Parker v. Scott

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

_______________

No. 92-4213
_______________

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)
__________________________________________________
June 19, 1995

Before SMITH and EMILIO M. GARZA, Circuit Judges, and BERRIGAN,
District Judge.*

EMILIO M. GARZA, Circuit Judge:*

William Robert Parker's Petition for Rehearing is DENIED.

However, we withdraw our prior opinion and substitute the

following:

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

*
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opinion should not be published.
appeals the dismissal of his habeas petition; we affirm.

I

A Texas jury convicted William Robert ("Billy Bob") Parker of

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,

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(5) and the trial court's holding that a prejudicial question posed

by the State during Parker's competency hearing was harmless error.

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

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court instructed the jury that: "A person commits the offense of

murder if he intentionally or knowingly causes the death of an

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

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 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
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.

Our review is 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

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. United States v. Baytank (Houston),

Inc., 934 F.2d 599, 607 (5th Cir. 1991). While we have often

refused to consider complaints of erroneous jury instructions under

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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

present contention under the doctrine of invited error." Id.2

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,

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").
2
We concluded, however, that: "Our review of this claim, therefore,
is limited to plain error at the most." Id. In the context of jury instructions,
"[p]lain 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)).

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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. 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

erroneous as to constitute a miscarriage of justice. The proper

grounds for a finding of murder were stated or implied repeatedly

in the charge.3 Also, the charge instructed the 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.4 Thus, the invited error doctrine precludes our

3
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
defendant guilty of murder, as charged in the indictment, and so say your
verdict."
4
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.

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review of the aggravated assault instruction in Paragraph VII.5

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

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

5
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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to exploit any errors in Paragraphs I and VII,6 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

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

6
See supra note 5.

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the jury to disregard the question.7 "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.

ENTERED FOR THE COURT:

))))))))))))))))))))))))))))))

United States Circuit Judge

7
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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