IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-70018

KENT WILLIAM SPROUSE, 

 Petitioner–Appellant,

versus

WILLIAM STEPHENS, Director, 

Texas Department of Criminal Justice, Correctional Institutions Division,

 Respondent–Appellee.

Appeal from the United States District Court 

for the Northern District of Texas

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

A jury found Kent Sprouse guilty of the capital murder of a police officer,

and he was sentenced to death. Among many other issues raised on direct 

appeal and on state habeas corpus review, Sprouse challenged the jury 

instructions given during the guilt phase of his trial. He claimed that the

instructions, in violation of the Eighth Amendment, effectively precluded the 

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2014

Lyle W. Cayce

Clerk

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jury from considering voluntary intoxication as mitigating evidence. The 

Texas Court of Criminal Appeals (“TCCA”) rejected that argument. On federal 

habeas review, Sprouse contends that the state court unreasonably applied 

Penry v. Lynaugh (“Penry I”), 492 U.S. 302 (1989), Boyde v. California, 494 U.S. 

370 (1990), and Penry v. Johnson (“Penry II”), 532 U.S. 782 (2001). We disagree 

and affirm the denial of the habeas petition. We also decline to grant a certificate of appealability (“COA”) on any of the additional issues Sprouse raises.

I.

In 2002, Sprouse entered a convenience store with a shotgun hung over 

his shoulder and, after returning to his vehicle, fired his weapon in the direction of two men. Then another customer saw Sprouse working on his vehicle 

and Pedro Moreno, yet another customer, filling his truck with gas. The customer noticed Sprouse attempting to speak to Moreno, who did not respond. 

Sprouse then reached into his vehicle, pulled out a gun, and shot and killed 

Moreno.

Officer Harry Steinfeldt, dressed in uniform and driving a police vehicle, 

responded to the shooting. When he arrived, before turning toward Sprouse’s 

car, he noticed Moreno on the ground. As he turned, Sprouse shot him twice. 

Steinfeldt returned fire but died from his injuries. A second officer arrived and

took Sprouse into custody. Sprouse was transported to a nearby hospital, 

where a doctor thought he was under the influence of drugs. Testing revealed 

he had consumed amphetamines, methamphetamines, and cannabis within

the past forty-eight hours.

Sprouse was indicted for capital murder of a police officer. His lawyer 

filed notice of intent to present an insanity defense. The issue of intoxication—

both as an affirmative defense and as mitigating evidence—was raised with 

several potential jurors during voir dire. Specifically, the prosecutor 

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questioned two jurors who were chosen—Ruby Martinez1 and Kathy Wilson2—

on that issue. Sprouse, however, did not object to that questioning. Defense 

counsel discussed the issue of intoxication with Martinez but not Wilson.

1 The prosecutor discussed with Martinez the possibility of voluntary intoxication as 

a defense and as mitigating evidence:

[Prosecutor]: [E]ven if a defendant showed you that his conduct was wrong, that 

doesn’t mean that he prevails on his insanity defense. And that leads into another 

area of law . . . concerning voluntary intoxication. And in our questionnaire we advise 

you that voluntary intoxication is not a defense to crime. Do you agree with that?

[Martinez]: Yes.

[Prosecutor]: All right. And so no matter how much evidence was produced that a 

person was intoxicated or why they did what they did while they were intoxicated has 

nothing to do with their guilt of the crime charged.

. . . .

[Prosecutor]: Right. Now, the law does allow a defendant to introduce evidence of 

intoxication at punishment as mitigation, okay, but only in a certain circumstance; 

and that is, a defendant has to show that he was intoxicated at the time of the conduct 

charged and that the intoxication resulted in his not knowing his conduct was wrong. 

Okay?

2 [Prosecutor]: Someone takes a substance into their body who becomes so intoxicated 

they simply don’t know their conduct is wrong. That’s a situation in the law known 

as temporary insanity. And that is completely different from the insanity defense. 

Our law says that a person who is voluntary—who—that voluntary intoxication is not 

a defense to crime. And I believe in your jury questionnaire you agreed with that law? 

[Wilson]: Uh-huh.

[Prosecutor]: . . . Where intoxication or voluntary intoxication can be presented to the 

jury is on the issue of punishment. And the law says that while it’s not a defense to 

[the] crime[, ] intoxication which results in a defendant not knowing their conduct is 

wrong can be used by the jury in mitigation of punishment, to lessen the punishment. 

Doesn’t say they have to use it. It, again, is just like any other mitigating evidence in 

a case. It’s only mitigating if you think it’s mitigating and the result of the jury thinks 

it’s mitigating. . . . Would you require—before considering voluntary intoxication as 

any mitigation of punishment, would require a defendant to prove that that intoxication resulting in their not knowing their conduct was wrong?

[Wilson]: Would I require them to prove that they were so intoxicated—

[Prosecutor]: Would you―would you require that finding . . . 

[The Court]: Preface it if the law stated this . . . could she follow that?

[Prosecutor]: If the law states that voluntary intoxication can be used in mitigation of 

punishment if the jury finds that the voluntary intoxication resulted in the defendant 

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At the close of the guilt phase, the jury was instructed on insanity3 but 

rejected that defense and convicted Sprouse of capital murder. At the punishment phase, Sprouse put forward no new evidence, instead relying on all the 

testimony and evidence that had been presented during the guilt phase.

At the close of the punishment phase, the jury was given three general

instructions regarding mitigating evidence. First, it was instructed on what 

constitutes “mitigating evidence.”4 Second—the focus of this appeal—the jury 

was instructed on the issue of intoxication: “You are instructed that under our 

law neither intoxication5 nor temporary insanity of mind caused by intoxication constitute [sic] a defense to the commission of a crime. Evidence of temporary insanity caused by intoxication may be considered in mitigation of the 

not knowing that his conduct was wrong, could you consider that―no strike that would 

you be willing―Let me rephrase that. . . . If the law is that a defendant can introduce 

evidence of intoxication that causes temporary insanity at punishment on the issue of 

mitigation, okay, but only if that intoxication results in the condition called temporary 

insanity which means that they didn’t their conduct was wrong—

[Wilson]: Uh-huh.

[Prosecutor]:—can you follow that law? 

[Wilson]: Yes.

[Prosecutor]: Okay. And what that means is that if evidence of intoxication was introduced that does not arise to temporary insanity that then it would not be considered 

as mitigation if it was consideration as mitigation anyhow.

3 “You are instructed that no act done in a state of insanity can be punished as an 

offense. It is an affirmative defense to prosecution that, at the time of the conduct charged, 

the defendant, as a result of severe mental disease or defect, did not know that his conduct 

was wrong.” TEX. PENAL CODE ANN. § 8.01(a) (West 2013). The jury was further instructed 

on the meaning of “mental disease or defect”: “The term ‘mental disease or defect’ does not 

include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Id. § 8.01(b).

4 “You are instructed that the term ‘mitigating evidence,’ as used herein, means evidence that a juror might regard as reducing the defendant’s blameworthiness.”

5 The court further defined “intoxication” and “insanity”: “By the term ‘intoxication’ 

as used herein is meant a disturbance of mental or physical capacity resulting from the introduction of any substance into the body.” “By the term ‘insanity’ as used herein is meant that 

as a result of intoxication the defendant did not know his conduct was wrong.”

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penalty, if any, attached to the offense.”6 Third, the jury was instructed on the 

issue of temporary insanity.7

Additionally, the court told the jury to answer the mitigation special 

issue: “Taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, do you find that there is sufficient 

mitigating . . . circumstances to warrant that a sentence of life imprisonment 

rather than death be imposed?” Finally, the jury was given a catch-all instruction on mitigation: “You are to consider all evidence submitted to you during 

the whole trial as to defendant’s background or character or the circumstances 

of the offense that mitigates against the imposition of the death penalty.”

At the close of the punishment phase, during his initial closing argument8 and again on rebuttal,9 the prosecutor discussed the possibility of 

Sprouse’s intoxication as mitigating. Defense counsel also discussed that issue 

6 At the time, Sprouse objected to this instruction:

The second sentence where it says you are instructed that under our law neither intoxication or [sic] temporary insanity of mind caused by intoxication 

shall constitute any defense to the commission of a crime. To the defense that 

serves no purpose. It confuses the issues. The defendant’s already been convicted of the crime; and a defense to the crime, whether it’s a defense of the 

crime or not, seems to be irrelevant at this stage. We’d ask that sentence be 

taken out completely.

7 “[I]f you find from the evidence that . . . Sprouse, at the time of the commission of 

the offense . . . , was laboring under temporary insanity as defined in this charge, then you 

may take such temporary insanity into consideration in mitigation of the penalty which you 

attach to the crime.”

8 “No one here can tell you that you must consider anything to be mitigating. The 

Judge’s instructions have a section that talked about voluntary intoxication and the circumstances under which you may consider that mitigating. It does not direct you that you must.”

9 “I submit to you if you think a 30-year-old man whose parents have been good to 

him, who have given him a good home, supported him through high school, through college, 

tried to get him help, even went to the extent of getting him involuntarily committed in order 

to get him help, . . . if a man who has all of that advantage spends his life smoking it away 

with dope, you can consider that mitigation if you choose to.”

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during closing.10 The jury determined (1) there was a probability that Sprouse 

would commit criminal acts of violence that would constitute a continuing 

threat to society; and (2) there was not sufficient mitigating circumstances to 

warrant a life sentence. In accordance with the verdict, the court sentenced 

Sprouse to death.

The TCCA affirmed on direct appeal. See Sprouse v. State, No. AP-4933, 

2007 WL 283152, at *9 (Tex. Crim. App. Jan. 31, 2007). In deciding numerous

issues raised on state habeas, the state trial court rejected the argument 

Sprouse presses on appeal,11 and the TCCA denied Sprouse’s application for 

10 “You can consider anything on mitigation . . . . You know you can consider under 

law intoxication is mitigation. The law says you can. You can consider it either way. You 

know that. You’ve heard it before.”

11 The state trial court’s opinion states in relevant part:

42. There was evidence admitted at trial that Applicant was voluntarily intoxicated 

at the time of the offense.

43. The jury charge at punishment included the mandatory instruction on voluntary 

intoxication set out in section 8.04 of the Texas Penal Code.

44. Trial counsel objected to the jury instruction on voluntary intoxication in the 

Court’s charge at punishment, stating that the instruction was irrelevant and confused the issues because Applicant had already been convicted.

45. Trial counsel specifically stated that he was not asking the trial court to not give 

the instruction at all but only objecting to specific parts of the instruction.

46. Defense counsel addressed the voluntary intoxication instruction during closing 

argument, telling the jury without objection that they could consider intoxication as 

mitigating.

47. Appellate counsel did not raise any issue regarding the voluntary-intoxication 

instruction.

48. Neither trial counsel nor appellate performed deficiently in failing to raise such a 

claim when the issue has been decided against the claim. See Drinkard v. Johnson, 

97 F.3d 751, 758 (5th Cir. 1996)[, overruled on other grounds by Lindh v. Murphy, 521 

U.S. 320, 325 (1997)]; Cantu v. State, 939 S.W.2d 627, 647–48 (Tex. Crim. App. 1997).

49. Reviewing the voluntary intoxication instruction in the context of the instructions 

on special issues as a whole and in light of the proceedings before the jury, there is no 

reasonable likelihood that the jury applied the instruction to place consideration of 

non-insane intoxication beyond its effective reach. Drinkard, 97 F.3d at 758–59.

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writ of habeas corpus. See Ex parte Sprouse, No. WR-66950-01, 2010 WL 

374959, at *1 (Tex. Crim. App. Feb. 3, 2010).

Pursuant to 28 U.S.C. § 2254, Sprouse filed the instant petition, which 

the district court denied but granted a COA on the following issue: “Whether 

the jury instruction on intoxication during the punishment phase violated the 

Eighth Amendment, and whether counsel’s failure to object or preserve it constituted ineffective assistance of trial counsel and/or appellate counsel.”12

In determining that reasonable jurists would find that issue debatable, 

the district court first recognized that Fifth Circuit caselaw foreclosed

Sprouse’s contention.13 As the court noted, “[Narvaiz v. Johnson, 134 F.3d 688 

(5th Cir. 1998),] reasoned that the general instruction to consider ‘all of the 

evidence’ admitted at trial negates any inference that the intoxication instruction precludes consideration of non-insane, voluntary intoxication.” Sprouse, 

2013 WL 1285468, at *23. The district court, however, also observed that

(1) Narvaiz, Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), and Lauti v. 

Johnson, 102 F.3d 166 (5th Cir. 1996) all predate Penry II, and (2) “[Penry II]

appears to reject the type of reasoning relied upon in Narvaiz that a jury can 

Ex Parte Sprouse, No. 26824CR/A, slip op. at 124–25 (40th Dist. Ct., Ellis Cnty., Tex. Jan. 25, 

2007).

12 Sprouse first raised this issue (framed as an Eighth Amendment violation) before 

the state trial habeas court, which dismissed it on the merits. The record does not, however, 

make clear whether Sprouse repeated this argument before the TCCA. Because the state 

does not press procedural default, however, we do not need to determine whether Sprouse 

did in fact raise it through one complete cycle in the state courts. Cf. Busby v. Dretke, 359 

F.3d 708, 723 (5th Cir. 2004) (“Habeas petitioners must exhaust state remedies by pursuing 

their claims through one complete cycle of either state direct appeal or post-conviction collateral proceedings.” (emphasis added)). Even if the TCCA decided this issue on the merits, 

it did not discuss it at any length, so we treat the state trial habeas court opinion as the 

relevant state court decision.

13 See Sprouse v. Thaler, No. 3:10-CV-317-P, 2013 WL 1285468, at *23 (N.D. Tex. 

Mar. 29, 2013) (citing Narvaiz v. Johnson, 134 F.3d 688, 692–94 (5th Cir. 1998); Lauti v. 

Johnson, 102 F.3d 166, 169–70 (5th Cir. 1996)).

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logically and ethically follow two conflicting sets of instructions.” Id.

The district court denied a COA on all other issues raised in the motion. 

Sprouse appeals the Eighth Amendment issue and seeks COAs on five others.

II.

“In a habeas corpus appeal, we review the district court’s findings of fact 

for clear error and its conclusions of law de novo, applying the same standards 

to the state court’s decision as did the district court.” Busby v. Dretke, 359 F.3d 

708, 713 (5th Cir. 2004). Under the Antiterrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”), if the state court adjudicated Sprouse’s claim on the 

merits, federal habeas relief can be granted on that claim only if the adjudication of it 

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State 

court proceeding.

28 U.S.C. § 2254(d) (2012). We consider a state court decision to be “contrary 

to” clearly established Federal law14 in two situations: “[(1)] the state court 

arrives at a conclusion opposite to that reached by this Court on a question of 

law . . . [or (2)] the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite 

to [that Supreme Court decision].” Williams v. Taylor, 529 U.S. 362, 405 

14 “‘Clearly established federal law’ under § 2254(d)(1) is the governing legal principle 

or principles set forth by the Supreme Court at the time the state court reaches its decision.” 

Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). Therefore, Sprouse must demonstrate that 

the trial habeas court’s opinion was “contrary to” or “an unreasonable application of” the 

holdings of Supreme Court cases issued before January 25, 2007.

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(2000). Likewise, we consider a state court decision to be “an unreasonable 

application” of Supreme Court precedent in three situations:

[(1)] the state court . . . unreasonably applies [the correct governing 

legal rule] to the facts of the particular [ ] case . . . [(2)] the state 

court [] unreasonably extends a legal principle from our precedent 

to a new context where it should not apply or [(3) the state court] 

unreasonably refuses to extend that principle to a new context 

where it should apply.

Id. at 407.

Even if a state court errs in applying Supreme Court precedent, the court 

may still not have acted unreasonably for AEDPA purposes. See Harrington 

v. Richter, 131 S. Ct. 770, 786 (2011). “A state court’s determination that a 

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists 

could disagree’ on the correctness of the state court’s decision.” Id. “[E]valuating whether a rule application was unreasonable requires considering the 

rule’s specificity. The more general the rule, the more leeway courts have in 

reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 

541 U.S. 652, 664 (2004). “[I]t is not an unreasonable application of clearly 

established Federal law for a state court to decline to apply a specific legal rule 

that has not been squarely established by th[e] [Supreme] Court.” Knowles v. 

Mirzayance, 556 U.S. 111, 112 (2009).

Attempting to bypass this deferential standard, Sprouse challenges the 

constitutionality of § 2254(d).15 As Sprouse concedes, we, like our sister 

15 First, Sprouse argues that AEDPA deference violates the principles of stare decisis 

specified by Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and United States v. Klein, 

80 U.S. (13 Wall.) 128 (1871): “[C]ontrary to the holdings of Marbury and Klein, Congress 

afforded the federal courts habeas jurisdiction, but limited the courts’ manner of review by 

suspending stare decisis.” Second, Sprouse argues that AEDPA violates Article III: “2554(d) 

prohibits the federal courts from saying what the law is. Instead, 2254(d) requires the federal 

courts to defer to and uphold state court decisions erroneously interpreting federal 

constitutional law.”

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courts,16 have rejected that challenge.17 We therefore apply AEDPA’s highly 

deferential standard to Sprouse’s appeal.

III.

Sprouse maintains that the voluntary-intoxication instruction required 

by Texas Penal Code § 8.04 unconstitutionally limited the jury’s ability to consider mitigating evidence. Because the instruction could have just stated 

“Intoxication may be considered in mitigation” as opposed to “Evidence of temporary insanity caused by intoxication may be considered in mitigation,” 

Sprouse contends that “[t]he jury must necessarily have been led to believe 

that they could not consider intoxication alone for mitigation.” He avers that 

the negative implication of this instruction trumps or else contradicts the 

catch-all mitigation instruction and the mitigation special issue. In this vein, 

Sprouse urges that the state court unreasonably applied Penry I, Boyde, and 

Penry II.

A.

Before specifically addressing Sprouse’s position, we turn to the three 

Supreme Court cases on which he principally relies. In Penry I, the Supreme 

Court granted the habeas petition, holding that the Texas death-penalty statute had been applied unconstitutionally in that case. Because the Court was 

16 Evans v. Thompson, 518 F.3d 1, 10 (1st Cir. 2008); Crater v. Galaza, 491 F.3d 1119, 

1130 (9th Cir. 2007); Green v. French, 143 F.3d 865, 876 (4th Cir. 1998), abrogated on other 

grounds by Williams v. Taylor, 529 U.S. 362 (2000); Lindh v. Murphy, 96 F.3d 856, 871–74 

(7th Cir. 1996) (en banc), rev’d on other grounds, 521 U.S. 320 (1997).

17 Cobb v. Thaler, 682 F.3d 364, 374 (5th Cir. 2012), cert. denied, 133 S. Ct. 933 (2013) 

(“As each circuit to address the question has recognized, § 2254(d)(1) does not intrude on the 

independent adjudicative authority of the federal courts. Rather, it limits the grounds on 

which federal courts may grant the habeas remedy to upset a state conviction.”).

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reviewing the habeas petition, it began by assessing the clear Supreme Court 

precedent available to the state court when Penry’s conviction became final:

[I]t was clear from [Lockett v. Ohio, 438 U.S. 586 (1978)] and 

[Eddings v. Oklahoma, 455 U.S. 104 (1982)] that a State could not, 

consistent with the Eighth and Fourteenth Amendments, prevent 

the sentencer from considering and giving effect to evidence relevant to the defendant’s background or character or to the circumstances of the offense that mitigate against imposing the death 

penalty.

Penry I, 492 U.S. at 318.

That is, the Eighth Amendment requires that a capital sentencing jury 

not be precluded from considering, as a mitigating factor, the character and 

record of the individual defendant and the circumstances of the particular 

offense. The Court in Penry I noted that the jury was not given any specific 

mitigation instruction,18 so it could not adequately give effect to any mitigating 

circumstances it may have found.19

At Penry’s second sentencing trial, the state court, attempting to abide 

by Penry I, gave a supplemental instruction on mitigation. Penry II, 532 U.S. 

at 789–90. If the jury believed that the mitigating evidence warranted a life 

18 Penry I, 492 U.S. at 320 (“Although Penry offered mitigating evidence of his mental 

retardation and abused childhood as the basis for a sentence of life imprisonment rather than 

death, the jury that sentenced him was only able to express its views on the appropriate 

sentence by answering three questions: Did Penry act deliberately when he murdered Pamela Carpenter? Is there a probability that he will be dangerous in the future? Did he act 

unreasonably in response to provocation? The jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating 

effect to that evidence in imposing sentence.”).

19 Id. at 322 (“Penry argues that his mitigating evidence of mental retardation and 

childhood abuse has relevance to his moral culpability beyond the scope of the special issues, 

and that the jury was unable to express its “reasoned moral response” to that evidence in 

determining whether death was the appropriate punishment. We agree. Thus, we reject the 

State’s contrary argument that the jury was able to consider and give effect to all of Penry’s 

mitigating evidence in answering the special issues without any jury instructions on mitigating evidence.”).

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sentence instead of death, it was directed to make a negative finding to one of 

the special issues even if it had already answered yes to that question. The 

mitigation instruction did not include a separate question for the jury.

The Supreme Court first emphasized its holding in Penry I:

Penry I did not hold that the mere mention of “mitigating circumstances” to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may “consider” mitigating 

circumstances in deciding the appropriate sentence. Rather, the 

key under Penry I is that the jury be able to “consider and give 

effect to [a defendant’s mitigating] evidence in imposing sentence.”

Id. at 797 (quoting Penry I, 492 U.S. at 319). Having established that framework, the Court considered two possible ways of interpreting the “confusing 

instruction” and concluded that neither understanding satisfied its command 

in Penry I: (1) If the instruction was “understood as telling the jurors to take 

Penry’s mitigating evidence into account in determining their truthful answers 

to each special issue . . . the supplemental instruction placed the jury in no 

better position than was the jury in Penry I.” Id. at 798. (2) Alternatively, the 

instruction could be understood “as informing the jury that it could ‘simply 

answer one of the special issues ‘no’ if it believed that mitigating circumstances 

made a life sentence . . . appropriate . . . regardless of its initial answers to the 

questions.’” Id. (citations omitted). This approach, however, “made the jury 

charge as a whole internally contradictory, and placed law-abiding jurors in an 

impossible situation.” Id. at 799. Therefore, under either approach,

“[a]lthough the supplemental instruction made mention of mitigating evidence, the mechanism it purported to create for the jurors to give effect to that 

evidence was ineffective and illogical.” Id. at 804.

Finally, Boyde sets the standard for reviewing a claim of jury-charge 

error: A federal habeas court must ask “whether there is a reasonable 

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likelihood that the jury has applied the challenged instruction in a way that 

prevents the consideration of constitutionally relevant evidence.” Boyde, 494 

U.S. at 380. Two observations underpin that standard: (1) “Jurors do not sit 

in solitary isolation booths parsing instructions for subtle shades of meaning 

in the same way that lawyers might”; and (2) “Differences among [jurors] in 

interpretation of instructions may be thrashed out in the deliberative process, 

with commonsense understanding of the instructions in the light of all that has 

taken place at the trial likely to prevail over technical hairsplitting.” Id. at 

380–81. Moreover, “a single instruction to a jury may not be judged in artificial 

isolation, but must be viewed in the context of the overall charge.” Id. at 378 

(quoting Boyd v. United States, 271 U.S. 104, 107 (1926)).

B.

To obtain relief, Sprouse must establish that the state court unreasonably applied Penry I, Boyde, and Penry II. First, the state court had good 

reason to distinguish Sprouse’s case from Penry I and Penry II. Unlike the 

situation in Penry I, the state court here instructed the jury with a specific 

mitigating special issue. And unlike the circumstance in Penry II, Sprouse’s 

jury was given a separate special issue, which, as a discrete yes-or-no question, 

plainly specified the mechanism by which the jury could give effect to any 

mitigating circumstances it wished to consider. Put otherwise, the fact that 

Sprouse perceives a negative inference in one sentence of his jury charge does 

not demonstrate that his jury was confused about, and precluded from following, the comprehensive and catch-all affirmative command to the jury to 

consider mitigation circumstances.20 In light of these differences, the state 

20 See Williams v. Norris, 612 F.3d 941, 956 (8th Cir. 2010) (“Penry and [Mills v. Maryland, 486 U.S. 367 (1988)] involved juries that were precluded from properly considering mitigating circumstances because of misleading jury instruction forms.” (citations omitted)); see 

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court did not act unreasonably in refusing to extend Penry I and Penry II to 

this case. Insofar as Sprouse points to dicta from those decisions that may 

suggest reversal, AEDPA directs us to consider only holdings. See Williams v. 

Taylor, 529 U.S. 362, 412 (2000).

Second, Sprouse has not demonstrated that the state court’s reliance on 

precedent was itself unreasonable. Although it is true that Cantu v. State, 939 

S.W.2d 627 (Tex. Crim. App. 1997), and Drinkard preceded Penry II, that fact 

alone does make the state court’s reliance unreasonable. For this reliance to 

be unreasonable, Sprouse would need to demonstrate that Boyde, Penry I, or

Penry II squarely establishes a specific legal rule that Cantu and Drinkard

violate.

In Cantu, the TCCA assessed the very conflict at issue here: “[The defendant] contends[ ] evidence of intoxication which did not rise to this level was 

precluded from being afforded mitigating effect in violation of Eddings v. Oklahoma, 455 U.S. 104 (1982) and Lockett v. Ohio, 438 U.S. 586 (1978).” Cantu, 

939 S.W.2d at 647. In light of the fact that an unambiguous, separate mitigation catch-all instruction was given, the court rejected the petitioner’s arguments: “We hold that the inclusion of the latter instruction satisfied the constitutional deficiency appellant avers was created by the inclusion of the intoxication instruction. Thus, no egregious harm, if any harm at all, can be established.” Id. at 647–48.

And in Drinkard, 97 F.3d at 759, we assessed a similar instruction.21 

also McCoskey v. Thaler, 478 F. App’x 143, 150 (5th Cir. 2012) (per curiam) (highlighting 

Penry “Court’s concerns about contradiction and limitation”).

21 The instruction in Drinkard stated only that “[e]vidence of temporary insanity 

caused by intoxication may be considered in mitigation of the penalty . . . .” Drinkard, 97 

F.3d at 755. In contrast, Sprouse’s instruction included that sentence but was preceded with 

the following: “You are instructed that under our law neither intoxication nor temporary 

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The court had given a special instruction addressing temporary insanity 

caused by intoxication during the punishment phase. Id. We determined that

the instruction was not Boyde error: “[W]e cannot say that there is a reasonable likelihood that the jury interpreted the instructions as precluding the consideration of Drinkard’s intoxication if it did not rise to the level of temporary 

insanity.” Id.

In both Cantu and Drinkard, the trial court instructed the jury with a 

clear, separate mitigation instruction. In neither case was the jury required to 

take “mitigating evidence into account in determining their truthful answers 

to each special issue” or “simply [to] answer one of the special issues ‘no’ if it 

believed that mitigating circumstances made a life sentence appropriate.” 

Cantu and Drinkard therefore did not involve juries that were precluded from 

considering mitigating evidence in the manner at issue in Penry I or Penry II. 

Because those decisions do not necessarily violate any rule squarely 

established by Boyde, Penry I, or Penry II, for purposes of AEDPA, the state 

court’s reliance on them was not unreasonable.

Third, other Fifth Circuit cases (not cited by the state court) further 

demonstrate that the state court’s decision was not unreasonable. In Narvaiz, 

134 F.3d at 692, for example, we addressed an instruction identical to the one 

here. And there, following Drinkard, we rejected the same Eighth Amendment 

argument Sprouse presses. See id. at 694.

Finally, Sprouse maintains that his case can be distinguished from 

Drinkard and Narvaiz on three grounds: (1) the additional first sentence given 

in his case that was not given Drinkard; (2) the prosecutor’s statements made 

during voir dire to two chosen jurors (which were not made in Drinkard or 

insanity of mind caused by intoxication constitute [sic] a defense to the commission of a 

crime.”

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Narvaiz); and (3) the prosecutor’s “confusing” closing remarks made in this 

case (again not made in Drinkard or Narvaiz). This line of reasoning fails. 

First, as Sprouse readily concedes, Narvaiz included the additional first sentence. Second, as to the voir dire and closing remarks, even if Sprouse can 

show that those considerations constitute proper bases to distinguish Drinkard

and Narvaiz, he has not demonstrated that the state court unreasonably

applied Supreme Court precedent in failing to distinguish his case on these 

bases. We therefore conclude that the state court’s decision was not an unreasonable application of Boyde, Penry I, or Penry II.

IV.

Sprouse asks this court to grant COAs on five additional issues: whether 

trial counsel provided ineffective assistance by failing to challenge (1) the 

Texas death-penalty statute on the ground that it does not provide for meaningful appellate review; (2) the statutory definition of “mitigating evidence” as 

unconstitutionally narrow; (3) the statute on the ground that the aggravating 

factors are vague and do not properly channel the jury’s discretion; (4) the 

statute on the ground that it prohibits informing the jury of the consequences

of a “hold out” juror; and (5) the statute on the ground that it does not allocate 

to the state the burden of proving a lack of mitigating evidence. Because clear 

Fifth Circuit caselaw forecloses each of these challenges, we do not grant a 

COA on any of them.

A.

AEDPA requires a state habeas petitioner to secure a COA before 

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appealing a federal district court’s denial of habeas relief.22 The petitioner 

must make “a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2) (2012). For that, he must “sho[w] that reasonable jurists 

could debate whether (or, for that matter, agree that) the petition should have 

been resolved in a different manner or that the issues presented were adequate 

to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 

322, 336 (2003) (citations and internal quotation marks omitted). “The COA 

determination under § 2253(c) requires an overview of the claims in the habeas 

petition and a general assessment of their merits.” Id. “Where a district court 

has rejected the constitutional claims on the merits, the showing required to 

satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional 

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “In 

assessing whether [a petitioner] is entitled to a COA, we must keep in mind 

the deference scheme laid out in 28 U.S.C. § 2254(d).” Moore v. Johnson, 225 

F.3d 495, 501 (5th Cir. 2000).

B.

As discussed above, Sprouse seeks a COA with regard to five related 

claims. In the main, he contends that trial counsel were ineffective because 

they did not bring various constitutional challenges to Texas’s death-penalty 

scheme. We take each in turn.

1.

Sprouse seeks a COA on whether trial counsel provided ineffective 

22 Adams v. Stephens, No. 12-11264, 2013 WL 6155603, at *1 (5th Cir. Nov. 25, 2013) 

(per curiam) (unpublished); 28 U.S.C. § 2253(c)(1)(A) (2012).

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assistance of counsel (“IAC”) by failing to challenge the statute on the ground 

that it does not provide for meaningful appellate review on the following three 

issues: (1) the jury’s determination on mitigation; (2) the jury’s determination 

on future dangerousness; and (3) comparative proportionality. In dismissing 

that argument, the TCCA noted, “[A]ppellant asserts that the death penalty 

scheme is unconstitutional because it fails to provide to provide a meaningful 

appellate review of mitigating evidence or a re-weighing of aggravating and 

mitigating circumstances. . . . The[se] arguments . . . have been previously 

raised and rejected by this Court.”23

Applying AEDPA’s framework of “contrary to” or “unreasonable application” of Supreme Court law, Sprouse would need to show that the state court 

either applied the wrong test in deciding this issue or unreasonably applied 

the correct test to the facts. Sprouse has not pointed to any conflicting 

Supreme Court precedent, instead conceding that we have rejected similar 

challenges. See Martinez v. Johnson, 255 F.3d 229, 244–45 (5th Cir. 2001) (“We 

find that the [TCCA] was not objectively unreasonably in its application of the 

Jackson standard.”); Moore, 225 F.3d at 506–07 (“It is just this narrowly 

cabined but unbridled discretion to consider any mitigating factors submitted 

by the defendants and weighed as the jury sees fit that Texas has bestowed 

upon the jury. In so doing, Texas followed Supreme Court instructions to the 

letter. No court could find that Texas had acted contrary to federal law as 

explained by the Supreme Court, and no benefit will arise from further consideration of the obvious.”). Therefore, Sprouse has not demonstrated that reasonable jurists would find the district court’s determination to be debatable.

23 Sprouse v. State, No. AP-74933, 2007 WL 283152, at *8 & n.11 (Tex. Crim. App. 

Jan. 31, 2007) (citing Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005); McGinn 

v. State, 961 S.W.2d 161, 170 (Tex. Crim. App. 1998); Ibarra v. State, 11 S.W.3d 189, 198 

(Tex. Crim. App. 1999)).

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2.

Sprouse seeks a COA on whether trial counsel provided IAC by failing to 

challenge the statutory definition of “mitigating evidence” as unconstitutionally narrow. In dismissing that claim, the TCCA noted, “[A]ppellant asserts 

that Article 37.071’s definition of mitigating evidence24 is facially unconstitutional because it limits the Eighth Amendment concept of ‘mitigation’ to factors that render a capital defendant less morally blameworthy for the commission of a capital murder. We have previously rejected this argument.” Sprouse, 

2007 WL 283152, at *8 & n.13 (citing Blue v. State, 125 S.W.3d 491, 504–05 

(Tex. Crim. App. 2003)).

Sprouse points to Payne v. Tennessee, 501 U.S. 808 (1991), Skipper v. 

South Carolina, 476 U.S. 1 (1986), and Eddings v. Oklahoma, 455 U.S. 104 

(1982), contending that the Court has an expansive view of mitigating evidence. As Sprouse concedes, however, we have rejected that challenge. See

Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir. 2001) (“[O]ur reading of the 

statute leads us to conclude that the amended statute does not unconstitutionally preclude[ ] [the jury] from considering, as a mitigating factor, any 

aspect of a defendant’s character or record and any of the circumstances of the 

offense that the defendant proffers as a basis for a sentence less than death.”

(citation and internal quotation marks omitted)). Reasonable jurists could not 

therefore conclude that the state court’s opinion was contrary to or an unreasonable application of Supreme Court precedent.

24 See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(f)(4) (West 2013) (“The court shall 

charge the jury that in answering the issue submitted under Subsection (e) of this article, the 

jury . . . shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant’s moral blameworthiness.”).

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3.

Sprouse seeks a COA on whether trial counsel provided IAC by failing to 

challenge the Texas death-penalty statute on the ground that the aggravating 

factors are vague and do not properly channel the jury’s discretion. In dismissing that argument, the TCCA noted,

Appellant argues . . . Article 37.071 is unconstitutional because the 

aggravating factors used in the statute are vague and do not properly channel the sentencer’s discretion. Specifically, appellant 

asserts that the terms “probability,” “criminal acts of violence,” 

and “continuing threat to society” should be defined. This Court 

has previously decided this claim adversely to appellant.

Sprouse, 2007 WL 283152, at *8 & n.14 (citing Blue, 125 S.W.3d at 505).

Texas does not run afoul of Maynard v. Cartwright, 486 U.S. 356 (1988),

or Godfrey v. Georgia, 446 U.S. 420 (1980), by not expressly defining these 

terms. See Turner v. Quarterman, 481 F.3d 292, 300 (5th Cir. 2007) (“Because 

Turner is unable to point to any clearly established federal law under which 

the terms of the Texas sentencing instructions could be unconstitutionally 

vague, he is unable to make a substantial showing of the denial of a federal 

constitutional right, and we deny a COA.”); Hughes v. Johnson, 191 F.3d 607, 

615–16 (5th Cir. 1999) (“We similarly have rejected contentions that ‘probability’ and other terms included in the statutory special issues are unconstitutionally vague. . . . Hughes has not made a substantial showing of the denial 

of a constitutional right as to this claim.”); James v. Collins, 987 F.2d 1116, 

1120 (5th Cir. 1993) (“Despite the fact that Texas is a ‘non-weighing’ state, the 

terms used in the special issues are not so vague as to require clarifying 

instructions.”). We therefore deny a COA on this issue.

4.

Sprouse seeks a COA on whether trial counsel provided IAC by failing to 

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challenge the statute on the ground that it prohibits informing the jury of the 

consequences of a “hold out” juror. In dismissing that claim, the TCCA noted,

“[A]ppellant asserts that the capital-sentencing statute is unconstitutional 

because it fails to require that jurors be informed that a single holdout juror 

on any special issue would result in an automatic life sentence. We have previously decided this issue adversely to appellant.” Sprouse, 2007 WL 283152, 

at *9 & n.16 (citing Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 

2005). Clear Supreme Court and Fifth Circuit precedent forecloses granting a 

COA on this issue. See Druery v. Thaler, 647 F.3d 535, 542 (5th Cir. 2011) (“To 

the extent Petitioner’s challenge to Texas’s 12–10 rule rests on Mills v. Maryland, 486 U.S. 367 (1988) and the Eighth Amendment, . . . it is foreclosed by 

Fifth Circuit precedent.”); see also Jones v. United States, 527 U.S. 373, 379, 

382 (1999).

5.

Sprouse requests a COA on whether trial counsel provided IAC by failing 

to challenge the statute on the ground that it does not allocate to the state the 

burden of proving a lack of mitigating evidence. The TCCA rejected that contention by noting,

[A]ppellant claims that the mitigation question submitted to the 

jury pursuant to Article 37.071, section 2(e), is unconstitutional 

because the statute does not require the State to prove beyond a 

reasonable doubt that there was insufficient mitigating evidence 

to support a life sentence. We have previously rejected this claim 

and appellant has given us no reason to revisit the issue here.

Sprouse, 2007 WL 283152, at *9 & n.20 (citing Perry v. State, 158 S.W.3d 438, 

446–47 (Tex. Crim. App. 2004)). Although Sprouse maintains that the statecourt opinion runs counter to Apprendi v. New Jersey, 520 U.S. 466 (2000), and 

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Ring v. Arizona, 536 U.S. 584 (2002), we have expressly rejected that argument. See Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007) (“We 

have specifically held that the Texas death penalty scheme did not violate 

either Apprendi or Ring by failing to require the state to prove beyond a reasonable doubt the absence of mitigating circumstances. In [Granados v. Quarterman, 455 F.3d 529, 536 (5th Cir. 2006)], we stated that ‘the state was 

required to prove beyond a reasonable doubt every finding prerequisite to 

exposing [the defendant] to the maximum penalty of death,’ and we concluded 

that ‘a finding of mitigating circumstances reduces a sentence from death, 

rather than increasing it to death.’”). We decline to grant a COA on this issue.

The judgment denying Sprouse’s habeas petition is AFFIRMED. 

Sprouse’s request for COAs on additional issues is DENIED.

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