United States Court of Appeals
Fifth Circuit
F I L E D
September 9, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-50031
Summary Calendar
ENRIQUE ESTRADA, JR.,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-1072-EP
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Enrique Estrada, Jr., a Texas prisoner, appeals from the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus
petition, in which he challenged his 1997 jury-trial conviction
of two counts of indecency with a child, his daughter. The jury
assessed sentences of 10 years in prison. The district court
granted Estrada a certificate of appealability on his federal
habeas claims that: (1) his jury instructions were
*
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that this opinion should not be published and is not precedent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. 03-50031
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unconstitutional in that they permitted the jury to convict him
upon less-than-unanimous agreement as to which conduct
constituted the offense; (2) appellate counsel performed
ineffectively by failing to raise the jury-instructions on direct
appeal; and (3) the trial court improperly admitted into evidence
an inculpatory statement taken from Estrada, allegedly in
violation of his rights under Miranda v. Arizona, 384 U.S. 436
(1966), and Edwards v. Arizona, 451 U.S. 477 (1981).
Federal habeas relief may not be granted upon any claim that
was “adjudicated on the merits in State court” unless the
adjudication “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.” 28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 529
U.S. 362, 409 (2000).
Estrada, who was a U.S. Army sergeant at the time of the
offense, argues that his jury charge violated state and military
law as well as the Constitution, because the indictment counts
charged in the conjunctive that he performed three distinct acts
against his daughter that constituted the indecency offense,
whereas the jury was instructed in the disjunctive that it could
find him guilty if he committed any one of the three charged
acts. Habeas relief under 28 U.S.C. § 2254 is reserved for
vindication of federal constitutional rights. See Martinez v.
Johnson, 255 F.3d 229, 246 (5th Cir. 2001). The Supreme Court
has not held that the Constitution imposes a jury unanimity
requirement. See Hoover v. Johnson, 193 F.3d 366, 368 & n.2 (5th
No. 03-50031
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Cir. 1999) (citing Richardson v. United States, 526 U.S. 813, 821
(1999)). A trial court is authorized to instruct a jury that it
may find that the defendant committed an offense by one or more
specified means, even if the offense is charged in the
conjunctive. See Schad v. Arizona, 501 U.S. 624, 631 (1991);
Capps v. Collins, 900 F.2d 58, 59 n.2 (5th Cir. 1990) (“Use of
the conjunctive rather than the disjunctive in the indictment did
not oblige the state to prove both.”). The same is true under
Texas state law. See, e.g., Kitchens v. State, 823 S.W.2d 256,
258 (Tex. Crim. App. 1991); Cruz v. State, 742 S.W.2d 545, 546
(Tex. App. 1988).
Because the jury-instruction claim would have been meritless
even under state law, Estrada has not demonstrated either that
appellate counsel performed deficiently by failing to raise the
claim on direct appeal or that he, Estrada, was prejudiced by
such failure. See Strickland v. Washington, 466 U.S. 668, 689-94
(1984); Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994).
Estrada has not established that the state courts unreasonably
applied federal constitutional law in rejecting either of his
claims involving the jury instructions.
Estrada argues that his confession was unconstitutionally
admitted because he was not timely read his rights under Miranda
and because military officials violated his rights under
Edwards by failing to heed his request that his retained attorney
be present during the interrogation. Estrada’s Miranda claim is
meritless. Even if it is assumed arguendo that Miranda warnings
should have been given to him by his commanding officer when the
No. 03-50031
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commanding officer told him to meet with U.S. Criminal
Investigations Command (“CID”) Special Agent Mathius Kraus, any
technical violation of Miranda by the officer was harmless
because Estrada subsequently was properly informed of his rights
under Miranda and waived those rights prior to confessing. See
Oregon v. Elstad, 470 U.S. 298, 318 (1985) (suspect who made
inculpatory but voluntary statement that was “technically in
violation” of Miranda was “not thereby disabled from
[subsequently] waiving his rights and confessing after he ha[d]
been given the requisite Miranda warnings”).
The state courts and the federal courts failed to address
specifically Estrada’s claim that his rights under Edwards were
violated when the CID agent failed to ensure the presence of his
counsel, after Estrada had made a request for counsel to the
sergeant who escorted him to the CID meeting. Such a request
would have been imputable to the CID Agent, Kraus, see Arizona v.
Roberson, 486 U.S. 675, 687-88 (1988); Michigan v. Jackson, 475
U.S. 625, 634 (1986), and would appear to form the basis of a
cognizable Edwards claim given that such request for counsel was
not heeded. See Edwards, 451 U.S. at 484 (“an accused . . .
having expressed his desire to deal with the police only through
counsel, 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”). Such a claim, however, is
subject to harmless-error review. See Arizona v. Fulminante, 499
U.S. 279, 310 (1991). In order to grant federal habeas relief
No. 03-50031
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under such a review, the trial error must have a “‘substantial
and injurious effect or influence in determining the jury’s
verdict.’” Brecht v. Abrhamson, 507 U.S. 619, 637 (1993)
(citation omitted). Although “‘a confession is like no other
evidence’” and “‘is probably the most probative and damaging
evidence that can be admitted against a criminal defendant,’”
Goodwin v. Johnson, 132 F.3d 162, 182 (5th Cir. 1997) (citations
omitted), the admission of Estrada’s statement did not have a
“substantial and injurious effect or influence” because a wealth
of other evidence regarding the charged conduct supported the
jury’s verdict. Accordingly, Estrada cannot show that any
constitutional error with respect to the admission of the
statement was anything other than harmless.
The judgment of the district court is AFFIRMED.