1 This case is governed by the standards for federal collateral

review of sta te court convictions that applied before the habeas

corpus statutes were amended by the Antiterrorism and Effective

Death Penalty Act of 1996 because Beathard’s federal habeas corpus

petition was filed before the effective date of the act. S ee Lindh

1 Revised June 2, 1999

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40760

JAMES BEATHARD,

Petitioner-Appellant,

VERSUS

GARY JOHNSON, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

May 26, 1999

Before JONES, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

I. MOTION FOR CERTIFICATE OF PROBABLE CAUSE

Appellant-Petitioner James Beathard (“Beathard”) seeks a

Certificate of Probable Cause 1 to appeal the district court’s grantv. Murphy , 521 U.S. 320 (1997).

2

of summary judgment in favor of Respondent Gary Johnson (“the

State”) in Beathard’s federal writ of habeas corpus attacking his

T exas capital murder conviction. We grant the Certificate of

Probable Cause to Appeal. See Barefoot v. Estelle , 463 U.S. 880,

893 (1983). Because both Beathard and the State have briefed and

argued the merits of Beathard's appeal, we proceed directly to

disposition of the appeal.

II. FACTS AND PROCEDURAL HISTORY

On March 4, 1985, Beathard was convicted fo r the capital

murder of Marcus Lee Hathorn in the course of burglary after a jury

tri al in the 258th Judicial District Court of Trinity County,

Texas. The jury affirmatively answered the two special sentencing

iss ues submitted pursuant to former T E X

. C RIM

. P ROC

. C ODE A NN

. §

37.071(b)(West 1984), and the state trial court assessed Beathard’s

punishment at death. The Texas Court of Criminal Appeals affirmed

the conviction and sentence on direct appeal. S ee Beathard v.

State, 767 S.W.2d 423 (Tex.Crim.App. 1989).

Beathard filed an application for writ of habeas corpus in

state court, pursuant to T EX

. C RIM

. P ROC

. C ODE A NN

. § 11.07 (West

1984), which was denied by order dated May 26, 1993. On October

17, 1994, Beathard filed an application for federal habeas corpus

relief pu rsuant to 28 U.S.C. § 2254. The district court granted

summar y judgment for the State, denying that application. We3

affirm.

A. Beathard's trial

The following version of the fac ts was developed by the

evidence, including co-defendant Gene Hathorn, Jr.'s (“Hathorn”)

testimony, at Beathard's trial.

Beathard became friends with his accomplice, Gene Hathorn,

Jr., when they were employed as psychiatric security technicians at

Rusk State Hospital in Rusk, Texas. In January 1984, Beathard left

Rusk State Hospital and enrolled in classes at Stephen F. Austin

University in Nacogdoches, Texas. Gene Hathorn, Jr. supplied

Beathard, now unemployed, with small quan tities of marijuana and

cocaine to sell for a commission. During the spring and summer of

1984, they spent many evenings together, often discussing Gene

Hathorn , Jr.'s desire to kill his father, stepmother, and halfbrother.

Gene Hathorn, Sr., his wife, Linda Hathorn and son Marcus

Hathorn lived in a trailer on eight acres in rural Trinity County,

Texas. In 1983, Gene Hathorn, Sr. received a $150,000 settlement

on an injury claim. Gene Hathorn, Jr. decided to kill his family

out of animosity over a borrowed truck and because he believed he

would inherit the settlement money. Gene Hathorn, Jr. described to

Beathard his plan to commit “the perfect murder,” which required an

accomplice who could provide a false alibi. The plan included

leaving clues to convince the police that the family had been4

killed during a burglary by “a bunch of drug crazed niggers.”

In July 1984, Gene Hathorn, Jr. offered to give Beathard a

$12,500 share of the expected inheritance to help him murder his

family. Beathard agreed to do it because he needed the money to

pay off a child support arrearage.

On October 9, 1984, Gene Hathorn, Jr. and Beathard left Rusk

at 3:00 p.m. in a borrowed Dodge Colt. Gene Hathorn, Jr. supplied

t hree murder weapons, ammunition, gloves, some Negroid hairs

gathered from a barber shop and some butts of cigarettes that had

been “smoked by black people.” The two men went to the library at

Stephen F. Austin University and stopped at other public places to

create an alibi. They then drove to a rural area to do some target

practice with the sawed-off shotgun.

After nightfall, they arrived at Gene Hathorn, Sr.'s trailer

house. Gene Hathorn, Jr. fired the shotgun through a picture

window, hitting Gene Hat horn, Sr. and Marcus Hathorn. Beathard

ente red through the back door and shot all three victims with a

pistol. Gene Hathorn, Sr. was then shot in the head with a rifle.

They planted the Negroid hairs and cigarette butts at the crime

scene and stole several items, including some guns, a video

cassett e recorder and the family's van. The van was driven to a

nearby African American community and abandoned. The other stolen

items and two of the murder weapons were dumped into a river.

Beathard returned to his girlfriend's house at approximately

12:30 a.m. on October 10, 1984. Beathard was wearing overalls and5

was visib ly upset. Although law enforcement officers requested

that Beathard produce the overalls severa l days later, they were

never recovered.

Beathard testified at the guilt-innocence stage of his trial

that he was present at the scene of the murders, but that he was

tricked into being there and that he hid outside while Gene

Hathorn, Jr. fired all of the shots.

B. Gene Hathorn, Jr.'s trial

Gene Hathorn, Jr. was separately tried, convicted and

sentenced to death for murdering his father in th e course of a

burglary. Hathorn's testimony at Beathard's trial was read to the

jury at his own trial and Hathorn repeated the identical story on

the witness stand. Hathorn claimed that he only fired one shot at

his father through the window and that Beathard repeatedly shot the

three victims in the house, stole their property and planted the

false clues to deceive the police. When Trinity County District

Attorney Joe Price (“Price”) cross-ex amined Hathorn at Hathorn's

trial, he accused Hathorn of being the inside man while Beathard

fired the shotgun through the window from outside the trailer.

C. Beathard's Motion for New Trial

Beathard filed an out-of-time motion for a ne w trial after

Hathorn was convicted and sentenced to death, while his own direct

appeal was pending. Hathorn testified at the evidentiary hearing

on Beathard’s motion for new trial that Beathard was not involved6

in the murder of his family, giving a version of the facts that

supported the version of events given by Beathard at Beathard's

trial. The trial court denied Beathard's out-of-time motion for

new trial fr om the bench without making any findings of fact or

conclusions of law.

D. State Habeas Proceeding

Beathard filed a petition for habeas corpu s in state court,

setting out numerous claims for relief. On August 29, 1991, the

trial court conducted an evidentiary hearing on Beathard's state

habeas application, limi ted to Beathard's claims that his first

attorney, Hulon Brown (“Brown”), had a co nflict of interest that

adversely affected his performance and that Price, the prosecutor,

knowingly failed to correct Hathorn's false testimony at Beathard's

trial. The trial court issued written findings of fact and

conclusions of law, but made no recommendation to the Texas Court

of Criminal Appeals concerning whether Beathard was entitled to

habeas corpus relief.

The trial c ourt found that Brown withdrew shortly after he

became aware of the con flict of interest growing out of

representing both Beathard and Hatho r n. Concerning Hathorn's

allegedly false testimony at Beathard 's trial, the trial court

found that Price took three differen t positions about the roles

that Beathard and Hathorn played in the murders: 1) Price argued at

Beathard's trial that Beathard “entered the trailer and killed the7

f amily while Hathorn remained outside;” 2) Price argued at

Hathorn's trial that Hathorn probably entered the trailer and

killed his family while Beathard remained outside; and 3) at the

state habeas hearing, Price took the position that Beathard fired

one shot through the window at Hathorn's father with a shotgun and

both men fired sh ots inside of the house. The trial court found

that Beathard “probably was the person who fired the first shot

from outside the trailer into the head of Gene Hathorn, Sr., with

the shotgun.”

The Texas Court of Criminal Appea ls held that all of

Beathard's claims for relief were without merit in a one page

order. Two judges dissented without written opinion.

E. Federal Habeas Proceeding

The district cour t denied Beathard's requests for discovery

and a federal evidentiary hearing and, finding no genuine issue of

material fact, granted the Sta te's motion for summary judgment.

Beathard appealed.

III. ISSUES PRESENTED

Beathard presents nine issues in his request for certificate

of probable cause to appeal:

1. Whether a federal evidentiary hearing on Beathard’s

attorney conflict of interest claim is mandatory because

the state courts did not resolve material questions of

fact about the credibility of witnesses who testified at

the state court hearing on that claim.

2. Whether Beathard is entitled to habeas relief on his

attorney conflict of interest claim because the8

prosecutor told the jury that his first lawyer was the

same “crooked” attorney who intended to have hi m give

perjured testimony in his co-indictee’s fraudulent civil

rights case.

3. Whether a federal evidentiary hearing on Beathard’s

claim that the prosecutor knowingly used his coindictee’s false testimony about their roles in the

murder is mandatory under th e first T ownsend v. Sain,

372 U.S. 293 (1963), circumstance because the state

courts did not decide whether the prosecutor had

knowledge of the lie.

4. Whether a federal evidentiary hearing on Beathard’s

unexhausted Brady v. Maryland

, 373 U.S. 83 (1963), claim

is mandatory because the state courts did not resolve a

credibility contest between his trial counsel and the

district attorney about whether the exculpatory statement

of a prosecution witness was suppressed.

5. Whether a federal evidentiary hearing on Beathard’s

Giglio v. United Stat es , 405 U.S. 150 (1972), claim is

mandatory beca use the state courts did not resolve

material questions of fact about the claim at the state

court hearing.

6. Whether Beathard is entitled to discovery on his

Giglio claim.

7. Whether the federal district court erroneously

granted the State’s motion for summary judgment of five

of Beathard’s claims without obtaining a relevant part of

the state court record.

8. Whether the trial court’s refusal to instruct the

jury t hat no adverse inference could be drawn from

Beath ard’s decision not to testify at the punishment

stage of his trial was not harmless.

9. Whether the prosecutors urged the jury to draw an

unconstitutional adve rse inference from Beathard’s

deci sion not to testify at the punishment stage of his

trial.

Beathard's seven substantive claims have been properly

exhausted. At the direction of this court, the State filed a reply9

brief focusing on Points of Error Three and Five.

IV. DISCUSSION

A. Attorney conflict of interest

1. Background and district court ruling

Beathard was arrested for the triple murder of the Hathorn

family on November 3, 1984. Beathard retained attorney Hulon Brown

on November 5, 1994. Brown had been representing Hathorn for

several months in two separate criminal charges and a civil rights

a ction against the local police department. Brown did not

represent Hathorn in connection with the instant murder charges.

Beathard was indicted ten days later, on November 15, 1985. Brown

realized that Beathard and Hathorn had antagonistic positions and

therefore ceased to represent Beathard when he was indicted.

However, because he had never made a notice of appe arance in the

case, he never filed a motion to withdraw. Beathard then retained

David Sorrels, who represented him throughout the remainder of the

trial proceedings. Beathard asserts that Brown’s representation of

Ha thorn in the unrelated matters created a conflict of interest

which resulted in ineffective assistance of counsel during the ten

days he represented Beathard and infected the entire trial.

A petitioner claiming ineffective assistance of counsel must

demonstrate:

first

. . . that coun sel’s performance was deficient.

This requires showing that counsel made errors so serious

that counse l was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second,10

the defendant must show that the deficient performance

prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable. Unless a defendant makes both showings it

cannot be said that the conviction or death sentence

resulted in a breakdown of the adversarial process that

renders the result unreliable.

Strickland v. Washington

, 466 U.S. 668, 787 (1984). In some cases,

prejudice in ineffective assistance of counsel claims is presumed.

“One such circumstance is present when counsel is burdened by an

actual conflict of interest.” B eets v. Collins

, 986 F.2d 1478,

1483 (5th Cir. 1993). However, in the context of these

proceedings, when a claim of ineffective counsel in based on an

alleged conflict of interest, “a defendant who raised no objection

at trial must demonstrate that an actual conflict of interest

adversely affected his lawyer’s performance.” C uyler v. Sullivan

,

446 U.S. 335, 348 (1980).

The district court identified the proper legal in quiry,

reviewed the proceedings of the evidentiary hearing held in state

court and concluded: 1) Brown was not aware of a conflict of

interest until Beathard was indicted for capital murder; 2) Brown

became aware that Hathorn and Beathard had antagonistic positions

only after Beat hard gave several conflicting statements against

Brown’s advise, at which time Brown withdrew; 3) there is no

evidence that Brown gave advice inconsistent with Beathard’s best

interests and Brown’s representation of Beathard was not adversely

affected by any conflict. Based on these conclusions, the district11

court held that Brown’s representation did not amount to

ineffective assistance of counsel.

2. Denial of Federal Hearing

(Point of Error 1)

Beathar d’s first point of error urges this court to reverse

the summary judgment entered in favor of the State because he was

entitled to, but was denied, an evidentiary hearing in federal

court on his ineffective assistance of counsel claim. We will

reverse for a federal evidentiary hearing if we find 1) that

Beathard has alleged facts that would entitle him to relief if they

were true, s ee Perillo v. Johnson

, 79 F.3d 441, 444 (5th Cir.

1996); 2) there is some basis in the record to conclude that such

facts are disputed, see Koch v. Puck ett , 907 F.2d 524, 530 (5th

Cir. 1990); and 3) the merits of the factual dispute were not

resolved in the state hearing. S ee Townsend v. Sain

, 372 U.S. 293,

313 (1963)(the first Townsend situation in which a f ederal

evidentiary hearing is mandatory).

Beathard contends that the state co urt, although presented

with the question , did not decide when Brown became subjectively

aware of his actual conflict of interest. The state habeas trial

court found that “Brown withdrew from representing Mr. Beathard

shortly after learning that there was a conflict.” E x parte

Beathard, Writ. No. 22, 106-01, at 5-6 Texas Court of Criminal

Appeals, May 3, 1993 (unpublished). Beathard contends that this12

finding of fact is equivalent to no finding because it is too

indefinite and that the state court should have found that Brown

knew about the conflict on November 5, 1984, after his first

meeting with Beathard. Further, Beathard argues that he is

entitled to an evidentiary hearing to establish that Brown chose to

forego certain defense strategies as a result of his conflict of

interest, and t o explore whether the prosecutor would have been

receptive to a plea bargain dur ing Brown’s ten days of

representation but for the fruits of Brown’s conflict.

Beathard’s claim fails because he has not asserted facts that,

i f established, entitle him to relief. S ee Perillo

, 79 F.3d at

444. Assuming that Brown had an actual conflict of interest

beginning on November 5, 1984, Beathard has not pleaded facts that

meet the adverse effect prong of Cuyler

. See Cuyler , 466 U.S. at

348. “[T]o show adverse effect, a petitioner must demonstrate that

some plausible defense strategy or tactic might have been pursued

but was not, because of the conflict of interest.” S ee Perillo v.

Johnson

, 79 F.3d 441, 449 (5th Cir. 1996). Beathard proposes in

this appeal four defense strategies that were not pursued: 1) Brown

failed to advise Beathard to try to make a deal to testify against

Hathorn; 2) Brown did not stay in the room while District Attorney

Price interrogated Beathard on November 5, 1984; 3) Brown did not

adequately prepare Beathard to testify in the grand jury on

November 14, 1984; and 4) Brown did not interview Hathorn about the13

murders during his ten day representation of Beathard.

It is undisputed that, during the ten days between arrest and

indictment, Brown gave sound advice to Beathard (do not talk to the

law enforcement authorities, but if you choose to make a statement,

tell the truth) which Beathard ignored. It is also undisputed that

Beathard told conflicting stories to Brown, to the police and to

the grand jury during this time period. Given the specific

circumstances of Brown’s representation, including Beathard’s

refusal to follow his counsel’s advise, his lying, the short window

of time Brown remained involved in Beathard’s representat ion and

the pre-indictment stage of the proceedings, we do not find that

Beathard has demonstrated any plausible alternative defense

strategy or tactics that might have been pursued, but were not, due

to B rown’s conflict of interest. We therefore do not find it

necessary to remand this case to district court for further

evidentiary development.

3. Guilt by association with Brown

(Point of error 2)

Beathard, in his second point of error, contends he is

entitled to habeas corpus relief even without an evidentiary

hearing because Brown’s conflict of interest left the jury with the

impression that Beathard was guilty simply because of his

association with Brown. Evidence admitted during Beathard’s trial

established that Beathard was involved as a witness in the civil2 Beathard cites Dawan v. Lockhart , 31 F.3d 718 (8th Cir. 1994),

to support his argument. In that case, Dawan’s attorney also

represented a co-defendant who implicated Dawan in a robbery and

14 case Brown had filed for Hathorn, that Hathorn believed Brown was

“crooked” and ”money hungry,” and that Beathard met with Brown

during the early stages of the capital murder prosecution.

It is well established that the government may not attempt to

prove a defendant’s guilt by showing that h e associates with

“unsavory characters.” See United States v. Singleterry

, 646 F.2d

1014, 1018 (5th Cir. Unit A June 1981)(finding plain error where

the prosecutor asked the defendant whether he associated with

felons). Guilt-by-association evidence is excludable because it

lacks relevance or is unduly prejudicial. S ee United States v.

Polasek

, 162 F.3d 878, 884 n.2 (5th Cir. 1998). Normally, rulings

concerning the admissibility of evidence are entrusted to the

discretion of the trial court, see id. at 883, and such errors do

not rise to the level of constitutional violations. Beathard

does not attempt to argue that the evidence was inadmissible due to

relevance or undue prejudice, but rather that he received

ineffective assistance because the evidence raises the specter of

guilt simply by his association with Brown. Beathard cites no

authority, and we are aware of none, for the proposition that when

the allegedly unsavory person w ith whom one associated is one’s

lawyer, th at lawyer’s assistance is per se constitutionally

ineffective. 2 This contention is without merit.then entered a plea bargain. That attorney continued to represent

Dawan, offering the co-defendant’s testimony (contradictory to his

prior statement) to exonerate Dawan. The prosecutor cross-examined

the co-defendant, vilifying the still-mutual attorney. The Eighth

Circuit held that Dawan had shown actual conflict and adverse

effect, sufficient under Cuyler to merit habeas relief on the basis

of ineffective assistance of counsel. D awan is factually and

legally distinguishable from the present case. Beathard was only

briefly associated with Brown, and Brown never represented Hathorn

in this case. Further, the statements at issue had nothing to do

with Brown ’s decisions in Beathard’s case. Further, the Eighth

Circuit’s grant of relief was based on a classic conflict-andadver se-effect analysis of the ineffective assistance of counsel

claim rather than an “association-with-unsavory-characters” claim.

For these reasons, we do not find it persuasive.

15 B. Prosecutor’s Use of Co-indictee’s False Testimony

1. Which man entered the trailer?

(Point of Error 3)

Beathard urges this court to reverse the summary judgment for

the state and remand for a federal evidentiary hearing on his claim

that the prosecutor knowingly failed to correct Hathorn’s false

testimony at Beathard’s trial. In his third point of error,

Beathard alleges that his Fourteenth Amendment right to due process

of law was violated when Hathorn testified that Beathard was the

“inside man” during the murders and prosecutor Price not only

failed to challenge him, but also argued this version of the facts

to the jury in closing argument in spite of Price’s personal belief

that Beathard was the “outside man.”

The record from Beathard’s trial reveals that the jury heard

Beathard’s version of t he facts (that he remained outside, while

Hathorn went into the trailer) and Hathorn’s version of the facts16

(that Hathorn shot through the window and Beathard entered the

trailer.) Price presented essentially the same two versions of the

facts at Hathorn’s trial, with the exception that he cross-examined

H athorn concerning whether or not he entered the trailer, rat her

than presenting Beathard’s live testimony to that effect. Hathorn

denied it, and stuck to his story presented in Beathard’s trial.

Price’s questions do not amount to evidence. Beathard emphasizes

the fact that Price adopted one theory of the case in closing

argument at Beathard’s trial and a different theory in closing

argument at Hathorn’s trial. Again, closing arguments are not

evidence. Moreover, a prosecutor can make inconsistent arguments

at the separa te trials of codefendants without violating the due

process clause. S ee Nichols v. Scott

, 69 F.3d 1255, 1274 (5th Cir.

1995). Beathard’s due process claim is premised on the Fourteenth

Amend ment’s prohibition against the knowing use of perjured

testimony. S ee Giglio v. United States

, 405 U.S. 150 (1972). The

record doe s not support such a claim. Price had two live

eyewitnesses to the crime, both charged with capital murder and

both accusing the other of being the most culpable. Each jury

heard both stories. Price, as well as every juror involved, knew

that both of the stories could not have been true. Further

development in a federal evidentiary hearing of who Price

personally believed to be telling the truth will not establish a

violation of Beathard’s due process rights. In addition, Hathorn’s3 The state trial court initially sustained the state’s hearsay

objections to the affidavit, but noted that it would be included in

the record forwarded to the Court of Criminal Appeals as Beathard’s

offer of proof. Later, the court indicated that it would admit the

affidavit. However, in its final order, the court stated that it

had sustained the state’s objection to the Shiver affidavit.

17 recantation of his earlier statements, made after both trials were

c ompleted, which is inconsistent with his own statements, with

Beathard’s versions of the events and with other evidence, does not

r aise a fact question requiring a federal evidentiary hearing on

Beathard’s due process claim.

2. Had Hathorn been offered a deal in exchange for testimony?

(Points of error 5 and 6)

Beathard’s fifth and six th points of error make the related

arguments that he is entitled to discovery and to a federal

evidentiary hearing to establis h that the prosecutor allowed

Hathorn to testify falsely that he had not been promised anything

for his cooperation with the state. The prosecutor testified in

the state habeas evidentiary hearing that there was no deal between

Hathorn and the State. During the state habeas corpus hearing,

Beathard offered the affidavit of Walter Shiver, a felon and former

mental patient at Rusk State Hospital and friend of Hathorn,

stating that, at the prosecution’s direction, he had promised

Hathorn that Hathorn would not be charged with capital murder if he

testified at Beathard’s trial. 3 The district court did not err in4 See Brady v. Maryland, 373 U.S. 83 (1963)(requiring disclosure

to defendant of material in possession of the prosecution that is

favorable to the defense and material to guilt or punishment).

18 denying a federal evidentiary hearing on the issue of Hathorn’s

putative deal with the prosecution when the only basis offered to

establish a disputed fact question was an inadmissible affidavit.

C. BRADY CLAIM

(Point of error 4)

Beathard contends that he is entitled to a federal evidentiary

hea ring on his claim that Price failed to disclose two pieces of

Brady material 4 which could have been used to create a reasonable

doubt about whether his crime was a capital offense. There is no

dispute that, prior to either trial, Price had garnered statements

from two individuals, Shiver and Larry Brown.

Shiver told Price that Hathorn called him on the day after the

murders because he was looking for a place to hide from the police,

and confided that he “got a piece of the gold” or “a piece of the

money.” Shiver stated that he took this to mean that Hathorn stole

money from his father’s wallet after the murder. Beathard asserts

that Price did not disclose this statement prior to trial and that

the defense might have used the statement to impeach Hathorn’s

testimony that he never entered the trailer or saw his father’s

wallet on the night of the murders and in obtaining further

evidence that Hathorn wa s the inside man. S ee Giles v. State of

Md.

, 386 U.S. 66, 74 (1967)(“[T]he defense mig ht have made19

effective use of the report at the trial or in obtaining further

evidence. . . .”)

Brown testified at Beathard’s trial that Hathorn had attempted

to recruit him as an accomplice in his plan to kill his family and

that Hathorn planned “to shoot through windows and walls” without

indicating who would do the shooting. Brown’s pretrial statement

to Price was more specific, stating that Hathorn had said, “all you

have to do is walk up and shoot throu gh the window,” from which,

according to Beathard’s argument, a juror could have inferred that

Hathorn planned for an accomplice to be the outside man.

The district cour t found this claim without merit on three

separate bases: 1) the prosecution turned the statements over prior

to trial; 2) even if they were not turned over, no habeas relief is

warranted because the statements were not favorable to the accused;

and 3) the statements were not material and would have had no

effect on the results of the trial or the preparation or

presentation of the defendant’s case.

Beathard contends that he is entitled to a federal evidentiary

heari ng because the state court did not make a finding of fact

concerning whether or not Price turned the two statements over to

Beathard prior to trial. However, we conclude that because the

statements were not favorable to Beathard and would have had no

effect on the outcome of the trial, the district court did not err

in finding this claim with merit. Beathard is therefore not

entitled to remand for a federal evidentiary hearing concerning20

whether the statements were turned over to Beathard prior to trial

as Price testified at the state habeas evidentiary hearing.

D. HATHORN’S TRIAL RECORD

(Point of Error 7)

Beathard complains that the district court rejected the

factual allegations made in his federal h abeas petition without

reviewing the record of Hathorn’s trial. Because of the importance

of reviewing capital sentences on a complete record, see Dobbs v.

Zant

, 506 U.S. 357, 358 (1993) , Beathard urges us to reverse the

order for summary judgment and remand this case to the district

court to reconsider in light of the relevant part of Hathorn’s

record. Beathard contends that his due process claim on

suppression of Brady material and the conflicting positions taken

by the prosecutor can only be evaluated after a detailed comparison

of the Beathard’s trial and Hathorn’s trial. Even assuming the

truth of the facts asserted (i.e. that Price did not turn over two

witness statements and that Price argued in Hathorn trial a theory

of the c ase inconsistent with the theory the State relied on in

Beathard’s trial), we have determined that there is no basis for

reversing the district court’s decision. We therefore find it

unnecessary to remand this case to the district court for review of

Hathorn’s record.

D. RIGHT AGAINST SELF INCRIMINATION

(Points of Error 8 and 9)21

Beathard testified that he was innocent at the guilt phase of

his trial and exercised his Fifth Amendment right not to take the

stand at the punishment phase. Beathard argues that the penalty

stage of his trial was tainted by a double violation of his right

a gainst self incrimination. The trial court declined, over

Beathard’ s objection, to instruct the jury that no adverse

inference could be drawn from his silence at the penalty stage.

During closing arguments, the prosecu tion referred to Beathard’s

failure to demonstrate remorse or guilt and to his perjury during

the guilt phase.

Upon request of a defendant, a trial court shall instruct

jurors that they may not draw any adverse inference from a

defendant’s failure to testify at the guilt-innocen ce stage of

trial. S ee Carter v. Kentucky

, 450 U.S. 288 (1981). This rule

also applies to the punishment phase if a defendant requests the

instruction. S ee United States v. Flores

, 63 F.3d 1342, 1376 (5th

Cir. 1995). However, failure to give the instruction may be

harmless error. S ee id. On direct appeal, the Texas Court of

Criminal Appeals recognized that Beathard was entitled to a no

adverse inference instruction at the punishment phase of his trial.

See Beathard v. State

, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989).

However, it found the error to be harmless under Chapman v.

California , 386 U.S. 18 (1967). See Beathard , 767 S.W.2d at 433.

Beathard argues here that the refusal to give the instruction was22

a violation of his Fifth Amendment right against self-incrimination

and was not harmless.

The district court concluded that Beathard could not

demonstrate that he was in any way harmed by the failure of the

trial court to issue a no adverse inference instruction during

punishment. Given the fact that Beathard had testified at the

guilt phase and the fact that the trial court instructed each juror

individually prior to trial on Beathard’s right not to testify, the

district court held that the error in failing to give the

instruction was harmless. We agree.

Finally, Beathard contends that the prosecutor’s comments

violated the Fifth Amendment prohibi t ion against a prosecutor

commenting either directly or indirectly on a defendant’s decision

not to testify at trial . See Griffin v. California , 380 U.S. 609

(1965). In determining if a comment made in closing argument is a

comment on the defendant’s decision not to testify, a court must

determine if the prosec utor’s intention was to comment on the

defendants decision or was of such a character that i t would be

construed as such by the jury. S ee United States v. Smith

, 890

F.2d 711, 717 (5th Cir. 1989). The comments made by the

prosecutors do not show an intent to comment on defendant’s failure

to testify nor were they of such a character that they could be

construed as such by the jury. The comments were directed at

Beathard’s various statements given pri or to trial and to his23

testimony at trial. The comments could not reasonably be construed

as comments upon Beathard’s failure to testify during the

punishment stage. We therefore hold that Beathard’s claim that his

Fifth Amendment right to self incrimination was violated is without

merit.

V. CONCLUSION

Based on the foregoing, we grant Beatha rd’s motion for

c ertificate of probable cause to appeal and affirm the district

court’s grant of summary judgment for the State.

Cer tificate of probable cause to appeal GRANTED. Summary

judgment AFFIRMED.