Hogue v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-10160

JERRY LEE HOGUE,
Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.

________________________________________________

Appeal from the United States District Court for the
Northern District of Texas
________________________________________________
December 12, 1997

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Jerry Lee Hogue (Hogue) appeals the

district court’s denial of his petition for habeas corpus under 28

U.S.C. § 2254 challenging his 1980 Texas conviction and death

sentence for murder committed while committing arson. Hogue’s

primary complaint on appeal is that the admission in evidence at

the punishment phase of his trial of a 1974 Colorado guilty plea

rape conviction, which in 1994 a Colorado court set aside finding

Hogue’s counsel there had provided constitutionally ineffective

assistance, rendered his death sentence invalid under Johnson v.
Mississippi, 108 S.Ct. 1981 (1988). We reject this claim, holding

it procedurally barred by Hogue’s failure to object at trial, and,

alternatively, because we conclude that under Brecht v. Abrahamson,

113 S.Ct. 1710 (1993), the admission of the prior conviction did

not substantially influence the jury’s answer to either of the two

punishment issues. We also hold that Hogue is entitled to no

relief on either of the two remaining contentions he raises in this

appeal, one relating to an allegedly biased juror and the other to

the constitutional validity of treating murder while committing

arson as a capital offense where the death is caused by the arson.

Accordingly, we affirm.1

FACTUAL AND PROCEDURAL BACKGROUND

Hogue was indicted for the January 13, 1979, murder of Jayne

Lynn Markham (Markham) committed in the course of committing arson,

contrary to Texas Penal Code § 19.03(a)(2).2 At his March 1980

1
This habeas petition was filed (and ruled on below and
certificate of probable cause was granted) prior to the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). The provisions of AEDPA §§ 101-106, codified at 28 U.S.C.
§§ 2241-2255, are inapplicable to habeas cases filed prior to its
effective date. Lindh v. Murphy, 117 S.Ct. 2059 (1997). We have
held that “Texas is not yet eligible to take advantage of the
provisions” of AEDPA § 107, codified at 28 U.S.C. §§ 2261-2266.
Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated in
other respects, 105 F.3d 204 (5th Cir. 1997). Consequently, we
apply the law as it exists apart from the AEDPA.
2
Texas Penal Code § 19.03(a)(2), as in effect when the offense
was committed and when Hogue was tried, provided that capital
murder was committed if one committed murder (defined in Texas
Penal Code § 19.02 as “intentionally or knowingly causes the death
of an individual”) “and . . . (2) the person intentionally commits
the murder in the course of committing or attempting to commit
kidnaping, burglary, robbery, rape, or arson.” Arson is defined in
Texas Penal Code § 28.02(a) as being committed by a person “if he
starts a fire or causes an explosion . . . without the effective

2
trial, at which Hogue was represented by attorneys Coffee and Roe,

the jury found Hogue guilty of capital murder and following the

subsequent punishment hearing answered affirmatively each of the

two special issues called for by the then version of Texas Code of

Criminal Procedure Art. 37.071, finding that Hogue’s conduct

causing Markham’s death was committed deliberately with the

reasonable expectation that her or another’s death would result and

that there was a probability he would commit criminal acts of

violence constituting a continuing threat to society.3 Hogue was

accordingly sentenced to death. On direct appeal, Hogue was

initially represented by attorney Burns, who, on Hogue’s request,

was replaced by attorney Gray. In March 1986, the Texas Court of

Criminal Appeals, en banc, unanimously affirmed the conviction and

consent of the owner and with intent to destroy or damage the
owner’s building or habitation.” The indictment alleged that
Hogue:

“did then and there intentionally cause the death of an
individual, Jayne Lynn Markham, by setting fire to the
house occupied by the said Jane Lynn Markham, and as a
result of the said fire, the death of the said Jayne Lynn
Markham was caused by asphyxiation due to smoke and
carbon monoxide and caused by conflagration to the body
of the said Jayne Lynn Markham, and the death of the said
Jayne Lynn Markham was intentionally committed in the
course of committing and attempting to commit the offense
of arson; . . .”

3
A prior trial in December 1979 had terminated during jury
deliberations at the guilt-innocence stage when a mistrial was
declared following the court’s receipt of a note from the jury
foreman stating “we have followed your additional instructions and
have continued our deliberations. Nothing has changed. We still
stand 10 Guilty 2 Not Guilty with no reasonable expectation of a
change of opinion.”

3
sentence (two judges concurred in the result without opinion), and

in October 1986 the Supreme Court denied certiorari. Hogue v.

State, 711 S.W.2d 9 (Tex. Crim. App.), cert. denied, 107 S.Ct. 329

(1986).

Prior Habeases

There then ensued a lengthy series of habeas filings by Hogue

and his attorneys, which we outline as follows.4

In January 1987, Hogue, through attorney Alley, filed his

first state habeas, which was amended on February 18, 1987. An

evidentiary hearing was held on this petition on February 24, 1987,

at which Hogue was represented by Alley. The petition was

ultimately denied by the Court of Criminal Appeals on March 18,

1987. In the meantime, Hogue’s execution had been set for March

24, 1987. On March 20, 1987, Hogue, again through Alley, filed

his second state habeas petition and motion for stay of execution,

each of which the Court of Criminal Appeals denied on March 22,

1987. On the same day, Hogue, through Alley, filed in the district

court below his first federal habeas. The district court granted

a stay of execution. On May 7, 1987, Hogue, pro se, moved to

dismiss Alley, alleging that Alley was not authorized to file the

federal habeas petition. On May 27, Hogue, pro se, moved to amend

the federal petition to add forty-nine additional grounds. On July

9, 1987, the district court dismissed the federal petition without

prejudice as having been filed without Hogue’s authorization, and

4
A more detailed description appears in the district court’s
opinion. See Hogue v. Scott, 874 F.Supp. 1486, 1496-1500, 1512-
1514 (N.D. Tex. 1994).

4
vacated the stay of execution. On August 11, 1987, Hogue, pro se,

filed his third state habeas application, and on August 19, 1987,

attorney Burns filed a state habeas application on Hogue’s behalf.

These latter two applications were treated as consolidated and on

September 25, 1987, were denied by the Court of Criminal Appeals,

which also denied stay of execution, which had been set for

September 29, 1987.

Also on September 25, 1987, Hogue, through attorneys Mason and

Bruder, filed in the district court below an application for stay

of execution to permit the filing of a habeas petition in that

court, and the district court granted the stay. On October 17,

1987, the district court issued its order directing that Hogue, on

or before January 8, 1988, file a habeas proceeding in that court

under section 2254 or a state court habeas proceeding, in which

Hogue would “present each and every claim known to Petitioner or

his counsel on pain of waiver.” On January 8, 1988, the district

court, on motions filed that day by Hogue, extended the January 8,

1988, deadline to January 22, 1988. On March 29, 1988, the

district court, having learned that Hogue was pursuing a state

habeas proceeding, vacated the stay of execution it had previously

entered and dismissed without prejudice the federal proceedings.

Previously, on January 22, 1988, Hogue, through Mason and

Bruder, had filed his fourth state habeas petition (identified in

the state trial court as No. C-3-1330-162441-D). Evidentiary

hearings, at which Hogue was represented by Mason, were held on

this petition on March 24, 1988 (at which Bruder was also present

5
on behalf of Hogue), and August 8, 1988, and a deposition was taken

(at which Hogue was represented by Mason). The state trial court

made findings of fact and conclusions of law and recommended denial

of relief. On January 9, 1989, the Court of Criminal Appeals

issued its order denying relief on this habeas (Court of Criminal

Appeals No. 16,907-4), noting that it had “carefully reviewed the

record” and that “the trial court’s findings and conclusions are

fully supported by the record.”

On April 13, 1989, Hogue, through Mason and Bruder, filed

another section 2254 petition in the district court below. On

April 18, 1989, the district court stayed Hogue’s execution, which

had been scheduled for April 20, 1989. On March 16, 1990, Hogue,

through Mason and Bruder, moved to dismiss or stay the section 2254

proceedings so he could return to state court to seek relief

suggested by Penry v. Lynaugh, 109 S.Ct. 2934 (1989). In July

1990, Mason and Bruder filed a motion to withdraw from their

representation of Hogue as he had claimed their inadequate

representation entitled him to relief. Also in July 1990, Hogue,

pro se, filed in the federal proceeding a pleading complaining of

his counsel’s failure to investigate certain claims and, later, a

memorandum opposing the request of Mason and Bruder to withdraw.

On August 22, 1990, the district court appointed Mason and Bruder

under the Criminal Justice Act, so they could be compensated, and

also appointed an investigator to assist them. This order directed

that by October 19, 1990, a supplemental pleading be filed

asserting each issue Hogue sought to raise. On November 16, 1990,

6
Hogue, pro se, moved in the federal proceeding to dismiss Mason and

Bruder, and to dismiss his section 2254 proceeding without

prejudice so he could return to state court. The district court

on March 7, 1991, dismissed the cause without prejudice, noting

Hogue’s November 16, 1990, motion.

On March 22, 1991, Hogue, pro se, filed his fifth state habeas

petition (identified in the state trial court as No. C-3-1647-

16241-E). On August 5, 1991, the state trial court recommended

denial of relief and transmitted the file to the Court of Criminal

Appeals. On September 18, 1991, the Court of Criminal Appeals

entered its order on this application (identified in the Court of

Criminal Appeals as Writ No. 16,907-05), reciting that “[a]ll of

the allegations have been raised and rejected either on direct

appeal or in previous applications for writ of habeas corpus” and

“[w]e hold that the applicant’s contentions are not only without

merit but have been waived and abandoned by his abuse of the writ

of habeas corpus.” The order goes on to direct the Clerk of the

Court of Criminal Appeals:

“not to accept or file the instant application for writ
of habeas corpus. He is also instructed not to accept in
the future any applications for a writ of habeas corpus
attacking this conviction unless the applicant has first
shown that any contentions presented have not been raised
previously and a showing is made that they could not have
been presented in any earlier application for habeas
corpus relief.”5

Meanwhile on September 3, 1991, Hogue, through attorneys

5
The September 18, 1991, order at this point continues by
citing Ex Parte Dora, 548 S.W.2d 392 (Tex. Crim. App. 1977) and Ex
Parte Bilton, 602 S.W.2d 534 (Tex. Crim. App. 1980).

7
Crocker (whom the state trial court had appointed to represent

Hogue on May 2, 1991) and Owen, tendered for filing in the state

court on Hogue’s behalf his sixth state habeas application

(identified in the state trial court as No. C-3-1647-16241-F).

This application, which runs 173 pages exclusive of exhibits,

asserts 36 grounds for relief. On October 17, 1991, the state

trial court signed an order, responsive to the Court of Criminal

Appeals’ September 18, 1991, order, identifying three issues raised

in Hogue’s sixth state habeas “which have not been and could not

have been raised in previous proceedings.” In response to a motion

filed November 13, 1991, by Hogue, through Crocker and Owen, the

state trial court modified its October 17, 1991, order by slightly

rewording its statement of the three available issues.6 In

December 1991, the state trial court denied a motion filed by

Hogue, through Crocker and Owen, to permit the filing of Hogue’s

sixth state habeas petition. On March 6, 1992, the state trial

6
The three available issues thus identified in this order are
as follows:

“A. The state prevented counsel from investigating,
developing, and presenting relevant mitigating
evidence in support of a life sentence for Mr.
Hogue.

B. Trial Counsel denied Mr. Hogue effective assistance
of counsel throughout the course of his trial:
Failure to investigate and present mitigating
evidence.

C. The Texas capital sentencing statute improperly
precluded the jury from considering evidence in
mitigation of Mr. Hogue’s sentence.”

8
court issued an order adopting, with modifications, the state’s

proposed memorandum, findings, and conclusions, recommending denial

of relief with respect to the three available issues identified in

the trial court’s October 17, 1991, order as modified (see note 6,

supra). The March 6, 1992, order directed that the file be

transmitted to the Court of Criminal Appeals, where it was received

March 11, 1992. On March 16, 1992, the Court of Criminal Appeals,

through its Executive Administrator, wrote the state trial court

with respect to Hogue’s sixth state habeas writ (reflecting copies

being sent to Hogue, Crocker, counsel for the state, and the state

district clerk) as follows:

“Re: Writ No. 16,907-06
Jerry Lee Hogue
Trial Court No. C-3-1647-16241-F

Dear Judge Leonard:

On September 18, 1991, this Court entered an order
citing the above referenced applicant with abuse of the
writ.

The present application does not satisfy the
requirements for consideration set out in the order
described above. Therefore, this Court will take no
action on this writ.

For further information see Ex parte Dora, 458
S.W.2d 392 (Tex.Cr.App. 1977).”

Hogue’s execution was thereafter set for May 28, 1992. There

were no further state court filings.

This Habeas

The instant section 2254 petition was filed by Hogue, through

9
Crocker and Owen, on May 19, 1992.7 It is 184 pages long (and is

accompanied by more than 700 pages of exhibits and by a memorandum

which, together with its own exhibits, occupies more than 400 pages

in the record) and raises 33 grounds of relief. On May 22, 1992,

the district court granted Hogue’s requested stay of execution. On

June 12, 1992, an amended habeas petition was filed, adding two

grounds for relief, but not otherwise altering the original

petition. On November 2, 1992, the State filed its answer and

motion for summary judgment. The matter was referred to a

Magistrate Judge for recommendations and proceedings as deemed

appropriate. On March 14, 1994, the Magistrate Judge issued a 126-

page report and recommendations, recommending denial of all relief.

Hogue filed objections to the report and recommendations. The

district court afforded de novo consideration to all of Hogue’s

asserted grounds for relief. On November 16, 1994, the district

court entered judgment denying all relief, together with a thorough

and comprehensive opinion reciting in detail the course of

proceedings at trial and on direct appeal, the evidence presented

at trial, and the course of Hogue’s prior habeases, and addressing

and disposing of all of Hogue’s asserted grounds for relief in his

current habeas. Hogue v. Scott, 874 F. Supp. 1486 (N.D. Tex.

1994). On January 18, 1995, the district court denied Hogue’s Rule

7
Hogue has been represented by counsel in the district court,
and in this Court, throughout all stages of the instant section
2254 proceedings.

10
59(e) motion with a brief opinion. Id. at 1545-46.8

Offense Circumstances

The Court of Criminal Appeals’ opinion generally describes the

circumstances of the offense:

“The evidence introduced at trial showed that appellant
[Hogue] and his wife rented a house located at 2412
Southcrest in Arlington on November 9, 1978.
Approximately one month later, on December 4, 1978,
appellant and his wife vacated the house without turning
in their key, leaving a refrigerator, a round wall
ornament and some trash. The property was cleaned up and
on December 24 the house was leased to Mary Beth Crawford
and Jayne Markham. Living at the house with the two
women were Markham’s eight-year-old son and Steve Renick,
a friend of the women.

On a Wednesday, January 10, two days before the
commission of this grisly and brutal crime, appellant
returned to the house. When Markham answered the door,
appellant told her he had lived in the house and had left
a wall hanging at the house and asked if he could get it.
Markham let appellant in the house and they began
conversing. Apparently some sort of amiable relationship
between Markham and appellant was struck because
appellant stayed at the house for quite a long time that
evening. On Thursday, appellant again showed up at the
house. Markham had agreed to buy some used furniture
from appellant so she went with him to pick up the
furniture. When they arrived back at the house, once
again appellant stayed for the duration of the evening.
Eventually the women went to bed and only appellant and
Renick were awake. Appellant asked Renick if he knew
where he could get a gun. Renick showed appellant the
gun he kept in his footlocker. After cleaning the gun,
Renick loaded it and placed it back inside the
footlocker.

Appellant was at the house again early the next
morning. Renick went to work and Crawford took Markham’s
son to school. On her way home she stopped at the
grocery store. When she returned home, she prepared
breakfast for herself, Markham and appellant. Crawford
noticed that Markham seemed upset. While the trio were
eating breakfast, appellant suddenly blurted out that he

8
Hogue filed a timely notice of appeal, and on February 14,
1995, the district court issued a certificate of probable cause.

11
was a police officer and that he was arresting them for
possession of marihuana. When the women asked for some
sort of identification, appellant said that he did not
have any with him but that his real purpose was to arrest
Steve Renick because he was a heroin dealer. Appellant
told the women to cooperate, to stay in his sight all day
long and not to talk to each other. He then had them go
into Markham’s bedroom. Appellant left the bedroom and
shortly thereafter the women heard a breaking noise.
They followed the noise and found appellant going through
Renick’s footlocker.

Appellant found Renick’s gun inside the footlocker.
Appellant pointed the gun at the women and told them he
was going to handcuff one of them. He proceeded to
handcuff Markham; he put Crawford into a closet. After
a period of ten minutes, appellant opened the closet
door. He had the gun in his hand and was nude from the
waist down. Appellant stepped inside the closet, pointed
the gun at Crawford’s head and instructed her to removed
her clothes. When Crawford replied that she would not
and she had venereal disease, appellant backed out of the
closet and shut the door.

A short while later appellant removed Crawford from
the closet and led her into the dining room. There she
saw Markham nude and blindfolded, lying face down on the
floor with her hands cuffed behind her. Appellant told
Crawford to remove all of her clothes except her
underwear and to lie down beside Markham. After a few
minutes, appellant forced Crawford to commit oral sodomy
upon him. Thereafter, appellant again put the women in
the bedroom. Crawford was put back into the closet
while appellant raped Markham. Then appellant
blindfolded both women and forced both of them to lay on
the bed. He then proceeded to go through Markham’s
purse.

Appellant later permitted both women to get dressed.
He instructed the women not to talk to each other and at
a point during the day when he caught the women talking
he took Crawford into her room and handcuffed her to her
bed. At 3:15 p.m., Markham’s son returned home from
school. Appellant made him go to his mother’s room and
remain there. Around 6:00 p.m., Renick came home.
Appellant, carrying the gun and a pair of handcuffs, met
Renick at the front door. Renick was immediately
handcuffed and led into Markham’s bedroom. Appellant
told Renick that he was a narcotics agent and was
arresting him. Appellant took Renick’s wallet and then
moved Renick into Crawford’s bedroom where he was
handcuffed to the bed. Over the next few hours appellant

12
moved through the house, shuffling his prisoners from
room to room. Throughout the evening appellant made
numerous threats to kill them all. At one point
appellant led Crawford into the living room and had her
sit on the couch. Appellant left the room and when he
returned he was carrying a butcher knife. He stabbed
Crawford in the stomach and then dragged her into a
bathroom. A short time later, he had both women go back
into the living room. There he told them he was a hit
man and had a contract out for each of them. Appellant
then took Crawford into the third bedroom. By this time
Crawford was bleeding heavily, was in intense pain, and
was passing in and out of consciousness.

Appellant brought Markham into the room where Renick
was now confined. By this time Renick’s hands had been
tied to the headboard and his feet had been bound
together. Appellant proceeded to bind Markham by tying
her hands behind her back, tying her feet together and
then taking a wire and tying her feet to her hands. When
Renick and Markham begged appellant to release them so
that they could take Crawford to the hospital, appellant
said he was a hit man and he was going to kill them all.
Appellant left the room. Soon the victims began to smell
gasoline. They could hear the appellant in the attached
garage coughing and sputtering. After a while appellant
came back into the bedroom carrying a Prestone antifreeze
can and a rolled up newspaper. Appellant again told
Markham and Renick that he was going to kill them all.
He then left the room. The victims saw appellant backing
down the hallway, pouring a liquid out of the antifreeze
can. They soon began to smell gasoline. Suddenly, fire
roared through the hallway and flames began shooting into
the bedroom where Renick and Markham were tied up.

Renick managed to free himself, break a window and
jump outside. He then tried to go back in and rescue
Markham who was screaming but the flames were too
intense. When the screaming stopped, he ceased his
efforts. He then ran to the window of the bedroom in
which Markham’s son was sleeping. He was able to pull
the child out of the window. Crawford, awake at the time
of the fire’s ignition, managed to jump out of a bedroom
window. She ran next door to summon help. On her way to
the neighbors, she saw appellant climbing into his car.
She ran to the neighbors’ house and rang the doorbell.
The neighbors found her collapsed on the ground.

Emergency vehicles responded to the fire call at
1:14 a.m. When they reached the scene, the house was
fully involved. Markham’s body was found by fireman
inside the house. Her hands and feet had been tied

13
 behind her back, leaving her body in a crouched position.
An autopsy showed that her hands and feet were tightly
bound with insulated wire.

Police found a Prestone antifreeze container sitting
just inside the doorway of the laundry room. It smelled
heavily of gasoline. They also found two sections of
garden hose on the floor of the garage lying next to a
vehicle that had been parked in the garage. These also
smelled of gasoline. A fire investigator concluded that
more than two gallons of gasoline had been used to start
the fire. He determined that the fire had been
deliberately set.” Hogue, 711 S.W.2d at 10-12 (footnote
omitted).

The testimony, witness by witness, is described in greater

detail in the district court’s opinion. Hogue v. Scott, 874

F.Supp. at 1500-1511. Hogue testified at the guilt-innocence

stage——though not at the punishment stage——and, as the district

court observed, his rendition of the events “was virtually a

reversal of the roles other witnesses assigned to Hogue and

Renick.” Id. at 1509. Hogue stated that Markham wanted to get

Renick out of the house as white powder had been found in his

footlocker and she thought he was dealing drugs. Consequently,

when Renick returned to the house from work about 6:00 p.m. Friday,

January 12, 1979, Hogue came up behind Renick and put his knuckle

in Renick’s back, making Renick think he had a gun, and under the

threat of this imaginary gun forced Renick to lie down, and then

handcuffed him.9 He then took Renick to a bedroom, removed the

handcuffs and re-handcuffed Renick to the bed. Later, after

consulting with Markham and after Renick promised to leave, Hogue

9
The state’s evidence had shown that Hogue had purchased
handcuffs on January 2, 1979. Hogue testified that he had bought
them for a friend, but offered no explanation of why he still had
them on January 12.

14
unhandcuffed Renick. Some time later, as Hogue and Markham were

talking, Renick appeared with a pistol in hand and told them to go

into a bedroom, which they did. Hogue then heard Crawford and

Renick talking about dope, heard Crawford scream, and saw her run,

bent over, into Renick’s bedroom. Holding the gun on Markham and

Hogue, Renick tied them up. Sometime later Renick untied Hogue and

forced him to siphon gas out of a vehicle in the garage and put it

in a Prestone antifreeze can and some milk cartons. Renick then

told Hogue to spill the gas, Hogue refused, and Renick took him

back to the bedroom, where Markham was tied, and retied him.

Renick left the room. Later, Hogue smelled gas. He broke the

bedposts to which he was tied and began untying Markham. Renick

appeared in the door, Hogue kicked at him and missed, and his

momentum carried him into the hallway; Renick “back[ed] off down

the hall,” and “brought the gun up.” Hogue then ran out of the

house. When he reached the street, he saw the house suddenly go up

in flames. He thought he saw Renick standing at the side of the

house. Hogue jumped in his car and drove off.

After a thorough review of the evidence, we are in full

agreement with the district court’s conclusion that Hogue’s version

of the events “when weighed against the other evidence in the case,

is so lacking in credibility that no reasonable trier of fact would

accept it.” Hogue v. Scott at 1509.

Hogue was found by the police some twenty-four hours after the

fire, shortly after 11:00 p.m. Sunday, January 14, 1979, alone in

a friend’s small upstairs apartment, which was totally dark,

15
hiding, fully clothed, in the shower stall behind the closed shower

door in the bathroom. Though the police had announced their

presence and stated they were looking for Hogue, he had remained

wholly silent and hidden. Hogue knew the police were looking for

him, and he had made no attempt to contact them (or the fire

department or emergency medical services or any other authority).

He gave no explanation for this. Hogue has offered no explanation

for the testimony of Markham’s son——called as a witness by

Hogue——that Hogue held a pistol on Markham and Crawford before

Renick returned from work late Friday afternoon, January 12, then

went to the front door with the gun when Renick’s truck was heard

to drive up, stated to Renick “I am arresting you for selling

marijuana,” and returned with the gun and with Renick handcuffed,

after which Renick was handcuffed to the bed. The boy also

testified that Renick removed him from the burning house. The two

neighbors testified as to Crawford and Renick’s fleeing to their

house, Renick’s desperate efforts to save Markham and the boy,

Crawford’s anguish at their fate and her spontaneous statements to

each of the neighbors concerning her near fatal stabbing by Hogue:

“I don’t know why he stabbed me. I don’t know why he did it. I

don’t know him,” and “I don’t understand why he did this to me. I

don’t even know him.” It was clearly established and undisputed

that Crawford and Renick had known each other well over a year

prior to the events in question, while prior thereto she and Hogue

were total strangers each to the other. Similarly, Crawford’s and

Renick’s statements to the neighbors, and to the police who shortly

16
arrived, were excited utterances and were consistent with their

trial testimony, which was also corroborated by their physical

condition (e.g., Renick’s arms were cut and bleeding, his hair and

beard were singed, and he had no shoes on; Crawford was suffering

a near-fatal stab wound) and actions then as testified to by other

witnesses, including the police and the neighbors.

Prior Conviction Impeachment

In cross-examination of Hogue (at the guilt-innocence stage),

the state was permitted to ask him, for impeachment purposes only,

whether he had been convicted in September 1974 for rape in

Colorado in cause No. 6785, to which Hogue replied “I plead guilty

to a fourth class felony of rape, yes, sir” and went on to state

that he had served ninety days of his three-year sentence (he

subsequently admitted he had later served an additional sixty days

of that sentence).10 Defense counsel objected on the sole ground

that under Texas “Code of Criminal Procedure[s] [art.] 38.29" the

conviction “is not a final conviction.”11 Just before Hogue took

10
On redirect of Hogue, defense counsel brought out that the
victim in the 1974 offense had been his “ex-wife” (nothing else
then before the jury so suggested) and the offense was “a fourth
class felony.”
The 1974 rape conviction had also been used for impeachment of
Hogue during cross-examination at his first trial.
11
Former Tex. Code Crim. Proc. art. 38.29 (which was repealed
in 1986 and replaced by Tex. Rules Crim. Evidence, Rules 608, 609)
provided in relevant part:

“The fact that a defendant in a criminal case, or a
witness in a criminal case, is or has been, charged by
indictment, information or complaint, with the commission
of an offense against the criminal laws of this State, of
the United States, or any other State shall not be
admissible in evidence on the trial of any criminal case

17
the stand, defense counsel in a hearing out of the presence of the

jury had unsuccessfully sought to preclude cross examination of

Hogue in respect to this conviction on the ground that the

conviction was not final, because Hogue’s sentence was probated and

probation had been completed. In support, defense counsel placed

before the court as Defendant’s Exhibit A (which the court admitted

for purposes of the hearing on admissibility of the conviction) the

record of the proceedings in Colorado cause No. 6785, reflecting

that: Hogue was charged in an eight-count information filed May 6,

1974, count three of which alleged rape on May 3, 1974, of Claudia

Hogue;12 on August 19, 1974, Hogue, represented by counsel Hilgers

and “[a]fter being advised of his rights as provided under Rule

11," pleaded guilty to the rape count, the two then-remaining other

for the purpose of impeaching any person as a witness unless on
trial under such indictment, information or complaint a final
conviction has resulted, or a suspended sentence has been given and
has not been set aside, or such person has been placed on probation
and the period of probation has not expired.”

Texas courts have held that this statute precludes impeachment of
a witness by a prior conviction, the sentence for which was
initially probated and the probation term has expired unrevoked.
See Wintters v. State, 616 S.W.2d 197, 200-201 (Tex. Crim. App.
1981); Thomas v. State, 578 S.W.2d 691, 699 (Tex. Crim. App. 1979);
Redman v. State, 533 S.W.2d 29, 32 (Tex. Crim. App. 1976). Such a
conviction is said not to be final. Trippell v. State, 535 S.W.2d
178, 180 (Tex. Crim. App. 1976). However, if “the witness
represents himself as a law-abiding citizen” and “denies he has
ever been convicted,” the conviction may be shown (despite
successful completion of probation). Id. at 181.
12
The other counts were kidnaping Claudia Hogue, kidnaping
Shawna Hogue, two counts of assault on Shawna Hogue, two counts of
theft from Claudia Hogue, and witness intimidation of Shawna Hogue,
all on May 3, 1974. On July 10, 1974, five of the eight counts
were dismissed on the prosecutor’s motion, the Claudia Hogue
kidnaping was reduced from first to second degree kidnaping, and
preliminary hearing was waived.

18
counts (second degree kidnaping and theft over $100) in cause No.

6785 were dismissed (as were all the four other pending

informations against Hogue, Nos. 6534, 6322, 6324 & 6325); on

September 23, 1974, Hogue was sentenced to three years on the rape

conviction, and the court denied probation; on November 27, 1974,

Hogue, through counsel Hilgers, filed a motion to modify the

sentence based on “very favorable reports” from the prison

(reformatory), copies of which were filed with the motion; on

December 23, 1974, the Colorado court, reciting that it had “read

the recommendations from the reformatory,” granted the motion to

modify and placed Hogue on probation for a two-year period; on

April 24, 1975, the probation department filed a complaint charging

that Hogue had violated his probation in four respects; on April

28, 1975, Hogue, represented by counsel Truman, pleaded not guilty

to the probation violation complaint; another probation violation

complaint was filed by the probation department on August 6, 1975,

alleging August 3, 1975, law violations (sexual assault and

burglary); on November 10, 1975, attorney Gray appeared for Hogue

(apparently not the same Gray who later represented him on direct

appeal of his 1980 conviction); on November 24, 1975, the August 6,

1975, probation complaint based on violation of law was withdrawn;

on December 8, 1975, Hogue, represented by Gray, pleaded guilty to

and was found guilty of probation violations in cause No. 6785, the

three-year sentence in that cause was reimposed, and Hogue was

ordered to the state penal institution, with credit for 91 days

served there and for 125 days in local confinement (two other

19
criminal cases against Hogue, Nos. 7638 and 7487, were also then

dismissed); on February 9, 1976, Hogue, through Gray, moved to

modify the sentence in No. 6785 by placing Hogue on probation; on

March 1, 1976, the Colorado court granted that motion and ordered

that “the balance of” Hogue’s “sentence” be suspended and that he

be released from custody and placed on probation for a period to

expire December 23, 1976; on January 6, 1977, the Colorado court

ordered the probation supervision discontinued and terminated the

No. 6785 proceedings against Hogue because the period of his

probation had expired.13 None of this evidence was placed (or

sought to be placed) before the jury.

Defense counsel’s motions in limine had sought to establish

with respect to this 1974 Colorado rape conviction that “the

Defendant was placed on probation which probation was successfully

completed and terminated on the 6th day of January, 1977.” At

argument before the court, out of the presence of the jury, counsel

contended, after the court had indicated that it would allow Hogue

to be impeached by the prior conviction, “our objection to the

court’s ruling comes from Code of Criminal Procedure 39.29 [sic],

where it says in that Article, that,” and counsel then read from

Tex. Code Crim. Proc. art. 38.29 (quoted in note 11, supra),

13
On September 7, 1976, the Colorado probation department had
filed a complaint alleging that Hogue violated his probation,
citing a Texas grand jury indictment charging Hogue with committing
rape on August 2, 1976; on January 6, 1977, the Colorado probation
department moved that the September 7, 1976, complaint be withdrawn
because the rape charge was “dismissed January 4, 1977, as the
victim refused to testify” and that supervision be terminated “as
his [Hogue’s] period of probation had expired.”

20
concluding with the language thereof indicating that a probated

sentence was not admissible for impeachment unless “the period of

probation has not expired.” Counsel went on the argue that the

Colorado records showed that Hogue’s “probation was terminated by

the court on January the 5th, 1977" and “[w]e would take exception

to the Court’s ruling based upon Article 38.29 and on Defendant’s

Exhibit A that has been admitted before the court.” The court

ruled that the prior conviction was admissible as impeachment

because Hogue’s sentence was not originally probated and he served

time under that sentence in the state penal institution, and also

because when his sentence was later first probated that probation

was revoked and he again served time in the state penal institution

under the original sentence. The trial court also instructed the

jury, in its charge at the guilt-innocence stage, that the prior

conviction evidence “cannot be considered by you against the

defendant as any evidence of his guilt in this case” and “was

admitted before you for the purpose of aiding you, if it does aid

you, in passing upon the weight you will give his testimony, and

you will not consider the same for any other purpose.”14 There was

no objection to this instruction, nor any request for other or

14
Notwithstanding this instruction, defense counsel argued to
the jury at the guilt-innocence stage that “I know one thing, of
course, as soon as NCIC got a hit on Jerry Hogue with a rape
conviction, it would appear that there was no more investigation in
connection with Steve Renick. I think the evidence would be clear
on that. Maybe that’s the reason that there wasn’t any better job
done, as far as the crime-scene search out there, I don’t know,”
and continuing about the investigation for several sentences.

21
further instructions in that respect.15

Sentencing Evidence

The testimony at the punishment phase is outlined, witness by

witness, in the district court’s opinion. Hogue v. Scott, 874

F.Supp. at 1509-1511.

The prosecution commenced by introducing a copy of the

September 23, 1974, Colorado court judgment convicting Hogue of

rape, based on his guilty plea, and sentencing him to confinement

15
On direct appeal, Hogue’s sole argument respecting the
Colorado conviction was that “the trial court erred in allowing the
State to impeach appellant with a non-final conviction during the
initial proof stage of the trial.” This argument was based
entirely on the fact that the Colorado records introduced by the
defense at the motion in limine hearing “show that Appellant
successfully completed his probation and an order was entered
dismissing the case,” and “[t]he State, therefore, violated Article
38.29 of the Texas Code of Criminal Procedure (1965) in impeaching
Appellant with the non-final conviction” because under Article
38.29 a conviction is not a final conviction admissible for
impeachment if the sentence is probated unless “probation [has] not
expired.” The Court of Criminal Appeals rejected this contention.
Hogue, 711 S.W.2d at 15-16. The court stated “the situation
presented in the instant case is not the type envisioned by the
drafters of Article 38.29,” noting that when Hogue was initially
sentenced probation was expressly denied and he served some time
before the sentence was modified to provide for probation, a
modification which resulted not from his preconviction record but
rather from his post-conviction conduct at the Colorado State
Reformatory. Id. at 15. The Court of Criminal Appeals
particularly emphasized the fact that on December 8, 1975, Hogue’s
initial probation was revoked, the original (unprobated) three-year
sentence was reimposed, and Hogue was again confined pursuant
thereto, and when, on March 1, 1976, Hogue was granted probation a
second time, only “the ‘balance’ of appellant’s sentence” was
probated, so that his incarceration (pursuant to the conviction)
“between December 8, 1975 and March 1, 1976 was never affected by
the second probation order,” and “[t]his second probationary period
may be likened to what we in Texas know as parole or mandatory
supervision.” Thus, for purposes of article 38.29 the Colorado
conviction was final at least by “December 8, 1975, when
appellant’s first probation was revoked and he was incarcerated.”
Id. at 16.

22
for an indeterminate term not to exceed three years. Out of the

presence of the jury, the state had previously announced its

intention to offer this evidence, and Hogue, personally, had stated

“I have no objection,” as did also defense counsel. At no point in

the trial was any objection ever made to this evidence; nor was any

such objection ever urged on appeal.16

16
There was nothing inconsistent between the defense objection
to impeaching Hogue by cross-examining him concerning this
conviction, on the ground that such was prohibited by Tex. Code
Crim. Proc. art. 38.29 as the conviction was non-final since
sentence had been probated and the probation completed, and the
non-objection to introduction of the conviction at the sentencing
phase of trial. Unlike instances governed by Article 38.29, which
is directed to witness impeachment (Hogue did not testify at the
sentencing stage), under Tex. Code Crim. Proc. art 37.07, sec.
3(a), the statute generally applicable to evidence at the
punishment stage, “any probated or suspended sentence which has
occurred prior to trial and whether successfully completed or not
may be known to the judge or the jury assessing punishment.” Glenn
v. State, 442 S.W.2d 360, 362 (Tex. Crim. App. 1969)(emphasis in
original). See also Moon v. State, 509 S.W.2d 849, 850-51 (Tex.
Crim. App. 1974)(same). Tex. Code Crim Proc. art. 37.071(a),
governing capital sentencing procedures, was (and is) even less
restrictive respecting evidence which may be admitted at the
punishment phase of a capital case, providing that “evidence may be
presented as to any matter that the court deems relevant to
sentence.” As the Court of Criminal Appeals has frequently held,
“[n]othing in Article 37.071, supra, requires that there be a final
conviction for an extraneous offense to be admissible at the
punishment phase.” Garcia v. State, 581 S.W.2d 168, 169 (Tex.
Crim. App. 1979). See also Brooks v. State, 599 S.W.2d 312, 322
(Tex. Crim. App. 1979)(same), cert. denied, 101 S.Ct. 3146 (1981),
reh. denied, 102 S.Ct. 25 (1981), reh. denied, 103 S.Ct. 1490
(1982); Hammett v. State, 578 S.W.2d 699, 709 (Tex. Crim. App.
1979)(same), cert withdrawn, 100 S.Ct. 2905 (1980). Indeed, under
Article 37.071(a), a defendant’s confession to completely unrelated
offenses is admissible at the punishment stage. See, e.g., Hammett
at 709. Thus, even if the objection made to use of the prior
conviction for impeachment at the guilt-innocence stage (that under
Article 38.29 the conviction was inadmissible as non-final because
sentence had been probated and the probation completed) had been
good (which it was not), nevertheless that would not have been a
valid objection to evidence of the prior conviction at the
punishment phase.

23
 Lieutenant Detective Diezei of the Boulder, Colorado Police

Department, who had been with that organization some fifteen years,

testified that in that capacity he had occasion to know that

Hogue’s reputation in that community for being a peaceable and law-

abiding citizen was bad, and that he first heard about Hogue “in

approximately 1970.”

Sara Sampson testified that she was “from out of state,” that

she knew Hogue, having first met him “about ten years ago,” and

that in the community in which she knew him his reputation for

being a peaceable and law-abiding citizen was bad. On cross-

examination, Sampson identified certain photographs as being of

Hogue, his ex-wife Claudia, and his daughter Shawna.

Karen Hightower testified that on July 25, 1976, when she was

living in an apartment in Richland Hills and was going through a

divorce, she met Hogue in the apartment building parking lot when

her car wouldn’t start and he offered to help, loaning her jumper

cables. Subsequently, she went out with him. She later told Hogue

she did not want to see him anymore, and he got angry. Thereafter,

on August 2, 1976, Hogue telephoned her, stated that he wanted “for

us to part friends,” and asked her to go with him to get a

hamburger and meet his uncle, who Hogue said was expecting them.

Not wanting to hurt his feelings, she accepted, and they went in

Hogue’s car to get a hamburger and then drove into the country,

supposedly towards the uncle’s house. Hogue stopped the car,

pulled a long knife, grabbed Hightower, threatened to kill her,

made her commit sodomy, and raped her twice (there was no

24
ejaculation). On cross-examination, she admitted that the rape

case growing out of this incident was no longer pending as,

following a mistrial therein, she “chose not to go through a

retrial.”17 Cross-examination also revealed that Hightower had been

convicted of fraud in 1978 and that her exhusband had custody of

her daughter.

The prosecution’s final punishment stage witness was

psychiatrist Dr. Grigson (also spelled in the record as Gregson).

Dr. Grigson had not examined or interviewed Hogue, or examined any

records or the like pertaining to him. In response to a lengthy

hypothetical question (occupying some 192 lines in the record),

which set out hypothetical circumstances paralleling the

circumstances of the instant offense and those immediately leading

up to it as reflected by the prosecution’s evidence (some 177

lines), and also mentioned a previous rape conviction (2 lines),

and a rape such as discussed by Karen Hightower (11 lines), Dr.

Grigson testified that a person so described “certainly would

present very much of a continuing threat to society,” and would be

such even if confined in a penal institution. Cross-examination

was almost entirely focused on what defense counsel asserted was

the impropriety of predicting future dangerousness, especially

solely on the basis of a hypothetical question, on asserted

professional criticism of Dr. Grigson for doing so, and on his

17
Evidence at a motion in limine hearing, but not put before
the jury in this case, indicates that in the rape prosecution
growing out of this incident a mistrial was declared when the jury
in that case could not reach a verdict.

25
frequent testifying and related remuneration. No counter-

hypotheticals were posed to Dr. Grigson.

The defense put on psychologist Dr. Dickerson. He, too, had

not examined or interviewed Hogue, or examined any records or the

like pertaining to him. The bulk of Dr. Dickerson’s testimony was

that future dangerousness could not be predicted, and that such

predictions were wrong two out of three times; that it was

especially improper to so predict without examination of the

individual concerned and solely on the basis of a hypothetical

question; and that a committee of the American Psychiatric

Association had condemned that practice. On cross-examination by

the state, Dr. Dickerson was unwilling to state that future

dangerousness could be predicted for anybody, no matter what they

had done in the past. A person’s past dangerousness, no matter how

clearly evidenced, simply did not justify predicting future

dangerousness. Subsequently, Dr. Dickerson was recalled by the

defense, and based on a hypothetical18 testified that the Parole

Board was very reluctant “to grant parole to someone with a history

of that sort.” Apart from this statement, Dr. Dickerson gave no

testimony about Hogue personally or by hypothetical. On cross-

examination by the prosecution, Dr. Dickerson admitted that

probably a majority of murderers who receive life sentences are

18
Defense counsel’s hypothetical related to “a crime where
there has been a woman who was, say, forced to commit oral sex, and
there is another women who was raped, and she was tied up and the
house set fire where there were three other people present, and the
person died; the person who committed that act was also found
guilty of rape; and, he was further charged with rape.”

26
granted parole.

The remaining defense punishment phase witnesses were Becky

Hogue and Mary Ebel. Becky Hogue testified that she had known

Karen Hightower “since about ‘72 or ‘76" and that her reputation

for being a truthful person was very bad.

Mary Ebel testified that Hogue was her youngest son, and she

identified three photographs as being of Hogue, his ex-wife

Claudia, and his daughter Shawna.19 Ebel testified that Claudia was

“the injured party in the rape case that sent Jerry to the Colorado

State Reformatory,” that the pictures were taken at that

Reformatory “around January of ‘76" while Hogue was there “after he

had already plead guilty and been sent to the Colorado state

Reformatory.” Ebel said she took Claudia to visit Jerry in the

Reformatory because Claudia “has no other way to go.” This was

Ebel’s only testimony at the punishment stage. The prosecution did

not cross-examine her. The three pictures were introduced in

evidence. In one, Claudia and Hogue are sitting right next to each

other (their bodies touching), Hogue’s arm around Claudia and young

Shawna sitting apparently half on the lap of each; in another,

Hogue is standing holding Shawna on his right and Claudia is on his

left and slightly behind him with both her arms around him; the

remaining picture shows Claudia and Hogue standing next to each

other (their bodies touching) and does not include Shawna. In each

picture all the subjects are smiling.

19
Sampson had likewise identified the people in these pictures
as being Hogue, his ex-wife Claudia, and his daughter Shawna.

27
 The jury was instructed that in answering the punishment

issues it could consider the evidence introduced at the guilt-

innocence stage of the trial, as well as that introduced at the

punishment stage.

DISCUSSION

I. Admission of Colorado Conviction at Sentencing

The first of the three issues raised by Hogue on this appeal

is stated in his appellant’s brief as follows: “Did the admission

of Mr. Hogue’s invalid prior felony conviction from Colorado at the

sentencing phase of his Texas capital murder trial violate the

Eighth and Fourteenth Amendments under Johnson v. Mississippi, 486

U.S. 578 (1988), and was he harmed by the violation?”20 Hogue does

not argue (and did not argue below) that any invalidity in his 1974

Colorado conviction renders his Texas capital murder conviction

20
Similarly the Summary of Argument in Hogue’s appellant’s
brief states that his first issue “concerns the admission, at the
punishment phase of Mr. Hogue’s capital murder trial, of a
constitutionally invalid and factually unreliable prior felony
conviction.”
Of the thirty-five grounds of relief alleged in Hogue’s
instant section 2254 petition and amended petition below, the only
one asserting or relying on any invalidity of the Colorado
conviction is the seventeenth ground for relief, which states:
“The admission of Mr. Hogue’s void prior conviction at the
sentencing phase violated rights guaranteed by the U.S.
Constitution.”
Hogue never presented any such claim to the Texas courts
except in his sixth Texas habeas, which the Court of Criminal
Appeals on March 16, 1992, refused to take action on because of
Hogue’s abuse of the writ, which it had previously found in its
September 18 1991, order denying Hogue’s fifth state habeas. Of
the thirty-six grounds for relief asserted in Hogue’s sixth state
habeas, the only one asserting or relying on any invalidity of the
Colorado conviction is the thirty-first ground, which states: “The
admission of Mr. Hogue’s void prior conviction at the sentencing
phase violated rights guaranteed by the U.S. Constitution.”

28
subject to attack under the Constitution or laws of the United

States (or, indeed, in any way now subject to attack).21

Consequently, we do not consider any such question.22

Colorado Court 1994 Action

In late December 1992, some seven months after the instant

section 2254 petition was filed, Hogue, through counsel, commenced

proceedings in the Colorado trial court in which he had been

convicted, on the guilty plea, of rape in September 1974, to set

that conviction aside. In an order entered June 6, 1994, the

Colorado court (a judge who had not previously been involved in

Hogue’s case) set aside Hogue’s 1974 conviction (cause No. 6785),

finding that Hogue’s then counsel, Hilgers, had rendered

constitutionally ineffective assistance. A copy of the Colorado

court’s order and memorandum opinion was filed with the district

court below on June 7, 1994.23

21
Nor did he ever present or seek to present any such issue to
the Texas courts.
22
Even if the question had been raised (and exhausted), we
would find Hogue not entitled to relief, essentially because such
a claim would be procedurally defaulted by the failure to object at
trial on the basis of any claimed invalidity in the Colorado
conviction, and in any event because the impeachment of Hogue with
reference to the conviction did not substantially influence the
jury’s guilty verdict.
23
The State of Colorado appealed the Colorado trial court’s
order on July 18, 1994, but moved to dismiss its appeal on
September 7, 1994. The motion to dismiss recites that “there are
serious, legitimate and complicated legal issues” involved,
including: the delay in bringing the attack on the conviction;
“the fact that the defendant [when he pleaded guilty in 1974] faced
numerous serious charges and his attorney arranged a plea agreement
under which all but one charge was dismissed and under which the
defendant received a minimal sentence of incarceration;” and that
defendant’s pending Texas death sentence “permeated the

29
 The Colorado trial court’s order, invoking the standards of

Strickland v. Washington, 104 S.Ct. 2052 (1984), and Hill v.

Lockhart, 106 S.Ct. 366 (1985), found that Hogue’s counsel,

Hilgers, rendered Hogue ineffective assistance in connection with

his August 19, 1974, plea of guilty to rape in cause No. 6785.24

This determination was based on findings that Hilgers, an attorney

licensed in 1972 (and disbarred in 1980) who had never tried a

felony case, “conducted no investigation and talked to no

witnesses, other than talking to the defendant” and waived a

preliminary hearing, all without any “reasonable tactical purpose.”

Hilgers had Hogue take a polygraph test, the results of which were

adverse to Hogue. The Colorado court found that “[b]efore the

consideration of” the motion to set aside the 1974 conviction. The
concluding paragraph (just before the formal request for relief) of
the motion to dismiss the appeal states: “Although the People
continue to believe that the order below includes substantial legal
errors and that continuing this appeal would be legitimate and
appropriate, the People have also concluded that other aspects of
this case cloud the issues so that it is not in the public interest
to pursue this appeal.” The appeal was dismissed by the Colorado
Court of Appeals on September 27, 1994, by the notation “granted”
being then stamped on the first page of the State of Colorado’s
motion to dismiss the appeal.
24
Hilgers also represented Hogue in four other Colorado
criminal causes brought against him; Nos. 6322, 6325, and 6534 were
felony menacing charges (No. 6534 also including second degree
kidnaping) in each of which Claudia Hogue was the complainant, and
No. 6324 charged theft. Nos. 6322, 6324 and 6325, were put on
“deferred prosecution” in October 1973, which the Colorado court
described as “the most lenient possible” disposition “[s]hort of
outright dismissal.” Each of these four cases——as well as the then
remaining two other counts (second degree kidnaping of Claudia
Hogue and theft) in cause 6785——were dismissed as part of the plea
agreement on August 19, 1974, when Hogue pleaded guilty to the rape
count in No. 6785. On July 10, 1974, the other five counts in No.
6785 had been dismissed, the Claudia Hogue kidnaping count had been
reduced from first degree to second degree kidnaping, and
preliminary hearing was waived.

30
polygraph exam, he [Hilgers] believed the defendant’s version of

the facts, and expected that the polygraph would establish the

defendant’s innocence,” but that “[a]fter receipt of the polygraph

results shortly after June 28, 1974," Hilgers became “panicky” and

decided to dispose of the case “at almost any cost, because he had

faith in the polygraph and no longer believed his client.”

Subsequently, the prosection made the offer to Hilgers on the basis

of which Hogue ultimately pleaded guilty (see note 24, supra),

Hilgers communicated the offer to Hogue, and “took the position

that the defendant must accept the offer because Mr. Hilgers felt

there was a substantial likelihood of conviction.” However,

Hilgers “was focused primarily on his own desire to avoid trial,”

“his advice was not based on an informed judgment,” and “his

recommendation was not the product of an intelligent choice among

reasonable alternative courses.” Hogue “reluctantly accepted the

advice from Mr. Hilgers, although, to this date, he has always

maintained his innocence.” The Colorado court concluded that

“there is a reasonable probability that, if competent counsel had

developed the facts, he or she would not have recommended a guilty

plea and the defendant would not have pled guilty” and that “there

was a reasonable probability that at a trial on the charge the

defendant would have been acquitted.”25

25
The court based this conclusion in part on the testimony of
attorney Hale (who had been the prosecutor in cause No. 6785, as
well as in No. 7304, another charge of rape and felony menacing of
Claudia Hogue and robbery of Sara Sampson of which Hogue was
acquitted in a later jury trial), that “he believed there was a
reasonable probability of acquittal.” The court accepted his
testimony as creditable, although noting Hale’s “opposition to the

31
 The Colorado Court, however, did not find that no competent

counsel would have advised Hogue to plead guilty. The court stated

it was “not unmindful of the prosecution’s argument that, in the

context of the plea bargain package, the defendant can be said to

have done quite well. However, the issue is not that, but whether

this rape conviction is valid. And what is important is not

outcome alone.”26 The court also remarked, in reference to cause

No. 7304, in which Hogue was later acquitted, “[o]f course, there

was less at risk in that case than there was for the defendant here

[in No. 6785].” Nor did the Colorado court find that Hogue was in

fact innocent of the rape charge in cause No. 6785. It stated that

“[t]he Court has no way of knowing whether Claudia Hogue’s

allegations in this case were true. And the Court does not mean to

demean her in any way by this ruling.”

At the end of its opinion, the Colorado trial court stated

death penalty” and that “Hale recognized his biases and explained
how he struggled to exclude their contaminating affect from his
testimony.” The court also relied on the acquittal in cause No.
7304 and on the fact that cause No. 7487, which alleged that on
April 3, 1975 Hogue sexually assaulted and burglarized Claudia
Hogue, was dismissed by Hale on December 8, 1975 because Hale
“thought she [Claudia] had lied” at the preliminary hearing in that
case.
26
All other pending charges against Hogue (including two
kidnaping and three felony menacing charges) were dismissed and he
received a three-year sentence of which he served only ninety-one
days until, on the motion of his attorney Hilgers, he was granted
probation; after that probation was revoked (on Hogue’s guilty plea
to probation violation while represented by attorney Gray), Hogue
served some eighty-two more days until his sentence was again
probated, after which he served no further time thereunder. The
charge of rape as a class four felony exposed Hogue to a maximum
sentence of ten years, as also did each of the two second degree
kidnaping charges. See Col. Rev. St. (1973) §§ 18-1-105, 18-3-302.

32
“[f]urther, because the defendant was ineffectively represented at

the plea hearing, his plea is invalid under Boykin [v. Alabama, 89

S.Ct. 1709 (1969)], as well.” This constitutes the Court’s only

discussion of Boykin, and the opinion contains no recitation of

facts relevant to Boykin, as distinguished from Strickland or

Hill.27 There is no suggestion the court taking Hogue’s guilty plea

did not personally advise him on the record, and in open court in

the presence of his counsel, of all his relevant constitutional

rights, of the elements of the offense, and of the range of

punishment to which his plea exposed him, and of every other

constitutionally required matter.28 Nor is there any finding that

27
Boykin, a guilty plea direct appeal case, concerned the
failure of the record to reflect that the court advised the
defendant of his privilege against compulsory self-incrimination,
his right to trial by jury, or his right to confront his accusers,
the Supreme Court observing “[w]e cannot presume a waiver of these
three important federal rights from a silent record.” Id. at 1712.
The court had previously noted that “[s]o far as the record shows,
the judge asked no questions of petitioner concerning his plea, and
petitioner did not address the court.” Id. at 1710.
28
The August 19, 1974, order accepting the guilty plea (and
dismissing the other charges) recites that prior to pleading guilty
Hogue (accompanied by counsel Hilgers) was “advised of his rights
as provided under Rule 11.” This was apparently on the record, as
the Colorado court’s 1994 order does not suggest otherwise and
does recite “Mr. Gray did not examine the transcript of the August
19, 1974 providency hearing.” The Colorado court’s 1994 order
makes no reference to the content of, or what is reflected by, the
transcript of the August 19, 1974, hearing. Colorado Rule 11, as
in effect when Hogue’s plea was taken, provided in relevant part as
follows:

“The court shall not accept a plea of guilty or a plea of
nolo contendere without first determining that the
defendant has been advised of all the rights set forth in
Rule 5(a)(2) and also determining:
(1) That the defendant understands the nature of the
charge and the elements of the offense to which he is
pleading and the effect of his plea;

33
Hilgers had failed to advise Hogue, or had incorrectly advised him,

as to any of such matter. The Colorado court’s 1994 order makes no

(2) That the plea is voluntary on defendant’s part
and is not the result of undue influence or coercion on
the part of anyone;
(3) That he understands the right to trial by jury
and that he waives his right to trial by jury on all
issues;
(4) That he understands the possible penalty or
penalties;
(5) That the defendant understands that the court
will not be bound by any representations made to the
defendant by anyone concerning the penalty to be imposed
or the granting or the denial of probation, unless such
representations are included in a formal plea agreement
approved by the court and supported by the findings of
the presentence report, if any;
(6) That there is a factual basis for the plea. If
the plea is entered as a result of a plea agreement, the
court shall explain to the defendant, and satisfy itself
that the defendant understands, the basis for the plea
agreement, and the defendant may then waive the
establishment of a factual basis for the particular
charge to which he pleads:”

Colorado Rule 5(a)(2) as then in effect provided in relevant part:

“At the first appearance of the defendant in court, it is
the duty of the judge to inform the accused of and make
certain that he understands the following:
(I) He need make no statement and any statement
made can and may be used against him;
(II) He has a right to counsel;
(III) If he is an indigent person, he has the right
to request the appointment of counsel or consult with the
public defender before any further proceedings are held;
(IV) Any plea he makes must be voluntary on his
part and not the result of undue influence or coercion on
the part of anyone;
(V) He has the right to bail, if the offense is
bailable, and the amount of bail that has been set by the
court;
(VI) The nature of the charges against him;
(VII) He has the right to a jury trial;
(VIII) He has the right to demand and receive a
preliminary hearing within a reasonable time to determine
whether probable cause exists to believe that the offense
charged was committed by the defendant.”

34
reference to (or description of) anything that transpired or did

not transpire at the August 19, 1974, hearing other than that Hogue

then pleaded guilty and his plea was accepted. The court’s Boykin

conclusion appears to be nothing more than what it regarded as

necessarily following from its finding that Hilgers, based on a

professionally inadequate investigation, had erroneously advised

Hogue that “there was a substantial likelihood of conviction” and

thus “encourag[ed] the defendant to accept the plea bargain offer,”

but “did not give the defendant sufficient information to make an

intelligent choice at the same time misleading the defendant to

believe that he had,” although “the investigated evidence” would

have shown that “Hilgers had a winnable case for the defendant,”

and that there was a reasonable probability Hogue would otherwise

not have pleaded guilty.29

The Colorado court also determined that Hogue’s failure to

attack his 1974 conviction until 1992 was within the Col. Rev. St.

(1986) § 16-5-402(2)(d) “justifiable excuse or excusable neglect”

exception to the otherwise applicable three-year limitation period

for such attacks provided in Col. Rev. St. (1986) 16-5-402(1). The

court concluded that although “there were no outside circumstances

preventing an earlier challenge by Mr. Hogue’s lawyers,”30 and

29
The court also found that Hilgers did not disclose to Hogue
his inexperience and lack of preparation and investigation, but
made no finding that any of these matters were misrepresented to
Hogue.
30
The Colorado court made a single exception for Ms. Crocker,
who commenced representing Hogue in May 1991, because Hogue’s case
was complex and she was very busy with other Texas capital cases
for the Texas Resource Center.

35
“[n]one of the material evidence has been destroyed,” nevertheless

“[w]hen the defendant’s subsequent lawyers [those after Hilgers]

did not make the claim now asserted, it is inconceivable that their

failure can be characterized as the culpable neglect of the

defendant.”31

District Court

The district court below, in its November 1994 opinion, noted

that Respondent (the State) had waived exhaustion, and accepted the

waiver, though observing it was not bound to do so. Hogue v. Scott

at 1512. The court accepted the Colorado court’s 1994

determination that Hogue’s 1974 rape conviction was

constitutionally invalid, but held “there are multiple reasons”

why the admission of evidence of that conviction at Hogue’s

sentencing did “not provide a meritorious ground for relief.” Id.

at 1516. The court held that Hogue’s claim was procedurally barred

31
The court did not find that any of Hogue’s several attorneys
had ever rendered him ineffective assistance of counsel (except
Hilgers in respect to the August 1974 guilty plea to the rape count
in No. 6785). The court did find that attorney Gray “had
experience in making attacks on prior convictions” and when
representing Hogue in December 1975 when he pleaded guilty to
violating the initial probation of his rape sentence “made a
reasonable tactical decision not to attack” the earlier rape
conviction, and that attorney Coffee, who “had served as district
attorney of Tarrant County from 1966 to 1971,” in his
representation of Hogue at his March 1980 trial “considered a
challenge” to the 1974 rape conviction. The Colorado court applied
the teachings of People v. Wiedemer, 852 P.2d 424, (Col. 1993) as
to what constitutes “justifiable excuse or excusable neglect” under
Col. Rev. St. § 16-5-402(2)(d). Wiedemer gives an inclusive and
flexible meaning to those terms, id. at 440-443, and relies on the
treatment in Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd.
Partnership, 113 S.Ct. 1489 (1993) of “excusable neglect” as used
in Bankruptcy Rule 9006(b)(1) and on Pioneer’s characterization of
“excusable neglect” as “a somewhat ‘elastic concept.’” Wiedemer at
442 n.20. See also id. at 440-443.

36
because it was first raised in Hogue’s sixth (and last) state

habeas which the Court of Criminal Appeals refused to act on

because of its previously having cited Hogue for abuse of the writ

in its denial of his fifth state habeas, and Hogue had not shown

either cause for this default or resulting actual prejudice. Id.

at 1512-15, 1522. See also id. at 1545-56 (January 1995 order

overruling post-trial motion). The district court further held

that Hogue’s claim in this regard was also independently

procedurally barred by his failure to object at trial to the

admission of the evidence, and that Hogue had not shown either any

cause for this failure nor resulting actual prejudice. Id. at

1522-23. Finally, the district court concluded that under Brecht

any error in the admission at sentencing of the Colorado conviction

was harmless, noting that “the evidence, independent of the

Colorado conviction, in support of the findings the jury made at

the punishment phase of the trial was so forceful that the

possibility of actual prejudice resulting at that phase of the

trial from the mentions of the conviction is negated” and “[t]he

mentions of the Colorado conviction did not have a substantial or

injurious effect in determining the jury’s verdict at either phase

of the trial.” Id. at 1521-22.32

32
The district court also held that “[t]he evidence of guilt
presented at trial was so overwhelmingly in favor of guilt that it
negates any possibility of actual prejudice resulting to Hogue from
the mentions of Hogue’s Colorado conviction at that stage of the
trial.” Id. at 1521. As noted, this conclusion has not been
challenged on appeal and we accordingly accept it; alternatively,
even if it had been challenged, our examination of the record
convinces us of its correctness.

37
Abuse of the Writ

In finding a procedural bar on the basis of abuse of the writ,

the district court (id. at 1515) relied on our October 13, 1994,

opinion in Hicks v. Scott, 35 F.3d 202 (5th Cir. 1994), which held

that where a claim was raised only in a Texas habeas that the Texas

Court of Criminal Appeals took no action on pursuant to an earlier

finding of abuse of the writ, this constituted a procedural bar to

consideration of that claim on federal habeas as “[t]he Texas

courts have a history of regular application of the abuse of the
33
writ doctrine.” However, on motion for rehearing in Hicks, the

state apparently conceded that the abuse of the writ doctrine was

not then followed with sufficient regularity in Texas to constitute

a procedural default which would bar federal habeas relief, and on

March 20, 1995, our original opinion in Hicks was withdrawn and a

new unpublished opinion was issued in its stead which reached the

same ultimate result but did not address the abuse of the writ

issue. Hicks v. Scott, No. 94-10302, 5th Cir., March 20, 1995

(unpublished). On the same day, we held in Lowe v. Scott, 48 F.3d

873 (5th Cir. 1995), that because the Texas abuse of the writ

doctrine “has not been regularly applied” it could not function as

a procedural default to bar federal habeas review. Id. at 876. In

Lowe we relied on the statement in the Court of Criminal Appeals’

33
We cited Ex parte Choice, 828 S.W.2d 5 (Tex. Crim. App.
1992); Ex parte Emmons, 660 S.W.2d 106 (Tex. Crim. App. 1983); Ex
parte Stuart, 653 S.W.2d 13 (Tex. Crim. App. 1983); Ex parte
Bilton, 602 S.W.2d 534 (Tex. Crim. App. 1980); and Ex parte Dora,
548 S.W.2d 392 (Tex. Crim. App. 1977). The district court below,
in addition to our October 13, 1994 opinion in Hicks, cited Dora
and Ex parte Carr, 511 S.W.2d 523 (Tex. Crim. App. 1974).

38
opinion in Ex parte Barber, 879 S.W.2d 889, 891 n.1 (Tex. Crim.

App. 1994), cert. denied, 115 S.Ct. 739 (1965), that it would be

sound policy to apply the abuse of the writ doctrine “in the

future.” Lowe at 876. The district court, however, did not have

the benefit of our opinion in Lowe or of the withdrawal of our

original opinion in Hicks.34

We agree with the district court’s observation that it is

“quite clear that Hogue has pursued a course of manipulating, and

abusing, the writ process to the end of gaining additional time.”

Hogue v. Scott, at 1546. We likewise agree with the district court

that Hogue has not shown cause for his abuse (either generally or

with respect to the instant claim regarding the Colorado

conviction). Accordingly, and given that Texas courts had

unquestionably applied the abuse of the writ doctrine in other

published opinions (see, e.g., cases cited in note 33, supra), the

district court correctly observed that Hogue had “fair warning that

he was running the risk of a ruling of abuse of the writ.” Id. at

1545. Moreover, on Hogue’s second trip to the district court below

in which he had procured a last minute stay of execution, the Court

on October 17, 1987, had advised Hogue to file by January 22, 1988,

in federal or state court, a habeas petition presenting “each and

every claim known to Petitioner or his counsel on pain of waiver.”

Further, there is nothing to suggest that the Court of Criminal

Appeals’ invocation of the abuse of the writ doctrine in Hogue’s

34
The state’s concession on rehearing in Hicks came after the
district court’s original opinion in November 1994, but before its
January 1995 denial of Hogue’s Rule 59 motion.

39
case was any kind of ploy to avoid a difficult federal issue or was

otherwise in any sense unfair.35 Nevertheless, that a state rule

35
Indeed, the Court of Criminal Appeals had cited Hogue for
abuse of the writ before it was ever presented with any claim that
his Colorado conviction was constitutionally invalid, a claim first
made in his sixth state writ. Even Hogue’s sixth state writ does
not fairly present this claim. This sixth state writ asserts 36
grounds for relief in some 173 pages (exclusive of exhibits), and
the asserted constitutional invalidity of the Colorado conviction
is presented only in the 31st ground, which states “the admission
of Mr. Hogue’s void prior conviction at the sentencing phase
violated rights guaranteed by the U.S. Constitution.” The
discussion and argument under this claim (which is accomplished in
less than a page and a half) does not mention ineffective
assistance (or lack of assistance) of counsel or words equivalent
thereto, the Sixth Amendment is not cited, and the only indication
of the alleged defect in the Colorado conviction is the allegation:

“Mr. Hogue’s Colorado rape conviction is void. It
was obtained through reliance on false testimony and
other violations of Mr. Hogue’s rights under state and
federal law. Napue v. Illinois, 360 U.S. 254 (1959);
Boykin v. Alabama, 395 U.S. 238 (1969); Strickland v.
Washington, 466 U.S. 668 (1984).”

There are no even conclusory allegations in this sixth state
petition or its exhibits of anything Hogue’s lawyer, in connection
with his plea of guilty to the rape charge, either failed to do or
did. Plainly, the present challenge to the Colorado
conviction——that it was based on ineffective assistance of counsel
who without adequate investigation advised Hogue that he would
likely be convicted and should therefore plead guilty——was not
fairly presented in Hogue’s sixth state writ. See Graham v.
Johnson, 94 F.3d 958, 968-69 (5th Cir. 1996).
In Hogue’s fifth state writ (which the Court of Criminal
Appeals found without merit and in connection therewith cited him
for abuse of the writ), he had alleged as one of his grounds for
relief that:

“Petitioner was denied the effective assistance of
counsel at the punishment, because counsel failed to
adequately prepare by failing to investigate and develop
facts about petitioner’s background in an attempt to
develop and present mitigating evidence that would call
for a sentence less than death, or in opposition to the
death penalty, in violation of petitioner’s 5th, 6th and
14th Amendments to the United States Constitution.”

Nothing in this writ application asserts that there was any

40
of procedural default be regularly applied——not merely applied

somewhat more often than not——is essential in order for it to serve

as a per se bar to otherwise available federal habeas relief, and,

as we held in Lowe, the Texas abuse of the writ doctrine (as

applied prior to 1994) does not meet this test.36 Accordingly, the

Texas court’s abuse of the writ ruling does not of itself suffice

to bar Hogue from federal habeas relief.

Failure to Object at Trial

The district court held that Hogue’s claim as to the admission

at the sentencing phase of his trial of evidence of the Colorado

conviction, because it was void due to Hogue’s counsel’s having

rendered him ineffective assistance, was procedurally barred by his

failure to object at trial to that evidence as required by the

invalidity in the Colorado conviction, that Colorado counsel did or
said or failed to do or say anything or was in any way ineffective,
or that there was any error in admitting evidence of the Colorado
conviction. In an affidavit attached to this petition, Hogue
states “I pleaded guilty . . . [in the Colorado case] because I was
concerned that if I put my ex-wife through a jury trial that it
would affect her emotional state of mind, and the possibility of
this affecting my daughter.” Also attached to this fifth state
habeas petition were four other affidavits (by Hogue’s mother,
step-father, brother and sister-in-law, each virtually identical to
the other), which likewise state “Jerry pleaded guilty to this
offense because he expressed concern putting Claudia through a jury
trial because of her emotional state of mind, and the possibility
of this affecting his daughter.” None of these five affidavits
state that Colorado counsel advised Hogue to plead guilty or that
Hogue did so because of anything Colorado counsel said or did or
failed to do or say; none state anything Colorado counsel said or
did or failed to do or say; none asserts that Hogue was innocent of
the charge to which he pleaded guilty or that the Colorado
conviction was invalid.
36
Applications following Ex parte Barber have been held regular
and adequate to bar federal habeas relief. See Fearance v. Scott,
56 F.3d 633, 642 (5th Cir.), cert. denied, 115 S.Ct. 2603 (1995).

41
Texas contemporaneous objection rule. Hogue v. Scott, at 1522-23.

As the district court correctly observed, “Hogue, both personally

and through his counsel, expressly told the state trial judge that

Hogue had no objection to the receipt into evidence at the

punishment phase of the trial of proof of Hogue’s Colorado

conviction.” Id. at 1522.37 The district court further correctly

37
Nor was any issue raised in this respect on direct appeal.
The district court also noted that the only objection at trial
to the cross-examination of Hogue, at the guilt-innocence stage, as
to whether he had been so convicted (which was allowed for
impeachment purposes only) was that the conviction was not final
because the probated sentence had been completed and accordingly
Tex. Code Crim. P. art. 38.29 prohibited its use for impeachment
purposes (see notes 11 and 15 supra), that under the Texas
contemporaneous objection rule this did not suffice to preserve any
claim that such use of the Colorado conviction was improper because
the Colorado conviction was void since Hogue was denied the
effective assistance of counsel, and that accordingly any such
claim was procedurally barred on federal habeas. Id. While the
propriety of the cross-examination of Hogue in this respect at the
guilt-innocence stage (he did not testify at the punishment stage)
is not before us, even if it were, we would agree with the district
court in this respect. We note that the Texas contemporaneous
objection rule has consistently barred consideration of an
objection to evidence on a ground not asserted at trial even though
the evidence was then objected to on another ground (as well as
barring consideration of an objection to evidence where no
objection was made at trial). The following is but a minute sample
of the multitude of cases so holding, viz: Long v. State, 823
S.W.2d 259, 270 n.15 (Tex. Crim. App. 1991), cert. denied, 112
S.Ct. 3042 (1992); Sharp v. State, 707 S.W.2d 611, 618-19 (Tex.
Crim. App. 1986), cert denied, 109 S.Ct. 190 (1988); Simpkins v.
State, 590 S.W.2d 129, 135 (Tex. Crim. App. 1979); Williams v.
State, 531 S.W.2d 606, 607 (Tex. Crim. App. 1976); Foreman v.
State, 505 S.W.2d 564, 566-67 (Tex. Crim. App. 1974). We have
clearly held that such a procedural default bars federal habeas
relief. See, e.g., Sharp v. Johnson, 107 F.3d 282, 285 (5th Cir.
1997); Nichols v. Estelle, 556 F.2d 1330, 1331 n.5 (5th Cir. 1977),
cert. denied (1978)(contention that prior Oklahoma conviction,
introduced at Texas trial, was void because of denial of appellate
counsel, was barred by procedural default where objection made at
trial was not on this ground).
We further note that even if the objection on grounds of lack
of finality for purposes of Tex. Code Crim. P. art. 38.29 (due to
completed probation) to the use of the Colorado conviction for

42
determined that “Hogue has made no plausible suggestion of a valid

cause for his failure to timely object on the ground that his

Colorado conviction was invalid.” Id. at 1523.

Hogue challenges the district court’s invocation of failure to

comply with the Texas contemporaneous objection rule as a

procedural bar on essentially three grounds.

First, Hogue makes a brief, passing assertion that this was

not adequately raised by the state below. We disagree. In its

supplemental answer filed below on July 7, 1994, the state

specifically and adequately pleaded the procedural bar arising from

Hogue’s failure to object at trial as required by the Texas

contemporaneous objection rule (citing pertinent Texas and federal

authority).38

impeachment at the guilt-innocence stage had been valid and/or
sustained (and it was neither), that would not have precluded (or
rendered erroneous) introduction of the Colorado conviction at the
sentencing phase, as is fully explained in note 16, supra.
Conversely, the objection now urged (that the Colorado conviction
was invalid because Hogue was not afforded effective assistance of
counsel) is in no way and to no extent dependent on the validity
(factually or legally) of the objection made on grounds of lack of
finality (due to completed probation) for purposes of Article
38.29.
38
While it is clear that here the state adequately raised below
the procedural bar arising from Hogue’s failure to object as
required by the Texas contemporaneous objection rule, we also note
in passing that we have stated “[a]lthough the state may not have
adequately raised the Sykes procedural default claim in the
district court, that court itself addressed the issue, and barred
relief thereunder. Consequently, this Court may sustain the
decision below on Sykes,” Webb v. Blackburn, 773 F.2d 646, 651 n.6
(5th Cir. 1985), and “waiver can be averted by the state if the
issue of a Sykes procedural default is raised at any point in the
district court proceedings. Here the district court addressed the
issue of procedural default; we may therefore do so.” Wiggins v.
Procunier, 753 F.2d 1318, 1320 (5th Cir. 1985).

43
 Second, Hogue argues that the Texas contemporaneous objection

rule is (or was) not “‘strictly or regularly followed,’” as is

required for a default thereunder to bar federal habeas relief,

Johnson v. Mississippi, 108 S.Ct. 1981, 1987 (1988), or at least

that it is (or was) not so followed with respect to this character

of claim. We reject this contention.

The Texas contemporaneous objection rule was already well

established as long as thirty-five years ago, see, e.g., Freeman v.

State, 357 S.W.2d 757, 758 (Tex. Crim. App. 1962),39 and for more

than twenty years we have on numerous occasions invoked

noncompliance with it as a basis on which to deny federal habeas

relief. And, on several occasions we have expressly held that it

was followed with sufficient regularity for this purpose. In

denying habeas relief on this basis in St. John v. Estelle, 544

F.2d 894, (5th Cir. 1977), we observed that “Texas’ contemporaneous

objection rule furthers a valid state interest.” Id. at 895. This

opinion was adopted by the en banc court with the addition of a

citation to Wainwright v. Sykes, 97 S.Ct. 2497 (1977). St. John v.

Estelle, 563 F.2d 168 (5th Cir. 1977)(en banc), cert. denied, 463

U.S. 914 (1978). In Bass v. Estelle, 705 F.2d 121 (5th Cir.),

cert. denied, 104 S.Ct. 200 (1983), a federal habeas challenging a

“spring of 1980" Texas conviction and death sentence, we

specifically rejected a contention that the Texas contemporaneous

39
See also, e.g., Ex parte Bagley, 509 S.W. 2d 332, 333 (Tex.
Crim. App. 1974); Shumake v. State, 502 S.W.2d 758, 761 (Tex. Crim.
App. 1973); St. John v. State, 427 S.W.2d 862, 863 (Tex. Crim. App.
1968).

44
objection rule was not sufficiently “regularly applied” so that

noncompliance with it could not bar federal habeas relief. Id. at

122. In doing so, we recognized that the “regularly applied”

standard was met despite exceptions for instances where the law in

effect at the time of trial would have precluded successful

objection. Id. We also held that “an occasional act of grace by

the Texas court in entertaining the merits of claim that might have

been viewed as waived by procedural default” did not “constitute

such a failure to strictly or regularly follow the state’s

contemporaneous objection rule” as to generally preclude reliance

thereon to bar habeas relief. Id. at 122-123. We reviewed the

matter at some length in Amos v. Scott, 61 F.3d 333 (5th Cir.),

cert. denied, 116 S.Ct. 557 (1995), and, reaffirming the holdings

of Bass, concluded that “Texas courts apply the contemporaneous

objection rule strictly and regularly.” Amos at 341. We noted

that the question was whether the rule “is strictly or regularly

applied evenhandedly to the vast majority of similar claims,” id.

at 339, that the presence of exceptions for a right not legally

recognized at time of trial and for certain cases of fundamental

error did not alter this conclusion, id. at 343-344, and that “the

relatively few occasions . . . in which it might be said that the

TCCA [Texas Court of Criminal Appeals] has disregarded the rule and

its exceptions are not sufficient to undercut the overall

regularity and consistency of their application and thus the

adequacy of the state procedural bar.” Id. at 345. To the same

effect are Sharp v. Johnson, 107 F.3d 282, 285-86 (5th Cir. 1997),

45
and Rogers v. Scott, 70 F.3d 340, 344 (5th Cir. 1995), cert denied,

116 S.Ct. 1881 (1996).

Texas courts, and this Court, have long applied the Texas

contemporaneous objection rule to bar claims that a conviction

introduced in evidence without objection (or with objection only on

another ground) was invalid. Decisions of the Texas Court of

Criminal Appeals doing so include the following:

Ex parte Gill, 509 S.W.2d 357, 359 (Tex. Crim. App.

1974)(state habeas attacking 1970 conviction and sentence on basis

that at trial evidence of revocation of probation for earlier

offense was introduced, despite the fact that the revocation was

invalid due to lack of counsel; held that although the revocation

was invalid for lack of counsel, the failure to object at trial

waived the error);40 Wright v. State, 511 S.W.2d 313, 315 (Tex.

40
Subsequently we granted federal habeas relief in Gill, but
we did so not on the basis that the contemporaneous objection rule
was not regularly applied but rather that under cases such as Fay
v. Noia, 83 S.Ct. 822 (1963), and Townsend v. Sain, 83 S.Ct. 745
(1963), the mere failure to object did not constitute the
“deliberate waiver . . . normally required” to waive constitutional
rights. Gill v. Estelle, 530 F.2d 1152, 1155 (5th Cir. 1976).
Rehearing en banc was granted in which our consideration was
“limited only to addressing” and rejecting the state’s argument
that there was no constitutional invalidity in the probation
revocation. Gill v. Estelle, 544 F.2d 1336 (5th Cir. January 10,
1977). On May 16, 1977, the Supreme Court denied certiorari.
Estelle v. Gill, 97 S.Ct. 2199 (1977). Subsequently, on June 23,
1977, the Supreme Court handed down Wainwright v. Sykes, 97 S.Ct.
2497 (1977) holding that the “deliberate bypass” standard of Fay v.
Noia and related cases was inapplicable in cases of procedural
default under state law, and that the appropriate standard was that
of “cause” and “prejudice.” We have subsequently expressly
recognized that in Wainwright v. Sykes the “court clearly has
overruled the holding in Gill v. Estelle that failure to object to
an enhancing conviction when admitted does not constitute a
deliberate waiver.” Loud v. Estelle, 556 F.2d 1326, 1330 n.12 (5th
Cir., August 5, 1977).

46
Crim. App. 1974)(on appeal from revocation of probation for 1973

conviction for second offense DWI, a felony, treated as an appeal

from 1973 conviction and sentence, rejects challenge to first

offense conviction, a 1970 misdemeanor DWI, on grounds that

defendant was not afforded counsel in the 1970 case, because of

failure to object to the evidence of the prior conviction);41 Ex

parte Sanders, 588 S.W.2d 383, 384-5 (Tex. Crim. App. 1979)(en

banc)(state habeas challenge to conviction enhanced by prior felony

conviction, it being claimed that the prior felony was void because

of lack of counsel; habeas denied because of failure to object to

the proof of the prior felony; “[f]ailure to object to proof of a

void conviction has been held to constitute waiver . . . [W]e hold

that petitioner’s failure to object when the complained of prior

conviction was offered into evidence constituted a waiver of the

claimed right”);42 Ex parte Reed, 610 S.W.2d 495, 497 (Tex. Crim.

41
Wright notes that at the time of the 1973 trial the rule of
Argersinger v. Hamlin, 92 S.Ct. 2006 (1972), establishing the right
to counsel in misdemeanor cases, had been in effect for “almost a
year,” and that accordingly the case was “[u]nlike Ex parte
Casarez, 508 S.W.2d 620" (Tex. Crim. App. 1974). Wright at 315.
Casarez was a state habeas case successfully challenging an
unappealed 1967 conviction and eighteen-year sentence on the basis
that three prior misdemeanor convictions which were invalid because
of lack of counsel were put in evidence at the 1967 trial without
objection. Casarez states “Petitioner’s trial resulting in the
challenged conviction . . . was had . . . over five years before
the decision in Argersinger v. Hamlin. . . . Consequently,
counsel’s failure to object upon a ground not yet established as a
defect of constitutional magnitude did not constitute a waiver.”
Casarez at 622.
42
Sanders also recognized that where the defect in the prior
conviction had not, at the time of the trial at which the earlier
conviction was put in evidence, been established as a defect of
constitutional magnitude, the failure to object would not
constitute a waiver, citing Casarez (see note 41, supra). Sanders

47
App. 1981)(en banc)(state habeas challenge to 1972 conviction and

sentence on grounds, among others, of admission in evidence at the

sentencing phase of prior convictions which were allegedly void

because of ineffective assistance of counsel; “[w]ith regard to the

claim that the allegedly void prior convictions were introduced at

his trial . . . as part of petitioner’s prior criminal record, we

observe that there was no objection to the introduction of the

evidence of the prior convictions at the time the exhibits were

offered. Therefore, he waived any claim he may now assert”); Hill

v. State, 633 S.W.2d 520, 523-25 (Tex. Crim. App. 1982)(en

banc)(appeal of conviction and sentence enhanced by 1963

conviction; pending this appeal, the 1963 conviction was set aside

because the defendant was without counsel; held instant conviction

and sentence affirmed because there was no objection at trial to

the evidence of the 1963 conviction, citing numerous prior cases;

“we hold that the failure to object at trial to the introduction of

proof of an alleged infirm prior conviction precludes a defendant

from thereafter attacking a conviction that utilized the prior

conviction”);43 Ex parte Ridley, 658 S.W.2d 179 (Tex. Crim. App.

held that exception inapplicable as the controlling Supreme Court
precedent had been handed down before the trial at which the
assertedly invalid prior conviction had been put in evidence.
43
Hill recognized an exception for cases “in which the
underlying conviction was based upon void charging instruments.”
Id. at 523. In such cases, Texas law viewed the trial court (in
the prior case) as never having acquired jurisdiction. See Ex
parte White, 659 S.W.2d 434, 435 (Tex. Crim. App. 1983)(habeas
attack on conviction enhanced by prior conviction which was invalid
because of “fundamentally defective” indictment, not barred by
failure to object “since the trial court did not have jurisdiction
where the indictment was void” and “since the charging instrument

48
1983)(en banc)(habeas attack on both 1967 burglary conviction and

1976 robbery conviction in which the sentence was (without

objection) enhanced by the 1967 burglary conviction; habeas granted

as to the 1967 conviction because the same jury that determined

guilt also determined competence to stand trial; habeas denied as

to 1976 conviction and enhanced sentence because “[t]he failure to

object at trial to the introduction of an infirm prior conviction

precludes the defendant from thereafter collaterally attacking the

conviction that utilized the infirm prior conviction”); Ex parte

Cashman, 671 S.W.2d 510 (Tex. Crim. App. 1983)(en banc)(state

habeas attacking 1977 robbery conviction and sentence enhanced by

1969 Colorado conviction; the Colorado conviction was pursuant to

a guilty plea; there was no objection to the evidence of the

Colorado conviction at the 1977 trial or on direct appeal; after

the 1977 conviction and sentence were affirmed on direct appeal,

the defendant filed a motion in the Colorado court to set the

Colorado conviction aside because the guilty plea was not

was void and the trial court never acquired jurisdiction” in the
prior case); Burney v. State, 614 S.W.2d 834, 835 (Tex. Crim. App.
1981)(appeal from conviction enhanced by prior conviction which in
the interim was set aside as based on defective indictment, failure
to object to evidence of prior conviction does not preclude relief:
“the fundamentally defective indictment deprived the trial court of
jurisdiction” in the prior case); Ex parte Howeth, 609 S.W.2d 540,
541 (Tex. Crim. App. 1980)(habeas corpus granted because the prior
conviction used to enhance punishment was based on defective
indictment; “the indictment in cause number 72-281-C [the prior,
enhancing conviction] was void, [so] the trial court did not have
jurisdiction” in that prior case). As we observed in Weaver v.
McKaskle, 733 F.2d 1103, 1107 (5th Cir. 1984), this void charging
instrument exception to the Texas contemporaneous objection rule
“is premised on the notion that the court rendering judgment in the
prior conviction never had jurisdiction.”

49
intelligently and knowingly entered, no factual basis was shown to

support the plea and defendant did not receive effective assistance

of counsel; the Colorado court granted the motion; habeas as to the

1977 conviction and sentence was denied because there was no

objection at trial to the Colorado conviction).

The decisions of this Court have likewise long recognized that

federal habeas relief sought on the basis that an invalid prior

conviction was put in evidence at the petitioner’s Texas trial is

properly denied where the petitioner did not object at his trial to

the evidence of the prior conviction as required by the Texas

contemporaneous objection rule. In McDonald v. Estelle, 536 F.2d

667 (5th Cir. 1976), we affirmed a grant of habeas relief as to a

1973 Texas conviction and fifteen-year sentence because of the

introduction at the punishment phase of the trial of a 1960

Arkansas theft conviction, based on a guilty plea, which we found

constitutionally invalid because the defendant was indigent, did

not have counsel, and was not offered and did not waive counsel.

Id. at 671. “When objection to” this prior conviction (and others)

“was raised up on direct appeal, the Court of Criminal Appeals of

Texas refused to consider the challenges because no objection to

them had been made at trial.” Id. at 670. The Supreme Court

granted certiorari and remanded to this court “for further

consideration in light of Wainwright v. Sykes.” Estelle v.

McDonald, 97 S.Ct. 2967 (1977). On remand, we noted that evidence

of the prior invalid and uncounseled Arkansas conviction “was not

objected to” at defendant’s Texas trial “as required by the Texas

50
contemporaneous objection rule” and that accordingly “[u]nder

Sykes, petitioner is precluded from obtaining federal habeas relief

due to his procedural default unless he can establish cause for

failing to object.” McDonald v. Estelle, 564 F.2d 199, 200 (5th

Cir. 1977). We accordingly remanded to the district court “for the

limited purpose of providing petitioner the opportunity to

demonstrate cause for noncompliance with the Texas contemporaneous

objection rule.” Id. at 200.44 In Loud v. Estelle, 556 F.2d 1326

(5th Cir. 1977), we rejected a habeas attack on a 1970 Texas

conviction and life sentence as enhanced by two prior convictions,

one of which petitioner asserted resulted when in 1960 his

originally probated 1959 sentence was revoked “without a hearing,

without counsel, and without petitioner’s knowledge or presence,”

which he claimed was constitutionally required by Mempa v. Rhay, 88

S.Ct. 254 (1967). Loud at 1327-28. We held that under Wainwright

v. Sykes “all attacks on the constitutionality of the 1960

revocation hearing are foreclosed by the petitioner’s failure to

object to the admission of the conviction at the punishment phase

of his trial” and that “[a]fter Wainwright v. Sykes, petitioner has

waived any objections he might have had to use of the 1959

conviction to enhance his sentence.” Loud at 1329, 1330. In

Nichols v. Estelle, 556 F.2d 1330 (5th Cir. 1977), cert. denied, 98

S.Ct. 744 (1978), we denied habeas relief as to a 1973 Texas

conviction and life sentence under the Texas habitual offender

statute based on a 1965 Oklahoma conviction which the petitioner

44
We noted we had already found prejudice. Id.

51
claimed was void because, inter alia, he was denied counsel on

appeal, stating “But petitioner’s counsel failed to object to the

admission of the Oklahoma conviction on the ground that counsel had

not been provided on appeal. This failure worked a waiver of the

constitutional error complained of here.” Id. at 1331 (footnote

omitted)(citing Wainwright v. Sykes and Loud). Our decision in

Weaver v. McKaskle, 733 F.2d 1103 (5th Cir. 1984), is likewise

controlling. There we rejected Weaver’s federal habeas challenge

to his 1977 Texas robbery conviction and life sentence at the

punishment phase of which evidence was introduced of Weaver’s 1960

Illinois conviction. At trial, Weaver objected to the Illinois

conviction only on the ground that it was not final, as he had been

pardoned. In 1980, an Illinois court set aside the 1960 conviction

because at the 1960 trial there existed a bona fide question as to

Weaver’s competency to stand trial, and no hearing had been held to

determine his competence as required by Pate v. Robinson, 86 S.Ct.

836 (1966). Weaver at 1104. We held that the constitutional

invalidity of the 1960 Illinois conviction did not entitle Weaver

to habeas relief because of his failure to object at the 1977 trial

to the 1960 conviction on that basis as required by the Texas

contemporaneous objection rule, invoking Wainwright v. Sykes and

Engle v. Isaac, 102 S.Ct. 1558 (1982). We explained: “Under Texas

law, a defendant’s failure to object at trial to the introduction

of an allegedly infirm prior conviction precludes a later attack

upon the conviction that utilized the prior conviction. . . . Even

where the alleged error is of constitution dimension,” id., and

52
“Texas courts . . . have barred a subsequent attack on a conviction

in which the sentence was enhanced through use of an uncounseled

and void prior conviction where the defendant failed to object.”

Id. at 1107.45 More recently, in Smith v. Collins, 977 F.2d 951

(5th Cir. 1992), cert. denied, 114 S.Ct. 97 (1993), the federal

habeas petitioner challenged his 1977 Texas conviction and life

sentence on the basis that at the punishment stage of that trial

evidence was introduced of his 1952 conviction which was

subsequently (in 1985) set aside on the basis of a Turner v.

Louisiana, 85 S.Ct. 546 (1965), violation. We held that this

challenge was barred under Wainwright v. Sykes and its progeny by

the petitioner’s failure to object at his 1977 trial to the

introduction there of evidence of the 1952 conviction, as required

by the Texas contemporaneous objection rule.

Hogue’s argument that Texas’ contemporaneous objection rule is

or was not regularly followed in respect to invalid prior

convictions is necessarily foreclosed by our decisions in Loud

(1970 Texas trial; invalid prior Texas conviction); Nichols (1973

Texas trial; invalid prior Oklahoma conviction); McDonald (1973

Texas trial; invalid prior Arkansas conviction); Weaver (1977 Texas

trial; invalid prior Illinois conviction); Smith (1977 Texas trial;

45
As previously observed (see note 43, supra), Weaver also
states that “Texas recognizes an exception to the contemporaneous
objection rule when the prior conviction used for enhancement is
based on a void indictment,” which “exception . . . is premised on
the notion that the court rendering judgment in the prior
conviction never had jurisdiction.” Id. at 1107. We held that
exception was not applicable to the petitioner’s case in Weaver.
Id.

53
invalid prior Texas conviction). One panel of this Court may not

overrule another (absent an intervening decision to the contrary by

the Supreme Court or the en banc court, of which there are none).

But even if we were free to do so, we see no valid basis to depart

from those decisions. They are well supported not only by the long

established general principles of the Texas contemporaneous

objection rule, but also by many decisions of the Texas Court of

Criminal Appeals applying that rule in the specific context of

failure to object to evidence of a prior invalid conviction, as

reflected by the above cited cases of Gill, Wright, Sanders, Reed,

Hill, Ridley, and Cashman.46

Only one of the cases relied on by Hogue can be said to be in

point, as the others all involve either a recognized exception to

the Texas contemporaneous objection rule plainly not applicable

here or are otherwise simply inapposite.47 This single case is

46
We note that Hill cites with approval our decisions in Loud,
Nichols, and McDonald. Hill at 524.
47
Most of the cases cited by Hogue involve the exception for
prior convictions based on void charging instruments (see notes 43
and 45 supra). The cases of Ex parte Garcia, 578 S.W.2d 141 (Tex.
Crim. App. 1979); Ex parte Rivers, 559 S.W.2d 659 (Tex. Crim. App.
1978); Ex parte Sunford, 562 S.W.2d 229 (Tex. Crim. App. 1977); Ex
parte Lucky, 571 S.W.2d 913 (Tex. Crim. App. 1978); Ex parte
Stewart, 582 S.W.2d 144 (Tex. Crim. App. 1979); Ex parte Howeth,
609 S.W.2d 540 (Tex. Crim. App. 1980); Burney v. State, 614 S.W.2d
834 (Tex. Crim. App. 1981); Ex parte Nivens, 619 S.W.2d 184 (Tex.
Crim. 1981); Duplechin v. State, 652 S.W.2d 957 (Tex. Crim. App.
1983), and Ex parte White, 659 S.W.2d 434 (Tex. Crim. App. 1983),
all fall in this category. This case does not involve a void
charging instrument, which, as the Court of Criminal Appeals in
Hill (and in Duplechin and White) and this Court in Weaver
recognized, presents a special situation (premised on the court in
the prior case never having had jurisdiction). It does not
undermine the regularity of application of the Texas
contemporaneous objection rule to other instances of failure to

54
Smith v. State, 486 S.W.2d 374 (Tex. Crim. App. 1972). That was a

direct appeal from a felony shoplifting conviction where a life

sentence was imposed by reason of enhancement by two prior felonies

alleged in the indictment. At the punishment stage the defendant

pleaded guilty to the enhancement allegations. While the appeal

was pending, the defendant caused one of the prior convictions to

be set aside because the defendant was without counsel, and the

Court of Criminal Appeals, in the direct appeal, accordingly

modified the sentence to ten years (enhanced by only one valid

prior conviction). The opinion does not discuss the failure to

object to evidence of invalid prior convictions. We squarely so
held in Weaver.
Corando v. State, 617 S.W.2d 265 (Tex. Crim. App. 1981), holds
that on direct appeal the court will notice on its own motion that
the indictment in the conviction being appealed is void; it does
not involve a prior conviction or evidence thereof. Henderson v.
State, 552 S.W.2d 464 (Tex. Crim. App. 1977), was a direct appeal
where there was proper objection below to the evidence of the prior
invalid convictions. Dinnery v. State, 592 S.W.2d 343 (Tex. Crim.
App. 1979), is an appeal from the revocation of probation in which
the court reversed because the plea of guilty to the underlying
offense of conviction was not supported by the evidence tendered;
it does not involve a prior conviction or evidence thereof nor does
it address any aspect of the contemporaneous objection rule.
Ramirez v. State, 486 S.W.2d 373 (Tex. Crim. App. 1972), was
an appeal from the revocation of probation in which the underlying
conviction was a 1970 plea of guilty to the felony charge of second
offense child desertion, the first offense being a 1965 misdemeanor
conviction for child desertion. At the revocation hearing it was
established that at the time of the 1965 misdemeanor conviction the
defendant was indigent and without counsel. Defendant was held
entitled to relief. This fits within the “right not recognized”
exception, as pointed out in Wright, Sanders, and Casarez, see
notes 41 and 42, supra, as the 1970 trial was before the decision
in Argersinger v. Hamlin, 92 S.Ct. 2006 (1972), establishing the
right to counsel in misdemeanor cases. No such exception is, or is
(or has ever been) claimed to be, applicable here. The presence of
such an exception does not destroy the regularity of application of
the Texas contemporaneous objection rule. Amos, 61 F.3d at 343-
344; Rogers, 70 F.3d at 344.

55
object or even mention the contemporaneous objection rule. Smith

v. State was expressly overruled en banc in Hill. Hogue argues

that comes too late, for Hill was not decided until 1982, and he

was tried in 1980. However, Smith v. State (a 1972 decision) had

been effectively abandoned long before then. Ex parte Gill was

decided in 1974, and applied the contemporaneous objection rule to

an invalid prior conviction introduced at a 1970 trial; Wright was

likewise handed down in 1974 and applied the contemporaneous

objection rule to an invalid prior conviction introduced at a 1973

trial; so also with Sanders, a 1979 en banc decision; Reed, a 1981

en banc decision applicable to a 1972 trial; Ridley, a 1983 en banc

decision applicable to a 1977 trial; and Cashman, a 1983 en banc

decision applicable to a 1977 trial. Hill itself was applicable to

a trial well prior to October 1981.48 And, our decisions in Loud

(1977), Nichols (1977), and McDonald (1977) apply the Texas

contemporaneous objection rule to the failure to object to evidence

of an invalid prior conviction and were all handed down years after

Smith v. State and years before Hogue’s 1980 trial, while in Weaver

and Smith v. Collins we applied the Texas contemporaneous objection

rule to 1977 trials. Further, all these decisions, both of the

Texas Court of Criminal Appeals and of our court (except Smith v.

Collins), were handed down years before the Court of Criminal

Appeals affirmed Hogue’s conviction on direct appeal. Finally, as

48
We are unaware of the precise year of the Hill trial, but the
original opinion of the Court of Criminal Appeals in that case was
handed down in October 1981, so it was probably tried in 1980 or
1979.

56
Hill points out, Smith v. State was inconsistent with prior Texas

decisions and the then long established Texas contemporaneous

objection rule. Smith v. State cannot sustain the weight Hogue

would place on it. This single 1972 decision does not rise even to

the level of “the relatively few occasions” of disregard of the

rule which Amos held were not sufficient to defeat the required

regularity of application. Id., 61 F.3d at 345. It is clear that

Texas courts do and did apply the contemporaneous objection rule

in at least “the vast majority” of claims similar to Hogue’s. Amos

at 339. We reject Hogue’s contention to the contrary.

Hogue’s third and final argument against applying the

procedural bar of failure to comply with the Texas contemporaneous

rule is that no Texas court expressly denied his complaint

concerning the admission at the sentencing phase of the allegedly

invalid Colorado conviction on that basis. In this connection,

Hogue invokes the principle of Harris v. Reed, 109 S.Ct. 1038

(1989), that “a procedural default does not bar consideration of a

federal claim on either direct or habeas review unless the last

state court rendering a judgment in the case ‘”clearly and

expressly”’ states that its judgment rests on a state procedural

bar.” Id. at 1043. However, this rule of Harris “applies only

when it fairly appears that a state court judgment rested primarily

on federal law or was interwoven with federal law.” Coleman v.

Thompson, 111 S.Ct. 2546, 2559 (1991). As we recognized in Young

v. Herring, 938 F.2d 543 (5th Cir. 1991) (en banc), in Coleman

“[t]he Court explicitly rejected Coleman’s contention that the

57
Harris rule should apply whenever the state court decision does not

contain a plain statement that it relied on a state procedural

bar.” Young at 553. In Young we likewise recognized that a

necessary “predicate” to the application of the Harris rule “‘is

that the decision of the last state court to which the petitioner

presented his federal claims most fairly appear to rest primarily

on federal law or to be interwoven with federal law.’” Young at

553 (quoting Coleman at 2556). That necessary predicate is clearly

lacking here, for no Texas court has ever to any extent addressed

the merits of any portion of Hogue’s claim that he was denied the

effective assistance of counsel in his Colorado conviction, that

that conviction was constitutionally (or otherwise) invalid, and

that introduction of it at the sentencing phase of his trial

deprived him of his rights under the Eighth and Fourteenth

Amendments. Consequently, Harris does not avail Hogue.

The fact that the Texas courts have not actually applied the

bar of the contemporaneous objection rule to Hogue’s claim is not

controlling because Hogue’s claim was never presented to them prior

to his sixth state habeas (and was then not fairly presented, see

infra and note 35, supra) and the sixth state habeas was not

accepted for filing because Hogue had previously been cited for

abuse of the writ. In Engle v. Isaac, 102 S.Ct. 1538 (1982), three

Ohio prisoners, Isaac, Bell, and Hughes, convicted of separate

offenses in separate trials in Ohio courts, brought separate

federal habeas petitions complaining of a jury instruction, given

in each case, placing the burden of persuasion on the defendant

58
with respect to self-defense. Isaac did not object to the

instruction at trial, but did complain of it on direct appeal; the

Ohio appellate court held the complaint was barred by failure to

object at trial as required by the Ohio contemporaneous objection

rule. Id. at 1565. Neither Hughes nor Bell objected to the

instruction at trial or raised any complaint about it on direct

appeal, nor did either pursue any state post-conviction remedies.

Id. at 1563-64, 1566. Despite the fact that neither Hughes nor

Bell had ever presented their respective complaints to the state

court, and the state courts in their respective cases had never

actually applied any procedural bar to either of them, the Supreme

Court held that their federal habeas complaints concerning the

instruction were, just like those of Isaac, barred by their failure

to comply with the well-settled Ohio contemporaneous objection

rule.49 “Close analysis of respondents’ habeas petitions reveals

only one colorable constitutional claim. Because respondents

failed to comply with Ohio’s procedures for raising that

contention, and because they have not demonstrated cause for the

default, they are barred from asserting that claim under 28 U.S.C.

§ 2254.” Id. at 1576. Similarly, in Teague v. Lane, 109 S.Ct.

1061 (1989), the Court held that the petitioner’s claim of a Swain

v. Alabama, 85 S.Ct. 824 (1965), violation was procedurally barred

49
We observe that the Isaac Court noted in passing, with
respect to Isaac’s case, that Ohio appellate courts have the
discretion, reserved for “exceptional circumstances,” to excuse
failure to comply with the contemporaneous objection rule in
instances of “plain-error.” Id. at 1570 n.27; see also id. at
n.44.

59
by his failure to raise it at trial or on appeal, as required by

Illinois law, and he had never pursued state post-conviction

remedies. Id. at 1068-69 (“. . . we hold that petitioner’s Swain

claim is procedurally barred, and do not address its merits”).50

In both Isaac and Teague it was held that the exhaustion

requirement was satisfied because state habeas clearly would not be

available. Isaac at 1570-71 n.28; Teague at 1068. In essence, the

Court in Isaac and Teague assumed that the state court, in deciding

a state habeas, would deny it on the basis of the procedural bar

arising from the failure to raise the issue at trial or on direct

appeal. So, too, here. The Texas Court of Criminal Appeals did

not decide or rule on, but rather refused to accept for filing,

Hogue’s sixth state habeas petition; but, assuming that petition

adequately raised the instant complaint concerning the Colorado

conviction, had the Court of Criminal Appeals accepted the petition

and ruled on that complaint, the court clearly would have denied in

on the basis of Hogue’s failure to comply with the Texas

contemporaneous objection rule. That is entirely as clear here as

it was in Isaac and Teague. Moreover, “[s]tate collateral

proceedings are not constitutionally required as an adjunct to the

state criminal proceedings,” Murray v. Giarratano, 109 S.Ct. 2765,

50
Although in Teague the petitioner had presented a Sixth
Amendment fair cross-section claim on direct appeal (and apparently
at trial) which had been addressed on its merits by the Illinois
appellate court, the Supreme Court held that this did not
constitute addressing the merits of a Swain claim so as to excuse
the procedural default. Id. at 1068-69.

60
2770 (1989),51 and we cannot imagine that the result in Isaac or

Teague would have been any different had the states there involved

simply had no state habeas procedure.

Hogue relies on the statement in Teague that:

“The rule announced in Harris v. Reed assumes that a
state court has had the opportunity to address a claim
that is later raised in a federal habeas proceeding. It
is simply inapplicable in a case such as this one, where
the claim was never presented to the state courts.”
Teague at 1069.52

Hogue reads this language as stating that Harris applies in every

case except only when the claim was never presented to the state

courts. But it does not say that. And any implication to that

effect is dispelled by Coleman, where the Court expressly rejected

the contention that Harris “applies in all cases in which a habeas

petitioner presented his federal claims to the state court.”

Coleman at 2557-58. The Coleman Court observed “[t]his rule makes

little sense,” and went on to state:

“. . . Coleman would have the federal courts apply a
conclusive presumption of no independent and adequate
state grounds in every case in which a state prisoner
presented his federal claims to a state court, regardless
of whether it fairly appears that the state court
addressed those claims. We cannot accept such a rule. .
. .” Id. at 1558.53

51
See also Pennsylvania v. Finley, 107 S.Ct. 1990, 1994 (1987)
(“States have no obligation to provide this [post-conviction]
avenue of relief”).
52
We observe that no similar or comparable statement is
contained in Isaac.
53
Coleman in substance overrules our cases such as Booker v.
Lynaugh, 872 F.2d 100, 101 (5th Cir. 1989), stating that Harris
overruled our previous decisions such as O’Bryan v. Estelle, 714
F.2d 365, 383-85 (5th Cir. 1983); Stokes v. Procunier, 744 F.2d
475, 478-81 (5th Cir. 1984); Webb v. Blackburn, 773 F.2d 646, 650-

61
 As the Eleventh Circuit stated in the capital case of Lindsey

v. Smith, 820 F.2d 1137, 1143 (11th Cir. 1987), cert. denied, 109

S.Ct. 1327 (1989), reh’g denied, 109 S.Ct. 1771 (1989): “Isaac . .

demonstrates that the considerations of comity that underlie the

procedural bar doctrine require federal habeas courts to honor

state procedural rules, and not only state courts’ procedural

rulings.”54 Of course, if, notwithstanding the failure to comply

with the state’s procedural rules, the state court’s denial of

relief fairly appears to rest primarily on, or to be interwoven

with, federal law, then federal habeas relief is not procedurally

barred unless the state court in denying relief also clearly and

expressly relies on the failure to comply with the state procedural

rules. Coleman. See also Isaac at 1575 n.44. But here, “we deal

51 (5th Cir. 1983); and Penry v. Lynaugh, 832 F.2d 915, 918-19 (5th
Cir. 1987), rev’d on other grds., 109 S.Ct. 2934 (1989), in which
we held that an issue was procedurally barred by failure to comply
with the state’s contemporaneous objection rule despite the fact
that the state courts never addressed the claim in question or
mentioned the contemporaneous objection rule (in all those cases
except Stokes the claim was raised neither at trial nor on direct
appeal; in Stokes it was raised on direct appeal, though not at
trial, but was not mentioned in the appellate court’s opinion; in
all the cases the claim was raised in state habeas and, except in
Webb, the state habeas was denied without opinion or comment; in
Webb the state habeas was denied solely on the basis that the
issues had been decided on direct appeal, but the issue in question
had not been raised on direct appeal).
54
See also: Sykes at 2508 (“The failure of the federal habeas
courts generally to require compliance with a [state’s]
contemporaneous-objection rule tends to detract from the perception
of the trial of a criminal case in state court as a decisive and
portentous event”); Reed v. Ross, 104 S.Ct. 2901, 2907 (1984) (“To
the extent that federal courts exercise their § 2254 power to
review constitutional claims that were not properly raised before
the state court, . . . legitimate state interests may be
frustrated. . . .”).

62
only with contentions of federal law which were not resolved on the

merits in the state proceeding due to” the habeas petitioner’s

“failure to raise them there as required by state procedure.”

Sykes at 2507 (emphasis in original).

A somewhat analogous case is Tower v. Phillips, 7 F.3d 206

(11th Cir. 1993). There the federal claim at issue had never been

raised in the state courts until the petitioner asserted them in

two state post-conviction motions or petitions filed more than two

years after his conviction had become final. Approximately a year

and a half after the last of these motions or petitions was filed,

petitioner filed his federal habeas. However, the state court

never ruled on either post-conviction motion or petition despite

petitioner’s having apparently “written the clerk of the state

court repeatedly concerning his pending motions.” Id. at 209. As

the Tower Court remarked, the petitioner “did present his claims in

state court, but the state court never ruled one way or the other

on the petitions.” Id. at 210 (original emphasis). The Eleventh

Circuit concluded that petitioner’s state post-conviction motions

or petitions were filed outside the two-year period allowed by

state law and that the state law exceptions for instances where the

relevant facts were not sooner known or reasonably knowable and for

changes in the law were not applicable under the circumstances

presented. Id. at 209 n.8. The Eleventh Circuit held that this

failure to timely file the state post-conviction petitions or

motions——which were the only raising of the federal issue in state

court——constituted a state law procedural default which barred

63
federal relief absent a showing of cause and prejudice. Id. at

210-211. In so holding, the Eleventh Circuit expressly rejected

the ruling of the “magistrate judge and district court below . . .

that because the Florida courts never ruled on Tower’s [post-

conviction] motions, a showing of cause and prejudice was

unnecessary.” Id. at 210. The Court of Appeals explained that:

“As Coleman v. Thompson makes clear, the Harris
presumption may not be applied in cases in which the
state court opinion did not, at a minimum, discuss the
federal grounds at issue. . . . [W]e may not assume that
had the state court issued an opinion, it would have
ignored its own procedural rules and reached the merits
of this case. In fact, the most reasonable assumption is
that had the state court ruled, it would have enforced
the procedural bar.” Id. at 211.

The court went on to hold that the petitioner had not shown cause

for his state law procedural default and that accordingly the

default barred federal habeas relief.

Here, as in Tower, the state courts have declined to rule on

the only arguable assertion in state court of the relevant federal

claim; with respect to that claim there was a clear failure to

comply with the regularly enforced Texas contemporaneous objection

rule; and, the most reasonable assumption, indeed the only

reasonable assumption, is that had the Texas court ruled on the

claim——i.e., had it accepted for filing Hogue’s sixth state habeas

(the only even arguable attempt to assert the federal claim in

state court)——it would have enforced the procedural bar of Hogue’s

failure to comply with the Texas contemporaneous objection rule.

In Tower, the petitioner’s affording the state court an opportunity

to rule on his federal claim combined with the state court’s

64
failure to act on that opportunity did not prevent application of

the procedural bar; similarly, Hogue’s tendering of his sixth state

habeas petition, combined with the Court of Criminal Appeals’

refusal to accept it for filing because Hogue had previously been

cited for abuse of the writ in connection with his fifth state

habeas petition, should not prevent application of the procedural

bar arising from Hogue’s failure to comply with the regularly

enforced Texas contemporaneous objection rule.

However it might be in some other possible set of

circumstances, that conclusion is particularly appropriate here.

Hogue’s sixth state habeas did not fairly present his federal claim

as that claim ultimately was made in the district court below. As

explained in more detail in note 35 supra, Hogue’s sixth state

habeas petition contained a claim (the 31st out of 36 there

asserted; none of the others are relevant), presented in less than

two of that petition’s 173 pages (exclusive of exhibits), that the

admission of the Colorado conviction at his sentencing violated his

rights under the United States Constitution in that the Colorado

conviction was “void” because of “reliance on false testimony and

other violations of Mr. Hogue’s rights under state and federal

law.” The entirely conclusory “false testimony” theory, presumably

in support of which the sixth state petition cites Napue v.

Illinois, 79 S.Ct. 1173 (1959), a jury trial false testimony case,

has not been pursued and appears facially inapposite to Hogue’s

Colorado guilty plea conviction. That leaves wholly unspecified

“other violations.” While the citation to Boykin might suggest a

65
contention that the trial judge failed to advise (or misadvised)

Hogue of the rights he gave up by pleading guilty (see note 27,

supra), there is absolutely no allegation to this effect in the

petition (nor any allegation that Hogue was unaware of any of his

rights), and no claim based on the judge’s failure to advise, or

misadvising, Hogue has been pursued. What has been pursued is

ineffective assistance of counsel, yet this portion of the sixth

state habeas petition makes no reference whatever to “counsel,”

“attorney,” “lawyer,” or the equivalent (or to any individual other

than Hogue), or to the Sixth Amendment. While it does cite

Strickland, and that would suggest some sort of ineffective

assistance of counsel claim, the sixth state habeas contains no

even conclusory allegations suggestive of anything any lawyer

representing Hogue in his Colorado case either did or said or

failed to do or say (nor does the sixth state habeas assert Hogue’s

innocence of the Colorado charge to which he pleaded guilty or that

he was misinformed in any respect in that case). This is plainly

not a fair presentation of the claim ultimately presented to the

district court below, namely that Hogue pleaded guilty because his

counsel advised him, without adequate investigation, that he would

likely be convicted and should therefore accept the state’s plea

bargain offer.55 See, e.g., Nobles v. Johnson, F.3d ,

55
Indeed, as observed in note 35, supra, in affidavits attached
to his fifth state habeas Hogue, and several of his relatives, had
sworn that the reason he had pleaded guilty in the Colorado case
was “because I was concerned that if I put my ex-wife through a
jury trial that it would affect her emotional state of mind, and
the possibility of this affecting my daughter.” None of these
affidavits stated that Hogue was innocent of the Colorado charge to

66
(5th Cir. 1997) (no fair presentation to state court “if the

prisoner presents new legal theories or factual claims in his

federal habeas petition”); Graham v. Johnson, 94 F.3d 958, 968-69

(5th Cir. 1996) (ineffective assistance of counsel claim not fairly

presented to state court where in federal court petitioner

“presented significant evidentiary support . . . never presented to

the state courts”); Joyner v. King, 786 F.2d 1317, 1320 (5th Cir.),

cert. denied, 107 S.Ct. 653 (1986) (no fair presentation to state

court where federal claim contains “new factual allegations in

support of a previously asserted legal theory”); Brown v. Estelle,

701 F.2d 494, 495-96 (5th Cir. 1983) (if claim in federal court is

in a significantly stronger posture then it was in state court, it

was not fairly presented to state court). See also, e.g., Grubbs

v. Singletary, 120 F.3d 1174, 1178 (11th Cir. 1997) (“specific

instances of alleged ineffective assistance of counsel” not

previously presented to state court in connection with state court

ineffective assistance claim).56 Moreover, Hogue had been cited for

abuse of the writ in connection with his earlier fifth state

habeas, and that action was neither arbitrary nor discriminatory

and can hardly have been a surprise or frustrated any reasonable

expectation of Hogue’s, as he had abused the writ, Texas courts had

which he pleaded guilty, or that his lawyer had advised him to
plead guilty or that he had done so because of anything the lawyer
did or said or failed to do or say; none of the affidavits state
anything Hogue’s Colorado counsel did or said or failed to do or
say; none asserts that the Colorado conviction was invalid.
56
It is not decisive that the state had waived exhaustion. See
Graham at 970-971; Steele v. Young, 11 F.3d 1518, 1523 n.10, 1524
(10th Cir. 1993).

67
on several previous occasions invoked that doctrine (see cases

cited in note 33, supra), and in October 1987, months prior to

Hogue’s filing (through attorneys Mason and Bruder) of his fourth

state habeas in January 1988, the district court below had ordered

Hogue to file by January 1988 a state or federal habeas which would

“present each and every claim known to Petitioner or his counsel on

pain of waiver.” That the Court of Criminal Appeals refused to

accept for filing Hogue’s sixth state writ, because he had been

cited for abuse of the writ in connection with his fifth state

writ, should not in these circumstances constitute some sort of

waiver of Hogue’s failure to comply with the Texas contemporaneous

objection rule as to his present complaint concerning the Colorado

conviction, a complaint almost buried in and not fairly presented

by his sixth state habeas and never previously even hinted at.57

As noted, the district court determined that Hogue had “made

no plausible suggestion of a valid cause for his failure” to comply

with the Texas contemporaneous objection rule in respect to his

present complaint concerning the admission in evidence of the

Colorado conviction at the punishment stage of his trial. Hogue in

his present appeal does not challenge this determination of the

district court or otherwise urge that there was any “cause” which

57
We also observe that it was not until years after the Court
of Criminal Appeals’ September 1992 refusal to accept Hogue’s sixth
state writ for filing that this Court in March 1995 withdrew its
original (October 13, 1994) opinion in Hicks, holding the Texas
abuse of the writ doctrine had been applied with sufficient
regularity to constitute an adequate basis for procedural bar, and
held to the contrary in Lowe (based on language in the Court of
Criminal Appeals’ 1994 opinion in Ex parte Barber).

68
excused this failure within the meaning of the “cause and

prejudice” exception set forth in Wainwright v. Sykes, 97 S.Ct.

2497 (1977), and subsequent cases.58 The failure to show “cause”

is fatal to the invocation of the “cause and prejudice” exception,

without regard to whether “prejudice” is shown. Isaac, 102 S.Ct.

at 1575 n.43. However, even if no cause is shown excusing the

procedural default——here failure to comply with the Texas

contemporaneous objection rule——nevertheless that default will not

bar federal habeas relief if imposition of such a bar would

constitute a “‘miscarriage of justice.’” Sawyer v. Whitley, 112

S.Ct. 2514, 2518 (1992). Where, as here, the asserted error

(admission of Colorado conviction at the punishment stage) goes

only to the sentence imposed in a capital case, such a “miscarriage

of justice” is not established unless it is shown “by clear and

convincing evidence that but for” the asserted “constitutional

error, no reasonable juror would have found the petitioner eligible

for the death penalty under the applicable state law.” Id. at

2517. Hogue does not argue on appeal that this standard is met,

and it is plain that it is not. A reasonable juror could, indeed

in all likelihood would, have answered both of the punishment

issues59 in the affirmative had there never been any mention of the

58
And, we believe it evident that there was no such “cause.”
See, e.g., notes 30 and 31, supra, and accompanying text. See also
Murray v. Carrier, 106 S.Ct. 2639, 2644-45 (1986); Smith, 977 F.2d
at 956-57.
59
That Hogue’s conduct causing Markham’s death was committed
deliberately with the reasonable expectation that her or another’s
death would result and that there was a probability he would commit
criminal acts of violence constituting a continuing threat to

69
1974 Colorado conviction.

Because Hogue did not object to——indeed he and his counsel

affirmatively stated they did not object to——the introduction of the

Colorado conviction at the punishment phase of his trial, he failed

to comply with the settled Texas contemporaneous objection rule.

Because he has neither claimed nor shown “cause” for this default

or that a “miscarriage of justice” would result if the default

barred federal habeas relief, we affirm the district court’s

determination that federal habeas relief on this claim is barred by

the failure to comply with the Texas contemporaneous objection

rule.

No Substantial and Injurious Effect on Sentence Verdict

Even if Hogue’s complaint respecting introduction of the

Colorado conviction at the sentencing phase were not procedurally

barred (as we have held that it is) by his failure to comply with

the Texas contemporaneous objection rule, we determine that Hogue

would nevertheless not be entitled to federal habeas relief in

respect to that complaint because we conclude, as did the district

court, that the introduction of the conviction did not have a

“‘substantial and injurious effect or influence in determining the

jury’s [punishment phase] verdict.’” Brecht v. Abrahamson, 113

S.Ct. 1710, 1722 (1993).

Hogue argues that the “harmless beyond a reasonable doubt”

standard of Chapman v. California, 87 S.Ct. 824, 828 (1967), rather

than the more lenient Brecht standard, should apply because no

society.

70
Texas court ever reviewed this claim and hence never applied the

Chapman standard.60 We reject this contention. While Hogue’s

60
Hogue does not contend that his complaint respecting
introduction of the Colorado conviction at the punishment phase of
his trial presents some kind of “structural” error (or the
equivalent) as to which no sort of harmless error analysis whatever
is appropriate and which “requires automatic reversal” even though
harmless under the appropriate standard. See Brecht at 1717. We,
too, conclude that the error is not structural and that harmless
error analysis is appropriate. We do not read Johnson v.
Mississippi as being to the contrary; indeed, the inference from
Johnson is that the denial of relief there was reversed because the
error was harmful under the circumstances of that case. Id., 108
S.Ct. at 1988-1989. Further, Johnson involved a weighing state,
where the argument for the error to be considered “structural” is
stronger than in a nonweighing state such as Texas. We note that
the Eleventh Circuit has held that in federal habeas analysis for
harmlessness is appropriate as to a Johnson v. Mississippi error in
a “weighing” state death penalty case. Duest v. Singletary, 967
F.2d 472, 480-482 (11th Cir. 1992) (applying Chapman standard),
vacated and remanded, Singletary v. Duest, 113 S.Ct. 1940 (1993),
on remand, Duest v. Singletary, 997 F.2d 1336, 1337-1339 (1993)
(applying Brecht standard). Moreover, had harmless error analysis
been inappropriate on federal habeas for a Johnson v. Mississippi
error, the Supreme Court in Duest would not have vacated the
Eleventh Circuit’s initial decision, which had granted habeas
relief (finding the error not harmless beyond a reasonable doubt
under Chapman), and remanded “for further consideration in light of
Brecht v. Abrahamson.” Duest, 113 S.Ct. at 1941. This view is
also implicit in the Supreme Court’s decision in Romano v.
Oklahoma, 114 S.Ct. 2004, 2011 (1994). See also Clemons v.
Mississippi, 110 S.Ct. 1441, 1451 n.5 (1990), where the Court said
of its opinion in Johnson: “The Court did not hold that the
Mississippi Supreme Court could not have applied harmless error
analysis.”
Nor do we consider our opinion in Wiley v. Puckett, 969 F.2d
86, 94 n.8 (5th Cir. 1992), to require that only a state court can
find the present Johnson v. Mississippi error harmless (nor does
Hogue so contend). Wiley involved a Clemons v. Mississippi, 110
S.Ct. 1441 (1990), error in a weighing state death penalty case,
and though we recognized that that sort of error was one properly
subject to a harmless error analysis, we indicated that only a
state court could find the error harmless. Wiley at 94 n.8.
However, Wiley did not involve a Johnson v. Mississippi error and
it was decided prior to the Supreme Court’s decision in Duest,
which is inconsistent with the notion that a federal habeas court
may not find a Johnson v. Mississippi error harmless. Wiley is
also prior to Brecht; and, several other circuits have declined to
follow this aspect of Wiley. See Davis v. Executive Director, 100

71
contention is supported by several decisions of the Eighth Circuit,

see Williams v. Clark, 40 F.3d 1529, 1541 (8th Cir. 1994), cert.

denied, 115 S.Ct. 1397 (1995); Starr v. Lockhart, 23 F.3d 1280,

1290-91 (8th Cir.), cert. denied, 115 S.Ct. 499 (1994); Orndorff v.

Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993), cert. denied, 114

S.Ct. 1631 (1994), so far as we are aware, all other circuits which

have resolved the issue have declined to follow the Eighth

Circuit’s approach and have held that Brecht, rather than Chapman,

enunciates the appropriate standard for determining whether a

constitutional error was harmless in a federal habeas challenge to

a state conviction or sentence even though no state court ever made

any determination respecting whether or not the error was harmless.

See Davis v. Executive Director, 100 F.3d 750, 772 n.20 (10th Cir.

1996), cert. denied, 117 S.Ct. 1703 (1997); Sherman v. Smith, 89

F.2d 1134, 1140-41 (4th Cir. 1996), cert. denied, 117 S.Ct. 765

(1997); Tyson v. Trigg, 50 F.3d 436, 446-447 (7th Cir. 1995), cert.

denied, 116 S.Ct. 697 (1996); Horsley v. State of Alabama, 45 F.3d

1486, 1492 & n.11 (11th Cir.), cert. denied, 116 S.Ct. 410 (1995);

Smith v. Dixon, 14 F.3d 956, 974, 979-80 (4th Cir.) (en banc),

cert. denied, 115 S.Ct. 129 (1994). We agree with these decisions

of the Eleventh, Tenth, Seventh, and Fourth Circuits, and hold that

F.3d 750, 768 n.18 (10th Cir. 1996), cert. denied, 117 S.Ct. 1703
(1997); Williams v. Clark, 40 F.3d 1529, 1539-40 (8th Cir. 1994),
cert. denied, 115 S.Ct. 1397 (1995); Smith v. Dixon, 14 F.3d 956,
977-79 (4th Cir.) (en banc), cert. denied, 115 S.Ct. 129 (1994).
In any event, Wiley is a weighing state case and we have never
applied its rationale to a habeas challenging a death sentence
imposed in a nonweighing state such as Texas. Wiley is simply
inapplicable in the present context.

72
Brecht rather than Chapman states the appropriate test for us to

follow in determining whether or not the introduction of the

Colorado conviction at the punishment phase of Hogue’s trial was

harmless. We note in this connection that the reasons given by the

Supreme Court in Brecht for adopting the Kotteakos v. United

States, 66 S.Ct. 1239, 1253 (1946), harmless error standard for

federal habeas review of nonstructural constitutional errors in

state criminal cases are fully applicable whether or not the state

courts have conducted a Chapman harmless error review. These

reasons are comity, federalism, the state’s interests in finality

of convictions, the notion that federal habeas is to protect those

grievously wronged, and the costs to society of retrying defendants

who are released on federal habeas.61 The Brecht Court likewise

divided the cases it was addressing according only to two criteria,

namely, first, whether they involved “structural” or nonstructural

(generally “trial” type) constitutional error, id. at 1717, and,

second, whether they were being considered on direct or on

61
See Brecht at 1720 (“comity and federalism”) and 1721:

“Overturning final and presumptively correct
convictions on collateral review because the State cannot
prove that an error is harmless under Chapman undermines
the States’ interest in finality and infringes upon their
sovereignty over criminal matters. Moreover, granting
habeas relief merely because there is a ‘”reasonable
possibility”’ that trial error contributed to the
verdict, see Chapman v. California, 386 U.S., at 24, 87
S.Ct., at 828 . . . is at odds with the historic meaning
of habeas corpus——to afford relief to those whom society
has ‘grievously wronged.’ Retrying defendants whose
convictions are set aside also imposes significant
‘social costs,’ . . . . [R]etrials following the grant
of habeas relief ordinarily take place much later than do
retrials following reversal on direct review.”

73
collateral review.62 No third classification of cases was made for

those where the state court determined the error was harmless and

those that did not address harmlessness. And Brecht concluded by

stating the following general rule: “we hold that the Kotteakos

harmless-error standard applies in determining whether habeas

relief must be granted because of constitutional error of the trial

type.” Id. at 1722 (footnote omitted). No exception or proviso is

stated respecting cases in which the state court did not conduct

Chapman harmless beyond a reasonable doubt review. We will not

undertake to write in such a proviso.63

So, we apply the Brecht standard, which we have articulated as

follows:

“. . . [U]nder Brecht, a constitutional trial error
is not so harmful as to entitle a defendant to habeas
relief unless there is more than a mere reasonable
possibility that it contributed to the verdict. It must
have had a substantial effect or influence in determining
the verdict. We recognize, however, that if our minds
are ‘in virtual equipoise as to the harmlessness,’ under
the Brecht standard, of the error, then we must conclude
that it was harmful. O’Neal v. McAninch, U.S. ,
, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995).
Moreover, the Brecht standard does not require in order
for the error to be held harmful that there be a
‘reasonable probability’ that absent the error the result
would have been different. Kyles v. Whitley, U.S.

62
See id. at 1720: “Recognizing the distinction between direct
and collateral review, we have applied different standards on
habeas than would be applied on direct review with respect to
matters other than harmless-error analysis.”
63
As the Seventh Circuit observed in Tyson, such a proviso or
limitation “would rob the [Brecht] decision of any general
significance.” Tyson, 50 F.3d at 446. If the state court finds no
error, it typically will not review for harmlessness (so also if it
finds the claim procedurally defaulted, but the petitioner is able
to show in federal court “cause and prejudice” respecting the
default).

74
 , , 115 S.Ct. 1555, 1566-67, 313 L.Ed.2d 490
(1995).” Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th
Cir.), cert. denied, 117 S.Ct. 150 (1996).64

Hogue argues that the admission of the Colorado conviction at the

sentencing stage of his trial was not harmless under this standard

also. We disagree.

It appears clear that the decisive sentencing verdict factor

was Hogue’s conduct and state of mind over the more than twelve

hours during which the offense was structured and committed, as

well as the hours shortly before and after these. This was not a

killing committed when an armed robbery unexpectedly went astray,

or which resulted from action taken in the heat of sudden passion

or with judgment clouded by drink, drugs, psychiatric episode, or

immaturity. From Friday morning, January 12, 1979, until about

1:00 a.m. Saturday, January 13, Hogue terrorized Markham, Crawford,

her eight-year-old son, and, later, Renick. Until the evening of

Wednesday, January 10, they were all essentially strangers to him.

His actions were obviously planned and deliberate, and he was

basically calm, calculating, careful and manipulative throughout.

Despite ample opportunity, he never attempted to back out of his

64
We recognize, of course, that the mere fact that the evidence
exclusive of the Colorado conviction was sufficient to sustain the
punishment verdict (the jury’s affirmative answer to each of the
two special issues concerning, respectively, deliberateness and
future dangerousness) does not alone suffice to establish that
admission of the Colorado conviction at the punishment phase was
harmless for purposes of Brecht. We reject Hogue’s suggestion that
the district court misapplied Brecht by finding it satisfied merely
because the evidence apart from the Colorado conviction sufficed to
support the verdict; on the contrary, the district court did not
take such an approach and properly applied Brecht. In any event,
we review the district court’s harmless error conclusion de novo,
and we independently apply the Brecht standard.

75
grisly enterprise. He announced to the victims on more than one

occasion that he was going to kill them all. Markham and Renick

were bound by Hogue and Crawford had received at his hands a

potentially fatal knife stab in the stomach. Markham was burned to

death, firmly tied to the bed. The intense mental terror and

physical pain she must have felt defies adequate description.

While Crawford and Renick managed to escape the flames, and Renick

was able to save her son, Crawford’s stab wound was potentially

fatal, and the terror she must have felt for her young son’s and

her own fate can scarcely be exaggerated. In addition to his cruel

and heartless murder of Markham, Hogue also raped Markham and

stabbed Crawford in the stomach so hard that the knife penetrated

the rear of her abdominal cavity. He had previously forced

Crawford, at gun point, to commit oral sodomy on him. And, he not

only intentionally killed Markham by firmly tieing her to the bed

and then setting the house on fire, but also tried to kill

Crawford, her young son, and Renick by the same means.

There is absolutely nothing by way of mitigation in respect to

the extent of Hogue’s moral culpability for these almost

unimaginably heinous crimes. Hogue never expressed any remorse

whatever, but rather simply denied any wrongdoing at all, making up

a bizarre and wholly unbelievable story that he was a victim and

that Renick, in complicity with Crawford, was the murderer and

stabber (denigrating both of these victims of his). But the jury

rejected this brazen effort. Moreover, there was nothing to

indicate that when these offenses were committed Hogue was in other

76
than complete command of his faculties. There was no evidence that

he was under the influence of any mind-altering substance——such as

alcohol or drugs or anything else——or that he was undergoing any

kind of psychiatric episode. He was obviously somewhat intelligent

and articulate. He was not an immature youth, but rather a married

twenty-eight-year-old man (albeit also with a then-current

girlfriend “Kathy”) who had been married at least once before and

had at least one child. There is no evidence of any provocation,

any unusual temptation, or any sudden passion, or that Hogue was

acting under the influence of any other person or under the

pressure of outside circumstances or of some sudden, unexpected

turn of events.65 There was no testimony——not even from his mother

or other family members——as to his good character or as to anything

good that he had done.66 Nor was there evidence that Hogue had any

potential for rehabilitation.67 And, there was nothing to suggest

65
And, there was no evidence that Hogue suffered from any
particular mental illness or defect which might lessen his moral
culpability or that he had any character of abused, neglected, or
deprived background.
66
To the contrary, two witnesses testified that his reputation
for being a peaceable and law-abiding citizen was bad. Another
witness, Karen Hightower, testified that in July 1976, after
befriending her with an offer of jumper cables, he lured her under
false pretenses into a ride into the country and raped her at knife
point.
67
The defense psychologist Dr. Dickerson did not interview
Hogue or examine him or any records pertaining to him, and gave no
testimony about Hogue personally or by way of hypothetical (except
one brief hypothetical as to which he said only that such an
offender would not likely be paroled). The burden of Dr.
Dickerson’s testimony was twofold: that future dangerousness could
never be predicted, no matter how clearly a person’s past
dangerousness had been demonstrated; and that it was particularly
unprofessional for the state’s witness, Dr. Grigson, to predict

77
even the slightest contrition or remorse on Hogue’s part. On this

evidence, and wholly apart from the Colorado conviction, the

conclusion that Hogue’s killing of Markham was deliberate and that

there was “a probability” that he “would commit criminal acts of

violence that would constitute a continuing threat to society” (as

inquired about in the punishment issues) seems inevitable.

Any possible adverse influence on the punishment verdict that

Hogue’s Colorado conviction for rape of his then wife Claudia——for

which the evidence showed he served less than six months in

all——might otherwise have had was essentially dissipated by the

unchallenged evidence that the victim solicited Hogue’s mother to

take her to visit him at the reformatory where he was serving his

brief sentence for the offense and by the pictures of them happily

together there, both smiling and with her arms around him (Hogue’s

young child with them in two of the three pictures).

The Colorado conviction did not play a significant role in the

punishment phase arguments. The prosecution devoted in all only

five lines to it, one in the opening (“We know what happened in

Colorado”) and four in the closing (“He even told you that when he

got to the penitentiary for rape, he only served ninety days.

Somebody made a mistake, didn’t they. And Jane Lynn Markham paid

for it”), less than two percent of the entire prosecution

punishment phase argument. The main thrust of the prosecution’s

future dangerousness solely on the basis of a hypothetical and
without personal examination (as Grigson did in Hogue’s case).

78
punishment phase argument was the events of January 10-13.68

Moreover, it is plain that the Colorado conviction played no

essential or prominent role in Dr. Grigson’s testimony. Indeed,

barely one percent of the lengthy hypothetical on the basis of

which Dr. Grigson testified was devoted to the Colorado conviction,

much more (over five times as much) was devoted to the Hightower

rape, and the vast bulk——over ninety-two percent——was devoted to the

events of early January 1979. Taking Dr. Grigson’s testimony as a

whole, it could not reasonably be concluded that his opinion would

have differed if the Colorado conviction had not been included in

the hypothetical.

68
At oral argument before this Court, Hogue’s counsel asserted
that at the guilt-innocence stage argument the prosecutor sought to
argue that Hogue was infatuated with Markham because she looked
like the victim in the Colorado rape, who was Claudia Hogue
(referred to by Hogue on redirect as his “ex-wife”). This is a
plain misreading of the record. The evidence before the jury was
entirely clear that Markham strongly resembled Karen Hogue, the
women to whom Hogue was married in December 1978 and January 1979
(and, presumably, at trial), and it was that evidence to which the
prosecution was referring; there was never any evidence that
Markham resembled Claudia Hogue; indeed, the only evidence of what
Claudia Hogue looked like was the pictures which the defense
introduced at the punishment stage. Less than one percent of the
prosecution’s guilt-innocence argument was devoted to the Colorado
conviction, all but three lines of this coming when the prosecution
in its opening, going over the charge paragraph by paragraph,
arrived at the paragraph dealing with the prior conviction and
explained “The Defendant admitted on the stand he had been
convicted in Colorado of rape. This is submitted to you for the
purpose of aiding you, if it does, in passing upon the weight you
will give his testimony, judging the credibility of him as a
witness.” In the middle of its closing guilt-innocence phase
argument, the prosecution, in answering defense attacks on Renick’s
credibility, also stated (among many other things unrelated to the
prior conviction), “You judge him by the testimony of this
convicted rapist.” The defense in its guilt-innocence argument
contended that the record of Hogue’s prior Colorado conviction was
why the authorities did not——in the defense’s view——adequately
investigate the case.

79
 As we have observed (see note 60, supra), Johnson v.

Mississippi does not preclude harmless error analysis in respect to

the Colorado conviction. We further note that Johnson arose in a

weighing state and presented a situation where the subsequently

invalidated conviction was the only evidence supporting one of the

three statutory aggravating circumstances found by the jury, the

jury was instructed, in accordance with Mississippi law, to weigh

all those three aggravating circumstances against the mitigating

circumstances, and the death sentence depended on the jury’s

finding that the statutory aggravating circumstances found

outweighed the mitigating circumstances. Id., 108 S.Ct. at 1984.

However, in Texas, unlike the situation in Mississippi, “the jury

is not required to weigh aggravating against mitigating factors.”

Stringer v. Black, 112 S.Ct. 1130 at 1138 (1992). Indeed, Texas

has no factors which it labels to the jury as “aggravating.” Here,

unlike the situation in Johnson, the jury was not told that it must

treat the Colorado conviction as a weight on “death’s side of the

scale.” See Stringer at 1137. Here, there was no reference

whatever, directly or indirectly, to the Colorado conviction (or to

previous convictions or offenses generally) in the court’s

punishment charge (and the only reference in the guilt-innocence

charge was that it could be considered for no purpose other than

how, if at all, it bore on Hogue’s credibility as a witness). In

this context, “the difference between a weighing state and a

nonweighing state is not one of ‘semantics.’” Stringer at 1137.

These aspects of Johnson which strongly point to the harmfulness of

80
the error there are wholly absent here.

We are convinced that admission of the Colorado conviction at

sentencing was harmless under Brecht and hence does not entitle

Hogue to federal habeas relief.

Conclusion as to Colorado Conviction

We conclude, as did the district court, that Hogue’s complaint

as to admission in evidence of the Colorado conviction at the

punishment phase of his trial is procedurally barred from

consideration on federal habeas because of his failure to comply

with the Texas contemporaneous objection rule, for which failure no

cause is shown or claimed and there being no showing or claim that

enforcement of the procedural bar would result in a “‘miscarriage

of justice’” under Sawyer.

We further conclude, as the district court also did, that the

admission in evidence at the punishment phase of the trial of

Hogue’s Colorado conviction was harmless under Brecht and so, in

any event, does not entitle Hogue to federal habeas relief.

II. Denial of Federal Evidentiary Hearing on Juror Bias Claim

In his second point on appeal, Hogue complains of the district

court’s denial of his request for an evidentiary hearing on his

claim that one of the jurors in his case——Donnie Smith——”concluded

prior to hearing any evidence that Mr. Hogue was guilty and that he

should receive a death sentence.” In denying this claim, the

district court relied on the fact findings of the state habeas

court, determining that none of the exceptions stated in former 28

U.S.C. § 2254(d) was applicable. Hogue v. Scott, 874 F.Supp. at

81
1534-1538. Hogue asserts this was error because he “submitted

sworn evidence in the court below establishing that the state trial

court’s findings were not fairly supported by the record as a

whole” and “the district court erred in refusing to conduct an

evidentiary hearing on this issue after the state-court findings of

fact were revealed as unsupported.” The “evidence” to which Hogue

refers consists only of two affidavits which were exhibits to his

instant section 2254 petition, one by Bobby Hackett, the other by

Charles Press. The district court also stated that it had

“independently reviewed” the entire state record——which included a

transcript of all the proceedings, testimony, and evidence before

the state habeas trial court on this issue and the written findings

and conclusions of that state habeas trial court and of the Texas

Court of Criminal Appeals——and also the affidavits of Hackett and

Press, and “has concluded that, if findings were appropriate by

this court . . . this court would make the same findings the state

[habeas] court made.” Id. at 1539. Hogue contends, without

citation of authority, that this too was error because the district

court should not make findings without an evidentiary hearing.

We reject Hogue’s claims in this connection.

Hogue’s claims concerning juror Smith were raised (along with

various other claims) in his fourth state habeas filed, by

attorneys Mason and Bruder, January 22, 1988. An evidentiary

hearing was held on this claim in the state court on March 24,

1988, at which Hogue was represented by Mason and Bruder and at

which former juror Smith, Mary Ebel (Hogue’s mother), and Hogue’s

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former trial counsel, Coffee, testified in person; on May 9, 1988,

attorney Mason took the oral deposition of Harley Belew; a further

evidentiary hearing was held August 8, 1988, at which Hogue was

represented by attorney Mason and at which Burns, one of Hogue’s

former attorneys on direct appeal, testified in person as did also

Dennis Enos. The transcript of the May 9, 1988, deposition was

introduced at the August 8, 1988, hearing. The state trial judge

(not the judge who tried the case, as he had died in the interim)

on November 1, 1988, made written findings of fact and conclusions

of law rejecting Hogue’s claims and recommending denial of relief.

The Court of Criminal Appeals denied relief by written order of

January 6, 1989, stating in relevant part:

“The trial court, after holding a hearing, has entered
findings of fact and conclusions of law along with a
recommendation that this Court deny relief. This Court
has carefully reviewed the record with respect to the
allegations brought by applicant and finds that the trial
court’s findings and conclusions are fully supported by
the record.

All relief sought is therefore denied.”

The essence of the claim about juror Smith which Hogue asserts

in this appeal is that Smith, after he had been selected as a juror

but before the taking of evidence commenced, while at a small

gathering in the home of his friend Belew, told Enos, who was

likewise present and whom Smith and Belew had each known for some

time, that he, Smith, had been selected as a juror in Hogue’s case

and, according to Enos’ testimony at the state evidentiary hearing,

Smith then said “he had been reading in the newspaper, and from

what he had read he believed the man was guilty and he was going to

83
do everything in his power to burn him.” There was nothing at all

to suggest anything about what it was that Smith had supposedly

read in the newspaper. Enos testified that since some time in 1981

he had been serving prison sentences totaling thirty years and had

been in trouble with the law since he was a young adult.69 At the

state evidentiary hearing, Smith testified unequivocally and

repeatedly that he never mentioned or discussed the case with Enos

or Belew (or anyone else outside the jury room) at any time before

the punishment verdict. He believed he talked with one or both of

them about it after the punishment verdict, but did not recall what

was said. When chosen as a juror, Smith had no information about

the case other than that it was a murder case, he had no

preconceived attitude in respect to guilt or innocence or

punishment, he fairly considered the evidence and based his guilty

verdict and punishment verdict on the evidence, and answered

truthfully all the questions on voir dire.70 There is nothing to

indicate Smith had ever been in trouble with the law; he taught

Sunday school and had served in the Marine Corps. Belew testified

at the state evidentiary hearing that he recalled hearing parts of

a conversation between Smith and Enos at his house concerning a

69
The sentences Enos was serving were a twenty-year sentence
imposed in Dallas County for aggravated robbery and four concurrent
ten-year sentences imposed in Tarrant County for two burglaries of
buildings, one attempted burglary, and one obtaining drugs by
fraud. Previously he had plea bargained a charge of obtaining
drugs by fraud in 1979, in 1978 he had been charged with possession
of a forged writing, and in 1975 with passing a forged check.
70
On voir dire, Smith had said, among other things, that he had
read nothing about the case, and did not take a newspaper, and had
no bias or prejudice about the case.

84
case. Belew could not recall when this conversation took place,

whether before the trial started or after it was over, but he

stated that “part of it [the conversation] was that Donnie [Smith]

either was or had been, and I’m pretty sure he had been, in a

trial.” Belew further stated that the conversation agitated Enos

because Smith had said something to the effect that he “had it in

for the guy [Hogue] from the beginning” and “that’s [apparently,

the verdict] what he wanted from the start.” Some time later, Enos

talked to Belew about the conversation and how it upset him. Belew

thereafter talked to Smith about it. Smith was offended that Belew

had assumed he (Smith) had been serious in talking to Enos; on the

contrary, he took his jury duty very seriously and said he was just

“Pulling Dennis’ [Enos’] leg,” “razzing him,” and “getting him

going.” Belew was convinced, after talking to Smith, that this was

the truth, that Smith had “been pulling Dennis’ [Enos’] leg and

Dennis had overreacted.” Belew testified that Enos “is a pretty

easy person to get . . . him going like that and Donnie [Smith]

knew that,” and that Smith was “the type of person who when he sees

the opportunity tends to pull people’s legs.”

The state habeas trial judge’s findings included the

following:

“. . .8. Smith did not have any preconceived prejudice
against Applicant. . . .

9. Smith did not have any advance knowledge of the
facts of this case or Applicant’s connection with it,
except for the normal generalized knowledge, such as the
fact that it was a murder case. . . . He had no
preconceived determination to impose the maximum
punishment on the Applicant. . . .

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 . . .

11. After Applicant’s trial was over and Smith had
finished his service as a juror, Smith had a conversation
with Dennis Enos at the home of Harley Belew. . . .
Smith and Belew were friends of long standing, and Smith
had known Enos well since junior high school or earlier.
. . . Smith knew Enos could easily be maneuvered into
getting angry if Smith got into an argument with him and
took a strong position he knew Enos disagreed with. . .
. Smith often did this with Enos and other acquaintances
as a form of teasing; it amused Smith to successfully
‘pull the leg’ of people in this fashion. . . . During
their post-trial conversation at Belew’s residence, Smith
successfully employed this tactic against Enos when he
suggested to Enos that he was prejudiced against
Applicant prior to serving as a juror. . . .

12. Smith does not deny that such a conversation
with Enos took place, but he is unable to recall the
conversation. Smith does deny that any such conversation
took place before or during trial, and this Court finds
that Smith is telling the truth in this respect; the
conversation with Enos took place after the conclusion of
Applicant’s 1980 trial in this case. . . .

13. Smith was in fact not prejudiced against
Applicant prior to trial. He intimated to Enos that he
was, but did so only to get a ‘rise’ out of Enos during
his post-trial conversation with Enos. . . .

. . .

19. Applicant was tried by a jury of twelve fair
and impartial jurors. . . .

. . .

CONCLUSIONS OF LAW

1. Applicant was not deprived of due process or a
trial by a fair and impartial jury by Donnie Ray Smith’s
service as a juror, nor did the actions of . . . Smith
deprive Applicant of due process or a fair and impartial
jury.”

We hold that the state habeas court’s fact findings are fairly

supported by the record as a whole. The findings that the

challenged conversation took place after the trial was over, and

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that Smith was in fact an impartial juror, involve credibility

choices the state court was fully competent to make.

Nor do the affidavits of Hackett and Press justify failing to

apply former section 2254(d)’s presumption of correctness.

Hackett’s affidavit states that “[i]n 1980-1981" he was hired by

attorney Casey——who then represented Hogue——to investigate

allegations of juror misconduct in the trial, and that at a wholly

unspecified time71 in the course of his investigation he spoke to

Belew, apparently on the telephone, and his recording of this

conversation includes a statement by Belew that at Belew’s home, on

“the night of the television episode were [sic] J.R. got shot on

Dallas” Smith said to Enos “he was getting tired of the bleeding

heart liberal stuff and that if he got a chance he would let the

guy have it, that was like before trial or during trial.” The

affidavit of Press state that an Austin television station employee

told him that CBS in New York had told her that the “Dallas”

episode in which J.R. Ewing was shot first aired March 21, 1980(a

date after Smith as selected as a juror and before the commencement

of evidence). In the first place, we note that Hackett’s affidavit

as to what Belew said to Hackett on the telephone approximately a

year after the trial is hearsay, and is not substantive evidence of

anything. At most it (together with Press’s affidavit) could serve

to impeach Belew insofar as he indicated the conversation between

Smith and Enos likely took place after trial, although he was not

71
The state habeas hearing indicates this conversation with
Hackett occurred about a year after the trial.

87
sure. It could not impeach Smith or be substantive evidence of

when the conversation took place, a matter on which Hogue had the

burden of proof. Moreover, the state trial judge found that

whatever Smith said to Enos was not meant seriously. Just because

a juror once expressed pre-trial conceptions of guilt does not

preclude a fact finding, to which federal habeas courts must defer,

that the juror was in fact impartial. See Patton v. Yount, 104

S.Ct. 2885, 2891-93 (1984).

In any event, it is clear that Keeney v. Tamayo-Reyes, 112

S.Ct. 1715 (1992), bars consideration of the Hackett and Press

affidavits, and Hogue has presented no argument why this is not so.

Not only is there no suggestion (in Hackett’s affidavit or

otherwise) or claim of any external impediment or reason preventing

Hogue from knowing of and presenting the Hackett information at the

state habeas hearing, the state record makes clear that the defense

in fact had that information and Hackett’s report at the state

hearing. At the March 8, 1988, state hearing Hogue’s attorney

Mason commenced to read from what he described as a report of “what

Mr. Belew said to an investigator named Hackett, approximately

twelve months after the trial.”72 In his May 9, 1988, deposition,

Belew was asked by Mason if he recalled talking to “an investigator

named Hackett” “approximately a year or two after the trial.”73

72
The reading did not progress very far before an objection was
made; no ruling was made on the objection, and the discussion
turned to other matters.
73
Belew said he did not, and asked Mason “Did he say I did?”,
to which Mason replied “Yes,” Belew then saying “Well, there you
are.”

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 We hold that the district court did not err in according the

presumption of correctness to the findings of the state habeas

court respecting juror Smith and in denying Hogue’s request for an

evidentiary hearing on that matter.74

III. Furman v. Georgia and Ex Post Facto Claims

Hogue’s third and final complaint on appeal is that “the

district court erred in denying relief on Mr. Hogue’s ex post facto

and Furman [v. Georgia, 92 S.Ct. 2726 (1972)] claims without

conducting a genuinely de novo review.”

74
In a footnote to his appellant’s brief, Hogue also cites the
testimony of his mother, Ebel, at the state habeas hearing on March
8, 1988, to the effect that while sitting outside the courtroom
during voir dire she heard a person, whom she identified as Smith,
talking about the case and saying to another venireman “from what
I have read in the newspaper, there is no doubt that he is guilty,
and if I’m——I’m going to hang him if they’ll let me as [sic] a
jury.” Smith, in his testimony at the state evidentiary hearing,
adamantly denied ever making any such or similar statement. Ebel’s
testimony was undercut by other factors as well. She testified she
reported that conversation to Hogue’s counsel, Coffee, the same
afternoon. At the state evidentiary hearing, Coffee clearly
testified no such report was made to him. Also, Ebel was clear
that this occurred on the second day of jury selection. That was
March 11. However, Smith was in the second batch of veniremen
summoned, and he did not come for voir dire until March 17. The
state habeas court found:

“10. At no time, either prior to or after his
individual voir dire, did Applicant [sic; obviously,
“Smith” is intended] tell a fellow venireperson that he
had read about Applicant’s case in the newspaper; nor did
he ever tell such a person that there was no doubt about
Applicant’s guilt, or that he would ‘hang’ Applicant if
he were put on the jury. . . . Applicant’s mother did
not overhear such a conversation, and she did not at any
time tell Applicant’s trial counsel that she overheard
such a conversation.”

This finding is fairly supported by the record as a whole and
the district court did not err in according it the presumption of
correctness or in not holding an evidentiary hearing thereon.

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 The district court rejected these claims, generally agreeing,

as do we, with the decision of the Court of Criminal Appeals in

respect thereto. Hogue v. Scott, 874 F.Supp. at 1543-1544; Hogue

v. State, 711 S.W.2d at 712-13.

We too reject these claims.

While Hogue’s appellant’s brief does not explain what his ex

post facto claim is, in his reply brief he seems to argue that it

was not the intent of the Texas legislature, in enacting the

capital murder statute, Tex. Penal Code § 19.03(a)(2), to include

murder while committing arson in those instances where the victim’s

death was caused by the arson——the fire or fire and smoke——itself.

We reject this contention. The statute as written (see note 2,

supra) plainly includes such an offense, and nothing in the wording

of the statute tends to exclude it; nor is there any clear and

specific legislative history or official commentary to the

contrary. No Texas court decision is cited supporting Hogue’s

construction of section 19.03(a)(2), and we are aware of none. The

Court of Criminal Appeals held that the statute applied. Hogue,

711 S.W.2d at 12-13. There being nothing unreasonable about this

construction, Hogue’s ex post facto argument amounts to no more

than a disagreement as to state law, a matter not cognizable on

federal habeas.

Hogue’s Furman claim is essentially that where the victim’s

death is caused by the arson there is a double counting, the “act”

constituting the murder is also the “act” constituting the

underlying felony of arson, and that thus section 19.03(a)(2) does

90
not in such an instance adequately narrow the class of murderers

who are eligible for the death penalty. Hogue points to no

precedent dictating this result, and his contention is hence barred

by Teague v. Lane, 109 S.Ct. 1060 (1989).75 We so hold in respect

to the similar contentions raised in Fearance v. Scott, No. 94-

10686, 51 F.3d 1041 (table) (5th Cir. March 21, 1995)

(unpublished), and West v. Johnson, 92 F.3d 1385, 1398 n.17 (5th

Cir. 1996), cert. denied, 117 S.Ct. 1847 (1997). See also In re

West, 119 F.3d 195 (5th Cir. 1997).

Even if we considered the point, we would find it without

merit. Contrary to Hogue’s argument, there is not merely “one

intent”; here, there must be two specific intents, first to burn

the building and second to kill Markham. Hogue’s argument that

arson is unique among the predicate felonies listed in section

19.03(a)(2)——kidnaping, burglary, robbery, aggravated rape, and

arson——in requiring only one “act” is likewise mistaken. For

example, one who attempts robbery by shooting his victim with

intent to kill, and thereby kills him, is likewise guilty of

capital murder. Moreover, “one act” is all that is required for

the offense of capital murder by murdering a peace officer or

fireman known to be acting in the lawful discharge of official duty

(section 19.03(a)(1)) or capital murder by murdering for the

promise of remuneration (section 19.03(a)(3)). Hogue does not

claim that murder, other than by burning, while committing arson is

75
It is clear that neither of the two Teague exceptions is
applicable here.

91
not legitimately a capital offense, and we can see no reason that

a state must treat Hogue more leniently because he intended to kill

Markham by burning her to death in the house fire, as she lay

affixed to the bed to which he had firmly bound her, than if he had

shot her just before the flames reached her. We note also that

even for capital murder a death sentence is not available unless

the jury answers all the punishment issues in the affirmative.

We reject Hogue’s third and final complaint on appeal.

Conclusion

Having considered and rejected each of Hogue’s contentions on

appeal, the judgment of the district court denying habeas relief is

accordingly

AFFIRMED.

92