IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-20826
_______________
JEFF EMERY,
Petitioner-Appellant,
VERSUS
GARY JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
September 10, 1997
Before KING, SMITH, BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jeff Emery, proceeding in forma pauperis, appeals the denial
of his petition for writ of habeas corpus. Concluding that several
of his claims are barred by procedural default and that the others
are without merit, we affirm and vacate the stay of execution.
I.
A.
One day in 1979, LaShan Muhlinghaus returned to her apartment
and undressed. Unbeknownst to her, Emery, an accomplished burglar,
had entered her apartment using a stolen pass key. When
Muhlinghaus entered the apartment, Emery hid in her roommate’s
closet.
Muhlinghaus went into her roommate’s bedroom to return a dress
she had borrowed. Emery attacked Muhlinghaus, stabbing her twenty-
five times. After she was dead, Emery had sexual intercourse with
her body. The police did not find any evidence that Emery stole
anything.
Emery returned to the house where he lived with his wife,
Deborah Emery (“Deborah”). After showering and disposing of his
blood-stained knife and clothes, Emery drove to the scene of the
crime with Deborah to observe the police investigation. Emery
confessed his actions to his wife and later to James Smith, his
foster brother, and Marie Michaeloff.
Emery assaulted his wife at least every other day. Although
he usually hit her with his fists, he occasionally used a metal
bar, ashtrays, nicknacks, and lighters. He also would pound her
head on the bathtub. At least once, he hit her child, who was a
toddler, across the room. Finally, in July 1982, Deborah began
divorce proceedings. Five months later, she reported Emery’s
crimes to the police.
B.
Emery was convicted of capital murder during the commission of
a burglary, see TEX. PEN. CODE ANN. § 19.03(a)(2) (Vernon 1994), and
was sentenced to death in 1986. The Texas Court of Criminal
2
Appeals reversed because portions of the trial transcript had been
stolen. See Emery v. Texas, 800 S.W.2d 530 (Tex. Crim. App. 1990)
(en banc).
The state retried Emery and obtained a second conviction,
whereupon the jury sentenced him to death in 1991. On appeal,
Emery unsuccessfully argued, inter alia, that the jury instructions
at the penalty phase were inadequate because they did not allow the
jury to consider all relevant mitigating evidence. See Emery v.
Texas, 881 S.W.2d 702, 711-12 (Tex. Crim. App. 1994), cert. denied,
513 U.S. 1192 (1995).
C.
In 1995, Emery filed his first state habeas petition, arguing,
inter alia, that his right to testify on his own behalf had been
denied and that his counsel rendered ineffective assistance by
opening the door to the admission of his confession to Deborah and
his history of burglary and by not objecting to the introduction of
evidence that he slapped his wife. The state habeas trial court
conducted an evidentiary hearing and issued various findings of
fact.1 The Texas Court of Criminal Appeals denied the habeas
petition on the merits in August 1995.
In November 1995, Emery filed a second state habeas petition,
1
In Texas, all post-conviction habeas petitions are decided by the Court
of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN. art 11.07, § 2(a) (Vernon Supp.
1994) (amended 1995) (current version at TEX. CODE CRIM. PROC. ANN. art 11.07, § 3
(Vernon Supp. 1997)). When a habeas petition requires the resolution of
questions of fact, the state trial court that rendered the conviction performs
the fact-finding function. See id. § 2(c). The decision whether to issue the
writ still remains with the Court of Criminal Appeals.
3
raising several new issues, including general challenges to Texas’s
death penalty scheme and new claims of ineffective assistance based
on counsel’s having convinced Emery not to testify and having not
objected to a particular part of the jury charge. While that
petition was pending, Emery filed the instant federal habeas
petition.
Texas follows the rule that a state prisoner may seek habeas
relief in state or federal court, but not both. Consequently, the
Texas courts refuse to consider a habeas petition while a federal
petition is pending. See Ex parte Green, 548 S.W.2d 914, 916 (Tex.
Crim. App. 1977). In February 1996, the Court of Criminal Appeals
invoked this principle and dismissed Emery’s second state habeas
petition. In August 1996, the federal district court denied Emery
relief on all his claims but granted a certificate of probable
cause (“CPC”) to appeal. See Emery v. Johnson, 940 F. Supp. 1046,
1065 (S.D. Tex. 1996).2
II.
A.
Our analysis of the claims that Emery raised only in his
second state habeas petition is complicated by the doctrine of
2
Section 102 of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-18 (1996), amended
28 U.S.C. § 2253 to require a “certificate of appealability” before a final order
in a habeas proceeding can be appealed. Because Emery filed his habeas petition
in 1995, well before the effective date of the AEDPA, this new requirement does
not apply to him, and the grant of a CPC is sufficient to vest jurisdiction in
this court. See Shute v. Texas, 117 F.3d 233, 236 n.1 (5th Cir. 1997) (on
rehearing). Similarly, the new standards of review contained in § 104 of the
AEDPA, 110 Stat. at 1218-19, do not apply to this petition. See Green v.
Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997).
4
procedural default. A federal court may not consider a state
prisoner’s constitutional claim if the state courts based their
rejection of that claim on an adequate and independent state
ground. See Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996). It
is not always easy, however, to determine whether a state court
decision denying collateral relief is based on state procedural
grounds or, instead, on the court’s interpretation of federal law.
The Supreme Court has supplied us with a useful default rule: We
will not apply a procedural default unless the last state court to
consider a particular claim “clearly and expressly” relied on an
independent and adequate state ground. Coleman v. Thompson,
501 U.S. 722, 735 (1991).
This default rule does not apply, however, “if the petitioner
failed to exhaust state remedies and the court to which the
petitioner would be required to present his claims in order to meet
the exhaustion requirement would now find the claims procedurally
barred.” Id. at 735 n.*. In such a case, “there is a procedural
default for purposes of federal habeas regardless of the decision
of the last state court to which the petitioner actually presented
his claims.” Id.
B.
1.
The federal district court reasoned that Emery’s claims were
procedurally barred because, if he tried to exhaust them in a
proper manner, they would be barred by TEX. CODE CRIM. PROC. ANN.
5
art. 1.071, § 5(a) (Vernon Supp. 1997), which prohibits the filing
of subsequent or untimely habeas applications, absent cause or
actual innocence.3 See Ex parte Davis, 947 S.W.2d 216 (Tex. Crim.
App. 1996) (en banc) (upholding the constitutionality of article
11.071). In a habeas context, we review the district court’s
determinations of law de novo and its findings of facts for clear
error. See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994).
Because article 11.071 is a new statute that is largely
uninterpreted by state cases, we instead consider whether we should
affirm on the basis of the abuse-of-the-writ doctrine. We may
affirm a judgment on any ground supported by the record. See
Mangaroo v. Nelson, 864 F.2d 1202, 1204 n.2 (5th Cir. 1989).4
A second habeas petition is an abuse of the writ if the
prisoner urges grounds that could have been, but were not, raised
in his first habeas petition. See Russell v. Collins, 944 F.2d
202, 205 (5th Cir. 1991) (per curiam). Such a doctrine, which the
federal courts recognize, encourages efficient justice by requiring
a prisoner to present all claims for relief at once. See McClesky
v. Zant, 499 U.S. 467, 493 (1991). The Texas courts have
recognized this doctrine for over twenty years. See, e.g.,
3
Article 11.071 applies only to capital cases, but TEX. CODE CRIM. PROC. ANN.
art. 11.07, § 4 (Vernon Supp. 1997), adopts the same rule for non-capital felony
convictions.
4
If the state does not plead procedural default in the district court, it
is waived. See United States v. Marcello, 876 F.2d 1147, 1153 (5th Cir. 1989).
We have recognized a limited exception to this rule when one state implicitly
waives the default of a different state’s procedural rule. See Trest v. Whitley,
94 F.3d 1005, 1007-09 & n.2 (5th Cir. 1996), cert. granted sub nom. Trest v.
Cain, 117 S. Ct. 1842 (1997). Although the district court did not rely on the
abuse-of-the-writ doctrine in finding a procedural default, the state urged this
ground both on appeal and before the district court.
6
Ex parte Carr, 511 S.W.2d 523, 525-26 (Tex. Crim. App. 1974).
An abuse of the writ can qualify as a procedural bar. See
Murch v. Mottram, 409 U.S. 41, 45-46 (1972) (per curiam). A
procedural bar is not adequate, however, unless it is applied
“strictly or regularly” to the “vast majority of similar claims.”
Amos v. Scott, 61 F.3d 333, 339 (5th Cir.), cert. denied,
116 S. Ct. 557 (1995). Historically, Texas courts have failed to
apply the abuse-of-the-writ-doctrine in a strict or regular manner,
and, therefore, we have refused to honor it. See Lowe v. Scott,
48 F.3d 873, 876 (5th Cir. 1995).
This changed in 1994, when the Texas Court of Criminal Appeals
announced the adoption of a strict abuse-of-the-writ-doctrine,
tempered only by an exception for cause. See Ex parte Barber,
879 S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994) (en banc) (plurality
opinion). Barber represents an adequate procedural bar for
purposes of federal habeas review. See Fearance v. Scott, 56 F.3d
633, 642 (5th Cir. 1995).
Emery has not cited any post-Barber case allowing an abusive
writ, and our research has revealed none. Therefore, we are bound
to follow Fearance and to hold that Emery’s violation of Texas’s
abuse-of-the-writ-doctrine constitutes an independent and adequate
procedural bar to our consideration of his barred claims.5
2.
5
Emery filed a motion to certify to the Court of Criminal Appeals certain
questions concerning the interpretation and application of article 11.071.
Because our decision does not rely on that article, we deny this motion as moot.
7
A petitioner may overcome a procedural default by showing
cause and prejudice for that default. See Tucker v. Johnson,
No. 97-20101, 1997 WL 367348, at *4 (5th Cir. July 2, 1997) (on
petition for rehearing). Emery argues that his failure to
anticipate the passage of article 11.071 constitutes cause for his
failure to plead all his grounds for relief in his first habeas
petition.
Emery filed his first state habeas petition in July 1995, over
one year after Barber was decided, so he cannot claim ignorance of
his duty to plead all his grounds for relief during his first
petition for collateral review. Therefore, he has shown no cause
for his violation of Texas’s abuse of the writ doctrine.
III.
A.
Emery raises several ineffective-assistance-of-counsel claims.
To establish ineffective assistance, he must demonstrate both
deficient performance by his counsel and prejudice resulting from
that deficiency. See Strickland v. Washington, 466 U.S. 668, 687
(1984).
We compare counsel’s performance to an objective standard of
reasonableness, mindful of the strong presumption of adequacy. We
will not find inadequate representation merely because, with the
benefit of hindsight, we disagree with counsel’s strategic choices.
See Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983) (on
petition for rehearing). To establish prejudice, Emery must
8
demonstrate that counsel’s errors “render the verdict fundamentally
unfair or unreliable.” Carter v. Johnson, 110 F.3d 1098, 1110 (5th
Cir. 1997).6 Specifically, he must “show a 'reasonable
probability' that the jury would have otherwise harbored a
reasonable doubt concerning guilt.” Id.
B.
1.
Emery’s first ineffectiveness claim concerns his counsel’s
questioning Deborah about his confession, thus waiving the marital
privilege, see TEX. R. CRIM. EVID. 504(1), and allowing the admission
of the confession. Explaining this claim requires some exploration
of its factual background.
Under Texas law, the marital privilege extends only to
confidential communications, not observed acts. See Sterling v.
Texas, 814 S.W.2d 261, 261-62 (Tex. App.SSAustin 1991, writ ref’d)
(per curiam). Deborah testified that Emery returned to the house
shortly after the murder with a blood-stained knife and blood-
stained underpants and “had blood on his arms, smeared on his arms
and his hands, on his shirt, and his pants, and some on his work
boot.” She testified that Emery drove her to the site of the
murder to watch the investigation and that Emery told James Smith
that he had killed a man in Texas and instructed Smith to request
6
Although Murphy and Carter were influenced by our erroneous view of the
applicability of the AEDPA to cases pending when the act became effective, they
remain precedent to the extent that they “'do[] not conflict with Lindh’s
conclusion that the chapter 153 amendments do not apply retroactively.'” Tucker,
1997 WL 367348, at *3 n.4 (quoting Green, 116 F.3d at 1120 n.2).
9
verification from Debbie.
Impeaching this testimony was vital to Emery’s defense of
mistaken identity. John Quinn, his counsel, feared that an
effective cross-examination would open the door to Deborah’s
testimony about Emery’s confession. Furthermore, at that time,
Emery still intended to testify. Quinn feared that Emery would
make statements that would waive the privilege and allow the
admission of the confession.
To be successful, the mistaken-identity theory required the
defense to obtain a high degree of credibility with the jury.
Consequently, one of counsel’s strategic priorities was to be
honest and straightforward. Accordingly, Quinn wanted to
introduce, and lessen the impact of, any incriminating evidence
that the prosecution might present.
2.
Emery argues that Quinn was incorrect in his belief (1) that
Emery would testify and (2) that an effective cross-examination
would open the door to the admission of Emery’s confession. It is
difficult to determine whether Quinn was correct in the latter
belief. The record reveals that the most effective portion of the
cross-examination was Quinn’s careful and detailed analysis of the
inconsistencies among Deborah’s various statements to the police.
Whether the Texas Rules of Criminal Evidence7 would have required
7
See TEX. R. CRIM. EVID. 106 (“When a writing or recorded statement or part
thereof is introduced by a party, an adverse party may at that time introduce any
(continued...)
10
the admission of Deborah’s entire statement, including her report
of Emery’s confession, is an open question.
We need not resolve this issue of state evidentiary law. The
Sixth Amendment does not guarantee criminal defendants the right to
error-free representation. See Skillern v. Estelle, 720 F.2d 839,
851 (5th Cir. 1983). Standing alone, counsel’s erroneous judgment,
if any, about the requirements of state law does not constitute
deficient performance unless it is so unreasonable that it rebuts
the strong presumption that counsel’s performance “falls within the
wide range of reasonable professional assistance.” Washington,
466 U.S. at 689.
Quinn’s judgment that an effective cross-examination of
Deborah would have been impossible without opening the door to the
admission of the confession was reasonable. Similarly, as
explained in more detail infra, Quinn’s belief that Emery would
testify and open the door to that confession also was reasonable.
These reasonable judgments, even if ultimately erroneous, satisfy
the standard for effective assistance of counsel.
3.
In any event, Emery has not demonstrated prejudice. At trial,
both Smith and Michaeloff testified that Emery had confessed to
(...continued)
other part or any other writing or recorded statement which ought in fairness to
be considered contemporaneously with it.”); TEX. R. CRIM. EVID. 107 (“When part of
an act, declaration, conversation, writing or recorded statement is given in
evidence by one party, the whole on the same subject may be inquired into by the
other . . . .”).
11
them. Although Emery originally told Smith that he had stabbed a
man, he later identified Muhlinghaus in a picture. Michaeloff
recounted a confession that was far more detailed and accurate than
that reported by Deborah.
In short, Deborah’s testimony about the confession was
duplicative of testimony given by Smith and Michaeloff. Emery
cannot demonstrate that a third source of the same confession would
have sufficed to change the result of his trial.8 The lack of
prejudice is an alternative ground for denying Emery relief on this
claim.
C.
Emery’s second ineffectiveness claim is akin to the first.
Quinn questioned Deborah about Emery’s practice of committing pass
key burglaries, opening the door to Mitchell McGrady’s testimony
about Emery’s stealing quarters and televisions. Emery argues
that, by opening the door to the admission of this evidence of an
extraneous act, Quinn rendered ineffective assistance.
According to Emery’s affidavit, he intended to testify about
his criminal history as a pass key burglar. His theory was that,
as an experienced burglar, he would not have entered Muhlinghaus’s
home, as it contained nothing worth stealing. At the time that
Deborah testified, Emery still intended to take the stand.
As mentioned above, Quinn’s trial strategy required him to
8
Cf. Romero v. Lynaugh, 884 F.2d 871, 879 (5th Cir. 1989) (holding that a
prisoner failed to establish prejudice from the admission of cumulative evidence).
12
maintain credibility by not appearing to have anything to hide.
Furthermore, Quinn reasonably believed that it was better strategy
to vet damaging information himself, rather than allowing the
prosecution to introduce it. It is not our province, on habeas
review, to second-guess counsel’s strategic choices.
Finally, Emery argues that Quinn was ineffective for not
requesting a limiting instruction for this evidence. We must
reject this argument, as the state trial court stated that it would
not have granted such a limiting instruction, because the defense
introduced the evidence. Although Emery argues that this is an
incorrect interpretation of state law, “it is not the province of
a federal habeas court to reexamine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991).
D.
Emery’s third ineffectiveness claim concerns Quinn’s failure
to object when the prosecution questioned McGrady about Emery’s
slapping Deborah. This claim is easily dismissed.
As we have explained, a successful defense required impeaching
Deborah’s testimony. Part of the cross-examination centered on
Deborah’s delay in reporting Emery’s crime. Deborah stated that
the delay was caused by her fear of Emery. Consequently, Emery’s
slapping Deborah was admissible to show the reasonableness of her
fear. Objection to its admission would have been futile, and
failure to assert a meritless objection cannot be grounds for a
13
finding of deficient performance. See Clark v. Collins, 19 F.3d
959, 966 (5th Cir. 1994).
Regarding Quinn’s failure to request a limiting instruction
that this evidence not be considered for general criminal
propensity, Emery has not even argued that the lack of that
instruction rendered the trial fundamentally unfair or unreliable.
We conclude that Emery was not prejudiced by this failure.
IV.
A.
Emery alleges that he was denied the right to testify at
trial. A criminal defendant has a constitutional right to testify
on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 49-53
(1987). This right can be waived only by the defendant, not by his
counsel. See United States v. Teague, 953 F.2d 1525, 1532 (11th
Cir. 1992) (en banc). A waiver of this right must be knowing and
voluntary. See United States v. Blum, 65 F.3d 1436, 1444 (8th Cir.
1995), cert. denied, 116 S. Ct. 824 (1996).
Emery did not testify at his first trial. Because he was
convicted there, he was convinced that he should do everything in
the second trial differently. At the beginning of the trial, he
informed his counsel that he wished to testify.
Emery and Quinn discussed his testimony several times during
the trial. Emery told Quinn radically different versions of what
happened the night of the murder. For example, at one point, he
told Quinn that he had stabbed a black male using a screwdriver to
14
break into Emery’s car, and that was why he was covered with blood.
Somewhat later, Emery informed Quinn that he had met
Muhlinghaus in a bar and eventually had an affair with her. He
stated that he killed her to prevent her from exposing the adultery
to his wife. When Quinn informed him that the jury was unlikely to
believe that story, Emery suggested returning to the “screwdriver
in the parking lot story.” Faced with these conversations, Quinn
reasonably believed that Emery intended to commit perjury. Because
of this, he threatened to leave the courtroom if Emery insisted on
testifying.
In addition, Quinn believed that Emery would not stand up well
to cross-examination, that the jury would not believe him, and that
his testimony would negate the defense theory of mistaken identity.
Quinn’s co-counsel agreed with his assessment of the wisdom of
testifying but did not threaten to leave the courtroom.
The night before Emery would have testified, his counsel
finally managed to convince him not to do so. At trial the next
day, Quinn engaged in a lengthy colloquy with Emery, explaining to
him that he had the right to testify regardless of counsel’s
advice. Emery stated on the record that he understood his rights
and that he was voluntarily declining to testify.
B.
The state habeas court made a factual finding that Emery
understood his rights and that Quinn’s threats did not coerce Emery
into not testifying. Absent a procedural defect in the state
15
habeas proceeding, the state court’s factual findings are presumed
to be correct unless they are “not fairly supported by the record.”
28 U.S.C.A. § 2254(d)(8) (West 1994). Although Emery makes the
bold statement that the record is devoid of evidence that his
decision about testifying was not based on Quinn’s “threat,” we
note that this factual finding is supported not only by Quinn’s
affidavit but by Emery’s own statements under oath.9
Our review of the record reveals a great deal of evidence that
Emery understood his right to testify and that his decision not to
do so was based on Quinn’s persuasion and not his coercion. In
addition to the statements of Quinn and Emery, we note that Quinn’s
absence during Emery’s testimony would have caused him little harm,
as Quinn’s co-counsel intended to remain in the courtroom and
perform the defense duties. There also is considerable evidence in
the record that Emery was very strong-willed and unlikely to allow
his decisions to be controlled by pressure from other persons.
Because we find sufficient support in the record, we are bound
by the state court’s factual findings. Considering that Emery
understood his right to testify and that Quinn’s actions did not
coerce him into not doing so, Emery's right to testify was not
violated.
9
Emery also argues that the state habeas court’s factual finding should
be disregarded because “[i]t ignores the perjury sponsored by trial counsel at
trial.” Emery suggests that Quinn suborned perjury by asking Emery whether
anyone had coerced him into not testifying, knowing that he would say he had not
been coerced. Of course, Emery’s argument assumes its conclusion. If, as the
state habeas court found, Quinn did not coerce Emery into testifying, Quinn did
not suborn (and Emery did not commit) perjury.
16
V.
Emery makes a half-hearted argument, based on Penry v.
Lynaugh, 492 U.S. 302 (1989), that the Texas sentencing scheme, as
applied through the jury instructions, was unconstitutional because
it prevented the jury from considering evidence of the abuse he
suffered as a child. Instructional error of this sort does not
amount to a constitutional violation “unless there is a reasonable
likelihood that the jury applied the challenged instruction in a
way that prevents the consideration of constitutionally relevant
mitigating evidence.” Lackey v. Scott, 28 F.3d 486, 489 (5th Cir.
1994) (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993))
(internal quotation marks omitted). Furthermore, the mitigating
evidence “must demonstrate a 'uniquely severe permanent handicap[]
with which the defendant was burdened through no fault of his
own.'” Turner v. Johnson, 106 F.3d 1178, 1189 (5th Cir. 1997)
(quoting Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir. 1992) (en
banc), aff’d, 506 U.S. 461 (1993)).
Whatever faults may have existed in the death penalty scheme
that Texas maintained prior to 1991, see TEX. CODE CRIM. PROC. ANN
art. 37.071(b) (Vernon 1981 & Supp. 1991) (amended 1991) (current
version at TEX. CODE CRIM. PROC. ANN. art. 37.071(b)-(e) (Vernon Supp.
1997)),10 the trial court had the benefit of Penry and correctly
10
Texas modified its death penalty procedures to comply with Penry’s
teachings. See TEX. CODE CRIM. PROC. ANN. art 37.071 (Vernon Supp. 1997). Although
the relevant amendment became effective September 1, 1991, and the charge on
punishment was given November 26, 1991, the amendment applied only to offenses
committed before the effective date of the act. See Act of June 16, 1991,
72d Leg., R.S., ch. 838, § 5, 1991 Tex. Sess. Law Serv. 2898, 2901 (Vernon).
17
modified its instruction to comport with the Supreme Court’s
decision. Specifically, the court instructed the jury:
[Y]our answers to the Special Issues, which determine the
punishment to be assessed the defendant by the court,
should be reflective of your finding as to the personal
moral culpability of the defendant in this case.
When you deliberate about the questions posed in the
Special Issues, you are to consider any mitigating
circumstances supported by the evidence presented in both
phases of the trial. A mitigating circumstance may be
any aspect of the defendant’s background, character, and
record, or circumstances of the crime, which you believe
makes a sentence of death inappropriate in this case. If
you find that there are any mitigating circumstances, you
must decide how much weight they deserve and give them
effect when you answer the special issues. If you
determine, in consideration of this evidence, that a life
sentence, rather than a death sentence, is an appropriate
response to the personal moral culpability of the
defendant, you are instructed to answer the Special Issue
under consideration “No”.
This instruction allowed the jury to consider any appropriate
mitigating circumstance, including a history of child abuse, and
required the jury not to sentence Emery to death if a life sentence
was appropriate in light of his moral culpability. The instruction
adequately addressed the Court’s concerns about Texas’s death
penalty scheme by giving the jury the ability to consider any
appropriate mitigating circumstance.
Accordingly, the judgment is AFFIRMED, and the stay of
execution is VACATED.
18