UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 92-4213
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WILLIAM ROBERT PARKER,
Petitioner-Appellant,
versus
WAYNE SCOTT,
Respondent-Appellee.
__________________________________________________
Appeal from the United States District Court
For the Eastern District of Texas
(2:89-CV-194)
__________________________________________________
(March 7, 1995)
Before SMITH and EMILIO M. GARZA, Circuit Judges, and BERRIGAN,
District Judge.*
EMILIO M. GARZA, Circuit Judge:*
William Robert Parker was found guilty of murder by a Texas
jury. Parker filed a petition for writ of habeas corpus under 28
U.S.C. § 2254 (1988), which the district court dismissed. Parker
appeals the dismissal of his habeas petition; we affirm.
I
A Texas jury convicted William Robert ("Billy Bob") Parker of
*
District Judge for the Eastern District of Louisiana, sitting by
designation.
*
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
murdering his brother-in-law, Shane Boyd Caskey, and recommended
that he be sentenced to life imprisonment. After the sentencing
recommendation, but before the court announced Parker's sentence,
Parker's attorney requested that the court conduct a hearing to
determine Parker's competency to stand trial. Months later, a
separate jury found that Parker was competent when he stood trial.
The Court then sentenced Parker to life imprisonment.
Parker appealed to the Texas Court of Appeals, which affirmed
his conviction. The Texas Court of Criminal Appeals denied his
petition for discretionary review. Each of Parker's three state
habeas petitions were also denied. Having exhausted his state
remedies, Parker filed a federal habeas petition under 28 U.S.C.
§ 2254. In his petition, Parker attacked both the trial court's
jury charge and his competency hearing on several grounds. The
district court dismissed the petition. Parker appeals, claiming
that the district court improperly held that the following did not
constitute due process violations: (1) the trial court's inclusion
of the words "without justification" in its jury instruction on
murder, (2) the trial court's inclusion of "serious bodily injury"
language in its instruction on aggravated assault, (3) the trial
court's submitting a "fundamentally defective" self-defense
instruction to the jury, (4) the trial court's submitting a jury
charge that was flawed as a whole and in the context of the trial,
(5) and the trial court's holding that a prejudicial question posed
by the State during Parker's competency hearing was harmless error.
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II
"We are limited in habeas proceedings to assuring that the
accused has been afforded the constitutional rights due to him."
Ellis v. Collins, 956 F.2d 76, 78 (5th Cir.), cert. denied, ___
U.S. ___, 112 S. Ct. 1285, 117 L. Ed. 2d 510 (1992). "When
reviewing the habeas proceedings of petitioners in state custody,
we must accord a presumption of correctness to state court findings
of facts." DeVille v. Whitley, 21 F.3d 654, 656 (5th Cir.) (citing
§ 2254), cert. denied, ___ U.S. ___, 115 S. Ct. 436, 130 L. Ed. 2d
348 (1994). We review the district court's findings of fact in a
§ 2254 case for clear error, but decide any issues of law de novo.
Id.
A
A federal court reviewing a collateral attack on a state
court's jury charge must consider not only whether the contested
instruction was undesirable or erroneous, but also whether it "so
infected the entire trial that the resulting conviction violates
due process." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct.
1730, 1736-37, 52 L. Ed. 2d 203 (1977); accord Kinnamon v. Scott,
33 F.3d 462, 465 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct.
660, ___ L. Ed. 2d ___ (1994).
Parker claims that the district court erred in holding that
the trial court's instruction on murder in Paragraph I of the jury
charge did not deny him due process. In Paragraph I, the trial
court instructed the jury that: "A person commits the offense of
murder if he intentionally or knowingly causes the death of an
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individual without justification." Parker alleges that at the time
of the offense, the relevant definition of murder in Texas did not
include the "without justification" requirement. The district
court held that "this added phrase increased the burden on the
State because it required that the State prove that the offense
occurred without justification. As a result, Parker was not denied
a fundamentally unfair trial through the giving of this
instruction."
Because there is not the least likelihood that an instruction
that did not contain the words "without justification" would have
resulted in Parker's exoneration of murder, the additional words
did not prejudice him. See Skelton v. Whitley, 950 F.2d 1037, 1046
(5th Cir.) (finding no prejudice to defendant challenging
instruction on murder where there was "not the least likelihood
that a different . . . instruction would have resulted in his
exoneration of murder"), cert. denied, ___ U.S. ___, 113 S. Ct.
102, 121 L. Ed. 2d 61 (1992). Thus, the district court did not err
in holding that the trial court's instruction did not deprive
Parker of his right to due process.
Parker also contends that the district court erred in holding
that the trial court's instruction on aggravated assault in
Paragraph VII of the jury charge did not deprive him of his right
to due process. Paragraph VII stated:
You are further instructed that before a person can be
guilty of murder or voluntary manslaughter under the
indictment, he must have intentionally or knowingly
caused the death, or he must have intended to cause
serious bodily injury and commited [sic] an act clearly
dangerous to human life that caused the death of
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deceased. Unless you find beyond a reasonable doubt that
defendant is guilt [sic] of murder or voluntary
manslaughter or you have a reasonable doubt thereof, you
will next consider whether he is guilty of aggravated
assault.
Parker claims that this instruction allowed the jury to find him
guilty of murder without finding that he intended to kill the
deceased, an alternative theory of murder not contained in his
indictment. The district court held that the instructions were not
erroneous when taken as a whole, and that any error in Paragraph
VII was invited error.
Parker failed to object to the "serious bodily injury"
language in Paragraph VII at the trial. Our review is thus limited
to plain error. See United States v. Baytank (Houston), Inc., 934
F.2d 599, 606 (5th Cir. 1991) ("Where no objection is made [to a
jury instruction], review is normally limited to plain error.").
"Plain error occurs only when the instruction, considered as a
whole, was so clearly erroneous as to result in the likelihood of
a grave miscarriage of justice." United States v. Davis, 19 F.3d
166, 169 (5th Cir. 1994). "[C]ourts have held that it is plain
error to give instructions that permit a jury to convict for a
crime not charged in the indictment because a court may not
substantially amend an indictment through its jury instructions."
Id. (citing Mize, 756 F.2d at 355; Ricaldy v. Procunier, 736 F.2d
203, 207 (5th Cir 1984)).
Our review is also limited by the fact that Parker himself
requested the instruction. Although Parker did not submit an
instruction on aggravated assault along with his other requested
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instructions, the trial court noted: "I would make, for the record,
the Defendant had requested the charge on aggravated assault, which
charge was approved and presented by the Court. . . . All of the
Defendant's request [sic] were in writing and filed except the one
as to aggravated assault . . . ."
The invited error doctrine, under which a party may not
complain of error invited by that party, applies to allegedly
erroneous jury instructions. Baytank, 934 F.2d at 607. While we
have often refused to consider complaints of erroneous jury
instructions under the doctrine of invited error,1 however, the
language of two recent cases has suggested the possibility of a
limitation on the doctrine's preclusive effect as applied to such
complaints.
In United States v. Puig-Infante, 19 F.3d 929 (5th Cir.),
cert. denied, ___ U.S. ___, 115 S. Ct. 180, 130 L. Ed. 2d 115
(1994), the defendant complained on appeal of the absence of a
supplemental instruction in the jury charge even though she had
objected at trial to the inclusion of the instruction. Id. at 941.
We held that because the defendant "did not request the
instruction, and indeed prevented the court from curing any
inadequacy in the initial charge, she failed to preserve the issue
for appeal. Her objection to the instruction's inclusion bars her
1
See, e.g., United States v. Monk, 15 F.3d 25, 27 (5th Cir. 1994)
(declining to consider argument of erroneous jury instruction where appellant had
requested the instruction); United States v. Gray, 626 F.2d 494, 501 (5th Cir.
1980) ("To avoid being foreclosed by the invited error doctrine, we conclude that
the party who invites the error must inform the court that he no longer seeks the
challenged instruction."); United States v. Easterly, 444 F.2d 1236, 1240 (5th
Cir. 1971) (holding that appellant would "not be heard to complain" of the
inclusion in a jury instruction of language he had "specifically requested").
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present contention under the doctrine of invited error." Id. We
concluded, however, that: "Our review of this claim, therefore, is
limited to plain error at the most." Id.
In United States v. Baytank (Houston), Inc., 934 F.2d 599, 606
(5th Cir. 1991), we applied the invited error doctrine to "the
precise question of a jury instruction allowing a conviction for a
crime not charged in the indictment." Id. In Baytank, as here,
the defendant "not only failed to object to the allegedly overbroad
portion of the court's charge, but that portion of the charge is
the precise language requested by the [defendant]." Id. at 606.
The Baytank court held that the invited error doctrine does apply
in such a situation, "at least where it does not appear that a
substantial miscarriage of justice would result from its
application." Id. at 607.
We need not test the limits of the invited error doctrine,
however, because consideration of Parker's claim is barred by its
loosest application, as well as by Parker's failure to object at
trial. Taken as a whole, the jury instructions did not permit the
jury to find Parker guilty of murder without finding that he had
intended to kill the deceased, and thus were not so clearly
erroneous as to result in the likelihood of a grave miscarriage of
justice. The proper grounds for a finding of murder were stated or
implied repeatedly in the charge.2 Also, the charge instructed the
2
For example, Paragraph I instructed the jury that: "A person commits
the offense of murder if he intentionally or knowingly causes the death of an
individual, without justification." Paragraph IV stated: "Now, if you find from
the evidence beyond a reasonable doubt that . . . [Parker] did intentionally or
knowingly cause the death of an individual . . . , then you will find the
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jury in at least two places that if they found that Parker had not
intended to kill the deceased, they should find Parker guilty of
aggravated assault instead of murder.3 Thus, the aggravated
assault instruction in Paragraph VII did not render the
instructions on murder taken as a whole plainly erroneous.4
We need not address in detail Parker's claim that the district
court improperly held that any error in the self-defense
instruction contained in Paragraph XIV of the jury charge was
invited error. Parker argues that the "fundamental error in the
Jury Charge on self-defense" was not invited, but does not identify
the error. Without this information, we are unable to review
whether Parker, after requesting Paragraph XIV, made an objection
to the instruction that was sufficient to preserve the issue for
appeal.
Parker's final jury instruction claim is that we must assess
defendant guilty of murder, as charged in the indictment, and so say your
verdict."
3
Paragraph VIII instructed that: "A person commits an assault if he
intentionally or knowingly causes bodily injury to another person." Paragraph
X stated: "Now, if you find from the evidence beyond a reasonable doubt that
. . . Parker intentionaly [sic] or knowingly caused bodily injury . . . , but you
further find . . . that William Robert Parker did not intend to kill Shane Boyd
Caskey then you will find the defendant guilty of aggravated assault.
4
It is also worth noting that in closing arguments, the State made no
attempt to exploit the error in Paragraph VII. In fact, the State made repeated
references to the fact that the jury would have to find an intent to kill to find
Parker guilty of murder. For example, the State opened its closing argument by
reminding the jury: "Look at your definitions in this Charge. It gives you the
charge about murder. The intention is that he knowingly and intentionally
murdered or killed Shane Boyd Caskey." The State later repeated: "There is only
one verdict that you can bring in this case. It is murder. It is murder.
Knowingly and intentionally killing Shane Boyd Caskey." The State concluded: "I
say the facts in the case is [sic] before you say it is murder and you took an
oath to do your duty, and I believe your duty is to return a verdict of knowingly
and intentionally taking the life. Read your definitions. Thank you very much."
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whether, "taking all of the uninvited errors and reviewing them in
light of the record as a whole, and as to what the Jury understood
and didn't understand," the jury charge was "an overall proper
charge." "To determine whether there was error, this Court looks
at `the entire charge in the context of the trial including
arguments made to the jury.'" United States v. Willis, 38 F.3d
170, 179 (5th Cir. 1994). However, we have already held that any
errors in Paragraphs I and VII, invited or not, did not deprive
Parker of his right to due process, that the State made no attempt
to exploit any errors in Paragraphs I and VII,5 and that Parker did
not properly present his claim as to Paragraph XIV. We cannot
conclude that the jury charge, taken as a whole and in the context
of the entire trial, contained reversible error.
B
Next, Parker claims that the district court erred in holding
that the State's reference to Parker's trial during his competency
hearing did not deprive him of his right to due process. During
the competency hearing, while examining a doctor, the District
Attorney began asking the following question: "Doctor, one who has
been, assume this to be true, just convicted of murder, with a
substantial punishment would))" The district court held that: "The
single statement by the prosecutor, while error, was not such as to
cause the denial of a fundamentally fair trial or the violation of
Parker's rights under the Due Process Clause."
Over the course of the competency hearing, the jury heard on
5
See supra note 4.
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many occasions that Parker had been accused of murdering his
brother-in-law. The jury also heard that Parker stood trial for
murder, and that the trial was over. The jury even heard testimony
that the trial had gone to the punishment phase, and that Parker
was still in jail after the trial was over. Thus, it is highly
unlikely that the District Attorney's hypothetical prejudiced
Parker in any way.
Any prejudice that did result from the District Attorney's
hypothetical was cured by the trial court's immediately instructing
the jury to disregard the question.6 "A prejudicial remark may be
rendered harmless by curative instructions to the jury." United
States v. Nguyen, 28 F.3d 477, 483 (5th Cir. 1994) (holding
prejudice from witness statement cured by a "prompt and strong"
curative instruction). Thus, the district court properly held that
the District Attorney's posing a hypothesis about a person
convicted of "murder, with a substantial punishment," did not
deprive Parker of his right to due process.
III
For the foregoing reasons, we AFFIRM the district court's
denial of habeas relief.
6
The court stated:
Any questions in regard to the defendant being sentenced is [sic]
going to be struck from the record and the jurors are hereby
instructed and so ordered to disregard any questions that may have
been made in regards to any sentencing, any sentence that may have
been received by the defendant in regards to this proceeding.
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