IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DERRICK LAMONE JOHNSON, §

Petitioner, §

§

V. §

§ NO. 3:03-CV-2606-K

NATHANIEL QUARTERMAN, Director, § ECF

Texas Department of Criminal Justice § (Death Penalty Case)

Correctional Institutions Division, §

Respondent. §

MEMORANDUM OPINION AND ORDER

Petitioner Derrick Lamone Johnson (“Petitioner” and “Johnson”) has filed an application for

a writ of habeas corpus pursuant to 28 U.S.C.§ 2254. For the reasons stated herein, the application

is denied.

I. PROCEDURAL HISTORY

Petitioner was convicted of capital murder and sentenced to death by lethal injection. See

State v. Johnson, No. F99-01708-US (282nd Judicial Dist. Ct., Dallas County, Texas, Nov. 19,

1999). His conviction and sentence were affirmed on direct appeal. See Johnson v. State, 68 S.W.3d

644 (Tex. Crim. App. 2002). Petitioner filed an application for state post-conviction relief during

the pendency of his state appeal. The application was denied in an unpublished order. See Ex parte

Johnson, Writ No. 56,947-01 (Tex. Crim. App. Oct. 8, 2003). Petitioner then filed this action in

federal court. (Doc. #18.) 

II. FACTUAL BACKGROUND
2

On January 21, 1999, Johnson and Marcus Maxwell kidnaped a young woman while she

was using a payphone at the intersection of Camp Wisdom and Hampton roads in Dallas, Texas. 

The Texas Court of Criminal Appeals (“CCA”) summarized the evidence as follows:

On January 21, 1999, LaTausha Curry, age 25, lived with her parents in the Oak

Cliff area of Dallas. She owned a red, 1987 Ford Taurus. That evening she set

out for Camp Wisdom road to meet someone for a date. She never returned. In a

written confession, appellant admitted that he and an accomplice sexually

assaulted and killed Curry, and in an oral statement given before the body had

been discovered, he told the police where Curry's body could be found. The body

was found where appellant said it would be. Appellant's fingerprints were found

in the victim's car, and DNA testing matched appellant to seminal fluid found on

Curry's sweat pants.

At around midnight on the evening Curry disappeared, Stella Wilson went to a gas

station. At the station, she noticed what she described as a “burgundy” car

occupied by two young black men. One of these men later pointed a gun at her

and demanded her purse, which she relinquished. In court, she identified

appellant as the robber and driver of the car. She also identified Curry's red Ford

Taurus as the car he was driving.

About 1:30 to 2:00 a.m. on January 22 , Tanya Robinson, an assistant manager at

nd

a Jack in the Box, was driving home from work. She noticed behind her a reddish

car occupied by two people. The red car began to chase her and hit her car while

both vehicles were going about seventy-five miles per hour. She stopped her car,

and when the driver of the red car got out of the car, she put the car in reverse and

tried to run over him. Robinson then drove back to the Jack-in-the-Box and

asked an employee to call the police. She then began to chase the red car to get a

license plate number. The police subsequently joined the chase.

During the chase, Officer Larry Byers saw the red car crash and two black males

run from the car. Byers identified appellant as the driver. Robinson caught up

with the red car after the occupants had fled and therefore was not able to identify

the driver at trial. She did, however, identify the victim's Ford Taurus as the car

that had chased her. The victim's car was impounded and searched, resulting in

the recovery of various items, including a pipe made to look like a gun, a mace

dispenser, and a cell phone.

As a result of this incident appellant was charged with the capital murder of Curry

under three different legal theories: murder in the course of kidnapping, murder

in the course of robbery, and murder in the course of aggravated sexual assault. 
3

Two different theories of party liability were submitted to the jury: intent to

promote the commission of the offense and commission of the offense during a

conspiracy.

Johnson v. State, 68 S.W.3d at 647-48 (footnotes omitted). These findings are entitled to

deference under the AEDPA. This murder occurred during a crime spree spanning several days,

and included aggravated robberies (25 RR 12, 52-63, 82-95; 26 RR 34-50, 52-60, 61-71, 82-94,

103-127, State’s Ex. Nos. 9, 71, 96, 107-17), aggravated sexual assaults (25 RR 113-21, 123-54),

and aggravated assaults with a motor vehicle at high speed. (25 RR 66-79; 26 RR 64-68). The

evidence also showed the defendant to have committed an aggravated robbery the month

preceding this crime spree (25 RR 99-109), and to have previously committed aggravated

robbery (25 RR 44-45 State’s Ex. Nos. 77, 79), and burglary. (25 RR 19-31; 33-34, 37-43).

III. ISSUES PRESENTED

In thirteen grounds for relief, Petitioner complains of instructions to jurors to not consider

the law of parole in answering the future-dangerousness special issue (Grounds 1-2), ineffective

assistance of trial counsel (Ground 3), the use of prosecution’s peremptory challenges to exclude

jurors on the basis of their race (Ground 4), the denial of his challenge for cause against

venireperson Glen Davis Thomason (Ground 5), the admission into evidence his involuntary

written confession (Ground 6), insufficient evidence to support the affirmative answer to the

future-dangerousness special issue (Ground 7), the use of vague terms in the punishment special

issues (Ground 8), the requirement of ten votes for a negative verdict on a punishment special

issue (Ground 9), the impossibility under the Texas Death Penalty scheme of simultaneously

restricting the Jury’s discretion to impose the death penalty while also allowing the jury

unlimited discretion to consider all evidence mitigating against the imposition of the death
4

penalty (Ground 10), the admission of illegally-seized evidence at his trial (Grounds 11 and 12),

and cumulative error (Ground 13). Petitioner also makes a general request for discovery and an

evidentiary hearing. 

IV. PROCEDURAL BAR

Respondent asserts a procedural bar to three of petitioner’s claims. Federal courts

generally will not consider the merits of a claim resolved by the state courts on a state law ground

that is both independent of the federal question and adequate to support the judgment. See Lee v.

Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 885, 151 L.Ed.2d 820 (2002); Coleman v. Thompson,

501 U.S. 722, 729, 111 S.Ct. 2546, 2553, 115 L.Ed.2d 640 (1991). Therefore, the Court

addresses these issues first and sustains one of respondent’s objections.

Independent and Adequate State Grounds

To be independent of the federal question, a state court decision must rely upon a state

law ground that is entirely separate from the federal law supporting the merits of the claim. 

Where the state court relied both on a state procedural rule and on federal law in denying the

federal claim, federal courts "will presume that there is no independent and adequate state ground

for [the] state court decision [if it] 'fairly appears to rest primarily on federal law, or to be

interwoven with the federal law, and when the adequacy and independence of any possible state

law ground is not clear from the face of the opinion.' " Coleman, 501 U.S. at 735 (quoting

Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)(“If a state

court chooses merely to rely on federal precedents as it would on the precedents of all other

jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the

federal cases are being used only for the purpose of guidance, and do not themselves compel the
5

result that the court has reached”). “This presumption may be rebutted, and thus federal review

precluded, only if the state court ‘clearly and expressly’ stated that the state procedural ground

was a basis for its decision independent of the federal-law ground.” Foster v. Johnson, 293 F.3d

766, 786 (5th Cir. 2002)(citing Coleman, 501 U.S. at 735, and Amos v. Scott, 61 F.3d 333, 338

(5th Cir.1995)). 

To be adequate to bar federal review, a state law ground must be “firmly established and

regularly followed” by the time as of which it is to be applied, See Ford v. Georgia, 498 U.S.

411, 423-24, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991), and the state court’s application of

the procedural rule must not otherwise be exorbitant. See Lee v. Kemna, 534 U.S. at 376, 122

S.Ct. at 885. Petitioner bears the burden of showing that a state procedural rule is not adequate

to bar federal review, See Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997), that sufficient

cause and prejudice exist to excuse the procedural default, or that imposition of the bar would

result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451, 120

S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000); Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at

2565.

Analysis

In Petitioner’s first claim, he contends that he was denied his Fifth and Fourteenth

Amendment rights to due process and his Eighth Amendment right to be free from cruel and

unusual punishment when the trial court instructed the jury to not consider the law of parole in

answering the special issue regarding whether there existed a probability that Petitioner would

commit acts of violence that would constitute a continuing threat to society. (Pet. at 8-19.)

Similarly, Petitioner’s second claim complains that he was denied his Fifth and Fourteenth
6

Amendment due process rights and his Eighth Amendment right to be free from cruel and

unusual punishment when three members of the jury panel were instructed by the prosecutor

during voir dire to not consider the law of parole in answering the special issues. Respondent

contends that these claims are procedurally barred because the state habeas court denied them on

the basis that Petitioner failed to make timely objections to these instructions at his trial. (Ans.

Br. at 11-12, citing SHR at 189, 194.) Petitioner’s seventh ground for relief complains of the

insufficiency of evidence to support the affirmative answer to the first special issue on future

dangerousness. (Pet. at 82-97.) Respondent contends that his claim is procedurally barred

because Petitioner raised this issue for the first time in his application for postconviction writ of

habeas corpus in the state court, which found that such claim was barred because an attack on the

sufficiency of the evidence could only be raised in his direct appeal. (Ans. Br. at 12-13, citing

SHR. at 189.) For the reasons set out below, the Court finds that petitioner’s second claim

(improper voir dire instructions from the prosecutor on parole law ) and seventh claim

(insufficient evidence to support future dangerousness verdict) are barred from review in this

court, but that petitioner’s first claim (improper trial court instructions to jury regarding parole) is

not. 

The Court first addresses the question of whether the state court disposed of these claims

on their merits or upon independent state procedural grounds. The Supreme Court in Coleman v.

Thompson, held:

In habeas, if the decision of the last state court to which the petitioner presented

his federal claims fairly appeared to rest primarily on resolution of those claims,

or to be interwoven with those claims, and did not clearly and expressly rely on an

independent and adequate state ground, a federal court may address the petition.
7

501 U.S. at 735, 111 S.Ct. 2546. The last state court to enter orders regarding these claims was

the Texas Court of Criminal Appeals (“CCA”) on postconviction habeas-corpus review in its

order of October 8, 2003, which disposed of all of Petitioner’s twenty-two allegations as follows,

“We adopt the trial judge’s findings and conclusions. Based upon the trial court’s findings and

conclusions and our own review, the relief sought is denied.” Ex parte Johnson, No. 56,947-01

(Tex.Crim.App. 2003)(unpublished). Normally, a “denial” of relief would signify a disposition

on the merits rather than on independent state procedural grounds. See Salazar v. Dretke, 419

F.3d 384, 398-99 (5th Cir. 2005)(citing Ex parte Grigsby, 137 S.W.3d 673, 674

(Tex.Crim.App.2004) and Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App.1997) );

Bledsue v. Johnson, 188 F.3d 250, 257 (5th Cir. 1999)(also citing Ex parte Thomas, 953 S.W.2d

286, 289 (Tex.Crim.App.1997)); Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998). 

However, this Court is persuaded that two of these claims were resolved on procedural grounds. 

While the Texas cases cited did express the general rule that a “denial” is on the merits

and a “dismissal” is on other grounds, they also expressed the primary rule of construction that

“[i]n determining the nature of a disposition, we look beyond mere labels to the substance of the

action taken.” Ex parte Torres, 943 S.W.2d at 472 (holding that “[a]lthough we stated that the

other claims were “denied” without prejudice, the true effect of our disposition was to dismiss

those claims.”); see also Ex parte Thomas, 953 S.W.2d at 289 (citing Torres in support of their

conclusion that “[a]lthough we stated that applicant's second application was ‘denied without

written order,’ we should have dismissed the application for want of jurisdiction.”). In both Ex

parte Torres and Ex parte Thomas, the CCA determined that prior claims had not been disposed

of on their merits even though the court in both cases previously stated that relief had been
8

“denied”. In Ex parte Grigsby, the CCA clarified this rule in cases dealing with sufficiency of

the evidence on postconviction habeas corpus.

In denying Applicant's attack on the sufficiency of the evidence, we take this

opportunity to clarify our disposition of habeas corpus applications where an

applicant advances a challenge to the sufficiency of the evidence and we deny the

application without written order. In Ex parte Torres, addressing whether the

applicant's subsequent petitions were barred under Article 11.07, Section 4, of the

Texas Code of Criminal Procedure, we determined that “a ‘denial’ signifies that

we addressed and rejected the merits of a particular claim while a ‘dismissal’

means that we declined to consider the claim for reasons unrelated to the claim's

merits.” However, we also held that “[a] disposition is related to the merits if it

decides the merits or makes a determination that the merits of the applicant's

claims can never be decided.” A challenge to the sufficiency of the evidence

presents one of those instances where we can never consider the merits of the

applicant's claim. Therefore, today, we reaffirm our holding that where an

applicant challenges the sufficiency of the evidence on an application for a writ of

habeas corpus, and we subsequently dispose of the application by entering a

denial without written order, the applicant's sufficiency claim was denied because

the claim is not cognizable.

137 S.W.3d at 674 (emphasis in original)(footnotes omitted); see also Renz v. Scott, 28 F.3d 431,

432 (5th Cir.1994)(Texas law barring consideration of sufficiency of evidence claims not brought

on direct appeal sufficient to bar federal claim); Brown v. Collins, 937 F.2d 175, 178 (5th

Cir.1991); Kittelson v. Dretke, 426 F.3d 306, 317 n.26 (5th Cir.2005). Thus, even though the

state courts had previously stated that relief had been “denied” in each of the cited cases, the

highest Texas court determined that in each case the disposition had not been “on the merits” of

the claim presented.

Applying the Texas rule to look beyond the “label” to the substance of the prior

disposition, it is clear that the state courts disposed of the second and seventh claims on state

procedural grounds, but it is not clear whether the state courts disposed of the first claim on its

merits or on procedural grounds. The order of October 8, 2003, merely adopted the trial court’s
9

findings and conclusions, which addressed all three claims. 

First Claim

The state district court on habeas review found in the alternative that petitioner’s first

claim herein (1) was procedurally barred for failure to object at trial, (2) was procedurally barred

because it had already been raised on direct appeal, and (3) lacked merit. The portion of the state

district court’s habeas findings which addressed claim one (which was presented as his first state

claim along with a second state claim based on a similar state constitutional provision) made

alternate findings, in part as follows:

In his first and second grounds for relief, applicant challenges this Court’s

instruction forbidding the jury from considering the actual amount of time

applicant may have to serve on a life sentence. Relying on the Supreme Court

opinion in Simmons v. South Carolina, he contends the instruction violates state

and federal due process rights and the prohibits against cruel and unusual

punishment. Simmons v. South Carolina, 512 U.S. 154, 163-64 (1994). 

Procedural Bars

5. The Court finds that applicant could have, but did not object to this

instruction at trial. See Johnson, 68 S.W.3d at 655.

6. The Court recognizes that the failure to object at trial may waive the error

for collateral review. E.g., Ex parte Dietzman, 851 S.W.2d 304, 305-06

(Tex. Crim. App. 1993); Ex parte Dutchover, 779 S.W.2d 76, 77 (Tex.

Crim. App. 1989).

7. The Court concludes that grounds one and two are procedurally barred

because applicant’s failure to object at trial waived the error for purposes

of collateral review.

8. Alternatively, the Court finds that the complaint in grounds one and two

was raised by applicant in his fifth point of error on direct appeal. 

9. The Court of Criminal Appeals addressed and rejected applicant’s

complaint on direct appeal, holding that applicant’s reading of the Court’s

instruction is incorrect. See Johnson, 68 S.W.3d at 655.
10

10. Unless the prior judgment is rendered void or there is a change in the law,

claims raised on direct appeal cannot be relitigated through habeas corpus.

See Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994); Ex

parte Ramos, 977 S.W.2d 616, 617 (Tex. Crim. App. 1993).

11. The Court finds that applicant does not argue or present evidence that the

Court of Criminal Appeals’ judgment on direct appeal is void or that there

has been a change in the law.

12. This Court concludes, therefore, that applicant’s first and second grounds

for relief are procedurally barred for the additional reason that they were

addressed by the Court of Criminal Appeals on direct appeal.

The Jury Charge Was Proper

13. Alternatively, the Court concludes its jury charge was proper.

(SHR at 189-90). 

The second procedural bar against relitigating claims is not the type that would bar this

Court’s review of the merits of the claim. While this state procedural law did not allow the state

habeas court to address claims that were already raised and addressed on direct appeal, this

procedural bar is specifically excepted from the type of state law that would form an independent

and adequate state ground to bar federal habeas review. See Ylst v. Nunnemaker, 501 U.S. 797,

804 n. 3, 111 S.Ct. 2590, 2595 n. 3, 115 L.Ed.2d 706 (1991)(identifying a rule preventing the

relitigation on state habeas of claims raised on direct appeal as presenting no bar to federal

habeas review); Bennett v. Whitley, 41 F.3d 1581, 1582-83 (5th Cir. 1994). Instead, this Court

must “look through” to the earlier disposition of this claim upon direct appeal. Ylst, 501 U.S. at

804, 111 S.Ct. at 2595.

This brings us to the first procedural bar mentioned by the state habeas court: Johnson’s

failure to object to the instruction at trial. Such a state procedural ground would preclude federal
11

habeas review if relied upon by the state court. See Soria v. Johnson, 207 F.3d 232, 242-43 (5th

Cir. 2000)(holding in Texas “objections to the jury charge forfeited unless a contemporaneous

objection is made at the time the charge is prepared.”). However, the CCA on direct appeal did

not “clearly and expressly” state that it relied upon state procedural grounds. Foster v. Johnson,

293 F.3d at 786. The Texas Court of Criminal Appeals opinion on direct review held:

In point of error five, appellant contends that the trial court gave an erroneous

instruction in the jury charge regarding parole. The jury charge provided:

Under the law applicable in this case, if the defendant is sentenced

to imprisonment in the institutional division of the Texas

Department of Criminal Justice for life, the defendant will become

eligible for release on parole, but not until the actual time served by

the defendant equals 40 years, without consideration of any good

conduct time. It cannot accurately be predicted how the parole

laws might be applied to this defendant if the defendant is

sentenced to a term of imprisonment for life because the

application of those law will depend on decisions made by prison

and parole authorities, but eligibility for parole does not guarantee

that parole will be granted. You are further instructed that you

cannot consider how long the defendant might be required to serve

a sentence that is imposed. Such matters come within the

exclusive jurisdiction of the Board of Pardons and Paroles and are

no concern of yours.

(Emphasis in appellant's brief). Appellant did not object to this instruction. He

now contends that the italicized portion was erroneous and egregiously harmed

him by denying him a fair and impartial trial. He claims that the italicized

instruction effectively requires the jury to ignore the earlier instruction that the

defendant will serve forty calendar years before becoming eligible for parole and

that such an effect would violate Simmons v. South Carolina.

Appellant's reading of the instruction is incorrect. The italicized language does

not require the jury to ignore the forty-year parole eligibility requirement but

simply prevents the jury from speculating when the parole board would release a

life-sentenced defendant.

In any event, the law did not require a parole instruction at appellant's trial. 

Although Article 37.071, § 2(e)(2)(B) now requires a parole instruction to be
12

given upon defense counsel's request, the amendment that added that provision

applies only to offenses committed on or after September 1, 1999. As for

appellant's reliance upon Simmons, we have consistently rejected appellant's

argument based on that case. Point of error five is overruled.

Johnson v. State, 68 S.W.3d at 655-56. 

In this opinion, the CCA appears to have disposed of this claim on its merits, holding that

Johnson’s reading of the instruction was incorrect and rejecting his Simmons argument on the

basis of prior precedent. Therefore, the state court opinions do not appear to have consistently

applied state procedural rules in this case to prevent the state appellate court from reaching the

merits of the claim. Johnson’s failure to object to the instruction may have internally affected the

standard of review that the state appellate court applied to its consideration of the merits of this

claim (since the term “egregiously harm” from the appellant’s argument is referenced). Se e.g.,

Jimenez v. State, 32 S.W.3d 233, 239 (Tex.Crim.App.2000)(holding that if appellant did not

object at trial, then the “appropriate standard [of review] is the one for fundamental error in the

charge.”); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (en banc); Smith v.

Texas, __ U.S. __, 127 S.Ct. 1686, 167 L.Ed.2d 632 (2007)(Alito, J., dissenting, who would hold

that the Texas state court heightened standard of showing “egregious harm” for consideration of

jury instructions not objected to at trial to be “an adequate and independent state ground

sufficient to support a state judgment that precludes consideration of a federal right.”). However,

this is not clear from the state court’s opinion on direct review, which opinion at most relied

upon both state procedural law and federal law in resolving this claim. Therefore, this Court must

presume that the state court did not dispose of this claim upon independent and adequate state

grounds. See Coleman, 501 U.S. at 735. Since the CCA’s opinion on direct appeal did not also
13

contain a clear and express statement that the state procedural ground was the basis for its

decision independent of the federal-law ground, this Court declines to impose the state

procedural default as a bar to federal review of petitioner’s first claim. See Foster v. Johnson,

293 F.3d at 786. 

Second and Seventh Claims

However, the same result does not arise from the consideration of the second and seventh

claims. The CCA resolved petitioner’s second claim for relief on the basis of the state

contemporaneous objection rule. The state district court on habeas review noted that this claim

was presented in his fourth point of error on direct appeal, and denied as forfeited due to

petitioner’s failure to object at trial. (SHR at 194-95; SHF ##30-37.) The CCA opinion on direct

appeal stated, “[a]s for appellant's claim of fundamental error, we have already held that a failure

to object forfeits a claim that a prosecutor's comments about parole are incorrect or misleading. 

Point of error four is overruled.” Johnson, 68 S.W.3d at 655 (footnotes omitted). This

constitutes a plain statement that the state resolved this claim on independent state grounds. See

Foster v. Johnson, 293 F.3d at 786. This circuit has already recognized the Texas

contemporaneous objection rule as an adequate state ground to bar federal review. See Dowthitt

v. Johnson, 230 F.3d 733, 752 (5th Cir.2000);.Amos v. Scott, 62 F.3d 333 (1995). Petitioner has

not shown any cause-and-prejudice or manifest injustice to excuse this procedural default and

prevent it from barring this claim from federal habeas corpus review. See Edwards v. Carpenter,

529 U.S. at 451, 120 S.Ct. at 1591; Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565.

Therefore, petitioner’s second claim for relief is procedurally barred. The Court finds in the

alternative that if petitioner’s second claim for relief were not procedurally barred, it would be
14

barred by the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060,

1075, 103 L.Ed.2d 334 (1989). See infra, Section VI.

Similarly, the CCA resolved petitioner’s seventh ground of relief presented in this cause

on the ground that he failed to comply with the state requirement that a sufficiency of evidence

claim be brought only in the direct appeal of his conviction. This claim was presented initially as

the thirteenth and fourteenth claims for relief in his post-conviction application for writ of habeas

corpus. The state district court on habeas review found, in part, as follows:

Applicant next challenges the legal sufficiency of the evidence to support the

jury’s affirmative answer to the future dangerousness special issue. He contends

the insufficiency violates due process and the proscription against cruel and

unusual punishment.

Sufficiency Claims Are Not Cognizable on Habeas Corpus Review. 

120. It has long been the general rule that the sufficiency of the evidence cannot

be collaterally attacked. See Ex parte McLain, 869 S.W.2d 349, 350 (Tex.

Crim. App. 1994); Ex parte Brown, 757 S.W.2d 367, 368 (Tex. Crim.

App. 1988). The proper avenue for applicant to raise his insufficiency

claim was on direct appeal.

121. A writ of habeas corpus may not be used as a substitute for appeal. 

Ramos, 977 S.W.2d 617. 

122. Accordingly, this Court concludes that applicant’s legal sufficiency

complaint is not cognizable in a post-conviction writ of habeas corpus and

should not be addressed.

(SHR 210; SHF ## 120-122.) The state habeas court then conducted an extensive analysis in the

alternative, concluding that the evidence was legally sufficient to support the jury’s verdict. (SHR

210-19; SHF ## 123-50.) The Court finds that the state district court performed a reasonable

analysis of the merits of this claim which was supported by the evidence presented at the trial. 

Accordingly, were this claim not barred, it would be denied on its merits. However, the mere
15

fact that the state court proceeded in the alternative to consider the merits of this claim will not

eliminate or excuse the procedural bar. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct.

1038, 103 L.Ed.2d 308 (1989); Fisher v. Texas, 169 F.3d 295, 300 (5th Cir.1999). The Texas

CCA adopted these findings in its decision to deny relief. Ex parte Johnson, No. 56,947-01 at 2

(Oct. 8, 2003)(unpublished). 

Failing to comply with the Texas requirement to present sufficiency-of-the-evidence

objections on direct appeal is an adequate state ground to bar federal review. See Dretke v. Haley,

541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004); Coleman v. Quarterman, 456 F.3d 537,

546 (5th Cir. 2006), cert. denied, __ U.S. __, 127 S.Ct. 2030 (2007); Renz v. Scott, 28 F.3d 431,

432 (5th Cir. 1994). Petitioner has not shown any cause-and-prejudice or manifest injustice to

excuse this procedural default. See Edwards, 529 U.S. at 451, 120 S.Ct. at 1591; Coleman, 501

U.S. at 750, 111 S.Ct. at 2565. Therefore, petitioner’s seventh claim for relief is also

procedurally barred. 

V. STANDARD OF REVIEW

The standard of review in federal habeas proceedings is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, which provides, in

pertinent part:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a state court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim –

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

involved an unreasonable application of, clearly established
16

Federal law, as determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in a State court proceeding.

28 U.S.C. § 2254(d) (1996). This statute applies to all federal habeas corpus petitions which, as

with the instant case, were filed after April 24, 1996, provided that they were adjudicated on the

merits in state court. See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 2063, 138 L.Ed.2d

481 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the

state court’s disposition of the case on substantive rather than procedural grounds. See Green v.

Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).

Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and

fact. See Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). Under the “contrary to” clause, a

federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion

opposite to that reached by the United States Supreme Court on a question of law or if the state

court decides a case differently from the United States Supreme Court on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146

L.Ed.2d 389 (2000). With respect to the “unreasonable application” clause, a federal court may

grant a writ of habeas corpus if the state court identifies the correct governing legal principle from

the United States Supreme Court’s decisions, but unreasonably applies that principle to the facts

of the prisoner’s case. Id., 529 U.S. at 413, 120 S.Ct. at 1523. Under Williams, a state court

unreasonably applies Supreme Court precedent if it “unreasonably extends a legal precedent from
17

[Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to

extend that principle to a new context where it should apply.” 529 U.S. at 407, 120 S.Ct. at 1520.

Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th

Cir. 2000). Under § 2254(d)(2), federal courts must give deference to state court findings unless

they were “based on an unreasonable determination of the facts in light of the evidence presented

in the state court proceeding.” Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000) (as

modified on denial of rehearing). The resolution of factual issues by the state court is

presumptively correct and will not be disturbed unless the prisoner rebuts the presumption by

clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

VI. PAROLE LAW

In his first three claims, Petitioner complains about the instructions to the jury regarding

his eligibility for parole. His first claim alleges that he was denied due process of law and had

cruel and unusual punishment imposed upon him in violation of the Fifth, Eighth, and Fourteenth

Amendments to the Constitution when the trial court instructed the jury not to consider the law of

parole in answering the special issue regarding whether there existed a probability that Petitioner

would commit acts of violence that would constitute a continuing threat to society (hereinafter

also referred to as the “future dangerousness” special issue). (Pet. at 8-20.) Petitioner’s second

claim has already been denied as procedurally barred, see supra Section IV, but in it he claimed

that he was denied these same constitutional rights during voir dire when the prosecutor instructed

three members of the jury to not consider the law of parole in answering that future dangerousness

special issue. (Pet. at 21-32.) Petitioner’s third claim alleges that he was denied his right to the

effective assistance of counsel as guaranteed by the Sixth Amendment when his trial defense
18

counsel failed to object to these instructions. (Pet. at 33-49.) For the reasons set out below, these

claims are denied. 

Jury Instructions

Respondent argues that petitioner’s first claim relies upon an extension of Simmons v.

South Carolina, 512 U.S. 154, 168-69, 114 S.Ct. 2187, 2196 (1994), that would constitute a new

rule that he would not be entitled to rely upon due to the non-retroactivity doctrine of Teague. See

Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). (Ans. Br. at

19). This Court agrees.

 At the time of his trial, Texas law required any person serving a life sentence for a capital

murder to serve at least 40 years before becoming eligible for parole. Tex. Gov. Code §

508.145(b)(West 1997). However, Texas law did not allow an instruction to the jury regarding

parole eligibility, see Smith v. State, 898 S.W.2d 838, 846 (Tex.Crim.App.1995). Petitioner

presented this claim to the Texas Court of Criminal Appeals on direct appeal, See Johnson v.

State, 68 S.W.3d at 655-56, and in his postconviction application for writ of habeas corpus (SHR

at 80-91), which was denied. Ex parte Johnson, Writ No. 56,947-01 (Tex. Crim. App. Oct. 8,

2003)(unpublished). 

The Supreme Court in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129

L.Ed.2d 133 (1994), observed that federal courts will generally defer to a state court’s

determination of what a jury should and should not be told about sentencing. See id. at 168, 114

S.Ct. at 2196. In death penalty cases where future dangerousness is an issue and one of the

options includes life without parole, the Supreme Court carved out an exception to this general

rule. 
19

But if the State rests its case for imposing the death penalty at least in part on the premise

that the defendant will be dangerous in the future, the fact that the alternative sentence to

death is life without parole will necessarily undercut the State's argument regarding the

threat the defendant poses to society.

Id. at 168-69, 114 S.Ct. at 2196. Therefore, Simmons requires that the jury be instructed about the

defendant’s parole eligibility “only where state law provides for life imprisonment without

possibility of parole as an alternative to the death penalty.” See id. at 156, 114 S.Ct. 2187;

Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 2120, 147 L.Ed.2d 125 (2000); Woods

v. Cockrell, 307 F.3d 353, 361 (5th Cir. 2002). 

Our Circuit has recognized that such an option was not available in Texas at the time of

Petitioner’s trial.

In Simmons, the Supreme Court held that if the defendant's future dangerousness is at issue

and state law prohibits the defendant's release on parole, due process requires that the

sentencing jury be informed that the defendant is ineligible for parole. 512 U.S. at 156,

114 S.Ct. at 2190. This Court has explained that Simmons requires that a jury be informed

about a defendant's parole ineligibility only when (1) the state argues that a defendant

represents a future danger to society, and (2) the defendant is legally ineligible for parole. 

Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994)(footnote omitted). Miller concedes that

Simmons is distinguishable because Simmons was not eligible for parole and "would have

effectively spent his natural life in the penitentiary." More to the point, because Miller

would have been eligible for parole under Texas law if sentenced to life, we find his

reliance on Simmons "unavailing." Id.

Miller v. Johnson, 200 F.3d 274, 290-91 (5th Cir. 2000). Since Petitioner would have been

eligible for parole if not given the death penalty, he was not entitled to an instruction on his parole

eligibility under Simmons, and any extension of Simmons would be barred under the nonretroactivity doctrine announced in Teague. See Woods, 307 F.3d at 361-62; Coleman v.

Quarterman, 456 F.3d 537, 544-45 (5th Cir.2006); Hughes v. Dretke, 412 F.3d 582, 591-92 (5th

Cir.2005). Therefore, Petitioner’s first claim for relief is barred by Teague. 
20

Ineffective Assistance of Counsel

In his third claim, Johnson contends that his attorney was constitutionally ineffective for

failing to object to these instructions. The Sixth Amendment guarantees a defendant the right to

the effective assistance of counsel. U.S. CONST. Amend. VI. The two-pronged standard by which

a claim of ineffective assistance of counsel is measured is set forth in Strickland v. Washington,

466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). The first prong of Strickland

requires the defendant to show that counsel’s performance was deficient. Strickland, 466 U.S. at

698. The second prong of this test requires the defendant to show prejudice by demonstrating that

there is a reasonable probability that, but for counsel’s deficient performance, the result of the

proceeding would have been different. Id. at 694. The court need not address both prongs of the

Strickland standard if the complainant has made an insufficient showing on one. Strickland, 466

U.S. at 697.

As discussed above, the law would not support the objection to this charge suggested by

Petitioner, or even any parole instruction at all. Any such objection by trial counsel would have

been pointless since the appellate point thus preserved would have been denied for lack of merit. 

Therefore, the attorney’s conduct was not deficient. See McCoy v. Lynaugh, 874 F.2d 954, 963

(5th Cir.1989)(holding that attorney's performance was not deficient for failing to make a futile

objection). In fact, counsel obtained more for Johnson than the law would have required. Even

though not legally entitled to a parole instruction, defense counsel filed a pretrial motion with a

special request that the jury be charged that “[a] prisoner serving a life sentence for a capital

felony is not eligible for release on parole until the actual calendar time the prisoner has served

without consideration of good conduct time, equals 40 calendar years.” (Supp. CR 151.) This
21

appears to be one of the motions that was not orally argued on the record but the trial judge made

rulings “based on what was argued in the Motions themselves.” (21 RR 17.) This special request

appears have succeeded since the substance of the requested instruction appears in the final

punishment charge to the jury. (CR 36-37.) Therefore, petitioner’s trial counsel succeeded in

obtaining more than the law required and any further objection to these jury instructions

concerning parole eligibility would not only have failed to reveal any further instruction to which

Johnson was entitled, but would have invited the trial court to further scrutinize such instructions

and risk losing the unwarranted benefit he had received. This certainly falls within the wide range

of reasonable trial strategy. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Petitioner’s third

claim for relief is denied for lack of merit. 

VII. BATSON

In his fourth claim for relief, Petitioner complains that he was denied his right to equal

protection as guaranteed by the Fourteenth Amendment when the trial court overruled his

objection to the prosecutor’s exercise of a peremptory challenge as being racially motivated in

violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). (Pet. at 50-

58.) For the reasons set forth below, this claim is denied.

Evaluating Batson claims 

The Supreme Court has provided a three-step process to determine whether a prosecutor

has exercised peremptory challenges in a manner that violates the Equal Protection Clause of the

Fourteenth Amendment to the Constitution. See Batson, 476 U.S. at 96-98 (1986); Hernandez v.

New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991); Miller-El v.

Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 2324, 162 L.Ed.2d 196 (2005). First, the defendant at
22

voir dire must make a prima facie showing that the prosecutor exercised it on the basis of a juror’s

cognizable racial background. See Batson, 476 U.S. at 96-97; Hernandez, 500 U.S. at 358;

Miller-El, 545 U.S. at 239; Soria v. Johnson, 207 F.3d 232, 237 (5 Cir. 2000), cert. denied, 530 th

U.S. 1286, 121 S.Ct. 2, 147 L.Ed.2d 1027 (2000). Second, the burden then shifts to the proponent

of the strike to articulate a race-neutral explanation for removing the potential juror in question. 

See Batson, 476 U.S. at 97-98; Hernandez, 500 U.S. at 358-59; Miller-El, 545 U.S. at 239; Soria,

207 F.3d at 237, 239. Finally, the trial court must determine whether the opponent of the strike

has carried his burden of proving purposeful discrimination. See Batson, 476 U.S. at 98;

Hernandez, 500 U.S. at 359; Miller-El, 545 U.S. at 239; Soria, 207 F.3d at 239. “[A] defendant

may rely on ‘all relevant circumstances’ to raise an inference of purposeful discrimination.”

Miller-El, 545 U.S. at 240 (citing Batson, 476 U.S., at 96-97.)

Even though this process involves a shifting of the burden of proof, the ultimate burden of

persuasion rests with, and never shifts from, the opponent of the strike. See Purkett v. Elem, 514

U.S. 765, 768 (1995); Soria, 207 F.3d at 239. Once the trial court makes a determination of this

ultimate question of discriminatory intent, such decision constitutes a finding of fact entitled to

great deference. See Hernandez v. New York, 500 U.S. at 364. This is due in large part to the

importance of the findings on credibility. Id. at 365. Such deference standard existed prior to the

AEDPA, and applies independent of the AEDPA. 

Facts

The trial court conducted individual voir dire of the venirepersons, including Carol Vines,

an African American. The prosecution first examined venireperson Vines through assistant

district attorneys Greg Davis and Tom D’Amore. (9 RR 24.) Then, the defense conducted their
23

voir dire examination through attorneys Wayne Huff and Karo Johnson. (9 RR 24, 43.) At the

conclusion of these examinations, the prosecutor challenged this potential juror for cause on the

basis of her answers indicating that she would automatically assess the death penalty if she found

the defendant guilty. (9 RR 64.) The trial court conducted a further examination of venireperson

Vines regarding this stated ground and received assurances from the venireperson that she would

follow the law and not “automatically” answer the question to the jury about punishment, but

would go by the evidence that was given to her. (9 RR 66-67.) 

At the end of this further examination, the prosecutor announced that if the court did not

grant his challenge for cause the he would exercise a peremptory challenge. (9 RR 68). The trial

court then denied the prosecutor’s challenge and the defense attorney immediately objected to the

prosecutor’s exercise of a peremptory challenge, noting that she was “a person of African

American descent” as was the defendant, and that this juror “is as strong on paper, at least, and in

her answers to the State as any person that we’ve selected on this jury.” (Id.) The defense attorney

proceeded to argue that this strike has been exercised for reasons of race that are prohibited by the

Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, as well as state

law grounds. (9 RR 68-69.) Before the trial court responded to this defense objection, the

prosecutor volunteered his reasons for striking this venireperson, as follows:

Well, the reasons for my striking this juror have nothing to do with race. The first

reason I’m using is her failure to disclose her own arrest for the offense of driving

while license suspended. That’s going to be Case Number 91-56467 in Dallas

County. It shows to be the same date of birth, and this juror did not disclose that

arrest on her questionnaire. 

The second reason would be the information she gave to me concerning her

feelings about police, which I take to be negative.
24

In this case, I will relate to the Court that I will have testimony that a suburban

police officer attempted to stop this particular Defendant while he was driving a

stolen car, and that this witness–this juror has indicated that she feels some

resentment towards police and the way that they conduct their activities,

particularly towards young minorities, and in particular has expressed her

resentment, in my opinion, about how a suburban police department has treated her

nephew, who happens to be twenty-one years old, which is roughly the age of this

Defendant–her nephew is African-American, as is this Defendant–and has also told

us that her nephew has been involved in two harrassment lawsuits against police

departments in the past and has indicated that he was won both of them.

My third reason would be her answers on Question Number 1, which I–I tend to

believe the first response from any juror up here, and her first response to me on

Question Number 1 is that she would automatically answer it. And I noted that in

your questioning of her that, again, her first response to you was that she would

automatically answer that. And coupled with her feelings for everyone who should

commit capital murder, I think that she honest has a bias against Question Number

1.

I would also say that I believe this juror has an honest bias against the range of

punishment for murder. You will note in her response to me again that after the

law was explained to her that she said that she would never consider something as

little as five years. 

On questioning from the Defense counsel, her first response was again that she

would never consider anything as low as five years. When Defense counsel

attempted to use an example concerning mercy killing in this case, she said that

even in that circumstance that she would not consider anything as little as five

years; in fact, her response was the old spouse should have had enough courage to

go ahead and kill themselves and not to involve the innocent spouse.

And then she stated to Defense counsel that the only circumstance where she

would consider a five-year sentence for the offense of an intentional murder is in

the situation of self-defense, which would not even be a murder case. 

The last reason that I would submit this juror on is her inability to follow the law

on Question Number 3. And again, going back to her first response to me after the

law was explained to her on Question Number 3, she will have already decided that

to be true beyond a reasonable doubt. 

Her response in that regard was that she doesn’t want anyone getting out of jail and

possibly hurting someone else again and causing harm to their families, and that

she would not allow anyone to do that if she’d got as far as Question Number 3.
25

And so, for that reason, I believe that she has an honest bias against Question

Number 3 and, if she encountered that question in this case, would answer that

question “No,” knowing that her response would result in an automatic death

sentence for Derrick Johnson. 

(9 RR 69-71.) The court then elicited a response from the defense counsel, 

THE COURT: Mr. Huff, do you have a response?

MR. HUFF: No–well, as far as the last half of Mr. Davis’ presentation,

I–I would submit to the Court that only goes to show that

she is a strong albeit qualified State’s juror.

THE COURT: All right. The Court finds that the reasons that the State has

listed into the record as the reason for the peremptory strike

are race neutral.

(9 RR 71-72.) The trial court then excused venireperson Vines from the jury. 

Analysis

This Court is particularly mindful of the Supreme Court’s opinions in Miller-El v. Dretke,

which found that the Dallas County District Attorney’s office had engaged in a number of actions

in the exercise of peremptory strikes that showed patterns of racial discrimination proving that the

state courts were unreasonable in their rejection of those Batson claims. Therefore, this analysis

will pay careful attention to the lessons of Miller-El, even though not cited by either party herein. 

The Texas CCA on direct appeal lumped these five reasons into three categories as

follows: 

In response to appellant's objection, the State offered the following reasons for the

strike:

1. Vines failed to disclose, on her jury questionnaire, a prior arrest

for driving while her license was suspended.

2. Vines's answers to questions revealed a resentment towards

police officers.
26

3. Vines had an undue tendency to answer the future dangerousness

affirmatively, was biased against the minimum range of punishment

for the lesser included offense of murder, and harbored a bias

against the mitigation special issue.

Johnson v. State, 683 S.W.3d at 648. The CCA then correctly noted that the defense presented no

evidence before the trial court to rebut any of these reasons. Id. It then applied the three-step

process described in Batson, properly finding that the first step became moot when the prosecutor

volunteered his reasons for the strike. See Johnson, 68 S.W.3d at 649; Hernandez v. New York,

500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). Then, the CCA examined

each of the stated reasons for the strike separately to determine both whether the stated reason was

race-neutral and whether Johnson had proven purposeful discrimination by showing that the

reason was merely a pretext for discrimination. 

It its discussion of the first reason, the venireperson’s failure to disclose her prior arrest,

the CCA noted Johnson’s complaint that the prosecutor had not inquired further of the

venireperson. See Johnson, 683 S.W.3d at 649. In Miller-El, the Supreme Court addressed the

situation where a prosecutor’s reasons for suspected peremptory strikes were provided long after

the trial had been concluded and all jurors discharged. The Court noted that the Dallas County

prosecutor’s failure to engage in any meaningful voir dire examination on a subject that the

prosecutor later claimed to have been concerned about was evidence suggesting that the

explanation was a sham and a pretext for discrimination. See Miller-El, 545 U.S. at 246 (citing Ex

parte Travis, 776 So.2d 874, 881 (Ala.2000)). However in this case, the prosecutor disclosed in

open court the information in his possession, which included the Dallas County case number,

name and date of birth of the venireperson. (See 9 RR 71) ; Johnson, 683 S.W.3d at 649. Both the
27

trial court and the defense were given a full opportunity to examine the prosecutor or recall the

venireperson if there was any question about the veracity of this information. Since the

information was fully disclosed while the venireperson was still available and yet no further

examination was attempted, this portion of the case appears distinguishable from the inference

assessed in Miller-El. 

The Texas court focused on an absence of proof in finding that Johnson had not shown

that this first reason was either incorrect or a pretext for discrimination. See Johnson, 683 S.W.3d

at 649. This determination is supported by the record, appears correct, and has not been shown to

be incorrect by clear and convincing evidence. The second reason given was developed by the

prosecutor during the voir dire examination. 

Venireperson Vines testified that the police had harrassed people like her nephew, a 21-

year old African American male, by stopping him to see if he was doing anything wrong.

A. I feel like some police officers, they’d rather sit and try to sit and try to give

– give out – issue tickets for small things when, to me, they know, say, for

instance, that is a – a dope house on the corner. You know there’s a dope

house there; go ahead and try to shut that place down so the kids can play in

the neighborhood and everybody can be safe, rather than trying to hide

around a tree or something just to give a ticket, a speeding ticket or

something. I don’t agree with that. 

Q. Right. Have you seen that happen yourself or – 

A. Through a family member, I have.

Q. Okay. Which family member was that?

A. My nephew.

Q. Okay. You know, without going into great detail, in general, what

happened there?
28

A. He – he drives a – a certain type of car which is known is easy to – to steal,

and a lot of young men get stopped in a certain area because of the type of

car they drive and because they are young, and I feel that the police officers

are stopping them and harassing them in hopes that they have warrants out,

or no insurance or something like that. 

Q. Right.

A. If it’s – if they did not do any traffic violation, then I don’t feel you should

be stopped.

Q. Right. How old is your nephew?

A. Twenty-one.

Q. Okay. And does he get stopped in – near where he lives? Is that the

situation or –

A. Yes, and he – he previous – he just moved, and now his mom has to drive

his car just so he won’t get stopped. They have switched cars so he won’t

have that problem.

Q. Where was he getting stopped at?

A. Garland, Texas. And he’s won – he’s won harass – he’s won two

harassment cases there already. 

(9 RR 40-42.)

The CCA noted Johnson’s complaint that the trial court overlooked other testimony given

by Vines that was favorable to police officers. See Johnson, 683 S.W.3d at 650. The CCA stated, 

Regarding the State's second reason-the prospective juror's resentment towards the

police-appellant contends that the trial court overlooked other testimony given by

Vines that was favorable to police officers. Vines made both positive and negative

comments about police officers. She stated that she thought some officers took

advantage of their uniforms and positions to harass innocent victims-including her

twenty-one year old nephew-but she also stated that she was grateful to officers

who put their lives on the line and her main complaint was that too much time was

spent on traffic violations rather than enforcement against serious offenses. While

Vines did give some positive feedback about police officers, the State was entitled
29

to believe, based upon the negative feedback that she gave, that her presence on the

jury would be adverse to the State's interests.

Johnson, 683 S.W.3d at 650. 

Although not raised by the parties, one question inherent in this explanation deserves

discussion: whether this reason is race-neutral on its face even though the venireperson’s attitude

towards the police arose from police harassment of her nephew, an African American youth,

under circumstances that reasonably appear connected with race. The Supreme Court opinion in

Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), aids this Court’s

analysis. 

In Hernandez, the defendant was Hispanic as were the victims and several witnesses. The

prosecutor exercised peremptory strikes to remove apparently Hispanic venirepersons because of

the prosecutor’s concern over whether their Spanish-speaking ability would prevent them from

being able to accept the interpreter as the final arbiter of the testimony of Spanish-speaking

witnesses. Id., 500 U.S. at 356-57, 111 S.C. at 1864-65. In upholding the neutrality of the

prosecutor’s reason, the Supreme Court explained,

In evaluating the race neutrality of an attorney's explanation, a court must

determine whether, assuming the proffered reasons for the peremptory challenges

are true, the challenges violate the Equal Protection Clause as a matter of law. A

court addressing this issue must keep in mind the fundamental principle that

“official action will not be held unconstitutional solely because it results in a

racially disproportionate impact.... Proof of racially discriminatory intent or

purpose is required to show a violation of the Equal Protection Clause.” Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265, 97

S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); see also Washington v. Davis, 426 U.S.

229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). “ ‘Discriminatory purpose’

... implies more than intent as volition or intent as awareness of consequences. It

implies that the decisionmaker ... selected ... a particular course of action at least in

part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable

group.” Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct.
30

2282, 2296, 60 L.Ed.2d 870 (1979) (footnote and citation omitted); see also

McCleskey v. Kemp, 481 U.S. 279, 297-299, 107 S.Ct. 1756, 1769-1770, 95

L.Ed.2d 262 (1987).

A neutral explanation in the context of our analysis here means an explanation

based on something other than the race of the juror. 

Id., 500 U.S. at 330-61, 111 S.C. at 1866. The proffered reason was her attitude towards the

police, not her race. In light of the facts of the instant case which involved an attempted traffic

stop by the police of the defendant, a young African-American male, excluding this venireperson

from jury service may have a discriminatory effect. However, so long as peremptory strikes are

permitted at all, a prosecutor should be allowed to peremptorily strike a juror that is perceived to

be hostile to the police or who, because of her or his life experience, would tend to view certain

evidence in a manner adverse to the interests of the State. See United States v. Moreno, 878 F.3d

817, 820-21 (5th Cir. 1989). Therefore, the Court holds that this reason is race-neutral on its face. 

The third category of reasons dealt with the venireperson’s views on punishment-related

issues: an undue tendency to answer the future dangerousness affirmatively, and biases against the

minimum range of punishment for the lesser included offense of murder and against the

mitigation special issue. Petitioner characterizes these reasons as indicating a juror who is “too

strong a State’s juror” and therefore fail to state a sensible, racially neutral justification for the

strike that is supported by the record. (Pet. at. 57.) In considering this objection, the CCA held

that,

the State may exercise challenges against jurors who are biased in ways that are

adverse to the defendant, including jurors who cannot consider the minimum end

of the punishment range for an offense. This is so because the State's interest is not

merely to convict, but to ensure that justice is done, which includes procuring fair
31

and impartial jurors. For this reason, the State's ability to challenge veniremen for

cause is broader than and encompasses the defendant's ability to challenge a

potential juror. The same reasoning applies to peremptory challenges. In ensuring

that justice is done, the State may legitimately strike prospective jurors who appear

to be unfavorable to the defense in ways that call into question their impartiality. 

The trial court was entitled to believe that the State did not strike Vines on account

of her race. Finding that the State has advanced race-neutral reasons for its

peremptory challenge, and that appellant has failed to meet his burden of showing

intentional discrimination, we overrule point of error one.

Johnson, 683 S.W.3d at 649-50 (citations omitted). 

This Court can see how it would seem somewhat disingenuous for a prosecutor to briefly

touch on subjects affecting the juror’s qualification which make her appear “too strong a State’s

juror” and then without more examination use this to justify a peremptory strike of a minority

juror. See Miller-El, 545 U.S. at 246. However, “[t]he state has the right to question prospective

jurors about their ability to apply the full range of punishments, including minimum

punishments.” Harris v. Texas Dept. of Criminal Justice, 806 F.Supp. 627, 638 (S. D. Tex.,

1992)(citing Nethery v. State, 692 S.W.2d 686, 691 (Tex.Crim.App. 1985)). The CCA held in

Nethery that, 

The State's interest is in fair and impartial jurors, in accord with our legal system's

basic tenet to insure that every defendant is accorded a fair and impartial trial. The

State seeks, or should seek, to uphold the integrity of the jury system. Therefore,

the State is permitted to challenge a juror who cannot be fair and impartial because

he will not consider the full range of punishment. Whether the State later urges the

jury to assess the minimum or the maximum is of no moment.

692 S.W.2d at 691. This expresses goals for the justice system consistent with those of the

federal court. Without more, such a suspicion is not sufficient to overcome the heavy burden of

deference to the judgment of the trial judge and state courts supported by the other reasons which

this Court has already recognized as perfectly legitimate. 
32

Petitioner has not shown the state court findings to be incorrect by clear and convincing

evidence, nor has he shown that the state court judgment resulted in an unreasonable application

of settled Supreme Court precedent or an unreasonable determination of the facts in light of the

evidence before it. Accordingly, petitioner’s fourth ground for relief is denied. 

VIII. REFUSAL TO EXCUSE BIASED JUROR

In his fifth claim, Petitioner complains of the trial court’s denial of his challenge for cause

to excuse venireperson Glen Davis Thomason. (Pet. at 59-70.) For the reasons set out below, this

claim is denied. 

Ineffective Assistance Claim Waived

Johnson frames his claim as violating his right to the effective assistance of counsel, his

right to be free from cruel and unusual punishment, and his right to due process of law as

guaranteed by the Sixth, Eighth, and Fourteenth Amendments. (Id.) However, he does not present

argument or authorities concerning his right to the effective assistance of counsel, nor does he list

any conduct by his counsel that is alleged to have been deficient. Instead, he notes how counsel

challenged the juror for cause and preserved error for appeal by exercising a peremptory strike and

then requesting and receiving additional peremptory strikes. (Pet. at 63.) Johnson does not appear

to complain of any deficient conduct by counsel, but rather emphasizes his right to an impartial

jury to consider mitigating evidence in accordance with the Sixth and Eighth Amendments. 

Therefore, the bare conclusory allegations that he was deprived of the effective assistance of

counsel briefly referenced in this claim are waived by inadequate briefing. See Miller v. Johnson,

200 F.3d 274, 282 (5th Cir. 2000)(holding that “conclusory allegations of ineffective assistance of
33

counsel do not raise a constitutional issue in a federal habeas proceeding”). Instead, this Court

will focus on those matters emphasized in the presentation of this claim. 

Juror’s Qualification

Petitioner contends that Thomason’s voir dire examination indicated that he would refuse

to consider youth as a mitigating factor. (Pet. at 59.) The assertion that this juror is disqualified is

based on the following excerpt from the record of his attorney’s voir dire examination of this

venireperson regarding the mitigation special issue, which was quoted in the pleadings of both

parties to this action.

Q. Okay. One circumstance is – if I understand this, one circumstance you

would never consider to be a sufficient mitigating circumstance would be

their youthfulness. That’s not something that you would consider?

A. I presume the person is over seventeen, and – and I consider that to be an

adult. 

Q. Okay. So, if – as long as they’re an adult under the eyes of the law, that’s –

youthfulness would never be something you’d consider, as long as they

were old enough to be charged with the offense and be tried for death. That

would be the – 

A. I’m going to presume that – that they – if they are an adult (sic), then – I

don’t – I don’t look at seventeen or eighteen as necessarily being youthful

as far as making decisions.

Q. So, seventeen or eighteen would never been (sic) a youthful – be youthful

to you as far as it being a mitigating circumstance?

A. No, not – not at seventeen or eighteen.

(18 RR 67-68.) This exchange does not indicate that the venireperson was disqualified, but rather

that the defense attorney did not like the juror’s views on the mitigation value of certain evidence. 
34

“[A] juror may not be challenged for cause based on his views about capital punishment

unless those views would prevent or substantially impair the performance of his duties as a juror

in accordance with his instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct.

2521, 65 L.Ed.2d 581 (1980); Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d

841 (1985). A capital defendant may challenge for cause any prospective juror who will

automatically vote for the death penalty in every case and will fail in good faith to consider the

evidence of aggravating and mitigating circumstances as the instructions require him to do. See

Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2229-30, 119 L.Ed.2d 492 (1992); see also

Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (“the sentencer

may not be precluded from considering, and may not refuse to consider, any constitutionally

relevant mitigating evidence”). However, this does not require a juror to consider any particular

circumstance as mitigating, nor does it require a court to excuse a prospective capital juror for

cause who might view evidence offered in mitigation as aggravating. See Soria v. Johnson, 207

F.3d 232, 244 (5th Cir.2000). Therefore, this would not have required the trial court to excuse

this venireperson for cause. 

Juror’s Service

Even so, this venireperson did not ultimately serve on the jury because Petitioner removed

him by the exercise of a peremptory challenge. The CCA addressed this claim on direct appeal,

Appellant properly preserved error by striking Thomason, asking for more strikes

until the trial court denied his requests, and pointing to an objectionable juror. 

However, the trial court granted appellant an additional peremptory strike; to show

harm, appellant must show that the trial court improperly denied challenges for

cause on at least two different venire members. Because appellant asserts only one

challenge for cause error here, harm cannot be established.
35

Johnson, 68 S.W.3d at 656 (footnotes omitted)(citing Wright v. State, 28 S.W.3d 526, 535

(Tex.Crim.App.2000)). This is not alleged to have been resolved on independent state law

grounds, but also reveals the absence of the federal claim. 

In Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Supreme

Court addressed a situation involving a defendant’s exercise of a peremptory challenge to remove

Darrell Huling, a venireperson that the trial court did not excuse for cause on the defendant’s

motion. 

It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant on trial

for his life the right to an impartial jury. [Wainwright v.] Witt, [469 U.S. 412, 424, 105

S.Ct. 844, 852, 83 L.Ed.2d 841 (1985)]; Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639,

1642, 6 L.Ed.2d 751 (1961). Had Huling sat on the jury that ultimately sentenced

petitioner to death, and had petitioner properly preserved his right to challenge the trial

court’s failure to remove Huling for cause, the sentence would have to be overturned. 

Adams [v. Texas, 448 U.S. at 45, 100 S.Ct. at 2526]. But Huling did not sit. Petitioner

exercised a peremptory challenge to remove him, and Huling was thereby removed from

the jury as effectively as if the trial court had excused him for cause.

Any claim that the jury was not impartial, therefore, must focus not on Huling, but on the

jurors who ultimately sat.

Id., 487 U.S. at 85-86, 108 S.Ct. at 2277. In order to obtain relief on this claim, Johnson must

show that someone who “ultimately sat” on his jury did so in violation of his right to an impartial

jury. Since this claim complains of a venireperson that did not ultimately serve on Johnson’s jury,

it fails to meet the test set forth in Ross. Accordingly, Johnson’s fifth claim is denied. 

IX. CONFESSION

In his sixth claim, Petitioner complains that he was denied his right to due process of law

as guaranteed by the Fifth and Fourteenth Amendments when the trial court admitted into

evidence his involuntary, written confession. (Pet. at 71-81.) This Court disagrees. 
36

Law

The Fifth Amendment guarantees that no person “shall be compelled in any criminal case

to be a witness against himself.” U.S. Const. amend V; see also Miranda v. Arizona, 384 U.S.

436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). However, beginning with Brown v.

Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), the Supreme Court has prohibited

the admission of involuntary or coerced confessions in a criminal proceedings under the Due

Process Clause of the Fourteenth Amendment. Under this approach, a court must examine the

totality of circumstances to determine whether a confession has been “‘made freely, voluntarily

and without compulsion or inducement of any sort.’” Withrow v. Williams, 507 U.S. 680, 688-89,

113 S.Ct. 1745, 1753, 123 L.Ed.2d 407 (1993)(quoting Haynes v. Washington, 373 U.S. 503, 513,

83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct.

895, 899, 40 L.Ed. 1090 (1896)); Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246,

1252, 113 L.Ed.2d 302 (1991); Colorado v. Connelly, 479 U.S. 157, 167-70, 107 S.Ct. 515,

522-24, 93 L.Ed.2d 473 (1986). “A confession cannot be the product of official overreaching in

the form of either direct or subtle psychological persuasion.” See United States v. Broussard, 80

F.3d 1025, 1034 (5th Cir. 1996). “To be admissible, a confession must be ‘free and voluntary:

that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or

implied promises, however slight, nor by the exertion of any improper influence.’” Brady v.

United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970)(quoting Bram v.

United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897)). Although promises

or inducements can taint the voluntariness of a confession, “a truthful and noncoercive statement

of the possible penalties which an accused faces may be given to the accused without overbearing
37

one's free will.” United States v. Scurlock, 52 F.3d 531, 536 (5th Cir.1995)(quoting United States

v. Ballard, 586 F.2d 1060, 1063 (5th Cir.1978)).

Analysis

Petitioner complains that his confession was involuntary because of an implied promise

that he would not get the death penalty, even though he was expressly told the opposite. The trial

court conducted a pretrial hearing on the voluntariness of the confession outside of the presence of

the jury. See Jackson v. Denno, 378 U.S. 368, 395, 84 S.Ct. 1774, 1791, 12 L.Ed.2d 908 (1964). 

At the conclusion of this hearing, the trial court overruled the objections to the voluntary

statement and indicated that she would file findings of fact and conclusions of law on the

confession. (21 RR 128.) However, no such findings are mentioned elsewhere and do not appear

in the record before this Court. According to Texas law, the proper remedy for the failure to enter

these findings of fact and conclusions of law is for the appellate court to either abate the appeal to

the trial court or order the trial court to prepare and file findings of fact and conclusions of law as

required by section 6 of article 38.22 of the Texas Code of Criminal Procedure. See TEX.R.APP.P.

34.5(c)(2); Green v. State, 906 S.W.2d 937, 940 (Tex.Crim.App.1995); Berry v. State, 995

S.W.2d 699, 702 (Tex.Crim.App.1999). Therefore, any complaint regarding the trial court’s

failure to enter these findings of fact and conclusions of law appear to have been waived by not

raising the issue before the Texas Court of Criminal Appeals. As outlined in the petition, the

evidence developed before the trial court showed the following:

At 3:30 P.M. on January 25, 1999, Johnson was arrested at his apartment pursuant to a

warrant. (21 RR 49; Pet. at 73.) He was transported to the Dallas Police Department, where he

signed a written statement about three hours later (6:40 P.M. on that same day). (22 RR 210-11;
38

28 RR 30; Pet. at 73). Detective James Skelly testified that he first met Johnson at about 6:00

P.M. on January 25, 1999, when Johnson was in the custody of Detective Phil Harding. (21 RR

22; Pet. at 74.) Det. Skelly testified that he administered the Miranda warning to Johnson from a

Miranda warnings card and that Johnson signed and dated that card in acknowledgment that he

understood his rights. (Pet. at 74.) The card was admitted into evidence as State’s Exhibit No. 22

for record purposes only at the hearing (21 RR 25-26), and for all purposes during the trial. (22

RR 170; 28 RR 28; Pet. at 74.) 

Detectives Skelly and Harding began talking to Johnson about a different offense, but the

conversation came around to the death of LaTausha Curry. (Pet. at 74.) Det. Skelly testified that

Johnson gave an oral statement, admitting the homicide of LaTausha Curry. (Pet. at 74.) Johnson

drew a map of the location where the body could be found. (21 RR 27-31.) The map was

admitted as State’s Exhibit No. 23. (21 RR 32; 22 RR 176; 28 RR 29; Pet. at 74.) Det. Skelly

testified that he neither threatened Johnson nor made any promises to induce Johnson to sign the

Miranda warnings card or draw the map. (Pet. at 74-75.) Further, Det. Skelly testified that Det.

Harding did not make any threats or promises in his presence. (21 RR 35; Pet. at 75.) 

Upon examination by defense counsel, Det. Skelly testified, in part, as follows: 

Q: You made some comments in your–in your notes about some discussions

regarding the death penalty with Mr. Derrick Johnson. Do you remember

those discussions?

A: Generally speaking, towards the end of the interview, once he had made

confessions to both of the–of the crime–or, I take that back; after he

confessed to the sexual assault and then we were talking about the

homicide case, at some point–and I don’t remember exactly what point–he

did ask us–he said, “If I tell you more about this, can you guarantee that I

won’t get the death penalty?”
39

We told him, “No, we can’t make such guarantees and will not.” I said that

“If you’re honest with us and you tell us what happened, we will make that

information known for the court’s consideration to use however they see fit,

but we will not–you now, we will not, cannot make any guarantees.”

Q. You–you did tell him, though, that–that honesty would be–his honesty

would be communicated to the prosecutors and to the Court for whatever

use they want to make of that. 

A. That’s–that’s generally, yes.

Q. Did that seem to help him, in terms of continuing to cooperate with you?

A. Well, I assume it did. He did continue and he gave us a voluntary

statement. Yes, sir. 

(21 RR 41-42; Pet. at 75; Ans. Br. at 38.) 

Petitioner characterizes this evidence as proving that “the clear implication to Mr. Johnson

was that giving a written statement would be useful to Mr. Johnson and that it could result in the

State not seeking the death penalty.” (Pet. at 76.) Although Petitioner acknowledged that the

police officers did not make direct representations that “the State would not seek the death penalty

if Mr. Johnson confessed” or that “things would go easier on Mr. Johnson if he gave a written

statement,” Petitioner contends that these representations made by the police “directly implied that

would be the case.” (Pet. at 76-77.) Finally, Petitioner concluded that:

In this case, the promise to convey Mr. Johnson’s “honesty” to the court and

prosecutor directly implied a positive benefit to Mr. Johnson, made by a person in

authority. It is obvious that the death penalty was on Mr. Johnson’s mind and the

promise made in response to his inquiry regarding the death penalty was one likely

to influence an accused to speak untruthfully about his role in the offense. 

(Pet. at 77.) 

While it appears that the death penalty was indeed on Petitioner’s mind, it does not follow

that the officer’s acquiescence to the extent that he would make Petitioner’s cooperation known to
40

the prosecutor and court “for whatever use they want to make of that” is the type of inducement

that is “likely to influence an accused to speak untruthfully about his role in the offense.” The

Texas CCA found on direct appeal that Petitioner’s characterization about implied representations

were incorrect.

Appellant characterizes Detective Skelly's comments as an implied representation

that appellant's honesty would or could result in the State deciding not to seek the

death penalty. That is simply not the case. Detective Skelly plainly told appellant

that the police could make no guarantees. Moreover, appellant initiated the idea of

a deal to avoid the death penalty. “Having cast [himself] in the role of

entrepreneur, [he] cannot expect an appellate court to find implied ‘promises' in

official responses (to [his] overtures) that are ambiguous at best.” Further,

Detective Skelly's comments indicated that the police were without authority to

make deals but instead could only relay information to the court and prosecutor. 

Johnson, 68 S.W.3d at 654-55 (footnotes omitted). These findings are supported by the record. 

The circumstances of this confession are not otherwise suspect. There was no prolonged

period of detention that Johnson was required to endure before confessing, nor has any mental or

emotional impediment affecting Johnson’s condition been identified that could have affected his

voluntariness. Petitioner admits that he received the required Miranda warnings prior to the

interrogation. No threats or mistreatment are alleged. The sole factor raised by Petitioner is the

suggested implication arising from the officer’s statement that he would communicate Petitioner’s

cooperation or “honesty” to the prosecutor and the court. This is patently insufficient to make his

confession involuntary. 

The state appellate court finding that no promise of leniency was made is correct and has

not been shown otherwise by clear and convincing evidence. The state court’s ultimate

determination has not been shown to be unreasonable. Petitioner’s sixth claim lacks merit and is

denied. 
41

X. FAILURE TO DEFINE TERMS IN JURY CHARGE

In his eighth claim for relief, Petitioner claims that he was denied his right to due process

of law and had cruel and unusual punishment imposed upon him in violation of the Fifth, Sixth,

Eighth and Fourteenth Amendments because the Texas Death Penalty scheme placed his future

dangerousness at issue through the application of vague undefined terms used in the special jury

instructions that effectively determined the difference between a life sentence and a death

sentence. (Pet. at 98-119.) Specifically, Petitioner claims that the trial court’s failure to define the

terms “probability,” “criminal acts of violence,” “continuing threat to society,” and “mitigating

circumstances” violated the constitutional requirement that each statutory aggravating

circumstance genuinely narrow the class of persons eligible for the death penalty and reasonably

justify the imposition of the most severe penalty available. (Pet. at 98.) However, this argument

incorrectly interprets the Texas death penalty process and lacks merit.

Law

In setting forth the constitutional requirements of the capital sentencing process, the

Supreme Court in Tuilaepa v. California, 512 U.S. 967, 971-72, 114 S.Ct. 2630, 2634-35, 129

L.Ed.2d 750 (1994), made a distinction between two types of sentencing decisions: the eligibility

decision and the selection decision. The eligibility decision fits the crime within a defined

classification that narrows the class of persons eligible for the death penalty by utilizing at least

one aggravating factor that both (1) applies only to a subclass of persons convicted of murder and

(2) is not unconstitutionally vague. Id., 512 U.S. at 972, 114 S.Ct. at 2635. In contrast, the

selection decision “requires individualized sentencing and must be expansive enough to

accommodate relevant mitigating evidence so as to assure an assessment of the defendant's
42

culpability.” Id. Noting the potential tension between these two inquiries, the Court explained the

different requirements as follows:

“Once the jury finds that the defendant falls within the legislatively defined

category of persons eligible for the death penalty, . . . the jury then is free to

consider a myriad of factors to determine whether death is the appropriate

punishment.” Ramos, supra, 463 U.S., at 1008, 103 S.Ct., at 3457. Indeed, the

sentencer may be given “unbridled discretion in determining whether the death

penalty should be imposed after it has found that the defendant is a member of the

class made eligible for that penalty.” Zant, supra, 426 U.S., at 875, 103 S.Ct., at

2742; see also Barclay v. Florida, 463 U.S. 939, 948-951, 103 S.Ct. 3418,

3424-3425, 77 L.Ed.2d 1134 (1983) (plurality opinion). 

Id., 512 U.S. at 979-80, 114 S.Ct. at 2639. 

Noting these distinct decisions, the Fifth Circuit Court of Appeals has determined that the

Texas capital penalty process places the eligibility decision in the guilt-innocence phase of the

trial, and the selection decision in the punishment phase. See Turner v. Quarterman, 481 F.3d

292, 300 (5th Cir. 2007), petition for cert. filed, __ U.S.L.W. __ (U.S. Jul 16, 2007)(No.

07-5425). Since the terms complained of are used in the selection decision rather than the

eligibility decision, these terms are not subject to the same definitional requirements as terms that

are used in the eligibility decision. This Circuit has consistently approved the use of the terms

“probability,” “criminal acts of violence,” and “continuing threat to society” without definition

over objections that they are unconstitutionally vague as used in these sentencing instructions. See

Turner, 481 F.3d at 299-300 (holding terms “probability,” “criminal acts of violence,”and 

“continuing threat to society” not unconstitutionally vague); Leal v. Dretke, 428 F.3d 543, 553

(5th Cir. 2005)(holding that terms “probability,” “criminal acts of violence,”and “continuing

threat to society” needed no definition); Hughes v. Johnson, 191 F.3d 607, 615 (5th

Cir.1999)(upholding use of term “probability”); Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th
43

Cir.1996)(overruling complaint that Texas punishment special issues unconstitutionally vague);

James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993)(upholding use of terms “deliberately,”

“probability”, “criminal acts of violence,”and “continuing threat to society” as having a

“common-sense core of meaning that criminal juries should be capable of understanding”);

Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir.1993)(upholding use of terms “deliberately,”

“probability,” and “society” without definition); Thompson v. Lynaugh, 821 F.2d 1054, 1060 (5th

Cir. 1987) (upholding use of term “deliberately” as its “common meaning is sufficiently clear to

allow the jury to decide the special issues on punishment”); Milton v. Procunier, 744 F.2d 1091,

1095-96 (5th Cir.1984) (upholding the terms “deliberately,” “probability,” and “criminal acts of

violence” as having “plain meaning of sufficient content” to warrant their inclusion in sentencing

instructions). 

Facts

At the conclusion of the punishment phase, the trial court submitted to the jury three

statutory special issues. The first one asked, “Do you find from the evidence beyond a reasonable

doubt that there is a probability that the defendant, Derrick Lamone Johnson, would commit

criminal acts of violence that would constitute a continuing threat to society?” (CR

39)(emphasis added). The third special issue asked, “Do you find from the evidence, taking into

consideration all of the evidence, including the circumstances of the offense, the defendant’s

character and background, and the personal moral culpability of the defendant, Derrick Lamone

Johnson, that there is sufficient mitigating circumstances or circumstances to warrant that a

sentence of life imprisonment rather than a death sentence be imposed?” (Pet. at 101-03; CR

41)(emphasis added). 
44

Analysis

Petitioner complains of the trial court’s use of the terms “probability,” “criminal acts of

violence,” “continuing threat to society,” and “mitigating circumstances” in the jury instructions

without further definition. However, this Circuit has consistently rejected similar complaints and

has specifically upheld the use of at least three of these terms without definition in the face of

complaints that they are unconstitutionally vague aggravating circumstances that would require

definition in the instructions. Therefore, this Court is bound by circuit precedent. See Turner, 481

F.3d at 299-300; Leal, 428 F.3d at 553; Hughes, 191 F.3d at 615; Woods, 75 F.3d at 1033-34;

James, 987 F.2d at 1120; Nethery, 993 F.2d at 1162; Thompson, 821 F.2d at 1060; Milton, 744

F.2d at 1095-96. 

The remaining term, “mitigating circumstances”, does not require further definition for at

least two reasons. First, it is not used in the eligibility decision where the class of persons eligible

for the death penalty is narrowed. See Tuilaepa, 512 U.S. at 971-72, 114 S.Ct. at 2634-35; Turner,

481 F.3d at 299-300. Second, it is not an aggravating circumstance but a mitigating factor that

must be afforded a broad interpretation to give the jury the utmost latitude in exercising its

discretion that the death penalty should not be imposed. See Tuilaepa, 512 U.S. at 979-80, 114

S.Ct. at 2639. Therefore, the trial court was correct to not add any definition that would have

hindered the jury’s discretion in the selection decision at the punishment phase of the trial. 

In sum, this claim is not supported by clearly established Supreme Court precedent and in

fact, circuit precedent binds this Court against granting relief on this claim. Accordingly,

Petitioner’s eighth claim for relief is denied. 
45

XI. TEN-TWELVE RULE

In his ninth claim, Petitioner complains that he was denied his right to due process of law

and had cruel and unusual punishment imposed upon him in violation of the Eighth and

Fourteenth Amendments because the Texas Death Penalty scheme requires at least ten jurors to

agree (i.e., ten “no” votes) in order for the jury to return a negative answer to the punishment

special issues, and that the lack of an instruction on the effect of a jury deadlock exacerbated this

Constitutional defect. (Pet. at 120-129.) Respondent asserts that these claims lack merit, are

foreclosed by circuit precedent, and are barred by the nonretroactivity rule of Teague. (Ans. Br. at

53.) This Court agrees with Respondent.

Law

Petitioner relies upon Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384

(1988), which overturned a death sentence because of jury instructions that created a substantial

probability that jurors thought they were precluded from considering any mitigating evidence

unless they unanimously agreed on the existence of one or more particular mitigating

circumstances. In Mills, the jury was instructed to first unanimously determine whether certain

specific aggravating and mitigating factors existed, marking “yes” or “no” beside each listed

factor, and then to weigh those factors in determining whether to assess death. The Supreme

Court found a substantial probability that jurors would believe that they were precluded from

considering any mitigating factors unless all 12 jurors agreed on the existence on the same

specific factors, and result in a virtually automatic death sentence even where the jurors may

otherwise have concluded that death was inappropriate. Id., 486 U.S. at 373-74, 377-78, 108
46

S.Ct. at 1865, 1867. That instruction is “wholly dissimilar” to the one used in Texas, as set out in

the following two paragraphs. Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir. 1996). 

The Supreme Court has interpreted Mills to mean that “each juror [must] be permitted to

consider and give effect to mitigating evidence when deciding the ultimate question whether to

vote for a sentence of death.” McKoy v. North Carolina, 494 U.S. 433, 442-43, 110 S.Ct. 1227,

1233, 108 L.Ed.2d 369 (1990); Jacobs v. Scott, 31 F.3d 1319, 1328 (5th Cir. 1994). In concluding

that the prohibition in Mills did not apply to the Texas instructions, the Fifth Circuit Court of

Appeals in Jacobs observed, “[u]nder the Texas system, all jurors can take into account any

mitigating circumstance. One juror cannot preclude the entire jury from considering a mitigating

circumstance.” Jacobs, 31 F.3d at 1329. 

The Fifth Circuit Court of Appeals has also found this Mills argument to be barred by the

nonretroactivity rule of Teague v. Lane. See Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir.

2000); Webb v. Collins, 2 F.3d 93 (5th Cir.1993). The Court of Appeals in Alexander held, 

Because we find Webb materially indistinguishable from the instant case, we

conclude that Alexander's argument is Teague-barred as well. The petitioner in

Webb made the same argument as Alexander–that the Texas 10-12 rule compelled

the jury to vote “yes” on the special issues–and he relied on the same

authority–Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384

(1988). See Webb, 2 F.3d at 95. We concluded in Webb that the principles of Mills

did not dictate the rule urged by the petitioner, see Webb, 2 F.3d at 96, and

precedent constrains us to reach the same conclusion here.

Alexander, 211 F.3d at 897. The Court of Appeals went on to observe that the Constitution

creates no right to instruct the jury on potential deadlock. See id. at 897 n. 5 (citing Jones v.

United States, 527 U.S. 373, 119 S.Ct. 2090, 2099, 144 L.Ed.2d 370 (1999)). 
47

Facts

The instructions submitted by the trial court to the jury in the punishment phase provided,

in part, as follows: 

The burden of proof in this phase of the trial is on the State as to Special

Issues Nos. 1 and 2; and the State has the burden of proof to prove beyond a

reasonable doubt that the answers to Special Issues Nos. 1 and 2 submitted to the

jury should be “Yes.” The jury may not answer the Special Issues Nos. 1 and 2

“Yes” unless the jury agrees unanimously on such answers.

* * * 

The jury may not answer Special Issues Nos. 1 and 2 “No” unless ten or

more jurors agree. If any juror has a reasonable doubt as to the answer to Special

Issues Nos. 1 and 2, that juror shall vote “No” as to that issue. The jurors need not

agree on what particular evidence supports a negative answer. 

* * * 

You are further instructed that you are not to consider or answer Special

Issue No. 3 unless you have returned an affirmative finding on Special Issues Nos.

1 and 2, and if you do consider and answer that Special Issue, you must do so

under the conditions set forth following that issue.

* * *

You are to answer the following issue only if you have returned affirmative

findings on Special Issue No. 1 and Special Issue No. 2 above. 

SPECIAL ISSUE NO. 3

Do you find from the evidence taking into consideration all of the evidence,

including the circumstances of the offense, the defendant’s character and

background, and the personal moral culpability of the defendant, Derrick Lamone

Johnson, that there is sufficient mitigating circumstances or circumstances to

warrant that a sentence of life imprisonment rather than a death sentence be

imposed?

You are instructed that in answering this issue, you shall answer this issue

“Yes” or “No”. You may not answer the issue “No” unless the jury unanimously

agrees, and you may not answer the issue “Yes” unless ten (10) or more jurors
48

agree. The jury need not agree on what particular evidence supports an affirmative

finding on this issue. The jury shall consider mitigating evidence to be evidence

that a juror might regard as reducing the defendant’s moral blameworthiness. 

(CR 34-41.) In each special issue, unanimity was required to return a verdict that would support

death, but only ten jurors were required to agree upon a verdict that would support a life sentence. 

Also, affirmative answers were required on the first two special issues and a negative answer on

the third special issue in order to support a death sentence, but any one answered otherwise would

result in a life sentence. If the jury was unable to answer any of these issues, the result would be a

life sentence. See TEX.CODE CRIM.PROC. ANN., art. 37.071(2)(g) (Vernon 1993); Jackson v. State,

17 S.W.3d 664, 677 (Tex.Crim.App. 2000). 

Analysis

Petitioner appears to argue separately for a “Majority Rules” coercion of jurors and a

“Mills Principle” violation. (Pet. at 123-126.) However, there appears to be no meaningful

distinction between these two arguments. Both of them rely on Mills for the proposition that the

special issue instructions given in this case would lead a reasonable juror to believe that an

individual juror’s vote in favor of returning a life sentence would be worthless unless some

threshold number of jurors, in this case ten, agreed. (Pet. at 123, 125.) Petitioner further

complains that this problem was exacerbated by the fact that the jury was not instructed that a

failure to so agree regarding any special issue would result in a life sentence, and that this lack of

instruction invited speculation and confusion among jurors, subjected the process to arbitrariness,

and made the sentencing determination unreliable. (Pet. at 123-125, 128.)

As observed in Jacobs, the Texas special issues do not reflect the constitutional violation

presented in Mills since each juror in Texas is fully allowed to consider any mitigating evidence
49

and there is no requirement that any agree on precisely what circumstance may be mitigating.

Jacobs, 31 F.3d at 1329. Petitioner was also not entitled to an instruction regarding the effect of

the juror’s failure to agree on a verdict. See Alexander, 211 F.3d at 897. These arguments would

constitute an extension of Mills at best, and have already been considered a new rule in this

Circuit which would be barred by the nonretroactivity principles in Teague. See id.; Webb, 2 F.3d

at 95. Therefore, Petitioner’s ninth claim for relief is barred by Teague, and in the alternative

lacks merit, and is denied. 

XII. JURY DISCRETION

In his tenth claim, Petitioner complains that he was denied his right to due process of law

and had cruel and unusual punishment imposed upon him in violation of the Fifth, Eighth and

Fourteenth Amendments because the Texas Death Penalty scheme created the impossibility of

simultaneously restricting the jury’s discretion to impose the death penalty while also allowing the

jury unlimited discretion to consider all evidence militating against the imposition of the death

penalty. (Pet. at 130-141.) 

Petitioner’s arguments have already been found by the Fifth Circuit Court of Appeals to be

meritless and foreclosed by precedent. See Hughes v. Dretke, 412 F.3d 582, 594 (5th Cir. 2005),

cert. denied, 546 U.S. 1177, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006)(also holding such argument

barred by the nonretroactivity doctrine of Teague). Petitioner’s argument incorporates and almost

exclusively relies upon the objections to death penalty procedures contained in Justice

Blackmun’s dissenting opinion in Callins v. Collins, 510 U.S. 1141, 1143-59, 114 S.Ct. 1127,

1128-38, 127 L.Ed.2d 435 (1994), as applied to the Texas death penalty scheme. However, the

Supreme Court has expressly approved the Texas death penalty sentencing procedures, See Jurek
50

v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and has not approved Justice

Blackmun’s objections. Besides this dissenting opinion, Petitioner cites to a dissenting opinion of

the Texas Court of Criminal Appeals, See Wilkerson v. State, 881 S.W.2d 321, 330

(Tex.Crim.App. 1994)(Baird, J. dissenting), for the broad proposition that the Texas procedure

reduced appellate review of sentencing factors to a mere recital of historical fact when in fact that

dissenting opinion was merely complaining of the way that the majority had conducted its review

of the sentencing factors in that case. Even so, these dissenting opinions do not constitute clearly

established federal law as determined by the Supreme Court and cannot be relied upon to grant

federal habeas relief in light of 28 U.S.C. § 2254(d)(1). 

Outside of these dissenting opinions, Petitioner cites only to Penry v. Lynaugh, 492 U.S.

302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256, 278-79 (1989)(Penry I) for the proposition that

the “focus on aggravating circumstances, to the exclusion of mitigating evidence, clearly violates

the constitutional mandate of individualized sentencing.” While such a focus would be improper,

it does not reflect the sentencing procedure used at Petitioner’s trial. Penry I addressed a

deficiency in a prior version of the Texas capital sentencing procedure, which was rectified by the

inclusion of the separate special issue on mitigation, sometimes referred to as the “Penry special

issue,” which was submitted to the jury in the sentencing phase of Petitioner’s trial. See Moore v.

State, 999 S.W.3d 385, 407-08 (Tex.Crim.App. 1999); Martinez v. Dretke, 426 F.Supp.2d 403,

426 (W.D. Tex., 2006); Penry v. Johnson, 532 U.S. 782, 803, 121 S.Ct. 1910, 1923-24, 150

L.Ed.2d 9 (2001)(Penry II); (CR 34-41.) Therefore, Penry I does not advance Johnson’s

argument in this case, and this claim is without authoritative support. Accordingly, Petitioner’s

tenth claim is denied for lack of merit.
51

XIII. ILLEGALLY OBTAINED EVIDENCE

In his eleventh and twelfth claims, Petitioner complains that he was denied his right to due

process of law as guaranteed by the Fifth and Fourteenth Amendments and his right to be free

from illegal search and seizure in violation of the Fourth and Fourteenth Amendments when the

trial court admitted illegally-obtained evidence. (Pet. at 142-61.) However, such claims are not

cognizable on federal habeas corpus review of state convictions. 

Law

 The Exclusionary Rule may not be invoked in federal habeas corpus proceedings to

collaterally challenge the admission of evidence obtained as a result of illegal searches and

seizures unless the state court did not afford a full and fair opportunity to litigate such Fourth

Amendment claims. See Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d

1067 (1976); Swicegood v. Alabama, 577 F.2d 1322, 1324 (5th Cir.1978). 

Analysis

Petitioner does not contend that he was not given a full and fair opportunity to litigate

these claimed violations of the Fourth Amendment protection against illegal search and seizures. 

Indeed, he was not only afforded ample opportunity by state law to litigate these claims, but he

actually and extensively challenged these searches and seizures by pretrial motions upon which

evidentiary hearings were conducted outside of the presence of the jury prior to and during the

trial (Supp. CR 3; 21 RR 48-128; 25 RR 9-11), by objections at trial (22 RR 136-44; 25 RR 6-7),

by points of error (St. App. Br. at 71-84) upon which the Texas Court of Criminal Appeals

reviewed the trial court’s rulings on direct appeal and issued a published opinion. See Johnson, 68

S.W.3d at 652-54. There has been no allegation that the processes provided by a state to fully
52

and fairly litigate these fourth amendment claims were in any way inadequate or applied in such a

way as to prevent the actual litigation of fourth amendment claims on their merits. See Moreno v.

Dretke, 450 F.3d 158, 167 (5th Cir. 2006), cert. denied, __ U.S. __, 127 S.Ct. 935, 166 L.Ed.2d

717 (2007); Williams v. Brown, 609 F.2d 216, 220 (5th Cir.1980). Therefore, the state court did

afford Johnson a full and fair opportunity to litigate these Fourth Amendment claims. Petitioner’s

eleventh and twelfth claims are denied as not cognizable on federal habeas corpus review. 

XIV. CUMULATIVE ERROR

In his thirteenth and final claim, Petitioner complains that he was denied his right to due

process of law as guaranteed by the Fifth and Fourteenth Amendments by the cumulative effect of

the above-enumerated constitutional violations. (Pet. at 162-165.) However, there is no error

properly before this Court to cumulate.

Law

The cumulative error doctrine is reflected in the en banc decision in Derden v. McNeel,

978 F.2d 1453, 1454 (5 Cir. 1992), which set forth the following test for relief: th

federal habeas corpus relief may only be granted for cumulative errors in the

conduct of a state trial where (1) the individual errors involved matters of

constitutional dimension rather than mere violations of state law; (2) the errors

were not procedurally defaulted for habeas purposes; and (3) the errors "so

infected the entire trial that the resulting conviction violates due process." 

(quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400-01 (1973). The Fifth Circuit

Court of Appeals has indicated that this standard requires that “where individual allegations of

error are not of constitutional stature or are not errors, there is ‘nothing to cumulate.’” Turner, 481

F.3d at 301.

Analysis
53

All of the claims made in this proceeding are either unexhausted and procedurally barred,

barred by the Teague nonretroactivity doctrine, not cognizable on federal habeas corpus review, or

lack merit. There are no errors of a constitutional dimension properly before the Court. 

Therefore, there is nothing to cumulate. Petitioner’s thirteenth claim is denied. 

XV. EVIDENTIARY HEARING

Petitioner requested that an evidentiary hearing be held on all claims raised by the petition

and that discovery be granted pending said evidentiary hearing. (Pet. at 166.) When the pleadings

demonstrate a factual dispute, that, if resolved in the petitioner's favor, would entitle him to relief

and the state has not afforded him a full and fair evidentiary hearing, a federal habeas corpus

petitioner is entitled to discovery and an evidentiary hearing. See Hughes v. Johnson, 191 F.3d

607, 630 (5th Cir. 1999). Since the pleadings demonstrate that there is no factual dispute upon

which federal habeas corpus relief can be granted, no evidentiary hearing is warranted. 

XVI. CONCLUSION

Petitioner’s petition for a writ of habeas corpus is DENIED.

IT IS SO ORDERED.

DATED: September 18 , 2007. th

 _______________________________________

 ED KINKEADE

 UNITED STATES DISTRICT JUDGE