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Vaughn ROSS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Argument
Number of victims: 2
Date of murders: January 31, 2001
Date of arrest: 4 days after
Date of birth: September 4, 1971
Victims profile: Douglas Birdsall, 53, and Viola Ross McVade, 18 (his girlfriend’s sister)
Method of murder: Shooting
Location: Lubbock County, Texas, USA
Status: Sentenced to death on October 1, 2002. Executed by lethal injection on July 18, 2013
 
 

 
 
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Summary:

The bodies of Douglas Birdsall and Viola McVade were found inside Birdsall’s car in a ravine. Both had been shot numerous times and both had died from gunshot wounds to the head.

Police investigated the report of shots fired the night before, to see if there was a connection with the murders. In an alley behind Ross’s apartment, police discovered glass shards and two pools of blood. The larger pool of blood was consistent with Birdsall’s DNA profile.

A shell casing recovered from the scene matched the shell casings found inside Birdsall’s car. A latex glove tip found inside Birdsall’s car was tested. Blood on the exterior of the glove tip was consistent with Birdsall’s DNA profile. The inside of the glove tip contained DNA consistent with Ross’s DNA.

Police then searched Ross's apartment with his consent. They found a sweatshirt with a small bloodstain on it. They also found two latex gloves. Ross stated that he wore latex gloves on the night of the murders because he was going to mop his kitchen floor using bleach. The murder weapon was not found.

After his arrest, Ross spoke to his mother on a recorded telephone from the Lubbock County Jail. When she asked him whether he committed the crime, he responded that he "might have." Forensic testing showed that the blood on the ground in the alley and on the sweatshirt found in Ross's apartment matched Birdsall's DNA. DNA samples found inside the sweatshirt and the glove tip found in Birdsall's car matched Ross.

The prosecution contended that Birdsall had been looking for a prostitute and that a friend of McVade introduced him to her that evening. McVade was the intended target, and Birdsall was at the wrong place at the wrong time.

Citations:

Ross v. State, 133 S.W.3d 618 (Tex.Crim.App. 2004). (Direct Appeal)
Ross v. Thaler, 511 Fed.Appx. 293 (5th Cir. 2013). (Federal 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:

"Who are they? I know this is hard for y'all, but we are going to have to go through it. You know I don't fear death. I know we weren't expecting this, but this is what it is. We know the lies that were told against me in court. We know it's not true. I want y'all to be strong and keep going."

ClarkProsecutor.org

 
 

 
 

Name

TDCJ Number

Date of Birth

Ross, Vaughn

999429

09/04/1971

Date Received

Age (when Received)

Education Level

10/01/2002

31

12

Date of Offense

Age (at the Offense)

County

01/31/2001

29

Lubbock

Race

Gender

Hair Color

black

male

black

Height

Weight

Eye Color

5 ft 6 in

150

brown

Native County

Native State

Prior Occupation

Saint Louis

Missouri

Architecture Design, Clerical

Prior Prison Record

n/a

Summary of incident


On 01/31/2001, in Lubbock, Ross shot and killed an 18 year old black female and a 53 year old white male. 

The bodies of the victims were found in a car in a ravine.
 

Co-defendants

n/a

Race and Gender of Victim

black female, white male

 
 

 
 

Texas Department of Criminal Justice

Ross, Vaughn
Date of Birth: 09/04/1971
DR#: 999429
Date Received: 10/01/2002
Education: 12 years
Occupation: Architecture Design, Clerical
Date of Offense: 01/31/2001
County of Offense: Lubbock
Native County: Saint Louis, Missouri
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5' 06"
Weight: 150

Prior Prison Record: n/a

Summary of Incident: On 01/31/2001, in Lubbock, Ross shot and killed an 18 year old black female and a 53 year old white male. The bodies of the victims were found in a car in a ravine. Co-Defendants: None. n/a


Texas Attorney General

Monday, July 15, 2013

Media Advisory: Vaughn Ross scheduled for execution

Austin –– Pursuant to a court order by Lubbock County's 137th District Court, Vaughn Ross is scheduled for execution after 6 p.m. on July 18, 2013. In September 2002, Ross was convicted of capital murder and sentenced to death by a Lubbock County jury for killing Douglas Birdsall and Viola McVade.

FACTS OF THE CRIME

The U.S. Court of Appeals for the Fifth Circuit described the facts of the crime and the evidence admitted during the punishment phase as follows: On Jan 31, 2001, the bodies of Douglas Birdsall and Viola McVade were found inside Birdsall’s car in a ravine. Both had been shot numerous times and both had died from gunshot wounds to the head.

After discovering the bodies, police investigated the report of shots fired the night before, to see if there was a connection with the murders. In an alley behind Vaughn Ross’s apartment, police discovered glass shards and two pools of blood. The larger pool of blood was consistent with Birdsall’s DNA profile. A shell casing recovered from the scene matched the shell casings found inside Birdsall’s car. A latex glove tip found inside Birdsall’s car was tested. Blood on the exterior of the glove tip was consistent with Birdsall’s DNA profile. The inside of the glove tip contained DNA consistent with Ross’s DNA.

When Ross was interviewed by the police on January 31, he admitted that he was angry with Viola on the evening of January 30, and that he and Viola had argued over the phone. The police interviewed Ross again on February 2. In that interview, he admitted that he had argued with Viola and had threatened her. Ross also admitted that he had worn latex gloves that night because he was going to mop his kitchen floor and the bleach hurt his hands. With Ross’s consent, police searched his apartment and found two latex gloves and a sweatshirt. The sweatshirt had a very small bloodstain that DNA testing revealed to be consistent with Birdsall’s, and Ross’s DNA was on the inside of the shirt. Later, when he was in jail, Ross spoke with his mother, who asked him whether he had committed the crime. Ross responded that he “might have.”

At trial, the jury convicted Ross of capital murder. The jury answered affirmatively the special punishment issues on future dangerousness and whether Ross caused or anticipated the deaths of the victims. It answered negatively the special issue on mitigating circumstances. Accordingly, the trial court imposed the death sentence.

During the penalty phase of Ross’s trial, the State presented evidence that, on August 9, 2001, during roll call at the Lubbock County Jail, Ross was not wearing his mandatory identification wristband. When asked about the band, Ross threw it into the aisle; the metal brads on the wristband had been altered and removed. When informed that the wristband would be confiscated, Ross became upset and begin using profanity towards a jailer. The jailer wrote an incident report for cursing at a detention officer because Ross “kind of went crazy.”

Evidence also showed that Ross was placed on probation in Missouri on October 7, 1997, when he pled guilty to a Class B felony for assault and a Class C felony for stealing a motor vehicle. The victim was Ross’s girlfriend, who had been stalking him. According to Ross, on July 13, 1997, the victim pulled out a butcher knife and attempted to stab him, but he took the knife and stabbed her. The victim received a laceration to her right arm, stab wounds to her left thigh, nine cut-wounds, three stab wounds, several stitches, and a laceration to the left side of her neck which could have potentially been life-threatening. The victim stated that Ross told her to give him her neck, that she was going to die. Ross also stole the victim’s car. Ross expressed no remorse for the crime, and did not accept responsibility for the incident.

PROCEDURAL HISTORY

In February 2001, Ross was indicted by a Lubbock County grand jury for capital murder.
On September 23, 2002, Ross was convicted of capital murder.
On September 27, 2002, Ross was sentenced to death after a separate hearing on punishment.
On May 5, 2004, the Texas Court of Criminal Appeals (CCA) affirmed Ross’s conviction and sentence.
On January 23, 2003, the Texas Court of Criminal Appeals denied Ross’s state habeas application.
On December 1, 2011, the federal district court denied habeas corpus relief.
On Feb. 5, 2013, the U.S. Court of Appeals Fifth Circuit denied Ross a certificate of appealability.
On February 8, 2013, Ross’s execution was set for July 18, 2013.
On May 3, 2013, Ross filed a motion for stay of execution and a petition for writ of certiorari in the U.S. Supreme Court. That petition and motion for stay are currently pending.

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.


State executes former Texas Tech grad student in slayings

By Brandon K. Scott - ItemOnline.com

July 18, 2013

HUNTSVILLE — A former Texas Tech graduate student said he was lied on before becoming the 10th inmate executed in the state this year, and the second in three days. Vaughn Ross, 41, was killed by lethal injection for a double murder committed in Lubbock in January 2001. Ross was convicted of killing 53-year-old Douglas Birdsall and 18-year-old Viola Ross McVade, whose bodies were found in Birdsall’s car near a gully.

In his final statement, Ross was both calm and defiant. ”This is what it is,” he said to his friends and loved ones. “I know this is hard for ya’ll but we are going to have to go through it. We know the lies that were told against me in that court. We know it’s not true. I want y’all to be strong and keep going.” Except, there were no witnesses at the execution on Ross’s behalf, though his mother Johnnie Ross had been outspoken following the 2002 conviction. Ross did not address either of the victim’s family or admit to guilt in his final statement. “You know I don’t fear death,” Ross said, both his chest and right arm strapped to the death chamber gurney. “I know we weren’t expecting this, but this is what it is.”

Birdsall’s brother Roger stood silently witnessing the execution through a barred death chamber window. After the drugs were administered and Ross was visibly sedated, the victim’s brother wiped a single tear from his left eye. Roger Birdsall declined to speak with reporters to hasten the process, one Texas Department of Criminal Justice official said. Birdsall’s son, Nathaniel, told the Lubbock Avalanche-Journal, his father raised him to believe the death penalty was unjust. “I am saddened that the loss of two lives will be needlessly compounded by the taking of a third,” he said.

The U.S. Supreme Court denied a final appeal by Ross roughly half an hour before he was taken from his holding cell at 6:03 p.m. Ross was pronounced dead exactly 35 minutes later. While he was in jail, tape-recordings showed Ross admitting to his mother that he “might have” been involved in the murders. Matt Powell, the Lubbock County district attorney who prosecuted the case, told The Associated Press last week that it was the closest thing they had to a confession, and that “a guy could never lie to his mama.”

The AP cited court documents that show Birdsall was introduced to McVade through a friend in pursuit of a prostitute. Rather than claiming innocence, Ross has contended his previous appeals attorneys neglected to note that his trial lawyers didn’t present evidence that may have persuaded jurors to sentence him to life in prison. Assistant Texas Attorney General Tomee Heining argued that that Ross’ trial lawyers called witnesses on Ross’ behalf and managed an “admirable mitigation defense” even though Ross had instructed his family and friends not to cooperate.

Ross was linked to the murders after detectives found his and Birdsall’s DNA on part of a latex glove in the car. Blood from both victims was traced through DNA tests on Ross’ sweatshirt. Birdsall was an associate dean of libraries at Texas Tech and McVade was the sister of Ross’ girlfriend, with whom there was a feud. Prosecutors contended that McVade was the intended target and Birdsall was just in the wrong place at the wrong time. The victims suffered 11 wounds, and McVade was shot three times in the head at close range.

There are 279 death row inmates in Texas and like Ross, 108 of them are black. The remaining six executions on the schedule are white and Hispanic males, three apiece. Huntsville holds the nation’s most active death chamber. This was the 502nd state execution since 1982. Douglas Alan Feldman is set to die on July 31.


Ross executed: last words a claim of 'lies' in court

Convicted of 2001 killings of his girlfriend's sister and Tech administrator

By Walt Nett - LubbockOnline.com

July 19, 2013

HUNTSVILLE — Remorseless to the last, Vaughn Ross was executed Thursday night, July 18, for a 2001 double murder in Lubbock. “We know the lies they told in court,” Ross said.

Ross was convicted in 2002 of killing Douglas Birdsall, a Texas Tech administrator, and an 18-year-old woman, Viola Ross, no relation. Prosecutors said jealousy and anger led to the killings. Ross admitted he was angry at Viola Ross — the sister of his girlfriend, Liza Ross McVade. Police and prosecutors said Birdsall, who had given Viola Ross a ride — apparently to pick up her sister at Ross’ apartment — was in the wrong place at the wrong time.

Vaughn Ross, a 41-year-old former Texas Tech architecture student, spoke for about a minute Thursday before closing with the words, “That’s it.” It was 6:15 p.m. A minute later, the lethal dose of pentobarbital was added to the saline drip in his arms. Ross’ breathing quickly became labored, and he seemed to briefly strain against the leather restraints. His eyes slowly closed, and he snored several times. He was pronounced dead at 6:38 p.m.

Ross’ last hope for a reprieve faded at about 5:45 p.m., when the U.S. Supreme Court rejected his application for a stay. He was brought to the execution chamber at 6:03 p.m.

The condemned and the witnesses can see each other through barred windows. Ross glanced through the window at the room where friends or surviving family members can observe the execution and mouthed, “Who are they?” He did not appear to look at the other room, where the condemned’s family members can observe. None of Ross’ family attended. The room had several Texas Department of Criminal Justice officials and three members of the news medfia. Birdsall’s brother, Roger, of Tracy, Calif., attended the execution along with Lubbock police detective D’Wayne Proctor, who was the lead detective in the investigation. Ross had been on death row since October 2002.

He was the 10th person executed by the state in 2013, and the 502nd to die since the state resumed capital punishment in 1982. Four more executions have been scheduled between now and the end of the year. Michael John Yowell, another Lubbock County inmate, is scheduled to die Oct. 9.


Vaughn Ross

ProDeathPenalty.com

Viola Ross and Douglas Birdsall were apparently murdered on January 30, 2001, in Douglas's car in an alley outside Vaughn Ross's apartment complex. Ross's neighbor reported hearing gunshots in the alley at around 10:00 p.m. The victims' bodies were discovered in Doug Birdsall's Saab, which was parked in a ravine in Canyon Lake Park No 6, approximately 4 miles from the alley where the victims were murdered. It was found Wednesday morning by a bicyclist who then reported it to a city employee. The employee then called the police.

Doug Birdsall was found in the rear passenger seat of his car and blood was visible on his head, neck, shirt, pants and hand. Viola Ross was found in the front passenger seat bent forward at the waist. Blood was visible on the back of her jacket; she had been shot three times in the head at close range. Officers observed the victims for at least five minutes and saw no signs of life. No footprints were visible in the immediate area or on a trail leading from the area. Inside the car were shell casings, glass shards, and a fingertip piece of a latex glove.

Police also received a call to check on the welfare of Birdsall on Jan. 31, at his residence. When police arrived at the scene, Dale Cluff, dean of libraries at Tech, was outside Birdsall's house. Cluff said he was concerned about Birdsall and had rang the doorbell and knocked but did not get an answer. Police investigated and were unable to locate anyone.

Police have also found a link between Viola Ross and Birdsall. According to the affidavit, a mutual friend arranged for Viola Ross and Birdsall to meet. The mutual friend went riding with Viola Ross and Birdsall in his vehicle. After introducing the two, the friend was dropped off. Shortly before the murders, Ross's girlfriend Liza McVade, who was Viola's sister, saw Ross wearing latex gloves. Ross told Liza to leave the apartment so she would not be there "if anything happens. If I do something, I don't want nobody around." Liza left the apartment with her three-year-old son and walked to her father's house, arriving at about 10:11 p.m.

A witness, who called police regarding a shots fired incident, said a short time before he heard the shots, a black female with a child about 3 or 4 years old came to his apartment and used his phone. Reports also state that about 10:45 p.m., Jan. 30, a witness observed two black vehicles traveling east from 10th Street and Avenue T. The witness said both vehicles ran stop signs at Avenue S and Avenue R. The witness also said the cars then turned south onto Avenue Q. The witness said the rear vehicle was a black Saab and believes it was Doug Birdsall's car. The witness also said he could see people in the vehicles, but could not identify anyone.

According to police records, Vaughn Ross has previously been charged with several felony offenses in Missouri, including first degree assault, first degree robbery, stealing a motor vehicle and armed criminal action. He was arrested in 1997 for repeatedly stabbing his former girlfriend. He pleaded guilty and completed three years probation. He has no previous criminal record in Texas. Vaughn Ross had no relation to Viola Ross.

In the alley outside Ross's apartment complex, the police discovered blood stains, glass shards and a shell casing. Testing revealed that the glass shards were similar to the glass windows of Doug's car. Additionally, the shell casing from the alley was tested and determined to be consistent with the shell casings in Doug's car. The day after the murders, Ross accompanied Liza to the police station to describe events of the previous night. Ross told police he had argued with Viola over the telephone. During a second interview with police, Ross told an investigator that he and Viola did not get along and that they had argued because Viola kept calling and putting Liza's ex-boyfriend on the phone. Ross consented to a police search of his apartment, which resulted in the recovery of two latex gloves and a sweatshirt. DNA testing showed that a blood stain on the sweatshirt belonged to Doug Birdsall. DNA testing also showed that Doug's blood was on the outside of the latex glove tip found in Doug's car and that Ross's DNA was on the inside of the glove tip.

Ross incriminated himself during police questioning when asked about the location of the murder weapon, and again in a conversation with his mother recorded at the Lubbock County Jail. Doug Birdsall was the Texas Tech University Associate Dean of Libraries. Texas Tech University dedicated a sculpture to Birdsall at the university library September 25. Titled Windsong II, the steel-and-sheet-metal artwork was created by Michael Masse and stands seven feet tall. During his tenure at the library, Birdsall created an Art in the Library Committee, and often recommended purchases and donated artwork. He was killed simply because he happened to be with Viola at the time and had just met her that night.


Lubbock Man Sentenced to Death for Murder of Texas Tech Librarian

September 30, 2002.

A jury in Lubbock, Texas, convicted 31-year-old Vaughn Ross of double homicide September 23 in the deaths of Texas Tech University Associate Dean of Libraries Douglas Birdsall and Viola Ross McVade, an 18-year-old local woman, in January 2001. The following day, the jury chose the death sentence over life imprisonment.

Prosecutors say the murders took place because of an ongoing argument between Ross and McVade, who was his girlfriend’s sister, the Lubbock Avalanche-Journal reported September 24. Birdsall was killed because he was with McVade, whom he had met that night.

Texas Tech University dedicated a sculpture to Birdsall at the university library September 25. Titled Windsong II, the steel-and-sheet-metal artwork was created by Michael Masse and stands seven feet tall. During his tenure at the library, Birdsall created an Art in the Library Committee, and often recommended purchases and donated artwork.


Birdsall double-murder plot unfolds

By Mara McCoy - DailyToreador.com

Monday, February 5, 2001

Police released more details Monday concerning the incidents leading up to the murders of Douglas Birdsall and Viola Ross.

In a sworn affidavit by Liza Shontell McVade, Viola Ross' sister, McVade stated she "heard several phone conversations between Viola Ross and Vaughn Ross ... During the phone conversations, (McVade) heard Vaughn (Ross) make threatening statements towards Viola (Ross)."

The affidavit also states the calls were received Jan. 30, at Vaughn Ross' apartment, located at 2024 10th St., in the Chateau De Ville apartments, where McVade later observed Vaughn Ross placing latex gloves on his hands.

Police said since his arrest, Vaughn Ross has admitted to investigators he was involved in an argument with Viola Ross on Jan. 30, the day of the murders.

According to the affidavit, Vaughn Ross then told McVade to leave his apartment. Vaughn Ross told McVade, "If I do something, I don't want nobody around."

According to police reports, McVade then left Vaughn Ross' apartment and went to a nearby apartment to try to find a ride to her father's house. She had her 3-year-old son with her at the time. A witness, who called police regarding a shots fired incident, said a short time before he heard the shots, a black female with a child about 3 or 4 years old came to his apartment and used his phone.

Reports also state that about 10:45 p.m., Jan. 30, a witness observed two black vehicles traveling east from 10th Street and Avenue T. The witness said both vehicles ran stop signs at Avenue S and Avenue R. The witness also said the cars then turned south onto Avenue Q. The witness said the rear vehicle was a black Saab and believes it was Birdsall's car. The witness also said he could see people in the vehicles, but could not identify anyone.

According to police records, Vaughn Ross has previously been charged with several felony offenses in Missouri, including first degree assault, first degree robbery, stealing a motor vehicle and armed criminal action. He has no previous criminal record in Texas.

Vaughn Ross, no relation to Viola Ross, was arrested and charged with two counts of murder Sunday. He remains in the Lubbock County Jail on a $400,000 bond.

Birdsall, 53, who was associate dean of the Texas Tech libraries, and Viola Ross, 18, who was unemployed, were both shot multiple times with a .38-caliber pistol. A cartridge fired from the same weapon that killed Viola Ross and Birdsall was found at the crime scene, located in an alley between 9th and 10th Streets. Blood and shattered glass from the front windows of Birdsall's Saab also was found at the scene.

Police said Sunday that Vaughn Ross, whose residence is located less than 30 yards from the crime scene, is McVade's boyfriend.

First Assistant District Attorney Matt Powell said he was not certain as to whether the two events are related.

"It's just one report," he said. "The police will continue to investigate this crime until we are satisfied all evidence has been found."

Police believe Birdsall's car was driven from the crime scene to a drainage gully in Canyon Lake Park No. 6, where it was found Wednesday morning by a bicyclist who then reported it to a city employee. The employee then called the police.

According to reports, Birdsall was found in the rear passenger seat of his car and blood was visible on his head, neck, shirt, pants and hand. Viola Ross was found in the front passenger seat bent forward at the waist. Blood was visible on the back of her jacket.
Officers observed the victims for at least five minutes and saw no signs of life. No footprints were visible in the immediate area or on a trail leading from the area.

Police also received a call to check on the welfare of Birdsall on Jan. 31, at his residence. When police arrived at the scene, Dale Cluff, dean of libraries at Tech, was outside Birdsall's house. Cluff said he was concerned about Birdsall and had rang the doorbell and knocked but did not get an answer. Police investigated and were unable to locate anyone.

Police have also found a link between Viola Ross and Birdsall. According to the affidavit, a mutual friend arranged for Viola Ross and Birdsall to meet. The mutual friend "went riding with Viola Ross and Birdsall, in (Birdsall's) vehicle. After introducing the two, (Birdsall) dropped (the friend) off in the area of 10th Street and Avenue U."

Dawn Peirce, communications director for the university libraries, said there will be a memorial service for Birdsall at 3 p.m. Thursday at the Merket Alumni Center.

Birdsall's family is requesting that all memorials be donated to the Douglas Birdsall Memorial Library Fund. The fund will be used to purchase artwork for the library.


In the Court of Criminal Appeals of Texas

No. AP-74,459

Vaughn Ross, Appellant
v.
The State of Texas

On Direct Appeal from Lubock County

Hervey, J., delivered the opinion of the Court in which Meyers, Price, Womack, Johnson, Keasler, Holcomb and Cochran, JJ., joined. Keller, PJ., concurred.

O P I N I O N

A jury convicted appellant of capital murder. The trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at the punishment phase. Appellant raises seventeen points of error. We affirm.

Appellant claims that the evidence is legally insufficient (point of error eleven) and factually insufficient (point of error twelve) to support his conviction. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Zuniga v. State, S.W.3d slip op. at 8 (Tex.Cr.App. No. 539-02, delivered April 21, 2004).

The indictment alleged that appellant murdered more than one person during the same criminal transaction. The evidence shows that appellant's victims (Viola Ross and Douglas Birdsall) were apparently murdered in Birdsall's car in an alley outside appellant's apartment complex. Appellant's neighbor reported hearing gunshots in the alley at around 10:00 p.m. The victims' bodies were discovered in Birdsall's car, which was parked in a ravine approximately 4.2 miles from the alley where the victims were murdered. Inside the car were shell casings, glass shards, and a fingertip piece of a latex glove. Shortly before the murders, appellant's girlfriend (Liza, who was also Viola's sister) saw appellant wearing latex gloves. Appellant told Liza to leave the apartment so she would not be there "if anything happens." Liza left the apartment and walked to her father's house, arriving at about 10:11 p.m.

In the alley outside appellant's apartment complex, the police discovered blood stains, glass shards and a shell casing. Testing revealed that the glass shards were similar to the glass windows of Birdsall's car. Additionally, the shell casing from the alley was tested and determined to be consistent with the shell casings in Birdsall's car.

The day after the murders, appellant accompanied Liza to the police station to describe events of the previous night. Appellant told police he had argued with Viola over the telephone. During a second interview with police, appellant told an investigator that he and Viola did not get along and that they had argued because Viola kept calling and putting Liza's ex-boyfriend on the phone. Appellant consented to a police search of his apartment, which resulted in the recovery of two latex gloves and a sweatshirt. DNA testing showed that a blood stain on the sweatshirt belonged to Birdsall. DNA testing also showed that Birdsall's blood was on the outside of the latex glove tip found in Birdsall's car and that appellant's DNA was on the inside of the glove tip. Appellant incriminated himself during police questioning when asked about the location of the murder weapon, and again in a conversation with his mother recorded at the Lubbock County Jail.

The evidence is legally and factually sufficient to support appellant's conviction. The murders occurred in an alley very near appellant's apartment. Appellant threatened Viola with violence not long before she was murdered. Shortly before the murders, appellant told Liza to leave appellant's apartment because he did not want her there in case anything happened. Liza also saw appellant wearing latex gloves, and a latex glove tip containing appellant's DNA and Birdsall's blood was found inside Birdsall's car. Birdsall's blood was also on appellant's sweatshirt. Appellant incriminated himself when the police asked him about the murder weapon, and he incriminated himself to his mother. We cannot conclude that the jury's verdict is irrational or clearly wrong and unjust. Points of error eleven and twelve are overruled.

In point of error thirteen, appellant claims that the evidence is legally insufficient to support the jury's finding that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. We apply the Jackson v. Virginia standard in determining whether the evidence is sufficient to support this finding. See Allridge v. State, 850 S.W.2d 471, 487 (Tex.Cr.App. 1991), cert. denied, 114 S.Ct. 101 (1993).

At the punishment phase, the prosecution presented evidence that appellant has had problems controlling his anger and that in 1997 appellant stabbed a girlfriend and stole her car, for which appellant received and completed probation. Appellant completed an anger management course as a condition of this probation.

The State claims that the evidence presented at guilt/innocence and at punishment clearly establishes appellant's "escalating pattern of violence." Appellant claims that the circumstances of the offense and other evidence relative to his past indicate that he "is not likely to be a danger in the future." Appellant argues that the evidence shows that he committed the murders under a "distressed" state of mind because of having received a number of irritating phone calls from Viola. The evidence indicates that during these phone calls appellant and Viola argued and Liza spoke with at least one of her other boyfriends, who referred to appellant as a coward. (1) Appellant and Liza also argued. Appellant presented the testimony of several witnesses who characterized appellant as an educated, responsible, peaceful, nonuser of drugs or alcohol. Appellant argues:

Appellant's state of mind at the time of the commission of the offense can best be characterized as distressed. He had been the recipient of a number of phone calls from [Viola] directed to [Liza]. During these calls [Liza]'s other boyfriends conversed with her. [Appellant] had been called a coward by one of the male callers and his girlfriend had left his apartment after an argument. If we assume that [the victims] drove to Appellant's home to pick [Liza] up, per her request, the shooting cannot be seen as anything but a reaction, not the result of a scheme. There is no evidence that Appellant did anything to get [the victims] to come to his home. This indicates an absence of forethought. Appellant had been on probation for assault in the past and had successfully completed the term. Appellant was 29 years old. He had completed college, earning a degree in architecture. He had maintained employment with an architecture firm until he decided to return to school. Even as he worked toward an advanced degree, he worked. There is no evidence that Appellant was under duress or under the domination of another at the time of the offense. Finally, there was no psychiatric evidence or testimony from witnesses who claimed that Appellant's character was bad.

We do not agree that the evidence "indicates an absence of forethought" and that appellant's commission of this offense "cannot be seen as anything but a reaction." The evidence that, shortly before the murders and after appellant had threatened Viola, appellant put on latex gloves and asked Liza to leave his apartment in case anything happened supports a finding that appellant planned to murder at least Viola. See Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App. 1987) (some factors relevant to "future dangerousness" special issue are the calculated nature of the defendant's acts and the forethought and deliberateness exhibited by the crime's execution).

A rational jury could also have found that Birdsall was an unintended victim and that appellant intentionally murdered him for no other reason than that Birdsall was in the wrong place at the wrong time. See id. (circumstances of the offense is another factor relevant to the "future dangerousness" special issue). That Viola was the sister of appellant's girlfriend (Liza) is also a relevant consideration to the "future dangerousness" special issue. See id. Another relevant consideration is that appellant murdered the victims out of anger not long after completing an anger management course as a condition of probation for another violent assaultive offense. Appellant's criminal behavior does establish an escalating rather than a de-escalating pattern of violence.

On this record, a jury could rationally have found that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. Point of error thirteen is overruled.

In points of error one through six, appellant claims that portions of the parole charge at the punishment phase of his trial violated several federal constitutional provisions and Article 37.071, ? 2(e)(2)(B), of the Texas Code of Criminal Procedure. In accordance with Article 37.071, ? 2(e)(2)(B), the trial court should have submitted the following parole charge at the punishment phase:

Under the law applicable in this case, if the defendant is sentenced to imprisonment in the institutional division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without consideration of any good conduct time. It cannot accurately be predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of those laws will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted.

The record, however, reflects that the trial court submitted this parole charge at the punishment phase:

Under the law applicable in this case, the defendant, if sentenced to a term of life imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.[ (2)]

It is also possible that the length of time for which the defendant will be imprisoned on a life sentence might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life, he will not become eligible for parole until the actual calendar time served without consideration of good conduct time, equals forty calendar years. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment for life, because the application of these laws will depend on decisions made by prison and parole authorities.[ (3)]

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded or forfeited by this particular defendant.[ (4)]

Appellant argues, as he did at trial, that the bolded portions of this charge could have misled the jury into believing that appellant might be eligible for parole in less than forty years. The State concedes that the parole charge should not have included the good conduct time language but argues that appellant was not harmed by the parole charge.

We agree that the parole charge was erroneous since it does not comply with Article 37.071, ? 2(e)(2)(B). The charge did instruct the jury that a life-sentenced appellant would not be eligible for parole for forty years "without the consideration of good conduct time," therefore we doubt that the bolded portions of the charge could have misled the jury into believing that appellant might be eligible for parole in less than forty years through the award of good conduct time. The issue that is dispositive of appellant's state-law and federal constitutional law claims is whether the jury was so misled or whether there is a reasonable likelihood that the jury applied the misleading parole charge in a way that prevented it from considering that a life-sentenced appellant would not be eligible for parole for forty years. See Turner v. State, 87 S.W.3d 111, 117 (Tex.Cr.App. 2002), cert. denied, 123 S.Ct. 1760 (2003); Luquis v. State, 72 S.W.3d 355, 366 (Tex.Cr.App. 2002); Smith v. State, 898 S.W.2d 838, 857-72 (Tex.Cr.App.) (Clinton, J., dissenting), cert. denied, 116 S.Ct. 131 (1995) (explaining why a life-sentenced capital murder defendant's minimum parole eligibility date could be considered mitigating); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1984) (op. on reh'g) (properly preserved error in jury charge requires reversal if the defendant suffers some harm meaning that the error will call for reversal "as long as the error is not harmless").

In Luquis, we decided that a charge like the one here "which informs the jury of the existence of good conduct time, briefly describes that concept, and explicitly tells the jury not to apply that concept to the particular defendant" does not violate federal due process even "if the defendant's eligibility for parole ... will not be affected by good conduct time." See Luquis, 72 S.W.3d at 365. Though Luquis was a noncapital case involving no jury charge error under state law, (5) its reasoning applies here. As in Luquis, the potential harm that appellant faced from the misleading parole charge was the danger that the jury might have effectively sentenced him to death "to compensate for what it could perceive as the possibility that he might otherwise be released from prison too soon due to 'good conduct time.'" See Luquis, 72 S.W.3d at 362; see also Smith, 898 S.W.2d at 864 (Clinton, J., dissenting) (minimum parole eligibility might be viewed as mitigating because, among other things, a jury could view it as tending to minimize the possibility of the defendant "ever constituting a threat, at least to the public at large").

On this record, however, we do not find that the jury was so misled or that there is a reasonable likelihood that the jury applied the misleading parole charge in a way that prevented it from considering that a life-sentenced appellant would not be eligible for parole for 40 years. The parole charge informed the jury that a life-sentenced appellant "may" be released from prison after forty years, not that he necessarily would. See Luquis, 72 S.W.3d at 364, 366. The jury was instructed not to consider how good conduct time might be applied to appellant, and there is no evidence in the record to rebut the presumption that the jury followed this instruction. See Luquis, 72 S.W.3d at 366, 368. "Nothing in this record suggests that the jury discussed, considered or tried to apply (despite the judicial admonition not to apply) what they were told about good conduct time and parole." See Luquis, 72 S.W.3d at 367 (emphasis in original). "The jury did not send out any notes indicating or expressing confusion about the possible application of good conduct time to appellant." See id. Finally, during closing jury arguments at punishment, appellant informed the jury several times that a life-sentenced appellant would serve at least forty years in prison and this was not disputed by the prosecution. See id. For example,

Now, there's a lot of talk about what might happen forty years from now. But you all know that that parole clock doesn't start ticking for forty years, calendar time, flat.

So, when you're weighing what it is that we need to say [appellant] should live, we're saying he is going to live, his quality of life is not going to be so good, and he's going to be locked up, he's going to be watched, he's not going to be free to travel, but we'll let him live because we think, with our values and our sense of humanity, we think that we don't want to be a party to putting him to death.

A lot can happen in forty years.

We cannot conclude that there is a reasonable likelihood that the good conduct time language in the parole charge misled the jury into believing that a life-sentenced appellant would be released from prison in less than forty years. Appellant, therefore, suffered no harm from the erroneous jury charge. See Luquis, 72 S.W.3d at 364-68; Almanza, 686 S.W.2d at 171. Points of error one through six are overruled.

In points of error seven and eight, appellant claims that the underlined portions of the parole charge (set out above) violated various federal constitutional provisions and Article 37.071 because appellant did not request them. These underlined portions of the parole charge tracked the language of Article 37.071, ? (2)(e)(2)(B), though not in the exact order of the statute. Article 37.071, ? (2)(e)(2)(A), of the Texas Code of Criminal Procedure, requires the trial court to submit this parole charge "on the written request of the attorney representing the defendant."

Appellant claims that by "submitting the [underlined portions of the parole charge] without Appellant's request, the [trial court] denied counsel the opportunity to decide which strategy to follow." The record, however, reflects that appellant made a written request for the Article 37.071, ? 2(e)(2)(B), parole charge. Appellant also did not object to submitting this parole charge to the jury during the charge conference at the punishment phase. Points of error seven and eight are overruled.

In point of error nine, appellant claims that the trial court erred when it denied appellant's request to impeach Liza with evidence that she had provided deceptive answers during a polygraph examination shortly after the murders. The polygrapher's report indicated a 97% probability of deception when Liza stated that appellant told Viola over the phone, "Bitch come over here and I will shoot you." Liza did not testify to this statement at trial. We understand appellant's argument to be that he should have been allowed to impeach Liza's trial testimony with evidence that she had provided deceptive answers during the polygraph examination without getting into the specifics of these answers. He further argues:

[Liza] is the only witness whose testimony gave the State any evidence of a means or a motive for Appellant to kill [the victims]. It is her testimony directly and through hearsay which she was allowed to propound, purportedly from her deceased sister, that comprises the only evidence that Appellant ever possessed a handgun. Specifically, [Liza] testified that [Viola] saw a gun in Appellant's hand once about one month before January 30, 2001. She also testified that once, while moving some of Appellant's clothing, she felt something heavy and asked Appellant if he had a gun. [Liza] said that Appellant told her that he did have a gun. It is also only her testimony that tends to prove that Appellant had an argument with [Viola] on January 30, 2001.[ (6)]

Though this Court has held that polygraph evidence is inadmissible for all purposes, (7) appellant claims that this Court should revisit the admissibility of this evidence under the later adopted scientific evidence test set out in Daubert/Kelly. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993); Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App. 1992). The record, however, reflects that appellant presented to the trial court only a memorandum of law containing various federal court decisions that have upheld the admissibility of polygraph evidence. This, without more scientific proof, would be insufficient under Daubert/Kelly to establish the reliability of the polygraph evidence in this case. See Kelly, 824 S.W.2d at 573 (proponent of scientific evidence must show that the technique applying the underlying scientific theory was properly applied on the occasion in question). And, since we are not reviewing a trial court's admission of scientific evidence on a "bare trial court record concerning scientific reliability," we may judicially notice that "there is simply no consensus that polygraph evidence is reliable." See United States v. Scheffer, 118 S.Ct. 1261, 1265-66 (1998); Hernandez v. State, 116 S.W.3d 26, 29, 32 (Tex.Cr.App. 2003) (appellate courts may judicially notice other courts' determinations of the unreliability of a particular scientific methodology so long as these determinations are not the sole source for upholding a trial court's admission of scientific evidence).

We cannot conclude that the trial court abused its discretion to exclude the polygraph evidence. And, even if the trial court did abuse its discretion, the exclusion of the polygraph evidence was harmless in light of the overwhelming evidence of appellant's guilt and the other evidence (including appellant's own statements to the police) that corroborated the material aspects of Liza's testimony. Point of error nine is overruled.

In point of error ten, appellant claims that the trial court reversibly erred when it denied appellant's motion for a psychiatric examination to determine his competency to continue to stand trial after the jury had returned a guilty verdict and prior to the commencement of the punishment phase. (8) In support of this motion, appellant's lawyer claimed that, after the jury's guilty verdict, appellant made statements to his mother and to his other lawyer "which suggest some irrationality" and that appellant did not want his lawyers to call any witnesses on his behalf at the punishment phase. (9)

[THE COURT]: On the record, prior to bringing the jury back in, the Court has been given a Defense Motion for Continuance No. 4, and Request for Psychiatric Examination of the Defendant to Determine Competency to Continue to Stand trial.

The Court will give both sides an opportunity to give argument with regard to those matters.

It's the understanding of the Court that [appellant] is not in - necessarily- in necessary agreement that he is incompetent to stand trial. And, for the record, this Court has had the opportunity for the past seven weeks to be able to look at [appellant] and observe his ability to interact with Counsel in the picking of the jury in this cause, and for other matters, and - I will allow you to make your argument, Counsel, but for the record, it's my opinion that [appellant] does know what he is doing and he is competent to stand trial, based on just my observations. And, of course, I'm not a psychologist or a psychiatrist, either one. But just my observations over the last seven weeks of this trial, you know, --

[DEFENSE COUNSEL]: Your Honor, [appellant], since the return of the verdict, has made statements to his mother and to co-counsel which suggest some irrationality, since all of us believe that life is precious and that it's to be preserved at all cost. [Appellant] insists that that's not a sign of irrationality, and he disagrees with our filing the motion to have him examined, and he believes he is competent to stand trial. I have counseled him that he should permit us to call witnesses in his defense on the issue of punishment. He insists that we should not do that.

And he has asked if there is any doubt in the Court's mind to let him address the Court and show that he is competent.

I think the Court has already expressed a view that indicates that the Court believes that [appellant] is competent.

[THE COURT]: Again, I - you know, if he wants to address the Court, I don't have any problem with him addressing the Court. But if that's the purpose of addressing the Court, I really don't -

[DEFENSE COUNSEL]: He's not interested in addressing the Court.

[THE PROSECUTION]: May I have just a moment, Your Honor?

[THE COURT]: Sure.

(Pause.)

[THE PROSECUTION]: Your Honor, the only thing the State would add, in addition to the things that have been said, is in agreement with the Court being in the courtroom for the past six or seven weeks, we've observed also the interaction, don't have any idea what he's talking to his lawyers about, but have seen the interaction on - every day, on a daily basis, multiple times a day, his interaction with him and his lawyers. Also would say for the record that when the Court stated that they had filed a Motion for a Psychiatric Examination, he was shaking his head "No," as if to disagree with that. And when the Court said in your opinion that he was competent, [appellant] shaked [sic] his head in the affirmative, that he was agreeing with that, Judge.

And so, that's all we would have, in addition to what the Defense said.

[THE COURT]: For the purpose of the record, the Motion for Psychiatric Examination and the Motion for Continuance in this cause will be denied by the Court.

The trial court was within its discretion to decide that appellant presented no evidence that raised a bona fide doubt regarding appellant's competency to continue to stand trial. See McDaniel v. State, 98 S.W.3d 704, 710-11 (Tex.Cr.App. 2003). The trial court did not believe that appellant was incompetent based on its personal observations of appellant over several weeks. See McDaniel, 98 S.W.3d at 710-11 n.19 (trial court may consider a defendant's conduct or statements in court) and at 713 (trial court's first-hand factual assessment of a defendant's competency is entitled to great deference). Appellant's statements to his mother and to co-counsel "which suggest some irrationality" and appellant not wanting to have witnesses called on his behalf at the punishment phase do not necessarily show appellant's inability to rationally consult with his lawyers or to understand the proceedings against him. See McDaniel, 98 S.W.3d at 709-10 and at 710 n. 19 (reliable evidence of incompetency could be in the form of the defendant's attorney orally reciting "the specific problems he has had communicating with his client"). Point of error ten is overruled.

In points of error fourteen through seventeen, appellant claims that the trial court's denial of three of his motions for continuance violated various state and federal constitutional provisions. Appellant argues:

Appellant's complaint regarding the Trial Court's overruling his motions for continuance is that the error was cumulative. That is to say that if the relief sought by any of the motions had been granted, Appellant might not have been denied effective assistance of counsel. However, since the court overruled all three motions, both the Constitution of the United States and of Texas were violated and he was harmed substantially.

The basis of appellant's motions for continuance was the prosecution's alleged failure to comply with pretrial discovery orders. Appellant filed his first motion for continuance on July 22, 2002, about two weeks before individual voir dire was scheduled to begin, and the trial court had a hearing on the motion on the same day. The trial court proposed postponing voir dire for a couple of days until appellant could get things "squared away with the DA's Office." Appellant responded that "that would help" and informed the trial court that he was thinking of asking for a continuance until "sometime in the year 2003." The trial court indicated that it would probably deny a continuance for that length of time. Appellant did not obtain a ruling on his first motion for continuance as required by Tex.R.App.Proc. 33.1(a)(2)(A).

[THE COURT]: And it gives us an opportunity then - you know, once we get them back on Wednesday - and I've got your Motion for Continuance, Floyd, and we'll talk about that, but that might give us then - if we put off actually starting our first voir dire until the 7th instead of the 5th, give you an opportunity to get whatever information you're trying to get squared away with the DA's Office, we can kind of -

[DEFENSE COUNSEL]: That would help, Judge.

[THE COURT]: -get that squared away.

[DEFENSE COUNSEL]: Of course, my Motion for Continuance, I was thinking sometime in the year 2003.

[THE COURT]: Probably the Court would deny a continuance for that length of time.

[DEFENSE COUNSEL]: I understand.

Appellant filed his second motion for continuance on July 29, 2002, and the trial court had a hearing on the motion on the same day. Appellant claimed that "there's just so much that we still don't have access to" and claimed that he needed "some additional time to obtain records and other information." The prosecution responded that many of the assertions appellant made were "just not true." The prosecution further responded that pursuant to an "open-file policy" it had "provided every [nonprivileged] documentation that the State has in its possession" including witness statements that the law did not require the prosecution to provide. The trial court denied appellant's second motion for continuance.

[THE COURT]: With regard to the request for Motion for Continuance, the general voir dire on this case is scheduled to begin - or, general voir dire will begin today and the individual voir dire will not begin until August the 7th in this cause. And, traditionally, it takes about 24 working days to select a jury. So, in the estimation of the Court, that's over 30 days that you have to obtain the information you've requested.

I will deny the Motion for Continuance and overruled the objections to the late filing of the extraneous offenses and overrule the objections to the State's failure to obey the pretrial discovery orders.

[THE PROSECUTION]: Your Honor, just for the purposes of the record, some of the assertions that have been in the Motion for Discovery are just absolutely not true. And some of the assertions that were just made by [appellant's lawyer], for instance, the one from - the man that was at the apartment saying that he doesn't want to get involved, and things like that, well, if you don't see anything or didn't hear anything, I guess that's another way of saying you don't want to get involved. But those assertions - and a lot of the assertions that are made in the Motion for Discovery are just not true.

We have provided - have an open-file policy and have provided every documentation that the State has in its possession, other than work product, to [appellant's lawyers]. We've provided every page of discovery that we have, including witness statements that we're not even required by law to give until that witness was to testify. And we've given all those informations and have that open-file policy, Judge.

Appellant filed his third motion for continuance on September 12, 2002, and the trial court had a hearing on the motion on the next day. Appellant again complained that the prosecution was not complying with the pretrial discovery orders. The prosecution responded that appellant had everything that the prosecution had "as far as in the way of reports or anything of that nature." The trial court denied the motion and informed appellant that if "there is a witness that testifies that you have not - or, that they call that you have not had an opportunity to interview, I will take that up at that particular time." Appellant made no such claim of prejudice during trial.

On this record, the trial court would have been within its discretion to find that the prosecution complied with the pretrial discovery orders. See Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Cr.App. 1995) (granting or denying motion for continuance within trial court's sound discretion). Appellant also has not shown any actual prejudice from the denial of his motions for continuance. See id. (defendant must show actual prejudice from denial of motion for continuance); see also Janecka v. State, 937 S.W.2d 456, 468 (Tex.Cr.App. 1996), cert. denied, 118 S.Ct. 86 (1997) (defendant must show actual prejudice from the denial of a motion for continuance). Points of error fourteen through seventeen are overruled.

The judgment of the trial court is affirmed.

Hervey, J.

Delivered: May 5, 2004

Publish

*****

1. The "coward" comment apparently was over some incident in which appellant threatened someone with a gun.

Q. [THE PROSECUTION]: Okay. And, Mr. Martin, was it your understanding that the comment regarding "coward" was because of some incident where there had been a threat with a gun that [appellant] had used?

A. [RONNIE MARTIN]: Yes.

2. Emphasis in bold added.

3. Emphasis in underline added.

4. Emphasis in bold added.

5. See Luquis, 72 S.W.3d at 363 (no error under state law in giving jury a statutorily-required jury instruction).

6. The record does not support these assertions. In his statement to the police, appellant admitted that he and Viola had argued and that he had threatened her. In addition, another witness (Martin) testified about an "incident where there had been a threat with a gun that [appellant] had used." See Footnote 1.

7. See Tennard v. State, 802 S.W.2d 678, 683 (Tex.Cr.App. 1990), cert. denied, 111 S.Ct. 2914 (1991).

8. The applicable law is set out in Former Article 46.02 of the Texas Code of Criminal Procedure which was repealed by Acts 2003, 78th Leg., ch. 35, ? 15 (effective January 1, 2004). Current law is codified in Article 46B of the Texas Code of Criminal Procedure.

9. The record reflects that appellant subsequently called witnesses on his behalf at the punishment phase.


Ross v. Thaler, 511 Fed.Appx. 293 (5th Cir. 2013). (Federal Habeas)

Background: Following affirmance of his conviction in state court for capital murder, and his sentence of death, petitioner filed federal petition for writ of habeas corpus. The United States District Court for the Northern District of Texas denied petition. Petitioner sought certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) appellate court would decline to consider argument that ineffectiveness of state habeas counsel excused petitioner's failure to produce affidavits of his trial attorneys to state habeas court, and (2) COA would be denied. Certificate of appealability (COA) denied.

PER CURIAM.FN* 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.

This request for a certificate of appealability (COA) in this death penalty case presents arguments that the district court should have considered affidavits, even though they were not presented in state court; the defaulted affidavits, which support the petitioner's ineffective-assistance-of-trial-counsel claim, should have been considered under the authority of Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), because of the ineffectiveness of state habeas counsel in failing to produce the affidavits in the state habeas proceedings.

Vaughn Ross was convicted and sentenced to death in Texas state court for the 2001 murders of Viola Ross and Douglas Birdsall during the same criminal episode. Ross was denied habeas relief by the Texas courts. Ross now seeks federal relief. The district court held that the affidavits of trial counsel that Ross presented for the first time in this federal proceeding could not be considered under Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (holding that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits”). The court further held that the state habeas court did not unreasonably apply clearly established federal law when it denied Ross's ineffective-assistance-of-trial-counsel claims on the merits, based on the evidence presented in state court. Ross now seeks a COA from this Court, but because Ross has failed to demonstrate a substantial showing of the denial of a constitutional right or that his claims are adequate to deserve encouragement to proceed further, we DENY his request for a COA.

I.

A.

We first review the facts as presented by the prosecution in state court at the guilt-innocence phase of the trial: Viola's sister, Liza McVade, dated Ross. On January 30, 2001, while McVade was at Ross's apartment with her four-year-old son, Viola telephoned her sister McVade several times. McVade's former boyfriend, Clarence Garner, was with Viola at the time. During one of those conversations, Viola allowed Garner to speak to McVade. Ross knew that McVade was talking to Garner and he was jealous, angry, and upset about McVade's conversation with Garner. Next, McVade called Viola to come and get her. While they were talking, Teresa Williams came to Viola's house and told her that Douglas Birdsall was there, looking for a young, black female prostitute. To accommodate Birdsall, Viola delayed going for McVade, and offered to take Birdsall to someone who would be interested. Viola left with Birdsall and Williams. They dropped Williams off shortly thereafter.

Viola attempted to call McVade from Birdsall's home. Ross answered the telephone, cursed and threatened Viola, and told her not to call again. Ross refused to take McVade and her son home and refused to allow her to use his telephone to call for a ride. Ross then began putting on latex gloves and told McVade to leave “because if I do something, I don't want you around.” After using a neighbor's telephone in an unsuccessful attempt to get a ride, McVade and her son walked to her father's house. About fifteen to twenty minutes after McVade had used his telephone, the neighbor heard gunshots, which he reported to the police.

The next day, the bodies of Birdsall and Viola were found inside Birdsall's car, which was parked in a ravine. Both had been shot numerous times and both had died from gunshot wounds to the head. After discovering the bodies, the police investigated the report of shots fired the night before, to see if there was a connection with the murders. In an alley behind Ross's apartment, the police discovered glass shards and two pools of blood. The larger pool of blood was consistent with Birdsall's DNA profile. A shell casing recovered from the scene matched the shell casings found inside Birdsall's car. A latex glove tip found inside Birdsall's car was tested. Blood on the exterior of the glove tip was consistent with Birdsall's DNA profile. The inside of the glove tip contained DNA consistent with Ross's DNA.

When Ross was interviewed by the police on January 31, he admitted that he was angry with Viola on the evening of January 30, and that he and Viola had argued over the phone when Viola let Garner speak to McVade. The police interviewed Ross again on February 2. In that interview, he admitted that he had argued with Viola and had threatened her. Ross also admitted that he had worn latex gloves that night because he was going to mop his kitchen floor and the bleach hurt his hands. When the police told Ross they were worried that a child might find the murder weapon, Ross told them they did not have to worry because the gun was secure and wouldn't cause any harm. When confronted with the physical evidence—the close proximity of the crime scene to his apartment, the blood and glass found there, the latex glove tip—Ross did not admit killing Viola and Birdsall, but said that if the police had what they said they had, then they had the truth. With Ross's consent, the police searched his apartment and found two latex gloves and a sweatshirt. The sweatshirt had a very small bloodstain that DNA testing revealed to be consistent with Birdsall's, and Ross's DNA was on the inside of the shirt. Later, when he was in jail, Ross spoke with his mother, who asked him whether he had committed the crime. Ross responded that he “might have.”

B.

At trial, Ross was represented by Floyd Holder, Jr., and Patrick S. Metze. They presented some evidence in support of his defense that the police may have planted the latex glove tip that was found in Birdsall's car. They also presented evidence, including expert testimony, that Ross alone would not have been capable of moving Birdsall's body from the front seat of his car to the back seat, where it was found, and that at least two people had to have committed the murders. They produced Derald Powell, Ross's former roommate, who testified that he had never seen Ross with a gun. They also presented evidence that the murderer would have been covered with blood and glass fragments, but that no blood was found in Ross's apartment or in his car.

The jury was not impressed and convicted Ross of capital murder. Immediately after the guilty verdict, Ross's trial counsel filed a motion for continuance and for a psychiatric examination to determine whether Ross was competent to continue to stand trial. In the motion, defense counsel stated that Ross had instructed his family and friends not to assist defense counsel at the punishment stage of his trial and that further time was needed to consult with Ross, his family and friends to secure their cooperation. Defense counsel explained to the court that they questioned Ross's competence because of his insistence that his counsel not call witnesses in his defense at the punishment phase. The trial court denied the motions, stating that based on its observations, Ross knew what he was doing and was competent to stand trial.

C.

At the punishment phase of the trial, the State called a jailer who testified that while Ross was in jail awaiting trial, he removed a wristband that all inmates were required to wear. During a roll call, when asked for the wristband, Ross threw it on the floor. The jailer testified that he wrote a disciplinary report about the incident because Ross “kind of went crazy” and began cursing him. The State also presented evidence that Ross pleaded guilty to felony assault and stealing a motor vehicle in 1997, and was placed on probation. Susie Caddell, a probation officer, testified that Ross told her that the victim was his girlfriend, that they had problems in the past, and that she was stalking him. Caddell said that Ross told her that the victim attempted to stab him, but he took the knife from her and stabbed her. According to Caddell, Ross admitted that anger and outrage contributed to the assault. He expressed no remorse but did say that he would walk away if he had to do it over again. Ross had successfully completed anger counseling and probation.

Kevin Knobbe, the Missouri police officer who responded to the call about the stabbing, testified that the victim, Regina Carlisle, told him that her boyfriend, Ross, had stabbed her and taken her vehicle. Carlisle had numerous knife wounds, including a laceration on her neck that could have potentially been life-threatening. Knobbe testified that he overheard Carlisle say that Ross told her to give him her neck and that she was going to die. On cross-examination, defense counsel elicited testimony that Carlisle was not admitted to the hospital for her injuries, but was only treated and released. Ross presented testimony from three witnesses at the punishment phase. The first was Felix Moore, a doctoral student at Texas Tech. Moore testified that he and Ross were fraternity brothers, that Ross studied architecture, and that Ross had paid for his education by working while attending school. Moore said that he had never seen Ross with a gun or knife and had never seen Ross upset, acting violently, or engaging in gangster-type behavior. Moore described Ross as a “peacemaker.” According to Moore, Ross was “always pretty calm.” He said that Ross drank alcohol, but did not use drugs, and that Ross had girlfriends.

Tanya Robertson also testified for Ross at the punishment phase. Robertson, a Dallas accountant, explained that she knew Ross through her sorority and eventually became roommates with Ross and Derald Powell, who was in law school at the time. According to Robertson, Ross was a diligent student, was not involved with drugs, did not engage in gangster behavior, and rarely drank alcohol. Robertson said that Ross had one girlfriend during the time Robertson was his roommate, and that they had a loving relationship. Robertson described Ross as meek, humble, very calm, very polite, and very nice.

The final punishment phase witness for the defense was Ross's mother, Johnnie Ross, who testified that Ross had three sisters—Valeria, Tiffany, and Michelle. Ross last saw his father, Hershall Sumpton, when he was about eight years old. There were no men living in their home when Ross lived there. Ross was born with pneumonia and suffered from asthma. He attended public school, where he ran track and played football. He was involved in the Cub Scouts and Boy Scouts. He attended inner city schools until junior high, when the family moved to a St. Louis suburb, where they lived in a single-family home in a predominantly white community with racially mixed schools. There were no guns in their home. Ross was not familiar with weapons and he did not hunt. Ross went to church, where his step-grandfather was the preacher, three or four times a week, until he went to college. Ross had a small, racially-mixed group of friends in high school, who were “good kids.” Ross did not have trouble with the law as a juvenile, other than a single curfew violation. He did not get into trouble at school. His mother was not aware of any drug or alcohol use, and Ross was not involved in any gang activity. As a teenager, Ross had a job at a country club. His mother described him as a quiet, calm, laid-back person. After he graduated from high school, Ross attended Central Missouri State College, where he received an Associate of Science degree and a Bachelor of Science degree. While in college, Ross did not use drugs and drank alcohol only socially. He was active in his fraternity and was president of his chapter during his senior year. After college, Ross had jobs with several architectural firms. According to his mother, Ross was never in trouble with the law until the incident with his girlfriend in 1997. After that incident, Ross went to Texas Tech to continue his education. While at Texas Tech, Ross paid for his education and did not have any mental problems. Ross's mother said that she did not know anything about Ross being in a car wreck in the 1990s.

At the conclusion of her testimony, defense counsel asked Ross's mother if she wanted to say anything to the jury. She lashed out at the jury, angrily, saying: I get to tell these people that I think they have done a horrible job and that they have been unjust to me and my family and my son. I get to tell these people that I do not think you even considered or even tried to consider all the evidence that pointed toward this situation. I think you made your minds up from the beginning and you decided that because you saw, as they hollered and shouted at us, Vaughn Ross sitting there, Black, that that was it. And you made a decision right then and there. You didn't consider what you did to my family. I understand, and I am so sorry about the Birdsalls, about the Rosses, the McVades. But you didn't consider that my son was innocent. You didn't consider what it would do to my son's life or to my family's life. And if I appear angry, it's because I am. Because I don't think you gave him a chance. And I don't think you gave him a chance from the very beginning.

When defense counsel asked her if she wanted the jury to give her son a life sentence, she responded: “No, I do not. That would be foolish for me to want that.” When pressed, she said that neither choice was good, but that she “would prefer life over death.” The jury answered affirmatively the special punishment issues on future dangerousness and whether Ross caused or anticipated the deaths of the victims. It answered negatively the special issue on mitigating circumstances. Accordingly, the trial court imposed the death sentence.

II.

A.

Ross next directly appealed his conviction and sentence to the state appellate court. In this connection, the trial court appointed Richard Wardroup to represent Ross on direct appeal. On May 5, 2004, the Texas Court of Criminal Appeals affirmed his conviction and sentence. Ross v. State, 133 S.W.3d 618 (Tex.Crim.App.2004). Ross did not file a petition for a writ of certiorari.

The next step in the proceedings occurred while his direct appeal was pending. The trial court appointed counsel to represent Ross in state habeas proceedings, and Ross filed his state habeas application on March 26, 2004. In his state habeas application, Ross asserted that his trial counsel rendered ineffective assistance by failing to investigate and present (1) evidence of the criminal history of Regina Carlisle, the victim of Ross's 1997 assault, to impeach the State's punishment phase evidence; and (2) mitigating evidence about Ross's background. Ross alleged that if counsel had investigated Carlisle's criminal history, they would have learned that she had an extensive criminal history which included fraudulent use of a credit card, car theft, and assaulting a boyfriend by hitting him with her car, and that she had been convicted of manslaughter for shooting another boyfriend who later died from complications. Ross argued that this evidence, together with evidence that Carlisle had a gun in the car the night Ross allegedly assaulted her, that she was mentally unstable, and that she had been stalking Ross, would have placed the entire incident in a different light which had tangible, but untapped, mitigating potential. He further alleged in his state habeas petition that, as a result of counsel's failure to investigate, valuable evidence that undercut the future dangerousness issue was not presented to the jury, and Carlisle's hearsay statements were left unimpeached by her previous assaultive behavior and crimes of moral turpitude. Ross also alleged that trial counsel's mitigation investigation consisted of a single interview with Ross's mother and two of his sisters for no more than an hour. Finally, he alleged that counsel had failed to uncover additional mitigating evidence, described in the affidavits of licensed private investigator Lisa Milstein and his sister, Valeria Martin, which were attached as exhibits to his state habeas application.

In her affidavit, Milstein summarized proposed testimony from seven potential witnesses: (1) Ronnie Martin: According to Milstein, Ronnie Martin told her that Viola's father, Chester, did not want Ross to get the death penalty. However, Chester would not speak with Milstein. (2) Lydia Davis: Milstein stated that she interviewed Davis, Ross's maternal grandmother, and that Davis was willing to help but was never interviewed by anyone associated with Ross's defense. According to Milstein, Davis attributes all of Ross's problems to his lack of a father figure and to his mother's refusal to help him contact his father. (3) Marsha Green: Milstein stated that she interviewed Green, who dated Ross for three years after he graduated from college, and that Green was willing to help but was not interviewed by Ross's defense team. According to Milstein, Green said that Ross was quiet, not jealous or possessive, was nice to her, never raised his voice or a hand to her, and had high expectations from life. (4) Michelle Ross: Milstein stated that she interviewed Michelle Ross, Ross's youngest sister. According to Milstein, Michelle was interviewed by Ross's trial counsel in the company of her mother and sister, Valeria. The interview was brief and focused on the evidence against Ross, barely touching on Ross's early life. Michelle did not testify at trial. (5) Regina Carlisle: Milstein stated that she interviewed Carlisle, Ross's ex-girlfriend and the victim of the 1997 assault to which Ross pleaded guilty. According to Milstein, Carlisle made her living by stealing cars, but Ross was not involved in the thefts. Carlisle also described shooting a boyfriend who later died from his wounds. On the night Ross assaulted her, she had a handgun in her car. Milstein said that Carlisle was not interviewed by the defense team and indicated that she would have spoken to them. (6) Valeria Martin: Valeria was present at Ross's trial but did not testify. Milstein stated that Valeria told her that her mother would not allow the children to discuss their childhood, and so they were unable to speak freely when interviewed by Ross's defense counsel in the presence of their mother. Valeria believed that Ross suffered from the fact that he had no father figure and resented his mother because she would not help him find his father. (7) Tiffany Ross: Milstein stated that she interviewed Ross's sister, Tiffany, who said that she would have been willing to speak with defense counsel and testify at trial. According to Milstein, Tiffany described Ross as stubborn and stated that his feelings were easily hurt and he was picked on in school because he was short.

In her affidavit, Valeria stated that she, her sisters, and her mother met with Ross's defense counsel on one occasion for approximately an hour. They were not interviewed separately. Valeria believed the family would have been more open if they had been interviewed individually, because they did not feel free to talk in the presence of their overbearing mother, who had always told them not to tell their business to anyone. She stated that Ross was a very quiet, sensitive child. He wanted affection from their mother, but the mother is not the affectionate type. Ross was unable to gain that attention elsewhere. All of Ross's siblings had different fathers, but Ross was the only one who did not have a relationship with his father. He wanted a male figure in his life, and always resented his mother for not talking to him about his father and trying to involve his father in his life. She stated that there was a side of her brother that the jury did not hear about: he was popular in high school and never got in trouble; he did not use or abuse drugs or alcohol, was active in his fraternity and was considered to be a good person by everyone who knew him, and was kind and sensitive. Ross alleged that as a result of counsel's inadequate investigation, the jury did not get an accurate picture of his life history that could have humanized him and led to an understanding of his need for a close relationship, but inability to have one.

B.

The state trial court was not impressed by Ross's habeas petition and on July 3, 2007, it adopted the State's proposed findings of fact and conclusions of law and recommended that the Texas Court of Criminal Appeals deny relief. Ex parte Ross, No.2001–435,653–A. On appeal of the denial of habeas relief, Ross next filed a motion to remand the case to the trial court because his counsel did not receive both the trial court's order to submit proposed findings of fact and conclusions of law and the State's proposed findings and conclusions. The Texas Court of Criminal Appeals granted the motion and ordered the trial court to re-examine the findings it had entered in the light of Ross's proposed findings and conclusions. Ex Parte Ross, No. WR–60,294–01 (Tex.Crim.App. Oct. 10, 2007).

On remand, the habeas trial court re-entered the same findings of fact and conclusions of law and again recommended that the Court of Criminal Appeals deny relief on the merits: With respect to the claim of ineffective assistance for failing to investigate the criminal history of Regina Carlisle, the state habeas court found that Ross did not present evidence that defense counsel failed to investigate Carlisle's criminal history; that Ross failed to demonstrate how defense counsel could have introduced evidence of Carlisle's criminal history or how it would have been admissible because she did not testify; that Ross's version of the events was before the jury through the testimony of his probation officer; and that Ross had pleaded guilty to assaulting Carlisle. It concluded that Ross had not demonstrated either that trial counsel's performance was deficient or that Ross was prejudiced in this respect.

Next, with respect to Ross's claim that counsel were ineffective by failing to investigate and present mitigating evidence, the state habeas court found that Ross failed to allege any facts establishing deficient attorney performance. Moreover, and in particular, Ross failed to allege facts to challenge: that Ross had previously insisted that no punishment witnesses be called on his behalf; that Ross dissuaded some punishment witnesses from testifying on his behalf; that Ross advised his friends and family not to cooperate with defense counsel; that Ross's mother had told defense counsel to leave her alone; and that the additional mitigating evidence was neither powerful nor compelling, but was similar to the evidence that indeed was presented at trial. The court concluded that Ross had failed to show that counsel's punishment investigation was deficient and that Ross had obstructed counsel's attempts to investigate and present a punishment case. The court further concluded that Ross was unable to show that, if the newly proffered evidence had been presented and explained, there is a reasonable probability that the result of the sentencing proceeding would have been different.

On January 23, 2008, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions and denied relief. Ex Parte Vaughn Ross, No. WR–60,294–01, 2008 WL 217987 (Tex.Crim.App. January 23, 2008).

III.

A.

We now turn to the federal habeas proceedings. On Aug 27, 2008, Don Vernay and Richard L. Wardroup were appointed to represent Ross in federal habeas proceedings. Ross filed a petition for federal habeas relief on January 11, 2009. In his federal habeas petition, Ross alleged, as he had in his state habeas petition, that trial counsel were ineffective for failing to investigate Regina Carlisle's criminal history and for failing to conduct a mitigation investigation. In addition to the affidavits of Milstein and his sister Valeria Martin that were attached to his state habeas petition, Ross attached to his federal habeas petition the affidavits of his trial counsel, Floyd Holder and Patrick Metze. The affidavits of trial counsel had not been presented in state court.

In his affidavit, Holder stated that he was retained by Ross's family. He did not ask the court to provide a mitigation investigator and did not retain one. He stated that he was instructed by Ross and his family that the focus of the investigation was on acquittal. Therefore, he spent very little time attempting to investigate the facts relative to the punishment phase. He did not send an investigator to Missouri to investigate Ross's psycho-social history. He stated that his professional opinion is that blaming someone remote in time and place for the way an accused turns out does not work to mitigate punishment unless the evidence shows that the accused is less culpable because of the condition. He stated that he did not investigate Regina Carlisle's background and did not know that she had a history of shooting a prior boyfriend or that she had a handgun in her vehicle on the night that the assault occurred. He also did not know that Carlisle had engaged in theft of automobiles and other types of fraud. He said that Metze was appointed about a month before individual voir dire began, that Metze was primarily responsible for preparation for the punishment phase, and that he did not authorize Metze to retain any experts or investigators to assist in his preparation. He said that he and Metze met with Ross's family shortly before the trial began and that he recalled visiting with the family twice and communicating with them throughout the trial.

In his affidavit, Metze stated that he spent most of the time between his appointment and the beginning of trial becoming familiar with the facts of the case and the investigation that Holder had done. Holder asked him to prepare for the punishment phase, but he did not have a mitigation investigator to assist him. He did not have time to travel to Missouri to meet with Ross's family, friends, teachers, and coaches prior to starting jury selection. He met with some members of Ross's family in Holder's Lubbock office, but the family was not particularly forthcoming about Ross's psycho-social history. They were particularly obstinate when questioned about the specifics of Ross's youth. Metze stated that he did not investigate the character and criminal history of Regina Carlisle. Although he discussed with Holder the possibility of doing a more thorough mitigation investigation, he was not able to do so due to trial preparation. He interviewed several witnesses who might testify for Ross: Ross's mother and sister, and Felix Moore and Derald Powell, Ross's fraternity brothers. He also spoke to Tanya Robertson, who testified for Ross at the punishment phase. In a motion for continuance filed after the conclusion of the guilt-innocence phase, he represented to the court that Ross had instructed family and friends not to cooperate with the presentation of punishment evidence. He stated that this instruction limited the witnesses who were willing to testify at trial, but it did not affect the investigation and development of witnesses who might have testified. He stated that he solicited the assistance of Vince Gonzales, a mitigation investigator, who volunteered to assist with punishment phase witnesses. However, Gonzales, although qualified by training and experience, was not asked to do any investigation into the mitigation presentation in Ross's case.

In his brief in support of his federal habeas petition, Ross argued that a thorough investigation of Carlisle's criminal history would have allowed the defense to impeach the State's punishment phase evidence about the 1997 assault. He also argued that the failure to locate and present mitigating witnesses was particularly prejudicial, because those witnesses would have been able to provide some context to Ross's life and his relationships, as well as elaborate on his good character. He contended that the jury should have heard that the father of one of the victims did not want him to get the death penalty, and should have heard about the peaceful side of his character, from women with whom he had maintained relationships in the past. Finally, he argued that the jury should have been told of his dysfunctional family. The State argued that the affidavits of trial counsel were not presented to the state habeas court and were therefore unexhausted and procedurally barred from the federal court's consideration. In response, Ross argued that the matters raised in trial counsels' affidavits were exhausted in state court because the affidavits merely supplemented the evidence of ineffective trial counsel presented in the state habeas proceeding, but did not fundamentally alter the ineffective trial counsel claim presented. He did not argue that state habeas counsel were ineffective for failing to obtain and present the affidavits of trial counsel to the state habeas court.

B.

The district court, in its ruling, agreed with the State and refused to consider the affidavits because they were not submitted to the state habeas court, citing Cullen v. Pinholster. The parties thereafter submitted proposed findings of fact and conclusions of law, and the district court heard arguments on May 1, 2009. On December 1, 2011, the district court denied federal habeas relief and denied a COA. Ross v. Thaler, No. 5:08–CV–174 (N.D.Tex. Dec. 1, 2011). With respect to the claim of ineffective assistance in failing to investigate the criminal history of Regina Carlisle, the district court held that Ross had not demonstrated that the state court's denial of his ineffective assistance of counsel claim was contrary to, or an unreasonable application of, clearly established Supreme Court law. With respect to the mitigating evidence ineffective assistance claim, the district court stated that Ross had presented little or no evidence to support his claim that defense counsel failed to investigate and present mitigating evidence. The court noted that, although an investigator for Ross had interviewed seven witnesses and summarized their evidence in a statement for the state habeas court, only one of those witnesses, Valeria Martin, signed a sworn affidavit stating that she would have testified at trial if she had been asked to do so. The district court observed that the state habeas court had compared the evidence actually presented at the punishment hearing with Ross's proposed additional mitigating evidence and had determined that the additional evidence was neither powerful nor compelling, but was similar to the evidence introduced by his attorneys. Thus the district court concluded that Ross's arguments that his case was comparable to Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), were specious because Ross's additional mitigation evidence—that he felt abandoned by his father and wanted a male role model, that the father of one of the victims did not want him to be sentenced to death, that his mother was unable to control her anger, that Ross and his sisters practically raised themselves, that Ross's former girlfriend found him to be thoughtful and mild-mannered, and that his former girlfriend and assault victim, Regina Carlisle, had a violent criminal past—did not rise to the level of powerful, compelling evidence of abandonment, sexual molestation, physical abuse, criminal neglect, diminished mental capacity, foster care, alcoholism, and homelessness omitted from the punishment phases in Williams and Wiggins. The district court therefore held that Ross had not demonstrated that the state court's adjudication of his claim was contrary to or an unreasonable application of clearly established Supreme Court law.

IV.

Now before us, Ross requests a COA “on the issue of the failure of state habeas counsel to provide evidence in support of their Wiggins [ineffective assistance of trial counsel] claim.” It is important to note what Ross does not request: He does not request a COA with respect to the district court's denial of his claim that the state habeas court unreasonably applied clearly established law when it rejected his ineffective-assistance-of-trial counsel claim. In other words, Ross does not argue that the district court erred by denying habeas relief based on the evidence presented to the state habeas court, which did not include trial counsels' affidavits. Accordingly, the only question presented to us in this COA application is whether Ross may appeal the district court's refusal to consider trial counsels' affidavits—introduced for the first time in the federal proceeding—when ruling on his ineffective-assistance-of-trial counsel claim.

A.

To obtain a COA, Ross must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “[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. In making the decision whether to grant a COA, this Court's examination is limited to a “threshold inquiry,” which consists of “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 327, 336, 123 S.Ct. 1029. We cannot deny a COA because we believe the petitioner ultimately will not prevail on the merits of his claims. Id. at 337, 123 S.Ct. 1029. On the other hand, “issuance of a COA must not be pro forma or a matter of course.” Id. “While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner's favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.2005) (brackets, internal quotation marks, and citations omitted).

B.

1.

In seeking our authority for this appeal, Ross's sole focus is on the failure of state habeas counsel. Ross argues that the negligent failure of state habeas counsel to obtain affidavits from state trial counsel deprived him of a full and fair hearing on his ineffective-assistance-of-trial-counsel claims in both state and federal court. He cites the Supreme Court's recent decision in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272 (2012) (holding that ineffective “assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial”), and contends that Texas is a jurisdiction in which a petitioner may raise a claim of ineffective assistance of trial counsel only in state habeas proceedings—not in a direct appeal of his conviction. Ross asserts that the failure of state habeas counsel to interview or obtain affidavits from trial counsel is the type of ineffective habeas counsel contemplated in Martinez. He asserts that because of this failure of habeas counsel, he did not have a full and fair hearing of his claims in the state habeas court, and consequently, the district court's reliance on Cullen v. Pinholster as a basis for refusing to consider the affidavits of trial counsel disregarded the holding in Martinez. According to Ross, Pinholster's strict limitation on new evidence in the federal habeas proceeding presupposes that a fair and complete state court record is before the federal court, which is not the case here. He therefore contends that the failure of state habeas counsel to present trial counsel's affidavits in state court is a procedural default that should now be excused.

2.

In response, the State points out that before the district court, Ross argued only that all state remedies concerning the affidavits had been exhausted and could be considered by the district court, because they merely supplemented the evidence offered in the state habeas proceeding, but did not fundamentally alter the claim presented. The State therefore contends that Ross has forfeited his argument that state habeas counsel were ineffective for failing to obtain and present the affidavits of trial counsel to the state habeas court, and that the ineffective assistance of state habeas counsel should serve as cause to excuse this default and allow consideration of the affidavits for the first time in federal court. The State contends further that Martinez v. Ryan is inapplicable to habeas proceedings arising in Texas because Texas does not restrict ineffective trial counsel claims to habeas proceedings. Nor should it otherwise apply to the circumstances of Ross's case: Ross's state habeas counsel did not procedurally default the ineffective-assistance-of-trial-counsel claims; further, neither did the state or federal courts apply a procedural bar to foreclose review of those claims. Instead, the district court only refused to consider the newly presented affidavits based upon the Supreme Court's specific holding that federal review is limited to the record that was before the state habeas court. Pinholster, 131 S.Ct. at 1398. Furthermore, Martinez applies to claims, not to evidence supporting claims. Finally, the State contends that even should Martinez apply, and state habeas counsel's deficient performance should serve as cause to excuse the failure to present the affidavits in state court, Ross still cannot establish prejudice because the underlying claims of ineffective assistance of trial counsel are not “substantial.” See Martinez, 132 S.Ct. at 1318 (to overcome procedural default of ineffective assistance of trial counsel claim, “a prisoner must also demonstrate that the ... claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit”). The State contends that even if we were to consider the affidavits of trial counsel, the affidavits would at most support—but not prove—that trial counsel performed deficiently. According to the State, neither affidavit bears on whether trial counsel's ineffectiveness prejudiced Ross's defense; nor does Ross even suggest how reasonable jurists could debate the controlling deference owed to the state court's findings on prejudice.

C.

The State is correct that Ross did not argue to the district court that the ineffectiveness of state habeas counsel excused the failure to produce the affidavits to the state habeas court. As we have already noted, Ross only argued in the district court that the affidavits should be considered procedurally exhausted in state court because they did not fundamentally alter the claim presented in state court. He did not argue that the failure to present the affidavits in state court should be excused because of the ineffective performance of state habeas counsel. The general rule, routinely applied except in rare circumstances not present here, is that we will not consider arguments raised for the first time on appeal. See Bower v. Quarterman, 497 F.3d 459, 475 (5th Cir.2007). Because Ross did not argue in the district court that the affidavits should have been admitted on the basis of his state habeas counsel's ineffective performance we decline to consider that argument now.

We further find that reasonable jurists could not disagree with the district court's application of Pinholster. In Pinholster, the Supreme Court expressed itself clearly when it stated: We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court. Pinholster, 131 S.Ct. at 1398.

The Court also rejected a suggested exception to the state-record-only rule—that new evidence may be introduced in the federal proceeding as long it “supports” an adjudicated claim: The State ... asserts that some of the evidence adduced in the federal evidentiary hearing fundamentally changed Pinholster's claim so as to render it effectively unadjudicated. Pinholster disagrees and argues that the evidence adduced in the evidentiary hearing simply supports his alleged claim. We need not resolve this dispute because, even accepting Pinholster's position, he is not entitled to federal habeas relief. Pinholster has failed to show that the California Supreme Court unreasonably applied clearly established federal law on the record before that court, which brings our analysis to an end. Even if the evidence adduced in the District Court additionally supports his claim, as Pinholster contends, we are precluded from considering it. Id. at 1402 n. 11 (citations omitted).

We are further unpersuaded by Ross's argument that Pinholster applies only when a fair and complete state court record is before the federal court. As we recently held in Lewis v. Thaler, 701 F.3d 783, 791 (5th Cir.2012), when a federal habeas petitioner's claims have been adjudicated on the merits in state court, as Ross's ineffective assistance of trial counsel claims have been, “§ 2254 limits our review to the record that was before the state court.” Accordingly, the district court correctly refused to consider trial counsels' affidavits, which were presented for the first time in the federal proceeding.

In rendering our decision we do not reach Ross's argument that the Supreme Court's decision in Martinez created a routine Pinholster exception—thus allowing a federal habeas court to consider evidence that was not presented in state court—for cases in which a petitioner is denied a full and fair hearing in the state habeas courts because of the ineffectiveness of his state habeas counsel. Because Ross did not argue in the district court that his state habeas counsel was deficient for failing to obtain affidavits from state trial counsel, we need not address the applicability of Martinez. Because the district court's refusal to consider the affidavits is fully supported by Pinholster, its decision is not debatable and the issue is not adequate to deserve encouragement to proceed further. We therefore deny Ross's request for a COA.

V.

To sum up: Ross did not argue in the district court, and thus forfeited, his argument that, notwithstanding Pinholster, the district court could consider trial counsels' affidavits on the grounds that ineffective assistance of state habeas counsel excused the failure to produce those affidavits to the state habeas court. Alternatively, if we assume that the argument is not forfeited, the district court's refusal to consider the affidavits of trial counsel is not debatable or wrong, because Pinholster dictates that result. We do not reach Ross's argument that Martinez applies to this case. The bottom line: Because Ross has failed to make a substantial showing of the denial of a constitutional right, his application for a COA is DENIED.

 

 

 
 
 
 
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