IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-41161

PATRICK F. ROGERS,

Petitioner-Appellant,

versus

WAYNE SCOTT,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

November 21, 1995

Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Pat rick F. Rogers was sentenced to death for the murder of a

police officer by a state district court in Texas upon affirmative

answers to the required interrogatories. The complete facts of the

crime and the procedura l history of this case are set out in the

thorough opinion of the United States District Court explaining its

order dismissing Rogers' petition and denying a certifi cate of

probable cause. S ee Rogers v. Director

, 864 F. Supp. 584 (E.D.

Tex. 1994). We will not tell the tale again. We pause only to

note that there is no question in this case about the sufficiency

of the evidence. Rogers does not deny shooting the officer six

times while the off icer sat in the police car with his pistol in2

its holster, nor does he deny participating in a crime spree of

which the killing was a part. We grant a certificate of probable

cause and affirm the order dismissing Rogers' petition, his first

federal habeas petition.

I.

Rogers presented twenty-nine claims for relief to the federal

district court and thirty issues, each of which, it is urged,

supports a certificate of probable cause. The district court

reviewed each of the claims an d rejected all of them on their

merits. It also found that all but Claim One, a P enry claim to

which we will turn shortly, were barred from review because they

rested upon an independent and adequa te state ground.

Specifically, Henry Braswell, Judge of th e 6th Judicial District

Court of Lamar County, Texas, filed detailed findings of fact and

conclusions of la w on October 14, 1990. Judge Braswell found a

procedural bar to all claims because Rogers either failed to lodge

a contemporaneous objection or failed to assert the issue on direct

appeal. The Texas Court of Criminal Appeals affirmed on the basis

of these findings except for Conclusions of Law Nos. 2, 3, and 8.

Conclusion No. 2 held that state constitutional violations were not

cognizable in a post-conviction writ brought pursuant to Tex. Code.

Crim. Proc. Ann. Art. 11.07. Conclusion Nos. 3 and 8 found a

procedural bar to Rogers' Penry claim that the punishment

interrogatories did not allow the jury to give full effect to his

mitigating evidence. We turn first to the procedural bar urged by3

the State as an independent state law ground for rejecting all but

Claim One of Rogers claims.

Rogers urges that the courts below erred in susta ining a

procedural bar because Texas has not consistently invoked it.

Rather, Texas has, the argument continues, in "over two d ozen

published cases over the past two decades . . . waived or ignored

the contemporaneous objection rule." Blue Brief at 28. Relatedly,

Rogers argues that Tex. R. App. P. 52(a) is not an adequate state

law ground because it is "purely" discretionary . Rogers argues

that the Texas Court of Criminal Appeals has not "identified any

particular type of claims for which relaxation of the

contemporaneous objection rule would be appropriate." Blue Brief

at 30.

Our analysis of the assertion that Texas has applied its

contemporaneous obje c tion rule erratically is informed by two

principles. First, "[a] state court need not fear reaching the

merits of a federal claim in an alternative holding.

. . . In this

way, a state court may reach a federal question without sacrificing

its interests in finality, federalism, and comity." H arris v.

Reed

, 489 U.S. 255, 264 n.10 (1989). Second, "an occasional act of

grace by the Texas court in entertaining the merits of a claim that

might have been viewed as waived by procedural default [does not]

constitute such a failure t o strictly or regularly follow the

State's contemporaneous objection rule as permits us to disregard

that rule generally, or where the state court has not done so."

Bass v. Estelle

, 705 F.2d 121, 122-23 (5th Cir.), cert. denied

, 4644

U.S. 865 (1983). The Texas cases, viewed against these two

principles, fail to support R ogers' contention. The State notes

that, in the vast majority of the cases pointed to by Rogers, the

Texas Court of Criminal Appeals first denied relief on the basis of

procedural default and then observed that there was no error. A mos

v. State , 61 F.3d 333, 339-45 (5th Cir. 1995).

We agree and find no tension with notions of federalism in this

circumstance. There is no suggestion that, to defeat federal

interests, Texas selectively invokes its interest in timely

objections to trial rulings. We find no tie between reliance upon

the procedural bar and the merit of the unreached federal claim.

To the contrary, the "alternative" rulings that the barred federal

claims also lack merit suggest the opposite. It would make little

sense to chid e a state for explaining that a barred claim lacked

merit. Explanation by the State preserves the State's interest

while documenting how often a procedural bar was the sole cause of

denied relief.

II.

In his Claim One, Rogers asserts that the jury was unable to

give effect to his mitigating evidence, contrary to the teaching of

Penry v. Lynaugh

, 492 U.S. 302 (1989). Rogers' mother testified

that he had been a good child but began to experiment with drugs at

age 16. There was evidence regarding Rogers' drug use, including

testi mony of his taking liquid phencyclidine or PCP some time

shortly before th e murder. Dr. Gary Byrd, a psychiatrist,

testified tha t Rogers had a history of drug abuse. Dr. Byrd5

explai ned that PCP can cause serious side effects: "[A]n

individual will behave or carry on their activities in an illogical

manner and in a manner in which they are detached from reality and

the person will act as if they are unaware of the consequences of

what they do." He testified that Rogers had used a large amount of

PCP in the trip from Oklahoma to Paris, Texas, where Rogers killed

the police officer. Dr. Byrd opined that Rogers' inability "to

rationalize about" the incident was due to a serious mental defect.

Other witnesses gave similar testimony regardin g Rogers' use of

drugs and his associated bizarre behavior.

This aspect of Rogers' Penry claim is ea sily rejected. The

jury could have given some effect to the evidence in answering the

questions of deliberateness and of the pr obability that he would

constitute a continuing threat to society. C ordova v. Collins

, 953

F.2d 167 (5th Cir.), cert. denied , 502 U.S. 1067 (1992). No more

is required. Rogers made no objection at trial regarding this

perceived wea kness of the interrogatories. Texas, moreover,

rejected this contention on its merits and did not invoke a

procedural bar. S ee Black v. State

, 81 6 S.W.2d 350 (Tex. Crim.

App. 1988).

On the other hand, Texas did insist on its rule that a

petit ioner must proffer mitigating evidence that he would have

offered to preserve a contention that, because the mitigating

evidence was also hurtful to his cause, its "double-edged"

character prevented its use, a frustration laid at the feet of the

Texas form of interrogatories submitted at the sentencing phase of6

cap ital cases. Texas has invoked its contemporaneous objection

rule to this wing of Rogers' Penry argument, and we are offered no

legal basis for disregarding it.

III.

Rogers in Claim Two contends that, at sentencing, the only jury

instruction regarding mitigation related to his defense of

temporary insanity caused by intoxication. The jury was instructed

in accordance with Texas Penal Code Sections 8.01 and 8.04 as

follows (emphasis added):

Evidence of the defendant's tempo rary insanity, if

any, caused by intoxication, whether voluntarily induced

or not, may be considered by the jury in mitigation of the

penalty attached to the offense for which the defendant

has been convicted

.

Insanity, as used in this phase o f the case, means

that the actor, as a result of intoxication, did not know

that his conduct was wrong.

"Intoxic ation" means disturbance of mental or

physical capacity resulting from the introduction of any substance into the body.

Therefore, if you believe from the evidence that the

defendant, Patrick F. R ogers, was at the time of the

offense for which he has been convicted, labo ring under

temporary insanity caused by intoxication, then you may

take such tempo rary insanity into consideration in

mitigation of t he penalty attached to the offense of

capital murder

.

This instruction allowed the jury to consider as mitigating

temporary insanity induced by intoxication, w hether voluntary or

not. Rogers did not object to this instruction at trial, and the

state habeas judge refused to reach its merits for that reason.

The Texas Court of Criminal Appeals affirmed this holding. The

State points to the procedural bar and alternatively replies that7

this contention seeks a new rule contrary to the limits upon

federal habeas imposed by Teague v. Lane

, 489 U.S. 288 (1989). The

State then urges that Rogers failed to prove that he was

intoxicated when he killed the police officer and that, in any

event, the jury was able to give effect to any mitigating value of

Rogers' evidence. This reply continues that intoxication had no

mitigating value unless Rogers was unable to control his actions,

that is, unless he was temporarily insane. Finally, the State

urges that such evidence, if believed by the jury, could have been

given effect in the jury's answer to the question whether Rogers'

actions were "deliberate", as well as to the question whether he

posed a continuing threat to society.

We are persuaded that Claim Two is procedurally barred and that

Rogers has shown no legal reason to ignore that state rule. We do

not reach the merits of the argument that the instruction denied

Rogers his constitutionally secured right to have the jury consider

all of his relevant mitigating evidence. We pause only to observe

that it is not certain that this instruction improperly limited the

potential mitigating value of Rogers' evidence that he was

intoxicated w hen he murdered the police officer. First, the

instructi on has not denied the intoxication evidence all effect.

The jury was allowed to consider evidence of voluntary intoxication

as mitigating if it was persuaded that Rogers was so intoxicated

t hat he did not know that what he was doing was wrong . This

limitation is arguably consistent with the State's duty to give the

jury full opportunity to give "a reasoned moral response to the8

defendant's background, character and crime." P enry

, 109 S. Ct. at

2952. The State can "structure" the jury's consideration of

mitigating evidence. J ohnson v. Texas

, 125 L.Ed. 2d 290 (1993).

Here, the jury was allowed to give effect to intoxication evidence

but only at the defined level. The instruction's fit with J ohnson

and Eddings v. Oklahoma

, 455 U.S. 104 (1982), is uncertain, and we

suggest no answer to that question today.

Second, this instruction simply does not fit the Texas scheme.

This instruction is apt when the jury is the sentencing body, as it

frequently is in non-capital cases. The jury here was asked the

two questions about deliberateness and future dangerousness. The

answer to these two questions decided the defendant’s fate. The

trial judge did not explicitly instruct the jury whether it could

consider the eviden ce of intoxication in answering the two

questions. It did instruct that the jury could consider all

evidence submitted during both the guilt and punishment phases of

the trial, and, significantly, counsel argued the weight the jury

ought to accord to the intoxication evidence. Nonetheless, we

cannot say with confidence how the jury put the instruction and the

questions together. We are describing the uncertainty because it

is the context in which the procedural bar was invoked. We do not

reach the inquiry "whether there is a reasona ble likelihood that

the jury has applied the challenged instruction in a way that

prevents the consideration of constitutionally relevant evidence,"

Boyde v. California

, 110 S. Ct. 1190 (1990), or whether there

exists a "reasonable likelihood that t[he] jurors would have deemed9

themselves foreclosed from considering [the mitigating evidence]."

Graham

, 113 S. Ct. at 902. This notion that defense counsel was

actually foreclosed from presenting credible voluntary intoxication

evidence to the jury is also belied by his closing argument.

Defense couns el argued that Rogers' acts were not deliberate

because "he was on PCP." He pointed out to the jury that "[t]he

court in this charge tells you that voluntary ingestion, in this

instance of PCP, can be considered in mitigation." In sum, Claim

Two, on the facts of this case, is problematic at bes t. The

State's powerful interests in insisting upon a contemporaneous

objection are palpable here, given this uncertainty that might have

been corrected. Indeed, the reality is that defense counsel may

not have objected to the instruction because it laid all the

platform needed to argue his case with credibility.

Nor is the State's invoking of the contemporaneous ob jection

rule put in doubt by its announced refusal to do so to bar P enry

claims arising before Penry was decided. P enry made clear that

seven years earlier, long bef ore Rogers' trial, E ddings had held

that "a sentencer may not be precluded from considering, and may

not refuse to consider, any relevant mitigating evidence offered by

the defen dant as the basis for a sentence less than death." 492

U.S. at 318. Rogers contends that voluntary intoxication leaving

him aware of right and wrong was mitigating but was excluded by the

trial judge from the jury's conside ration. This is not a P enry

claim, which addresses the question whether particular mitigating

evidence can find expression in the jury's ans wers to questions10

asked in the sentencing phase. In short, Roger's P enry and Eddings

claims have common doctrinal sources but are different in ways

d irectly relevant to our question today whether a procedural bar

was properly invoked. The refusal by the Texas Court of Criminal

Appeals to insist on a contemporaneous objection to Penry errors in

cases tried before Penry was announced rests on its doctrine of

secured rights. Eddings , as we have pointed out, established the

principle now invoked against Rogers long before his trial. We

find no inconsistency in that court's application of the procedural

bar to Rogers' second claim.

We grant a certificate of probable cau se and affirm the

judgment of the district court dismissing the petition for writ of

habeas corpus.

AFFIRMED.