UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 94-10686
_______________________
JOHN FEARANCE, JR.,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:92 CV 0488 X)
_________________________________________________________________
March 21, 1995
Before JONES, DUHÉ and WIENER, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Appellant Fearance has been tried and sentenced to death
twice for stabbing Larry Faircloth nineteen times and causing him
to bleed to death in his own bedroom, during Fearance's aborted
burglary. Following his second trip through the state courts,
Fearance sought § 2254 habeas relief in federal district court.
*
Local Rule 47.5 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opinion should not be published.
The court rejected Fearance's petition and denied a certificate of
probable cause to appeal.
Under Fed. R. App. Proc. 22(b), the standard for granting
a certificate of probable cause is whether the habeas petitioner
has made a substantial showing of the denial of the federal right.
Barefoot v. Estelle, 463 U.S. 880 (1983). This standard requires
the petitioner to "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, 463 U.S. at 893 n.4
(quotation omitted) (alterations in original). Because a court
should not grant the certificate of probable cause where the
petitioner's claims are "squarely foreclosed by statute, rule or
authoritative decision, or . . . lacking any factual basis in the
record," id. at 894, this court cannot grant a CPC here.
I.
Fearance was convicted of intentionally killing Larry
Faircloth after breaking into his apartment. He argues that he has
a colorable constitutional claim that the alternative theory
alleged by the state in its indictment was constitutionally
impermissible. Specifically, the indictment charged that Fearance
had one or both of two prohibited intents upon breaking into the
apartment: either Fearance entered the residence with the intent
to commit theft and in the course of committing a burglary
committed an intentional murder or the state charges that he
entered the victim's residence with intent to commit the murder of
2
the victim and committed an intentional murder during the course of
the burglary. Petitioner alleges that the second alternative
theory violates the due process clause in the fourteenth amendment
to the Constitution.
Fearance reasons that application of the underlying
felony element of capital murder in the second theory means that in
Texas, every murder committed during a criminal trespass would be
subject to prosecution as a capital murder. According to Fearance,
the burglary does not perform the constitutionally required
narrowing in these circumstances because, under this theory of the
indictment, all murders committed during the commission of criminal
trespass are capital murders. Consequently, Fearance urges that
the required narrowing underlying the Supreme Court's approval of
the Texas capital sensing scheme in Jurek v. Texas, 428 U.S. 262
(1976), did not occur in his case.
Although this may be an interesting issue, the principles
of Teague v. Lane, 490 U.S. 288, 109 S. Ct. 1060 (1989), preclude
this court from considering the merits. Teague and its progeny
allow a federal court on collateral review to apply only
constitutional principles dictated by precedent existing at the
time defendant's conviction became final. Id. at 301.1 Penry v.
Lynaugh, 492 U.S. 302 (1989), unequivocally extends this principle
to capital cases and mandates that we address the retroactivity
issue as a threshold matter.
1
The two exceptions recognized in Teague are not even arguably
applicable here.
3
In essence, Fearance argues that a death sentence is
unconstitutional if it is based on an aggravating factor that
duplicates an element of the underlying felony because such a
felony does not genuinely narrow the class of persons eligible for
the death penalty. To avoid the Teague bar, Fearance must
establish not only that this was true, but that it was unmistakably
true when he was convicted for the second time in 1981. That he
cannot do. Indeed, Fearance's argument on appeal of the district
court's denial of CPC demonstrates this conclusively. In
attempting to justify probable cause for appeal, Fearance notes "a
split in jurisdictions considering the issue" and a "split in
judicial thinking" (which correctly states the standard for
granting a CPC). It simultaneously prevents, however, relief in a
habeas proceeding because such a holding is foreclosed unless
petitioner can "say that all reasonable jurists would have deemed
themselves compelled to accept" his claim. Graham v. Collins, 113
S. Ct. 892, 898 (1993). Fearance's concession that jurists have
differed on the merits of this claim prevents this court from
reaching the merits.2
II.
Fearance requested an instruction on the lesser-included
offense of murder at his trial. The trial court denied the
2
Indeed, it appears as though the opposite result was dictated by
precedent. In Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S.
1013 (1985), the Court of Appeals adopted petitioner's reasoning here. However, the
same court of appeals overruled Collins in light of the Supreme Court's decision in
Lowenfield v. Phelps, 484 U.S. 231 (1988). See Perry v. Lockhart, 871 F.2d 1384
(8th Cir.), cert. denied, 493 U.S. 959 (1989). Hence, we are aware of no federal
courts that would invalidate Fearance's conviction.
4
instruction, and the Texas Court of Criminal Appeals upheld that
action. See Fearance v. State, 771 S.W.2d 486, 511 (Tex. Crim.
App. 1988). He then raised the issue whether this denial
contravened Beck v. Alabama, 447 U.S. 625 (1980), in his petition
for federal habeas relief. Again we find no basis for an appeal of
the dismissal of this claim.
Although Beck itself was limited to a statute that barred
the trial judge from giving the requested instruction, this court
has extended the rationale of Beck to cases in which a trial court
refuses to give an instruction that is available under state law.
Lincecum v. Collins, 958 F.2d 1271, 1275 (5th Cir.), cert. denied,
113 S. Ct. 417 (1992) (citations omitted). To be entitled to such
an instruction on a lesser-included offense, a capital defendant
must demonstrate that a "rational juror, given all the facts,
[could acquit him] of capital murder and [convict] him of [the]
lesser included offense." Andrews v. Collins, 21 F.3d 612, 629
(5th Cir. 1994) (citation omitted) (alterations in original).
"This necessarily requires a showing that the facts of the case and
the laws of the state warrant such an instruction." Hill v. Black,
920 F.2d 249, 251 (5th Cir. 1990), modified, 932 F.2d 369 (5th Cir.
1991). Under Texas law, a lesser-included offense instruction must
be given if there is "some evidence in the record that if the
defendant is guilty, he is guilty of only the lesser offense."
Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986).
The state court determined that there was no evidence to
support the lesser-included offense. Fearance, 771 S.W.2d at 511:
5
"Appellant presented no evidence during his case in chief that he
did not intend to kill Larry Faircloth. None of the witnesses for
the state, on direct examination or cross examination, testified
that appellant's actions were unintentional. The evidence at trial
did not raise the lesser-included offense of murder.".
Because the state court held that no evidence supported
a verdict of murder as opposed to capital murder under state law,
no rational jury could have convicted Fearance only of murder.
This court has no authority to revisit that interpretation of the
Texas Penal Code. Because the state law prevented the jury from
finding that "the petitioner committed murder," the trial court's
failure to instruct the jury on this offense was not constitutional
error. Cantu v. Collins, 967 F.2d 1006, 1014 (5th Cir. 1992).3 In
response to the dearth of evidence of lack of intent on the record,
which compelled the state court to reject the propriety of a murder
3
In Lincecum v. Collins, 958 F.2d 1271, 1277 n.6 (5th Cir. 1992), this
court did not resolve whether such a question was purely a matter of state law or
an application of the section 2254(d) presumption of correctness. Nevertheless,
since Fearance has not argued or identified any of the statutory exceptions to the
presumption of correctness the difference is immaterial here. Moreover, even if we
were to independently review the state court's conclusion, the facts recited by the
magistrate judge in rejecting this contention are compelling:
(1) shortly before the commission of the murder,
Fearance had broken into another home where he
stole three knives;
(2) those knives were subsequently identified as the
weapons used in killing Larry Faircloth and
stabbing his wife;
(3) Fearance entered Faircloth's bedroom and
immediately began to struggle with him and his
wife;
(4) Fearance repeatedly stabbed Larry Faircloth and continued to do
so after he had been rendered defenseless; and
(5) Larry Faircloth was stabbed nineteen times.
No rational jury could believe that petitioner acted without intent to kill.
6
jury instruction, Fearance alleges that this prerequisite
unconstitutionally shifts the burden of proof on the element of the
defendant's intent. Specifically, Fearance cites Mullaney v.
Wilbur, 421 U.S. 684, 95 S. Ct. 1881 (1975), for the proposition
that the state cannot benefit from the defendant's failure to
adduce evidence in support of its allegations of criminal intent.
He is mistaken. There was no requirement that Fearance testify nor
that he produce any particular evidence in order to support the
requested lesser-included offense jury instruction. All that was
necessary was that some evidence supported allowing such an
instruction. It does not matter how the evidence gets on the
record, but it must be there in some form or another.
III.
The Texas Court of Criminal Appeals reversed Fearance's
first capital murder conviction and death sentence after finding
that a prospective juror had been improperly excused in violation
of Adams v. Texas, 448 U.S. 38 (1980), and Witherspoon v. Illinois,
391 U.S. 510 (1968). Fearance v. State, 620 S.W.2d 577, 579 (Tex.
Crim. App. 1980) (Fearance I). Although the error only affected
the sentencing phase of his first trial, Texas procedure did not
authorize a new punishment hearing absent a complete retrial.
Fearance argues that the Double Jeopardy Clause prohibits
this retrial because it forced him to relitigate the question of
his guilt. This court has rejected such a claim where the
reversal, based upon punishment-phase error, is not tantamount to
implied acquittal on any element of the offense, Millard v.
7
Lynaugh, 810 F.2d 1403, 1407-08 (5th Cir.), cert. denied, 44 U.S.
838 (1987). No basis for a colorable claim exists. Fearance does
not allege, nor can he, that the Court of Criminal Appeals'
reversal of his initial conviction and sentence based on
Witherspoon error constituted an implied acquittal on any element
of the offense of capital murder. This claim is foreclosed as a
matter of law.
IV.
Fearance next suggests that the jury was not provided
with the constitutionally required instruction as to the proper
consideration to be afforded mitigating evidence adduced at trial.
He identifies five pieces of evidence that he characterizes as
"mitigating".4 The district court concluded that the mitigating
quality of this evidence was "extremely limited," and we agree.
First, Fearance presented witness Roland Benavidez who
confronted him outside the victim's apartment shortly after the
murder and testified essentially that the petitioner was "somewhat
dazed". Second, a forensic psychiatrist testified that Fearance
exhibited an anti-social personality disorder. Next, Fearance
introduced testimony from his mother that his father had left home
when he was only two years old, and that in the months prior to the
capital murder he had been "withdrawn and pulled back". She also
testified that she had taken him to the mental health/mental
4
Despite the language of Penry v. Lynaugh, 492 U.S. 302, 311 (1989),
implying that a "request" for a jury instruction is a prerequisite to raising this
argument, we note that the Texas courts have held that failure to object at trial
or request an additional instruction is not procedurally barred. Black v. State,
816 S.W.2d 350 (Tex. Crim. App. 1991).
8
retardation center for help approximately one month before the
offense. Finally, Fearance discerns mitigating evidence in his
mother's testimony concerning his role as a good husband and father
and in providing support for his family. He characterizes these
attributes as "positive character traits in evidence of his broken
home as a child."
In Graham v. Collins, 113 S. Ct. 892, 895 (1993), the
petitioner argued that the Eighth and Fourteenth Amendments
compelled an instruction to the sentencing jury that it could
consider "mitigating evidence" of his "family background" and
"positive character traits." The Court responded "because this
case comes to us on collateral review, however, we must first
decide whether the relief that petitioner seeks would require
announcement of a new rule of constitutional law, in contravention
of the principle set forth in Teague v. Lane." Id. (citation
omitted) As Fearance was convicted in 1981, we likewise conclude
that this claim is barred by Teague.
In Graham, the petitioner urged that evidence concerning
his "upbringing and positive character traits" (introduced via
testimony by his family) compelled the trial court to instruct the
sentencing jury that it could consider this evidence in answering
the necessary special issues. But "[u]nless reasonable jurists
hearing petitioner's claim at the time his conviction became final
'would have felt compelled by existing precedent' to rule in his
favor, we are barred from doing so now." Id. 898 (citation
omitted). "Surveying the legal landscape as it then existed, we
9
conclude that it would have been anything but clear to reasonable
jurists in [1981] that petitioner's sentencing proceeding did not
comport with the Constitution." Id.
The Supreme Court in Jurek v. Texas, 428 U.S. 262 (1976),
"examined the very statutory scheme under which" Fearance "was
sentenced to conclude that it struck an appropriate balance between
. . . constitutional concerns." Graham, 113 S. Ct. at 898. "The
court thus rejected the attack on the entire statutory scheme for
imposing the death penalty and in particular the attack on the so-
called 'special issues'." Id. "To the contrary, to most readers
at least, [the] cases reasonably would have been read as upholding
the constitutional validity of Texas's capital-sentencing scheme
with respect to mitigating evidence and otherwise." Id. at 900.
"[T]he Texas statute satisfied the commands of the Eighth
Amendment: it permitted the petitioner to place before the jury
whatever mitigating evidence he could show . . . while focusing the
jury's attention upon what that evidence revealed about the
defendant's capacity for deliberation and prospects for
rehabilitation." Id.
The only chance Fearance has to avoid this Teague bar is
to place his claim squarely within the confines recognized by Penry
v. Lynaugh, 492 U.S. 302, 109 S. Ct. 1060 (1989). "In that case,
the court overturned the prisoner's death sentence, finding that
the Texas special issues provided no genuine opportunity for the
jury to give mitigating evidence of his mental retardation and
abused childhood." Id. at 901. Significantly, the Court held in
10
Penry that the result of that case was dictated by existing
precedent. See Penry, 492 U.S. at 318-319. Nonetheless, only
evidence within the narrow confines of the corridor of mitigating
evidence recognized by Eddings v. Oklahoma, 455 U.S. 104 (1982) and
Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion), is immune
from the standard Teague bar.5 That Penry only recognized a very
limited set of potentially mitigating evidence as ipso facto
sufficient to compel a jury instruction is settled. "We . . . have
construed Penry to mean that the capital defendant must be able to
demonstrate that his crime is attributable to a uniquely severe
disability." Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994)
(citation omitted); Graham, 113 S. Ct. at 901 n.3. ("Nor does
[Graham] dispute that some types of mitigating evidence can fully
be considered by sentencer in the absence of special jury
instructions.")
A jury instruction on Fearance's family history and
positive character traits could not have been dictated by earlier
precedent. Graham, 113 S. Ct. at 902 (Texas special issues provide
the court with adequate consideration "regard[ing] the
circumstances of [defendant's] family background and positive
character traits."). Accordingly, all that remains to be
considered is Fearance's evidence of being "somewhat dazed",
exhibiting an antisocial personality disorder, and acting
5
Even pure Penry evidence might not be of avail to Fearance since the
court in Penry relied heavily on its prior decision in Eddings v. Oklahoma, which
was decided in 1982. See Penry, 492 U.S. at 314-319. Of course, this was after
Fearance's conviction.
11
"withdrawn" and "pulled back". Fearance, however, provides no
authority that commands a court to distinguish these types of
mitigating evidence from all other forms of mitigating evidence
"having some bearing on the defendant's moral culpability" nor does
he assert that they constitute a "uniquely severe disability."
Ultimately, he lacks the requisite pre-1981 precedent that would
remove his evidence from the general rule that potentially
mitigating evidence does not require a special issue to the jury in
Texas. Graham, 113 S. Ct. at 902 (rejecting "that a defendant is
entitled to special instructions whenever he can offer mitigating
evidence that has some arguable relevance beyond the special
issues"). The jury could have given effect to whatever mitigating
impact it saw in Fearance's emotional makeup within the ambit of
the Texas special issues without a Penry instruction. Graham v.
Collins, 113 S. Ct. at 902.
V.
Fearance now attempts to convert the failure of trial
counsel to introduce detailed evidence of his "antisocial
personality disorder" into a Sixth Amendment ineffective assistance
of counsel claim. Significantly, he does not allege that his
counsel was deficient or incompetent but that the mere operation of
Texas's sentencing scheme rendered him presumptively so. Although
such a species of ineffective assistance can exist by operation of
state statute,6 this court "do[es] not believe that the Texas
6
See Brooks v. Tennessee, 406 U.S. 605 (1972); Herring v. New York, 422
U.S. 853 (1975).
12
sentencing scheme interfered with counsel's decisions in the manner
contemplated by these cases." May v. Collins, 948 F.2d 162, 167
(5th Cir. 1991).
Fearance, like the petitioner in May, contends that Texas
law at the time of the second trial for capital murder in 1981
effectively prevented counsel from adequately investigating
potential sources of mitigating circumstances evidence because his
counsel believed "that there was no vehicle in the Texas capital
sentencing scheme for the jury's consideration of evidence of
exclusively mitigating nature." This is, of course, not true.
"Texas law did not prevent counsel from presenting mitigating
evidence. Indeed, the facial validity of the Texas statute was
upheld upon the express understanding that the special issues had
been interpreted to allow the presentation of mitigating evidence.
Jurek v. Texas, 428 U.S. 262, 272 (1976)." May, 948 F.2d at 168
(internal citations omitted).
Even more devastating to Fearance, his own trial
counsel's affidavit upon which he relies to support such an
argument does not necessarily support this theory. Although
counsel does refer to his belief that Texas law did not provide a
vehicle to introduce mitigating evidence, he further notes that "he
decided not to adduce evidence of [Fearance's] antisocial
personality disorder after learning of same [sic] during his
investigation because he recognized that the state would probably
adduce similar evidence, being familiar with the record of the
first capital trial in which Dr. James Grigson had testified for
13
the state." This is the essence of a tactical decision, and it was
in no way professionally deficient: certainly some juries might
have found antisocial personality disorder to be mitigating, but
unquestionably others probably would have rejected that argument or
indeed found it more likely that Fearance would commit additional
crimes.
That this evidence presented a difficult problem for
Fearance and his counsel does not create a colorable constitutional
claim. Black v. Collins, 962 F.2d 394, 407 (5th Cir. 1992). In
Black the petitioner argued that "the Texas sentencing procedure
interferes dramatically with the defendant's choice of whether and
how to present mental-health based evidence." This court does not
credit such an argument:
While the operation of Texas capital
sentencing scheme at the time of
[petitioner's] trial may have caused counsel
to make tactical decisions that counsel might
not otherwise have made, we do not think that
this rose to a level of direct government
interference with defense counsel's ability to
conduct the defense as involved in Brooks and
Herring. Every substantive criminal statute
and death penalty statute contains certain
elements, the finding of which are required
for a verdict of guilty or a sentence of
death, as the case may be. Counsel's tactical
decisions about what kind of evidence to
present are always challenged to the
requirements of the statute under which the
state proceeds. Were we to conclude that the
rule of Brooks and Herring is triggered by
statutes that compel tactical decisions about
what kind of evidence to present, that rule
would be virtually unlimited and would convert
every criminal statute and capital sentencing
scheme into a predicate Sixth Amendment claim
for ineffective assistance of counsel.
14
May, 948 F.2d at 167-168. This court has repeatedly rejected the
notion that there is an infirmity imbedded in the Texas sentencing
scheme precluding counsel from performing effectively. See May v.
Collins, 948 F.2d 162, 167-68 (5th Cir. 1991), cert. denied, 112 S.
Ct. 907 (1992); Black v. Collins, 962 F.2d 394, 407 (5th Cir.),
cert. denied, 112 S. Ct. 2983 (1992); Andrews v. Collins, 21 F.3d
612, 630 (1994).
VI.
Fearance, without much enthusiasm, also contends that the
trial court's refusal to instruct the jury on the proper
definitions of the terms "deliberately" and "probability"
unconstitutionally undermines the selection function of the Texas
capital sentencing procedure. Yet this court in James v. Collins,
987 F.2d 1116, 1120 (5th Cir. 1993), specifically rejected the
argument that "Texas's capital sentencing scheme was impermissibly
applied" because of the trial court's refusal to "to give the
sentencing jury definitions for the terms deliberately [and]
probability." See also Griffin v. Lynaugh, 823 F.2d 856, 865 (5th
Cir. 1987) cert. denied, 484 U.S. 1079 (1988); Milton v.
Procunier, 744 F.2d 1091, 1096 (5th Cir. 1984), cert. denied, 471
U.S. 1030 (1985). In response, all Fearance can contend is that
the Supreme Court's recent decision in Tuilaepa v. California, 114
S. Ct. 2630 (1994), casts doubt on the validity of this holding.
Numerous flaws are apparent with such an approach,
however. Most importantly, petitioner is foreclosed from relying
on Tuilaepa because of Teague v. Lane. Fearance may only benefit
15
from decisions of the Supreme Court in effect upon his conviction
in 1981. Consequently, if this recent case casts any doubt
concerning James, it will need to be raised by a capital murderer
on direct appeal. Moreover, if anything, Tuilaepa supports the
propriety of the trial court's refusal to instruct the jury on
definitions of deliberately or probability. The decision
repeatedly cites Jurek v. Texas for factors that have some "common-
sense core of meaning . . . that criminal juries should be capable
of understanding." Id. at 2636 (omission in original) (citing
Jurek v. Texas, 428 U.S. 262, 279 (1976) (White, J., concurring in
judgment)). Indeed, the Court in Tuilaepa specifically cites the
following sentence from Jurek as a non-vague factor: "whether
there is a probability that a defendant would commit cruel acts of
violence that would constitute a continuing threat to society".
Id. (emphasis added) (citing Jurek, 428 U.S. at 274-276). In any
event, it is inconceivable that all rational jurists would have
concluded in 1981 that "deliberately" and "probability" were
unconstitutionally vague.
VII.
Finally, Fearance attempts to manufacture a Simmons v.
South Carolina, 114 S. Ct. 2187 (1994), claim from the following
exchange during closing arguments:
[Prosecution]: [W]e think the sanctity of the
home has got to be preserved; the people have
got to be able to go to bed at night, put
their head down on that pillow and not worry
about this man creeping in here. That's why
the law is on the books, because we're going
to protect our homes. We're going to try. We
can't protect our citizens, can we, very well,
16
if we've got this man running loose. We've
sent him to the pen twice. That didn't get
his attention. Go down there for two
sentences; concurrent; total of four years in
'72. Back out in '73. Five years. Back out
in '77. He's talking about big life
sentences. Don't be fooled, folks.
[Defense]: Your Honor, I'll --
[Prosecution]: Don't be fooled by these life
sentences.
[Defense]: Your Honor, I object to that; he's
asking the jury directly to speculate about
how long the Defendant would have to serve.
[Prosecution]: No, I'm not either.
[Court]: The jury is not going to concern
themselves about the execution of sentence;
I've instructed them on that.
[Prosecution]: I'm referring to his comments.
[Defense]: Sir, I'd ask that you instruct the
jury not to
[Court]: They have the law in that regard.
[Defense]: Your Honor, we'd respectfully move
for a mistrial based on his --
The Court of Criminal Appeals found on direct appeal that
Fearance's counsel inaccurately sought to convince the jury that
had it imposed a life sentence, Fearance would have remained in
prison for the rest of his life. Fearance v. State, 771 S.W.2d at
486, 514. Because the comments of the prosecutor do not misstate
state law, Caldwell v. Mississippi, 472 U.S. 320 (1985), is
inapposite. Dugger v. Adams, 489 U.S. 401, 407, 109 S. Ct. 1215
(1989) ("To establish a Caldwell violation, defendant necessarily
must show that the remarks to the jury improperly described the
role assigned to the jury by local law.")
17
Resort to Simmons is of no more avail. This court
recently held in Allridge v. Scott, 41 F.3d 213, 222 (5th Cir.
1994), that Simmons applies "when, and only when, 1) the state
argues that a defendant represents a future danger to society, and
2) the defendant is legally ineligible for parole." (emphasis in
original). "Because Texas did not statutorily provide for parole
ineligibility at the time of" Fearance's conviction, reliance on
Simmons is impossible. Id.7
VIII.
Fearance also notes six other possible claims that he
concedes are foreclosed by prior decisions of this court or present
a likelihood of merit only upon action of the Supreme Court. He
wishes to preserve these arguments in light of the possibility that
intervening decisions of the Supreme Court or this circuit could
enhance their prospects of success. We acknowledge his reference
to these currently meritless claims.8
CONCLUSION
For the foregoing reasons, this court DENIES a
certificate of probable cause to appeal.
7
The prosecutor's comment might less critically be viewed as the Texas
Court of Criminal Appeals did, a response to defense counsel's misstatement. Even
if the prosecutor came close to violating the state law that prohibits the jury from
considering the possibility of parole, this court has no authority to correct errors
of state law unless they transgress constitutional bounds.
8
Fearance asserts constitutional error in a mere administration of an
oath to the jury; in the court's forcing him to exercise a peremptory challenge
against a particular venirewomen; in the disqualification of a venireman under the
Witherspoon/Adams standard; in excusing two different veniremen who were not
disqualified under that standard; and in regard to the prosecutor's reference before
the sentencing jury that the death sentence would be "with no appeal". We also note
that Fearance does not raise a Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595
(1986), claim in this appeal of the denial of certificate of probable cause but
recites some of the evidence he adduced in the district court.
18