IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-20826

_______________

JEFF EMERY,

Petitioner-Appellant,

VERSUS

GARY JOHNSON, Director,

Texas Department of Criminal Justice,

Institutional Division

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________ September 10, 1997

Before KING, SMITH, BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jeff Emery, proceeding in forma pauperis , appeals the denial

of his petition for writ of habeas corpus. Concluding that several

of his claims are barred by procedural default and that the others

are without merit, we affirm and vacate the stay of execution.

I.

A.

One day in 1979, LaShan Muhlinghaus returned to her apartment

and undressed. Unbeknownst to her, Emery, an accomplished burglar,2

had entered her apartment using a stolen pass key. When

Muhlinghaus entered the apartment, Emery hid in her roommate’s

closet.

Muhlinghaus went into her roommate’s bedroom to return a dress

she had borrowed. Emery attacked Muhlinghaus, stabbing her twentyfive times. After she was dead, Emery had sexual intercourse with

her body. The police did not find any evidence that Emery stole

anything.

Emery returned to the house where he lived with his wife,

D eborah Emery (“Deborah”). After showering and disposing of his

blood-stained knife and clothes, Emery drove to the scene of the

crime with Deborah to observe the police investigation. Emery

confes sed his actions to his wife and later to James Smith, his

foster brother, and Marie Michaeloff.

Emery assaulted his wife at least every other day. Although

he usually hit her with his fists, he occasionally use d a metal

bar, ashtrays, nicknacks, and lighters. He also would pound her

head on the bathtub. At least once, he hit her child, who was a

toddler, across the room. Finally, in July 1982, Deborah began

divorce proceedings. Five months later, she reported Emery’s

crimes to the police.

B.

Emery was convicted of capital murder during the commission of

a burglary, see T EX

. P EN

. C ODE A NN

. § 19.03(a)(2) (Vernon 1994), and

was sentenced to death in 1986. The Texas Court of Criminal1 In Texas, all post-conviction habeas petitions are decided by the Court

of Criminal Appeals. S ee T EX

. C ODE C RIM

. P ROC

. A NN

. art 11.07, § 2(a) (Vernon Supp.

1994) (amended 1995) (current version at T EX

. C ODE C RIM

. P ROC

. A NN

. art 11.07, § 3

(Vernon Supp. 1997)). When a habeas petition requires the resolution of

questions of fact, the state trial court that rendered the conviction performs

the fact-finding function. See id. § 2(c). The decision whether to issue the

writ still remains with the Court of Criminal Appeals.

3 Appeals reversed because portions of the trial transcript had been

stolen. S ee Emery v. Texas

, 800 S.W.2d 530 (Tex. Crim. App. 1990)

(en banc).

The state retried Eme ry and obtained a second conviction,

whereupon the jury sentenced him to death in 1991. On appeal,

Emery unsuccessfully argued, inter alia

, that the jury instructions

at the penalty phase were inadequate because they did not allow the

jury to consider all relevant mitigating evidence. S ee Emery v.

Texas

, 881 S.W.2d 702, 711-12 (Tex. Crim. App. 1994), cert. denied

,

513 U.S. 1192 (1995).

C.

In 1995, Emery filed his first state habeas petition, arguing,

inter alia

, t hat his right to testify on his own behalf had been

denied and that his counsel rendered ineffective assistance by

opening the door to the admission of his confession to Deborah and

his history of burglary and by not objecting to the introduction of

evidence that he slapped his wife. The state habeas trial court

conducted an evidentiary hearing and is sued various findings of

fact. 1 The Texas Court of Criminal Appeals denied the habeas

petition on the merits in August 1995.

In November 1995, Emery filed a second state habeas petition,2 Section 102 of the Antiterror ism and Effective Death Penalty Act

(“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-18 (1996), amended

28 U.S.C. § 2253 to require a “certificate of appealability” before a final order

in a habeas proceeding can be appealed. Because Emery filed his habeas petition

in 1995, well before the effective date of the AEDPA, this new requirement does

not apply to him, and the grant of a CPC is sufficient to vest jurisdiction in

this court. S ee Shute v. Texas , 117 F.3d 233, 236 n.1 (5th Cir. 1997) (on

rehearing). Similarly, the new standards of review contained in § 104 of the

AEDPA , 110 Stat. at 1218-19, do not apply to this petition. S ee Green v.

Johnson , 116 F.3d 1115, 1119-20 (5th Cir. 1997).

4 raising several new issues, including general challenges to Texas’s

death penalty scheme and new claims of ineffective assistance based

on counsel’s having convinced Emery not to testify and having not

objected to a part icular part of the jury charge. While that

petition was pending, Emery filed the instant federal habeas

petition.

Texas follows the rule that a state prisoner may seek habeas

relief in state or federal court, but not both. Consequently, the

Texas courts refuse to consider a habeas petition while a federal

petition is pending. S ee Ex parte Green

, 548 S.W.2d 914, 916 (Tex.

Crim. App. 1977). In February 1996, the Court of Criminal Appeals

invok ed this principle and dismissed Emery’s second state habeas

petition. In August 1996, the federal district court denied Emery

relief on all his claims but granted a certificate of probable

cause (“CPC”) to appeal. S ee Emery v. Johnson

, 940 F. Supp. 1046,

1065 (S.D. Tex. 1996). 2

II.

A.

Our analysis of the claims that Emery raised only in his

second state habeas petition is complicated by the doctrine of5

procedural default. A federal court may not consider a state

prisoner’s constitutional claim if the s tate courts based their

rejection of that claim on an adequate and independen t state

ground. S ee Martin v. Maxey

, 98 F.3d 844, 847 (5th Cir. 1996). It

is not always easy, however, to determine whether a state court

decision denying collateral relief is based on state procedural

grounds or, instead, on the court’s interpretation of federal law.

The Supreme Court has supplied us with a useful default rule: We

will not apply a procedural default unless the last state court to

c onsider a particular claim “clearly and expressly” relied on an

independent a nd adequate state ground. C oleman v. Thompson

,

501 U.S. 722, 735 (1991).

This default rule does not apply, however, “if the petitioner

failed to exhaust state remedies and the court to which the

petitioner would be required to present his claims in order to meet

the exhaustion requirement would now find the claims procedurally

barred.” Id. at 735 n.*. In such a case, “there is a procedural

default for purposes of federal habeas regardless of the decision

of the last state court to which the petitioner actually presented

his claims.” Id.

B.

1.

The federal district court reasoned that Emery’s claims were

procedurally barred because, if he tried to exhaust them in a

proper manner , they would be barred by T E X

. C ODE C RIM

. P ROC

. A NN

.3 Article 11.071 applies only to capital cases, but T EX

. C ODE C RIM

. P ROC

. A NN

.

art. 11.07, § 4 (Vernon Supp. 1997), adopts the same rule for non-capital felony

convictions.

4 If the state does not plead procedural default in the district court, it

is waived. S ee United States v. Marcello

, 876 F.2d 1147, 1153 (5th Cir. 1989).

We have recognized a limited exception to this rul e when one state implicitly

waives the default of a different state’s procedural rule. S ee Trest v. Whitley

, 94 F.3d 1005, 1007-0 9 & n.2 (5th Cir. 1996), c ert. granted sub nom. Trest v.

Cain , 117 S. Ct. 1842 (1997). Although the district court did not rely on the

abuse-of-the-writ doctrine in finding a procedural default, the state urged this

ground both on appeal and before the district court.

6 art. 1.071, § 5(a) (Vernon Supp. 1997), which prohibits the filing

of subsequent or untimely habeas applications, abse nt cause or

actual innocence. 3 S ee Ex parte Davis

, 947 S.W.2d 216 (Tex. Crim.

App. 1996) (en banc) (upholding the c onstitutionality of article

11.071). In a habeas context, we review the district court’s

determinations of law de novo and its findings of facts for clear

error. See Dison v. Whitley , 20 F.3d 185, 186 (5th Cir. 1994).

Because artic le 11.071 is a new statute that is largely

uninterpreted by state cases, we instead consider whether we should

affirm on the basis of the abuse-of-the-writ doctrine. We may

affirm a judgment on any ground supported by th e record. S ee

Mangaroo v. Nelson , 864 F.2d 1202, 1204 n.2 (5th Cir. 1989). 4

A second habeas pe tition is an abuse of the writ if the

prisoner urges grounds that could have been, but were not, raised

in his first habe as petition. S ee Russell v. Collins

, 944 F.2d

202, 205 (5th Cir. 1991) (per curiam). Such a doctrine, which the

federal courts recognize, encourages efficient justice by requiring

a prisoner to present all claims for relief at once. S ee McClesky

v. Zant

, 499 U.S. 467, 493 (1991). The Texas courts have

recognized this doctrine for over twenty years. S ee, e.g.

,5 Emery filed a motion to certify to the Court of Criminal Appeals certain

questions concerning the interpretat ion and application of article 11.071.

Because our decision does not rely on that article, we deny this motion as moot.

7 Ex parte Carr , 511 S.W.2d 523, 525-26 (Tex. Crim. App. 1974).

An abuse of the writ can qualify as a procedural bar. S ee

M urch v. Mottram

, 409 U.S. 41, 45-46 (1972) (per curi am). A

procedural bar is not adequate, however, unless it is applied

“strictly or regularly” to the “ vast majority of similar claims .”

Amos v. Scott

, 61 F.3d 333, 339 (5th Cir.), cert. denied

,

116 S. Ct. 557 (1995). Historically, Texas courts have failed to

apply the abuse-of-the-writ-doctrine in a strict or regular manner,

and, therefore, we have r efused to honor it. S ee Lowe v. Scott

,

48 F.3d 873, 876 (5th Cir. 1995).

This changed in 1994, when the Texas Court of Criminal Appeals

announced the adoption of a strict abuse-of-the-writ-doctrine,

tempered only by an exception for c ause. S ee Ex parte Barber

,

879 S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994) (en banc) (plurality

opinion). B arber represent s an adequate procedural bar for

purposes of federal habeas review. S ee Fearance v. Scott

, 56 F.3d

633, 642 (5th Cir. 1995).

Emery has not cited any post- Barber case allowing an abusive

writ, and our research has revealed none. Therefore, we are bound

to follow Fearance and to hold that Emery’s violation of Texas’s

abuse-of-the-writ-doctrine constitutes an independent and adequate

procedural bar to our consideration of his barred claims. 5

2.8

A peti tioner may overcome a procedural default by showing

cause and prejudice for that default. S ee Tucker v. Johnson

,

No. 97-20101, 1997 WL 367348, at *4 (5th Cir. July 2, 1997) (on

petit ion for rehearing). Emery argues that his failure to

anticipate the passage of article 11.071 constitutes cause for his

failure to plead all his grounds for relief in his first habeas

petition.

Emery filed his first state habeas petition in July 1995, over

one year after Barber was decided, so he cannot claim ignorance of

his duty to plead all his grounds for relief during his first

petition for collateral review. Therefore, he has shown no cause

for his violation of Texas’s abuse of the writ doctrine.

III.

A.

Emery raises several inef fective-assistance-of-counsel claims.

To establish ineffective assistance, he must demonstrate both

deficient performance by his counsel and prejudice resulting from

that deficiency. See Strickland v. Washington , 466 U.S. 668, 687

(1984).

We compare counsel’s performance to an objective standard of

reasonableness, mindful of the strong presumption of adequacy. We

will not find ina dequate representation merely because, with the

benefit of hindsight, we disagree with counsel’s strategic choices.

See Garland v. Maggio

, 717 F.2d 1 99, 206 (5th Cir. 1983) (on

petition for rehearing). To establish prejudice, Emery must6 Although Murphy and Carter were influenced by our erroneous view of the

applicability of the AEDPA to cases pending when the act became effective, they

remain precedent to the extent that they “'do[] not conflict with L indh ’s

conclusion that the chapter 153 amendments do not apply retroactively.'” T ucker

, 1997 WL 367348, at *3 n.4 (quoting Green , 116 F.3d at 1120 n.2).

9 demonstrate that counsel’s errors “render the verdict fundamentally

unfair or unreliable.” C arter v. Johnson

, 110 F.3d 1098, 1110 (5th

Cir. 1997). 6 Specifically, he must “show a 'reasonable

proba bility' that the jury would have otherwise harbored a

reasonable doubt concerning guilt.” Id.

B.

1.

Emery’s first ineffectiveness claim concerns his counsel’s

questioning Deborah about his confession, thus waiving the marital

privilege, see T EX

. R. C RIM

. E VID

. 504(1), and allowing the admission

of the confession. Explaining this claim requires some exploration

of its factual background.

Under Texas law, the marital privilege exte nds only to

confidential communications, not observed acts. See Sterling v.

Texas

, 814 S.W.2d 261, 261-62 (Tex. App. SS Austin 1991, writ ref’d)

(per curiam). Deborah testified that Emery returned to the house

shortly after the murder with a blood-stained knife and bloodstained underpants and “had blood on his arms, smeared on his arms

and his hands, on his shirt, and his pants, and some on his work

boot.” She testified that Emery drove her to the site of the

murder to watch the investigation and that Emery told James Smith

that he had killed a man in Texas and instructed Smith to request7 See T EX

. R. C RIM

. E VID

. 106 (“When a writing or recorded statement or part

thereof is introduced by a party, an adverse party may at that time introduce any (continued...)

10 verification from Debbie.

Impeaching this testimony was vital to Emery’s de fense of

mistaken identity. John Quinn, his counsel, feared that an

effective cross-examination would open the door to Deborah’s

testimony about Emery’s c onfession. Furthermore, at that time,

Emery still intended to testify. Quinn feared that Emery would

make statements that would waive the privilege and allow the

admission of the confession.

To be successful, the mistaken-identity theory required the

defense to obtain a high degree of credibility with the jury.

Consequently, one of counsel’s strategic priorities was to be

honest and straightforw ard. Accordingly, Quinn wanted to

introd uce, and lessen the impact of, any incriminating evidence

that the prosecution might present.

2.

Emery argues that Quinn was incorrect in his belief (1) that

Em ery would testify and (2) that an effective cross-examination

would open the door to the admission of Emery’s confession. It is

difficult to determine whether Quinn was correct in the latter

belief. The record reveals that the most effective portion of the

cross-examination was Quinn’s careful and detailed analysis of the

inconsistencies among Deborah’s various statements to the police.

Whether the Texas Rules of Criminal Evidence 7 would have required(...continued)

other part or any other writing or recorded statement which ought in fairness to

be considered contemporaneously with it.”); T EX

. R. C RIM

. E VID

. 107 (“When part of

an act, declaration, conversation, writing or recorded statement is given in

evidence by one party, the whole on the same subject may be inquired into by the

other . . . .”).

11 the admission of Deborah’s entire statement, including her report

of Emery’s confession, is an open question.

We need not resolve this issue of state evidentiary law. The

Sixth Amendment does not guarantee criminal defendants the right to

error-free representation. S ee Skillern v. Estelle

, 720 F.2d 839,

851 (5th Cir. 1983). Standing alone, counsel’s erroneous judgment,

if any, about the requirements of state law does not constitute

deficient performance unless it is so unreasonable that it rebuts

the strong presumption that counsel’s performance “falls within the

wide range of reasona ble professional assistance.” W ashington

,

466 U.S. at 689.

Quinn’s judgment that an effective cross-examination of

Deborah would have been impossible without opening the door to the

admission of the co nfession was reasonable. Similarly, as

explained in more detail i nfra

, Quinn’s belief that Emery would

testify and open the door to that confession also was reasonable.

These reasonable judgments, even if ultimately erroneous, satisfy

the standard for effective assistance of counsel.

3.

In any event, Emery has not demonstrated prejudice. At trial,

both Smith and Michaelof f testified that Emery had confessed to8 Cf. Romero v. Lynaugh

, 884 F.2d 871, 879 (5th Cir. 1989) (holding that a

prisoner failed to establish prejudice from the admission of cumulative evidence).

12 them. Although Emery originally told Smith that he had stabbed a

man, he later identified Muhlinghaus in a picture. Michaeloff

recounted a confession that was far more detailed and accurate than

that reported by Deborah.

In shor t, Deborah’s testimony about the confession was

duplicative of testimony given by Smith and Michaeloff. Emery

cannot demonstrate that a third source of the same confession would

have sufficed to change the res ult of his trial. 8 The lack of

prejudice is an alternative ground for denying Emery relief on this

claim.

C.

Emery’s second ineffectiveness clai m is akin to the first.

Quinn questioned Deborah about Emery’s practice of committing pass

key burglaries, opening the door to Mitchell McGr ady’s testimony

about Emery’s stealing qu arters and televisions. Emery argues

that, by opening the door to the admission of this evidence of an

extraneous act, Quinn rendered ineffective assistance.

According to Emery’s affidavit, he intended to testify about

his criminal history as a pass key burglar. His theory was that,

as an experienced burglar, he would not have entered Muhlinghaus’s

home, as it contained no thing worth stealing. At the time that

Deborah testified, Emery still intended to take the stand.

As mentioned above, Quinn’s trial strategy required him to13

mai ntain credibility by not appearing to have anything to hide.

Furthermore, Quinn reasonably believed that it was better strategy

to vet damaging information himself, rather than allowing the

prosecution to introduce it. It is not our province, on habeas

review, to second-guess counsel’s strategic choices.

Finally, Emery argues that Quinn was ineffective for not

requesting a limiting instruction for this evidence. We must

reject this argument, as the state trial court stated that it would

not have granted such a limiting instruction, because the defense

introduced the evidence. Although Emery argues that this is an

incorrect interpretation of state law, “it is not the province of

a federal habeas court to reexamine state-court determinations on

sta te-law questions.” E stelle v. McGuire

, 502 U.S. 62, 67-68

(1991).

D.

Emery’s third ineffectiveness claim concerns Quinn’s failure

to object when the prosecution questioned McGrady about Emery’s

slapping Deborah. This claim is easily dismissed.

As we have explained, a successful defense required impeaching

Deborah’s testimony. Part of the cross-examination centered on

Deborah’s delay in reporting Emery’s crime. Deborah stated that

the delay was caused by her fear of Emery. Consequently, Emery’s

slapping Deborah was admissible to show the reasonableness of her

fear. Objection to its admission would have been futile, and

failure to assert a meritless objection cannot be grounds for a14

finding of deficient performance. S ee Clark v. Collins

, 19 F.3d

959, 966 (5th Cir. 1994).

Regardi ng Quinn’s failure to request a limiting instruction

that this evidence not be considered for general criminal

propensity, Emery has not even argued that the lack of that

instruction rendered the trial fundamentally unfair or unreliable.

We conclude that Emery was not prejudiced by this failure.

IV.

A.

Emery alleges that he was denied the right to testify at

trial. A criminal defendant has a constitutional right to testify

on his own behalf. S ee Rock v. A rkansas , 483 U.S. 44, 49-53

(1987). This right can be waived only by the defendant, not by his

counsel. S ee United States v. Teague

, 953 F.2d 1 525, 1532 (11th

Cir. 1992) (en banc). A waiver of this right must be knowing and

voluntary. S ee United States v. Blum

, 65 F.3d 1436, 1444 (8th Cir.

1995), cert. denied , 116 S. Ct. 824 (1996).

Emery did not testify at his first tria l. Because he was

convicted there, he was convinced that he should do everything in

the secon d trial differently. At the beginning of the trial, he

informed his counsel that he wished to testify.

Emery and Quinn discussed his testimony several times during

the trial. Emery told Quinn radically different versions of what

happened the night of the murder. For example, at one point, he

told Quinn that he had stabbed a black male using a screwdriver to15

break into Emery’s car, and that was why he was covered with blood.

Somewhat later, Emery informed Quinn that he had met

Muhlinghaus in a bar and eventually had an affair with her. He

stated that he killed her to prevent her from exposing the adultery

to his wife. When Quinn informed him that the jury was unlikely to

believe that story, Emery suggested returning to the “screwdriver

in the parking lot story.” Faced with these conversations, Quinn

reasonably believed that Emery intended to commit perjury. Because

of this, he threatened to leave the courtroom if Emery insisted on

testifying.

In addition, Quinn believed that Emery would not stand up well

to cross-examination, that the jury would not believe him, and that

his testimony would negate the defense theory of mistaken identity.

Quinn’s co-counsel agreed with his assessment of the wisdom of

testifying but did not threaten to leave the courtroom.

The night before Emery would have testified, his counsel

finally managed to convince him not to do so. At trial the next

day, Quinn engaged in a lengthy colloquy with Emery, explaining to

him that he had the right to testify regardless of counsel’s

advice. Emery stated on the record that he understood his rights

and that he was voluntarily declining to testify.

B.

The state habeas cour t made a factual finding that Emery

understood his rights and that Quinn’s threats did not coerce Emery

into not testifying. Absent a procedural defect in the state9 Emery also argues that the state habeas court’s factual finding should

be disregarded because “[i]t ignores the perjury sponsored by trial counsel at

trial.” Emery suggests that Quinn suborned perjury by asking Emery whether

anyone had coerced him into not testifying, knowing that he would say he had not

been coerced. Of course, Emery’s argument assumes its conclusion. If, as the

state habeas court found, Quinn did not coerce Emery into testifying, Quinn did

not suborn (and Emery did not commit) perjury.

16 habeas proceeding, the state court’s factual findings are presumed

to be correct unless they are “not fairly supported by the record.”

28 U.S.C.A. § 2254(d)(8) (West 1994). Although Emery makes the

bold statement that the record is devoid of evidence that his

decision about testifying was not based on Quinn’s “threat,” we

note that this factual finding is supported not only by Quinn’s

affidavit but by Emery’s own statements under oath. 9

Our review of the record reveals a great deal of evidence that

Emery understood his right to testify and that his decision not to

do so was based on Quinn’s persuasion and not his coercion. In

addition to the statements of Quinn and Emery, we note that Quinn’s

absence during Emery’s testimony would have caused him little harm,

as Quinn’s co-counsel intended to remain in the courtroom and

perform the defense duties. There also is considerable evidence in

the record that Emery was very strong-willed and unlikely to allow

his decisions to be controlled by pressure from other persons.

Because we find sufficient support in the record, we are bound

by the state court’s factual findings. Considering that Emery

understood his right to testify and that Quinn’s actions did not

coerce him into not doing so, Emery's right to testif y was not

violated.1 0 Texas modified its death penalty procedures to comply with P enry ’s

teachings. S ee T EX

. C ODE C RIM

. P ROC

. A NN

. art 37.071 (Vernon Supp. 1997). Although

the relevant amendme nt became effective September 1, 1991, and the charge on

punishment was given November 26, 1991, the amendment applied only to offenses

committed before the effective date of the act. S ee Act of June 16, 1991,

72d Leg., R.S., ch. 838, § 5, 1991 Tex. Sess. Law Serv. 2898, 2901 (Vernon).

17 V.

Emery makes a half-hearted argu ment, based on P enry v.

Lynaugh

, 492 U.S. 302 (1989), that the Texas sentencing scheme, as

applied through the jury instructions, was unconstitutional because

it prevented the jury from considering evidence of the abuse he

suffered as a child. Instructional error of this sort does not

amount to a constitutional violation “unless there is a reasonable

likelihood that the jury applied the challenged instr uction in a

way that prevents the con sideration of constitutionally relevant

mitigating evidence.” L ackey v. Scott

, 28 F.3d 486, 489 (5th Cir.

1994) (qu oting J ohnson v. Texas

, 509 U.S. 350, 367 (1993))

(inte rnal quotation marks omitted). Furthermore, the mitigating

evidence “must demonstrate a 'uniquely severe permanent handicap[]

with which the defendant was burdened through no fault of his

own.'” T urner v. Johnson

, 106 F.3d 1178, 1189 (5 th Cir. 1997)

(quoting Graham v. Collins

, 950 F.2d 1009, 1029 (5th Cir. 1992) (en

banc), aff’d , 506 U.S. 461 (1993)).

Whatever faults may have existed in the death penalty scheme

that Texas maintained prior to 1991, see T EX

. C ODE C RIM

. P ROC

. A NN

art. 37.071(b) (Vernon 1981 & Supp. 1991) (amended 1991) (current

version at T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.071(b)-(e) (Vernon Supp.

1997)), 10 the trial court had the benefit of Penry and correctly18

modified its instruction to compo rt with the Supreme Court’s

decision. Specifically, the court instructed the jury:

[Y]our answers to the Special Issues, which determine the

punishment to be assessed the defendant by the court,

should be reflective of your finding as to the personal

moral culpability of the defendant in this case.

When you deliberate about the questions posed in the

Special Issues, you are to consid er any mitigating

circumstances supported by the evidence presented in both

phases of the trial. A mitigating circumstance may be

any aspect of the defendant’s background, character, and

record, or circumstances of the crime, which you believe

makes a sentence of death inappropriate in this case. If

you find that there are any mitigating circumstances, you

must decide h ow much weight they deserve and give them

effect when you answer the specia l issues. If you

determine, in consideration of this evidence, that a life

sentence, rather than a death sentence, is an appropriate

response to the pers onal moral culpability of the

defendant, you are instructed to answer the Special Issue

under consideration “No”.

This instruction allowed the jury to consider any appropriate

mitigating circumstance, including a history of child abuse, and

required the jury not to sentence Emery to death if a life sentence

was appropriate in light of his moral culpability. The instruction

adequately addressed the C o urt’s concerns about Texas’s death

penalty scheme by giving the jury the ability to consider any

appropriate mitigating circumstance.

Accordingly, the judgment is AFFIRMED, and th e stay of

execution is VACATED.