UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 91-2701

__________________

LARRY NORMAN ANDERSON,

Petitioner-Appellant,

versus

JAMES A. COLLINS, Director

Texas Department of Criminal

Justice, Institutional Division

and DAN MORALES, Attorney General

of the State of Texas

Respondents-Appellees.

______________________________________________

Appeal from the United States District Court for the

Southern District of Texas

______________________________________________

(April 1, 1994)

Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Larry Norman And erson (Anderson),

convicted in a Texas court in 1983 of capital murder and sentenced

to death, challen ges the district court's denial of his petition

for a writ of habeas corpus. We affirm the district court's denial

of habeas corpus relief.

Facts and Proceedings Below

At about 2:20 a.m. on March 30, 1982, Trooper Gary Stone

(Stone) was on patrol in west Harris County. Having previously2

received a report about a vehicle in the area driving without its

lights on, Stone pulled Anderson over after he saw Anderson turn on

his headlights while driving toward Stone's car. Anderson's hands

and clothes were covered with blood, and in the bed of Anderson's

pickup truck were an overturned garbage can containing a large

amount of blood and a lock-blade knife covered with blood. Inside

the cab of the tr uck were two money bags full of money and a ski

mask. Anderson claimed that the money bags belonged to him.

Anderson was taken into custody, and at t he police station

later that morning was asked if he knew anything about the

disappearance of Zelda Lynn Webster (Webster), a manager at a

nightclub near where Anderson had been residing. Webster had been

reported as missing from the club earlier in the evening. The bank

bags that n ormally stayed behind the bar of the club were also

gone.

Anderson initially declined to answer questions about Webster,

but then voluntarily confessed to having killed her. He stated

that he had been involved in a drug transaction with Webster, and

that she had refused to pay him. On the previous evening, he

indicated, he and Webster had engaged in sexual intercourse, after

which she became hysterical and demanded that he return the money

he ha d taken from her. He confessed to having stabbed her and

discarded her body in a remote ditch near Addicks Dam. The police

officers discovered Webster's body where Anderson told them it

could be found. She had been stabbed fifteen times in the chest.

Police officers then met with Anderson's aunt, and she took

them to the home of Anderson's cousin, who was away on vacation and3

had left Anderson a set of keys so that he could look after the

house. In the house, on top of Anderson's jacket, the officers

found Webster's purse. Inside the purse was a bank bag filled with

money. This bag, and the other two found in Anderson's pickup,

were shown to belong to the lounge where Webster worked.

Anderson pleaded not guilty to capital murder, and his

testimony at the guilt/innocence phase of his trial elaborated on

the confession given to the police. He testified that on the

evening in question he had gon e to the lounge to collect five

thousand dollars that Webster owed him as par t of a drug deal.

They argued, but she agreed to get him the money, and they then

drove to his cousin's h ouse, where they engaged in sexual

intercourse. Anderson then asked Webster if she was ready to get

the money. She said that she was not, and accused Anderson of

raping her. She told him that if he did not leave her alone, she

would call the police and have him sent to prison. He responded

t hat he had to have the money. She started to walk toward the

telephone, and he stepped in front of her.

Anderson testified that although he was upset, he and Webster

agreed to go back to the lounge. On the way, Anderson convinced

her to sto p at his uncle's office building, where he had been

staying. They went to the room where Anderson had been sleeping,

and he renewed his demands for payment. Webster again refused and

started walking toward a telephone in the next room. Anderson

grabbed her, a fight ensued, and he stabbed her with a knife he

wore on his belt. In his trial testimony, Anderson denied any

knowledge of the money bags.1 At the time of Anderson's offense, the Texas capital

sentencing statute required the court to sentence the defendant

to death if the jury returned affirmative findings on each of the

following issues:

"(1) whether the conduct of the defendant that

caused the death of the deceased was committed

deliberately and with the reasonable expectation that

the death of the deceased or another would result;

(2) whether there is a probability that the

defendant would commit criminal acts of violence that

would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct

of the defendant in killing the deceased was

unreasonable in response to the provocation, if any, by

the deceased." Tex. Code Crim. Proc. Ann. art.

37.071(b) (Vernon 1981).

4 Anderson was convicted of capital murder under Tex. Penal Code

Ann. § 19.03 on February 14, 1983. On the same day, he was

sentenced to death by lethal injection after the jury answered

affirmatively the three special issues submitted under former Tex.

Code Crim . Proc. Ann. art. 37.071. 1 Anderson did not testify at

the sentencing phase of his trial.

His direct appeal was handled by the same lawyer who handled

the jury trial, attorn ey Joe Frank Cannon (Cannon). Also

represe nting Anderson on appeal was attorney Kristine C. Woldy

(Woldy). The Texas Court of Criminal Appeals affirmed the

conviction and sentence on October 9, 1985, and the United States

Supreme Court denied certiorari on October 6, 1986. A nderson v.

State

, 701 S.W.2d 868 (Tex. Crim. App. 1985), cert. denied

, 107

S.Ct. 239 (1986).

Anderson, represented by attorney Ric hard Alley (Alley),

filed applications fo r a writ of habeas corpus and motions for a2 Although the Court of Criminal Appeals' April 24 order

denying habeas relief states that the state district court

entered an order "finding no controverted, previously unresolved

facts material to this cause, and recommending that all relief be

denied," the record reflects that Judge Walker of the 185th

Judicial District of Harris County signed and adopted the State's

proposed findings of fact and conclusions of law on April 3.

5 stay of execution in both the trial court and Southern District of

Texas. The trial court rescheduled the execution date, and the

federal court dismissed for failure to exhaust state remedies.

Anderson, represented by Alley, filed in the state trial court an

amended application for writ of habeas corpus, alleging that he was

denied effective assistance of counsel, parti cularly in Cannon's

manner of conducting voir dire and in his failure to request a jury

charge on voluntary manslaughter, and alleging that there was

insufficient evidence to support the jury's affirmative answers to

Special Issues 1 and 3. The trial court conducted evidentiary

hearings on March 5 and 9, 1987, on questions about Cannon's

effectiveness. Anderson, Cannon, and others testified at these

hearings and Anderson was represented at them by Alley. On April

3, 1987, the Texas trial court entered an order adopting the

proposed findings of fact and conclusions of law of the State of

Texas (the State). The court denied habeas corpus relief and left

in place a previously ordered execution date of April 28, 1987.

The Court of Criminal Appeals denied the application for a writ of

habeas corpus and a stay of execution on April 24, 1987. 2

On April 27, 1987, the federal district court granted a stay

of execution, finding that Anderson's claim of ineffective

assistance of counsel SQ e specially Cannon's failure to request a6

charge on voluntary manslaughter SQ was not frivolous. On August 28,

1988, Anderson, now represent ed by new counsel, filed an amended

petition, rais ing twenty-nine grounds for relief. The petition

contained allegations not presented in the state proceedings, but

the State has expressly w aived the exhaustion requirement. S ee

Felder v. Estelle , 693 F.2d 549 (5th Cir. 1982).

The district court deni ed the writ of habeas corpus and

dismissed the cause with a written order on April 23, 1991.

Anderson's motions for new trial and for relief from the judgment

were denied, and the district court declined to issue a certificate

of probable cause for appeal. Pursuant to instructions from this

Court, however, the parties have presented full briefs and orally

argued the merits of Anderson's 28 U.S.C. § 2254 petition.

Discussion

Anderson raises four primar y arguments in this appeal: (1)

that the operation of the Texas capital sentencing statute in this

case violated the Eighth and Fourteenth Amendments as construed in

Penry v. Lynaugh , 109 S.Ct. 2934 (1989), because the jury was not

permitted to consider and act upon mitigating evidence concerning

his background and character; (2) that he was denied effective

assistance of counsel; (3) that the trial court erred in failing to

instruct the jury on voluntary manslaughter a nd failing to place

upon the State the burden of negating the existence of sudden

passion; and (4) that the capital murder provision of the Texas

Penal Code is unconstitutionally vague. We address these arguments

in turn.3 Specifically, his brief points out that his father was an

alcoholic and schizophrenic man who was institutionalized, and

that his maternal grandfather, who acted as a parent for

Anderson, died before his eyes when he was twelve years old.

Anderson was raised, the brief notes, by a "religiously fanatic"

grandmother who administered corporal punishment and provided no

emotional support. The brief points out that Anderson's

adolescence was spent in a reform school where he was subjected

to physical and sexual abuse, and where he became addicted to

drugs and alcohol.

7 I. Penry

Claim

In Penry

, the Supreme Court held that without app ropriate

instructions the Texas special issues did not permit the jury to

fully consider and give effect to the mitigating evidence of

Penry's mental retardation and childhood marked by abuse. Because

this evidence had relevance to his moral culpability beyond the

scope of the special issues, the jury was unable through its

answers to express a "reasoned moral response" to the evidence.

Penry , 109 S.Ct. at 2948.

Anderson contends that various traumatic and harmful

experiences in his past 3 constitute relevant, mitigating

circumstances that the jury was not able to consider in this case.

Also, he argues, the jury was told that he had been in jail in

Arkansas, but not that his prison record was exemplary. Finally,

the jury was not told of the assertedly corrupt and brutal

conditions in the Ark ansas prison, a factor of alleged immediate

relevance to his defense because it supposedly helps to explain his

uncontrollable rage when confronted with Webster's threats to send

him back to prison.

Anderson admits that he did not attempt to introduce any of

this evidence at trial or tender it to the trial court. He argues8

that the jury was "preempted" fro m considering this evidence

because the jury was empaneled with the mistaken view, created by

the pro secutor's questions during v oir dire

, that the terms

"deliberate" and " i ntentional" were equivalent. The apparent

thrust of Anderson's argument is that, because the jury mistakenly

believed that any evidence showing intentional conduct required an

affirmative answer to Special Issue 1, it would have been pointless

if not harmful for him to introduce evidence tending to show that

his intentional conduct was less culpable because of the scarring

experiences from his past. The district court relied on K ing v.

Lynaugh

, 868 F.2d 1400, 1402-03 (5th Cir.) (per curiam), cert.

denied , 109 S.Ct. 1576 (1989), to hold that Anderson's failure to

preserve error in the trial court constituted a procedural bar to

consideration of his Penry claim, and that he had failed to

demonstrate sufficient cause and prejudice to overcome the

procedural bar.

Anderson's reliance on the alleged misstatements during voir

dire makes it unclear whether he is truly raising a P enry claim,

i.e.

, whether he is contending that the force of the mitigating

evidence was beyond the three special issues as they actually exist

in article 37.071(b) or merely beyond the special issues as he

claims was erroneously explained to the jury by the prosecutor. To

the extent that it is the latter, his argument is in essence one of

ineffective assistance of counsel, and we address it in Part II,

infra . To the extent that it purports to raise a Penry claim, we

agree with the district court that it is unavailing, although our

reasoning differs somewhat.4 Although a Penry -type claim was included in Anderson's first

state application for a writ of habeas corpus, it was not in his

amended application and thus was not addressed by the state

district court in its order denying habeas relief.

Nor was any Penry claim submitted or addressed on direct

appeal.

5 In a memorandum filed long after oral argument addressing

Johnson v. Texas , 113 S.Ct. 2658 (1993), Anderson asserts that

the record does contain evidence of his intoxication and that

this presents a Penry claim. We reject this contention for

several reasons. First, it was not raised in either Anderson's

original brief or in his reply brief (or even in oral argument)

in this Court, and is hence waived. See, e.g., FDIC v. Texarkana

Nat. Bank , 874 F.2d 264, 271 (5th Cir. 1989); Unida v. Levi

Strauss & Co. , 986 F.2d 970, 976 n.4 (5th Cir. 1993). Further,

evidence of intoxication may be considered as favorable to a

negative answer to both the first and the second punishment

special issues, and hence is not Penry evidence. See Nethery v.

Collins , 993 F.2d 1154, 1161 (5th Cir. 1993); James v. Collins

,

9 In response to the district court's holding, Anderson points

out that the Court of Criminal Appeals has held, on a question

c ertified from this Court, that, in a case tried before P enry

, a

failure to anticipate the Penry holding by requesti ng a special

instruction on mitigating evidence or objecting to the lack of such

an instruction would not constitute a procedural bar. Selvage v.

Collins , 816 S.W.2d 390, 392 (Tex. Crim. App. 1991) (per curiam);

see also Black v. State

, 816 S.W.2d 350, 367-74 (Tex. Crim. App.

1991) (Campbell, J., concurring). We further note that the state

habeas court did not have the Penry claim before it and did not

hold that it was barred as a matter of state law. 4

The question here, however, is not merely the effect of

Anderson's failure to make a contemporaneous objection or request

an instruction, but the effect of his failure to present the

mitigating evidence at all, either at the guilt/i nnocence or the

punishmen t phase of his trial. 5 This Court has held that a987 F.2d 1116, 1121 (5th Cir. 1993); Cordova v. Collins , 953 F.2d

167, 170 (5th Cir. 1991), cert. denied , 112 S.Ct. 959 (1992).

Moreover, there is no evidence that Anderson was intoxicated at

the time of the offense, only his testimony that he went to the

lounge to have a couple of drinks before asking Webster for the

money, that he ordered "the drink" when he initially entered the

lounge and had a beer after Webster closed the lounge, and the

testimony of an officer, outside the presence of the jury, that

he smelled alcohol on Anderson's breath when he was arrested.

There was also evidence that empty beer bottles were in

Anderson's truck when he was arrested, but no evidence of when

they had been emptied or by whom. See Drew v. Collins , 964 F.2d

411, 420 (5th Cir. 1992), cert. denied , 113 S.Ct. 3044 (1993).

In Jurek v. Texas , 96 S.Ct. 2950, 2954 (1976), the Court noted

that the evidence established that the defendant "had been

drinking beer in the afternoon" of the offense (the opinion of

the Texas Court of Criminal Appeals says the defendant committed

the offense "after spending the late afternoon drinking beer,"

Jurek v. State , 522 S.W.2d 934, 937 (Tex. Crim. App. 1975)).

6 We note that the Texas Court of Criminal Appeals has also

distinguished a petitioner's failure to present evidence at trial

from a mere failure to request an instruction, suggesting that

the Selvage holding may not encompass the former situation. See

Ex parte Goodman , 816 S.W.2d 383, 386 n.6 (Tex. Crim. App. 1991);

Ex parte Ellis , 810 S.W.2d 208, 212 n.6 (Tex. Crim. App. 1991);

see also Cordova v. Collins , 953 F.2d 167, 174-75 (5th Cir.

1992).

7 We do not suggest that, had the circumstances to which

Anderson refers been shown by evidence at trial, this would have

required a Penry -type instruction, or that the failure to give

such an instruction would not be a new rule for purposes of

Teague v. Lane , 109 S.Ct. 1060 (1989). See Graham v. Collins

,

10 petitioner cannot base a Penry claim on evidence that could have

been, but was not, proffered at trial. Barnard v. Collins , 958

F.2d 634, 637 (5th Cir. 1992), cert. denied

, 113 S.Ct. 990 (1993);

Wilkerson v. Collins

, 950 F.2d 1054 at 1061 (5th Cir. 1992), cert.

denied

, 1 13 S.Ct. 3035 (1993); M ay v. Collins

, 904 F.2d 228, 232

(5th Cir. 1990) (per curiam), cert. denied , 111 S.Ct. 770 (1991);

DeLuna v. Lynaugh , 890 F.2d 720, 722 (5th Cir. 1989). Therefore,

without regard to any state proce dural default, 6 Anderson lacks a

valid federal Penry claim. 7113 S.Ct. 892 (1993); Johnson v. Texas , 113 S.Ct. 2658 (1993).

11 II. Ineffective Assistance of Counsel

To establish that his legal representation at trial or at a

capital sentencing proceeding fell short of the assistance

guaranteed by the Sixth Amendment, a convicted defendant must meet

the two-pronged test set forth by the Supreme Court in Strickland

v

. Washington

, 104 S.Ct. 2052 (1984). He must show that his

counsel's perform ance was both deficient ( i .e.

, that counsel did

not provide reasonably effective assistance under prevailing

professional norms, id

. at 2064-65) and prejudi cial ( i.e.

, that

errors by counsel "actually had an adverse effect on the defense,"

i d

. at 2067). The former component of the test authorizes only

"highly deferential" judicial scrutiny, requiring the defendant to

"overcome the presumption that, u nder the circumstances, the

challenged action 'might be considered sound trial strategy.'" I d

.

at 2065 (quoting Michel v. Louisiana

, 76 S.Ct. 158, 164 (1955)).

On the latter component, "[i]t is not enough for the defendant to

show that the errors had some conceivable effect on the outcome of

the proceeding"; rather, he must demonstrate a "reasonable

probability tha t, but for counsel's unprofessional errors, the

result of the proceeding would have been different." I d

. at 2067,

2068.

Much of Anderson's argument to this Court consists of

generalized allegations about Cannon's reputation in the Harris

County legal community for incompetence in capital cases. With the

aid of supporting affidavits from other attorneys, Anderson seeks8 The Texas Court of Criminal Appeals has stated:

"A capital venireman who cannot distinguish

between an 'intentional' and a 'deliberate' killing has

demonstrated an impairment in his ability meaningfully

to reconsider guilt evidence in the particular context

of special issue one. Absent rehabilitation, that

venireman should be excused upon challenge for cause."

Martinez v. State , 763 S.W.2d 413, 419 (Tex. Crim. App.

12 to establish that Cannon habitual ly tries capital cases in a

perfunctory manner. Both prongs of the Strickland test, however,

require examination of the specific conduct and decisions made by

counsel in the particular case; Anderson cannot establish that the

representation he received was constitutionally inadequate merely

from evidence about Cannon's reputation or conduct in other cases.

Anderson also r efers to a number of more specific asserted

failures by Cannon that we must assess under the Strickland

guidelines.

A. Failure to object to pros ecutor's equation of "deliberate"

with "intentional" during voir dire

Anderson claims that Cannon erred in failing to object during

voir dire to the prosecutor's mischaracterizati ons of the term

"deliberate" as used in Special Issue 1. Anderson contends that

the prosecutor wrongly stated to the prospective jurors that

"intentional" and "deliberate" were synonymous, and that Cannon not

only failed to object or request a corrective instruction from the

court, but actu ally compounded the problem by agreeing with the

misstatements. This error was prejudicial, he argues, because once

the jury found him guilty of an intentional killing, they felt

compelled, without a meaningful reconsideration of the evidence, to

answer Special Issue 1 affirmatively. 81988).

9 Voir dire examination was conducted with each prospective

juror individually, out of the presence of the other members of

the venire panel. Therefore, any alleged misstatement by the

prosecutor during voir dire would have affected only that

particular venireman, and could be prejudicial only if he or she

was in fact chosen for the jury.

13 The voir dire transcripts, however, reveal that the prosecutor

said that there were no official definitions for the terms used in

the special issues, and typically 9 said that "deliberate" could be

understood to mean "something along the lines of willful." He also

said that the evidence adduced during the guilt/innocence phase to

show that Anderson intentionally killed Webster would be the same

evidence that wou ld help the juror decide whether Anderson acted

deliberate ly. For the last five empaneled jurors (Jurors Cole,

Sebastian, Rieger, Walker, and Figg), the prose cutor varied his

formula somewhat, saying that a common-sense definition of

"deliberate" would be something like willful o r intentional.

Cannon did not object or return to the issue in his voir dire

exa mination of these five jurors. The allegation that Cannon

agreed with the prosecutor's statement is bas ed on Cannon's

statement to one juror regarding Special Issue 3. Cannon stated

that while he agreed wit h nearly everything else that the

prosecutor had said during voir dire

, he disagreed with the

prosecutor's comments about Special Issue 3.

Although ther e might have been room for an objection or

clarification by Cannon in these five instances, we cannot say that

the failure to make such an objection was either so deficient or so

prejudicial as to approach the st andards of S trickland

. The14

prosecutor did not actually equate the standard of Special Issue 1

with the requisite mens rea for murder. S trickland requires us to

ask "whether t here is a reasonable probability that, absent the

errors, the sentencer . . . would have concluded that the balance

of aggravating and mitigating circumstances did not warrant death."

Strickland

, 104 S.Ct. at 2069. In the present, we cannot find a

reasonable probability either that these five jurors were given an

erroneous view of the law by these passing remarks during voir

dire

, or, even assuming they were given an erroneous view, that

without such a mistaken impression they would have concluded that

Anderson had not acted deliberately. The question of

deliberateness was hardly at issue in this case, in which Anderson

stabbe d Webster fifteen times; Cannon's closing argument to the

jury in the sentencing proceeding focused solely on Special Issue

3. S ee Landry v. Lynaugh

, 844 F.2d 1117, 1120 (5th Cir. 1988),

cert. denied , 109 S.Ct. 248 (1988).

B. Failure to object to improper hypothetical questio ns during

voir dire and to the prosecutor's contention that self-defense

was not a defense to a capital murder charge

Anderson contends that the prosecutor gave prospective jurors

misleading hypothetical examples, and that Cannon failed to object

or correct the jurors' resulting misunderstandin g. The

hypothetical examples were efforts by the prosecutor to explain the

purpose of Special Issue 3. Because the v oir dire to the first

accepted juror SQ Juror Connally, w ho became the foreman S Q is

representative and is also the subject of some particular

challenges by Anderson, it will be described in some detail.

The prosecutor posited for Connally a situation in which the15

def endant went into a bank with a loaded gun to rob it, and the

teller pulled her own gun to defend herself. The prosecutor

explained that if the defendant then shot and killed the teller, he

would not be able to resist a murder conviction by claiming selfdefense, beca use he was responsible for the teller's action.

Special Issue 3, the prosecutor explained, wa s the Legislature's

attempt to deal w ith that type of situation by giving the jury a

way to express its view that, although the defendant could not

claim innocence by relying on self-defense, the fact that he was in

fear of being killed himself when he acted might mitigate the

appropriate punishment.

After posing a second, similar hypothetical case, the

prosecutor then suggested that Special Issue 3 might or might not

come into play in situations such as the first hypothetical

illustration. Cannon immediately objected. After being told to

rephrase his "question," the prosecutor told the juror that

although Special Issue 3 would be given to the jury any t ime the

deceased did anything t hat could remotely be considered

provocation, and the fact that it was presented did not mean that

it was applicable. He suggested that "[a]ll somebody has to do [to

get Special Issue 3 included] is utter the magic w ord." Cannon

again immediately objected, stating that "[t]he Legislature put it

there and it is part of the law and deserves a serious

consideration." His objection was sustained.

When the prosecutor passed Connally to Cannon, Cannon stated

that he disagreed strenuously with the prosecutor's comments about

Special Issue 3. After reiterating that the Legislature put10 Anderson charges that Cannon erred in accepting the seating

of Connally despite Connally's view that he could not conceive of

any situation in which Special Issue 3 would apply. As the above

summary indicates, if Connally did say that initially (and it is

16 Special Issue 3 there and intended it to be taken seriously, Cannon

engaged in the following exchange with Connally:

"Q Can you conceive in your own mind of a hypothetical

case where that issue would definitely be raised?

A No.

Q You cannot conceive of any situation where

number three would apply?

A No, sir. My feeling in this would be that, first of all,

the individual, as the act occurred, it was one illegal

act on top of another, and what right did he have to take

a life?

Q They are not saying there that he had the right to take

a life there.

A Was his actions unreasonable.

Q They are asking you in respon se to the provocation, if

any, by the deceased.

A That is like asking us if I was a prisoner of war, would

I try to escape.

Q Obviously, you would.

A You are right.

Q Let me put it this way, sir. Let me give you a hypothetical, a little different from the District

Attorney's. By the way, I did understand you to say that

you could see in his hypothetical case, which was way

far-fetched that your response was reasonable, that the

robber's response was reasonable to the provocation. Did

I understand that correct, Captain?

A Based on the exa mple that the district attorney gave,

certainly, the fact that he gave, certainly."

Cannon then gave a hypothetical case basically the same as the

first one given by the prosec ution, i .e.

, the one about the bank

robber, and asked Connally whethe r the robber's response was

reasonable. The State objected, and the court overruled the

objection. Connally then indicated that in that situation he could

probably come up with a "no" answer to Special Issue 3. Cannon

asked him if he could follow the law in that respect, and he said

that he felt sure that he could. 10not entirely clear that he did), he ultimately retreated from

that position.

17 After Connally, the prosecutor settled into a routine of

giving jurors a hypothetical case in which a bank robber takes his

wife and son with him to the bank, leaves them behind in his haste

to escape from the bank, and then as he is leaving sees the bank

teller about to kill his wife, and turns and shoots the teller. In

most instances the prosecutor either implied that the answer to

Special Issue 3 would be "no" under those circumstances, or did not

imply anything one way or another. Cannon objected only once to

the prosecutor's Special Issue 3 discussion after Connally: when

the prosecutor suggested that if the evidence showed a reasonable

response to p rovocation, the jury had d iscretion to mitigate

punishment.

Cann on's approach was simply to ask the jurors whether they

could envisio n a case in which they would answer Special Issue 3

"no." If they said that they would have difficulty envisioning

such a case, he gave an example of someone who robs a convenience

store, and as he is leaving the clerk draws a gun and begins firing

on him, and the robber turns around and kills the clerk. Through

this process, seven of the other eleven jurors expressly stated

that they could envision a case in which they would answer Special

Issue 3 "no."

Anderson makes seve ral contentions regarding this v oir dire

activity. First, he argues that the facts of the hypothetical

cases did not even constitute capit al murder, but instead would

more properly have been classified as cases of negligent homicide11 We therefore also reject his related argument that the voir

dire illustrations prejudiced him in the sentencing phase by

creating the impression that Special Issue 3 could be answered

"no" only in circumstances that were not even capital murder.

12 See Harris v. State , 784 S.W.2d 5, 10 (Tex. Crim. App. 1989)

(capital murder defendant was not entitled to instruction on

voluntary manslaughter based on his efforts to defend himself

from the deceased where the defendant initiated the entire

criminal episode by breaking into the deceased's house and

18 or voluntary or involuntary manslaughter. His point is evidently

that the hypothetical cases infected the guilt/innocence phase of

the trial by giving the jurors a misleadingly low understanding of

the mens rea required for murder. This argument is misplaced,

because none of the hypothetical cases involved accidental

killings; in all of them the accused pointed his gun at the

defendant and pulled the trigger with intent to kill. They would

at least arguably have been cap ital murder. 1 1 Moreover, it is

inconceivable that these examples, given during voir dire to

illustrate the operation of Speci al Issue 3, resulted in any

appreciable prejudice to Anderson in the guilt/innocence phase of

the trial. The jury was fully and accurately instructed on the

elements of capital murder at trial.

Anderson also argues that Cannon permitted the prosecutor to

tell jurors, and indeed told jurors himself, that there was no such

thing as self-defense to capital murder. He argues that this

characterization ensured an affirmative answer to Special Issue 3,

regardless of t he evidence. Although both the prosecutor and

Cannon made rather blanket statements to that effect, the

statements were made in the cont ext of the hypothetical cases

discussed above, for which they were probably accu rate. 1 2 Moreattempting to kidnap his girlfriend), cert. denied , 110 S.Ct.

1837 (1990).

13 Presumably this is where Anderson's reference to "pinching"

comes from.

19 important, they were intended to explain why Special Issue 3 exists

and show that under certain circumstance s it s hould be answered

negatively despite proof of capital murder.

Finally, Anderson makes a somewhat separate argument regarding

voir dire

. He contends that Cannon permitted the prosecutor to

give a legally erroneous explanation of Special Issue 2 that

ensured an affirmative answer. Specifically, Anderson alleges that

the prosecutor created the impression that such innocuous conduct

as stealing a paper clip or pinching a person could satisfy Special

Issue 2's reference to future "criminal acts of violence." A

statement rep resentative of what the prosecutor said in this

respect is the following:

"Criminal acts of violence. If I went over and stole the

Court Reporter's machine, that would be violence towards

property. If I went over there and punched her,[ 1 3 ] that

would be a criminal act of violence toward person. And

there are varying degrees from punching someone to murder

or stealing a paper clip to stealing someone's automobile

or Rolls Royce."

A gain, it is simply not plausible that Anderson was in any way

prejudiced by any misstatement of law contained in these comments.

Anderson admitted to having killed Webster in brutal fashion, and

it is inconceivable that the jury answe red Special Issue 2

affirmatively based on a belief that Anderson was a threat to

commit petty crimes against property in the future.14 The jury was charged on the offense of murder, so the due

process concerns in putting the defendant in a position where the

jury can only convict of capital murder or acquit altogether, see

Beck v. Alabama , 100 S.Ct. 2382 (1980), are not present here.

Montoya v. Collins , 955 F.2d 279, 285 (5th Cir.), cert. denied

, 113 S.Ct. 820 (1992).

20 C. Failure to request a charge on voluntar y manslaughter,

temporary insanity, or legality of the initial stop

Anderson contends that Cannon rendered ineffective assistance

by failing to request jury instructions on three theories, which he

argues were presented by the evidence.

On the first theory S Q voluntary manslaughter SQ the State responds

that Anderson's own account of events refutes the suggestion that

a rational trier of fact could have convicted him of voluntary

manslaughter. 14 Voluntary manslaughter is murder committed "under

the immediate influence of sudden passion arising from an adequate

cause." Tex. Penal Code Ann. § 19.04(a) (Vernon 1989) (emphasis

added). However, when Webster first committed the acts now

questionably alleged to constitute adequate cause S Q accusing

Anderson of rape and threat ening to send him to prison S Q Anderson

calmed himself sufficiently to persuade Webster to leave with him

and to drive to the building where he was staying. We agree

with the State that in all likelihood under these facts Cannon

could not even have gotten the issue of voluntary manslaughter

submitted to the jury had he requested such an instruction. See,

e.g., Cantu v. Collins

, 967 F.2d 1006, 1014 (5th Cir. 1992), cert.

denied , 113 S.Ct. 3045 (1993); Luck v. State , 588 S.W.2d 371, 375

(Tex. Crim. App. 1979), cert. denied

, 100 S.Ct. 2171 (1980); Harris

v. State

, 784 S.W.2d 5, 10 (Tex . Crim. App. 1989), c ert. denied

,15 Anderson's reliance on Hernandez v. State , 742 S.W.2d 841,

843 (Tex. App. SQ

Corpus Christi 1987, no petition), is misplaced,

as that case deals with involuntary manslaughter.

16 As previously observed (note 14, supra ), a charge was given

on the lesser included offense of murder. We note that the Texas

courts have consistently held that it is not error to fail to

charge on a lesser included offense where no request for such a

charge is made. See, e.g., Boles v. State , 598 S.W.2d 274, 278

(Tex. Crim. App. 1980); Hanner v. State , 572 S.W.2d 702, 707

21 110 S.Ct. 183 7 (1990). 1 5 However, even assuming he could have

gotten an instruction, An derson has not shown that Cannon's

representation was deficient under Strickland

. The State furnished

to the state habeas court an affidavit from Cannon dated February

24, 1987, stating that he had not pursued t he voluntary

manslaughter defense because he thought it would strain the

defense's credibility, making the jury likely to respond negatively

in the punishment phase and jeopardize what he regarded as his

primary avenue of defense, viz.

, that the State had failed to prove

the underlying robbery necessary for a capital murder conviction.

Based on this affidavit and on Cannon's testimony at the hearing,

the state court found that "[d]efense counsel's failure to request

a charge on the lesser included offense of voluntary manslaughter

was a conscious decision based on trial strategy." Absent one of

the eight statutorily designated exceptions SQ none of which are

alleged h ere SQ f actual determinations by the state court are

entitled to a presumption of correctness. 28 U.S.C. § 2254(d);

Burden v. Zant , 111 S.Ct. 862, 864 (1991) (per curiam). Anderson

has not made an adequate showing to overcome this presumption, and

under the principles of Strickland we will not second-guess this

aspect of Cannon's trial strategy. 16(Tex. Crim. App. 1978), cert. denied , 99 S.Ct. 1504 (1979); Green

v. State , 533 S.W.2d 769, 771 (Tex. Crim. App. 1976); Lerma v.

State , 632 S.W.2d 893, 895 (Tex. App. SQ Corpus Christi 1982, pet.

ref'd). Hence, it could not be ineffective assistance of counsel

on appeal to fail to complain of the absence of an instruction on

the lesser offense of voluntary manslaughter (even had that been

raised by the evidence) as no request for an instruction on

voluntary manslaughter had been made at trial.

22 The second theory on which Anderson claims Cannon should have

sought an instruction SQ temporary insanit y SQ is not raised by the

evidence in the case. Anderson cites his testimony at trial that

when he went to the lounge where Webster worked "my intention was

to go in and have a couple of drinks," and evidence that empty beer

bottles were in his truck when he was arrested. See also note 5,

supra

. This testimony does not even remotely form the predicate

for a temporary insanity instruction or establish incompetence of

counsel in failing to request one.

On the third theory SQ legality of the highway stop by

Stone SQ

Cannon did indeed challenge the initial stop at trial.

Stone's testimony was initially given out of the jury's presence.

Cannon then argued to the court that Stone had lacked probable

cause for the stop because he had not observed Anderson committing

any traffic violation, and that therefore the evidence found in the

back of Anderson's truck was inadmissible. The trial judge

overruled Cannon's objection. This issue was among those raised by

Cannon on direct appeal and rejected by the Court of Criminal

Appeals. S ee Anderson

, 701 S.W.2d at 873. Having had his

objection ove rruled by the trial court and having preserved the

point for appeal, it is not clear what type of jur y instruction

Cannon could have sought, or how the legality of the initial stop23

could have been further challenged.

D. Failure to investigate and present various types of evidence

Anderson contends that Cannon failed to develop various types

of evidence that would have been valuable to his defense, including

(1) expert evidence of Anderson's typically nonviolent temperament,

raising the inference that Webster's killing was performed under

the influence of a sudden passion or temporary insanity, (2)

Anderson's exemplary behavior in prison, (3) character evidence

from relatives to be presented during the sente ncing phase, (4)

evidence from patrons of Webster's club corroborati ng her

reputation for assaultive conduct and involvement in drug

activities, (5) evidence of Anderson's and Webster's business and

sexual relationship, and (6) evidence of Anderson's family history

and emotional disturbance.

Most of these mat ters were addressed in the state habeas

hearing. Cannon testified, for instance, that he had Anderson

examined by an independent psychiatrist to assess his san ity and

ab ility to testify. This psychiatrist testified at the hearing

that he diagnosed Anderson as having a sociopathic personality, and

that he told Cannon that psychiatric expert testimony would not

assist Anderson's defense in any way. Upon being appointed by the

court, Cannon sent Anderson a form letter asking for the names of

any witnesses that might be helpful. In his affidavit and oral

testimony, Cannon t estified that despite Anderson's failure to

provide any names , Cannon contacted Anderson's mother as a

potential character witness, but elected not to use her after she

told him that she regarded her son's trial as the Lord's vengeance.24

The habeas court accepted Cannon's testimony that he did not regard

it as worthwhile to try to contact Anderson's father as a character

witness, since except for one short visit Anderson had not seen him

in over fifteen years. The court also found that Cannon concluded

that testimony from Anderson's uncle and cousin would not help the

defense strategy, since according to the prosecutor's file both

were cooperating with the police. Although Anderson included as an

exhibit to his federal habeas petition a form signed by his uncle

indicating that he would be glad to appear as a character witness

for Anderson, the form does not indicate in any way the substance

of the testimony and provides no basis for concluding that Anderson

was prejudiced by its absence. Without a description of the

subject matter of the potential testimony, Anderson has not raised

a cognizable claim under S trickland

. S ee Alexander v. McCotter

,

775 F.2d 595, 602-03 (5th Cir. 1985).

Likewise, for the issues that are not addressed by the state

habeas court' s findings, Anderson again makes only brief and

conclusory allegations that Cannon's representation was deficient

because of his failure to investigate and develop useful evidence.

Typically, he does not specify what this investigation would have

divulged or why it would have been likely to make any difference in

his trial or sentencing ( e.g. , "Mr. Cannon failed to investigate,

develop and present evidence of the decedent's business

relationship with the drug suppliers."). As the Seventh Circuit

recently noted, without a specific, affirmative showing of what the

missing evidence or testimony would have been, "a habeas court

cannot even begin to apply Strickland 's standards" because "it is25

very difficult to assess whether counsel's performance was

deficient, and nearly impossible to determine whe ther the

petitioner was prejudiced by any deficiencies in counsel's

performance." U

nited States ex rel. Partee v. Lane

, 926 F.2d 694,

701 (7th Cir. 1991), cert. denied

, 112 S. Ct. 1230 (1992). The

evidence about which Anderson gives the most detailed description

is his participation in a work program for death row inmates

beginning in 1984. Because this evidence relates to conduct after

the trial, Cannon cannot be deemed delinquent for fai ling to

investigate and present it for mitigation in sentencing.

E. Allowing Anderson to testify

Cannon is also alleged to have seriously erred in permitting

Anders on to testify, because it allowed the introduction of the

fact that he had previously been convicted of robbery and

kidnapping in Arkansas, thus buttressing the State's robbery case.

(Cannon inquired about these convictions in Anderson's dire c t

examination to prevent them from being elicited for the first time

by the State on cross-examination.)

The state habe as court found that Cannon fully explained to

Anderson the advantages and disadvantages of testifying, and that

Anderson himself made the decision to testify. Given the heavy

reliance that the defense was placing on Webster's behavior toward

Anderson on the night of her death, we cannot say that this was an

unreasonable trial strategy. Anderson's testimony was the only way

to introduce evidence of Webster's alleged attempt to blackmail him

with a false charge of rape, on which the defense hinged its hopes

for a negative answer to Special Issue 3.26

III. Constitutionality of the Texas Capital Murder Statute

Anderson finally mounts a challenge to the constitutionality

of the Tex. Penal Code Ann. § 19.03(a)(2), which states that a

per son commits capital murder if he "intentionally commits the

murder in the course of committing or attemptin g to commit

kidnapping, burglary, robbery, aggravated sexual assault, or

arson." Anderson contends that the failure to define the phrase

"in the course of committing

. . . robbery" render th e provision

unconstitutionally vague. He relies on W alton v. Arizona

, 110

S.Ct. 30 47 (1990), for the proposition that such vagueness is

impermissible as an aggravating circumstance used to a impose a

death sentence, unless courts apply a limiting construction.

Anderson's argument, or one close to it, appears to have been

rejected by t his Court in F ierro v. Lynaugh

, 879 F.2d 1276, 1278

(5th Cir. 1989), cert. denied

, 110 S.Ct. 1537 (1990). However,

because Anderson relies on the subsequent Walton decision, and in

order to c over any possible difference between Anderson's

contention and the one rejected in Fierro

, we will consider his

argument.

In Walton

, the Supreme Court confronted the Arizona sentencing

scheme, which requires a sent encing determination by the court

alone after a capital murder conviction. The court is to decide

the existence or nonexistence of various aggravating and mitigating

circumstances, including whether the offense was especially

heinous, cruel, or depraved. The defendant claimed that the

sentencer's discretion was not channeled as required by the Eighth

and Fourteenth Amendments, relyin g on M aynard v. Cartwright

, 10827

S.Ct. 1853 (1988), and Godfrey v. Georgia , 100 S.Ct. 1759 (1980),

in which the Court had declar ed similarly broad factors invalid.

The Court found the Arizona situation distinguishable, because

sentencing was by the trial judge, wh o could be presumed to know

the law, rather than by a jury that was given only the bare

statutory language, and because the appellate courts could make

independent determinations of whether such an aggravating

circumstance was met. Id . at 3057.

The phrase "in the course of committing

. . . robbery" is, of

course, not technically an "aggravating circumstance," but rather

an element of the substantive offense. However, this distinction

is perhaps not constitutionally significant in light of the Supreme

Court's statements that designating aggravating circumstances and

restricting the categories of murder for which death may be imposed

serve, in the statutes of different states, the equivalent function

of narrowing the class of persons eligible for the death penalty.

See Lowenfield v. Phelps

, 108 S.Ct. 546, 554-55 (1988). The

Supreme Court relied on this narrowing at the guilt/innocence phase

in upholding the Texas capital sentencing scheme. S ee Jurek v.

Texas , 96 S.Ct. 2950, 2955-56 (1976) (plurality opinion).

The most important distinction betwee n this case and W alton

(or, more accurately, between this case and Maynard and Godfrey ) is

that both the nature of the phrase and the practice of Texas courts

prevent the jury from being given unbridled discretion. Whereas in

Godfrey t he Georgia Supreme Court had affirmed a death sentence

based on no more than a finding that the offense was "outrageously

or wantonly vile, horrible or inh uman," and, in the words of the17 It was critical to the Court's decisions in Godfrey and

Maynard that, even if the statutory terms could have been

subjected to a limiting definition ( e.g. , by looking to more

objective factors, such as the use of torture, defined as serious

physical abuse of the victim before death, see Godfrey , 100 S.Ct.

at 1766), the highest courts of the two states had not done so.

Walton , 110 S.Ct. at 3057.

28 United States Supreme Court, ther e was "no principled way to

distinguish this case, in which the death penalty was imposed, from

t he many cases in which it was not," G odfrey

, 100 S.Ct. at 1767,

there are principled ways to distingu ish applications of section

19.03(a)(2). To a much greater degree than words such as

"outrageous," "wanton," "vile," or "inhuman," the phrase "in the

course of committ ing . . . robbery" is grounded in the objective

proof of the particular case; it does not appeal to the

sensibilities of the juro rs or invite imposition of a subjective

standard. A robbery, as defined in the statute, must have been

committed or attempted, and the murder must have had some temporal

proximity and factual connection to the robbery. The only real

room for uncertainty is how far one can expand the temporal

proximity if the logical connection exists. For instance, could

the killing of someone who locates the hiding bank robbers three

days after the event be so considered?

This is the sort of question that might (at a stretch) be left

open on the face of section 19.03(a)(2) alone. However, questions

like this are o nes that can readily be, and in fact have been,

resolved by judicial construction 17 or by definitions elsewhere in

the Penal Code, and thereafter applied in a manner leaving very

little discretion. Section 29.01(1) defines "In the course of18 While we now seriously doubt that Anderson has even made the

requisite showing for a certificate of probable cause, see Black

v. Collins , 962 F.2d 394, 398 (5th Cir.), cert. denied , 112 S.Ct.

2983 (1992), the case has been fully briefed and orally argued on

the merits in this Court, and so we elect to grant the

certificate of probable cause as its denial now would serve no

good purpose.

We deny Anderson's motion for stay of execution as well as

his motion for oral argument thereon.

29 committing theft" to mean "conduct that occurs in an attempt to

commit, during the commission, or in imm ediate flight after the

attempt or commission of theft." The Texas Court of Criminal

Appeals has deemed this definition ap plicable to section

19.03(a)(2) as well, Riles v. State

, 595 S.W.2d 858, 862 (Tex.

Crim. App. 1980), and Anderson's jury was given this definition

word-for-word. So defined, section 19.03(a)(2) entails even less

discretion and bears little resemblance at all to the statutes at

issue in Maynard and Godfrey

. We therefore hold that Anderson's

constitutional challenge is without merit.

Conclusion

All of Anderson's cont entions are unavailing, and we affirm

the judgment of the district court denying habeas relief. 18

AFFIRMED