1 HIV is the virus that causes acquired immune deficiency

syndrome ("AIDS").

1 United States Court of Appeals,

Fifth Circuit.

No. 94-20838.

Curtis WEEKS, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division, et al., Respondents-Appellees.

June 23, 1995.

Appeal from the United States District Co urt for the Southern

District of Texas.

Before REAVLEY, KING and WIENER, Circuit Judges.

PER CURIAM:

Curtis Weeks appeals from the denial of his petition for a

writ of habeas corpus. For the reasons set forth below, we affirm

the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On Ju ne 7, 1988, Curtis Weeks, who had previously tested

positive for the human immunodeficiency virus ("HIV"), 1 was being

transferred from one prison unit to another. He was cursing loudly

and complaining about the restraints that had been placed upon him.

After a stop to change drivers and to feed Weeks, the transfer

continued. Weeks grew more agitated, however, and he tore a panel

off of the door of the van along with the headliner from the roof

of the van. Weeks stated that he was going to "dog" the officers

and that he was "going to cut one of the boss's heads off." The2

guards placed Weeks on the ground and further restrained him while

Weeks continued to yell and curse at the officers.

After be ing placed back in the van, Weeks's cursing and

yelling persisted. He banged his head against the wire mesh in the

van and he threatened the officers, stating that he was "going to

take somebody with him when he went." Weeks also stated that he

was "medical now" and that he was "HIV-4." Shortly thereafter,

Weeks spit twice in the face of one of the prison guards, and the

guard testified that Weeks's saliva covered his glasses, his lips,

and his nose. Weeks's saliva entered the guard's nose, but the

guard was uncertain as to whether any of Weeks's saliva entered his

mouth. The guard testified that when Weeks stated that he was

"HIV-4," Weeks was staring directly at him. He also testified that

Weeks told everybody that he had AIDS and that he was going to take

as many with him as he could.

On November 4, 1989, Weeks was convicted of attempted murder

for spitting on the prison guard. After finding that Weeks had two

prior felony convictions, the jury sentenced him to imprisonment

for life. The state court of appeals affirmed Weeks's conviction

on July 9, 1992. On October 14, 1992, the Texas Court of Criminal

Appeals r efused discretionary review. On January 6, 1994, Weeks

filed a petition for a writ of habeas corpus in federal district

court. In his petition, Weeks claimed relief on two grounds.

First, Weeks claimed that the State unconstitutionall y failed to

prove an element of attempted murder at trial because there was no

evidence that spitting by an HIV-infected person "tends to" cause2 The attempt statute states the following:

A person commits an [attempt] offense if, with specific

intent to commit an offense, he does an act amounting

to more than mere preparation that tends but fails to

effect the commission of the offense intended.

Tex.Penal Code § 15.01(a).

3 death. 2 Second, Weeks claimed that the trial court's charge to the

jury was constitutionally inadequate because it allowed the jury to

convict Weeks without proof of the "tends to" element.

The district court denied relief, noting that "the words

"could have' and "tends to' have been used interchangeably in this

instance, and the [Texas] Court of Appeals did not by it[s] use of

the word "could' intend to minimize or diminish the requirements of

that element." The court then reviewed the evidence and concluded

that it was sufficient to support Weeks's conviction. As to

Weeks's second argument, the court found that "the charge, read as

a whole and in the context of the entire trial proceedings,

adequately stated the government's burden to prove beyond a

reasonable doubt the "tends' element of the crime." Despite this

denial of relief, the district court did grant a certificate of

probable cause, and Weeks appealed from the district court's

decision.

II. ANALYSIS AND DISCUSSION

A. Sufficiency of the Evidence

In essence, Weeks claims that there is no evidence that

spitting "tends but fails to effect the commission of" murder.

According to Weeks, there was no evidence that his saliva contained4

the HIV virus, and there was no evidence that spitting HIV-infected

saliva "tends" to cause death . Weeks offers a massive amount of

scientific evidence in support of this p roposition. As Weeks

states, "[p]rosecution evidence—especially the charlatanesque

testimony in this case—cannot establish as "true' what is

scientifically established as false. Mr. Weeks' conviction can no

more rest on the "fact' that HIV can be transmitted by spitting

than it could on the pre-Copernican "fact' that the sun revolves

around the earth."

The standard for assessing the sufficiency of the evidence to

support a conviction is well-settled:

"[W]hether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

hav e found the essential elements of the crime beyond a

reasonable doubt."

Alexander v. McCotter, 775 F.2d 595, 597-98 (5th Cir.1985) (quoting

Jack son v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979)). In making this determination, a court should

not substitute its view of the evidence for that of the

fact-finder; instead, a court should consider all of the evidence

in the light most favorable to the prosecution. S e e id. at 598.

In addition, to make this determination, a court must refer to the

substantive elements of the criminal offense as defined by state

law. See id.

Weeks was convicted of attempted murder under Texas Penal Code

§ 15.01(a). Under that statute, a conviction requires proof beyond

a reasonable doubt of the following elements: 1) a person; 2) who

with the specific intent to commit murder; 3) does an act5

amounting to more than mere preparation; 4) which tends but fails

to effect the commission of murder. S ee Rocha v. State, 648 S.W.2d

298, 301 (Tex.Crim.App.1982). In the instant appeal, the only

contested element of the offense is whether Weeks's spitting on a

prison guard is an act that "tends" to cause death.

Weeks contends that the state court of appeals and the federal

district court erroneously diluted the plain meaning of the "tends

to" requirement by finding that it can be met with a showing of a

theoretical possibility. Weeks argues that "[a]s a matter of

common parlance, the word "tends' contemplates more of a causal

connection between an act and a prohibited result than a mere

theoretical possibility."

It is true that on Weeks's direct appeal, see Weeks v. State,

834 S.W.2d 559 (Tex.App.—Eastland 1992, pet. ref'd), the Texas

court of appeals equated "tends" with "could." The court stated

that "[t]o prove attempted murder, it is sufficient to show that

the accused had the intent to cause the death of the complainant

and that he committed an act, which amo unted to more than mere

p reparation, that c ould have caused the death of the complainant

but failed to do so." I d. at 561 (ci ting F lanagan v. State, 675

S.W.2d 734 (Tex.Crim.App.1984)) (emphasis added); s ee also id. at

562 ("The issue, then, before this court is whether sufficient

evidence, when viewed in the light most favorable to the verdict,

was presented to the jury showing that appellant could have

transmitted HIV by spitti ng on the officer." (emphasis added)).

Other courts have similarly construed the statutory language. S ee6

Garcia v. State, 541 S.W.2d 428, 430 (Tex.Crim.App.1976) ("It

follows that to prove an "attempted murder' it is sufficient if the

accused has the intent to cause serious bodily injury and commits

an act "amounting to more than mere preparation' that could cause

the death of an individual but fails to do so." (emphasis added)

(footnote omitted)), overruled on other grounds, Flanagan v. State,

675 S.W.2d 734, 742 (Tex.Crim.App.1984); S taley v. State, 888

S.W.2d 45, 48 (Tex.App.—Tyler 1994, no pet.) ("To prove attempted

murder, the evidence must be sufficient to show that Appellant

intended to cause serious bodily injury, that he committed an act

that amounted to more than "mere preparation,' and that the act

could have caused the death of an individual." (emphasis added));

see also Alexander, 775 F.2d at 598 (stat ing the elements of the

Texas attempt statu te and concluding that the evidence was

sufficient to support an attempted murder conviction, in part

because "[t]here was testimony that the lug wrench could be used to

kill a person" (emphasis added)).

It is not our function as a federal appellate court in a

habeas proceeding to review a state's i nterpretation of its own

law, see Moreno v. Estelle, 717 F.2d 171, 179 (5th Cir.1983), cert.

denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984), and we

defer to the state courts' interpretation of the Texas attempt

statute. S ee, e. g., Seaton v. Procunier, 750 F.2d 366, 368 (5th

Cir.) ("We will tak e the word of the highest court on criminal

matters of Texas as to the interpretation of its law, and we do not

sit to review that state's interpretation of its own law."), cert.3 The state court of appeals found that Dr. Dowell also

qualified as an expert on HIV. Weeks disputes this finding,

however, arguing that the prosecution made explicit to the jury

that "we haven't called [Dr. Dowell] here as an HIV expert."

4 The state court of appeals' opinion describes the testimony

of the various witnesses in great detail.

7 denied, 474 U.S. 836, 106 S.Ct. 110, 88 L.Ed.2d 90 (1985).

Thus, it appears that the state law defines the substantive

"tends" element of the attempt offense by equating it with "could";

i.e., death must be possible from the act. Indeed, the substantive

requirement of the statute has been evaluated (and, in effect,

defined) by the state courts in the context of the evidence

presented in this case, see Weeks, 834 S.W.2d at 561-65, as well as

elsewhere. The relevant question then becomes whether, viewing the

evidence in the light most favorable to the prosecuti on, any

rational trier of fact could have found, beyond a reasonable doubt,

that spitting could transmit HIV.

The prosecution called four witnesses, Dr. Mark Dowell, Paul

Cameron, Albert Wells, and Dr. Lorraine Day, to testify about HIV.

Cameron and Dr. Day qualified as experts on HIV. 3 Weeks called Dr.

Richard Pollard to testify as an HIV expert. The experts disagreed

on whether HIV could be transmitted through saliva, and all of the

experts were vigorously cross-examined. See Weeks, 834 S.W.2d at

562. 4 Dr. Dowell testified that "the possibility is low but

certainly not zero" that HIV could be transmitted by spitting.

Cameron testified that HIV could possibly be transmitted by saliva

and by bei ng spit upon, and he testified that there have been

approximately ten cases of transmission throu gh saliva. Dr. Day5 Indeed, Weeks contends that the district court erred in

refusing to take judicial notice that, "as a matter of Texas

law," Weeks could not have transmitted HIV by spitting. In

support of this proposition, Weeks cites the language of the

Texas Register, which states that "[b]iting and being bitten is

not considered as an exposure to HIV because without visible

blood present, saliva does not contain quantities of the virus

8 cited several documented cases of saliva transmission of the HIV

virus. On the other hand, Dr. Pollard testified that it had never

been proven that HIV could be transmitted by spitting, and he

opined that it was extremely remote, if not impossible, for HIV to

be transmitted by spitting.

In this case, the jury chose t o believe the witnesses who

testified that HIV could be transmitted through saliva. On appeal,

Weeks discredits the State's witnes ses and undermines their

expertise, but this "discrediting" was also brought out at the

trial level, and the jury resolved the credibility dispute in favor

of the State. Moreover, Weeks has not argued that the testimony of

the S tate's experts is inadmissible. Simply put, differences in

opinion go to the weight of the evidence, not to its admissibility,

and such disputes are within the province of the jury to resolve.

See Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th

Cir.1991) (en banc) ("As a general rule, questions relating to the

bases and sources of an expert's opinion affect the weight to be

assigned that opinion rather than its admissibility and should be

left for the jury's consideration."), cert. denied, 503 U.S. 912,

112 S.Ct. 1280, 117 L.Ed.2d 506 (1992). Weeks also presents a

mountain of scientific evidence to support the contention that HIV

cannot be transmitted through saliva, 5 but on appeal, as long aslarge enough to cause infection after exposure." 19 Tex.Reg.

1454 (1994). The district court, as well as the state court of

appeals, declined to take judicial notice, apparently on the

grounds that whether saliva can transmit the HIV virus is not

conclusively established and is not free from reasonable dispute.

The differences in the expert testimony in this case also lead us

to conclude that the issue of HIV transmission through saliva is

not conclusively established. Thus, we find no error in the

district court's refusal to take judicial notice.

6 Because HIV-infected persons will not always have HIV

present in their saliva, Weeks contends that his conviction must

be reversed since it is undisputed that the State failed to offer

any evidence at trial that HIV was actually present in Weeks's

saliva. Sufficient evidence was presented, however, for the jury

to conclude beyond a reasonable doubt that Weeks's spittle could

have transmitted HIV. Cameron testified that there is a greater

chance of HIV being present in saliva if blood is present in the

saliva, and that it is common for people with HIV-3 or HIV-4

infections (like Weeks) to have gum diseases and bleeding gums.

Dr. Day testified that Weeks had just eaten before the spitting

incident, and that blood in the saliva is more likely after

eating. Moreover, Dr. Day testified that Weeks had gingivitis

and other symptoms at the time of the spitting that increased the

chance that he would have blood in his saliva. Thus, sufficient

evidence was before the jury for it to conclude beyond a

reasonable doubt that Weeks's saliva could have contained the HIV

virus.

7 Courts in other jurisdictions have split in their treatment

of this issue. Compare Scroggins v. State, 198 Ga.App. 29, 401

S.E.2d 13, 20 (1990) ("Appellant makes much of the expert's

testimony that there is only a "theoretical possibility' of

transmittal of the virus through saliva, but a "theoretical

possibility' is clearly a "possibility,' or else the phrase has

9 some evidence existed for the jury to draw its conclusions, we

cannot disturb its assessment. 6

In short, viewing the State's evidence in the most favorable

light, the jury was presented with testimony that HIV transmission

through saliva and spitting is possible. Although Weeks's counsel

made a mighty effort to discredit the State's experts, the jury

still chose to believe their testimony. We are not in a position

to disturb its conclusions. 7no meaning. So long as medical science concedes this

"theoretical possibility,' the jury was well within the evidence

to consider the human bite of a person infected with the AIDS

virus to be "deadly.' ") and State v. Haines, 545 N.E.2d 834,

839-41 (Ind.Ct.App.1989) (observing that HIV transmission by

bites or contact with blood was at least possible, and to a

degree that exceeded a merely theoretical or speculative chance)

with Glick v. Henderson, 855 F.2d 536, 539 n. 1 (8th Cir.1988)

("You won't get AIDS from saliva, sweat, tears, urine or a bowel

movement." (quoting U.S. Dep't of Health and Human Services,

Pub. No. (CDC) HHS-88-8404, Understanding AIDS, p. 2 (1988))) and

Chalk v. United States Dist. Court, 840 F.2d 701, 706 (9th

Cir.1988) ("Although HIV has been isolated in several body

fluids, epidemiological evidence has implicated only blood,

semen, vaginal secretions, and possibly breast milk in

transmission. Extensive and numerous studies have consistently

found no apparent risk of HIV infection to individuals exposed

through close, non-sexual contact with AIDS patients.") and

Thomas v. Atascadero Unified School Dist., 662 F.Supp. 376, 378

(C.D.Cal.1986) ("The overwhelming weight of medical evidence is

that the AIDS virus is not transmitted by human bites, even bites

that break the skin.").

10 B. The Jury Charge

Weeks argues that the tr ial court's charge to the jury was

constitutionally inadequate because it negated the State's burden

to prove the "tends" element beyond a reasonable doubt. Weeks

asserts that throughout h is trial, the prosecutor and the trial

judge led the jury to believe that the State did not have to prove

that HIV transmission via spitting was possible. Furthermore,

Weeks contends that in charging the jury on how to apply the law to

the facts, the court omitted the crucial "tends" element. Weeks

highlights the following "critical" portion of the jury charge:

Now, if you find from the evidence beyond a reasonable doubt

that on or about the 8th day of June 1988, in Walker County,

Texas, the defendant, Curtis Weeks, did attempt to cause the

death of Ronald Alf ord with specific intent to kill Ronald

Alford, by intentionally spitting on the said Ronald Alford,

while defendant was infected with human immunodeficiency

virus; and you further find beyond a reasonable doubt that

the defendant , in so acting, was not acting under the11

immediate influence of sudden passion arising from an adequate

cause, then you will find the defendant guilty of attempted

murder, as charged in the indictment.

According to Weeks, this charge failed to include the critical

element of attempt ed murder—that the act "tends but fails" to

effect the commission of murder.

When examini ng a jury instruction on habeas review, the

Supreme Court has stated that "[t]he only question for us is

whether th e ailing instruction by itself so infected the entire

trial that the resulting conviction violates due process." E stelle

v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385

(1991) (internal quotation omitted). Further, "[i]t is

well-established that the instruction may not be ju dged in

artificial isolation, but must be considered in the context of the

instruction s as a whole and the trial record." I d. (internal

quotation omitted). We inquire "whether there is a reasonable

likelihood that the jury has applied the challenged instruction in

a way that violates the Cons titution." I d. (internal quotation

omitted).

In United States v. Chagra, 807 F.2d 398, 402 (5th Cir.1986),

cert. denied, 484 U.S. 832, 108 S.Ct. 106, 98 L.Ed.2d 66 (1987), we

announced similar principles:

We review claimed deficiencies in a jury charge by looking to

the entire charge as well as the arguments made to the jury.

Our inquiry is whether in the context of the true trial scene the jury was given incorrect instructions. This is a common

sense approach that recognizes that the jury charge does not

stand alone for separate examination; that the charge is part

of a larger picture of what the jury was told.... For this

reason, the use made of jury instruction in summation can be

significant in an appellate court's ef fort to determine

whether the ambiguity of a cold transcript actually existed at12

trial.

As mentioned, the "tends but fails" requirement of the attempt

offense is a separate element that must be proven beyond a

reasonable doubt by the State. The State, however, appeared to

make a number of inappropriate comments to the jury indicating that

evidence of the "tends" element was unnecessary for conviction.

For example:

[Transmission of HIV through saliva] is not necessarily an

element of this case. I hope everybody realizes that after

voir dire. W e don't have to prove to you beyond a reasonable

doubt that transmission in this form is possible. The

question is intent.

Nowhere in there does it say that the State has to prove that

this man is going to get AIDS. It doesn't say that the State

has to prove that this man has a high probability of getting

AIDS. I t doesn't say that we even have to prove that he could

even get AIDS this way. It doesn't say that anywhere in

there.

Acc ording to Weeks, when the trial commenced, the State

directed the jury to concentrate on intent and to minimize or

ignore the "tends" element:

We are dealing with the subject of AIDS, how it's transmitted,

and basically the State has to prove beyond a reasonable doubt

that the person charged, Curtis Weeks, intentionally and with

the specific intent to cause the death of an individual, spit

on Ronald Alford, who is a guard out at TDC, and he intended

to kill him by doing that act when he was infected with HIV at

the time. Does everybody understand that? I t doesn't say

anywhere there that the State has to prove how the disease is

transmitted or what the probability of getting AIDS is in this

way or anything like that.

Despite these improper statements in the presence of the jury,

we believe that the jury was aware of the "tends" element.

Although the so-called "critical" paragraph of the charge fails to

specifically address the "tends" element, "attempt" was defined to13

include the "tends" element earlier in the court's charge. S ee

United States v. Jokel, 969 F.2d 132, 136 (5th Cir.1992) ("Any one

instruction, however, does not have meaning in isolation from the

instructions that went before and came after it."); W eeks, 834

S.W.2d at 565. Indeed, the trial court instructed the jury that

"[a] person commits an [attempt] offense if, with specific intent

to commit an offe nse, he does an act amounting to more than mere

preparation that tends but fails, to effect the commission of the

offense intended. Such is an attempt to commit an offense."

Because "attempt" was defined to include the "tends" element, the

later use of the term "attempt" in the so-called "critical" portion

of the jury charge implicitly incorporated the "tends" element into

the charge.

Moreover, defense counsel's summation, presented without

objection, specifically stated the State's burden to prove the

"tends" element beyond a reasonable doubt, and Weeks's counsel

discussed the "tends" element. S ee Chagra, 807 F.2d at 403

("Whatever uncertainty there may have been from the charge alone,

defense counsel 's eloquent summation left no uncertainty as he

outlined the government's burden."). In its final argument, even

the State told the jury that "[t]he State does have to prove to you

that this tends but fails to effect the commi ssion of a murder."

Finally, considering that most of the trial consisted of the jury

listening to multiple experts argue over whether HIV can be

transmitted through saliv a or spitting, we believe that the jury

was aware that an attempted murder conviction depended upon proof14

of the possibility of HIV transmission through saliva or spitting.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.