge’s error is so extreme that it

constituted denial of fundamental fairness.” Evans v. Thigpen

, 809

F.2d 239, 242 (5th Cir.), cert. denied

, stay denied

, 107 S.Ct. 3278

(1987) (quoting Mattheson v. King

, 751 F.2d 1432, 1445 (5th Cir.

1985), cert. dismissed

, 106 S.Ct. 1798 (1986)); Herrera v. Collins

,

904 F.2d 944, 949 (5th Cir.), cert. denied , 111 S.Ct. 307 (1990).

Under Texas law, photographs are admissible regardless of

their inflammatory nature if they are competent, material, and

relevant, and unless they are offered solely to inflame the minds

of the jury. S ee, e.g., Reimer v. State

, 657 S.W.2d 894, 896 (Tex.

App.

—— Corpus Christi 1983, no writ). Even inflammatory photographs

introduced primarily to inflame the jur y are nevertheless

admissible. Id

.

The photographs were introduced durin g the testimony of the

police officers who discovered the body and arrested Woods at the

apartment. In addition to identifying the deceased, the

photographs served to illustrate and make more understandable the

officers’ te stimony which described the apartment and its

c ondition, and the location and condition of the deceased’s b ody47

and the nature and extent of the injuries to the deceased. These

are certainly legitimate purposes. Woods does not contend that any

of the photographs were unrepresentative or misleading respecting

either the condition of the victim or the crime scene. Moreover,

he in essence does not dispute that introduction of three or “even”

four such photographs would have been permissible, but contends

that eight was, in effect, overkill. However, as the district

court observed, each of the photographs, with the sole exception of

numbers 3 and 4, shows injuries and details that the others do not.

It is entirely clear that photographic evidence of the kind

introduced was entirely proper, and that to the extent more was

used than appropriate this did not go so far as to render Woods’

trial fundamentally unfair.

Conclusion

Woods’ appeal fails to demonstrate any reversible error in the

district court’s denial of habeas relief. Accordingly, the

judgment of the district court is

AFFIRMED.