United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 30, 2004
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 02-51354
______________________
ELOY M. GARCIA,
Petitioner-Appellant,
versus
DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
____________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_____________________________________________________
(02:cv:2)
Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
Petitioner Elroy M. Garcia was convicted of murder after a
jury trial in Texas state court and sentenced to 20 years’
imprisonment. He brings the present § 2254 habeas corpus petition,
alleging both that his court-appointed trial counsel provided
constitutionally insufficient representation and that erroneous
jury instructions allowed the jury to convict him of murder based
on a finding of mere reckless or negligent behavior. Because
Garcia does not demonstrate that these alleged errors prejudiced
*
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this opinion should not be published and is not precedent except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.
1
him to the extent necessary to afford him habeas relief, we AFFIRM
the district court’s denial of his § 2254 petition.
I.
On August 23, 1997, the victim, Nelson Elemen, Jr., drove with
his father and a friend to a house where Garcia and his brother,
Martin Garcia, were located. Elemen, Jr. exited his vehicle and
began to argue with Martin Garcia. Eventually a fight erupted, in
which Martin Garcia was knocked to the ground, apparently
unconscious. With Martin Garcia lying on the ground, Elemen, Jr.
began to walk back to his vehicle when Elroy Garcia, who had been
standing behind a bush, shot Elemen, Jr. four times – once in the
shoulder, twice in the stomach, and once in the back. When Elemen,
Sr. exited the vehicle to assist his son, Elroy Garcia shot Elemen,
Sr. in the leg and face. Elemen Jr. died at the scene.
At trial, Garcia did not argue that he did not intend to shoot
Elemen, Jr. but instead argued that the killing was justified
because it was in defense of himself and his brother. Despite
these arguments, the jury convicted him of murder and sentenced
him to twenty years in prison; the conviction and sentence were
affirmed on appeal. Garcia later applied for state habeas relief,
presenting the same claims raised in this petition; state habeas
relief was denied.
Garcia then filed the present § 2254 habeas petition in
federal district court on December 14, 2001, arguing that (1) his
2
indictment was “constructively amended” by his jury charge and that
his trial counsel provided ineffective assistance by not objecting
to this “constructive amendment”; (2) his trial counsel provided
ineffective assistance by not objecting to the improper definitions
of “intentionally” in his jury charge; and (3) that the jury
instructions as a whole improperly allowed the jury to convict him
of murder based on a finding of mere reckless or negligent conduct.
The magistrate who considered the petition recommended that the
district court deny relief on all grounds. The district court
adopted the recommendation and denied relief. Garcia timely
appealed.
II.
Garcia raised the claims before us today in his state habeas
petition, and the state court denied these claims on their merits.
Therefore, we cannot grant Garcia habeas relief unless the state
court “adjudication of the claim 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.”1 “The ‘unreasonable application’ [standard]
requires the state court decision to be more than incorrect or
1
28 U.S.C. § 2254(d)(1).
3
erroneous. The state court's application of clearly established
law must be objectively unreasonable.”2
A.
Garcia first contends that his jury charge “constructively
amended” his indictment. When a jury charge presents a jury with
a theory of a crime that was not charged in the indictment, it has
“constructively amended” the indictment in violation of the Sixth
Amendment, which provides that the accused in a criminal
prosecution has the right “to be informed of the nature and cause
of the accusation” against him.3 Garcia claims that the trial
court in this case violated his constitutional rights by presenting
the jury with a charge that allowed it to convict him of murder
based on a finding that he intended to cause serious bodily injury
and committed an act clearly dangerous to human life that causes
the death of an individual (“Seriously Bodily Injury Murder”),
while his indictment only charged him with intentionally or
knowingly causing the death of an individual (“Intentional
Murder”). He also claims that he received ineffective assistance
from his trial counsel who did not object to the jury charge.
2
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal
citations omitted).
3
See Ricaldy v. Procunier, 736 F.2d 203, 207 & n.4 (5th Cir.
1983) (holding that it is a Sixth Amendment violation “when a
criminal defendant is convicted of a crime he was never charged
with committing”).
4
The indictment in this case charged Garcia only with murder
under Tex. Penal Code § 19.02(b)(1)–Intentional Murder. The
abstract section of the jury charge, however, defined murder both
as Intentional Murder and under Tex. Penal Code §
19.02(b)(2)–Serious Bodily Injury Murder. Notably, the State
presented no evidence or arguments indicating that Garcia committed
Serious Bodily Injury Murder but not Intentional Murder. In
addition, the application section of the jury charge instructed the
jury only to apply the definition of Intentional Murder as charged
in the indictment. Garcia’s counsel did not object to the jury
charge at trial.
“[Garcia] faces an extraordinarily heavy burden [because]
[i]mproper jury instructions in state criminal trials do not
generally form the basis for federal habeas relief."4 In fact,
“[t]he burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack on the
constitutional validity of the state court's judgment is even
greater than the showing required to establish plain error on
direct appeal."5 Garcia must demonstrate that the jury instruction
is “so egregious as to rise to the level of a constitutional
4
Tarpley v. Estelle, 703 F.2d 157, 159 (5th Cir. 1983)
(internal citations omitted).
5
Id. (internal citations and quotations omitted).
5
violation or so prejudicial as to render the trial itself
fundamentally unfair."6
In the particular context of an alleged constructive
amendment, courts “must determine whether the instruction permitted
the jury to convict the defendant on a factual basis that
effectively modified an essential element of the offense charged,”
or if it is “merely another of the flaws that mar [the trial’s]
perfection but do not prejudice the defendant.”7 In making this
determination, the court should examine not just the jury charge,
but the facts permitted in evidence and the arguments of the
parties.8
We hold that the jury charge in this case, combined with the
evidence and arguments presented by the parties, did not permit the
jury to convict Garcia of a crime with which he was not charged.
The jury heard evidence that Garcia shot the victim four times–once
in the shoulder, twice in the stomach, and once in the back–after
the victim pushed down Garcia’s brother and knocked him
unconscious. Garcia based his trial defense on the theory of
self-defense. Garcia did not present evidence that he did not
intend to shoot the victim or that he intended to shoot him but
only to cause significant bodily injury. Instead, Garcia argued
6
Id. (internal citations and quotations omitted).
7
Restivo, 8 F.3d at 279.
8
See id.
6
that he shot the victim in defense of himself and his brother – a
theory that the jury rejected by returning a guilty verdict.
Even assuming that the definition of Serious Bodily Injury
Murder in the abstract section of the jury charge was improper,
based on the evidence presented at trial and the way in which
Garcia argued his case, Garcia has not demonstrated that the jury
instruction permitted the jury to convict him on a factual basis
not charged in the indictment. Accordingly, Garcia has not
demonstrated that the jury instruction was “so egregious as to rise
to the level of a constitutional violation or so prejudicial as to
render the trial itself fundamentally unfair."9
Garcia also claims that he received ineffective assistance
from his trial counsel who did not object to the jury instruction.
According to the familiar standard articulated in Strickland v.
Washington, to demonstrate constitutionally ineffective assistance
of his appointed counsel Garcia must prove both “that counsel’s
performance was deficient” and “that the deficient performance
prejudiced his defense.”10 To demonstrate deficient performance,
Garcia must prove more than a simple mistake by his counsel; Garcia
must overcome the presumption that counsel’s actions did not fall
“below an objective standard of reasonableness.”11 To demonstrate
9
Tarpley, 703 F.2d at 159.
10
466 U.S. 668, 687 (1984).
11
Id. at 688.
7
prejudice, Garcia must prove that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”12
Assuming for the sake of argument both that the jury charge
constructively amended Garcia’s indictment and that Garcia’s
counsel provided ineffective assistance by not objecting to the
amendment, we still reject Garcia’s ineffective assistance claim
because Garcia was not prejudiced by his counsel’s failure to
object to the jury instruction.
For Garcia’s claim to succeed, we must find that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. In
other words, we must ask “whether, from all of the evidence, the
jury could have had a reasonable doubt concerning [Garcia]’s intent
to kill, and could have convicted him of intent to cause serious
bodily injury.”13 As explained above, the evidence presented in
this case, taken as a whole, indicates that there is not a
reasonable probability that the jury convicted Garcia of Serious
Bodily Injury Murder but did not believe that he committed
Intentional Murder. Accordingly, counsel’s failure to object to
the inclusion of the allegedly erroneous jury instruction did not
prejudice Garcia because there is not a reasonable probability
12
Id. at 694.
13
Ricalday v. Procunier, 736 F.2d 203, 208 (5th Cir. 1984).
8
that, but for the error, the result of the proceeding would have
been different.
B.
Garcia next claims that his trial counsel was ineffective
because he failed to object to the definitions contained in the
jury charge. Specifically, he argues that the jury instruction
stated that “intentionally” could refer, not just to the result of
Garcia’s conduct, but to the conduct itself. Garcia argues,
therefore, that the jury could have relied on erroneous
instructions and convicted Garcia based on a belief that Garcia
intended to “pull the trigger” but did not intend to kill his
victim.
A federal habeas court reviewing an improper jury instruction
in a criminal trial must ask “whether the ailing instruction by
itself so infected the entire trial that the resulting conviction
violates due process, not merely whether the instruction is
undesirable, erroneous, or even universally condemned.”14 Courts
should “[l]ook[] at the charge as a whole and in the context of
trial, including the arguments of counsel” in order to determine if
“there is [any] reasonable likelihood that the jury applied the
construction in a constitutionally impermissible way.”15 For the
reasons discussed above in the context of the constructive
14
Kinnamon v. Scott, 33 F.3d 462, 465 (5th Cir. 1994).
15
Id. (internal citations and quotations omitted).
9
amendment, even assuming that the jury instructions in this case
are improper, we hold that they do not rise to the level
necessitating habeas relief.
In order for Garcia’s claim to succeed, a reasonable jury
would have had to believe that Garcia shot his victim four times,
including once in the back, but did not intend to kill him. In
addition, the jury must have believed this even though Garcia never
argued that he did not intend to kill the victim, but instead
argued that he killed the victim in self-defense. Looking at the
evidence and arguments presented at trial, we hold that there is no
“reasonable likelihood” that the jury applied its instructions in
a constitutionally impermissible way. Accordingly, we deny
Garcia’s request for habeas relief on this point.
C.
Finally, Garcia argues that the jury instructions as a whole
allowed the jury to convict him on legally insufficient grounds.
Specifically, he alleges that the jury charge’s definitions of
“knowingly” and “intentionally” were “so expanded and generic in
nature” that they allowed the jury to convict him based on mere
reckless or negligent behavior. He also alleges that he received
ineffective assistance from his trial counsel when counsel failed
10
to object to these jury instructions.16 We do not agree. The
definitions of both “intentional” and “knowing” conduct were taken
verbatim from Tex. Pen. Code § 6.03. These definitions are
commonly accepted and proper definitions of intentional and knowing
conduct17 that did not allow the jury to convict Garcia based on a
finding of mere reckless or negligent conduct.18 Accordingly, we
reject Garcia’s final claim.19
16
The state contends that we should not address this claim
on its merits because Garcia did not raise it in district court
in his § 2254 petition. However, the State responded to this
claim in its answer to Garcia’s § 2254 petition, undercutting its
argument that Garcia raises it for the first time here.
Accordingly, we address this claim on its merits.
17
Cf. Model Penal Code § 2.02 (providing similar definitions
of intentionally/purposefully and knowingly).
18
The jury was instructed that:
A person acts intentionally, or with intent,
with respect to the nature of his conduct or
to a result of his conduct when it is his
conscious objective or desire to engage in
the conduct or cause the result.
A person acts knowingly, or with knowledge,
with respect to the nature of his conduct or
to circumstances surrounding his conduct when
he is aware of the nature of his conduct or
that the circumstances exist. A person acts
knowingly, or with knowledge, with respect to
a result of his conduct when he is aware that
his conduct is reasonably certain to cause
the result.
19
Because the jury instructions did not impermissibly allow
the jury to convict Garcia on a finding of recklessness or
11
III.
Because Garcia’s claims are ultimately without merit, we
AFFIRM the district court’s decision denying Garcia’s petition.
AFFIRMED.20
negligence, we hold that Garcia’s trial counsel did not provide
ineffective assistance by refusing to object to them.
20
Because we deny Garcia’s petition on its merits, we need
not address the State’s contention that the petition was not
timely filed.
12