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Reginald Winthrop BLANTON

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: April 13, 2000
Date of birth: June 3, 1981
Victim profile: Carlos Garza, 20
Method of murder: Shooting
Location: Bexar County, Texas, USA
Status: Executed by lethal injection in Texas on October 27, 2009
 
 
 
 
 
 

photo gallery

 
 
 
 
 
 
Name TDCJ Number Date of Birth
Blanton, Reginald W. 999395 6/3/1981
Date Received Age (when Received) Education Level
9/5/2001 20 10
Date of Offense Age (at the Offense) County
4/13/2000 18 Bexar
Race Gender Hair Color
Black Male Black
Height Weight Eye Color
6 ft 1 in 201 Brown
Native County Native State Prior Occupation
Alameda California laborer
Prior Prison Record
None
Summary of incident


On 4/13/2000 in San Antonio, Blanton and one co-defendant shot and killed a 20 year old Hispanic male in his apartment.  Blanton took jewelry from the victim which was later pawned for $79.
 

Co-defendants
Robert Blanton (brother)
Race and Gender of Victim
Hispanic male
 
 
 
 
 
 

Summary:

Blanton and his twin brother, Robert, and Robert's girlfriend LaToya Mayberry, went to the apartment of Carlos Garza, 20, an acquaintance of theirs. While Mayberry waited in the car, the twins kicked in the door of Garza's apartment and went inside. Two shots were fired, one of them hitting Garza in the forehead. After taking some jewelry and cash, and looking for drugs to steal, the twins returned to the car, and drove away.

Mayberry later told police about the murder. She said she saw Reginald return to the car with jewelry in his hand, including two necklaces. She said Robert told her Garza confronted them while they were inside the apartment, and Reginald shot him. Garza's jewelry was recovered from a local pawn shop. Reginald Blanton was recorded on videotape about 20 minutes after the shooting, selling two of Garza's gold necklaces and a religious medal for $79. At the time of arrest, he was wearing a ring and bracelet that had also belonged to Garza.

Citations:

Blanton v. State, Not Reported in S.W.3d, 2004 WL 3093219 (Tex.Crim.App. 2004). (Direct Appeal)
Blanton v. Quarterman, 543 F.3d 230 (5th Cir. 2008). (Habeas).

Final/Special Meal:
 

Final Words:

Blanton declared his execution an injustice and proclaimed he was wrongly convicted for the crime. “Carlos was my friend. I didn’t murder him. What is happening right now is an injustice. This doesn’t solve anything. This will not bring back Carlos.” Blanton also complained that the drugs being used to execute him were not even permitted to be used to put down dogs. “I say I am worse than a dog. They want to kill me for this; I am not the man that did this.” Blanton addressed friends in attendance, including fiance Sandra Stafford, telling them he loved them and urging them to continue their fight for his innocence. “Stay strong, continue to fight. I will see y’all again.”

ClarkProsecutor.org

 
 

Texas Department of Criminal Justice

Blanton, Reginald W.
Date of Birth: 6/3/1981
DR#: 999395
Date Received: 9/5/2001
Education: 10 years
Occupation: Laborer
Date of Offense: 4/13/2000
County of Offense: Bexar
Native County: Alameda County California
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 6' 01"
Weight: 201

Summary of incident: On 4/13/2000 in San Antonio, Blanton and one co-defendant shot and killed a 20 year old Hispanic male in his apartment. Blanton took jewelry from the victim which was later pawned for $79.

Co-defendants: Robert Blanton (brother)

Prior Prison Record: None.

 
 

Texas Attorney General

Tuesday, October 20, 2009

Media Advisory: Reginald Blanton scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information on Reginald Blanton, who is scheduled to be executed after 6 p.m. on October 27, 2009. In 2001, Blanton was sentenced to death after being convicted of the capital murder of Carlos Garza during a burglary at the victim's apartment in San Antonio.

FACTS OF THE CRIME

On April 9, 2000, Carlos Garza was found lying unconscious in his apartment.from a bullet wound to his forehead. He died on the way to the hospital. Garza’s door appeared to have been kicked open.

Two days later, following her arrest after an altercation with her boyfriend, Robert Blanton, LaToya Mayberry told the police that she had information about a murder that had occurred a few days before in an apartment complex and that Robert and his twin brother, Reginald Blanton, were involved in the homicide. Mayberry stated that she, Robert, and Reginald went to Garza’s apartment, where she waited in the car. Mayberry said she heard “two loud booms,” which she indicated she knew had to be the two brothers kicking in the door to Garza’s apartment. She then heard “two more booms,” which she said she knew to be gunshots because she had heard gunshots before. She said Robert and Reginald then returned to the car, and they drove away. Reginald had some jewelry in his hand, including two necklaces, which he later pawned for $79.

Mayberry later asked Robert what had happened. Robert told her that the door was kicked in, Garza came around the corner and asked what they were doing, and Reginald shot him. Reginald looked around the apartment for drugs, but found none. He shot Garza again. Reginald said he took one hundred dollars from the apartment.

San Antonio police recovered the pawned jewelry that belonged to Garza, and a video camera recorded Reginald as the person who pawned them.

PROCEDURAL HISTORY

August 24, 2001 -- Reginald Blanton was convicted of capital murder.
June 30, 2004 -- Blanton’s conviction was affirmed by the Texas Court of Criminal Appeals.
June 22, 2005 -- Blanton’s state habeas corpus application was denied by the Texas Court of Criminal Appeals.
June 19, 2006 Blanton filed a petition for writ of habeas corpus.
June 1, 2007 -- Habeas corpus relief was denied.
June 11, 2007 -- Blanton filed a notice of appeal in the United States Court of Appeals for the Fifth Circuit.
September 19, 2008 -- Relief was denied by the Court of Appeals.
February 9, 2009 -- Petition for writ of certiorari was filed with the U.S. Supreme Court.
May 18, 2009 -- Petition denied.
October 8, 2009 -- Blanton filed a petition for clemency

PRIOR CRIMINAL HISTORY

Blanton was arrested for shoplifting and given a warning for criminal trespass in April 1996. He was convicted of burglary in July 1996, evading detention in May 1996, unlawfully carrying a weapon in December 1997, auto theft in March 1998, and possession of marijuana in April 1998. When he was arrested on April 13, 2000, on a capital murder charge, he was found with four baggies of marijuana and a shotgun. While awaiting trial, he assaulted another inmate in May 2001 in the adult detention center for allegedly testifying in another inmate’s capital trial.

 
 

Man convicted in 2000 San Antonio shooting executed

By Mary Rainwater - Huntsville Item Online

October 27, 2009

Proclaiming innocence to the very end, condemned murderer Reginald Blanton was executed Tuesday for the 2000 robbery-slaying of a 22-year-old Hispanic man in San Antonio. Blanton, 28, was pronounced dead by lethal injection at 6:21 p.m., just eight minutes after the dosage began at 6:13 p.m.

On April 13, 2000, Blanton and one co-defendant shot and killed Carlos Garza in his apartment. Blanton took jewelry from the victim, which was later pawned for $79.

In his final statement, Blanton declared his execution an injustice and proclaimed he was wrongly convicted for the crime. “Carlos was my friend. I didn’t murder him,” he said. “What is happening right now is an injustice. This doesn’t solve anything. This will not bring back Carlos.” Blanton also complained that the drugs being used to execute him were not even permitted to be used to put down dogs. “I say I am worse than a dog,” he said. “They want to kill me for this; I am not the man that did this.” Blanton addressed friends in attendance, including fiance Sandra Stafford, telling them he loved them and urging them to continue their fight for his innocence. “Stay strong, continue to fight. I will see y’all again.”

Blanton had always maintained his innocence but a security video submitted at his capital murder trial showed him pawning two gold necklaces and a religious medal belonging to Garza about 20 minutes after the shooting. When he was arrested four days later, he was wearing more of Garza’s jewelry.

His punishment was carried out less than two hours after the U.S. Supreme Court rejected last-day appeals from Blanton.

Blanton’s twin brother, Robert Blanton, told police his brother broke into Garza’s apartment, believing no one was home, and shot Garza when he appeared. Prosecutors said Reginald Blanton, who was 18 at the time and knew Garza, took some jewelry and left, then returned 20 minutes later to go through Garza’s place. He took about $100 in cash. The necklaces got him $79 at a pawn shop. A neighbor called police after seeing the broken door and spotting Garza lying on the floor. Garza died later at a hospital.

Robert Blanton wasn’t charged in the case because authorities couldn’t show he was involved in the break-in or shooting, but he’s now in prison, serving a two-year term for an unrelated drug conviction.

Several of Garza’s relatives attended the execution, including his mother Irene Garza, wife Yvonne Garza and sisters, Sulema Balverde and Irene Escobar. “I miss my son dearly and have waited for this day to finally get here,” Irene Garza said in a released statement. “This will be closure for me.” Yvonne Garza called Blanton’s execution one that provided both justice and closure for herself and the couple’s son. “I know it won’t bring him back,” she said. “We can finally move on with our lives.”

Blanton became the 19th inmate executed in Texas this year. At least six more lethal injections are scheduled before the end of the year, including Khristian Oliver, 32, set to die next week for the beating death of a Nacogdoches County man during a burglary in 1998.

 
 

28-year-old convicted in 2000 shooting executed

By Michael Graczyk - Associated Press

The Houston Chronicle

Oct. 27, 2009

HUNTSVILLE, Texas — A man convicted of murder in a San Antonio robbery more than nine years ago was executed Tuesday evening after proclaiming his innocence. Reginald Blanton, 28, received lethal injection for the April 2000 shooting death of Carlos Garza at the 22-year-old man's apartment.

In a brief statement after he was strapped to the Texas death chamber gurney, Blanton insisted his execution was an injustice and he was wrongly convicted. "Carlos was my friend," he said, looking at Garza's mother, wife and three sisters, who watched through a window a few feet from him. "I didn't murder him. What's happening right now is an injustice. This doesn't solve anything. This will not bring back Carlos." Blanton also complained the lethal drugs that would be used on him weren't allowed to put down dogs. "I say I am worse off than a dog," he said. "They want to kill me for all this. I am not the man that did this." Then he told friends he loved them and to continue to fight. "I will see y'all again," he said.

He was pronounced dead at 6:21 p.m., eight minutes after the lethal drugs began flowing.

"Today is the day we have all been waiting for," said one of Garza's sisters, Sulema Balverde. "My brother Carlos Garza can finally rest in peace." The women held hands or wrapped their arms around each other while Blanton spoke. Some wiped away tears. "I miss my son dearly and have waited for this day to finally get here," said Irene Garza, the victim's mother.

The punishment was carried out less than two hours after the U.S. Supreme Court rejected Blanton's last-day appeals. He had always maintained his innocence but a security video submitted at his capital murder trial showed him pawning two gold necklaces and a religious medal belonging to Garza about 20 minutes after the shooting. When he was arrested four days later, he was wearing more of Garza's jewelry.

Blanton's twin brother, Robert Blanton, told police his brother broke into Garza's apartment, believing no one was home, and shot Garza when he appeared. Prosecutors said Reginald Blanton, who was 18 at the time, took some jewelry and left, then returned 20 minutes later to go through Garza's place. He took about $100 in cash. The necklaces got him $79 at a pawn shop.

A neighbor called police after seeing the broken door and spotting Garza lying on the floor. Garza died later at a hospital.

Robert Blanton's girlfriend tipped police about the shooting. Robert Blanton implicated his brother during questioning. Reginald Blanton argued his brother's statement was coerced by police. Robert Blanton wasn't charged in the case because authorities couldn't show he was involved in the break-in or shooting, but he's now in prison, serving a two-year term for an unrelated drug conviction at the Huntsville Unit, the prison where the execution was carried out.

Reginald Blanton's trial attorneys told a Bexar County jury he shouldn't be sentenced to die, saying he had a horrible childhood with little supervision and he could have been harmed as a fetus because his mother was pushed down the stairs.

Witnesses testified Blanton smoked marijuana at age 11, spent time at a juvenile boot camp and joined gangs in San Antonio to seek protection his family didn't provide. He had previous arrests for shoplifting, weapons possession, auto theft and marijuana possession. When he was arrested on the capital murder charge, he had four bags of marijuana and a shotgun. He was accused of assaulting an inmate while awaiting trial.

On death row, prison records show Blanton had several disciplinary infractions, including possession of a sharpened steel shank. He also was among death row inmates caught last year with illegal cell phones.

Blanton became the 19th inmate to be executed in Texas this year. At least six more lethal injections are scheduled before the end of the year, including Khristian Oliver, 32, set to die next week for the beating death of a Nacogdoches County man during a burglary in 1998.

 
 

Condemned San Antonio murderer put to death

By Michelle Mondo - MySanAntonio.com

October 27, 2009

Reginald Blanton, in his final words, thanked his supporters, told his victim's family that he understood their pain and decried the drugs used to put him to death. Blanton was condemned to die for the robbery and shooting death of his acquaintance Carlos Garza, 22. "Believe me, I shed plenty of tears behind Carlos," he said, looking towards five of Garza's relatives, including the victim's mother. "Carlos was my friend."

Irene Garza cried the moment she looked at Blanton strapped to the gurney in the death chamber at the Huntsville Unit. Garza was flanked by her three daughters and her son's former wife. Blanton was pronounced dead at 6:21 p.m., eight minutes after the lethal dose of drugs began flowing into his body.

On death row since 2001, Blanton was the 19th prisoner to be executed this year in Texas, the nation's busiest death penalty state. He was the third from Bexar County. The family of Garza said in an interview about a week prior to the execution that they hoped it would bring them closure.

His attorneys filed two last-minute appeals to the Texas Court of Criminal Appeals and the U.S. Supreme Court and Blanton also requested a commutation of his sentence. All were denied.

A jury of eight women and four men took 12 hours to convict Blanton of Garza's April 2000 slaying, and a day and a half to render a death sentence. According to testimony at his trial, Blanton drove to Garza's West Side apartment, looking for something to steal. Prosecutors said Blanton kicked in the victim's door and shot Garza twice in the head when he refused to hand over his jewelry.

Within 20 minutes of the killing, prosecutors told the jury, Blanton was videotaped at a local pawnshop hawking two gold necklaces that belonged to Garza. And when he was arrested, Blanton was wearing items — a lion's head ring and a bracelet — that had belonged to Garza.

His twin brother, Robert Blanton, and Latoya Mayberry, then Robert Blanton's girlfriend, told police that Reginald Blanton was responsible for the killing and they described to detectives how he had sold the jewelry. Blanton claimed those two statements were coerced, but trial transcripts show the detectives and prosecutors refuted that claim.

Following Blanton, six more men have execution dates in 2009.

 
 

Reginald Winthrop Blanton

Txexecutiosn.org

Reginald Winthrop Blanton, 28, was executed by lethal injection on 27 October 2009 in Huntsville, Texas for robbing and murdering a man in his apartment.

On 13 April 2000 in San Antonio, Blanton, then 18, his twin brother, Robert, and Robert's girlfriend, LaToya Mayberry, went to the apartment of Carlos Garza, 20, an acquaintance of theirs. While Mayberry waited in the car, the twins kicked in the door of Garza's apartment and went inside. Two shots were fired, one of them hitting Garza in the forehead. After taking some jewelry and cash, and looking for drugs to steal, the twins returned to the car, and the party drove away. Garza was unconscious when emergency workers arrived, but died on the way to the hospital.

Two days later, Mayberry was arrested following an altercation with Robert. She then told the police about the murder. She said when she was sitting in the car, she heard "two booms" from the door being kicked in, then "two more booms" from the gunshots. She said she saw Reginald return to the car with jewelry in his hand, including two necklaces. She said Robert told her Garza confronted them while they were inside the apartment, and Reginald shot him. According to Mayberry, Reginald also stole $100 in cash.

San Antonio police recovered Garza's jewelry from a local pawn shop. Reginald Blanton was recorded on videotape about 20 minutes after the shooting, selling two of Garza's gold necklaces and a religious medal for $79. At the time of arrest, he was wearing a ring and bracelet that had also belonged to Garza.

As a juvenile, Blanton had convictions for burglary, auto theft, and unlawfully carrying a weapon, as well as for lesser charges including shoplifting, possession of marijuana, and trespassing. In May 2001, while awaiting trial for capital murder, he assaulted an inmate for testifying in another inmate's capital murder trial.

A jury convicted Blanton of capital murder in August 2001 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 2004. All of his subsequent appeals in state and federal court were denied.

Robert Blanton was not charged in Garza's murder, but he has subsequently been convicted of possessing drugs, evading arrest, failing to report to his parole officer, and assaulting his wife, causing bodily injury. He is currently in prison, serving a 2-year sentence for possession of a controlled substance.

Reginald Blanton always maintained his innocence. In an interview with an anti-death-penalty activist, Blanton said that he, his brother, and Mayberry did visit Garza's apartment on the day of his death, but not finding him home, they left. "On the way to our respective homes," Blanton said, "I asked my brother to stop by the pawn shop so I could pawn some jewelry. It was a last minute decision on my part. What makes this difficult to talk about is the fact that the jewelry had previously belonged to Carlos ... While we were on the east side, the particular side of town we were leaving from before we stopped by the pawn shop, somebody was kicking in Carlos's door, killing him."

Blanton said that he and the victim both wore a lot of jewelry and frequently traded it to each other when rolling dice. He said some photographs taken 2½ months before the murder, showing him wearing the same jewelry he pawned, were admitted into evidence at his trial, but that evidence was overlooked. "And though I have done some stupid things in my ignorant years," he continued, "never would I pawn something I stole. That is beyond comprehension."

Blanton said that LaToya Mayberry was coerced by homicide detectives into signing a statement naming him as the murderer so that the assault charge against her would be dropped. Next, they used Mayberry, who was pregnant with Robert's child, as leverage against Robert to force him into also signing a statement.

"Carlos was my friend. I didn't murder him," Blanton said in his last statement at his execution. "What is happening right now is an injustice. This doesn't solve anything. This will not bring back Carlos ... I am not the man that did this." Blanton also complained about the drugs being used to execute him, pointing out that they were not permitted for use to put down dogs. Finally, he expressed love to his fiancee, Sandra Stafford, who watched from a viewing room, and to his friends who also attended. "Stay strong, continue to fight. I will see y'all again." The lethal injection was then started. He was pronounced dead at 6:21 p.m.

 
 

Reginald Blanton's Statement About His Execution Date

TexasDeathPenalty.blogspot.com

Wednesday, July 29, 2009

Death Salivates
October 27th 2009 Execution Date

2pm. 7-16-09. I just woke up. I had slept for exactly 8 hours. I am a night owl. Yet, I was not rejuvenated. I did not feel balanced. I told myself that something was happening in the Universe. In the distant dark galaxy of my being I felt something approaching. I’d had an earlier hunch but dispelled it with my exhale. I grabbed all my senses; all of my energy and brought them inside, concentrating it. Concentrating on soothing the waters of what I thought was a turbulent mind-body. Here I was, doing the same thing today. An hour went by. I was frustrated because my meditation yielded very little. I decided to conclude my meditation with the Tripod Pose, a Hatha Yoga posture where I ease into a headstand, feet in the sky, while focusing on my breathing. This pose is designed to calm your mind-body. I felt it might do the trick. It has always worked in the past.

I heard the gate pop. Then there were jangling keys as somebody made their way upstairs to

2 row where I was encaged. I brought my attention back, like, “Get back over here!” Like that. Then my sense went back outside. “Blanton! What are you doing? The Major wants to talk to you,” said the Sergeant. I eased out of my posture and into another called Child Pose before getting up and telling the Sergeant I had been meditating and needed some time to brush my teeth. I brought my attention fully back and noticed that I was nervous. I knew what it was. Damn! I knew what it was…

I gave the Sergeant my jumpsuit, sort of spun while shaking out my boxers to try to keep from having to degrade myself by stripping completely naked and having to turn around and spread my…well, you know. The Sergeant wasn’t tripping today. He told me to just come on. I didn’t like that. He was being a (little) nice. That was not a good sign. Not good at all…

Damn!

We get out in the hallway and he asked me if I knew what this was about. But it was the way he said it. He said it like he knew what it was about. Damn. I told him I did. I saw the nurse and asked him if he had my morphine shot. Ha, ha, um, ha, *ahem*. That did not make me feel any better. I tried though. I just decided to stay quiet the rest of the way.

We get in the Major’s office. I sit down and cross my legs, looking him square in the eye, all sorts of emotions flowing through me: Anger, embarrassment, sadness…”What’s up, Major?” I asked. In a slow and somber tone he told me that I had an execution date and he was going to explain a few things to me and have me moved to Death Watch. He said that he’d just found out himself. All I could see in my mind was my Queen. All I could feel is what she would feel. I thought I was going to be sick. I tried to hide it. I knew what time it was. I knew this was coming. And after the march we just had outside of the courthouse in San Antonio, I knew that the D.A.’s weren’t going to hesitate to immediately set a murder date for me. This wasn’t supposed to be happening. It just wasn’t. Maybe I was naive. Me, the “realist”, naïve. The courts were going to see the injustice and refuse to let me be railroaded. Yet they railroaded me. It was like the many stories I’ve read about battered women. She’s getting beat by her husband. She knows that he’s going to keep on beating her. He’s vicious. She knows he’s going to stop. He’s a good man.

Everything was suddenly happening so fast. Everything was surreal. Yet I had been preparing for this for 9 years.

No! You cannot prepare for something like this. You just can’t. 28 years young. Just the other day that one officer cried when she found out how young I was; how much I remind her of her own kids. I hate too much life where the said only dwelt death. I have too much life pouring out of me to prepare to die. Die? Die for what?! Ya’ll are trying to kill, wrongly, a loving, beautiful man. Not a killer. Not a monster. A man with a family. A beautiful, loving wife. A beautiful, loving step-son. My Mama. My people. My people need me. You are trying to steal me away from the people who need me.

The Major tells me about the number of witnesses I can have; talks about a last will. A last will, ya’ll! A “last will”?! What about my will to live?!

The Major talks…I drift in and out of even being there at all. He talks about disposition of any trust funds, disposition of personal property. He talks of my last meal; how they won’t get me any lobster or shrimp, or T-bone steak. He was trying to make light of the situation. But there was nothing “light” about it – at all. It was heavy; heavy like my consciousness. “Lobster ?!” I don’t give a damn about a last meal!

 
 

Reginald W. Blanton

ProDeathPenalty.com

Reginald W. Blanton was sentenced to death for the murder of Carlos Garza. Blanton broke into Garza’s San Antonio apartment, shot him twice in the head, and stole several pieces of jewelry and one hundred dollars. The evidence at trial showed that Garza was murdered at his residence in the Stepping Stone Apartments in San Antonio, Texas, on April 9, 2000.

Patricia Romano, who lived across the hall from Garza, testified that she heard a loud banging noise about three or four weeks prior to the murder. She went outside on her balcony and saw Blanton banging on Garza's door. When she told Blanton that Garza was obviously not coming to the door, Blanton angrily replied, "Shut up, bitch, get back in your house." On the day that Garza was killed, Romano returned to the apartment complex after running an errand with her daughter and saw Garza sitting with a young Hispanic girl at a picnic table near the pool. She went inside her apartment and when she came back outside about an hour later, Garza and the girl were gone.

Romano was picking up trash near the laundry room when a Hispanic man named Ralph Vidal and an African-American man named Joseph Anderson approached her. Vidal asked her if she had seen Garza and she replied that she had seen him earlier. Vidal told her that, when they returned from the store, they noticed that Garza's door was open and that frame was splintered. He thought someone might have broken into Garza's apartment, and he asked Romano to call the police. Romano went upstairs to take a closer look at the door. She saw that the lock was engaged and the door frame was splintered as though it had been kicked open. The stereo blared, and all of the cushions had been pulled off the couch in the living room as if someone had ransacked the apartment. She went to her apartment and called the apartment manager, who told her to call the police.

The apartment manager arrived about fifteen minutes later and went into the entryway of Garza's apartment with Romano's husband. From there, they saw a body lying on the floor. Romano's husband believed that it was Garza, and he saw that part of his leg was still moving. Ernest Borroel, Jr., lived in the apartment beneath Garza's apartment. At around 5:00 or 5:30 p.m. on the day of the murder Borroel heard a noise as if something had fallen or had been tipped over upstairs in Garza's apartment.

When San Antonio Police Department (SAPD) Officer Richard Odoms arrived at Garza's apartment, he saw that the door jamb was destroyed, the door frame was lying on the floor, the dead bolt was sticking out, and there was a footprint on the door as if someone had kicked it in. Odoms saw Garza lying unconscious in the hallway with what looked like a bullet wound to his forehead. Odoms heard Garza make a "gurgling type sound," like "somebody snoring." He saw two spent bullet casings on the floor: one by Garza's feet and another by his head. Garza's stereo was blaring and a pager kept going off. Paramedic Michael Rodriguez arrived at Garza's apartment at about 6:30 p.m. He saw that Garza was bleeding from two gunshot wounds to his face. He noticed that Garza was still breathing and had a pulse. Garza's breathing was irregular, and he made a "gurgling" sound. His pulse stopped on the way to the hospital.

Bexar County Chief Medical Examiner Robert Bux testified that Garza suffered two gunshot wounds to his head, one to the left front scalp area and one to his cheek. The gunshot wound to his scalp was fatal.

Two days later, SAPD Officer Ricky Lopez and his partner were dispatched to Blanton's father's home on a disturbance call. Blanton's twin brother, Robert Blanton, and Blanton's girlfriend, LaToya Mayberry, were arguing outside. Mayberry initially gave Lopez a false name, but her brother told the officer her real name. Lopez discovered that Mayberry had active municipal court warrants. Lopez's partner placed Mayberry under arrest. Lopez's partner then placed Mayberry in handcuffs and put her into the patrol car. While Mayberry sat in the patrol car, she told Lopez that she had information about a murder that had occurred a few days before at the Stepping Stone Apartments. She also told Detective Rocky Dyer that Reginald Blanton and his brother Robert were involved in the homicide, that she heard Blanton brag about it, and that they went back to the scene shortly after the shooting.

Mayberry was transported to the police station for formal questioning. Detective Raymond Roberts interviewed Mayberry and took her statement. Roberts testified that he told Mayberry that she did not have to talk about the murder. She said she wanted to tell him what happened because it was upsetting her. He explained Mayberry's rights to her before the interview began, and she indicated that she understood her rights. He never threatened her or told her that she would be arrested for capital murder if she did not give a statement. In her statement, Mayberry said that Robert drove Blanton in her grandmother's car to the Stepping Stone Apartments, where Garza lived. She went along with the brothers. They went to the third floor and knocked on the door of Garza's apartment. No one answered the door, and Robert told Mayberry to go back downstairs and wait in the car. She heard Robert tell Blanton, "Let's go," and when she heard Blanton say, "No cuz, don't go," she knew that "something was going to go down." She believed that Robert stayed with Blanton because he was scared of him.

While Mayberry was sitting in the car, she heard "two loud booms," and she "knew that it had to be them kicking in the door to Garza's apartment." She heard "two more booms." She said that she knew right away that they were gunshots because she had heard gunshots before. She then saw Robert running toward the car, and his eyes "were real big like he was scared." He was "breathing real fast and hard" and got into the car and started the engine. He did not answer her when she asked him what happened. Blanton jumped in the car as Robert was driving away. In his hands, Blanton had a small blue box and some jewelry, including a gold herringbone necklace and a broken gold rope necklace. Blanton was also wearing a gold lion's-head ring with two ruby eyes and a diamond in its mouth that Mayberry had not seen before.

As they were leaving, Blanton took a silver gun out of his pocket and told Mayberry that it was a ".380." He also said, "F*ck, I left a bullet in the house," and told Robert he wanted to go back to the apartment so he could get his "dope." Robert refused to drive back. Instead, Robert drove them to a friend's apartment where they stayed for about twenty minutes. Robert then drove them back to the Stepping Stone Apartments. Robert and Mayberry waited in the car while Blanton went inside. When Blanton came back he was laughing and said, "That mother f*cker's in there snoring, I thought I was going to have to do that mother f*cker again." Blanton also said he "turned everything over in the apartment" and took one hundred dollars. Blanton then made Robert drive to a pawn shop. On the way there, Blanton asked Mayberry if she thought the rubies in the lion's-head ring were real. They arrived at the pawn shop at about 5:50 p.m. Blanton pawned the two necklaces and a "Jesus charm." After they left the pawn shop, Robert drove them to Adkins, Texas. While they were riding in the car, Blanton was laughing and bragging about shooting Garza. He said, "I peeled that mother f*cker's head back, you see how he just dropped in the corner." He said that he kicked in the door and that it looked like Garza had just gotten out of the shower. When Garza asked Blanton what was going on, he told Garza to "brake himself," which means "It's a robbery, give me all your shi+." When Garza said, "No," Blanton shot him. When Garza fell down, Blanton shot him again in the head.

Robert drove Blanton back to his girlfriend's apartment at about 8:00 or 8:30 p.m. Mayberry and Robert went to get something to eat and then returned home about 9:30 p.m. They heard about a burglary and murder that night on the news. Mayberry asked Rpbert what had happened. Robert told her that the door was kicked in, Garza came around the corner and asked what they were doing, and Blanton shot him. He said that Blanton looked around the apartment for drugs, but could not find any. Then he shot Garza again. Robert said that "[Garza] was just laying there snoring." After Roberts typed Mayberry's statement, he gave her an opportunity to read it and make corrections. She indicated that she was satisfied with her statement and signed it in front of two witnesses.

After Mayberry signed her statement, she and Roberts called Robert Blanton. Roberts asked him to come down to the station to talk to them and that he was not under arrest. Robert was reluctant to speak with Roberts at first. After viewing Garza's autopsy photographs and talking to Mayberry alone for a few minutes, however, Robert Blanton gave a statement. In his statement, Robert said that he drove Blanton and Mayberry to Garza's apartment complex. They knocked on the door, and when no one answered, he and Mayberry started to leave. Blanton told him to stay. Mayberry went back to the car. He sat down on the steps while Blanton continued to knock on the door. Then he heard a loud noise "like somebody hit something pretty hard." He followed Blanton into the apartment and heard Blanton and Garza arguing in the back room. He heard a gunshot and ran out of the apartment. As he was running down the stairs, he heard another gunshot. He got into the car with Mayberry, then Blanton came walking out of the complex and got into the car. Robert asked Blanton what happened, and he replied, "Don't worry about it."

From there, Robert drove to Blanton's apartment, and they stayed there for about five minutes. Robert then drove them to the apartment complex next door to the Stepping Stone Apartments and parked the car. Blanton walked back to the Stepping Stone Apartments and returned to the car about five minutes later. Robert drove them to a pawn shop, where Robert and Mayberry stayed in the car while Blanton went inside. When he got back into the car, Blanton said that he had pawned his jewelry. Robert drove Blanton back to his apartment, and then Robert and Mayberry returned home. Robert found out from the Sunday night news that Garza was dead. He never saw Blanton with a gun, and he did not know what he did with the gun. After he completed his statement, Roberts gave Robert an opportunity to review it. Robert reviewed the statement and signed it.

By the time Reginald Blanton's trial began, Mayberry had married Robert Blanton. During the trial, Mayberry testified that the statement that she made to the police was not true. She denied that she approached police with information about a capital murder. She testified that she gave her statement because the police accused her of being in the apartment, stated that they had witnesses implicating her and Robert, and told her that she would be charged with capital murder if she did not give a statement. When asked about the first two "loud booms" she said she heard while waiting in the car, she denied knowing that it was Robert and Blanton kicking in the door to Garza's apartment. She testified that children were outside playing with rocks and sticks, and she said that all the noises sounded the same. When asked about the second set of "booms" that she heard, she testified that she did not know if they were gunshots because she had heard gunshots before only on television. She denied telling police that Robert stayed upstairs with Blanton because he was scared of him. She denied saying that Robert's eyes were big and that he appeared to be afraid when he returned to the car.

On the first day of her trial testimony, Mayberry stated that when they left the apartment complex she saw that Blanton had something "shiny" that looked like a gun, and that she asked him what it was and he told her it was either a ".380" or a ".38." On the second day of her trial testimony, she stated that she never saw Blanton with a gun and that she lied the day before when she testified that she had. Mayberry also denied telling police that Blanton said that he "left a bullet in the house." She denied that Blanton wanted to go back to Garza's apartment to get some "dope," that Blanton said he "turned everything over in the apartment" and took one hundred dollars, and that Blanton stated, "I thought I was going to have to do that mother f*cker again." She denied that Blanton was laughing and bragging about shooting Garza and that he said, "I peeled that mother f*cker's head back." Mayberry clarified at trial that Blanton had been wearing a gold religious pendant in addition to the lion's-head ring, a gold herringbone necklace, and a gold "broke rope" necklace. She said that Blanton often carried a blue box in which he kept his pencils. She also testified at trial that when they left the Stepping Stone Apartments the first time, she noticed a black male and a Hispanic male walking down the street towards the grocery store. When they later returned to the Stepping Stone, she noticed the same two men walking back from the store.

Robert denied certain portions of his statement when he testified during Blanton's trial. He confirmed that they went to Garza's apartment and to the pawn shop, but he said, "The part that's not correct is when they interject things about [Garza's] death." He testified that he told Mayberry to go back to the car because it was hot outside and she "had a little attitude," and said that he and Blanton came down to the car at the same time about a minute later. He denied seeing Blanton enter the apartment and hearing gunshots. He confirmed that Blanton later returned to Garza's apartment and came back to the car about five minutes later, but testified that Blanton told them when he returned to the car that Garza was still not home. He denied telling police that he found out that Garza was dead when he watched the Sunday night news. He testified that the only reason he signed the statement was so that the police would let him and Mayberry go home. Robert also testified that he never saw a blue box in Blanton's hands. He had seen Blanton wearing a gold lion's-head ring prior to the day of the murder. He did not see the jewelry that Blanton intended to pawn until they arrived at the pawn shop. He thought that Blanton must have had the jewelry in his pocket. Garza's girlfriend Debra Estrada testified that she was with him at the apartment complex on the day of the murder. Estrada saw Garza wearing a gold chain with a religious pendant, a couple of rings including a lion ring with ruby eyes, and a gold nugget bracelet. She identified these items as the same items that the police had obtained from the pawn shop where Blanton pawned jewelry after the killing. Estrada testified that, on the afternoon of the murder, she and Garza had been sitting outside at a picnic table waiting for her friends to pick her up when an African-American man later identified as Anderson and a Hispanic man later identified as Vidal came by to talk to Garza. Garza told them about an incident the day before when he pulled a knife on someone at the Poteet Strawberry Festival. Anderson asked Garza what he would do if someone ever pulled a gun on him.

The men were teasing each other at first, but then Anderson started getting aggravated with Garza and looked like he was going to take a swing at him. The men talked about getting together later to smoke marijuana. Then she and Garza got up from the table and left. Garza went to the laundry room, and Estrada left the apartment complex when her friend arrived to pick her up. Vidal and Anderson testified that they had talked with Garza and his girlfriend at the picnic table that afternoon. They had agreed to meet up with Garza later to smoke marijuana. Garza said he was going up to his apartment to change clothes, and Vidal and Anderson walked to the store to buy cigars and beer. When they returned, they saw from their position downstairs that Garza's door was slightly open. They whistled for Garza to come downstairs, but he did not respond. Vidal walked back a bit so he could get a better view of the door, and he saw the dead bolts sticking out and broken wood. They went to Vidal's apartment where Vidal paged Garza. Garza did not call, however. They went back outside, saw Romano picking up trash, and asked her to take a look inside Garza's apartment. Vidal further testified that he had seen Garza wearing a necklace with a religious pendant many times. He also testified that Blanton used to hang out at the apartment complex with Garza and other friends.

Two or three weeks prior to the murder, Garza had flaunted his money in front of Blanton and his brother. Blanton had said, "You keep pulling out money, somebody's going to jack you." Garza's wife, Yvonne, from whom he had been separated, testified that the last time she saw Garza was on April 6, 2000, when he came to her apartment to visit their son. He had called her on April 9 at 2:00 a.m. and said he was coming to visit their son that day. She paged him around 4:45 or 5:00 p.m., and he did not return her page. He never showed up, and a friend who came to her home on Sunday evening told her that he had been killed. Yvonne testified that she bought and gave Garza a ten-karat gold nugget bracelet from Treasures jewelry store on February 3, 2000. She also bought Garza a herringbone chain from Piercing Pagoda on February 3. On February 16, she bought and gave Garza a ten-karat gold lion ring. She testified that Garza often wore a Jesus and Mary pendant on a gold rope chain that was broken and held together with wire. Yvonne also testified that Garza had a lockbox in his apartment where he kept items of value. About a week after Garza's death, she cleaned out his apartment and noticed that the lock was missing from the lockbox. The gold rope necklace with the religious pendant, the herringbone necklace, the lion's-head ring, and the nugget bracelet were also missing from the apartment. Garza was wearing all of this jewelry, except for the herringbone chain, when she last saw him on April 6. She testified that she had never known Garza to lend his jewelry to friends. However, upon viewing photographs of Blanton, Garza, and other friends taken prior to Garza's death, she acknowledged that Blanton was wearing jewelry similar to Garza's religious pendant and gold nugget bracelet.

Henry Esparza, Jr., an employee at Hollywood Video, testified that movies were rented on Robert's account at 4:43 p.m. on April 9, 2000. Brian Collins, the assistant manager at EZ Pawn, testified that Blanton pawned a gold herringbone chain, a gold rope necklace with a broken chain, and a religious pendant for eighty-five dollars at 6:00 p.m. on April 9. Collins noticed that Blanton was wearing a lion's-head ring with rubies in its eyes and a diamond in its mouth, but he did not pawn it. While Blanton was inside the store, Collins observed a black man and a black woman outside the shop. The woman seemed upset and was pacing back and forth and the man was talking to her and trying to calm her down. At trial, Mayberry denied that she was upset while waiting outside the pawn shop. Alkeshia Hoyle testified that she and Blanton were living together at the time of the offense. Blanton's brother and his brother's girlfriend were coming to visit him when she left the apartment on April 9. Blanton paged her from their apartment sometime between 6:00 p.m. and 7:00 p.m. He was at the apartment when she arrived home at about 10:00 p.m. She observed him wearing a gold nugget bracelet and an "animal ring" with red rubies that she had not seen him wearing before.

When Blanton was arrested at their apartment on April 13, he was wearing a gold nugget bracelet and a lion's-head ring with ruby eyes and a diamond in its mouth. The State introduced several jewelry receipts at trial, including a receipt from Piercing Pagoda for a twenty-two-inch gold rope chain; a layaway pick-up receipt from Piercing Pagoda for a gold herringbone necklace dated February 3, 2000; a receipt from Treasures for a ten-karat gold nugget bracelet dated February 3, 2000, under the customer name "Yvonne;" and another receipt from Treasures for a ten-karat gold lion ring dated February 16, 2000, also under the customer name "Yvonne."

Physical evidence included three footprints on Garza's door which appeared to have been made by a tennis shoe. SAPD Detective Myron Oberheu measured one of the footprints at approximately twelve inches. He measured Blanton's foot in court at twelve and one-fourth inches. Two spent shell casings and one bullet were recovered from Garza's apartment. The shell casings were ".380 auto caliber." They were two different brands but appeared to have been fired from the same firearm. The bullet was consistent with ".380 auto caliber."

State's witness Frank Trujillo testified that he used to work at the front desk of the West Point Inn in San Antonio and he was familiar with Blanton because he had come to the motel on a couple of occasions asking for a room. Trujillo was not sure of the exact date, but, a few days before April 13, 2000, Blanton asked for a room at the motel. He also asked Trujillo if he wanted to buy a gun. When Trujillo asked him why, he said, "I had to smoke a ni@#er." Trujillo noticed that Blanton was wearing a ring with "a tiger or lion with red eyes." Trujillo was arrested on a parole warrant on April 13 and was in jail at the same time as Blanton. While in jail, Blanton told him that he, his brother, and his brother's girlfriend went over to some guy's house to "jack him" for drugs and he kicked the door in and shot the guy. He talked about taking some jewelry and said he was on camera at the pawn shop trying to pawn the jewelry.

Defense witness Ronald Marshall testified that he was friends with both Garza and Blanton. Marshall testified that he was wearing Garza's gold chain and religious pendant in a photograph that was recovered from Garza's apartment. Garza and Blanton were also in the photograph that Marshall believed was taken in February or March of 2000. Marshall testified that Garza originally owned the pendant, but he had given it to Blanton. Blanton let Marshall wear the pendant in the picture and he gave it back to Blanton afterwards. While wearing the pendant, he observed that the links in the chain of the necklace were broken and held together by wire. Marshall had never seen Blanton wearing the lion's-head ring. Marshall was present when Garza got into an altercation at the strawberry festival the day before his murder. At that time, Garza was wearing the gold nugget bracelet, but he was not wearing the lion's-head ring or religious pendant.

The jury convicted Reginald Blanton of capital murder for killing Carlos Garza while committing robbery or burglary. At the punishment phase of Blanton’s trial, the jury returned a verdict finding that (1) there was a probability that Blanton would commit criminal acts of violence constituting a continuing threat to society, and (2) taking into consideration all of the evidence, including the circumstances of the offense and Blanton’s character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant a life sentence for petitioner. The trial judge sentenced Blanton to death.

 
 

Blanton v. State, Not Reported in S.W.3d, 2004 WL 3093219 (Tex.Crim.App. 2004). (Direct Appeal)

Background: Defendant was convicted in the trial court, Bexar County, of capital murder and was sentenced to death. He appealed.

Holdings: The Court of Criminal Appeals, Price, J., held that: (1) evidence was sufficient to establish that defendant intentionally committed murder in the course of committing burglary, so as to warrant capital murder conviction; (2) evidence was factually sufficient to support conviction; (3) state articulated race-neutral reasons for using peremptory strikes against two African-American potential jurors; (4) defendant was not entitled to jury instruction on lesser-included offense of murder; (5) state was entitled to question witnesses about their prior inconsistent statements for impeachment purposes; and (6) defendant's challenge to prosecutor's argument was not preserved for review. Affirmed.

PRICE, J., delivered the opinion for a unanimous Court. A Bexar County jury convicted the appellant, Reginald Blanton, of killing Carlos Garza while in the course of robbing him or burglarizing his home.FN1 Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced the appellant to death.FN2 Direct appeal to this Court is automatic. The appellant raises six points of error challenging his conviction and sentence. He claims that the evidence is legally and factually insufficient. He also claims that the trial court erred in (1) overruling his BatsonFN3 objections, (2) failing to include lesser-included offense instructions in the jury charge, (3) allowing the State to improperly impeach two witnesses, and (4) overruling the appellant's objection to the State's argument that attacked the appellant over the shoulders of counsel. We reject each of his contentions and affirm the trial court's judgment.

FN1. Tex. Pen.Code § 19.03(a). FN2. Tex.Code Crim. Proc. Art. 37.071, § 2(g). FN3. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

I. Facts

The evidence at trial showed that Garza was murdered at his residence in the Stepping Stone Apartments in San Antonio, Texas, on April 9, 2000. Patricia Romano, who lived across the hall from Garza, testified that she heard a loud banging noise about three or four weeks prior to the murder. She went outside on her balcony and saw the appellant banging on Garza's door. When she told the appellant that Garza was obviously not coming to the door, the appellant angrily replied, “Shut up, bitch, get back in your house.”

On the day that Garza was killed, Romano returned to the apartment complex after running an errand with her daughter and saw Garza sitting with a young Hispanic girl at a picnic table near the pool. She went inside her apartment and when she came back outside about an hour later, Garza and the girl were gone. Romano was picking up trash near the laundry room when a Hispanic man named Ralph Vidal and an African-American man named Joseph Anderson approached her. Vidal asked her if she had seen Garza and she replied that she had seen him earlier. Vidal told her that, when they returned from the store, they noticed that Garza's door was open and that frame was splintered. He thought someone might have broken into Garza's apartment, and he asked Romano to call the police.

Romano went upstairs to take a closer look at the door. She saw that the lock was engaged and the door frame was splintered as though it had been kicked open. The stereo blared, and all of the cushions had been pulled off the couch in the living room as if someone had ransacked the apartment. She went to her apartment and called the apartment manager, who told her to call the police. The apartment manager arrived about fifteen minutes later and went into the entryway of Garza's apartment with Romano's husband. From there, they saw a body lying on the floor. Romano's husband believed that it was Garza, and he saw that part of his leg was still moving.

Ernest Borroel, Jr., lived in the apartment beneath Garza's apartment. At around 5:00 or 5:30 p.m. on the day of the murder Borroel heard a noise as if something had fallen or had been tipped over upstairs in Garza's apartment.

When San Antonio Police Department (SAPD) Officer Richard Odoms arrived at Garza's apartment, he saw that the door jamb was destroyed, the door frame was lying on the floor, the dead bolt was sticking out, and there was a footprint on the door as if someone had kicked it in. Odoms saw Garza lying unconscious in the hallway with what looked like a bullet wound to his forehead. Odoms heard Garza make a “gurgling type sound,” like “somebody snoring.” He saw two spent bullet casings on the floor: one by Garza's feet and another by his head. Garza's stereo was blaring and a pager kept going off.

Paramedic Michael Rodriguez arrived at Garza's apartment at about 6:30 p.m. He saw that Garza was bleeding from two gunshot wounds to his face. He noticed that Garza was still breathing and had a pulse. Garza's breathing was irregular, and he made a “gurgling” sound. His pulse stopped on the way to the hospital. Bexar County Chief Medical Examiner Robert Bux testified that Garza suffered two gunshot wounds to his head, one to the left front scalp area and one to his cheek. The gunshot wound to his scalp was fatal.

Two days later, SAPD Officer Ricky Lopez and his partner were dispatched to the appellant's father's home on a disturbance call. The appellant's twin brother, Robert Blanton, and Blanton's girlfriend, LaToya Mayberry,FN4 were arguing outside. Mayberry initially gave Lopez a false name, but her brother told the officer her real name. Lopez discovered that Mayberry had active municipal court warrants. Lopez's partner placed Mayberry under arrest. Lopez's partner then placed Mayberry in handcuffs and put her into the patrol car.

FN4. By the time the appellant's trial began, Mayberry had married Robert Blanton. For purposes of this opinion, we will refer to Robert Blanton as Blanton and Latoya Mayberry as Mayberry.

While Mayberry sat in the patrol car, she told Lopez that she had information about a murder that had occurred a few days before at the Stepping Stone Apartments. She also told Detective Rocky Dyer that the appellant and Blanton were involved in the homicide, that she heard the appellant brag about it, and that they went back to the scene shortly after the shooting. Mayberry was transported to the police station for formal questioning.

Detective Raymond Roberts interviewed Mayberry and took her statement. Roberts testified that he told Mayberry that she did not have to talk about the murder. She said she wanted to tell him what happened because it was upsetting her. He explained Mayberry's rights to her before the interview began, and she indicated that she understood her rights. He never threatened her or told her that she would be arrested for capital murder if she did not give a statement.

In her statement, Mayberry said that Blanton drove the appellant in her grandmother's car to the Stepping Stone Apartments, where Garza lived. She went along with the brothers. They went to the third floor and knocked on the door of Garza's apartment. No one answered the door, and Blanton told Mayberry to go back downstairs and wait in the car. She heard Blanton tell the appellant, “Let's go,” and when she heard the appellant say, “No[,] cuz, don't go,” she knew that “something was going to go down.” She believed that Blanton stayed with the appellant because he was scared of him.

While Mayberry was sitting in the car, she heard “two loud booms,” and she “knew that it had to be them kicking in the door to Garza's apartment.” She heard “two more booms.” She said that she knew right away that they were gunshots because she had heard gunshots before. She then saw Blanton running toward the car, and his eyes “were real big like he was scared.” He was “breathing real fast and hard” and got into the car and started the engine. He did not answer her when she asked him what happened. The appellant jumped in the car as Blanton was driving away. In his hands, the appellant had a small blue box and some jewelry, including a gold herringbone necklace and a broken gold rope necklace. The appellant was also wearing a gold lion's-head ring with two ruby eyes and a diamond in its mouth that Mayberry had not seen before.

As they were leaving, the appellant took a silver gun out of his pocket and told Mayberry that it was a “.380.” He also said, “Fuck, I left a bullet in the house,” and told Blanton he wanted to go back to the apartment so he could get his “dope.” Blanton refused to drive back. Instead, Blanton drove them to a friend's apartment where they stayed for about twenty minutes.

Blanton then drove them back to the Stepping Stone Apartments. Blanton and Mayberry waited in the car while the appellant went inside. When the appellant came back he was laughing and said, “That mother fucker's in there snoring, I thought I was going to have to do that mother fucker again.” The appellant also said he “turned everything over in the apartment” and took one hundred dollars.

The appellant then made Blanton drive to a pawn shop. On the way there, the appellant asked Mayberry if she thought the rubies in the lion's-head ring were real. They arrived at the pawn shop at about 5:50 p.m. The appellant pawned the two necklaces and a “Jesus charm .”

After they left the pawn shop, Blanton drove them to Adkins, Texas. While they were riding in the car, the appellant was laughing and bragging about shooting Garza. He said, “I peeled that mother fucker's head back, you see how he just dropped in the corner.” He said that he kicked in the door and that it looked like Garza had just gotten out of the shower. When Garza asked the appellant what was going on, he told Garza to “brake himself,” which means “It's a robbery, give me all your shit.” When Garza said, “No,” the appellant shot him. When Garza fell down, the appellant shot him again in the head.

Blanton drove the appellant back to his girlfriend's apartment at about 8:00 or 8:30 p.m. Mayberry and Blanton went to get something to eat and then returned home about 9:30 p.m. They heard about a burglary and murder that night on the news. Mayberry asked Blanton what had happened. Blanton told her that the door was kicked in, Garza came around the corner and asked what they were doing, and the appellant shot him. He said that the appellant looked around the apartment for drugs, but could not find any. Then he shot Garza again. Blanton said that “[Garza] was just laying there snoring.” After Roberts typed Mayberry's statement, he gave her an opportunity to read it and make corrections. She indicated that she was satisfied with her statement and signed it in front of two witnesses.

After Mayberry signed her statement, she and Roberts called Blanton. Roberts asked him to come down to the station to talk to them and that he was not under arrest. Blanton was reluctant to speak with Roberts at first. After viewing Garza's autopsy photographs and talking to Mayberry alone for a few minutes, however, Blanton gave a statement.

In his statement, Blanton said that he drove the appellant and Mayberry to Garza's apartment complex. They knocked on the door, and when no one answered, he and Mayberry started to leave. The appellant told him to stay. Mayberry went back to the car. He sat down on the steps while the appellant continued to knock on the door. Then he heard a loud noise “like somebody hit something pretty hard.” He followed the appellant into the apartment and heard the appellant and Garza arguing in the back room. He heard a gunshot and ran out of the apartment. As he was running down the stairs, he heard another gunshot. He got into the car with Mayberry, then the appellant came walking out of the complex and got into the car. Blanton asked the appellant what happened, and he replied, “Don't worry about it.”

From there, Blanton drove to the appellant's apartment, and they stayed there for about five minutes. Blanton then drove them to the apartment complex next door to the Stepping Stone Apartments and parked the car. The appellant walked back to the Stepping Stone Apartments and returned to the car about five minutes later.

Blanton drove them to a pawn shop, where Blanton and Mayberry stayed in the car while the appellant went inside.FN5 When he got back into the car, the appellant said that he had pawned his jewelry. Blanton drove the appellant back to his apartment, and then Blanton and Mayberry returned home. Blanton found out from the Sunday night news that Garza was dead. He never saw the appellant with a gun, and he did not know what he did with the gun.

FN5. The pawn shop video showed that Blanton and Mayberry were outside the car but not inside the store.

After he completed his statement, Roberts gave Blanton an opportunity to review it. Blanton reviewed the statement and signed it.

During the trial, Mayberry testified that the statement that she made to the police was not true. She denied that she approached police with information about a capital murder. She testified that she gave her statement because the police accused her of being in the apartment, stated that they had witnesses implicating her and Blanton, and told her that she would be charged with capital murder if she did not give a statement. When asked about the first two “loud booms” she said she heard while waiting in the car, she denied knowing that it was Blanton and the appellant kicking in the door to Garza's apartment. She testified that children were outside playing with rocks and sticks, and she said that all the noises sounded the same. When asked about the second set of “booms” that she heard, she testified that she did not know if they were gunshots because she had heard gunshots before only on television. She denied telling police that Blanton stayed upstairs with the appellant because he was scared of him. She denied saying that Blanton's eyes were big and that he appeared to be afraid when he returned to the car. On the first day of her trial testimony, Mayberry stated that when they left the apartment complex she saw that the appellant had something “shiny” that looked like a gun, and that she asked him what it was and he told her it was either a “.380” or a “.38.” On the second day of her trial testimony, she stated that she never saw the appellant with a gun and that she lied the day before when she testified that she had.

Mayberry also denied telling police that the appellant said that he “left a bullet in the house.” She denied that the appellant wanted to go back to Garza's apartment to get some “dope,” that the appellant said he “turned everything over in the apartment” and took one hundred dollars, and that the appellant stated, “I thought I was going to have to do that mother fucker again.” She denied that the appellant was laughing and bragging about shooting Garza and that he said, “I peeled that mother fucker's head back.”

Mayberry clarified at trial that the appellant had been wearing a gold religious pendant in addition to the lion's-head ring, a gold herringbone necklace, and a gold “broke rope” necklace. She said that the appellant often carried a blue box in which he kept his pencils. She also testified at trial that when they left the Stepping Stone Apartments the first time, she noticed a black male and a Hispanic male walking down the street towards the grocery store. When they later returned to the Stepping Stone, she noticed the same two men walking back from the store.

Blanton denied certain portions of his statement when he testified during the appellant's trial. He confirmed that they went to Garza's apartment and to the pawn shop, but he said, “The part that's not correct is when they interject things about [Garza's] death.” He testified that he told Mayberry to go back to the car because it was hot outside and she “had a little attitude,” and said that he and the appellant came down to the car at the same time about a minute later. He denied seeing the appellant enter the apartment and hearing gunshots. He confirmed that the appellant later returned to Garza's apartment and came back to the car about five minutes later, but testified that the appellant told them when he returned to the car that Garza was still not home. He denied telling police that he found out that Garza was dead when he watched the Sunday night news. He testified that the only reason he signed the statement was so that the police would let him and Mayberry go home.

Blanton also testified that he never saw a blue box in the appellant's hands. He had seen the appellant wearing a gold lion's-head ring prior to the day of the murder. He did not see the jewelry that the appellant intended to pawn until they arrived at the pawn shop. He thought that the appellant must have had the jewelry in his pocket.

Garza's girlfriend Debra Estrada testified that she was with him at the apartment complex on the day of the murder. Estrada saw Garza wearing a gold chain with a religious pendant, a couple of rings including a lion ring with ruby eyes, and a gold nugget bracelet. She identified these items as the same items that the police had obtained from the pawn shop where the appellant pawned jewelry after the killing.

Estrada testified that, on the afternoon of the murder, she and Garza had been sitting outside at a picnic table waiting for her friends to pick her up when an African-American man later identified as Anderson and a Hispanic man later identified as Vidal came by to talk to Garza. Garza told them about an incident the day before when he pulled a knife on someone at the Poteet Strawberry Festival. Anderson asked Garza what he would do if someone ever pulled a gun on him. The men were teasing each other at first, but then Anderson started getting aggravated with Garza and looked like he was going to take a swing at him. The men talked about getting together later to smoke marijuana. Then she and Garza got up from the table and left. Garza went to the laundry room, and Estrada left the apartment complex when her friend arrived to pick her up.

Vidal and Anderson testified that they had talked with Garza and his girlfriend at the picnic table that afternoon. They had agreed to meet up with Garza later to smoke marijuana. Garza said he was going up to his apartment to change clothes, and Vidal and Anderson walked to the store to buy cigars and beer.

When they returned, they saw from their position downstairs that Garza's door was slightly open. They whistled for Garza to come downstairs, but he did not respond. Vidal walked back a bit so he could get a better view of the door, and he saw the dead bolts sticking out and broken wood. They went to Vidal's apartment where Vidal paged Garza. Garza did not call, however.

They went back outside, saw Romano picking up trash, and asked her to take a look inside Garza's apartment.

Vidal further testified that he had seen Garza wearing a necklace with a religious pendant many times. He also testified that the appellant used to hang out at the apartment complex with Garza and other friends. Two or three weeks prior to the murder, Garza had flaunted his money in front of the appellant and his brother. The appellant had said, “You keep pulling out money, somebody's going to jack you.”

Garza's wife, Yvonne, from whom he had been separated, testified that the last time she saw Garza was on April 6, 2000, when he came to her apartment to visit their son. He had called her on April 9 at 2:00 a.m. and said he was coming to visit their son that day. She paged him around 4:45 or 5:00 p.m., and he did not return her page. He never showed up, and a friend who came to her home on Sunday evening told her that he had been killed.

Yvonne testified that she bought and gave Garza a ten-karat gold nugget bracelet from Treasures jewelry store on February 3, 2000. She also bought Garza a herringbone chain from Piercing Pagoda on February 3. On February 16, she bought and gave Garza a ten-karat gold lion ring. She testified that Garza often wore a Jesus and Mary pendant on a gold rope chain that was broken and held together with wire.

Yvonne also testified that Garza had a lockbox in his apartment where he kept items of value. About a week after Garza's death, she cleaned out his apartment and noticed that the lock was missing from the lockbox. The gold rope necklace with the religious pendant, the herringbone necklace, the lion's-head ring, and the nugget bracelet were also missing from the apartment. Garza was wearing all of this jewelry, except for the herringbone chain, when she last saw him on April 6. She testified that she had never known Garza to lend his jewelry to friends. However, upon viewing photographs of the appellant, Garza, and other friends taken prior to Garza's death, she acknowledged that the appellant was wearing jewelry similar to Garza's religious pendant and gold nugget bracelet.

Henry Esparza, Jr., an employee at Hollywood Video, testified that movies were rented on Blanton's account at 4:43 p.m. on April 9, 2000. Brian Collins, the assistant manager at EZ Pawn, testified that the appellant pawned a gold herringbone chain, a gold rope necklace with a broken chain, and a religious pendant for eighty-five dollars at 6:00 p.m. on April 9. Collins noticed that the appellant was wearing a lion's-head ring with rubies in its eyes and a diamond in its mouth, but he did not pawn it. While the appellant was inside the store, Collins observed a black man and a black woman outside the shop. The woman seemed upset and was pacing back and forth and the man was talking to her and trying to calm her down. At trial, Mayberry denied that she was upset while waiting outside the pawn shop.

Alkeshia Hoyle testified that she and the appellant were living together at the time of the offense. The appellant's brother and his brother's girlfriend were coming to visit him when she left the apartment on April 9. The appellant paged her from their apartment sometime between 6:00 p.m. and 7:00 p.m. He was at the apartment when she arrived home at about 10:00 p.m. She observed him wearing a gold nugget bracelet and an “animal ring” with red rubies that she had not seen him wearing before. When the appellant was arrested at their apartment on April 13, he was wearing a gold nugget bracelet and a lion's-head ring with ruby eyes and a diamond in its mouth.

The State introduced several jewelry receipts at trial, including a receipt from Piercing Pagoda for a twenty-two-inch gold rope chain; a layaway pick-up receipt from Piercing Pagoda for a gold herringbone necklace dated February 3, 2000; a receipt from Treasures for a ten-karat gold nugget bracelet dated February 3, 2000, under the customer name “Yvonne;” and another receipt from Treasures for a ten-karat gold lion ring dated February 16, 2000, also under the customer name “Yvonne.”

Physical evidence included three footprints on Garza's door which appeared to have been made by a tennis shoe. SAPD Detective Myron Oberheu measured one of the footprints at approximately twelve inches. He measured the appellant's foot in court at twelve and one-fourth inches. Two spent shell casings and one bullet were recovered from Garza's apartment. The shell casings were “.380 auto caliber.” They were two different brands but appeared to have been fired from the same firearm. The bullet was consistent with “.380 auto caliber.”

State's witness Frank Trujillo testified that he used to work at the front desk of the West Point Inn in San Antonio and he was familiar with the appellant because he had come to the motel on a couple of occasions asking for a room. Trujillo was not sure of the exact date, but, a few days before April 13, 2000, the appellant asked for a room at the motel. He also asked Trujillo if he wanted to buy a gun. When Trujillo asked him why, he said, “I had to smoke a nigger.” Trujillo noticed that the appellant was wearing a ring with “a tiger or lion with red eyes.”

Trujillo was arrested on a parole warrant on April 13 and was in jail at the same time as the appellant. While in jail, the appellant told him that he, his brother, and his brother's girlfriend went over to some guy's house to “jack him” for drugs and he kicked the door in and shot the guy. He talked about taking some jewelry and said he was on camera at the pawn shop trying to pawn the jewelry.

Defense witness Ronald Marshall testified that he was friends with both Garza and the appellant. Marshall testified that he was wearing Garza's gold chain and religious pendant in a photograph that was recovered from Garza's apartment. Garza and the appellant were also in the photograph that Marshall believed was taken in February or March of 2000. Marshall testified that Garza originally owned the pendant, but he had given it to the appellant. The appellant let Marshall wear the pendant in the picture and he gave it back to the appellant afterwards. While wearing the pendant, he observed that the links in the chain of the necklace were broken and held together by wire.

Marshall had never seen the appellant wearing the lion's-head ring. Marshall was present when Garza got into an altercation at the strawberry festival the day before his murder. At that time, Garza was wearing the gold nugget bracelet, but he was not wearing the lion's-head ring or religious pendant.

II. Legal Sufficiency of the Evidence

In his third point of error, the appellant challenges the legal sufficiency of the evidence of guilt.FN6 In order to convict the appellant of capital murder, the charge required the jury to find beyond a reasonable doubt that the appellant intentionally committed murder in the course of committing or attempting to commit robbery or burglary. The appellant specifically alleges that the State failed to prove that he committed the underlying offenses.

FN6. The appellant also contends that Section 19.02(a)(2) of the Texas Penal Code is unconstitutional as applied to him because the State “used the murder to transform the appellant's illegal entry of the habitation into a burglary and then used the same murder coupled with the burglary to establish the offense of capital murder .” The appellant's claim is factually incorrect. The State charged the appellant with murder in the course of committing burglary with intent to commit theft. Even if such bootstrapping claims had not been rejected by this Court, see Homan v. State, 19 S.W.3d 847, 849 (Tex.Crim.App.2000), the appellant's claim would still fail.

In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.FN7 When the trial court's charge authorized the jury to convict on alternative theories, as it did in this case, the verdict of guilt will be upheld if the evidence was sufficient on any one of the theories. FN8

FN7. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). FN8. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App.1999) (citing Rabbani v. State, 847 S.W.2d 555, 558-559 (Tex.Crim.App.1992)).

A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.FN9 Theft is defined as the unlawful appropriation of property with the intent to deprive the owner of the property.FN10

FN9. Tex. Pen.Code § 29.02. FN10. Tex. Pen.Code § 31.03(a).

The appellant argues that the State failed to prove that he robbed Garza, pointing out that the jewelry at issue was common and there was a possibility that Garza gave him the jewelry. Mayberry testified that when the appellant came back to their car on their first trip to the Stepping Stone Apartments, he was wearing a gold herringbone necklace, a gold “broke rope” necklace, a gold religious pendant, and a gold lion's-head ring with rubies in its eyes and a diamond in its mouth. Mayberry had not seen the appellant wearing the lion's-head ring before. Hoyle testified that when she saw the appellant at 10:00 p.m. on April 9, he was wearing a gold nugget bracelet and an “animal ring” with red rubies that she had not seen him wearing before. Marshall testified that he had not seen the appellant wearing a lion's-head ring before. A Treasures jewelry store employee testified that the placement of the stones in the lion's-head ring was distinctive. Also distinctive was the fact that the gold rope necklace was broken and held together with wire.

The appellant also contends that no witnesses “could place the allegedly stolen jewelry on [Garza] on the day of his death.” However, Estrada testified that she was with Garza at the apartment complex on the day of the murder and he was wearing a gold chain with a religious pendant, a lion ring with ruby eyes, and a gold nugget bracelet. Garza was not wearing any jewelry when the police and paramedics arrived at his apartment. The appellant pawned a gold herringbone chain, a gold rope necklace with a broken chain, and a religious pendant that evening. The appellant was wearing a gold nugget bracelet and a lion's-head ring when he was arrested on April 13. The jewelry was missing when Yvonne cleaned out Garza's apartment a week after his death.

Trujillo testified that the appellant told him he took some jewelry from the “guy” he shot. The evidence also showed that the appellant took money from Garza. Mayberry told police in her statement that the appellant said he took one hundred dollars when he returned to Garza's apartment. FN11

FN11. During Mayberry's testimony, portions of her statement came in only as impeachment evidence. During Roberts's testimony, however, the statement was read without objection. As a result, the statement was substantive evidence of guilt. See Tex.R. Evid. 802 (“Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay”).

The evidence, viewed in the light most favorable to the verdict, established that the appellant intentionally killed Garza while in the course of entering Garza's apartment, without Garza's consent, with the intent to commit theft. Based on the evidence at trial, a rational jury could have concluded beyond a reasonable doubt that the appellant intentionally committed murder in the course of committing burglary.FN12 We overrule the appellant's third point of error. FN12. Jackson, 443 U.S. at 319.

III. Factual Sufficiency of the Evidence

In his fourth point of error, the appellant generally challenges the factual sufficiency of the evidence during the guilt phase of the trial. In a factual sufficiency review, we view all the evidence in a neutral light and set aside the verdict only if (1) the evidence was too weak to support a finding of guilt beyond a reasonable doubt or (2) if the contrary evidence was so strong that the evidence in favor of the verdict could not have established guilt beyond a reasonable doubt.FN13. Zuniga v. State, No. 539-02, slip op. at 14, 2004 Tex.Crim.App. LEXIS 668 (Tex.Crim.App., delivered April 21, 2004).

The evidence adduced during the guilt phase of the trial is outlined above. The evidence established that the appellant kicked in the door of Garza's apartment with the intent to commit a theft, shot Garza twice, and stole Garza's jewelry. The evidence that supports this conclusion includes (1) the statements that Mayberry and Blanton gave to police,FN14 (2) the testimony that Garza had been wearing his jewelry just before the murder but was not wearing any jewelry when the paramedics found him, and (3) the testimony identifying the jewelry that the appellant pawned as Garza's jewelry. This evidence was not too weak to support the jury's verdict that he committed murder while in the course of burglary.FN15

FN14. During Blanton's testimony, portions of his statement came in only as impeachment evidence. During Roberts's testimony, however, the statement was read without objection. As a result, the statements became substantive evidence of guilt. See Tex.R. Evid. 802 (“Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay”). FN15. Ibid.

The evidence that undermines the verdict includes the trial testimony of Mayberry, Blanton, and Marshall. Mayberry and Blanton testified that Roberts threatened them with capital murder charges if they did not give a statement implicating the appellant. At trial they claimed that the appellant did not enter Garza's apartment and the appellant never said that he had entered the apartment. Blanton also claimed that he had seen the appellant with the lion ring before the day of the murder. Also, Marshall testified that he thought that Garza gave the appellant the gold rope necklace and religious pendant.

Marshall's testimony that Garza gave the gold rope necklace and religious pendant to the appellant had been bolstered by the photograph of the appellant wearing the necklace and pendant. But the testimony that Garza gave the necklace to the appellant instead of lending the necklace to the appellant was undermined by Estrada's testimony that Garza had been wearing this same necklace and pendant a short time before he was killed.

The jury was free to reject any part of or all the testimony of these witnesses. We cannot say that the evidence contrary to the verdict was so strong that the jury's verdict was clearly wrong or unjust.FN16 We overrule the appellant's fourth point of error. FN16. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).

IV. Batson Claims

In his first point of error, the appellant contends that the trial court erred in overruling his Batson objections to the State's peremptory challenges of prospective jurors Michelle Johnson and Ann Henderson.FN17 A defendant objecting under Batson must make a prima facie showing of racial discrimination in the State's exercise of its peremptory strikes.FN18 The burden then shifts to the State to articulate race-neutral explanations for its strikes.FN19 Once the prosecutor has articulated race-neutral explanations, the burden shifts back to the defendant to show that the explanations are really a pretext for discrimination.FN20 The trial court must then determine whether the defendant has carried his burden of proving discrimination.FN21 The trial court's determination is accorded great deference and will not be overturned on appeal unless it is clearly erroneous. FN22

FN17. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant”) The appellant also argues in a footnote that the trial court erred in refusing “to conduct a Batson analysis with regard to the jury shuffle.” The only legal authority he presents in support of this claim is a citation to a footnote to Ladd v. State, 3 S.W.3d 547 (Tex.Crim.App.1999), in which we noted that one scholar argued in a law review article that Batson should extend to jury shuffles. Id., at 575 n. 9. The appellant omitted the remainder of the footnote where we stated: “We wish to make it clear, however, that we do not endorse such a view.” Ibid.

FN18. See Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App.2002). FN19. Ibid. FN20. Ibid. FN21. Ibid. FN22. Ibid.

A. Johnson

The appellant objected to the State's peremptory strike against Johnson under Batson, the trial court made a finding that the appellant had made a prima facie case, and the State articulated the reasons for its strike. The prosecutor explained that she struck Johnson because she stated that the death penalty was against her religious beliefs, she was confused about the death penalty, she believed that capital punishment was appropriate only for premeditated cases, and she would hold the State to a higher standard of proof because “she would have to be convinced without any doubt whatsoever” in order to return a guilty verdict. The appellant argued in response that the questions that the prosecutor asked Johnson were not race-neutral and were specifically designed “to try to knock her off this jury.” The trial court denied the Batson challenge.

The appellant engages in a comparative analysis on appeal to show that the State's reasons for striking Johnson were actually a pretext for discrimination. He compares the State's questioning of Johnson to its questioning of prospective jurors Karen Albert, Richard Rosas, Joe Ann Dobrick, Ada Bohlken, and Deborah Parker. All of these prospective jurors stated that they could return a verdict of death if warranted by the evidence and that they could follow the beyond a reasonable doubt standard of proof. In contrast, Johnson told the prosecutor that “God is the only one” who should be able to take someone's life and that in order to return a guilty verdict she would have to “believe entirely” “without any doubts whatsoever” that the person committed the crime.

The appellant claims that the prosecutor spent more time explaining the law and alleviating confusion with other prospective jurors. The State responds that it spent more time with prospective jurors who clearly said that they could return a verdict of death because these were people who would appear to make good jurors in a capital case.

The appellant also complains that Johnson was struck due to her views on premeditation, while Rosas, Dobrick, Bohlken, and Parker were not. None of these prospective jurors expressed that the death penalty should be reserved for only premeditated crimes, as Johnson did; instead, they said that premeditation might be a factor to consider in their decision-making process.

The appellant points out that, after questioning by defense counsel, Johnson stated that she could answer the questions to result in a death sentence based on the evidence, that she would not require premeditation, and that she would not hold the State to a higher burden than beyond a reasonable doubt. But the fact that a prospective juror vacillates about her ability to choose the death penalty, despite personal beliefs, is a valid and neutral reason to strike that person.FN23. Jasper v. State, 61 S.W.3d 413, 422 (Tex.Crim.App.2001).

B. Henderson

We next turn to the appellant's Batson challenge to the State's peremptory strike against Henderson. Without making a finding that the appellant had made a prima facie case,FN24 the trial court entertained the State's explanations for the strike. The prosecutor explained that she struck Henderson because Henderson admitted that she had a bias against the district attorney's office, she lied on her juror questionnaire about her prior arrests, her son had a lengthy criminal history, she stated that she could not sentence someone to death, she stated that “based on her job she would not be able to give his case her full attention,” and she stated that she would have to be “convinced 100 percent” in order to convict a person of a crime. The trial court denied the appellant's Batson challenge.

FN24. Once the responding party has offered a race-neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate question of purposeful discrimination, the preliminary issue of whether the objecting party made a prima facie case becomes moot. Malone v. State, 919 S.W.2d 410, 412 (Tex.Crim.App.1996).

The appellant claims that the trial court failed to perform a complete Batson analysis with regard to Henderson because it made no ultimate ruling on the third step of the Batson analysis. The appellant complains that the trial court stopped the analysis after determining that the State's proffered reasons were race-neutral. During the hearing, however, the appellant did not attempt to rebut the State's reasons for striking Henderson. The trial court's ruling was apparent from the context and is supported by the record.FN25. See Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App.2003).

The appellant also argues that, upon further questioning by defense counsel, Henderson stated that she could put aside her personal beliefs about the death penalty and make a decision based on the evidence. Henderson's vacillation as to whether or not she could impose the death penalty despite her personal beliefs is a valid and neutral reason for a peremptory strike.FN26. Jasper, 61 S.W.3d at 422.

The appellant says that one reason Henderson was struck was due to her son's criminal activities, while prospective juror Ada Bohlken was seated on the jury despite having a brother and a cousin with criminal histories. Bohlken said that her relatives were treated fairly and it would not be a factor in her thought process at all. Henderson, on the other hand, said that her son had not been treated fairly by the system and that she had a bias against the district attorney's office.

The appellant also complains that Henderson was struck due to her own criminal history, while prospective jurors Troy Hanson and Joy Carr were not. Henderson failed to disclose her prior arrests in her jury questionnaire; Hanson and Carr were forthcoming about their prior arrests and convictions.

The State's explanations for striking Johnson and Henderson were facially race-neutral and the record shows no evidence of pretext. The trial court did not abuse its discretion in denying the appellant's Batson challenges. We overrule the appellant's first point of error.

V. Lesser-Included Offense Instructions

The appellant asserts in his second point of error that the trial court erroneously refused to instruct the jury on the lesser-included offenses of murder, felony murder, criminal trespass, and criminal mischief. The appellant, however, requested that the trial court instruct the jury only on the lesser-included offense of murder. He failed to preserve the rest of his claim for appellate review because he did not request the trial court to instruct the jury on felony murder, criminal trespass, and criminal mischief, nor did he object to the omission of these issues from the charge.FN27. Tex.Code Crim. Proc. Art. 36.14; Posey v. State, 966 S.W.2d 57, 61 (Tex.Crim.App.1998) (holding that the trial court has no duty to instruct sua sponte the jurors on defensive issues, even under Code of Criminal Procedure Article 36.19 and Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (op. on reh'g)).

We use a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser-included offense.FN28 The first step in our analysis is to determine if the lesser offense, murder, is included within the proof necessary to establish the offense charged, capital murder.FN29 Here, the first prong of the test has been satisfied because we have held that murder is a lesser-included offense of capital murder.FN30

FN28. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.1993). FN29. Ibid. FN30. Jones v. State, 833 S.W.2d 118, 127 (Tex.Crim.App.1992).

The second step requires an evaluation of the evidence to determine whether there is some evidence that would permit a jury rationally to find that the defendant is guilty only of murder.FN31 The evidence must establish murder as a valid rational alternative to capital murder.FN32 We are not concerned with whether this evidence is strong, credible, or uncontroverted. FN33 If some evidence exists, from whatever source, the appellant is entitled to the instruction upon request.FN34

FN31. Rousseau, 855 S.W.2d at 672. FN32. Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex.Crim.App.2000). FN33. Rousseau, 855 S.W.2d at 672. FN34. Ibid.

The appellant argues that the murder was not committed in the course of another felony because the State failed to prove the underlying offenses of robbery or burglary. The appellant asserts that there was no evidence besides “speculation” that anything was taken from Garza's apartment. The appellant contends that the evidence instead shows that the jewelry, which was “not unique and could be purchased anywhere,” actually belonged to the appellant.

We disagree with the appellant's claim that there was no evidence, besides speculation, that anything was taken from the apartment. As we discussed above, the evidence is both legally and factually sufficient to support the jury's verdict. The question is whether there is some evidence in the record from which a rational jury could conclude that, if the appellant was guilty, he was guilty only of murder.

We will review the evidence that tends to establish that the appellant did not commit burglary or robbery. Blanton testified that the appellant knocked on Garza's door but did not actually enter Garza's apartment. He also denied that the appellant bragged about having killed Garza. Blanton also said that he had seen the appellant wearing a lion's-head ring before the day of Garza's murder. Mayberry testified that the appellant knocked on Garza's door, but she did not see him enter the apartment. Marshall testified that Garza gave his gold rope chain and religious pendant to the appellant. Photographs introduced during the trial depicted the appellant wearing jewelry that was similar to Garza's religious pendant and gold nugget bracelet.

The evidence that suggests that the appellant did not commit burglary or robbery also suggests that the appellant did not commit murder. If the jury believed Blanton's and Mayberry's testimony, the appellant was guilty of nothing more than knocking on a friend's apartment door. If the jury believed Marshall, then the appellant merely accepted a gift from Garza. And the photographs do not show the appellant killing Garza. The record contains no evidence from which the jury could conclude that, if the appellant was guilty, he was guilty only of murder. We overrule the appellant's second point.

VI. Improper Impeachment

In the appellant's fifth point of error, he claims that the trial court allowed the State to improperly impeach Mayberry and Blanton by reading their statements to the jury in violation of Texas Rule of Evidence 613.FN35 The appellant specifically argues that “the State, though admonished by the trial court on several occasions to ... comply, not only read the statements to the jury, but had the Detective who took the statements repeat the process.” The appellant did not object on this basis when Roberts testified regarding Mayberry and Blanton's statements; thus, this portion of his claim was not preserved for appeal.FN36

FN35. The appellant also claims the State's improper impeachment of Mayberry and Blanton violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 9 and 10 of the Texas Constitution. Because the appellant does not provide separate authority or argument for his constitutional claims, we decline to address them. See Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex.Crim.App.1991). FN36. Tex.R.App. P. 33.1.

Rule 613(a) permits a party to impeach a witness with a prior inconsistent statement. Before a witness may be impeached with a prior inconsistent statement, the witness must be told the contents of the statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement.FN37 If the witness denies making the contradictory statement, then it may be proved by the prior inconsistent statement .FN38 If the witness admits the prior inconsistent statement, however, the prior statement is not admissible.FN39 If the witness admits making the written statement but upon inquiry denies portions of the statement, then the portion that contradicts the witness may be proved for purposes of impeachment.FN40

FN37. Tex.R. Evid. 613(a). The appellant argues that the State failed to establish “surprise” or “injury” before impeaching Mayberry and Blanton. This showing is no longer required. Tex.R. Evid. 607; Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App.1999); Barley v. State, 906 S.W.2d 27, 40 n. 11 (Tex.Crim.App.1995) 607. FN38. See McGary v. State, 750 S.W.2d 782, 786 (Tex.Crim.App.1988). FN39. Ibid. FN40. Id. at 787.

Before questioning Mayberry about her statement to Roberts, the prosecutor showed her the statement and asked her if it was the statement that she gave to police on April 11, 2000. Mayberry acknowledged that it was her statement. Upon further questioning, however, Mayberry testified that the contents of the statement were not true, that Roberts was putting words in her mouth, and that she signed the statement only because she was told that she would be charged with capital murder if she did not do so.

Before questioning Blanton about his statement, the prosecutor showed him the statement and asked him if it was the statement he gave to Roberts on April 11, 2000, at 11:35 p.m. at 214 West Nueva. Blanton testified that the portions of his statement pertaining to Garza's murder were untrue, that the majority of his statement was based on what Roberts told him, and that he signed the statement only because he feared that he would be charged with capital murder and he wanted the police to let him and Mayberry go home.

The prosecutor did not read the statements to the jury as the appellant suggests during the cross-examination of Mayberry or Blanton.FN41 Instead, the prosecutor questioned Mayberry and Blanton about their prior inconsistent statements for impeachment purposes, consistent with Rule 613. The trial court did not abuse its discretion. We overrule the appellant's fifth point of error.

FN41. Later in the trial, these statements were read to the jury without objection during Roberts's testimony.

VII. Jury Argument

In his sixth point of error, the appellant complains that the prosecutor improperly attacked him over the shoulders of defense counsel. He contends that the prosecutor's argument violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 9 and 10 of the Texas Constitution.

On the first day of trial, Mayberry testified that, after leaving Garza's apartment complex, she saw that the appellant had something “shiny” that looked like a gun and he told her it was either a “.380” or a “.38.” The next day, defense counsel elicited from Mayberry that she spoke with him following the conclusion of the first day of trial. Mayberry changed her trial testimony and stated that she never saw the appellant with a gun and that she lied the day before when she testified that she had. During closing argument, the prosecutor referred to Mayberry's change in testimony and the following exchange occurred:

[PROSECUTOR]: [Mayberry] also said-in her statement she told you that the first day while she was testifying on Monday that I glanced and I saw a gun. I glanced-yes, I saw-I glanced and I saw it. And I asked the Defendant what it was and he said it's either a .38 or a .380. Then she has the opportunity, she and [Blanton], to go visit with the defense attorneys and the next day, surprisingly enough, she gets on the witness stand. [DEFENSE COUNSEL]: I'm going to object. [PROSECUTOR]: And said I lied. [DEFENSE COUNSEL]: We're entitled to talk to witnesses just like the State is. I mean I'm-I've heard this over and over. There's nothing wrong with the defense attorneys talking to witnesses. THE COURT: Overruled. The prosecutor then continued her argument. The appellant complains only about the following statement: [PROSECUTOR]: After visiting with the defense attorneys, the next day she comes in here and she says I didn't see a gun. I didn't see a gun. If it ain't here in black and white, Mayberry didn't say it. Well, you heard her, I asked her time after time. Three or four times about the gun on Monday and she told you she saw it.

The appellant argues that the prosecutor improperly attacked the appellant over the shoulders of defense counsel during this portion of her closing argument by implying that defense counsel manipulated Mayberry into changing her trial testimony. The appellant did not object to this portion of the prosecutor's argument, which is the sole basis for his challenge on appeal. The appellant objected to the prosecutor's prior statement, which he does not challenge here. As a result, his objection made during the trial does not comport with his complaint on appeal. The appellant has failed to preserve his complaint for our review.FN42 Point of error six is overruled.

FN42. Tex.R.App. P. 33.1.

VIII. Conclusion

Having found no reversible error in the record, we affirm the trial court's judgment.

 
 

Blanton v. Quarterman, 543 F.3d 230 (5th Cir. 2008) (Habeas).

Background: Following affirmance of his conviction for capital murder and sentence of death, 2004 WL 3093219, petitioner sought writ of habeas corpus. The United States District Court for the Western District of Texas, Orlando L. Garcia, J., 489 F.Supp.2d 621, denied petition. Certificate of appealability (COA) was granted, 2008 WL 2871683.

Holdings: The Court of Appeals, Emilio M. Garza, Circuit Judge, held that: (1) trial counsel was not ineffective in his investigation and presentation of mitigating punishment-phase evidence; (2) trial counsel was not ineffective in not immediately challenging prosecutor's request for jury shuffle; and (3) appellate counsel was not ineffective in presenting Batson claim. Affirmed.

EMILIO M. GARZA, Circuit Judge:

Reginald W. Blanton, a Texas state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In seeking habeas relief, Blanton challenges his conviction for capital murder and his sentence of death. The district court granted a certificate of appealability (“COA”) on two issues regarding ineffective assistance of counsel raised in Blanton's federal habeas petition, and we granted COA on a third ineffective assistance of counsel issue. Blanton argues that (1) trial counsel was ineffective in his investigation and presentation of mitigation evidence during the sentencing phase of Blanton's trial, (2) trial counsel was ineffective in his failure to properly preserve Blanton's Batson claim, and (3) appellate counsel was ineffective in her presentation of his Batson claim on direct appeal to the Texas Court of Criminal Appeals (“CCA”). For the following reasons, we affirm the judgment of the district court denying habeas relief.

I

Blanton seeks habeas corpus relief from his conviction for the murder of Carlos Garza. Blanton broke into Garza's San Antonio apartment, shot Garza twice in the head, and stole several pieces of jewelry and one hundred dollars. A Texas jury convicted Blanton of capital murder for killing Garza while committing robbery or burglary. See Tex. Pen.Code § 19.03(a)(2) (defining capital murder). At the punishment phase of Blanton's trial, the jury returned a verdict finding that (1) there was a probability that Blanton would commit criminal acts of violence constituting a continuing threat to society, and (2) taking into consideration all of the evidence, including the circumstances of the offense and the petitioner's character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant a life sentence for petitioner. See Tex.Code Crim. Proc. art. 37.071, § 2(g). The trial judge sentenced Blanton to death.

Blanton appealed his conviction and sentence to the CCA. He argued, inter alia, that the trial court erred by overruling his Batson objections. The CCA affirmed Blanton's conviction and sentence, holding that the trial court did not err in overruling Blanton's objections to the prosecution's peremptory strikes because the strikes were supported by race-neutral justifications. See Blanton v. State, No. 74214, 2004 WL 3093219, (Tex.Crim.App. June 30, 2004) (unpublished).

Blanton then filed a state habeas petition. Among the numerous claims raised, Blanton contended that his trial and appellate counsel were ineffective for failing to argue his Batson claim fully, and for failing to preserve the record for the Batson claim. Blanton also argued that his trial counsel was ineffective in his investigation and presentation of mitigating evidence that could have been used during the punishment phase of Blanton's trial.

The state habeas court judge, the same judge who had presided over Blanton's trial, recommended denial of habeas relief on all grounds. The state habeas court concluded that Blanton had not established that his trial or appellate counsel performed deficiently, nor had he established that he was prejudiced as a result of his representation at trial or on direct appeal. The CCA denied Blanton's habeas application in an unpublished order adopting the habeas trial court's recommendation, findings of fact, and conclusions of law. See Ex Parte Blanton, WR-61,443-01 (Tex.Crim.App. June 22, 2005).

Blanton then filed a federal habeas petition. He raised twenty claims, including ineffective assistance of trial and appellate counsel, but not a Batson claim. In a thorough and well-reasoned opinion, the district court denied habeas relief on all grounds. See Blanton v. Quarterman, 489 F.Supp.2d. 621 (W.D.Tex.2007) . However, the district court granted COA on two issues raised by Blanton's petition: (1) whether habeas relief is warranted based on trial counsel's failure to investigate and present adequate mitigating evidence regarding Blanton's background; and (2) whether habeas relief is warranted based on appellate counsel's failure to present Blanton's Batson claim adequately on direct appeal. See id. at 714. We subsequently granted COA on a third issue: whether habeas relief is warranted based on trial counsel's failure to properly preserve Blanton's Batson claim, namely by objecting to the State's use of a jury shuffle and preserving evidence concerning the discriminatory nature of the jury shuffle. See Blanton v. Quarterman, No. 07-70023, 2008 WL 2871683, at *2 (5th Cir. July 24, 2008). We first address Blanton's two claims regarding the ineffectiveness of trial counsel, and then move to his claim regarding the ineffectiveness of appellate counsel.

II

We apply the standards of review set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. Under AEDPA, when a federal habeas petitioner's claim has been adjudicated on the merits in a state court proceeding, a federal court may only grant habeas relief if the state court's adjudication of the claim either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) resulted in a decision that was based on an unreasonable interpretation of the facts in light of evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). A state court's decision is contrary to clearly established Supreme Court precedent if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a Supreme Court decision and arrives at a different result. See Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court unreasonably applies clearly established federal law if it identifies the correct governing principle, but unreasonably applies that principle to the facts of the case. See Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). An unreasonable application is different from an incorrect or erroneous application. See Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). We defer to the state court's factual findings unless Blanton rebuts those findings with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Schriro, 127 S.Ct. at 1939-40.

In reviewing the district court's application of § 2254(d) to the state court decision, we review the district court's findings of fact for clear error and its conclusions of law de novo. See, e.g., Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.2002).

III

Blanton's ineffective assistance arguments, regarding both trial and appellate counsel, are governed by the Supreme Court's clearly established standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Henderson v. Quarterman, 460 F.3d 654, 665 (5th Cir.2006) (recognizing that Strickland applies to ineffective assistance of appellate counsel claims). Strickland provides a two-pronged standard, and the petitioner bears the burden of proving both prongs. 466 U.S. at 687, 104 S.Ct. 2052. Under the first prong, Blanton must show that counsel's performance was deficient. See id. To establish deficient performance, Blanton must show that counsel's representation “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. This objective standard carries a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance . Id. at 687-91, 104 S.Ct. 2052. In reviewing counsel's performance, we make every effort to eliminate the distorting effects of hindsight, and attempt to adopt the perspective of counsel at the time of the representation. See id. at 690, 104 S.Ct. 2052.

Under the second prong, Blanton must show that his counsel's deficient performance resulted in prejudice. See id. at 687, 104 S.Ct. 2052. To satisfy the “prejudice” prong, Blanton must establish that, but for his counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. Blanton's Strickland claim fails if he cannot establish either the deficient performance or prejudice prong; a court need not evaluate both if a he makes an insufficient showing as to either. See id. at 697, 104 S.Ct. 2052; Foster v. Johnson, 293 F.3d 766, 782 n. 10 (5th Cir.2002).

The state habeas court concluded that Blanton established neither deficient performance nor prejudice with respect to his Strickland claims. The district court, applying the standard set forth in AEDPA, found that this conclusion was not unreasonable. Blanton argues that the state habeas court unreasonably applied Strickland to the facts of his case. Therefore, the question before us is whether the state habeas court reasonably concluded that Blanton's ineffective assistance claims failed to satisfy either prong of Strickland. See Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.2003). In exercising our habeas review under § 2254(d), we review only the ultimate decision of the state court, and not the specific contents of its reasoning or opinion. See St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir.2006), cert. denied, --- U.S. ----, 127 S.Ct. 2133, 167 L.Ed.2d 869 (2007); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc).

A

The district court granted COA on the issue of whether Blanton's trial counsel was ineffective in his investigation and presentation of mitigating punishment-phase evidence. In assessing counsel's performance in this context, we look to how counsel prepared for sentencing, what mitigating evidence counsel accumulated, what additional leads counsel had, and what results counsel could have reasonably expected from those leads. See Neal, 286 F.3d at 237. The reasonableness of counsel's investigation involves “not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Looking to the ABA Guidelines, the Supreme Court has recognized that “investigation into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence.” Id. at 524, 123 S.Ct. 2527. In reviewing the issue of prejudice at capital sentencing we weigh the quality and quantity of the available mitigating evidence, including that presented in post-conviction proceedings, along with the any aggravating evidence. See Williams, 529 U.S. at 397-98, 120 S.Ct. 1495. We then ask whether the changes to the mitigation case would have a reasonable probability of causing a juror to change his or her mind about imposing the death penalty. See Tex.Code Crim. Proc. art. 37.071, § 2(f)(2) (stating that the jury must unanimously answer “no” to the mitigation special issue to impose the death penalty); Neal, 286 F.3d at 241.

The State's punishment evidence included a long history of Blanton's trouble with the law, including participation in gang activity, theft, unlawful possession of a handgun, and possession of marijuana. The State also presented evidence of Blanton's failure to abide by the conditions of his juvenile probation, his long history of abusing marijuana and alcohol, and his assault of another inmate while awaiting his capital murder trial.

Blanton's trial counsel prepared his mitigation case by interviewing Blanton and his family members, and having Blanton examined by Dr. Schroeder, a court appointed psychological expert. Dr. Schroder found that Blanton possessed average mental and academic capabilities, and she described him as highly manipulative and unforthcoming during his interview. She concluded that Blanton's past indicated long-term impulsiveness and a failure to conform to social norms of lawful behavior, suggesting a pervasive pattern of disregard for the rights of others. Dr. Schroeder diagnosed Blanton as likely suffering from antisocial personality disorder, and told Blanton's trial counsel that she would “not be much help” in terms of mitigation. Trial counsel decided not ask Dr. Schroeder to testify, and did not have Blanton evaluated by any other psychological professional. Counsel also utilized a court-appointed mitigation expert. According to testimony during the state habeas proceeding, this was the first use of a mitigation expert for a capital trial in Bexar County. The mitigation expert obtained and reviewed some of Blanton's medical, prison, and social services records; she also interviewed members of Blanton's family. In total, the mitigation expert spent over sixty hours preparing her report.

At punishment, trial counsel presented the following evidence. A church pastor who had known Blanton and his family opined that Blanton is a “God-fearing person” who knows right from wrong. The mitigation expert testified as to the results of her investigation into Blanton's background. Specifically, she stated that Blanton's mother was pushed down a flight of stairs while pregnant with Blanton. Blanton had an unsupervised adolescence, began smoking marijuana at age eleven, and experienced violence on a daily basis. The mitigation specialist believed Blanton abused drugs to escape from his difficult life, and joined a gang to replace the safety and protection his family did not provide. Blanton's drug addiction was not treated during his previous periods of detention. Still, the mitigation specialist found Blanton “very intelligent,” as he had earned his GED and attempted to inquire into joining the military or attending college. The prosecution conducted a skillful cross-examination of the mitigation specialist, focusing on her lack of experience.

Mrs. Blanton testified regarding her difficult pregnancy with Blanton, including the physical and verbal abuse she suffered at the hands of her husband and stepfather while pregnant. She stated that Blanton was born “breech,” swallowed fluid and was blue at birth. As a child, Blanton was smart but had trouble sitting still, so she allowed the school to place him on Ritalin. Her children witnessed her husband physically abuse her and assault Blanton's older sister. After his parents divorced, Blanton began having trouble at school and his relationship with his mother suffered. Blanton also had a bad relationship with his father and possessed significant anger towards him.

In his habeas petition, Blanton argues that trial counsel was ineffective for (1) failing to provide Dr. Schroeder with complete copies of Blanton's birth records and childhood medical records with which to conduct her evaluation, and (2) failing to investigate and present evidence of Blanton's background, specifically with respect to prior medical issues, drug abuse, and abusive family life during childhood. According to Blanton, the evidence that trial counsel failed to uncover would have established that he suffered from organic brain damage. Blanton attached exhibits to his state habeas filing, including childhood medical records concerning his difficult birth and childhood injuries, school records, and reports from two psychological professionals, Gordon Potter and Dr. Jim Cox. Mr. Potter and Dr. Cox concluded that Blanton likely suffered from organic brain damage. They reached this conclusion based on the combined effects of Blanton's childhood injuries (including a childhood bike accident where Blanton injured his head), his difficult upbringing, and his abuse of damaging inhalants. According to Mr. Potter's report, organic brain damage to the frontal lobe of Blanton's brain would fundamentally alter how he perceived the world, reacted to stress, controlled impulses, and conformed to social norms.

During Blanton's state habeas proceeding, lead trial counsel testified that he and the mitigation specialist had trouble obtaining some of Blanton's medical records from another state. He admitted that if they had looked sooner, they likely could have obtained them. Lead trial counsel admitted that the prosecution “shredded” his mitigation expert on cross examination, but stated that the mitigation expert provided the jury with useful information nonetheless. In hindsight, trial counsel would have used the mitigation expert's findings but not called her as a witness because of her inexperience.

Blanton also called Mr. Potter as a witness at the state habeas hearing to explain why he felt Blanton had organic brain damage. Mr. Potter testified to the details of Blanton's difficult birth, including his diagnosis with an Apgar score of 1 (the lowest possible score) because he was oxygen deprived at birth. Mr. Potter also explained how Blanton's childhood injuries and abusive upbringing placed stress on Blanton that could cause brain damage. On cross-examination, Mr. Potter admitted that there was no hard evidence of organic brain damage, and that at fifteen days old Blanton had a normal Apgar score. He also admitted that antisocial personality disorder can cause many of the same behaviors as organic brain damage and that oxygen deprivation at birth does not necessarily result in organic brain damage.

The State called Dr. Sparks, psychiatrist and medical director of Bexar County jail. Dr. Sparks' testimony largely refuted Mr. Potter's; he focused on the lack of objective evidence showing Blanton's alleged organic brain damage. Dr. Sparks also testified that he was more qualified to diagnose organic brain disorder than Mr. Potter, because he was a medical doctor and Mr. Potter was not.

The state habeas court ultimately concluded that Blanton failed to establish either deficient performance or prejudice under Strickland, and the district court found this to be a reasonable conclusion under the AEDPA standard. As in the district court, under § 2254 Blanton must establish that the state habeas court reached an unreasonable conclusion as to trial counsel's decision to end the investigation and proceed with the evidence obtained up to that point. See Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. Blanton must also show that the state habeas court reached an unreasonable conclusion as to prejudice. We agree with the district court that Blanton has not established that the state habeas court was unreasonable on either prong.

As to deficient performance, we note that Blanton presented no evidence to suggest Dr. Schroeder was unqualified or that trial counsel had reason to question the results of the psychological examination she performed. Blanton also presented no evidence at state habeas to suggest how easily his childhood medical records could have been obtained by trial counsel. Habeas testimony by trial counsel showed counsel did recover some medical and social services records. Trial counsel also testified that he and the mitigation specialist attempted to obtain further medical records but could not do so because of difficulties arising from the records being held in a different state. Further, Blanton provided no evidence as to how his trial counsel could have reasonably uncovered Blanton's abuse of inhalants-no evidence produced at state habeas indicated that Blanton or any of his family members mentioned use of inhalants to Blanton's trial counsel. In fact, there is no record that Blanton mentioned inhalant abuse prior to his conviction. Nor has Blanton shown that his childhood medical records or trial counsel's interviews with Blanton's family provided information that would lead a reasonable attorney to investigate further any psychological disorder or brain damage. Blanton's trial counsel cannot be deficient for failing to investigate where no reasonable lead was available. See Wiggins, 539 U.S. at 527, 123 S.Ct. 2527.

Trial counsel knew that Blanton had suffered a difficult, oxygen-deprived birth. Trial counsel also knew of Blanton's troubled childhood, and that he had abused non-inhalant drugs. However, trial counsel also knew that Blanton was smart enough to obtain his GED, that he had been described by Dr. Schroeder as manipulative, and that Dr. Schroeder did not identify any likelihood of brain disorder. Finally, while Blanton's mitigation expert was effectively cross-examined by the prosecution, Blanton's trial counsel were the first to utilize a mitigation specialist for a Bexar County capital trial. While in hindsight, it is easy to say that trial counsel could have done more, we find the state habeas court reasonable in its conclusion that trial counsel performed reasonably based on the context and circumstances at the time of the representation. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (stating that courts must be careful to avoid hindsight bias in evaluating counsel's performance) .

We also hold that, based on the mitigation evidence produced in the state habeas proceeding, the state habeas court reached a reasonable conclusion as to prejudice. Blanton did not establish that Dr. Shroeder would have altered her diagnosis based on any of the evidence presented in the state habeas proceeding. The evidence of organic brain damage presented by Mr. Potter and Dr. Cox was persuasively rebutted by Dr. Sparks-so much so that the state habeas court reached a factual conclusion that Blanton did not suffer from organic brain damage. Blanton has not rebutted this conclusion with clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1). While we agree with Blanton that the medical records showing evidence of his childhood injuries and his abusive home life could have provided more detail to the jury at punishment, the substance of this mitigating evidence had already been presented through the testimony of the mitigation specialist and Mrs. Blanton. Moreover, the mitigating evidence presented by Blanton during the state habeas proceeding was not nearly as strong as that submitted by petitioners in recent cases in which the Supreme Court has found prejudice from trial counsel's failure to present mitigation evidence.FN1 Accordingly, we hold that the state habeas court reasonably applied Strickland in concluding that Blanton was not prejudiced.

FN1. In Rompilla v. Beard, the evidence which counsel failed to uncover and present-despite the fact that the prosecutors provided defense counsel with the file including the evidence-showed that: during Rompilla's childhood he was beaten by his father with fists, straps, belts and sticks; that Rompilla's father locked him and his brother in a wire mesh dog pen that was filthy and excrement-filled; and that Rompilla grew up in a home with no indoor plumbing and was not given proper clothing by his parents. 545 U.S. 374, 391-92, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).

In Wiggins, trial counsel failed to present evidence that Wiggins suffered consistent abuse during the first six years of his life. He also suffered “physical torment, sexual molestation, and repeated rape during his subsequent years in foster care.” Wiggins was homeless for portions of his life and was deemed to have diminished mental capacities. 539 U.S. at 535, 123 S.Ct. 2527.

In Williams, the state court failed to address the fact that Williams had turned himself in, expressed remorse for his actions, and cooperated with the police. 529 U.S. at 398, 120 S.Ct. 1495. Trial counsel failed to present evidence that Williams had been committed at age 11, and that documents prepared in connection with his commitment detailed dramatic mistreatment and abuse during his early childhood. The commitment documents also included testimony that he was “borderline mentally retarded,” had suffered numerous head injuries, and might have mental impairments organic in origin. 529 U.S. at 370-71, 120 S.Ct. 1495.

In each of these cases, trial counsel presented less mitigation evidence at trial than did Blanton's counsel. Further, the mitigation evidence that the attorneys failed to uncover was shocking and starkly different than that presented at trial. Blanton claims that his counsel should have put on new, different evidence of psychological damage and more detailed evidence of his difficult birth and childhood. Blanton's counsel had a psychological evaluation done, but the conclusion was not favorable. Blanton's counsel also presented evidence, albeit in general terms, of Blanton's difficult birth and childhood. As such, Blanton's claim of prejudice is dissimilar from those presented in Rompilla, Wiggins, or Williams. In sum, we agree with the district court that the state habeas court reasonably applied Strickland in denying Blanton's ineffective assistance claim regarding his trial counsel's investigation and presentation of punishment-phase mitigating evidence.

B

We granted COA on the issue of whether Blanton's trial counsel was ineffective in failing to properly preserve his Batson claim for appeal. Specifically, Blanton claims counsel was ineffective for failing to properly preserve objection to the prosecution's use of a jury shuffle and failing to preserve evidence concerning the discriminatory nature of the shuffle. Blanton contends that trial counsel should have immediately objected to the shuffle, which he argues was done to eliminate black jurors, and should have done more to preserve evidence of the shuffle in the record for appeal. FN2 In reviewing a claim alleging ineffective assistance of appellate counsel we apply the traditional Strickland standard, described in Part III, supra.

FN2. Blanton did not present a Batson claim in his federal habeas petition, and he does not present a Batson claim to this court. See Blanton v. Quarterman, 489 F.Supp.2d at 684 n. 95. According to Blanton's brief on appeal, he decided not to proceed with a Batson claim because the evidence and arguments necessary to make such a claim were not fully presented to the CCA on direct appeal. Blanton contends that the jury shuffle component of his argument was not exhausted, and therefore, that it would have been pointless to raise his Batson claim in federal habeas. We make no statement as to whether such a claim would in fact be exhausted. We provide the facts and analysis related to Blanton's Batson claim only to the extent necessary to measure the effectiveness of Blanton's counsel.

The state habeas court rejected Blanton's ineffective assistance of trial counsel claim regarding the jury shuffle, holding that Blanton had not shown deficient performance or prejudice. The district court found this conclusion reasonable under the AEDPA standard. The pertinent facts are as follows.

Five of the one hundred prospective jurors on Blanton's venire panel were African-American. In the original panel order, three African-American venire members were placed amongst the first twenty positions, and would almost certainly have been questioned during jury selection. The African-American venire members were in positions 2, 4, 20, 82, and 98. Before any questioning of the venire panel, the prosecution requested a jury shuffle. This procedure results in a random reshuffling of the panel members' positions. See Tex.Code Crim. Proc. art. 35.11. After the jury shuffle, the African-American venire members were in positions 64, 68, 76, 87, and 90. Blanton's trial counsel raised no objection at the time of the shuffle.

Later, when the prosecution exercised a peremptory strike of African-American venire member Michelle Johnson, Blanton's trial counsel objected based on Batson v. Kentucky. See 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that the Equal Protection Clause forbids prosecutors from challenging potential jurors solely on account of their race). The prosecutor responded with a race-neutral explanation for the peremptory strike involving Johnson's views on the death penalty and understanding of criminal law. FN3 Although trial counsel attempted to refute this explanation, the court overruled the objection as to Johnson.

FN3. For a detailed description of the prosecutor's race-neutral explanation, see Part III Section C, infra.

At this point, trial counsel lodged a second Batson challenge regarding Johnson and argued that the prosecution should be compelled to explain why they sought a jury shuffle. The trial court did not require the prosecution to explain the shuffle, and again overruled the Batson challenge. Trial counsel then asked the court to include pre-shuffle and post-shuffle evidence of the placement of the venire members, and to have the court provide a statistical analysis regarding this evidence. The court denied the request for a statistical analysis but granted the request to have the original order of the one hundred venire members included as part of the record.

Blanton's trial counsel also raised a Batson challenge to the prosecution's peremptory strike of Ann Henderson, which the trial court overruled based on the prosecution's race-neutral reasons. The third African-American venire member questioned was struck for cause.

In his state habeas petition, Blanton argued that trial counsel was ineffective for failing to object to the racially motivated jury shuffle when the shuffle actually occurred. He contended that Batson requires the trial court to consider all relevant circumstances when determining whether a defendant has made the requisite showing of purposeful discrimination. See Batson, 476 U.S. at 96, 106 S.Ct. 1712. Thus, Blanton's argument then and now is that counsel should have known the jury shuffle would be a relevant circumstance in a future Batson challenge if the State subsequently used race-based peremptory strikes against African-Americans. With that knowledge, counsel should have timely objected to the shuffle in order to preserve it to shore up a future Batson claim. Further, Blanton argues that trial counsel was ineffective for failing to ensure that the record contained adequate evidence to raise the issue of the discriminatory jury shuffle on appeal.

After an evidentiary hearing, the state habeas court found that Blanton's claims of ineffective assistance regarding the jury shuffle failed to satisfy either prong of the Strickland test, in part because at the time of Blanton's trial neither Texas nor federal law recognized any relationship between a jury shuffle and a Batson claim. The federal district court found the state habeas court's resolution of this claim to be a reasonable application of Strickland. Blanton v. Quarterman, 489 F.Supp.2d. at 690. Because Blanton has not shown that his trial counsel performed deficiently in violation of Strickland, we agree with the district court.

At the time of Blanton's 2001 trial, no case law indicated that Batson applied to an allegedly discriminatory jury shuffle. On the contrary, in Ladd v. State the Texas CCA refused to extend Batson to jury shuffles. 3 S.W.3d 547, 563 n. 9 (Tex.Crim.App.1999) (“[o]ne scholar has argued that, logically, Batson should extend to jury shuffles ... [w]e wish to make it clear, however, that we do not endorse such a view.”). Under Texas law, either side can call for a shuffle once prior to the start of voir dire. See Tex.Code Crim. Proc. art. 35.11; Chappell v. State, 850 S.W.2d 508, 511 (Tex.Crim.App.1993). The statute does not require the side requesting the shuffle to explain its reasons for doing so. As trial counsel testified at the state habeas hearing, he did not detect discrimination in the shuffle until the State peremptorily struck venire member Johnson, and at that point he made a Batson challenge raising the issue of the jury shuffle and its discriminatory effect on the jury selection process. The prosecutor testified that she requested the jury shuffle based not on race, but on the occupations of the venire members. Specifically, the prosecutor stated that she exercised jury shuffles in order to move teachers and social workers back and to move accountants, former military personnel, and law enforcement personnel forward. The state habeas court accepted the prosecutor's race-neutral justification for the jury shuffle.

We cannot find the state habeas court's conclusion that trial counsel's performance was not deficient to be an unreasonable application of the first prong of Strickland. Based on the law regarding jury shuffles and Batson challenges available to him at the time, it was reasonable for trial counsel to believe that the prosecution could request a jury shuffle without cause, and that a jury shuffle alone was not an adequate basis for a Batson challenge. Blanton has not presented evidence sufficient to overcome the presumption, required by Strickland, that trial counsel acted within the range of reasonableness by delaying a Batson challenge until a peremptory strike actually occurred. When the peremptory strikes against African-Americans did occur, counsel raised timely Batson challenges and attempted to support them by reference to what he then believed to be a racially-motivated jury shuffle. Far from being deficient, with this argument counsel actually anticipated what the Supreme Court would find two years later in Miller-El v. Cockrell: that a racially-motivated jury shuffle, along with other factors indicating intent to exclude African-Americans, can “raise a suspicion” of purposeful discrimination and rebut a prosecutor's race-neutral justification for a peremptory strike. See 537 U.S. 322, 346, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“Miller-El I”) (noting, however, that the jury shuffle alone “might not be denominated as a Batson claim because it does not involve a peremptory challenge”). Counsel attempted to persuade the court that the jury shuffle should be considered evidence rebutting a race-neutral explanation for the peremptory strikes, but the court disagreed. As such, we find that trial counsel was not deficient in raising the jury shuffle issue during Johnson's Batson challenge rather than at the time of the shuffle.

Further, trial counsel successfully preserved the Batson challenges for appeal, as indicated by the CCA ruling on these claims on the merits. See Blanton v. State, 2004 WL 3093219. He anticipated that raising the shuffle issue again on appeal would require evidence of the venire order, and he successfully petitioned the court to enter the original list into evidence. Although this apparently did not occur, for unknown reasons, Blanton fails to identify any facts showing it was objectively unreasonable for trial counsel to believe the court's order would be complied with. We accordingly conclude that trial counsel was not deficient in his preservation of evidence regarding the jury shuffle and Batson challenges for appeal.

In his brief following our granting COA on this issue, Blanton raises additional claims regarding trial counsel's failure to preserve the record.FN4 We agree with the district court that Blanton has failed to raise these specific claims in his federal habeas petition. See Blanton v. Quarterman, 489 F.Supp.2d. at 682 n. 93. Since Blanton did not raise these claims in the district court, we cannot consider them. See Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.2001) (finding that to the extent defendant did not raise a federal habeas claim in the district court, the court of appeals could not consider it).

FN4. Specifically, Blanton argues in his supplemental brief that trial counsel was ineffective for failing to preserve evidence of a discriminatory statement allegedly made by the prosecutor. He maintains that prior to voir dire, the prosecutor described a situation in another Bexar County trial where an African-American juror hung the jury. Further, he argues that trial counsel was ineffective for failing to preserve evidence of the fact that three out of the five total African-American venire members were seated in the first twenty of the venire panel. With regard to the first claim, it should be noted that at the state habeas hearing, the prosecutor testified unequivocally that she had never made such a statement and had no personal knowledge of any such situation ever occurring in Bexar County.

Accordingly, we agree with the district court that “[a]ny lack of success petitioner's Batson claims might have achieved on direct appeal cannot be laid at the feet of [Blanton's] trial counsel.” Blanton v. Quarterman, 489 F.Supp.2d at 688. Certainly, the clarification of the relationship between jury shuffles and Batson challenges in Miller-El I indicates to us now that an immediate objection to a suspect jury shuffle may help support a future Batson challenge. But to require such knowledge of an attorney before Miller-El I was decided would be a prime example of the “distorting effects of hindsight” that Strickland requires us to avoid. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052 . Considering the law at the time, trial counsel responded reasonably and even with foresight into the development of the law in attempting to use the jury shuffle to buttress his Batson challenges. As Blanton has not met his burden of showing both deficient performance and prejudice, we forgo discussion of the prejudice prong and hold that the state habeas court reasonably applied Strickland in denying Blanton's ineffective assistance claim.

C

The district court also granted COA on Blanton's claim that his counsel on direct appeal to the CCA provided ineffective assistance for failing to adequately present his Batson claim regarding venire member Michelle Johnson. Blanton specifically argues that his appellate counsel should have addressed the prosecution's use of a jury shuffle, which Blanton contends was done to eliminate African-American jurors. Blanton also argues that appellate counsel should have done more to ensure that the record included the information necessary to make such an argument.

The state habeas court rejected Blanton's ineffective assistance of appellate counsel claim, holding that Blanton had not shown deficient performance or prejudice. In reviewing a claim alleging ineffective assistance of appellate counsel, we again apply the traditional Strickland standard described in Part III, supra.

As described at Part III Section B above, Michelle Johnson was the first African-American juror peremptorily struck by the prosecution. Blanton's trial counsel raised a Batson challenge to this strike, and when asked for a race-neutral explanation the prosecution stated that Johnson: (1) suggested that the death penalty was against her religious beliefs; (2) appeared confused about the law regarding imposition of the death penalty; (3) stated that she believed that capital punishment was appropriate only for premeditated cases; and (4) testified she would “have to be convinced without any doubt whatsoever” in order to return a guilty verdict.FN5 Trial counsel responded that Johnson had received different questioning than other panel members, and that in response to re-examination by defense counsel she stated that she could accurately apply the law. The trial court overruled the objection as to Johnson. Then, trial counsel lodged a second Batson challenge regarding Johnson and argued that the prosecution must explain the reasons for requesting the jury shuffle. The trial court overruled the objection a second time and did not require an explanation for the jury shuffle. Trial counsel did, however, successfully petition the court to include the original order of the one hundred venire members in the record, although this did not occur for unknown reasons.

FN5. Johnson's jury questionnaire indicated some ambivalence regarding her ability to impose the death penalty. However, her questionnaire stated that she had no strong feelings one way or the other about the death penalty. Johnson's voir dire testimony indicated new sources of ambivalence-specifically with regards to her testimony that the death penalty was somewhat “against [her] religious beliefs” and that it was “really up to God, life and death.”

The state habeas court found that, on direct appeal, Blanton's appellate counsel also requested inclusion of the juror lists in the record.FN6 In her brief, appellate counsel raised a point of error asserting that the trial court erred in overruling Blanton's Batson objections to venire members Johnson and Henderson. Appellate counsel's brief argued that the prosecution's race-neutral justifications were not credible with respect to Johnson and Henderson. Appellate counsel attempted to undermine the prosecution's race-neutral justifications by arguing that the prosecution engaged in disparate questioning of these two black panel members, and that similarly-situated non-black venire members were not struck by the prosecution. Appellate counsel's brief also mentioned, in a footnote, the fact that Batson arguments logically could be extended to a Texas prosecutor's use of the jury shuffle mechanism. In Blanton's brief on appeal, appellate counsel did not make a specific argument that evidence of a racially discriminatory jury shuffle undermines the credibility of the prosecution's race-neutral justifications for striking individual jurors.

FN6. Blanton presents no evidence showing that this factual determination was erroneous.

Appellate counsel filed her brief with the CCA in December 2002. In February 2003, the Supreme Court issued its opinion in Miller-El I. In Miller-El I, the Supreme Court looked to the discriminatory use of a Texas jury shuffle, among other things, in analyzing the credibility of race-neutral reasons proffered by the prosecution for exercising peremptory strikes. Miller-El I, 537 U.S. at 346, 123 S.Ct. 1029.FN7 The CCA did not issue its decision prior to the Supreme Court's decision in Miller-El I. Nothing in the record suggests that Blanton's appellate counsel sought leave to file supplemental briefing to address Miller-El I, nor did appellate counsel mention the case in her motion for rehearing to the CCA. Throughout the course of the appeal, appellate counsel never made any argument regarding the discriminatory jury shuffle beyond the footnote in her original brief. Sixteen months after Miller-El I, in June 2004, the CCA affirmed the trial court's decision on the Batson challenges, finding that the record supported the race-neutral reasons given by the prosecution. See Blanton v. State, 2004 WL 3093219 at *10-*12. The CCA also reaffirmed its prior holding that a Batson challenge does not apply to the prosecution's request for a jury shuffle. See id. at *10 n. 17 (quoting Ladd, 3 S.W.3d at 575 n. 9). The CCA did not mention Miller-El I in its opinion.

FN7. Miller-El I dealt with Miller-El's Batson challenges at the COA stage. See Miller-El I, 537 U.S. at 348, 123 S.Ct. 1029. Eventually, in Miller-El II, Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196(2005), the Supreme Court decided that habeas relief should be granted to Miller-El based on the state's Batson violations during his original trial. See id. at 266, 125 S.Ct. 2317.

In his state habeas petition, Blanton argued that appellate counsel was ineffective in her presentation of his Batson claim because counsel should have raised the discriminatory nature of the jury shuffle. Blanton also argued that appellate counsel should have done more to preserve the Batson claims for review. Blanton posited that if the importance of the jury shuffle was not clear based on Batson alone, it certainly became clear when the Supreme Court decided Miller-El I. The state habeas court concluded that Blanton did not show appellate counsel to have performed deficiently. The state habeas court also concluded that Blanton was not prejudiced by appellate counsel's representation. The federal district court found the state habeas court's resolution of this claim to be a reasonable application of Strickland. Blanton v. Quarterman, 489 F.Supp.2d. at 709-10. For the following reasons, we agree with the district court.

We share the district court's concern over the fact that Blanton's appellate counsel never addressed Miller-El I in the sixteen months between when the Supreme Court issued the decision and the time the CCA decided Blanton's appeal. See Blanton v. Quarterman, 489 F.Supp.2d at 713. That being said, we pretermit consideration of appellate counsel's performance because we conclude that the state habeas court's conclusion as to prejudice was reasonable. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Henderson, 460 F.3d at 666 .

To evaluate the state habeas court's conclusion as to prejudice, we must attempt to predict the likelihood that the outcome on appeal would have changed if Blanton's appellate counsel had made the jury shuffle argument made at state habeas. In determining whether there is a reasonable probability that the CCA would reach a different conclusion, we keep in mind that the CCA's standard of review accords “great deference” to the trial court's rulings as to the credibility of a prosecutor's reasons for exercising a peremptory strike, and that the CCA overturns the trial court only if the ruling is clearly erroneous. See Howard v. Gramley, 225 F.3d 784, 790 (7th Cir.2000) (noting the importance of the appellate court's standard of review); Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App.2002) (explaining the clearly erroneous standard for review of Batson credibility determinations).

In rejecting Blanton's Batson claim on direct appeal, the CCA addressed a number of arguments regarding venire member Johnson. The CCA was not convinced by Blanton's arguments regarding the alleged disparate questioning of Johnson, or the supposedly similar non-black panelists whom the prosecution did not strike. The CCA determined that Johnson's questioning was sufficiently explained by suspect answers to earlier questions regarding the death penalty and questions regarding the State's burden of proof. The CCA also held that the eventual panel members who served on the jury were not similarly situated to Johnson because they gave different answers regarding premeditation. Blanton v. State, 2004 WL 3093219 at *10-11. Finally, the CCA recognized that “the fact that a prospective juror vacillates about her ability to choose the death penalty, despite personal beliefs, is a valid and neutral reason to strike that person.” Id. at *11. Because these arguments were found insufficient by the CCA in the first instance, Blanton's challenge is a limited one: his claim is that the addition of the jury shuffle argument would have a reasonable probability of tipping the scales in his favor on direct appeal. We note that in federal habeas, Blanton must go even further to show that the state habeas court was unreasonable in reaching a contrary conclusion.FN8

FN8. The district court was not as convinced that Johnson's disparate questioning was justified. See Blanton v. Quarterman, 489 F.Supp.2d at 703-04 & n. 133. The district court also questioned the CCA's casting Johnson as a “vacillating juror.” Id. at 713. We believe that the CCA's conclusions regarding Johnson's ambivalence towards the death penalty and her confusion regarding the State's burden of proof are supported by the voir dire record. However, we also feel it important to avoid too much second guessing of the conclusions already reached by the CCA. Such second guessing leads us into an actual Batson analysis, rather than analysis of the Strickland claim that is properly before us. Because Blanton has not raised a Batson claim in federal habeas, we focus instead on the arguments of which the CCA was deprived based on his appellate counsel's representation and whether those new arguments create a reasonable probability of a different outcome on direct appeal.

During the state habeas court's evidentiary hearing, Blanton's lead trial counsel and the lead prosecutor testified regarding the circumstances of the jury shuffle. Blanton presented the positions of the African-American venire members both before and after the allegedly discriminatory shuffle: three were positioned in the first twenty prior to the shuffle, after the shuffle the first African-American was at position 64. Based on the concentration of African-American panel members at the front, he argued there was a great likelihood that a shuffle would move them back in the order. The prosecutor testified that she requested the jury shuffle based not on race, but on the occupations of the venire members. The state habeas court accepted the prosecutor's race-neutral justification for the jury shuffle.

The district court questioned the prosecutor's race-neutral justification for the jury shuffle. In fact, the district court stated that it found “no correlation between the occupation based concerns voiced by the lead prosecutor ... and the composition of petitioner's initial venire panel.” Blanton v. Quarterman, 489 F.Supp.2d. at 704. In reaching this conclusion, the district court noted that “the teachers in petitioner's jury venire were spread out fairly evenly.” Id. at 704 n. 135. The district court's analysis does not include reference to the other occupation groups with which the prosecutor indicated concern. Taking into consideration the teachers, social workers, accountants, law enforcement personnel, and former military personnel on Blanton's original venire panel, our review of the record indicates that the prosecutor's stated justification for the jury shuffle finds some support in the record.FN9 We also note that the state habeas court judge presided over the voir dire in this case; in accepting the lead prosecutor's race-neutral justification, the judge reached a conclusion that reflected a positive credibility determination regarding the prosecutor's testimony. See Goodwin v. Johnson, 224 F.3d 450, 457 (5th Cir.2000) (indicating the high burden that a habeas petitioner faces in order for this court to reverse an initial fact-finder's credibility determination). We do not find that the record provides clear and convincing evidence to rebut the state habeas court's conclusion accepting the prosecutor's race-neutral justification for the jury shuffle. See 28 U.S.C. § 2254(e)(1).

FN9. A review of the juror questionnaires shows that the groups identified by the lead prosecutor were seated in the following positions in Blanton's original venire panel. Teachers, whom the prosecutor sought to move back, were at 3, 23, 31, 44, 53, 75, 98 (also military), and 100. There were no venire members who could be identified as social workers. In terms of the occupations the prosecutor sought to move forward, accountants were seated at positions 57 and 80. A local law enforcement worker was seated in position 81. Venire members with military service experience were scattered, but more heavily concentrated at the end of the original venire list, seated at positions, 2, 16, 32, 33, 35, 40, 61, 71, 77, 79, 80, 90, 93, 98 (also teacher), and 99. While these numbers might not provide the strongest support for the prosecutor's rationale, they also do not present clear and convincing evidence to undermine the state habeas court's acceptance of the prosecutor's justification.

In ruling on the likely effect of appellate counsel's representation, the state habeas court also recognized that the evidence of racial animus in Blanton's case was markedly different from Miller-El I. As such, the habeas court concluded that a jury shuffle argument along the lines of that presented in Miller-El I would not have provided relief to Blanton. FN10 We agree with the state habeas court that the evidence of race-based discrimination carried out by the prosecutors' office in Miller-El I is absent from this case. Blanton's argument for discrimination in the jury shuffle would have to arise from a disputed and vague statement allegedly made by the prosecutor, the concentration of black venire members at the front of the original panel, and the alleged pretext of the prosecutor's occupation-based reason; these elements do not rise to the level of intentional discrimination present in Miller-El I.

FN10. Unlike Blanton's case, in Miller-El I the venire members were not retained for more than one week. See Miller-El I, 537 U.S. at 334, 123 S.Ct. 1029. Therefore, venire members sent to the end of the line in Miller-El's case were less likely to be questioned than in Blanton's case. Further, in undermining the credibility of the prosecution's race-neutral reasons, Miller-El put forth startling evidence of the prosecution's pattern of racially motivated peremptory strikes, and long-standing office policy of racial discrimination in jury selection by the Dallas County prosecutor's office. See id. at 334-35, 123 S.Ct. 1029. Such evidence is lacking in this case.

The state habeas court accepted the prosecutor's race-neutral justification for the strike. This decision involved, at least in part, a credibility determination made by the state habeas court. See Goodwin, 224 F.3d at 457. In overruling Blanton's Batson objection to venire member Johnson in the first instance, the state trial court reached a positive finding regarding the credibility of the prosecutor's race-neutral reasons for striking Johnson. See Miller-El I, 537 U.S. at 340, 123 S.Ct. 1029 (“[T]he trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.”). As explained above, our review of the jury venire records do not present the clear and convincing evidence necessary to overturn the state habeas court's acceptance of this testimony. See 28 U.S.C. § 2254(e)(1). We also believe that the race-neutral justifications for striking venire member Johnson find support in the record. Finally, we know that the CCA's appellate review of Batson claims is limited to clear error. We recognize that the jury shuffle argument presented by Blanton at state habeas may have improved his chances of prevailing on direct appeal. However, merely improving his chances does not rise to the level required to show prejudice Blanton must show that had counsel acted differently, his case would have been reversed. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (finding that “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”). This he has not done.

Based on the factual and credibility findings made at the state trial and habeas proceedings, and the CCA's limited review of Batson claims on appeal, we find that the state habeas court reasonably concluded that Blanton suffered no prejudice as a result of his appellate counsel's failure to argue the jury shuffle component to his Batson claim, and accordingly agree with the district court's denial of habeas as to this issue.

IV

For the foregoing reasons, we AFFIRM the district court's denial of habeas corpus relief.

 

 

 
 
 
 
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