Goodwin v. Johnson

REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20134
_____________________

ALVIN URIAL GOODWIN, III,

Petitioner-Appellant,

v.

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

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
January 15, 1998

Before KING, JOLLY, and DEMOSS, Circuit Judges.

KING, Circuit Judge:
The opinion entered in this cause on December 23, 1997, is

withdrawn, and the following opinion is substituted therefor.

Alvin Urial Goodwin, a Texas death row inmate convicted of

capital murder, challenges the district court’s denial of his

petition for a writ of habeas corpus. Goodwin has alleged, among

other things, that his appellate counsel provided

constitutionally ineffective assistance because he failed to

raise a state law issue that would have required reversal on

1
direct appeal. We affirm the district court’s denial of habeas

relief on this claim because the trial court’s error that formed

the basis of this omitted issue on appeal did not render

Goodwin’s trial fundamentally unfair or its result unreliable.

We also affirm the judgment of the district court denying relief

in all other respects, except that we vacate that portion of the

district court’s judgment denying Goodwin habeas relief on his

Fifth Amendment claim and remand for an evidentiary hearing to

resolve the fact issue underlying that claim.

I. FACTUAL BACKGROUND

On December 1, 1986, Montgomery County Sheriff's deputies

received a report of a theft at the trailer house of James

Douglas Tillerson. Further investigation revealed that

Tillerson's trailer house had been ransacked and that a VCR, some

video cassettes, phonograph records, and a bayonet were missing

from the house. Tillerson had not reported for work that morning

and had not been seen since the previous Sunday. On January 17,

1987, trail riders discovered Tillerson's body approximately two

and one-half miles from his trailer at the edge of the woods near

Fawnmist Road in Montgomery County. An examination of

Tillerson’s body disclosed that he had been dead for

approximately one month and had died from a gun-shot wound to the

head. A second gun-shot wound had been made by a bullet entering

Tillerson’s right arm and exiting at the forearm. A bullet was

recovered from the body’s clothing and fragments of a bullet were

later discovered in the immediate area where the body had been

2
found.

Friends of Tillerson informed police that Tina Atkins, also

a friend of the victim, had told them that a VCR, bayonet, and

several video tapes from Tillerson’s trailer were now at the

house where she lived with her father, Billy Dan Atkins, Sr.

Tina Atkins was able to name the titles of the video tapes, which

corresponded with the titles of the tapes missing from

Tillerson’s trailer. Based on the information that she provided,

a search warrant was issued for the residence of Billy Dan

Atkins, Sr., who informed police that he had retrieved the items

from the car of his son, Billy Dan Atkins, Jr. (Atkins).

Further investigation revealed that Atkins, Goodwin, Glenn

Dierr, and Fred Meadows had been arrested for unlawful possession

of a firearm by a felon on December 4, 1986, in The Woodlands,

Texas. Following the arrest, Dierr stated during a police

interview that he had been walking in the woods near Huntsville,

Texas with Goodwin on December 5 when Goodwin showed him a fence

post into which Goodwin claimed he had fired several rounds of a

.357 magnum pistol. Goodwin also told Dierr that he had “blown

someone away” with the weapon five weeks earlier and that the

body was still in the woods. Ballistics testing revealed that

all of the projectiles and hulls recovered on or near Tillerson’s

body were fired from a Smith & Wesson .357 magnum that had been

found with Atkins, Goodwin, Dierr, and Meadows at the time of

their arrest in The Woodlands.

On January 20, 1987, Texas law enforcement officials were

3
notified that Goodwin and Atkins had been arrested and were in

custody in Burlington, Iowa. During an interview in Iowa on

January 21, the Texas officers told Goodwin that they had found

the weapon used to kill Tillerson and that it was the same weapon

taken from Atkins’s car on December 4, 1986. Goodwin then

admitted to having shot Tillerson and gave a videotaped

confession to that effect. Goodwin waived extradition and was

flown back to Montgomery County that evening.

The next morning, Texas law enforcement officials

interviewed Goodwin in Montgomery County, and he later gave a

written confession. According to Goodwin’s written confession,

on the night of the murder, he and Atkins drove by Tillerson’s

trailer between 8:00 and 10:00 p.m. Atkins and Goodwin had

discussed the possibility of either obtaining a loan from

Tillerson or robbing him. When Tillerson answered the door of

his trailer home, Atkins and Goodwin entered and drew handguns.

Atkins ordered Tillerson to sit down in a chair and demanded

money. When Tillerson claimed that he had no money, Atkins

ransacked the trailer. Unable to find more than some change,

Atkins collected other items from the trailer. Atkins then

ordered Tillerson to get dressed. Goodwin held his gun on

Tillerson while Atkins loaded the items into his car. Atkins,

Goodwin, and Tillerson left in Atkins’s car, with Atkins driving,

Tillerson in the back seat, and Goodwin in the front seat,

pointing his gun at Tillerson. Atkins eventually stopped near a

wooded area where he ordered Tillerson to get out of the car and

4
walk ahead of Atkins and Goodwin into the woods. Atkins raised

his gun, aimed at Tillerson and pulled the trigger two or three

times, but the weapon did not discharge. Goodwin raised his gun,

turned his head, and fired at Tillerson. Tillerson fell to the

ground screaming. Thinking that he had only grazed the victim,

Goodwin quickly raised his weapon and fired a second shot. When

Goodwin saw blood coming out of Tillerson's head, he ran back to

Atkins’s car.

II. PROCEDURAL POSTURE

A Texas jury found Goodwin guilty of the murder of James

Douglas Tillerson and sentenced Goodwin to death. The Texas

Court of Criminal Appeals affirmed Goodwin’s conviction, see

Goodwin v. State, 799 S.W.2d 719 (Tex. Crim. App. 1990), and the

United States Supreme Court denied certiorari, see Goodwin v.

Texas, 501 U.S. 1259 (1991).

Goodwin filed two petitions for writ of habeas corpus in

state district court. The state district court declined to

conduct an evidentiary hearing on either petition and recommended

that both applications be denied. The state district court’s

orders recommending the denial of the petitions contain no

findings of fact or conclusions of law; they merely state that

“the Court . . . finds that there are no controverted, previously

unresolved facts material to the lawfulness of the confinement of

applicant.” The Court of Criminal Appeals accepted the

recommendation of the state district court as to both petitions

and summarily denied relief without findings of fact or

5
conclusions of law.

On February 17, 1995, Goodwin filed a motion to proceed in

forma pauperis (IFP), a motion for appointment of counsel in

federal district court, a motion for stay of execution pending

the completion of discovery and the submission of a formal habeas

petition, and a formal motion for discovery. Goodwin’s execution

was scheduled for March 7, 1995. The district court granted the

motions to proceed IFP and for appointment of counsel and denied

the motions for stay and discovery.

Soon thereafter, Goodwin filed his federal petition for

habeas relief and again filed motions for discovery, for a stay

of execution pending the disposition of his habeas petition, and

for an evidentiary hearing. The district court denied these

motions. Goodwin appealed the denial of his second motion for a

stay of execution, and we reversed the district court’s order

denying the stay and ordered the district court to enter an order

staying Goodwin’s execution pending determination of the merits

of the claims presented in his federal habeas petition. The

district court accordingly granted a stay.

Four days before Goodwin’s scheduled execution date, the

state answered and filed a motion for summary judgment on all of

Goodwin’s claims. Goodwin filed a cross-motion for partial

summary judgment limited to his claim that his legal

representation on direct appeal was unconstitutionally

ineffective because his counsel failed to raise a meritorious

claim that was properly preserved at trial.

6
 The district court denied Goodwin’s habeas petition,

explaining its decision in a memorandum opinion. The district

court also denied Goodwin’s request for a certificate of probable

cause to appeal (CPC) and lifted the stay of execution that it

had previously imposed. Goodwin requested a CPC from this court

to appeal the district court’s denial of his petition for habeas

relief. We granted a stay of execution, carried the request for

CPC with the case, directed the parties to fully brief the appeal

as on the merits, and heard full oral argument. Having concluded

that a portion of the issues that Goodwin raises on appeal “are

debatable among jurists of reason,” we now grant the CPC and rule

on the merits of the appeal. See Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983) (internal quotation marks omitted); Woods v.

Johnson, 75 F.3d 1017, 1026 n.12 (5th Cir.), cert. denied, 117 S.

Ct. 150 (1996).1

III. STANDARD OF REVIEW

The district court did not state that it was granting the

state’s motion for summary judgment when it denied Goodwin’s

habeas petition. However, the district court’s reference to

documents outside of Goodwin’s habeas petition demonstrates that

1
On April 24, 1996, the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214,
was signed into law. The AEDPA eliminates the CPC requirement of
28 U.S.C. § 2253 and substitutes a requirement that a petitioner
seeking review of a district court’s denial of a petition for
federal habeas relief under § 28 U.S.C. 2254 obtain a certificate
of appealability from a circuit judge. Because Goodwin filed his
habeas petition before April 24, 1996, “we review his petition
for a CPC under the pre-AEDPA jurisprudence.” Green v. Johnson,
116 F.3d 1115, 1120 (5th Cir. 1997).

7
the court implicitly granted the motion. See FED. R. CIV. P.

12(c) (providing that the summary judgment procedures of Federal

Rule Of Civil Procedure 56 are applicable if matters outside the

pleadings are presented to, and not excluded by, the court).

“We review a grant of summary judgment de novo, applying the

same criteria used by the district court in the first instance.”

Texas Manufactured Housing Ass’n v. City of Nederland, 101 F.3d

1095, 1099 (5th Cir. 1996), cert. denied, 117 S. Ct. 2497 (1997).

“Summary judgment is appropriate if the record is devoid of a

genuine issue of material fact.” Harris v. Johnson, 81 F.3d 535,

539 (5th Cir.), cert. denied, 116 S. Ct. 1863 (1996) (applying

summary judgment standard in § 2254 case where habeas petitioner

requested a CPC and a stay of execution). In determining whether

a genuine issue of material fact exists, we consider the facts

contained in the summary judgment record and the reasonable

inferences drawn from them in the light most favorable to

Goodwin, as he is the non-movant. See id.

IV. ANALYSIS

Goodwin posits five arguments for reversal of the district

court’s judgment denying habeas relief: (1) Goodwin’s appellate

counsel rendered unconstitutionally ineffective assistance by

failing to raise on appeal the trial court’s refusal to give the

jury a requested instruction pursuant to article 38.23 of the

Texas Code of Criminal Procedure and by failing to provide the

Texas Court of Criminal Appeals with a complete transcript of the

suppression hearing to review in evaluating Goodwin’s direct

8
appeal; (2) he is entitled to an evidentiary hearing on his claim

that his confessions were inadmissible at trial because Texas law

enforcement officials obtained them in violation of the

judicially created rules established to safeguard his Fifth

Amendment privilege against compelled self-incrimination; (3) he

is entitled to an evidentiary hearing on his claims that the

state intentionally withheld from him exculpatory impeachment

evidence and knowingly introduced false testimony during trial;

(4) he was constitutionally entitled to funds with which to hire

a rehabilitation expert to testify at the punishment phase of his

trial; and (5) section 8.04(a) of the Texas Penal Code, which

prevents voluntary intoxication from serving as a defense to the

commission of a crime, unconstitutionally restricted the jury’s

consideration of evidence of Goodwin’s intoxication that would

have given him a defense to the specific intent element of

capital murder and prohibited the trial court from submitting a

constitutionally required lesser-included offense instruction on

murder.2 We address each of these arguments in turn.

A. Ineffective Assistance of Counsel on Direct Appeal

Goodwin argues that his appellate counsel rendered

unconstitutionally ineffective assistance by (1) failing to raise

on appeal the trial court’s refusal to grant Goodwin’s request to

amend the jury instruction given pursuant to article 38.23 of the

2
Goodwin’s federal habeas petition contains a number of
claims that Goodwin has not addressed on appeal. Because Goodwin
has abandoned these issues, we do not consider them. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987).

9
Texas Code of Criminal Procedure and (2) failing to provide the

Court of Criminal Appeals with a complete transcript of the

pretrial suppression hearing.

A criminal defendant is constitutionally entitled to the

effective assistance of counsel on direct appeal as of right.

See Lombard v. Lynaugh, 868 F.2d 1475, 1479 (5th Cir. 1989). In

Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court

held that, in order to prove that counsel afforded

unconstitutionally ineffective assistance, a petitioner must show

that his attorney’s performance was deficient and that such

deficiency prejudiced the defense. Id. at 687. The Strickland

standard applies to claims of ineffective assistance by both

trial and appellate counsel. See United States v. Merida, 985

F.2d 198, 202 (5th Cir. 1993). Goodwin has failed to demonstrate

that he received unconstitutionally ineffective assistance of

counsel on appeal because he has not demonstrated that any

deficiency in his counsel’s performance resulted in prejudice.

1. Failure to raise issue on appeal

Goodwin argues that his appellate counsel’s performance was

both deficient and prejudicial because he failed to raise on

appeal the trial court’s refusal to instruct the jury pursuant to

article 38.23 of the Texas Code of Criminal Procedure that, if it

had a reasonable doubt as to the legality of the traffic stop in

The Woodlands that led to the arrest of Atkins, Goodwin, Dierr,

and Meadows and the seizure of the murder weapon, then it should

not consider Goodwin’s confessions, which would not have occurred

10
but for the illegal stop.

Article 38.23 of the Texas Code of Criminal Procedure

provides in relevant part as follows:

No evidence obtained by an officer or other person
in violation of any provisions of the Constitution or
laws of the State of Texas, or of the Constitution or
laws of the United States of America, shall be admitted
in evidence against the accused on the trial of any
criminal case.

In any case where the legal evidence raises an
issue hereunder, the jury shall be instructed that if
it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of
this Article, then and in such event, the jury shall
disregard any such evidence so obtained.

TEX. CRIM. PROC. CODE ANN. art. 38.23 (Vernon Supp. 1998).3

The record in this case evinces a fact question bearing upon

the legality of the stop. Montgomery County Sheriff’s Deputy

Daniel Torres, the officer who arrested the occupants of the car

in which Goodwin was a passenger, testified at trial that he

stopped the car because Atkins, the driver of the car, failed to

use a turn signal while leaving the area. Glen Dierr, one of

Goodwin’s fellow passengers, testified that Atkins used his turn

signal. During a search incident to the stop of the car,

officers discovered several weapons in the car, including the

.357 magnum that was later identified as the weapon used to kill

Tillerson.

On January 20, 1987, Texas Ranger Stanley Oldham and

Montgomery County Sheriff’s Detective Tracy Peterson traveled to

3
Article 38.23 has been amended since Goodwin’s trial, but
the amendment did not modify the above language.

11
Burlington, Iowa, where Goodwin and Atkins were in custody on an

unrelated matter, to execute a warrant on Atkins regarding the

Tillerson murder and to interview the two men. When Peterson and

Oldham interviewed Goodwin on January 21, they informed him that

they had recovered what appeared to be the murder weapon used to

kill Tillerson and that it was the same weapon taken from

Atkins’s car on December 4.

After hearing this information, Goodwin said, “I’m twenty-

three years old and sitting on death row.” When Oldham informed

him that this was not necessarily true, Goodwin said he knew it

would be true because he had pulled the trigger. Peterson and

Oldham then obtained a videotaped confession to the murder from

Goodwin. Later that day, Oldham and Peterson escorted Goodwin

back to Texas, arriving at 9:00 p.m. The next morning, Peterson

obtained a written confession from Goodwin.

At trial, the jury received the following instruction

regarding its duty to disregard illegally obtained evidence:

You are instructed that our law provides that no
evidence obtained from an accused in violation of the
Constitution or laws of this state or of the United
States nor evidence derived from the use of such
evidence may be considered against him in his trial.

A peace officer may stop and detain a person for
any offense committed within his presence or within his
view. Failure to signal a turn is an offense. A peace
officer may also temporarily detain a person for the
purpose of investigating possible criminal behavior
when he has specific and articulable facts which, in
light of his experience and personal knowledge taken
together with rational inferences from those facts,
would constitute a reasonable suspicion that some crime
has been or is about to be committed. Where the facts
relied upon by the police officer in temporarily
detaining a person are as consistent with innocent

12
 activity as with criminal activity, a detention based
on those facts is unlawful.

You are therefore instructed that if you find from
the evidence beyond a reasonable doubt, when Deputy
Daniel Torres stopped and detained the vehicle and the
occupants of the vehicle in which the defendant was a
passenger that the driver failed to signal a turn, or
that Deputy Torres, at the time of the stop and
detention of the vehicle and its occupants, had
specific and articulable facts which, in light of his
experience and personal knowledge taken together with
rational inferences from those facts, would constitute
a reasonable suspicion that some crime had been or was
about to be committed, then you may consider the
weapons and other items seized from said vehicle, and
any testimony relating to their seizure, testing by
firearms examiners, or identification as the murder
weapon.

Unless you so find beyond a reasonable doubt, or
if you have a reasonable doubt thereof, you will not
consider for any purpose the weapons and other items
seized from said vehicle, and any testimony relating to
their seizure, testing by firearms examiners, or
identification as the murder weapon.

Defense counsel requested that the words “and the confessions of

the accused” be added at the end of the last two paragraphs on

the ground that any illegality in the underlying search that

uncovered the .357 magnum would have tainted Goodwin’s

confessions. The trial court denied counsel’s request.

Goodwin was entitled to an article 38.23 instruction if the

trial evidence raised a factual issue concerning whether

evidence was obtained in violation of the U.S. Constitution,

other federal law, the Texas Constitution, or other Texas law.

See TEX. CRIM. PROC. CODE ANN. § 38.23 (Vernon Supp. 1998); Thomas

v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986). Because

the conflicting trial testimony created a fact issue concerning

Torres’s right to stop the vehicle, the trial court appropriately

13
granted an article 38.23 instruction with respect to the murder

weapon. See Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App.

1986) (holding that a fact issue arose concerning a peace

officer’s right to stop a vehicle due to conflicting testimony

between the officer, who stated he stopped the appellant’s

vehicle for erratic driving, and the testimony of the appellant

and another witness that the appellant was driving in a prudent

manner). We assume without deciding that Goodwin’s confessions

were not sufficiently attenuated from the traffic stop so as to

render any illegality of the traffic stop irrelevant to the

admissibility of the confessions. In other words, we assume

without deciding that Goodwin was entitled to an article 38.23

jury instruction regarding his confessions because, in the event

that the traffic stop was illegal, the confessions were tainted

by such illegality.4 We likewise assume that the trial court’s

refusal to provide the requested article 38.23 instruction would

have required reversal of Goodwin’s conviction on direct appeal

4
In order to avoid confusion, we note that, under Texas
law, the issue of attenuation itself is a question of law. See
Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996), cert.
denied, 118 S. Ct. 90 (1997). No factual dispute exists
regarding events that occurred subsequent to the traffic stop.
Therefore no factual dispute exists regarding the facts that
would underlie the legal determination of whether Goodwin’s
confessions were sufficiently attenuated from the traffic stop to
render them admissible as evidence even if the traffic stop was
illegal. Thus, our assumption that Goodwin was entitled to an
article 38.23 instruction regarding his confessions does not rest
on an assumption that a fact issue exists as to whether his
confessions were sufficiently attenuated from the traffic stop.
Rather, we assume that the proper legal conclusion to be drawn
from the undisputed post-stop facts is that Goodwin’s confessions
were not sufficiently attenuated from the stop to render them
admissible even if the traffic stop was illegal.

14
and a new trial.5

Assuming that the trial court’s refusal to provide the

requested article 38.23 instruction would have entitled Goodwin

to reversal of his conviction on direct appeal, Goodwin

nonetheless cannot establish that the failure of his appellate

counsel to raise this issue on direct appeal resulted in

prejudice.6 “The essence of an ineffective assistance claim is

5
At the time of Goodwin’s trial, “the erroneous refusal of
a trial judge to submit a jury instruction under article 38.23
over objection of the defendant was considered to require
reversal of any ensuing conviction without need of a separate
inquiry into the harmfulness of the error.” Atkinson v. State,
923 S.W.2d 21, 25 (Tex. Crim. App. 1996). However, the Texas
Court of Criminal Appeals recently held that the harmless error
standard contained in article 36.19 of the Texas Code of Criminal
Procedure applies to article 38.23 error. See id. at 27. Under
article 36.19, the trial court’s “judgment shall not be reversed
unless the error appearing from the record was calculated to
injure the rights of defendant, or unless it appears from the
record that the defendant has not had a fair and impartial
trial.” TEX. CRIM. PROC. CODE. ANN. art. 36.19 (Vernon 1981).

We determine whether Goodwin has established prejudice based
on current law. See Westley v. Johnson, 83 F.3d 714, 723 (5th
Cir. 1996) (“[P]rejudice . . . is measured by current law and not
by the law as it existed at the time of the alleged error.”);
Wilkerson v. Whitley, 28 F.3d 498, 507 (5th Cir. 1994) (en banc)
(observing that, on federal habeas review, “[a] state can take
advantage of changes in the law occurring after a conviction
becomes final”). However, we express no opinion as to whether
the trial court’s refusal to provide an article 38.23 instruction
regarding Goodwin’s confessions was harmless error under Texas
law, but rather assume for purposes of our analysis that it was
not and that the trial court’s refusal to provide the requested
instruction would therefore mandate reversal on direct appeal.
6
Because we conclude that Goodwin has not established the
prejudice prong of Strickland’s test for ineffective assistance
of counsel, we need not address whether his appellate counsel’s
performance was constitutionally deficient. As the Supreme Court
observed in Strickland,

Although we have discussed the performance
component of an ineffectiveness claim prior to the

15
that counsel’s unprofessional errors so upset the adversarial

balance between defense and prosecution that the trial was

rendered unfair and the verdict rendered suspect.” Kimmelman v.

Morrison, 477 U.S. 365, 374 (1986). We are convinced that the

trial court’s failure to provide the jury with an article 38.23

instruction regarding Goodwin’s confessions in no way rendered

the trial unfair or the verdict suspect. As such, the failure of

Goodwin’s appellate counsel to present this issue on direct

appeal was not prejudicial because it did not “undermine[] the

reliability of the result of the proceeding.” Strickland, 466

U.S. at 693.

Prior to trial, Goodwin moved to suppress his confessions on

the ground that they were tainted by the illegal stop and search

of Atkins’s automobile in The Woodlands. He based this motion in

part on the argument that Atkins had not failed to use his turn

signal and thus that no basis existed for the stop. The state

district court denied the motion to suppress and specifically

found that Atkins had not used his turn signal. Because Goodwin

alleges no defect in this fact-finding or the procedure used at

prejudice component, there is no reason for a court
deciding an ineffective assistance claim to approach
the inquiry in the same order or even to address both
components of the inquiry if the defendant makes an
insufficient showing on one. In particular, a court
need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies.
The object of an ineffectiveness claim is not to grade
counsel’s performance.

Strickland, 466 U.S. at 697; see also United States v. Vaquero,
997 F.2d 78, 92 n.12 (5th Cir. 1993).

16
the suppression hearing to obtain it, we accord the court’s

conclusion that Atkins did not use his blinker a presumption of

correctness. See 28 U.S.C. § 2254(d)(1994);7 Harris, 81 F.3d at

539.

Goodwin has not argued that any factual issues other than

the issue of whether Atkins used his turn signal bear upon the

legality of the traffic stop and the subsequent search that

resulted in the discovery and seizure of the murder weapon.

Goodwin does not dispute that the traffic stop was perfectly

legal if in fact Atkins failed to use his blinker, nor can he do

so. So long as a traffic law infraction that would have

objectively justified the stop had taken place, the fact that the

police officer may have made the stop for a reason other than the

occurrence of the traffic infraction is irrelevant for purposes

of the Fourth Amendment and comparable Texas law. See Whren v.

United States, 116 S. Ct. 1769, 1774 (1996) (concluding that a

“pretextual” traffic stop for a minor traffic infraction was

constitutional because “‘the fact that the officer does not have

the state of mind which is hypothecated by the reasons which

provide the legal justification for the officer's action does not

invalidate the action taken as long as the circumstances, viewed

objectively, justify that action’” (quoting Scott v. United

States, 436 U.S. 128, 138 (1978))); Crittenden v. State, 899

7
Because Goodwin filed his habeas petition before April
24, 1996, we apply the pre-AEDPA version of § 2254(d). See Lindh
v. Murphy, 117 S. Ct. 2059, 2067-68 (1997); Williams v. Cain, 125
F.3d 269, 273 (5th Cir. 1997).

17
S.W.2d 668, 674 (Tex. Crim. App. 1995) (“[A]n objectively valid

traffic stop is not unlawful under Article I, § 9 [of the Texas

Constitution, a provision analogous to the Fourth Amendment of

the U.S. Constitution], just because the detaining officer had

some ulterior motive for making it.”). Because the state

district court concluded that the state established by a

preponderance of the evidence that Atkins did not use his

blinker,8 the introduction of Goodwin’s confessions was fully

consistent with the Fourth Amendment exclusionary rule. See

United States v. Chavis, 48 F.3d 871, 872 (5th Cir. 1995)

(holding that the state bears the burden of proving that a

warrantless stop and search is reasonable in order for evidence

obtained therefrom to be admissible); United States v. Finefrock,

668 F.2d 1168, 1170 (10th Cir. 1982) (holding that the government

must prove the reasonableness of a warrantless search or seizure

by a preponderance of the evidence); United States v. Collins,

863 F. Supp. 165, 169 n.2 (S.D.N.Y. 1994) (“[T]he government must

show by a preponderance of the evidence that the warrantless

search does not contravene the Fourth Amendment.”); cf. United

States v. Matlock, 415 U.S. 164, 178 n.14 (1974) (“[T]he

controlling burden of proof at suppression hearings should

impose no greater burden than proof by a preponderance of the

8
Under Texas law, when a party challenging the propriety
of a warrantless search or seizure produces evidence that police
conducted such a search or seizure, the state bears the burden of
proving the reasonableness of the search or seizure by a
preponderance of the evidence. See Russel v. State, 717 S.W.2d
7, 10 (Tex. Crim. App. 1986); Chavarria v. State, 876 S.W.2d 388,
392 (Tex. App.--El Paso 1994, no pet.).

18
evidence.”).

We simply cannot conclude that the trial court’s failure to

give the jury an opportunity to wholly disregard the confessions

if it believed, or had a reasonable doubt, that they were

obtained unlawfully--after the court had in effect found during

the pretrial suppression hearing by a preponderance of the

evidence that the confessions were obtained in compliance with

the Fourth Amendment and analogous Texas law--rendered “the

result of the trial unreliable or the proceeding fundamentally

unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

Indeed, had the trial court given the requested article 38.23

instruction in this case, the reliability of the trial may very

well have decreased. As the Supreme Court noted in Stone v.

Powell, 428 U.S. 465 (1976), application of the Fourth Amendment

exclusionary rule “deflects the truthfinding process and often

frees the guilty” by excluding “reliable and . . . probative

information bearing on the guilt or innocence of the defendant.”

Id. at 490. The Texas exclusionary rule has an even greater

propensity for deflecting the truthfinding process of the trial

when applied to evidence arguably obtained through an illegal

search or seizure because it requires the jury to disregard such

evidence, regardless of how probative, if the jury “believes, or

has a reasonable doubt, that the evidence” was unlawfully

obtained. TEX. CRIM. PROC. CODE ANN. § 38.23(a) (Vernon Supp.

1998). Thus, the failure of Goodwin’s appellate counsel to raise

this issue on appeal was not unconstitutionally prejudicial.

19
 Goodwin contends that he has established Strickland

prejudice if “there is a ‘reasonable probability’ that the

omitted article 38.23 instruction claim would have caused a

reversal on direct appeal had it been raised by [his] appellate

counsel.” We disagree.

As an initial matter, the Supreme Court has indicated that

“an analysis focusing solely on mere outcome determination,

without attention to whether the result of the proceeding was

fundamentally unfair or unreliable, is defective.” Fretwell, 506

U.S. at 369. Furthermore, the law of the Supreme Court and this

circuit lead us to conclude that the presence or absence of

prejudice, both with respect to claims of ineffective assistance

of counsel at the trial and appellate levels, hinges upon the

fairness of the trial and the reliability of the judgment of

conviction resulting therefrom.

In Evitts v. Lucey, 469 U.S. 387 (1985), the Supreme Court

indicated that a criminal defendant’s right to effective

assistance of counsel on his first appeal as of right stems from

the fact that, when a state chooses to create appellate courts,

appellate review becomes “‘an integral part of the . . . system

for finally adjudicating the guilt or innocence of a defendant.’”

Id. at 393 (quoting Griffin v. Illinois, 351 U.S. 12, 18 (1956)).

The appellate process exists solely for the purpose of correcting

errors that occurred at the trial court level. See id. at 396

(“In bringing an appeal as of right from his conviction, a

criminal defendant is attempting to demonstrate that the

20
conviction, with its consequent drastic loss of liberty, is

unlawful.”). As such, we conclude that the right to effective

assistance of counsel, both at the trial and appellate level,

“‘is recognized not for its own sake, but because of the effect

that it has on the ability of the accused to receive a fair

trial.’” Fretwell, 506 U.S. at 369 (quoting United States v.

Cronic, 466 U.S. 648, 658 (1984)).

This court’s decision in Ricalday v. Procunier, 736 F.2d 203

(5th Cir. 1984), supports our conclusion that the presence or

absence of Strickland prejudice as a result of unconstitutionally

deficient performance of counsel at either the trial or appellate

level hinges upon the fairness of the trial and the reliability

of its outcome. In Ricalday, the habeas petitioner’s counsel

failed to object to the trial court’s instruction of the jury

regarding an unindicted offense and did not raise this issue on

appeal. See id. at 205. Pursuant to the Texas Penal Code’s

definition of the offense of murder, the trial court instructed

the jury that it could convict the petitioner of murder either if

he “‘intentionally or knowingly cause[d] the death of an

individual’” or if he “‘intend[ed] to cause serious bodily injury

and commit[ed] an act clearly dangerous to human life that

cause[d] the death of an individual.’” Id. (quoting TEX. PEN.

CODE ANN. § 19.02 (Vernon 1974)). However, the indictment only

charged the petitioner with “intentionally or knowingly caus[ing]

the death of an individual.” Id. (alteration in original).

Under Texas law, conviction of an unindicted offense constituted

21
“fundamental” error requiring reversal. See id. at 207 (citing

Bentacur v. State, 593 S.W.2d 686 (Tex. Crim. App. 1980)).

The court concluded that the failure of the petitioner’s

counsel to object to the trial court’s inclusion of the

unindicted offense in the jury charge was not prejudicial because

there was “no reasonable probability that the factfinder would

have had a reasonable doubt concerning the petitioner’s intent to

kill.” Id. at 209. The court then rejected the habeas

petitioner’s claim of ineffective assistance of appellate

counsel: “Because the error at the appellate stage stemmed from

the error at trial, if there was no prejudice from the trial

error, there was also no prejudice from the appellate error.”

Id. at 208. The court therefore concluded “that the proceedings

were not fundamentally unfair and that their result, and the

finding of guilt, are reliable.” Id. at 209 n.6 (emphasis

added). We have applied Ricalday’s sound analysis in other cases

as well. See McCrae v. Blackburn, 793 F.2d 684, 688 (5th Cir.

1986) (concluding that appellate counsel’s failure to raise an

issue on appeal was not prejudicial because the petitioner could

not demonstrate a reasonable probability that raising the issue

would have ultimately resulted in the trial court’s imposition of

a different sentence); Hamilton v. McCotter, 772 F.2d 171, 182

(5th Cir. 1985) (rejecting a claim of ineffective assistance of

appellate counsel because “the state record reflect[ed] that the

proceedings were fundamentally fair, that their result and the

finding of guilt are reliable, and that no breakdown of the

22
adversarial process rendered them otherwise” (emphasis added)).9

Goodwin relies on Duhamel v. Collins, 955 F.2d 962 (5th Cir.

1992) for the proposition that, “[i]n order to prove that his

appellate attorney’s alleged error was prejudicial, [a federal

habeas petitioner] must show that the neglected claim would have

had a reasonable probability of success on appeal.” Id. at 967.

While Goodwin does not rely upon it, we acknowledge that, in

another Fifth Circuit case, Sharp v. Puckett, 930 F.2d 450 (5th

Cir. 1991), the court utilized a similar prejudice analysis in

disposing of a habeas petitioner’s claim of ineffective

assistance of appellate counsel. See id. at 453 (“‘The

9
We note also that acceptance of Goodwin’s position that
the prejudice inquiry with respect to a claim of ineffective
assistance of appellate counsel hinges solely on whether the
neglected claim had a reasonable probability of leading to a
different result on appeal would lead to the anomalous result
that a habeas petitioner would be able to establish prejudice for
deficient performance of appellate counsel in circumstances in
which he could not do so for functionally equivalent deficient
performance by trial counsel. This is clearly illustrated by
applying Goodwin’s proposed prejudice paradigm to the Ricalday
factual scenario. Had the petitioner’s counsel simply failed to
object to the jury’s charge regarding the unindicted offense, the
petitioner would not have been prejudiced because it was highly
unlikely that the jury would not have convicted him of murder
anyway, i.e., the result of the trial would have been the same.
However, if the petitioner’s counsel had objected at trial but
merely failed to raise the issue on appeal, under Goodwin’s
approach to the prejudice inquiry, the petitioner would have
established prejudice because, had the issue been raised on
appeal, the court of appeals would have been compelled to reverse
and remand, i.e., the result on appeal would have been different.
This result cannot be squared with the fact that the deficient
performance of trial counsel and the deficient performance of
appellate counsel described above are functionally equivalent in
their effect on the petitioner: they both preclude review of the
petitioner’s claim on direct appeal. We therefore cannot accept
Goodwin’s position that a habeas petitioner ought to be entitled
to habeas relief in the latter circumstance but not the former.

23
[petitioner] must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

[appeal] would have been different.” (quoting Strickland, 466

U.S. at 694) (alterations in original)). We note as an initial

matter that Duhamel and Sharp’s focus on the outcome of the

appeal is inconsistent with the analysis advanced in Ricalday.

We are therefore bound to follow Ricalday, an earlier panel

decision, because “[i]t has long been a rule of this court that

no panel of this circuit can overrule a decision previously made

by another.” Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir. Nov.

1981)

Additionally, Duhamel and Sharp are both pre-Fretwell

decisions. Fretwell makes clear that their limited focus on

“mere outcome determination” at the appellate level is

“defective.” Fretwell, 506 U.S. at 369. Fretwell indicates that

we must determine the presence or absence of prejudice based upon

the fairness of the proceeding and the reliability of its result.

See id. at 369. To the extent that the appellate process is

merely a vehicle for correcting errors at trial, the fairness and

reliability of an appeal are necessarily functions of the

fairness and reliability of the trial. Because the trial court’s

refusal to provide the jury with an article 38.23 instruction

regarding his confessions did not render Goodwin’s trial

fundamentally unfair nor the conviction and sentence resulting

therefrom unreliable, Goodwin was not prejudiced by his appellate

counsel’s failure to raise this issue on appeal. Therefore, the

24
district court properly concluded that he is not entitled to

habeas relief on this claim.

2. Failure to provide entire record to appellate court

Goodwin argues that he was denied a meaningful appeal due to

his appellate counsel’s failure to provide the Texas Court of

Criminal Appeals with a full transcript of his pretrial

suppression hearing to review on direct appeal. Goodwin’s

appellate counsel apparently neglected to have two days of the

suppression hearing transcribed and therefore did not supply the

Court of Criminal Appeals with a complete transcript of the

suppression hearing. The missing portion of the transcript

contained the testimony of Atkins and Dierr indicating that

Atkins had used his turn signal prior to the traffic stop in The

Woodlands.

Goodwin contends that his appellate counsel’s failure to

submit a complete transcript of the pretrial suppression hearing

violated his right to effective assistance of appellate counsel

because the Court of Criminal Appeals was thereby precluded from

reviewing all of the evidence pertaining to the legality of the

traffic stop and the propriety of the trial court’s denial of

Goodwin’s motion to suppress. We disagree.

Under Texas law, the trial court is the sole fact-finder and

judge of the credibility of the witnesses as well as the weight

to be given their testimony at a hearing on a motion to suppress.

See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990);

Hawkins v. State, 628 S.W.2d 71, 75 (Tex. Crim. App. 1982).

25
Accordingly, the trial court may choose to believe or disbelieve

any or all of a witness’s testimony. See Luckett v. State, 586

S.W.2d 524, 527 (Tex. Crim. App. 1979). On appeal, the Court of

Criminal Appeals cannot disturb the trial court’s findings so

long as they are supported by the record. See Green v. State,

615 S.W.2d 700, 707 (Tex. Crim. App. 1980). If the Court of

Criminal Appeals concludes that the record supports the trial

court’s factual conclusions, its review is limited to a

determination of “whether the trial court improperly applied the

facts to the law.” Johnson v. State, 698 S.W.2d 154, 159 (Tex.

Crim. App. 1985).

Even if the Court of Criminal Appeals had been privy to the

testimony of Atkins and Dierr, it would have been compelled to

accept the trial court’s determination that Atkins failed to use

his blinker because the record contained Officer Torres’s

testimony to that effect. The fact that the Court of Criminal

Appeals might have considered the testimony of Atkins and Dierr

more credible than that of Officer Torres would have been

entirely irrelevant to the court’s review of the trial court’s

denial of the motion to suppress. See Green, 615 S.W.2d at 707;

Luckett, 586 S.W.2d at 527. Goodwin therefore cannot establish

that his appellate counsel’s failure to provide the Court of

Criminal Appeals with a full transcript of the suppression

hearing in any way prejudiced him. Accordingly, he has not

demonstrated that he is entitled to habeas relief on this basis.

26
See Strickland, 466 U.S. at 687.10

B. Violation of Judicially Created Safeguards of the
Fifth Amendment Privilege Against Self-Incrimination

Goodwin argues that the district court erred by failing to

conduct an evidentiary hearing on his claim that the admission of

his confessions as evidence at trial violated the judicially

created rules established to safeguard his Fifth Amendment

privilege against compelled self-incrimination. In support of

10
Goodwin contends that the Strickland ineffective
assistance framework is inapplicable to this particular claim of
ineffective assistance because he is entitled to a presumption of
prejudice pursuant to United States v. Cronic, 466 U.S. 648
(1984). He argues that, because his appellate counsel never had
two days worth of testimony in the suppression hearing
transcribed, his counsel did not have access to this portion of
the transcript and therefore did not review it in preparing
Goodwin’s appeal. Goodwin argues that his “direct appeal
lawyer’s failure to have a material portion of [the] suppression
hearing transcribed--and, by doing so, his failure to read all of
the relevant portions of the trial record in support of a claim
raised on appeal--is tantamount to being ‘absent’ at trial.”
This argument lacks merit.

Cronic-type prejudice results in circumstances in which,
although counsel is present, counsel’s ineffectiveness is so
egregious that the defendant is in effect denied any meaningful
assistance of counsel at all. See Childress v. Johnson, 103 F.3d
1221, 1229 (5th Cir. 1997). When the defendant receives at least
some meaningful assistance, he must prove prejudice in order to
obtain relief for ineffective assistance of counsel. Id.

Goodwin cannot complain of a lack of meaningful assistance
on appeal and therefore is not entitled to a presumption of
prejudice. His lawyer filed an appeal and advanced cogent
arguments. The failure of Goodwin’s appellate counsel to read
two days of the trial record falls far short of establishing that
any deficiency in his performance precluded meaningful appellate
review entirely or in effect constituted no assistance of
appellate counsel at all. See Hamilton, 772 F.2d at 181-82.
Therefore, in order to establish a claim of ineffective
assistance of counsel, Goodwin must prove that his appellate
counsel’s failure to provide the Court of Criminal Appeals with a
full transcript of the suppression hearing prejudiced him. See
id. at 182. As demonstrated above, he cannot do so.

27
his claim, Goodwin offers his affidavit, which states that,

shortly after he was arrested in Burlington, Iowa, Goodwin told

police that he did not wish to answer any questions in the

absence of counsel. Goodwin contends that his confessions were

therefore inadmissible at trial because they are the product of

interrogation initiated by Texas law enforcement officials after

Goodwin’s request for the assistance of counsel during custodial

interrogation.

1. Exhaustion of state remedies and procedural default doctrine

The district court appears to have based its denial of this

portion of Goodwin’s petition for habeas relief on its belief

that Goodwin did not assert the claim in state court. The

district court’s opinion states the following:

This is not a proper complaint for habeas corpus
review. Goodwin’s affidavit comes seven years after
the incident. He was uniquely aware of the alleged
mistreatment before trial and should have informed his
attorney then. This issue could have been litigated at
the trial and is, therefore, inappropriate to raise
here for the first time.

The district court mistakenly concluded that Goodwin

asserted his current Fifth Amendment claim for the first time in

his federal habeas petition. Goodwin presented the Fifth

Amendment argument that he now asserts for the first time in his

second state habeas petition. Therefore, he has not failed to

exhaust his state remedies with respect to this claim, and the

state conceded as much at the district court level. See Nobles

v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (“To have exhausted

his state remedies, a habeas petitioner must have fairly

28
presented the substance of his claim to the state courts.”).

Moreover, the state has not argued, either at the district court

level or on appeal, that Goodwin’s Fifth Amendment claim is

procedurally barred on the basis that he failed to present the

claim until his second state habeas petition or on any other

basis. In its response to Goodwin’s second state habeas

petition, the state likewise did not argue that Goodwin had

procedurally defaulted his claim by failing to assert it

earlier.11 Given that the state has not seen fit to argue in

this court, the district court, or even its own courts that

Goodwin’s Fifth Amendment claim is procedurally defaulted, we

would advance no interest in federalism or comity by raising the

issue ourselves. We therefore decline to do so and proceed to

the merits of Goodwin’s Fifth Amendment claim. See Trest v.

Cain, 118 S.Ct. 478, 480 (1997) (holding that a court of appeals

reviewing a district court’s habeas corpus decision is not

required to raise sua sponte the petitioner’s potential

procedural default).

2. Goodwin’s entitlement to an evidentiary hearing

“When there is a ‘factual dispute, [that,] if resolved in

the petitioner's favor, would entitle [her] to relief and the

11
To the contrary, the state argued that Goodwin’s Fifth
Amendment claim should be denied because the substance of the
claim was presented to, and rejected by, the Texas Court of
Criminal Appeals on direct appeal. The state based this argument
on the fact that Goodwin had challenged the admissibility of his
confessions on direct appeal, albeit on the basis of a
constitutional analysis entirely different from that advanced
here and in his second state habeas petition.

29
state has not afforded the petitioner a full and fair evidentiary

hearing,’ a federal habeas corpus petitioner is entitled to

discovery and an evidentiary hearing.” Perillo v. Johnson, 79

F.3d 441, 444 (5th Cir. 1996) (quoting Ward v. Whitley, 21 F.3d

1355, 1367 (5th Cir. 1994)) (alterations in original).

We conclude that Goodwin has satisfied the above standard

and is therefore entitled to an evidentiary hearing to resolve

the factual issue of whether Goodwin informed the Burlington

police upon being taken to the Burlington police station that he

did not wish to be interrogated in the absence of counsel. If

Goodwin so informed the Burlington police, then his confessions

later obtained through interrogation initiated by Texas law

enforcement officers were inadmissible on Fifth Amendment

grounds, and the admission of those confessions was not harmless

error. We further conclude that the fact-finding procedure

utilized by the state district court in resolving this factual

issue was inadequate to afford Goodwin a full and fair hearing.

As such, Goodwin is entitled to an evidentiary hearing on his

Fifth Amendment claim.

a. Fifth Amendment law

The Fifth Amendment guarantees that “[n]o person . . . shall

be compelled in any criminal case to be a witness against

himself.” U.S. CONST. amend. V. The Fifth Amendment privilege

against self-incrimination is “protected by the Fourteenth

Amendment against abridgment by the States.” Malloy v. Hogan,

378 U.S. 1, 6 (1964). In Miranda v. Arizona, 384 U.S. 436

30
(1966), the Supreme Court observed that “the right to have

counsel present . . . [during custodial] interrogation is

indispensable to the protection of the Fifth Amendment

privilege.” Id. at 469. In order to fully safeguard the

privilege, the Court held that, “[i]f the individual [under

interrogation] states that he wants an attorney, the

interrogation must cease until an attorney is present.” Id. at

474.

As a corollary to the prophylactic rule adopted in Miranda,

the Court held in Edwards v. Arizona, 451 U.S. 477 (1981), that,

once the accused asserts this Fifth Amendment right to counsel12

and thereby “expresse[s] his desire to deal with the police only

through counsel, [he] is not subject to further interrogation by

the authorities until counsel has been made available to him,

unless the accused himself initiates further communication,

exchanges, or conversations with the police." Id. at 484-85; see

also United States v. Carpenter, 963 F.2d 736, 739 (5th Cir.

1992). “If the police do subsequently initiate an encounter in

12
We note for the sake of clarity that the term “Fifth
Amendment right to counsel” is something of a misnomer to the
extent that it indicates that the Fifth Amendment itself creates
a right to counsel. The rights created by Miranda, including the
right to have counsel present during custodial interrogation,
“are ‘not themselves rights protected by the Constitution but
[are] instead measures to insure that the right against
compulsory self-incrimination [is] protected.’” Duckworth v.
Eagan, 492 U.S. 195, 203 (1989) (quoting Michigan v. Tucker, 417
U.S. 433, 444 (1974)) (alterations in original); United States v.
Smith, 7 F.3d 1164, 1170 (5th Cir. 1993). However, because of
the pervasiveness of the term’s use in the cases of the Supreme
Court and this circuit interpreting the right to counsel created
by Miranda, we use it here.

31
the absence of counsel (assuming there has been no break in

custody), the suspect’s statements are presumed involuntary and

therefore inadmissible as substantive evidence at trial, even

where the suspect executes a waiver and his statements would be

considered voluntary under traditional standards.” McNeil v.

Wisconsin, 501 U.S. 171, 177 (1991).

In Arizona v. Roberson, 486 U.S. 675 (1988), the Court made

clear that the Edwards rule is not offense specific.13 See id.

at 682-84; see also McNeil, 501 U.S. at 177; Carpenter, 963 F.2d

at 739. Once a suspect invokes his Fifth Amendment right to

counsel with respect to one offense, law enforcement officials

may not reapproach him regarding any offense unless counsel is

present. See McNeil, 501 U.S. at 177; Roberson, 486 U.S. at 682-

84, 687; Carpenter, 963 F.2d at 739; United States v. Cooper, 949

F.2d 737, 741 (5th Cir. 1991). This is true even when different

law enforcement authorities who may be unaware of the suspect’s

prior invocation of his Fifth Amendment right to counsel

reapproach the suspect regarding a different offense. See

Roberson, 486 U.S. at 687 (“[W]e attach no significance to the

13
Roberson announced a new rule of constitutional law that
cannot be invoked by a state habeas petitioner whose conviction
became final before 1988. See Harriman v. Lynn, 901 F.2d 64, 67
(5th Cir. 1990) (citing Butler v. McKellar, 494 U.S. 407 (1990)).
However, Goodwin’s conviction did not become final until 1991,
when the Supreme Court denied his application for a writ of
certiorari. See Caspari v. Bohlen, 510 U.S. 383, 390 (1994)
(holding that a state conviction becomes final for purposes of
retroactivity analysis when the availability of direct appeal to
state courts has been exhausted and the time for filing a
petition for writ of certiorari has elapsed or a timely petition
has been finally denied). Therefore, Roberson is applicable in
resolving Goodwin’s Fifth Amendment claim.

32
fact that the officer who conducted the second interrogation did

not know that respondent had made a request for counsel.”);

Minnick v. Mississippi, 498 U.S. 146, 148-49, 155 (1990) (holding

that statements of the petitioner derived from reinitiation of

custodial interrogation by a county deputy sheriff were

inadmissible because the petitioner had previously invoked his

Fifth Amendment right to counsel during interrogation by FBI

agents); Cooper, 949 F.2d at 741 (“Because the Fifth Amendment

right is not offense specific, the Edwards rule applies even when

the interrogation is based on different offenses or is conducted

by different law enforcement authorities.”); cf. United States v.

Webb, 755 F.2d 382, 389-90 (5th Cir. 1985) (holding that FBI

agents obtained the defendant’s confession in violation of

Edwards where the defendant had previously invoked his right to

counsel and a state official erroneously informed the FBI that

the defendant had on his own initiative requested the opportunity

to make a statement to FBI agents).

Proper application of the above legal principles to

Goodwin’s Fifth Amendment claim requires a synopsis of the

factual circumstances surrounding the confessions that Goodwin

made at the behest of Texas law enforcement officers. On January

17, 1987, Goodwin was arrested in Burlington, Iowa for first

degree burglary and going armed with intent.14 Burlington police

14
On the same day, an information was filed charging
Goodwin with first degree burglary, and Goodwin appeared before
an Iowa magistrate. During this appearance, Goodwin requested
the appointment of counsel, and the magistrate granted this
request. Goodwin contends that, by requesting the appointment of

33
counsel before the Iowa magistrate, he invoked his Fifth
Amendment right to have counsel present during police
interrogation on any offense. We disagree.

When Goodwin appeared before the Iowa magistrate, his Sixth
Amendment right to counsel had attached with respect to the
charge of first degree burglary. See Cooper, 949 F.2d at 741 n.1
(“The Sixth Amendment right to counsel attaches ‘at or after the
initiation of adversary judicial criminal proceedings--whether by
way of formal charge, preliminary hearing, indictment,
information, or arraignment.’” (quoting Kirby v. Illinois, 406
U.S. 682, 689 (1972))). The record before us indicates that
Goodwin’s request for counsel before the Iowa magistrate
constituted nothing more than the invocation of his Sixth
Amendment right to counsel with respect to the burglary charge.

The Supreme Court held in McNeil v. Wisconsin, 501 U.S. 171
(1991), that, as a matter of fact and policy, the invocation of
the offense-specific Sixth Amendment right to counsel does not of
itself constitute the invocation of the non-offense specific
Fifth Amendment right to counsel. See id. at 177. Rather,
invocation of the Fifth Amendment right to counsel occurs only
when the accused “‘ha[s] expressed’ his wish for the particular
sort of lawyerly assistance that is the subject of Miranda.” Id.
at 178 (quoting Edwards, 451 U.S. at 484) (alteration in
original); Cooper, 949 F.2d at 742. Moreover, it is questionable
whether an individual can anticipatorily invoke his Fifth
Amendment right to counsel at an arraignment or other hearing at
which he is not subject to custodial interrogation. As the Court
observed in McNeil,

We have in fact never held that a person can invoke his
Miranda rights anticipatorily, in a context other than
“custodial interrogation”--which a preliminary hearing
will not always, or even usually, involve. If the
Miranda right to counsel can be invoked at a
preliminary hearing, it could be argued, there is no
logical reason why it could not be invoked by a letter
prior to arrest, or indeed even prior to identification
as a suspect. Most rights must be asserted when the
government seeks to take the action they protect
against. The fact that we have allowed the Miranda
right to counsel, once asserted, to be effective with
respect to future custodial interrogation does not
necessarily mean that we will allow it to be asserted
initially outside the context of custodial
interrogation, with similar future effect.

McNeil, 501 U.S. at 182 n.3 (citations omitted). However, we
need not resolve the issue of whether anticipatory invocation of

34
officers took Goodwin to the Burlington police station, where he

was held in custody through January 21. On January 21, Texas law

enforcement officials interviewed Goodwin. During the interview,

Goodwin signed a waiver of rights form, and subsequently provided

Miranda rights outside the context of custodial interrogation is
possible here. Because the record in this case is devoid of any
indication that Goodwin’s request for counsel before the Iowa
magistrate included a “request that counsel represent him in
unrelated future custodial interrogations,” we conclude that this
request for counsel did not constitute an invocation of Goodwin’s
Fifth Amendment right to counsel. Cooper, 949 F.2d at 742.

Goodwin argues that Rule 2(2) of the Iowa Code of Criminal
Procedure, pursuant to which the magistrate admonished Goodwin
prior to his request for counsel, is similar to article 15.17 of
the Texas Code of Criminal Procedure, the statutory provision
that dictates the information with which a magistrate must
provide an accused person in a similar proceeding in Texas.
Compare TEX. CRIM. PROC. CODE ANN. art. 15.17 (Vernon Supp. 1998)
with IOWA CODE ANN. § 813.2 (1994). Goodwin contends that Texas
courts have concluded that an accused’s invocation of the right
to counsel at an article 15.17 hearing necessarily constitutes an
invocation of the accused’s Fifth Amendment right to counsel.
However, none of the authority cited by Goodwin stands for this
proposition. See Green v. State, 872 S.W.2d 717, 726 (Tex. Crim.
App. 1994) (Baird, J., concurring); Young v. State, 820 S.W.2d
180, 187 (Tex. App.--Dallas 1991, pet. ref’d) (noting that the
state conceded that the defendant invoked his Fifth Amendment
right to counsel at an article 15.17 hearing); Higginbotham v.
State, 769 S.W.2d 265, 269 (Tex. App.--Houston [14th Dist.] 1989)
(holding that a defendant’s request for counsel during an article
15.17 hearing that took place prior to the attachment of the
accused’s Sixth Amendment right to counsel served to invoke the
accused’s Fifth Amendment right to counsel), rev’d on other
grounds 807 S.W.2d 732 (Tex. Crim. App. 1991). In fact, the
Texas Court of Criminal Appeals has expressly held to the
contrary. See Green v. State, 934 S.W.2d 92, 97 (Tex. Crim. App.
1996) (holding that the appellant’s request for counsel at a
preliminary hearing before a magistrate did not serve to invoke
his Fifth Amendment right to counsel because the appellant was
not subjected to custodial interrogation during the hearing),
cert. denied, 117 S. Ct. 1561 (1997). While we are not bound to
accept the conclusions of the Court of Criminal Appeals regarding
when a federal right attaches within the context of Texas’s
criminal procedural framework, we find the court’s conclusion
consistent with pertinent federal precedent. See McNeil, 501
U.S. at 177, 182 n.3; Cooper, 949 F.2d at 742.

35
the Texas law enforcement authorities with a videotaped

confession. That evening, Goodwin flew back to Texas in the

custody of Texas law enforcement officials. The next morning,

Texas law enforcement officials brought Goodwin before a

magistrate who issued a magistrate’s warning and set Goodwin’s

bond. A law enforcement officer later read Goodwin his rights

again, and Goodwin again agreed to waive them. He then provided

a written confession. He also made incriminating oral statements

identifying the bayonet stolen from Tillerson and the gun used by

Atkins during the robbery and murder.

Goodwin contends that he invoked his Fifth Amendment right

to counsel following his arrest in Burlington. In support of

this contention, he offers his own affidavit, which he submitted

along with his federal habeas petition and his second state

habeas petition. Goodwin’s affidavit states that, shortly after

his arrest, a Burlington police officer asked Goodwin to sign a

form waiving his Miranda rights. According to his affidavit,

Goodwin refused to do so and informed the officer that he did not

wish to answer any questions outside the presence of an attorney.

If what Goodwin states in his affidavit is true, his subsequent

purported waivers of this Fifth Amendment right to counsel prior

to interrogation by Texas authorities were presumptively invalid

even though the Texas authorities informed Goodwin of his Miranda

rights prior to each waiver, and his confessions would be

inadmissible on this basis. See Roberson, 486 U.S. at 682-84,

687; United States v. Cruz, 22 F.3d 96, 98 (5th Cir. 1994) (“‘[A]

36
valid waiver of that right [to have counsel present during

custodial interrogation] cannot be established by showing only

that [the accused] responded to further police-initiated

custodial interrogation even if [the accused] has been advised of

his rights.’” (quoting Edwards, 451 U.S. at 484)) (all

alterations except second in original).

b. Harmless error

Although admission of Goodwin’s confessions constituted

constitutional error under the factual scenario advanced by

Goodwin, such error cannot provide a ground for habeas relief,

and thus cannot provide a basis for an evidentiary hearing, if

the error was harmless. See Brecht v. Abrahamson, 507 U.S. 619,

622-23 (1993) (observing that habeas relief need not be granted

when constitutional error is harmless); Perillo, 79 F.3d at 444

(noting that an evidentiary hearing is required only if the

petitioner establishes the existence of “a factual dispute, that,

if resolved in the petitioner’s favor, would entitle her to

relief” (internal quotation marks and brackets omitted)).

The Supreme Court has held that “trial error”--that is,

error that “‘occur[s] during the presentation of the case to the

jury’”--“is amenable to harmless-error analysis because it ‘may .

. . be quantitatively assessed in the context of other evidence

presented in order to determine [the effect it had on the

trial].’” See Brecht, 507 U.S. at 629 (quoting Arizona v.

Fulminante, 499 U.S. 279, 307-08 (1991)) (alterations in

original). The admission of confessions obtained in violation of

37
Edwards and its progeny constitutes trial error, and is therefore

amenable to harmless error analysis. See United States v.

Cannon, 981 F.2d 785, 789 n.3 (5th Cir. 1993) (“A harmless-error

analysis may be performed to examine the effect of an Edwards

violation.”); United States v. Webb, 755 F.2d 382, 392 (5th Cir.

1985) (applying harmless-error analysis to statements admitted in

violation of Edwards).

The harmless-error standard applicable in conducting habeas

review requires the granting of habeas relief on the basis of

constitutional trial error only if the error “‘had substantial

and injurious effect or influence in determining the jury’s

verdict.’” Brecht, 507 U.S. at 620 (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)).

If in fact Goodwin invoked his Fifth Amendment right to

counsel upon his arrival at the Burlington police station, then

the state district court improperly admitted Goodwin’s videotaped

confession, his written confession, and his incriminating

statements identifying the bayonet stolen from Tillerson and the

gun used by Atkins during the robbery and murder. We are

convinced that the admission of this evidence, if improper, “had

substantial and injurious effect or influence in determining the

jury’s verdict.” Id. at 623 (internal quotation marks omitted).

While the state presented a substantial amount of other

evidence against Goodwin, including the testimony of Dierr that

Goodwin told him that he shot someone in the woods and ammunition

found at the site of Goodwin’s confession to Dierr that was fired

38
from the murder weapon, Goodwin’s statements doubtless had a

tremendous impact on the jury. Goodwin’s written confession

lengthily recounts how he and Atkins held Tillerson at gunpoint

while they searched Tillerson’s trailer for money, how they began

taking items from the trailer, how they drank all of Tillerson’s

beer while they were there, how they made Tillerson get dressed

and go with them in Atkins’s car to the woods, and how Goodwin

killed Tillerson. Goodwin’s videotaped confession contains

similar factual detail. Moreover, Goodwin’s statements

identifying the weapon used by Atkins and the bayonet stolen from

Tillerson are highly probative of his guilt.

“A confession is like no other evidence.” Fulminante, 499

U.S. at 296. It “is probably the most probative and damaging

evidence that can be admitted against [a criminal defendant].”

Bruton v. United States, 391 U.S. 123, 139 (1968) (White, J.,

dissenting). “While some statements by a defendant may concern

isolated aspects of the crime or may be incriminating only when

linked to other evidence, a full confession in which the

defendant discloses the motive for and means of the crime may

tempt the jury to rely upon that evidence alone in reaching its

decision.” Fulminante, 499 U.S. at 296. The possibility that

the jury focused solely on Goodwin’s confessions in this case is

enhanced by the fact that the prosecution stated in closing

argument that Goodwin’s confessions were the “only evidence” that

Goodwin killed Tillerson “in the course of committing kidnapping

[or] robbery,” a fact that the state had to prove beyond a

39
reasonable doubt in order to support Goodwin’s conviction for

capital murder. See TEX. PEN. CODE ANN. § 19.03(a)(2) (Vernon

1994). We therefore cannot say that the state district court’s

admission of Goodwin’s two confessions, coupled with its

admission of his other highly incriminating statements of

identification, constituted harmless error.

Because any error the state district court committed in

admitting Goodwin’s confessions and other incriminating

statements was not harmless, Goodwin has established the

existence of a fact issue that, if resolved in his favor, would

entitle him to habeas relief.15 We turn now to the issue of

15
In concluding that Goodwin is not entitled to an
evidentiary hearing on his Fifth Amendment claim, the federal
district court acknowledged that Goodwin’s affidavit stated that
he requested counsel upon being taken to the Burlington police
station but apparently based its decision denying Goodwin’s
request for an evidentiary hearing on its conclusion that the
other evidence in the record did not support this contention.
The presence of conflicting evidence, however, even if
substantially weighted in favor of the state, generally denotes
the existence of a genuine fact question requiring an evidentiary
hearing. The only exception is where the petitioner’s evidence
is limited to “‘conclusory allegations unsupported by specifics’”
or “‘contentions that in the face of the record are wholly
incredible.’” Perillo, 79 F.3d at 444 (quoting Blackledge v.
Allison, 431 U.S. 63, 74 (1977)). This is not such a case.

Goodwin’s affidavit is competent summary judgment evidence
that creates a genuine issue of material fact as to whether
Goodwin refused a request by Burlington police to waive his
Miranda rights and subsequently invoked his Fifth Amendment right
to counsel. See Transamerica Ins. Co. v. Avenell, 66 F.3d 715,
722 (5th Cir. 1995) (holding that an attorney’s detailed
affidavit, which was competent summary judgment evidence,
demonstrated the existence of a genuine issue of material fact
regarding a claim for attorney’s fees). The state has presented
no evidence reflecting that Goodwin initiated any conversations
with police that would have cut off the effectiveness of a
previous assertion of the Fifth Amendment right to counsel and
thus negated the materiality of the fact issue raised by

40
whether the state court afforded him a full and fair hearing for

the resolution of this fact issue.

2. Full and fair hearing in state court

As demonstrated above, if the factual dispute as to whether

Goodwin ever invoked his Fifth Amendment right to counsel is

resolved in Goodwin’s favor, he is entitled to habeas relief.

For the reasons that follow, we conclude that the state did not

afford Goodwin a full and fair hearing on this factual issue and

that he is therefore entitled to an evidentiary hearing in

federal district court to resolve it.

“There cannot even be the semblance of a full and fair

hearing unless the state court actually reached and decided the

issues of fact tendered by the defendant.” Townsend v. Sain, 372

U.S. 293, 313-14 (1963). As such, when the state court did not

resolve a fact issue that would entitle the petitioner to relief

if resolved in his favor, the petitioner is entitled to an

evidentiary hearing on the issue. See id. at 313; Blackmon v.

Scott, 22 F.3d 560, 567 & n.28 (5th Cir. 1994) (concluding that

an evidentiary hearing on factual issues underlying a habeas

petitioner’s federal claims was required because the state court

made no fact-findings on the issues).

In determining whether the state court reached the merits of

a factual issue, the district court may, in appropriate

Goodwin’s affidavit. The only other evidence presented by the
state was a conflicting affidavit by Goodwin’s trial attorney.
Thus, a genuine issue of material fact exists regarding Goodwin’s
Fifth Amendment claim.

41
circumstances, imply fact-findings from the state court’s

disposition of a federal claim that turns on the factual issue.

In Townsend, the Supreme Court observed:

If the state court has decided the merits of the claim
but has made no express findings, it may still be
possible for the District Court to reconstruct the
findings of the state trier of fact, either because his
view of the facts is plain from his opinion or because
of other indicia.

Townsend, 372 U.S. at 314. The Court went on to state that

the coequal responsibilities of state and federal
judges in the administration of federal constitutional
law are such that we think the district judge may, in
the ordinary case in which there has been no
articulation, properly assume that the state trier of
fact applied correct standards of federal law to the
facts in the absence of evidence . . . that there is
reason to suspect that an incorrect standard was in
fact applied.

Id. at 314-15; Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir.

1973) (“[I]f the state court did not articulate the

constitutional standards applied, the district court may presume

that the state court applied correct findings, in the absence of

evidence that an incorrect standard was applied.”).

In this case, neither the state district court nor the Court

of Criminal Appeals made any express findings of fact regarding

whether Goodwin requested the assistance of counsel during

custodial interrogation when first taken to the Burlington police

station. Furthermore, we conclude that neither court made any

implicit fact-findings on this issue. In addressing Goodwin’s

habeas petition, the state courts made no conclusions of law

regarding Goodwin’s Fifth Amendment claim (or any of his other

claims) from which we could infer a factual finding that Goodwin

42
did not refuse police interrogation in the absence of an attorney

when first taken to the Burlington police station. Rather, the

district court recommended in a two-page order containing no

legal analysis of Goodwin’s claims that Goodwin’s request for

relief be denied, and the Court of Criminal Appeals accepted the

recommendation in an even more summary fashion. A conclusion

that the state courts’ summary denial of Goodwin’s petition for

habeas corpus relief implies a finding that Goodwin never invoked

his Fifth Amendment right to counsel finds no support in the

Supreme Court’s jurisprudence and is contrary to this circuit’s

treatment of implied fact-findings.

In the circumstances in which the Supreme Court has held

that a state court has made implied findings of fact, the state

court’s written disposition of the claim in question has

contained explicit conclusions of law. For example, in Marshall

v. Lonberger, 459 U.S. 422 (1983), the Court determined that a

state trial court’s legal conclusion that a criminal defendant’s

guilty plea was admissible into evidence implied a factual

determination that the defendant’s testimony that he had never

been given an opportunity to review the indictment for the

charged offense lacked credibility. The Court observed that

“[t]he trial court’s ruling allowing the record of conviction to

be admitted in evidence . . . is tantamount to a refusal to

believe the testimony of respondent.” Id. at 434. However, the

trial court’s ruling that the confession was admissible contained

an express legal conclusion that “the defendant intelligently and

43
voluntarily entered his plea of guilty.” Id. at 429 (internal

quotation marks omitted).

Similarly, in LaVallee v. Delle Rose, 410 U.S. 690 (1973),

the court held that the trial court’s legal conclusion that a

criminal defendant’s “confessions to the police and district

attorney were, in all respects, voluntary and legally admissible

in evidence at the trial” implied a fact-finding by the trial

court that the defendant’s testimony that his confessions

resulted from police coercion lacked credibility. Id. at 691.

The Court stated, “Although it is true that the state trial court

did not specifically articulate its credibility findings, it can

scarcely be doubted from its written opinion that respondent’s

factual contentions were resolved against him.” Id. at 692. In

both of the above cases, the state court had made an express

legal conclusion from which the reviewing federal court could

accurately reconstruct the factual determinations that formed the

basis of the state court’s legal conclusion.

The case law of this circuit demonstrates that some

indication of the legal basis for the state court’s denial of

relief on a federal claim is generally necessary to support a

conclusion that the state court has made an implied fact-finding

as to a factual issue underlying the claim.16 In Armstead v.

16
In a few instances, we have held that a state court’s
bare legal ruling without accompanying conclusions of law may
form a basis for implying findings of fact that support the
ruling. However, we have done so only in circumstances in which
the state court’s ruling addressed a discrete issue and the
factual basis for the ruling was extremely clear based on the
ruling’s limited nature. See, e.g., Jones v. Butler, 864 F.2d

44
Scott, 37 F.3d 202 (5th Cir. 1994), the habeas petitioner alleged

that his defense counsel was unconstitutionally ineffective

because he falsely promised the petitioner that his wife would

receive probation if he pled guilty. See id. at 205. The state

habeas court made no express findings of fact on this issue and

merely denied relief. See id. at 208. This court held that the

state court had made no fact-finding--express or implied--on this

issue. See id. at 208-09. Likewise, in Blackmon v. Scott, 22

F.3d 560 (5th Cir. 1994), we concluded that a habeas petitioner

was entitled to an evidentiary hearing on a number of his claims

for habeas relief, the viability of which hinged upon resolution

of fact issues, because the state habeas court had not entered

fact-findings disposing of the underlying fact issues in denying

the petitioner’s state habeas petition. See id. at 566-67. We

therefore conclude that neither the state district court nor the

Court of Criminal Appeals made any implicit findings of fact on

the issue of whether Goodwin requested to have an attorney

present during custodial interrogation when first taken to the

348, 362 (5th Cir. 1988) (concluding that state court’s refusal
to dismiss a juror for cause after the defendant’s challenge for
cause based on lack of impartiality constituted an implicit
factual finding that the juror was not biased); Lavernia v.
Lynaugh, 845 F.2d 493, 499-500 (5th Cir. 1988) (holding that the
trial court’s denial of the defendant’s motion to suppress an in-
court identification and photo spread evidence from an out-of-
court identification constituted an implicit fact-finding
crediting the identifying witness’s testimony indicating that the
out-of-court identification procedure was not unduly suggestive);
Wicker v. McCotter, 783 F.2d 487, 495 (5th Cir. 1986) (holding
that trial court’s denial of a motion for mistrial on grounds of
pretrial publicity constituted an implicit fact-finding that
pretrial publicity had not created “the kind of ‘wave of public
passion’ that would have made a fair trial unlikely”).

45
Burlington police station.17 Because the state courts made no

fact-finding on this issue, they did not provide Goodwin with a

full and fair hearing for its resolution. Goodwin is therefore

entitled to an evidentiary hearing so that the district court may

determine whether Goodwin invoked his Fifth Amendment right to

counsel, thereby rendering his confessions inadmissible at trial.

“This should not be a wide-ranging fishing expedition, but a

brief adversarial hearing concerning a discrete [factual issue].”

17
We acknowledge that the state district court’s
recommendation that Goodwin’s second habeas petition be denied
and the summary denial of the relief sought in the petition by
the Court of Criminal Appeals were legally proper only if the
state courts concluded, as a factual matter, that Goodwin did not
request the assistance of counsel when first taken to the
Burlington police station. Because Townsend instructs us to
assume “that the state trier of fact applied correct standards of
federal law to the facts,” Townsend, 372 U.S. at 314-15, one
might argue that we are compelled to conclude that the state
courts found that Goodwin never invoked his Fifth Amendment right
to counsel. This argument, however, proves far too much.

As noted above, in order to be entitled to an evidentiary
hearing in federal court, a habeas petitioner must demonstrate
the existence of a “factual dispute, that, if resolved in the
petitioner’s favor, would entitle her to relief.” Perillo, 79
F.3d at 444 (internal quotation marks and brackets omitted).
Were we to conclude that, when a state habeas court denies a
habeas petition containing federal claims without written
findings of fact or conclusions of law, it has implicitly made
all of the factual findings necessary to support its denial of
the federal claims therein, then we would be forced to conclude
that the state court has made implicit findings of fact any time
a habeas petitioner makes a threshold showing that he is entitled
to an evidentiary hearing. This is so because we would be forced
to conclude that, when the petitioner demonstrates the existence
of a factual issue that would entitle him to relief if resolved
in his favor, the state court necessarily must have resolved the
issue against the petitioner in order for its denial of relief on
the federal claim to be valid. Such an expansive approach to
implicit fact-findings would strip Townsend’s admonishment that a
habeas petitioner is entitled to an evidentiary hearing if “the
merits of the factual dispute were not resolved in the state
hearing” of all meaning. Townsend, 372 U.S. at 313.

46
Perillo, 79 F.3d at 445.

C. Withholding Exculpatory Evidence and Knowing Use
of Perjured Testimony by Prosecution

Goodwin advances two arguments relating to the testimony of

Delbert Burkett, a witness at Goodwin’s trial who was Goodwin’s

cellmate in the Montgomery County Jail during the early part of

1987. Burkett testified at the sentencing stage of Goodwin’s

trial that Goodwin had bragged to him about the murder of

Tillerson and that Goodwin showed no remorse at having committed

the murder. Goodwin alleges that the prosecution (1) knowingly

failed to correct Burkett’s perjurious testimony during

sentencing that he did not testify in exchange for a deal from

the state lessening his sentence on a state crime for which he

had been previously convicted and (2) failed to inform Goodwin of

the existence of a deal between Burkett and the state that would

have constituted material impeachment evidence at trial. Goodwin

contends that a genuine issue of material fact exists as to each

of the above claims, and that he is therefore entitled to an

evidentiary hearing on them. We conclude that no such genuine

issues of material fact exist and that Goodwin is not entitled to

an evidentiary hearing on these claims.

1. Knowing use of perjured testimony

“A state denies a criminal defendant due process when it

knowingly uses perjured testimony at trial or allows untrue

testimony to go uncorrected.” Faulder v. Johnson, 81 F.3d 515,

519 (5th Cir.) (citing Napue v. Illinois, 360 U.S. 264 (1959)),

cert. denied, 117 S. Ct. 487 (1996). To obtain a reversal based

47
upon a prosecutor’s use of perjured testimony or failure to

correct such testimony, a habeas petitioner must demonstrate that

“1) the testimony was actually false; 2) the state knew it was

false; and 3) the testimony was material.” See id.; Blackmon v.

Scott, 22 F.3d 560, 565 (1994). False evidence is "material"

only "if there is any reasonable likelihood that [it] could have

affected the jury's verdict." Westley v. Johnson, 83 F.3d 714,

726 (5th Cir. 1996) (internal quotation marks omitted), cert.

denied, 117 S. Ct. 773 (1997).

On April 16, 1987, Burkett was sentenced to five years

imprisonment for possession of a controlled substance, having

violated the conditions of his previous sentence of deferred

adjudication on the offense. That same day, two other criminal

charges pending against Burkett were dismissed. At trial,

Burkett testified that he had received no promises of

consideration from the state in exchange for his testimony at

Goodwin’s trial as of the time of his sentencing on the charge of

possession of a controlled substance. Burkett also testified

that he had no idea that the state desired to have him testify

until he was bench-warranted from state prison back to Montgomery

County in July 1987 to discuss the Goodwin case with

prosecutors.18 Goodwin claims that a fact issue exists as to the

18
On cross examination by Goodwin’s trial counsel outside
the presence of the jury, Burkett testified as follows:

Q: And, then you got five years on a controlled
substance out of Montgomery County?

A: Yes, sir.

48
 . . .

Q: Had you already spoken to the authorities about
what you knew that Goodwin had said when you plead
for the five years?

A: No.

Q: Was there any arrangement or deal at all where
your sentence would be cut or you would not be
enhanced if you testified against Goodwin?

Q: No, sir. The first I found out about it was when
I was bench-warranted back here on July the 1st.

On direct examination by the state before the jury, Burkett
testified as follows:

Q: When did you receive your last conviction?

A: This one now? April of this year.

. . .

Q: At that time had I ever talked to you?

A: No, ma’am.

Q: Had anyone ever talked to you about Alvin Goodwin?

A: No, ma’am.

Q: Was there any promises made at that time
concerning testimony against Alvin Goodwin at the
time you pled?

A: No, ma’am.

Q: When did you first become aware that we were aware
that you might have some testimony concerning
Alvin Goodwin?

A: July the 1st.

Q: And, were you bench-warranted back to Montgomery
County for that purpose?

A: Yes, ma’am.

Q: At the time you were bench-warranted, did you have

49
falsehood of both of these pieces of testimony as well as the

state’s knowledge of the falsehood. He therefore argues that the

district court erred in denying him an evidentiary hearing to

explore these claims. We disagree.

Goodwin has presented no competent summary judgment evidence

creating a fact issue as to the falsehood of Burkett’s testimony

that the state had not offered him any sort of deal in exchange

for his testimony as of the time of Burkett’s sentencing on his

charge of possession of a controlled substance. In support of

his claim that this testimony was false, Goodwin offers the

affidavit of Kathryn Jean Burkett, Burkett’s ex-wife. Her

affidavit states that Burkett informed her before he was

transported from county jail to the Texas Department of

Corrections to serve his five year sentence that “he was going to

get at least one, and maybe more of his charges dismissed in

exchange for his testimony.” Burkett’s alleged statement to his

ex-wife only creates a fact issue as to whether he entered a deal

with the state prior to April 16, and therefore as to whether his

testimony to the contrary at trial was false, if the statement is

true. To that extent, Burkett’s alleged statement is hearsay, as

it is an out-of-court statement offered to prove the truth of the

matter asserted.19 See FED. R. EVID. 801(c). Because Goodwin has

any idea why you were being bench-warranted?

A: Not until I got here and I seen Guy Williams and
he told me why.
19
Obviously, if Burkett were to testify at an evidentiary
hearing that his trial testimony was truthful, the statement

50
not demonstrated that Burkett’s alleged statement to his wife

fits any exception to the general rule that hearsay is

inadmissible, see FED. R. EVID. 802, 803, the statement is

incompetent summary judgment evidence. See Barhan v. Ry-Ron

Inc., 121 F.3d 198, 202 (5th Cir. 1997). None of the other

summary judgment evidence presented to the district court,

including the affidavits of the prosecuting attorneys and the

numerous affidavits of Burkett, contradict Burkett’s trial

testimony that the state had offered him no deal in exchange for

his testimony as of the time that his sentence for possession of

a controlled substance was imposed. Because Goodwin has failed

to demonstrate the existence of a fact issue as to the falsehood

of Burkett’s testimony at trial, he is not entitled to an

evidentiary hearing on this issue.

2. Failure to disclose the existence of a deal

“The prosecution’s suppression of evidence favorable to the

accused violates the Due Process Clause if the evidence is

material either to guilt or to punishment.” Kopycinski v. Scott,

64 F.3d 223, 225 (5th Cir. 1995) (citing Brady v. Maryland, 373

U.S. 83, 87 (1963)). This includes evidence that may be used to

impeach a witness’s credibility. See id. (citing United States

v. Bagley, 473 U.S. 667, 676 (1985)). “[E]vidence is material

only if there is a reasonable probability that, had the evidence

could be offered to impeach such testimony. However, in such a
circumstance, the statement would only serve as evidence that
Burkett lacks credibility, not as evidence that he entered a deal
with the state prior to April 16 and that his testimony at trial
was therefore false.

51
been disclosed to the defense, the result of the proceeding would

have been different.” Bagley, 473 U.S. at 682; Kopycinski, 64

F.3d at 225-26. If the prosecution withholds evidence that

satisfies the above definition of materiality, then harmless-

error analysis is inapposite and habeas relief is warranted. See

Kyles v. Whitley, 514 U.S. 419, 435 (1995) (“[O]nce a reviewing

court applying Bagley has found constitutional error there is no

need for further harmless-error review. Assuming, arguendo, that

a harmless-error enquiry were to apply, a Bagley error could not

be treated as harmless, since a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different necessarily entails the

conclusion that the suppression must have had substantial and

injurious effect or influence in determining the jury’s verdict.”

(internal quotation marks and citations omitted)).

Goodwin alleges that a fact issue exists as to whether the

state entered into a deal with Burkett pursuant to which Burkett

would receive favorable treatment in exchange for his testimony

at the sentencing phase of Goodwin’s trial. He contends that, if

such a deal existed and the state failed to reveal it to him, he

is entitled to a new trial on Brady grounds. Goodwin therefore

argues that the district court improperly denied him an

evidentiary hearing to resolve the factual dispute of whether a

deal existed between the state and Burkett. Because Goodwin has

offered no competent summary judgment evidence establishing a

fact issue as to whether the state had entered a deal with

52
Burkett whereby he would receive favorable treatment in exchange

for his testimony, Goodwin is not entitled to an evidentiary

hearing on this claim.

In support of his Brady claim, Goodwin offers one of the

three affidavits executed by Burkett and an affidavit of Kathryn

Burkett. Burkett’s affidavit does not establish a fact issue as

to the existence of a deal that would satisfy Brady’s requirement

of materiality. In his affidavit, Burkett states that

prosecutors indicated “that they would look into pending criminal

matters, which included a probation revocation in Travis County

and assistance with [his] parole for the Montgomery County

charges.” Specifically, Burkett claims that one of the

prosecutors “told [him] she could not promise anything concerning

the Travis County probation, because it was from another county,

but she said she would look into it if she could.” Assuming that

such a statement by the prosecutor constitutes an agreement, it

is immaterial because the potential benefit to Burkett was so

marginal that “it is doubtful it would motivate a reluctant

witness, or that disclosure of the statement would have had any

effect on his credibility.” McCleskey v. Kemp, 753 F.2d 877, 884

(11th Cir. 1985) (en banc) (concluding that a detective’s promise

to “speak a word” for a witness in exchange for his testimony was

not reasonably likely to have changed the judgment of the jury

had it been disclosed). We therefore conclude that, even if the

prosecutor made the “agreement” that Burkett alleges, the

agreement was immaterial because there is no “reasonable

53
probability that, had the evidence been disclosed to the defense,

the result of the [sentencing stage of trial] would have been

different.” Bagley, 473 U.S. at 682. This conclusion is

bolstered by the district court’s observation that the jury,

having been informed of Burkett’s status as a thrice-convicted

felon, already had ample reason to conclude that Burkett “was

less than a model of integrity.”

The remainder of Burkett’s affidavit merely evidences a

nebulous expectation of help from the state; such an expectation

is not Brady material. See United States v. Nixon, 881 F.2d

1305, 1311 (5th Cir. 1989) (holding that a witness’s impression

that the government would help him obtain a pardon in exchange

for his testimony, in the absence of “a specific promise to

help,” was not Brady material).

Kathryn Burkett’s affidavit likewise fails to establish a

genuine issue of material fact with respect to Goodwin’s Brady

claim. Her affidavit states that Burkett told her that he had

made a deal with the state pursuant to which he would receive

favorable treatment in exchange for his testimony. However, as

noted earlier, such statements by Burkett are inadmissible

hearsay, and are therefore not competent summary judgment

evidence. See Barhan, 121 F.3d at 202. Kathryn Burkett’s

affidavit also indicates that she heard Burkett speaking with a

state investigator about a “deal,” but it provides no indication

of the substance of the investigator’s statements. The only

specific statements by the investigator to which she refers

54
consist of his encouragement that she “stand by Delbert through

his prison sentence and . . . make plans for [her] life with

Delbert after his short stay in prison.” This statement does not

create a fact issue as to whether the state had promised Burkett

favorable treatment in exchange for his testimony.

In sum, Goodwin has not established a fact issue as to the

existence of a deal between the state and Burkett, the

nondisclosure of which would mandate a new sentencing hearing

under Brady. Goodwin is therefore not entitled to an evidentiary

hearing on his Brady claim.

D. Violation of Constitutional Right to Rehabilitation Expert

Goodwin contends that the district court erred in denying

him habeas relief on his claim that the trial court violated his

Fourteenth Amendment right to due process by denying his motion

for funds to hire a rehabilitation expert to testify at the

punishment phase of his trial. Prior to trial, defense counsel

filed a motion requesting funds for the purpose of retaining

certain expert witnesses, including “an expert in the area of

parole and rehabilitation.” The trial court did not grant the

motion. Neither the state nor the defense proffered psychiatric

evidence at sentencing.

In evaluating Goodwin’s claim of entitlement to a

rehabilitation expert, the district court appears to have applied

the standard adopted in this circuit for determining whether an

indigent defendant has a right of state-funded access to

nonpsychiatric experts. Under this standard, a criminal

55
defendant has no due process right to the assistance of such an

expert unless the expert testimony to be obtained is “‘both

critical to the conviction and subject to varying expert

opinion.’” See Yohey v. Collins, 985 F.2d 222, 227 (5th Cir.

1993) (quoting Scott v. Louisiana, 934 F.2d 631, 633 (5th Cir.

1991) (citation omitted)). Goodwin contends that the district

court erred in applying this standard and should instead have

evaluated his claim under the standard articulated by the Supreme

Court in Ake v. Oklahoma, 470 U.S. 68 (1985), for determining

whether an indigent defendant is constitutionally entitled to the

appointment of a psychiatric expert. As support for this

proposition, Goodwin argues that, in the context of mental-health

evidence presented to the jury during the punishment phase of the

trial, there is “no significant difference . . . between the

opinions offered by . . . rehabilitation counselors and expert

opinions from a mental health professional.” Schneider v.

Lynaugh, 835 F.2d 570, 571 (5th Cir. 1988). Assuming arguendo

that Goodwin would have elicited the type of testimony from a

rehabilitation expert that would be the functional equivalent of

psychiatric testimony and that this fact would bring his request

for an expert within the ambit of Ake, his claim is nonetheless

unavailing.

In Ake, the Supreme Court held that an indigent defendant

has a due process based right to the appointment of a psychiatric

expert to present rebuttal evidence at sentencing “when the State

presents psychiatric evidence of the defendant’s future

56
dangerousness.” Ake, 470 U.S. at 83. The state presented no

such evidence in this case. Goodwin argues, however, that Ake

requires the appointment of a psychiatric expert whenever the

defendant’s future dangerousness is “a significant factor” at

sentencing. Goodwin acknowledges that his proposed

interpretation of Ake would entitle every defendant in a Texas

capital case to the appointment of a psychiatrist because

imposition of the death penalty requires that the state prove,

inter alia, that “there is a probability that the defendant would

commit criminal acts of violence that would constitute a

continuing threat to society.” TEX. CRIM. PROC. CODE ANN.

art. 37.071(b)(1) (Vernon Supp. 1998). This contention is

unsupportable.

In Ake, the Court indicated that the due process entitlement

to the assistance of a psychiatrist when the state presents

psychiatric evidence of future dangerousness is predicated upon

the notion that psychiatric testimony offered on behalf of the

defendant is uniquely capable of “uncover[ing], recogniz[ing],

and tak[ing] account of . . . shortcomings in predictions” made

by the state’s psychiatrists. Ake, 470 U.S. at 84 (internal

quotation marks omitted). It is simply not the case that the

types of nonpsychiatric evidence of future dangerousness offered

by the state in this case, such as Goodwin’s criminal history and

testimony that Goodwin bragged about killing Tillerson, are

uniquely capable of being rebutted only by psychiatric

57
testimony.20 Moreover, subsequent Supreme Court precedent

indicates that Ake only creates an entitlement to the assistance

of a psychiatrist during sentencing when the state offers

psychiatric evidence of the defendant’s future dangerousness.

See Tuggle v. Netherland, 116 S. Ct. 283, 284 (1995) (“[W]e held

in Ake . . . that when the prosecutor presents psychiatric

evidence of an indigent defendant's future dangerousness in a

capital sentencing proceeding, due process requires that the

State provide the defendant with the assistance of an independent

psychiatrist.” (emphasis added)); Simmons v. South Carolina, 512

U.S. 154, 164 (1994) (“[W]here the State presents psychiatric

evidence of a defendant's future dangerousness at a capital

sentencing proceeding, due process entitles an indigent defendant

to the assistance of a psychiatrist for the development of his

defense . . . .” (emphasis added)).

Goodwin relies upon Clisby v. Jones, 960 F.2d 925, 929 n.7

(11th Cir. 1992), and Liles v. Saffle, 945 F.2d 333, 340-41 (10th

Cir. 1991), for the proposition that Ake may require the

appointment of a psychiatrist in some circumstances in which the

state offers only nonpsychiatric evidence of future

dangerousness. However, even if we were to adopt the

construction of Ake that these cases advocate, Goodwin’s claim

20
For example, Jesse Sunday, another of Goodwin’s
cellmates in the Montgomery County jail, testified at sentencing
that Goodwin did not brag about killing Tillerson.

58
would nonetheless fail.21 Those cases requiring the appointment

of a psychiatrist to aid the defendant during sentencing when the

state has offered only nonpsychiatric evidence of the defendant’s

future dangerousness have also required that the defendant

establish that “his mental condition could have been a

significant mitigating factor.” Liles, 945 F.2d at 341; see also

Clisby, 960 F.2d at 929 (“Ake requires a state to provide the

capital defendant with such access to a competent psychiatrist

upon a preliminary showing to the trial court that the

defendant’s mental status is to be a significant factor at

sentencing.”). Goodwin has made no such showing.

Goodwin concedes in his appellate brief that, in evaluating

his Ake claim, we should consider only the evidence the trial

court had before it at the time of its ruling denying the request

for court appointment of a rehabilitation expert. See Williams

v. Collins, 989 F.2d 841, 844 n.10 (5th Cir. 1993). Goodwin’s

motion requesting funds to hire a rehabilitation expert states

the following:

In the event the Defendant is convicted, a punishment
hearing would be conducted to determine sentencing.
Because all information pertinent to sentencing must be
introduced at the punishment hearing, it will be
necessary for the Defendant’s counsel to employ an
expert in the area of parole and rehabilitation to
determine, in the event the Defendant is convicted,
whether he is capable of rehabilitation. This
information and expert opinion would be admissible as a
mitigating circumstance under Texas Law. The

21
Because Goodwin is not entitled to relief under the
construction of Ake advocated in Liles and Clisby, we need not
determine whether the law of this circuit supports this more
expansive construction of Ake.

59
 Defendant’s counsel [has] no training or expertise in
this field and would be prohibited from testifying, in
any event. The estimated cost of such an expert would
be $500.00.

Goodwin’s motion contains “little more than undeveloped

assertions that the requested assistance would be beneficial.”

See Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985)

(internal quotation marks omitted). Goodwin did not present to

the trial court any explanation regarding either the purported

connection between his mental state and his prospects of

rehabilitation or the sort of mitigating evidence relating to his

mental condition that the expert he proposed to hire would

provide.22 Accordingly, Goodwin has not made a sufficient

showing that he was constitutionally entitled to the appointment

of a rehabilitation expert even under the expansive

interpretation of Ake advocated in Liles and Clisby. See Volanty

v. Lynaugh, 874 F.2d 243, 245 (5th Cir. 1989) (holding that a

motion for the appointment of a psychiatric expert based on an

22
Goodwin filed an affidavit of a psychologist explaining
the importance of mental health experts in establishing
mitigating evidence during sentencing along with his federal
habeas petition. Because Goodwin never presented this affidavit
to the trial court and has not demonstrated (1) that good cause
existed for his failure to adequately develop the factual record
of his Ake claim at the state court level and (2) that prejudice
would result from our failure to consider the psychologist’s
affidavit in evaluating his claim, we decline to consider it in
evaluating Goodwin’s Ake claim. See Livingston v. Johnson, 107
F.3d 297, 306 n.7 (5th Cir. 1997) (concluding that the court
could not consider an affidavit indicating the usefulness of
hiring a firearms expert when the affidavit had not been
presented to the state habeas court absent a showing of cause and
prejudice); Williams, 989 F.2d at 844 n.10 (“[I]n evaluating an
Ake claim, we should look only to the evidence before the trial
judge at the time he ruled on the request for psychiatric
assistance.”).

60
allegation that the defendant was temporarily insane at the time

of the offense as a result of drug use was insufficient to

support an Ake claim absent additional supporting evidence);

Volson v. Blackburn, 794 F.2d 173, 176 (5th Cir. 1986) (holding

that an attorney’s “conclusional allegation” that his client “was

unable to understand the difference between right and wrong at

the time of the offense” was insufficient to support an Ake

claim).23 Such allegations are insufficient to demonstrate a

need for the assistance of a psychiatric expert. The district

court therefore properly denied Goodwin’s request for habeas

relief on this claim.

23
Goodwin also contends that the trial court’s failure to
grant his motion requesting funding to hire a rehabilitation
expert violated his Sixth and Eighth Amendment rights. Because
Goodwin has not explained how his Sixth Amendment rights were
violated, he has abandoned this claim, and we need not consider
it. See Brinkmann, 813 F.2d at 748.

Goodwin contends that Eighth Amendment jurisprudence
necessitates a broad interpretation of Ake that would require the
appointment of rehabilitation experts in any circumstance in
which the state offers evidence of future dangerousness. He
argues that, “because death is qualitatively different from any
other punishment,” the Eighth Amendment requires a
correspondingly higher degree of reliability in sentencing
determinations that impose death. However, Ake itself involved a
capital sentencing hearing. See Ake, 470 U.S. at 73. As noted
above, Ake does not mandate the appointment of experts in capital
cases in which the state does not offer psychiatric evidence of
future dangerousness. Moreover, to the extent that we are bound
to consider only the facts presented to the trial court in
determining Goodwin’s entitlement to an expert, Goodwin has made
no showing that the appointment of an expert in this case would
have enhanced the reliability of the sentencing determination.

61
 E. Constitutionality of Article 8.04(a)
of the Texas Penal Code

Goodwin argues that section 8.04(a) of the Texas Penal Code,

which provides that “[v]oluntary intoxication does not constitute

a defense to the commission of crime,” TEX. PEN. CODE ANN. §

8.04(a) (Vernon 1994), is unconstitutional and that its effect on

his trial entitles him to habeas relief on two bases. First,

Goodwin contends that the statute unconstitutionally restricted

the jury’s consideration of evidence of his intoxication that

would have disproven the existence of the specific intent element

of capital murder as defined by Texas law.24 Second, he contends

that the statute operated to preclude the trial court’s

submission of a lesser-included offense instruction to the jury

in contravention of Beck v. Alabama, 447 U.S. 625 (1980). Both

arguments lack merit.

24
Section 19.03(a)(2) of the Texas Penal Code provides in
relevant part that a person commits capital murder if he
“intentionally commits the murder in the course of committing or
attempting to commit kidnapping, burglary, robbery, aggravated
sexual assault, arson, or obstruction or retaliation.” TEX. PEN.
CODE ANN. § 19.03(a)(2) (Vernon 1994). Conviction of capital
murder requires proof that the accused had the specific intent to
kill. See Livingston v. State, 739 S.W.2d 311, 336 (Tex. Crim.
App. 1987).

62
 1. Statutory preclusion of voluntary
intoxication defense

Goodwin’s claim that section 8.04(a) unconstitutionally

precluded the jury from considering evidence of Goodwin’s

voluntary intoxication in determining whether he had the specific

intent necessary to commit capital murder is foreclosed by the

Supreme Court’s recent decision in Montana v. Egelhoff, 116 S.

Ct. 2013 (1996). In Egelhoff, the Court upheld a Montana statute

which provides, in relevant part, that voluntary intoxication

“may not be taken into consideration in determining the existence

of a mental state which is an element of [a criminal] offense,”

MONT. CODE ANN. § 45-2-203 (1997), against a due process attack

identical to the one advanced by Goodwin. See id. at 2024

(Scalia, J., plurality opinion); id. at 2026 (Ginsberg, J.,

concurring). In that case, the petitioner challenged his

conviction of deliberate homicide on the ground that the Montana

statute precluded him from offering evidence of his voluntary

intoxication that would have proven that he did not “purposely”

or “knowingly” cause the death of another person. Id. at 2016-17

(Scalia, J., plurality opinion). The Court rejected this

argument on the ground that the Montana statute “does not offend

a ‘fundamental principle of justice,’ given the lengthy common-

law tradition [prohibiting the defense of voluntary

intoxication], and the adherence of a significant minority of the

States to that position today.” Id. at 2025 (Ginsburg, J.,

concurring); see also id. at 2017-20 (Scalia, J., plurality

opinion) (chronicling the common law’s historical treatment of

63
voluntary intoxication and listing the ten states that retain the

historical prohibition on the defense).25 Goodwin advances the

same argument as the petitioner in Egelhoff: that section

8.04(a) violated his right to due process by prohibiting him from

offering evidence of his voluntary intoxication in order to

negate the existence of the mens rea necessary to support his

conviction of capital murder under Texas law. This claim

therefore fails.

2. Statutory preclusion of lesser-
included offense instruction

Goodwin also claims that section 8.04(a) of the Texas Penal

Code prohibited the trial court from submitting to the jury a

lesser included offense instruction on murder in contravention of

Beck, 447 U.S. 625. He argues that, based on evidence of his

voluntary intoxication, the jury could have rationally acquitted

Goodwin of capital murder and convicted him of noncapital murder.

This argument lacks merit.

A defendant is entitled to a lesser-included offense

instruction only if “the facts of the case and the laws of the

State warrant such an instruction." Andrews v. Collins, 21 F.3d

612, 629 (5th Cir. 1994) (internal citation and quotation marks

omitted). The Supreme Court held in Egelhoff that the states are

25
Justice Scalia, writing for himself and three other
justices, concluded that the statute was constitutional on the
ground that it merely operates to exclude relevant evidence in a
manner that offends no “fundamental principle of justice.” See
Egelhoff, 116 S. Ct. at 2017, 2024 (Scalia, J., plurality
opinion). Justice Ginsberg concurred, concluding that the
statute effects a constitutional redefinition of the mens rea
element of criminal offenses under Montana law. See id. at 2024.

64
free to prevent jurors from considering evidence of voluntary

intoxication; Texas has chosen to do so. As such, the laws of

the state foreclose our finding a Beck violation on the basis

that evidence of Goodwin’s voluntary intoxication could have

allowed a reasonable jury to convict him of the lesser-included

offense of murder.26 Because the jury could not consider

evidence of Goodwin’s voluntary intoxication in determining

whether he lacked the specific intent necessary to commit capital

murder but possessed a less culpable mental state that would

allow conviction of murder, the jury could not have rationally

acquitted Goodwin of capital murder and convicted him of

noncapital murder. See Mann v. Scott, 41 F.3d 968, 976 (5th Cir.

1994). Goodwin was therefore not constitutionally entitled to a

lesser-included offense instruction.

V. CONCLUSION

For the foregoing reasons, we grant Goodwin’s request for a

CPC, VACATE that portion of the district court’s judgment denying

habeas relief on Goodwin’s Fifth Amendment claim, and REMAND for

an evidentiary hearing on the issue of whether Goodwin invoked

26
We need not resolve the issue of whether section 8.04(a)
constitutes (1) an evidentiary rule that precludes the
consideration of voluntary intoxication that may be relevant to
determining whether a defendant has the requisite mens rea to
commit a particular Texas offense or (2) a modification of the
definition of mens rea for purposes of Texas offenses that
renders such evidence legally irrelevant, and issue over which
the majority in Egelhoff divided. See Egelhoff, 116 S. Ct. at
2017 (Scalia, J., plurality opinion); id. at 2024 (Ginsburg, J.,
concurring). The laws of the state would not support a lesser-
included offense instruction based on evidence of voluntary
intoxication under either construction of the statute.

65
his Fifth Amendment right to counsel upon being taken to the

Burlington police station. We AFFIRM the judgment of the

district court in all other respects.

66