THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

 _________________________

No. 88-2855

_________________________

WARREN EUGENE BRIDGE,

 Petitioner-Appellee,

versus

JAMES A. COLLINS, Director 

Texas Department of Criminal 

Justice, Institutional Division,

 Respondent-Appellant.

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Appeal from the United States District Court

 for the Southern District of Texas

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( June 11, 1992 )

 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

 

Before POLITZ, Chief Judge, JOLLY, and JONES, Circuit Judges.

E. Grady Jolly, Circuit Judge:

The Supreme Court vacated our judgment denying Warren Bridge's

motion for certificate of probable cause and instructed us to

reconsider the case in the light of Selvage v. Collins, 110 S.Ct.

974 (1990), and Penry v. Lynaugh, 109 S.Ct. 2934 (1989). Bridge v.

Collins, 110 S.Ct. 1313 (1990). Addressing Bridge's claim on the

merits and in the light of Penry, we hold that his claim has no
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merit. Bridge argues that his death sentence was imposed in

violation of the Eighth and Fourteenth Amendments because, under

the Texas death penalty statute, the jury was unable to consider

mitigating evidence during the sentencing phase of his trial. We

hold that no major thrust of Bridge's mitigating evidence was

substantially beyond the scope of the two special questions asked

during the sentencing phase of trial. We therefore deny his motion

for certificate of probable cause and dismiss his appeal. We also

vacate the stay of execution entered by the Supreme Court. 

I

Warren Eugene Bridge was convicted of felony-murder and

sentenced to death in Texas in 1986. After Bridge's first state

and federal petitions for habeas corpus relief were denied, his

execution was scheduled for September 15, 1988. On September 8,

1988, having again exhausted state remedies, Bridge filed his

second petition for federal habeas corpus relief, arguing that the

Texas death penalty statute violates the Eighth and Fourteenth

Amendments because it allows a jury no mechanism for considering

individual mitigating circumstances during the punishment phase of

a capital trial. The state courts and the federal district court

denied the petition. 

On appeal, we initially held that Bridge's claim was not

procedurally barred even though his counsel made no objection to

the sentencing statute at trial. Bridge v. Lynaugh, 856 F.2d 712,

714 (5th Cir. 1988). We then addressed Bridge's claim on the
 

1Although Bridge failed to raise his Penry claims until his

second federal habeas corpus petition, this case differs

fundamentally from Romero v. Collins, 1992 WL 105059 (5th Cir.

May 19, 1992). In Romero, we recently reaffirmed our holding

that the Rule 9(b) abuse of writ doctrine bars a petitioner from

raising the Penry issue in a second federal habeas petition

unless he can satisfy the cause and prejudice standard enunciated

in McCleskey v. Zant, 111 S.Ct. 1454 (1991). See also Cuevas v.

Collins, 932 F.2d 1078 (5th Cir. 1991). Because Bridge's second

federal habeas petition was filed and has been pending in our

court since May 1990, well before McCleskey was decided, Bridge

has never received the notice that is a prerequisite to

dismissing a successive habeas petition for abuse. Matthews v

Butler, 833 F.2d 1165, 1170 (5th Cir. 1987). Rule 9(b) does not

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merits. Finding that Bridge made no substantial showing of a

denial of a federal right, we denied his motion for certificate of

probable cause and we denied his motion for a stay of execution.

On September 14, 1988, the Supreme court granted certiorari and

entered a stay of execution, pending its judgment in this case. 

In a revised opinion, we clarified our holding that Bridge's

claim was not procedurally barred. We held that Bridge's claim was

not procedurally barred because Bridge had good cause for his

failure to object at trial and because he would be prejudiced if we

did not review his claim. Bridge v. Lynaugh, 860 F.2d 162 (5th

Cir. 1988). In a later opinion, however, we withdrew our earlier

writings on the case, stating that our denial of Bridge's claim

rested only on the absence of "legal cause" for his failure to

raise his objection at trial. Bridge v. Lynaugh, 863 F.2d 370 (5th

Cir. 1989). In May of 1990, the Supreme Court vacated our judgment

and remanded the case back to this court for further consideration

in the light of Selvage and Penry.

1
apply in this unusual insistence.

 

2In Penry, the petitioner argued that absent a special

instruction, the jury was not allowed to give consideration to

mitigating evidence. The Supreme Court held that in Penry's

case, the jury had no vehicle to express the view that his brain

damage, mental retardation and troubled childhood reduced his

culpability for the crime. Penry, 109 S.Ct. at 2949.

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II

In Selvage v. Collins, 816 S.W.2d 390, 392 (Tex. Crim. App.

1991), the Texas Court of Criminal Appeals held that a petitioner's

failure to bring a Penry type claim at trial is not a procedural

bar to his later raising that issue.2 We must therefore address

Bridge's motion for certificate of probable cause and his appeal of

the district court's denial of his petition for habeas corpus

relief in the light of the Supreme Court's decision in Penry. 

Bridge argues that the Texas death penalty statute violates

the Eighth and Fourteenth Amendments because a jury is unable to

give consideration to mitigating evidence during the punishment

phase of the trial. Under the Texas Code of Criminal Procedure,

the jury must answer "yes" to the following two questions before

the defendant may be sentenced to death:

(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.
 

3There is a third question under the statutory scheme that

is not at issue here. It concerns provocation by the victim.

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Tex. Crim. Proc. Code. Ann., Art. 37.071(b) (Vernon 1981).3 Bridge

argues that he offered the following mitigating circumstances at

trial:

(1) That no physical evidence linked him to the crime and

that his accomplice may have actually shot the victim;

(2) That he was intoxicated at the time of the incident;

(3) That there was no talk about robbing the store

beforehand;

(4) That he was easily led by others and was under the

influence of a tough guy ten years older than he was;

(5) That afterward, he was in tears on his bed while his

accomplice was waving the gun around;

(6) That he was immature and young (19 years old) at the

time; and

(7) That he had not been connected with any violent crime

before this incident. 

Bridge argues that the jury was unable to give consideration to

this mitigating evidence because the jury was only instructed to

answer the questions "yes" or "no." 

The petitioner in Penry made a similar argument. He argued

that absent a special instruction, the jury was unable to consider

his mitigating evidence that he suffered from brain damage, was

mentally retarded and had a troubled childhood. The Court held

that Penry's sentence was imposed in violation of the Eighth

Amendment because the jury was unable to consider the effect of

Penry's evidence without a special instruction. Penry, 109 S.Ct.

at 2952. The Court found that neither of the special questions

allowed the jury to give effect to Penry's evidence. The Court

stated that although his evidence was relevant to the first
 

4The Supreme Court, in Jurek, sustained the

constitutionality of the Texas capital sentencing procedure.

 

5We are cognizant of the Supreme Court's grant of certiorari

in Graham. This court, however, is bound by the law of this

Circuit. Johnson v McCotter, 804 F.2d 300, 301 (5th Cir. 1986),

cert. denied, Johnson v. Lynaugh, 481 U.S. 1042 (1987). 

Consequently, a stay must come from the Supreme Court.

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question (deliberateness), it was also relevant beyond the scope of

the finding the jury was required to make when answering that

question. Id. at 2949. As for the second question (future

dangerousness), the Court stated that Penry's evidence was likely

to have caused the jury to consider Penry a future threat, while at

the same time reducing his moral culpability for the crime. Id.

In our recent en banc case, Graham v. Collins, 950 F.2d 1009,

1027 (5th Cir. 1992), cert. granted, 1992 WL 52201 (U.S. June 8,

1992)(No. 91-7580), we held that Penry does not invalidate the

Texas sentencing scheme and that Jurek v. Texas, 428 U.S. 262

(1976),4 continues to apply in instances where no major mitigating

thrust of evidence is substantially beyond the scope of the special

issues.5 We hold that no major thrust of Bridge's mitigating

evidence is substantially beyond the scope of the special

questions. 

The first four mitigating circumstances could have been

considered and given effect when answering the first special

question concerning Bridge's deliberateness. If the jury members

believed that Bridge's accomplice killed the victim, then they
 

6Arguably, the jury could have also considered and given

weight to this evidence during the guilt phase of the trial.

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could have answered "no" to the first question.6 Bridge's

intoxication could also have been adequately taken into account

when answering the first special question. Cordova v. Collins, 953

F.2d 167, 170 (5th Cir. 1992). Furthermore, if the jury members

believed that Bridge did not plan to rob the store, then they could

have concluded that he did not deliberately kill the victim.

Finally, if the jury members thought that Bridge was influenced or

led by his accomplice, then they could have found that Bridge did

not deliberately kill the victim.

The first mitigating circumstance and the last five could have

been taken into consideration and given effect when answering the

second question concerning Bridge's future dangerousness. If the

jury members believed that Bridge did not shoot the victim, then

they could have concluded that Bridge would not be a future threat.

If the jury members believed that Bridge did not plan to rob the

store and that he was remorseful after the incident, then they

could have concluded that he would be less likely to rob or commit

other crimes in the future. If the jury members believed Bridge's

youth and impressionability to be mitigating circumstances, then

they could have concluded that Bridge would be less likely to be

dangerous when no longer young. Graham, 950 F.2d at 1031.

Finally, the jury clearly could have taken into consideration

Bridge's past criminal record when determining whether Bridge was
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a future threat. Thus, no major mitigating thrust of Bridge's

evidence is beyond the scope of the two special questions. 

A certificate of probable cause is necessary before this Court

can hear Bridge's appeal. Fed. R. App. P. 22(b); 28 U.S.C. § 2253.

Bridge has made no substantial showing of a denial of a federal

right. Barefoot v. Estelle, 463 U.S. 880, 893 (1983). Thus,

Bridge's motion for certificate of probable cause is D E N I E D,

his appeal is D I S M I S S E D, and the stay of execution is

V A C A T E D.