Miller v. Johnson

Revised February 23, 2000

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 98-10916
__________________

GARRY DEAN MILLER,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

Respondent-Appellee.

______________________________________________

Appeal from the United States District Court for the
Northern District of Texas
______________________________________________
January 5, 2000

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Petitioner Garry Dean Miller, convicted of capital murder in

Texas and sentenced to death, requests from this Court a

Certificate of Appealability (COA) pursuant to 28 U.S.C. §

2253(c)(2). Miller raises several arguments on appeal, including

ineffective assistance of counsel, insufficient evidence to support

an affirmative answer to the second special issue, misleading

penalty phase jury instructions, and prosecutorial misconduct.

Finding that Miller has not made a substantial showing of the
denial of a constitutional right, we DENY the COA.

I. BACKGROUND

Garry Dean Miller was indicted on November 30, 1988, on

charges of the capital murder, murder, and aggravated sexual

assault of April Marie Wilson (April), a child younger than

fourteen years of age, on or about November 11, 1988. Miller was

tried before a jury on a plea of not guilty by reason of insanity.

The facts adduced during the guilt-innocence phase of the

trial are set forth in the Texas Court of Criminal Appeals’

opinion1 on direct appeal and reflect the following: In Miller’s

written confession, he stated that he arose early on the morning of

November 10, 1988, and went to work. At about 11:00 a.m., Miller

went home and prepared lunch for his girlfriend, after which his

girlfriend returned to school and he went to a friend’s house.

Miller subsequently went home and apparently began drinking alcohol

and continued to do so after arriving at his second job at the

Merkel Country Club. After completing his shift, Miller went to a

bar and drank more and played pool. He returned home about 1:30

a.m. on November 11, 1988, knowing that April, a seven-year-old

child, was spending the night there.

Miller did not want to remain at home so he woke April to see

if she wanted to go “riding around.” Eventually, Miller and April

stopped riding around, and April hugged him because he “was

1
Miller v. State, No. 70,989 (Tex.Crim.App. May 12, 1993)
(unpublished).

2
depressed.” Miller “did not know what happened,” but he started

abusing April. He placed April on the tailgate of the truck; even

though she was scared, he told her to remove her clothes. April

was crying, and Miller told her to be quiet. He then removed his

own clothes and raped her using hand lotion as a lubricant. Miller

had to hold April down forcibly and did not stop even though she

told him it hurt. After intercourse, Miller performed oral sex on

April and forced her to perform oral sex on him by holding her head

down. Miller again attempted to have intercourse with her. Miller

panicked and started choking April and hitting her with something

he had picked up from the ground.

April ceased fighting, and Miller, apparently believing she

was dead, used coat hangers to drag her body into some brush.

Miller went back to his home to retrieve April’s belongings to dump

with her body; however, he could not locate the body when he

returned to the scene. Miller “passed out” after again returning

home. Later that morning, the other individuals who lived with

Miller noticed that April was missing. When Miller was asked if he

had seen her, Miller stated that he had not; he then pretended to

look for her. During Miller’s subsequent confession, he expressed

shame and sorrow that he had killed April.

The pathologist who performed the autopsy testified that the

cause of death was “multiple blunt force injuries of the head,

neck, and trunk.” The fractures to the head were such that the

blows had to be delivered with “extreme force,” multiple times.

3
Many contusions and abrasions had been inflicted on April’s face;

her right jaw was fractured, which was consistent with being hit.

There were bruises on and thorns in the ball of April’s foot,

indicating that April had put her foot down, possibly while being

dragged. The pathologist described the appearance of trauma to

both the vaginal and anal canals. In the pathologist’s opinion,

the excessive injuries to both the anal and vaginal cavities were

caused by an object, other than a penis, in excess of five inches.

Based on the above evidence, the jury found Miller guilty of

capital murder.

During the punishment phase of the trial, the trial court

readmitted all evidence admitted during the guilt-innocence phase.

The following additional evidence was introduced during the

punishment phase. The State introduced the testimony of Dr.

Griffith, a psychiatrist, who taught medical school anatomy for

several years before teaching psychiatry. He testified that the

State’s exhibit 87, which depicted April’s genitalia, reflected

that her anal opening was “totally destroyed,” “almost mutilated.”

In Griffith’s opinion, the five-inch tear in her colon could not

have been caused by a penis and was caused by some other foreign

object. In Griffith’s opinion, Miller represented a continuing

threat to society based upon the extremely brutal murder, a murder

“as brutal as [Griffith] [had] ever seen in a child.” Griffith

observed that the murder was totally unprovoked and that Miller was

meticulous during the killing and in his actions following the

4
killing.

During the cross-examination of Griffith, defense counsel

introduced an article from a psychiatric journal that suggested

that no significant difference existed in the accuracy of

diagnostic predictions of future dangerousness of psychiatrists and

those of laymen. Counsel introduced a portion of another article

which recommended that the courts no longer ask experts to opine on

future dangerousness because such opinions lacked reliability.

Dr. Karlson, a psychologist who testified at length on

Miller’s behalf during the guilt-innocence phase of the trial,

testified during the punishment phase that he disagreed with Dr.

Griffith’s assessment that Miller was antisocial. Miller did not

have the typical characteristics of a person with an antisocial

personality, such as a long history of illegal acts prior to the

age of eighteen, problems in school, truancy, cruelty to animals,

petty theft, or a total lack of remorse. Karlson testified that

Miller’s behavior after the murder reflected the confusion of a

troubled and very upset person who was not thinking clearly. In

Karlson’s opinion, Miller could not have consciously,

intentionally, or deliberately planned a rape and murder because he

was acting on “automatic pilot,” during a dissociative episode.

Karlson acknowledged the possibility, however, that Miller

would commit criminal acts of violence in the future that would

constitute a continuing threat to society. He testified that if

Miller were in the same circumstances again, a similar crime could

5
occur, but that the likelihood was extremely small because prior to

the murder Miller was nonviolent. In Karlson’s opinion, Miller had

a tendency to try to please people and did not get angry or express

anger in an appropriate way. In the days and months preceding the

murder, Miller had been under a lot of pressure. Testimony

indicated he was working three jobs, going to school, under

financial pressure, had moved, and the week prior to the murder,

had broken up with a serious girlfriend, someone with whom he was

“very much in love.” In Karlson’s opinion, treatment would

virtually guarantee no recurrence of the violent behavior.

Although Karlson supported capital punishment for career criminals

who lacked remorse, he was not in favor of the death penalty in

this case because Miller, due to his mental disease or defect, was

out of control for a short period of time. Karlson testified that

the solution was confinement and treatment.

Miller also called numerous witnesses to offer testimony in

mitigation of the death penalty. Ms. Townsend, Miller’s former

school teacher, testified Miller was a “fine outstanding young

man.” In Townsend’s opinion, Miller did not commit the crimes

deliberately and would not commit criminal acts of violence in the

future. Miller never violated any of her classroom’s rules. He

was “an extremely good friend, a giver and not a taker,” and was

“just always such a friendly, nice kid, a nice guy always.” She

would have been proud to have him as her son.

Alice Carter, an employee at Camp Butman, worked with Miller

6
for five years and testified that she would ask the jury to

consider that Miller’s conduct was not deliberate. Miller needed

help and a life sentence would be appropriate.

Shirley Ann Miller, Miller’s stepmother, testified that Miller

was not rebellious and was a very caring child who never got out of

line and always “minded.” He did not have violent reactions toward

her and was not disrespectful. She testified that Miller could not

have done something like this deliberately and that Miller would

not commit criminal acts of violence in the future.

Randy Davis testified that Miller was his best friend and that

Miller did not “con” or use him. Davis was aware that Miller drank

and that he had been drinking that night. He testified that Miller

could not have done this deliberately and that alcohol could have

affected his behavior. Davis testified that if Miller got help,

more likely than not, he would not commit violent acts in the

future.

Don Russom, who used to work with Miller at a fire department,

testified that he had never heard of Miller committing antisocial

acts and that although he did not know whether Miller would be a

continuing threat to society, he believed that a life sentence

would be a more appropriate sentence than death.

Roy Smith, a friend of Miller’s family, had known Miller since

Miller was seven or eight years old. Smith testified that as a

“robot,” Miller may have committed the crimes but that he would not

have acted deliberately and that he did not believe that Miller

7
would commit criminal acts of violence in the future.

Miller’s mother, Patricia Edwards, testified that Miller was

a good son, was never violent, and would not do “something like

this again.” Bill Miller, Miller’s father, testified that Miller

did not ever try to “con” people and that he always was more of a

“giver” than a “taker.” Bill Miller testified that he had “a bad

drinking problem” when his son was young and that he had a violent

temper when he was drinking. He would “slap [Miller’s mother]

around” while he was drinking. In his opinion, his son needed

psychiatric treatment and would never repeat this behavior if such

treatment was provided. He did not think that Miller did this

deliberately.

Mickey Edwards, Miller’s stepfather, testified that Miller was

“absolutely trouble free” during the twelve years he had known him.

Miller was obedient and well disciplined. He testified that under

normal conditions, it would be impossible for Miller to have

committed the crimes. He had never seen Miller mistreat an animal.

Miller was “real kind and considerate to animals and people.”

Edwards did not think that Miller would commit criminal acts of

violence in the future.

Following the punishment hearing, the jury answered

affirmatively the special issues regarding the deliberateness of

Miller’s conduct and the probability of his future dangerousness,2

2
Special issue number one asked “[w]as the conduct of
[Miller], that caused the death of the deceased . . . committed
deliberately and with the reasonable expectation that the death of

8
and the court sentenced Miller to death.

On May 12, 1993, the Texas Court of Criminal Appeals affirmed

Miller’s conviction and sentence in an unpublished opinion, and

the Supreme Court denied Miller’s petition for a writ of

certiorari. Miller, through counsel, filed a state application for

a writ of habeas corpus. The trial court issued findings of fact

and conclusions of law, recommending that Miller’s habeas

application be denied. The “findings of fact” consisted of a brief

recitation of the procedural history of the case and a statement

that Miller’s first amended state habeas application did not allege

any new points of error concerning jurisdictional defects or

denials of fundamental constitutional rights or set forth any new

case law that in the court’s opinion would change the opinion of

the Texas Court of Criminal Appeals on direct appeal. The Texas

Court of Criminal Appeals, after reviewing the record, determined

that the findings and conclusions entered by the trial court were

supported by the record and issued a written unpublished order

denying the habeas application.

On May 21, 1998, Miller, through counsel, filed the instant

federal petition for a writ of habeas corpus. The respondent

answered and moved for summary judgment, stating that it believed

that Miller had exhausted state remedies but declining to waive the

the deceased or another would result?” Special issue number two
asked “[i]s there a probability that the defendant . . . would
commit criminal acts of violence that would constitute a continuing
threat to society?”

9
exhaustion requirement.3 The district court heard oral argument on

the summary judgment motion. At the hearing, defense counsel

conceded that as to any one of the alleged instances of ineffective

assistance, he probably had not demonstrated that the ineffective

assistance was “material enough to change the outcome of the

trial.” Counsel argued, however, that the court should assess the

representation as a whole.

Miller filed a response to the motion for summary judgment.

The district court denied Miller’s habeas petition, explaining its

decision in a written order. Miller filed a motion for a COA,

which the district court denied. Miller now requests a COA from

this Court.

II. ANALYSIS

A. STANDARDS OF REVIEW

Miller filed his section 2254 application for habeas relief on

May 21, 1998, which was after the April 24, 1996 effective date of

the Antiterrorism and Effective Death Penalty Act (AEDPA). His

application is therefore subject to the AEDPA. Lindh v. Murphy,

521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).

Under the AEDPA, a petitioner must obtain a COA. 28 U.S.C. §

2253(c)(2). A COA will be granted only if the petitioner makes “a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must

3
“An application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.” § 2254(b)(2).

10
demonstrate that the issues are debatable among jurists of reason;

that a court could resolve the issues [in a different manner]; or

that the questions are adequate to deserve encouragement to proceed

further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct.

3383, 3394 n.4 (1983) (citation and internal quotation marks

omitted). Any doubt regarding whether to grant a COA is resolved

in favor of the petitioner, and the severity of the penalty may be

considered in making this determination. Fuller v. Johnson, 114

F.3d 491, 495 (5th Cir. 1997).

The AEDPA prescribes the following standards of review:

(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect
to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.

§ 2254(d) (emphasis added).

Accordingly, section 2254(d) applies only to issues that have

been adjudicated on the merits in state court.4 In the context of

federal habeas proceedings, a resolution (or adjudication) on the

merits is a term of art that refers to whether a court’s

4
Review is de novo when there has been no clear adjudication
on the merits. Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir.
1997).

11
disposition of the case was substantive, as opposed to procedural.

Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). We must

determine whether Miller’s claims were adjudicated on the merits by

considering these factors: (1) what state courts have done in

similar cases; (2) whether the case’s history suggests that the

state court recognized any ground for not resolving the case on the

merits; and (3) whether the state courts’ opinions suggest reliance

on procedural grounds rather than an adjudication of the merits.

As for the claims that Miller now raises that were raised on

his direct appeal, the Texas Court of Criminal Appeals did hold

that one of the claims, prosecutorial misconduct, was procedurally

barred. In regard to Miller’s state habeas proceedings, the state

did not raise a procedural bar in its answer to Miller’s

application for state habeas relief, and the trial court’s denial

of relief does not expressly mention the imposition of a procedural

bar. After a review of the record, the Court of Criminal Appeals

“denied” Miller’s application for state habeas relief. Under Texas

law a denial of relief by the Court of Criminal Appeals serves as

a denial of relief on the merits of the claim. Ex parte Torres,

943 S.W.2d 469 (Tex.Crim.App. 1997). As such, except for the claim

of prosecutorial misconduct, we are persuaded that the state courts

did adjudicate Miller’s claims on the merits.

This Court reviews pure questions of law and mixed questions

of law and fact under § 2254(d)(1) and reviews questions of fact

under § 2254(d)(2). Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th

12
Cir. 1996). Under § 2254(d)(1), “an application of law to facts is

unreasonable only when it can be said that reasonable jurists

considering the question would be of one view that the state court

ruling was incorrect.” Drinkard, 97 F.3d at 769. Thus, this court

“can grant habeas relief only if a state court decision is so

clearly incorrect that it would not be debatable among reasonable

jurists.” Id. State court findings of fact are presumed to be

correct, and the petitioner has the burden of rebutting the

presumption of correctness by clear and convincing evidence.

Section 2254(e)(1).

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Miller raises nine claims of ineffective assistance of

counsel, stating that he is offering these examples as a “general

cross-section of the record as a whole.” The district court

determined that all Miller’s allegations of counsel’s deficient

performance were conclusory and that he had failed to make any

specific demonstration of prejudice as a result of counsel’s

deficient performance. Miller fails to challenge the district

court’s conclusion on appeal. This Court has made clear that

conclusory allegations of ineffective assistance of counsel do not

raise a constitutional issue in a federal habeas proceeding. Ross

v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). “In the absence

of a specific showing of how these alleged errors and omissions

were constitutionally deficient, and how they prejudiced his right

to a fair trial, we [can find] no merit to these [claims].”

13
Barnard v. Collins, 958 F.2d 634, 642 (5th Cir. 1992).

In regard to three of the nine claims of ineffective

assistance, the entire text of Miller’s argument is simply that

“[t]rial counsel failed to preserve error for appellate review.”

He then provides approximately twenty-nine cites to the record.

Because Miller failed to set forth the nature of any of the errors

trial counsel purportedly failed to preserve and did not assert any

resulting prejudice, the district court properly determined that

these three claims of ineffective assistance were conclusory.

As to the remaining six claims of ineffective assistance, the

district court also addressed the merits of the claims, and,

exercising an abundance of caution, we will do the same. To

prevail on an ineffective assistance of counsel claim, Miller must

show that his counsel’s performance was deficient and that the

deficiency prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). The complete argument

set forth in regard to his fourth allegation of ineffective

assistance is that his attorney “denigrated and withdrew

Appellant’s Motion to Transfer Venue.” A review of the record

indicates that Miller filed a motion for change of venue, arguing

that he could not obtain a fair trial because of publicity prior to

trial and local prejudice. The motion was supported by an

affidavit signed by counsel’s secretary and Miller’s sister-in-law.

Subsequently, counsel attempted to withdraw the motion but the

trial court refused.

14
 We agree with the district court’s conclusion that Miller

failed to demonstrate that his counsel’s actions were unreasonable

in light of counsel’s apparent inability to find impartial

witnesses to support the motion. Moreover, Miller has not shown

that a re-urged motion would have been granted in the absence of

any supporting evidence.

With no elaboration, Miller next claims that counsel

“attempted to make an objection to the State’s voir dire regarding

probation or parole ramifications on sentencing and never does

articulate an appropriate objection so that the trial court can

rule.” The record indicates that counsel filed a motion in the

trial court, and the essence of counsel’s argument was that the

prosecutor should be prohibited from implying that if Miller

received a life sentence, he would be eligible for parole within a

short period of time. The trial court denied the motion, stating

that it would not “restrict either party in the voir dire

examination from [discussing] the full range of punishment.” The

court noted, however, that the issue of parole was not part of the

court’s ruling as to the motion. The court observed that the issue

of parole was not properly raised in other cases and the court did

not know why this case would be an exception.

As the district court recognized, counsel made a motion and

obtained a ruling on that motion. Indeed, in response to counsel’s

motion, the court made clear that parole was not a proper issue for

voir dire. Miller has not demonstrated that counsel’s performance

15
was deficient or that he was prejudiced.

Miller next asserts that the prosecutor “interjected his

belief that putting Appellant to death is proper. Trial counsel

objected and his objection was sustained but [counsel] did not go

further to perfect this point for appeal.”

During the individual voir dire of juror Jay Baccus, the

prosecutor stated the following:

I believe the evidence will show that she was
raped, vaginally and anally; do you see?

. . . .

And during the commission of this rape
that she was murdered. I believe the evidence
will show that she was choked but she didn’t
die, that she was bludgeoned with a blunt
instrument until her head was crushed. I
believe the evidence will show that, and I
believe if selected as a juror that is what
you will hear. I believe that if you believe
that beyond a reasonable doubt that is what
the evidence is, I believe that you too would
believe that Garry Dean Miller needs to be
killed; do you see?

Defense counsel objected, arguing that the prosecutor’s statements

assumed facts not in evidence and were an attempt to commit the

juror to a course of action. The court sustained the objection.

The court instructed Baccus that no one was “trying to tie you down

to making a decision today. You can’t do it because you don’t have

any evidence in front of you.” The prosecutor then stated to the

juror that he “certainly [was] not trying to commit you to

anything.”

After additional questioning, the prosecutor asked the juror

16
if he would be able to return an affirmative answer to the issue of

Miller’s future dangerousness based solely upon the instant crime.

Defense counsel again objected, and the court ruled that the

prosecutor had a right to delve into the special issues. Counsel

obtained a running objection. The juror responded that he would be

able to answer yes as to future dangerousness based solely upon the

instant crime. The prosecutor then stated, “I believe you can. I

believe you can and I believe under the evidence that you will if

selected as a juror.” Defense counsel again objected, and the

court sustained the objection. Counsel asked the court to instruct

the juror to disregard the prosecutor’s last comment. In response

to counsel’s request, the court again instructed the juror that he

should not be tied down to a specific course of conduct because he

could not make a decision at that point.

The district court reasoned that if Miller’s claim was that

counsel should have objected on the ground that the prosecutor

improperly was stating his personal opinion, the claim lacked merit

because the prosecutor was stating that the evidence would support

a death-sentence verdict, which was not improper under Texas law.

The court reasoned that because any objection on this basis would

have been overruled, Miller was not prejudiced. Citing Miller v.

State,5 the court further reasoned that even assuming the comments

5
741 S.W.2d 382, 391 (Tex.Crim.App. 1987) (noting general
rule that there must usually be a timely, proper, and specific
objection to the prosecutor’s jury argument for a defendant to
preserve the complaint for appellate review, but also noting
exception that improper argument may present a Fourteenth Amendment

17
violated due process, trial counsel was not ineffective for failing

to preserve error because prosecutorial misconduct that rises to

the level of a due process violation does not require an objection

to be preserved for appeal under Texas law.

The district court reasoned, alternatively, that if Miller’s

claim was that counsel should have preserved for appeal the

objection that counsel did make, the claim still failed because

reasonable counsel could have decided that the first comment by the

prosecutor was not so prejudicial after the objection was sustained

that a curative instruction was necessary. The district court also

concluded that the prosecutor did not actually seek a commitment

from the juror, but stated only that he believed that the evidence

would convince the juror that Miller needed to be sentenced to

death. The district court reasoned that the prosecutor’s second

statement that he believed that the juror would find future

dangerousness under the evidence again did not seek to commit the

juror. As to this second comment, defense counsel did request an

instruction but the court refused to give an instruction. The

district court properly found that Miller has shown neither

deficient performance nor prejudice.

Miller argues that trial counsel was ineffective in failing to

object to the introduction of the State’s exhibit 95, Officer

Drumheller’s offense report. The State recalled Officer Drumheller

due process claim if the prosecutor’s argument so infected the
trial with unfairness as to make the resulting conviction a denial
of due process)).

18
during the guilt-innocence of the trial, who testified as to the

requirements of a business record for State’s exhibit 95, a Texas

Department of Public Safety data sheet, containing handwritten and

typewritten information regarding Miller and the instant crime.

Drumheller testified that he maintained the forms in the regular

course of business of the Texas Department of Public Safety. After

the State offered the exhibit, defense counsel stated that he had

no objection, “subject to prior agreement.” Drumheller then

testified as to various statements Miller made to him regarding his

physical and mental condition, which questions and answers,

Drumheller testified, were accurately reflected in the exhibit.

Defense counsel then cross-examined Drumheller.

The district court determined that defense counsel apparently

had reached an agreement with the State not to oppose the admission

of the document. Although the agreement was not reflected in the

record, the court presumed that counsel’s conduct fell within the

range of reasonable assistance, “especially in the case of a

conscious and informed decision of trial strategy.” The court

further noted that Miller made no attempt to demonstrate why the

document was objectionable.

Miller does not explain on appeal on what ground counsel could

have objected or argue that the result of the trial was rendered

unreliable as a result of counsel’s failure to object. Miller has

shown neither deficient performance nor prejudice.

Miller also argues that his counsel failed to object to the

19
prosecutor’s statement to the venire panel that a verdict of not

guilty by reason of insanity allows the accused to “walk” away

“totally free,” despite the fact that the prosecutor’s statements

violated Tex. Code Crim. P. Ann. art. 46.03 § 1(e). During voir

dire, the prosecutor stated that, “if you are insane at the time of

the commission of the offense, sane at the time of trial you walk.

You are through, a complete and total defense.” Defense counsel

did not object. Defense counsel did, however, state later during

voir dire that:

[The prosecutor] said temporary insanity. If
you return a verdict of temporary insanity
Gary Miller walks. That’s not true. That is
a totally incorrect statement of the law. He
does not walk. He is subject to psychiatric
incarceration, supervised by the statutes.

Thereafter, defense counsel commented on the issue of temporary

insanity as follows:

Let’s go back to temporary insanity just a
minute. This imposes three types of
considerations on the jury: Number one, it
imposes an issue on you individually on how
you feel about temporary insanity. Because if
it is brought up, then it must be considered
by you. And the law will require you to
consider it. It is a legal issue because it
is presented as a legal defense. That does
not mean that the defendant walks as [the
prosecutor] said. He does not.

The prosecutor then objected to counsel’s statements as purported

misstatements of the law, and defense counsel responded that they

could “read the statute right now.” The prosecutor then said,

“[r]ead the statute,” and the court responded, “I will instruct the

jury on what the law is with regard to the insanity defense. The

20
jury has already been instructed that the law will come from the

Court.”

Outside the presence of the venire panel, defense counsel and

the prosecutor discussed the issue of the consequences of a verdict

of not guilty by reason of insanity. Defense counsel asked the

court to instruct the jury that the prosecutor misstated the law by

implying that a verdict of not guilty by reason of insanity would

result in Miller going “free as a bird.” The court stated that it

could instruct the jury that neither the prosecutor nor the defense

may inform a juror or prospective juror of the consequences to the

defendant of a verdict of not guilty by reason of insanity. The

court also stated that it could instruct the jury that any comments

made in voir dire by either attorney should be disregarded.

On direct appeal, the Texas Court of Criminal Appeals,

although observing that neither attorney should have commented on

the consequences of a verdict of not guilty by reason of insanity,

held that Miller had not shown prejudice. The court presumed that

defense counsel believed his remark to the venire was strategically

the best method to address the State’s improper comment and that

defense counsel believed that this cured any harm.

Miller has failed to demonstrate that counsel acted

unreasonably. Once the prosecutor made the comments, defense

counsel could have reasonably believed that an objection, at best,

would have resulted in an instruction to disregard, in light of

article 46.03 § 1(e), Tex. Code Crim. P., which prohibits the

21
court, the prosecutor, or defense counsel from informing the jury

of the consequences of an insanity verdict. As the district court

concluded, it was not unreasonable for counsel to believe that

responding to the prosecutor’s remarks would be more effective in

removing any possible taint from the jury than a simple instruction

to disregard. Indeed, by not objecting, counsel used the

opportunity to put before the jury favorable information that he

would not have been allowed to had he made an objection. Defense

counsel used the prosecutor’s misstatement to inform the jury that,

in the event Miller was found not guilty by reason of insanity,

Miller would not be set “free.” Such strategy was not

unreasonable. Miller has not demonstrated that counsel’s

performance was constitutionally deficient.

Miller argues that his counsel was ineffective in failing to

object when the prosecutor asked him on cross-examination if it was

“time to get the needle.” During the cross-examination of Miller,

the following exchange took place:

Prosecutor: Now, Garry, let’s quit this --
this is the first time you have ever pulled a
deal like this, isn’t it?

Miller: No, sir, it’s not the first time I
have cried.

Prosecutor: The first time anybody has ever
seen you?

Miller: You haven’t been over at the jail,
sir, watching me.

Prosecutor: You are scared, aren’t you?

Miller: Yes, sir. I believe anybody would be

22
 scared.

Prosecutor: It’s time to get the needle, isn’t
it?

Miller: Sir, I am testifying because I have to
say what I remember. That’s the reason I am
testifying, sir.

Prosecutor: You are testifying trying to save
your life, aren’t you?

Miller: Sir, I don’t know if I want to live or
die, to be honest with you, sir.

Prosecutor: You want to tell this jury to put
the needle in me, then?

Miller: I will leave that up to them to judge,
sir.

Questioning then continued regarding Miller’s written

confession. On direct appeal, the Texas Court of Criminal Appeals

determined that although the State’s remarks may have been

improper, Miller failed to show how the remarks prejudiced his

defense; the court refused to speculate as to prejudice.

Miller has not provided any argument as to why the questioning

was objectionable or in what specific way his trial was rendered

unreliable by the lack of an objection. The district court

reasoned that the questions were a proper method of impeaching the

purported basis for Miller’s emotional outburst by suggesting that

Miller was crying because of the impending punishment, not because

of his own remorse. Under those circumstances, Miller has failed

to show that counsel’s performance was deficient or that he

suffered any prejudice.

In conclusion, Miller has not made a substantial showing of

23
the denial of a federal right. Miller therefore is not entitled to

a COA on these claims.6

C. SUFFICIENCY OF EVIDENCE TO SUPPORT SPECIAL ISSUE TWO

Miller contends that the evidence was insufficient to support

the jury’s affirmative answer to the second special issue during

the punishment phase, namely, whether there is a probability that

Miller would commit acts of violence constituting a continuing

threat to society beyond a reasonable doubt. He asserts that the

evidence introduced to demonstrate his future dangerousness was

confined largely to the brutal and vicious nature of the murder.

If that is sufficient, he argues, then virtually any murder

involving the aggravated sexual assault of a child would also

support such a verdict.

This Court examines all the evidence in the light most

favorable to the verdict to determine whether any rational trier of

fact could have found the issue in controversy to have been proven

beyond a reasonable doubt. Callins v. Collins, 998 F.2d 269, 276

(5th Cir. 1993). We apply this standard looking to the state’s

substantive law, giving great weight to the state court’s

determination. Foy v. Donnelly, 959 F.2d 1307, 1313-14 (5th Cir.

6
Miller further argues that the “cumulative effect of
numerous errors of counsel rendered counsel’s performance
inadequate.” As set forth above, Miller has not demonstrated error
by trial counsel; thus, by definition, Miller has not demonstrated
that cumulative error of counsel deprived him of a fair trial. See
Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993) (explaining
that because certain errors were not of constitutional dimension
and others were meritless, petitioner “has presented nothing to
cumulate”).

24
1992). Under Texas law, although a number of factors may be

considered in making the determination as to future dangerousness,

the facts of the crime alone, if severe enough, can be sufficient

to support the affirmative finding to the special issue. Vuong v.

State, 830 S.W.2d 929, 935 (Tex.Crim.App. 1992).7

On Miller’s direct appeal, the Texas Court of Criminal Appeals

opined as follows:

The evidence was sufficient to support
the jury’s affirmative finding to special
issue number two for numerous reasons. While
some evidence does militate against this
finding (appellant’s clean criminal record),
any such evidence is far outweighed by the
aggravating evidence. The facts of the murder

7
The following is a non-exclusive list of factors:

1. The circumstances of the capital offense,
including the defendant’s state of mind and
whether he was acting alone or with others;

2. The calculated nature of the defendant’s
conduct;

3. The deliberateness exhibited in the
execution of the crime;

4. The existence and severity of any
previous offenses committed by the defendant;

5. The defendant’s age and personal
circumstances at the time of the offense;

6. Whether, at the time of the offense, the
defendant was acting under duress or the
dominion of another;

7. Psychiatric evidence; and

8. Character evidence.

Vuong, 830 S.W.2d at 934-35.

25
 itself show that appellant was just shy of
twenty-one years of age, whereas, the victim
was only seven. While these facts do not
indicate that the murder was premeditated,
they do illustrate that appellant brutally
raped the victim, vaginally and anally, before
he very deliberately and repeatedly choked and
beat her to death. Further, while still
working alone, appellant attempted to conceal
the murder and faked concern by appearing to
help look for the girl when she was reported
missing. Additionally, while allegedly
mitigating evidence of appellant’s good
behavior in school, work, and prison was
presented, evidence was also presented that
appellant could be “violent and disruptive
when`crossed.’” Finally, psychiatric evidence
was presented by Dr. E. Clay Griffith that,
based upon the brutal facts of the murder, the
attempt at concealing the occurrence, and the
subsequent lying to maintain the charade,
there was every reason to believe that some
sort of violence would occur again in the
future. Viewed in its entirety the evidence
was such that a rational trier of fact could
have found beyond a reasonable doubt that
appellant would probably commit criminal acts
of violence that would constitute a continuing
threat to society.

The evidence in this case is that Miller acted alone and that

his conduct in committing the crime was very deliberate. The

pathologist testified that the cause of death was multiple blunt

force injuries of the head, neck, and trunk. The fractures to the

head were such that the blows had to be delivered with extreme

force and multiple times. Numerous contusions and abrasions had

been inflicted on the seven-year old victim’s face; her right jaw

was fractured, and there were injuries on the ball of her foot,

indicating that she had put her foot down, possibly while being

dragged. She sustained excessive injuries to both the anal (a

26
five-inch tear in her colon) and vaginal cavities that, in the

pathologist’s opinion, were caused by an object, other than a

penis, in excess of five inches.

Dr. Griffith, a psychiatrist called by the State, testified

that it was his opinion that Miller represented a continuing threat

to society based upon the extremely brutal murder, a murder “as

brutal as [Griffith had] ever seen in a child.” Griffith observed

that the murder was totally unprovoked and that Miller was

meticulous during the killing and as to his actions following the

killing.

Also, the defense called a psychologist, Dr. Karlson, who

testified that Miller had committed the crimes during a

dissociative episode. Karlson disagreed with Griffith’s conclusion

that Miller had an antisocial personality. He did not believe that

Miller consciously, intentionally, or deliberately planned a rape

and murder because he was acting on “automatic pilot.” Karlson did

however acknowledge the possibility that Miller would commit

criminal acts of violence in the future, but he thought there was

little likelihood of future violence because prior to the murder

Miller was nonviolent. Karlson believed that treatment would

virtually guarantee that Miller would not continue to commit

violent acts.

Although there was some evidence militating against a finding

of future dangerousness, the evidence must be viewed in the light

most favorable to the verdict. Here, the evidence of Miller’s

27
deliberateness and brutality in the execution of this heinous

crime, coupled with the psychiatric testimony, amply support an

affirmative finding to the issue of future dangerousness. See

Vuong, 830 S.W.2d at 935 (explaining that crime was of such a

calculated and brutal nature that, even without expert psychiatric

testimony and prior extraneous offenses, a rational jury could have

found that the defendant was a continuing threat to society).

Miller has failed to make a substantial showing of the denial of a

federal right. Indeed, the state court’s conclusion that the

evidence was sufficient to support an affirmative finding regarding

Miller’s future dangerousness did not result in a decision that was

contrary to, or involve an unreasonable application of clearly

established federal law, as determined by the Supreme Court of the

United States. 28 U.S.C. § 2254(d)(1).

D. JURY INSTRUCTIONS REGARDING EFFECT OF A “NO” VOTE

At the punishment phase, the jurors were instructed that if

all twelve jurors find that the State has proven a special issue

beyond a reasonable doubt, the presiding juror will record the

jury’s answer of “yes.” The charge instructed that if ten or more

jurors vote “no,” then the answer of the jury shall be “no” to that

special issue.

Miller argues that because the jurors were not instructed that

the consequences of a failure to reach either of the above two

options was a life sentence,8 the risk that one or more jurors

8
The Texas Code of Criminal Procedure expressly prohibited

28
would change a vote to satisfy the majority is too great to pass

muster under the Eighth Amendment. More specifically, he contends

that the charge mislead the jury regarding the effect of a “no”

vote by a single juror as to either special issue.9 He asserts

that the jurors were instructed that they had only two options:

either the jurors would unanimously agree to answer all of the

special issues affirmatively, which would result in the imposition

of a death sentence; or at least ten jurors would agree to answer

one or more of the special issues negatively, which would result in

the imposition of a life sentence.

Contrary to Miller’s assertion, the jury at his trial was

instructed what to do if they did not reach agreement as set forth

in the charge. The jury instructions provided that if there was

any special issue on which the vote of the jurors was not

unanimously ‘yes’ or not at least ten in favor of an answer of

‘no,’ there should be no answer for that special issue and the

presiding juror should not sign his or her name to any answer form

informing the jury of the effect of a failure to agree on the
special issues. Tex. Code Crim. Proc. Ann. Art. 37.071 § 2(a).
9
In support of this contention, Miller refers to two notes
the jury sent to the court during deliberations. The first note
inquired whether “[i]f the jury votes once on an issue without an
acceptable conclusion of either 12 yes or 10 no, do we stay in
deliberation until a conclusion is reached or do we turn the charge
in unsigned?” In the second note, the jury asked the following
questions, “[i]f we do not reach a decision[:] What happens? hung
jury? retrial?” The judge gave the following response to both
notes: “[y]ou are instructed that all of the law to which you are
entitled is contained in the Court’s Charge. Please refer to the
Court’s charge.”

29
for that special issue.

Nevertheless, relying on Mills v. Maryland, 486 U.S. 367, 108

S.Ct. 1860 (1988), Miller asserts a reasonable juror could have

believed that their individual vote was not meaningful unless some

threshold number of jurors were in agreement on that particular

special issue. This claim will afford Miller no relief.

In Mills, the Supreme Court held that the Eighth Amendment was

violated because the jury instructions may have precluded the jury

from considering mitigating evidence unless all twelve jurors

agreed that a particular circumstance was supported by the

evidence. 486 U.S. at 384, 108 S.Ct. at 1870. Subsequent to

Mills, the Supreme Court has explained that “Mills requires that

each juror be permitted to consider and give effect to mitigating

evidence when deciding the ultimate question whether to vote for a

sentence of death.” McKoy v. North Carolina, 494 U.S. 433, 442-43,

110 S.Ct. 1227, 1233 (1990).

This Court has explained that Mills is not applicable to the

capital sentencing scheme in Texas. We have concluded that

“[u]nder the Texas system, all jurors can take into account any

mitigating circumstance. One juror cannot preclude the entire jury

from considering a mitigating circumstance.” Jacobs v. Scott, 31

F.3d 1319, 1329 (5th Cir. 1994). “Mills does not require a certain

number of jurors to agree to impose the death penalty.” Id.

Miller’s jury was instructed in conformity with Texas law. In

light of our precedent, Miller has not made a substantial showing

30
of the denial of a constitutional right. Moreover, our precedent

precludes him from demonstrating that the state court’s resolution

of this claim involved an unreasonable application of clearly

established federal law as determined by the Supreme Court.

E. PENRY CLAIM

Miller argues that the jury charge did not allow the jury to

express a proper moral reaction to the mitigating evidence. He

contends that the evidence that he was suffering from a severe

mental illness, a dissociative episode, during the offense, should

have been considered by the jury during its deliberations on

punishment. He argues that the charge instructed that the jury

could not consider such evidence as sufficient to answer negatively

on either punishment issue. Miller argues that the jury

instructions were unconstitutional under Penry v. Lynaugh, 492

U.S. 302, 109 S.Ct. 2934 (1989).

Miller requested, but was denied, the following instruction on

punishment, “[a]ny evidence that is concluded mitigating against

the imposition of the death penalty may be sufficient to require a

no answer to the issues.” The jury was instructed, in part, as

follows:

You are instructed that if you return an
affirmative finding on each of the special
issues submitted to you, the Court shall
sentence the defendant to death. You are
further instructed that if you return a
negative finding on any special issue
submitted to you the Court shall sentence the
Defendant to the Texas Department of
Corrections for life. You are therefore
instructed that your answers to the special

31
 issues which determines the punishment to be
assessed the Defendant by the Court should be
reflective of your finding as to the personal
culpability of the Defendant, Garry Dean
Miller, in this case.

You are instructed that when you
deliberate on the questions posed to you in
the special issues you are to consider
mitigating circumstances, if any, supported by
the evidence presented in both phases of the
trial whether presented by the State or by the
Defendant. A mitigating circumstance may
include but is not limited to any aspect of
the Defendant’s character and record or
circumstances of the crime which you believe
could make a death sentence inappropriate in
this case. If you find that there are any
mitigating circumstances in this case you must
decide how much weight they deserve, if any,
and thereafter give effect and consideration
to them in assessing the Defendant’s personal
culpability at the time you answer the special
issue. If you determine when giving effect to
the mitigating evidence, if any, that a life
sentence as reflected by a negative finding to
the issue under consideration rather than a
death sentence is an appropriate response to
the personal culpability of the Defendant a
negative finding should be given to the
special issue under consideration.

(emphasis added).

The jury at the punishment phase of a capital case must be

permitted to give effect to any constitutionally relevant

mitigating evidence. See Green v. Johnson, 116 F.3d 1115, 1126

(5th Cir. 1997) (citing Eddings v. Oklahoma, 455 U.S. 104, 112, 102

S.Ct. 869, 875 (1982)). In Penry, the Supreme Court reversed a

death sentence on the ground that, although the evidence regarding

the defendant’s mental retardation and childhood abuse was

presented to the jury at the penalty phase of the trial, the

32
special issues prescribed by Texas statute prevented the jury from

giving mitigating effect to that evidence. Penry, 492 U.S. at 328,

109 S.Ct. at 2952.

On direct appeal, the Texas Court of Criminal Appeals

acknowledged that the mitigating evidence, that Miller was

suffering from a “‘very severe mental disorder’” at the time of the

offense which “‘interfered with his knowing right from wrong,’”

“may or may not have been considered mitigating evidence of the

type contemplated by the Supreme Court in Penry.” The Court

concluded that the trial court’s instruction on mitigating

circumstances provided the jury with an adequate vehicle to express

and to give effect to its “reasoned moral response” to Miller’s

mitigating evidence, if any existed.

In Penry, “[t]he jury was never instructed that it could

consider the evidence offered by Penry as mitigating evidence and

that it could give mitigating effect to that evidence in imposing

sentence.” 492 U.S. at 320, 109 S.Ct. at 2947. The Supreme Court

rejected “the State’s contrary argument that the jury was able to

consider and give effect to all of Penry's mitigating evidence in

answering the special issues without any jury instructions on

mitigating evidence.” Id. at 322, 109 S.Ct. at 2948.

Miller’s jury, unlike Penry’s, was instructed that it should

consider mitigating evidence when deliberating on the special

issues and that a mitigating circumstance may include, but is not

limited to, any aspect of Miller’s character and record or

33
circumstances of the crime which the jury believed could make a

death sentence inappropriate. The jury was instructed that if it

identified any mitigating circumstances, it should weigh them and

give effect and consideration to them in assessing Miller’s

personal culpability. The jury was instructed that if it

determined when giving effect to the mitigating evidence, if any,

that a life sentence rather than a death sentence was an

appropriate response to Miller’s personal culpability, a negative

finding should be given to the special issue under consideration.

Miller has not demonstrated that his requested instruction was

required under Penry or that the challenged instructions were

barred by Penry. He has not shown that the jury was prevented from

considering the evidence of his dissociative condition at the time

of the offense. Therefore, we conclude that he has not made a

substantial showing of the denial of a constitutional right.

F. INFORMING JURY REGARDING PAROLE ELIGIBILITY

Miller argues that his due process and Eighth Amendment

constitutional rights were violated because the trial court failed

to inform the jury during the punishment phase of the trial that he

would not be eligible for parole for fifteen years if he received

a life sentence. Relying on Simmons v. South Carolina, 512 U.S.

154, 114 S.Ct. 2187 (1994), Miller argues that, had the jury been

informed that a life sentence would require him to spend fifteen

calendar years in prison before becoming eligible for parole, a

member of the panel could have been convinced that he would not

34
pose a future danger.

In Simmons, the Supreme Court held that if the defendant’s

future dangerousness is at issue and state law prohibits the

defendant’s release on parole, due process requires that the

sentencing jury be informed that the defendant is ineligible for

parole. 512 U.S. at 156, 114 S.Ct. at 2190. This Court has

explained that Simmons requires that a jury be informed about a

defendant's parole ineligibility only when (1) the state argues

that a defendant represents a future danger to society, and (2) the

defendant is legally ineligible for parole. Allridge v. Scott, 41

F.3d 213, 222 (5th Cir. 1994) (footnote omitted). Miller concedes

that Simmons is distinguishable because Simmons was not eligible

for parole and “would have effectively spent his natural life in

the penitentiary.” More to the point, because Miller would have

been eligible for parole under Texas law if sentenced to life, we

find his reliance on Simmons “unavailing.” Id.

In addition to asserting a due process claim, Miller argues

that the jury should have been instructed as to parole eligibility

in regard to a life sentence under the Eighth Amendment. “We have

consistently held, however, that neither the due process clause nor

the Eighth Amendment compels instructions on parole in Texas.”

Johnson v. Scott, 68 F.3d 106, 112 (5th Cir. 1995).

Once again, in light of this Court’s precedent, Miller has not

made a substantial showing of the denial of a constitutional right

with respect to this claim. Further, he cannot show that the state

35
court’s denial of relief on this claim involved an unreasonable

application of clearly established federal law as determined by the

Supreme Court.

G. PROSECUTORIAL MISCONDUCT

Miller argues that an erroneous statement of law by the

prosecutor during voir dire as to the consequences of a verdict of

not guilty by reason of insanity violated his constitutional

rights. As discussed above in the context of an ineffective

assistance of counsel claim, during voir dire, the prosecutor

stated, “you see, if you are insane at the time of the commission

of an offense, sane at the time of trial you walk. You are

through, a complete and total defense.”

As Miller asserts, under Tex. Code Crim. Proc. Ann. art. 46.03

§ 1(e), “[t]he court, the attorney for the state, or the attorney

for the defendant may not inform a juror or prospective juror of

the consequences to the defendant if a verdict of not guilty by

reason of insanity is returned.” On Miller’s direct appeal, the

Texas Court of Criminal Appeals opined that “[a]s no timely

objection was made, nothing has been preserved for our review.”

The court below therefore held that this claim was

procedurally barred. If a state court has explicitly relied on a

procedural bar, a state prisoner may not obtain federal habeas

relief absent a showing of cause for the default and actual

prejudice that is attributable to the default. Coleman v.

Thompson, 111 S.Ct. 2546, 2565 (1991). Miller does not

36
specifically argue that he has shown cause and prejudice sufficient

to lift the procedural bar. Nevertheless, as discussed previously

in a separate argument, he does contend that counsel rendered

ineffective assistance by failing to object to these remarks.

Because we have determined that counsel did not render ineffective

assistance, Miller cannot demonstrate cause and prejudice to

overcome the procedural bar. Miller has not made a substantial

showing of the denial of a constitutional right and is not entitled

to a COA on this claim.

In sum, Miller has not shown that any of his claims are

debatable among jurists of reason, that a court could resolve the

issues in a different manner, or that the questions are adequate to

deserve encouragement to proceed further. Drinkard, 97 F.3d 751,

755-56 (5th Cir. 1996). Because Miller has failed to make a

substantial showing of the denial of a constitutional right, we

DENY his request for a COA.

DENIED.

37