Summary:

While working at the Mi-T-Fine Car Wash in Irving, Harris masturbated in front of a female customer and was fired from the job he had held for about ten months.

Four days later, he borrowed a car from a friend, borrowed a handgun from another friend, then drove to the carwash on a Monday morning before it opened. He forced manager Dennis Lee, assistant manager Augustin Villasenor, and cashier Rhoda Wheeler into the office. He instructed Wheeler to open the safe. She complied and gave him the cash. Harris then forced all three victims to the floor and shot each of them in the back of the head at close range. He also slit Lee's throat.

Before Harris could leave, three other employees arrived for work. Harris forced them to kneel on the floor of the lobby and shot each of them in the back of the head at close range. Benjamin Villasenor, 32, and Roberto Jimenez, 15, died. The third victim survived but was left permanently disabled. Harris returned the vehicle to his friend and told him he discovered some bodies at the car wash.

Harris then purchased some new clothing, checked into a motel, and sent another friend to purchase a gold cross necklace for him. Harris made about $4,000 in the robbery. The defense characterized the murders as an immediate reaction to provocation, after one of his former co-workers called him a "pervert".

After his arrest, Harris also confessed to the November 1999 murder of Sandra Scott, because he believed she had taken $200 from his wallet. Harris described how he abducted and killed her, and led police to her remains. He was charged with her capital murder, but was not tried.

Harris had three previous convictions for burglary of a building. He was sentenced to five years in prison on two counts in May 1991 and eight years on a third count in June 1991. He was paroled in May 1999 and discharged in June. Harris also had a history of assault and battery and drug dealing. Testimony at Harris's punishment hearing indicated that on the day he was arrested for the car wash murders, he was planning to drive to Florida to kill an old girlfriend.

Citations:

Harris v. State, Not Reported in S.W.3d, 2003 WL 1793023 (Tex.Cr.App. 2003). (Direct Appeal)
Harris v. Thaler, 464 Fed.Appx. 301 (5th Cir. 2012). (Habeas)

Final/Special Meal:

Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.

Final/Last Words:

In his last statement, Harris expressed love and comfort to his brother and three friends who attended his execution. "I'm going home. I'm going home," he said. He did not look in the direction of the friends and relatives of his victims, who watched from another room. "Don't worry about me," he said. "I'll be alright. God bless, and the Texas Rangers, Texas Rangers."

Texas Department of Criminal Justice

Robert Wayne Harris
Date of Birth: 2/28/1972
DR#: 999364
Date Received: 10/6/2000
Education: 9 years
Occupation: Laborer
Date of Offense: 3/20/2000
County of Offense: Dallas
Native County: Dallas
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 6' 00"
Weight: 182

Prior Prison Record:

8 year sentence from Dallas County for 3 counts of burglary of a building. 5/3/1999 released on mandatory supervision. Discharged 6/27/1999.

Summary of incident: On 3/20/2000 at a car wash in Irving, Harris entered his former place of employment and began shooting co-workers. Harris had been fired three days prior to the shooting after exposing himself to two women. Five people were killed during the shooting. After the shooting, Harris fled the scene on foot.

Co-Defendants: None.

Texas Attorney General

Monday, September 17, 2012

Media Advisory: Robert W. Harris scheduled for execution

DALLAS – Pursuant to a court order by the 282nd District Court in Dallas County, Robert Wayne Harris is scheduled for execution after 6 p.m. on September 20, 2012. In 2000, a Dallas County jury convicted Harris of capital murder for killing Agustin Villasenor and Rhoda Wheeler during the same criminal transaction.

FACTS OF THE CASE

The U.S. Court of Appeals for the Fifth Circuit, citing the Texas Court of Criminal Appeal’s description of the facts, described the murder of Agustin Villasenor and Rhoda Wheeler as follows:

[Harris] worked at Mi-T-Fine Car Wash for ten months prior to the offense. An armored car picked up cash receipts from the car wash every day except Sunday. Therefore, [Harris] knew that on Monday morning, the safe would contain cash receipts from the weekend and the cash register would contain $200-$300 for making change. On Wednesday, March 15, 2000, [Harris engaged in sexual misconduct] in front of a female customer. The customer reported the incident to a manager, and a cashier called the police. [Harris] was arrested and fired. On Sunday, March 19[th], [Harris] spent the day with his friend, Junior Herrera, who sold cars. Herrera was driving a demonstrator car from the lot. Although [Harris] owned his own vehicle, he borrowed Herrera’s that evening. He then went to the home of friend Billy Brooks, who contacted his step-son, Deon Bell, to lend [Harris] a pistol.

On Monday, March 20[th], [Harris] returned to the car wash in the borrowed car at 7:15 a.m., before it opened for business. [Harris] forced the manager, Dennis Lee, assistant manager, Agustin Villaseñor, and cashier, Rhoda Wheeler, into the office. He instructed Wheeler to open the safe, which contained the cash receipts from the weekend. Wheeler complied and gave him the cash. [Harris] then forced all three victims to the floor and shot each of them in the back of the head at close range. He also slit Lee’s throat.

Before [Harris] could leave, three other employees arrived for work unaware of the danger. [Harris] forced them to kneel on the floor of the lobby area and shot each of them in the back of the head from close range. One of the victims survived with permanent disabilities. Shortly thereafter, a seventh employee, Jason Shields, arrived. Shields noticed the three bodies in the lobby and saw [Harris] standing near the cash register. After a brief exchange in which [Harris] claimed to have discovered the crime scene, pointed out the bodies of the other victims, and pulled a knife from a nearby bookshelf, Shields became nervous and told [Harris] he needed to step outside for fresh air. Shields hurried to a nearby doughnut shop to call authorities. [Harris] followed Shields to the doughnut shop, also spoke to the 911 operator, then fled the scene.

[Harris] returned the vehicle to Herrera and told him that he had discovered some bodies at the car wash. [Harris] then took a taxi to Brooks’s house. At Brooks’s house, [Harris] separated the money from the other objects and disposed of the metal lock boxes, a knife, a crowbar, and pieces of a cell phone in a wooded area. [Harris] purchased new clothing, checked into a motel, and sent Brooks to purchase a gold cross necklace for him. Later that afternoon, [Harris] drove to the home of another friend and remained there until the following morning, when he was arrested. Testimony also showed that [Harris] had planned to drive to Florida on Tuesday and kill an old girlfriend.

PROCEDURAL HISTORY

On April 10, 2000, Harris was indicted Harris for the murder of Agustin Villasenor and Rhoda Wheeler.

On September 29, 2000, a Dallas County jury found Harris guilty of murdering Agustin Villasenor and Rhoda Wheeler. After the jury recommended capital punishment, the court sentenced Harris to death by lethal injection.

On February 12, 2003, the Texas Court of Criminal Appeals affirmed Harris’s conviction and sentence.
On October 6, 2003, the U.S. Supreme Court denied writ of certiorari.
On July 1, 2002, Harris sought a writ of habeas corpus with the state trial court.
On June 3, 2004, the trial court recommended that Harris’s application be denied.
On September 15, 2004, the Texas Court of Criminal Appeals denied habeas relief.
On September 14, 2005, Harris filed a federal petition for a writ of habeas corpus.
On September 10, 2008, the district court ordered an evidentiary hearing set on retardation claim.
On November 13, 2009 the court ordered an independent evaluation of Harris.
On March 24, 2011, the district court denied Harris’s habeas petition and refused to issue a COA.
On April 21, 2011, Harris filed a motion to alter or amend the judgment in the district court.
On April 25, 2011 the district court denied Harris’s motion.
On March 15, 2012, the U.S. Court of Appeals for the Fifth Circuit denied the COA.
On August 27, 2012, Harris filed a successive petition for habeas corpus in the 282nd District Court.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of Harris’s trial, jurors learned that Harris had previously been convicted of three burglaries and evading arrest. He had also been charged with unauthorized use of a motor vehicle. A court revoked his probation for absconding from a residential treatment program, and he spent the next eight years in prison. In prison, Harris resided mostly in administrative segregation due to several violations and aggressive behavior. He attended the Program for the Aggressive Mentally Ill Offender, but the incidents continued. The program ultimately discharged him for non-compliance. Fifteen prison personnel testified regarding Harris’s behavioral problems during his incarceration, which included setting fire to his cell, threatening to kill prison personnel, assaulting prison personnel and other inmates, dealing drugs, refusing to follow orders, and engaging in sexual misconduct.

Dallas-area killer of 5 set to die

By Michael Graczyk - ItemOnline.com

September 19, 2012

HUNTSVILLE — Arrested and then fired for exposing himself to a customer at a Dallas-area car wash where he’d worked for 10 months, Robert Wayne Harris borrowed a car and gun from acquaintances and returned a week later just before it was to open for the day. He was arrested the next day and charged with murder after five bodies were discovered at the Mi-T-Fine Car Wash in Irving. Harris, 40, was set for execution this evening for the carnage.

The car wash manager, his assistant and a cashier already were there that Monday morning 12 years ago when Harris showed up. Court records show Harris ordered that the safe containing the weekend receipts be opened and the three people get down on the floor. Each then was fatally shot and the assistant manager, who fired Harris the previous week, also had his throat slit. Three more employees reporting for work moments later were ordered to kneel and were shot in the back of the head. Two were killed and a third survived but with permanent injuries. When yet another worker arrived, Harris told him he had just stumbled upon the bloody scene, but the man became nervous when Harris pulled a knife. He told Harris he needed to step outside, then ran to find a phone and called 911. Harris never denied his involvement in the March 2000 massacre.

A Dallas County jury convicted Harris of capital murder after 11 minutes of deliberations, then decided he should be put to death. “There wasn’t much question about the guilt,” Brad Lollar, one of Harris’ trial lawyers, recalled. “Our whole aim was to get him a life sentence.”

Prosecutors tried him specifically for two of the slayings: Agustin Villasenor, 36, of Arlington, the assistant manager who had worked about 11 years at the car wash, and cashier Rhoda Wheeler, 46, of Irving. The other slaying victims were Villasenor’s brother, Benjamin, 32, a seven-year employee; Dennis Lee, 48, of Irving, the car wash manager; and Roberto Jimenez Jr., 15, also an employee and from Mexico. “I remember looking at the crime scene photos,” Greg Davis, the lead prosecutor in the case, said this week. “I remember the floors just covered with blood. I remember just the vicious nature of the offense and that fact is was conceived by Robert Harris.”

The day after Harris confessed to the car wash bloodbath, he led police to a ditch in the weedy and littered Trinity River floodplain and the remains of an Irving woman, Sandra Scott, 37, who had been missing for four months. He was charged but never tried for capital murder in her abduction and slaying. The Texas Board of Pardons and Paroles on Tuesday rejected a clemency request from Harris.

Appeals pending before the U.S. Supreme Court argued the jury that heard the case against Harris, who is black, was unfairly selected by prosecutors who used their jury challenges to exclude potential black jurors from the panel. “Prosecutors engaged in purposeful racial discrimination,” Harris’ appellate attorney, Lydia Brandt, told the court. Davis denied the claims. State attorneys told the Supreme Court the trial record includes nothing to indicate the race of jurors or those who were not selected.

Another appeal contended Harris was mentally impaired and he should not be put to death because of a Supreme Court prohibition against executing the mentally impaired. “Harris’ case had no ‘battle of the experts’ where defense experts opined he had retardation whereas states’ experts contended he did not,” Georgette Oden, an assistant Texas attorney general, told the justices. “Even Harris’ experts did not find him to be retarded.”

Harris has declined to speak with reporters from prison, with his execution date approaching. Lollar described him as a cooperative client but “the worst stutterer I have ever seen.” Lollar speculated the speech disorder was a result of Harris, at age 8, watching his father kill his mother and then was worsened by his mental impairment. “That would affect the mind of anybody,” he said.

Court records show when Harris was 18 he was convicted of three burglaries, evading arrest and was charged with unauthorized use of a motor vehicle. His probation was revoked after he fled a treatment program and he went to prison for eight years. He spent most of his time in administrative segregation, a confinement level for troublesome inmates.

Harris would be the eighth Texas prisoner given lethal injection this year. At least 10 other condemned inmates have execution dates scheduled in the coming months in the nation’s busiest capital punishment state, including one set for next week.

Texas executes man who confessed to killing 5

By Michael Graczk - The Houston Chronicle

September 20, 2012

HUNSTVILLE, Texas (AP) — An ex-convict who confessed to killing five people at a Dallas-area car wash a week after he was fired from his job there 12 years ago was executed Thursday evening. Robert Wayne Harris, 40, received lethal injection less than two hours after the U.S. Supreme Court refused appeals to halt his punishment.

Harris expressed love to his brother and three friends who were watching through a window. "I'm going home. I'm going home," Harris said. "Don't worry about me. I'll be alright. God bless, and the Texas Rangers, Texas Rangers." He snored briefly as the lethal dose of pentobarbital began, then all breathing stopped. He was pronounced dead at 6:43 p.m., making him the eighth Texas inmate executed in the nation's most active capital punishment state. Another execution is set for next week.

Harris was convicted of two of the five slayings in March 2000 at the Mi-T-Fine Car Wash in Irving. He also was charged with abducting and killing a woman months before the killing spree and led police to her remains.

Harris didn't deny the slayings, but his lawyer unsuccessfully contended in appeals he was mentally impaired and should be spared because of a Supreme Court ban on execution of mentally impaired people. Attorney Lydia Brandt also argued prosecutors improperly removed black prospective jurors from serving on his trial jury. Harris is black. Harris died "without ever having had a fair trial" on the issues, Brandt said.

Harris' brother asked to leave the death chamber before the procedure was complete. A half-dozen friends and relatives of the victims also were present, watching in another room. Harris never looked at them. Two of them hugged after it was apparent Harris was dead. They declined to speak with reporters afterward. State attorneys opposed Harris' appeals, saying IQ tests disputed the mental impairment claims and that no racial component was involved in jury selection.

Harris had served an eight-year sentence for burglary and other offenses and had been working at the car wash for about 10 months when he was fired and arrested after exposing himself to a female customer. The following Monday, he showed up before the business opened, demanded the safe be opened and then shot the manager, the assistant who had fired Harris and a cashier. Three more employees reporting to work also were shot, two of them fatally. Harris was arrested the next day.

"I remember just the vicious nature of the offense and the fact it was very well thought-out and conceived by Robert Harris," Greg Davis, the former Dallas County assistant district attorney who was the lead trial prosecutor, said this week. "Guilt is just crystal clear." Brad Lollar, one of Harris' trial lawyers, acknowledged that, and said: "Our whole aim was to get him a life sentence."

Prosecutors tried Harris specifically for two of the slayings: Agustin Villasenor, 36, of Arlington, the assistant manager whose throat also was slit, and cashier Rhoda Wheeler, 46, of Irving. Harris was charged but not tried for killing Villasenor's brother, Benjamin, 32, a seven-year employee; car wash manager Dennis Lee, 48, of Irving; and Roberto Jimenez Jr., 15, an employee from Mexico. The day after Harris confessed to the car wash bloodbath, he led police to the remains of an Irving woman, Sandra Scott, 37, who had been missing for four months. He was charged but never tried for capital murder in her death.

Court records showed Harris was 18 when he went to prison for burglary and other charges and after violating probation. He spent most of it in administrative segregation, a confinement level for troublesome inmates. Testimony at his trial showed he set fire to his cell, assaulted and threatened to kill prison staff and inmates, dealt drugs and engaged in sexual misconduct. Harris' mention of the baseball team in his last words isn't the first time a sports team has been referred to from the death chamber gurney. Several have thanked the Dallas Cowboys football team for providing them enjoyment.

Robert Wayne Harris

ProDeathPenalty.com

Robert Wayne Harris worked at Mi-T-Fine Car Wash for ten months. An armored car picked up cash receipts from the car wash every day except Sunday. Therefore, Harris knew that on Monday morning, the safe would contain cash receipts from the weekend and the cash register would contain $200-$300 for making change.

On Wednesday, March 15, 2000, Harris masturbated in front of a female customer. The customer reported the incident to a manager, and a cashier called the police. Harris was arrested and fired. On Sunday, March 19, Harris spent the day with his friend, Junior Herrera, who sold cars. Herrera was driving a demonstrator car from the lot. Although Harris owned his own vehicle, he borrowed Herrera's that evening. He then went to the home of friend Billy Brooks, who contacted his step-son, Deon Bell, to lend Harris a pistol.

On Monday, March 20, Harris returned to the car wash in the borrowed car at 7:15 a.m., before it opened for business. Harris forced the manager, Dennis Lee, assistant manager, Augustin Villasenor, and cashier, Rhoda Wheeler, into the office. He instructed Wheeler to open the safe, which contained the cash receipts from the weekend. Wheeler complied and gave him the cash. Harris then forced all three victims to the floor and shot each of them in the back of the head at close range. He also slit Lee's throat. Before Harris could leave, three other employees arrived for work unaware of the danger. Harris forced them to kneel on the floor of the lobby area and shot each of them in the back of the head from close range. One of the victims survived with permanent disabilities.

Shortly thereafter, a seventh employee, Jason Shields, arrived. Shields noticed the three bodies in the lobby and saw Harris standing near the cash register. After a brief exchange in which Harris claimed to have discovered the crime scene, pointed out the bodies of the other victims, and pulled a knife from a nearby bookshelf, Shields became nervous and told Harris he needed to step outside for fresh air. Shields hurried to a nearby doughnut shop to call authorities. Harris followed Shields to the doughnut shop, also spoke to the 911 operator, then fled the scene.

Harris returned the vehicle to Herrera and told him that he had discovered some bodies at the car wash. Harris then took a taxi to Brooks' house. At Brooks' house, he separated the money from the other objects and disposed of the metal lock boxes, a knife, a crowbar, and pieces of a cell phone in a wooded area. Harris purchased new clothing, checked into a motel, and sent Brooks to purchase a gold cross necklace for him. Later that afternoon, Harris drove to the home of another friend and remained there until the following morning, when he was arrested.

Testimony also showed that Harris had planned to drive to Florida on Tuesday and kill an old girlfriend. Harris directed police to the body of Sandra Estes Scott, who had been missing since November 29, 1999. Harris's long history of violence and aggression reveals an escalating pattern of disrespect for the law. Between the ages of eight and fourteen, Harris attended special education classes for emotionally-disturbed children, physically confronted teachers and students, and received a diagnosis of aggressive conduct disorder. At the age of fifteen, Harris assaulted a clerk in the local mall and stole several items from his aunt's house, including a gun. After his aunt reported the burglary to police, Harris struck her on the back of the head with a hammer so forcefully that the hammer broke. Harris spent two years in the Texas Youth Commission for this incident, where again he received a diagnosis of aggressive conduct disorder. At age seventeen, Harris began dealing crack cocaine. At the age of eighteen, Harris was convicted of three burglaries, evading arrest, and charged with unauthorized use of a motor vehicle. A court revoked his probation for absconding from a residential treatment program, and he spent the next eight years in prison.

In prison, Harris resided mostly in administrative segregation due to several violations and aggressive behavior. He attended the Program for the Aggressive Mentally Ill Offender, but the incidents continued. This program ultimately discharged him for non-compliance. Fifteen prison personnel testified regarding Harris's behavioral problems during his incarceration, which included setting fire to his cell, threatening to kill prison personnel, assaulting prison personnel and other inmates, dealing drugs, refusing to follow orders, and engaging in sexual misconduct. Harris was released from prison in May 1999. That month, he began work at Mi-T-Fine Car Wash.

Within six months, he murdered Sandra Scott because he believed she had taken $200 from his wallet. Harris's psychiatrist testified that patients like Harris were difficult to control, because punishment did not frighten them, and both Harris's psychiatrist and psychologist agreed upon a diagnosis of anti-social personality disorder marked by a persistent pattern of violating the rights of others or major social norms. The facts of the instant offense and Harris's criminal history overwhelmingly signal Harris's potential for future dangerousness. Harris has spent all but eight years of his life in disciplinary programs. And yet, his release from prison ten months before the instant offense did not trigger a period of rehabilitation and resolve to remain free but rather a killing spree that culminated in the murders of at least six people. He carefully planned the execution-style murders of his fellow employees by borrowing a car and weapon, then covered his involvement by destroying or hiding physical evidence linking himself to the crime. The evidence further suggests that Harris planned to continue the killing spree.

Guilty Verdict in Car Wash Killings

Texas Jury Convicts Former Employee in Car Wash Slayings

By Matt Curry - ABC NEWS

September 26, 2000

A fired car wash employee was found guilty of two counts of capital murder today in the slayings of two of five former co-workers.

The jury returned its verdict after about 15 minutes of deliberations and just one day after the trial started. The defense presented no witnesses.

Robert Wayne Harris was accused of killing Mi-T-Fine Car Wash employees cashier Rhoda Wheeler, 45, and assistant manager Augustin Villasenor, 36, on March 20, three days after he was fired.

Also killed were Villasenor’s brother, Benjamin Villasenor, 32, Roberto Jimenez Jr., 15, and 48-year-old car wash manager Dennis Lee. Ramos was critically wounded.

Harris was not tried for those deaths although he is charged in the five slayings, and he has been charged with the unrelated slaying of an Irving woman.

Death For Death? Prosecutors had said they would seek the death penalty.

Charity McFadden, 25, Wheeler’s daughter, said she hopes Harris gets the death penalty.

“If it had to happen, I’m glad it happened in Texas because they’ll get rid of him faster in Texas than they would in any other state,” she said.

The punishment phase of the trial begins Wednesday.

Prosecutor Greg Davis said in closing that Harris acted out of “hatred, revenge and greed, nothing more.”

“You can only imagine what was going through the minds of the people who were shot,” Davis said. “God only knows.”

Confessions Galore, No Defense Defense attorney Brad Lollar spoke for less than a minute in closing.

“Some trials are about guilt or innocence,” he said. “Some trials are about punishment. Hold the state to the burden of proof. I appreciate it,” Lollar said.

Harris, who has confessed to police, his brother and at least one television reporter, pleaded innocent at the start of the trial Monday.

The final witness was the lone survivor of the massacre at an Irving car wash who identified Robert Wayne Harris today as the gun-wielding man who ordered him to his knees.

Six people were shot shortly after arriving to work at the car wash March 20. Only Ramos survived. His injuries have left him with trouble walking and hearing loss in his left ear. The left side of his face is paralyzed.

Ramos, 37, speaking through an interpreter, said he walked to work with Benjamin Villasenor on the March morning. Holding the arm of a prosecutor, he demonstrated how the two knelt when motioned to do so by the gunman moments after arriving at the car wash.

“After that, I don’t remember anything,” he said.

He said he remembered Harris as the tall, thin man holding the gun.

Lollar offered no questions, saying only “Mr. Ramos, I’m sorry.”

Earlier, Joseph Guilyardo, Dallas County deputy medical examiner, testified Wheeler and Lee were shot with the muzzle of the handgun pressed against their heads. Also, Lee was slashed across the throat with a sharp instrument.

Guilyardo showed graphic photos on a large screen, several feet in front of Harris, who did not appear to look directly at them. Harris sat passively resting his chin in his left hand. He appeared to have trouble keeping his eyes open.

Last Bloody Gasps Jason Shields, 21, wept while testifying about finding the bloodied bodies as he arrived to work a few minutes late that morning.

“They were all lying, face down I believe, in a pool of blood,” Shields said. “They were still trying to breathe.”

Standing nearby, Shields said, was Harris.

Shields told jurors that Harris directed him to three more bodies in the office of the car wash. Harris then reached for a knife on a bookshelf, Shields said. Shields said he became scared and ran to a nearby doughnut shop to call 911.

In the Court of Criminal Appeals of Texas

No. 74,025

Robert Wayne Harris, Appellant,
v.
The Stae of Texas

On Direct Appeal from Dallas County

Holcomb, J., delivered the opinion of a unanimous Court

OPINION

In September 2000, a Dallas County jury convicted appellant of capital murder. Tex. Penal Code Ann. §19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g). ⁽¹⁾ Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises seventeen points of error. We will affirm.

In appellant's seventh point of error, he contests the legal sufficiency of the evidence to support the future dangerousness issue. See Art. 37.071 § 2(b). In evaluating the sufficiency of the evidence to support the jury's answer to the future dangerousness special issue, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that the appellant would commit criminal acts of violence constituting a continuing threat to society. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Allridge v. State, 850 S.W.2d 471, 487 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993). We have enumerated a non-exclusive list of factors that the jury may consider in determining whether a defendant constitutes a continuing threat to society:

(1) the circumstances of the capital offense, including the defendant's state of mind and whether he was acting alone or with other parties;

(2) the calculated nature of the defendant's acts;

(3) the forethought and deliberateness exhibited by the crime's execution;

(4) the existence of a prior criminal record and the severity of the prior crimes;

(5) the defendant's age and personal circumstances at the time of the offense;

(6) whether the defendant was acting under duress or the domination of another at the time of the commission of the offense;

(7) psychiatric evidence; and

(8) character evidence.

Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987); accord Reese v. State, 33 S.W.3d 238, 245 (Tex. Crim. App. 2000). In an appropriate case, the circumstances of the offense alone may warrant an affirmative answer to the future dangerousness special issue. Sonnier v. State, 913 S.W.2d 511, 517 (Tex. Crim. App. 1995).

Appellant characterizes this offense as an immediate reaction to provocation which did not involve "torture, necrophilia, disfigurement, mutilation, or other traditional circumstances that would justify a death sentence without additional evidence." He claims that he "reacted" when one of the car wash employees called him a "pervert." Appellant fails to cite any authority for the proposition that a defendant must commit capital murder in the course of torture, necrophilia, disfigurement, or mutilation to warrant the death penalty, and the record belies his contention that he murdered five people at the car wash only in response to provocation.

Appellant worked at Mi-T-Fine Car Wash for ten months prior to the offense. An armored car picked up cash receipts from the car wash every day except Sunday. Therefore, appellant knew that on Monday morning, the safe would contain cash receipts from the weekend and the cash register would contain $200-$300 for making change. On Wednesday, March 15, 2000, appellant masturbated in front of a female customer. The customer reported the incident to a manager, and a cashier called the police. Appellant was arrested and fired.

On Sunday, March 19, appellant spent the day with his friend, Junior Herrera, who sold cars. Herrera was driving a demonstrator car from the lot. Although appellant owned his own vehicle, he borrowed Herrera's that evening. He then went to the home of friend Billy Brooks, who contacted his step-son, Deon Bell, to lend appellant a pistol.

On Monday, March 20, appellant returned to the car wash in the borrowed car at 7:15 a.m., before it opened for business. Appellant forced the manager, Dennis Lee, assistant manager, Augustin Villasenor, and cashier, Rhoda Wheeler, into the office. He instructed Wheeler to open the safe, which contained the cash receipts from the weekend. Wheeler complied and gave him the cash. Appellant then forced all three victims to the floor and shot each of them in the back of the head at close range. He also slit Lee's throat.

Before appellant could leave, three other employees arrived for work unaware of the danger. Appellant forced them to kneel on the floor of the lobby area and shot each of them in the back of the head from close range. One of the victims survived with permanent disabilities. Shortly thereafter, a seventh employee, Jason Shields, arrived. Shields noticed the three bodies in the lobby and saw appellant standing near the cash register. After a brief exchange in which appellant claimed to have discovered the crime scene, pointed out the bodies of the other victims, and pulled a knife from a nearby bookshelf, Shields became nervous and told appellant he needed to step outside for fresh air. Shields hurried to a nearby doughnut shop to call authorities. Appellant followed Shields to the doughnut shop, also spoke to the 911 operator, then fled the scene.

Appellant returned the vehicle to Herrera and told him that he had discovered some bodies at the car wash. Appellant then took a taxi to Brooks' house. At Brooks' house, he separated the money from the other objects and disposed of the metal lock boxes, a knife, a crowbar, and pieces of a cell phone in a wooded area. Appellant purchased new clothing, checked into a motel, and sent Brooks to purchase a gold cross necklace for him. Later that afternoon, appellant drove to the home of another friend and remained there until the following morning, when he was arrested. Testimony also showed that appellant had planned to drive to Florida on Tuesday and kill an old girlfriend.

Appellant's long history of violence and aggression reveals an escalating pattern of disrespect for the law. Between the ages of eight and fourteen, appellant attended special education classes for emotionally-disturbed children, physically confronted teachers and students, and received a diagnosis of aggressive conduct disorder. At the age of fifteen, appellant assaulted a clerk in the local mall and stole several items from his aunt's house, including a gun. After his aunt reported the burglary to police, appellant struck her on the back of the head with a hammer so forcefully that the hammer broke. Appellant spent two years in the Texas Youth Commission for this incident, where again he received a diagnosis of aggressive conduct disorder. At age seventeen, appellant began dealing crack cocaine.

At the age of eighteen, appellant was convicted of three burglaries, evading arrest, and charged with unauthorized use of a motor vehicle. A court revoked his probation for absconding from a residential treatment program, and he spent the next eight years in prison.

In prison, appellant resided mostly in administrative segregation due to several violations and aggressive behavior. He attended the Program for the Aggressive Mentally Ill Offender, but the incidents continued. This program ultimately discharged him for non-compliance. Fifteen prison personnel testified regarding appellant's behavioral problems during his incarceration, which included setting fire to his cell, threatening to kill prison personnel, assaulting prison personnel and other inmates, dealing drugs, refusing to follow orders, and engaging in sexual misconduct.

Appellant was released from prison in May 1999. That month, he began work at Mi-T-Fine Car Wash. Within six months, he murdered Sandra Scott because he believed she had taken $200 from his wallet. Appellant's psychiatrist testified that patients like appellant were difficult to control, because punishment did not frighten them, and both appellant's psychiatrist and psychologist agreed upon a diagnosis of anti-social personality disorder marked by a persistent pattern of violating the rights of others or major social norms.

The facts of the instant offense and appellant's criminal history overwhelmingly signal appellant's potential for future dangerousness. Appellant has spent all but eight years of his life in disciplinary programs. And yet, his release from prison ten months before the instant offense did not trigger a period of rehabilitation and resolve to remain free but rather a killing spree that culminated in the murders of at least six people. He carefully planned the execution-style murders of his fellow employees by borrowing a car and weapon, then covered his involvement by destroying or hiding physical evidence linking himself to the crime. The evidence further suggests that appellant planned to continue the killing spree. We overrule point of error seven.

In his second point of error, appellant argues that the trial court erred in conducting voir dire in his absence, violating the Sixth Amendment, Fourteenth Amendment, and Article I, section 10 of the Texas Constitution. On September 18, 2001, defense counsel waived the defendant's presence for the day, then struck three venire members, agreed to excuse two venire members, and accepted juror Semyan. On this complained-of date, appellant was undergoing psychological testing by his expert witness, Dr. J. Douglas Crowder.

While a criminal defendant has a constitutional right to be "present at all stages of the trial where his absence might frustrate the fairness of the proceedings," Faretta v. California, 422 U.S. 806, 819 n.15 (1975), he may waive that right. See Garcia v. State, 919 S.W.2d 370, 393-94 (Tex. Crim. App. 1996) (op. on rehearing) (defendant may waive Confrontation Clause-based right under Article 33.03 to attend proceeding in which court qualified and instructed ten prospective jurors). The federal courts of appeals that have squarely addressed the issue of counsel's acquiescence in conducting portions of jury voir dire outside a defendant's presence have consistently held that counsel's acquiescence forfeits any objection to that process. See United States v. Rolle, 204 F.3d 133, 138 (4^th Cir. 2000); United States v. Gibbs, 182 F.3d 408, 437 (6^th Cir. 1999); United States v. Tipton, 90 F.3d 861, 874 (4^th Cir. 1996), cert. denied, 520 U.S. 1253 (1997); United States v. Dioguardi, 428 F.2d 1033, 1039 (2^nd Cir.), cert. denied, 400 U.S. 825 (1970). Further, if the presence of the defendant does not bear "a reasonably substantial relationship to the opportunity to defend," no harm is shown by his absence. Adanandus v. State, 866 S.W.2d 210, 219 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215 (1994). Not only did appellant waive his right to be present at voir dire, he does not contend that he suffered any harm or injury to his opportunity to defend by the voir dire decisions made on September 18, other than arguing, "[w]ithout Appellant's input, it is impossible to determine if his presence to assist counsel might have developed different actions by the attorneys during voir dire proceedings." We overrule point of error two.

In point of error three, appellant reiterates the constitutional arguments he made in point of error two and contends that the trial court erred in conducting part of a hearing to qualify his expert in appellant's absence. Again, defense counsel waived appellant's right to be present. When a defendant voluntarily absents himself after the jury has been selected, the trial may proceed to its conclusion. Art. 33.03. An appellate court will not disturb the trial court's findings without evidence from the defendant that his absence was not voluntary. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984).

During the punishment phase of trial, the trial court began one morning's proceedings with a hearing outside of the jury's presence to determine the admissibility of Dr. Crowder's expert testimony for the defense. Defense counsel suggested that they begin the hearing without appellant, who was expected to arrive momentarily. The trial court agreed and asked the bailiffs to "bring [appellant] out as soon as he's ready." The record does not reflect when appellant arrived. Because appellant requested the procedure employed, we overrule point of error three. See Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App. 1999).

In point of error four, appellant alleges that the trial court erred in reversing the order in which the parties either accepted or challenged the final two venire members. After venire member Reeder's voir dire, the trial court asked him to step into the hallway, then immediately proceeded to the voir dire of the final venire member, Harper-Hayden. Following Harper-Hayden's voir dire, defense counsel challenged her for cause, which the trial court denied, then exercised a peremptory strike against her. Defense counsel also asked for "an additional challenge to strike Juror 1608, Scott Andrew Reeder," which the trial court denied. Counsel never objected to the trial court's re-ordering of the exercise of challenges and has therefore failed to preserve error for appeal. The procedure controlling the order and the timing of the exercise of peremptory challenges is not an absolute requirement and may be waived. Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1081 (2000). We overrule point of error four.In points of error eight and nine, appellant argues that the trial court erred in denying his challenges for cause of venire members Wittenback and Dulworth. He alleges that both venire members expressed a bias against requiring the State to prove everything in the indictment beyond a reasonable doubt and considering mitigating evidence if they answered the future dangerousness issue affirmatively.

To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venire member; 3) his peremptory challenges were exhausted; 4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997). The record in this case shows that appellant exhausted his peremptory challenges and requested an additional challenge, which the trial court denied. Appellant then objected to the seating of the twelfth juror, Scott Reeder, thereby preserving any error for review on appeal.

When the trial judge errs in overruling a challenge for cause against a venire member, the defendant is harmed if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of the strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986), cert. denied, 482 U.S. 920 (1987). Because the record reflects that appellant received no additional peremptory challenges, appellant demonstrates harm by showing that the trial court erroneously denied one of the complained-of challenges for cause. Penry v. State, 903 S.W.2d 715, 732 (Tex. Crim. App.), cert. denied, 516 U.S. 977 (1995); Martinez v. State, 763 S.W.2d 413, 425 (Tex. Crim. App. 1988), cert. denied, 512 U.S. 1246 (1994).

When reviewing a trial court's decision to grant or deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the court's ruling. Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996). We give great deference to the trial court's decision because the trial judge is present to observe the demeanor of the venire member and to listen to his tone of voice. Id. We accord particular deference when the potential juror's answers are vacillating, unclear, or contradictory. King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000).

Appellant may properly challenge any prospective juror who has a bias or prejudice against any phase of the law upon which he is entitled to rely. Art. 35.16(c)(2). The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law. See, e.g., Patrick, 906 S.W.2d at 489; Hughes v. State, 878 S.W.2d 142, 148 (Tex. Crim. App. 1992). Before a prospective juror can be excused for cause on this basis, however, the law must be explained to him, and he must be asked whether he can follow that law regardless of his personal views. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999).

In point of error eight, appellant quotes four passages from Wittenback's voir dire in which he argues that Wittenback (1) refused to require the State to prove each element of the offense, (2) favored the imposition of the death penalty in capital murder cases, (3) refused to presume a "no" answer to the future dangerousness issue, and (4) refused to consider mitigating evidence. Wittenback ultimately professed to be able to follow the law after each of the complained-of responses.

In support of his first contention, appellant highlights a series of hypotheticals in which defense counsel asked Wittenback whether he would acquit a defendant if the State failed to prove that (1) the crime occurred entirely within Dallas County, or (2) the two killings occurred within the same criminal transaction, or (3) the defendant killed his victims only in the manner alleged in the indictment. When the State posed these same hypotheticals, Wittenback indicated that he would follow the law and find the defendant not guilty. Under defense counsel's questioning, Wittenback indicated that he would ignore the deviations from the indictment and convict appellant. After the trial court again discussed the State's burden to prove everything alleged in the indictment beyond a reasonable doubt, Wittenback professed an ability to set aside his personal feelings and follow the law.

In support of his second contention, appellant focuses on Wittenback's response to his questionnaire that "if the evidence shows the Defendant guilty of capital murder, I have no problem with the death penalty. . . . Yes, if a killing was involved, it should go to the death penalty." Although Wittenback clarified that he meant a cold-blooded killing, he further indicated that if the State could prove the defendant guilty of the crimes alleged in the indictment, he would favor the death penalty. Wittenback conceded, however, that the death penalty is not appropriate for every murder. Although he admittedly favored the death penalty, he did not have enough information to say how he would vote in this case. He would base his decision on the circumstances and severity of the case.

In support of his third contention, defense counsel extrapolated Wittenback's alleged inclination to impose the death penalty to mean, "you would not be able to presume that [the defendant] wouldn't be a future danger, if you found him guilty of capital murder; is that true?", to which Wittenback responded, "Huh-uh." Wittenback then contrarily indicated that he would require proof that a defendant would pose a future danger and that he had difficulty answering these questions "until actually I, you know, hear the evidence on what type of man he is." He finally responded that he did not believe that every convicted murderer is going to be a danger to society.

1. Unless otherwise indicated, all references to articles are to those in the Texas Code of Criminal Procedure.

Harris v. Thaler, 464 Fed.Appx. 301 (5th Cir. 2012) (Habeas)

Background: Following affirmance of his capital murder conviction and death sentence, 2003 WL 1793023, and unsuccessful attempt to obtain state habeas relief, Texas death row inmate sought federal habeas relief. The United States District Court for the Northern District of Texas denied the petition, and inmate sought a certificate of appealability (COA), arguing that he could not be executed because he was mentally retarded.

Holdings: The Court of Appeals held that: (1) the lack of a live hearing in the state habeas court did not negate the presumption of correctness accorded to factual decisions made by that court; (2) neither the state nor the federal court erred in considering expert testimony that did not adjust inmate's IQ scores using Standard Error of Measurement or the Flynn Effect; (3) the district court did not err in granting inmate's motion to cancel the evidentiary hearing; and (4) reasonable jurists could not debate the district court's conclusion that inmate failed to show that he was ineligible for a death sentence. Application denied.

PER CURIAM: 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.

Robert Wayne Harris was convicted of capital murder following a jury trial in Texas and sentenced to death. The Texas Court of Criminal Appeals (CCA) affirmed his conviction and sentence on direct appeal. Harris unsuccessfully sought both state and federal habeas relief. Harris now seeks a certificate of appealability (COA) pursuant to 28 U.S.C. § 2253 to challenge the district court's denial of habeas relief, arguing under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that he cannot be executed because he is mentally retarded. We hold that reasonable jurists could not debate the district court's conclusion that Harris has failed to show that he is ineligible for a death sentence under Atkins. Accordingly, we deny his request for a COA.

I.

The CCA summarized the facts of Harris's crime in its opinion on direct appeal:

[Harris] worked at Mi–T–Fine Car Wash for ten months prior to the offense. An armored car picked up cash receipts from the car wash every day except Sunday. Therefore, [Harris] knew that on Monday morning, the safe would contain cash receipts from the weekend and the cash register would contain $200–$300 for making change. On Wednesday, March 15, 2000, [Harris] masturbated in front of a female customer. The customer reported the incident to a manager, and a cashier called the police. [Harris] was arrested and fired.

On Sunday, March 19[th], [Harris] spent the day with his friend, Junior Herrera, who sold cars. Herrera was driving a demonstrator car from the lot. Although [Harris] owned his own vehicle, he borrowed Herrera's that evening. He then went to the home of friend Billy Brooks, who contacted his step-son, Deon Bell, to lend [Harris] a pistol.

On Monday, March 20[th], [Harris] returned to the car wash in the borrowed car at 7:15 a.m., before it opened for business. [Harris] forced the manager, Dennis Lee, assistant manager, Agustin Villaseñor, and cashier, Rhoda Wheeler, into the office. He instructed Wheeler to open the safe, which contained the cash receipts from the weekend. Wheeler complied and gave him the cash. [Harris] then forced all three victims to the floor and shot each of them in the back of the head at close range. He also slit Lee's throat. Before [Harris] could leave, three other employees arrived for work unaware of the danger. [Harris] forced them to kneel on the floor of the lobby area and shot each of them in the back of the head from close range. One of the victims survived with permanent disabilities. Shortly thereafter, a seventh employee, Jason Shields, arrived. Shields noticed the three bodies in the lobby and saw [Harris] standing near the cash register. After a brief exchange in which [Harris] claimed to have discovered the crime scene, pointed out the bodies of the other victims, and pulled a knife from a nearby bookshelf, Shields became nervous and told [Harris] he needed to step outside for fresh air. Shields hurried to a nearby doughnut shop to call authorities. [Harris] followed Shields to the doughnut shop, also spoke to the 911 operator, then fled the scene.

[Harris] returned the vehicle to Herrera and told him that he had discovered some bodies at the car wash. [Harris] then took a taxi to Brooks's house. At Brooks's house, he separated the money from the other objects and disposed of the metal lock boxes, a knife, a crowbar, and pieces of a cell phone in a wooded area. [Harris] purchased new clothing, checked into a motel, and sent Brooks to purchase a gold cross necklace for him. Later that afternoon, [Harris] drove to the home of another friend and remained there until the following morning, when he was arrested. Testimony also showed that [Harris] had planned to drive to Florida on Tuesday and kill an old girlfriend. Harris v. State, Slip. Op. at *2, 2003 WL 1793023. Harris was convicted of capital murder for killing Agustin Villaseñor and Rhoda Wheeler in the same criminal transaction and sentenced to death. The CCA affirmed. Harris v. State, 2003 WL 1793023 (Tex.Crim.App.2003)(unpublished). The Supreme Court denied certiorari review. Harris v. Texas, 540 U.S. 839, 124 S.Ct. 97, 157 L.Ed.2d 71 (2003).

Harris petitioned the state court for a writ of habeas corpus, raising an Atkins claim among others. After finding that there were no factual issues requiring a hearing, the trial court entered detailed findings of fact and conclusions of law recommending that habeas relief be denied based on its review of the trial and habeas record. The trial court found that the only time Harris's IQ was tested below 70 was at the age of twenty-eight while preparing his defense to the capital murder charge, and that prior to age eighteen, Harris's IQ was tested at 71 and 80. The trial court concluded that Harris failed to present proof that he met the “significantly subaverage intellectual function” and “onset during developmental phase” prongs of the test for mental retardation. Further it made detailed and extensive findings of fact regarding Harris's adaptive function based on the records, trial proceedings, and Harris' behavior regarding the offense. The trial court concluded that Harris was not mentally retarded. The CCA expressly adopted the trial court's findings and denied Harris's application for writ of habeas corpus. Ex parte Harris, No. 59,925–01 (Tex.Crim.App. Sept. 15, 2004). Harris did not petition the Supreme Court for review of that decision.

Harris filed a federal writ application. The district court approved funds for the appointment of an investigator and for a mental retardation expert. The Director's motion for discovery of Harris's medical and school records was also granted. In August 2008, the district court granted Harris's request for an evidentiary hearing on his mental retardation claim. After the hearing date was set, it was continued at Harris's request. When Harris again requested a continuance of the hearing, the district court ordered a hearing on the issue. Following the hearing, the magistrate judge ordered Harris to submit itemized statements and a status report from the psychologist and investigator. The evidentiary hearing was reset.

Five days before the evidentiary hearing was to take place, Harris moved to cancel his evidentiary hearing and supplement the record with documentary evidence. The request was granted but Harris failed to supplement the record with any evidence. He did file an affidavit of counsel that his expert had retired and was unavailable. Harris also filed his psychologist's affidavit confirming that he did not want to testify. Harris then moved for funding to hire a different expert and for an evidentiary hearing. The magistrate judge denied the request and instead ordered the appointment of an expert to conduct an independent evaluation for the court. Dr. Andrews was appointed and submitted his report to the court.

After reviewing the record, the district court found that Harris failed to show by clear and convincing evidence that he is mentally retarded and denied Harris's petition and COA. This appeal followed.

II.

Under AEDPA, a petitioner must obtain a COA before he can appeal the district court's denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained:

The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller–El, 537 U.S. at 336, 123 S.Ct. 1029.

COA will be granted only if the petitioner makes “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, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted).

Pursuant to the federal habeas statute, as amended by AEDPA, we defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404–08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to § 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).

III.

Harris argues that COA should issue on the question of whether he is mentally retarded and thus exempt from the death penalty under Atkins. Harris raises several arguments in support of his application for COA: (1) that the state court erred in denying a live evidentiary hearing on his Atkins claims; (2) that the state and federal courts erred in considering expert testimony that did not adjust Harris's IQ scores using Standard Error of Measurement or the Flynn Effect; (3) that the federal court erred in granting Harris' motion to cancel the evidentiary hearing; and (4) that the district court erred in concluding that the state court reasonably rejected Harris's claim that he is mentally retarded.

(1) that the state court erred in denying a live evidentiary hearing on his Atkins claims. The district court recognized that at least some of these issues were governed by this circuit's decision in Hall v. Quarterman, 534 F.3d 365 (5th Cir.2008). In Hall, the petitioner was convicted of capital murder prior to the Supreme Court's decision in Atkins. Evidence of Hall's mental abilities was presented at the trial in mitigation. On direct appeal the Texas Court of Criminal appeals rejected Hall's claim that the Constitution barred the execution of mentally retarded persons. Hall filed a state habeas petition requesting a full and fair hearing of this claim, arguing that there had been no fact finding by the trial court or jury as to whether he was, in fact, mentally retarded. While his state habeas claim was pending, the Supreme Court decided Atkins. Hall re-urged his claim for a live hearing on the mental retardation issue. The trial court rejected this claim and conducted a hearing by affidavit, ultimately denying his claim.

The Supreme Court granted Hall's petition for certiorari from his direct appeal and vacated and remanded to the CCA to reconsider its affirmance in light of Atkins. The CCA, relying on the record, held that Hall was not mentally retarded. Hall again appealed to the Supreme Court which denied certiorari. Hall then filed a federal habeas petition.

Because Atkins was decided after Hall's conviction, and the state habeas court's paper hearing on the Atkins mental retardation issue was completed before Texas defined mental retardation under Atkins in Briseno,FN1 this court held that Hall never had the opportunity to present the full range of evidence on the technical question of whether he was mentally retarded. In addition, the state trial court's decision included some factual errors. This court found that the district court abused its discretion by denying Hall a meaningful hearing on the question because, as a result of the process below and the timing of critical decisions from the Supreme Court and the Texas Court of Criminal Appeals, Hall's claim had a high risk of error in fact finding. On remand, the district court conducted an evidentiary hearing and found that Hall was not mentally retarded. Hall v. Thaler, 597 F.3d 746 (5th Cir.2010). This court noted that the district court on remand properly gave deference to the state court's determinations on factual issues, under 28 U.S.C. § 2254(e)(1), under which the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. The district court also found as an original matter that Hall was not mentally retarded. Hall, 597 F.3d at 747, Higginbotham concurring. FN1. Ex Parte Briseno, 135 S.W.3d 1 (Tex.Crim.App.2004).

In this case, Harris like Hall was tried and convicted prior to the Supreme Court's decision in Atkins. Also like Hall, Harris filed his state habeas petition prior to the Texas Court of Criminal Appeals' decision in Briseno, and the state habeas court signed its original findings of fact and conclusions of law before Briseno issued.FN2 Also, the question of whether Harris was mentally retarded was decided by the state trial court in a paper hearing. Accordingly, in order to avoid the potential for factual errors recognized in Hall, the district court in this case granted Harris's request for the live hearing. After Harris elected to waive the evidentiary hearing, the district court reviewed the record and gave deference to the state court's determination of factual issues. However it also made an independent finding that Harris was not mentally retarded.

FN2. The state habeas court apparently signed its original findings of fact and conclusions of law in June 2003, before Briseno was decided, but the original was lost and a substitute version was formally signed on August 10, 2004.

The facts in this case are indistinguishable from those in Hall. Based on that precedent, which did not remand for a hearing in the state habeas court, Harris's claim arising from the lack of a live hearing in this case cannot entitle him to relief because jurists of reason would not disagree with the district court's resolution of this claim. In addition, under Hall, the lack of a live hearing in the state habeas court does not negate the presumption of correctness accorded to factual decisions made by that court. Id. at 746, n. 2. Harris's ultimate burden was to rebut the presumption of correctness by clear and convincing evidence, as will be discussed in issue (4). Id.

(2) that the state and federal courts erred in considering expert testimony that did not adjust Harris's IQ scores using Standard Error of Measurement or the Flynn Effect.

We next consider Harris's argument related to Standard Error of Measurement and the Flynn Effect. According to American Association of Intellectual and Developmental Disabilities (AAIDD), the standard margin of error of measurement on standardized tests measuring general intellectual functioning is 3 to 5 points. The Flynn Effect is an adjustment used in interpreting standardized tests to account for the fact that IQ scores have been increasing from one generation to the next and calls for a reduction of approximately 0.33 points per year for each year between the time the test was administered and the test was normed.

The Texas Court of Criminal Appeals has declined to apply the Flynn Effect to mental retardation claims, referring to it as “an unexamined scientific concept that does not provide a reliable basis for concluding that an appellant had significant[ly] subaverage general intellectual functioning.” Neal v. State, 256 S.W.3d 264, 273 (Tex.Crim.App.2008); Ex parte Blue, 230 S.W.3d 151, 166 (Tex.Crim.App.2007). Because the Supreme Court in Atkins left to the states the task of defining mental retardation, the Texas court's approach to this aspect of the definition of mental retardation is not contrary to, or an unreasonable application of, clearly established federal law. In addition, this circuit does not recognize the Flynn Effect as a valid scientific theory. In re Mathis, 483 F.3d 395, 398, n. 1 (5th Cir.2007). No clearly established federal law requires that a state or federal court only accept IQ scores adjusted by the Flynn Effect or the Standard Error of Measurement. Finally, Harris did not raise the issue of the Flynn Effect or the Standard Error of Measurement in the district court until his Motion to Alter or Amend the Judgment and did not raise the issues at all before the state court. Accordingly, neither theory can justify relief. Cullen v. Pinholster, –––U.S. ––––, 131 S.Ct. 1388, 1398–99, 179 L.Ed.2d 557 (2011).

(3) that the federal court erred in granting Harris' motion to cancel the evidentiary hearing.

As outlined above, it was Harris's decision to waive the evidentiary hearing and present his case of mental retardation to the district court in writing. As the district court noted, Harris waived the hearing because the expert he hired returned an unfavorable opinion and Harris's request for additional funding for a different expert was refused. No clearly established federal law requires the district court to hold a hearing over petitioner's objection. Further no federal law gives Harris the right to an additional expert. Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (defendant is not entitled to an expert “of his personal liking”); Glass v. Blackburn, 791 F.2d 1165, 1168–69 (5th Cir.1986) (suggesting that Ake does not require that more than one expert be provided); Granviel v. Lynaugh, 881 F.2d 185, 192 (5th Cir.1989)(holding that Ake does not give a defendant the “right to the appointment of a psychiatrist who will reached biased or only favorable conclusions”). This claim is without merit as Harris does not make a substantial showing of the denial of a constitutional right.

(4) that the district court erred in concluding that the state court reasonably rejected Harris's claim that he is mentally retarded.

At the core of Harris's petition for COA is his position that the state and federal habeas courts erred in concluding that he is not mentally retarded. Texas courts have defined mental retardation as (1) significant subaverage general intellectual functioning, meaning an IQ of about 70 or below; (2) accompanied by related limitations in adaptive functioning; and (3) the onset of which occurs prior to the age of 18. Briseno, 135 S.W.3d at 7; Lewis v. Quarterman, 541 F.3d 280, 283 (5th Cir.2008). Failure of any of the elements defeats a claim of mental retardation. In order to grant habeas relief, the federal habeas court must determine that all of the adverse findings on the three elements of mental retardation by the state court were based upon an unreasonable determination of the facts in light of all the evidence. Lewis, 541 F.3d at 286. Based on our review of the record, Harris has not met this standard.

As summarized by the district court, Harris has tendered documents and exhibits in support of his claim that he is mentally retarded and exempt from execution under Atkins, including affidavits from lay witnesses, a neuropsychological evaluation by Dr. C. Munro Cullum, and the trial testimony of Dr. Mary Connell. The pre-Atkins expert opinions of Dr. Cullum, Dr. Douglas Crowder, and Dr. Connell suggested that Harris was in the borderline intellectual range that may have included mild mental retardation, but none of them testified that Harris qualified as mentally retarded. The State identified at least six intelligence test scores above the range of mental retardation, and submitted expert reports from Dr. Thomas Allen and Dr. Richard Hughes. Dr. Allen offers the opinion that Harris is not mentally retarded under Atkins, and Dr. Hughes provides an evaluation of the school records with the opinion that Harris did not function as mentally retarded within the developmental period (prior to age 18).

In short, Harris has offered no expert opinion that he is mentally retarded and no I.Q. score at 70 or below from a test taken prior to age 18.

In addition the state court referred to its own memory of the trial record which included many examples of Harris's ability to function normally in society, in support of its conclusion that Harris does not suffer from significant adaptive deficits. Harris earned As, Bs and Cs in school (except for getting Ds and Fs in first grade, and failing third grade) and earned his GED at age eighteen. Harris had his own apartment, a driver's license, a girlfriend, a roommate, a car, a checking account, and friends. At the age of ten, Harris started his own lawn care business and created business cards for that purpose. He performed a wide range of odd jobs for money and the state court noted that Harris worked for ten months at the car wash before murdering his co-workers. Harris understood how money orders worked, because he used some of the crime proceeds to buy one intended to pay a debt. The state court also found that Harris had “at least” an average ability to read and write, based on his handwritten confessions and correspondence. Harris was also able to construct a somewhat elaborate statement regarding the capital murders, a contraindication of mental retardation and the follower mindset ascribed to that condition. Based on this evidence, the state court reasonably found that Harris had failed to establish related adaptive deficits.

Accordingly, Harris has not met his burden of rebutting by clear and convincing evidence the presumption of correctness that attaches to the state habeas court's finding that he is not mentally retarded. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).

IV.