West v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 88-6108

ROBERT WALLACE WEST, JR.,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,

Respondent-Appellee.

Appeal from the United States District Court for the
Southern District of Texas

August 19, 1996
Before POLITZ, Chief Judge, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Robert Wallace West, Jr. (West) appeals the district court’s

denial of his petition under 28 U.S.C. § 2254 challenging his

February 1983 Texas conviction and death sentence for the August

1982 intentional murder of Deanna Klaus while in the course of

committing or attempting to commit burglary of her motel room,

contrary to Texas Penal Code § 19.03(a)(2). We previously granted

a certificate of probable cause. We now affirm.

Procedural Background

West’s conviction and sentence were affirmed on direct appeal

by the Texas Court of Criminal Appeals, West v. State, 720 S.W.2d
511 (Tex. Crim. App. 1986) (en banc), and the United States Supreme

Court denied certiorari. West v. Texas, 107 S.Ct. 2470 (1987).

West, represented by new counsel, filed state habeas proceedings.

The state trial court, the same judge who had presided at West’s

1983 trial, on August 25, 1987, entered findings and conclusions,

based on the record and affidavits of West’s trial and direct

appeal counsel, and recommended that the Court of Criminal Appeals

deny all relief. The latter court on August 31, 1987, denied

relief in a written order not stating reasons. West, through the

same counsel who represented him in the state habeas proceedings,

instituted the instant section 2254 proceedings in the district

court below. Several months after West’s counsel filed his amended

petition,1 the state filed its answer and motion for summary

judgment. West never replied to the motion and some ten weeks

after it was filed the magistrate judge issued a memorandum opinion

recommending that the state’s motion be granted. After being

granted several extensions, West filed an unverified “response to

magistrate’s memorandum and recommendation.”2 On review of the

1
The amended habeas petition states that it amends the
original petition “by deleting the same in its entirety and
substituting in lieu thereof the following.” The amended petition
asserts that the original petition had been “mistakenly filed.”
The amended petition is not verified (and is signed only by
counsel); it is supported by an affidavit of clinical psychologist
Brown concerning his July 1987 examination of West (and of certain
records pertaining to him), but by no other affidavit or similar
document.
2
This response was supported only by a copy of West’s
unverified motion for evidentiary hearing and for funds for expert
assistance filed in the state habeas proceedings and by a
transcript of certain of West’s counsel’s oral arguments or
statements to the state habeas court on August 25, 1987.

2
record, the magistrate judge’s memorandum, and West’s response, the

district court entered an order accepting the magistrate judge’s

memorandum and recommendation, granting the state’s motion for

summary judgment, and dismissing the petition. West filed a timely

notice of appeal.

Factual Background

The state’s evidence showed that the victim, Deanna Klaus,

lived alone in room 312 at the Memorial Park Motel in Houston,

Texas, and worked as a waitress at the motel’s restaurant.

Shortly after midnight on August 24, 1982, Vickie Stolz and

two other residents of the motel were sitting in the motel’s

breezeway and heard a commotion emanating from motel room 312. A

fourth companion shortly joined these three. A few minutes later,

West was observed exiting room 312; he walked within four to six

feet of Stolz and her companions, then turned and walked up a

flight of the motel’s stairs; the blue jeans he was wearing

appeared to be soaked with blood.3 Stolz and her companions then

looked into room 312, which was in total disarray, and observed the

nude body of Deanna Klaus, bloody and bound, lying face down on the

bed.

Police officers arrived on the scene shortly thereafter, and

one of the witnesses directed them to room 447 in the motel on the

floor above room 312. Room 447 was occupied by West and a male

transvestite companion, Gonzalo Tagle. The police asked both to

3
West was the only person seen to leave room 312; no one was
seen to enter.

3
step outside, and West was arrested when he did so. Tagle advised

that the room was his and gave permission to search. The police

observed a pair of wet, bloodstained blue jeans lying over a chair

in the room. Stolz and her companions identified West as the

individual they had observed leaving room 312.

Police officers promptly examined room 312. Detective Lott

testified that based on his examination of the door to room 312, in

his opinion it had been forced open. Officer Richardson testified

that the door “was separated from the seams as if broken into.”

There was other similar testimony. There was police officer

testimony that room 312 “was ransacked,” there was “stuff scattered

around the floor” and “drawers have been pulled out, dumped on the

floor.” Other testimony concerning the room was that there were

“items on the floor” and it appeared “like somebody went through

everything.”

The pathologist testified that Klaus’ wrists and ankles were

bound by cloth so tightly as to leave visible pressure grooves on

her; her mouth and nose were gagged with a towel tied by a cloth

binding that likewise left pressure grooves. Her head was covered

by a bloody sheet tied by a leather belt wrapped twice around her

neck. There was a stab wound in her neck and two on her left arm.

A six-inch piece of wood protruded two inches from her back, being

stuck four inches into her body. There was evidence of

strangulation by hand, reflected by her broken hyoid bone. Death

resulted from asphyxiation, caused by the belt and cloth ligatures

around the neck and mouth as well as by manual strangulation, in

4
combination with the wound from the stick penetrating four inches

into her chest cavity.

West, following repeated warnings as called for by Miranda v.

Arizona, 86 S.Ct. 1602 (1966), gave a full written confession to

the police in which he admitted killing Klaus. He said he forced

his way into her room, pushing the door open with his shoulder. He

disrobed Klaus, tied her up, and gagged her and put a belt around

her neck. He thereafter beat her in the face with a “club” he

found in the room; it broke, and he stabbed her with it. He hit

her with a bottle, which broke, and then “gigged her in the neck

with it.” Then, “[w]hen I got up she was still making noises, she

was still alive. I knew that since I went that far that I couldn’t

leave her like that. I grabbed the sheet and wrapped it around her

neck and I strangled her. I pulled it until she didn’t move

anymore.” West further stated that he took a gold necklace that he

saw in her room, and when he returned to room 447 put the necklace

in Tagle’s purse. West said that when he left room 312 “the door

was hard to open because of when I had broke in” and “[t]here were

two dudes and a girl outside when I came out and went to my room”

and “I had blood all over me.”

At the punishment stage of the trial, previously redacted

portions of West’s confession were admitted in evidence. This

portion of the confession reflected that West and Tagle——a “drag

queen” female impersonator who used the first name Roxanne——had

begun living together in Houston in April 1982. Roxanne had a job,

and Roxanne and West “also made money by hustling tricks in the

5
Montrose area of town.” One evening in May they went to the

Montrose area “to make money any way we could.” Roxanne attracted

a “trick”——whom West stated later turned out to be one William

Longfellow whom West understood worked as a security guard——and West

asked Roxanne “if she wanted me to roll him and she said yes.”

West and Roxanne devised a plan whereby Longfellow would give West,

as well as Roxanne, a ride home in Longfellow’s car and “I would do

the rolling.” In the Montrose area, in front of the Chicken Coop

Bar there, Longfellow, at the requests of Roxanne and West, agreed

to give West a ride to his apartment, and all three got in the

front seat of Longfellow’s red Mercury Zephyr and drove to the

general vicinity of the apartments on Sage Street where Roxanne and

West lived. Then Longfellow, at Roxanne’s request, stopped and let

Roxanne out to urinate, and Longfellow followed her. West followed

both of them. As they walked back to the car, West was behind

Longfellow. West’s confession goes on to state:

“. . . I pulled out my knife and grabbed him by his hair
and lifted him up off the ground and I stabbed him in the
jugler vain [sic]. I stabbed him about six or seven
times. As I was stabbing him I asked him where his money
was. He told me that his money was in the trunk of his
car. After he told me where his money was at I hit his
head up against a tree and left him for dead. He wasn’t
moving and he wasn’t saying anything and there was a lot
of blood and I had blood all over my hands. I thought he
was dead.

As soon as I grabbed the guy and started stabbing him,
Roxanne ran from there and ran to the apartments. The
apartments are about two blocks away. After I stabbed
him I got into his car and drove back to the apartments
on Sage. I parked the car behind the WINDSOR PLAZA
SHOPPING CENTER. I opened the trunk of the car and I
found the guys money in a brown paper bag. I got the
money and went to the apartment. . . .

6
 I thought I had killed the guy so the next morning we
checked the newspapers to see if there was a story about
him being found. We never seen nothing about the man
being found. After a few weeks we just forgot about it.
A couple of weeks later ROXANNE called me from the jail
and she told me that she had been busted for
prostitution. I went to the police station and found out
that there was a hold on her for the stabbing. That’s
when I found out that the man wasn’t dead. . . .

Roxanne was in jail for about two weeks and she tried to
call me several times but I was never there. . . . When
Roxanne got out she told me that she had given Brett’s
name as her lover and the police let her go. . . .

A couple of weeks after Roxanne got out of jail we drove
to McALLEN, TEXAS to her fathers ranch. . . .”

This portion of the confession also reflects that West and Tagle

had returned to Houston and checked into the Memorial Park Motel on

August 21.4

4
There were still other redacted parts of West’s confession
that were never put before the jury or offered in evidence, by
either side at either the guilt-innocence stage or the punishment
stage. These portions reflect that while Roxanne was in jail, West
and “a friend,” Brett Barstow, and Barstow’s homosexual lover
“Stephanie,” stayed at Roxanne’s apartment. Roxanne told West
“she” had called from the jail and, West being out, spoke to Brett,
telling Brett the police were looking for “her” “lover” in
connection with the Longfellow stabbing; Roxanne told West that, at
Brett’s suggestion, Roxanne had given the police Brett’s name as
“her” “lover.” While Roxanne and West were in McAllen, a mutual
friend called and advised that Brett had been killed “over drugs”;
West did not believe the “over drugs” explanation as he had known
Brett since he met him hitchhiking in Kentucky in 1979, and Brett
“could get money any time he wanted.” When he returned to Houston,
West was told by a Montrose area drug dealer that a “drag queen”
had told the drug dealer that several weeks previously (which would
be about a week before Brett’s death) “Longfellow was wanting to
put out some money to find out who Roxanne’s lover was.” West also
saw the victim, Deanna Klaus, whom he eventually recognized as
someone he had known in Florida, talking to Longfellow; later,
another “drag queen”told West that Brett “had been seen all over
with” Klaus. West saw Deanna at the motel restaurant the morning
of the killing, and stated that he went to her room that night to
question her about Brett’s death. After tying her up——and having
voluntary sex with her [although Klaus’ body was found nude, the
autopsy revealed no evidence of sexual intercourse]——Klaus

7
 William Longfellow, a private security officer, testified at

the punishment phase. His testimony related the May 15, 1982,

brutal attack on him by West described in West’s confession,

including taking Roxanne (Tagle) and West in his red Mercury Zephyr

from the Chicken Coop Bar to an area near Sage Street, all three in

the front seat, where they stopped so Roxanne could urinate, and

West coming up behind Longfellow and knocking him down, slashing

his throat with a knife several times. Longfellow told West his

money was in a paper sack in the trunk of his car. West hit

Longfellow’s head several times against a tree stump, wound a roll

of white cloth or gauze around his head and mouth several times,

and held his head under water in a ditch. He took Longfellow’s car

keys and driver’s license and other identification papers. After

West and Tagle left, Longfellow managed to get help. He was taken

to a hospital, underwent five and a half hours of surgery, and

remained hospitalized for eight days.5

eventually admitted to West that she had identified Brett to
Longfellow. West stated “I blew up when she said that.”
This redacted portion of West’s confession also states that
Roxanne “knew that I was going down to Deanna’s room to kill her.
I had told her that I was.”
As outlined in the text, infra, Longfellow testified at the
punishment phase. There is no suggestion anywhere in the record
that he knew Deanna Klaus, or Brett Barstow, or had made any
attempt to find out who Roxanne’s “lover” was.
5
Longfellow identified Tagle in court as Roxanne, but was not
asked to make any identification of West before the jury.
Longfellow had bad eyesight. He described his attacker as the male
to whom he gave a ride in his car with Roxanne at Roxanne’s
request, and as being white, “approximately” five foot ten inches
tall, and having long brown hair, a description fitting West (who
is white and five foot nine inches tall). On voir dire by defense
counsel, Longfellow had said that he “believed” he saw his
assailant in the courtroom, but “I’m not a hundred percent

8
 The state also introduced documentary evidence of West’s 1981

Florida conviction for felony grand theft.

West introduced no evidence at the guilt-innocence or

punishment stages of the trial. The main thrust of the defense, at

trial and on direct appeal, was to attack the admissibility of

West’s confession, as being the result of a warrantless arrest that

was illegal under article 14.04 of the Texas Code of Criminal

Procedure,6 and as having been taken in violation of his Miranda

rights and his rights under the Fifth and Fourteenth Amendments and

analogous provisions of Texas law. The state trial court held a

Jackson v. Denno, 84 S.Ct. 1774 (1964), hearing out of the jury’s

presence on the admissibility of the confession and found it

admissible, and also instructed the jury not to consider the

confession if it were not found to have been given freely and

voluntarily after proper warnings.7

certain.” Of course, West’s confession——the many details of which
so closely matched Longfellow’s testimony (e.g., Roxanne, Chicken
Coop Bar, red Mercury Zephyr, all three in front seat,
etc.)——renders it clear beyond doubt that West was Longfellow’s
assailant, a matter that at no stage of these proceedings has ever
been questioned.
6
Article 14.04 provides “Where it is shown by satisfactory
proof to a peace officer, upon the representation of a credible
person, that a felony has been committed, and that the offender is
about to escape, so that there is no time to procure a warrant,
such peace officer may, without warrant, pursue and arrest the
accused.” On West’s direct appeal, two of the Texas Court of
Criminal Appeals judges dissented from affirmance, agreeing with
West’s argument based on article 14.04. West, 720 S.W.2d at 520-
523. West also contended on direct appeal his arrest was without
probable cause.
7
The defense further contended, at trial and on direct appeal,
that the Florida conviction was inadmissible because the “pen pack”
by which it was proved did not affirmatively show West (convicted

9
 Discussion

We turn now to the issues raised by West on this appeal.

I. Sufficiency of the Evidence and Related Ineffective Assistance
of Counsel

West contends that the evidence is insufficient to support his

capital murder conviction. His argument is that his confession as

to the theft of the necklace was not corroborated, so accordingly

there was no proof of the underlying felony of burglary that made

the murder in question capital murder under Texas Penal Code §

19.03(a)(2).8 We reject this contention.

on his “nolo contendere” plea) had waived or been informed of his
right to a jury trial, and that certain jurors had been excluded
contrary to Witherspoon v. Illinois, 88 S.Ct. 1770 (1968). It was
further claimed at trial and on direct appeal that the evidence,
particularly if the confession were excluded, did not support the
jury’s affirmative answer to the second punishment special issue
concerning future dangerousness.
8
Section 19.03(a)(2), defining “capital murder,” as then in
effect provided:

“(a) A person commits an offense if he commits murder as
defined under Section 19.02(a)(1) of this code and:

(1) . . . ;

(2) the person intentionally commits the
murder in the course of committing or
attempting to commit kidnaping, burglary,
robbery, aggravated rape, or arson;

(3) . . . .”

Texas Penal Code § 19.02(a)(1), defining “murder,” as then in
effect provided:

“(a) A person commits an offense if he:

(1) intentionally or knowingly causes the
death of an individual;

(2) . . . .”

10
 Habeas relief under section 2254 on a claim of insufficient

evidence is appropriate only “if it is found that upon the record

evidence adduced at the trial no rational trier of fact could have

found proof of guilt beyond a reasonable doubt.” Jackson v.

Virginia, 99 S.Ct. 2781, 2791-92 (1979). Even if we were to accept

West’s premise that proof of theft was necessary to establish that

the murder was committed “in the course of committing or attempting

to commit . . . burglary,”9 it is evident to us that, based on all

the circumstances taken together with West’s confession, a rational

trier of fact could have found theft proved beyond reasonable

doubt. West’s confession was amply corroborated, and there was no

evidence the theft did not occur.

West relies on the “Corpus Delicti” rule. However, he cites

no authority for the proposition that application of that rule is

Texas Penal Code § 30.02(a) as then in effect defined burglary
as follows:

Ҥ 30.02. Burglary

(a) A person commits an offense if, without the
effective consent of the owner, he:

(1) enters a habitation, or a building (or any
portion of a building) not then open to the
public, with intent to commit a felony or
theft; or

(2) remains concealed, with intent to commit a
felony or theft, in a building or habitation;
or

(3) enters a building or habitation and
commits or attempts to commit a felony or
theft.”
9
And, we do not accept that premise, for the reasons stated in
the text infra.

11
constitutionally mandated in a Jackson v. Virginia analysis,

particularly as to an underlying felony in a felony murder or

capital murder context.10 In any event, this Court, relying on,

among other decisions, Smith v. United States, 75 S.Ct. 194 (1954),

and Opper v. United States, 75 S.Ct. 158 (1954), long ago held that

“corroborative evidence need not be sufficient, independent of a

confession or admission of an accused, to establish all elements of

a crime allegedly committed. Indeed, the Government fulfills its

duty when it introduces substantial independent evidence which

tends to establish the trustworthiness of an accused’s admissions.”

United States v. Seckler, 431 F.2d 642, 643 (5th Cir. 1970). See

also id. at 644 n.2; United States v. Abigando, 439 F.2d 827, 833

(5th Cir. 1971) (“a confession can be corroborated by bolstering

parts of it to show trustworthiness. Some elements can be proved

by the confession alone”; footnote omitted); United States v.

Gresham, 585 F.2d 103, 107 (5th Cir. 1978) (same). Here it is

plain that West’s confession was adequately corroborated——by

evidence aliunde the confession——by bolstering parts of it to show

its trustworthiness, and that the theft “element” of burglary could

be adequately proved by the confession itself. West contends, at

10
For example, several state courts of last resort have held
that in a felony murder prosecution, the corpus delicti rule does
not require that there be corroboration (apart from the confession)
of the portions of the confession establishing the predicate
felony. See, e.g., Gentry v. State, 416 So.2d 650, 652-53 (Miss.
1982); People v. Daley, 47 N.Y.2d 916, 393 N.E.2d 479 (N.Y. 1979);
People v. Davis, 46 N.Y.2d 780, 386 N.E.2d 823 (N.Y. 1978);
Harrison v. State, 269 Ind. 677, 382 N.E.2d 920, 924-925 (Ind.
1978); People v. Cantrell, 8 Cal.3d 672, 504 P.2d 1256, 1261-1262
(Cal. 1973).

12
least implicitly, that the corroboration rule in Texas is

otherwise. However, as we held in Schrader v. Whitley, 904 F.2d

282, 284 (5th Cir.), cert. denied, 111 S.Ct. 265 (1990), “in

challenges to state convictions under 28 U.S.C. § 2254, only

Jackson [v. Virginia] need be satisfied, even if state law would

impose a more demanding standard of proof.” Accord Pemberton v.

Collins, 991 F.2d 1218, 1227 (5th Cir. 1993); Jones v. Butler, 864

F.2d 348, 361 (5th Cir. 1988), cert. denied, 109 S.Ct. 2090 (1989);

Llewellyn v. Stynchombe, 609 F.2d 194, 196 (5th Cir. 1980). See

also White v. Estelle, 669 F.2d 973, 978-79 (5th Cir. 1982).

West also claims ineffective assistance of counsel on the

basis, inter alia, of counsel’s failure to raise the issue of

alleged evidential insufficiency on direct appeal. For this

purpose, the applicable state law standard is relevant. See Summit

v. Blackburn, 795 F.2d 1237, 1244-45 (5th Cir. 1986).

We accordingly turn to Texas law. The most relevant authority

at the time of West’s trial and appeal was reviewed in Wooldridge

v. State, 653 S.W.2d 811 (Tex. Crim. App. 1983), where the Court of

Criminal Appeals affirmed a conviction for capital murder committed

in the course of aggravated rape. Apart from the appellant’s

confession, there was no evidence that the victim had been sexually

molested, although there was ample corroboration of other parts of

the confession. In rejecting appellant’s corpus delicti argument,

the Court of Criminal Appeals wrote:

“It is well settled that if there is some evidence
corroborative of a confession, the confession may be used
to establish the ‘corpus delecti [sic].’ White v. State,
591 S.W.2d 851 (Tex. Cr. App. 1979); Thomas v. State, 108

13
 Tex. Cr. R. 131, 299 S.W. 408 (Tex. Cr. App. 1927). In
White, supra, the appellant admitted he participated in
murders which occurred during the course of robbery. No
independent evidence established a robbery had been
committed. The Court held the confession was
sufficiently corroborated by circumstances which
coincided with details of the confession.

In Thomas, supra, it was stated:

‘A confession is sufficient, if there be such
extrinsic corroborative circumstances as will,
taken in connection with the confession,
produce conviction of the defendant’s guilt in
the minds of the jury beyond a reasonable
doubt. Such suppletory evidence need not be
conclusive in its character. When a
confession is made, and the circumstances
therein related correspond in some points with
those proven to have existed, this may be
evidence sufficient to satisfy a jury in
rendering a verdict asserting the guilt of the
accused. Full proof of the body of the crime,
the corpus delecti [sic], independently of the
confession is not required by any of the
cases. . . . [citations omitted].’

299 S.W. at 410.

Viewed in a light most favorable to the verdict, the
evidence is ample to support it.” Id. at 816-817
(emphasis added).

Under Wooldridge and White v. State, 591 S.W.2d 851 (Tex. Crim.

App. 1979), it is clear that the evidence of theft here is

sufficient.11 Accordingly, the failure to argue the sufficiency

of the evidence in this respect was not prejudicial and did not

amount to constitutionally defective performance by counsel.

Several years after West’s conviction was affirmed, the Court

of Criminal Appeals handed down Gribble v. State, 808 S.W.2d 65

11
Cf. Anderson v. State, 717 S.W.2d 622, 631 (Tex. Crim. App.
1986) (“the testimony of an accomplice witness in a capital murder
need not be corroborated on the element which elevated the murder
to capital murder”).

14
(Tex. Crim. App. 1990), cert. denied, 111 S.Ct. 2856 (1991). The

Court held the appellant was properly convicted for capital murder

under § 19.03(a)(2) by murdering the victim in the course of

kidnaping her, and rejected his twelfth point of error contending

that the evidence was insufficient because, apart from his

confession, there was insufficient evidence the victim had been

kidnaped. Id. at 69-74 (the Court held, however, that a Penry v.

Lynaugh, 109 S.Ct. 2934 (1989) error at the punishment stage

mandated reversal of the conviction and sentence, id. at 75-76).

There was no majority opinion. The opinion announcing the result in

Gribble was written by Judge Teague and concurred in by two other

judges.12 Although Judge Teague’s Gribble opinion states that

“evidence independent of appellant’s confession was required to

show that his victim had been kidnaped”, id. at 71 (emphasis

omitted), it goes on to say that “[s]o long as there is some

evidence which renders the corpus delicti more probable than it

would be without the evidence, we believe that the essential

purposes of the rule have been served”, id. at 72 [citing Woolridge

and White], and “the evidence required for corroboration of an

extrajudicial confession need only render the corpus delicti more

probable than it would be without the evidence”, id. at 73

(emphasis omitted). For this limited purpose, “circumstances . .

. ambiguous in some respects and far from adequate to support the

12
Three judges dissented without opinion; one judge concurred
in the result without opinion; the remaining two judges stated,
without elaboration, that “in the treatment of appellant’s point of
error # 12, they concur in the result only”. Id. at 76.

15
conclusions they imply” provided the requisite corroboration. Id.

These aspects of Jude Teague’s Gribble opinion were confirmed in

Emery v. State, 881 S.W.2d 702 (Tex. Crim. App. 1994), where the

court sustained a conviction for capital murder committed in the

course of a burglary, rejecting the contention that there was

insufficient evidence aliunde the appellant’s confession to show

there had been a burglary. In Emery there was “no sign of a forced

entry or of anything missing from the apartment” the victim shared

with a roommate and where her body, with its multiple stab wounds,

was found. Id. at 704. In support of its affirmance, Emery noted

that evidence aliunde the confession “need not be sufficient by

itself to prove the [predicate] offense; it need only be ‘some

evidence which renders the corpus delicti more probable than it

would be without the evidence.’” Id. at 705 (quoting Gribble).

Under this Gribble-Emery test there is sufficient

corroboration here: the evidence of forced entry in the middle of

the night into a single woman’s room which was then ransacked, with

drawers pulled out and dumped on the floor, appearing as if

somebody went through everything, certainly makes theft more

probable than it would be without such evidence.13

Since the Gribble-Emery test was met in respect to theft,

13
We note that Texas courts have long been willing to infer
burglary from circumstantial evidence of forced night time entry
into another’s habitation. See Alvarado v. State, 596 S.W.2d 904,
906 (Tex. Crim. App. 1980)(evidence showing only that defendant
forcibly entered another’s habitation at night supports burglary
conviction). See also, e.g., Ellis v. State, 726 S.W.2d 39, 40-41
(Tex. Crim. App. 1986); Mauldin v. State, 628 S.W.2d 793, 795 (Tex.
Crim. App. 1982); Garcia v. State, 502 S.W.2d 718 (Tex. Crim. App.
1973).

16
counsel’s failure to argue insufficiency of the evidence on appeal

was neither defective performance nor prejudicial. But, even were

the evidence insufficient in this respect under Gribble-Emery, we

could not find that failure to raise that issue constituted

defective performance, given that the evidence was clearly

sufficient under the then current Texas case law exemplified by

White v. Scott and Woolridge. Counsel was not bound to foresee

Gribble, much less Emery. Counsel is not obligated to urge on

appeal every nonfrivolous issue that might be raised (not even

those requested by defendant). Jones v. Barnes, 103 S.Ct. 3308,

3313-14 (1983); Smith v. Murray, 106 S.Ct. 2661, 2667 (1986); Mayo

v. Lynaugh, 882 F.2d 134, 139 (5th Cir. 1989), modified on other

gr’ds, 893 F.2d 683 (5th Cir. 1990); Wicker v. McCotter, 783 F.2d

487, 497 (5th Cir.), cert. denied, 106 S.Ct. 3310 (1986). Nor is

counsel obligated to anticipate changes in state appellate court

rulings. Smith v. Murray, 106 S.Ct. at 2667. Review of the record

and of counsel’s Court of Criminal Appeals brief demonstrate a

sound grasp of the case and reflect wholly competent and adequate

representation.14

14
We again observe that the Court of Criminal Appeals’
affirmance was over three dissents, one without opinion and two on
the basis of counsel’s arguments concerning article 14.04.
Appellate counsel’s affidavit, which in these respects has never
been controverted, explains that in preparing the brief he reviewed
and outlined the entire record and he specifically reviewed the
evidence with respect to whether or not West’s confession was
sufficiently corroborated by other evidence and concluded that it
was both as to his commission of the murder and of the underlying
offense of burglary, mentioning the evidence in detail, including
“the evidence showed that the entry occurred at night (Texas law
permits an inference of intent to commit theft in a nonconsensual
night time entry into a habitation), the apartment was described as

17
 Our discussion of the sufficiency of the evidence——and of the

related ineffective assistance of appellate counsel claim——has thus

far proceeded on the arguendo assumption that proof of theft was

necessary for proof of burglary and hence for capital murder.

Actually, that is not so. Under section 30.02 of the Texas Penal

Code burglary includes nonconsensual entry of a habitation either

“with intent to commit a felony or theft,” or if the accused after

such entry “commits or attempts to commit a felony or theft”

(emphasis added). See note 8, supra. Here, not only theft, but

attempted theft and also entry with intent to commit theft, would

have been burglary. Moreover, burglary would be made out by murder

after the nonconsensual entry, as indisputably occurred here. The

indictment here charged that West did “while in the course of

committing and attempting to commit burglary of a habitation owned

by DEANN KLAUS, intentionally cause the death of DEANN KLAUS” by

being in disarray, and drawers had been pulled out and dumped on
the floor,” “it appeared . . . that some one had ‘went through
everything,’” and testimony as to the condition of the door
indicated forced entry. Having so concluded, he decided not to
raise any issue in that respect, as he felt it would not be
successful and “would detract from the potential merit of some of
the other issues I chose to raise on appeal”; some of which, “in
particular the issues attacking the admissibility of the
confession” he felt “had significant merit and might well result in
reversal” and accordingly he deemed “that it was advisable not to
clutter the brief” with nonmeritorious arguments “which might
obscure the issues in the brief which actually had merit.” There
is no reason not to credit this uncontroverted explanation.
We further note that counsel had been in practice more than
ten years, had been an assistant district attorney for nine years,
three of which as Chief of the Appellate Division of the Harris
County District Attorney’s Office, and had personally prepared or
supervised preparation of the appellate brief “in dozens of capital
murder trials.” He was assisted on appeal by lead trial counsel.

18
hitting, stabbing and strangling her.15 The jury instructions here

likewise allowed a finding of burglary on any of the theories

authorized by section 30.02, including the commission of murder

after unlawful entry into the room.16 The Texas Court of Criminal

15
West argues that the indictment is void under Texas law
because it does not allege the particular elements of burglary, but
simply alleges “burglary of a habitation.” He also seems to urge
that the indictment provides insufficient notice under the Sixth
Amendment.
We decline to reverse on either of these claims because
neither was ever in any way raised in the district court below.
Moreover, even if we addressed these claims we would find them
without merit. Texas law is settled that an indictment under §
19.03(a)(2), see note 8 supra, need not allege the particular
elements of the underlying felony, but that it suffices to name the
felony, i.e. “robbery,” “burglary,” “arson,” etc. See Beathard v.
State, 767 S.W.2d 423, 431 (indictment not insufficient “because it
failed to allege the elements of the burglary which was used to
bring this murder under § 19.03 . . . this Court has repeatedly
held that an indictment need not allege the constituent elements of
the aggravating feature which elevates a murder to capital
murder”); Ramirez v. State, 815 S.W.2d 636, 640, 642 (Tex. Crim.
App. 1991)(murder in the course of burglary); Trevino v. State, 815
S.W.2d 592, 619 (Tex. Crim. App. 1991)(murder in the course of
rape, robbery, and burglary), rev’d on other grds, Trevino v.
Texas, 112 S.Ct. 1547 (1992). Moreover we think the indictment
gives ample notice.
16
The charge included the following:

“ 1.
A person commits the offense of capital murder if he
intentionally causes the death of an individual in the course
of committing or attempting to commit burglary.

2.
So that you may better understand the nature of the
offense with which the defendant is charged, I now define
certain terms and words.
. . .

‘Habitation’ means a structure . . . that is adapted for
the overnight accommodation of persons, and includes: each
separately secured or occupied portion of the structure . . .
‘Building’ means, . . .
A person commits ‘burglary’ if, without the effective
consent of the owner, he: enters a habitation, or a building

19
 (or any portion of a building) not then open to the public,
with intent to commit a felony or theft; or remains concealed,
with intent to commit a felony or theft, in a building or
habitation; or enters a building or habitation and commits or
attempts to commit a felony or theft.
‘Enter’ means . . .
‘Effective Consent’ includes consent by a person legally
authorized to act for the owner. Consent is not effective if:
induced by force, threat, or fraud; . . .
‘Felony’ means an offense so designated by law or
punishable by death or confinement in a penitentiary.
‘Attempt’ means to commit an act with specific intent to
commit an offense where the act committed amounts to more than
mere preparation that tends but fails to effect the commission
of the offense intended.
A person commits ‘theft’ if he unlawfully appropriates
property with the intent to deprive the owner of the property.
Appropriation of property is unlawful if: it is without the
owner’s effective consent . . .
‘Owner’ means a person who has title to the property,
possession of the property, whether lawful or not, or a
greater right to possession of the property than the actor.
‘Appropriate’ means . . . to acquire or otherwise
exercise control over property . . .
‘Property’ means: . . .
‘Deprive’ means: . . .
‘Possession’ means . . .
A person commits the offense of murder if he
intentionally causes the death of an individual.

3.
Now therefore, if you find from the evidence beyond a
reasonable doubt that the Defendant, Robert Wallace West, Jr.
on or about August 24, 1982, in Harris County, Texas, did
while in the course of committing or attempting to commit
burglary of a habitation owned by Deanna Klaus, intentionally
cause the death of Deanna Klaus by strangling Deanna Klaus
with his hands, or by strangling Deanna Klaus with a belt, or
by strangling Deanna Klaus with a sheet, or by suffocating
Deanna Klaus with a hand towel, or by stabbing Deanna Klaus
with a piece of wood, you will find the defendant guilty of
capital murder.
If you do not so believe, or if you have a reasonable
doubt thereof, you will find the defendant not guilty of
capital murder”

In the next paragraph (“4") of the charge, the court instructed on
the lesser included offense of murder.

There was no objection to the charge on the ground that it

20
Appeals has several times upheld capital murder convictions on the

basis of a burglary where the burglary was established by the

murder of the victim following unlawful entry into his or her

habitation. Fearance v. State, 771 S.W.2d 486, 492-494 (Tex. Crim.

App. 1988), cert. denied, 109 S.Ct. 3266 (1989); Beathard v. State,

767 S.W.2d 423, 427 & n.6, 431 (Tex. Crim. App. 1989)(under

general burglary allegation); Matamoros v. State, 901 S.W.2d 470,

473, 474 (Tex. Crim. App. 1995)(under general burglary allegation).

The evidence here is plainly sufficient to show burglary by West’s

forced entry into the victim’s room followed by his murder of her

therein.17 Accordingly, for this reason also, West’s claim of

allowed burglary (or attempted burglary) to be found on a basis
other than committing theft after entry (or on the ground that it
did not require the jury to be unanimous as to which particular
method of committing burglary was proved), cf. Schad v. Arizona,
111 S.Ct. 2491 (1991); Griffin v. United States, 112 S.Ct. 466
(1991), or on the ground that any of the methods of committing
burglary as mentioned in the charge were not adequately defined or
explained. Nor was any such complaint respecting the charge ever
raised at any time in the state courts or in the district court
below. Accordingly, any such complaints made for the first time on
this appeal will not be considered.
17
West argues that using the murder to establish an element of
the burglary would render his capital sentence invalid because
section 19.03(a)(2) would not then adequately narrow the class of
murders eligible for the death penalty. This particular
contention, however, was not raised below (or in the state courts)
and hence does not afford a basis for reversal. Even if we were to
reach it, however, we could not sustain it, as we have held that
the identical claim of John Fearance, Jr., whose conviction became
final well after West’s conviction became final, see Fearance v.
State, 771 S.W.2d 486 (Tex. Crim. App. 1988), cert. denied, 109
S.Ct. 3266 (1989), was barred by Teague v. Lane, 109 S.Ct. 1060
(1989), because not all reasonable jurists would then have deemed
themselves compelled to accept that claim. Fearance v. Scott, No.
94-10686 (5th Circuit, March 21, 1995) (unpublished). Moreover,
this same contention was presented to and rejected by the Court of
Criminal Appeals in Fearance v. State, supra. We also note that
the “Practice Commentary” to the 1973 Texas Penal Code by Searcy

21
insufficiency of the evidence and his related claim of ineffective

assistance of counsel for failure to argue otherwise are both

without merit.18

and Patterson——a work published in Vernon’s Annotated Texas Penal
Code with the 1973 Penal Code volumes and frequently cited by the
Texas Court of Criminal Appeals (see, e.g., Hogue v. State, 711
S.W.2d 9, 13 (Tex. Crim. App. 1986), cert. denied, 107 S.Ct. 329
(1986))——observes concerning section 30.02: “A separate burglary
offense, however, does perform an important criminological function
in addition to its trespassory and attempt functions: it protects
against intrusion in places where people, because of the special
nature of the place, expect to be free from intrusion. The
provision of this protection is the rationale underlying Section
30.02." Certainly this “important criminological function” would
appear to rationally justify special treatment for murders
committed in the course of such a nonconsensual intrusion into
another’s habitation. See also Lowenfield v. Phelps, 108 S.Ct. 546
(1988); Perry v. Lockhart, 871 F.2d 1384 (8th Cir.), cert. denied,
493 U.S. 959 (1989). And, further narrowing is provided by the
sentencing special issues.
18
The state argues, as it did below (and in the state habeas
proceeding), that West’s claim of insufficiency of the evidence is
barred under the procedural default doctrine by his failure to
raise it on direct appeal. The state habeas trial court expressly
found procedural bar on this basis. Although the Court of Criminal
Appeal’s denial of habeas relief stated no reasons, that court, as
we have held, has long held that the sufficiency of the evidence
may only be raised on direct appeal, and may not be raised in state
habeas. See Clark v. Texas, 788 F.2d 309, 310 (5th Cir. 1986); Ex
parte McWilliams, 634 S.W.2d 815, 818 (Tex. Crim. App. 1982); Ex
parte Easter, 615 S.W.2d 719, 721 (Tex. Crim. App. 1981); Ex parte
Smith, 571 S.W.2d 22, 23 (Tex. Crim. App. 1978). In these
circumstances, reliance on the procedural default is adequately
established. See Ylst v. Nunnemaker, 111 S.Ct. 2590, 2594-96
(1991); Teague v. Lane, 109 S.Ct. 1080, 1068-69 (1989); Young v.
Herring, 938 F.2d 543, 549 n.6 (5th Cir. 1991); Preston v. Maggio,
705 F.2d 113, 116 (5th Cir. 1983). Of course, the procedural
default does not bar the related ineffective assistance of counsel
claim and constitutionally ineffective assistance generally
constitutes “cause” for a default; but, we have held that counsel
was not defective (and that there was no prejudice). As to “actual
innocence” and “innocent of the death penalty” exceptions to the
bar, we hold that they are inapplicable because the evidence
clearly shows that West was guilty of entry without consent into
the victim’s habitation and of then murdering her there. Thus, the
procedural bar is yet another reason to deny West’s claim that the
evidence was insufficient.

22
II. Brady and Related Ineffective Assistance of Counsel

West argues that the prosecution suppressed evidence that his

confession that he stole a necklace from Klaus’ room was fabricated

and thus violated his rights under Brady v. Maryland, 83 S.Ct. 1194

(1963). Relatedly, West argues, though in only the most

conclusory manner, that counsel “failed to undertake reasonable

investigation at guilt-innocence and to present evidence indicating

that Mr. West was not guilty of the underlying felony of burglary.”

The only thing in the record even arguably supporting these claims

are the conclusory allegations of West’s federal and state habeas

petitions.19 We reject these contentions.

Brady proscribes “the suppression by the prosecution of

evidence favorable to an accused.” Id. at 1196. Certainly West

19
West’s amended section 2254 petition alleges in its paragraph
58B:

“Counsel failed to investigate, prepare, and
present evidence which would have proven that a burglary
had not, in fact, taken place. Reasonable investigation
would have discovered that West fabricated the theft of
the gold necklace and credible, relevant evidence proving
the fabrication could have been presented to the jury.”

There is absolutely no indication in the petition (or elsewhere in
the record) of what the claimed “evidence” is or consisted of or of
how it might have been found. There is no allegation that West
ever informed his counsel, or anyone else, that he did not take the
necklace.
Paragraph 59A of this petition alleges, “The prosecution
failed to divulge Brady material to the defense including evidence
which indicated that the burglary did not, in fact, happen in
violation of Robert West’s . . . rights.” Again, there is
absolutely no indication in the petition (or elsewhere in the
record) of what the claimed “evidence” is or consisted of; nor is
there any allegation or indication of record that West ever
informed the prosecution or the police, or anyone else, that he did
not take the necklace, or that the prosecution or the police were
aware that he did not or of evidence indicating that he did not.

23
knew whether or not he had taken the necklace, and necessarily knew

that better than the prosecution could have. As we said in

Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994): “Brady

claims involve ‘the discovery, after trial of information which had

been known to the prosecution but unknown to the defense.’ United

States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d

342 (1976).” And, in Lawrence we also quoted with approval the

following passage from United States v. Jackson, 6 F.3d 911, 918

(2d Cir. 1993): “Evidence is not ‘suppressed’ if the defendant

either knew, or should have known, of the essential facts

permitting him to take advantage of any exculpatory evidence.”

Lawrence at 257 (citation and internal quotation marks omitted).

See also, e.g., Williams v. Scott, 35 F.3d 159, 163 (5th Cir.

1994), cert. denied, 115 S.Ct. 959 (1995)(“A Brady violation does

not arise if the defendant, using reasonable diligence, could have

obtained the information”); Blackmon v. Scott, 22 F.3d 560, 564-65

(5th Cir.), cert. denied, 115 S.Ct. 671 (1994)(“The state is not

required to furnish a defendant with exculpatory evidence that is

fully available to the defendant or that could be obtained through

reasonable diligence”); Duff-Smith v. Collins, 973 F.2d 1175, 1181

(5th Cir. 1992), cert. denied, 113 S.Ct. 1958 (1993); May v.

Collins, 904 F.2d 228, 231 (5th Cir. 1990), cert. denied, 111 S.Ct.

770 (1991); United States v. Marrero, 904 F.2d 251, 261 (5th Cir.

1990), cert. denied, 111 S.Ct. 561 (1990). Moreover, West cites no

authority, and we have found none, supporting the conclusion that

a Brady violation could be found in these circumstances.

24
Accordingly, West would have to extend Brady beyond what is

compelled by existing precedent, and relief is hence barred by

Teague v. Lane, 109 S.Ct. 1060 (1989).

Moreover, as the magistrate judge correctly observed in

recommending that the state’s unopposed motion for summary judgment

be granted, “[t]here is no evidence that the prosecution had any

evidence relating to the fact that a burglary [by theft] never

occurred.”20 The allegations of West’s amended section 2254

petition are wholly conclusory in this respect and do not assert

that West ever informed (or even suggested to) anyone that he did

not take the necklace. See note 19, supra. Such allegations do

not suffice to entitle West to an evidentiary hearing. “The

[habeas] petitioner must set forth specific allegations of fact,

not mere conclusory allegations,” Johnson v. Scott, 68 F.3d 106,

112 (5th Cir. 1995), and “[t]he court need not blindly accept

speculative and inconcrete claims as the basis upon which to order

a hearing,” Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert.

denied, 110 S.Ct. 419 (1989)(internal quotation marks omitted).

“Conclusory allegations are not enough to warrant discovery under

Rule 6 of the Federal Rules Governing Section 2254 Petitions; the

petitioner must set forth specific allegations of fact; Rule 6,

20
Nor was any such evidence provided in West’s unsworn
objections to the magistrate judge’s report; nor did the objections
provide any specificity in this respect. Indeed, the objections
make plain that what West wants is discovery as to whether the
prosecution had such evidence, and these objections allege that
West “continues to be prejudiced by the prosecutor’s intentional
conduct or failure to investigate” in this respect (emphasis
added).

25
which permits the district court to order discovery on good cause

shown, does not authorize fishing expeditions.” Ward v. Whitley,

21 F.3d 1355, 1367 (5th Cir. 1994), cert. denied, 115 S.Ct. 1257

(1995).21

West’s claim of ineffective assistance of counsel in this

respect fails for similar reasons. It, too, is wholly conclusory.

West’s confession states that he took the necklace, and he has

never alleged that he ever informed his counsel that he had not

done so, or ever gave counsel any reason to so believe (nor does

West’s petition allege any facts that would have put counsel on

notice under these circumstances, or specify any particular

evidence that investigation in this respect would have revealed).22

There is simply no basis on which to conclude that counsel’s

performance was constitutionally deficient in this respect. “We

21
We also observe that at the end of the guilt-innocence stage
the prosecutor testified under oath, outside of the presence of the
jury, that he had furnished defense counsel all information
requested in counsel’s numerous and broad discovery motions and
that defense counsel had been afforded full access to the
prosecution’s file. There was no contrary evidence or claim.
Also, at a pretrial hearing defense counsel acknowledged he had
been given access to the prosecutor’s file, including information
and an offense report respecting the assault on Longfellow and,
apparently, two statements by Tagle.
22
West’s trial counsel’s affidavit, which is uncontradicted,
states that in the course of his preparation he and his associate
counsel “visited with Mr. West on numerous occasions,” reviewed the
state’s file “in its entirety,” and retained an investigator. The
record reflects that counsel filed and pursued, among many other
motions, motions for “Discovery and Inspection,” for “Production
and Inspection of Evidence and Information Which May Lead to
Evidence,” and to “Discover any Concessions or Agreements with
Third Parties,” all of which motions were granted by the trial
court, which ordered, inter alia, that any and all exculpatory
material be promptly turned over to the defense. Defense counsel
had full access to the prosecution file (see note 21, supra).

26
must strongly presume that trial counsel rendered adequate

assistance and that the challenged conduct was the product of

reasoned trial strategy,” Wilkerson v. Collins, 950 F.2d 1054, 1065

(5th Cir. 1992), cert. denied, 113 S.Ct. 3035 (1993), and “[w]hen

a defendant has given counsel reason to believe that pursuing

certain investigations would be fruitless . . . counsel’s failure

to pursue those investigations may not later be challenged as

unreasonable.” Id. (quoting Burger v. Kemp, 107 S.Ct. 3114, 3126

(1987) [quoting Strickland v. Washington, 104 S.Ct. 2052, 2066

(1984)]; internal quotation marks omitted). West’s petition simply

does not allege facts showing that counsel’s performance in this

respect was constitutionally deficient.

Finally, we note that neither the Brady claim concerning the

theft23 nor the related ineffective assistance of counsel claim

demonstrate the requisite “‘reasonable probability’ of a different

result” such as “‘undermines confidence in the result’” under Kyles

v. Whitley, 115 S.Ct. 1555, 1566 (1995), and Strickland v.

Washington, 104 S.Ct. 2052, 2068 (1984). The entire claimed

importance of the necklace theft is based on the theory that

without it there could be no burglary and hence no capital murder.

As demonstrated above, this is simply not so. It is uncontested

and beyond dispute that West forced his way into Klaus’ motel room

where Klaus lived and then and there murdered her. This

constitutes burglary and establishes West’s guilt of capital

23
Other purported Brady claims were asserted below but have not
been raised on this appeal. They are hence abandoned.

27
murder.

We reject the Brady claim and related claim of ineffective

assistance of counsel.

III. Admissibility of Confession

West argues that the admission in evidence of his written

confession violated his rights under the Fifth Amendment in that

his Miranda right to cut off questioning was not scrupulously

honored, relying on Charles v. Smith, 894 F.2d 718 (5th Cir. 1990).

The evidence shows that when West was arrested and placed in

a patrol car at the motel Officer Rogers read him his Miranda

rights.24 He did not appear to be intoxicated or on drugs. After

being read his rights West told Officer Rogers that “he already

knew his rights anyway”. West was thereafter taken to the police

station about 3:30 A.M. and was there interviewed by detective Kent

after Kent had again read West his Miranda rights.25 West advised

Kent that he understood those rights. West did not appear

intoxicated or under the influence of drugs. West talked to Kent

about 30 to 45 minutes, and gave no indication that he wished to

24
West was advised:

“You have the right to remain silent and not make any
statement at all. Any statement you make may be used
against you, probably will be used against you in your
trial. You have the right to have a lawyer present to
advise you prior to and during any questioning. If you
are unable to employ a lawyer you have the right to have
a lawyer appointed to advise you prior to and during any
questions. You have the right to terminate the interview
at any time.”
25
Kent’s reading of the rights was essentially verbatim as
earlier read to West by Officer Rogers (note 24, supra).

28
exercise or invoke any of the rights read to him, nor did he

discuss those rights. Kent made no promises or threats to West,

and there was no coercion. At the end of this interview Kent took

West to the jail to be booked in. Kent talked to West again from

about 9:20 to 10:40 A.M. Kent testified that West was “coherent,”

“in control of his faculties,” and “seemed calm, was responsive to

my questions and talked freely.” Kent testified that no promises

or threats were made and there was no coercion. West did not

indicate he wished to invoke any of the rights previously read to

him. He was taken back to the jail about 10:40 A.M. About noon

that day murder charges were filed. Slightly over thirteen hours

later, at about 11:50 P.M. that night, West was again questioned by

Kent. Kent read West his rights, and told him he had been charged

with murder and could get the death penalty. During the

questioning Kent informed West that Tagle had implicated him by

saying West had returned to their motel room with his clothes

bloody and then washed them off. West responded that “he didn’t

believe Tagle would say that” and said he wanted to talk with

Tagle. Officer Rogers was sent to get Tagle, who Kent mistakenly

thought was at the police station. About an hour later Rogers

returned without Tagle. Kent at that time, approximately 1:00 A.M.

August 25, decided to terminate the interview with West and take

him back to the jail, which had called advising they wanted West

back so he could be transferred to the county. Kent so advised

West. Up until that time, West in all discussions with Kent had

denied any involvement in the murder. Kent testified “I was

29
getting ready to put him in jail. He decided to start telling me

the story.” West was not intoxicated, he “was alert,” and he

“talked freely” and was “responsive to” questions. West never

stated he did not want to talk and never asked for a lawyer or

otherwise sought to invoke his Miranda rights. No threats or

promises were made, and there was no coercion. After telling his

story, West indicated that he would make a written statement. Kent

then again read West the warnings printed on a statement form

(identical to those on West’s written statement, see note 27,

infra)and again asked him if he understood them and if he wanted to

make a written statement. West said he understood his rights and

would give a written statement. Kent then proceeded to type on the

statement form what West told him. Kent would from time to time

ask questions and type what West said in response.26 The statement

is seven pages long, Kent was a slow typist, and several coffee

breaks were taken. The entire process took several hours. When

the statement was finished, Kent handed it to West who read it, the

first sentence aloud, and made several corrections. West then read

silently the printed warnings, said he understood them, and

initialed them.27 He then signed each page of the statement. The

26
Kent testified “If I recall something or another he mentioned
in the oral interview that he hadn’t related as I was typing, I
would ask him about that and he would tell me and I would
incorporate that in the statement,” using “his [West’s] words.”
27
The top of each page of the statement contains the following
printed legend (with “Robert Wallace West” and “C. W. Kent” typed
in the blanks), just after which the body of the statement is
typed, viz:

“Statement of Robert Wallace West taken in Harris

30
entire process was completed at about 7:45 A.M., and West was then

returned to the jail.

Summarizing his three separate interviews with West, detective

Kent testified there were never any promises or threats made to

West, nor any coercion applied. He further testified that on each

of these three occasions West had never sought to exercise or raise

a question about any of the rights he had been read. Kent also

testified: “He never once at all stated that he didn’t want to

talk to me” or “that he wanted a lawyer,” and “he continued to talk

with me. He would answer my questions. He would talk freely with

me.”28

County, Texas.
Prior to making this statement I have been warned by
C. W. Kent, the person to whom this statement is made,
that:

1) I have the right to remain silent and not make any
statement at all and any statement I make may and
probably will be used against me at my trial;
2) Any statement I make may be used as evidence against
me in court;
3) I have the right to have a lawyer present to advise
me prior to and during any questioning;
4) If I am unable to employ a lawyer, I have right to
have a lawyer appointed to advise me prior to and during
any questioning and;
5) I have the right to terminate the interview at any
time.

Prior to and during the making of this statement I
knowingly, intelligently and voluntarily waive the rights
set out above and make the following voluntary
statement:”

West initialed each of the above paragraphs 1 through 5.
28
Kent later repeated this testimony saying, with reference to
the three occasions he interviewed West, “he never one time said he
did not want to talk to me. No, sir. He never said that,” and “he
never asked for a lawyer,” and “he at no time exercised any of his

31
 West did not testify at the Jackson v. Denno hearing, and no

evidence was presented contradicting the testimony of the police

officers called by the prosecution.

The trial court entered detailed written findings that the

confession was in all respects voluntary and properly warned. The

court found, inter alia, that the warnings as testified to were

given West, that he never advised the officers that he wanted an

attorney present, that “at no time . . . did the defendant request

police officers to cease interrogating him,” that “defendant, after

repeated warnings, knowingly, intelligently and voluntarily waived

his rights under Article 38.22, V.A.C.C.P., including his right to

assistance of counsel,”29 and that “the defendant’s confession was

not the product of force, threats, persuasion, intimidation or

promises, but was freely and voluntarily given.” On direct appeal,

the Court of Criminal Appeals rejected challenges to the

confession, holding that the trial court’s “findings of fact are

rights” that he had been read.
29
The rights provided in Texas Code of Criminal Procedure
Article 38.22 include all those of Miranda and are as follows:

“(1) he has the right to remain silent and not make any
statement at all and that any statement he makes may be used
against him at his trial;
(2) any statement he makes may be used as evidence
against him in court;
(3) he has the right to have a lawyer present to
advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the
right to have a lawyer appointed to advise him prior to
and during any questioning; and
(5) he has the right to terminate the interview at
any time:”

Art. 38.22 sec. 2(a).

32
supported by the record” and “we find ample support for the finding

that appellant never requested the interrogation cease.” West, 720

S.W.2d at 518.

Where the question presented in a section 2254 proceeding is

whether a confession admitted at trial was voluntary and in

compliance with Miranda, with respect to issues of underlying or

historic facts, the state court findings, if fairly supported in

the record, are conclusive, but there is independent federal

determination of the ultimate question whether, under the totality

of the circumstances, the challenged confession was obtained in a

manner compatible with the requirements of the Constitution.

Miller v. Fenton, 106 S.Ct. 445, 450-51, 453 (1985).

West challenges the finding of the state courts that he never

invoked his right to remain silent, relying on the testimony of

detective St. John that between 9:00 and 10:00 A.M. on August 24

West told the officers he “didn’t want to tell us anything about

it.” This testimony is best understood, however, as saying not

that West refused to talk or exercised his right to silence, but

rather that, denying any involvement in the murder, he refused to

talk about what he would only know if he were involved. This

construction is consistent with St. John’s testimony that during

this interview West was “very arrogant in that interview. He was

denying his involvement in the episode” and that West never

indicated in his presence any desire to invoke the rights of which

he had been advised. Moreover, Kent was doing the interviewing,

and St. John was in and out of the room. Kent likewise testified

33
that at this interview he discussed the case with West and West

“still denied having anything to do with it,” but “was responsive

to my questions and talked freely.” And, as noted, Kent testified

that West did not invoke his rights at this meeting, or any other,

never said he did not want to talk with Kent, and always “would

talk freely with me.” The construction West now seeks to place on

St. John’s testimony would make it contradictory to that of Kent.

The record fairly supports the underlying factual determination of

the Texas courts that West did not invoke his right to silence.

Even if West had invoked his right to silence at the 9:20-

10:00 A.M. interview, this would not render his resumed questioning

more than thirteen hours later a failure to scrupulously honor his

right to silence. In Charles v. Smith, supra, the resumed

questioning took place “just a few minutes after” the defendant had

exercised his right to silence. Id. at 726. Similarly, we found

a Miranda violation where questioning was resumed thirty or forty-

five minutes after invocation of the right to silence. United

States v. Hernandez, 574 F.2d 1362 (5th Cir. 1978). Here,

questioning was not resumed until after a lapse of thirteen hours.

Thus, the present case is controlled by Kelly v. Lynaugh, 862 F.2d

1126 (5th Cir. 1988), cert. denied, 109 S.Ct. 3263 (1984), likewise

a capital case in which we affirmed a summary judgment denial of

habeas relief. There, Kelly, about 11:00 A.M. the day of his

arrest, having been advised of his Miranda rights, was asked if he

wanted to talk, and he responded “no,” and was taken to the jail.

About 4:00 P.M. the same day, he was taken out of the jail and

34
given his Miranda warnings, but he again refused to answer

questions, and was returned to the jail. He was yet again removed

from the jail for questioning some four and a half to six hours

later (at some time between 8:30 and 10:00 P.M. the same day), and

then, after being shown a co-defendant’s statement and “without new

Miranda warnings, Kelly orally confessed. When the confession was

reduced to writing [and signed by Kelly], the Miranda warnings were

stated at the top of the first page” and were followed by a

statement that the signer had read, understood, and voluntarily

waived those rights. Kelly at 1130. Reviewing Michigan v. Mosley,

96 S.Ct. 321 (1975), and other relevant authorities, we held that

the written confession was admissible, that Miranda had been

complied with, and “Kelly’s right to cut off questioning was

scrupulously honored.” Kelly at 1130-1131. Our thorough

examination of the record here leads to the same conclusion.30 We

reject West’s contentions to the contrary.

We likewise reject West’s claim that the confession was taken

in violation of his Sixth Amendment right to counsel. Although

West’s Sixth Amendment rights attached when charges were filed,

West had never requested (or retained) counsel and none had been

appointed for him. In those circumstances, his waiver of counsel

pursuant to his Miranda warnings waived his Sixth Amendment right

30
See also Wilcher v. Hargett, 978 F.2d 872, 876-77 (5th Cir.
1992); United States v. Corral-Franco, 592 F.2d 263, 267 (5th Cir.
1979); Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir.), cert.
denied, 105 S.Ct. 167 (1984); United States v. Udry, 748 F.2d 1231
(8th Cir. 1984), cert. denied, 105 S.Ct. 3477 (1985). Cf. Evans v.
McCotter, 790 F.2d 1232, 1238 (5th Cir.), cert. denied, 107 S.Ct.
327 (1986).

35
not to be interrogated or give a statement without the presence or

guidance of counsel. This is made clear by Patterson v. Illinois,

108 S.Ct. 2389 (1989), and its progeny. See United States v.

Gayton, 74 F.3d 545, 555 (5th Cir. 1996) (“As long as the defendant

is given Miranda warnings, his voluntary decision to answer

questions without invoking the right to counsel constitutes waiver

[of the Sixth Amendment right]”); Wilcher v. Hargett, 978 F.2d 872,

876 (5th Cir. 1992); Montoya v. Collins, 955 F.2d 279, 282 (5th

Cir.), cert. denied, 113 S.Ct. 820 (1992) (“As long as the police

administer Miranda warnings before proceeding, a defendant’s

voluntary decision to answer questions without claiming his right

to have a lawyer present to advise him constitutes a ‘knowing and

intelligent,’ and therefore valid, waiver of his Sixth Amendment

right”; citing Patterson).

Finally, West complains of violation of his rights under Tex.

Code. Crim. Proc. art. 15.17, requiring that a person arrested be

taken before a magistrate “without unnecessary delay.” However,

asserted violations of state law do not constitute a basis for

federal habeas relief. West’s written confession was completed

approximately thirty hours after his arrest, and there is no

showing that he was not taken before a magistrate well before the

forty-eight hour presumptive maximum delay of County of Riverside

v. McLaughlin, 111 S.Ct. 1661 (1991).31 “Even assuming that the

time gap between arrest and initial appearance was unreasonable,

31
West does not argue to us that his arrest was illegal or
without probable cause (which was plainly present).

36
the claim does not rise to constitutional significance.” De La

Rosa v. State of Texas, 743 F.2d 299, 303 (5th Cir. 1984), cert.

denied, 105 S.Ct. 1781 (1985). “The rule in McNabb v. United

States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) [which]

prohibits the use in [federal] criminal cases of confessions . . .

where there was a failure to bring the accused before a committing

magistrate without unnecessary delay . . . has not been extended to

state prosecutions as a requirement of the Fourteenth Amendment.”

Smith v. Heard, 315 F.2d 692, 694 (5th Cir.), cert. denied, 84

S.Ct. 154 (1963), citing Brown v. Allen, 73 S.Ct. 397 (1953), and

Gallegos v. Nebraska, 72 S.Ct. 141 (1951). “Failure to [timely]

take an accused before a magistrate . . . bear[s] only upon the

issue of voluntariness” of the confession, and is only one of

several factors to be considered in that respect. Smith v. Heard

at 694 (emphasis added), citing Colombe v. Connecticut, 81 S.Ct.

1860 (1961).32

32
In Colombe, it is stated: “we have not extended its
[McNabb’s] rule to state prosecutions as a requirement of the
Fourteenth Amendment,” id. at 1878, under which “[t]he ultimate
test [of the admissibility of a confession] remains” what it has
been “for two hundred years: the test of voluntariness. Is the
confession the product of an essentially free and unconstrained
choice by its maker.” Id. at 1879. Undue delay in taking an
accused before a magistrate is merely one of several factors
relevant to the ultimate test of voluntariness. Id. at 1878-79.
See also id. at 1900.
Brown states: “If the delay in the arraignment of petitioner
was greater than that which might be tolerated in a federal
criminal proceeding, due process was not violated. . . . The Court
has repeatedly refused to convert this [the McNabb]rule of evidence
for federal courts into a constitutional limitation on the states
. . . . Mere detention and police examination in private of one in
official state custody do not render involuntary the statements or
confessions made by the person so detained.” Id. at 417.

37
 In De La Rosa, relying on Colombe; Brown; Gallegos; and Smith

v. Heard, we upheld the admissibility of the confession, despite

its having been given before the arrested accused was taken to a

magistrate and following what we assumed was an unreasonable delay

in doing so, because “[i]n our reading of the record we find

nothing to indicate that De La Rosa’s confession was anything other

than the product of his free and voluntary choice.” De La Rosa at

303.33 Our review of the entire record here leads to the same

conclusion as to West’s confession. Notwithstanding the delay

between arrest and arraignment, under all the circumstances

reflected by the record here, West’s confession is shown to be the

product of his free and voluntary choice.

We reject all the contentions West raised on appeal in respect

to the admissibility of his confession.

IV. Penry Claim, and Challenges to Texas Capital Sentencing
Scheme

West argues that his rights under Penry v. Lynaugh, 109 S.Ct.

2934 (1989), were violated because under the Texas sentencing

special issues the jury could not give full effect to the allegedly

mitigating circumstances of his case.34 Insofar as West relies on

33
We also observed that the state trial court “found that De
La Rosa confessed of his own free will, unaffected by any threat or
coercion.” Id. at 303.
Read in the context of this entire portion of the De La Rosa
opinion, and in the light of the authorities there relied on, it is
evident that our “causally related” language (id. at 303), relied
on by West, is merely directed to whether the delay in arraignment
caused the confession to be other than the product of the accused’s
free and voluntary choice. Here it did not.
34
The state argues that a Penry claim was not properly raised
below. While we are inclined to agree, we need not reach that

38
allegedly mitigating circumstances not reflected by evidence

introduced or tendered at his trial, his claim is without merit as

we have repeatedly held that a Penry claim may be based only on

evidence introduced or offered at trial. Briddle v. Scott, 63 F.3d

364, 377 (5th Cir.), cert. denied, 116 S.Ct. 687 (1995); Anderson

v. Collins, 18 F.3d 1208, 1214-15 (5th Cir. 1994); Allridge v.

Scott, 41 F.3d 213, 223 (5th Cir.), cert. denied, 115 S.Ct. 1959

(1995); Crank v. Collins, 19 F.3d 172, 176 (5th Cir.), cert.

denied, 114 S.Ct. 2699 (1994); Callins v. Collins, 998 F.2d 269,

275 (5th Cir. 1993), cert. denied, 114 S.Ct. 1127 (1994). The only

evidence actually introduced (or offered, conditionally or

otherwise) at trial that West claims is mitigating evidence that

could not adequately be taken into account under the sentencing

special issue, consists of statements in his confession that he had

been drinking heavily the afternoon and evening of the murder and

that he “boiled up” or “blew up” at things the victim said to him

after he had forced his way into her room and attacked her.35 As

question as we determine West’s Penry claim is in any event without
merit.
35
The portion of the confession not introduced at either the
guilt-innocence stage or the punishment stage (see note 4, supra)
reflected that this “blow up” resulted from the victim’s admission
to West (after he had forced his way into her room and assaulted
her) that she had identified West’s “friend” Barstow to Longfellow
as Roxanne’s “lover”; West assertedly believed (without any
evidence) that Barstow had been killed by Longfellow (or at his
direction) because Longfellow (presumably as a result of Roxanne’s
having told the police Barstow was “her lover”) mistakenly thought
Barstow (not West) was the person who had assaulted him when he was
with Roxanne in May 1982. However, as previously observed, this
portion of the confession also states Roxanne “knew that I was
going down to Deanna’s room to kill her. I had told her that I
was.”

39
to the drinking and inference of intoxication, we have many times

held that this may be adequately taken into account under both the

first and second punishment issues (deliberateness and future

dangerousness). Briddle at 377; Anderson at 1214-15 n.5; Nethery

v. Collins, 993 F.2d 1154, 1161 (5th Cir. 1993), cert. denied, 114

S.Ct. 1416 (1994); James v. Collins, 987 F.2d 1116, 1121 (5th Cir.

1993); Cordova v. Collins, 953 F.2d 167, 170 )(5th Cir.), cert.

denied, 112 S.Ct. 959 (1992). See also Lackey v. Scott, 28 F.3d

486, 487 (5th Cir. 1994), cert. denied, 115 S.Ct. 743 (1995). As

to West’s having “blown up” or the like, any mitigating quality of

this evidence could be adequately taken into account under both the

punishment issues.36 Blackmon at 564; Marquez v. Collins 11 F.3d

1241, 1248 (5th Cir. 1994).

West also makes what appears to be both an as applied and a

facial challenge to the Texas sentencing scheme on the basis that

it chills counsels’ presentation and/or development of mitigating

evidence.37 We have repeatedly rejected such claims. Briddle at

36
And this is likewise true as to the fuller “blow up” account
given in portions of the confession not introduced at either stage.
See notes 4 and 35, supra.
37
We note that in this case, tried in February 1983, years
before Penry was handed down, defense counsel (not surprisingly)
did not request (or object to the absence of) any special
instruction of the kind Penry indicated would be required in the
face of certain kinds of mitigating evidence that might also tend
to support an affirmative answer to either of the punishment
issues, nor was any evidence offered conditionally on the court’s
agreeing to give such an instruction. That is not to say, however,
that Texas applied a procedural bar (in a case tried before Penry)
to raising a Penry claim on the basis of evidence actually admitted
(or offered by the defense but excluded). See Selvage v. Collins,
816 S.W.2d 390 (Tex. Crim. App. 1991).

40
378; Lackey at 490; Crank at 176; Black v. Collins, 962 F.2d 394,

407 (5th Cir.), cert. denied, 112 S.Ct. 2983 (1992).

West advances a further facial challenge to the Texas

sentencing scheme on the basis that the second special issue

improperly functions as an aggravating circumstance and is invalid

in the absence of appropriate narrowing definitions or

instructions.38 We rejected essentially the same contention in

James at 1119-20, and, more recently, in Woods v. Johnson, 75 F.2d

1017, 1033-34 (5th Cir. 1996). See also Nethery at 1162; Thompson

v. Lynaugh, 821 F.2d 1054, 1059-60 (5th Cir.), cert. denied, 108

S.Ct. 5 (1987); Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th

Cir. 1984), cert. denied, 105 S.Ct. 2050 (1985). In Jurek v.

Texas, 96 S.Ct. 2950 (1926), the facial validity of the Texas

capital sentencing scheme was sustained. There the Court held that

the constitutionally required narrowing function was performed at

the guilt-innocence stage, and further narrowing at the sentencing

stage was not required. Id. at 2955-57. This was confirmed by

Lowenfield v. Phelps, 108 S.Ct. 546, 554-555 (1988). Jurek

likewise expressly rejects the contention that the second

punishment issue is impermissibly vague. Id. at 2957-58. See also

Pulley v. Harris, 104 S.Ct. 871, 879 n.10 (1984) (Texas punishment

issues not impermissibly vague).39

38
At trial, there were no requests for special instructions or
definitions regarding the wording or meaning of the punishment
special issues or the terms used therein, nor any objection to the
absence of such instructions or definitions.
39
Moreover, to sustain West’s facial challenge would plainly
be to adopt a new rule not compelled by precedent existing in 1987

41
 We reject West’s claims based on Penry, as well as his

challenges to the Texas capital sentencing scheme.

V. Ineffective Assistance of Counsel at Sentencing

West claims counsel was ineffective in failing to present

mitigating evidence at sentencing and in failing to adequately

investigate in that respect.40

West’s amended federal petition alleged in general terms that

his counsel was ineffective because he failed to adequately

investigate West’s “social, educational, health, and medical

background and failed to discover facts which, if provided to a

psychologist or psychiatrist, would have rendered relevant and

significant evidence regarding the defendant’s responsibility for

the crime as well as his deliberateness and future dangerousness.”

It is alleged that West’s mother abandoned him to her parents

when West’s conviction became final, contrary to Teague. See
Graham v. Collins, 113 S.Ct. 892 (1993).
40
We have already considered and rejected West’s claims of
ineffective assistance of counsel (and for an evidentiary hearing
thereon) in respect to the sufficiency of the evidence of burglary
and the taking of the necklace.
In one footnote in his one hundred page appellant’s
brief——filed on his behalf by the same counsel who represented him
below and on his state habeas——West lists various grounds of
ineffective assistance of counsel that he assertedly alleged in the
district court. Except for those elsewhere addressed in this
opinion, none of these claims is briefed or argued, and hence no
ruling as to those claims is preserved for appellate review. See
Complaint of Port Arthur Towing v. M/V Miss Carolyn, 42 F.3d 312,
319 (5th Cir. 1995); Green v. State Bar of Texas, 27 F.3d 1083,
1089 (5th Cir. 1994); Randall v. Chevron U.S.A., Inc., 13 F.3d 888,
911 (5th Cir. 1994), mod. in other respects, 22 F.3d 568 (5th Cir.
1994); United States v. Ballard, 779 F.2d 287, 295 (5th Cir.),
cert. denied, 106 S.Ct. 1518 (1986). See also, e.g., United States
v. Hoster, 988 F.2d 1374, 1383 n.25 (5th Cir. 1993); United States
v. Collins, 972 F.2d 1385, 1393 n.5 (5th Cir. 1992).

42
shortly after his birth, and his grandparents (described as “very

good people” whom West “loved” and was “close to”) raised West, who

believed they were his real parents until he was approximately

twelve years old. He did well in school until he was twelve, and

then began having problems, including alcohol and drug abuse. He

suffered a head injury of a wholly unspecified sort. After his

grandfather died when West was fifteen, West was placed in various

juvenile facilities. Attached to West’s amended federal habeas

petition was an affidavit by psychologist Dr. Brown, who examined

West in July 1987 and performed three psychological tests on him.

Brown also examined West’s school and juvenile facility records, as

well as his records after his conviction at the Texas Department of

Corrections.41 This affidavit states that West’s “social,

educational and athletic development were excellent until the age

of twelve.” Some time thereafter he was involved in a series of

juvenile offenses and was eventually placed in the Illinois

Department of Corrections, where he remained until age eighteen.

He received some psychological testing there, which reflected an

I.Q. of 100. It was also “regularly noted that he had anger and

hostility within and poor impulse control” but “seemed typically to

respond well to supervision.” After release he “continued his drug

use as an adult, primarily using angel dust, often combining it

with alcohol.” In Houston, West and his friends “spent most of

their time in bars and on the streets hustling for their money.”

41
No part of any of the referenced records is attached to (or
quoted in) Brown’s affidavit or otherwise of record.

43
Brown reports West “has long suffered from headaches” which “are

getting worse now” so he “now takes aspirin by the handful”; he

“currently suffers from blurred vision and, on at least one

occasion, passed out and fell without explanation.” Brown did not

make any diagnosis of insanity, incompetence, psychosis, or any

particular psychological malady. However, he did opine that “some

type of organic brain syndrome” “may exist,” confirmation of which

would require “a complete neurological examination, CAT scan, and

EEG sleep tracing.” In support of his “may exist” opinion, Brown

stated that the drugs West had been abusing “when taken in

significant dosages over a period of years, can be causative to

brain tissue pathology” and also referred to West’s “history of

headaches, flashbacks, blurred vision, multiple head injuries . .

. one episode of passing out without explanation and . . . rocking

himself prior to sleep.”42 Brown opined that West’s murder of Klaus

Was “a singular event” and it was “highly unlikely” West would

“commit such an offense again.” In support of this opinion, Brown

principally stressed West’s “history of drug abuse and excessive

consumption of alcohol the day of the crime”; that the victim was

a woman and West, who “experienced problematic relationships with

women” harbored “deep-seated anger at women”; that “the killing was

done out of loyalty to a friend rather than other criminal behavior

like robbery or burglary”; and that West “did not enter the

victim’s room with the idea of killing her, but did so afterwards

42
No reference is made in this connection to the three tests
Brown administered (nor is any documentation concerning these tests
or their results of record).

44
in an unusual rage state which was out of character for him.”

The affidavit of West’s trial counsel, which is wholly

uncontradicted on this record, states in part as follows:

“On August 22, 1982, Mr. West was present in the
courtroom of the 182nd District Court and Roy Ashe and I
had an opportunity to talk with him. Mr. West appeared
lucid and coherent; he was able to and did respond
appropriately to the questions that we asked.

During the course of our case preparation, both Roy
Ashe [co-counsel] and I visited with Mr. West on numerous
occasions. At no time during the course of the
investigation, trial preparation, or trial itself did Mr.
West give any indication that he was anything other than
sane at the time he committed the offense and competent
to stand trial. He was able to relate details of the
offense and justified the killing on the basis that the
victim was at least partially responsible for his friend
Brett getting killed. Mr. West communicated freely with
Roy Ashe and me during the course of the trial, often
asking pertinent questions or providing additional
information. In the course of my preparation I asked Mr.
West whether he had ever had any
psychiatric/psychological problems. While I do not
recall his exact response, I feel certain that his
response, coupled with my personal observations of Mr.
West, foreclosed any potential insanity defense. In my
professional opinion I saw no need to have Mr. West
undergo a psychiatric examination.

* * * * * *

In preparation for trial, including the punishment
phase, I had Mr. West prepare a background summary of his
work history and school history. Unfortunately for the
defense, the information provided by Mr. West was not at
all helpful and generally damaging. Neither
conversations with Mr. West nor his summary provided us
with names of people (employers, roommates, schoolmates)
who might testify in his behalf at punishment. I
personally contacted the grandmother who had raised Mr.
West. She refused to testify for him and did not tell me
anything that compelled me to subpoena her in spite of
her refusal.”43

43
Defense counsel also retained an investigator, and ultimately
“formed the opinion that our strongest defense would be a legal
defense rather than a factual defense.” Counsel considered the

45
 As we have many times held, “[t]he failure to present a case

in mitigation during the sentencing phase of a capital murder trial

is not, per se, ineffective assistance of counsel.” Stringer v.

Jackson, 862 F.2d 1108, 1116 (5th Cir. 1988), vacated and remanded

on other grounds, 112 S.Ct. 1130 (1992), following remand, 979 F.2d

38 (5th Cir. 1992) (modifying original opinion in other respects).

See also, e.g., Woods at 1034-35; Andrews v. Collins, 21 F.3d 612,

623-25 (5th Cir. 1994); Duff-Smith at 1183; Lincecum v. Collins,

958 F.2d 1271, 1278-80 (5th Cir.), cert. denied, 506 U.S. 957

(1992); Wilkerson at 1065; DeLuna v. Lynaugh, 873 F.2d 757, 758-60

(5th Cir.), cert. denied, 110 S.Ct. 259 (1989).

West’s counsel, from his observations of and discussions with

West, and his inquiry of him as to whether “he had ever had any

psychiatric/psychological problems,” was given no reason to suspect

anything significant in that regard, much less any organic brain

syndrome. Nothing in Dr. Brown’s affidavit even suggests

otherwise. There is no allegation——much less any affidavit or other

evidence——that West had ever been hospitalized for a head injury or

for a mental condition or had ever been diagnosed as having any

sort of brain damage or psychosis, or that West ever gave counsel

any reason to believe that he had ever suffered a head injury or

suffered from any psychiatric or psychological problems. Counsel

likewise talked to West’s grandmother, who refused to testify for

West and provided no useful information. West provided no names of

possibility of other defenses, including “a diminished capacity
argument” but concluded it would not be “particularly viable.”

46
potential witnesses for the punishment hearing, and the information

he did provide “was not at all helpful and generally damaging.”

West has not even alleged——much less provided any affidavit or other

evidence of——anything tending to contradict these statements.44

Accordingly, counsel was not ineffective for failing to further

investigate in these respects. See, e.g., Andrews at 623 (“Because

counsel had no reason to believe that pursuing further

investigation into Andrews’ mental capacity or his background would

44
West’s response to the magistrate judge’s report and
recommendation has attached to it a copy of a Motion for
Evidentiary Hearing and For Funds For Expert Assistance filed in
the state habeas proceeding. The motion is signed by habeas
counsel, not by West, and is not verified or supported by
affidavit. It alleges that if West were granted a hearing he would
call his mother and grandmother. There is no allegation that the
grandmother did not talk to West’s trial counsel, did not then
refuse to testify, or ever provided West’s trial counsel with any
helpful information; it is merely said that “she will catalogue
Robert’s excellent record until his twelfth birthday and his
subsequent juvenile difficulties.” As to the mother, it is alleged
she did not see West until nineteen years after she left him with
her parents when he was six months old, and will testify to “her
son’s good qualities and worth” (there is no statement as to the
nature or extent of her contact with him after seeing him again,
but the record as a whole makes clear it could have only been
minimal). This motion also states that West would call “Various
[unspecified] Walsh Elementary School counselors and St. Charles
Juvenile Home Counselors who worked with Robert [West] and believed
he had strong qualities and only required time to mature.” No
letter, report, affidavit, statement, or other document from the
mother, grandmother, or any of the referenced counselors is
attached to (or even mentioned in) the motion or otherwise of
record. The motion also asserts that West is indigent and requests
funds to retain a Dr. Merikangus of Yale University Medical School
to perform neuropsychiatric testing, including CAT scan, NMR scan,
and EEG testing to show organic brain syndrome affecting “his
[West’s] ability to control his impulses and behavior”; it is
stated that “Dr. Merikangus charges $1,000 a day plus expenses, and
estimates that the testing will cost in excess of $5,000"; no
report, letter, affidavit, statement, or other document from Dr.
Merikangus is attached to (or even mentioned in) the motion or
otherwise of record.

47
be useful, ‘counsel’s failure to pursue those investigations may

not . . . be challenged as unreasonable’” ) (quoting Burger-Kemp,

107 S.Ct. 3114, 3126 (1987)); Wilkerson at 1065. See also Cantu v.

Collins, 967 F.2d 1006, 1016 (5th Cir. 1992), cert. denied, 113

S.Ct. 3045 (1993).

Moreover, “[w]e must ‘indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance’ and that the ‘challenged action might be

considered sound trial strategy.’” Belye v. Scott, 67 F.2d 535,

538 (5th Cir. 1995) (emphasis added; quoting Strickland, 104 S.Ct.

at 2065), cert. denied, 116 S.Ct. 1438 (1996). See also Wilkerson

at 1065. “The defendant must overcome the presumption that, under

the circumstances, the ‘challenged action might be considered sound

trial strategy.’” Strickland, 104 S.Ct. at 2065. In light of the

record as a whole, West has neither alleged nor tendered evidence

of concrete facts sufficient to overcome those presumptions.

Evidence of West’s drinking on the afternoon and evening of the

offense was before the jury, and evidence that he customarily

abused alcohol or drugs or had a juvenile record would

be——especially in the pre-Penry setting of this trial——at best a

two-edged sword.45 See Woods at 1034; King v. Lynaugh, 868 F.2d

1400, 1405 (5th Cir.) (“‘jurors are generally unsympathetic toward

drug abusers’”), cert. denied, 109 S.Ct. 1576 (1989); DeLuna v.

45
In cases tried prior to Penry, counsel is not defective for
failing to anticipate that decision. See Woods at 1034-35; May v.
Collins, 904 F.2d 228, 234 (5th Cir. 1990), cert. denied, 111 S.Ct.
770 (1991).

48
Lynaugh, 873 F.2d 757, 759 (5th Cir.), cert. denied, 110 S.Ct. 259

(1989). We observed in Smith v. Black, 904 F.2d 950, 977 (5th Cir.

1990), vacated and remanded on other grounds, 112 S.Ct. 1463

(1992), aff’d in relevant part, 970 F.2d 1383 (5th Cir. 1992), that

although certain “mitigating evidence might have been presented”

but was not, nevertheless “it is equally possible that Smith’s

trial counsel had sound strategic reasons for not presenting it,

and we cannot speculate that Smith was unconstitutionally impaired

by any ineffective assistance on such an allegation.”46

West has not shown that his counsel was constitutionally

defective.

Moreover, not only has West failed to show that his counsel’s

performance was defective, he has also failed to show the requisite

Strickland prejudice. Even if Dr. Brown had testified as stated in

46
We have held that counsel was not ineffective for
insufficiently investigating as to whether West suffered from some
sort of organic brain syndrome or significant mental illness
because there was nothing to factually put counsel on notice of any
reasonable likelihood that any such condition existed. We further
note that in this pre-Penry case there was nothing to put counsel
on notice that such an investigation might be legally fruitful,
i.e., that if there were such a condition it would be helpful to
West to introduce evidence of it. See Andrews at 625 (failure to
introduce evidence of defendant’s “‘brain damage would have been a
reasonable strategic decision; after all, such evidence is double-
edged’”); Motley v. Collins, 18 F.3d 1223, 1228 (5th Cir. 1994)
(same). And, evidence of “anger and hostility within,” “poor
impulse control,” and “deep-seated anger at women” also plainly
fall within this category. Indeed, in West’s response to the
magistrate judge’s report and recommendation, it is stated that
“the overwhelming inference” is that trial counsel’s failure to
present mitigating evidence “was a direct result of trial counsel’s
judgment that he was precluded from presenting the mitigating
evidence available to him because it would prejudice his client
given the Texas [capital sentencing] scheme,” particularly the
second (future dangerousness) issue.

49
his affidavit, and even if it were shown that West had a history of

drug and alcohol abuse, and had some character of organic brain

syndrome that diminished his “ability to control his impulses and

behavior,” and even if his grandmother and counselors were to have

testified to his good behavior in grade school (see note 43,

supra), we are convinced that there is no reasonable probability——no

probability sufficient to undermine our confidence in the

sentencing (or the guilty) verdict——that the outcome would have been

different. Strickland, 104 S.Ct. at 2068. West forced his way

into the room of the victim——a woman he barely knew——in the middle

of the night, and admitted that he had gone there with intent to

kill her. He did so in a most brutal and savage manner, but only

after putting her through a horrifying and degrading series of

assaults that must have produced the most exquisite mental anguish.

His asserted reason for doing so——that he believed she had

identified Barstow to Longfellow, resulting in Barstow’s death——was

most unlikely to favorably impress any reasonable jury. Among

other things, there is absolutely nothing to suggest that West even

believed that Klaus’ asserted identification of Barstow was other

than wholly innocent and without knowledge of the supposed danger

to which it exposed Barstow. Moreover, there is nothing to suggest

that West had any real reason, beyond pure speculation, to believe

that Longfellow killed Barstow or had him killed. Finally, all

this simply makes matters worse for West as it was he who committed

the premeditated, unprovoked, vicious, and almost fatal stabbing

and robbery of Longfellow. And, it is simply ludicrous to imagine

50
that a jury considering Klaus’ murder would be favorably inclined

to West even if it believed Dr. Brown’s theory that he acted from

“deep-seated anger at women.” Nor would such a theory, or Dr.

Brown’s related theory that West was not otherwise violent or

inclined to criminal violence such as robbery, likely be given any

significance and weight by a jury that heard the undisputed

evidence of West’s wholly premeditated and unprovoked robbery and

almost fatal vicious knifing and assault of Longfellow. This

premeditated Longfellow offense also undermines any theory that

West was violent only because of lack of impulse control.

Strickland prejudice is not shown. See, e.g., Glass v. Blackburn,

791 F.2d 1165, 1170-71 (5th Cir. 1986). See also, e.g., Woods at

1035; Andrews at 624-25; Duhamel v. Collins, 955 F.2d 962, 966 (5th

Cir. 1992); Wilkerson at 1065.

West asserts he was entitled to a federal evidentiary hearing.

We disagree. “‘[I]f the record is clearly adequate to fairly

dispose of the claims of inadequate representation, further inquiry

is unnecessary.’” DeLuna at 760 (quoting Byrne v. Butler, 845 F.2d

501, 512 (5th Cir.), cert. denied, 108 S.Ct. 2918 (1988)). “[N]o

hearing is necessary because the state court record contains

adequate, relevant evidence on the factual basis for an

ineffectiveness claim.” Lincecum v. Collins, 958 F.2d 1271, 1280

(5th Cir.), cert. denied, 506 U.S. 957 (1992). West makes no

concrete or specific factual allegations, much less submits any

affidavits or other evidence, disputing the statements in trial

counsel’s affidavit filed in the state habeas proceedings or

51
otherwise tending to show an entitlement to habeas relief. He was

thus not entitled to an evidentiary hearing. Russell v. Lynaugh,

892 F.2d 1205, 1212-1214 (5th Cir. 1989), cert. denied, 111 S.Ct.

2909 (1991). Moreover, the state properly moved for summary

judgment, and the full state record (before the district court

below) prima facie entitled it to judgment, but West, who had the

burden of proof, filed no opposing summary judgment evidence other

than the affidavit of Dr. Brown, which does not establish either

the deficient performance or the prejudice prong of Strickland.

Summary judgment was thus proper. See, e.g., Little v. Liquid Air

Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994) (en banc).

West also argues that the district court should not have

accorded the presumption of correctness to the state trial habeas

court’s findings because the state court did not afford West a

“live” evidentiary hearing but instead relied on affidavits, and

because the state trial court was biased against him. These

contentions do not entitle West to relief. To begin with, the

record before the district court below, wholly apart from the state

habeas trial court’s findings and conclusions, failed to

demonstrate any genuine dispute as to any material fact that, if

resolved in West’s favor, would entitle him to habeas relief. As

noted, the affidavits of West’s counsel are undisputed. Indeed,

West does not even allege concrete, specific facts that, in light

of the state record (exclusive of the state trial habeas court’s

findings and conclusions), dispute such affidavits or otherwise

would entitle West to relief. Any defect in the state trial

52
court’s habeas proceedings is immaterial.47

47
Moreover, we disagree with West’s claims that the state
habeas court’s findings were not entitled to the presumption of
correctness under 28 U.S.C. § 2254(d). The fact that a “live”
hearing was not held is not controlling, and the state habeas court
can generally even resolve conflicts in affidavits, where the judge
who presided at trial also presides at the habeas hearing, as was
the case here. See May v. Collins, 955 F.2d 299, 311-314 (5th
Cir.), cert. denied, 112 S.Ct. 1925 (1992); Carter v. Collins, 918
F.2d 1198, 1202 (5th Cir. 1990). See also Perrillo v. Johnson, 79
F.3d 441, 446-47 (5th Cir. 1996). Moreover, as we said in
Lincecum, “here the state [habeas] court was not even faced with
competing affidavits,” id. at 1279, and so there was thus nothing
to have a “live” hearing about.
West’s claim of bias on the part of the state trial habeas
court does not change the result. With his unverified opposition
to the magistrate judge’s report, West filed a transcript of the
August 25, 1987, proceedings before the state habeas court, which
reflects an unsworn argument by West’s habeas counsel on an
asserted August 24, 1987, oral motion to recuse the state trial
judge (which motion to recuse does not appear of record); the oral
motion was allegedly based on the state trial court’s having
indicated to West’s habeas counsel in chambers on June 12, 1987,
the day West’s execution date was set for July 15, 1987, that the
court had “a relationship” with West’s trial counsel and thought
highly of him and that he had done a good job representing West,
and that “the only action this Court would like to be involved in
in the future with regard to Mr. West would be to see the
motherfucker fried.” On July 9, 1987, West (represented by the
same habeas counsel throughout) filed his state habeas petition in
the state trial court (on July 13, 1987, the state trial court
reset West’s execution date for September 2, 1987) and he filed an
amended state habeas petition on August 23, 1987, and on August 24,
1987, a state habeas motion for evidentiary hearing and for funds
for expert assistance; in none of these filings does West seek
recusal of the state trial judge, though he had known of the
alleged grounds since June 12; nor did West ever raise any such
matter in the Court of Criminal Appeals) (whose decision was
entered August 31), which is the only court empowered to finally
act on the writ. Briddle at 375 & n.18. No valid reason for not
raising the matter earlier has been suggested. Any denial of
West’s alleged oral motion was not improper, due to its lateness
and obvious delaying purpose. Since the motion, if any, was
untimely and not in writing (or verified), under Texas law it did
not have to be acted on by another judge. See DeBlanc v. State,
799 S.W.2d 701, 705 (Tex. Crim. App. 1990). Moreover, the alleged
comment about West (even if the state court were required to trust
an unverified statement as to an unrecorded remark made more than
two months previously, which it was not) was obviously based on
matters learned at trial and, though inappropriate, does not reveal

53
 We reject West’s contentions on appeal respecting ineffective

assistance of counsel and the denial of an evidentiary hearing.

Conclusion

For the reasons stated, we affirm the district court’s denial

of habeas relief.48

AFFIRMED.

“such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Liteky v. United States, 114 S.Ct. 1147,
1157 (1994). This is particularly so where there were no conflicts
in the evidence to resolve and no need for a hearing. Cf. Lincecum
at 1279, 1280.
48
After West’s appeal was lodged in this Court, West, through
counsel, moved in this Court “to Enlarge the Record” to include an
affidavit of counsel, likewise executed by counsel after this
appeal was filed, concerning matters allegedly known to counsel
well prior to the filing of the state’s motion for summary judgment
below. The state has opposed the motion. We deny it. None of
what is sought to be included was filed or tendered to the district
court below (or to the state courts) and no good reason appears why
it was not. All other pending undisposed of motions are denied.
All stays of execution heretofore entered herein are vacated.

54