IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20384
Summary Calendar
ELZIA ALLEN RICHARDSON,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-1865
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June 26, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
The district court denied habeas corpus relief to Elzia Allen
Richardson, Texas state prisoner # 522518, and he appeals. We
AFFIRM.
After the district court denied Richardson a certificate of
appealability (COA), a judge of this court granted him a COA,
limited to the issue of whether the Texas Court of Criminal Appeals
unambiguously based its dismissal of his state habeas petition on
a procedural bar. Richardson has in effect abandoned this point by
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-20384
-2-
failing to brief it. See Al-Ra’id v. Ingle, 69 F.3d 28, 33 (5th
Cir. 1995); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Additionally, “[w]e may affirm a judgment on any ground
supported by the record.” Emery v. Johnson, 139 F.3d 191, 195 (5th
Cir. 1997), cert. denied, 525 U.S. 969 (1998). Richardson’s habeas
claim is that the state trial court denied him due process by
overruling his challenge of venireperson Emma Lopez for cause. She
served on the jury, however, because Richardson used his peremptory
challenges to excuse ten other venirepersons. The defense did not
ask the court for an additional peremptory challenge or object to
the jury as it was ultimately constituted.
Under the law of Texas, “[i]n order to preserve error on a
challenge for cause [to a prospective juror], the defendant must
exhaust his peremptory challenges, request additional peremptory
challenges, identify a member of the jury as objectionable, and
claim that he would have struck the juror with a peremptory
challenge.” Broussard v. State, 910 S.W.2d 952, 956-57 (Tex. Crim.
App. 1995) (en banc). The record shows that Richardson’s counsel
complied with only the first of these requirements.
On similar facts, this court has affirmed the denial of habeas
relief to another Texas prisoner. Callins v. Collins, 998 F.2d
269, 277 (5th Cir. 1993). Because Richardson clearly was not
denied due process by Lopez’s serving on his jury and since he has
failed to argue the COA issue, the district court’s denial of
habeas relief to him is due to be affirmed.
JUDGMENT AFFIRMED.