Davis v. Scott

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 93-8855
_____________________

JAMES CARL LEE DAVIS,

Petitioner-Appellee,
Cross-Appellant,

VERSUS

WAYNE SCOTT, Director,
Texas Department of Criminal Justice,
Institutional Division,

Respondent-Appellant,
Cross-Appellee.

____________________________________________________

Appeals from the United States District Court
for the Western District of Texas
_____________________________________________________

(April 19, 1995)
Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The State of Texas appeals the district court's conditional

grant of habeas relief to James Carl Lee Davis, including

conditional commutation of his death sentence, based upon his

contention that the two Texas statutory special issues submitted to

the jury, during the punishment phase of his trial, prevented it

from giving effect to mitigating evidence of, inter alia, mental

instability, in violation of the Eighth and Fourteenth Amendments,

and as held in Penry v. Lynaugh, 492 U.S. 302 (1989). Davis cross-

appeals, contending that the rule announced in Teague v. Lane, 489

U.S. 288 (1989), does not bar him from challenging collaterally how
the punishment phase of his trial, as well as jury voir dire, were

affected unconstitutionally by the statutory proscription against

disclosing to the jury or venire the effect of a hung jury on the

special issues. We AFFIRM in part, REVERSE in part, and REMAND

with instructions to deny relief.

I.

Early on March 3, 1984, Davis entered the home of his

neighbor, Pauline Johnson, without permission, and brutally

attacked her young children. As a result, three of the four

children died due to multiple skull fractures. Based on the death

of one of the children, Yvette, who exhibited evidence of sexual

assault, a jury convicted Davis of capital murder.1

During the punishment phase of the trial, and after the

presentation of additional evidence, the court instructed the jury

to answer two of the three Texas statutory special issues (quoted

infra). Because the jury unanimously answered both issues in the

affirmative, the trial court assessed punishment as death by lethal

injection. The Texas Court of Criminal Appeals affirmed, Davis v.

State, 782 S.W.2d 211 (Tex. Crim. App. 1989); the United States

Supreme Court denied certiorari. Davis v. Texas, 495 U.S. 940

(1990).

Davis sought habeas relief in Texas state court. After making

findings of fact and conclusions of law, the state judge (who

presided at Davis' trial) recommended denial of habeas relief; and,

1
The facts are stated more completely in Davis v. State, 782
S.W.2d 211, 219-20 (Tex. Crim. App. 1989), cert. denied, 495 U.S.
940 (1990).

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in an unpublished opinion, the Texas Court of Criminal Appeals

denied that relief.

In September 1992, pursuant to 28 U.S.C. § 2254, Davis sought

federal habeas relief. After the State moved for summary judgment,

the matter was referred to a magistrate judge, who recommended

granting the motion. But, in November 1993, relying on intervening

case law, the district court declined to follow the recommenda-

tion.2 It believed that Davis had raised a Penry claim -- that

there existed a reasonable likelihood that the jury applied the

special issues in a way that prevented it from considering the

mitigating effect of childhood abuse, psychological disorders, and

mental retardation. It ordered the commutation of his death

sentence, unless the State appealed to this court or conducted a

new sentencing hearing within 180 days. On the other hand, the

district court held that Teague prohibited it from considering

Davis' contentions that TEX. CODE CRIM. PROC. art. 37.071(g) (Supp.

1986) (proscribing disclosure to a venireman or juror about the

effect of a hung jury on the special issues) affected unconstitu-

tionally the punishment phase of his trial, as well as jury voir

dire.

2
The district court's opinion is based in large part on Motley
v. Collins, 3 F.3d 781 (5th Cir. 1993) (Motley I) which was decided
after the magistrate's report and recommendation. Subsequently,
Motley I was superseded by Motley v. Collins, 18 F.3d 1223 (5th
Cir.), cert. denied, 115 S. Ct. 418 (1994), thus, changing the
basis for the district court's conditional grant of habeas relief.

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 II.

The State challenges the ruling on the Penry claim; Davis, the

rejection of the issues concerning article 37.071(g). "In

considering a federal habeas corpus petition presented by a

petitioner in state custody, federal courts must afford a

presumption of correctness to any state court factual findings.

See 28 U.S.C. § 2254(d). We review the district court's findings

of fact for clear error, but decide any issues of law de novo."

Barnard v. Collins, 958 F.2d 634, 636 (5th Cir. 1992), cert.

denied, 113 S. Ct. 990 (1993). "Evaluation of a petitioner's

constitutional challenge to the Texas special issues as applied to

him is, of course, an issue of law." Madden v. Collins, 18 F.3d

304, 306 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct.

1114 (1995).

Needless to say, because Davis seeks habeas relief, "`we must

determine, as a threshold matter, whether granting him the relief

he seeks would create a "new rule"' of constitutional law" under

Teague. Graham v. Collins, 506 U.S. ___, ___, 113 S. Ct. 892, 897

(1993) (quoting Penry, 492 U.S. at 313); accord Motley v. Collins,

18 F.3d 1223, 1230 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.

Ct. 418 (1994).

Under Teague, a "new rule" is one which "`imposes a
new obligation on the States or the Federal
Government'" or was not "`dictated by precedent
existing at the time the defendant's conviction
became final.'" [Graham, 506 U.S. at ___, 113 S.
Ct. at 897] (quoting Teague, 489 U.S. at 301, 109
S. Ct. at 1070). As the Supreme Court aptly noted,
it is extremely difficult "`to determine whether we
announce a new rule when a decision extends the
reasoning of ... prior cases.'" Id. (quoting

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 Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct.
1257, 1260, 108 L.Ed.2d 415 (1990)). Nonetheless,
we are instructed that "unless reasonable jurists
hearing [Davis'] 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. (quoting Saffle, 494 U.S. at
488, 110 S. Ct. at 1260) (emphasis added).

Motley, 18 F.3d at 1230. First, we consider the Penry issue.

A.

The two Texas special issues submitted to the jury during the

punishment phase of trial were:

(1) Do you find from the evidence beyond a
reasonable doubt that the conduct of the defendant
that caused the death of the deceased was committed
deliberately and with the reasonable expectation
that the death of the deceased or another would
result?

(2) Do you find from the evidence beyond a
reasonable doubt that there is a probability that
the defendant would commit criminal acts of
violence that would constitute a continuing threat
to society?

In Penry, decided before Davis' conviction became final, the

Supreme Court held that when a capital defendant introduces

evidence about his background, character, or circumstances that

reflects a reduced personal culpability, and the jury cannot give

effect to the mitigating force of that evidence in response to

Texas' special issues, the trial court must, upon request, provide

instructions that allow the jury to consider and give mitigating

effect to that evidence. Penry, 492 U.S. at 319-28.3 Penry had

3
"[I]n a case such as this, which was tried before Penry was
decided, the petitioner need not have requested an instruction on
mitigating evidence, nor must he have objected to the lack of such
an instruction." Motley, 18 F.3d at 1229; see Selvage v. Collins,
897 F.2d 745 (5th Cir. 1990), certifying question to 816 S.W.2d 390

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presented evidence that childhood abuse and mental retardation left

him unable to learn from his mistakes, but that the special issues

failed to give the jury a vehicle for taking this into

consideration. Id. at 308.

Likewise, Davis maintains that the special issues failed to

give the jury a vehicle by which it could properly consider and

give effect to evidence tending to mitigate his culpability for the

murder of Yvette Johnson. He contends that evidence of mental

instability and childhood abuse indicates that he was prevented,

like Penry, from learning from his mistakes. "To grant relief on

a Penry claim, we must determine (1) that the ... evidence was

constitutionally relevant mitigating evidence, and, if so, (2) that

the ... evidence was beyond the `effective reach' of the jurors."

Madden, 18 F.3d at 308 (emphasis omitted). For the several

alternate reasons discussed below, we conclude that Davis' Penry

claim fails.

1.

The first inquiry in a Penry claim is whether
the mitigating evidence is relevant. Phrased
differently, does the evidence implicate the basic
concern of Penry "that defendants who commit
criminal acts that are attributable to a
disadvantaged background, or to emotional and
mental problems, may be less culpable than
defendants who have no such excuse."

Madden, 18 F.3d at 307 (quoting Penry, 492 U.S. at 319); accord

Allridge v. Scott, 41 F.3d 213, 223 (5th Cir. 1994); Motley, 18

(Tex. Crim. App. 1991) (failure to request or object does not bar
procedurally a Penry claim when the trial occurred prior to Penry).
As discussed infra, Davis did receive an instruction on mitigation;
he asserts it was insufficient.

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F.3d at 1235 n.10. In short, evidence of a disadvantaged

background, or emotional and mental problems, does not raise, ipso

facto, a Penry claim. In order to present relevant evidence that

one is less culpable for his crime, the evidence must show (1) a

"uniquely severe permanent handicap[] with which the defendant was

burdened through no fault of his own", Graham v. Collins, 950 F.2d

1009, 1029 (5th Cir. 1992) (en banc), aff'd on other grounds, 506

U.S. ___, 113 S. Ct. 892 (1993), and (2) that the criminal act was

attributable to this severe permanent condition. Madden, 18 F.3d

at 307.

As noted, this court has made it clear that, for evidence to

have mitigating relevance to the special issues, there must be a

nexus between the mitigating evidence and the criminal act. For

example, in Madden, a clinical psychologist testified that Madden

suffered from an emotional disorder (specifically, an anti-social

personality). Madden failed, however, to elicit any testimony that

a person with such a disorder is more aggressive or violent than an

unafflicted person, or that he, in particular, was more aggressive

or violent because of the disorder. Also absent was evidence that

Madden was incapable of controlling his impulses or unable to

distinguish right from wrong. Based upon this, our court

determined there was insubstantial evidence that Madden's criminal

actions were attributable to his anti-social personality. Id.

Davis asserts that his mental instabilities were "acted out"

during the crime, thus, demonstrating a connection between the

crime and his condition. Specifically, he contends that a nexus is

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indicated between his "diagnosed condition of paranoid

schizophrenia, psychotic disorders and violent sexual proclivities"

and the crime because "the offense was committed against female

children during a bizarre sexual attack."4 After reviewing the

state court's findings, the district court's findings, and the

record, we conclude, as hereinafter discussed, that Davis failed to

present the requisite "constitutionally relevant mitigating

evidence". We address in turn the evidence on (1) paranoid

schizophrenia and psychotic disorders, (2) violent sexual

proclivities, and (3) abusive childhood.

a.

At the punishment phase, court-appointed psychiatrist Dr.

Richard Coons, who examined Davis just prior to trial, testified

that Davis suffered from a personality/behavioral disorder. Based

4
Two observations are called for by this claim. First, Davis
appears to change position on whether he is mentally retarded. In
any event, the findings of fact on Davis' habeas petition by the
state judge (who presided at Davis' trial) were that Davis was not.
As noted, we are required to give a presumption of correctness to
those findings. The court stated:

This Court finds no evidence that [Davis is]
mentally retarded. There is evidence of behavioral
disorders.... There are some references to the
presence of brain damage in the applicant at the
age of seven; however, in 1976 a physician's report
[found], "Brain damage is not present." [Emphasis
in original physician's report.] This Court
find[s] no evidence of an organic brain disorder.

Second, Davis' contention that his sexual proclivities were
acted out during the offense because it was committed against
"female children during a bizarre sexual attack" is inconsistent
with the facts surrounding the murders. Only one of his victims,
Yvette Johnson, was female and assaulted sexually. The other two
victims, her brothers, did not exhibit any evidence of sexual
assault.

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upon his review of Davis' medical files, Dr. Coons opined that

Davis did not suffer from paranoid schizophrenia or any other

psychotic disorder.

In addition, even assuming Davis presented evidence that he

suffered from paranoid schizophrenia or some other psychotic

disorder, he failed to present any evidence linking that condition

to the crime. Such a situation would be similar to that in Madden,

where, as noted, Madden failed to present evidence that he was more

aggressive or violent because of his anti-social personality, or

that he was incapable of controlling his impulses, or unable to

distinguish right from wrong. Likewise, Davis failed to link any

psychiatric problems he may have suffered to the murder of Yvette

Johnson.

b.

On the other hand, the evidence adduced during the trial does

indicate that Davis had engaged previously in sexually deviant

behavior. After undergoing foot surgery at age six, Davis spent

the next several weeks in the hospital. His medical records reveal

that, during this period, the nurses reported that he continually

made obscene statements, constantly referred to sexual matters,

expressed his desire to have sexual relations with them, and

masturbated frequently in front of them and other patients. At age

13, Davis was arrested for the attempted rape of a 35-year-old

woman who lived in his neighborhood. This evidence above, however,

does not establish a uniquely severe and permanent handicap from a

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violent sexual proclivity, nor that the criminal act was

attributable to any such condition.

c.

In Barnard, "we recognized that an abused childhood could rise

to the level of a Penry claim if the traumatic events caused

psychological effects to which the criminal conduct was

attributable." Madden, 18 F.3d at 308. As the district court

noted, "there is no documented medical evidence of Davis' childhood

abuse". (Emphasis by district court.) There is evidence, however,

of parental neglect; and medical records indicate that Davis may

have been subjected to abuse. Oftentimes, his mother would leave

her six young children alone at home for days at a time. (But, at

other times, Davis would be left with his grandmother.) Once, when

Davis cut his hand severely, his mother waited two days before

taking him to the hospital; this delay prevented the doctors from

being able to suture the wound.

Davis' reliance solely upon medical records from his youth

does not establish Penry-type evidence. There is no evidence that

these incidents were of such a traumatic nature as to cause

psychological effects, let alone, that Davis' criminal act was

attributable to any resulting psychological problems.

In sum, even if we assume that Davis suffered from the claimed

conditions, conspicuously absent at trial was any evidence tending

to link these conditions with the crime.5 Although there was

5
For example, one of the "conditions" Davis relies upon to
mitigate his culpability is the fact that he was born a "blue
baby". At oral argument, his attorney stated that this condition

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evidence of behavioral and mental problems, Davis failed to

demonstrate how the crime was attributable to them. Needless to

say, conclusory assumptions do not create a nexus. Accordingly, we

conclude that there is insubstantial evidence that Davis either

suffered from a uniquely severe and permanent handicap, or that his

criminal actions were attributable to any such condition. Thus, on

this basis alone, the Penry claim fails.

2.

In the alternative, even assuming that Davis presented

constitutionally relevant mitigating evidence, he failed to satisfy

the second prong for relief on a Penry claim: that this evidence

was beyond the effective reach of the jury. We examine each of the

two special issues. But, before doing so, we note that, after

instructing on the two special issues, the trial court instructed

also that "[e]vidence presented in mitigation of the penalty may be

considered should the jury desire, in determining the answers to

either of the [special] issues".6

"sounds bad to me. And if he's blue it means lack of oxygen and
possible brain damage." Davis fails to demonstrate how his
criminal conduct was attributable to such a condition.
6
We note also that, in 1991, approximately six and one-half
years after Davis' trial, the Texas legislature amended the special
issues statute to address the problem raised by Penry.
Specifically, TEX. CODE CRIM. PROC. art. 37.071, § 2(d) (Supp. 1995),
provides that:

The court shall charge the jury that:
(1) in deliberating on the [special] issues ...,
it shall consider all evidence admitted at the
guilt or innocence stage and the punishment stage,
including evidence of the defendant's background or
character or the circumstances of the offense that
militates for or mitigates against the imposition

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 a.

As quoted, the first special issue asks whether the defendant

acted "deliberately and with reasonable expectation that the death

of the deceased ... would result?" The court instructed that

"deliberately" meant "a manner of doing an act characterized by or

resulting from careful consideration: `a conscious decision

involving a thought process which embraces more than mere will to

engage in the conduct'". As discussed below, and based upon this

instruction and the mitigation instruction quoted above, we

conclude that Davis' jury had an appropriate vehicle to consider

his allegedly mitigating evidence; to require an additional (third)

instruction for Davis would be to create a new rule of

constitutional law on collateral review.

In examining the first special issue, we are mindful of the

basic concern of Penry, mentioned earlier: "that defendants who

commit criminal acts that are attributable to a disadvantaged

background, or to emotional and mental problems, may be less

culpable than defendants who have no such excuse". Penry, 492 U.S.

at 319. Thus, the gist of Penry deals with the ability of a jury

to consider a defendant's culpability and, in determining whether

death is an appropriate punishment, to be able to exercise a

"reasoned moral response" to evidence tending to mitigate that

culpability.

of the death penalty.

See Graham, 950 F.2d at 1012 n.1 (discussion of the 1991
amendment).

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 Unlike the present case, however, the Penry jury was not

instructed on the meaning of "deliberately". Proceeding on the

assumption that the jury understood "deliberately" to mean

something more than "intentionally", the Court recognized that

"[b]ecause Penry was mentally retarded ... and thus less able than

a normal adult to control his impulses or to evaluate the

consequences of his conduct, ... [a] juror could ... conclude that

Penry was less morally `culpable than defendants who have no such

excuse,' but who acted `deliberately' as that term is commonly

understood". Penry, 492 U.S. at 322-23 (quoting California v.

Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring)). The

"juror who believed that Penry's retardation and background

diminished his moral culpability and made imposition of the death

penalty unwarranted would be unable to give effect to that

conclusion if the juror also believed that Penry committed the

crime `deliberately'". Id. at 323.

In short, the fault with the first special issue in Penry was

that it failed to clarify the term "deliberately". The Court

concluded that

[i]n the absence of jury instructions defining
"deliberately" in a way that would clearly direct
the jury to consider fully Penry's mitigating
evidence as it bears on his personal culpability,
we cannot be sure that the jury was able to give
effect to the mitigating evidence of Penry's mental
retardation and history of abuse in answering the
first special issue.

Penry, 492 U.S. at 323.

On the other hand, the definition of "deliberately" provided

to Davis' jury would have clearly directed Penry's jury to consider

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his mitigating evidence and how it bore on his personal

culpability. As noted, under the special issues, Penry's jury was

foreclosed from considering his inability "to control his impulses

or to evaluate the consequences of his conduct". Had the Penry

jury been instructed, as it was in this case, that it could

consider evidence presented in mitigation of the penalty, as well

as that "deliberately" was "characterized by or resulting from

careful consideration", it would have been able to consider his

uncontrollable impulses or lack of evaluation. (Emphasis added.)7

7
During the punishment phase's closing argument, Davis'
attorney homed in on the phrase "careful consideration" from the
instruction defining "deliberately" for the jury to consider when
addressing the first special issue:

The two words that are so critical to deciding
this question are "careful consideration". In
other words, before you can answer [the first
special issue] yes, you have to be convinced beyond
any reasonable doubt that James Davis carefully
considered what he was going to do before he did
it. Okay? If he carefully considered what he was
going to do before he did it. And I submit to you
that the evidence in this case, gruesome though it
may be, simply does not show that he carefully
considered anything. I submit to you right now
that there is a reasonable doubt on that issue, and
you're going to have to answer that question no.

....

The upshot of all of these [medical] records
is that James Davis' mind is so diseased or damaged
or whatever that, quite frankly, ladies and
gentlemen, he's incapable of carefully considering
anything.

After suggesting that Davis may have been under the influence of
drugs or alcohol, his attorney continued:

[The prosecution] says we haven't brought you
any experts to tell you that. I mean, do we need
to bring an expert on something like that? Of

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 In sum, these additional instructions provided Davis' jury

with a sufficient means to consider his mitigating evidence. To

hold that they were inadequate would require us to announce a new

rule of constitutional law on collateral review -- which we are

foreclosed from doing under Teague.

b.

Having determined that the jury had an adequate means, through

the first special issue, to consider Davis' mitigating evidence, we

need not consider whether the second special issue -- continuing

threat or dangerousness -- provided another, separate, adequate

means. See Clark v. Collins, 19 F.3d 959, 963 n.14 (5th Cir.),

cert. denied, ___ U.S. ___, 115 S. Ct. 432 (1994). But, in the

alternative, we turn to that second issue. It concerns whether, in

the future, "there is a probability that the defendant would commit

criminal acts of violence that would constitute a continuing threat

to society".

As discussed, even if the evidence is aggravating, as long as

the mitigating aspect is within the effective reach of the jury,

course not. Drugs or alcohol, in an already
clouded mind like that, has to just take whatever
little control he's got and throw it out the
window. Who knows what he was under?

The attorney concluded his comments regarding the first special
issue:

Can you say beyond a reasonable doubt that James
Davis carefully considered what he was going to do
before he did it? No. Given his crippled mind,
and given what the facts of the offense show, and
what they don't show, there is no way to escape
that doubt. I submit to you that question should
be answered no.

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the requirements of the Eighth Amendment are satisfied. In Johnson

v. Texas, 113 S. Ct. 2658, 2669 (1993), the Court noted that the

only way the evidence of Penry's mental condition could be

considered within the second special issue (future dangerousness)

was as an aggravating factor. Id. at 2669-70. On the other hand,

as also discussed, a Penry claim does not arise when

constitutionally relevant evidence "can be given mitigating effect

in some way under the Texas special issues". Motley, 18 F.3d at

1234 (emphasis in original).

As noted, Davis failed to present any constitutionally

relevant mitigating evidence. Even so, the background evidence

that he did present does not demonstrate that he was unable to

learn from his mistakes. To the contrary, it demonstrated that he

responded positively to a structured environment.

Gerald Frank McKimmey, who was the chief social worker at

Austin State Hospital's adolescent unit, dealt with Davis during a

1979 admission when Davis was 16 years of age. McKimmey testified

that Davis did well in the structured environment at the unit.8

8
At the punishment phase, on direct examination by Davis'
attorney, McKimmey testified as follows:

Q Was [Davis] a violent, mean, bullyish [sic]
type kid, as these kids went? Put that in
context for us.

A No, he was not a mean, bullyish [sic] kind of
kid. He was fairly successful in our program,
as a matter of fact. He was quite successful.
We have a level system of graduated -- a level
system, whereby we can provide kids with
feedback as to what their behaviors are and
what kind of behaviors they need to change.
And [Davis] was able to negotiate that system

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Additionally, McKimmey read Davis' social history report that was

prepared upon his admittance to the unit. Under recommendations,

the report stated: "a proper placement outside the home can be

obtained for this patient and he can gain some direction in a

positive way. He has insight to this need and indicates he wants

to find somewhere else to go other than into the home."

David Adcock, Davis' special education teacher in the sixth

and seventh grades, testified that, although Davis was learning

disabled and had low self-esteem, he was a "tender-hearted, a very

kind young man". Another teacher at this same time described Davis

as "cooperative ... very creative, very calm, anxious to please".

quite well.

....

Q ... Did [Davis] seem to like the structure and
the reward system?

A Quite well.

Q Did he respond to that?

A Yes, he did like it. He liked it in the sense
that he did quite well at it, and -- [y]es, he
did.

McKimmey also discussed a five-color coding system the adolescent
unit utilized to identify to the patients their progress. He
identified green as the highest color but described it as "fairly
rare, because when somebody reaches that high, they're ready to go.
In other words, they're doing quite well". Later, McKimmey
testified that "[Davis] had achieved the highest color level in our
system". Subsequently, Davis was downgraded because of an incident
at the unit, but McKimmey dismissed this as a "phenomenon on
adolescent treatment units" wherein the patient causes an incident
upon learning that they are scheduled to be discharged. It is an
attempt, by the patient, to stay in the unit.

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 The evidence Davis did present indicates that, despite

whatever condition he may have suffered under, Davis was subject to

change and was not unable to learn from his mistakes. Based on

this evidence, and the earlier quoted mitigating instruction,

Davis' jury was not "compelled" to answer the second special issue

in the affirmative; it could give mitigating effect to what

evidence there was regarding his condition.9

In conclusion, there are independent bases for concluding that

the Penry claim fails: (1) Davis failed to present constitutionally

relevant mitigating evidence; but, assuming it was presented, that

evidence was not beyond the effective reach of the jury under

either (2) the first (deliberate act) or (3) second (continuing

dangerousness) special issues. Because Davis does not make a claim

within the ambit of Penry, he is seeking a new rule of

constitutional law on collateral review. Accordingly, his claim is

barred by Teague, and we REVERSE the district court on this issue.

9
For example, during closing argument at the punishment phase,
Davis' attorney acknowledged that Davis functioned well in a
structured environment:

Let's focus on this future dangerousness as it
really is in the concrete world. He -- If he is
not given the death penalty, he is going to serve a
life sentence in the Texas Department of
Corrections. That is his future environment that
we are talking about, and I don't need to tell
anybody that it is a very structured environment.

....

But one of the main themes that you will see
all through these reports is that when you put this
little boy, or this teenager, or whatever he was at
that stage, in a situation with a lot of structure,
he did pretty damn good. He did good.

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 B.

The trial court instructed the jury that if it answered both

special issues "yes", the sentence would be death; if it answered

"no" to either, or both, the sentence would be confinement for

life. See TEX. CODE CRIM. PROC. ANN. art. 37.071(e) (Supp. 1986).10

It then instructed: "You may not answer any issue `yes' unless you

agree unanimously. You may not answer any issue `no' unless ten or

more jurors agree." See TEX. CODE CRIM. PROC. ANN. art. 37.071(d)

(Supp. 1986). But, pursuant to Texas law, it did not inform the

jury that if it was unable to answer either special issue, Davis

would be sentenced to life imprisonment. See TEX. CODE CRIM. PROC.

ANN. art. 37.071(g) (Supp. 1986).11

10
TEX. CODE CRIM. PROC. ANN. art. 37.071(e) (Supp. 1986) provided:

If the jury returns an affirmative finding on
each issue submitted under this article, the court
shall sentence the defendant to death. If the jury
returns a negative finding on or is unable to
answer any issues submitted under this article, the
court shall sentence the defendant to confinement
in the Texas Department of Corrections for life.

As noted, the Texas legislature amended the special issues
statute in 1991. This provision is codified presently, in a
modified form, at TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(g)
(Supp. 1995).
11
In other words, if the jury could not satisfy the requirements
of the "12-10 Rule", then a "hung jury" would result and Davis
would be sentenced to life imprisonment. TEX. CODE CRIM. PROC. ANN.
art. 37.071(g) (Supp. 1986) provided, in pertinent part:

The court, the attorney for the state, or the
attorney for the defendant may not inform a juror
or a prospective juror of the effect of failure of
the jury to agree on an issue submitted under this
article.

This provision is codified now, in substance, at TEX. CODE CRIM. PROC.

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 Davis' cross-appeal centers on the statutory proscription in

article 37.071(g), imposed on the court and counsel, that precludes

them from disclosing to the jurors or veniremen the effect of the

failure to agree on a special issue. Davis contends that this

proscription affected impermissibly the punishment phase of his

trial, as well as jury voir dire. In raising his challenge to

article 37.071(g), he maintains that he is seeking a "reasonable

interpretation" of past precedent, not a new rule barred by Teague.

1.

As a preliminary matter, we turn to Davis' contention that the

district court erred in even considering whether his challenge to

article 37.071(g) was foreclosed by Teague. He maintains that,

because the State did not raise the Teague bar in either its

response to his habeas petition or its summary judgment motion, the

district court should not have considered Teague sua sponte.

Davis recognizes, however, that, even if the State does not

raise Teague, a court still has discretion to consider it. "[A]

federal court may, but need not, decline to apply Teague if the

State does not argue it." Caspari v. Bohlen, ___ U.S. ___, ___,

114 S. Ct. 948, 953 (1994); see also Schiro v. Farley, ___ U.S.

___, ___, 114 S. Ct. 783, 788 (1994). But, Davis contends that,

under the facts of this case, the district court abused its

art. 37.071, § 2(a) (Supp. 1995).

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discretion. He fails, however, to develop this contention; and, we

fail to see any abuse of discretion.12

2.

As noted, the statutory proscription foreclosed the jury from

being advised on the effect of a hung jury on either of the special

issues. Davis maintains that such a limitation deprived the jury

of relevant and material information that was crucial in its

deliberative process.

In Webb v. Collins, 2 F.3d 93 (5th Cir. 1993), we rejected a

virtually identical contention. Webb contended that the statutory

proscription violated the Eighth and Fourteenth Amendments;13 but

we held that consideration of such a claim was precluded by Teague.

Id. at 96. Davis attacks Webb as "incorrectly decided". In

addition to claiming this is not a "new rule", he tries to

distinguish Webb by contending that it should have been decided

based on a procedural bar, not on the basis of Teague.

"[T]here can be no dispute that a decision announces a new

rule if it expressly overrules a prior decision." Graham, 506 U.S.

at ___, 113 S. Ct. at 897. In any event, despite Davis'

protestations, Webb is controlling precedent. E.g., Washington v.

12
We need not address, nor do we decide, the State's contention
that Graham may require sua sponte analysis of Teague. See Graham,
506 U.S. at ___, 113 S. Ct. at 987; Nethery v. Collins, 993 F.2d
1154, 1162-63 (5th Cir. 1993) (King, J., dissenting), cert. denied,
114 S. Ct. 1416 (1994); but see Schiro, ___ U.S. at ___, 114 S. Ct.
at 789 ("Although we undoubtedly have the discretion to reach the
State's Teague argument, we will not do so in these
circumstances").
13
Davis claims the proscription violates also the Fifth and
Sixth Amendments.

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Watkins, 655 F.2d 1346, 1354 n.10 (5th Cir. 1981) (prior panel

decision binds subsequent panel unless intervening en banc or

Supreme Court decision), cert. denied, 456 U.S. 949 (1982).

3.

Davis asserts next that the prohibition against informing a

venireman of the effect of a hung jury deprived him of adequate and

proper information on which to exercise a peremptory challenge. He

claims that such an impediment to defense counsel's information

seeking process during voir dire constitutes constitutional error.14

Regardless, Davis fails to identify any precedent indicating

that he is not seeking a new rule on collateral review. Although

defense counsel is entitled to question veniremen in order to

exercise peremptory challenges intelligently, Davis has failed to

demonstrate how disclosing the provisions of article 37.071(e) to

a venireman affects this process. Concerns regarding whether a

venireman will stand firm in the face of overwhelming opposition

from fellow jurors can adequately be addressed without disclosing

to that venireman the statutory effect of three or more "no" votes.

Accordingly, Davis' second challenge to article 37.071(g) is

foreclosed by Teague.

14
Davis' contention assumes that juror bias or misconception
automatically derives from disallowing the venire to be informed of
the effect of a deadlock. In essence, if a defendant is permitted
to disclose the effect of a hung jury on the special issues to a
venireman, his counsel would be able to sift through the venire to
locate a single "no" vote.

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 4.

Under Teague, new rules may be applied in habeas proceedings

only if they come within "one of two narrow exceptions". Saffle,

494 U.S. at 486. The first exception applies to new rules that

place an entire category of conduct beyond the reach of the

criminal law or addresses a "substantive categorical guarante[e]

accorded by the Constitution". Id. at 494 (quoting Penry, 492 U.S.

at 329). The second exception applies to new "watershed rules of

criminal procedure" that are necessary to the fundamental fairness

and accuracy of the criminal proceeding. Id. at 495. Davis claims

the latter exception is implicated in this case.

Davis failed, however, to raise this issue before the district

court. Accordingly, this claim is not properly before us, and

should not be considered for the first time on appeal. Earvin v.

Lynaugh, 860 F.2d 623, 628 (5th Cir. 1988), cert. denied, 489 U.S.

1091 (1989). Even if this claim were properly before us, and as

this court noted in Sawyer v. Butler, 881 F.2d 1273 (5th Cir. 1989)

(en banc), aff'd sub nom. Sawyer v. Smith, 497 U.S. 227 (1990), the

second Teague exception is designed to redress constitutional

violations that "so distort the judicial process as to leave one

with the impression that there has been no judicial determination

at all, or else skew the actual evidence crucial to the trier of

fact's disposition of the case". Id. at 1294. "A rule that

qualifies under this exception must not only improve accuracy, but

also `"alter our understanding of the bedrock procedural elements"'

essential to the fairness of a proceeding." Sawyer, 497 U.S. at

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242 (quoting Teague, 489 U.S. at 311 (quoting Williams v. United

States, 401 U.S. 675, 693 (1971) (Harlan, J., concurring in

judgments in part and dissenting in part))). Davis has failed to

demonstrate that the proscription of article 37.071(g) is of such

a nature as to "so distort" the accuracy of the jury's answers to

the special issues.

5.

Noting that he has challenged the constitutionality of article

37.071(g) at every stage (trial, on direct appeal, in his petition

for certiorari, and in his state and federal habeas proceedings),

Davis encourages this court to create an additional exception to

Teague: if a defendant demonstrates that he has raised his

constitutional complaint in every forum, and it has been rejected

(for reasons other than delay or procedural default), then,

notwithstanding Teague, a federal court should review the merits of

his challenge.

As before, Davis raises this for the first time on appeal.

Regardless, in essence, he is not asking us to fashion an

additional Teague exception. Rather, his contention is but a

further attempt to have us apply the second Teague exception; one

he does not meet.

III.

For the foregoing reasons, we AFFIRM in part, REVERSE in part,

and REMAND with instructions to deny habeas relief.

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