IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10730
(Summary Calendar)
__________________
REYNALDO MONTEZ GARCIA, SR.,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
(USDC No. 5:95-CV-28-C)
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April 1, 1996
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
This is an appeal from the district court's order denying
appellant's habeas petition under 28 U.S.C. § 2254. Appellant
argues that: (1) the state court's reasonable doubt jury
instruction was not constitutionally sufficient; (2) the state
improperly introduced extraneous offenses into evidence; (3) the
state improperly referred to evidence not introduced at trial
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
during closing argument; (4) the state's introduction of the knife
violated appellant's constitutional rights; (5) the evidence was
insufficient to support his conviction; (6) the state court
improperly cumulated his setences; and (7) appellant's trial and
appellate counsel were ineffective. We have reviewed the record
and the district court's opinion and find no reversible error.
Accordingly, we affirm the district court’s judgment concerning the
above issues for essentially the reasons given by the district
court. Garcia v. Johnson, No. 5:95-CV-28-C (N.D. Tex. Aug. 3,
1995).
For the first time on appeal, appellant argues that the
cumulation of his sentence for the retaliation offense with his
sentence for the indecency offense places him in double jeopardy.
Because this purely legal issue is raised for the first time on
appeal, we review only for plain error. Robertson v. Plano City of
Texas, 70 F.3d 21, 23 (5th Cir. 1995). The district court did not
plainly err in cumulating appellant’s sentences as the sentences
were imposed for offenses which are different for double jeopardy
purposes. See United States v. Henderson, 19 F.3d 917, 926 (5th
Cir.), cert. denied, 115 S. Ct. 207 (1994).
AFFIRMED.
2