IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-70019

KIMBERLY LAGAYLE MCCARTHY,

Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:07-CV-1631

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

A Texas jury convicted Petitioner Kimberly Lagayle McCarthy of capital

murder, and she was sentenced to death. The Texas Court of Criminal Appeals

affirmed and denied her subsequent application for habeas corpus. The district

court denied her federal habeas petition and declined to grant her a certificate

of appealability (“COA”). McCarthy asks this court to grant her a COA on two

issues pursuant to 28 U.S.C. § 2253. Because McCarthy cannot make a

United States Court of Appeals

Fifth Circuit

F I L E D

July 11, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 11-70019 Document: 00511916016 Page: 1 Date Filed: 07/11/2012
No. 11-70019

substantial showing of the denial of a federal constitutional right, we DENY a

COA.

I

The evidence presented at trial established that McCarthy “entered the

home of her 71-year old neighbor Dorothy Booth under the pretense of borrowing

some sugar and then ‘stabbed Mrs. Booth five times, hit her in the face with a

candelabrum, [and] cut off her left ring finger in order to take her diamond

ring.’” McCarthy v. Thaler, No. 3:07–CV–1631–O, 2011 WL 1754199, at *1 (N.D.

Tex. May 9, 2011) (quoting McCarthy v. State, No. 74590, 2004 WL 3093230, at

*2 (Tex. Crim. App. Sept. 24, 2004)). McCarthy then left with Mrs. Booth’s purse

and wedding ring. Eventually, she “drove Mrs. Booth’s Mercedes Benz to a

‘crack house’ where she attempted to purchase crack cocaine.” McCarthy, 2004

WL 3093230, at *2. She later “pawned Mrs. Booth’s wedding ring for $200, and

used the victim’s credit cards at least four times on the day after the murder.” 

Id. 

McCarthy was originally convicted of the capital murder of Mrs. Booth in

1998. However, the Texas Court of Criminal Appeals (“TCCA”) reversed her

conviction on direct appeal. McCarthy v. State, 65 S.W.3d 47, 49 (Tex. Crim.

App. 2001). The TCCA held that the trial court had violated McCarthy’s right

to counsel under the Fifth and Fourteenth Amendments by admitting into

evidence a written statement she made to police after she had unambiguously

invoked her right to counsel. Id. at 51. Although McCarthy did not admit to

physically killing Mrs. Booth in the statement, the TCCA concluded that the

statement “was, as the State’s attorney so effectively pointed out . . ., powerful

enough to establish her guilt of capital murder either as a party or as a

2

Case: 11-70019 Document: 00511916016 Page: 2 Date Filed: 07/11/2012
No. 11-70019

conspirator. . . . [and] was also used to paint [her] as an unrepentant liar and set

out her cruel and greedy motive for killing her elderly neighbor.” Id. at 55.1

McCarthy was subsequently re-tried. The jury found her guilty of capital

murder, and she was sentenced to death. The TCCA upheld her second capital

murder conviction on direct appeal, McCarthy, 2004 WL 3093230, and the

Supreme Court of the United States denied her petition for a writ of certiorari. 

McCarthy v. Texas, 545 U.S. 1117 (2005). McCarthy timely filed a state petition

for a writ of habeas corpus. Without holding an evidentiary hearing, the state

 The written statement reads as follows: 1

Early Tuesday morning about 1:30 a.m., drugs were delivered to me at my residence

by “Kilo” and “J.C.”, two guys I met in South Dallas selling drugs, about a month or so ago.

Both guys stayed at my residence & partied with me. After my money & the drugs ran out,

they asked if I could get some more money. I told them no. They asked me if I knew any of my

neighbors I could borrow money from & I said no, not at that hour & that I had to go to work.

At that time they began to be verbally abusive & threatening to harm me if I didn’t. I called

my neighbor “Dorothy Booth”. I’m not sure of the time & got no answer. I waited a while &

called back, she answered. “Kilo” told me to hang up & I did. He told me to call back & ask her

to borrow some sugar or milk instead of money over the phone, because they were going to rob

her & take the car. I called back & asked to borrow sugar, she said ok. Kilo & J.C. followed me

to her house, when she opened the door & saw me, to let me in they both pushed the door open

& knocked her down. I was shoved back outside to her car. The driver side was unlocked & I

was told to stay there & lay down in the front seat. Several minutes later they both came out

with her car keys, purse, & CD player. Both guys went back into my house & came out with

a jam box, cordless phone & caller ID. They told me to drive to Mi Amore motel on second

avenue to make a pick up. I was told to park on the next street over & wait for them. After

about 3–5 minutes or so I drove off with all the belongings they took & went to Fitzhugh to the

dope house. No one answered the door so I went to Perry street dope house. I took everything

out of the car & went inside to get dope. They didn’t have any so “Smiley” said he would go

around the corner & get me some. I gave him the keys & another girl rode with him. They

came back & the police stopped them in front of the dope house on Perry street. I went to the

back of the house & waited a few minutes & left out the back door to get drugs elsewhere. A

few hours later I returned to Perry street dope house & “Smiley” was upset that the cops

stopped him. He gave me the car keys back. He asked me if the car was stolen & I said no. He

wanted to rent it out for dope so I did & left. After the dope ran out I searched the purse &

found a diamond ring & credit cards. I took the ring to the pawn shop & sold it. Later I used

the credit card at the grocery store & gas station to purchase cigarettes by the carton for resale

at the “boot leg” for cash. I went to a friend’s house to smoke dope. He sold the caller ID and

cordless phone for dope money. The jambox was sold to an individual at the Mexican dude on

Fitzhugh & East Grand. I got a ride with a male & female. We went to several gas stations &

she went inside to use the credit cards once or twice.

3

Case: 11-70019 Document: 00511916016 Page: 3 Date Filed: 07/11/2012
No. 11-70019

habeas trial court entered findings of fact and conclusions of law recommending

that all requested relief be denied. The TCCA denied relief in an unpublished

order and adopted all but two of the state trial court’s findings and conclusions. 

Ex Parte McCarthy, No. WR-50-360-02, 2007 WL 2660306, at *1 (Tex. Crim. App.

Sept. 12, 2007). McCarthy filed a federal habeas petition based on nine grounds. 

The district court denied relief on all of her claims and declined to grant a COA. 

McCarthy, 2011 WL 1754199. Petitioner appeals, requesting a COA from this

court on two of the issues asserted in the district court.

II

On appeal, McCarthy seeks a COA on two issues raised in the district

court. First, she claims that she was denied her right to effective assistance of

counsel when her lawyers failed to introduce the written statement she made to

police after her arrest as mitigating evidence at the punishment stage of trial. 

Second, she asserts that she was denied her right to effective assistance of

counsel when her lawyers agreed to waive the imposition of Texas Rule of

Evidence 614 (“the Rule”) with respect to Mrs. Booth’s daughter, Donna Aldred.

To obtain a COA, a prisoner must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)). “A petitioner satisfies

this standard by demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). “[I]n determining this issue, we ‘view[ ] the

petitioner’s arguments through the lens of the deferential scheme laid out in 28

U.S.C. § 2254(d).’” Druery v. Thaler, 647 F.3d 535, 538 (5th Cir. 2011) (quoting

Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000)). Under § 2254(d), when

reviewing a claim adjudicated on the merits by a state court, we defer to the

state court’s determination regarding that claim, “unless the decision ‘[is]

4

Case: 11-70019 Document: 00511916016 Page: 4 Date Filed: 07/11/2012
No. 11-70019

contrary to, or involve[s] an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or . . .

[is] based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Barrientes, 221 F.3d at 772 (quoting

28 U.S.C. § 2254(d)(1) & (2)).

Because both of McCarthy’s claims allege ineffective assistance of counsel,

we review her claims under the familiar standard announced in Strickland v.

Washington, 466 U.S. 668 (1984). To prevail on her ineffective assistance claims,

McCarthy “must demonstrate that (1) counsel’s representation fell below an

objective standard of reasonableness and that (2) there is a reasonable

probability that prejudice resulted.” Druery, 647 F.3d at 538 (citing Bower v.

Quarterman, 497 F.3d 459, 466 (5th Cir. 2007)). In assessing the reasonableness

of counsel’s representation, “counsel should be ‘strongly presumed to have

rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.’” Cullen v. Pinholster, 131 S. Ct. 1388,

1403 (2011) (quoting Strickland, 466 U.S. at 690). “To overcome that

presumption, a defendant must show that counsel failed to act ‘reasonabl[y]

considering all the circumstances.’” Id. (quoting Strickland, 466 U.S. at 688). 

Further, in order to establish prejudice, “[t]he defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Strickland,

466 U.S. at 694.

“The standards created by Strickland and § 2254(d) are both ‘highly

deferential,’ and when the two apply in tandem, review is ‘doubly so.’”

Harrington v. Richter, 131 S. Ct. 770, 778 (2011) (citations omitted); see Druery,

647 F.3d at 538–39 (“When our review is governed by AEDPA—as is the case

here—our review of the state court’s resolution of the

5

Case: 11-70019 Document: 00511916016 Page: 5 Date Filed: 07/11/2012
No. 11-70019

ineffective-assistance-of-counsel claim is ‘doubly deferential,’ since the question

is ‘whether the state court’s application of the Strickland standard was

unreasonable.’”) (citations omitted). Section 2254(d) applies to McCarthy’s

ineffective assistance claims. Thus, when deciding whether to grant habeas

relief on those claims, “the question is not whether counsel’s actions were

reasonable. The question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Richter, 131 S. Ct. at 788. 

Accordingly, to obtain a COA on her ineffective assistance claims,

McCarthy must show “that it was ‘necessarily unreasonable for the [state court]

to conclude: (1) that [s]he had not overcome the strong presumption of

competence; and (2) that [s]he had failed to undermine confidence in the jury’s

sentence of death.’” Ayestas v. Thaler, 462 F. App’x 474, 478 (5th Cir. 2012)

(quoting Cullen, 131 S. Ct. at 1403); see id. (“For a COA, we are limited to

deciding whether jurists of reason would find the answers to these questions

debatable or whether the issues deserve encouragement to proceed.”) (citation

omitted). 

A

McCarthy first claims that her counsel rendered ineffective assistance

under Strickland by failing to introduce the written statement she made to

police after her arrest as mitigating evidence at the punishment stage of trial. 

Although she concedes that portions of the statement—even if introduced at

punishment—were inculpatory, she argues that the statement also contained

mitigating evidence. Specifically, she contends that the statement, inter alia, (1)

would have provided evidence that she was not the actual killer, even though she

was involved in the murder, (2) would have confirmed that the killing was due

to her drug addiction, and (3) would have demonstrated her willingness to

cooperate in the investigation of Mrs. Booth’s murder.

6

Case: 11-70019 Document: 00511916016 Page: 6 Date Filed: 07/11/2012
No. 11-70019

The state habeas court rejected McCarthy’s claim. First, it found that the

statement would have been inadmissible as a self-serving declaration under

Texas law if defense counsel had attempted to introduce it as mitigating

evidence at punishment. See Allridge v. State, 762 S.W.2d 146, 152 (Tex. Crim.

App. 1988) (“[S]elf-serving declarations of the accused are ordinarily

inadmissible in his behalf, unless they come under some exception . . . .”)

(quoting Singletary v. State, 509 S.W.2d 572, 576 (Tex. Crim. App. 1974)). The

state court thereby concluded that McCarthy’s counsel had not been deficient for

failing to introduce the written statement at punishment because the statement

would have been inadmissible if offered. 

Further, the state habeas court determined that even if the statement

were admissible under state law, the decision of McCarthy’s counsel not to

introduce it was sound trial strategy. For instance, the state court found that

the statement contained the following aggravating elements if introduced at

punishment: (1) the statement was inconsistent with some of the physical

evidence produced at trial, (2) portions of the statement were highly improbable,

(3) on direct appeal from her first conviction, the TCCA held that the statement

was “used to paint appellant as an unrepentant liar and set out her cruel and

greedy motive for killing her elderly neighbor,” McCarthy, 65 S.W.3d at 56, and

(4) the statement would have provided the only direct evidence of McCarthy’s

participation in the offense. Lastly, the state court found that even if McCarthy

could establish that her counsel was constitutionally deficient by notintroducing

the statement, she had failed to show prejudice from that error, i.e., a reasonable

probability that but for her counsel’s error, the results of the proceeding would

have been different. Strickland, 466 U.S. at 694. 

In denying McCarthy’s claim for federal habeas relief on this issue, the

district court essentially adopted all three of the state habeas court’s rationales

for denying relief and declined to grant a COA. McCarthy, 2011 WL 1754199,

7

Case: 11-70019 Document: 00511916016 Page: 7 Date Filed: 07/11/2012
No. 11-70019

at *7. We agree with the district court that “‘reasonable jurists could [not]

debate’ whether the . . . petition should have been resolved by the district court

in a different manner or ‘that [this issue was] adequate to deserve

encouragement to proceed further.’” Druery, 647 F.3d at 539 (citation omitted). 

To establish that her counsel was ineffective, McCarthy must first show

that her counsel was deficient. But McCarthy cannot show that reasonable

jurists could find debatable the district court’s conclusion that it was not

“necessarily unreasonable for the [TCCA] to conclude [] that [McCarthy] had not

overcome the strong presumption of competence.” Cullen, 131 S. Ct. 1403. 

As an initial matter, for McCarthy’s counsel to have been deficient for

failing to introduce evidence at trial, the evidence must have been admissible

under Texas law. See Turner v. Quarterman, 481 F.3d 292, 298 (5th Cir. 2007)

(“For Turner’s counsel to be deficient in failing to object, the objection must have

merit under Texas law.”). Here, the state habeas trial court determined that

McCarthy’s statement would have been inadmissible under Texas evidentiary

law if her counsel had attempted to introduce it as mitigating evidence at

punishment, and the TCCA adopted that finding. Accordingly, a federal habeas

court cannot overrule that conclusion because “[u]nder § 2254, federal habeas

courts sit to review state court misapplications of federal law[;] [they] lack[]

authority to rule that a state court incorrectly interpreted its own law.” Charles

v. Thaler, 629 F.3d 494, 500–01 (5th Cir. 2011); see id. at 500 (“Because the state

determined that Carter’s testimony was permissible lay opinion under state

evidentiary law . . . , a federal habeas court may not conclude otherwise.”); see

also Schaetzle v. Cockrell, 343 F.3d 440, 448–49 (5th Cir. 2003) (“[W]e defer to

[the TCCA’s] determination of state law. ‘It is not our function as a federal

appellate court in a habeas proceeding to review a state’s interpretation of its

own law . . . .’”) (citation omitted). McCarthy’s counsel cannot have rendered

ineffective assistance by failing to introduce evidence that would not have been

8

Case: 11-70019 Document: 00511916016 Page: 8 Date Filed: 07/11/2012
No. 11-70019

admitted. See Turner, 481 F.3d at 298 (“Turner’s counsel cannot have rendered

ineffective assistance of counsel by failing to make an objection that would have

been meritless.”). Thus, “it is not debatable that the state court’s resolution of

this issue was not unreasonable,” and we deny McCarthy’s request for a COA on

this issue. Druery, 647 F.3d at 540.

Further, even if McCarthy’s written statement were admissible under

Texas law, it was not unreasonable for the state habeas court to conclude that

her counsel’s decision not to offer the statement was sound trial strategy. “[T]his

Court has repeatedly denied claims of ineffective assistance of counsel for failure

to present ‘double edged’ evidence where counsel has made an informed decision

not to present it.” Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir. 2003)

(citations omitted); see Boyle v. Johnson, 93 F.3d 180, 187–88 (5th Cir. 1996)

(noting the heavy deference owed trial counsel when they decide as a strategical

matter not to introduce evidence of a “double-edged nature,” which could harm

the defendant’s case). 

Here, McCarthy’s written statement would have been “double-edged” if

introduced at punishment, as it contained several aggravating facts and had

been effectively used by the State at her first trial as (a) substantive evidence of

her guilt and (b) a basis upon which to attack her credibility. For instance, in

overturning McCarthy’s conviction at the first trial, the TCCA found that during

closing arguments in the guilt/innocence phase of the trial “[McCarthy’s]

inadmissible statement became the rhetorical strawman that the State

effectively decimated.” McCarthy, 65 S.W.3d at 53. Further, although the TCCA

found that “[the] statement did not place the murder weapon in [McCarthy’s]

own hands,” the court did conclude that the statement was, as the State “so

effectively pointed out . . . , powerful enough to establish her guilt of capital

murder either as a party or as a conspirator [and] was also used to paint

appellant as an unrepentant liar and set out her cruel and greedy motive for

9

Case: 11-70019 Document: 00511916016 Page: 9 Date Filed: 07/11/2012
No. 11-70019

killing her elderly neighbor.” Id. at 56. McCarthy’s counsel at the second trial

was the same lawyer who represented her at her first trial and had successfully

represented her on direct appeal. Thus, counsel was well-aware of the fact that

introducing the statement at punishment could have harmed McCarthy’s case,

and his decision not to do so was therefore necessarily informed. Accordingly,

counsel’s strategic choice not to introduce the statement at punishment was not

objectively unreasonable. Cullen, 131 S. Ct. at 1403 (“To overcome th[e]

presumption [of adequate assistance], a defendant must show that counsel failed

to act ‘reasonabl[y] considering all the circumstances.’”) (citation omitted). It is

not debatable that the state court’s resolution of this issue was not

unreasonable, and we deny a COA on this issue. Druery, 647 F.3d at 540.

B

McCarthy also claims that her counsel rendered ineffective assistance

under Strickland when her lawyers agreed to waive the imposition of Texas Rule

of Evidence 614 (“the Rule”) with respect to Mrs. Booth’s daughter, Donna

Aldred. 

In Texas, the Rule allows a trial court to exclude certain witnesses from

the courtroom upon a motion from either party or upon the court’s own motion

so that the witnesses “cannot hear the testimony of other witnesses.” TEX. R.

EVID. 614. However, because Dr. Aldred was Mrs. Booth’s daughter, the court

could have only ordered her exclusion at McCarthy’s request if the court

determined that her testimony “would be materially affected if the witness hears

other testimony at trial.” TEX. CODE CRIM.PROC. art. 36.03(a) (providing for the

exclusion of certain witnesses “who for the purposes of the prosecution is a

victim, close relative of a deceased victim, or guardian of a victim”). If 2

McCarthy’s counsel had moved to exclude Dr. Aldred under the Rule and the

The trial court also had authority to exclude Dr. Aldred on its own motion in order “to 2

maintain decorum in the courtroom.” TEX. CODE CRIM. PROC. art. 36.03(c).

10

Case: 11-70019 Document: 00511916016 Page: 10 Date Filed: 07/11/2012
No. 11-70019

State opposed that motion, the court could have required McCarthy “to make an

offer of proof to justify the exclusion.” Id. art. 36.03(b). 

Dr. Aldred was the first witness to testify at the guilt/innocence stage of

trial; her testimony chiefly entailed identifying her mother’s stolen property. Dr.

Aldred then took a seat in the gallery and the second witness testified. Next, the

third witness, Lieutenant Nolan Smith, began testifying regarding his

investigation of the crime. As Lieutenant Smith identified and described several

crime scene photographs to the jury, Dr. Aldred became upset, began crying, and

left the courtroom. The trial court quickly called a recess and McCarthy’s

counsel moved for a mistrial. Counsel contended that the jury’s observation of

Dr. Aldred’s emotional reaction to the crime scene photographs was extremely

prejudicial to McCarthy’s case. The trial court denied a mistrial. Defense

counsel then invoked the Rule with regard to Dr. Aldred for all purposes, and the

trial court granted that request.

McCarthy contends that her trial counsel’s decision to allow Dr. Aldred to

remain in the courtroom was objectively unreasonable under Strickland. First,

McCarthy claims that defense counsel could have excluded Dr. Aldred under the

Rule because her testimony could have been affected by hearing the testimony

of other witnesses if she had been recalled to testify. McCarthy also claims that

her counsel unreasonably failed to request that the trial court admonish Dr.

Aldred concerning outbursts during trial. She maintains that no sound trial

strategy can justify her counsel’s decisions not to (a) object to excepting Dr.

Aldred from the Rule or (b) request that the trial court admonish Dr. Aldred

about outbursts. Lastly, McCarthy asserts that her counsel’s deficiency

prejudiced her because it created an unacceptable risk that impermissible

factors came into play in the jury’s deliberative process.

The state habeas court rejected McCarthy’s ineffective assistance claim. 

First, it concluded that her claim was procedurally barred under Texas law. The

11

Case: 11-70019 Document: 00511916016 Page: 11 Date Filed: 07/11/2012
No. 11-70019

state court determined that McCarthy had expressly limited her claim to

matters that were in the record on direct appeal; thus, it concluded that she

could have raised those claims on direct appeal, thereby waiving her ability to

raise those claims in her petition for habeas relief under Texas law. See Ex

Parte Gardner, 959 S.W.2d 189, 191 (Tex. Crim. App. 1996) (holding that

petitioner waived the ability to raise a claim in his habeas petition, in part,

because he made no attempt to raise the claim while his direct appeal was

pending, even though he could have raised his claim on direct appeal). 

Further, the state habeas court concluded that even if McCarthy’s claim

was not procedurally barred, she had failed to establish that her counsel’s

decision to waive the Rule as to Dr. Aldred was defective under Strickland. For

instance, the state court indicated that excluding Dr. Aldred from the courtroom

would not have served the main purpose of the Rule—i.e., preventing her

testimony from being materially affected by the testimony of other witnesses. 

The state court found that the State had only used Dr. Aldred’s testimony to

identify her mother’s stolen property; thus, the court determined that the

testimony of other witnesses could not have influenced her testimony because

she was the only witness who identified her mother’s property. Further, the

state court concluded that it was reasonable for defense counsel not to have

expected Dr. Aldred to lose her composure at trial. It noted that Dr. Aldred had

been in the courtroom during the first trial where she saw the same evidence

and did not lose control of her emotions. Thus, the court held that defense

counsel’s decision reflected sound trial strategy and that counsel’s representation

of McCarthy was not deficient. Lastly, the court concluded that McCarthy had

failed to establish prejudice from Dr. Aldred’s presence at trial given the brief

nature of her crying, her quick removal from the courtroom, and the fact that the

jury heard from ten witnesses after the incident before they deliberated.

12

Case: 11-70019 Document: 00511916016 Page: 12 Date Filed: 07/11/2012
No. 11-70019

The district court denied McCarthy’s federal habeas petition on this claim,

even though the district court rejected the State’s argument that the claim was

procedurally barred under Texas law. The district court determined that the

state court’s order denying McCarthy’s habeas claim on this issue did not

contain an adequate and independent state ground for denying relief. McCarthy,

2011 WL 1754199, at *2-3. However, we need not address that issue because 3

we hold that McCarthy cannot show that reasonable jurists could find debatable

the district court’s conclusion that it was not “necessarily unreasonable for the

[TCCA] to conclude [] that [McCarthy] had not overcome the strong presumption

of competence.” Cullen, 131 S. Ct. 1403. 

First, it is not clear that Dr. Aldred could have been excluded from the

courtroom under the Rule if McCarthy’s counsel had moved to exclude her. The

state habeas court appeared to find that Dr. Aldred could not have been excluded

under the Rule, and it explicitly determined that Dr. Aldred’s testimony could

not have been influenced by the testimony of other witnesses due to the limited

nature of her testimony. See Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim.

App. 2005) (“The purpose of placing witnesses under the rule is to prevent the

testimony of one witness from influencing the testimony of another, consciously

or not.”). The state court also found that McCarthy’s counsel had agreed to

waive the Rule as to Dr. Aldred in exchange for the State’s agreement to allow

some of McCarthy’s family members to remain in the courtroom—some of whom

would later testify at punishment. Accordingly, given the uncertainty regarding

The district court based its conclusion that McCarthy’s claim was not procedurally 3

barred, in part, on its mistaken finding that the TCCA had rejected the state habeas trial

court’s conclusion that McCarthy had waived her ability to bring this claim in a habeas

petition. McCarthy, 2011 WL 1754199, at *2. In fact, the TCCA only declined to adopt the

trial court’s finding that McCarthy had waived her ability to bring a habeas claim based on

defense counsel’s decision not to introduce her written statement at punishment; the TCCA

adopted the state trial court’s conclusion that McCarthy had waived her ability to bring a

habeas claim based on Dr. Aldred’s presence at trial. McCarthy, 2007 WL 2660306, at *1.

 

13

Case: 11-70019 Document: 00511916016 Page: 13 Date Filed: 07/11/2012
No. 11-70019

whether Dr. Aldred could have been excluded under the Rule, it was not

unreasonable for the state court to have determined that it was a reasonable

strategical choice for defense counsel to forego attempting to exclude Dr. Aldred

under the Rule in exchange for ensuring that McCarthy’s family could also

remain in the courtroom. Pape v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011)

(“When evaluating an ineffective assistance of counsel claim, we afford counsel

the ‘strong presumption’ that counsel’s representation fell within a ‘wide range’

of ‘reasonable professional assistance.’”) (quoting Richter, 131 S. Ct. at 787). 

It was also not necessarily unreasonable for defense counsel to assume

that Dr. Aldred would not lose her composure during trial. Dr. Aldred sat

through McCarthy’s first trial without incident, presumably including portions

of the trial where graphic crime scene photographs were shown to the jury. 

Further, after Dr. Aldred began crying and the trial court called a recess,

defense counsel responded appropriately, moving for a mistrial and then

successfully invoking the Rule as to Dr. Aldred for the rest of trial. Considering

all of the circumstances, defense counsel’s decisions not to initially invoke the

Rule as to Dr. Aldred or to request an admonishment regarding outbursts were

not necessarily unreasonable. Cullen, 131 S. Ct. at 1403 (“To overcome [the

presumption that counsel made all significant decision in the exercise of

reasonable professional judgment], a defendant must show that counsel failed

to act ‘reasonabl[y] considering all the circumstances.’”) (citation omitted). Thus,

“it is not debatable that the state court’s resolution of this issue was not

unreasonable,” and we deny a COA. Druery, 647 F.3d at 540; Turner, 481 F.3d

at 298. 

III

For the reasons stated above, Petitioner’s request for a COA is DENIED.

14

Case: 11-70019 Document: 00511916016 Page: 14 Date Filed: 07/11/2012