75 F.3d 1017
Billy Joe Woods, Petitioner-Appellant,
Gary L. Johnson, Director,
Texas Department of Criminal Justice,
Circuits, 5th Cir.
Appeal from the
United States District Court for the Southern
District of Texas.
Before KING, GARWOOD and DUHE,
GARWOOD, Circuit Judge:
Joe Woods (Woods) appeals the district court's
denial of his 28 U.S.C. 2254 habeas petition
challenging his Texas capital murder conviction
and sentence to death.
Woods' primary contention is
that the punishment stage future dangerousness
testimony of prosecution witness Dr. Garcia
violated the rule of Estelle v. Smith, 451 U.S.
454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and
Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct.
1792, 100 L.Ed.2d 284 (1988), and his Fifth,
Sixth, and Fourteenth Amendment rights, because
Dr. Garcia had examined Woods for competency
prior to trial, but Woods' counsel was not
notified of the examination and Woods was not
given appropriate Miranda-type warnings.
The district court found that
Dr. Garcia's challenged testimony was harmless
beyond a reasonable doubt, applying the Chapman
v. California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967), standard. Although our
analysis in some respects slightly differs from
that of the district court, and we apply the
more lenient Brecht v. Abrahamson, 507 U.S. 619,
113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), harmless
error standard rather than the stricter Chapman
standard, we ultimately agree with the district
court that the error in question was harmless
under Brecht. The district court likewise
rejected Woods' other claims, as do we
respecting those he has complained of on appeal.
We hence affirm.
Facts and Proceedings
By indictment filed October
21, 1975, in state court in Harris County, Woods
was charged with capital murder committed
October 10, 1975, in Houston, Texas, by
intentionally killing Mable Ehatt (Ehatt) while
in the course of robbing and attempting to rob
her. Attorney Thibodeaux had been appointed to
represent Woods on October 16, 1975; on October
23, attorney Heacock was also appointed to
On October 22, 1975, the
state moved for, and the trial court ordered,
Woods to undergo a psychiatric examination, with
report to be filed in the papers of the case by
November 14, 1975. Although the motion and order
were filed in the papers of the case, they were
not served on defense counsel. The court-ordered
examinations did not take place until mid-December
On December 15, 1975, Woods
was examined by Dr. Nottingham, a psychiatrist
with the Harris County Psychiatric Hospital, and
on December 16, 1975, by Dr. Bloom, a
psychologist, and by Dr. Garcia, a psychiatrist,
each also with the Harris County Psychiatric
Hospital. All three found Woods both sane and
competent to stand trial.
The reports of Drs.
Nottingham and Bloom were not filed in the
papers of the case (or put in evidence at trial),
and neither of them testified at trial. Dr.
Garcia's report was filed in the papers of the
case on January 15, 1976, but was not put in
evidence at trial.
Defense counsel were unaware that the
examinations had been ordered or were going to
be conducted, and hence were not present at and
did not advise Woods respecting any of them.
Meanwhile, on January 12,
1976, defense counsel moved to have Woods
examined for competency by psychiatrist Dr.
Byrd, who had a reputation of being pro-defense.
On January 22, 1976, the trial court granted the
motion and ordered that the examination by Dr.
Byrd take place January 25. Dr. Byrd examined
Woods prior to trial--though just when is not
clear--and the results of his examination were
so adverse to the defense that defense counsel
asked him to refrain from writing or filing a
report with the court.
There is no indication that
Dr. Byrd ever wrote a report, and he did not
testify. He did advise defense counsel that he
found Woods competent to stand trial and sane at
the time of the offense, he characterized Woods
as anti-social and mean, and informed defense
counsel that counsel would not want him, Dr.
Byrd, to testify.
Trial on the merits did not
commence until July 1976. On July 6, just before
the commencement of voir dire, defense counsel
filed a motion requesting that the court
instruct the district attorney in various
respects including, in the motion's paragraph
III, "not [to] allude to or introduce results of
any scientific tests made by the State of Texas,
specifically, psychiatric tests, fingernail
scrapings, pubic hairs or blood samples taken
from the defendant" (emphasis added), on the
ground (stated in the motion's paragraph IV)
that if allowed those matters would violate
defendant's Fifth Amendment rights and "defendant
was without counsel at the time of the
scientific tests." The court's notation at the
foot of the motion appears to indicate that it
was granted "as to paragraph III."
However, the transcript of
the hearing on this and other defense motions
indicates that the motion (which counsel orally
described at the hearing as relating to "a blood
sample, hair, maybe fingernail scrapings") as
there stated was overruled, though apparently
without prejudice to being presented later.
There is no indication that the motion was ever
At the guilt/innocence stage
of trial, no issue was raised and no evidence
was presented concerning Woods' sanity or
competency. The state's unrebutted evidence at
the guilt/innocence stage is generally
summarized in the Texas Court of Criminal
Appeals' opinion on Woods' direct appeal:
"... in the middle of the
night appellant climbed up some poles and
lattice work to the balcony of the second story
apartment of a 63 year old woman [the victim,
Mable Ehatt] who was afflicted with cancer and
could move about only with the aid of a walker.
Appellant forced the door open from the balcony
into the apartment and once inside robbed the
occupant and beat and strangled her to death. He
also apparently attempted to perform some sort
of sexual act with her because she was found to
be nude from the waist down, several hairs from
her head were found jammed in the zipper of
appellant's fly which was open when he was
arrested at the scene, and a considerable amount
of feces and blood from the deceased were found
on the front of appellant's trousers, shorts,
shirt and shoes." Woods v. State, 569 S.W.2d
901, 902 (Tex.Crim.App.1978), cert. denied,
453 U.S. 913 , 101 S.Ct. 3145, 69 L.Ed.2d
According to the police
officers' testimony, when they entered the
apartment (where the deceased had lived alone)
it was "in complete disarray," the victim's
walker was turned over on the floor, her purse
had been emptied on the floor, and large
quantities of blood and human defecation were
observed on the floor of the living room and
The deceased's still warm
body was lying in the kitchen "in a good bit of
blood and human defecation," with her head in
the entryway between the dining room and kitchen.
She was naked from the waist down. There was
blood "from her mouth." Her face and eyes were
swollen and discolored, "severe bruises" were
visible on her head and back, and there was "an
extreme amount of blood in the apartment, on her
and around her." Bits of body tissue were
observed in the blood on the floor. The victim's
sister testified that when her body was seen
later one of Ehatt's eyes "looked like half of a
The medical examiner
testified that "the cause of death was a
fractured hyoid bone and fractured skull, blunt
trauma to neck and head and manual strangulation."
The hyoid bone was fractured on both sides,
which the examiner testified "indicates
constriction type of trauma; that's squeezing of
the neck and resistance on the part of the
The deceased's fractured skull could have been
caused by someone of Woods' size striking her
head with his fists (or kicking her head with
his feet or hitting it with an object such as a
The defendant was found by
the police officers alone (except for the
deceased) in the apartment; the zipper on his
fly was open, and hairs from the deceased's head
were caught in it; his undershorts had blood and
hair on them; there was blood and defecation,
still fresh, on his shoes. The officers at that
time observed bruises and abrasions on the
defendant's knuckles, abrasions on the palm of
his hand, numerous scratches on his back below
the shoulders, and a long scratch on the back of
his right leg. The defendant had the deceased's
bracelet on his left wrist and her hair brush
and prescription medicine, and a woman's
electric razor, in his pants pocket.
There was no defense evidence.
The jury found Woods guilty as charged.
Thereafter, just before the
punishment phase of trial commenced, defense
counsel, out of the presence of the jury,
unsuccessfully objected to the anticipated
calling of Dr. Garcia as a punishment stage
witness for the state, on the ground that Dr.
Garcia's examination of Woods was performed "without
the consent or permission of the defense
attorneys" and his testimony would constitute "an
abridgement of the Fifth Amendment rights."
At the punishment stage, the
prosecution first put in evidence that in April
1970 Woods was convicted, in Louisiana state
court, on his plea of guilty, of attempted
aggravated rape, committed December 21, 1969, in
New Orleans, and was sentenced to fifteen years
in the penitentiary. The state then called Dr.
Garcia, who, after identifying himself as a
psychiatrist, testified as follows:
"Q. Did you have an occasion
to examine the defendant in this case, Billy Joe
A. I have.
Q. Did you have an occasion
to determine whether or not or what type of
mental label, if you will, you put as a
psychiatrist on the personality of the defendant?
A. Well, it's customary that
we address to the questions asked by the court
and they are generally questions of competency.
I did not include a psychiatric label in my
report to the court, since I was asked to
address myself to the issues of sanity and
Q. Did you determine whether
or not the man was competent, insane?
A. I did.Q. Was he competent?
A. In my opinion, he was.
Q. Now, if you will, let me
state a hypothetical situation to you and have
you give your opinion as to the affect [sic] on
this defendant, if that hypothetical situation
applied to the defendant. Assume that a person
in 1970 was convicted of the offense of
attempted rape, felony, sentenced to the
penitentiary and then in 1975 at three in the
morning, climbed up a porch, up onto a porch on
the second floor balcony, kicked in a lady's
door forcibly, went inside and completely
ransacked, turned everything in the apartment
upside down, knocked things over, took the
lady's bracelet, pill bottle, carried a
television downstairs from her apartment, beat
her about the head in such a way that her facial
features were obscure to the point of almost not
being able to identify the way she looked,
tremendous beating, in other words, fractured
skull, strangulation, two fractures in the hyoid
bone, and then in some manner caused his pubic
hair to come in contact with her head while his
pants were down and at least he dressed in no
more than his under wear, had his pubic hair
touching the lady's head, and the lady was sixty-two
years old, invalid, who had to get around on a
walker in order to move about, and that he
killed this lady by beating her and strangling
her and was then caught in the room with her, if
that hypothetical situation applied to this
defendant, knowing his mental background as you
do, can you tell us whether it's more likely
than not that this defendant would commit
criminal acts of violence that would constitute
a continuing threat to society?" (Emphasis added).
At this point defense counsel
objected, the objection was overruled,
and the direct examination continued as follows:
"Q. (by Mr. Graham) Can you
answer the question?
A. Okay. In relation to the
hypothetical question you presented, you
described what sounds as a very aggressive act.
Q. Very aggressive act?
A. Aggressive and violent act
in association with a person that has committed
similar violent acts in the past. In your final
question, would you repeat the final part of the
question? Would he be more likely--
Q. Yes, sir. Would he be more
likely to commit continued acts of violence that
would constitute a continuing threat to society?
A. My answer to that would be
Q. And what is the best
method of determining what will happen in the
future or what someone will do in the future?
A. Well, we don't really have
any methods that's very accurate. In fact,
statistical studies on prediction have shown
that the prediction of the members of the
judicial system is almost, if not more accurate,
than the people in the behavioral sciences. That
is, we in the psychiatric profession and judges
come pretty close to the same level of accuracy.
Q. Well, in your particular
medical field, do you use the past to determine
the best you can what will happen or what a
person will do in the future?
A. We use much attitudinal
assessments of a person's personality
development; how they interact in society and
how they may project of possible behavior, but
there are many variables that usually are
unforeseen that we cannot even attempt to
Q. Is what someone did in the
past the best method you have of determining--I
know you are saying you can't say to an absolute
certainty what someone is going to do in the
A. The things that have
occurred in the past are associated with the
person at the time of examination, together, is
the best tool we have at the present time.
Q. That includes considering
what a person did in the past?
A. That is correct.
Q. Is that what helped you to
come to your answer a minute ago about a
A. True." (Emphasis added).
That concluded the direct
examination. On cross-examination, Dr. Garcia
testified as follows:
"Q. Dr., how long did you
spend with Mr. Woods when you examined him?
A. I imagine between thirty
to forty-five minutes, which is pretty standard
time for my examination.
Q. Standard time?
A. That is correct.
Q. You examined him one time?
Q. With the purpose in mind
to determine his competency?
Q. You submitted certain
standard tests to him?
A. I took a psychiatric
Q. Was it just all verbal?
A. Psychiatric examination
includes subjective assessments of the history
given by the examinee, as well as objective
assessment given by the examiner. I did not
administer any type of psychological tests. I'm
not a psychologist.
Q. And you came to your
professional opinion after a thirty to forty-five
minute session, approximately?
Q. When you started
initiating your conversation with him did you
say anything about the results of your
examination, your opinion would be used to seek
the death penalty on him?
A. No, I did not. I did tell
him that the content of the interview would be
reported to the court; furthermore, he was told
that he had the right to decline to answer
questions during the examination. But I did not
go to the other extreme, because I was not aware
that that would be the way it was at the time of
Q. There was no attorney or
anyone else, just he and you when the interview
A. That is correct.
Q. Now, you stated there are
many variables. Are these behavior type
variables? What was the term?
A. Well, I did not so specify.
There are many things that can enter in a
person's functioning that could alter the course
of their adjustment to either life or any kind
of situation, whether they are environmental
things or facts occurring in their environment
or things occurring internally, changes in
attitude and so on, but I don't have any way of
knowing what those might be.
Q. Each living person that
has a degree of--I hate to use rationalist, but
competency, a competent person always has the
chance or the possibility of changing inside
them, something that would change their
A. That's too broad a
statement. I cannot say that every person at
some point does have that opportunity? There's
some people that have a personality structure of
such nature that may not likely change, but
Q. By the same token, you
can't point at somebody and say 'That man will
never change', can you?
A. There's some people I
Q. Did you, for example, in
A. Well, I was not asked that
question. The question was would a person in the
hypothetical be more likely to commit acts of
violence and my answer to that was yes. But if I
would be asked to give an opinion with a degree
of accuracy greater than that, I cannot answer
because I can't predict to that extent." (Emphasis
That concluded Dr. Garcia's
testimony, and no other evidence was presented
at the punishment stage of the proceedings.
Following argument of counsel, the court charged
the jury, submitting to it the deliberateness
and future dangerousness special issues called
for by Tex.Code Crim.Proc. art. 37.071(b).
The jury returned an
affirmative answer to each of the special issues,
and the court accordingly sentenced Woods to
death. The conviction and sentence were affirmed
on direct appeal, in which Woods was represented
by new counsel (Thornell), Woods v. State, 569
S.W.2d 901 (Tex.Crim.App.1978), and the Supreme
Court denied certiorari June 29, 1981. Woods v.
453 U.S. 913 , 101 S.Ct. 3145, 69 L.Ed.2d
Woods, represented by the
same counsel who represented him on direct
appeal, in October 1981 sought habeas relief in
the Texas courts, contending that under Estelle
v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d
359 (1981), the introduction of Dr. Garcia's
testimony violated his Fifth, Sixth, and
Fourteenth Amendment rights because Woods was
not given proper warnings regarding his
privilege against self incrimination in respect
to Dr. Garcia's examination and because, his
counsel not having been notified of the
examination or that it would encompass future
dangerousness, there was no opportunity to
consult with counsel in regard thereto.
The Court of Criminal Appeals
denied relief. Ex parte Woods, 745 S.W.2d 21 (Tex.Crim.App.1988).
It held that Estelle v. Smith "applied
retroactively as to both Fifth and Sixth
Amendment violations" and that Woods had
adequately preserved his complaints regarding
Dr. Garcia's testimony. Ex parte Woods at 25. It
distinguished Estelle v. Smith on the basis that
there the psychiatrist Dr. Grigson's testimony
was that, based upon his examination of the
defendant, he considered the defendant a
sociopath who would commit violent acts in the
future, while: "[i]n the instant case Dr. Garcia
did not so testify. He was asked a hypothetical
question. His response was based upon the
hypothetical facts he was asked to assume.
Hypothetical testimony alone by a qualified
psychiatrist, even one who has not examined the
individual, is admissible and in such cases
Estelle v. Smith, supra, is not ordinarily
applicable." Ex parte Woods at 25 (footnote
omitted). On its analysis of Dr. Garcia's
testimony, the Court of Criminal Appeals
"We cannot say, in the
context of the entire interrogation of Dr.
Garcia including the cross-examination, that the
answers to the hypothetical question were
influenced by and derived from the court-ordered
pretrial psychiatric examination. Dr. Garcia
indicated in his responses he was basing his
answers upon the hypothetical, not upon the
interview with applicant or the applicant's
answers to any questions." Id. at 26.
Thereafter Woods, represented
by still another set of counsel (who have
continued to represent him), in April 1988 filed
another state habeas application that was
subsequently amended and supplemented. In
October 1988 the state trial court entered
findings and conclusions and recommended that
habeas relief be denied.
The Court of Criminal Appeals
on July 7, 1989, denied relief "on the basis of
the findings and conclusions entered by the
trial court." In September 1990, Woods,
represented by the same counsel, filed still
another state habeas application. The state
trial court entered findings and conclusions and
recommended denial of relief. The Court of
Criminal Appeals again denied relief on the
basis of the trial court's findings.
Woods, represented by the
same counsel, then commenced the instant habeas
proceeding under section 2254. The district
court ultimately denied relief, and Woods brings
I. Dr. Garcia's Testimony
The district court followed
Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct.
1792, 100 L.Ed.2d 284 (1988), and applied the
harmless error standard of Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
705 (1967). It found "beyond a reasonable doubt
that Dr. Garcia's expert testimony on the issue
of Petitioner's future dangerousness did not
influence the sentencing jury."
Satterwhite was a direct
appeal case involving an error--unlike certain
other constitutional errors that "pervade the
entire proceeding," Holloway v. Arkansas, 435
U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978),
being one of the examples given--which the Court
ruled would not require reversal if it were
harmless under the Chapman standard. Satterwhite
at 255-59, 108 S.Ct. at 1797-98. To find such a
constitutional error harmless under the Chapman
standard, the court would have to conclude "beyond
a reasonable doubt" that it "did not contribute
to the verdict." Satterwhite at 256, 108 S.Ct.
After the district court's
decision here, the Supreme Court held in Brecht
v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123
L.Ed.2d 353 (1993), that constitutional errors
of the kind not requiring automatic reversal
would be evaluated under Chapman's harmless "beyond
a reasonable doubt" standard only on direct
appeal, and that in habeas cases the appropriate
standard was the "less onerous harmless-error
standard" of Kotteakos v. United States, 328
U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946),
applicable to direct appeal review of
nonconstitutional claims. Brecht, 507 U.S. at
623-24, 113 S.Ct. at 1714.
Brecht concluded that "[t]he
imbalance of the costs and benefits of applying
the Chapman harmless error standard on
collateral review counsels in favor of applying
a less onerous standard on habeas review of
constitutional error." Brecht 507 U.S. at 637,
113 S.Ct. at 1721-22. The Kotteakos standard
requires that the error have resulted in "
'actual prejudice,' " in other words " 'had
substantial and injurious effect or influence in
determining the jury's verdict.' " Brecht 507
U.S. at 637, 113 S.Ct. at 1722.
The Brecht court also stated
"granting habeas relief
merely because there is a 'reasonable
possibility' that trial error contributed to the
verdict, see Chapman v. California, 386 U.S. at
24, 87 S.Ct. at 828 (quoting Fahy v.
Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 230,
11 L.Ed.2d 171 (1963)), is at odds with the
historic meaning of habeas corpus--to afford
relief to those whom society has 'grievously
wronged.' " Brecht 507 U.S. at 637, 113 S.Ct. at
Thus, under Brecht, a
constitutional trial error is not so harmful as
to entitle a defendant to habeas relief unless
there is more than a mere reasonable possibility
that it contributed to the verdict. It must have
had a substantial effect or influence in
determining the verdict. We recognize, however,
that if our minds are "in virtual equipoise as
to the harmlessness," under the Brecht standard,
of the error, then we must conclude that it was
harmful. O'Neal v. McAninch, --- U.S. ----,
----, 115 S.Ct. 992, 994, 130 L.Ed.2d 947
(1995). Moreover, the Brecht standard does not
require in order for the error to be held
harmful that there be a "reasonable probability"
that absent the error the result would have been
different. Kyles v. Whitley, --- U.S. ----, ----
- ----, 115 S.Ct. 1555, 1566-67, 131 L.Ed.2d 490
In holding Dr. Garcia's
testimony was harmless beyond a reasonable doubt,
the district court properly characterized the
doctor's testimony as "equivocating and weak."
When asked by the prosecutor what was "the best
method" for predicting "what someone will do in
the future," Dr. Garcia responded "we don't have
any methods that's very accurate."
He further stated that "prediction
of the members of the judicial system is almost,
if not more accurate, than the people in the
behavioral sciences." Later in his direct
testimony he stated, in answering a question
concerning determination of "what a person will
do in the future," that "there are many
variables that usually are unforeseen that we
cannot even attempt to predict." While Dr.
Garcia did testify that a person who commits a
very aggressive and violent act and has
previously committed a similar violent act, as
described in the hypothetical, would be "more
likely" to commit further violence, he never
expressly articulated what he meant by "more
However, in light of Dr.
Garcia's testimony as a whole, especially his
testimony that the best predictive methods were
not "very accurate," the most reasonable
inference is that Dr. Garcia was simply saying
that such a person was "more likely" than a
person who had not committed such violent acts
to act violently in the future. But beyond that
common sense comparative observation--equally
within the ken of the juror or the psychiatrist,
as Dr. Garcia's testimony suggested--Dr. Garcia
was unable to say "because I can't predict to
that extent." We agree with the district court
that "[a] dispassionate reading of the trial
transcript reveals Dr. Garcia was of little help
to the prosecution" and "[h]is testimony did not
buttress the state's case."
Dr. Garcia's testimony is to
be contrasted to that challenged in Estelle v.
Smith and in Satterwhite. In the former case,
the Supreme Court, without expressly addressing
the matter of harmless error (which the state
apparently never even raised), noted that Dr.
Grigson had testified
"(a) that Smith 'is a very
severe sociopath'; (b) that 'he will continue
his previous behavior'; (c) that his sociopathic
condition will 'only get worse'; (d) that he has
no 'regard for another human being's property or
for their life, regardless of who it may be';
(e) that '[t]here is no treatment, no medicine
... that in any way at all modifies or changes
this behavior'; (f) that he 'is going to go
ahead and commit other similar or same criminal
acts if given the opportunity to do so'; and (g)
that he 'has no remorse or sorrow for what he
has done.' " Estelle v. Smith, 451 U.S. at
459-60, 101 S.Ct. at 1871.
Satterwhite was a direct
appeal, and the Supreme Court applied the
Chapman harmless "beyond a reasonable doubt"
standard. The Court found "it impossible to say
beyond a reasonable doubt that Dr. Grigson's
expert testimony on the issue of Satterwhite's
future dangerousness did not influence the
sentencing jury." Satterwhite, 486 U.S. at 260,
108 S.Ct. at 1799. The Supreme Court described
Dr. Grigson's testimony there as "powerful and
unequivocal," having given the following summary
"He stated unequivocably that,
in his expert opinion, Satterwhite 'will present
a continuing threat to society by continuing
acts of violence.' He explained that Satterwhite
has 'a lack of conscience' and is 'as severe a
sociopath as you can be.' To illustrate his
point, he testified that on a scale of 1 to 10--where
'ones' are mild sociopaths and 'tens ' are
individuals with complete disregard for human
life--Satterwhite is a 'ten plus.' Dr. Grigson
concluded his testimony on direct examination
with perhaps his most devastating opinion of all:
he told the jury that Satterwhite was beyond the
reach of psychiatric rehabilitation." Id. 486
U.S. at 259, 108 S.Ct. at 1799 (emphasis added).
The contrast to Dr. Garcia's
testimony here could hardly be more complete.
It is also important to note
that the constitutional violations here are the
examination of Woods by Dr. Garcia without
adequate Miranda warnings and without an
opportunity to first consult with counsel,
contrary to the Fifth and Sixth Amendments as
made applicable to the states through the
Fourteenth Amendment. Estelle v. Smith. Yet, as
the district court observed, "[b]asically, Dr.
Garcia did not testify about the content of his
conversation with Petitioner or Petitioner's
behavior during the exam."
We also agree with the
assessment of the state habeas court that "[a]
jury could not reasonably construe Dr. Garcia's
testimony, including the cross-examination, as
being influenced by or derived from the court-ordered
pretrial psychiatric examination of Applicant" (see
note 11, supra ). Moreover, the Texas Court of
Criminal Appeals similarly so concluded. Ex
parte Woods, 745 S.W.2d at 26.
We, of course, recognize that
the prosecutor, by first asking Dr. Garcia
whether he had examined Woods, then asking what
sort of a psychiatric label he had ascribed to
Woods, and finally inserting the "knowing his
mental background as you do" language into his
lengthy hypothetical question just after
describing the objective facts of "that
hypothetical situation," was attempting to have
Dr. Garcia leave the impression with the jury
that his examination of Woods likely caused him
to believe Woods would commit future acts of
Certainly that attempt was
contrary to Estelle v. Smith, because Woods
received neither adequate Miranda warnings nor
the opportunity to consult with counsel
respecting the examination. But, the attempt was
not successful. Dr. Garcia plainly indicated
that his examination addressed only sanity and
competency, and the only testimony he gave as to
his findings on examination was that in his
opinion Woods was competent.
Dr. Garcia refused the
prosecutor's invitation to put a psychiatric
label on Woods or his personality, and he
further indicated on cross-examination that he
made no determination about whether Woods was an
individual who could not change. While the
hypothetical question did include the "knowing
his mental background as you do" language, Dr.
Garcia did not answer the question as asked.
Instead, he stated "[i]n relation to the
hypothetical question you presented, you
described what sounds like a very aggressive act,"
an "aggressive and violent act in association
with a person that has committed similar violent
acts in the past." Dr. Garcia then asked that "the
final part of the question" be repeated.
The prosecutor did so, but
without any reference to "knowing his background
as you do," instead merely asking "[w]ould he be
more likely to commit continued acts of violence
that would constitute a continuing threat to
society?" Dr. Garcia replied, "[m]y answer to
that would be yes." The plain inference is that
Dr. Garcia was speaking simply to what the
original question had labeled "that hypothetical
situation" (before mentioning "knowing his
background as you do"), namely a person who had
been convicted of attempted rape in 1970 and
sent to the penitentiary, and, after release,
committed the instant brutal offense in 1975.
That also is the reasonable reading of Dr.
Garcia's reference to "a person in the
hypothetical" in his answer to the final
question on cross-examination.
Woods points out that Dr.
Garcia responded to the prosecutor's question "is
what someone did in the past the best method" by
stating "[t]he things that have occurred in the
past are associated with the person at the time
of examination." However, Dr. Garcia, whose
testimony reflected he had not examined Woods
concerning future dangerousness, never stated
that he made any such "association" in respect
to Woods. Indeed, he never testified that Woods
would be dangerous in the future. Moreover,
immediately after Dr. Garcia's referenced answer
came the following questions and answers:
"Q. That includes considering
what a person did in the past?
A. That is correct.
Q. Is that what helped you to
come to your answer a minute ago about a
The "that" in the
prosecutor's above-quoted final question is most
reasonably understood as referring to the "what
a person did in the past" language from the
immediately preceding question.
The message of Dr. Garcia's
opinion testimony as to future dangerousness--as
equivocal, uncertain, and confessedly not "very
accurate" as it was--is that it derived from and
related to the acts of violence detailed in the
prosecutor's question (and there referred to as
the "hypothetical situation"), not from Dr.
Garcia's examination of Woods.
Woods relies on White v.
Estelle, 720 F.2d 415 (5th Cir.1983), as
condemning under Smith future dangerousness
opinion testimony in response to hypothetical
questions "thinly veiled and patterning exactly"
the defendant's "prior criminal activity" and "closely
tailored to fit" the defendant "himself." Id. at
417. However, there we observed that "[t]he
questions had been preceded by the testimony of
each of the witnesses that they had examined [the
defendant] White and had concluded that he
possessed an anti-social personality." Id. at
417 (emphasis added). Here, by contrast, Dr.
Garcia, although he stated he had examined
Woods, nevertheless expressly refused to put a
psychiatric label on his personality. Further,
in White, in affirming the district court's
grant of habeas relief, we went on to state:
"Dr. Brown's testimony in
this regard was admittedly based upon his court-ordered
examination of White. Dr. Brown testified that
White had an anti-social 'hedonistic'
personality (tied in by subsequent questioning
of the witness as being a 'sociopath'), a type
of personality in which treatment was both
unresponsive and with poor results ... oriented
more or less toward the moment and considered
little in terms of the future consequences of
his acts, and that a sociopath was characterized
by an absence of remorse or guilt for past
crimes and an inability to profit from past
experience. The questioning was obviously
directed towards White's propensity for future
violence." Id. at 418 (emphasis added).
Again, nothing of the sort is
present in Dr. Garcia's testimony. Finally, in
White we declined to reverse the grant of habeas
relief on the basis of the state's contention
that the admission of the testimony "was
harmless beyond a reasonable doubt," stating "[w]e
cannot conclude that evidence admitted on a
crucial issue in ... a capital case, in
violation of White's constitutional rights,
constituted harmless error beyond a reasonable
doubt. See Holloway v. Arkansas, 435 U.S. 475,
489-90, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426
(1978)." The cited passage of Holloway announces
a rule of automatic reversal.
After we handed down White,
the Supreme Court in Satterwhite expressly
rejected the Holloway automatic reversal rule
for Smith errors, and opted instead for the
Chapman harmless beyond a reasonable doubt
standard. Satterwhite, 486 U.S. at 257, 108 S.Ct.
at 1798. Later, in Brecht, the still more
lenient Kotteakos "had substantial and injurious
effect or influence in determining the jury's
verdict" standard was adopted for habeas cases,
as opposed to direct appeals such as Satterwhite
was. Woods' reliance on White is misplaced.
To show prejudice and that
Dr. Garcia's future dangerousness testimony
would be considered as based on his pre-trial
examination, Woods points to statements in the
prosecutor's closing sentencing argument, namely,"And
talking about this particular defendant, the
pain he probably would cause in the future, as
Dr. Garcia told you, Dr. Garcia testified from
the hypothetical situation, where the facts of
this case were the same, after he had talked to
this defendant he formed an opinion as to what
this defendant would do if he had done that type
He said that it was more
likely than not the defendant would commit
violent acts in the future. That's what Dr.
Garcia testified to. The psychiatrist, he's
talked to the defendant. He's trained in that
area. You don't have to take his word for it.
It's your final decision to make, as it should
be. But that's what he said, that's what he
testified to." (Emphasis added).
And, a few pages later in the
"... we can prove to you
there's a probability he will [commit violent
acts], and that's as close as you can ever get
and Dr. Garcia testified to that, more likely
than not the defendant would commit a violent
act in the future."
However, Dr. Garcia did not
testify that his opinion, that one who committed
an offense like the instant one five years after
being sentenced to the penitentiary for rape
would be "more likely" to commit continuing acts
of violence, was based on his examination of
Woods. The doctor's testimony refused to relate
anything about his examination of Woods
specifically (other than that he had examined
him for competence and found him to be so), and
hence indicated that his said opinion was not
based on his examination. Nor did the prosecutor
expressly assert that Dr. Garcia's referenced
opinion was actually (or likely) based on his
examination of Woods (or that Dr. Garcia had so
testified); he rather sought to inferentially
and indirectly suggest that such was likely the
We recognize that a
prosecutor's argument is properly looked to and
taken into account in evaluating whether certain
testimony was prejudicial. Indeed, in
Satterwhite the Court called attention to the
prosecutor's argument respecting Dr. Grigson's
testimony. Id., at 259, 108 S.Ct. at 1799.
But there is a crucial difference. In
Satterwhite, as we have noted, Dr. Grigson's
testimony was both confessedly based on his
examination of the defendant and "powerful and
The prosecutor there, who
accurately characterized Dr. Grigson's testimony,
was recalling to the jury and bringing into its
focus "the powerful content of his [Dr.
Grigson's] message." Id. Not so here. Here the
prosecutor was trying to make an imitation silk
purse out of the sow's ear which was Dr.
Garcia's testimony. And he tried to exercise
some damage control in that respect. But there
is no reasonable likelihood that he changed the
impact of Dr. Garcia's testimony in the minds of
the jury. We must come back to what that
testimony actually was.
As noted, it was equivocal,
uncertain, and confessedly not "very accurate,"
and it did not purport to be based on
examination of Woods or assessment of his
personality. Without pretense of special insight
beyond that generally possessed by "members of
the judicial system," Dr. Garcia simply made the
common sense observation--obvious to the jury
anyway--that one who, having recently been
released from prison for attempted rape, had
committed such a brutal and savage offense as
shown by the evidence here, was "more likely"--presumably
"more likely" than those not having committed
such offenses--to commit future acts of violence.
The complained of references
to Dr. Garcia's testimony constitute less than a
tenth of the prosecutor's sentencing argument.
The real strength of the prosecution case on
future dangerousness was the nature of the crime
itself--the late night entry into a stranger's
upstairs apartment, the extended and repeated
hands-on, brutally savage beating, mauling, and
sexual abuse of the sixty-three year old, ill
and crippled female victim until, bloody and
smeared with feces, she eventually died with a
fractured skull and hyoid bone fractured on both
sides--coupled with the 1970 conviction and
fifteen-year sentence for attempted aggravated
rape in 1969, from which Woods had doubtless not
long been released from prison when the instant
offense was committed in 1975.
This was the main focus and theme of the
prosecutor's sentencing argument from beginning
to end. Thus, for example, the prosecutor argued:
"I don't see how any
reasonable person listening to this evidence,
seeing this picture, it's not fun to look at.
But it's very necessary, ladies and gentlemen,
for you, in such an important position as you
are in, to know exactly what went on in that
apartment, because this particular defendant was
there doing it and he was hitting that lady with
his fists and he was actually doing the brutal
things that you see in these pictures and I
think you have every right to see them and a
duty to look at them and consider what he would
do in the future. If that doesn't indicate or
prove to you beyond a reasonable doubt that he
would be more likely than not to commit a
violent act in the future, I don't see whatever
could. That's even if he had never done anything
before. What kind of a person does it take to do
that, to absolutely beat someone that much? Can
you imagine how many times he had to hit that
lady or kick or, whatever he did, how many times
he continued to do it and strangled her to make
sure she was dead, over and over again? What I
just can't see anybody saying, 'Well, a person
like that, will do something like that, probably
wouldn't commit a violent act in the future.'
How could you say that? I don't see how you
could, especially faced with the fact what he
had done in the past, just five years ago, and
you can take those penitentiary records back in
the jury room. I think you have already read
them pretty closely, and there is his picture.
It doesn't look like he does today in his suit.
He didn't look like he does today when he took
Mrs. Ehatt's life. Look at that. Is that what he
fashioned himself as? Savage [Woods' shirt had 'savage'
on it]? And is our society supposed to just sit
by and let somebody like that have the
opportunity to pummel someone into oblivion with
a record like he's got, of the similar type
felony committed just five years earlier?"
After the jury had returned
its answer to the punishment special issues and
been polled, the trial judge thanked them for
their service, and went on to state, apparently
"First I want to say that, I
want to commend the attorneys, both the state
and defense. Also, for what it's worth to you, I
agree with your verdict. I was district attorney
for about eight years, and to me, this was one
of the most unconscionable, brutal, vicious
slayings I've ever even known, and in view of
his past record, conduct and viciousness of this
case, I want you to appreciate your service."
We conclude that under the
Brecht standard Dr. Garcia's testimony and the
prosecutor's argument respecting it did not have
a substantial and injurious effect or influence
in determining the jury's verdict.
II. Other Contentions
Woods asserts that
"[t]he operation of the Texas capital sentencing
scheme in this case forced defense counsel to
withhold available mitigating evidence, thereby
depriving Mr. Woods of his right to the
assistance of counsel, and to an individualized
This claim is without merit.
We have consistently held that a Penry v.
Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d
256 (1989), claim may not be predicated on "evidence"
which was not offered or tendered (conditionally
or otherwise) at trial. See, e.g., Briddle v.
Scott, 63 F.3d 364, 377-378 (5th Cir.1995), and
cases cited therein. "We have likewise
consistently rejected the related argument that
the Texas statutory capital sentencing scheme is
invalid as preventing or chilling defense
counsel's development of mitigating evidence."
Id. at 378, citing Lackey v. Scott, 28 F.3d 486,
490 (5th Cir.1994), cert. denied, --- U.S. ----,
115 S.Ct. 743, 130 L.Ed.2d 644 (1995); Crank v.
Collins, 19 F.3d 172, 176 (5th Cir.), cert.
denied, --- U.S. ----, 114 S.Ct. 2699, 129 L.Ed.2d
825 (1994); Black v. Collins, 962 F.2d 394, 407
(5th Cir.), cert. denied,
504 U.S. 992 , 112 S.Ct. 2983, 119 L.Ed.2d
601 (1992); May v. Collins, 948 F.2d 162,
166-68 (5th Cir.1991), cert. denied,
502 U.S. 1046 , 112 S.Ct. 907, 116 L.Ed.2d
Woods next claims
that the Texas punishment special issues
function as aggravating circumstances, but are
unconstitutionally vague for this purpose absent
proper limiting instructions, and hence violate
the rule of Maynard v. Cartwright, 486 U.S. 356,
108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and
Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047,
111 L.Ed.2d 511 (1990). We rejected essentially
the same contention in James v. Collins, 987
F.2d 1116, 1119-20 (5th Cir.), cert. denied, ---
U.S. ----, 114 S.Ct. 30, 125 L.Ed.2d 780 (1993),
and consequently we overrule Woods' claim in
this respect. In Jurek v. Texas, 428 U.S. 262,
268-72, 96 S.Ct. 2950, 2955-57, 49 L.Ed.2d 929
(1976), the Court held that the constitutionally
required narrowing function, performed in many
other jurisdictions at the sentencing phase by
aggravating circumstances, under the Texas
scheme was adequately performed at the guilt/innocence
stage by the narrow categories of murder meeting
the statutory definition of capital murder, the
only offense for which the death sentence could
This analysis was confirmed
in Lowenfield v. Phelps, 484 U.S. 231, 242-47,
108 S.Ct. 546, 554-555, 98 L.Ed.2d 568 (1988).
In such a setting, further narrowing is not
required at the punishment phase. Lowenfield 484
U.S. at 246, 108 S.Ct. at 555. Further, Jurek
held that the Texas punishment phase issues do
not function as aggravating circumstances, id.
at 271, 96 S.Ct. at 2956, but rather adequately
"guide and focus the jury's objective
consideration of the particularized
circumstances of the individual offense and the
individual offender before it can impose a
sentence of death." Id. at 274, 96 S.Ct. at
2957. Jurek expressly rejects the contention
that the second punishment issue is
impermissibly vague. Id. at 275-76, 96 S.Ct. at
We have likewise frequently
rejected challenges to the lack of definition of
diverse terms in the first two punishment
special issues. See Milton v. Procunier, 744
F.2d 1091, 1095-96 (5th Cir.1984) ("deliberately,"
"probability," and "criminal acts of violence" "have
a plain meaning of sufficient content that the
discretion left to the jury" is "no more than
that inherent in the jury system itself"), cert.
471 U.S. 1030 , 105 S.Ct. 2050, 85 L.Ed.2d
323 (1985); Thompson v. Lynaugh, 821 F.2d
1054, 1060 (5th Cir.) ("deliberately" and "reasonable
doubt" need not be defined as their "common
meaning is sufficiently clear to allow the jury
to decide the special issues on punishment"),
483 U.S. 1035 , 108 S.Ct. 5, 97 L.Ed.2d
794 (1987); James at 1120 (not necessary
to define "deliberately," "probability,"
"criminal acts of violence," or "continuing
threat to society"); Nethery v. Collins, 993
F.2d 1154, 1162 (5th Cir.1993) (not necessary to
define "deliberately," "probability," or "society").
See also Pulley v. Harris, 465 U.S. 37, 50 n.
10, 104 S.Ct. 871, 879 n. 10, 79 L.Ed.2d 29
(1984) (Texas punishment issues are not
impermissibly vague as they have "a common sense
core of meaning").
Woods claims he was
denied effective assistance of counsel in that
his counsel did not present evidence of Woods' "history
as an abused child" before he was adopted at
approximately age eight or of his allegedly
being mentally ill. The state habeas court
rejected these contentions. Defense counsel's
affidavits, findings in accordance with which
were made by the state habeas court, reflect
that counsel determined not to focus on Woods'
pre-adoption family life because Woods was
twenty-nine at the time of the offense and his
brother, adopted at the same time and raised in
the same household, had no propensity for
violence or criminal behavior.
Woods was lucid and
communicative in the presence of counsel,
exhibited no indication of mental disorder, and
was capable of communicating with and
understanding counsel. As a precautionary
measure, counsel had him examined by
psychiatrist Dr. Byrd, known to be defense-oriented,
who found Woods competent to stand trial and
sane at the time of the offense. Dr. Byrd
characterized Woods as anti-social and mean and
told counsel "that I did not want him (Dr. Byrd)
The results of Dr. Byrd's
examination were "so devastating" from a defense
standpoint that counsel requested Dr. Byrd not
to prepare a report. "Considering that Dr. Byrd
was more defense-oriented in his evaluations
than most psychiatrists" counsel "thought it
best to refrain from psychiatric testimony in
Mr. Woods' trial."
Similarly, counsel were aware
that Woods "had experienced problems with
alcohol abuse" but, as a matter of trial
strategy, elected not to introduce evidence of
this because of counsel's experience that
voluntary drug and alcohol abuse is not
considered mitigating evidence by jurors. Woods
does not assert that these findings of historic
fact are not entitled to the presumption of
correctness under 28 U.S.C. 2254(d) or that the
district court, which relied on counsel's
affidavits in this respect, erred in not
affording an evidentiary hearing as to these
We conclude that the failure
of defense counsel to further explore
psychiatric or psychological examination or
evidence, or matters concerning Woods' problems
with alcohol abuse or his early childhood, does
not in these circumstances constitute
constitutionally deficient performance under
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). See, e.g., Andrews
v. Collins, 21 F.3d 612, 623-24 (5th Cir.1994).
Moreover, these avenues of exploration are
potential two-edged swords, and the instant case
was tried before Penry. In such circumstances,
counsel is not constitutionally deficient for
failing to anticipate Penry. See May v. Collins,
904 F.2d 228, 234 (5th Cir.1990) (Judges Reavley
and King concurring), cert. denied,
498 U.S. 1055 , 111 S.Ct. 770, 112 L.Ed.2d
789 (1991). Cf. Smith v. Collins, 977
F.2d 951, 960 (5th Cir.1992), cert. denied, ---
U.S. ----, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993) (that
there was not "cause" excusing counsel's
procedural default does not mean that counsel's
performance was constitutionally deficient).
There is a conflict in the
affidavits before the state habeas court
respecting the degree of contact between defense
counsel and Woods' adoptive parents, and whether
the latter indicated the desire not to testify.
The state habeas court credited the affidavits
of defense counsel, finding that the adoptive
parents expressed their unwillingness to testify.
We have held that such findings are entitled to
a presumption of correctness under section
2254(d). See Briddle at 378 n. 27; Carter v.
Collins, 918 F.2d 1198, 1202 (5th Cir.1990) (citing
Woods does not argue that
this finding is not entitled to the section
2254(d) presumption, or that the district court
erred in denying him an evidentiary hearing.
But even if the adoptive parents' affidavits are
accepted as accurate, no showing of prejudice is
made. Their affidavits were essentially that
Woods had generally been a good boy, but started
drinking when his brother went in the army, and
later was admitted to the state hospital for
brief stays on two occasions, once in 1965 and
once in 1966 or 1967, "for help with his
drinking problems." After this, he married and
settled down, but was later divorced. The
affidavits indicate that the adoptive parents
essentially lost contact with Woods after he
moved to Louisiana some time in or before 1969.
However, counsel had made the
strategic decision not to go into Woods'
or to further explore psychiatric evidence after
Dr. Byrd's evaluation, and, as noted, these
decisions were not constitutionally deficient,
and such evidence clearly had the potential to
backfire. As to the balance of what is reflected
in the affidavits of Woods' adoptive parents--indeed,
as to the entirety of what is stated therein--there
is no reasonable probability that had such
information been presented at trial the result
would have been different, and nothing in these
affidavits undermines our confidence in the
Thus the Strickland prejudice
prong is not satisfied. See, e.g., Glass v.
Blackburn, 791 F.2d 1165, 1170-71 (5th Cir.1986)
(no reasonable probability of different result
from putative mitigating testimony of relatives
and friends who would plead for defendant's life
and describe his difficult home life as a youth,
his father's alcoholism, and his sensitive and
decent nature, in light of the nature of murders
and "the mental anguish endured by the victims,
leading up to and during their senseless murders
... [which] was exquisite"). See also Andrews at
624; Callins v. Collins, 998 F.2d 269, 278-79
(5th Cir.1993), cert. denied, --- U.S. ----, 114
S.Ct. 1127, 127 L.Ed.2d 435 (1994); Wilkerson v.
Collins, 950 F.2d 1054, 1065 (5th Cir.1992),
cert. denied, --- U.S. ----, 113 S.Ct. 3035, 125
L.Ed.2d 722 (1993).
Woods' complaints of
ineffective assistance of counsel fail to meet
the Strickland criteria, and are therefore
Woods next contends
that the Texas Court of Criminal Appeals, in
ruling on his ineffective assistance of counsel
claims in his second and subsequent habeas
petitions, denied him equal protection of the
laws by applying the Strickland test rather than
"the less stringent 'totality of the
circumstances' standard" of Ex parte Duffy, 607
S.W.2d 507 (Tex.Crim.App.1980), which that court
applies when reviewing claims that counsel was
ineffective at sentencing in noncapital cases,
citing Ex parte Walker, 777 S.W.2d 427, 431 (Tex.Crim.App.1989).
Even laying to one side the rule that
deficiencies in state habeas proceedings do not
constitute grounds for section 2254 relief as to
the underlying conviction,
Woods' complaint in this
respect lacks merit. Capital defendants are not
any sort of suspect class, and so only rational
basis scrutiny applies. Gray v. Lucas, 677 F.2d
1086, 1104 (5th Cir.1982), cert. denied,
461 U.S. 910 , 103 S.Ct. 1886, 76 L.Ed.2d
815 (1983). As expressly pointed out in
Strickland, there is a rational basis for
concluding that the role of counsel in
noncapital sentencing, which typically is more
informal and involves essentially "standardless
discretion in the sentencer," "may require a
different approach to the definition of
constitutionally effective assistance" than that
appropriate to capital sentencing which "is
sufficiently like a trial in its adversarial
format and in the existence of standards for
decision ... that counsel's role in the
proceeding is comparable to counsel's role at
trial." Strickland 466 U.S. at 686-87, 104 S.Ct.
Claim is also made
that the instruction that the jury could not
answer any punishment special issue "no" unless
at least ten jurors concurred in that answer
violated the rule of Mills v. Maryland, 486 U.S.
367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).
We reject this contention.
As we pointed out in Jacobs
v. Scott, 31 F.3d 1319, 1328-29 (5th Cir.1994),
cert. denied, --- U.S. ----, 115 S.Ct. 711, 130
L.Ed.2d 618 (1995), this claim lacks substantive
merit as the instruction at issue is wholly
dissimilar to that involved in Mills. Further,
Woods' sentence became final in 1981, many years
before Mills was handed down, and accordingly,
as we held in Nethery, 993 F.2d at 1162, and in
Cordova v. Collins, 953 F.2d 167, 172-73 (5th
Cir.1992), it is barred under Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989), as a new rule not dictated by precedent
existing when Woods' conviction became final.
Woods urges that
Texas law unconstitutionally prevented him from
presenting at the sentencing hearing "an expert
prepared to testify that he would be required by
law to serve at least 20 years in prison before
becoming eligible for parole." We note that
although the prosecutor argued future
dangerousness, he did not, contrary to what
Woods seems to contend, ever argue or suggest
that Woods would or might be paroled if not
sentenced to death, much less that he might be
paroled sooner than twenty years.
Woods relies on Simmons v. South Carolina, ---
U.S. ----, 114 S.Ct. 2187, 129 L.Ed.2d 133
(1994), but Simmons--decided long after Woods'
conviction became final--involved a statutory
bar against ever being paroled.
We conclude that to apply
Simmons here would violate the nonretroactivity
principle of Teague. See Allridge v. Scott, 41
F.3d 213, 222 n. 11 (5th Cir.1994), cert. denied,
--- U.S. ----, 115 S.Ct. 1959, 131 L.Ed.2d 851
(1995). Even apart from Teague, we would have to
reject Woods' claim, for the same reasons we
have rejected similar claims that juries must be
informed of Texas parole laws (which at no time
have prevented parole from ever being given).
See Allridge at 220-222; King v. Lynaugh, 850
F.2d 1055, 1060 (5th Cir.1988) (en banc), cert.
488 U.S. 1019 , 109 S.Ct. 820, 102 L.Ed.2d
809 (1989); Andrade v. McCotter, 805 F.2d
1190, 1192 (5th Cir.), stay denied,
479 U.S. 1013 , 107 S.Ct. 660, 93 L.Ed.2d
O'Bryan v. Estelle, 714 F.2d 365, 388-89 (5th
Cir.1983), cert. denied,
465 U.S. 1013 , 104 S.Ct. 1015, 79 L.Ed.2d
245 (1984). Cf. California v. Ramos, 463
U.S. 992, 1009-15, 103 S.Ct. 3446, 3458-60, 77
L.Ed.2d 1171 (1983).
There is little reason to
believe that a jury would conclude that Woods
would not constitute a danger to society (including
that of the prison in which he would be
incarcerated) if he were released in twenty
years but would constitute such a danger if
released in twelve or fourteen years. Cf. King
at 1061. Indeed, as we remarked in King, "a
suggestion to prospective jurors that" the
defendant "might return to [free world] society
in twenty years could very easily have
predisposed them to impose a death sentence." Id.
A state can legitimately conclude that it is
preferable to instruct the jurors, as they were
instructed here (see note 29, supra ), not to
consider such matters. See Ramos. That is
distinct from the Simmons situation where there
can never be parole.
Finally, in any event the
claim is procedurally barred, as ruled by the
state habeas court in Woods' final state habeas.
Woods never offered or tendered any evidence
concerning when he would be eligible for parole,
and never requested any instruction in that
regard, nor in any other manner ever raised the
present issue at trial. There is indeed nothing
to suggest that Woods had any desire at all to
have parole considerations brought to the jury's
For all the record reveals, he might have
objected to any such action. Woods has not shown--or
attempted to show--cause for the failure to
raise this matter at trial. It is procedurally
barred. See McCoy v. Lynaugh, 874 F.2d 954, 958
(5th Cir.), stay denied,
490 U.S. 1086 , 109 S.Ct. 2114, 104 L.Ed.2d
Complaint is next made
that the prosecutor violated Booth v. Maryland,
482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440
(1987), and South Carolina v. Gathers, 490 U.S.
805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), by
introducing the testimony of the victim's sister,
which Woods characterizes as "wholly unnecessary,"
and by references to the sister in the
prosecution's sentencing phase argument. Woods
fails, however, to cite Payne v. Tennessee,
501 U.S. 808 , 111 S.Ct. 2597, 115 L.Ed.2d
720 (1991), which largely overruled Booth
and Gathers. We reject Woods' contention.
To begin with, this claim is
procedurally barred, as the state habeas court
ruled, because no objection was made to the
sister's testimony or to the now complained of
portions of the prosecution's argument. No
"cause" for the failure to object is shown or
Further, we see no
constitutional violation under Payne. The
sister's testimony identified the decedent, as
the state had the burden to do, and established
that she had to use a walker, was weakened by
illness, and was sixty-three and lived alone;
and the sister likewise identified the pill
bottle and bracelet in Woods' possession as the
decedent's, establishing the robbery element of
the capital murder. The prosecutor's two brief,
passing references to the sister's painful
sorrow were not so inflammatory as to render the
sentencing proceeding "fundamentally unfair."
See Payne 501 U.S. at 824-25, 831-33, 835-36,
111 S.Ct. at 2608, 2612, 2614.
There was no argument or
evidence concerning the "opinions of the
victim's family about the crime, the defendant,
and the appropriate sentence." Id. at 833, 111
S.Ct. at 2612. The state may properly determine
that "for the jury to assess meaningfully the
defendant's moral culpability and
blameworthiness, it should have before it at the
sentencing phase evidence of the specific harm
caused by the defendant." Id. at 825, 111 S.Ct.
We reject Woods' contentions
in this respect.
Based on examination in
1988 by a psychologist retained by Woods' habeas
counsel, it is contended that Woods is a person
of borderline mental retardation and is immature
and is therefore not now eligible for execution.
We reject this claim. Woods overstates the
but in any event his claim is foreclosed by
Penry, 492 U.S. at 335-41, 109 S.Ct. at 2956-58.
Woods next contends that
he was incompetent to stand trial due to sleep
deprivation. No evidence supports this
Further, the state habeas court concluded Woods
was competent and there is no contention that
its findings in this respect are not entitled to
the presumption of correctness. We reject this
The remaining and final
complaint raised by Woods on this appeal is that
introduction of eight photographs of the
deceased's body violated Woods' Eighth Amendment
right to a fair trial. We reject this contention.
"In reviewing state
evidentiary rulings, our role is limited to
determining whether a trial judge's error is so
extreme that it constituted denial of
fundamental fairness." Evans v. Thigpen, 809
F.2d 239, 242 (5th Cir.), cert. denied, stay
483 U.S. 1033 , 107 S.Ct. 3278, 97 L.Ed.2d
782 (1987) (quoting Mattheson v. King,
751 F.2d 1432, 1445 (5th Cir.1985), cert.
475 U.S. 1138 , 106 S.Ct. 1798, 90 L.Ed.2d
343 (1986)); Herrera v. Collins, 904 F.2d
944, 949 (5th Cir.), cert. denied,
498 U.S. 925 , 111 S.Ct. 307, 112 L.Ed.2d
Under Texas law, photographs
are admissible regardless of their inflammatory
nature if they are competent, material, and
relevant, and unless they are offered solely to
inflame the minds of the jury. See, e.g., Reimer
v. State, 657 S.W.2d 894, 896 (Tex.App. --Corpus
Christi 1983, no writ). Even inflammatory
photographs introduced primarily to inflame the
jury are nevertheless admissible. Id.
The photographs were
introduced during the testimony of the police
officers who discovered the body and arrested
Woods at the apartment. In addition to
identifying the deceased, the photographs served
to illustrate and make more understandable the
officers' testimony which described the
apartment and its condition, and the location
and condition of the deceased's body and the
nature and extent of the injuries to the
These are certainly
legitimate purposes. Woods does not contend that
any of the photographs were unrepresentative or
misleading respecting either the condition of
the victim or the crime scene. Moreover, he in
essence does not dispute that introduction of
three or "even" four such photographs would have
been permissible, but contends that eight was,
in effect, overkill.
However, as the district
court observed, each of the photographs, with
the sole exception of numbers 3 and 4, shows
injuries and details that the others do not. It
is entirely clear that photographic evidence of
the kind introduced was entirely proper, and
that to the extent more was used than
appropriate this did not go so far as to render
Woods' trial fundamentally unfair.
Woods' appeal fails to
demonstrate any reversible error in the district
court's denial of habeas relief. Accordingly,
the judgment of the district court is
revealed a rather manipulative, caucasian male
in no acute physical distress. He is well
oriented as to time, place, and person. There is
no evidence of a thought disorder, no delusional
thinking and no delusions and/or hallucinations.
Sensorium is clear. He has no difficulty
handling calculations and there is no evidence
of sensorium impairment. It is the opinion that
the subject can appreciate the criminality of
his actions and conform his conduct to the
requirements of the law. In addition, the
subject has sufficient factual and rational
understanding of the proceedings against him,
enabling him to understand and to assist in the
preparation of a defense. There is no
psychiatric disorder for which he needs to
receive psychiatric treatment."
Dr. Nottingham's report
"There does not appear to be
any disease of the mind or degree of mental
defect which would interfere with this
individual's ability to understand and
appreciate the nature and quality of his
behavior and the consequences of his acts. He is
cognizant of the difference between right and
wrong and able to conform his behavior to the
expectations of the law and of society. In
addition, he is felt competent to aid his
attorney in his own defense and is felt,
therefore, by this examiner to be of SOUND MIND."
The report of the
psychologist, Dr. Bloom, reflects that Woods was
interviewed and administered some five tests
which reflected, inter alia, full IQ of 80,
verbal 81, performance 81, "functioning in the
dull normal range of intelligence" and having "the
ability to learn and to reason." There was "no
evidence of organic brain dysfunction." Although
some test responses were described as "suggesting
immaturity and inadequate personality
development" and "insecurity," there "were no
bizarre or otherwise pathognomonic responses
which would indicate the presence of a psychotic
thought disturbance." The report concluded:
"The results of the
examination indicate that Mr. Woods is aware of
the nature of the charges and proceedings
against him, and has the intellectual capacity
to understand these in a rational way. He also
has the capacity to understand the difference
between right and wrong; to understand the
nature, quality, and possible consequences of
criminal behavior; and to conform his behavior
to the expectations of society and the law if he
so chooses. He also has the ability to consult
with his attorney in a rational manner in the
preparation of his defense. For these reasons,
Mr. Woods is considered competent to stand trial."
The reports of Dr. Garcia and
Dr. Nottingham reflect that Woods was born
December 20, 1946, was removed from his family
home at the age of six, and at age eight was,
with one of his brothers, placed with the Woods
family, who adopted him. He left school in the
tenth grade, married at age twenty-two, and
divorced a year later. He was convicted of
attempted aggravated rape in Louisiana and was
released from the Louisiana penitentiary in
A psychologist who examined
Woods in July 1988 at the request of his habeas
counsel submitted a report opining that
"Mr. Woods' behavior in these
offenses [the instant offense and a 1969
attempted rape] was overdetermined and
therefore, should be regarded more as a
manifestation of psychological or emotional
imperatives than as merely an extension of
criminal intent. Viewed in terms of these
considerations, Mr. Woods' conduct is consistent
with known diagnoses of temporary states of
mental illness which, among other things, raises
the rather strong possibility that he was
diagnosably insane at the time of the offense."
This report does not suggest
that Woods was psychotic. Nor does it state that
he did not know his conduct was wrong, which is
(and was) the sole Texas test for insanity.
Tex.Penal Code § 8.01(a) ("as a result of severe
mental disease or defect, did not know that his
conduct was wrong").
Attorney Heacock stated in an
affidavit (filed by the state in response to
Woods' state habeas) that Woods
"admitted having committed
the burglary, but denied killing Mable Ehatt. He
contended that he had met a friend at a near-by
bar and that, together, they walked to Ms.
Ehatt's house and broke in. It was this 'friend,'
according to Billy Joe, who killed Ms. Ehatt.
When pressed for details, however, Billy Joe
could give us none. He did not remember the name
or the location of the bar where he had met his
friend, nor could he give us any information
concerning his friend other than his first name."
"This will be pertaining to
the testimony I believe of a Dr. Garcia, who
would be a psychiatrist for the Harris County
forensic psychiatric unit. The basis for my
objection would be that the examination
performed by Dr. Garcia upon the defendant was
without the consent or permission of the defense
attorneys involved in the case, that the fact
that the doctor examined the defendant and
elicited from him certain information, even
though the Code of Criminal Procedure does not
permit the doctor to testify to the discussions
he had with the defendant, it does allow the
doctor to testify as to the end result of his
examination, to wit, his feeling or opinion of
the defendant's competency; and also to the
proposition of question number two, that is,
that there is a probability that the defendant
will commit further acts of violence and
continue to be a further threat to society. We
feel that this indirectly not only shall be used
against him as an abridgement of the Fifth
Amendment rights, but also will be used for the
jury to decide question number two so that his
life may be taken. For these reasons, we object
to any testimony from Dr. Garcia or forensic
psychiatrists or psychologists based on that
reason, if it please the court."
"MR. HEACOCK: If it please
the court, I have some objections to the
question. One, it's not a hypothetical question.
Second, there has been no predicate laid at this
point for a doctor to answer such a question. I
feel it's a vain attempt by the state to get a
doctor to answer a question that due to medical
probability he cannot answer and I would object
to it very strenuously, if it please the court.
THE COURT: Overruled.
MR. HEACOCK: Note our
"(b) On conclusion of the
presentation of the evidence, the court shall
submit the following issues to the jury:
(1) whether the conduct of
the defendant that caused the death of the
deceased was committed deliberately and with the
reasonable expectation that the death of the
deceased or another would result;
(2) whether there is a
probability that the defendant would commit
criminal acts of violence that would constitute
a continuing threat to society;...."
"A jury could not reasonably
construe Dr. Garcia's testimony, including the
cross-examination, as being influenced by or
derived from the court-ordered pretrial
psychiatric examination of Applicant.
The prosecutor's use of the
phrase 'knowing his [the defendant's] mental
background as you do' (R. 1366, L. 16), although
arguably improper in the context of the
hypothetical question, was harmless in light of
Dr. Garcia's response and subsequent testimony
which showed that his opinion on future
dangerousness was limited to the hypothetical
facts assumed and not derived or influenced by
his pretrial examination of Applicant for sanity
Applicant is procedurally
barred from complaining about the prosecutor's
remarks in closing argument (R. 1382, L. 3-16)
as Applicant lodged no objection to said remarks
and in the context of the entire argument, the
comments: (1) were not so prejudicial that no
instruction could cure the harm; and (2) were
not of such character that the jury would
naturally and necessarily construe Dr. Garcia's
opinion to be derived from his limited
examination of Applicant for sanity and
"[T]he prosecutor asked me a
long hypothetical question relating to the
future dangerousness of Mr. Woods but inserted
in that question a direction to me to consider
Mr. Woods' mental background. I did as the
prosecutor asked and answered that question
based not only on the facts stated to me in the
prosecutor's hypothetical but also Mr. Woods'
background as it was known to me from my
examination. Therefore, my answer to the
question was in part influenced by and derived
from my examination of Mr. Woods in December of
The state moved below to
strike this affidavit on the grounds, inter alia,
that "[n]either the affidavit nor the substance
of its content were presented to the state
courts" and Woods "offers absolutely no reason
why he could not have procured the affidavit or
the testimony of Dr. Garcia at an earlier time,"
had been "inexcusably neglectful in failing to
present this evidence to the state courts," and
"could easily have sought out Dr. Garcia long
before this." Woods replied but offered no
explanation whatever for the failure to earlier
procure the affidavit or present it to the state
courts. Indeed, he has not yet done so, though
the state has complained on this appeal of the
district court's denial of its motion to strike.
The district court denied the motion, saying it
"finds no evidence" that Woods or his counsel "committed
inexcusable neglect." However, the court made no
reference to any facts tending to excuse or
explain the belatedness of the affidavit or the
failure to present it or its content to the
state courts. The district court stated "[t]he
inexcusable neglect standard has been equated to
that of a 'deliberate bypass' standard," giving
a "see also" citation to Townsend v. Sain, 372
U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
However, under Keeney v. Tamayo-Reyes, 504 U.S.
1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992),
handed down after the district court's decision,
the "deliberate bypass" standard has been
rejected for these purposes in favor of the
ordinary "cause and prejudice" standard. We hold
that as a matter of law no "cause" (or anything
even remotely approaching cause) has been shown,
and that the district court erred in not
striking Dr. Garcia's affidavit.
"The District Attorney
highlighted Dr. Grigson's credentials and
conclusions in his closing argument:
'Doctor James Grigson, Dallas
psychiatrist and medical doctor. And he tells
you that on a range from 1 to 10 he's ten plus.
Severe sociopath. Extremely dangerous. A
continuing threat to our society. Can it be
cured? Well, it's not a disease. It's not an
illness. That's his personality. That's John T.
Satterwhite.' " Id.
"The only answer to number
two, is there a probability he will commit
violent acts in the future, and the actual
wording probability the defendant would commit
criminal acts of violence that would constitute
a continuing threat to society, if he would not
be a continuing threat to society, I don't know
who would, ladies and gentlemen. I just don't
see how you could ever have a case more in need
of a yes answer than this.... I don't see how
any case or any defendant's actions could ever
be demonstrated any more graphically than he has
left for you, the defendant, this trail of
felony conviction for attempted rape and this
poor lady that just happened to be home that
morning at three o'clock in the morning. It
could have been anybody I guess, he just
happened to see her through the window or break
in her back door, then turn on the light."
Earlier the prosecutor had
referred to "people who would do a premeditated
act, break into somebody's house and killing the
people inside. What type of thinking does that
take? That's the type of person that's going to
continue to do that type of thing in the future."
Later, the prosecutor urged that Woods had "demonstrated
he's not going to be changed twice now." Earlier,
he had pointed out that Woods "attempted to rape
a woman by force and arms in 1970, got fifteen
years for that and gets out, in 1975 does the
same thing or goes a little farther that time,
to say the least, and actually kills the lady."
Still earlier, the prosecutor noted that the
photographs in evidence "doesn't [sic] even come
close to getting you to understand what she [Ehatt]
felt like when she went through that horrible
death. And how much time it took her to die, we
don't know, but those little photographs I'm
sure don't scratch the surface of what she felt
when she left the earth."
In a footnote on page 75 of
his brief, Woods asserts that his counsel
rendered ineffective assistance on appeal and on
the first of his three state habeases. We reject
this contention as facially deficient. There is
no constitutional entitlement to counsel on
state habeas (nor, for that matter, does Woods
specify any deficiencies or prejudice). See
Coleman v. Thompson,
501 U.S. 722 , 111 S.Ct. 2546, 115 L.Ed.2d
640 (1991). Woods (among other things)
does not specify any argument not made which if
made would probably have (or even which he
contends would probably have) resulted in
reversal on direct appeal; he thus fails to
allege prejudice. There was plainly no total
denial of counsel on appeal.
"During the punishment phase
deliberations, the jury asked if Andrade would
be eligible for parole if he received a life
sentence. Andrade asked the court to instruct
the jury that one convicted of capital murder
would not be eligible for parole until after
serving 20 years. The court declined to answer
the inquiry." Id. at 1190.