UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 91-5512

_______________________

RUBEN MONTOYA CANTU,

Petitioner-Appellant,

versus

JAMES A. COLLINS, Director,

Texas Department of Corrections,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

July 22, 1992

Before GARWOOD, JONES, and DUHÉ, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Ruben Montoya Cantu challenges his murder conviction and

death sentence. His application for a writ of habeas corpus was

denied by the district court, but the court granted a certificate

of probable cause.

I.

FACTS AND PROCEDURAL HISTORY

A Bexar County, Texas grand jury convicted petitioner for

the November 8, 1984 murder of Pedro Gomez during the commission of

a robbery, in violation of § 19.03(a)(2 ) of the Texas Penal Code

(Vernon Supp. 1984). The murder took place at the house of Eusebio

Moreno in San Antonio. The house was under construction, and

because Moreno had been experiencing numerous incidents of theft1 The accomplice was later identified as David Garza, a

juvenile. According to evidence adduced at trial, the room in

which Juan Moreno and Gomez were sleeping was equipped with a 75-

watt bulb, which lighted the room well. The lamp had been turned

off when the two men went to sleep, but was on later that night

when Cantu awakened Moreno. Moreno testified that the lamp

illuminated the faces of Cantu and his accomplice, and that he

knew Cantu because he had seen him in the neighborhood before.

2from the building site, his brother, Juan Moreno, and brother-inlaw, Pedro Gomez, were sleeping in the house to prevent any further

loss. Some time after 10:30 p.m., Gomez and Juan Moreno were

awa kened by two intruders: a man who was poking Moreno with a

rifle, whom he later identified as the petitioner, and an

accomplice. 1 Cantu and his companion took wristwatches from Moreno

and Gomez, as well as Gomez's wallet. Cantu then told Gomez to

pull back the mattress on one of the beds, under which a pistol

owned by Eusebio Moreno was wrapped in a rag. According to Moreno,

as Gomez was handing the bundle to the petitioner, Cantu shot him

once in the head. Gomez fell to the ground, and Cantu shot him

eight more times. Petitioner next trained his rifle on Juan

Moreno, shooting him eight or nine times.

Gomez died from multiple gunshot wounds to the body and

head. Juan Moreno survived.

On November 14, two detectives from the San Antonio

Police Department visited Juan Moreno at the intensive care unit at

Wilford Hall Medical Center. The detectives showed him photographs

of possible suspects. Cantu's photograph was not in the photo

spread, and Moreno did not identify any of the photos.2 One of the officers, Detective Garza, conversed with

Moreno in Spanish. Garza testified that when he asked Moreno,

"Are you afraid to identify the guy who did this?" Moreno

replied, "Yeah." Garza said he was prompted to ask the question

because Moreno "completely avoided the photograph, and you could

see it in his face that he was scared." The second officer,

Detective Herring, testified that when Moreno "reached Mr.

Cantu's picture, he completely didn't look at it. He just passed

it up twice." Herring added that out of the five photographs he

viewed, Cantu's was the only picture that Moreno avoided. As

Herring testified at trial:

Q. So [Moreno] did not treat any of the

other photographs the way he treated Mr.

Cantu's picture?

A. No, sir, he did not.

Q. Now, based on your experience, Detective

Herring, have you had experienced before

when people declined to pick out a

photograph when you have reason to

believe that they know who the person

is?

A. Many times.

Q. And is what you saw on December 16,

regarding Mr. Moreno's behavior,

consistent with that pattern that you

experienced before?

3 On December 16, detectives again visited Juan Moreno at

Wilford Hall and showed him a photo array, which this time included

a photo of Cantu. Moreno did not identify Cantu and did not look

at his photograph. The detectives later testified that Moreno

avoided looking at petitioner's picture, adding that it was their

opinion that he knew more than he was saying. According to one of

the detectives, when asked if he was afraid to identify the

assailant, Moreno replied, "Yeah." Both detectives who visited

Moreno at Wilford Hall on that day testified that he appeared to be

frightened as he looked through the photo spread. 2 Detective GarzaA. Yes, sir, it is.

4

added that Moreno did recognize some of the other men in the photo

lineup, "but he advised me that these pe ople were just from the

neighborhood and they were not any of the individuals involved in

the shooting of him or Pedro Gomez." Moreno also for the first

time offered a general description of his assailants: two Hispanic

males, one about 13 or 14 years old, the other about 19 and wearing

blue jeans.

Four months later, on March 1, 1985, petitioner was

involved in a bar shooting with an off-duty San Antonio police

officer, Joe De La Lu z. At the time of the De La Luz shooting,

Cantu was already a suspect in the murder of Pedro Gomez. Because

Cantu was a suspect in both cases, San Antonio police renewed their

effort s to obtain a positive identification in the Gomez murder

investigation. Accordingly, the day after the De La Luz shooting,

an officer was assigned to interview Juan Moreno at his home. The

officer, Detective Ballesa, showed Moreno five photographs

different from those which he had viewed on December 16, except for

th e photo of Cantu, which appeared in both arrays. Once again,

Moreno did not identify anyone in the photographs. Detective

Ballesa then engaged Moreno in a discussion, advising him that he

had to identify the assailants if he knew their identity. Moreno3 As Detective Ballesa testified at trial:

Q. Had you mentioned Ruben Cantu's name to

[Moreno]?

A. No, sir.

Q. But he told you that Ruben Cantu had

shot him?

A. Yes, sir.

Q. What did he say when he got to Ruben

Cantu's photograph?

A. Well, he didn't say anything. He

mentioned the name after -- after the

array had been shown to him, you know,

and after there was some discussion on

the matter is when he came up with the

name.

Q. And what was this discussion?

A. Well, the discussion centered around I

was trying to make the man comfortable;

he was scared and visibly shaken; he

didn't want to identify the photograph,

and it became rather obvious that that

was the problem. So, you know, he was

trying to -- to get me to say that we'd

be able to protect him, things of this

nature, if he identified the picture.

He said, "Look, if I give you the name,

why isn't that good enough?" I said,

"Well, that isn't." I said, "You have

to identify the photograph," and he

wouldn't do it, but, you know, he

definitely gave me the name.

5 then provided the name of Ruben Cantu when viewing his picture but

did not identify him as Gomez's murderer. 3

The next day, on March 3, 1985, a different officer,

Detective Quintanilla, went to the home of Eusebio Moreno for the

specific purpose of taking Juan Moreno to the police station to4 Detective Ballesa explained that he understood Moreno's

fear because Cantu belonged to the "Grey Eagles," a youth gang

known for violent behavior.

5 As described by the Texas Court of Criminal Appeals:

Juan testified that he had recognized

appellant in the photographs that were shown

to him on all the occasions. He did not tell

the police that it was appellant because he

did not want appellant to know where he and

his family lived. He was afraid for his life

and the lives of his family. He said the

police never told him they knew appellant was

the one who shot him. He also stated that he

knew appellant by sight because he had seen

him two or three times before the night of

the murder.

Cantu , 738 S.W.2d at 251.

6 sho w him the photo spread once more. At the station, Detective

Quintanilla showed Juan Moreno the same photo spread containing the

picture of petitioner that had been shown to him the day before by

Detective Ballesa. This time, Moreno identified Cantu's photo as

representing the man who had shot him and Gomez. Quintanilla

testified that when he asked Juan M oreno why he had failed to

identify Cantu previously, Moreno replied that "he had recognized

the photo the day before; he just was afraid, scared." 4 At trial,

Juan Mor eno identified Cantu in court, adding that he had

recognized him in the photo line-ups he viewed on December 16,

1984, and March 2, 1985, but did not identify his photo on those

occasions because, "I didn't want to get into any problems." 5

In addition to Juan Moreno's trial testimony, the state's

witnesses included Dr. Suzana Dana, a forensic pathologist and the

deputy chief medical examiner of Bexar County. Dr. Dana testified6 The detective who investigated the murder scene

recovered eleven .22 caliber shell casings and some slugs. The

detective testified that there were a number of bullet holes in

the walls of the house, adding that two of the slugs found at the

scene may have been larger than .22 caliber slugs. In his brief

to this court, the petitioner suggests that these two slugs were

fired from a .38 caliber handgun such as that hidden by Eusebio

Moreno under the mattress. Petitioner strongly implies that this

evidence supports his claim that he shot Moreno and Gomez in

self-defense. This assertion is tenuous at best, however, both

because the detective could not identify the slugs as .38

caliber, and because investigators recovered no .38 caliber shell

casings.

7 that she performed the autopsy on Pedro Gomez, who had nine gunshot

wounds to the body, including a "defensive" wound to the left

f orearm that was consistent with the victim attempting to shield

his face or body with his hands. Gomez was killed by shots from a

rifle, Dr. Dana continued, because there was no powder tattooing as

would typically have been present had the shots been fired by a

weapon with a sho rter muzzle, such as a handgun. This and other

forensic evidence suggested that the victim was probably shot from

one and one-half to two feet away. Dr. Dana also analyzed

gunpowder traces on the palms of Gomez's hands, comparing them to

the relative absence of gunpowder particles on the backs of his

hands. She concluded that these findings were consistent with "a

gun being fired at the hands, or with the hands open simply because

the levels are higher on the palms than on the backs." In response

to questions from defense counsel, Dr. Dana opined that it was

unlikely that Gomez had fired a weapon at Cantu because that would

have left gunpowder residue o n the backs of Gomez's hands;

clutching the gun would have shielded his palms from gunpowder. 68 Cantu did not testify at the guilt-innocence phase of the

trial. Other than recall Juan Moreno and the police officers who

conducted the photographic lineups in an attempt to discredit

Moreno's identification testimony, the only other witness offered

by the defense provided an alibi for Cant u. At the punishment

phase of the trial, the prosecution presented five witnesses who

testified to Cantu's bad reputation in the community. Officer De

La Luz also testified that he was in the Scabaroo Lounge in San

Antonio on the night of March 1, 1985, when Cantu shot him several

times without provocation. Cantu then offered the testimony of six

San Antonio police officers in an attempt to discredit De La Luz's

testi mony. The defense also recalled De La Luz to the stand and

questioned him further about the shooting at the Scabaroo Lounge.

At this point, the defense sought to have C antu testify for the

limited purpose of rebutting De La Luz's version of Cantu's assault

on him. The trial court sustained the government's objection to

this proposal, ruling that "when Ruben Cantu takes the stand, he is

subject to the same grounds, the same areas of cross-examination as

any other witness." In response to questions from defense counsel,

the trial court added:

THE COURT: The ruling is that you may offer

any and all evid ence that you care to offer

through this witness. If you want to limit it

to exactly what he said on your direct, that's

fine; but when you pass him for crossexamination, he will be subject to crossexamination to the same [sic] as all other

witnesses, only exceptions are any and all

rules of evidence that apply to any and all

witnesses, regarding the admissibility of

evidence.9

The defense declined to put Cantu on the stand under the conditions

set by the court but did perfect a bill of exception at which Cantu

testified outside the presence of the jury. Cantu essentially

claimed that De La Luz provoked the confrontation which led to the

Scabaroo Lounge shooting, adding that he shot De La Luz with a

pistol Cantu had purchased outside the bar earlier that evening.

Cantu was convicted of capital murder and sen tenced to

death on July 30, 1985. He appealed to the Texas Court of Criminal

Appeals, which on February 4, 1987 affirmed his conviction and

sentence. Cantu v. State , 738 S.W.2d 249 (Tex. Crim. App. 1987).

That court later denied Cantu's motion for rehe aring, and the

Supreme Court denied certiorari. C antu v. Texas

, 484 U.S. 872, 108

S. Ct. 203, 98 L.Ed.2d 154 (1987). Cantu was slated to be executed

on or before sunris e on January 8, 1988. He filed a postconviction habeas application, which the Texas Co urt of Criminal

Appeals denied. Cantu then filed a federal habeas application and

motion for stay of execution, which was granted on January 7, 1988.

After an evidentiary hearing, a federal magistrate recommended that

habeas corpus relief be denied. The district court later accepted

the magistrate's report and denied the writ, prompting this appeal.

In his brief, petitioner raises seven challenges to his

conviction and death sentence, framing them as follows:

I. The Texas capital sentencing statutes precluded the jury from

giving full effect to Mr. Cantu's mitigating evidence of

youth, in violation of the Eighth and Fourteenth Amendments.

II. Petitioner was deprived of his constitutional rights under the

Fifth, Eighth and Fourteenth Amendments by the trial court's

refusal to instruct the jury on the lesser included offense of

voluntary manslaughter.7 Texas Code Crim. Pro. Ann. Art. 37.071 (Vernon Supp.

1985) provides in relevant part:

(b) On conclusion of the presentation of the

evidence, the court shall submit the

following three issues to the jury:

(1) whether the conduct of the

defendant that caused the death of the

deceased was committed deliberately and

with a reasonable expectation that the

death of the deceased or another would

result;

10 III. The in-court identification of petitioner deprived him of due

process of law under the Fifth and Fourteenth Amendments as

the procedures employed by the San Antonio police departments

were so impermissibly suggestive as to lead to a very

substantial likelihood of irreparable misidentification.

IV. Petitioner was denied effective assistance of counsel at trial

in violation of the Sixth and Fourteenth Amendments because

trial counsel failed to request the services of an expert

witness on the issue of eyewitness identification.

V. Petitio ner was denied his Sixth and Fourteenth Amendment

rights to the e ffective assistance of counsel through the

punishment phase of his criminal trial.

VI. Petitioner was denied his Sixth and Fourteenth Amendment right

to the effective assistance of counsel on appeal.

VII. Petitioner's constitutionally protected right to present

evidence to the jury in mitigation of his sentence of death

was impermissibly chill ed by the Texas state rule which

precludes a defendant, who testifies at the penalty phase of

his trial, from challenging the sufficiency of the evidence in

support of his guilt or the admissibility of the

identification evidence.

We address each argument in turn.

II.

MITIGATING EVIDENCE

Petitioner first contends that the Texas capital

sentencing statute did not provide a vehicle by which the jury

could consider and give m itigating effect to his youth. 7(2) whether there is a probability that

the defendant would commit criminal acts

of violence which would constitute a

continuing threat to society; and

(3) if raised by the evidence, whether

the conduct of the defendant in killing

the deceased was unreasonable in

response to the provocation, if any, by

the deceased.

In May 1991, the Texas legislature passed two bills amending art.

37.071(b). However, these changes, which were later enacted into

law, apply only to offenses committed on or after September 1,

1991. See Graham v. Collins , 950 F.2d 1009, 1012 n.1 (5th Cir.

1992) (en banc), cert. granted , _____ U.S. _____, _____ S. Ct.

_____, 1992 WL 52201 (June 8, 1992).

8 While Cantu was 18 years old at the time of his state

criminal trial, he was 17 at the time of the murder. We reject

Cantu's assertion that the state's argument amounted to a claim

that the special issues, or any of them, should be answered in

the affirmative because of Cantu's youth. The most reasonable

characterization of the state's argument is that Cantu was

streetwise and hardened beyond his chronological age, and that in

this particular setting his chronological age was not a

reasonable basis on which to return a negative answer to any of

11 Petitioner admits that his trial counsel did "argue the issue of

Mr. Cantu's youth

. . . as a basis for compassion." Indeed

references to Cantu's age surfaced repeatedly during the punishment

phase of his trial. At one point, for instance, Cantu's counsel

told the jury: "I think that when a man is on trial for his life,

and even more so when a boy is on t rial for his life, that it

warrants a substantial investment of time." In support of its

request for an affirmative finding on the second special issue, the

state argued along the following lines: "He's been referred to as

a boy, a kid, a young man," the prosecutor no ted at one point.

"Well, he was an 18 year old with 18 rounds of ammunition, and he

used them all." 8the special issues.

9 The district court found that petitioner had

procedurally defaulted this claim for federal habeas review

because of his failure to raise it at trial. However, in light

of the Texas Court of Criminal Appeals' decision in Selvage v.

Collins , 816 S.W.2d 390 (Tex. Crim. App. 1991) (en banc), which

called into question whether a procedural bar would apply in such

cases, the state briefed the merits of Cantu's claim on this

issue.

12

Notwithstanding the numerous references to the

petitioner's age, he insists that the jury's consideration of

mitigating evidence of his youth was unconstitutionally

circumscribed by Art. 37.071(b). Specifically, he maintains that

while the second special issue allowed the prosecution to use his

youth as a sword against him

-- by drawing the jury's attention to

his potential for future dangerousness

-- it effectively prevented

him from using his youth as a s hield against a death sentence.

Thus, petitioner's brief continues, "the jury was left with no

vehicle through which it might express a 'reasoned moral response'

that, because of Mr. Cantu's youth, he should not be condemned to

die." 9

Cantu grounds his theory that Art. 37.071 failed to

permit the jury to consider mitigating evidence of his youth on

Penry v. Lynaugh

, 492 U.S. 302, 109 S. Ct. 2934, 106 L.Ed.2d 256

(1989). We have, however, in an e n banc decision recently rejected

the theory that Penry calls into question the constitutionality of

the Texas dea th penalty statute as applied to the arguably

mitigating circumstance of youth. In Graham v. Collins , 950 F.2d

1009, 1017 (5th Cir. 1992) (en banc), cert. granted

,

_____ U.S.10 Like Cantu, Graham was 17 years old at the time the

offense was committed. Id . at 1015 n.9. The Court's grant of

certiorari in a capital case does not cause us to deviate from

circuit law, nor is it grounds for a stay of execution. See

Johnson v. McCotter , 804 F.2d 300, 301 (5th Cir. 1986), cert.

denied

, Johnson v. Lynaugh , 481 U.S. 1042, 107 S. Ct. 1988, 95

L.Ed.2d 827 (1987).

13 _____,

_____ S. Ct.

_____, 1992 WL 52201 (J une 8, 1992), we

concluded "that Penry does not invalidate Texas's statutory scheme,

. . . in instances where no major mitigating thrust of the evidence

is substantially beyond the scope of all the special issues." I d

.

at 1027. 10 S ee also Black v. Collins

,

_____ F.2d.

_____, 1992 WL

107848 (5th Cir. 1992); Holland v. Collins

,

_____ F.2d

_____, 1992

WL 107830 (5th Cir. 1992); and Romero v. Collins

,

_____ F.2d

____,

1992 WL 105059 (5th Cir. 1992). G raham held: "At the very least,

Jurek must stand for the proposition that these mitigating factors

-- relative youth and evidence reflecting good character traits

such as steady employment and helping others

-- are adequately11 See Jurek v. Texas , 428 U.S. 262, 96 S. Ct. 2950, 49

L.Ed.2d 929 (1976) (sustaining the constitutionality of the Texas

capital sentencing scheme). Moreover, Grahamnoted that both

before and after Penry , the Texas Court of Criminal Appeals has

continued to hold that the second special issue provides an

adequate vehicle for the jury to take into account the

defendant's youth. 950 F.2d at 1031. See Roney v. State , 632

S.W.2d 598, 603 (Tex. Crim. App. 1982); Robinson v. State , 548

S.W.2d 63, 64 (Tex. Crim. App. 1977); Earvin v. State , 582 S.W.2d

794, 798-99 (Tex. Crim. App. 1979), repudiated on other grounds

, Mercado v. State , 615 S.W.2d 225, 227 n.1 (Tex. Crim. App. 1981);

Brasfield v. State , 600 S.W.2d 288, 293 n.3 (Tex. Crim. App.

1980), overruled on other grounds

, Janecka v. State , 739 S.W.2d

813 (Tex. Crim. App. 1987); Keeton v. State , 724 S.W.2d 58, (61

Tex. Crim. App. 1977); Ex Parte McGee , 817 S.W.2d 77, 80 (Tex.

Crim. App. 1991); Lackey v. State , 819 S.W.2d 111 (Tex. Crim.

App. 1991); Trevino v. State , 815 S.W.2d 592, 622 (Tex. Crim.

App. 1991), reversed on other grounds

, Trevino v. Texas

, _____ U.S. _____, 112 S. Ct. 1547, 118 L.Ed.2d 193 (1992). See also

DeLuna v. Lynaugh , 890 F.2d 720, 722 (5th Cir. 1989) (habeas

corpus).

12 While petitioner focuses on the second special issue,

we also agree with the state's contention that the first special

issue permitted Cantu to present mitigating evidence of "a

youthful tendency to act rashly," and therefore not deliberately.

Unlike Penry, Cantu's ability to think about the consequences of

his actions was markably different from Penry's evidence of

mental retardation, which he contended made it uniquely difficult

14 covered by the second special issue." I d

. at 1029. 11 In Cantu's

case, we agree with Grahamthat

[t]o the extent that [Cantu's] criminal

conduct was a product of his youth, he was for

that reason not only less culpable but, to the

same extent, also less likely to be dangerous

when no longer young. To the extent [Cantu's]

criminal conduct was not attributable to his

youth, his youth neither reduced his

culpability nor his future dangerousness.

Nothing in the present record suggests that

the jury here might have viewed the matter in

any other light.

Id

. at 1031 (footnote omitted). Cantu's youth could adequately be

taken into account as a mitigating factor in answering the special

issues, particularly the second. Graham , 950 F.2d at 1033. 12to control his impulses or to evaluate the consequences of his

conduct. Penry , 492 U.S. at 324, 109 S. Ct. at 2949.

13 Petitioner argues that in Texas, voluntary manslaughter

is considered a lesser included offense of murder. See Braudrick

v. State , 572 S.W.2d 709, 710 (Tex. Crim. App. 1978). Braudrick

was later questioned by an en banc panel of that court. Bradley

v. State , 688 S.W.2d 847 (Tex. Crim. App. 1985) (en banc).

Bradley held that voluntary manslaughter may be properly

considered a lesser included offense of murder only if the

evidence raises the issue of sudden passion. Id . at 851.

Because Cantu argued the sudden passion issue at trial, we agree

that voluntary manslaughter was properly treated as a lesser

included offense in this case.

15 III.

LESSER INCLUDED OFFENSE

Petitioner next contends that the state trial court erred

when it refused to include in its jury charge petitioner's

requested instruction on the lesser included offense of voluntary

manslaughter. At the conclusion of the evidence, his counsel

requested that the jury be so instructed, but the trial court

sustained the state's objection. Subsequently, during the charge

conference at the penalty phase of the trial, petitioner's counsel

asked the court to submit Special Issue No. 3 as provided by Art.

37.071(b)(3). The prosecution did not object to this requested

submission, despite its earlier opposition to a voluntary

manslaughter instruction during the guilt /innocence phase of the

trial. Citing this asserted inconsistency, petitioner argues that

the third special issue would not have been submitted at the

penalty phase unless the evidence in the record suggested that the

killing occurred in response to provocation by the deceased. 13 The

evidence presented at his trial, Cantu contends, could have14 "Although Beck itself spoke only to a statute under

which the judge could not give the requested instruction, [its]

rationale applies equally to cases in which a trial judge refuses

to give an instruction which is available under state law."

Lincecum , 958 F.2d at 1275.

16 supported a verdict that he was guilty only of voluntary

mansl aughter, and the trial court's refusal to give such

instruction therefore violated his constitutional rights.

Under the stand ard first announced in B eck v. Alabama

,

447 U.S. 625, 100 S. Ct. 2382, 65 L.Ed.2d 392 (1980), "the jury [in

a capital case] must be permitted to consider a verdict of guilt of

a noncapital offense 'in every case' in which 'the evidence would

have supported such a verdict.'" H opper v. Evans

, 45 6 U.S. 605,

610, 102 S. Ct. 2049, 2052, 72 L.Ed.2d 367 (1982) (citing Beck

, 447

U.S. at 627, 100 S. Ct. at 2384). Under B eck

, a defendant is

entitled to instruction on a lesser included offense only "if the

evidence would permit a jury rationally to find him guilty of the

lesser offense and to acquit him of the greater." I d

. at 2388

(quoting Ke eble v. United States , 412 U.S. 205, 208, 93 S. Ct.

1993, 1995, 36 L.Ed.2d 844 (1973)). S ee also Lincecum v. Collins

,

958 F.2d 1271 (5th Cir. 1992); and Cordova v. Lynaugh

, 838 F.2d 764

(5th Cir.), cert. denied

, 486 U.S. 10 61, 108 S. Ct. 2832, 100

L.Ed.2d 932 (1988). 14

The voluntary manslaughter statute, Tex. Penal Code Ann.

§ 19.04, provides in relevant part:

§ 19.04 Voluntary Manslaughter

(a) A person commits an offense if he causes

the death of an individual under circumstances

that would constitute murder under Section17 19.02 of this code, except that he caused the

death under the immediate influence of sudden

passion arising from an adequate cause.

Sudden passion is defined as "passion directly caused by and

arising out of provocation by the individual killed or another

acting with the person killed which passion arises at the time of

the offense and is not solely the result of former provocation."

Tex. Penal Code Ann. § 19.04(b). Adequate cause is defined as

"cause that would commonly produce a degree of anger, rage,

resentment, or terror in a person of ordinary temper, sufficient to

render the mind incapable of cool reflection." Tex. Penal Code

Ann. § 19.04(c).

We agree with the district court and with the state

courts that no rational jury could conclude that Cantu shot Gomez

under the inf luence of sudden passion, thereby warranting an

instruction of voluntary manslaughter. Juan Moreno, the only

witness who testified at trial as to what happened at the time of

the shooting, stated that Pedro Gomez did not fire the .38 caliber

handgun he was attempting to hand over to Cantu. Petitioner's

a ttempt to characterize police testimony as supporting his claim

that some of the bullet holes in the wall were caused by a .38

caliber gun, instead of the .22 caliber murder weapon, does not

accurately reflect what the investigating officer said. In fact,

the officer stated that he was unsure whether the bullet holes, or

slugs found at the scene, were .38 caliber. Nor has Cantu offered

a plausible explanation linking this physical evidence to his claim

that he acted in self- defense. His unsupported conjecture is15 In Lincecum , the petitioner invoked Beck to support his

claim that the trial court erred by refusing to instruct the jury

on voluntary manslaughter. Lincecum was convicted of capital

murder for killing Kathy Ann Coppedge during the course of a

kidnapping, robbery and attempted sexual assault. Evidence

adduced at trial indicated that after robbing Coppedge and

ordering her to take off her clothes, Coppedge managed to grab

Lincecum's knife and stab him in the side. On collateral appeal,

Lincecum insisted that in light of this evidence, a voluntary

manslaughter instruction was constitutionally required. In

rejecting this claim, this court noted that even assuming

Lincecum acted under sudden passion, he lacked adequate cause

because he initiated the criminal episode in which the stabbing

occurred. 958 F.2d at 1277.

18 hardly probative on the issue of whether he acted under the

immediate influence of sudden passion. S ee

, e.g.

, Hobson v. State

,

644 S.W.2d 473, 478 (Tex. Crim. App. 1983).

Yet even assuming for the sake o f argument that Cantu

acted upon sudden passion within the meaning of § 19.04(b), that

passion did not arise from an adequ ate cause as required by §

19.04(c). See Hobson

, id . It is undisputed that Cantu initiated

the criminal episode in question when he and an accomplice entered

Eusebio Moreno's house, awakened Gomez and Juan Moreno at gunpoint,

robbed them, and repeatedly shot them with a rifle at point-blank

range, killing one man and seriously wounding the other. We have

recently noted that "Texas law plainly does not consider adequate

cause to arise under these circumstances." Lincecum , 958 F.2d at

1277. 15 S ee also Penry v. State

, 691 S.W.2d 636 (Tex. Crim. App.

1985), cert. denied

, 474 U.S. 1073, 106 S. Ct. 834, 88 L.Ed.2d 805

(1986); and Goff v. State

, 681 S.W.2d 619 (Tex. App.

- - Houston

[14th Dist.] 1983), aff'd

, 720 S.W.2d 94 (Tex. Crim. App. 1986).

Because state law prevented the jury from finding tha t Cantu16 Among other things, the court noted that Moreno had

initially made a sign of recognition when first shown Cantu's

photograph. Moreno's obvious unease when shown the photo

adequately accounted for his initial uncertainty in identifying

him. Additionally, the trial court found that the in-court

identification was separate from the photo line-up and was based

on Moreno's recollection of the shooting.

19 committed vol untary manslaughter, the trial court's failure to

instruct the jury on this offense was not constitutional error.

IV.

IN-COURT IDENTIFICATION

Petitioner next takes issue with the identification

procedures used by t he San Antonio Police Department.

Specifically, h e contends that the repeated showing of his

photograph to Juan Moreno was so impermissibly suggestive as to

create a very substantial likelih ood of irreparable misidentification. S immons v. United States

, 390 U.S. 377, 384, 88 S.

Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Even unnecessarily

suggestive procedures do not automatically require suppression,

however, if the witness's identific ation is reliable under the

totality of the circumstances. M anson v. Braithwaite

, 432 U.S. 98,

114, 97 S. Ct. 2243, 2254 (1977).

During the state court proceeding s, Cantu moved to

suppress the in-court identification, arguing that Moreno had been

unfairly influenced by police officers. The trial court disagreed,

finding that the photo array containing Cantu's picture was not

unduly suggestive, nor was Moreno's identification in any way

tainted. 16 In denying the suppression motion, the court ruled that

Moreno's testimony "established that he knew who the defendant was,20

what the defendant looked like, and was able to identify him

without the aid of any photograph to assist him in his recollection

of who the person was who shot him. . . ." On direct appeal, the

Tex as Court of Criminal Appeals acknowledged that the repeated

showing of Cantu's picture during the photo arrays was suggestive.

Cantu v. State

, 738 S.W.2d 249 (Tex. Crim. Ap p. 1987). However,

that court rejected the petitioner's contention that the suggestive

procedures tainted Moreno's in-court identification so as to create

a substantial likelihood of irreparable misidentification. I d

. at

252.

Under 28 U.S.C. § 2254(b), state court factfindings are

entitled to a presumption of correctness absent one o f eight

statut ory exceptions. S umner v. Mata

, 449 U.S. 539, 101 S. Ct.

764, 66 L.Ed.2d 722 (1981). Petitioner insists that the

presumption of correctness should not be afforded here because the

state factfinding was insufficien t. According to Cantu, the

presumption does not apply because "the trial court made no factual

findings regarding the identi fication process, or the procedures

employed, but merely arrived at a legal conclusion." He

specifically faults the trial court f or failing to make explicit

factfindin gs on several issues, such as the brightness of the

lighting in the room at the time of the murde r, which he insists

should bear on whether Moreno correctly identified Cantu as his and

Gomez's assailant.

Petitioner's argument is totally without merit. That the

trial court did not make explicit fact findings on every issue does17 Petitioner emphasizes that unlike its factual findings,

the state court's legal conclusions are not entitled to the

presumption of correctness. This is undoubtedly true, and indeed

the state concedes as much. But it yields nothing more than a

hollow victory for petitioner given that the district court

applied the presumption of correctness only to the state court's

factfindings and not to its legal conclusions.

21 not mean the court "merely arrived at a legal conclusion" unworthy

o f the presumption of correctness. Both implied and explicit

factfindings fall within the ambit of § 2254(d). M arshall v.

Lonberger

, 459 U.S. 422, 433-34, 103 S. Ct. 843, 850-51, 74 L.Ed.2d

646 (1983); McCoy v. Caba na , 794 F.2d 177, 182 (5th Cir. 1986);

Armstead v. Maggio , 720 F.2d 894, 896 (5th Cir. 1983). Thus, for

instance, the state court, after weighing the evidence, found that

Juan Moreno had sufficient opportunity to view Cantu on the night

of the shooting. C antu

, 738 S.W.2d at 253. As the state correctly

observes, petitioner cannot avoid the binding effect of the state

court findings merely by referring to snippets of testimony from a

v oluminous record. "One of the purposes of § 2254(d) was to

prevent precisely this kind of parsing of trial court transcripts

to create problems on collateral review where none were seen at

trial." W ainwright v. Witt

, 469 U.S. 412, 435, 105 S. Ct. 844, 858

(1984). Because § 2254(d) is controlling here, the district court

properly relied on the presumption of correctness to reject Cantu's

challenge to the state court factual findings on the identification

issue. 1722 V.

INEFFECTIVE ASSISTANCE

Petitioner asserts that his state trial and appellate

counsel were constitutionally ineffective on several grounds. We

review a claim of ineffective assistance of counsel at a capital

sentencing trial under the familiar standards of S trickland v.

Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).

As this court has recently noted:

First, a defendant must show that "counsel's

representation fell below an object ive

standard of reasonableness," with reasonableness judged under professional norms prevailing at the time counsel rendered assistance.

Id

. at 68 8, 104 S. Ct. at 2064. This is a

standard which requires us to be "highly

deferential," as it is extremely difficult for

reviewing courts to place themselves in

counsel's position and evaluate the choices he

or she should have made. . . .

Second, "[t]he defendant must show that there

is a reasonable probability that, but for

counsel's unprofessional errors, the result of

the proceeding woul d have been different. A

reasonable probability is a probability

sufficient to undermine confidence in the

outcome." Id . at 694, 104 S. Ct. at 2068. A

court evaluating a claim of ineffective

assistance need not address the reasonableness

component f irst, and if a defendant fails on

one part, it need not address the other. Id

. at 697, 104 S. Ct. at 2069.

Black , 1992 WL 107848 at *5.

First, Cantu insists that his trial counsel erred during

the guilt-innocence phase of the trial by failing to secure the

services of an expe rt witness to contest the testimony of

eyewitness Juan Moreno. According to Cantu, because no expert

witness testified, "the jury was deprived of a way to intelligently18 Moreover, even had Cantu's counsel proffered an expert

witness to testify on this issue, the trial court would have had

discretion whether to admit such testimony. Pierce v. State , 777

S.W.2d 399, 414-16 (Tex. Crim. App. 1989), cert. denied

, Pierce

v. Texas , 496 U.S. 912, 110 S. Ct. 2603, 110 L.Ed.2d 283 (1990).

The Texas rule is also consistent with federal practice. In

Moore , we held that the decision whether to admit expert

testimony "is squarely within the discretion of the trial judge,"

adding that "there is no federal authority for the proposition

that such testimony must be admitted." 706 F.2d at 1312-13

(emphasis added).

19 Compare Bouchillon v. Collins , 907 F.2d 589, 597-98

(5th Cir. 1990) (Where defendant apprised his counsel of mental

problems prior to plea hearing, counsel's failure to perform any

23 evaluate the testimony of Juan Moreno." This argument is specious.

While petitioner is correct that the admission of expert testimony

regarding eyewitness identifications is proper, see

, e.g.

, United

States v. Moore , 786 F.2d 1308, 1312-13 (5th Cir. 1986), he cites

no authority to support the theory that his trial counsel was

required to call an expert witness to challenge Moreno's testimony.

Indeed, Cantu's trial counsel testified at the evidentiary hearing

that he considered seeking the services of an expert witness on the

issue of eye-witness identification but decided against it based on

his belief that his cross-examination of Moreno would be sufficient

to refute the accuracy of the identification. 18

Petitioner next contends that his trial counsel wa s

ineffective during the punishment phase. Counsel, he maintains,

acted unprofe ssionally by failing to present evidence of Cantu's

"low IQ, emotional immaturity, troubled youth, trauma as a result

of his parents' divorce, and appearance of neglect." While counsel

did not seek a psychiatric examination, nothing at the time of

trial indicated that Cantu was insane when the offense occurred. 19investigation whatsoever for a possible insanity defense violated

Strickland ); and Profitt v. Waldron , 831 F.2d 1245, 1248-49 (5th

Cir. 1987) (counsel's failure to present an insanity defense,

despite his knowledge that defendant had been previously

adjudicated insane and had escaped from a mental institution at

the time he committed the crime, held unreasonable).

24 Moreover, Cantu's assertion that he was denied effective assistance

of counsel by his attorney's failure to introduce evidence that he

appeared to be a child who was either neglected or abandoned is

specious. The evidence does not indicate that the petitioner was

neglected or abandoned. At best, it shows he might have felt

rejected and abandoned, which was assertedly manifested by the fact

that he sometimes watched television until the early hours of the

morning and engaged in fantasy. There is likewise no merit to

petitioner's claim to have been traumatized by his parents' divorce

or by his family's socio-economic background. Cantu's counsel

thoroughly investigated these claims, consulting with his client as

well as Cantu's father and brother for possible mit igating

evid ence. Counsel ultimately decided not to introduce this

information because of his concern that the state would use it

against his client. Introducing the testimony of family members

would have allowed th e state to cross-examine them about Cantu's

reputation in the community, including both his membership in the

Grey Eagles and his personal notoriety for theft, violence and drug

use. Counsel was not incompetent in his approach to mitigating

evidence.

Cantu also challenges his appellate counsel's

representation as constitutionally deficient. Both the issues he25

faults appellate counsel for failing to raise

-- a challenge to the

constitutionality of the Texas Sentencin g Statute and the trial

court's refusal to charge the jury on the lesser included offense

of voluntary manslaughter

-- were raised and consid ered both on

state habeas and in the present federal proceedings and were

determined to be meritless. Because appellate counsel's

effectiveness is judged by the same standard as that of trial

counsel, see Sharp v. Puckett , 930 F.2d 450, 452 (5th Cir. 1991),

petitioner's assertion, which fails even to allege that he was

prejudiced by appellate counsel's performance, is frivolous.

VI.

LIMITATIONS ON PETITIONER'S TESTIMONY

DURING THE PUNISHMENT PHASE

Petitioner did not testify at the guilt-innocence phase

of his trial. However, his counsel attempted to call him as a

witness during the punishment phase so that Cantu could testify on

the limited issue of whether he shot Officer De La Luz in selfdefense. The trial court refused to allow petitioner to testify on

such a limited basis, ruling that if Cantu took the stand, he would

be subject to cross-examination the same as any other witness.

Petitioner then chose not to testify and offered a bill of

exception, out of the presence of the jury, in which he testified

that he shot Officer De La Luz in self-defense.

Petitioner now contends that the trial court's decision

impermissibly chilled his right to present mitigating evidence.

Specificall y, petitioner challenges the Texas requirement that a

defendant who testifies only at the punishment phase of the trial,20 Cantu has never suggested that his testimony in the

punishment phase would have admitted guilt.

26 and who admits guilt during such testimony, 20 wa ives the right to

challenge the sufficiency of the evidence as to guilt and waives

any evidentiary objections made during the guilt-innocence phase.

See

, e.g.

, Brown v. State

, 617 S.W.2d 234, 236 (Tex . Crim. App.

1981) ( en banc ). According to petitioner,

Mr. Cantu was faced with a Hobson's choice at

the punishment phase of his trial. Mr. Cantu

could, on the one hand, testify at the

punishment phase and risk waiving his

substantial appellate issues as to the

sufficiency of the evidence and the legality

of the in-court identification; or, as he

chose to do, allow the jury to impose sentence

without the benefit of his ve rsion of the De

La Luz shooting. . . .

Because of Texas' peculiar procedural rule,

Mr. Cantu 's constitutionally protected right

to present miti gating evidence in favor of a

sentence less than death was unconstitutionally chilled.

The state argues that Cantu has waived this argument because it is

raised for the first time on appeal, and we agree. See Buxton v.

Collins

, 879 F.2d 140, 148 (5th Cir. 1989), cert. denied

,

____ U.S.

____, 110 S. Ct. 3295, 111 L.Ed.2d 803 (1990) ( Penry claim may not

be considered for the first time on appeal). In the alternative,

petitioner is asking this court to announce and apply retroactively

on collateral review what amounts to a new rule of constitutional

law, a request foreclosed by Teague v. Lane , 489 U.S. 288, 109 S.21 While petitioner has not briefed the Teague issue, we

agree with the state that none of the Teague exceptions apply

here.

27 Ct. 1060d, 103 L.Ed.2d 334 (1989). 2 1 We decline to review this

issue.

VII.

CONCLUSION

For the foregoing reasons, the judgment of the district

court denying habeas relief is AFFIRMED

.