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

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

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70031

NELSON GONGORA,

Petitioner-Appellant,

v.

NATHANIEL QUARTERMAN, Director, Texas 

Department of Criminal Justice, Correctional Institutions Division,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:06-CV-836

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant, Nelson Gongora, appeals from the district court’s

denial of his application for a certificate of appealability (“COA”). Gongora

requests a COA from this court on two issues: (1) whether he is entitled to federal

habeas relief because the prosecutor commented on his failure to testify during

the prosecutor’s closing argument, and (2) whether he could be sentenced to

death based on the jury’s finding that he was able to anticipate that death might

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-70031

2

result from his participation in the robbery in light of the Supreme Court’s

decision in Tison v. Arizona, 481 U.S. 137 (1987). For the following reasons,

Gongora’s application for COA is granted on both issues.

Factual and Procedural Background

Petitioner was tried and convicted in Texas state courtfor capital murder.

TheTexas Court of Criminal Appeals (“TCCA”) summarized the facts underlying

the capital murder trial as follows: 

On the night of April 7, 2001, Juan Vargas was driving

his van accompanied by Gongora, Carlos Almanza, Albert

Orosco, Steven Gongora, and James Luedtke when they saw

Delfino Sierra walking down the street and decided to rob

him. When Vargas pulled over, Gongora and Orosco jumped

out of the van, ran toward Sierra, and demanded his money.

When Sierra began to run, Gongora shot him in the head with

a .38 caliber handgun. Gongora and Orosco then returned to

the van. Gongora told his companions that he “took [Sierra’s]

dreams” and did “what [he] had to do” and warned them to

remain silent. Gongora appeared to be bragging about what

he had done. The group then returned to Gongora’s house for

a cookout. 

Gongora and Vargas were leaders in the criminal street

gang Puro Li’l Mafia (“PLM”). Approximately two hours after

Gongora killed Sierra, Vargas drove Gongora and Almanza to

the house of a rival gang member. Almanza, in order to

become a PLM member, shot into the house in retaliation for

drive-by shootings that had occurred at Gongora’s house.

During the shooting, Gongora stood outside the van armed

with a nine-millimeter handgun. The victim of this shooting

survived.

Several days later, an anonymous phone call helped

establish that Vargas and Maria Morales owned the suspect

van. Vargas was arrested on April 27, and gave a written

statement to police naming Almanza as Sierra’s killer. On

May 9, Vargas met with Detective Carlos Ortega to correct

the falsehoods in his first statement and identified Gongora

as the shooter. Vargas explained that he had initially lied

because he feared retaliation from Gongora. 
No. 07-70031

3

On June 19, after he was arrested pursuant to a

warrant, Gongora waived his rights and gave a voluntary

signed statement. In his statement, Gongora admitted getting

out of the van with others to rob Sierra. Then he heard shots

and saw the man lying on the ground, but claimed not to

know who fired the shots. 

Gongora v. State, 2006 WL 234987, * 1 (Feb. 1, 2006).

On March 27, 2003, Gongora was convicted of capital murder by a jury for

his involvement in the robbery and murder of Sierra. Based on the jury’s

answers to the special issues, Gongora was sentenced to death. The TCCA

affirmed his conviction on February 1, 2006. Gongora filed a writ of habeas

corpus in state court, which was denied on November 15, 2006. Gongora timely

petitioned the United States Supreme Court for writ of certiorari; the writ was

denied on October 2, 2006. 

Gongora initiated federal habeas proceedings on February 28, 2007. The

district court considered, inter alia, whether Gongora’s constitutional rights were

violated when the prosecutor commented on his failure to testify during closing

arguments, and whether Gongora’s constitutional rights were violated by being

subjected to the death penalty because he was able to anticipate that death

might result from his participation in the robbery. The court denied Gongora’s

habeas petition on July 30, 2007, finding that although the prosecutor’s remarks

regarding Gongora’s failure to testify amounted to constitutional error, Gongora

had failed to show that the remarks caused him harm. The court also noted that

the trial court instructed the jury that Gongora’s decision not to testify was not

to be “considered as a circumstance against him” both before and after the

prosecutor’s closing argument. The court then concluded that this claim was

without merit. Regarding Gongora’s claim that the imposition of the death

penalty was unconstitutional because the jury never made a finding of

culpability other than that Gongora anticipated that a life would be taken during

the course of the robbery, the district court concluded that this claim was also
No. 07-70031

4

without merit. Specifically, the court found that the jury instruction permitting

conviction of capital murder and a sentence of death based on the anticipation

of a murder was sufficient to meet Gongora’s constitutional rights. 

On August 15, 2007,the district court denied Gongora’s requestfor a COA.

Gongora timely filed his appeal, requesting a COA from this court.

Discussion

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

“[b]efore an appeal may be entertained, a petitioner must first seek and obtain

a COA.” Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); see also 28 U.S.C. §

2253(c). A COA will issue only if the petitioner makes “a substantial showing

of the denial of a constitutional right.” Id. at 323 (citing § 2253(c)(2)). To satisfy

this standard, the petitioner must demonstrate “that jurists of reason could

disagree with the district court’s resolution of his case or that the issues

presented were adequate to deserve encouragement to proceed further.” The

“threshold [COA] inquiry does not require full consideration of the factual or

legal bases adduced in support ofthe claims.” Id. at 336. In fact, “[w]hen a court

of appeals sidesteps this process by first deciding the merits of an appeal, and

then justifying its denial of a COA based on its adjudication of the actual merits,

it is in essence deciding an appeal without jurisdiction.” Id. at 336-37. Thus,

when determining whether to grant a COA, the question is not whether the

petitioner will prevail. Rather, the question is whether the petitioner has

“demonstrate[d] that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Id. at 323-24. 

In making a COA inquiry, this court must take into account that in ruling

on the merits, the district court was required by AEDPA to defer to the state

court’s resolution of Gongora’s claims, except in limited circumstances. Foster

v. Quarterman, 466 F.3d 359, 365 (5th Cir. 2006), cert. denied, 127 S.Ct. 2099

(2007). This deference is required for questions of fact as well as mixed
No. 07-70031

1 During the prosecutor's closing argument, he made the following comments regarding

Gongora's failure to testify:

5

questions of law and fact, and unless the federal habeas court finds that the

state court’s decision was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States,” it may not grant relief. 28 U.S.C. § 2254(d)(1). The factual

findings of the state habeas court are to be given deference unless they are

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

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

I. Prosecutorial Misconduct– Improper Jury Argument

The “Fifth Amendment, in its direct application to the Federal

Government and in its bearing on the States by reason of the Fourteenth

Amendment, forbids either comment by the prosecution on the accused’s silence

or instructions by the court that such silence is evidence of guilt.” Griffin v.

California, 380 U.S. 609, 615 (1965). “For there to have been a denial of one’s

fifth amendment [sic] right to remain silent, the prosecutor’s manifest intent in

making the remark must have been to comment on the defendant’s silence, or

the character of the remark must have been such that the jury would naturally

and necessarily construe it as a comment on the defendant’s silence.” Jackson

v. Jackson, 194 F.3d 641, 652 (5th Cir. 1999)(citation omitted). Even if the

prosecutor’s comments constitute constitutional error, to obtain habeas relief, a

petitioner must show that the error “has substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619

(1993) (citation omitted) (holding that the “substantial and injurious effect”

standard for determining harm applies in the habeas context rather than the

“harmless beyond a reasonable doubt” standard).

After reviewing the numerous statements made by the prosecutor during

his closing argument regarding Gongora’s failure to testify,1the district court
No. 07-70031

You listen to people inside [the van]. Who also would you want

to hear from, though? The shooter? We're not going to talk to

that person. We're not going to make a deal with that person.

This person deserves what they get. This person right here

[pointing at Gongora].

Nelson Gongora, the shooter. That's the person on trial. That's

the person who deserves to be found guilty of capital murder.

Who should we go ahead and talk to? Who should we go ahead

and present to you? Should we talk to the shooter. . . .

After two objections by Gongora, the prosecutor attempted to address the error caused by his

previous statements, with the following explanation:

I don't want . . .to make it clear, y'all, Defendant has a Fifth

Amendment right not to testify. And, of course - and I don't want

to give any wrong impression on that whatsoever. Okay? What

I want to talk about is this. When you talk about the credibility

of a person, I wish - and I made a - I made a big mistake there.

I'll make it very clear. I'm not talking about, do you want to hear

from him, because you can't do that.

The prosecutor went on to say:

When you're considering andevaluating the credibility ofthe next

person and that's who I'm talking about who you're going to hear

from. I'm talking about Juan Vargas, there's different people who

played different roles. When you consider that we actually spoke

to him, that's what I'm talking about. I'm not talking about who

would you want to hear from, who would you expect us to call . .

.

6

concluded that the comments constituted constitutional error because the

prosecutor intended to comment on Gongora’s silence, and that “the character

of the comments was such that a reasonable jury would necessarily construe

them as comments on Gongora’s silence.” Nevertheless, the district court

explained that “although the court is extremely disappointed in the prosecutor’s

remarks, the court simply cannot find any evidence in the record that his

remarks ‘had substantial and injurious effect or influence in determining the

jury’s verdict’ as required for the granting of federal habeas relief.” See Fry v.

Pliler, 127 S.Ct. 2321, 2325 (2007). In finding that the error was harmless, the

district court relied heavily on the trial court’s instructions to the jury advising
No. 07-70031

7

them that the fact that Gongora did not testify could not be considered in

resolving his case.

Neither party disputes the district court’s finding that the prosecutor’s

comments constitute constitutional error. Gongora, however, contends that he

is entitled to COA because reasonable jurists would find the district court’s harm

assessment debatable or wrong. Gongora urges that the following show the

likely harm as a result ofthe prosecutor’s statements: (1) repeatedly mentioning

his decision to remain silent denied him his Fifth Amendment right not to

testify; (2)there was significant evidence weighing against a finding that he was

the shooter; and (3) during deliberation the jury was primarily concerned with

“who was in the van, who got out of the van, and who the jury wanted to hear.”

The state responds that because juries are presumed to follow instructions

and the trial court sustained each of Gongora’s objections, struck the comments

from the record, and instructed the jury not to consider the statements, there

was no harm to Gongora. The state also posits that the comments were

harmless because the evidence that Gongora participated in robbery was

overwhelming. 

Prosecutorial misconduct is subject to harmless error review. Anderson

v. Nelson, 390 U.S. 523 (1968). The Supreme Court has explained that

“comment on a defendant’s failure to testify cannot be labeled harmless error in

a case where such commentis extensive, where an inference of guiltfrom silence

is stressed to the jury as a basis of conviction, and where there is evidence that

could have supported acquittal.” Id.; see also UnitedStates v. Johnston, 127F.3d

380, 398 (5th Cir. 1997)(citations omitted)(“In examining the effect of the

prosecutors’ impermissible comments, we consider three factors: ‘the magnitude

of the prejudicial effect of the remark, the efficacy of any cautionary instruction,

and the strength of the evidence of the defendant’s guilt.’”). 
No. 07-70031

2

In his initial statement to the police, as well as in his statement to his wife following

the shooting, Vargas indicated that a person other than Gongora was the shooter. Thereafter,

when police re-interviewed him, Vargas identified Gongora as the shooter. 

8

As an initial matter, to the extent that Gongora is arguing that the

prosecutor’s mere mention of his failure to testify constitutes harm, this

argument is without merit. The Supreme Court has explicitly rejected the

argument that “all federal constitutional errors, regardless of the facts and

circumstances, must always be deemed harmful,” in favor of harmless error

review. Chapman v. California, 386 U.S. 18, 22 (1967). 

Nevertheless, a review ofthe record evidences thatthe comments made by

the prosecutor could have had a substantial and injurious effect on Gongora’s

defense. First, there was evidence to support Gongora’s assertion that he was

notthe shooter including: (1)the state’s primary witness, Juan Vargas, who was

the driver of the van on the night in question, initially identified another person

as the shooter;2(2) state’s witness, Sonia Ramos, identified another person as the

shooter based on her recollection of the way the assailants were positioned; and

(3) in Gongora’s own statement admitted into evidence, he denied that he was

the shooter. In addition, during deliberations, the jury was concerned with

issues that indicate that the prosecutor’s comments regarding Gongora’s failure

to testify may have contributed to his conviction. Specifically, the jury requested

photos of the people in the van in jury note one; Juan Vargas’s original

statement from April 27th as well as his court testimony in jury note three; and

the names of the two people Juan Vargas identified as being outside the van in

his March 24th statement in jury note five. These notes demonstrate that the

prosecutor’s comments may have influenced the jury’s finding by raising

concerns about the testimony regarding who was in the van, and who got out of

the van, and Gongora’s failure to take the stand to clarify his involvement.

Although we acknowledge that the state put on evidence tending to support
No. 07-70031

9

Gongora’s conviction, we hold that granting COA is appropriate on this issue

because reasonable jurists might find the district court conclusion debatable or

wrong. 

The state urges that the trial court’s admonitions to the jury that they

disregard the prosecutor’s statements mitigate against granting COA. It argues

that because jurors are presumed to follow a judge’s instructions, Zafiro v.

United States, 506 U.S. 534, 540 (1993), the trial court’s instructions were

sufficient to remedy any harm caused by the prosecutor’s statements. However,

a curative instruction is not per se sufficient to cure the prejudicial effect of a

prosecutor’s misconduct. Compare U.S. v. Griffith, 118 F.3d 318, 325 (5th Cir.

1997) (finding error to be harmless where “it was an isolated comment, which

did not ‘strike at the jugular’ ofthe defense, and which the jury was immediately

instructed to disregard.”) with Johnston, 127 F.3d at 399 (holding that “[t]he

prejudice resulting from a direct reference by a prosecutor to the exercise of [the

constitutional right of a defendant to choose not to testify], coupled with an

attempt to use the failure to testify to limit the jurors’ personal deliberative

process cannot be completely cured by a court instruction.”). 

II. Tison Discussion

Regarding his second point of error, Gongora argues that the second

special issue given to the jury during the punishment stage is unconstitutional

in view of the United States Supreme Court’s decision in Tison. In particular,

he argues that merely finding that he anticipated death is not enough to warrant

the death penalty. Instead, he contends, it was necessary for the jury to find

that he was a substantial participant in the robbery and that he acted with

reckless indifference to human life or that he himself committed the murder.

The state argues that the district court correctly determined that the jury’s

finding that Gongora anticipated the death of Sierra is sufficient to meet the

culpability threshold of “reckless indifference to human life” under Tison.
No. 07-70031

3

In total, the court presented the jury with three issues during the punishment phase,

which determined whether Gongora would be sentenced to death or life in prison. The other

two issues are: (1) “whether there is a probability that the defendant would commit criminal

acts of violence that would constitute a continuing threat to society,” TEX. CODE CRIM. PROC.

art.37.071, § 2(b)(1); and (2) whether anything in the “the defendant's background or character

or the circumstances of the offense that militates for or mitigates against the imposition ofthe

death penalty,” TEX. CODE CRIM. PROC. art. 37.071, § 2(d)(1).

10

However, the state and the district court only partially address what Gongora

appears to be arguing in his briefs, as they do not address his argument that the

jury did not make a finding of major participation as required by Tison. 

The Tison decision was preceded by the Supreme Court’s decision in

Enmund v. Florida, 458 U.S. 782 (1982). Both cases involved the imposition of

the death penalty in felony murder cases where it had not been proven that the

defendant intended to kill. In Enmund, the Court held that the death penalty

could not be imposed upon a defendant who, though involved in a felony, did not

kill, attempt to kill, intend that a killing take place, or anticipate that lethal

force would be used. 458 U.S. at 798. In Tison, the court qualified its holding

in Edmund, stating that the Eighth Amendment did not prohibit execution of a

felony murder defendant, who did not kill or attempt to kill, if the jury finds

that: (1) the defendant was a major participant in the felony committed; and (2)

the defendant demonstrated reckless indifference for human life. 481 U.S. at

150.

Gongora alleges that the second special issue given to the jury during the

punishment stage is unconstitutional in light of the Tison decision. The second

special issue states that in cases where the jury is charged under Section 7.01or

7.02 ofthe Texas Penal Code during the guilt/innocence stage ofthe trial, during

the punishment stage the jury must determine “whether the defendant actually

caused the death of the deceased or did not actually cause the death of the

deceased but intended to kill the deceased or another or anticipated that a

human life would be taken.”3 TEX. CODE. CRIM. PROC. art. 37.071, § 2(b)(2).
No. 07-70031

11

Gongora argues that the phrase “or anticipated human life would be taken”

renders the second special issue unconstitutional because (1) the issue does not

require the jury to find that the defendant was a substantial participant in the

felony, and (2) it is unclear whether “anticipated human life would be taken”

amounts to reckless indifference as required by Tison.

In overruling Gongora’s challenge to the second special issue, the TCCA

relied on Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1996). In that case,

the court was faced with essentially the same issue: whether the second special

issue was facially unconstitutional in violation of Tison because it does not

require the jury to make a finding of culpability. The majority held that because

the jury was charged at the guilt/innocence stage that they could not find the

defendant guilty of capital murder unless he intentionally murdered the victim

or intentionally assisted in the commission of the murder and the aggravating

offense, “[f]or purposes of the Eighth Amendment . . . there was no need for

further factfinding at the punishment phase of trial.” 

Gongora, relying on the reasoning of the dissenting justices in his state

habeas proceedings, see Gongora v. State, 2006 WL 234987, *12, argues that his

case is distinguishable from Cantu because unlike in that case, here additional

fact-finding was required as the instructions given at the guilt/innocence stage

did not satisfy Enmund/Tison. We therefore look to the instructions given

during the guilt/innocence phase to determine whether they were sufficient to

satisfy the requirements set forth in Tison. 

Here, during the guilt/innocence stage of the trial, the jury was given the

following instructions:

Now, therefore, if you believe from the evidence beyond

a reasonable doubt, that the Defendant, Nelson

Gongora, . . . did . . . intentionally cause the death of an

individual, Delfino Sierra, by shooting Delfino Sierra

with a deadly weapon, to-wit: a firearm, and that said
No. 07-70031

4 Gongora also argues that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Ring v. Arizona, 536 U.S. 584 (2002), it was error for the TCCA to find that he murdered

Sierra, and that this determination may not be considered in this court’s resolution of hisTison

claim. Thus, also important to the resolution of this claim is whether Apprendi and Ring are

applicable, i.e., whether a jury, rather than a judge, must make the factual determinations

under Tison. This court has yet to consider this issue. In Foster v. Quarterman, 466 F.3d 359

(5th Cir. 2006), this court considered whether the requisite Tison findings had been made but

refused to make a definitive determination as to whether Apprendi and Ring were applicable,

noting that those cases were decided after the Supreme Court denied review from the

12

Defendant was . . . in the course of committing or

attempting to commit the offense of robbery of Delfino

Sierra, or if you find and believe from the evidence

beyond a reasonable doubt, that the Defendant, Nelson

Gongora, entered into a conspiracy with Albert Orosco

to commit the felony offense of robbery of Delfino Sierra

and that . . . in the attempt to carry out this conspiracy,

Albert Orosco did then and there intentionally cause

the death of an individual, Delfino Sierra, by shooting

Delfino Sierra with a deadly weapon, to-wit: a firearm,

and that such offense was a felony committed in

furtherance of the unlawful purpose to commit robbery

of Delfino Sierra and was an offense that should have

been anticipated by the Defendant as a result of

carrying out the conspiracy, then you will find the

Defendant guilty of capital murder, though he may

have no intent to commit capital murder, as charged in

the Indictment.

Based on these instructions, the jury then returned a verdict of guilty. 

Here, unlike in Cantu, we cannot conclude that these instructions are

necessarily sufficient to meet the Tison requirements, and the state does not

articulate in its briefs to this court how these instructions could be construed to

satisfy the requisite finding of major participation and reckless indifference to

human life. As such, Cantu is not persuasive on the facts of this case. Moreover,

we believe that a reasonable jurist could find the district court’s determination

that the second special issue as presented during the guilt/innocence phase of

Gongora’s trial satisfies the Tison requirement is debatable or wrong.

Accordingly, we grant Gongora COA on this issue.4
No. 07-70031

defendant's direct appeal, and therefore even if they were applicable, they did not apply

retroactively. Id. at 369-70. The Foster court went on to consider whether any state court had

made the required Tison findings, rather than limiting their review to determining whether

the jury had made them. Id. at 370; see also Clark v. Johnson, 227 F.3d 273, 281 (5th Cir.

2000), cert. denied, 531 U.S. 1167 (2001) (pre-Ring case holding that a reviewing court could

examine the entire state record to determine whether any state court had made the requisite

Tison findings). We express no opinion as to the applicability of Apprendi and Ring to the

resolution of this case.

13

Conclusion

For the foregoing reasons, we grant a COA with regard to Gongora’s

prosecutorial misconduct and Tison claims.

COA GRANTED.