Jesse Dewayne Jacobs,
Petitioner-Appellant,
v.
Wayne Scott, Director, Texas Department of
Criminal Justice,
Institutional Division, Respondent-Appellee.
No. 93-2792
Federal
Circuits, 5th Cir.
September 1,
1994
Appeal from
the United States District Court for the
Southern District of Texas.
Before GARWOOD, SMITH and
DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jesse Jacobs was convicted
and sentenced to death for the murder of Etta
Urdiales, the young mother of two children. When
Jacobs's sister was later tried for the same
killing, the state changed its position,
claiming that Jacobs's sister, not Jacobs, fired
the bullet that killed the victim. Jacobs now
seeks federal habeas corpus relief from his
conviction and death sentence. The federal
district court denied Jacobs's petition for writ
of habeas corpus and denied a certificate of
probable cause ("CPC") to appeal. Concluding
that Jacobs has not made a substantial showing
of the denial of a federal right, we deny CPC.
I.
A.
Jacobs moved from Illinois to
Texas in 1983 while on parole for the murder of
a retarded man. A Texas parole officer
supervised Jacobs from December 1983 through
February 1986. Jacobs became romantically
involved with a fourteen-year-old girl named
Lisa Chisholm, who gave birth to his child.
Bobbie Hogan, Jacobs's sister,
had also moved to Texas and began seeing a man
named Michael Urdiales, who was married to Etta
Urdiales, the murder victim. By 1986, Michael
Urdiales and the victim were in the process of
getting a divorce; each bitterly disputed the
custody of their two children.
Chisholm's parents eventually
signed a complaint against Jacobs, who was
arrested for inducement of a minor. Hogan posted
a bond for Jacobs's release pending trial. On
February 21, 1986, soon after Jacobs was
released, the victim was discovered missing from
her apartment in Conroe, Texas. Police officers
searched the victim's apartment, finding blood
splattered all over the bedroom and bathroom.
Subsequent chemical analysis of these stains
matched them with the victim's blood type. The
police found that the victim's car was missing
and that a stolen pickup had been left near her
apartment. Her body was not discovered until
September 1986.
After the victim's
disappearance, Jacobs and an accomplice went on
an extended crime spree.
On September 9, 1986, Jacobs was finally
arrested for car theft in Hudspeth, Texas.
Police asked Jacobs about the disappearance of
Etta Urdiales. Jacobs told them, and later the
district attorney, that he would tell them what
they wanted to know if he would be allowed to
see Chisholm and if the district attorney would
seek the death penalty. Jacobs's requests were
met.
Jacobs told the police that
soon after his release from jail, he went to the
victim's apartment, struck her on the head,
abducted her, and drove her to a clearing in the
woods. She was still "dizzy" when they arrived
in the woods. He took a sleeping bag from her
car and put it on the ground for her to sit on,
then grabbed her left hand and shot her in the
left side of the head with a .38 caliber
revolver.
Jacobs took the police to the
victim's gravesite, a small clearing in a wooded
area in southern Montgomery County, and pointed
out an area of the ground covered with pine
needles and limbs. After excavating the area,
the police found a blue sleeping bag containing
the remains of the victim, whose body was in the
same position as Jacobs had described: face down
with her head pointed southeast. An autopsy
showed that her death was caused by a gunshot
wound to her left temple and that there was a
tear in another part of her scalp.
B.
At trial, Jacobs changed his
story. He testified that after having been
released from jail, he called Hogan to tell her
that he was fleeing the state. He met with her
in a parking lot and agreed to help his sister "deal
with" the victim. According to Jacobs, he
thought Hogan merely wanted to scare the victim
into giving custody of her children to Michael
Urdiales.
Jacobs testified that his
motorcycle had been stolen, and so he stole a
pickup truck the next day. He testified that he
waited outside Etta Urdiales's apartment,
abducted her, drove her to the woods, tied her
up, blindfolded her, placed her in a sleeping
bag in a tent he had erected, and then left to
return her car to her apartment. Seeing police
outside the apartment, he parked her car in a
parking lot one-half mile away.
He telephoned Hogan. Both he
and Hogan went back to the woods. Then, Jacobs
testified, he told Hogan to go to a nearby
abandoned house. Jacobs untied Urdiales, took
her to the house, and made her sit on a bed. He
went outside and sat on the porch.
Jacobs testified that he
heard a shot and then saw Hogan with a gun.
Hogan told him that she did not mean to kill
Etta Urdiales. Jacobs took the gun, told Hogan
to go home, and said he would take care of
things. According to this version of events,
Jacobs buried the victim's body but did not
actually kill her.
C.
Chisholm visited Jacobs while
he was being held in the county jail pending
trial. During Chisholm's first visit, Jacobs
admitted that he killed the victim. Jacobs later
wrote Chisholm a letter admitting that he killed
the victim "for the love of a sister." On
September 29, 1986, Jacobs escaped from jail but
was apprehended twenty hours later.
II.
A.
Jacobs was indicted in Texas
state court for the capital murder of Etta
Urdiales during the course of committing or
attempting to commit a kidnapping. He pleaded
not guilty. During the trial, he testified that
Hogan, not he, had killed the victim.
The prosecution showed the
jury a videotape of Jacobs's confession. The
jury was instructed that it could return a
guilty verdict if it found beyond a reasonable
doubt that Jacobs had intentionally killed the
victim or that Jacobs was guilty under the Texas
"law of parties," which provides that a
defendant is responsible for certain actions of
his co-conspirator. TEX.PENAL CODE ANN. Sec.
7.02(b) (Vernon 1994). The jury found Jacobs
guilty of capital murder.
B.
At the punishment phase of
the trial, the court gave the jury two questions,
or "special issues," required by Texas law to be
asked of the jury before the death penalty can
be imposed. The special issues were:
Whether the conduct of the
defendant that caused the death of the deceased
was committed deliberately and with the
reasonable expectation that the death of the
deceased or another would result?
Whether there is a
probability that the defendant would commit
criminal acts of violence that would constitute
a continuing threat to society?
See TEX.CODE CRIM.PROC.ANN.
art. 37.071(b).
The jury answered "yes" to both special issues,
and Jacobs was given a death sentence. During
the punishment hearing, evidence had been
elicited regarding Jacobs's other criminal
conduct, including the Illinois murder.
C.
Several months after Jacobs
was convicted, his sister, Bobbie Hogan, was
tried and convicted of involuntary manslaughter
in connection with the killing of Etta Urdiales.
Hogan was prosecuted by the same attorney who
prosecuted Jacobs. During Hogan's trial, the
prosecutor said that the state had been wrong in
taking the position in Jacobs's trial that
Jacobs had done the actual killing. The
prosecutor stated that, after further
investigation, he had determined that Hogan, not
Jacobs, had killed the victim.
The prosecution maintained that Jacobs did not
know that Hogan had a gun.
The state called Jacobs as a witness to testify
that Hogan shot the victim.
D.
Jacobs's case was
automatically appealed to the Texas Court of
Criminal Appeals, which affirmed his conviction
and sentence. Jacobs v. State, 787 S.W.2d 397 (Tex.Crim.App.1990).
Jacobs did not seek rehearing, informing the
trial court that he wished to forego further
appeals. The court scheduled Jacobs to be
executed on June 22, 1990. Later, Jacobs told
the court that he had changed his mind and did
wish to seek further appeals. The execution date
was rescheduled, and certiorari was denied.
Jacobs v. Texas,
498 U.S. 882 , 111 S.Ct. 231, 112 L.Ed.2d
185 (1990).
Jacobs filed a habeas
petition in the state trial court. That court
recommended that relief be denied and forwarded
the writ to the Court of Criminal Appeals, which
denied the writ and denied rehearing. Ex parte
Jacobs, 843 S.W.2d 517 (Tex.Crim.App.1992).
Jacobs's petition for certiorari was denied.
Jacobs v. Texas, --- U.S. ----, 113 S.Ct. 3046,
125 L.Ed.2d 731 (1993).
Jacobs filed a habeas
petition and an application for stay of
execution in federal district court, which
denied the petition and denied CPC. Jacobs v.
Collins, No. H-93-2454 (S.D.Tex.1993). The
appeal of the district court's decision is
before us.
III.
We first must decide whether
to grant CPC, for unless CPC is granted, we lack
jurisdiction to hear this appeal.
Black v. Collins, 962 F.2d 394, 398 (5th Cir.),
cert. denied, --- U.S. ----, 112 S.Ct. 2983, 119
L.Ed.2d 601 (1992). Under FED.R.APP.P. 22(b),
the standard for granting a CPC is whether the
defendant has made "a substantial showing of the
denial of a federal right." Black, 962 F.2d at
398 (citing Barefoot v. Estelle, 463 U.S. 880,
893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090
(1983)). He must "demonstrate that the issues
are debatable among jurists of reason; that a
court could resolve the issues [in a different
manner]; or that the questions are adequate to
deserve encouragement to proceed further."
Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at
3395 n. 4 (citations and internal quotations
omitted).
Although in a capital case
the court may properly consider the nature of
the penalty in deciding whether to grant CPC,
this alone does not suffice to justify issuing a
certificate. Barefoot, 463 U.S. at 893, 103 S.Ct.
at 3394-95; Black, 962 F.2d at 399. As discussed
below, none of the arguments advanced by Jacobs
amounts to a substantial showing of a denial of
a federal right.
IV.
Jacobs challenges his
conviction and death penalty sentence because of
the state's concession at Hogan's trial that
Jacobs was not the triggerman. Jacobs argues
that he is innocent of capital murder, that he
is "innocent of the death penalty" in the sense
of being ineligible for it, and that he was
convicted and sentenced to death on the basis of
evidence that has been revealed to be materially
inaccurate. We deal with each of these arguments
in turn.
A.
Jacobs argues that he is
innocent of capital murder because the state's
post-trial concessions show that he did not
reasonably anticipate the victim's death. Under
Texas law, Jacobs could be convicted of capital
murder if either (1) he intentionally caused the
death of the victim, TEX.PENAL CODE ANN. Secs.
19.02(a), 19.03(a), or (2) the death of the
victim "should have been anticipated" by him
under the doctrine of the "law of the parties."
TEX.PENAL CODE ANN. Sec. 7.02(b).
Jacobs testified at his trial
and at Hogan's trial that he gave the gun to
Hogan several days before the kidnapping but did
not realize that Hogan had the gun with her on
the day of the kidnapping. Jacobs argues on
appeal that his testimony at Hogan's trial and
the prosecutor's endorsement of his testimony
show that he did not intentionally cause the
death of the victim or anticipate the killing.
We do not consider the
statements of the state prosecutor at Bobbie
Hogan's trial to be newly discovered evidence.
Nor do we consider Jacobs's testimony at Hogan's
trial, which was substantially the same as
Jacobs's testimony at his own trial, to be new
evidence.
Even if we were to consider Jacobs's testimony
or the prosecutor's statements to be new
evidence, it is the law of this circuit that "the
existence merely of newly discovered evidence
relevant to the guilt of a state prisoner is not
a ground for relief on federal habeas corpus."
Boyd v. Puckett, 905 F.2d 895, 896-97 (5th
Cir.), cert. denied,
498 U.S. 988 , 111 S.Ct. 526, 112 L.Ed.2d
537 (1990). Thus, we reject Jacobs's
argument.
The Court held in Herrera v.
Collins, --- U.S. ----, ----, 113 S.Ct. 853,
860, 122 L.Ed.2d 203 (1993), that "[c]laims of
actual innocence based on newly discovered
evidence have never been held to state a ground
for federal habeas relief absent an independent
constitutional violation occurring in the
underlying state criminal proceeding." The Court
went on to state the following:
We may assume, for the sake
of argument in deciding this case, that in a
capital case a truly persuasive demonstration of
"actual innocence" made after trial would render
the execution of a defendant unconstitutional,
and warrant federal habeas relief if there were
no state avenue open to process such a claim.
But because of the very disruptive effect that
entertaining claims of actual innocence would
have on the need for finality in capital cases,
and the enormous burden that having to retry
cases based on often stale evidence would place
on the States, the threshold showing for such an
assumed right would necessarily be
extraordinarily high.
Id. at ----, 113 S.Ct. at
869. The Court concluded that post-trial
affidavits to the effect that Herrera's brother
committed the crime did not meet Herrera's "extraordinarily
high" burden of proof. Id. at ----, 113 S.Ct. at
869-70.
The Court did not reach the
issue of whether a defendant on death row can be
executed if he can show that he is "actually
innocent."
Thus, Herrera does not affect the precedential
value of Boyd. We need not engage in the Court's
hypothetical analysis of whether the defendant
has made a "truly persuasive demonstration of
'actual innocence.' " As Justice Scalia wrote in
his concurrence in Herrera,
A number of Courts of Appeals
have hitherto held, largely in reliance on our
unelaborated statement in Townsend v. Sain, 372
U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770
(1963), that newly discovered evidence relevant
only to a state prisoner's guilt or innocence is
not a basis for federal habeas corpus relief.
See, e.g., Boyd v. Puckett [905 F.2d at 896-97,
other citations omitted]. I do not understand it
to be the import of today's decision that those
holdings are to be replaced with a strange
regime that assumes permanently, though only "arguendo,"
that a constitutional right exists, and expends
substantial judicial resources on the assumption.
The Court's extensive and scholarly discussion
of the question presented in the present case
does nothing but support our statement in
Townsend, and strengthen the validity of the
holdings based upon it.
Id. at ----, 113 S.Ct. at 875
(Scalia, J., concurring).
B.
Jacobs, relying upon Sawyer
v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120
L.Ed.2d 269 (1992), argues that he is innocent
of the death penalty. At the time of Jacobs's
conviction, the death penalty could be imposed
only if "the conduct of the defendant that
caused the death of the deceased was committed
deliberately and with the reasonable expectation
that the death of the deceased or another would
result." TEX.CODE CRIM.PROC.ANN. art. 37.071(b).
Jacobs argues that if Hogan killed the victim,
as the prosecution claimed at Hogan's trial,
then Jacobs did not engage in conduct causing
the death of the victim. Jacobs also argues that
if, as the prosecution stated at Hogan's trial,
he did not know Hogan had a gun, he did not
reasonably expect that Hogan would die as a
result of his conduct.
A petitioner bringing a
successive, abusive, or defaulted federal habeas
claim may have a federal court reach the merits
of his claim if he is "actually innocent." In
Sawyer, the Court held that to show " 'actual
innocence' one must show by clear and convincing
evidence that but for a constitutional error, no
reasonable juror would have found the petitioner
eligible for the death penalty under the
applicable state law." --- U.S. at ----, 112
S.Ct. at 2517. There is no independent
constitutional error. Therefore, the "reasonable
juror" standard articulated in Sawyer is not
applicable.
Jacobs urges that this claim
must be remanded for consideration by the
federal district court because that court failed
to address his Sawyer claim when it considered
his federal habeas petition. We disagree. The
district court rejected Jacob's claim by
implication when it rejected Jacobs's argument
under Herrera.
C.
Jacobs argues that he
deserves a retrial, citing Johnson v.
Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100
L.Ed.2d 575 (1988). The defendant in Johnson was
sentenced to death under Mississippi law, under
which the death penalty is imposed only if the
jury finds that certain aggravating
circumstances outweigh the mitigating
circumstances. Id. at 581, 108 S.Ct. at 1984.
The jury found the following
aggravating circumstances: that the defendant
had previously been convicted of a violent
felony, that the defendant had committed capital
murder for the purpose of avoiding arrest or
escaping from custody, and that the capital
murder was especially heinous, atrocious and
cruel. Id. at 581 n. 1, 108 S.Ct. at 1984 n. 1.
The sole evidence supporting the aggravating
circumstance that the defendant had previously
been convicted of a violent felony was a
document showing that he had been convicted in
New York of the crime of second-degree assault
with intent to commit first-degree rape. Id. at
581, 108 S.Ct. at 1984.
The jury found that the three
aggravating circumstances outweighed the
mitigating circumstances. The death penalty was
imposed. After trial, a state appeals court
vacated the previous felony conviction. Because
the defendant's death sentence had been based in
part upon a reversed conviction, the Court
remanded to the Mississippi Supreme Court. Id.
at 585, 108 S.Ct. at 1986.
Jacobs argues that Johnson
requires that he be given a new trial. We
disagree. In Johnson, the jury imposed the death
penalty on the basis of a conviction that was
later vacated. In Jacobs's case, the jury heard
Jacobs testify that, contrary to his pretrial
statement, he did not kill the victim. The jury
disbelieved this trial testimony. It is not for
us to say that the jury erred in this
credibility determination.
V.
Jacobs argues that the state
violated the Eighth and Fourteenth Amendments by
continuing to take the position, after Hogan's
trial, that Jacobs had shot the victim, was
guilty of capital murder, and was eligible for
the death penalty. For example, Jacobs points to
the state's brief before the Texas Court of
Criminals Appeals, claiming that Jacobs's
pretrial statement that he shot the victim was
true.
Although we agree that the
state's brief on direct appeal appears to
contradict its statements to the jury during the
Hogan trial, we have found no authority, and
Jacobs has cited none, that the state's
contradictory statements amount to federal
constitutional error. Jacobs has failed to prove
facts that would entitle him to relief under
established constitutional principles. Thus,
Jacobs seeks the benefit of a "new" rule of
constitutional law and is not entitled to relief.
See Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct.
1060, 1073-74, 103 L.Ed.2d 334 (1989).
VI.
Jacobs argues that the two
special issues did not allow the jury to take
into account mitigating evidence that he was not
the triggerman.
In Penry v. Lynaugh, 492 U.S. 302, 322-34, 109
S.Ct. 2934, 2948-55, 106 L.Ed.2d 256 (1989), the
Court held that the deliberateness and future
dangerousness special issues violated the Eighth
Amendment by failing to let the jury "give
effect" to mitigating evidence that the
defendant suffered from brain damage, was
mentally retarded, and had a troubled childhood.
Jacobs's argument, based upon
mitigating evidence of non-triggerman status, is
firmly foreclosed by precedent. See Harris v.
Collins, 990 F.2d 185, 188-89 (5th Cir.1993);
Drew v. Collins, 964 F.2d 411, 421 (5th
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct.
3044, 125 L.Ed.2d 730 (1993); Bridge v. Collins,
963 F.2d 767, 770 (5th Cir.1992). In Bridge, we
held that a jury could give mitigating effect to
evidence that the defendant's accomplice may
have shot the victim. Id. The jurors could have
concluded either that the defendant's conduct
was not deliberate and therefore answered "no"
to the first special issue or that the defendant
would not be a future threat and answered "no"
to the second special issue. Id.
VII.
Jacobs contends that the jury
was unable to take into account other mitigating
evidence when sentencing him. The other evidence
includes:
evidence of his troubled
childhood; cooperation with the police; remorse;
efforts to better his life by starting a
successful auto repair business while on parole
and educating himself while in prison;
trustworthiness; love for his family and friends;
and, that he was president of a prison group
dedicated to benefiting charitable institutions
and helping unwed mothers and abused children.
Ex Parte Jacobs, 843 S.W.2d
at 520. The mitigating evidence falls into two
groups: (1) evidence of Jacobs's troubled
childhood and (2) evidence of remorse and
favorable personality traits.
Jacobs argues that the jury
could not give effect to evidence of his
troubled childhood. In Penry, the defendant
argued that the jury was unable to consider
mitigating evidence that he suffered from brain
damage, was mentally retarded, and had a
troubled childhood. The Court held that the
first special issue on deliberateness did not
adequately account for the possibility that
Penry's mental retardation and history of child
abuse might have diminished his moral
culpability for his crime. 492 U.S. at 322-23,
109 S.Ct. at 2948-49.
The Court also held that the
second special issue failed to give full effect
to the mitigating evidence of mental retardation
and child abuse. Id. at 324, 109 S.Ct. at 2949.
Such mitigating evidence could only be an
aggravating factor, as it suggests that the jury
should answer "yes" to the question of future
dangerousness. Id. at 323-24, 109 S.Ct. at
2949-50.
In Graham v. Collins, ---
U.S. ----, 113 S.Ct. 892, 122 L.Ed.2d 260
(1993), the Court held that the Texas special
issues gave effect to evidence of a defendant's
childhood that was "unstable" and "transient."
Id. at ----, 113 S.Ct. at 897, 902. The Graham
Court distinguished Penry on the following
grounds:
Graham's evidence of
transient upbringing and otherwise nonviolent
character more closely resemble Jurek's [Jurek
v. Texas,
428 U.S. 262 , 96 S.Ct. 2950, 49 L.Ed.2d
929 (1976) ] evidence of age, employment
history and familial ties than it does Penry's
evidence of mental retardation and harsh
physical abuse.
Id. at ----, 113 S.Ct. at
902.
Jacobs had a troubled
childhood like that of Graham, as opposed to a
childhood rife with harsh physical abuse like
that of Penry. In his brief, Jacobs describes
the evidence of his troubled childhood as
follows:
Finally, evidence was
presented showing that Mr. Jacobs had an
unstable, troubled childhood. He never knew his
mother, and has only vague memories of his
father. His father left him to live alone with
strangers when he was a small boy, and Mr.
Jacobs never saw him again. Mr. Jacobs ended up
living in several foster homes as a child,
separated from his sister, parents, and all
other family connections.
Thus, Jacobs's evidence of a
troubled childhood is distinguishable from that
in Penry.
We therefore reject Jacobs's
contention that the Texas special issues do not
account for mitigating evidence of his troubled
childhood. In addition, Jacobs failed to present
evidence of the effect his childhood had on him
or of his reaction to his childhood. See Graham
v. Collins, 950 F.2d 1009, 1033 (5th Cir.1992)
(en banc), aff'd, --- U.S. ----, 113 S.Ct. 892,
122 L.Ed.2d 260 (1993). As for Jacobs's alleged
positive character traits, a jury wishing to
give effect to such traits could answer "no" to
the second special issue regarding future
dangerousness. Graham, --- U.S. at ----, 113
S.Ct. at 902 (various positive character traits);
Franklin v. Lynaugh, 487 U.S. 164, 178, 108 S.Ct.
2320, 2329-30, 101 L.Ed.2d 155 (1988) (clean
prison record); Andrews v. Collins, 21 F.3d 612,
630 (5th Cir.1994) (good relationship with wife).
VIII.
Citing Enmund v. Florida, 458
U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140
(1982), Jacobs argues that the Texas special
issue questions did not allow the jury to take
into account whether Jacobs killed, attempted to
kill, or intended that a killing take place.
Jacobs's argument is foreclosed by precedent.
The first special issue satisfies the
requirements of Enmund, even in cases where the
defendant may have been found guilty of capital
murder on the basis of the "law of the parties."
Andrews v. Collins, 21 F.3d 612, 630-31 (5th
Cir.1994).
IX.
The state trial court
instructed the jury that "[i]f ten (10) jurors
or more vote "No" as to any Special Issue, then
the answer of the Jury shall be "No" to that
issue...." Citing Mills v. Maryland, 486 U.S.
367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988),
Jacobs claims that the jury instruction violated
the Constitution by creating a false need for a
nearly unanimous response to the special issues.
The state trial court held that Jacobs's claim
was procedurally barred because he did not
object to the charge or request a special
instruction and did not demonstrate egregious
harm arising from his claimed constitutional
violation.
Jacobs's claim is
procedurally barred. Federal review of a habeas
claim is procedurally barred if the last state
court to consider the claim expressly and
unambiguously based its denial of relief on a
state procedural bar. Harris v. Reed, 489 U.S.
255, 265, 109 S.Ct. 1038, 1044-45, 103 L.Ed.2d
308 (1989). The state court's opinion must
contain a "plain statement" that its decision
rests upon adequate and independent state
grounds. Id. at 263-66, 109 S.Ct. at 1043-45.
Where a state court has
explicitly relied upon a procedural bar, a state
prisoner may not obtain federal habeas relief
absent a showing of cause for the default and
actual prejudice that is attributable to the
default. Murray v. Carrier, 477 U.S. 478, 485,
106 S.Ct. 2639, 2643-44, 91 L.Ed.2d 397 (1986).
Jacobs has not made a showing of cause for
default. Therefore, we reject his claim.
Furthermore Jacobs was not
prejudiced by the state court's invocation of a
procedural bar. His substantive argument is
meritless. In Mills, the Supreme Court reversed
a death sentence imposed under Maryland's
capital punishment scheme because jury
instructions may have precluded the jury from
considering mitigating evidence unless all
twelve jurors agreed on the existence of a
particular circumstance supported by that
evidence. 486 U.S. at 384, 108 S.Ct. at 1870.
The Court concluded that
merely one juror could block consideration of
the mitigating evidence and thus require the
jury to impose the death penalty. Id. The
Supreme Court has interpreting Mills to mean
that "each juror [must] be permitted to consider
and give effect to mitigating evidence when
deciding the ultimate question whether to vote
for a sentence of death." McKoy v. North
Carolina, 494 U.S. 433, 442-43, 110 S.Ct. 1227,
1233, 108 L.Ed.2d 369 (1990).
The law in Texas is
completely different from that in Mills. The law
in Texas provided as follows:
(c) The state must prove
each issue submitted beyond a reasonable doubt,
and the jury shall return a special verdict of "yes"
or "no" on each issue submitted.
(d) The court shall charge
the jury that:(1) it may not answer any issues "yes"
unless it agrees unanimously; and
(2) it may not answer any
issue "no" unless 10 or more jurors agree.
TEX.CODE CRIM.PROC.ANN. art.
37.071 (Vernon 1981) (effective June 14, 1973).
The jury instructions
substantially conform to the Texas law on death
penalty special issues. The state trial judge
instructed that the jury may answer "Yes" to one
of the special issues only if the entire jury
unanimously determined that the answer should be
"Yes." The judge then instructed that if 10 or
more jurors voted "No" as to any special answer,
then the jury's vote should be "No." The judge
further instructed that each juror was to make
his or her decision independently. Under the
Texas system, all jurors can take into account
any mitigating circumstance. One juror cannot
preclude the entire jury from considering a
mitigating circumstance. Thus, Mills is
inapplicable.
The Texas system allows an
answer of "Yes" to a special issue if all jurors
vote "Yes," and allows an answer of "No" if ten
jurors vote "No." Mills does not require a
certain number of jurors to agree to impose the
death penalty.
X.
Jacobs avers that the trial
court erred by charging the jury at the guilt
phase on a conspiracy theory of liability even
though the indictment contained no such charge.
We have held that "one who has been indicted as
a principal may, on proper instructions, be
convicted on evidence showing only that he aided
and abetted the commission of the offense."
United States v. Robles-Pantoja, 887 F.2d 1250,
1255 (5th Cir.1989) (citations omitted).
Similarly, it was not error for Jacobs to be
indicted as a principal and then to be convicted
under the "law of the parties."
XI.
During the sentencing phase
of his trial, Jacobs told his counsel not to
present any defense witnesses and not to make a
closing argument. Jacobs's counsel complied with
these requests. Jacobs now argues that the trial
court erred by allowing him to represent himself
without warning him of the dangers of proceeding
without counsel.
A defendant wishing to
represent himself must "be made aware of the
dangers and disadvantages of self-representation,
so that the record will establish that 'he knows
what he is doing and his choice is made with
eyes open.' " Faretta v. California, 422 U.S.
806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562
(1975) (citation omitted). The record shows that
the district court fully informed Jacobs of the
pitfalls of self-representation. We therefore
reject his argument.
The application for CPC is
DENIED.
*****
(b) On conclusion of the
presentation of the evidence, the court shall
submit the following three issues to the jury:
(1) whether the conduct of
the defendant that caused the death of the
deceased was committed deliberately and with the
reasonable expectation that the death of the
deceased or another would result;
(2) whether there is a
probability that the defendant would commit
criminal acts of violence that would constitute
a continuing threat to society; and
(3) if raised by the
evidence, whether the conduct of the defendant
in killing the deceased was unreasonable in
response to the provocation, if any, by the
deceased.
The third question was not
relevant in this case and was not submitted to
the jury.
But through the course of it
all I changed my mind about what actually
happened. And I'm convinced that Bobbie Hogan is
the one who pulled the trigger. And I'm
convinced that Jesse Jacobs is telling the truth
when he says that Bobbie Hogan is the one that
pulled the trigger.
The state told the jury that
the evidence revealed by the investigation cast
doubt on Jacobs's conviction.
The state told the jury that
Jacobs's pretrial confession was full of "holes"
and that it had verified that certain portions
were completely "nontrue." Various police
officers who investigated the case also
testified that parts of the confession were
false.
If, in the attempt to carry
out a conspiracy to commit one felony, another
felony is committed by one of the conspirators,
all conspirators are guilty of the felony
actually committed, though having no intent to
commit it, if the offense was committed in
furtherance of the unlawful purpose and was one
that should have been anticipated as a result of
the carrying out of the conspiracy.
TEX.PENAL CODE ANN. Sec.
7.02(b) (Vernon 1994).
Appellant led officers
directly to where the body was buried. He
described that he had wrapped a towel around her
head, shot her, stuffed her head first into a
sleeping bag, and buried her face down with her
head pointing toward the clearing....
All of the above details of
the offense, many of which could have only been
known by Appellant, were shown to be true.
Jacobs also argues that it
was error for the state trial court not to
define the word "deliberately" in the first
special issue. We have squarely rejected this
claim. See Nethery v. Collins, 993 F.2d 1154,
1162 & n. 28 (5th Cir.1993).
The federal district court
held that Jacobs waived any challenge to the
special issue instructions because he did not
make an objection to the state trial court. But
because the Court of Criminal Appeals evaluated
the claim on its merits, Ex Parte Jacobs, 843
S.W.2d at 518-19, Jacobs's failure to object
does not waive his challenge. We must therefore
evaluate the claim on its merits. See Drew v.
Collins, 964 F.2d 411, 420 (5th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 3044, 125 L.Ed.2d
730 (1993).
