1 The details of James's crimes are set forth in J ames v. State

,

772 S.W.2d 84 (Tex. Crim. App. 1989). UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 92-7676

Summary Calendar

_____________________________________

Johnny James,

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 Southern District of Texas

______________________________________________________ March 25, 1993

Before JOLLY, DUHÉ, and WIENER, Circuit Judges.

DUHÉ, Circuit Judge:

Petitioner was convicted of capital murder and sen tenced to

death. Having exhausted both his direct appeals and state habeas

remedies, he now seeks federal relief. The district court denied

Petitioner's application for the writ of habeas corpus. We affirm.

Background

After a jury trial, Petitioner was con victed of capital

murder. 1 During the later sentencing phase, the jury answered

affirmatively two special issues regarding (1) the deliberateness

of James's a ctions, and (2) the probability of his future2 The Texas Legislature amended the capital sentencing scheme in

1991. The amended statutes do not apply to crimes committed before

the effective date of the amendments. S ee Tex. Code Crim. Pr oc.

Ann. art. 37.071 (West. Supp. 1992).

2 dangerousness to society. S ee Tex. Code Crim. Proc. Ann. art.

37.071(b) (West 1981). 2 James was sentenced to death. His

conviction and sentence were affirmed by the Texas Court of

Criminal Appeals. James v. State , 772 S.W.2d 84 (Tex. Crim. App.

1989).

The United States Supreme Court granted James's petition for

certiorari, vacated the judgment, and remanded the ca se for

reconsideration in light of Penry v. Lynaugh

, 492 U.S. 302 (1989).

See James v. Texas

, 493 U.S. 885 (1989). The Texas Court of

Criminal Appeals again affirmed Petitioner's conviction and

sentence. James v. State , 805 S.W.2d 415 (Tex. Crim. App. 1990),

cert. denied , 111 S.Ct. 2915 (1991).

Jame s then commenced his habeas attacks upon his conviction

and sentence. The state trial court entered findings of fact and

conclusions of law, and the Texas Court of Criminal Appeals denied

relief on the basis of these findings and conclusions. The federal

d istrict court likewise denied Petitioner's application. This

appeal followed.

Discussion

Petitioner raises four issues: First, he challenges the Texas

special issues statute on the ground that it does not adequately

perform the constitutionally required narrowing function,

circumscribing the class of persons eligible for the death penalty.3

See Jurek v. Texas

, 428 U.S. 262, 269-70 (1976); Furman v. Georgia

,

408 U.S. 238, 253 (1972). Second, it is urged that the Texas

s entencing scheme precludes the sentencing jury from giving full

effect to mitigating evidence presented, in violation of Penry v.

Lynaugh , 492 U.S. 302 (1989). Third, James questions the

presumption of correctness which federal courts must give to state

court findings of fact pursuant to 28 U.S.C § 2254(d); he contends

the presumption is inapplicable here because of alleg ed improper

participation by the state prosecutor in drafting the findings of

fact. Finally, Petitioner argues that he was unconstitutionally

deprived of his right to the assistance of a mental health expert

during the sentencing proceeding s, in contravention of the rule

announced in Ake v. Oklahoma

, 470 U.S. 68 (1985). We address each

of these issues in turn.

I.

In Furman v. Georgia , 408 U.S. 238 (1972), the Supreme Court

invalidated all then-existing capital punishment statutes. Justice

Douglas, in his concurring opinion, focused upon the "uncontrolled

d iscretion of judges or juries" in meting out the ultim ate

sanction: "People live or die, dependent on the whim of one man or

of 12." I d. at 253. The legislatures of the several states heeded

Furman 's mandate and sought to formulate guidelines and standards

to alleviate such unfettered discretion.

The Texas Legislature's response was twofold. Initially, the

narrowing function required by Furman was to be performed at the

g uilt-innocence phase of the capital proceeding. S ee Tex. Pe nal3 A third special issue, regarding killing in response to

provocation, is not at issue in the instant case.

4 Again, this scheme is no longer used in Texas. S ee supra note

2.

4 Code § 19.03 (1974) (restricting application of death pen alty to

intentional and knowing murders committed in five discrete

situations).

In Tex. Code Crim. Proc. Ann. art. 37.071 (West 1981), the

Texas Legislature bifurcated Texas capital proceedings, and

provided a further narrowing mechanism. After a jury determines

that a defendant is guilty of a capital offense, the same jury is

presented with "special issues" which act as guides in sentencing:

(b) On conclusion of the pres entation of the evidence,

the court shall submit the following issues to the jury:

(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 probabil ity that the defendant

would commit criminal ac ts of violence that would

constitute a continuing threat to society[.] 3

Tex. Code Crim. Proc. Ann. art. 37.071 (West 1981). 4 The state is

required to prove each issue submitted beyond a reasonable doubt,

and the jury may not answer "yes" to any issue unless it agrees

unanimously. I d. at 37.071(c) & (d)(1). If the jury answers "yes"

t o each issue submitted, a sentence of death is imposed. I d. at

37.071(e).

The Supreme Court upheld the Texas capital sentencing scheme

in Jurek v. Texas

, 428 U.S. 262 (1976). The Jurek Court

acknowledged that, "While Texas has not adopted a list of statutory5

aggravating circumstances the existence of which can just ify the

imposition of the death penalty

... its action in narrowing the

categories of murders for which a death sentence may ever be

imposed serves much the same purpose." Id. at 270.

The jurisprudence on this issue is clear. The fact that the

Texas capital sentencing scheme performs the constitutionally

required narrowing function at the g uilt-innocence phase of the

trial, with a further narrowing during the punishment phase, does

not render the scheme constitutionally defectiv e. Petitioner's

arguments to the contrary are unavailing. See Graham v. Collins

,

113 S.Ct. 892, 898-99 (1993) (aff irming prior Fifth Circuit's e n

banc decision, 950 F.2d 1009 (1992)); Jurek

, 428 U.S. at 270;

Milton v. Procunier

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

denied

, 471 U.S. 1030 (1985); see also Lowenfield v. Phelps

, 484

U.S. 231, 244-45 (1988) ("We see no reason why this narrowing

function may not be performed by jury findings at either the

sentencing phase of the trial or the guilt phase. Our opinion in

Jurek v. Texas ... establishes this point." (citation omitted)).

Petitioner also argues th a t the Texas capital sentencing

scheme was impermissibly applied in his case because the court

refused to give the sentencing jury definitions for the terms

"deliberately," "probability," "criminal acts of violence," and

"continuing threat to society." James, citing Stringer v. Black

,

112 S.Ct. 1130 (1992), characterize s these terms and phrases as

impermissibly vague aggra vating factors which fail to adequately

channel the jury's sentencing discretion.5 The relevance of this distinction is not unimportant. The Court

in Stringer observed this difference is "not one of semantics,

... but of critical importance." S tringer v. Black

, 112 S.Ct. at 1137.

We need not explore the implications of these differences here. It

is sufficient for the instant decision that the terms used in the

T exas special issues are capable of being understood and appl ied

without the aid of additional instructions.

6 Texas, unlike Mississippi's sentencing procedure analyzed in

Stringer

, is not a "weighing" jurisdiction; i.e.

, the sentencer is

not called upon to weigh mitigating evidence against a list of

aggravating circumstances which the state must plea d and prove.

See id. at 1136. When a jury is permitted to consider a vague

aggravating factor, the weighing process runs the impermissible

risk of being skewed in favor of the application of the death

penalty. Id. at 1137.

Despite the fact that Texas is a "non-weighing" state, 5 the

terms used in the special issues are not so vague as to require

clarifying instructions. When the Supreme Court upheld the Texas

sentencing statutes in Jurek v. Texas

, 428 U.S. 262 (1976), Justice

White observed "[T]he issues posed in the sentencing proceeding

have a common-sense core of meaning that criminal juries should be

capable of understanding ...." I d. at 276 (White, J., concurring).

In Milton v. Procunier

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

denied , 471 U.S. 1030 (1985), we observed that Jurek answered the

question, "at least in the abstract," that the undefined words are

nevertheless capable of guiding the jury's sentencing discretion.

We agree with the reasoning of Milton

, which took the issue out of

the realm of abstraction:7

To the extent that the words strike dis tinct chords in

individual jurors, or play to differing philosophies and

attitudes, nothing more is at work than the jury system

.... The answer is that such word s, often of great

consequence, do have a common understanding in the sense

that they ultimately mean what the jury says by their

verdict they mean.

Id. at 1096; accord Barnard v. Collins

, 958 F.2d 634, 641 (5th Cir.

1992), cert. denied

, 113 S.Ct. 990 (1993); Ellis v. Lynaugh

, 873

F.2d 830, 839 (5th Cir.), cert. denied , 493 U.S. 970 (1989).

II.

Petitioner next argues that the Texas special issues prevented

the jury from giving full effect to mitigating evidence, in

violation of Penry v. Lynaugh

, 49 2 U.S. 302 (1989). During the

punishment phase of his trial, James introduced evidence regarding

his alcohol abuse, including into xication at the time of the

murder, and evidence that he suffered an abusive childhood. James

also presented "good character evidence," consist ing of evidence

that he cooperated with police, showed signs of remorse over his

actions, and possessed redeeming character traits.

In Penry , the Supreme Court held that mitigating evidence of

t he defendant's mental retardation and abusive childhood was not

given full effect through the conduits of the Texas special issues

statute. Absent a special instruction, Penry's sentencing jury was

unable to express its "reasoned moral response" to his mitigating

evidence. Id. at 328. We later construed Penry to indicate that

special jury instructions must accompany the Texas special issues

only when the "major mitigating thrust of the evidence is beyond

the scope of all the special issues." G raham v. Collins

, 950 F.2d8

1009, 1027 (5th Cir. 1992) (en banc), aff'd 113 S.Ct. 892 (1993).

The Supreme Court, in affirming Graham , clearly demonstrated

t hat Penry does not paint with as wide a brush as Petitioner now

asserts:

We do not read Penry as effecting a sea change in

this Court's view of the constitutionality of the former

Texas death penalty statute; it does not broadly suggest

the invalidity of the special issues framework.... Graham

indisputably was able to place all of his evidence before

the jury and both of Graham's two defense lawyers

vigorously urged the jury to answer "no" to the special

issues based on this evidence. Most important, the jury

plainly could have done so consistent with its

instructions.

Graham v. Collins

, 113 S.Ct. 892, 901-02 (1993) (emphasis in

original). Graham was arguing that evidence of his youth and

troubled familial background were not given full effect because of

the Texas capital sentencing practice. Petitioner advances a

sim ilar argument with respect to his evidence of alcoholism,

intoxication, abus ive childhood and redeeming traits. Like

Graham's contentions before him, the Texas statute did not stymie

Jam es's efforts to convey the major mitigating thrust of his

evidence.

Petitioner presented testimony that he frequently abused

alcohol, and that he became a "fundamentally different person" when

he was inebriated. James concedes that this type of mitigating

evidence can be given expression via the first special issue, which

asks the jury to evaluate the deliberateness of the defendant's

actions. The second special issue, regarding future dangerousness,

is also animated by evidence of his alcohol problems

-- but only in

an aggravating fashion, Petitione r contends. James posits that6 Petitioner correctly points out that alcoholism has independent

mitigating weight apart from intoxication at the time of a crime.

However, James argument that he is an "alcoholic" is unfounded.

There is testimony to the effect that James engaged in frequent

bouts of heavy drinking; however, no expert diagnosis was presented

that James in fact suffered from the disease of alcoholism. S ee

Barnard v. Collins

, 958 F.2d 634, 639 (5th Cir. 1992), cert.

denied

, 113 S.Ct. 990 (1993), whe re the Court discounted

petitioner's attempts to characterize his propensity to overindulge

as alcoholism:

Nor are we convinced by Barnard's efforts to characterize

the record as raising an issue of an addictive disorder.

The scattered testimony recounting Barnard's evidently

frequent episodes of heavy alcohol consumption, alcohol

9 evidence of his alcohol abuse is a "two-edged sword;" while the

jury could fi nd that his moral culpability was diminished on

account of his intoxication, the jury c ould as easily have

concluded that James presented a continuing threat because of his

propensity to overindulge. Consequently it is urged that the major

mitigating thrust of this evidence is beyond the scope of the Texas

special issues, and an additional instruction should ha ve been

given. James's arguments regarding evidence of his troubled

upbringing are of a similar tenor.

We have visited these arguments before, and precedent

undercuts Petitioner's position. In Cordova v. Collins , 953 F.2d

167, 170 (5th Cir.), c ert. denied

, 112 S.Ct. 959 (1992), we held

that "[E]vidence of voluntary intoxication can be given full effect

by the jury in deciding whether the defendant acted deliberately."

Accord Kelly v. Lynaugh

, 862 F.2d 1126, 1133 (5th Cir. 1988), cert.

denied , 492 U.S. 925 (1989). Furthermore, James presented expert

testimony that treatment plans are available for those who wish to

stop abusing alcohol. 6 The sentencing jury could have reasonablyintoxication and marijuana use does not demonstrate that

the episodes were attributable to a permanent handicap.

10 taken this into consideration when evaluating whether or not James

would continue to be a threat to civilized society.

Likewis e, no special instruction is necessary to effectuate

evidence presented on Petitioner's impoverished and abusive family

history. James presented evidence that he and his siblings were

abused by their a lcoholic father, and occasionally deprived of

food. Later, after the death of his mother, James went to live

with his father, who apparently was less than a desirable role

model for his teenage son . Such evidence can be given effect by

the Texas statutory s entencing scheme even without resorting to

additional instructions. S ee Graham v. Collins

, 113 S.Ct. 892, 902

(1993); Barnard v. Collins

, 958 F.2d 634, 639 (5th Cir. 1992),

cert. denied , 113 S.Ct. 990 (1993).

Finally, the evidence that James possessed some redeeming

character traits is also adequately addressed by the use of the

Texas sentencing scheme. There was testimony that Petitioner

showed signs of remorse for his actions, that he cooperated with

the police investigation, and that he had developed p ositive

f amilial ties despite his own troubled upbringing. We are

unpersuaded that the major mitigating thrust of this evidence went

beyond the special issues. Such positive character evidence is

directly related to whether or not James would continue to present

a threat to society, and an additional instruction to that effect

is not required. See Graham , 113 S.Ct. at 902; Barnard , 958 F.2d7 S ee also Sumner v. Mata

, 449 U.S. 539, 546-47 (1981), where the

Court commented on the application of § 2254(d):

Nor does it specify any procedural requirements that must

be satisfied for there to be a 'hearing on the merits of

a fac tual issue,' other than that the habeas applicant

and the State or its agent be parties to the state

proceeding and the state-court determination be evidenced

by a 'written finding, written opinion, or other reliable

and adequate written indicia.'

11 at 638-39; W ilkerson v. Collins

, 950 F.2d 1054, 1061-62 (5th Cir.

1992).

III.

Petitioner next argues that the district court erred in

affording the statutory presumption of correctness to the findings

of fact by the state court. S ee 28 U.S.C. § 2254(d) (1977). It is

argued that the f indings resulted from an e x parte collaboration

between the s tate trial court and the state prosecutor.

Accordi ngly, James continues, these findings were developed in

contravention of basic principals of due process.

Section 2254(d) requires that a federal district court accept

as correct the findings of a state court which are "evidenced by a

written finding, written opinion, or othe r reliable and adequate

written indicia" and issued "after a hearin g on the merits of a

f actual issue." I d. A full-blown trial type hearing is not

necessary to satisfy § 2254. In M ay v. Collins

, 955 F.2d 299, 310

(5th Cir.), cert. denied

, 112 S.Ct. 1925 (1992), we held that

findings entered after a "paper hearing" in the state court were

entitled to § 2254(d)'s presumption of correctness. 7 This

presumption is further strengthened if the same judge that issues12

the written findings also presided at Petitioner's trial. I d. at

314; Buxton v. Lynaugh

, 879 F .2d 140, 146 (5th Cir. 1989), c ert.

d enied , 497 U.S. 1032 (1990). Such was the case here, where the

state judge before whom James's trial was conducted also heard his

application for habeas relief.

While Petitioner argues at length that the fact finding

process was inherently biased because of the state's participation,

he does not seriously contest the correctness of the majority of

the findings. James points out that the district court adopted the

state court's finding that he was not a "chronic alcoholic," and

argues that this determination wa s the product of the inadequate

fact-finding process of the state court. We disagree. There was

never any medical testimony that James in fact was an alcoholic,

chronic or otherwise. Petitioner presented testimony from Dr. Fred

Lanier Fason, a p sychiatrist with experience in treating

alcoholism. Fason testified on the impact that alcohol consumption

has on a person's ability to reason and deliberate. S ee R. vol.

28, at 5961-67. Fason never conducted an individual examination of

James, and never testified that James was an alcoholic. We agree

with the reasoning of the Court in Barnard v. Collins

, 958 F.2d 634

(5th Cir. 1 992), c ert. denied

, 113 S.Ct. 990 (1993), that

"scattered testimony recounting [Petitioner's] evidently frequent

episodes of heavy alcohol consumption [and] alcohol intoxication

... does not demonstrate that the episodes were attributable to a8 Petitioner also cites as error the district court's verbatim

adoption of five state court findings of fact. These factual

conclusions all dealt with jury selection. This is clearly an area

where the state court judge, before whom the actual trial was

conducted, "was in a di fferent and better position to make

determinations regarding the facts and circumstances surrounding

that trial than other courts on direct or collate ral review."

Buxton v. Lynaugh

, 879 F.2d 140, 146 (5th Cir. 1989), cert. denied

, 497 U.S. 1032 (1990). Again, while James contests the procedures

used to develop the state court's findings of fa ct, he does not

argue that they are, in the aggregate, incorrect. We are

unpersu aded that § 2254(d)'s presumption is inapplicable. C f.

Rushen v. Spain

, 464 U.S. 114, 120 (1983) (§ 2254(d) acco rds a

"high measure of deference" to state court's findings of fact, and

they "may be set aside only if they lack even fair support in the

record." (internal citations omitted)).

13 permanent handicap." Id. at 639. 8

During his state court habeas proceedings, James submitted a

l engthy, detailed application for relief. The state court twice

extended its own deadline for rendering a decision. We agree with

the observation of the district court that "it can be assumed that

the judge reviewed the submissions of both pa rties, reviewed the

record of the u nderlying trial, and reflected upon his own

impressions and firsthand knowledge of the events that took place

at trial." R. vol. 1, at 564-65 (unpublished opinion of district

court).

In the federal district court, James moved the district court

to reject the state court's findings. The district court noted

that this motion was "exhaustive," and fully supported by

memorandum and "supplemented by numerous affidavits from

accomplished law professors ." The district court carefully

evaluated James's motion before reaching the merits of his habeas

claims, and concluded that there was no evidence of prosecutorial9 Additionally, with the possible exception of his P enry claim

regarding "chronic alcoholism," Petitioner's habeas claims are all

without legal support, and do not depend on the facts as developed

by the state court. With respect to James' contention that he was

a chronic alcoholic, our review of the record reveals that he

offered no testimony which would support this fact.

14 misconduct.

Petitioner was afforded adequate opportunity to participate in

the development of the fact findings, and we cannot say that any of

the statutory exceptions to § 2254(d)'s presumption of correctness

are applicable. S ee 28 U.S.C. § 2254(d)(1)-(8). The district

court properly deferred to the findings of th e state court. S ee

Rushen v. Spain

, 464 U.S. 114, 120 (1983); Sumner v. Mata

, 449 U.S.

539, 546-47 (1981); May v. Collins , 955 F.2d 299, 310 (5th Cir.),

cert. denied

, 112 S.Ct. 1925 (1992); Buxton v. Lynaugh

, 879 F.2d

140, 146 (5th Cir. 1989), cert. denied , 497 U.S. 1032 (1990). 9

IV.

In his final point of error, James argues that he was

unconstitutionally compelled to surrender his right to assistance

from a mental health expert. As a result of being forced to forego

the development of this type of evidence, Petitioner claims he was

also deprived of the effective assistance of counsel.

Petitioner cites Tex. Crim. Code Proc. Ann. art. 46.03 § 3

(West 1988), for the proposition that had he requested that the

court appoint a psychiatrist to assist him in the punishment phase

of his trial, any report prepared by the examining psychiatrist

would have been discoverable by the state. James argues that such

a result violated his constitutio nal rights in two ways: (1)10 The competing rights James alleges he was forced to chose

between were 5th Amendment protections against self-incrimination,

and the right to have court-appointed psychiatric assistance for an indigent defendant, per Ake v. Oklahoma , 470 U.S. 68 (1985).

11 Likewise, Petitioner's citation of G ranviel v. Lynaugh

, 881 F.2d

185 (5th Cir. 1989), c ert. denied

, 495 U.S. 963 (1990), is also

misplaced. G ranviel involved the defendant's raising his sanity as an issue at the guilt-innocence stage of trial. Id. at 190-91.

15 Compelling a defendant to choose between constitutional rights is

itself unlawful; 10 and, (2) b y requiring that the results of his

mental examination be turned over to the State, the Texas Criminal

Code inhibited James's counsel from fully evaluating all relevant

evidence.

We need not reach the ineffective assistance of counsel issue

because James's initial reliance on Tex. Code Crim. Proc. Ann. art.

46.03 § 3 is misplaced. This provision addresses situations where

a defendant has raised an insanity defense at the guilt-innocence

phase of the trial, a nd does not speak to appointment of expert

assistance for the punishment phase of the proceedings. 11 We will

not engage in speculation about what may have transpired if such a

request had been made. Accordingly, we affirm the decision of the

district court on this issue.

Conclusion

For the foregoing reasons, the district court's order denying

the petition for a writ of habeas corpus is AFFIRMED, and James's

request that we stay his sentence of execution is DENIED.