IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-70010

REINALDO DENNES,

Petitioner – Appellant

v.

LORIE DAVIS, Director, Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent – Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:14-CV-19

Before JONES, SMITH, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

Reinaldo Dennes (“Dennes”), a Texas death row inmate, seeks review of 

the district court’s denial of his federal habeas petition. We granted a 

certificate of appealability (“COA”) on his claims that the State wrongly 

suppressed impeachment evidence in violation of Brady v. Maryland and 

Banks v. Dretke. We AFFIRM the district court’s denial of relief on those 

claims and DENY a COA on Dennes’s challenges to the selection of two jurors.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2020

Lyle W. Cayce

Clerk

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I. Background

On September 4, 1997, Dennes was convicted of capital murder and 

sentenced to death for the murder of Janos Szucs during the commission of a 

robbery. The Texas Court of Criminal Appeals (“TCCA”) affirmed his sentence 

and conviction on direct appeal. See Dennes v. State, No. 72,966 (Tex. Crim.

App. Jan. 5, 2000). Dennes filed a state application for a writ of habeas corpus, 

which the TCCA denied based on the findings of fact and conclusions of law

made by the trial court. See Ex Parte Dennes, No. WR-34,627-02, 2013 WL 

6673058 (Tex. Crim. App. Dec. 18, 2013).

Dennes then sought federal habeas relief on thirty-three grounds in the 

Southern District of Texas. The district court denied habeas relief on all 

grounds and denied a COA, finding that “each of Dennes’s claims” was 

“foreclosed by clear, binding precedent.” Dennes v. Davis, 2017 WL 1102697, 

at *17 (S.D. Tex. Mar. 22, 2017). Dennes then sought a COA from this court, 

which we granted limited to the following three issues:

1. the claim that the state suppressed evidence that Balderas was 

a “long-time informant” for law enforcement in Harris County, 

Texas; and

2. the claim that the state suppressed evidence or denied due 

process by not timely revealing information about Balderas’s, 

Fugon’s, and Elvira’s participation in the Tsang robbery; and

3. how petitioner satisfies the cause/prejudice standards for not 

having raised these issues in the state court.

The TCCA summarized the relevant facts of the crime in its opinion on 

direct appeal:

In December of 1995, Antonio Ramirez came from Ecuador to 

work in Texas. Shortly after his arrival, Ramirez met a man 

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named Francisco Rojas who sold jewelry for [Dennes].1 Some time 

later, Ramirez gave several rings to Rojas that he wanted to sell. 

Rojas then took Ramirez and the rings to [Dennes] at [Dennes]’s 

office in the Greenrich Building on Richmond Avenue. During this 

visit, Ramirez noticed a lathe in [Dennes]’s jewelry workshop and 

began to play with it. [Dennes] asked Ramirez if he knew how to 

operate the machine and Ramirez said that he did. [Dennis] then 

“hired” Ramirez to make watch bezels for him.2

Shortly thereafter [Dennes] invited Ramirez to travel to Mexico 

with him to buy a diamond. After the diamond purchase, the pair 

returned to Texas and [Dennes] gave Ramirez more work. In early 

January, 1996, [Dennes] made a sketch for Ramirez and asked him 

if he could make the object depicted. By the time he completed the 

job, Ramirez had manufactured what turned out to be a silencer 

for [Dennes]. After the silencer was completed, [Dennes], his 

brother Alberto, and Ramirez went to a field a few minutes away 

to test it. Thinking the silencer did not work as it should, [Dennes] 

modified his design and had Ramirez make another one. [Dennes] 

test fired this model in his office.

Shortly after the completion of the second silencer, [Dennes] 

asked Ramirez to help him and Alberto rob a jewelry dealer who 

also had an office in the Greenrich Building. [Dennes] explained 

that he would take the videotape from the security station while 

Ramirez secured the diamonds and Alberto shot the dealer.

Ramirez consented, but returned to South America two days 

later.3

Estrella Martinez, [Dennes]’s lover, had a cleaning job at the 

Greenrich Building. In January of 1996, [Dennes] told Martinez 

he wanted her to let him in a side door of the building after working 

hours. He told her he was going to take some videotapes from the 

security guard’s station on the first floor. On January 22, 1996, 

[Dennes] gave Martinez a cellular phone with which he planned to 

call her to tell her when to let him and Alberto into the building. 

 

1 [Dennes] ran a business called “Designs by Reinaldo.”

2 Ramirez stated that he did not expect to be paid for this work, but thought it would 

be a good thing to do while waiting to get money from the sale of his rings.

3 Ramirez testified that he only consented so as not to alarm the Dennes brothers; 

however, he had no intention of helping them.

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[Dennes] also wanted Martinez to distract the guard so he could 

take the tapes.

Janos Szucs was a reputable wholesale diamond dealer who had 

an office in the Greenrich Building. Shortly before his death, Szucs 

had a diamond inventory worth more than $3,600,000 which he 

kept in his office safe. He also had approximately $200,000 in cash 

that he planned to use to purchase diamonds on an upcoming trip.

Szucs did not have a receptionist or secretary; access to his office 

was controlled through an electronically-locked door. Szucs had a 

television monitor in his office so he could see who was at the door 

and he would allow people in by pushing a remote button located 

on his desk. In early January 1996, Szucs and Sam Solomay 

formed a partnership and Solomay moved into Szucs’s office suite.

On January 24th, Solomay left the office at 5:40 p.m., but Szucs 

remained, explaining that he had an appointment that evening. 

David Copeland was the security guard on duty at the Greenrich 

Building that evening, working the 3:00 p.m. to 11:00 p.m. shift. A 

videotape recorder at the security desk recorded the images from 

the security cameras around the building. When Copeland arrived 

for his shift, a technician was there working on the surveillance 

system.

Around 6:30 p.m. that same evening, [Dennes] called Martinez 

on the cellular phone he had provided her and told her to open the 

loading dock door. [Dennes] and Alberto entered and immediately 

turned into a stairwell, thereby avoiding the security guard’s desk. 

Shortly after 7:00 p.m., [Dennes] called Martinez and told her to 

distract the security guard. Martinez told Copeland that she had 

locked her keys in a fifth floor office and asked him to help her 

retrieve them. A little after 7:30 p.m., [Dennes] again called 

Martinez and told her that he needed another distraction. The 

security guard kept the key to the snack bar so Martinez 

approached Copeland and told him that she needed to clean the 

area and asked if he would let her in. Shortly after Martinez began 

cleaning, however, the owner of the snack bar arrived and told her 

to come back later.

When Copeland returned to the lobby, he found a man kneeling 

behind the security desk apparently working on the security 

system. Copeland assumed this was related to the earlier repairs. 

As Copeland approached, the man scrambled to his feet and 

walked briskly toward the loading dock door. As Copeland neared 

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the security desk, the man turned and headed back toward the 

guard. When he reached Copeland, the man placed his left hand 

on Copeland’s shoulder, stuck a .9 mm gun with a silencer to 

Copeland’s chest with his other hand and fired. The man shot the 

guard again after he had fallen. As Copeland lay there playing 

dead, he heard the man walk to the security desk. He then heard 

equipment and wires being moved around followed by footsteps 

running toward the loading dock door.4 The owner of the snack 

bar called “911.”

Houston Police Officer Paul Terry arrived on the scene to find 

Copeland lying face down in the lobby. Copeland told Terry what 

had happened and the officer unsuccessfully searched for a 

suspect. Inside the lobby, Terry found spent shell casings and 

fragments of a fired bullet. He also noticed that the video 

equipment was missing.

That same evening, Szucs’s wife, Nicole, became concerned that 

her husband had not arrived home. After several failed attempts 

to reach her husband, she received a call from a friend who worked 

in the Greenrich Building who told her that the building guard had 

been shot. Nicole asked the friend to contact the building’s office 

manager. Sometime after 11:00 p.m., the building manager 

approached one of the officers remaining at the scene. Officer M.R. 

Furstenfeld and a couple of other officers then accompanied the 

manager to Szucs’s suite to check on his welfare. Upon gaining 

access to the office, Furstenfeld found Szucs’s dead body. 

Detectives who arrived at the scene noted no signs of a forced 

entry. They also noticed that the safe was empty and there were 

no signs of the $3.6 million dollar diamond inventory Szucs 

maintained or the $200,000 he was supposed to have on hand in 

cash. Plus, Szucs was not wearing the five-carat diamond pinky 

ring he always wore nor was the ring ever recovered.5 The 

 

4 As she walked toward the restrooms, Martinez looked into the lobby and saw a man 

in overalls approaching the guard with his hands behind his back. Martinez recognized this 

person as [Dennes] by his walk, but noted that he was wearing a mustache and some sort of 

disguise. Shortly after entering the bathroom, Martinez heard a strange sound. When she 

returned to the lobby, Martinez saw the guard lying on the floor bleeding.

5 Nicole testified that her husband was wearing the ring that morning when she took 

him to work.

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detectives also discovered that Szucs’s computer had been 

damaged as if someone had tried to remove a disc with tweezers.6

The police eventually focused their investigation upon 

[Dennes]. A search of his office revealed a lathe that had been 

broken down and boxed up, a fired .9 mm bullet, and an owner’s 

manual for a .9 mm Taurus handgun. Firearms examiner Robert 

Baldwin determined that the bullets recovered from Szucs’s body, 

the bullet found in [Dennes]’s office, and the bullets found in the 

lobby of the Greenrich Building were all fired from the same gun. 

Moreover, the cartridge casings found in the lobby of the Greenrich 

Building and those found in the field where [Dennes] tested the 

silencer were fired from the same gun. The weapon was 

determined to be either a Taurus or a Beretta .9 mm handgun.

Dennes, slip op. at 2–7 (Tex. Crim. App. Jan. 5, 2000) (footnotes in original).

Evidence presented at the punishment phase of trial contributed to the 

jury’s findings that it was probable that Dennes would commit acts of criminal 

violence constituting a continuing threat to society and that he caused and 

intended Szuc’s death or anticipated that a human life would be taken. The 

jury was informed that Dennes had been placed on deferred adjudication for 

180 days for indecent exposure.

Relevant here, and more important, Dennes was linked to another 

robbery that took place in 1995, within a few months of the Szucs murder. 

Specifically, Dennes had approached an acquaintance, David Balderas, to 

suggest robbing diamond courier Albert Ohayon, whom Dennes knew from 

past employment. Balderas testified that he acted as a middleman between 

Dennes and the perpetrators, Hector Fugon and Francisco Elvira, to carry out 

the 1995 robbery. Dennes’s involvement was significant: he suggested that 

Balderas commit the robbery himself or find others to do so, met with Balderas, 

Fugon, and Elvira at a fast food restaurant to discuss the robbery; provided 

Balderas with the address and drove Balderas to the neighborhood to show 

 

6 Szucs kept his diamond inventory records on the computer.

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him the house; and contacted Balderas when he learned the occupant was 

home. As it turned out, Fugon and Elvira, at the direction of Balderas, 

mistakenly invaded the home belonging to Danny Tsang, not Albert Ohayon. 

They terrorized the Tsang family, took some jewelry, a watch, a camera, some 

clothing, a gun, and a stereo system, and fled in Tsang’s car. When the police 

checked on Ohayon the following day, they learned he was in the diamond 

wholesale business and had just returned from a trip with approximately 

$500,000 worth of diamonds.

II. Standards of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”), “our review [of Dennes’s habeas petition] is limited by the COA.” 

Adekeye v. Davis, 938 F.3d 678, 682 (5th Cir. 2019). “COAs are granted on an 

issue-by-issue basis, thereby limiting appellate review to those issues alone.” 

Id. (citing Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)). To merit a 

COA, a petitioner must “demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.”

Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S. Ct. 1029, 1040 (2003) (internal 

quotation marks and citations omitted).

Further, under AEDPA, federal “court[s] may not grant habeas relief on 

a claim that a state court has adjudicated on the merits,” Harrison v. 

Quarterman, 496 F.3d 419, 424 (5th Cir. 2007), unless the state courts’ decision 

“was contrary to, or involved an unreasonable application of, clearly 

established Federal law . . . ,” 28 U.S.C. § 2254(d)(1), or “was based on an 

unreasonable determination of the facts in light of the evidence presented in 

the State court proceedings.” 28 U.S.C. § 2254(d)(2). When assessing a denial 

of habeas relief, “we review the district court’s findings of fact for clear error 

and its conclusions of law de novo.” Dorsey v. Stephens, 720 F.3d 309, 314 (5th

Cir. 2013).

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III. Discussion

A. Brady Claims

With respect to the district court’s denial of his Brady claims, Dennes

contends the State suppressed material impeachment evidence that: 

(1) Balderas7 was a police informant;8 and (2) parts of Fugon’s and Elvira’s 

testimony at their separate trial impeached important aspects of Balderas’s

testimony concerning the Tsang robbery.9 Dennes also asserts that he can 

show cause and prejudice for his failure to present relevant facts in support of 

his Brady claim in state court. Dennes contends that the State deliberately 

delayed disclosure of this impeachment evidence and suppressed critical 

information about the Tsang robbery, such that Dennes’s counsel could not 

make effective use of the information at trial.10 The district court denied all of 

Dennes’s Brady claims because “the bulk of the allegedly suppressed evidence 

was available to Dennes and was not suppressed within the meaning of Brady;” 

 

7 Balderas was called as a witness during the punishment phase and testified that he 

was never arrested or charged for the Tsang robbery, that he told prosecutors everything he 

knew about the Tsang robbery, and that he hoped to receive immunity for his role in the 

robbery in exchange for his testimony.

8 Until Dennes petitioned this court for a COA, his claims regarding Balderas’s status 

as a police informant focused on an undisclosed contractual arrangement between Harris 

County and Balderas in which the State dismissed two criminal charges against Balderas in 

exchange for his providing information unrelated to Dennes’s case. In his COA petition, 

Dennes placed much greater emphasis on his claim that Balderas had an “ongoing-informant 

relationship” with the State that lasted ten years and existed during Dennes’s trial. Neither 

the TCCA nor the district court addressed this point below.

9 Specifically, Dennes argues that during their trial for the Tsang robbery, (1) Fugon 

and Elvira both failed to identify Dennes as being involved; (2) Fugon denied knowing 

Balderas and denied that Balderas was involved in the Tsang robbery; and (3) Elvira never 

identified Balderas or Dennes as being involved in the Tsang robbery.

10 Specifically, Dennes argues that if his trial counsel had received timely advance 

notice of the Tsang robbery, “trial counsel could have moved for a continuance of Dennes’s 

trial until exculpatory witnesses Fugon and Elvira no longer had a Fifth Amendment 

privilege against self-incrimination, after their appeals became final, and Dennes could then 

compel their exculpatory testimony.”

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Dennes “fail[ed] to demonstrate that the evidence was material;” and at least 

some of his allegations were procedurally barred for failure to exhaust state 

court remedies. Dennes, 2017 WL 1102697, at *6–7.

To establish a Brady violation, Dennes had to prove that (1) the 

prosecution actually suppressed evidence, (2) the suppressed evidence was 

favorable to him, and (3) the suppressed evidence is material. See Kyles v. 

Whitley, 514 U.S. 419, 433–34, 115 S. Ct. 1555, 1565–66 (1995); see also 

Strickler v. Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999) (“The 

evidence at issue must be favorable to the accused, either because it is 

exculpatory, or because it is impeaching; that evidence must have been 

suppressed by the State, either willfully or inadvertently; and prejudice must 

have ensued.”). Evidence is considered material “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of 

the proceeding would have been different.” United States v. Bagley, 

473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). “A ‘reasonable probability’ is 

a probability sufficient to undermine confidence in the outcome.” Id.; see also 

United States v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004). But if the suppressed 

evidence was discoverable through due diligence, a petitioner’s Brady claim 

necessarily fails. United States v. Brown, 650 F.3d 581, 588 (5th Cir. 2011), 

cert. denied, 566 U.S. 970, 132 S. Ct. 1969 (2012).

1. Evidence Concerning Balderas’s Status as a Police Informant

In his motion for a new trial in state court, Dennes alleged that 

Balderas’s status as a police informant was material impeachment evidence 

that had been suppressed from the defense. Specifically, Dennes asserted that 

the state failed to disclose a contractual arrangement with Harris County 

involving different criminal offenses from those in Dennes’s case, and that the 

state had dismissed two criminal charges against Balderas in exchange for his 

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providing information also unrelated to Dennes’s case. The deal allegedly 

prompted Balderas to testify falsely against Dennes.

The state courts rejected these contentions. The state trial court 

evaluated the evidence of dealings between Harris County and Balderas and 

concluded it did not see “the relevancy at all with regard to the trial of 

[Dennes’s] case or the testimony of anybody that has provided any evidence in 

[Dennes’s] case regarding the effect of these documents on [Balderas’s] 

testimony.” Indeed, the trial court emphasized that because the contract 

involved wholly different offenses and the parties had fulfilled their 

contractual obligations months before Dennes’s trial began, this evidence 

provided no incentive for Balderas to taint his testimony in favor of the State. 

The TCCA agreed, holding, “As [Balderas] had no relation to the instant case 

and the contract was completed before the trial in [Dennes’s] case, [Dennes] 

fails to show there was a reasonable probability the outcome of the trial would 

have been different.”

The district court also agreed that the completed contract between 

Harris County and Balderas was not impeachment material because it 

provided no reason for Balderas to fabricate his testimony against Dennes. See

Dennes, 2017 WL 1102697, at *6.

In his brief to this court, Dennes argues that the information about these 

dealings is material because it shows a relationship between Balderas and the 

State, which he analogizes to the relationship between the sheriff’s office and 

the informant who was a star witness at the Banks capital murder trial. Banks 

v. Dretke, 540 U.S. 668, 693–94, 124 S. Ct. 1256, 1273–74 (2004). In Banks, 

the Supreme Court held that a Brady violation had occurred where the 

prosecution failed to turn over evidence of a money payment to the testifying

informant for his involvement in the case against defendant Banks. 540 U.S. 

at 685, 124 S. Ct. at 1269. Banks is distinguishable, among other reasons, 

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because the arrangement between Balderas and Harris County existed prior 

to and wholly independent of the case against Dennes.11 And the Bagley case 

is distinguishable because there, the witness received a benefit from testifying, 

whereas Balderas received none in this case. Bagley, 473 U.S. at 671–72, 

105 S. Ct. at 3378–79 (1985). As to this element of the claim, which was 

exhausted in the state courts, the TCCA did not unreasonably apply governing 

Supreme Court law by denying relief.

Dennes also seeks to enhance his Brady claim by asserting that the State 

failed to disclose that Balderas was an ongoing informant for Harris County 

from at least 1989 through 1999, two years after Dennes’s trial. Dennes raised 

this argument about Balderas’s ongoing informant status for the first time in 

his petition for a COA from this court. Dennes makes three claims based on 

this allegation: 1) at trial, the State falsely represented that Balderas was not 

an ongoing informant at the time of Dennes’s trial; 2) this was valuable 

impeachment evidence that Brady compelled the state to provide the defense 

and which could have been used to attack Balderas’s credibility under Davis v. 

Alaska, 415 U.S. 308 (1974); and 3) the State trial court suggested it may have 

ruled differently “if there was an ongoing relationship.”

Several procedural hurdles must be overcome for Dennes to succeed on 

this argument. The evidence in support of his contention that Balderas was 

an ongoing informant for the State derives from statements made by 

Balderas’s attorney in a federal court sentencing hearing in 1999, the 

transcript of which was never presented to the state courts. Federal courts are 

precluded, absent limited circumstances, from considering evidence in habeas 

 

11 Dennes’s related claim, raised for the first time in federal court, that Balderas’s 

drug charges were dismissed as consideration for his testimony in Dennes’s case, is not only 

entirely speculative but is procedurally barred because he failed to present the claim to the 

TCCA for review on either direct appeal or in his state habeas application, as recognized by 

the district court. See 28 U.S.C. § 2254(b)(1); Dennes, 2017 WL 1102697, at *6–7.

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proceedings that was not produced before the state courts for adjudication on 

the merits. Cullen v. Pinholster, 563 U.S. 170, 185, 131 S. Ct. 1388, 1400–01 

(2011). On that basis alone, this claim fails. But to the extent that Dennes 

raises this as a standalone Brady claim, it is also procedurally barred by not 

having been raised at all in the state courts. See 28 U.S.C. § 2254(b)(1).

Dennes attempts to show cause and prejudice as a means to overcome

the procedural bar against his unexhausted claim and to avoid AEDPA’s 

limitation on federal courts’ review to evidence developed in state court 

records. Dennes relies on Banks for the proposition that a petitioner can 

overcome a procedural bar to a Brady claim if suppression of material 

exculpatory evidence caused the default. Banks, 540 U.S. at 691, 124 S. Ct. at 

1272. 

Cause, in this context, means that the State prevented Dennes from 

gaining access to the relevant Brady information. “[A] petitioner shows ‘cause’ 

if ‘the reason for his failure to develop facts in state-court proceedings was the 

State’s suppression of the relevant evidence.’” Murphy v. Davis, 901 F.3d 578, 

597 (5th Cir. 2018) (quoting Banks, 540 U.S. at 691, 124 S. Ct. at 1272). 

Dennes claims he was not aware of Balderas’s alleged longstanding status as 

an informant for Harris County because the State withheld the information. 

But evidence is not suppressed under Brady if the defendant knew or should 

have known of Balderas’s status. Here, there is ample evidence to suggest 

that, at minimum, Dennes should have known about Balderas’s status.

At the motion for new trial hearing, Dennes’s counsel argued that 

Balderas “had a working relation and we believe the documents speak of an 

ongoing working relationship with the State of Texas out of which he received 

a dismissal of a major drug case . . . that relationship with the State and his 

desire to work with the state in order to secure dismissal of the case . . . should 

have been disclosed under Brady.” During the course of these proceedings, the 

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State also turned over Balderas’s informant contract to the trial court and 

acknowledged his informant relationship with the State. And, as if this 

evidence were not enough, Dennes’s counsel proffered the testimony of 

Balderas’s attorney, John Munier, who was present at the motion for new trial 

hearing and was willing to testify about Balderas’s informant relationship with 

the State.12 Taken together, these points establish that Dennes had, if not 

actual knowledge, sufficient opportunity to learn of Balderas’s status by the 

conclusion of the motion for new trial hearing.

Dennes claims, however, he first learned of Balderas’s status from the 

transcript of Balderas’s 1999 sentencing hearing. But supposing this is true, 

the TCCA did not decide his direct appeal until Jan. 5, 2000, and his state 

habeas appeal remained pending until 2013. Dennes v. Davis, 

2017 WL 1102697, at *3 (S.D. Tex. Mar. 22, 2017). Thus, since Dennes should 

have been aware during state court proceedings, he could have supplemented 

his brief or raised this suppression issue in state courts before filing his federal 

habeas petition.13

Even assuming arguendo that Dennes’s long-term informant status was 

“suppressed,” it is not material. “Unless suppressed evidence is material for 

Brady purposes, [its] suppression [does] not give rise to sufficient prejudice to 

 

12 John Munier was Balderas’s attorney who also later handled Balderas’s 1999 

sentencing hearing, the transcript of which allegedly notified Dennes of Balderas’s ongoing 

relationship with the State.

13 Dennes claims that he could not have raised this suppression issue in state habeas 

proceedings because the TCCA would have treated an amendment to his habeas application 

as a successor petition. But if the 1999 hearing did reveal new and suppressed information, 

then it would have satisfied the successor petition standard that the “current claims and 

issues have not been and could not have been presented previously in a timely initial 

application or in a previously considered application filed under this article or Article 11.07 

because the factual or legal basis for the claim was unavailable on the date the applicant filed 

the previous application[.]” E.g. TEX. CODE CRIM. PROC. ANN. ART. 11.071 § 5(a)(1) (West 

2003).

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overcome [a] procedural default.” Banks, 540 U.S. at 698, 124 S. Ct. at 1276

(quotation marks and citations omitted). The test for materiality and prejudice 

is whether “there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been 

different.” Bagley, 473 U.S. at 682, 124 S. Ct. at 1276; Banks, 540 U.S. at 698,

124 S. Ct. at 1276; Strickler, 527 U.S. at 280, 119 S. Ct. at 1948. Balderas’s 

conflict of interest had already been made glaringly obvious to the jury. At the 

time of Dennes’s trial, Balderas had not received an official offer of immunity 

in exchange for his testimony, and Dennes’s counsel drew significant attention 

to this fact. Additionally, and contrary to the narrative Dennes attempts to 

craft suggesting that Balderas willingly helped the prosecution, Balderas 

testified that the prosecution subpoenaed his testimony. That Balderas was

involuntarily “drug” into court suggests he did not take the stand pursuant to 

an ongoing relationship with the State. Moreover, Munier’s testimony at the 

1999 sentencing hearing affirmed that Balderas received no benefit for his 

testimony.

Evidence of Balderas’s long-time informant status would have been, at 

best, cumulative proof of bias. But cumulative impeachment is not material. 

“Undisclosed evidence that is merely cumulative of other evidence is not 

material[.]” Rocha v. Thaler, 619 F.3d 387, 396 (5th Cir. 2010); see Canales v. 

Stephens, 765 F.3d 551, 575–76 (5th Cir. 2014) (finding that suppressed 

evidence of inmate-witnesses receiving assistance with their housing and 

parole issues in exchange for testimony was not prejudicial because “the jury 

heard at least some of this information at trial,” as “Canales’s attorney at least 

asked some inmate-witnesses about being encouraged to help the State in 

exchange for benefits”); see also Felder v. Johnson, 180 F.3d 206, 213 (5th Cir. 

1999) (citing United States v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996) 

(“Suppressed evidence is not material when it merely furnishes an additional 

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basis on which to impeach a witness whose credibility has already been shown 

to be questionable.”)).

Additionally, circumstantial evidence strongly corroborates Balderas’s 

testimony. “[T]he impeached testimony of a witness whose account is strongly 

corroborated by additional evidence supporting a guilty verdict . . . generally is 

not found to be material[.]” Rocha, 619 F.3d at 396–97 (quotation marks 

omitted); see also Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir. 1995) (finding 

that a witness leading police to the decedent’s body was corroborative of his 

testimony that the defendant had murdered the decedent such that “leading 

the police to the body essentially makes his testimony unimpeachable”).

The Tsang home invasion was undertaken for jewelry, as shown by 

Fugon and Elvira’s repeated demands for diamonds. Albert Ohayon and his 

wife, Rachel, the likely intended targets of the robbery, lived just a few doors 

away. Ohayon was a diamond salesman who had just returned to Houston 

with approximately $500,000 worth of diamonds in his briefcase. Ms. Ohayon 

testified that she knew Dennes from her work in the diamond business, and 

that Dennes and her husband had worked for the same company, albeit at 

different times. MGI, Ms. Ohayon’s former place of employment, and Szucs 

Jewelry were both subsidiary companies of Satler’s Jewelry, where Dennes had 

worked.

Neither Balderas, Fugon, nor Elvira would have had any reason to know 

where a diamond wholesaler lived. Balderas, for example, was an automobile 

body shop worker. Moreover, both robberies occurred close in time,14 both were 

planned robberies of diamond wholesalers, and both were connected to the 

company Dennes had previously worked for. Such evidence makes it unlikely 

that a jury would have found Balderas to be any less credible based on his 

 

14 The Tsang home invasion occurred on November 15, 1995. Szucs’s robbery and 

murder took place just over two months later, on January 24, 1996.

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alleged informant status on unrelated matters. Once again, Dennes is unable 

to show materiality or prejudice.

Finally, several of Dennes’s extreme claims about Balderas’s “false” 

testimony simply do not square with the record. Dennes claims that the 

prosecution falsely presented Balderas as an honest witness who came forward 

of his own volition with information about the Tsang robbery and received 

nothing but immunity in exchange for his participation. Yet Dennes offers 

nothing except naked speculation to suggest this narrative is untrue. For 

example, Dennes asserts that Balderas lied when he testified that he 

“voluntarily” approached his brother-in-law, a Houston Police Department 

(“HPD”) homicide detective, with information about the Tsang home invasion. 

In support, Dennes points to Balderas’s arrest for felony possession of 

marijuana the same month he discussed the Tsang home invasion with the 

HPD. Besides the sequence of events, however, Dennes offers no evidence that 

there was a quid pro quo, the drug charges were dropped pursuant to a contract 

that concluded prior to his testimony Dennes’s trial, and Dennes ignores that 

Balderas’s testimony was subpoenaed. As another example, Dennes argues 

that the prosecution lied about their intent to use Balderas as a witness. Not 

only did the prosecution not have to disclose its witnesses or strategy at the 

January 1997 pre-trial hearing, Dennes offers no evidence that raising the 

Tsang home invasion or calling Balderas as a witness were definitive parts of 

the State’s strategy at that point. The State counters that there was no intent

to call Balderas until Fugon invoked his Fifth Amendment privilege and was 

unavailable to testify while his conviction was pending on direct appeal. This 

is corroborated by Officer Miller’s 1996 letter indicating that he intended to 

focus on securing Fugon’s testimony against Dennes.

Dennes raises these claims of “false” testimony to avail himself of the 

more lenient standard to establish prejudice under Giglio v. United States, 

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405 U.S. 150, 154, 92 S. Ct. 763, 766 (1972) (“A new trial is required if the false 

testimony could . . . in any reasonable likelihood have affected the judgment of 

the jury . . ..”) (internal quotation marks and citations omitted). But, as 

pointed out above, the allegations that the State knowingly used “false” 

testimony are dubious at best and largely foreclosed by the record. In Giglio, 

a key witness testified that he believed he could still be prosecuted for a crime 

even though the State had granted him immunity in exchange for his 

testimony. Id. at 151–52, 765. The prosecution’s failure to correct this 

blatantly false testimony led the Supreme Court to remand for a new trial. 

Dennes has not shown that anything approximating that level of false 

testimony occurred during his trial, and he is therefore held to the stricter 

materiality standards under Brady. Accordingly, Dennes has failed to show 

cause or prejudice to overcome the procedural barriers to his claims.

2. Evidence Concerning Fugon’s and Elvira’s Testimony

Dennes’s remaining Brady claims assert that the State failed to disclose 

until immediately before trial that the Tsang robbery would be offered as 

evidence of extraneous crimes during any punishment phase. Specifically, 

Dennes claims that the robbers’ testimony at their trial for the Tsang home 

invasion was known by the Harris County District Attorneys who were 

handling that case,15 but that the State did not disclose Fugon’s name or his 

role in the crime until August 13, 1997, five days before the beginning of

testimony at the guilt phase of Dennes’s case on August 18. Dennes asserts 

his counsel had insufficient time to ascertain that both Fugon and Elvira had 

 

15 Balderas offers a letter from 1996 that was faxed from an investigator in the Dennes 

case to a then-prosecutor of Dennes regarding the investigator’s discussions with Fugon, 

Elvira, and Balderas. Because this letter does not appear to have been introduced in the 

state courts, this court is prohibited from considering it. Pinholster, 563 U.S. at 185, 

131 S. Ct. at 1400–01.

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testified that they did not know Balderas and that they could not identify 

Dennes as an instigator of the Tsang robbery.16 Consequently, Dennes was 

deprived of further impeachment evidence against Balderas, the only witness 

presented by the State concerning Dennes’s involvement in the Tsang robbery. 

Dennes further argues that his federal habeas counsel only located Fugon’s 

testimony after “several months” because the State allegedly failed to provide 

Dennes’s trial counsel with Fugon’s and Elvira’s transcripts with enough time 

to “make meaningful use of the impeachment information.”

As with the late-breaking claims about Balderas’s status as a long-term 

police informant, the evidence of Fugon’s and Elvira’s testimony at the Tsang 

robbery trial was not raised in the state courts and is therefore not amenable 

to our consideration. Pinholster, 563 U.S. at 185, 131 S. Ct. at 1400–01.17

In addition, the district court, ruling on the merits, observed that most 

of this additional information originated from Fugon’s trial, and thus “the bulk 

of the allegedly suppressed evidence was available to Dennes.” Dennes, 

2017 WL 1102697, at *6.

We agree that this evidence became available to Dennes at least in 

sufficient time for him to have used it in state court proceedings. The Tsang 

trial occurred almost a year before Dennes’s capital murder trial. Fugon’s and 

Elvira’s convictions were on appeal at the time of Dennes’s capital murder 

trial. Dennes had been informed in early 1996 of the State’s plan to introduce 

evidence of his connection to an extraneous home invasion robbery. His 

 

16 Dennes posed the timing issue in various ways in the state courts and was rebuffed. 

To the extent that the timing ultimately raised only issues of state law, no federal 

constitutional claims are involved.

17 Dennes’s contention that his federal habeas counsel had to pry out the trial 

testimony of Fugon and Elvira over “several months” rings hollow in light of the timing of 

their trial in 1996 and the fact that the TCCA did not issue its ruling on Dennes’s direct 

appeal until January 5, 2000.

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counsel was given access to the HPD offense reports about the robbery, which 

revealed the perpetrators’ identities, before the beginning of the punishment 

phase when the evidence of the Tsang robbery was introduced. Most important 

for present purposes, even if, as counsel asserts, Dennes did not have timely 

access to the Fugon/Elvira trial transcript during his own trial, the transcript 

was certainly available during the over-two-year interlude between Dennes’s 

conviction and the rendering of the TCCA opinion affirming his conviction in 

2000. The State has no obligation to provide exculpatory or impeachment

evidence that is available to the defense through the exercise of due diligence. 

See Rector v. Johnson, 120 F.3d 551, 558–59 (5th Cir. 1997); see also Kutzner v. 

Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (“Brady does not obligate the State 

to furnish a defendant with exculpatory evidence that is fully available to the 

defendant through the exercise of reasonable diligence.”). The transcript was 

not suppressed during state court proceedings, yet Dennes never sought to 

offer it until his federal habeas petition. As a result, this claim is also 

unexhausted and procedurally barred from review in federal court. 28 U.S.C. 

Sec. 2254(b)(1).

B. Jury Selection Claims

Dennes also seeks a COA based on a claim that the trial court violated 

his Sixth and Fourteenth Amendment right to be tried by an impartial jury by 

denying his challenges for cause to two prospective jurors. Dennes contends 

that two venire members, Richard Miller and Martha Jean Gutierrez, were 

biased and that challenges for cause should have been granted as to both 

because their views would prevent or substantially impair the performance of 

their duties as jurors in accordance with their oaths. Dennes argues that the 

trial court erroneously required him to exercise his peremptory strikes to 

remove those jurors, and he was denied effective use of additional peremptory 

strikes whereby he would have removed two other allegedly biased jurors, 

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Irene B. Collins and Belle Symmank. The TCCA rejected this claim on the 

basis of state law.

The district court assumed arguendo that Miller and Gutierrez should 

have been removed for cause according to federal constitutional law, but 

because the record reflected that the trial court granted Dennes two additional 

peremptory strikes, after which both parties “promptly accepted the next juror 

on the list as the twelfth juror,” Dennes failed to make any showing “that any 

of the jurors, including the alternates, were not impartial.” Dennes, 

2017 WL 1102697, at *12. The court reasoned that “[a]t most, Dennes was 

forced to accept an alternate juror who he would have challenged if he had an 

additional peremptory challenge,” and thereby failed to demonstrate a Sixth 

Amendment violation. Id.

The Sixth and Fourteenth Amendments guarantee an accused the right 

to a trial by an impartial jury, but the forced use of a peremptory challenge 

does not rise to the level of a constitutional violation. See Ross v. Oklahoma, 

487 U.S. 81, 85–88, 108 S. Ct. 2273, 2277–78 (1988). Rather, a “district court’s 

erroneous refusal to grant a defendant’s challenge for cause is only grounds for 

reversal if the defendant establishes that the jury which actually sat to decide 

his guilt or innocence was not impartial.” United States v. Snarr, 704 F.3d 368, 

386 (5th Cir. 2013) (internal quotation marks and citation omitted); see also 

Jones v. Dretke, 375 F.3d 352, 355 (5th Cir. 2004) (“As a general rule, a trial 

court’s erroneous venire rulings do not constitute reversible constitutional 

error ‘so long as the jury that sits is impartial.’” (internal citation omitted)).

Even assuming that the trial court should have granted Dennes’s 

challenges for cause, Dennes cannot establish a constitutional violation 

because he used peremptory strikes to exclude both Miller and Gutierrez from 

the jury. See Ross, 487 U.S. at 85–88, 108 S. Ct. at 2277–78. Therefore, “[a]ny 

claim that the jury was not impartial . . . must focus not on [Miller and 

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Gutierrez], but on the jurors who ultimately sat.” Id. at 86, 108 S. Ct. at 2277. 

Although Dennes asserts that Collins and Symmank were actually biased 

jurors who sat on his guilt-innocence and punishment phases of trial, he fails 

to identify how or why they were biased or why his counsel did not use 

peremptory strikes to remove them. Accordingly, there was no constitutional 

violation because the challenged jurors were removed from the jury by 

Dennes’s use of peremptory challenges and Dennes cannot establish that he 

was sentenced by a partial jury. Id. Reasonable jurists would not debate the 

district court’s application of the law governing juror selection and peremptory 

strikes in capital trials to the decisions made by the state courts.

IV. Conclusion

For the above-stated reasons, we AFFIRM the district court’s denial of 

Dennes’s federal habeas petition insofar as it raises Brady issues and DENY 

COA on the jury selection issues.

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