1 Penry v. Lynaugh (Penry I), 492 U.S. 302, 109 S. Ct. 2934 (1989);

Penry v. Johnson (Penry II), 532 U.S. 782, 121 S. Ct. 1910 (2001); Tennard v.

Dretke, 542 U.S. 274, 124 S. Ct. 2562 (2004); see also Smith v. Cockrell, 311

F.3d 661 (2002).

United States Court of Appeals

Fifth Circuit

FILED

July 13, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 03-11097

______________________

FERNANDO GARCIA,

Petitioner - Appellant,

versus

NATHANIEL QUARTERMAN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent - Appellee.

Appeal from the United States District Court

For the Northern District of Texas

Before JONES, Chief Judge, and BENAVIDES and CLEMENT, Circuit

Judges.

EDITH H. JONES, Chief Judge:

This appeal raises questions concerning whether a

petitioner is entitled to a new sentencing hearing for capital

murder based on the Supreme Court’s Penry line of cases,1 whose

purpose is to afford effective jury consideration of evidence

mitigating a defendant’s moral culpability. The district court

granted COA on this sole issue, after rejecting the others
2 This account of the facts is derived primarily from the decision of

the Texas Court of Criminal Appeals, Garcia v. State, 887 S.W.2d 846 (Tex. Crim.

App. 1994).

3 Rodriguez and her two children lived with Barbosa at the time of the

crime. Barbosa’s parents actually owned the house, but there was no question

that Barbosa had lived there his entire life and exercised present control of the

property at the relevant time.

2

petitioner raised. After careful review, we conclude that Garcia

has failed to meet the standards governing habeas relief under

AEDPA.

I. Background

Around 2:00 a.m. on Sunday, August 30, 1987, Debbie

Rodriguez (“Rodriguez”) returned from an evening out with friends

to discover her three-year old daughter, Veronica, missing.2 After

Ms. Rodriguez and her fiancee, Martin Barbosa (“Barbosa”),3 could

not find the young girl inside the house, they went to the garage

apartment behind the house and asked Fernando Garcia (“Garcia”),

who was renting the apartment from Barbosa, whether he had seen

Veronica. Garcia replied that he had not seen the girl and offered

to help search for her. As the three left the area to move back

toward the house, Garcia padlocked the apartment behind them.

Ultimately, the police were called.

Officer Patrick Burke of the Dallas Police Department was

dispatched to the residence around 11:20 a.m. to investigate

Veronica’s disappearance. When Officer Burke arrived, he spoke to

Rodriguez and Barbosa. He saw Garcia standing on the porch of the

residence with two other men and, shortly thereafter, noticed
3

Garcia walk off in an easterly direction. Burke conducted a walkthrough search of the house and then went to a nearby store to call

his superiors. Because the case involved a child under ten years

of age, the department would assign an officer to the case until

Veronica was found.

Sometime between 1:30 and 2:00 p.m., Royce Dickey, a

youth investigator, arrived at the scene. By the time Dickey

arrived, Officer Burke had conducted a thorough search of the house

and canvassed the neighborhood, but still had not found the missing

child. After discussing the status of the investigation, the

officers expressed a need to look in the garage behind the house to

determine whether Veronica might have entered the structure and

hurt herself. Barbosa explained to the officers that he owned both

the house and the garage, and that he had an agreement with Garcia

that he could enter the garage whenever he wanted because he kept

some of his own property there. Barbosa then consented to the

officers’ search of the garage. However, when he went to unlock

the garage door, Barbosa discovered that his key did not fit the

padlock Garcia had placed on it earlier that morning. Barbosa then

broke the door open. The officers conducted a cursory search of

the garage. After this initial search, the officers and Barbosa

found nothing, so they exited the garage and continued the search

elsewhere.

The next morning, Monday, August 31, Investigator Dickey

returned to the residence and asked Barbosa if he could again
4 In the Texas Court of Criminal Appeals, Garcia argued, inter alia,

that the Texas death penalty jury instructions were inadequate to afford him a

meaningful opportunity to give effect to his proffered mitigating evidence.

Garcia v. Texas, 887 S.W.2d at 860-61. The Texas Court of Criminal Appeals

upheld his conviction in light of a supplemental jury instruction similar to that

given and rejected by the Supreme Court in Penry II, 532 U.S. at 802-04, 121 S.

Ct. at 1923-24.

On state habeas review, Garcia argued instead that the supplemental

instruction is constitutionally infirm, a contention rejected on grounds of

procedural bar and then-binding precedent. Penry II later vindicated Garcia’s

contention.

4

search the garage. Barbosa again consented. The garage had

remained open since the previous day when Barbosa had broken the

lock. Garcia had not been seen since the previous day, when he had

supposedly promised Barbosa and Rodriguez to aid in the search.

When Investigator Dickey opened the garage door to initiate a

second search, he immediately detected the odor of a dead body.

Upon further investigation, Dickey found the body of young Veronica

wrapped in a blanket under Garcia’s bed next to a wall of the

garage. She had been brutally sexually assaulted, bitten twelve

times, severely beaten with blunt force to the head, and strangled.

Garcia was arrested and charged with capital murder. A

Texas jury convicted him and recommended a sentence of death on

December 8, 1989. The state trial court imposed this sentence

pursuant to Texas law. After exhausting his state court remedies,4

Garcia filed the instant petition for habeas corpus, which the

district court denied. The district court granted a COA on

Garcia’s Penry claim.

II. Discussion

A. Standard of Review
5

The district court granted Garcia a COA on a single

issue: whether the trial court violated Garcia’s Eighth and

Fourteenth Amendment rights by charging the jury with a

“nullification” instruction which failed to give effect to his

mitigating evidence. As this court has recently stated, to obtain

relief Garcia must demonstrate: (1) that his mitigating evidence

had relevance beyond the special issues, and (2) that his

mitigating evidence was beyond the reach of the jury. See Bigby v.

Dretke, 402 F.3d 551, 564-65 (5th Cir. 2005)(reformulating this

circuit’s Penry I test in light of Tennard v. Dretke, 542 U.S. 274,

124 S. Ct. 2562 (2004)).

As Garcia filed his petition for federal habeas relief

after April 24, 1996, the Antiterrorism and Effective Death Penalty

Act (“AEDPA”) governs this appeal. Under AEDPA,

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim - (1) resulted in a

decision that was contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States . . . .

28 U.S.C. § 2254(d). The Supreme Court has explained that a state

court decision is “contrary to” federal law where the state court

applies a rule that “contradicts the governing law set forth [in

Supreme Court precedent];” a state court decision will also be

contrary to federal law where, confronting facts that are

“materially indistinguishable” from those in controlling Supreme
6

Court precedent, the state court nevertheless reaches an opposite

result. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S. Ct. 1495,

1519-20 (2000). A state court is said to have made an

“unreasonable application” of federal law where it identifies “the

correct governing legal principle from [the Supreme Court] but

unreasonably applies that principle to the facts of the prisoner’s

case.” Id. at 413, 120 S. Ct. at 1523.

However, the fact that a habeas court would have reached

a different conclusion than did the state court is insufficient to

merit habeas relief. Woodford v. Visciotti, 537 U.S. 19, 27, 123

S. Ct. 357, 361 (2002). The Court in Williams was careful to note

that “an unreasonable application of federal law is different from

an incorrect application of federal law,” and as such, the state

court’s application of federal law must be “objectively

unreasonable,” as opposed to merely incorrect, for habeas relief to

be granted. Williams, 529 U.S. at 409-10, 120 S. Ct. at 1521-22

(emphasis in original); see also Penry v. Johnson (Penry II), 532

U.S. 782, 793, 121 S. Ct. 1910, 1919 (2001). Notwithstanding

erroneous reasoning of state courts, we review the reasonableness

of their ultimate decision. Neal v. Puckett, 286 F.3d 230, 236

(5th Cir. 2002)(en banc), cert. denied, 537 U.S. 1104, 123 S. Ct.

963 (2003).

B. Amenability of Garcia’s Mitigating Evidence to Jury

Consideration
7

The issue Garcia poses is whether his sentencing violated

the Supreme Court’s Penry line of cases, which have focused on the

inability of the former Texas death penalty issues to allow the

jury adequately to consider and give effect to certain mitigation

evidence at sentencing. Garcia’s evidence may be divided into

several categories: (a) childhood sexual abuse and bizarre

upbringing, (b) pedophilic condition, and (c) drug and alcohol

abuse. To put this evidence in perspective, the State’s evidence,

as well as Garcia’s response to the State’s case, is relevant.

During the punishment phase, the State focused on the

facts of the grisly crime and Garcia’s criminal history. First,

the State put forward evidence relating to Garcia’s previous

conviction for sexual abuse of a child, which he committed on

May 5, 1981. The victim was Diana Estrada, the five-year old

daughter of a woman Garcia was living with at the time, Rose Maria

Estrada. One afternoon, Diana’s brother asked a neighbor, Estella

Rangel, to come by Garcia’s apartment to check on the young girl.

Rangel soon noticed that little Diana had “a lump as big as an egg

. . . between her private part and her rectum.” 20 RR 2734. When

Garcia arrived home and realized what was happening, he threatened

Rangel. Rangel notified child welfare. Thereafter, whenever

Garcia would see Rangel, he would call her a snitch.

Caseworkers from the Texas Department of Human Services

(“DHS”) investigated the case. After a full investigation, DHS

concluded that Garcia had fondled Diana and forced her to perform
5 The State introduced this evidence through the testimony of Esther

Diaz and Mel Villareal of the DHS, as well as through the testimony of the

individuals involved, Diana Estrada, Rosa Marie Estrada, and Roland Esquivel.

8

oral sodomy on him. Additionally, Garcia physically abused Diana,

her mother, and her then-eight-year old brother, Roland Esquivel.5

When questioned during the investigation, Garcia denied any sexual

or physical abuse, even after Diana confirmed the allegations.

Garcia characterized the allegations as “a big joke” and

“ludicrous.” Garcia invoked a religious transformation to bolster

his denial: He explained to DHS personnel that he was a born-again

Christian. While continuing to assert his innocence, Garcia

ultimately agreed to leave the home. However, follow-up visits by

DHS indicated that he was still living in the apartment, and Garcia

proved evasive when questioned about the exact whereabouts of his

new residence.

Against the recommendation of the probation officer,

Garcia was originally sentenced to probation for these crimes

beginning April 16, 1982. The probation officer’s notes and presentence report are prescient. During his interview, Garcia

admitted engaging in the lewd acts, but claimed that “he was drunk

. . . and did not realize what he was doing.” 21 RR 2777.

Probation was not recommended because the offense was heinous,

Garcia (apparently convinced his voluntary intoxication negated his

acts) continued to deny any wrongdoing, and his “prognosis for

rehabilitation is extremely guarded to poor.” Id. at 2780.
6 The State reduced the charge to simple burglary in exchange for

Garcia’s guilty plea. Garcia’s parole for the conviction for sexual abuse of a

child was revoked on these grounds.

7 Garcia had committed numerous other violations of the rules of his

parole. Garcia failed to submit monthly reports in April, May, July, and August

1987; he further failed to report public intoxication offenses committed March 8,

1987, and July 17, 1987.

9

On March 7, 1983, Garcia was paroled. Less than two

months later, Garcia was charged with another sexual offense. In

the early morning hours of April 28, Garcia broke into the

apartment of George Merenue. Merenue’s girlfriend, who was asleep,

was awakened by someone pulling at her shorts and fondling her.

Garcia tried to push her onto her back, but ran away when she fully

awoke. For these acts, Garcia was charged with the offense of

burglary of a habitation with the intent to commit sexual assault.6

He was sentenced to ten years in prison, then paroled after serving

only three years. He absconded from the halfway house to which he

had been assigned.7 Within a year, Garcia committed the horrific

crime underlying the instant case.

In addition to his prior crimes, the State introduced the

testimony of Dr. Betty Schroeder. She had evaluated Garcia in 1981

at the request of the Bexar County Probation Office. Garcia

initially denied all of the child abuse charges and claimed the DHS

investigators “had brainwashed the child into making various

accusations, . . . had actually coached the child into saying that

he had sexually abused her.” 21 RR 2770. When she asked Garcia

about his background, he indicated that he had been adopted at
10

birth and never really knew his natural father. Additionally,

Garcia told Dr. Schroeder that he had dropped out of high school in

the tenth grade. Schroeder testified that Garcia’s “academic

abilities were somewhat diminished” but confirmed that he had above

normal intelligence and an IQ of 110. Garcia told Schroeder that

he had smoked marijuana and sniffed spray paint in the past, but he

denied having used either for six months before November 1981.

Schroeder testified that Garcia’s prior drug use “strongly

suggested some addictive propensities.” Id. at 2787.

Dr. Schroeder further testified that Garcia was a

pedophile. She defined “pedophile” as “an individual who resolves

his sexual excitation, his urges for sex mainly through the use of

small children, fondling to actual sexual intercourse.” 21 RR

2792. Schroeder characterized Garcia’s likelihood for rehabilitation as:

extremely guarded to poor. . . . Individuals who are

pedophiles, in fact, any kind of a psychiatric/

psychological pathology that emerges from the basic human

primary drives such as the drive to eat, drink, have sex,

. . . are very, very resistant to change. Even the best

of psychotherapists, behaviorists, all the range of

individuals find it very difficult to penetrate and aid

the individual dealing with this kind of pathology.

21 RR 2791. Dr. Schroeder added that even within the confines of

prison, secreted away from children, Garcia would express his

pedophilic urges through “fighting, viciousness, anger,

depression.” Id. at 2805. According to Dr. Schroeder, pedophiles
11

tend to “grow more violent, more heinous as time goes on.” Id. at

2792.

It is critical to focus on the facts, arguments, and

mitigation theory Garcia actually made to the jury before we

address his new arguments in federal court. Garcia’s mitigation

effort began with the cross-examination of Dr. Schroeder. On

cross, she testified that Garcia “did not have the usual nurturing

[from his parents] that one would hope that a young child would

have and did not have the kind of encouragement toward formal

education.” 21 RR 2794. She “hypothesized” this aspect of

Garcia’s upbringing based on her experience that “[o]ften times

individuals such as this have also been sexually abused as children

or had a great deal of abnormality in that area in their rearing.”

Id. at 2795. Concerning his progression in school, she conceded

that Garcia most likely reached the tenth grade only because of

social promotion. Defense counsel also elicited testimony

amplifying Garcia’s substance abuse, as well as Schroeder’s opinion

that she had observed erratic and psychotic behavior in teenagers

who abused drugs or alcohol. Schroeder also testified that she was

more optimistic that a substance-abusing pedophile could be

rehabilitated than a pedophile who acts out without being

intoxicated because it is possible that once the substance abuse is

controlled, the pedophile may not act on his urges. Finally,

Dr. Schroeder opined that in light of Garcia’s past behavior in
12

prison, he would likely conform to the prison environment and would

not present a future danger to prison society.

At the beginning of its penalty phase case-in-chief, the

defense recalled Estella Rangel. She testified that she first knew

Garcia when he began living with Rosa Estrada. Rangel described

seeing Garcia cross-dressing on several occasions in 1979; when he

dressed in this manner, Garcia would get into a waiting car where

he and the driver (also a man) would kiss. Rangel further

testified that she had seen Garcia sniffing paint more than once.

Rangel stated that she had seen Garcia sniff paint on at least one

occasion immediately before he abused Rosa’s daughter. Rangel also

cited Garcia’s paint-sniffing habit as one of the reasons she was

afraid of intervening in his abuse of Diane Estrada, which Rangel

had witnessed on several occasions.

Garcia also called Dr. Robert Powitzky, a clinical

psychologist specializing in sexual abuse. Like Dr. Schroeder,

Dr. Powitzky diagnosed Garcia as a pedophile. However,

Dr. Powitzky had a much lengthier, and in fact much different,

account of Garcia’s family history. His most pertinent testimony

is as follows:

[Garcia] was abandoned by his mother to be adopted by his

grandmother. They . . . didn’t really abuse him, but

pretty well neglected him and pretty well ignored him and

also exposed him to some witchcraft and other kinds of

bizarre . . . experiences.

When his mother would come to visit him, she would

take him away. As far back as he could remember, on

occasion she would come back and would get herself and
13

him and her boyfriend intoxicated, and they would all

have sex together. First it started with him just being

in the bed while they were having sex, and graduated to

where they all were sexual together.

And he was forced to perform oral sex at the age of

five on his older brother’s friend, forced by his older

brother at the age of six to perform oral sex. Abused

. . . at the age of eight by a 14 year old cousin, a

female cousin, who had him perform oral sex on her.

Third grade was taken for a few weekends by a nun that

ostensibly convinced the grandmother that she wanted to

help him with confirmation class. And . . . she sexually

abused him for a couple of weekends.

Dr. Powitzky conceded that he could not verify any of this

information. However, he testified that male victims of sexual

abuse tend to respond by acting out, reclaiming a sense of power

after the “total helplessness of being sexually abused by someone

. . . trusted and loved as a child.” Id. at 2867. Feelings of

rage and confusion as to sexual identity are also common in child

sex abuse victims.

Dr. Powitzky then testified that Garcia would be a danger

to free society because he would again resort to substance abuse

and engage in further child abuse. However, Powitzky also asserted

that Garcia would not be a danger to prison society. Garcia’s

prior positive disciplinary record in prison, coupled with the

sobriety required of prisoners, would result in Garcia’s being

“much, much less of a danger to anybody.” Moreover, Dr. Powitzky

asserted that, in his experience, pedophiles tend to be passive,

well-behaved inmates, and that, if anything, Garcia himself would

be the target of abuse while incarcerated. When asked if Garcia

would be likely to abuse “a fresh faced 18 year old boy that looks
8 Absent from Garcia’s case is any evidence of organic brain damage,

mental retardation, or diminished mental capacity. Garcia’s expert,

Dr. Powitzky, admitted that he had found no evidence of organic brain disease,

brain syndrome, mental illness or psychosis beyond “mild depression” and Garcia’s

“personality disorder,” pedophilia. 21 RR 2875.

9 Elsewhere, Garcia preserved claims that his substance abuse and good

character during incarceration are mitigating. Case law concludes, however, that

contrary to Garcia’s view, these two types of evidence may be fully accounted

for under the Texas sentencing scheme. See Franklin v. Lynaugh, 487 U.S. 164,

177-79, 108 S. Ct. 2320, 2329-30 (1988) (evidence of good character during

incarceration encompassed by Texas sentencing scheme); Brewer v. Dretke, __ F.3d

__ , No. 04-70034, 2006 WL 477142 (5th Cir. Mar. 1,2006)(evidence pertaining to

substance abuse encompassed by Texas sentencing scheme); Harris v. Cockrell, 313

F.3d 238, 242 (5th Cir. 2002)(same), cert. denied, 540 U.S. 1218, 124 S. Ct. 1503

(2004).

14

like he’s about 10” if such an inmate were placed in a cell with

him, Dr. Powitzky said no, contending that Garcia’s preferred

victims were young girls. This was Garcia’s case for mitigation.8

Not a single family member or anyone else took the stand to plead

for his life.

As previously noted, several types of actual or alleged

mitigating evidence are deducible from the trial record. Garcia

focuses in this court on the argument that his pedophilia should be

treated as mitigating, and in a footnote he “by no means concedes”

that his history of childhood physical and sexual abuse, neglect

and bizarre upbringing could adequately be considered by the jury

under the Texas special issues.9

Although evidence that a defendant was a victim of

childhood abuse may constitute mitigating evidence, it was not so

used here. At trial and before this court, Garcia’s child abuse

evidence and argument have been entirely bound up in his contention

that pedophilia should be treated as a “mitigating circumstance.”
15

We disagree, for two reasons. First, defense counsel neither

presented evidence of Garcia’s child abuse for its mitigating

effect nor sought sympathy at trial based on Garcia’s upbringing.

Second, being a pedophile is inherently not mitigating of moral

culpability.

With respect to the alleged independent mitigating effect

of Garcia’s childhood sexual abuse, this court can only review the

case that his counsel presented to the jury at trial, not the case

as Garcia recharacterizes it nearly twenty years later. At trial,

Garcia’s own expert testified that he is an irremediable pedophile

and, as such, a clear future danger in free society. Faced with

that reality as well as Garcia’s criminal record of pedophilia, the

defense counsel sensibly urged the jury not to give Garcia sympathy

because of his background:

I ask for no sympathy for Fernando Garcia. Fernando lost

all right to our sympathy when he went from being a

victim to a predator. When Fernando crossed that line,

I don’t know. It’s nowhere in the evidence. Two

psychologists can’t tell you, but he crossed that line.

We unfortunately, as lawyers, cannot bring you evidence

as to when that line was crossed.

These statements effectively tell the jury not to give any

independent mitigating effect to evidence of Garcia’s childhood

abuse and neglect. The evidence of his background is presented to

the jury only as an explanation for his adult pedophilia. Counsel

essentially argued that Garcia’s childhood abuse led to his

pedophilia, which in turn precipitated his assault, rape, and

murder of Veronica Rodriguez to such an extent that his act was not
16

sufficiently “deliberate” to warrant the death penalty. The

defense strategy was to focus on expert testimony that pedophiles

do not act with the requisite deliberateness and pose no danger to

prison society.

While the Supreme Court has made clear that jurors must

not be denied, by any acts of the State — in the death penalty laws

or in their implementation through jury instructions — the ability

to give effect to mitigating evidence, the Court’s rulings do not

affect a defendant’s trial strategy. No question of constitutional

error by the State is raised where, as here, Garcia’s evidence of

childhood abuse is taken on the terms in which his counsel offered

it — as an explanation, but not in extenuation of his crimes.

Contrary to the explanation offered by the dissent, the defense

counsel’s characterization of Garcia as a “predator” and specific

request for “no sympathy” do not invite the jury to apportion moral

responsibility to persons other than the defendant. Rather, with

these statements, defense counsel did just what Garcia contends the

special issues do — removed the abuse evidence from the scope of

the jury’s mitigation considerations.

It may be argued that counsel’s above-quoted statements

are a mere “rhetorical flourish,” part of a peroration culminating

in his urging the jury to spare Garcia’s life as an act of justice,
10 Garcia’s counsel went on with this theme very briefly:

We cannot bring you Fernando’s father to tell you that my only

fatherly act began at conception and ended at conception. We cannot

bring you his mother whose only motherly love was ended at birth.

What do we have? What is the sum total we can bring you about this

man? We can bring you two pathetically short records from San

Antonio, the sum total of Fernando’s academic achievements. We can

bring you some records from the Texas Department of Corrections. We

can bring you medical records from Maine regarding a suicide

attempt. We do not have the luxury of having any exhibits showing

when Fernando was victimized. When did the neglect, the abuse, the

indifference, the poverty and the hate turn Fernando Garcia from a

victim to a predator? Only you can answer that in your verdict.

21 RR 2920-21.

11 For that matter, Dr. Powitzky’s testimony about Garcia’s sexual abuse

is (a) based solely on Garcia’s history as related to the doctor and (b) the only

evidence that Garcia was sexually abused as a child. There is no corroboration

from family members or friends in the record.

17

not sympathy.10 As such, it would be contended, the statements

should not constrain Garcia’s argument to this court. We disagree.

It is elemental to orderly legal procedure that an appellate court

review the case as presented in the trial court. The record is

clear, and the above-quoted references use Garcia’s childhood

problems only to explain his transformation into a “predator.”11

No doubt counsel chose not to seek mitigation from the evidence of

Garcia’s childhood because a jury would inevitably draw comparisons

with what Garcia had inflicted on other children. As a result, we

reject the contention, offered by the dissent, that the reason for

the defense counsel’s trial strategy was the constraint imposed by

the Texas special issues. At the time the case was argued, Garcia

had the benefit of a nullification instruction. Even though this

type of instruction was later found to be unconstitutional, it
18

still provided the defense counsel with a reason to argue

mitigation beyond the special issues.

The second error in Garcia’s argument is the suggestion

that pedophilia may be considered “mitigating” of a defendant’s

moral culpability. No case has so held. While it may be true that

Garcia’s condition arose in part from his abnormal childhood, and

that the condition is both permanent and involuntary, pedophilia is

unlike any other personal characteristic that courts have held to

be potentially mitigating. Other personal characteristics, e.g.,

mental illness, retardation, addiction, or certain personality

disorders, may suggest that a defendant is himself arguably both a

victim and not fully morally responsible for his actions. Such

characteristics have no intrinsic negative component; they may

limit a person’s potential without necessarily causing harm to

society. Pedophilia of the type exhibited by Garcia, however, is

manifest only in his victimization of others for his personal,

perverted gratification. See, e.g., Kansas v. Hendricks, 521 U.S.

346, 375-77, 117 S. Ct. 2072, 2080, 2088-89 (1997)(Breyer, J.,

dissenting) (acknowledging pedophilia as a serious mental disorder

or abnormality that can render a person dangerous to others).

There is no sense in which reasonable people could view Garcia’s

pedophilia as morally mitigating of guilt, any more than reasonable

people would find a defendant’s uncontrollable compulsion to commit

incest or eat human flesh “mitigating.” Garcia’s argument, in
12 We do not understand Judge Benavides to disagree with our conclusion

that Garcia’s pedophilia is not morally mitigating.

13 Based on these conclusions, the ultimate decision of the state court

falls far short of meeting the “objectively unreasonable” requirement for the

issuance of a writ of habeas corpus under 28 U.S.C. § 2254(d), regardless of

whether the court’s reasoning was at times incorrect. We therefore need not

discuss the (likely) infirmity of the special “nullification” instruction given

the jury or the State’s contention that there is no reasonable likelihood, on

this record, that the jury unconstitutionally applied the jury instructions. See

Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 1197-98 (1990).

19

short, represents a novel and illogical extension of the Supreme

Court’s Penry cases, which we reject.12

III. Conclusion

Our principal conclusions are that, on the record, Garcia

cannot seek mitigating treatment for his childhood abuse because he

did not do so before the jury, and he cannot advocate that his

pedophilia, as represented in his criminal record and expert

testimony, was in any way mitigating.13 His other forms of

mitigating evidence were clearly cognizable by the jury in the

context of the special punishment issues. We respectfully disagree

with the dissent’s position that any evidence of childhood abuse

must be considered under Penry regardless of the context in which

it was offered at trial. We are presented here with a situation in

which the defense counsel’s theory was that the evidence should be

considered for its relevance under the deliberateness special issue

and not for additional mitigating effect. On habeas review, the

petitioner argues that the special issues limited the jury’s

ability to give mitigating effect to the evidence, but it was the

defense counsel’s theory that imposed the limits on the jury.
20

Because the jury was able to give effect to the evidence as

presented, there is no Penry violation. Our holding is a narrow

one, specific to the facts of this case where defense counsel did

not present the evidence for its mitigating effect and instead

expressly asked the jury not to sympathize with Garcia. Contrary

to the dissent’s somewhat hyperbolic suggestions, we do not hold

that relevant mitigating evidence should be ignored, nor that a

mitigation theory is even required. We do, however, believe we are

required to review the case that was actually presented to the

jury. We fail to understand how the dissent extrapolates from our

holding that defense counsel must argue jury nullification in order

to preserve Penry error. We also reject any comparisons to a

procedural default claim since the issue is not whether or not

Garcia has raised a Penry claim but whether or not the evidence was

advanced for its mitigating effect.

In sum, the decisions of the state courts are not

vulnerable under AEDPA’s demanding tests. The judgment of the

district court denying habeas relief is AFFIRMED.
BENAVIDES, Circuit Judge, dissenting:

I respectfully dissent from the majority’s decision because it

mischaracterizes the record and contravenes Supreme Court

precedent. Fernando Garcia presented evidence at the sentencing

phase of his capital trial that he suffered severe and frequent

sexual abuse before the age of ten. Texas law, however, did not

permit the jury to give proper effect to this mitigating evidence

in deciding between life and death. The majority nonetheless

concludes that no Eighth Amendment violation occurred. It reasons

that Garcia is now estopped from using the abuse evidence in

mitigation because his trial lawyer did not explicitly demand that

the jurors disregard Texas law and violate their oaths. 

To put the majority’s decision in perspective, I offer the

following chronology: (1) Texas law did not allow the jury to

consider abuse mitigation; (2) Garcia vigorously objected that this

was unconstitutional under Penry and requested an additional

special issue; (3) the trial judge rejected Garcia’s objection on

the record; (4) Garcia, having preserved his Penry objection,

attempted (unsuccessfully) to mold his summation to comply with the

judge’s order and with Texas law; (5) Garcia maintained his Penry

claim throughout direct and collateral review; (6) Garcia is now

precluded from complaining under Penry. Before exploring the flaws

in the majority’s holding, I will explain why Garcia is entitled to

relief under a proper Penry analysis.
1 Although Garcia’s history of abuse mitigates, I agree with the

majority that Garcia’s evidence that he suffered from a pedophilic personality

disorder does not meet even the low threshold of relevance set by Tennard II.

In my view, instances of pedophilic abuse that Garcia himself suffered as a

victim mitigate independently from his alleged pedophilic personality disorder.

22

1. The “Proper Legal Analysis” Under Penry

When considering Penry claims, “the proper legal

analysis . . . is for the court to answer two questions: (1)

whether the defendant’s evidence held relevance to the jury’s

capital deliberations; and if so, (2) whether, the jury was able to

give constitutionally-sufficient mitigating effect to that

evidence.” Tennard v. Dretke, 442 F.3d 240, 257 (5th Cir. 2006)

(“Tennard III”). If the Court answers “yes” on the first prong and

“no” on the second, then Supreme Court precedent requires habeas

relief. See id.

a. Garcia Presented Relevant Mitigating Evidence

The State correctly concedes, “There is no question as to the

relevancy of Garcia’s mitigating evidence.” (Dretke Suppl. Br.

2.)1 Dr. Powitzky testified that Garcia was repeatedly drugged by

his mother at a young age so he would have sex with her and her

boyfriend; forced to perform oral sex at the age of five on a

friend of his brother’s and at six on his brother; forced to

perform oral sex at the age of eight on a fourteen-year-old female

cousin; and sexually abused in the third grade by a nun who was

supposed to be providing him with spiritual guidance. Penry v.

Lynaugh (“Penry I”) establishes that evidence of this kind properly
2 The majority incorrectly suggests that Garcia may not have fully

asserted an argument in this Court based on his history of abuse. See Supra p.

15 (Maj. Op.) (stating that Garcia’s abuse argument was limited to a footnote).

On the contrary, Garcia made an argument based on his abuse in the main text of

at least four different documents submitted to this Court. (Garcia Br. 6–7 & 29

(describing in detail Garcia’s history of abuse and arguing that “evidence of

. . . his childhood neglect and abuse fell outside the scope of the submitted

punishment issues, and therefore required an adequate mechanism—one other than

a nullification instruction—in order to permit each juror to give the evidence

particularized consideration and effect”)); (Garcia Reply Br. 14); (Garcia Suppl.

Br. at 9–12); (Garcia Letter-Brief 3). 

23

mitigates. See 492 U.S. 302 (1989); see also supra p. 15 (Maj.

Op.) (“[E]vidence that a defendant was a victim of childhood abuse

may constitute mitigating evidence . . . .”). The Supreme Court’s

decision in Tennard clarified that general relevance is all that is

required. See Tennard v. Dretke, 542 U.S. 274, 283–84 (2004)

(“Tennard II”).

b. The Jury Could Not Give Sufficient Effect to Garcia’s

Mitigating Evidence of Child Abuse

i. The Texas Special Issues Were Inadequate

I now turn to the second prong of the Tennard III test.

Supreme Court precedent conclusively refutes the State’s position

that Garcia’s evidence of childhood abuse could be given

constitutionally-sufficient mitigating effect under the

deliberateness and future dangerousness special issues.2 In Penry

I, the Court held that the Texas special issues did not permit the

jury to give proper mitigating effect to Penry’s “abused

background.” 492 U.S. at 315. “[E]vidence of . . . childhood

abuse has relevance to [a defendant’s] moral culpability beyond the

scope of the [Texas] special issues.” Id. at 322. This is because
3 Therefore, Garcia’s history-of-abuse evidence, just

like Penry’s, forced him to face the “two-edged sword” that worried

the Supreme Court. See Penry I, 492 U.S. at 324.

24

“[p]ersonal culpability is not solely a function of a defendant’s

capacity to act ‘deliberately.’” Id. A defendant who acts

deliberately but who has suffered childhood abuse may be “less

morally culpable than defendants who have no such excuse.” Id. at

323 (internal quotation marks omitted). Additionally, a “history

of abuse” has only aggravating effect as to the second special

issue, since “it indicates that there is a probability that he will

be dangerous in the future.” Id. at 324.3

Although Penry presented evidence of diminished mental

capacity along with evidence of childhood abuse, the Penry I Court

treated Penry’s history of abuse as something with independent

mitigating effect. See id. at 322. At no point in the opinion

does the Court remark that it is only because Penry is mentally

retarded that his past history of abuse was not given sufficient

mitigating effect under the special issues. See Hernandez v.

Johnson, 248 F.3d 344, 377 (5th Cir. 2001) (Dennis, J., dissenting)

(“The [Supreme] Court did not hold or suggest that either the

factor of mental retardation or childhood abuse by itself would

fail to constitute relevant mitigating evidence that the jury must

be able to consider and give effect to in deciding Penry’s
4 The majority in Hernandez held that, because the child abuse was

“unlinked to the offense, it is not mitigating.” 248 F.3d at 349. Since then,

the Supreme Court has explicitly rejected this Circuit’s nexus requirement. See

Tennard II, 542 U.S. at 284.

25

fate.”).4 In Tennard II, the High Court discussed Penry’s mental

retardation and history of abuse claims in wholly independent

terms: “As to the evidence of childhood abuse, we held that the

two special issues simply failed to provide a vehicle for the jury

to give it mitigating effect.” 542 U.S. at 279 (citing Penry I)

(internal modifications and quotation marks omitted). In this

case, as in Penry I, the special issues did not provide a

meaningful vehicle for the jury to give effect to Garcia’s

mitigating evidence of child abuse. 

ii. The “Nullification Instruction” Did Not Cure the

Problem

The “nullification instruction” given in this case did not fix

the problem. Texas courts adopted a nullification instruction in

an attempt to correct the special issues’ inadequacies identified

by the Supreme Court in Penry I. Such an instruction permits the

jurors to answer “no” to one of the special issues (even though the

proper answer is “yes”) if they still believe that the death

penalty is not warranted. In Penry v. Johnson (“Penry II”), the

Supreme Court found this innovation insufficient. See 532 U.S. 782

(2001). 

Although the nullification instruction given in Garcia’s case

differed in some respects from the nullification instruction
5 In this case, as in Penry II, the prosecution’s closing argument

compounded problems with the nullification instruction by emphasizing that the

jurors had to answer the special issue questions honestly: “you told us [at voire

dire] . . ., ‘if you people bring the kind of evidence that convinces me the

answer is yes, I’ll answer the questions yes.’ . . . You told us very clearly

and very emphatically that, ‘if you people right here bring the kind of case that

convinces me that those questions should be answered yes, I’ll answer those

questions [the two special issues] yes.’” (R. at 23:2902–03.) Then later, “Did

he do it deliberately? Yes he did. I’m going to ask you to answer that question

yes because the evidence says that answer is yes.” Id. at 2906.

6 Paradoxically, the majority simultaneously acknowledges that

nullification instructions are “unconstitutional” yet denies relief in part

because “Garcia had the benefit of a nullification instruction.” Supra p. 19

(Maj. Op.).

26

condemned by Penry II, Garcia’s instruction still had a primary

flaw identified by the Supreme Court: it required jurors to answer

a special issue “dishonestly in order to give effect to . . .

mitigating evidence.” Id. at 802–03 (emphasis in original);

(Dretke Br. 14 n.15 (conceding that the instruction was

“substantially similar to the ‘nullification instruction’ at issue

in Penry II”).5 Thus, under Penry II, the nullification

instruction did not bring Garcia’s mitigating evidence within the

effective reach of the jury.6

In sum, Garcia’s claim satisfies the second prong of the test

that Tennard III derived from the Supreme Court’s opinion in

Tennard II. The jury was unable to give constitutionallysufficient mitigating effect to Garcia’s evidence. This should be

the end of the matter. This Court, following Supreme Court

precedent, has identified the two questions that a proper Penry

analysis entails. Both favor Garcia. The majority, however,

denies relief through a novel theory. This theory was not argued
7 As discussed above, the State’s primary argument on appeal was that

Garcia’s history-of-abuse evidence “could be fully considered within the special

issues.” (Dretke Suppl. Br. 2). The majority declines to consider that issue.

Supra p. 16 (Maj. Op.). 

8 The State defended the sentence on the ground that evidence of child

abuse is within the scope of the special issues. (Dretke Br. 36 (arguing that

Garcia’s jury could give effect to his evidence of sexual abuse through the

“deliberately” special issue).) The Supreme Court rejected this rationale in

Penry I. The Texas Court of Criminal Appeals affirmed Garcia’s sentence on the

ground that the nullification instruction cured any problem with the special

issues. See Garcia v. State, 887 S.W.2d 846, 860 (Tex. Crim. App. 1994). The

Supreme Court rejected this rationale in Penry II. The district court below

applied then-controlling Fifth Circuit precedent and upheld Garcia’s sentence on

the ground that his mitigating evidence was not “constitutionally relevant.”

Garcia v. Dretke, 2003 WL 22144058, *4–5 (N.D. Tex 2003) (unpublished) (holding

that Garcia’s evidence of “sexual abuse he received as a child” did not give rise

to a “uniquely severe permanent handicap”). The Supreme Court rejected this

rationale in Tennard II. 

27

by the State,7 has no foundation in the decisions of this Court,

and contravenes Penry II and Tennard II.

2. The Majority’s Estoppel/Default/Nullification Rationale

The majority here holds that Garcia is somehow estopped from

arguing that his mitigating evidence went beyond the special issues

because his trial lawyer struggled to shoehorn that evidence within

the special issues at summation. See supra p. 17 (Maj. Op.). It

is worth noting that the majority’s creative approach is the fourth

separate rationale that has been offered to uphold Garcia’s death

sentence. The Supreme Court has rejected the first three

justifications.8 The latest approach is to deny Garcia relief

because his trial lawyer failed to argue the proper “mitigation

theory” before the jury, supra p. 11, a “mitigation theory” that

Texas law did not even allow the jury to consider at the time.

The majority’s refusal to consider Garcia’s “new arguments in
9 Under Texas law, a third special issue was sometimes

submitted. “‘[I]f raised by the evidence,’” the court would

submit, “‘whether the conduct of the defendant in killing the

deceased was unreasonable in response to provocation, if any, by

the deceased.’” Tennard III, 442 F.3d at 246 n.3 (quoting TEX.

CRIM. PROC. CODE Ann. § 37.071(b) (Vernon 1981)). 

28

federal court” because they do not reflect the “case [he] presented

in the [state] trial court,” supra 11, 18 (Maj. Op.), sounds a lot

like procedural default. There is a reason why the majority merely

gestures in that direction without ever fully going down the

procedural-default path. It is because Garcia’s lawyer clearly

made a Penry objection in the Texas trial court. After the court

submitted a proposed jury charge, Garcia objected as follows:

In the Court’s Charge on mitigation, which is page

2 of the Court’s Charge, we would object for the

following reasons:

. . .

[W]e would submit, Your Honor, that drug and alcohol

abuse and child abuse have been brought into evidence.

They are universally considered to be mitigating factors.

And that the Court does not set those out in applying the

law to the facts and relating them to the relevant

questions in either Special Issue No. 1 or Special Issue

No. 2.

We would submit, Your Honor, that a fourth special

issue is required. What I mean by a fourth special issue

is an additional special issue besides Special Issues 1

and 2. We would, of course, concede that Special Issue

3 is not raised by the evidence.9

But the fourth special issue, that has been talked

about in Penry, is mitigating evidence that is relevant

to the blameworthiness and moral culpability of the

Defendant in general, yet not directly relevant to either

one of the first two special issues.

(R. at 21:2890–91 (emphasis added).) The trial court denied the

objection “with some reluctance.” Id. at 2895. 
10 Similarly, traditional principles of equitable estoppel do not bar

Garcia from pressing his Penry claim. In a unanimous decision, the Supreme Court

recently confirmed the limitations on that doctrine. Ordinarily, it only applies

where a party has “succeeded in persuading a court to accept” a position that is

“clearly inconsistent” with the one it now espouses. See Zedner v. United

States, No. 05.5992, slip op. at 13–15, 547 U.S. __ (June 5, 2006). That has not

happened here.

29

The majority could not rest its analysis on any established

version of procedural default because Garcia made a Penry objection

and maintained it throughout direct and collateral review. See

Beard v. Greene, 523 U.S. 371, 375 (1998) (defining the procedural

default rule: “assertions of error in criminal proceedings must

first be raised in state court in order to form the basis for

relief in habeas”).10 Whether or not the majority’s theory should

be understood as a novel extension of procedural default doctrine,

that theory is flawed for a number of reasons. 

The majority reasons that Garcia should be estopped from

making a Penry claim because his trial lawyer cabined his closing

argument within the deliberateness special issue. The premise of

this argument misstates the record. After the trial court denied

his explicit Penry objection, Garcia’s lawyer nonetheless did

present the jury with a “mitigation theory” that went outside the

scope of the special issues. He argued that “the abuse,” among

other things, “turn[ed] Fernando Garcia from a victim to a

predator.” Id. at 2921. The logic of this argument goes outside

the deliberateness special issue. It invited the jury to shift

some of the moral responsibility for the crime away from Garcia
30

himself to Garcia’s abusers, whose conduct was at least partly

responsible for turning him into a predator. Under this

“mitigation theory,” the jury would attribute some of the blame to

Garcia’s abusers whether or not Garcia murdered his victim

deliberately. Nor did counsel’s vague rhetorical flourish (“I ask

for no sympathy for Fernando Garcia”) negate this argument. Contra

supra p. 16–17 (Maj. Op.). The jury did not have to conjure

feelings of sympathy for Garcia to acknowledge that others shared

moral responsibility for the crime and to show Garcia mercy on that

basis.

In its rebuttal, the State clearly did not think Garcia’s

“mitigation theory” had been entirely bound up with whether he

acted deliberately. The State argued that Garcia’s “abuse[] as a

child” did not excuse his actions because he had the opportunity to

participate in rehabilitative counseling but chose not to do so.

Id. at 2927. The State essentially contended that Garcia’s failure

to seek rehabilitation broke the causal chain between Garcia’s

original abusers and his crime: “His decision, his moral decision,

his moral culpability, his life. Nobody else’s.” Id. at 2928

(emphasis added). Under the State’s theory, despite his history of

abuse, Garcia became “solely responsible” for being a “rabid dog”

when he “rejected every single attempt to ever make him better.”

Id. at 2934, 2930. In short, the State argued not only that Garcia
31

acted deliberately but also that Garcia’s attempt to shift some of

the moral responsibility to his abusers should be rejected. 

Thus, the arguments of the defense and prosecution presented

the jury with a significant moral controversy. The Texas special

issues, however, “provided an inadequate vehicle for the jury to

make a reasoned moral response” to the dispute. Penry II, 532 U.S.

at 800. They did not allow the jury to give effect either to the

mitigating evidence Garcia introduced or to the “mitigation theory”

he presented at summation.

Stepping back from the record in this case, dissecting a

defense attorney’s closing argument to determine whether it

presented a “mitigation theory” that went outside the scope of the

special issues is a fundamentally misguided inquiry. To begin

with, the search for “the case as presented in the trial court,”

supra p. 18 (Maj. Op.), cannot be limited to ten pages of closing

argument in a three-thousand page trial transcript. Good advocates

offer their theories of a case not just through summation but also

through questioning of witnesses and through the very substance of

the evidence they present. See Taylor v. United States, 495 U.S.

575, 601 (1990) (stating that courts might discern the Government’s

“theory or theories of the case presented to the jury” in “the

indictment or other charging paper” or in the “actual proof at

trial”). It makes no sense to ignore relevant mitigating evidence

that the defendant presented to the jury simply because his
32

counsel, at least according to the majority, failed to draw

attention to it under an appropriate theory in closing argument.

The defendant is not even required to present a summation. Under

the majority’s theory, however, a defendant’s decision to forego

summation would invariably forfeit his right to present a Penry

claim in this Court “because he did not do so before the jury.”

Supra p. 20 (Maj. Op.). 

More importantly, requiring the defendant to adopt a

“mitigation theory” that goes outside the special issues is

paradoxical. As applied, the special issues violate the Eighth

Amendment precisely because they limited the defendant’s possible

mitigation theories. Under Texas law, Garcia could only argue

either that he did not commit his crime deliberately or that he was

not a danger to society. So that is what he did. The majority has

simply confused the cause with the effect. Garcia’s lawyer did not

restrict the mitigation inquiry; rather, Texas’s limited mitigation

inquiry under the special issues restricted Garcia’s lawyer.

This brings me to a problematic effect of the majority’s

logic. Texas law did not recognize the mitigation theory the

majority claims Garcia should have argued to the jury. Therefore,

the majority’s theory amounts to a requirement that counsel argue

jury nullification at closing to preserve Penry error. Compare

United States v. Funches, 135 F.3d 1405, 1409 (11th Cir. 1998)

(“[D]efense counsel may not argue jury nullification during closing
11 It is not clear whether the majority acknowledges this problematic

aspect of its reasoning: In one part of its opinion, the majority reasons

explicitly that defense counsel should have made arguments “beyond the special

issues” pursuant to the “nullification instruction” given in this case. Supra

p. 19 (Maj. Op.). Later in its opinion, it denies that its reasoning requires

that “defense counsel must argue jury nullification.” Id. at 21. 

33

argument”) and United States v. Thomas, 116 F.3d 606, 614 (2d Cir.

1997) (“We categorically reject the idea that, in a society

committed to the rule of law, jury nullification is desirable or

that courts may permit it to occur when it is within their

authority to prevent.”).11

The majority’s mandate that defense counsel argue

nullification is impossible to square with Penry II. The Supreme

Court held in Penry II that courts cannot require jury

nullification of the special issues. The majority now requires

that defense counsel insert the same “element of capriciousness”

into the sentencing process that the Penry II Court found

problematic. 532 U.S. at 800. The majority faults Garcia’s lawyer

for not specifically arguing to the jury that Garcia’s life should

be spared out of mercy even though doing so, as in Penry II, would

have been tantamount to demanding that the jurors “answer the

special issues dishonestly” and “violate their oath to render a

true verdict.” Id. at 802, 800 (internal quotation marks and

emphasis omitted). By shifting the actor who introduces the

nullification element from the judge to defense counsel, the

majority basically makes an end run around Penry II.
34

In addition, the majority’s approach is at odds with at least

the spirit of Tennard II. In Tennard II, the Supreme Court

rejected our constitutional relevance inquiry as creating an

impermissible “threshold ‘screening test’” with “no foundation in

the decisions of this Court.” 542 U.S. at 283–84. This rebuke

overstated somewhat the novelty of our constitutional relevance

test. See Tennard III, 442 F.3d at 253 n.16. Yet the critique

certainly applies here to the majority’s innovation. 

As with constitutional relevance, the majority uses its

estoppel theory as a threshold screening test, refusing to

“consider[] whether the jury instructions comported with the Eighth

Amendment,” Tennard II, 542 U.S. at 284, because defense counsel

did not explicitly argue outside the special issues at summation.

Moreover, the majority’s approach has no foundation in Supreme

Court precedent. The Court’s jurisprudence has invariably looked

to “the mitigating evidence presented” rather than to the closing

arguments of counsel. Tennard II, 542 U.S. at 284 (discussing

Penry I). Indeed, the majority cannot cite a single authority,

Supreme Court or otherwise, in support of its estoppel theory

during the eleven pages that it discusses that approach. Supra p.

11–19, 20–21 (Maj. Op.). Premises that are fundamental to the

majority’s analysis, such as that we must focus on the “mitigation

theory Garcia actually made to the jury,” Id. at 11 (emphasis in

original), are left completely unsupported.
35

As previously stated, the Supreme Court has effectively told

us that the only Penry inquiries we should undertake are (1)

whether the petitioner presented relevant mitigating evidence and

(2) whether the jury was able to consider and give sufficient

effect to that evidence. Instead of following this mandate, the

majority creates another threshold screen. 

In conclusion, the trial court failed to present to the jury

an adequate vehicle that could give meaningful mitigating effect to

Garcia’s history of child abuse. Supreme Court precedent

establishes that this failure violated his Eight Amendment rights.

I would hold that the state court’s opposite conclusion was

contrary to the Supreme Court’s precedent or, alternatively, an

unreasonable application of clearly established law. In accord

with Penry I, Penry II, and Tennard II, I would reverse the

district court’s decision and remand with instructions to grant

habeas relief. I respectfully dissent.