IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-2341

RAYMOND CARL KINNAMON,

Petitioner-Appellant,

versus

WAYNE SCOTT, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

( September 15, 1994)

Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

This is a death penalty case from Texas. Raymond Carl

Kinn amon appeals dismissal of his petition for writ of habeas

corpus and denial of a certificate of probable cause by the United

States District Court for the Southern District of Texas. This is

Kinnamon's first federal petition and he attacks his conviction for

capital murder and sentence of death on six grounds. We refuse to

issue a certificate of probable cause and dismiss the appeal.

I

On July 25, 1985 a jury in Harris County, Texas, convicted

Kinnamon of the murder of Ronald Charles Longmire in the course of

an armed robbery of a bar and its patrons. The jury answered2

affirm atively the three questions asked in the sentencing

proceeding and on July 30, 1985 the trial court sentenced Kinnamon

to death. The Texas Court of Criminal Appeals affirmed the

conviction on April 18, 1990. K innamon v. State

, 7 91 S.W.2d 84

(Tex. Crim. App. 1990). Instead of filing a petition for

certiorari, Kinnamon filed an application for writ of habeas corpus

in the state trial court. Without a hearing, the state trial court

entered findings of fact and conclusions of law and the Texas Court

of Criminal Appeals thereafter denied relief.

The Texas Court of Criminal Appeals set out the facts of the

offense:

On Monday evening, December 11, 1984, [Kinnamon] was

one of several patrons seated at the bar in N.J.'s Lounge

in Houston. He had entered the bar several hours

earlier, and, according to witnesses, sat alone,

occasionally playing a video game mounted atop the bar.

At one point he had a brief conversation with the

bartender, Jeannie Marriott. After "last call" had been

announced [Kinnamon] acted as if he was leaving with the

other customers. Before exiting, he told Marriott that

he had to use the restroom, turned and walked back across the lounge. When [Kinnamon] came out of the restroom a

short time later, waitress Sharon Bryson, and a patron,

Kenny Simmons, were seated at the bar and Marriott was

cleaning up behind the counter. At that point,

[Kinnamon], possessing a firearm, ordered the employees

and remaining patrons, including Ronald Longmire, the

decedent, to put their hands on the bar and refrain from

looking at him. He ordered Marriott to take the money

out of the cash register and place it in a bag. Since no

bag was available, she used Bryso n's purse. After

[Kinnamon] took the money, he ordered everyone to proceed

single file to the men's restroom. Ronald Longmire, the

decedent, was a pparently at the end of the line, with

[Kinnamon] following. As the people were proceeding to

the rest room, [Kinnamon] asked them for their jewelry.

A s they were trying to remove their rings and watches,

[Kinnamon] asked Longmire "what is that in your pocket?"

to which the decedent responded "nothing, just my

driver's license." A shot was fired, then a second

almost immediately thereafter. The record indicates that3

the second shot entered the decedent's back from the left

side at an angle. Longmire apparently fell to his knees.

At this point, S h aron Bryson, the waitress, escaped

through a rear exit, and in so doing activated a burglar

alarm. The bartender, Jeannie Marriott, was pulled into

the walk-in cooler by Kenny Simmons. About that time, a

third shot was fired. Simmons later testified that while

he and Marriott were in the cooler, someone attempted to

enter from the outside by pulling on the door handle to

the cooler. Meanwhile, Bryson fled to a nearby

convenience store and telephoned the police.

Approximately ten minutes after the shooting,

Marri ott and Simmons came out of the cooler and saw

Longmire wandering aimlessly through the bar, muttering

incoherently and bleeding profusely from the gunshot

wound. When the police arrived, Marriott directed them

to Longmire, who by that time was dazed and seated on the

floor in a corner. Longmire was rushed to the hospital

and died a short time later.

[Kinnamon] was id entified in a photo array by the

eyewitnesses to the offense. Some two weeks later, he

was apprehended at his Houston residence and placed under

arrest.

Kinnamon v. State , 791 S.W.2d at 86-87.

II

Kinnamon contends that h is counsel was ineffective in not

requesting jury instructions on the lesser included offenses of

murder and involuntary manslaughter. The Texas Court of Criminal

Appeals held that "the evidence did not authorize the submission of

a murder instruction on a lesser included offense

. . ." 791

S.W.2d at 96-97. This court examined similar contentions in

Cordova v. Lynaugh

, 838 F.2d 764 (5th Cir. 1988). This court

acknowledged that murder was a lesser included offense of capital

murder, explaining: "The specific issue is whether a rational jury

could have found that Cordova murdered Hernandez but that it was

not in the course of the robbery." Id. at 769. No rational jury4

could have simultaneously voted to convict Kinnamon of murder and

acquit him of robbery. Indeed, that is not his argument, as we

understand it. Rather, he argues that a rational jury could have

concluded that he lacked the intent to kill and was only guilty of

felony murder. The state replies that the evidence would not

permit a rational jury to acquit of capital murder and convict of

felony murder; thus, the trial court would have denied a request

for any such instruction. As the state put it, "Given [that the

fatal shot was a second shot] and the close proximity of Kinnamon's

gun to the victim, the jury could only have found that Kinnamon had

the conscious objective or desire to

. . . cause the death of

Longmire," citing Tex. Penal Code 6.03(a) (Vernon 1974) (internal

quotation marks omitted).

The state habeas court pointed to the "overwhelming evidence

showing that [Kinnamon] specifically i ntended to kill the

deceased." It concluded that Kinnamon could not in any event meet

the second prong of Strickland v. Washington

, 466 U.S. 668, 687

(1984). We also are not persuaded that had counsel requested an

instruction on the lesser offense of fe lony murder, the outcome

would have be en different. Kinnamon's lawyer, Guerinot, at the

opening of his summation told the jury: "There is probably but one

issue in this case, and there is only one, and you folks are going

to decide it, and that is the issue of identity." Guerinot's cocounsel also told t he jury: "Now, identity, as I said, is the

issue." In rebuttal, the prosecution pointed out to the jury that5

the defense r ested on identity, not an absence of an intent to

kill.

III

Kinna mon contends that the jury charge allowed the jury to

convict of capital murder without finding a specific intent to

kill. The jury, he argues, could have concluded that he intended

to shoot but not to kill. His trial objection to the charge made

the point, but the Texas Court of Criminal Appeals rejected the

contention on direct appeal. That court agreed that capital murder

is a "result of conduct" offense and "not only must an accused be

found to have intended to engage in the act that caused the death,

he also must have specifically intended that death result from that

conduct. The mere intent to pull the trigger of a firearm will not

satisfy the statute". 791 S.W.2d at 88-89 (citation omitted). The

Court found, however, that read in the context of the full charge,

the language "was irrelevant with respect to [Kinnamon's] culpable

mental state." 791 S.W.2d at 89. In another case, the Texas Court

later overruled this holding, concluding that "it is error for a

trial judge to not limit the definitions of the culpable mental

states as they relate to the conduct elements involved in the

particular offense." C ook v. State

___ S.W.2d

___ (1994) (slip op.

at 12).

Kinnamon argues that he should have the benefit of this change

in Texas law and th at this court ought to certify to the Texas

Court of Criminal Appeals the "question" of whether he was harmed

by the error. He further argues that not according him the benefit6

of the change deprives him of due process and is cruel and unusual

punishment. We are unpersuaded.

As a federal habeas court, our question is "'whet her the

ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process,' not merely whether 'the

instruction is undesirable, erroneous, or even "universally

condemned."'" H enderson v. Kibbe

, 431 U.S. 145, 154-55 (1977)

(citation omitted). Looking at the charge as a whole and in the

context of trial, including the arguments of counsel, there is no

reasonable likelihood that the jury applied the construction in a

constitutionally impermissible way. The trial court instructed the

jury (emphasis added):

Before you are warranted in convicting the

defendant, Raymond Carl Kinnamon, of capital murder, you

must find from the evidence beyond a reasonable doubt not

o nly that on the occasion in question the defendant,

Raymond Carl Kinnamon, was engaged in the commission or

attempted commission of the felony offense of robbery, if

any, of Ronald Charles Longmire, as defined in this

charge, but also that during the commission of the

robbery or attempted commission thereof, if any, the

defendant, Raymond Carl Kinnamon, shot Ronald Charles

Longmire with a gun with the intention of thereby causing

his death

. Unless you find from the evidence beyond a

reasonable doubt that the defendant, Raymond Carl

Kinnamon, on said occasion, (acco rding to Tex. Crim.

App., 791 S.W.2d at 88) specifically intended to cause

the death of Ronald Charles Lo ngmire when he shot him

with a gun

, if he did shoot h im with a gun, you cannot

convict him of the offense of capital murder.

Now, if you find from the evide nce beyond a

reasonable doubt that on or about the 11th day of

December, 1984, in Harris County, Texas, the defendant,

Raymond Carl Ki nnamon, did then and there unlawfully

while in the course of committing or attempting to commit

the robbery of Ronald Charles Longmire intentionally

cause the death of Ronald Charles Longmire by s hooting

Ronald Charles Longmire with a gun

, then yo u will find

the defendant guilty of capital murder.7

The prosecutor did not attempt to exploit any uncertainty in

the charge. Significantly, as we explained, Kinnamon's contention

at the guilt phase was that the state had arrested the wrong man--

the issue was identity. There was no error of constitutional

magnitude.

IV

Kinnamon contended on d irect appeal that the prosecutor

misstated the difference between "intentional" and "deliberate" in

its use of use of hypotheticals in voir dire. The Texas Court of

Criminal Appeals held that Kinnamon had not preserved the error for

appeal because he had not used all his preemptory challenges and

had not requested an additional one. Kinnamon unsuccessfully

argued to the district court that the procedural bar was not

applicable. He adds here the alternative that counsel was

ineffective in not preserving the error.

We are asked to review the state law question presented by the

decision to apply the bar to these facts--that the Texas courts

er red in holding that misleading statements were subject to the

requirement that preemptory challenges be exhausted. There are

substantial reasons why we should not do so, but we need not rest

here.

The effort to show legal cause to escape the procedural bar--

counsel's ineffectiveness--was not made in the federal trial court

and so we will not listen. Even if we were to do so, it is

apparent that the tactical choices behind a decision to exhaust

challenges are barren ground indeed for second-guessing couns el.8

Finally, the second prong of Strickland

, again, is insurmountable,

given the focus at trial upon identity. Relatedly, we find nothing

in the trial court's rulings at voir dire or elsewhere that impeded

Kinnamon's ability to defend on the basis of an absence of intent

to kill.

V

Kinnamon argues that allowing the jury to consider in the

sentencing phase evidence of other robberies committe d after the

charged offense denied him due process and equal protection. This

contention is contrary to settled law of this circuit, and this

panel lacks the authority to change it. Milton v. Procunier , 744

F.2d. 1091, 1097 (5th Cir. 1984), cert. denied

, 471 U.S. 1030

(1985).

VI

Kinnamon argues that under the Texas sentencing procedures,

the jury was unable to give effect to his mitigating evidence. He

argues that the jury could have concluded that the victim resisted

the robbery and with the escalating events his shooting of Longmire

was born of panic, not malice. Such evidence, the argument

continues, was relevant to the jury's assessment of moral

culpability but the jury was offered no means to reflect its

consideration in its verdict. We reject the contention. The jury

could have given effect to such a view of the crime in its answer

to the first question of whether the killing was deliberate, or in

the second question of future dangerousness. Whether or not we add

its answer to the question of whether Kinnamon acted in response to9

any provocation by the victim, this "mitigating" evidence was

within "the effective reach of the sentencer". G raham v. Collins

,

113 S. Ct. 892, 902 (1993).

VII

We reject Kinnamon's last point, attacking the admissibility

of the in-court identifications of Kinnamon. He concedes that the

district court applied the correct legal standard but urges that it

gave insufficient weight to the accuracy of the witne sses' prior

identifications of the accused, factor three of the five-factor

test announced in Neil v. Biggers

, 409 U.S. 188, 199 (1972).

Regardless of the weighing by the district court, each of the

witnesses testified that the in-court identification rested on

observations at the crime scene and not on pre-trial displays. We

find no error.

The application for a certificate of probable cause is denied

and this appeal is dismissed.