UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-1742

STEPHEN RAY NETHERY,

Petitioner-Appellant,

versus

JAMES A. COLLINS, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

(June 11, 1993)

Before POLITZ, Chief Judge, KING and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Stephe n Ray Nethery was convicted of capital murder and

sentenc ed to death by the Texas state court. With all direct

appeals and collate ral state reviews exhausted he seeks federal

habeas relief. The district court denied his application and

refused to grant a certificate of probable caus e for appeal. We

granted CPC. For the reasons assigned, we affirm.Background

On the evening of February 22, 1981, Nethery met a woman in a

Dallas bar. They consumed several strong drinks and he persuaded

her to leave the bar with him to go to a secluded s pot to smoke

marihuana. They drove to an area near a lake in a high crime area

and parked. It was well after midnight. Nethery made sexual

advances which his companion initially resisted. A pistol fell out

of his pocket. He caused her to disrobe. He did likewise and they

engaged in sexual relations over an extended period. A police car

on patrol spotted them and pulled up alongside. Two officers

exited their vehicle; Officer Phillip Brown approached the Nethery

auto and shined his flashlight inside. Officer John McCarthy stood

by the police auto. As Officer Brown illuminated the interior of

Nethery's car the woman was attempting to put on her clothes;

Nethery was naked. Officer Brown told them that they could be

arrested and instructed them to leave the area.

At this point Brown turned to return to the police cruiser.

As he did, Nethery exited his car, rested his arm on the top of his

vehicle, said "I'm sorry," and fired th ree quick shots. He hit

Officer McCarthy. Officer Brown returned fire and Nethery ran

toward th e lake. Brown pursued and chased Nethery into the lake

where Nethery finally surrendered. Upon returning to the parked

vehicles, Brown found his patrol partner on the ground, calling for

help on his mobile radio. Officer McCarthy was rushed to the

hospital but subsequently died of the gunshot wound to the back of

his head.

Nethery was indicted and tried for capital murd er in Dallas1 See Tex. Code Crim. Proc. art. 37.071.

2 The jury was also instructed that it could consider evidence

of temporary insanity caused by intoxication.

3 Tex. Code Crim. Proc. art. 37.071.

4 Nethery v. State

, 692 S.W.2d 686 (Tex. Crim. App. 1985) (en

banc), cert. denied , 474 U.S. 1110 (1986).

5 Nethery

v. Texas , 474 U.S. 1110, 106 S.Ct. 897 (1986).

3 County. Pursuant to Texas procedure, 1 the jury first det ermined

his guilt and then considered three statutorily mandated special

issues. 2 In response to these questions, the jury found (1) that

Nethery's conduct was deliberate and undertaken with the reasonable

expectation of McCarthy's death; (2) that there was a probability

that Nethery would commit furth er criminal acts that would

constitute a threat to society; and (3) that Nethery's conduct was

unreasonable in response to any provocation by Office r McCarthy.

Based on these answers, Nethery was sentenced to death by lethal

injection. 3

Nethery's appeal to the Texas Court of C riminal Appeals was

direct and automatic. That court found no reversible error in any

of his 55 points of error. 4 The Supreme Court denied his petition

for certiorari, rendering his conviction final, in early 1986. 5

Nethery next turned to the writ of habeas corpus. The same

judge who had presided over his trial denied his first state

application and resentenced him to death. Nethery maintains that

at this point the judge disclosed his close personal relationship

with Officer McCarthy. Nethery appealed the denial to the Texas4

Court of Criminal Appeals, adding a claim of judicial bias. That

court again denied relief.

Nethery thereafter filed his first application for a federal

writ, which was dismissed for failure to exhaust a claim. He did

nothing until his execution was rescheduled, at which point he

returned to the state district court again seeking habeas relief.

This time a diffe rent judge was assigned to the case. The court

found no factual or legal basis for relief. The Texas Court of

Criminal Appeals affirmed.

Nethery then filed the instant application for federal habeas.

The district court assigned the matter to a magistrate judge who

held an evidentiary hearing. The magistrate judge found no

credible evidence supporting Nethery's claim of judicial bias and

recommended that the application be denied. The district court

adopted the recommendation and denied an application for CPC. We

granted CPC.

Analysis

I. JUDICIAL BIAS

Nethery claims that his trial was tainted by the presiding

judge's failure to disclose a close p ersonal friendship with the

deceased officer. He contends that the relationship did not become

apparent until the judge went into "an emotional tirade" during a

resentencing hearing on Nethery's applicati on for state habeas

relief. The record of that hearing indicates that the judge

sentenced Nethery to die on McCarthy's birthday and then

immediately called a short recess. After returning, the judge6 Bradshaw v. McCott er , 785 F.2d 1327, 1329 (5th Cir.),

modified , 796 F.2d 100 (5th Cir. 1986).

7 United States v. Reeves

, 782 F.2d 1323, 1325 (5th Cir. 1986).

5 directed the clerk to send a copy of the death warrant to Nethery

so he could "study it" before he died. Nethery claims the judge

also professed a close friendship to the victim, although the

rec ord is silent in this respect. The state contends that the

judge simply was appalled by the senseless killing.

The accused in any criminal trial is guaranteed the right to

an impartial trib unal. 6 To secure relief on this basis, Nethery

had to establish that the judge was influenced by interests apart

from the administration of justice and that this bias or prejudice

resulted in rulings based on other than facts developed at trial. 7

Nethery's conclusion of bias is premis ed on the judge's

alleged friendship with Officer McCarthy. The state habeas court

received conflicting affidavits fro m the trial judge and Nancy

Berry, Nether y's friend and spiritual advisor, regarding the

judge's statements at the resentencing hearing. Berry claimed to

have heard the judge profess a friendship with the victim; the

judge denied this and maintained that he was not personally

acquainted with the victim. The record of the resentencing hearing

is silent with respect to the judge's supposed reference to a

friendship with the victim, corrobora ting the judge's version of

events. The state habeas court found as a matter of fact that the

judge was not a personal friend of the victim. Because it did not

follow on the heels of a full and fair hearing, this finding is not8 28 U.S.C. § 2254(d)(2). The state habeas court did not

conduct an evidentiary hearing before discounting Berry's version

of events; rather, it adopted in whole the state's proposed

findings of fact two days after Nethery filed his petition.

Findings based solely on a paper record are not necessarily

entitled to a presumption of correctness. E llis v. Collins

, 956

F.2d 76 (5th Cir. 1992). "[I]t is necessary to examine in each

case whether a paper hearing is appropriate to the resolution of

the factual dispute underl ying the petitioner's claim." M ay v.

Collins

, 955 F.2d 299, 312 (5th Cir.), c ert. denied

, 112 S. Ct.

1925 (1992). Notably, and for obvious reasons, unlike the

petitioners in Ellis and May

, Nethery's petition was not considered

by the same judge who had presided over his trial; thus, there was

never a meaningful opportunity for the court to assess the

credibility of the conflicting affiants. Also significant is that

Nethery's version of events was not so facially insubstantial as to

render a hearing a mere gratuitous formality. To the contrary, the

record of the hearing and an independent news report both

documented that the judge became emotional during the hearing and

sentenced Nethery to die on what would have been Officer McCarthy's

birthday.

9 Anderson v. Bessemer City , 470 U.S. 564 (1985).

6 entitled to the statutory presumption of correctness. 8

Berry testified in the evidentiary hearing conducted a` quo

,

stating, as she had in her affidavit, that she heard the trial

judge profess a friendship with the decedent during the

resentencing hearing. The magistrate judge, citing her selective

recall of events, chose to discredit her test imony and concluded

that the "most petitioner has shown is that the trial judge was

offended and upset by the brutal and senseless nature of

petitioner's crime." The magistrate judge found the record of the

hearing and the state trial judge's affidavit more credible. Rule

52(a)'s command of de ference to findings of fact, particularly

when, as here, those findings are premised on credibility

assessments, compels our rejection of this assignment of error. 91 0 Hu rtado v. California , 110 U.S. 516 (1884); H amilton v.

McCotter , 772 F.2d 171 (5th Cir. 1985).

11 Branch v. Estelle , 631 F.2d 1229 (5th Cir. 1980).

1 2 Tex. Const. art. V, § 13; Tex. Code Crim. Proc. art. 19.40.

1 3 "Grand and petit juries in the District Co urts shall be

composed of twelve men; but nine members of a grand jury shall be

a quorum to transact business." Tex. Const. art. V, § 13.

It became apparent during arguments in the course of the

hearing below that Nethery sought to argue that Texas law not only

requires the impaneling of twelve grand jurors but that twelve

grand jurors must be present to deliber ate in every case. The

state court did not address this contention.

The district court, citing Drake v. State

, 7 S.W. 868 (Tex.

App. 1888) and noting the state's waiver of the exhaustion

requirement, determined that Texas law imposed no such requirement.

Based on our review of the plain language of the Texas Constitution

and its Code of Criminal Procedure, as well as Texas case law, we

agree. H odges v. State , 604 S.W.2d 152 (Tex. Crim. App. 1980)

(holding nine grand jurors consti tute a quorum for returning

indictments); see also In re Wilson

, 140 U.S. 575 (1891) (no

jurisdictional defect where sufficient number of grand jurors voted

to indict notwithstanding fact that an insuffici ent number were

impaneled); 38 A M

. J UR

. 2 D Grand Jury § 16 (1968) ("Unless the

statute is mandatory as to the number of grand jurors acting, the

excusing or absence of s ome of the panel will not affect an

indictment if enough remain to constitute the number necessary to

concur.").

7 II. GRAND JURY COMPOSITION

It is well established that the criminal defendant has no

constitutional right to a grand jury indictment before trial in

state criminal proceedings. 10 A deficient indictment will, however,

provide a basis for federal habeas relief if the defect is so

significant that the convicting court lacked jurisdiction under

state law. 11

Under Texas law, a grand jury is composed of twelve grand

jurors. 12 Once the grand jury is impaneled, nine grand jurors

constitute a quorum for doing business. 1 3 A review of pertinent1 4 E.g., Wilson v. State , 36 S.W.2d 733 (Tex. Crim. App. 1931)

(dicta).

8 statements in Texas decisions, mostly in dicta and mostly from the

late 1800s and early part of this century, suggests that a

conviction after indictment by a grand jury impaneled with more or

less than 12 members is void. 14 Assuming, p er arguendo

, that these

cases reflect the current state of Texas law, and that proof of the

impanelment of less than 12 grand jurors would constitute grounds

for reversal on collateral attack, Nethery has failed to establish

that controlling fact herein.

Nethery claims to have learned from a fellow inmate, who was

indicted by the same grand jury, that the grand jury was not

lawfully formed. During the course of the evidentiary hearing in

this case, Nethery introduced the transcript of a hearing in his

fellow inmate's case in which the foreman of the grand jury noted

in passing that only nine grand jurors deliberated throughout the

grand jury's tour of duty. The state objected to the introduction

of this transcript because the issue in the previous case was

whether the indictment had been forged; thus, there never had been

an opportunity to develop fully the testimony from the foreman with

respect to the number of grand jurors. The foreman did not testify

in the evidentiary hearing before the magistrate judge.

Assuming, per arguendo

, that the foreman's testimony in an

unrelated proceeding was properly admitted under a hearsay

exception, and that this testimony can fairly be read to establish

the presence of only nine grand jurors during deliberation of both9

cases, the same result obtains. Texas law clearly provides for

indictment by a quorum of nine grand jurors; the foreman's

testimony, even if accepted as reliable, would, in fa irness,

establish only that this number w as present when the Nethery

indictment wa s handed up. Hugh Lucas, an Assistant District

Attorney, testified that he supervised the operations of the grand

jury on the day Nethery was indicted, that twelve grand jurors were

impaneled, and that he personally witnessed at least nine of them

assemble to hear Nethery's case. This testimony never has been

contradicted and is c orroborated by court documents listing the

names of the 12 impaneled grand jurors. This assignment of error

is without merit.

III. PROSECUTORIAL MISCONDUCT

Nethery charges that certain statements made b y the

prosecution during closing arguments improperly p ointed to his

failure to testify. The Texas Court of Criminal Appeals found the

following statement by Nethery's lawyer to have invited reply:

The prosecutor, when they were questioning you, told you

it's not up to the state to prove motive. That's right.

Nothing in the court's charge says they have to prove it.

But I'll say this: If you have lack of motive, you're

certainly entitled to consider that. According to Brown,

he'd finished. He was--both of them [had] finished.

Turning to go back to their c ar. And you've got a man

who knows that he's facing two police officers with guns

and [he] gets out of the car and deliberately shoots and

kills a policeman. Where's the logic? What reason is

there?

In its closing the state responded:

Motive? Mr. Goodwin wants a motive. Mr. Goodwin wants

a reason. You told us, each and every one of you told us

on voir dire that we could not, in many cases, bring you

a motive or a reason and you agreed from that witness1 5 In Chapman v. California , 386 U.S. 18 (1967), the Court

considered whether the prosecution's reference to the defendants'

failure to testify at trial, in violation of the fifth amendment

privilege against self-incrimination, required reversal of their

convictions. The Court rejected a proposed blanket rule which

would have required reversal in all cases of constitutional error, preferring instead a rule requiring reversal whenever the error is

not harmless beyond a reasonable doubt.

Since Chapman

, the Court has drawn a distinction between

constitutional violati o ns "of the trial type" and "structural

defects in the constitution of the trial mechanism, which defy

10 stand that you would not fo rce the State to show you a

motive. And I'm sure it was explained to you that we

can't show you a motive or a reason because many times it

is known only to the defendant. It's in that head

(pointing to defendant). We can't cut that head open.

The trial court sustained a defense objection to the statement and

instructed the jury to disregard it but refused to declare a

mistrial. The state argues that (1) even if the statement could be

interpreted as a comment on Nethery's silence, it was invited; (2)

to the ext ent the reply exceeded the invitation, if at all, the

error was either cured by the instruction; or (3) was harmless.

While we hesitate to endorse the prosecution's remarks as an

appropriate and measured response to those of defense counsel, we

note that any unfair prejudice was, at most, slight.

Defense counsel had opined that the state's failure to prove

a motive for Nethery's conduct suggested a lack of criminal

responsibility. The state was entitled to make an appropriate

response. To the extent the prosecution may have responded

excessively, we must view the error in light of the court's

curative instruction and consider whether the residual impact had

any "substantial and injurious effect or influence in determining

the jury's verdict." 15analysis by harmless error standards." A rizona v. Fulminante

, 499

U.S. ---, 111 S. Ct. 1246 (1991). The Court recently has held that

"trial type error" will serve as a basis for habeas relief only if

it "had substantial and inj urious effect or influence in

determining the jury's verdict." B recht v. Abrahamson

, 113 S. Ct.

353 (1993). Chapman error, as alleged here, is trial error.

16 Donnelly v. De Christoforo , 416 U.S. 637 (1974).

17 469 U.S. 412 (1985).

11 To say at this point that the jury drew the adverse inference

Nethery feared would be speculative at b est. Nonetheless, even

assuming the statement caus ed each juror to consider Nethery's

failure to take the stand in his own defense and to draw an adverse

inference from it, we are not prepared to say that this assumed

error was harmful to the extent required under the controlling

standard. Nor are we prepared to say that this assumed error was

not corrected by the court's curative instruction. 16 Rather, we

hold that any error associated with the prosecu tion's reply was

cured at trial and, in light of the overwhelming evidence of guilt,

had no substantial and injurious effect or influence in the

determination of Nethery's guilt or proper sentence.

IV. JURY SELECTION

During the course of jury selection the court excused for

cause prospective jurors Wi lliam Keller and Debra Pippi and

declined defense invitations to excuse several other venire members

who indicated a preference for imposing death as a penalty for

murder. Nethery complains of both decisions.

In Wainwright v. Witt 17 the Supreme Court approved the removal

of a prospective juror for cause where his views would "prevent or1 8 Duff-Smith v. Collins

, 973 F.2d 1175 (5th Cir. 1992) (citing

Witt ), cert. denied , 113 S. Ct. 1958 (1993).

12 substantially impair" the performance of his duties in accordance

with his oath and the court's instructions. The Court recognized

that reliable assessment of the juror's ability to se t aside

personal convictions depends on the j uror's demeanor and

credibility. A juror's bias need not be proven with unmistakable

clarity. Accordingly, judgments made at trial about a juror's

ability to abid e by the oath and the court's instructions,

notwithstanding moral convictions, are accorded a pre sumption of

correctness under 28 U.S.C. § 2254(d). 18

Venire member Keller repeatedly insisted that th e death

penalty was p er se inappropriate and pointedly answered th at he

would vote "no" to the speci al issues regardless of the

instru ctions or the evidence, in order to avoid its imposition.

Only on cross-examination did he testify th at it was "possible"

that he could ans wer the special issues in the affirmative. On

redirect by the state, Keller reiterated that he would vote "no" to

prevent the imposition of the death penalty and held to that

position during the judge's final examination. Venire member Pippi

likewise expre ssed her disapproval of the death penalty and

testified that she would find it difficult to cast aside her

convictions in favor of the court's instructions. We conclude and

hold that the dismissal of Keller and Pippi did not violate the

standard announced in Witt

.

Nethery exercised peremptory challenges to remove the venire1 9 In Demouchette v. State

, 731 S.W.2d 75, 83 (Tex. Crim. App.

1986), the court stated:

When the trial court errs in overruling a challenge for

cause against a venireman, the defendant is harmed only

if he uses a peremptory strike to remove the venireman

and therefore suffers a detriment from the loss of a

strike. Error is preserved only if the defendant

exhausts his peremptory challenges, is denied a request

for an additional peremptory challenge, identifies a

member of the jury as objectionable and claim s that he

would have struck the juror with a peremptory challenge.

2 0 Ross v. Oklahoma

, 487 U.S. 81 (1988) (finding no due process

or sixth amendment violation where ca pital murder defendant

exhausted his peremptory challenges r emoving a juror who should

have been excused for cause in the absence of a showing that any

juror who ultimately was seated was subject to removal for cause).

2 1 Texas has since revised the submission to re quire an

instruction informing the jury expressly to consider any mitigating

evidence in answering the three special issues. Tex. Code Crim.

Proc. art. 37.071(d)(1) (Vernon Supp. 1993).

At the time of trial the issues were:

(1) whether the con duct of the defendant that caused

13 members he identifies as having been properly subject to strikes

for cause. Even counting the strikes he used on these jurors,

N ethery did not exhaust his peremptory challenges. 1 9 He was not

forced, therefore, to accept jurors he found objectionable, and the

court's refusal, erroneous or otherwise, to strike for cause those

prospective jurors he removed with peremptory challenges did not

cause harm of which Nethery may now complain. 20

V. MITIGATING EVIDENCE AND SPECIAL ISSUES

In three distinct points of error, Nethery asserts that the

jury could not give effect to mitigating evidence of his

intoxication in respo nding to the statutorily mandated special

issues. He first claims that the special issues as they existed at

the time of his trial 21 did not allow the jury to consider evidencethe death of the deceased was committed

deliberately and with the reasonable expectation

that the death of the deceased or another would

occur;

(2) whether there is a probability that the defendant

would commit criminal acts of violence that wo uld

constitute a continuing threat to society; and

(3) if raised by the evidence, whether the con duct of

the defendant in killing the deceased was

unreasonable in response to the provocation, if

any, by the deceased.

22 492 U.S. 302 (1989).

14 of his intoxication or to incorporate their response into the

answers called for and, as a result, the court's refusal to provide

a separate instruction resulted in a violation of his eighth and

fourteenth amendme nt rights. He next claims that the special

issues failed to apprise the jury about how it should consider

evidence which was probative of his future dangerousness and which

also mitigated his culpability. Lastly, he argues that the special

issues and instructions allowed the jury to consider only evidence

of future dangerousness. We address these arguments collectively.

In Penry v. Lynaugh, 22 the Suprem e Court held that the Texas

special issues were inadequate to allow meaningful consideration of

the mitigating effect of Penry's mental retardation. The Court

based its conclusion on the direct inverse relation between the

evidence's mitigating and aggravating potential and the fact that

the special issues provided a means of expression only to the

aggravating character of this evidence in relation to the second

special issue--future dangerousness. Thus, the jury's ability to

consider the mitigating effect in response to one of the three

questions was not present and an additional instruction was23 Id.

24 Graham v. Collins

, _____ U.S.

_____, _____, 113 S. Ct. 892,

902 (1993).

2 5 G raham v. Collins , 950 F.2d 1009, 1027 (5th Cir. 1992) ( e n

banc ), aff'd , 113 S. Ct. 892 (1993).

2 6 Cordova v. Collins

, 9 53 F.2d 167 (5th Cir.), c ert. denied

, 112 S. Ct. 959 (1992); J ames v. Collins

, 987 F.2d 1116 (5th C ir.

1992).

15 necessary.

Nethery argues that the mitigating effect of his intoxication

likewise had relevance beyond the scope of any question asked in

Texas' sentencing scheme and that the absence of further

instructi on prevented the jury from considering this evidence or

from expressing a favorable response. He also assails the Texas

scheme in its entirety because it allegedly fails to provide the

jury with reasonable means of considering mitigating evidence and

directs attention unfairly towards aggravating factors.

The Penry court expressly declined a sweeping invalidation of

the Texas scheme; such would have required announcing and applying

a "new rule." 23 The Court thus did not invalidate the Texas scheme

in toto or mandate "special instructions whenever [the accused] can

offer mitigating evidence that has some arguable relevance beyond

the special issues." 24 Rather, this court has construed the holding

in Penry to require additional jury instructions only where the

"major mitigating thrust of the evidence is beyond the scope of all

the special issues." 25 We have held that the Texas special issues

are sufficiently broad in themselves to allow the jury to give

meaningful consideration to the accused's voluntary intoxication. 26Unlike the dissent, we do not believe we have before us the

question whether the jury instr uction as given, pursuant to

section 8.04 of the Texas Code of Criminal Procedure, affirmatively

precluded the jury's consideration of Nethery's purported

intoxication. There was no prior submission to that effect in

either the state or federal courts. In fact, as the dissent notes,

the Texas courts found the objection Nethery actually presented to

be procedurally barred and also found that he was not so

intoxicated at the time of the offense as to warrant submission of

the temporary insanity instruction. Further, not only did Nethery

fail to preserve this point, he actually requested a definition of

insanity

-- basing his later challenges on the denial thereof

-- which would have created the precise prejudice the dissent fears.

The dissent argues that the Texa s courts have twice excused

procedural defaults where the defendant sought to ar gue a P enry

claim because " Penry 'constituted a substantial change in the

l aw.

. . .'" S elvage v. Collins

, 816 S.W.2d 390, 392

(Tex.Crim.App. 1991) ( citing Black v. State , 816 S.W.2d 350, 374

(Tex.Crim.App. 1991)). It is unclear how this reading will be

affected by the Supreme Court's subsequent and mor e restrictive

reading of Penry in Graham

. More importantly, as the dissent

points out, the defaulted claim would be the total preclusion of a jury's ability to consider mitigating evidence. That objection was

recognized, again, as the dissent points out, as early as 1976.

See Jurek v. Texas

, 428 U.S. 26 2 (1976). We conclude that the

claim has not been presented to us at all and, in any event, that

Texas courts would find it to be barred . Accordingly, we do not

address its merits.

27 Graham , _____ U.S. at _____, 113 S. Ct. at 903.

16 Unlike the permanent disability s uffered by Penry, Nethery's

intoxication was a transitory condition which could be given

mitigating effect in response to the first or second special

issues. Indeed, Nethery's trial counsel recognized as much and so

argued to the jury. Nethery's arguments are either foreclosed by

controlling precedent or propose a new rule which we may not apply

on collateral review. 27

VI. FAILURE TO DEFINE TERMS USED IN THE SPECIAL ISSUES

Nethery claims that the meaning of the terms "deliberately,"2 8 James

, 987 F.2d at 1120 (citing Milton v. Procunier

, 744 F.2d

1091 (5th Cir. 1984), cert. denied , 471 U.S. 1030 (1985)).

2 9 See United States v. Eckford , 910 F.2d 216, 220 (5th Cir.

1990) ("[P]rior panel opinions of this Court may not be disturbed

except on reconsideration en banc.").

17 "probability," and "society" cannot be asce rtained and thus

complains of their use in the special issues. We have determined

that these words have a common meaning and adequately permit the

jury to effectuate its collective judgment. 28 Thus, consideration

of this point is foreclosed. 29

VII. FAILURE TO INFORM THE JURY OF THE EFFECT OF NOT ANSWERING THE

SPECIAL ISSUES

The jury was informed, pursuant to Article 37.071 of the Texas

Code of Criminal Procedure, that it could return a negative answer

t o any special issue if ten or more of them so voted. An

affirmative response to any question required unanimity. The jury

was not told of the consequence of its failure to muster fewer than

ten "no" votes or 12 "yes" votes. Nethery contends that the

failure to so advise the jury caused the jury's responses to fall

short of the heightened need for reliability required of a verdict

in a capital case.

Nethery muses that the jury's ignoranc e could lead to a

situation in which individual jurors felt compelled to reach a

consensus and, thus, one lone juror, assuming that he would have to

rally another nine "no" votes, would vote "yes" even though he felt

the appropriate answer was "no." This lone juror theory presumes

that the juror would disregard the court's instructions to exercise

i ndependent judgment and vote according to the evidence a s30 486 U.S. 367 (1988).

31 489 U.S. 288 (1989); Cordova v. Collins , 953 F.2d 167

(5th Cir. 1992).

32 See, e.g., Zafiro v. United States , 113 S. Ct. 933 (1993).

33 See Teague v. Lane , 489 U.S. 288 (1989).

18 presented and the law as explained by the court. Nethery contends

that the jury's ignorance about the effect of its verdict could

lead to a situation in which jurors feel compelled to reach a

consensus because Texas juries are instructed, pursuant to

Article 37.071, that they "shall" reach a verdict. We have

previously held that this type of claim

-- wh ich is based on the

principle announced by the Court in Mills v. Maryland 30

-- proposes

a new rule under T eague v. Lane

. 31 Nethery's conviction became

final in 1986

-- two year s before M ills was decided. We thus do

not reach the merits of his claim. Granting relief on this claim,

in contravention of the ordinary presumption that jurors follow the

trial court's instructions, 3 2 would require our fashioning a new

rule of criminal procedure. 33 This we decline to do.

The judgment of the district court is AFFIRMED.

KING, Circuit Judge, dissenting:

I respectfully dissent from the panel majority's affirmance of

the district court's denial of the writ of habeas corpus in

Nethery's case. My disagreement with the majority is limited to34 Penry v. Lynaugh , 492 U.S. 302 (1989).

3 5 Even if Grahamdoes not require us to raise the issue s ua

sponte

, see Williams v. Collins

, 1993 U.S. App. LEXIS 10195, 989

F.2d 841,

___ n.9 (5th Cir. May 4, 1993), I observe that the State

in this c ase expressly invoked T eague with respect to Nethery's

Penry claim, which would appear to require the majority to address

the Teague issue. Cf. Collins v. Youngblood , 497 U.S. 37 (1990).

19 its disposition of Nethery's Eighth Amendment claim regarding his

mitigating evidence of volunt ary intoxication at the time of the

crime.

I.

I initially note that I believe that the Supreme Court's

decision in Graham v. Collins

, 113 S.Ct. 892 (1993), aff'g on other

grounds

, 950 F.2d 1009, 1027 (5th Cir. 1992) (en banc), would

appear to require that the majority should, as a threshold matter,

address whether N ethery's P enry claim 34 is barred under the

nonretroactivity doctrine first announced in T eague v. Lane

, 489

U.S. 288 (1989) (plurality opinion). S ee Graham

, 113 S. Ct. at 897

("Because this case is before us on Graham's petition for a writ of

federal habeas corpus, `we must determine, as a threshold matter,

whether granting [the habeas petitioner] the relief he seeks would

create a "new rule"' of constitutional law.") (citation omitted). 35

The majority, however, cites a prior panel decision of this circuit

-- that was rendered after the Supreme Court's decision in Graham

-- which reached the merits o f a Penry claim based on mitigating

evidence of intoxication without mentio ning T eague

. In effect,

that panel he ld that the T eague doctrine does not bar the court

from reaching the merits in such a case. S ee James v. Collins

, 9873 6 In rejecting the habeas petitioner's Penry -type claim based

on mitigating evidence of intoxication, James relied on authority

from this circuit that antedated the Supreme Court's decision in

Graham

. S ee James

, 987 F.2d at 1121 (c iting Cordova v. Collins

, 953 F.2d 167, 170 (5th Cir. 1992) ). I believe Cordova 's implicit

holding that Teague is not a threshold issue to a Penry -type

challenge is no longer good law i n view of the Supreme Court's

decision in Graham

.

20 F.2 d 1116, 1121 (5th Cir. 1993). 3 6 Although I believe that the

panel decision in James mistakenly ignored the Supr eme Court's

decision in Gr aham regarding the effect of Teague on Penry -type

claims, I agree with the majority that we appear to be bound by

James

. S ee Burlington N. R. Co. v. Brotherhood of Maintenance Way

Employees

, 961 F.2d 86, 89 (5th Cir. 1992) (prior panel decision

binds subsequent panel unless intervening en banc or Supreme Court

decision).

II.

Nevertheless, even if this court were to apply T eague to

Nethery's case on a clean slate, I believe that Nethery's Eighth

Amendment rights were violated under Supreme Court authority firmly

in existence well before his conviction became final in 1986. S ee

Nethery v. St ate , 692 S.W.2d 686 (Tex.Crim.App. 1985), c ert.

denied

, 474 U.S. 1110 (1986). As I will explain below, I believe

cases such as Jurek v. Texas

, 428 U.S. 262 (1976) (joint opinion of

Stewart, Powell & Stevens, JJ.), Lockett v. Ohio

, 438 U.S. 586

(1978) (plurality) , and Eddings v. Oklahoma , 455 U.S. 104 (1982),

dictate the result in this case.

A. The instructions given to Nethery's sentencing jury37 At the time of his trial, Article 37.071 of the Texas Code

of Criminal Procedure provid ed that the following three special

issues must be submitted to the jury at sentencing:

(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 reasonable probabi lity that the

defendant would commit c riminal acts of violence that

would constitute a continuing threat to society;

(3) If raised by the evidence, whether the conduct of the

defendant in killing was unreasonable in response to the

provocation, if any, by the deceased.

T EX

. C ODE C RIM

. P RO

. Art. 37.071(b) (Vernon's 1981). Nethery's jury

was given three special issues based in substance on these three

statutory special issues.

21 In contending that his Eighth Amendment rights were violated,

Nethery argues that the evidence of his intoxication at the time of

the crime could not be given adequate mitigating effect under the

three Texas "special issues" submitte d to his capital sentencing

j ury. 37 The majority holds that a jury could adequately give

mitigating effect to evidence of in toxication if the jury was

submitted these t hree special issues. I do not quarrel with the

abstract holding that, in answering the "deliberateness" query, a

rational jury could adequately give mitigating effect to evidence

of intoxication at the time of the crime.

My dissent is not based on the operation of the statutory

special issues in isolation in Nethery's case; instead, it is based

on another instruction that the trial cou rt submitted along with

the special issues that, in effect, took all three of the special

issues out of operation with respect to Nethery's mit igating3 8 See T EX

. P E N

. C ODE § 8.04. That provision provides in

pertinent part:

§ 8.04. Intoxication.

(a) Voluntary intoxication does not constitute a defense

to the commission of a crime.

(b) Evidence of temporary insanity caused by intoxication

may be introduced by the actor in mitigation of the

penalty attached to the offense for whi ch he is being

tried. . . .

Because of § 8.04, Texas criminal juries may not consider

evidence of a defendant's voluntary intoxication f or any reason during the guilt/innocence phase; a j ury may only consider such

evidenc e during the sentencing phase, and then only if the

defendant's intoxication rose to the level of temporary insanity.

See Tucker v. State , 771 S.W.2d 523, 534 (Tex.Crim.App. 1988).

39 The Supreme Court has held that, in analyzing capital

sentencing issues in the context of jury instructions, courts must

ask how a reasonable juror could have interpreted the submitted

instructions. S ee California v. Brown

, 479 U.S. 538, 541 (1987)

("`The question is . . . what a reasonable juror could have

understood the charge as meaning.'") (citation omitted).

22 evidence of intoxication. Pursuant to a Texas statute 3 8 applicable

to all criminal cases

-- capital and non-capital

-- the trial judge

instructed Nethery's jury that:

Evidence of temporary insanity caused by intoxication may

be introduced by the actor in mitigation of penalty

attached to the offense for which he is being tried.

"Intoxication" means disturbance of mental and physical

capacity resulting from the introduction of any substance

into the body.

Nethery v. State

, 692 S.W.2d 686, 711 (Tex.Crim.App. 1985) (quoting

from Nethery's jury instruction) (emphasis added).

A reasonable juror 3 9 could read that instruction as providing

that Nethery's evidence of intoxication could not be considered at

all

-- including under the special issues

-- unless Nethery was so

intoxicated that he was rendered temporarily insane. Indeed, this4 0 Nethery's evidence of alcohol and drug use was substantial

enough to permit a reasonable juror to find that he was

intoxicated. Wh ile the Texas Court of Criminal Appeals on direct

appeal specifically found that Nethery's evidence of intoxication

did not rise to the level of insanity, see Nethery v. State , 692

S.W.2d 686, 7 11-12 (Tex.Crim.App. 1985), t he court did not find

that Nethery was not intoxicated. I d. at 712. A witness testified

at trial that Nethery drank a substantial amount of hard liquor and

smoked marijuana around the time of the crime. Nethery himself

stated that "he remembered drinking beer, whisky, and vodka, and he

remembered smoking some marijuana." I d. at 711. Nethery's bizarre

conduct

-- stepping outside of his car totally nude and shooting

the police officer for no reason, see id. at 697 -- also supports

a finding of intoxication. Nethery met the evidentiary threshold

for Eighth Amendment purposes. See Sawyers v. Collins , 1993 U.S.

App. LEXIS 5596, 986 F.2d 1493 (5th Cir. March 23, 1993) ( merits

o f Penry -type claim not reached because defendant's evidenc e of

intoxication insubstantial). The question of Nethery's

intoxication was one within the province of the jury.

23 is precisely how the Texas Court of Criminal Appeals interprets §

8.04. S ee Tucker v. State

, 771 S.W.2d 523, 534 (Tex.Crim.App.

1988) ("[T]he [§ 8.04] instruction required the jury to find that

[the defendant's] intoxication at the time of the killings rendered

her temporarily insane before they could consider her drug use in

mitigation of punishment. T he charge on its face instructed the

jury to consider the mitigating e vidence only in this light,

thereby implying that it may not be considered for any other

purpose .") (emphasis added); see also Volanty v. Lynaugh

, 874 F.2d

243, 244 (5th Cir. 1989)

. Of course, while intoxication that is so

severe that it rises to the level of temporary insanity is

quintessential mitigating evidence, so is intoxication that is not

so severe as to be tantamount to a state of insanity. 4 0 S ee Bell

v. Ohio

, 438 U.S. 637, 640 (1978) (companio n case to L ockett v.

Ohio

, 438 U.S. 586 (1978)); see also Elliot v. State

, 1993

Tex.Crim.App. LEXIS 84 at *39-40 (Tex.Crim.App., April 14, 1993)4 1 In Tucker v. State

, supra

, the Court of Criminal Appeals

observed

-- without deciding the constitutionality of a § 8.04

instruction sub mitted in conjunction with the special issues --

that such a jury charge entirely precluded jury consideration of a

non-insane state of intoxication as mitigating evidence. S ee

T ucker , 771 S.W.2d at 534. In a Texas case following T ucker

, in

which a P enry -type challenge was made to capital sentencing

instructions that included both the § 8.04 charge and the three

statutory special issues, the Court of Criminal Appeals summarily

rejected the defendant's claim without any discussion or citation

of Tucker

. S ee Ex Parte Rogers

, 819 S.W.2d 533, 534 (Tex.Crim.App.

1991). However, three dissenting judges argued that "this

instruction does not even purport to empower the jury to give

mitigating effect to evidence of voluntary intoxication that does

not rise to the level of temporary insanity. A juror who believed

a capital [defendant] was not so intoxicated as to be incapable of

appreciating th e wrongfulness of his action [i.e., being

temporarily insane] might neverth eless find him less morally

culpable than would have been a sober man committing the same

crime." I d. at 537 (Clinton, J., dissenting, joined by Baird &

Maloney, JJ.).

24 (Cl inton, J., dissenting); E x Parte Rogers

, 819 S.W.2d 533, 537

(Tex.Crim.App. 1991) (Clinton , J., dissenting, joined by Baird &

Maloney, JJ.). 41

Even as early as J urek

, in 1976, total preclusion of a capital

sentencing jury's ability to consider any spe cies of

constitutionally relevant mitigating evidence was held to be an

Eighth Amendment violation. S ee Jurek v. Texas

, 428 U.S. at 272

("[T]he constitutionality of the Texas procedures turns on whether

the [special issues] allow consideration of particularized

mitigating factors.") ; see also Lockett v. Ohio , 438 U.S. at 604;

Eddings v. Oklahoma

, 455 U.S. at 110. Because Nethery's jury was

entirely precluded from considering the evidence of his non-insane

state of intoxication, I believe that the § 8.04 instruction given

by the trial judge in Nethery's case was a straight-forward

violation of this well-established Eighth Amendment principle.25

B. Is this claim properly before this court?

Nethery has not specifically argued that the § 8.04

instruction was the source of the Eighth Amendment violation that

he claims occurred at his trial. Rather, he has simply argued that

mitigating evidence of his intoxication at the time of the crime

could not be given proper mitigating effect under the statutory

special issues submitted to his jury . The majority believes that

the issue of the constitutionality of the operation o f § 8.04 in

Nethery's case is not properly before this court. I respectfully

disagree.

I believe that we must necessarily address this specific

question as a collateral issue to the larger Eighth Amendment claim

rai sed. See Ex Parte Rogers

, 819 S.W.2d at 537 (Clinton, J.,

dissenting, joined by Baird & Maloney, JJ.). As the Supreme Court

held in Graham

, cases such as Lockett and Eddings require that a

capital defendant's sentence be upheld so long as all relevant

mitigating evidence was placed within "the effective reach of the

sentencer." G raham

, 113 S. Ct. at 902. In order for the majority

to hold that Nethery's evidence o f intoxication was properly

considered as mitigating evidence under the instructions given to

his capital sentencing jury, it thus must agree that Nethery's

evidence of intoxication was not beyond the effective reach of his

jury under the special issues. In view of the § 8.04 instruction

given by Nethery's trial judge in addition to the statutory special4 2 Although this precise claim was not made by Nethery during

habeas review in state court, Nethery did argue that the trial

court's i nstructions were unconstitutional because "the jury was

not instructed to consider the mitigating evidence [of Nethery's

intoxication] in answering the special issues." State Habeas Op.

at p. 6. The state habeas courts held that such a claim was

procedurally defa ulted because no such instruction was sought by

Nethery at trial. Since the time of Nethery's denial of state

habeas relief, however, a unanimous Texas Court of Criminal Appeals

has explicitly waived procedural defaults in Eighth Ame n dment

challenges to the Texas capital sentencing procedures in effect at

the time of Nethery's trial. S ee Black v. State

, 816 S.W.2d 350

(Tex.Crim.App. 1991); S elvage v. Collins

, 816 S.W.2d 390

(Tex.Crim.App. 1991).

26 issues, I cannot agree with that conclusion. 42

Furthermore, I believe that we may not avoid addressing the

effect of the § 8.04 instruction because, in considering a

challenge to jury instructions, a court must review the entire

charge in order to determine the effect of the alleged defect. S ee

California v. Brown

, 479 U.S. at 543 (in a capital case, the Court

stated that "reading the charge as a whole, as we must

. . ."); see

also United States v. Shaw

, 894 F.2d 689, 693 (5th Cir. 1990);

United States v. Washington

, 819 F.2d 221, 226 (9th Cir. 1987)

(asking "whether as a whole [the jury instructions] were misleading

or inadequate"). Reviewing the entire sentencing charge in

Nethery's case in order to determine whether Nethery's evidence of

intoxication was in "the effective reach" of his jury, Graham

, 113

S. Ct. at 902, I do not believe that we sim ply may ignore the §

8.04 component of the capital sentencing charge, notwithstanding

Nethery's failure pre cisely to raise that particular issue. For

these reasons, I respectfully dissent.27