On October 31, 1979, a motorist on the west service road of Interstate 35 north of Georgetown, Texas, found the body of a young woman at the foot of a culvert, naked except for a pair of orange socks. There was almost nothing else to go on: a homemade sanitary napkin, two matchbook covers, one from an Oklahoma motel with writing nobody could read, and an abalone shell ring on her right hand. She was buried as an unidentified woman. In August 2019, forty years later, the Williamson County Sheriff’s Office identified her as Debra Jackson, twenty-three, of Abilene, a name that appears nowhere in these opinions. Henry Lee Lucas was convicted of her murder and sentenced to death on the strength of what he told officers, and these five decisions are the record of what the courts made of it.
The 1989 direct appeal, by Judge W.C. Davis of the Texas Court of Criminal Appeals, is the longest document here and the closest look any court took at a Lucas confession. Lucas was arrested in Montague County on June 11, 1983, on a weapons charge, sent word through a jailer that he wanted to talk, and handed the sheriff and a Texas Ranger a statement confessing to a string of murders. Six statements made between June 1983 and February 1984 went before the jury, among them a July 31, 1983, interview in which he gave the Williamson County sheriff a drawing of the victim, and a videotape in which he explained away Florida work records that put him on a roofing job at the Jacksonville Naval Air Station around the time she died by suggesting he had paid part of his wages to be marked present. The defense built its case on those records, calling the company’s bookkeeper, the foreman, the job superintendent and a grocer who cashed his paychecks. The court affirmed.
The later opinions are about the sentence and, at the end, about innocence. In April 1992 the Court of Criminal Appeals denied habeas relief on the claim that the jury had no way to give effect to evidence of his childhood and mental illness; the Supreme Court of the United States sent the case back, and in June 1994 the Texas court denied relief again over a dissent by Judge Overstreet, who would have set the conviction aside. The Fifth Circuit’s two decisions follow the federal petition, which argued among much else that the State’s own Lucas Report and the public statements of former Attorney General Jim Mattox showed he did not kill the woman on the interstate. In January 1998 that court affirmed the denial of relief. Governor George W. Bush commuted the sentence to life later in 1998, and Lucas died in prison on March 12, 2001.
Nothing in these opinions ties Lucas to the woman on Interstate 35 except his own statements and the jury that believed them. The court itself calls the physical and identification evidence scarce, and it records the daily sheets, time sheets and paychecks that placed him in Jacksonville, Florida, when she died; the jury heard all of it and chose the confession. The Lucas Report, prepared for the Texas Attorney General’s Office, doubted a great many of the confessions he gave the Rangers’ task force, and the Fifth Circuit was asked to treat it as proof of innocence and did not. None of these judges knew who the victim was. Read the 1989 opinion beside his handwritten 1985 letter to Sister Clemmie Schroeder, also in this archive, where he denies and admits killings in the same few pages.
These are opinions of the Texas Court of Criminal Appeals and the United States Court of Appeals for the Fifth Circuit, public records that can be reproduced in full. The case against the confession was made by working people from Jacksonville, and we have reduced them to initials: E.K., the bookkeeper who kept the company’s daily sheets; F.E., the foreman, whose own criminal record the State was allowed to put before the jury; M.C., the superintendent who took roll; K.E., a roofer the State called in rebuttal; M.Y., the grocer who cashed Lucas’s checks; and J.R., the owner whose audit came up in the federal petition. The officers, the psychiatrists, Reuben Moore and Faye Munnerlyn of the House of Prayer, whose affidavits about a pistol appear in the habeas record, and the lawyers keep their names.
The text is the Caselaw Access Project’s copy of the Southwestern and Federal Reporters, with each court’s footnotes after its opinion. We closed twenty-two words the printer broke at the end of a line, Boutwell, Munnerlyn and Mattox among them, and left the printing faults as they came: one of Lucas’s lawyers appears as “Danny D. Bums” as well as Danny D. Burns, the psychiatric evidence is called “mental disease/defeet” once, and parts of the 1994 opinion spell Penry as “Penny.” Nothing has been spell-checked or reworded. “Orange Socks,” the name the courts use, is the only one any of them had for her.
Henry Lee LUCAS, Appellant, v. The STATE of Texas, Appellee.
No. 69325.
Court of Criminal Appeals of Texas, En Banc.
March 22, 1989.
Rehearing Denied June 27, 1990.
Arvel (Rod) Ponton, III, El Paso, for appellant.
Ken Anderson, Dist. Atty., Georgetown, Walter C. Prentice, of counsel, Austin, Robert Huttash, State’s Atty., Austin, for the State.
[OPINION BY W.C. DAVIS, Judge. type=majority]
OPINION
W.C. DAVIS, Judge.
Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). After a change in venue from Williamson to Tom Green County, appellant was tried and convicted for the murder-rape of an unidentified woman whose nude body was discovered next to a culvert near Interstate 35 north of Georgetown. The jury returned affirmative answers to the first two special issues under Art. 37.071(b), V.A.C.C.P., and punishment was assessed at death. This direct appeal followed.
On appeal, appellant raises eighteen points of error, fourteen of which encompass claims regarding the admissibility of six aural and visual statements made by appellant to law enforcement officials between June of 1983 and February of 1984. In four other points, appellant challenges the admission of prior convictions for impeachment purposes against a defense alibi witness, the admission of extraneous offenses against appellant, the refusal of the trial court to instruct the jury on the voluntariness of appellant’s confessions and the trial court’s refusal to submit appellant’s requested charge on Art. 37.071(b)(3), V.A. C.C.P. Appellant does not challenge the sufficiency of evidence to support the jury’s verdict or answers to the special issues submitted at the penalty phase of trial. However, a recitation of pertinent facts will be helpful to disposition of the case.
The record reflects that on October 31, 1979, a motorist was driving in a northerly direction on the west service road of Interstate 35 north of Georgetown and south of the Walburg exit when he discovered the nude body of a young woman lying at the foot of a culvert located between the access road and the highway. He immediately drove to a gas station and telephoned the Williamson County Sheriff’s Department. Shortly thereafter, various state and county law enforcement officials arrived at the scene and began the investigation.
Both physical and identification evidence was scarce. The body of the victim was unclothed except for a pair of orange socks. The only other physical evidence discovered in the area was a homemade sanitary napkin, two matchbook covers and an abalone shell ring on the victim’s right hand. Lab tests were conducted on the above-mentioned articles as well as on fingernail clippings, pubic hair samples and particle samples from the woman’s eye, with little result. Testing of the sanitary napkin revealed human blood of an unknown type. One of the matchbook covers, from a motel in Oklahoma, contained unidentified writing. The fingernail clippings were found to include certain red and blue fibers but no trace of human skin. Tests run on the hair and particle samples were inconclusive. The abalone ring was misplaced somewhere between the time it was delivered to the Department of Public Safety Laboratory in Austin and the time of trial. Finally, unsuccessful attempts were made through fingerprint and physical description analysis to identify the victim and her assailant.
Travis County Medical Examiner Roberto Bayardo performed the post-mortem examination on the body. The forensic pathologist testified the cause of death was “asphyxia due to manual strangulation”, marked by “purple cyanotic lividity of the head, neck and upper cheek” caused by ecchymosis, or the rupturing of the capillary vessels or petechiae. Death occurred ultimately from the carotid arteries being cut off, causing asphyxiation. Based upon the contents of the victim’s stomach, Dr. Bayardo said the woman was killed between one and three hours after eating. Judged by the level of rigor mortis in the body, Bayardo thought the woman to have been dead between six and thirty-six hours before the autopsy was performed, and approximately twelve hours before the body was discovered. Forensic investigation did not yield an identification of the victim. In fact, the identity of the woman was still unknown at the time of trial.
On June 11, 1983, appellant was arrested in Montague County on the charge of unlawful possession of a firearm by a felon. See V.T.C.A. Penal Code, § 46.05. While in the Montague County Jail, appellant sent word through a jailor that he wished to speak with W.F. Conway, sheriff of Montague County. Conway and Texas Ranger Phil Ryan met and talked with appellant, and received a handwritten statement appellant had previously made in which he confessed to multiple murders, including that of a Ringo, Texas, woman. After discussing the murder, appellant agreed to have a statement taken regarding that killing. During this conversation appellant also admitted murdering his common-law wife, Becky Powell. Although the instant offense was not discussed at this time, Sheriff Conway was aware of similar unsolved crimes in the Williamson County area and contacted Sheriff Jim Boutwell in Georgetown.
On June 22, 1983, Boutwell spoke with appellant for the first time. After being warned of his rights, appellant agreed to talk with the sheriff. With appellant’s knowledge the conversation was recorded. Prior to finishing the tape-recorded conversation, Boutwell wrote out a statement regarding the instant murder which appellant signed. The statement referred to appellant having picked up a female hitchhiker in Oklahoma, having sex with her at some unidentified off-the-road area before strangling her, having sex with the corpse at a later point in time, then dragging the body out of the car and dropping it into a culvert “somewhere on 1-35, southbound toward San Antonio.... ”
Boutwell testified he took the next statement from appellant on July 31,1983, when he returned to Montague County with a bench warrant for appellant from Williamson County. On that date, appellant gave the sheriff a drawing he had made of the victim and related more details of the crime. Appellant was again warned of his Miranda rights and agreed to the tape-recorded interview, saying he was not interested in talking to a lawyer but did wish to talk more with the sheriff. Boutwell drove appellant to the Williamson County Jail the following day.
On August 2,1983, two videotaped interviews with appellant were made; one at the scene where the victim’s body was discovered and one at the Williamson County Sheriff’s Offices. Appellant was given Miranda warnings at the start of each interview, and his attorney was present at both interviews. In addition to the standard warnings given a criminal defendant at such times, appellant was also warned that his statement could lead to more serious charges being filed against him.
In the first, or road-side video, a handcuffed appellant is seen standing off the road near a guard-rail, behind which the ground slopes downward to a culvert running underneath Interstate 35. Appellant was warned by both the sheriff and his own defense attorney of the possible consequences of making a statement. His attorney uncategorically expressed his professional displeasure at appellant’s cooperative conduct and warned appellant that any statement could lead to more serious charges being filed against him. Appellant identified a picture of the victim and gave a descriptive statement regarding the events leading up to the killing. Following the pattern of his earlier written statement regarding the matter, appellant supplied more details of the incident. After having sex with the woman but not being “satisfied”, appellant said he told the victim he wanted more sex but was refused. The woman then attempted to jump out of the car but her efforts were thwarted when appellant grabbed her. The two fought, almost causing an accident. Appellant then pulled the car over to the side of the road, strangled the woman, put her body in the back seat and drove further south on 135. Later, he again pulled over to the side of the road and copulated with the victim’s corpse. When asked about his conduct after the victim resisted his advances appellant stated that he had already made up his mind to kill the young woman, and that he “preferred sex after death anyway.”
A short while later, a second videotaped statement was taken at Boutwell's office in Georgetown. As with the road-side video, appellant was given his Miranda rights by the sheriff and warned against making any statement by his defense counsel. In response to counsel’s warning, appellant merely stated, “It’s the only way I’ll get peace of mind. If they kill me they kill me.”
As in the earlier video statement, Boutwell questioned appellant regarding the circumstances leading up to the murder. Appellant’s story was consistent with his earlier statements. He told how he struggled with the victim after she refused to have sex with him, how he had to stop the car because of the struggle, how he then killed her, put her in the rear seat of the automobile and had sex with her corpse, and how he then drove south on the highway to the area north of Georgetown where he dumped the woman’s body into the culvert.
Sheriff Boutwell testified he took yet another statement from appellant on November 10, 1983, as he drove appellant from the county jail facility in Denton to the Williamson County lockup. In this audio recording appellant said he had been in the habit of paying a foreman on a Florida roofing job to mark him present on the job site when he was, in fact, absent.
The last statement taken from appellant and played in severely edited form before the jury was a videotaped interview conducted on February 16, 1984, in Williamson County Jail. The particular statements allowed before the jury related to appellant’s Florida work records which showed he had been working at a naval station roofing job at or near the time set by Dr. Bayardo as the time of the victim’s death. Again, the import of the statement was that appellant had paid all or part of his paycheck on several occasions to a foreman in return for being marked as present on the job.
The testimony of Sheriff Boutwell ended the State’s case-in-chief. The defense opened with E.K., secretary and bookkeeper for Southeast Color Coat, Inc., of Jacksonville, Florida. E.K., who knew appellant by sight, testified as the custodian of records for the business. She stated that foremen on the different jobs would fill out a “daily sheet” listing each worker’s name and showing the number of hours worked on the day in question. She said the general superintendent on the Jacksonville Naval Air Station job was M.C., with the foreman being one F.E. Although E.K. had no actual knowledge of any supervisor accepting kickbacks, she agreed that it was possible that absent workers could have been marked present in return for part of the employee’s check.
F.E. took the stand after E.K. He testified it was his practice to check each worker’s name off the master list on the daily sheet as he saw the person on site. F.E. said that he had never received money for checking off the names of absent workers. After a hearing outside the presence of the jury, the State was allowed to question F.E. regarding his prior criminal record. He admitted a 1973 conviction for unauthorized use of electricity, a 1975 conviction for worthless check writing, and a second conviction for bad checks in 1979. F.E. also admitted he had denied the 1975 conviction a few moments earlier at the hearing outside the jury’s presence.
M.C. followed F.E. to the stand. M.C. testified he would take roll on the job site in the morning and afternoon. His time sheets for October 26th, 29th, 31st, and the first of November showed appellant marked as present at the naval air station jobsite. M.C. denied ever taking any bribes or being offered any kickbacks for falsifying work records. Later, after a hearing outside the jury’s presence and over defense objection, the State was allowed to recall M.C. and question him about his criminal past. It was brought to the jury’s attention that M.C. had been convicted of forgery in state district court in 1969, and a year later was again convicted of forgery in federal court. A prison sentence was assessed in both cases.
Following F.E. and M.C. to the stand during the defense case-in-chief was a Jacksonville grocery store owner named M.Y. M.Y. testified appellant would usually cash his paychecks at the store each week. M.Y. stated that a November 1, 1979, check was cashed in his presence, but on cross-examination admitted he was not sure if the signature on the back of the check was that of appellant.
The defense ended its case-in-chief with the expert testimony of a psychologist and of a psychiatrist. Dr. Tom Kubiszyn, a psychologist licensed and certified by the State of Texas, performed a psychological evaluation on appellant of approximately six and a half hours duration on February 28th and 29th of 1984. Dr. Kubiszyn testified that appellant has an IQ in the low average or low normal range, with strong feelings of inadequacy and inferiority, of evasiveness and suspiciousness. He diagnosed appellant as schizophrenic, rather than sociopathic, but partially recanted his earlier diagnosis on cross-examination when he admitted appellant did exhibit some characteristics of a sociopathic disorder. Kubiszyn also agreed that appellant, given his prior violent history in the murders of Kate Rich, Becky Powell and his 1960’s conviction for the murder of his mother, was “potentially dangerous”.
Austin psychiatrist Jay Fogelman concluded the defense case-in-chief. Over a period of three months, Dr. Fogelman conducted five interviews for a total of about six hours with appellant. He described appellant as having an antisocial personality but also suffering from schizophrenia and a schizotypal personality. To treat the schizophrenia, appellant was prescribed the antipsychotic drug Thorazine, a treatment discontinued shortly after June of 1983 but later reintroduced. On cross-examination, Dr. Fogelman stated that he was aware of a 1984 diagnosis different from his own wherein appellant was diagnosed as being a sexual deviate and having a sociopathic personality with a dissocial reaction. In response to a query from the prosecutor, the psychiatrist also opined that appellant was a dangerous individual.
At the rebuttal stage of trial, the State called five witnesses. K.E., a roofer and carpenter for Labor, Inc., testified that M.C. did not call roll every day, and, in addition, testified that appellant did not work every day but would be gone for two or three days at a time. The witness did not remember which particular days appellant was absent from work.
Dr. Clay Griffith, a Dallas psychiatrist, testified he examined appellant in June and again in October of 1988 and found his thought production to be “quite good.” Unlike the defense experts, Griffith found no evidence of any delusional thinking or abnormal thinking or hallucinations, although appellant’s intellectual level was “a little below average.” In his opinion, appellant had never suffered and was not presently suffering from a mental disease or defect, but did exhibit a sociopathic personality disorder including necrophilic and zoophilic tendencies. On a scale of one to ten in terms of dangerousness, appellant was characterized as “one of the worst.” The psychiatrist stated that one would have to “raise the scale some to find a place for Mr. Lucas.” In Griffith’s opinion, appellant was a “real manipulator,” able to fake symptoms of mental illness.
Austin psychiatrist Richard Coons reached the same conclusion as did Griffith regarding appellant’s exhibition of sociopathic rather than schizophrenic symptoms. Dr. Coons examined appellant pursuant to court order for over three hours in December of 1983 and also reviewed records of appellant’s prior interviews and taped statements. Appellant’s confessions, said Coons, exhibited “a startling lack of evidence of psychosis.” While appellant was seen as having certain personality, moral and drug problems, Coons characterized such problems as social rather than medical or mental in nature.
The State next recalled Sheriff Boutwell to the stand. Over defense objection, an edited version of the November 10, 1983, audiotaped interview was admitted into evidence, wherein appellant for the first time connected M.C. with the forged work records. The State then introduced edited versions of a December 30, 1983, videotape of appellant and Otis Toole, a co-defendant in an Austin murder case, and a February 16, 1984, videotaped interview wherein appellant confessed to the work-record scam.
As earlier noted, before closing, the State recalled M.C. to the stand and questioned him regarding his prior convictions. The witness remained adamant that he had marked appellant present on October 31, 1979, solely because appellant was on the job site. In an effort to rehabilitate their witness, the defense team then recalled K.E., who testified he had known M.C. for five years. According to K.E., he had never seen M.C. accept money for falsifying work records, but he knew the practice existed, as he had seen at least one foreman accepting money at the time paychecks were cashed. With that, the defense also closed, the charge was prepared and read, final arguments were made, and the jury was retired to deliberate.
In his first two points of error, appellant complains the trial court erred in admitting into evidence the written statement of June 22, 1983, as it was obtained in violation of his Fifth and Sixth Amendment rights to assistance of counsel, as well as his rights under Art. 1, Secs. 10 and 19 of the Texas Constitution. Appellant was arrested on the weapons charge on June 11, 1983. Between that day and the fifteenth of June, appellant allegedly attempted suicide. He was also taken before a magistrate and given his Miranda warnings. According to appellant, he requested an attorney twice; once when he was being booked into jail and again when he was taken before the magistrate. State witnesses denied appellant made any such request. On the fifteenth, appellant told jailor Joe Don Weaver either one of two things: that he wanted to talk to Sheriff Conway or that he had killed Becky Powell and Kate Rich, and wanted to talk with Conway. He also asked for paper and pen, with which he subsequently wrote a letter confessing to the murders of Rich and Powell as well as others over the past ten year period. Arriving at the jail, Conway told Weaver to ask appellant if he wanted Conway to have the letter. Appellant gave the letter to Weaver with instructions to give it to Conway. Weaver testified appellant was then taken to Conway’s office. After being given Miranda warnings, appellant made and signed a confession regarding the Rich and Powell murders and also spoke to Conway concerning other killings. It was on the basis of these latter statements that Conway made the telephone call to Sheriff Boutwell in Williamson County.
Recognizing the conflict in testimony as to when, if at all, appellant invoked his right to counsel, our attention is directed specifically to a portion of the letter written by appellant in his Montague County jail cell which was passed to Sheriff Conway at appellant’s direction. The phrase was written at the bottom of the last page after appellant had confessed to several murders and scratched out his signature. The letter reads in pertinent part:
What ever inside me I hope will leave me alone. Since I am not aloud to buy cigaretts or make phone calls to get any We will see what will come out of this mess. I have cigaretts at home but I can’t get to call to get them and_one can’t talk to me because I not allowed to contact any one. I’m here in by myself and still can’t talk with a lawyer on this. I have no rights so what can I do to convince you about all this. I can’t take you to where they are because no one believes me and what ever I say seem like I am talking to my self. I want to talk to Rev. Moore Ruben and see if he can advise me in some way as to what I should do but I can’t because I not aloud to talk to him earlier because he doesn’t want to be bothered with it. (Emphasis added)
There is no doubt that at the time appellant wrote his missive, adversarial proceedings had commenced against him for purposes of the Sixth and Fourteenth Amendments. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Nehman v. State, 721 S.W.2d 319 (Tex.Cr.App.1986). See also Barnhill v. State, 657 S.W.2d 131 (Tex.Cr.App.1983). Therefore, the question to be addressed is whether appellant invoked his Fifth and Fourteenth Amendment rights to have counsel present during custodial interrogation. Although appellant now claims he requested counsel at the time of arrest and when warned by the magistrate several days later, the record does not reflect any such request. The record does reflect that appellant was given his Miranda rights at every stage; arrest, arraignment and interrogation, but never verbally requested an attorney. That conduct would appear to be both logical and consistent with appellant’s decision from the very first to cooperate with the authorities.
The record also reflects that appellant requested his jailor give him writing materials and to ask the sheriff to come and talk with him. The question then becomes whether appellant invoked his right to counsel by his letter to Conway, and to that question we will now turn our attention.
The right to counsel is considered invoked where a person indicates he or she desires to speak to an attorney or have an attorney present during questioning. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Ochoa v. State, 573 S.W.2d 796 (Tex.Cr.App.1978). This right is invoked not only as to interrogation on the specific crime for which he is suspected, but also is invoked as to any other crime or other interrogators. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). The essence of Edwards v. Arizona, supra, is the preservation of the integrity of an accused’s choice to communicate with police only through counsel. Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988).
However, the mere mention of the word “attorney” or “lawyer”, without more, does not automatically invoke the right; rather, a reviewing court must look at the totality of circumstances surrounding the interrogation and alleged invocation. Castillo v. State, 742 S.W.2d 1 (Tex.Cr.App.1987) (pulling business card out and saying “this is my lawyer” does not invoke right); Russell v. State, 727 S.W.2d 573 (Tex.Cr.App.1987) (mere mention of word “lawyer” not an automatic invocation); Collins v. State, 727 S.W.2d 565 (Tex.Cr.App.1987) (defendant’s inquiry to officer during interrogation did not invoke right to counsel because was directed to the future and concerned how counsel would be appointed); Massengale v. State, 710 S.W.2d 594 (Tex.Cr.App.1986) (appellant did not make clear assertion of right to consult with counsel when only told wife to get him lawyer and bondsman). See also Porier v. State, 662 S.W.2d 602 (Tex.Cr.App.1984); Curtis v. State, 640 S.W.2d 615 (Tex.Cr.App.1982); Kelly v. State, 621 S.W.2d 176 (Tex.Cr.App.1981); Ochoa, supra. Compare Jones v. State, 742 S.W.2d 398 (Tex.Cr.App.1987) (statement “I think I want a lawyer” clear and unequivocal assertion).
Where a person’s invocation of his right to counsel is not clear and unambiguous, but is instead equivocal, the interrogating officers are not required to automatically cease the interview, but may continue questioning as long as the questions are specifically aimed at discovering whether the accused indeed wants to consult with counsel or wishes to proceed with the interview without benefit of counsel. Russell, supra.
Where the right to counsel is invoked, whether in an unambiguous manner or through clarification of an equivocal comment, it may be subsequently waived by express statement or actions of the person being interrogated, although an appeals court will not presume a waiver of said right. See Janecka v. State, 739 S.W.2d 813 (Tex.Cr.App.1987); Mays v. State, 726 S.W.2d 937 (Tex.Cr.App.1986). We hasten to add that such a waiver, to be effective in validating a confession drawn subsequent to the time in which the alleged waiver was made, must be the product of a conversation, interview or discussion initiated by the accused and must also be knowing, intelligent and voluntary, in the context of the facts of the particular case. Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984); Edwards v. Arizona, supra; Campell v. State, 606 S.W.2d 862 (Tex.Crim.App.1980) and cases cited therein. See also Mays, supra, (explicit waiver not necessary; may be inferred by actions and words of person interrogated); Dunn v. State, 721 S.W.2d 325 (Tex.Cr.App.1986).
In the case before us, as stated ante, there was no express or unequivocal invocation of appellant’s right to counsel made prior to June 15th. We now turn our attention to appellant’s letter of that date to Sheriff Conway to make a determination whether that missive either clearly or equivocally expressed a desire to invoke appellant’s right to counsel.
The part of the letter highlighted by appellate counsel is but a small portion of the whole statement which is rambling in style and accusatory in tone. Nowhere in his voluntary statement does appellant expressly request or demand to see an attorney; even should we desire to “read between the lines,” as counsel would apparently have us do, appellant’s statements reflect a frustration that “no one believes me” regarding his murderous activities, not frustration derived from being denied counsel actively sought. Appellant says that he “can’t” talk with several people: an attorney, the sheriff, and “Rev. Moore Ruben”, the latter because he “doesn’t want to be bothered with it.” Taken in context with the earlier part of the letter, it is clear to this Court that appellant in his letter of June 15th did not intend to invoke nor did he invoke his right to consult with counsel or place law enforcement authorities on notice that he could be invoking said right. Indeed, the phrase highlighted by appellant on appeal appears in a paragraph apparently written as an afterthought to his earlier admission of multiple murders.
In ruling upon the propriety of admission of appellant’s June 22, 1983, statement to Sheriff Boutwell in alleged violation of constitutional guarantees of counsel, we have looked at all the circumstances surrounding appellant’s arrest and initial interrogation, and his subsequent interrogation by Boutwell on June 22, 1983. Contrary to his claim on appeal, we find no invocation of his right to counsel. At the most, we find an individual who by his own statements wanted to ease his mind by telling the authorities about the Rich, Powell and other murders. We are in agreement with the findings of fact and conclusions of law discussed infra, made by the trial judge and entered into the record after a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing was held on appellant’s motion to suppress the June 22nd and other confessions in the case. The facts elicited at that hearing support the findings made by the trial court. As a general rule, we point out that the trial court is the sole judge of the credibility of the witnesses in a pretrial hearing. Absent a showing by the party appealing those findings that the trial judge abused his discretion, the findings of the trial court supported by the evidence will not be disturbed on appeal. Russell, supra; Hawkins v. State, 613 S.W.2d 720 (Tex.Cr.App.1981). Here, the trial judge listened to all the evidence and obviously chose to believe the version of facts propounded by the State’s witnesses and chose to resolve the conflicts in the State’s favor. He found appellant never invoked his right to counsel orally or through the letter to Conway, and that he freely, knowingly and voluntarily waived his right to counsel pri- or to the taking of the June 22, 1983, confession to Boutwell. We agree. Once an accused “knowingly and intelligently” elects to proceed with an interrogation without benefit of counsel, the uncounseled statements he then makes need not be excluded at trial. Patterson v. Illinois, supra. Here, the record reflects appellant made an initial election, after proper warnings were given and acknowledged, to proceed without benefit of counsel, even though he was aware that counsel was on his way to the jail. The facts support the trial court’s conclusion that appellant knowingly and intelligently, waived his right to consult with counsel. Id. Appellant’s first and second points of error are overruled.
In his third and fourth points of error appellant argues the trial court erred in admitting into evidence at the punishment phase of trial his statement of July 28, 1983, wherein he confessed to the murder of an Abilene woman, because said confession was taken in violation of his Fifth and Sixth Amendment and Art. I, Secs. 10 and 19 rights to counsel. Similar to his arguments under the first two points of error, appellant relies upon a finding that he invoked his constitutional rights, he never waived those rights and he was not the party who initiated further discussion. We agree with the State that appellant’s initial premise is incorrect. As we pointed out, ante, appellant never invoked his right to counsel. See Patterson v. Illinois, supra. That being the case, we are not concerned with a subsequent waiver of those rights, nor with a query of who initiated a subsequent custodial discussion. We do note, however, that appellant also claims his attorney’s letter of June 22nd to the Montague County Sheriff’s Department was sufficient to place law enforcement officials on notice appellant had invoked his right to counsel. In that letter, counsel, before consulting with appellant, invoked his Fifth Amendment right and stated that appellant did not waive any of his rights to have an attorney present during questioning. We do not agree. While it is axiomatic that interrogation must cease where a defendant indicates in any way he desires to invoke his right to counsel, see Ochoa, supra, at 800, it would be counterproductive to our system of justice to extend this rule as a prophylactic device to allow counsel to invoke the constitutional protection on behalf of a criminal defendant who has not yet met with counsel and has not himself expressed a desire to invoke that protection. See Holloway v. State, 691 S.W.2d 608 (Tex.Crim.App.1984). This Court has in the past rejected the claim that someone other than the accused may invoke his right to counsel. See Dunn v. State, 696 S.W.2d 561 (Tex.Crim.App.1985); Kelly, supra. The record clearly reflects appointed counsel wrote the letter before consulting with his client on the case. Thus, appellant could not have consented to the attempted invocation. See Holloway, supra.
However, the record also reflects attorney Maxfield met with appellant twice on June 22nd, once shortly after delivering the letter to the sheriffs dispatcher or receptionist, and again later that afternoon. Although the mere meeting or consultation between an accused and counsel, without more, cannot be said to automatically invoke an accused’s right to counsel during any and all subsequent interrogations, see and compare Holloway, supra, at 619 (dissenting opinion) (after counsel appointed and consults with accused, this amounts to invocation of right to counsel), where the accused expresses his desire, after consultation, to invoke his rights, either by his own expression or through his attorney speaking for him, it will not be doubted that invocation has been made. At that time, the burden is placed upon the State to demonstrate an affirmative waiver of the right to counsel by the accused before interrogation may be continued.
In the case before us, the record shows counsel met with appellant on June 22nd, with the inference that counsel, as should be expected from an advocate properly protecting his client’s rights, advised appellant to remain silent or have counsel present at future interrogations. Maxfield also testified he notified law enforcement authorities appellant wished to invoke his right to remain silent “(A)t one time or another” during the period of time between June and September of 1983, the effective dates of Maxfield’s appointment to the Montague County case against appellant. However, after some legal sparring between the State and defense over Maxfield’s claim of the attorney-client privilege regarding whether appellant had indeed expressed a desire to talk with authorities against his counsel’s advice, the following exchange occurred:
(Q) (By Mr. Walsh) Mr. Maxfield, this letter that you wrote, that you delivered to the sheriff’s office, was that on — you delivered it on the morning of the 22nd?
(A) Yes, sir.
(Q) It talks about the defendant invoking his fifth and sixth amendment rights.
(A) Yes, sir.
(Q) When you drafted that letter, you had never spoken to your client; is that correct?
(A) That’s correct.
(Q) And you are aware that these are rights that are personal to a defendant and can be waived or not waived.
(A) I’m aware they can be waived, yes, sir.
(Q) Okay. So I don’t want any of your testimony or this exhibit to indicate to the Court that Henry Lee Lucas at any time had told you that he wanted to exercise these rights he had. Is that—
(A) That’s correct, yes.
Attorney Maxfield’s concern is understandable, even if we may not completely agree with the trial court that certain other questions asked for the purpose of determining whether appellant ever invoked or intended to invoke his right to counsel were “privileged” communication between attorney and client. In Holloway, supra, we noted the appellant offered no evidence to contradict the State’s witnesses who testified the appellant indicated he understood his rights and he did not want an attorney present. Here, the attorney, given the opportunity to state on the record that appellant did indeed indicate his desire for assistance of counsel at subsequent interrogations, instead chose to claim the privilege of professional communication. At the same time, counsel admitted Sheriff Conway never denied him any sort of opportunity or chance to consult with appellant during questioning. Finally, the exchange recited above reflects the attorney’s admission that appellant never said he wished to exercise those rights.
The record also reflects more than simply a strong inference that appellant deliberately chose not to follow counsel’s advice. Speaking in general terms about the 3-4 month time period he represented appellant, Maxfield admitted he had told others of appellant’s proclivity for talking to the authorities:
(Q) During that time did it ever come up in those conversations that Lucas wanted to talk, was talking, and that you wished he wouldn’t but you couldn’t stop it?
(A) I’m sure it did.
(Q) Okay. So do you recall, at least if it wasn’t Phil Ryan, you told somebody that?
(A) Well, I don’t recall the specific words, but I think, yes, that probably I said something along those lines.
This is not to say appellant talked to everyone who came calling. The following, again between prosecutor Walsh and attorney Maxfield, shows he demonstrated a modicum of discretion in his communications with the authorities:
(Q) Let’s say whenever some third person may have been present other than a member of your staff or another lawyer. Did you ever see Henry Lee Lucas invoke his fifth or sixth amendment rights in your presence with any third party?
(A) Yes.
(Q) Who was that?
(A) I don’t know his name. He was an investigator with the Colorado Bureau of Investigation. And the date I’m going to say was sometime in August.
(Q) August of ’83?
(A) Of ’83, yes.
(Q) Okay. How did that come about, did he make Henry mad or why did that come about?
(A) I can’t speculate on what Henry’s motives were.
(Q) But that indicates that Mr. Lucas does know that if he doesn’t want to talk to somebody, he doesn’t have to. Is that what that indicated to you when he did that?
(A) I suppose that’s a logical assumption, yes, sir.
Appellant’s is admittedly a rare case in the annals of state jurisprudence. While his various appointed attorneys cautioned discretion and silence, Lucas appears to have been determined to speak to the authorities desiring his attention. In what may be best termed a single-minded purpose, he appears to have rejected his right to remain silent and put the State to its burden of proving a particular crime. Indeed, as in the case before us, appellant made what can only be termed a conscious practice of informing on himself as to crimes which, up until that point in time, remained unsolved. For whatever reason, we can trace the beginnings of his compulsive behavior in admitting complicity in unsolved homicides to his letter of June 15th to Sheriff Conway, where Lucas stated he wanted to talk about the killings and about where the bodies were buried, if someone would listen. Given the particular facts and circumstances of the case, we remain unconvinced appellant invoked his constitutional right to consult with counsel. To hold otherwise would be to refuse to grant proper respect to appellant’s own desire to confess his criminal conduct on his own terms. Somewhat analogous to the standard used to determine whether an accused waives his right to counsel once invoked, we have examined the facts and circumstances involved in the present case to determine whether appellant intelligently and knowingly abandoned or relinquished his right to counsel. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Holloway, and Wilkerson, both supra. Taking into account appellant’s background in having previously been involved in serious legal difficulties, his age and maturity, his conduct in unequivocally cooperating with authorities to the extent of providing .necessary evidence to resolve previously unsolved crimes, the lack of direct evidence in the record showing appellant “expressed his desire to deal with the police only through counsel,” Patterson v. Illinois, supra 108 S.Ct. at 2394, citing Edwards v. Arizona, supra 451 U.S. at 484-485, 101 S.Ct. at 1885, and recognizing the trial court must weigh and evaluate the testimony of witnesses in the Jackson v. Denno, supra, hearing to determine the credibility of each witness, see Hawkins v. State, 660 S.W.2d 65 (Tex.Crim.App.1983), we cannot say the trial judge here abused his discretion in admitting appellant’s statement of July 28th, 1983. Appellant’s third and fourth points of error are overruled.
Appellant’s fifth and sixth points claim error of constitutional magnitude as in his first four points, the question being whether the trial court erred in admitting appellant’s audiotaped confession of July 81, 1983, in violation of his Fifth and Sixth Amendment rights to counsel. Again, appellant relies upon a determination that he had invoked his right to counsel and had not initiated the meeting leading to the confession. Again, we must disagree that appellant invoked his right to counsel. There is no evidence in the record to suggest a change in appellant’s conduct regarding interested law enforcement agencies between June 22nd and July 31st. While it is true Sheriff Boutwell initiated the meeting in question, since appellant had not chosen to invoke his Fifth Amendment right and affirmatively waived his rights at the beginning of the audiotape, saying, “I ain’t interested in a lawyer,” the State is not required to show appellant initiated the conversation. See Stone v. State, 612 S.W.2d 542 (Tex.Cr.App.1981). We will reiterate that the tapes of the conversations in question undeniably demonstrate appellant’s ongoing desire to talk to the authorities, regardless of the personal cost to himself. For .the same reasons enunciated above in appellant’s first four points, we overrule the fifth and sixth points of error.
In his seventh point of error, appellant claims the trial court erred in admitting, over objection, evidence that M.C. had previously been convicted on a forgery charge in 1969 and a federal forgery charge in 1970, for which he was released from prison either in 1971 or 1972. Specifically, appellant argues the two convictions were too remote in time to be admissible.
A witness in a criminal ease may be impeached with proof of a final felony conviction or a final misdemeanor conviction involving moral turpitude. Art. 38.29, Y.A.C.C.P. Now see TEX.R.CRIM.EVID. 609. However, this Court has placed limits on that general proposition by holding that evidence of extremely remote convictions cannot be admitted for purposes of impeachment. Miller v. State, 549 S.W.2d 402 (Tex.Cr.App.1977). The general rule of thumb has evolved into one stating that where the release from confinement is less than ten years prior to the proceeding in which the conviction is sought to be used, the conviction is admissible. Taylor v. State, 612 S.W.2d 566 (Tex.Cr.App.1981); Davis v. State, 545 S.W.2d 147 (Tex.Cr.App.1976); Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971). Now see TEX.R.CRIM.EVID. 609(b), supra.
The State admits the prior convictions fall outside the scope of the general rule but argues impeachment through the use of the priors was proper since it was shown M.C. remained unreformed from his previous criminal conduct. It is true we have carved out an exception to the general ten-year rule where the State, able to demonstrate that a particular witness has not reformed into a law-abiding citizen, has been allowed to introduce evidence of prior convictions which became final more than ten years before. The rule is one of analyzing the totality of circumstances in the case. Regardless of the time element, the facts and circumstances of each case must be looked to and considered in determining the question of remoteness. Davis, supra; Dillard v. State, 153 Tex.Cr.R. 134, 218 S.W.2d 476 (Tex.Cr.App.1949). Evidence of the lack of reformation or subsequent felony and certain misdemeanor convictions may then cause the prior conviction to fall outside the general rule and not be subject to the objection of remoteness. Crisp v. State, 470 S.W.2d 58 (Tex.Cr.App.1971); Gill v. State, 147 Tex.Cr.R. 392, 181 S.W.2d 276 (Tex.Cr.App.1944). See also Davis, supra, at 150. The question is one of discretion for the trial court. Davis and Bustillos, both supra.
Speaking in terms of application of the rule to a criminal defendant who chooses to testify, this Court in Dillard, supra, outlined some of the circumstances to consider:
In the light of such rule, then, the age of the accused, his conduct as reflecting non-reformation on his part, the nature of the accusation and attendant facts for which he is upon trial, and the length and severity of the penalty inflicted are to be considered.
In the present case we are dealing not with an accused but with a defense witness not otherwise connected to the matters at trial. Thus, all the attendant circumstances expressed in Dillard, supra, later recited in Davis and Bustillos, both supra, are not directly applicable, even though the underlying principle remains the same. See Lott v. State, 123 Tex.Cr.R. 591, 60 S.W.2d 223 (Tex.Crim.App.1933). (The difference in receiving impeaching testimony by proof of prior convictions against an accused versus a mere witness is not so much the admissibility of the testimony as it is error in the receipt thereof, which is much more serious when it relates to the accused than when it affects one who was a mere witness in the case.) Therefore, we are still concerned with the witness’ age at the time of the prior incident, his conduct in the intervening years as reflecting non-reformation on his part, including subsequent final felony and misdemeanor convictions of moral turpitude, and especially the relationship or nexus between the intervening conduct and the prior convictions.
M.C. was born in 1930. At the time he was convicted of the prior offenses he was approximately 39 years of age. Between the time he was released and the start of appellant’s trial, there is no evidence he suffered a final felony conviction or a misdemeanor conviction involving moral turpitude. M.C. did admit to being arrested in South Carolina for drunken driving and leaving the state before going to trial. From the record, it is clear M.C. knew he would be required to make an appearance in the case but instead left the state before prosecution could .begin. By itself, the above evidence relating to a charge of drunken driving would not appear to be an adequate reflection of an individual’s lack of reformation, since the State cannot point to a proper final conviction to connect M.C.’s previous criminal conduct with subsequent conduct demonstrating similar propensities. However, the rule embraces more than evidence of proper conviction; also to be considered as evidence of M.C.’s failure to conform to legal mores is his conduct in the intervening years as it may reflect upon his lack of reformation. See Crisp, supra; Gill, supra. Here, the State cited as examples of the witness’s conduct his flight from South Carolina and his participation in the alleged “kickback” scheme in Florida.
M.C. left the state of South .Carolina in 1973 or 1974 in order to avoid prosecution for the offense of D.W.I. While the offense itself may not be one for which a conviction may be used to show lack of reformation, we certainly think an individual’s conduct in illegally avoiding the justice system demonstrates that person’s lack of commitment to conform to the legal dictates of society and its representatives. However, the evidence reflecting M.C.’s flight from authority, occurring ten years before the instant trial, is itself somewhat remote in terms of the witness’s present character. The only other evidence reflecting lack of reformation is the contested fact issue of M.C.’s alleged participation in a “kickback” scheme, introduced by the State to rebut the defensive theory of alibi. Our opinion in Crisp, supra, spoke in general terms of determining remoteness “in the light of the particular facts of each case ... ”, one method being “evidence showing a lack of reformation ...” (emphasis supplied) Fundamental concerns of fairness require us to construe the alternative method to exclude controverted issues of fact which are unadjudicated at the time of trial.
Thus, in the instant case, while the trial court properly considered uncontro-verted evidence of M.C.’s flight from South Carolina in making his decision to admit the remote prior convictions, the court also erroneously considered evidence of the highly contested issue regarding the witness’s participation in an illegal “kickback” scheme in Florida. Without any other intervening acts of misconduct, the evidence of flight ten years prior to trial is simply not enough to show unreformed character at the time of trial. We are therefore constrained to hold the trial court erred in admitting evidence of M.C.’s prior convictions.
However, we have also examined the record before us and find beyond a reasonable doubt that the error did not contribute to either appellant’s conviction or his sentence. Tex.R.App.P. 81(b)(2), supra. The effect of the evidence of M.C.’s prior forgery convictions was to place before the jury his credibility as an alibi witness. If that were the only evidence offered to rebut the defensive theory, the error in admitting the impeachment evidence might call for reversal of the cause. However, our attention is also directed to other evidence, both controverted and un-controverted, which was before the jury on the issues of appellant’s guilt and in rebuttal to his defensive theory. Before M.C. was improperly impeached, the state had introduced into evidence other statements, notably those of July 31st, August 2nd and November 10th, in which appellant directly implicated himself in the crime and refuted the defensive theory. In his February 16, 1984, interview, appellant further related how the “kickback” system worked. That evidence was supported by K.E.’s testimony to the effect that the “kickback” practice was a normal part of the job M.C. was entrusted to supervise. Finally, the work records introduced by the defense facially reflected appellant to have been present on the Florida job site on dates surrounding the murder but not specifically on the date the crime was calculated to have occurred. Add to this evidence testimony that appellant would disappear from work for days at a time and that roll was not regularly called on the job site, and the improper impeachment of the witness loses importance. Given the above evidence, we can say beyond a reasonable doubt that the evidence complained of did not contribute to the verdict or sentence assessed in the case. Tex.R.App.P. 81(b)(2), supra. See also Lott, supra. Point of error number seven is overruled.
In point of error number eight appellant claims trial court error in the admission of extraneous offenses contained in appellant’s audiotaped confession of July 81, 1983. The State first introduced an edited version of the confession before the jury. The defense then played a re-edited version of the tape, after which the State moved to play an even more detailed variant. A hearing was held outside the jury’s presence on the matter and after some deletions by the trial court the State was allowed to play the tape for the panel.
Appellant objected to admission of the tape at trial, as on appeal, on the basis that portions of the tape made “implied references to extraneous offenses committed by Appellant.” In response, the State argues the additional portions of the tape were admissible under Art. 38.24, V.A.C.C.P., in effect at time of trial. Art. 38.24 read as follows:
When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it fully understood or to explain the same may also be given in evidence. (Emphasis added)
Specifically, the State asserts the additional portions of the tape, while perhaps inadmissible during the State’s case-in-chief, became admissible under Art. 38.24, supra, and this Court’s opinions when appellant “opened the door” by introducing portions of the tape which had the effect of confusing the jury. We pause to note that it is well established that evidence used to explain a matter opened up by another party need not be ordinarily admissible. See Parr v. State, 557 S.W.2d 99 (Tex.Cr. App.1977); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); Lucas v. State, 479 S.W.2d 314 (Tex.Cr.App.1972).
The sequence of events leading up to the introduction of the taped portions objected to by the defense is as follows. The State initially offered an edited version of appellant’s statement wherein he confessed to the crime. The defense then re-edited the tape, adding portions of the confession to show “the confession was not as clear and unambiguous as it appeared in the State’s original version. The portions appellant introduced reflected that Appellant was sometimes unsure of the facts of the alleged capital murder, and also showed that Appellant was assisted in constructing his narrative by Sheriff Jim Boutwell.” Based on these additions, the State then sought to admit further portions of the taped confession to “show why [appellant] had a problem creating a narrative, namely: the confusingly similiar offenses he’d committed.”
In Roman v. State, 503 S.W.2d 252 (Tex.Cr.App.1974), this Court discussed the purpose behind Art. 38.24, supra:
The purpose of this provision is to reduce the possibility of the fact finder receiving a false impression from hearing the evidence of only a part of the conversation, writing, act or declaration. The theory behind the rule is that by allowing the jury to hear the rest of the conversation on the same subject the whole picture will be filled out, removing any misleading effect which may have occurred from introduction of only a portion of the conversation.
503 S.W.2d at 253. The Court went on to admonish the reader that the rule encompasses only additional portions on the same subject; it is impermissible to rely upon the rule as authority for the introduction of unrelated subject matter.
Our review of the record in the instant case shows the State introduced a severely-edited version of the confession which clearly set out appellant’s culpability in the murder. The apparent defense strategy was to introduce additional select portions of the tape highlighting appellant’s confusion as to details of the offense and Boutwell’s assistance in prodding appellant’s memory for those details. Appellant now argues the tape demonstrates the “truth” of his “confusion”, and claims further that the State’s “introduction of a theory of multiple murder in an attempt to explain Appellant’s confession does nothing to correct a false impression. Any impression that appellant is confused is a true one.” We agree with appellant’s last statement but not the premise of his argument. Just as appellant was entitled to show he was confused as to the details of his crime at the time the statement was taken, so too was the State entitled to show the source of that confusion. Contrary to the position taken by appellant on appeal, we cannot say the additional statements objected to at trial are not “any other act, declaration, conversation or writing which is necessary to make it fully understood or to explain the same”; nor do we find that the statements do not “reduce the possibility of the fact-finder receiving a false impression.” Art. 38.24, supra; Roman, supra. It would have left the jury with a false impression if appellant had successfully kept the additional portions of the statement from the jury, because the impression one is left with after a rendition of the defense-edited version is that an individual without concrete knowledge of the incident is “led” to confess by the prompting of an officer of the law. This impression is false since appellant makes clear on the tape it is not his innocence of the crime nor the method of questioning by Boutwell that causes the confusion, but his involvement with a large number of people, places and dates so that the particular facts in question are jumbled in his mind with facts and circumstances of other undefined but implied criminal encounters. Since the defense raised the question of confusion in the context of the confessions, a question going to the ultimate issue in the case, it was proper for the State to clarify and explain appellant’s apparent confusion in terms of the confession as a whole. We therefore hold appellant “opened the door” on the issue by attempting to paint an incomplete picture of the July 31st confession, and under Art. 38.24, supra, the State was permitted to complete the picture. Brandley v. State, 691 S.W.2d 699 (Tex.Cr.App.1985). See also Wintters v. State, 616 S.W.2d 197 (Tex.Cr.App.1981); Parr, supra; Young v. State, 488 S.W.2d 92 (Tex.Cr.App.1972) and cases there cited. Cf. Roman, supra; Allen v. State, 493 S.W.2d 515 (Tex.Cr.App.1973); Willeford v. State, 489 S.W.2d 292 (Tex.Cr.App.1973). The point of error is overruled.
In point of error nine, appellant claims error in the admission of his August 2, 1983, crime-scene videotaped confession for the reason that he appeared on film before the jury in handcuffs, in violation of his right to the presumption of innocence, to a fair trial and to due process of law. Admitting he has no authority to support this claim, appellant nevertheless suggests the same reasoning pertaining to the use of restraints in the courtroom before the jury should also apply to a videotaped interview taken with an accused outside the courthouse and later played for the jury at trial. In response, the State asserts the circumstances here do not support the same rationale as that used in courtroom situations, and in any event, no reversible error occurred.
It is now axiomatic that requiring a defendant to wear handcuffs before the jury at trial infringes his constitutional presumption of innocence. Marquez v. State, 725 S.W.2d 217 (Tex.Cr.App.1987) and cases cited therein; Clark v. State, 717 S.W.2d 910 (Tex.Cr.App.1986); Moore v. State, 535 S.W.2d 357 (Tex.Cr.App.1976). The only exceptions to the prohibition during trial are where it is shown on the record of the proceedings that there are “exceptional circumstances” or a “manifest need” for such restraint, Cline v. State, 463 S.W.2d 441 (Tex.Cr.App.1971); Gray v. State, 99 Tex.Cr.R. 305, 268 S.W. 941 (Tex.Cr.App.1924); or where the encounter is away from the courtroom and is “momentary, inadvertent and fortuitous” in nature. Clark, supra.
The instant case presents a different scenario. Here, the record does not reflect, and appellant does not suggest, that he was made to appear before the jury in handcuffs or that the jury was allowed to see his physical presence during trial under restraint. However, it cannot be doubted appellant was brought “into the view” of the jury panel while handcuffed. See Mouton v. State, 235 S.W.2d 645 (Tex.Cr.App.1951).
A review of prior opinions of this Court reveals the issue before us to be an uncommon problem at best. The case coming closest on point is that of Mouton, supra, where a similar argument was made to the introduction of still photos of the accused at the crime scene in handcuffs. Summarizing both the general rule and exceptions thereto, the Court went on to note this Court “has declined to order reversal even in death penalty cases, on the ground that the accused was brought into the presence of the jury handcuffed, in the absence of a showing of injury or prejudice to the accused.” Id. at 651. The Court reasoned if an impression were left with the jury, it would be that in the opinion of the officers accompanying the accused, the accused was not to be trusted under their control without restraint. Given the accused had already made a written confession and his only defense was a claim of insanity, the Court found evidence of prejudice or injury insufficient to reverse the conviction and sentence of death.
We initially note the Mouton Court grappled with the issue of admission of the photographs not only in the sense of an improper encounter between the accused and jury, but also within the evidentiary framework of the old common law rule which banned admission of photographs into evidence if the pictures were gruesome or might tend to inflame the minds of the jury, unless the pictures tended to solve a disputed fact issue. See Mouton v. State, 236 S.W.2d 499 (Tex.Cr.App.1951) (on second motion for rehearing). See also Burns v. State, 388 S.W.2d 690 (Tex.Cr.App.1965). That standard evolved but remained basically unchanged until this Court, on rehearing in the case of Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972), overruled the Burns standard and held that a competent, material and relevant photograph is not rendered inadmissible due to the nature of its contents or possible impact on the jury, unless it is offered “solely to inflame the minds of the jury.” Id. at 267. The standard today, of course, is if a verbal description of the scene depicted in the photograph would be admissible, a photograph depicting the same content is also admissible. Id. See also Jackson v. State, 745 S.W.2d 4 (Tex.Cr.App.1988); Losada v. State, 721 S.W.2d 305 (Tex.Cr.App.1986).
Given the context of the issue in Mouton, supra, that court found error in admission of the photographs but held the error to not have injured or prejudiced the accused due to the circumstances of that case. In the present case, in contrast, we do not find error in admission of the videotape as evidence in the case, see discussion under point of error number ten, infra. However, where the State chooses to introduce into evidence before the jury a videotaped statement made by an accused, and the statement is used during the first stage of trial, before a verdict as to guilt or innocence is reached by the jury, the State must observe the rule guarding the presumption as in other cases where the physical presence of the accused in view of the jury must be unfettered or unrestrained. To find otherwise would be to discount the constitutional presumption of innocence in favor of strictly evidentiary concerns. The courts have recognized that the presence of physical restraints on an accused may tend to prejudice the jury against the accused and suggest that the trial judge, by permitting the use of such restraints, has thereby expressed the opinion that the accused is a dangerous person and is not to be trusted. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d. 353 (1970); Mouton, supra; Gray, supra. While it is true appellant was not brought in before the jury during trial in restraints, the jury was allowed to see by videotaped means that which would not otherwise have been permitted. Although there is a distinction, it is one without a difference if the broad presumption is to be supported. Therefore, unless the record reflects “good and sufficient reason for such extraordinary measures,” see Walthall v. State, 505 S.W.2d 898 (Tex.Cr.App.1974), we must find error in the admission of the videotape.
Neither party can point to any instance of actual misconduct or threat made by appellant which would provide an exception to the rule in this case. And, the fact that the State did not subsequently move to try appellant in restraints merely underscores the error. We may agree it was both necessary and practical to handcuff appellant while on the side of a busy roadway, especially given his admissions to heinous and violent activity in the past; however, error will occur in such a situation not because of the content of an accused’s statement but due to the visual impact of the improper picture of a restrained defendant upon the mind of the jury. See and cf. Reyes v. State, 579 S.W.2d 927 (Tex.Cr.App.1979) (mug shot taken subsequent to arrest properly admitted but better practice is to remove police markings before picture shown to jury) with Richardson v. State, 536 S.W.2d 221 (Tex.Cr.App.1976) (prior mug shot indicating extraneous offense held prejudicial error). See also Huerta v. State, 390 S.W.2d 770 (Tex.Cr.App.1965) (introduction of mug shot not error where all identification marks showing police source were removed).
As in Mouton, supra, here we also find error in admission of that part of the video portion of the tape depicting appellant in handcuffs. In the strictest sense, given the lack of any evidence to the contrary, we are presented with an instance of an unintentional, but erroneous, encounter before the jury, an encounter of more than slight duration. However, a finding of error will not mandate reversal unless we find “injury” or “prejudice” per Mouton, supra; under today’s rules that necessitates a harmless error analysis under our rules of appellate review. See Tex.R.App.P. 81(b)(2).
Rule 81(b)(2), supra, states where error is found in the trial proceedings below, the conviction or sentence must be reversed unless it is determined beyond a reasonable doubt the error made no contribution to the conviction or punishment. Id. Here, the record reflects appellant willingly participated in the filming of the confession which ultimately led to filing of the capital charge against him. A review of the videotape demonstrates clearly and succinctly, through appellant’s own words after being advised in the strongest terms by his own attorney not to speak at all, that appellant freely admitted culpability of the offense and was quite cooperative in not only confessing but also acting out his crime for the benefit of camera and the State’s case against him. The focus of the tape is not on appellant’s hands but on his statements concerning his actions the day of the murder.
Moreover, as in Mouton, supra, the prejudice or injury to appellant diminished due to the admission of a prior confession. Although appellant may have provided more facts in the August 2, 1983, interview, it must be remembered that appellant had already confessed to the actual killing, if not all the circumstances surrounding the incident, over a month before the videotape was made. Furthermore, we can find no harm in the jury’s view of a handcuffed accused where the contact occurs simultaneously with the accused’s voluntary, detailed descriptive confession of guilt at the scene of the crime. We stress the fact that appellant, over the most strenuous of warnings by counsel present on the scene, unequivocally made known his intention to disregard those warnings and to further implicate himself in the matter through the medium of videotape. The impression given the jury, if any, was of a minimally restrained individual who was then freely confessing to a murderous act while moving about on the shoulder of a busy interstate highway. In contrast, appellant appeared without handcuffs during the trial itself. Given the contextual atmosphere in which the jury was allowed to view the handcuffed appellant, one in which by wholly voluntary admission the facts and circumstances of the crime were discussed and re-enacted by the accused, the fact the jury was instructed as to the presumption of innocence, and the fact that irregardless of his repeated confessions, the presumption was underscored by his unfettered appearance in the courtroom, we can say beyond a reasonable doubt the “encounter” made no contribution to appellant’s conviction. Further, given the overwhelming evidence presented in the punishment stage of trial, we now determine by the same standard that the error made no contribution to the punishment assessed in the case. In so holding, we do not extend the rule or its exceptions; in each such situation the circumstances of the individual case must be examined to determine whether the post-arrest encounter constitutes harmless error. Appellant’s ninth point of error is overruled.
In a related point of error, appellant argues the crime scene videotape was erroneously admitted because the State failed to satisfy the predicate requirement for admission of the tape under Article 38.-22(3)(a), V.A.C.C.P., that all voices heard on the tape recording be identified. Appellant’s specific complaint goes to allegations that the voices of other individuals outside the range of the camera were not identified prior to admission of the tape. The State asserts that all voices were identified.
Inasmuch as videotapes are a simultaneous audio and visual recording of events, a predicate is required to establish their accuracy and reliability. Roy v. State, 608 S.W.2d 645 (Tex.Cr.App.1980). The Court in Roy, supra, adopted the seven-prong test enunciated in Edwards v. State, 551 S.W.2d 731 (Tex.Cr.App.1977), originally applied to sound recordings, for videotape technology, and stated that the narrow requirements pertaining to the admission of other mechanically acquired evidence could be somewhat relaxed when testing the admissibility of a videotape recording, just as the Edwards court had relaxed the requirements for certain sound recordings:
Although videotapes are motion pictures as well as sound recordings, we now hold that the Edwards predicate applies to videotapes. Moreover, because of the dual aspect of videotapes they convey a greater sense of reliability than either film or sound tapes standing alone and at least some of the Edwards elements may also be inferred from the testimony.
Roy, supra at 649. (Emphasis supplied).
Similiar to subsection 3(a)(4) of Art. 38.22, supra, one of the seven prongs of the Edwards test requires the speakers on the recording be identified. In both pretrial proceedings and in hearings held outside the presence of the jury during trial, there was testimony identifying the parties who directly participated in the road-scene videotape in relation to other voices audible on the recording. It was established that Boutwell, appellant, Deputy Weeks and attorney Don Higginbotham were present and were the actual participants in the videotaped interview. It was also established that there were other individuals near the scene who took no part in the taping of the statement or who otherwise participated during the proceedings on August 2, 1983. Our review of the recording shows a myriad of background noise either identified as traffic noise or as voices from persons not involved in the actual taping procedure. Recognizing the true measure of review of the admissibility of a recording is its accuracy and reliability, see Roy, supra, we have reviewed the tape and find no error in its admission. We did not find, nor has appellant alluded to, any particular instance where appellant suffered injury or was open to the possibility of harm due to the presence of any “speaker” on the videotape whose voice was not identified. In this context, we distinguish between one who actively contributes to the videotaped recording from one whose voice is in the background and whose comments have no material relevance to the taped interview. Where all the actors who are speaking are visible to the viewer, at one time or another, as here, and where there is no instance of an off-camera actor interjecting or attempting to interject comments directly pertaining to the statement or discussion in question, we cannot say any individual’s voice remains “unidentified” for purposes of Art. 38.22 or the Edwards test for admissibility. The purpose of the predicate having been met by this Court’s finding that the videotape in question was accurate and reliable, no error is shown. See Roy, supra. The point of error is overruled.
Appellant’s eleventh point of error concerns the second videotape made on August 2, 1983, in the Sheriff’s office in Williamson County. Again, he complains that voices heard in the background were not identified. Again, we must disagree. The record reflects Sheriff Boutwell identified the background voices as coming from a radio monitor in the office. As in point number ten, discussed supra, such background noise, not shown to have impacted in any manner upon the recording at issue, does not affect the accuracy or reliability of the recording so as to require that the statement be suppressed. There being no error in admission of the videotape, the point of error is overruled. Roy, supra. See generally Edwards, supra.
Point of error twelve contains the same claims regarding unidentified voices in the November 10, 1983, audiotape. As earlier noted, this audiotape was made in Sheriff BoutwelPs car as he drove appellant from Denton to Georgetown and concerned appellant’s statements relating to M.C. having taken kickbacks to falsify time sheets. Boutwell testified the extraneous voices heard on the tape came from his two-way radio, not from anyone who participated in the interview. For the same reasons enunciated ante, we hold the recording was properly admitted. The extraneous voices were identified as coming from a particular source outside the scope of the conversation between the sheriff and appellant. It was not shown or even intimated that the voices had anything to do with the statements being taped. As in appellant’s earlier points, it is suggested, without corresponding authority, the predicate for admission was not met since the State did not specifically identify the complained-of voices, but only identified the source of the voices. Given the fact the voices were extraneous to the conversation and did not affect the accuracy or reliability of the statements made by appellant, we hold as above that the identification by source was sufficient to establish the predicate for admission. To decide otherwise would be to ignore the purpose of the rule. See Roy, supra; Edwards, supra. Appellant’s twelfth point of error is overruled.
Point of error number thirteen also concerns appellant’s audiotaped statement of November 10, 1983. Under this point, appellant claims the predicate was not met under subsection 3(a)(3) of Art. 38.22, supra, which requires, prior to the admission into evidence of an oral custodial statement against an accused, that the recording must reflect “the accused was advised before the interrogation that the interrogation will be recorded”. Id. Here, appellant contends he was never “advised” that a recording was to be made. More specifically, appellant says Art. 38.22, supra, “should be read to require more than an assumption on the part of the interrogator that the accused is aware of the recording device; the interrogator must affirmatively advise the accused that a recording is being made.” We are directed to our opinion in Ragan v. State, 642 S.W.2d 489 (Tex.Cr.App.1982) as authority for that proposition.
In Ragan, supra, an individual was arrested for drunk driving after he recklessly drove through an intersection in which an accident had occurred, almost striking a police officer as well as the vehicles involved in the accident. After placing the man in a patrol car, the arresting officer turned on a tape recorder and began questioning him. This Court held the tape was improperly admitted into evidence over that appellant's objection that the State did not satisfy the predicate requiring the individual be warned during the recording that a recording was being made.
In contrast to Ragan, supra, here appellant was adequately warned his statement would be recorded. While it is true Sheriff Boutwell did not formally give a warning per se, it is also true that the sheriff, before taking the statement, advised appellant:
Ok, I’m going to hand you this, uh, recorder, and if you will, keep it up pretty close to your mouth so, uh, the car noise won’t drown your voice out, and I’m going to ask you a ... a few questions.
The clear meaning of the statute is to ensure the accuracy and reliability of oral statements elicited from a person who has been arrested and is undergoing custodial interrogation. See Roy, supra; Ragan, supra. Where a person is aware his statements are being recorded, it is reasonable to place greater weight upon the reliability and accuracy of such statements, since the person is making the statement with knowledge that his comments will be preserved as he made them. In the converse, where a statement is recorded in a surreptitious manner, without proper authorization, one may logically question the reliability and accuracy of the recording due to the unsupervised method in which the recording was obtained.
In reviewing the tape recording, it is clear appellant was aware the conversation was being taped. While it is true the sheriff did not explicitly warn appellant the conversation was to be recorded, such a warning is not required by the statute. What is required is that the recording must reflect the appellant was advised of the fact the sheriff intended to record the conversation before actual questioning began. While it may be the better practice to specifically advise an accused of this fact, given the facts in this particular case we cannot say the recording failed to show appellant was advised the interrogation would be recorded. The recording reflects appellant was told he would be handed the recording apparatus and was advised to keep the apparatus close to his mouth so outside noise would not drown out his voice. Given these facts, we do not see how appellant may now logically complain he was not properly advised the conversation was to be recorded. The point of error is overruled.
In his fourteenth point of error, appellant complains his due process rights were violated by the admission into evidence of a videotaped statement he made during a February 16, 1984, interview with Sheriff Boutwell in which he says that in return for all or part of a paycheck, Florida work records would be falsified to show an employee was present and working on a particular job. Appellant points to an order drafted by defense counsel and signed by the trial judge prohibiting law enforcement agents from interrogating appellant concerning the instant offense and further requiring appellant’s attorneys be notified before interrogation occurred on any other offense appellant was not then presently under indictment for in Williamson County.
The record reflects a defense motion was filed in this case to prohibit any and all questioning of appellant during his stay in Williamson County. The motion was heard and argued on November 14, 1983. Testimony was elicited from Boutwell and appellant, both of whom agreed appellant was voluntarily cooperating with law enforcement officials regarding the resolution of extraneous, previously unsolved crimes. Appellant, in response to questioning by the court regarding whether he wanted to have counsel present at such interrogations, made clear his feelings on the matter:
No, sir. I didn’t start this in June to have an attorney present. When I started it, I told them what my decision was. I have been fighting attorneys ever since it happened and I have been fighting law officials ever since it happened to be able to testify that I did do a crime, and I don’t feel it’s — since I have done the crimes, I don’t feel it’s right for myself to deny that. I have done those crimes. Simply because another person says, no, you can’t do that, I mean, if I’ve done a crime, then I am the one that has got to pay. Nobody else. Nobody else has got to pay with their life except me and I have been dead for 23 years. So, as far as admitting to crimes that I haven’t done, I don’t do that and I have only admitted to my own crimes.
After carefully questioning appellant concerning his understanding of his Miranda rights and his feelings on the matter, the trial court denied the defense motion which would act as a blanket prohibition of all questioning, but asked that the defense attorney:
... draft an order which states that the Defendant is not to discuss this case that is presently under indictment in Williamson County, which he has stated he is not going to and he’s not to be interrogated about the case he’s presently under indictment in Williamson County, and the Court is going to order the Sheriff’s Office to notify, even though Mr. Lucas has stated here in court that he doesn’t want his lawyers present when he’s making statements or talking to other officers, in order for them to properly defend Mr. Lucas. They feel it is necessary that they at least know who he is talking to, so as he makes statements and talks to law enforcement officers, I want (defense attorneys) informed that he is going to talk to somebody and make a statement and then if they want to be present, they may be present if the lawyers choose to be present.
Such an order was subsequently drafted and signed by the trial judge on November 21, 1983.
Appellant attacks admission of the statement on two fronts. First, he contends the February, 1984 interrogation was improper because it dealt with matters “pertaining to the instant case.” Second, even if the questioning avoided matters pertaining to the case under indictment, Sheriff Boutwell was required to notify appellant’s attorneys before questioning began, which he failed .to do. Although appellant’s argument is multifarious, we will review each argument in the interest of justice.
The order signed by the trial judge reads in pertinent part:
IT IS hereby ordered that the Defendant may be interrogated or questioned by law enforcement officers only if he consents to said interrogation, and only after the Sheriff of Williamson County, Texas has advised the attorneys for the Defendant herein that he is to be interrogated.
IT IS FURTHER ORDERED that the defendant is not to be interrogated by anyone concerning the offense for which he has been indicted herein.
The order plainly states that officers could question appellant about matters other than the offense for which he stood indicted, to wit, the offense at bar. Appellant argues a more expansive construction of the order, saying the order prevented questioning of any matter “pertaining to the instant case." While at first blush any difference may appear to be a matter of semantics, we think the language used in the order clearly distinguishes questioning about the facts or circumstances of the offense from other collaterally related circumstances regarding appellant’s conduct over an extended period of time. Officers were prevented from interrogating appellant about the facts of the offense itself, but the order does not state, nor does the record reflect, that it was designed to prevent proper police investigation of other unsolved matters. While it may be true that appellant’s work history and circumstances surrounding his alleged presence or absence from work over a period of time correlating with the time of the murder “pertained” to the case, the nexus is not with the circumstances of the offense itself but with appellant’s choice of defense strategy to rebut the charge after the State had concluded it’s case-in-chief. Unquestionably, the facts concerning appellant’s work history also “pertained” to extraneous and previously unsolved matters then being investigated by police agencies from around the country, with appellant’s full cooperation. Our review of the statement in question shows no mention of facts “concerning the offense” for which appellant stood indicted, either in violation of the pretrial order or in conflict with the intent of the trial court as reflected by the transcript of the hearing on appellant’s motion.
Also of concern is whether the State, through its agents, abided by the order of the trial court to advise the attorneys appointed to represent appellant that appellant would be interrogated on February 16, 1984. The record reflects defense attorneys were indeed notified of future interrogations on a daily basis for a period of time after the order was signed. It also shows his attorneys decided at some point to no longer attend the interrogations. Neither of appellant’s trial attorneys could state positively whether they were or were not informed of the February 16th meeting. However, one attorney testified he agreed with Sheriff Boutwell at some point that no future notice need be given except for the instant offense, for which interrogation had already been banned by order of the trial court.
From the above facts it is clear appellant’s attorneys, even over appellant’s own stated desire not to have counsel present, were indeed notified of future interrogations for some uncertain period of time after the order was entered. The record does not affirmatively reflect, through the testimony of any witness on either side, that the order was violated. Indeed, there is some indication if the terms were not strictly met as to notification, the order was modified by agreement of the parties, as argued by the State. It must be remembered the instant cause does not present a case where law enforcement officials were enticing or otherwise coercing a suspect to make a statement or incriminate himself. The record reflects the trial court, before requesting the order be drafted, questioned appellant at length regarding his willingness to talk with police about other unsolved incidents. Appellant repeatedly stated" it was his desire to continue the discussions, without benefit of counsel. It was not unreasonable under these particular facts for appointed counsel to agree to modify the order, if such was the case. We do not find appellant’s due process rights were violated either by the taking of the statement or by its admission. Appellant’s fourteenth point of error is overruled.
In his fifteenth point of error appellant complains the trial court erred in failing to file as part of the record on appeal the findings of fact and conclusions of law on the confession issues raised at the pretrial hearing.
Article 38.22(6), V.A.C.C.P., requires a trial court to determine the voluntariness of an accused’s statement whenever the issue is raised, and where the court has determined the statement is admissible as a matter of law and fact, the court must enter an order stating its specific findings and conclusions made therefrom; the order to be filed in the record.
The trial court filed with the Clerk of this Court his findings of fact and conclusions of law on August 20, 1987. The order reflects findings and conclusions concerning appellant’s statements of June 22, 1983; July 28, 1983; July 31,1983; August 2, 1983; November 10, 1983; and February 16, 1984; as well as findings and conclusions upholding appellant’s original arrest for possession of a firearm by a felon. Therefore, since the trial court’s findings of fact and conclusions of law have been supplemented into the record before us, any error has been cured and appellant is entitled to no further relief. Garrett v. State, 682 S.W.2d 301 (Tex.Cr.App.1984). Cf. Dykes v. State, 649 S.W.2d 633 (Tex.Cr.App.1983); Bonham v. State, 644 S.W.2d 5 (Tex.Cr.App.1983). Appellant’s fifteenth point of error is overruled.
In point of error sixteen appellant contends the trial court erred in refusing to instruct the jury on the voluntariness of his confessions. The requested instruction reads as follows:
You are instructed that if you believe from the evidence or have a reasonable doubt thereof that at the time the Defendant made the alleged confession in evidence before you, if he did, said Defendant was under the influence of drugs or some substance of past or recent usage, if he was, and therefore was not in possession of his mental faculties to the extent that he could
1) Knowingly and intelligently waive his right to remain silent, and
2) Waive his right to have a lawyer present to advise him prior to any questioning, and
3) Waive his right to terminate the interview at any time.
You will not consider said alleged confession or statement or any evidence derived therefrom for any purpose whatsoever.
The crux of appellant’s argument is that the evidence showed he was of low average or low normal range intelligence, was a residual chronic schizophrenic, had difficulty following lengthy or complex instructions, would “flip-flop” in thinking and behavior leading to his alternately attempting to please and confuse authority figures, had difficulty with short-term memory, and had been heavily sedated with Thorazine and certain tranquilizers during the period in which he was cooperating with law enforcement officials. Appellant concludes by asserting the jury could have found his ability to make a knowing and intelligent waiver of his rights was affected by medications he was given during this time period, and under Art. 38.22(7), supra, the requested instruction should have been given.
We first pause to point out appellant is not claiming the trial court should have instructed the jury regarding alleged inherent mental subnormality suffered by appellant. His requested instruction asked for a fact-finding and blanket limitation based upon the effect of drugs appellant was prescribed during incarceration upon his decision to cooperate with authorities in solving the previously unsolved murder. Therefore, before he would be entitled to such an instruction, the record must show from some source not just the fact the medication was prescribed, but also that the drugs would have the claimed effect. Appellant contends his expert witness testimony provided such an opinion.
A review of the testimony in the case not only fails to support appellant’s contention; it directly refutes the claim. Austin Psychologist Dr. Tom Kubiszyn’s testimony is instructive. Called by the Defense, he testified that Thorazine, an antipsychotic drug,
is one of a class of chemical compounds that have proven to be very effective in the treatment of psychotic disorders, including schizophrenia. The schizophrenic individual often has great difficulty organizing his or her thinking and perceiving accurately reality. The effect of the Thorazine is that it helps to clarify for the individual thought processes, helps in organizing, in a sense helps that individual deal more effectively with reality.
The effect of the medication given appellant, Dr. Kubiszyn agreed, was to make appellant “less crazy.” While it is true Kubiszyn diagnosed appellant as suffering from a mental disease, he also found appellant to be more cognizant because of the medication. Kubiszyn found appellant to have an approximate IQ of 84, with reading skills of almost a seventh grade level. At no time did the doctor opine the medication caused a loss of faculties; to the contrary, all his testimony on the subject showed the positive influence the drugs had on appellant’s ability to deal with reality.
Psychiatrist Jay Fogelman, also called as a defense witness, testified as to the effects of Thorazine on the treated individual. Dr. Fogelman explained the drug worked in the central nervous system in the brain of an individual suffering from schizophrenia to block excess amounts of chemicals which travel from one nerve cell in the brain to another through the synapse, or point at which a nervous impulse passes between neurons. Because the excess amount of the debilitating chemical is controlled, the psychotic symptoms “get much better”.
Nothing, in either witnesses’ testimony raised the issue whether medication may have caused appellant to lose control of his mental faculties to the point he would be unable to knowingly and intelligently undertake the course of cooperative conduct he chose to follow after his arrest in Montague County. Nor does appellant point to any other evidence from which it may reasonably be deduced that the prescribed medication had any such effect. Moreover, our review of the taped statements in the case does not reflect any such evidence; to the contrary, appellant appears and sounds rational, thorough and persistent in his desire to confess his criminal conduct. We find appellant failed to prove his alleged mental subnormality, allegedly caused by the prescribed medication, existed as a matter of fact so as to require an instruction for the jury. See generally Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979); Rogers v. State, 549 S.W.2d 726 (Tex.Cr.App.1977); Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.1970). Appellant not being entitled to the instruction, there is no error. The sixteenth point of error is overruled.
In his seventeenth point of error appellant claims his June 22,1983, written statement was the product of an illegal arrest and was admitted into evidence in violation of his rights under the Fourth Amendment, Art. I § 9 of the Texas Constitution, and under Arts. 1.06 and 38.23, V.A.C.C.P.
At a pretrial hearing on appellant’s Second Motion to Suppress his otherwise voluntary statements given to Sheriff Boutwell, testimony was heard regarding appellant’s arrest at the compound belonging to the House of Prayer in Montague County. The record reflects affidavits were filed by Reverend Ruben R. Moore and Fay Munnerlyn stating appellant had a pistol in his possession in the “Cook Shack” at the House of Prayer and had given the gun to Moore, who in turn asked Munnerlyn to take the gun elsewhere. Sheriff Conway filed a complaint based upon this fact and the fact appellant had previously been convicted of a felony involving an act of violence. The complaint charged appellant with the crime of unlawful possession of a firearm by a felon. Y.T.C.A., Penal Code, § 46.05. Appellant asserts on appeal, as he did in his pretrial motion, that the complaint is insufficient to support the warrant subsequently issued for his arrest because neither affidavit supporting the complaint alleged a specific place of possession “away from the premises where he lived.” Thus, appellant asserts, Sheriff Conway made the allegations in the complaint “with a knowing and deliberate falsehood” as to the necessary element of location of possession, in direct violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d. 667 (1978) (intentional abuses of warrant process, including deliberate falsehoods alleged in affidavit, as grounds for reversal).
As appellant points out, Moore’s affidavit states no specific location, but says that appellant “came to me and was leaving” when appellant gave him the gun. Moore goes on to say he gave the gun to Faye Munnerlyn. Munnerlyn’s affidavit gives the location where Moore was given the gun as “the Cook Shack at the House of Prayer Church in Stoneburg.” Conway’s sworn complaint plainly states the affiants saw appellant in possession of the gun at a place away from the premises where he lived. Thus, as appellant ultimately contends, the question to be resolved is whether Conway knew the information was false as to the element of location, in violation of Franks v. Delaware, supra. Put simply, the validity of appellant’s claim lies in the question of whether the sheriff had knowledge whether the “Cook Shack” was part of appellant’s “premises” for purpose of the statute proscribing such possessory conduct.
At the pretrial hearing on the motion to suppress, while being cross-examined by defense counsel regarding the complaint and affidavits, Conway was asked how he knew the “Cook Shack” was “away from the premises” of appellant. The sheriff responded:
It was away from his house. It was at the coffee shop where everyone goes. The church people and everybody goes (sic) to the coffee shop, where he brought it to him.
A short time later Conway was asked whether he had inquired of Moore and Munnerlyn as to the “premises”:
(Q) Did you ask them about the, about the premises?
(A) Ask—
(Q) Ask Rueban- and Fay Moore (sic)?
(A) Yes, I asked them where he gave it to them, and if I recall right, they said at the coffee shop, at their coffee shop there at the church. And it is not — the building is not attached to the building where he lives, and it’s a public place and a road between them.
The sheriff went on in more detail to describe the House of Prayer compound and testimony was elicited that he was well acquainted with the area, having made several trips out to the church to talk with appellant.
The term “premises” and phrase “premises where he lives” are not expressly defined in the Texas Penal Code. However, the obvious intent of the statute proscribing possession of firearms by convicted felons is to keep violent offenders from going about with firearms. Sheppard v. State, 586 S.W.2d 500 (Tex.Cr.App.1979). Because they have demonstrated a propensity toward violence, the State has a rational basis on which to restrict their possession of firearms in order to protect the general public. Milligan v. State, 554 S.W.2d 192 (Tex.Cr.App.1977). By statute, convicted felons are not entitled to possess a firearm except where they “live”, within the meaning and intent of the statute.
The record reflects the area of the compound included a central building, the church and “Cook Shack”; flanked by unconnected outbuildings, some of which were revitalized chicken houses. Parking areas separated the main building from the other structures. Appellant and other individuals lived in the outbuildings, but along with other church members, shared the communal facilities of the “Cook Shack” or “Coffee Shop.” Thus, it appears his residency was more in the nature of a tenant than an owner, such as Reuben Moore, whose “own premises” would conceivably cover the whole area as a “place of business.” See Lattimore v. State, 145 S.W. 588 (Tex.Cr.App.1912). See also generally Roy v. State, 552 S.W.2d 827 (Tex.Cr.App.1977).
Given the above knowledge held by the sheriff at the time the complaint was sworn out, we cannot agree with appellant that Conway knowingly and deliberately included falsehoods within the complaint by alleging appellant possessed the weapon away from his own premises. To an observer, appellant’s residence, separated as it was from the “Cook Shack,” would not logically appear to be part of his premises. And, indeed, given the tenancy arrangements at the compound, the “Cook Shack” was not part of appellant’s “premises” as that term is understood in the jurisprudence of this state, but was a common area or “public place” for the use of all church members and residents. See Melton v. State, 508 S.W.2d 104 (Tex.Cr.App.1974) (defendant carried pistol downstairs into public area of apartment complex); Bryant v. State, 508 S.W.2d 103 (Tex.Cr.App.1974) (tenant of apartment complex seen with pistol in parking lot was not on own premises); Wilson v. State, 418 S.W.2d 687 (Tex.Cr.App.1967) (tenant who carried pistol upon grass, sidewalks, driveway, and parking lot jointly used by all tenants was not on own premises).
We also find that the facts in the affidavits and allegations in the complaint, although of a “bare-bones” variety, gave the magistrate who signed the warrant sufficient information to believe a crime had been committed. The affidavits clearly identified the location of possession as the “Cook Shack,” which, although not specifically named in the complaint, was by common definition as a public place “away from the premises” of appellant. The arrest being proper, the alleged “illegal fruit” of the arrest — the June 22nd confession — was also properly admitted. We, therefore, overrule appellant’s challenges of constitutional and statutory error under this seventeenth point.
Appellant contends in his last point of error the trial court erred in refusing a requested charge on special issue number three at the penalty phase of trial. The record reflects at the close of the evidentiary phase of trial, a conference was held concerning the charge to be given the jury. At this time, appellant objected to the failure of the trial court to include within the charge an instruction pursuant to Art. 37.-071(b)(3), V.A.C.C.P. That subsection states:
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. (Emphasis supplied)
The record before us provides a complete picture of the events leading up to the murder in appellant’s own words. According to appellant, “Jane Doe” refused to have sex with him a second time and she tried to jump out of the moving car. Appellant then grabbed her and thwarted her escape attempt. True, the young woman “fought” him, grabbing the steering wheel and attempting to escape his grasp. The appellant would have this Court hold such conduct, since it “jeopardized” appellant’s life by “the likelihood of an automobile wreck caused by the deceased,” was provocation sufficient to warrant the requested instruction. This we decline to do. Although the evidence showed the deceased struggled to escape appellant, there was no evidence her conduct was of such a nature so as to incite appellant to violence as a result of that conduct. Nor is our attention directed to any other evidence tending to show appellant’s ultimate act was “incited” by any conduct of the victim. To the contrary, the evidence, all of which was derived from appellant’s own statements, reflects appellant never intended to release his victim alive; his act in killing the deceased was not one of passion but of calculation.
In order to raise the issue of provocation, it is necessary there be evidence of the deceased’s conduct just prior to death and that evidence must be sufficient to be considered provocation. Hernandez v. State, 643 S.W.2d 397 (Tex.Cr.App.1983). The third special issue, like the second special issue under Art. 37.071, supra, has been construed as permitting the jury to consider particularized mitigating circumstances. Evans v. State, 601 S.W.2d 943 (Tex.Cr.App.1980). Here, as the facts recited above demonstrate, there were no sufficiently provocative acts by the deceased to raise the issue. See and compare Evans, supra, at 946 (victim’s act in pointing and firing pistol at defendant sufficient provocation). The trial court did not err in refusing to submit the requested instruction. Appellant’s last point of error is overruled.
The judgment is affirmed.
McCORMICK, P.J., and CLINTON, J., concurs in the result.
TEAGUE, J., dissents to the disposition made of points of error numbers 1-7, 9, 13, 14, and 17.
APPENDIX
Brotherton, Maxfield & Tompkins
ATTORNEYS AT LAW
June 22, 1983
Sheriff W.F. Conway
Sheriff’s Office
Montague, Texas 76251
Re: Inmate — Henry Lee Lucas Charge — Murder
Dear Sheriff Conway:
On June 21, 1983, Judge Frank Douthitt appointed me to represent Henry Lee Lucas who is presently in your custody. I understand that my client has been interviewed by law enforcement officers and attorneys for the State concerning various conduct.
I hereby serve you notice that my client does not consent to any interview with any law enforcement officer or attorney for the State from this date forward, without my presence at such interview. Any attempt at an interview with my client without my presence is in direct violation of my client’s constitutional and statutory rights and your department will be held directly responsible for any such violation of my client’s rights.
My client invokes his 5th Amendment right to remain silent and does not knowingly, intentionally, or intelligently waive his right to remain silent. My client invokes his 6th Amendment right to have his attorney present before any interviews or other procedures or proceedings take place, and does not knowingly, intentionally, or intelligently waive such rights.
I will ask for your cooperation on these matters so that none of my client’s rights are violated while in your custody.
Very truly yours,
/s/ Donald E. Maxfield
DEM: jp
cc: Judge Frank Douthitt Mr. Jack McGaughey
Section 46.05 states in pertinent part: (a) A person who has been convicted of a felony involving an act of violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives., See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
At this point in time, appellant had been charged with the murder of the unidentified woman. Following the August 2 and subsequent statements, the Grand Jury returned a capital murder indictment against appellant on January 19, 1984.
A short time before the transfer, appellant was tried and convicted for the offense of murdering Becky Powell, for which he received a life sentence.
The State did not attempt to introduce any of the written statements taken from appellant by Conway on June 15, 1983.
See Appendix, infra.
In his dissent in Holloway, supra, Judge Teague cites the case of Wilkerson v. State, 657 S.W.2d 784 (Tex.Crim.App.1983) as the authority for the proposition that appointment and consultation are a per se invocation. Appellant in his brief now cites Holloway, supra, and that proposition as authority. In Holloway, supra, counsel’s attempts to unilaterally invoke his client’s rights before consultation were held to be unsuccessful. In Wilkerson, supra, the record clearly showed the accused "repeatedly expressed" his desire not to speak with authorities, was accompanied by counsel throughout the proceedings, and counsel had instructed the authorities not to question the accused in his absence. Thus, it was not a matter of an automatic invocation by result of appointment and consultation. Rather, in Wilkerson, supra, the accused and counsel let the former’s invocation be shown throughout the proceedings, see Wilkerson, 657 S.W.2d at 791, while in Holloway, supra, even after consulting with counsel, the accused indicated he did not want counsel present during interrogation.
The record not only reflects that appellant chose to provide incriminating evidence regarding murders before his trial on the instant case, but also that appellant, after being sentenced to death, was granted special dispensation at his own request to remain incarcerated in Williamson County so he could assist various law enforcement agencies in resolving additional unsolved homicides.
Art. 38.29, supra, in effect at the time of appellant’s trial, was repealed by Texas Rules of Criminal Evidence effective September 1, 1986. Rule 609 states in pertinent part: (a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
Now see Tex.R.App.P. 107 which mirrors the language in old Art. 38.24. The only addition under the new rule is to specifically include depositions as a written or recorded statement.
In a very recent case, the Eleventh Circuit Court of Appeals grappled with the very same problem raised at bar. In Gates v. Zant, 863 F.2d 1492 (11th Cir.1989), the court held that a “brief viewing" of a handcuffed defendant in a videotaped confession by the jury, while rebutting the presumption of innocence, did not require reversal absent a showing of "actual prejudice.”
In order for a recording to be admissible under Edwards, the following must be shown by the party seeking to introduce the recording: (1) the recording device was capable of taking testimony, (2) the operator was competent, (3) the recording is both authentic and correct, (4) no changes, additions or deletions have been made, (5) the manner in which the recording was preserved, (6) identification of the speakers, (7) the testimony was voluntarily made without any kind of inducement.
See footnote 1, ante.
Appellant also complains that the June 22nd confession was a tainted product of a statement he gave on June 15th regarding the Montague County offense. That argument is premised upon our finding an invalid arrest, as discussed ante. The June 15th statement was not introduced into evidence before the jury.
Ex Parte Henry Lee LUCAS.
No. 71164.
Court of Criminal Appeals of Texas, En Banc.
April 8, 1992.
Rehearing Denied May 20, 1992.
Richard Alley, Danny D. Bums, Fort Worth, for appellant.
Ken Anderson, Dist. Atty., Georgetown, Robert Huttash, State’s Atty., Austin, for the State.
[OPINION BY OVERSTREET, Judge. type=majority]
OPINION
OVERSTREET, Judge.
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.07, V.A.C.C.P. Applicant presented five allegations in which he challenged the validity of his conviction and resulting sentence. Upon due consideration, on November 29, 1990, we ordered the instant cause filed and set for submission on one of those allegations. Thus, we shall proceed to discuss and determine the merits of that allegation.
I.
SUMMARY OF PROCEDURAL HISTORY
In April of 1984, applicant was convicted, in the 119th Judicial District Court of Tom Green County, Texas, after a change of venue from Williamson County, of capital murder pursuant to V.T.C.A. Penal Code, § 19.03. The indictment alleged that the murder was committed on or about October 31, 1979. The jury returned affirmative answers to the special issues submitted pursuant to Article 37.071, V.A.C.C.P., whereupon a sentence of death was assessed. This Court affirmed the judgment and sentence on direct appeal. Lucas v. State, 791 S.W.2d 35 (Tex.Cr.App.1989).
II.
APPLICANT’S CLAIM
Applicant now alleges that he was deprived of due process of law when the trial court failed to give proper punishment jury charge instructions as to how to apply the mitigating circumstances of mental illness and disease. He claims that such failure deprived him of a fair trial in contravention of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The record does not reflect any objection to the absence of such instructions, nor was such claim raised on direct appeal; however, as applicant’s trial occurred in April of 1984, he has not waived his right to assert such a claim via habeas writ application. See, Ex parte Goodman, 816 S.W.2d 383, 385 (Tex. Cr.App.1991); Ex parte Ellis, 810 S.W.2d 208, 209 (Tex.Cr.App.1991); Black v. State, 816 S.W.2d 350, 374 (Tex.Cr.App.1991) (Campbell, J., concurring); Selvage v. Collins, 816 S.W.2d 390, 392 (Tex.Cr.App. 1991).
Specifically applicant avers that there existed three areas of evidence “in mitigation of the ultimate punishment of death[;]” to-wit: 1) his mental disease and defect; 2) his voluntary surrender, polygraphing, and release upon $2,000 personal appearance bond pending investigation of this case; and 3) his distressed childhood of emotional, mental and physical abuse. He claims that he “was entitled to have ... instructions [submitted] to inform the jury ... how [to] properly ... apply the issue of [his] mental illness and disease in the punishment phase of th[e] case.”
With regard to his claim about his voluntary surrender and polygraphing, and his unsupervised release, we observe that applicant cites portions of the record from a pretrial confession suppression hearing, Because applicant cites us to no point in the trial on the merits where such evidence was presented to the jury, we do not consider such to be in support of his Penry claim.
Regarding his claim of mental disease and defect, applicant cites testimony about his prior suicide attempts and commitments to mental health facilities; however, that testimony was also before the trial court at the same pretrial hearing rather than the jury. He also discusses evidence of longstanding mental disease and defect, some of which was presented to the jury. In deciding applicant’s claim, we shall only consider and discuss evidence which was so presented to the jury.
Among the cited testimony which the jury heard are opinions from both a psychologist and a psychiatrist. The psychologist testified that applicant’s intellectual functioning was in “the low-average or low-normal range” with an IQ score of 84. He also testified that applicant tends to misperceive aspects of reality and that his diagnostic impression of applicant was that he suffered from “chronic schizophrenia of a residual type with an underlying schizotypal personality disorder.” He added that applicant suffered from such “at least all of his adult life, and perhaps for even some period of time prior to the onset of adulthood.” Applicant was also receiving Thorazine medication. The psychologist did not believe that applicant was a sociopath because applicant did have the capacity to feel guilt and to experience empathy for other individuals. He testified that the psychological profile showed that applicant was an individual with low-average or dull-normal intellectual abilities, and who had short-term auditory memory problems and some difficulty with auditory comprehension. It also indicated that applicant’s thinking tended to be illogical at times, and that he showed no insight into the logical breaks in his thinking, and with ambivalence and indecisiveness being characteristic of him. The psychologist continued with testimony that applicant’s childhood experiences were characterized by “extreme emotional and economical deprivation” in growing up in a “household where there was no nurturance.” He also added that applicant “suffered from repeated physical abuse at the hands of his natural mother” which led him to harbor strong feelings of resentment and hostility toward authority figures and females. He generally opined that applicant suffers from a longstanding serious mental disease or defect.
Applicant also directs us to several aspects of expert psychiatric testimony with respect to his mental disease and defect claim. The psychiatrist testified that applicant had an antisocial personality plus schizophrenia and a schizotypal personality, and that such was the most severe mental disease/defect that one could have. Applicant cites further testimony from the psychiatrist which opined that when in a psychotic state, applicant would not know the difference between right and wrong and could not conform his conduct to the law.
With regard to his claim of childhood distresses, applicant’s application simply states, “Evidence of this will be tendered in affidavit form through the [ajpplicant and others and is detailed to some extent in the reports of the psychologists and psychiatrists who examined [ajpplicant herein as contained in the trial record.” We observe that no such affidavits have been tendered. Appellant’s failure to cite relevant portions of the record which specifically support his claim regarding childhood distresses presents nothing for review. Pierce v. State, 777 S.W.2d 399, 418 (Tex. Cr.App.1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2603, 110 L.Ed.2d 283 (1990). Nevertheless, in the interest of justice we shall review the record to find the details which applicant refers to “in the reports of the psychologists and psychiatrists who examined [applicant herein as contained in the trial record.” After scouring the “trial record,” including the ten statement of facts volumes which detail testimony presented before the jury at both guilt/innocence and punishment and the exhibits submitted therein, we do not find that the jury received any evidence, other than that which we have detailed above, relating to his alleged distressed childhood.
III.
CONCLUSION
We conclude that the evidence in the record which corresponds to applicant’s mitigating allegations was not comparable to that in Penry, supra. Thus, we conclude that the jury was able to consider and give effect to all of the above-described evidence by way of answering the special issues which were submitted at punishment. See, Ellis v. State, 810 S.W.2d 208, 212 (Tex.Cr.App.1991) (discussing evidence of a suicide attempt); Richardson v. State, 1991 WL 99949 (Tex.Cr.App. No. 68,934, delivered June 12, 1991, slip op. at 7) (discussing alleged evidence of child abuse and mental/emotional impairment); Lewis v. State, 815 S.W.2d 560, 567 (Tex.Cr.App. 1991) (discussing evidence of an unhappy childhood); Ex parte Kelly, 832 S.W.2d 44 (Tex.Cr.App.) (discussing evidence of reduced mental capacity/]ow level of intelligence); Boggess v. State, 1991 WL 87597 (Tex.Cr.App. No. 69,990, delivered May 29, 1991) (discussing evidence of vision problems as a child); Harris v. State, 825 5.W.2d at 121 (discussing evidence of cooperation with the police).
Accordingly, applicant’s application for writ of habeas corpus is hereby denied.
McCORMICK, P.J., and CAMPBELL, BAIRD and BENAVIDES, JJ., concur in result.
MALONEY, J., not participating.
[OPINION BY CLINTON, Judge, type=dissent]
CLINTON, Judge,
dissenting.
To say that mitigating evidence in this cause is “not comparable to that in Penry, supra,” majority slip opinion, at 342, is to adjudicate with tunnel vision.
The Supreme Court merely applied to Penry the principle underlying Lockett and Eddings “that punishment should be directly related to the personal culpability of the criminal defendant,” so that “the sentence imposed at the penalty stage [will] reflect a reasoned moral response to the defendant’s background, character, and crime.” Nothing said by the Supreme Court in Penry suggests that state courts must treat its application of basic Eighth Amendment principles in Penry as an exclusive pattern from which they are obliged to copy in all cases when called on to determine whether “in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of [Lucas’] mental retardation and abused background by declining to impose the death penalty, that the jury was not provided with a vehicle for expressing in ‘reasoned moral response’ to that evidence in rendering its sentencing decision.”
Simply to cite other opinions similarly inflicted serves only to exacerbate the condition that is preventing the Court from applying those fundamental principles to the case at hand. See, e.g., Ex parte Bower, 823 S.W.2d 284 (Tex.Cr.App.1991) (dissenting opinion).
Accordingly, I dissent.
Accordingly, the relief requested in those four other grounds is hereby denied.
Obviously, if the jury did not receive particular evidence, then there was no need to submit an instruction on how to apply such unreceived evidence.
We note that applicant does not cite any portion of the record which details the particulars of this alleged abuse. However, we discern that apparently this included applicant relating to the psychologist that he had no pleasant or fond memories of childhood, had been recruited into bootlegging at the age of four by his father, and had observed his mother engaging in sexual activity. He also related that at age seven or eight he had one of his eyes accidentally stabbed by his brother and suffered a fall from a ladder which resulted in a head injury. .We note that there is some question as to whether we could consider such affidavits even if they had been piesented. See, Ex parte Goodman, 816 S.W.2d at 386 and Ex parte Kelly, 832 S.W.2d 44, 47 (Tex.Cr.App.1992). We have even explicitly said that “evidence outside the record is wholly irrelevant to such [a Penry ] claim." Ex parte Harris, 825 S.W.2d 120, 122 (Tex.Cr. App. No. 71,179, delivered December 18, 1991, slip op. at 4).
We observe that no reports of psychologists or psychiatrists appear to have been received into evidence before the jury. However, the several psychiatric/psychological experts who testified did appear to be basing some of their testimony upon previous reviewing of some such reports.
As noted above, in accordance with Article 37.071, V.A.C.C.P. the first two special issues dealing with deliberateness and future dangerousness were submitted and answered affirmatively.
Ex parte Henry Lee LUCAS.
No. 71164.
Court of Criminal Appeals of Texas, En Banc.
June 8, 1994.
Danny D. Bums and Richard Alley, Fort Worth, for appellant.
Ken Anderson, Dist. Atty., and Paul Wom-ack, Asst. Dist. Atty., Georgetown, Robert Huttash, State’s Atty., Austin, for State.
Before the court en banc.
[OPINION BY CAMPBELL, Judge. type=majority]
OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT
CAMPBELL, Judge.
Applicant Henry Lee Lucas was convicted of capital murder and sentenced to death for the murder and sexual assault of an unidentified woman in Williamson County. On direct appeal to this Court, we affirmed. Lucas v. State, 791 S.W.2d 35 (Tex.Crim.App.1989). Applicant then filed a post-conviction application for writ of habeas corpus. We denied relief. Ex Parte Lucas, 834 S.W.2d 339 (Tex.Crim.App.1992). The United States Supreme Court subsequently granted applicant’s petition for writ of certiorari, vacated our judgment, and remanded this ease for further consideration in light of Johnson v. Texas, — U.S. -, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). We will again deny relief.
In Johnson, the petitioner, Dorsie Lee Johnson, was found guilty of capital murder and sentenced to death. At the punishment phase of Johnson’s trial, the jury was instructed on special issues one and two. On appeal, Johnson argued that, under the Eighth Amendment, the trial court should have allowed a special jury instruction at the punishment phase concerning the potentially mitigating evidence of his youth. The Supreme Court held that the trial court’s refusal to allow the special instruction did not offend the Eighth Amendment’s prohibition against cruel and unusual punishments.
The Supreme Court’s Johnson decision succeeded its earlier decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In Penry, the petitioner, Johnny Paul Penry, provided evidence during his capital murder trial of his mental retardation and abusive childhood. The Court held that the special issues under the Texas capital sentencing scheme were insufficient, without an additional jury instruction, to allow the jury to give effect to the relevant mitigating evidence offered by Penry at his trial. The Court held, specifically, that, without an additional jury instruction, the jury in Penry’s case was unable to make a “reasoned moral response” to Penry’s mitigating evidence in deciding whether to impose the death penalty.
Applicant introduced “mitigating” evidence at his trial in the form of testimony from a psychologist and a psychiatrist. The psychologist, Dr. Tom Kubiszyn, testified that applicant suffered from “chronic schizophrenia of a residual type with an underlying schizotypal personality disorder.” Dr. Kubiszyn also testified concerning applicant’s childhood, stating that applicant’s father was a bootlegger and a double amputee who died when applicant was still young, and that applicant’s mother was sexually promiscuous and inflicted physical and emotional abuse upon applicant. Dr. Kubiszyn stated that he believed the abuse inflicted upon applicant by his mother caused applicant, as an adult, to harbor strong feelings of resentment and hostility toward females. Finally, Dr. Kubiszyn testified that applicant was of “low-average” intelligence, with an I.Q. of 84.
The psychiatrist, Dr. Jay Fogelman, corroborated much of Dr. Kubiszyn’s testimony concerning applicant’s psychosis and childhood. Dr. Fogelman testified that applicant suffered from “chronic schizophrenia,” and had two personality disorders — a schizotypal personality and elements of a sociopathic personality. Dr. Fogelman also testified that, as a child, applicant frequently witnessed his mother undress and act provocatively in his presence, and that applicant periodically had seizures at school which caused him to be treated as an outcast.
In our initial review of this post-conviction application for relief, we held that the potentially mitigating evidence offered by applicant did not warrant a Penry-type instruction at the punishment stage of his trial. Ex Parte Lucas, 834 S.W.2d at 342. We do not believe that Johnson changes that holding. The record shows that applicant was 43 years old when he committed the instant offense. The petitioner in Johnson, in contrast, was only 19 when he committed his offense. We believe, therefore, that youth is not a factor in the instant case.
Given the facts and holding of Johnson, we conclude that our original determination, that applicant’s potentially mitigating evidence did not merit an additional jury instruction at the punishment phase of his trial, is unaffected by Johnson. Therefore, we reaffirm our holding in our initial review of applicant’s post-conviction application for relief.
The request for relief is DENIED.
CLINTON, BAIRD and OVERSTREET, JJ., dissent because the majority pretends the Supreme Court remanded this cause to reconsider the matter of age, all the while ignoring that it pointedly cautioned, “Penry remains the law and must be given a fair reading.” 509 U.S. at -, 113 S.Ct. at 2670, 125 L.Ed.2d at 307.
MALONEY, J., not participating.
[OPINION BY OVERSTREET, Judge, type=dissent]
OVERSTREET, Judge,
dissenting.
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.07, V.A.C.C.P. In April of 1984, applicant was convicted of capital murder, alleged to have been committed on or about October 31, 1979. He was sentenced to death. This Court affirmed the judgment and sentence on direct appeal. Lucas v. State, 791 S.W.2d 35 (Tex.Cr.App.1989). Applicant thereafter presented five allegations in which he challenged the validity of his conviction and resulting sentence. On November 29, 1990 this Court ordered the instant cause filed and set for submission on one of those allegations. On April 8,1992 we denied applicant’s application for writ of habeas corpus. Ex parte Lucas, 834 S.W.2d 339 (Tex.Cr.App.1992). Applicant thereafter petitioned the United States Supreme Court for writ of certiorari. On June 28, 1993 the Supreme Court granted such and ordered our judgment vacated and remanded the cause to us “for further consideration in light of Johnson v. Texas, 509 U.S. -, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993).” Lucas v. Texas, — U.S. -, 113 S.Ct. 3029, 125 L.Ed.2d 717 (1993).
In Ex parte Lucas, supra, this Court concluded that the jury was able to consider and give effect to appellant’s evidence of his mental disease/defect and distressed childhood by way of answering the special issues which were submitted per Article 37.071, V.A.C.C.P. Pursuant to the Supreme Court’s instructions, this Court must reconsider its conclusion “in light of Johnson v. Texas, 509 U.S. -, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993).” We should therefore very closely examine Johnson.
I.
HOLDING OF JOHNSON
Johnson v. State, 509 U.S. -, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) involved a Texas capital murder defendant who claimed that the Texas special issues did not allow his jury to give adequate mitigating effect to evidence of his youth, i.e. being 19 years of age at the time of the offense. After discussing the development of recent constitutional jurisprudence regarding the consideration of mitigating circumstances by sentencers in capital cases, including the principle that “[a] sentencer ... must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence[,]” the Supreme Court determined that “there [wa]s no reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of [Johnson’s] youth.” Id., 509 U.S. at -, 113 S.Ct. at 2669, 125 L.Ed.2d at 306. It “believe[d] that there [wa]s ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination.” Id. It concluded that “[t]here was no constitutional infirmity” in the application of the special issues. Id., 509 U.S. at -, 113 S.Ct. at 2672, 125 L.Ed.2d at 310.
II.
ANALYSIS
While the defendant in Johnson was 19 years of age at the time of the commission of his offense, the record indicates that applicant was substantially older at the time of the commission of the instant offense; specifically applicant’s confession indicates that he was age 46 in June of 1983, thus making him approximately 42 in October of 1979 at the time of the offense in the instant cause. Thus it can hardly be said that their ages were comparable or analogous. However, since the Supreme Court remanded this cause “for further consideration in light of Johnson ... [,]” there must be something within Johnson aside from the age of the defendant which merits such “further eonsid-eration[.]”
Johnson compared Penny mitigation evidence, mental retardation which prevented learning from experience and from mistakes, with Johnson’s youth. “That the jury had a meaningful basis to consider the relevant mitigating qualities of [Johnson’s] youth is what distinguishes [Johnson] from Penny.” Id., 509 U.S. at -, 113 S.Ct. at 2669, 125 L.Ed.2d at 307. It concluded that youth falls outside Penny’s ambit, because the ill effects of youth are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue. Id., 509 U.S. at -, 113 S.Ct. at 2670, 125 L.Ed.2d at 307. “If any jurors believed that the transient qualities of [Johnson’s] youth made him less culpable for the murder, there is no reasonable likelihood that those jurors would have deemed themselves foreclosed from considering that in evaluating [his] future dangerousness.” Id.
Also, the Supreme Court stated that in Johnson the trial court submitted a jury charge instruction at punishment concerning the consideration of mitigating evidence, i.e. instructing the jury that it could take into consideration all of the evidence, whether aggravating or mitigating in nature, in answering the special issues. Id., 509 U.S. at -, -, 113 S.Ct. at 2662, 2669, 125 L.Ed.2d at 297, 306. It also notes that the phrase “continuing threat to society” used in the second special issue “affords the jury room for independent judgment in reaching its decision.” Id., 509 U.S. at -, 113 S.Ct. at 2670, 125 L.Ed.2d at 308. It concludes that consideration of the second special issue “is a comprehensive inquiry that is more than a question of historical fact.” Id., 509 U.S. at -, 113 S.Ct. at 2671, 125 L.Ed.2d at 308.
The Supreme Court also pointed out that its capital punishment jurisprudence has not been construed to mean that a jury must be able to dispense mercy on the basis of a sympathetic response to the defendant. Id., 509 U.S. at -, 113 S.Ct. at 2671, 125 L.Ed.2d at 308. It rejected the proposition that a jury be able to give effect to mitigating evidence in every conceivable manner in which evidence might be relevant. Id., 509 U.S. at -, 113 S.Ct. at 2671, 125 L.Ed.2d at 309. It is appropriate for the State to structure the consideration of mitigating evidence via the special issues. Id., 509 U.S. at -, 113 S.Ct. at 2671-2672, 125 L.Ed.2d at 309-310.
The evidence in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) which was outside the scope of the special issues was mitigating evidence of mental retardation and childhood abuse. Such evidence was a two-edged sword, i.e. “it may diminish [Pernys] blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.” Id., 492 U.S. at 324, 109 S.Ct. at 2949, 106 L.Ed.2d at 281. The special issues regarding acting deliberately and unreasonably in response to provocation were also insufficient to allow the jurors to express a reasoned moral response to Penny’s mitigating evidence. 492 U.S. at 322-324, 109 S.Ct. at 2948-2950, 106 L.Ed.2d at 280-282. Also noting the prosecutor’s jury argument at punishment, which urged the jury to answer the special issues strictly in accordance with the evidence and without acting on emotions, and the absence of appropriate jury instructions, it concluded that “a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” Id., 492 U.S. at 326, 109 S.Ct. at 2951, 106 L.Ed.2d at 283. “[I]n the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty, ... the jury was not provided with a vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision.” Id., 492 U.S. at 328, 109 S.Ct. at 2952, 106 L.Ed.2d at 284.
Nevertheless, the Supreme Court recently stated that Penry was not read “as effecting a sea change” with respect to the constitutionality of the Texas death penalty statute nor does Penry broadly suggest the invalidity of the special issues framework. Graham v. Collins, — U.S. -, -, 113 S.Ct. 892, 901, 122 L.Ed.2d 260, 274 (1993). This view was duly noted in Johnson, supra, 509 U.S. at -, 113 S.Ct. at 2668, 125 L.Ed.2d at 304-305. This Court has recently stated that “whether or not the protections of Penry are required at all depends on whether evidence was presented to the jury which was shown to have a tendency to reduce the moral culpability of the capital defendant in a way not exclusively related to the special issues.” Satterwhite v. State, 858 S.W.2d 412, 426 (Tex.Cr.App.1993), cert. denied, — U.S. -, 114 S.Ct. 455, 126 L.Ed.2d 387 (1993).
III.
APPLICANT’S EVIDENCE
In his brief after remand, applicant asserts that “the jury could not give mitigating effect to [his] two-edged evidence that he suffers from chronic schizophrenia in its answers to the ... special issues” and that such “special issues did not allow the jury to give this evidence mitigating effect[.]” He insists that his condition “is the classic example of evidence which both militates for and against the death penalty without guiding jury instructions.” He acknowledges that he “can, when the medication is properly monitored and given in proper dosage, be sedated to the point that he can function in society[,]” but argues that “[t]he jury could well have found that the mental condition was such to warrant mercy and yet found that because of the ‘relapse’ which caused him to have the medication altered and changed, that there was still a probability that he would commit acts of violence in the future.” He insists that any “fair reading” of Penry, Graham, and Johnson “distills to an irreducible minimum: evidence of a chronic mental impairment is two-edged and cannot be given mitigating effect under the restrictive scope of the former special issues.” He maintains that while “[t]he evidence of [his] mental illness and defect of mind is overwhelming^ ...] the ability to use that mitigating factor to lessen his sentence in light of the special issues submitted is non-existent.”
The State argues that applicant’s evidence was such that he suffered from a treatable mental illness rather than the permanent mental retardation of Penry. It points out that applicant’s psychosis could be controlled if treated with antipsychotic drugs, which he had received while jailed. It insists that “[t]he difference between the permanence of mental retardation and the transience of youth was the linchpin of the Supreme Court’s decision in Johnson [supra].” It concludes that “[t]h[e] mitigating evidence of mental illness could have been given effect within the terms of the second issue ... [and that] [i]f the jury believed, or had a reasonable doubt as to, the mitigating evidence that [applicant] suffered from a psychosis that was controllable by institutionalization and medication, they could have given effect to the evidence by answering the issue ‘no.’ ”
Applicant’s brief after remand also asserts that “the sickening circumstances of [his] youth[,]” specifically that “[h]is mother was a drunken prostitute who regularly plied her trade, with multiple partners, in front of [him] and [who] routinely beat [him][,]” left applicant “with de[e]p-seated hostilities and resentments toward women, and provided the fertile soil in which his schizophrenia developed and grew.” However, he does not make an independent claim regarding his distressed childhood, but rather includes such as a part of his mental disease/defect claim. He cites expert testimony that his mental illness “probably developed from the traumatic circumstances of his early developmental history.” He adds that he developed the personality disorder “in a home marked by physical and emotional abuse and sexually inappropriate behavior[,]” thus the personality disorder “is superimposed over a psyche irreparably scarred by his mother’s behavior[J” Thus it should be considered within that mental disease/defect claim.
As we noted in Ex parte Lucas, 834 S.W.2d at 341, applicant at guilt/innocence presented to the jury expert testimony that he suffered from chronic schizophrenia and schizotypal personality disorder, a longstanding serious mental disease or defect, an antisocial personality plus schizophrenia, and that such was the most severe mental disease/defect that one could have. In a bit more detail, I observe that the record reflects the following testimony:
PSYCHOLOGIST proffered by applicant: Applicant has very strong feelings of inadequacy and inferiority, with very pervasive feelings of sadness, rejection, guilt, and a sense of inner turmoil. He also has tendencies suggesting some evasiveness and suspiciousness. He tends to misperceive aspects of reality, i.e. has difficulty comprehending completely either complex or lengthy verbal instructions or directions that are spoken to him that have complexity or length to it. There are gaps in his perception and ways of dealing with and viewing the world, with a distortion of reality taking place. He was aware that applicant had been taking Thorazine for several months, which was a drug effective in treating the schizophrenic individual in helping organize thinking and perceiving reality accurately. He stated that schizophrenia was a disease/disorder “that waxes and wanes” and that it was entirely possible that someone who suffers therefrom “would be able to lead a relatively normal existence.” While such individuals would typically have difficulty in social situations, during some of the less severe phases they would not exhibit speeeh-hallucinations-delusions or any of the other classical symptoms associated with an acute exacerbation. He stated that applicant “ought to be institutionalized and provided with the proper land of care.” He also opined that schizophrenia does not go away. He added that applicant’s childhood of extreme emotional and economic deprivation and growing up in a household where there was no nurturance was important. He also opined that applicant would likely exhibit a passive aggressive response to an authority figure. He indicated that applicant had a longstanding serious mental disease or defect. He also said that “[attaching a diagnosis like schizophrenia to an individual is the most severe kind of diagnosis you can attach and should be reserved only for those individuals who do clearly fit into that diagnostic category.” Applicant’s history of auditory and visual hallucinations was also important. He testified that while the disorder remains present chronically, it goes through waxing and waning periods where it becomes acute and settles down a bit, and that during the settled down periods such individuals can function and carry on basically normal daily tasks. Applicant’s condition appeared to be relatively well controlled as a result of the antipsychotic medications, thus he opined that applicant was at that point mildly schizophrenic. He stated, “Once an individual suffers from schizophrenia, there is virtually no chance that that individual will return to normal functioning.” PSYCHIATRIST proffered by applicant: Applicant was chronic, meaning anything lasting over two years, schizophrenic. He also had schizotypal personality and elements of antisocial or sociopathic personalities. He indicated that schizophrenia was the most severe psychiatric illness that there is. A patient suffering from schizophrenia “cannot tell what’s real from what’s not real, and so they have a whole headful [sic] of very private thoughts and feelings that may not correlate at all with what is in reality.” He noted that applicant had so many symptoms that people with plain old personality disorders do not have, such as hallucinations, delusions, and the belief that he has the capacity for telepathy. He stated that schizophrenics absorb, almost like a sponge, large amounts of antipsychotic medication “because their brain needs that because there are chemical defects in schizophrenics, a genetic chemical illness.” He also noted applicant’s family history being positive for what sounded like schizophrenia. He said that neurotransmitters, little molecules in the brain that help transmit feelings, thoughts, and behaviors, are present way in excess in schizophrenics. He also stated that schizophrenics’ CAT scans of the brain have all kinds of irregularities, and that spinal fluid studies demonstrate abnormal findings. However, he had not conducted such tests on applicant.
He opined that a schizophrenic is born with a gene with chromosomes that unfold and display schizophrenic symptoms; thus being “a victim of that just like you are a victim of the color of eyes that you have or the color of skin or texture of your hair.” He stated that some schizophrenics are so impaired that they are catatonic, i.e. they stay motionless, while others are ambulatory, i.e. able to function and work, though not perfectly normally. He also talked about how Thorazine worked in blocking the excess level of molecules. He added that schizophrenia is “the most severe mental disease/defect that you can have.” He indicated that applicant’s childhood background was important. He also noted applicant’s having been diagnosed as autistic. He also talked about the four A’s of schizophrenia: ambivalence, autistic thought, strange associations, and inappropriate affect. He was of the opinion that applicant “float[ed] in and out of a psychotic state.” He stated, “From my own interviews [applicant] has virtually every symptom of schizophrenia.” He also described questions and answers which indicated that applicant was not malingering. He also noted that it is debatable about whether if a person is truly schizophrenic they would be so all of their life, and mentioned a book, I Never Promised You A Rose Garden, about a woman whose schizophrenia apparently somehow magically went away; though he himself had never seen a chronic schizophrenic that just had a sudden cure.
He added that applicant also had antisocial/sociopathic personalities. He also stated that applicant was born with a gene that causes him to have episodes of psychosis, and noted that “[applicant] was not asked to be born with that gene.” He compared that to diabetics and patients with leukemia who do not ask to be born with such genes. He opined that the sociopathic antisocial part of applicant’s personality was “just a small drop in the bucket compared with th[e] schizophrenic, th[e] psychosis that takes over and determines to him how to behave.” He added, “In other words, [applicant] is the slave to his schizophrenia.” He also suggested that applicant “be put in, like, a hospital for the criminally insane, locked up forever, treated with strong medication like Thorazine, lots of doctoring.” He opined that applicant was never going to be in any kind of position to be released, i.e. he “need[ed] to be locked up in a psychiatric hospital with maximum security forever.”
It is undisputed that applicant presented a great deal of evidence that he suffered from schizophrenia and the effects thereof. The State’s brief after remand suggests that “[his] evidence of treatable mental illness was rejected as mitigation at the punishment stage ... not because it was outside the scope of the issues, but because it was not believed.” Whether it was believed or not, this Court must determine whether such evidence was or was not able to be sufficiently considered and acted upon within the scope of the special issues.
IV.
APPLICATION TO APPLICANT
As noted above there was a great deal of evidence about schizophrenia. This included testimony indicating that it was effectively permanent, yet somewhat controllable via medication. Applicant’s evidence did indicate that schizophrenia would not go away and was not such that it would be grown out of as is the case with youth (although it is certainly arguable that some people do not necessarily grow out of the qualities of youth, i.e. remain “young at heart” and engage in youthful behavior throughout life). However, the testimony indicated that the ill effects of schizophrenia are subject to some change via medication and institutionalization with proper care. Yet I agree with applicant that there is a distinction between a transient condition of youth and the potentially treatable chronic schizophrenia.
I observe that applicant’s evidence does not indicate that his mental disease/defect prevented him from learning from mistakes or experience. In fact, as we noted in Ex parte Lucas, 834 S.W.2d at 341, there was testimony that his intellectual functioning was in the low-average or low-normal range with an IQ score of 84. Thus in that manner it differs from Penry.
The punishment jury charge included the special issues that were provided for by Article 37.071(b)(l)(2), V.A.C.C.P., regarding whether applicant’s conduct was committed deliberately and with reasonable expectation that the death of the deceased would result, and whether there was a probability that applicant would commit criminal acts of violence that would constitute a continuing threat to society. It also included the following instruction:
You are further instructed that in determining each of these issues you may take into consideration all of the evidence submitted to you in the full trial of this case, that is, all of the evidence submitted to you in the first part of this case wherein you were called upon to determine the guilt or innocence of the defendant, and all of the evidence admitted before you in the second part of the trial wherein you were called upon to determine the answers to the issues hereby submitted to you.
This instruction is somewhat similar to the one quoted in Johnson, supra, 509 U.S. at -, 113 S.Ct. at 2662, 125 L.Ed.2d at 297. However, the instruction in the instant cause did not include the denoting phrase “whether aggravating or mitigating in nature” as did Johnson’s. It is also very similar to the instruction which was submitted in Richard v. State, 842 S.W.2d 279 (Tex.Cr.App.1992), which we held to have been inadequate to provide a sufficient vehicle for the jury to express its reasoned moral response to Penny evidence. Nevertheless, applicant’s jury was instructed that it could consider the evidence which had been introduced at guilt/innocence, which included the above-discussed evidence of mental disease/defect.
My review of the punishment jury arguments reveals that the State’s opening pointed out some of applicant’s proffered expert testimony that had indicated that he was dangerous and needed to be locked away for the rest of his life. However, it focused its argument regarding future dangerousness upon evidence that he had committed several extraneous killings, including that of his mother, a 15-year old girl, an 84-year old woman, and two other women. Applicant’s argument did not mention the experts’ testimony other than saying, “I can’t disagree with these psychiatrists and tell you he’s not dangerous, but you didn’t hear any psychiatrist say he deserves to die.” His argument focused upon carefulness in the jury’s deliberations, the impropriety of the death penalty in general and in a religious context, and the questionableness of his having actually committed the extraneous killings. However, he stated that he agreed with one of the experts in that applicant needed to be placed somewhere for the rest of his life under treatment as he was sick.
In its closing argument, the State did remind the jurors that they had indicated during voir dire jury selection that they would answer the special issues fairly and honestly depending upon the evidence. However it primarily challenged applicant’s attacks on the evidence of his committing the instant offense and the extraneous killings. It also mentioned that it was not talking about rehabilitating applicant, as nobody had ever been able to do that, and that there was no deterrent effect upon sociopaths and psychopaths like him.
There are differences and similarities to both Penny and Johnson. In Satterwhite v. State, 858 S.W.2d at 425-426, we expressed our view that the essence of the Supreme Court’s holding in Penny was that only in particular circumstances when evidence is proffered which is relevant as mitigating evidence but its mitigating significance is either quite apart from, or goes beyond, the special issues is a death sentence invalid if the trial court failed to provide the jury some mechanism to account for such mitigating evidence and in its reasoned moral response be able to assess a less severe punishment. As stated previously, “[Wjhether or not the protections of Penny are required at all depends on whether evidence was presented to the jury which was shown to have a tendency to reduce the moral culpability of the capital defendant in a way not exclusively related to the special issues.” Id. at 426.
Of critical importance is the language in Penny stating that if the sentencer is to make an individualized assessment of the propriety of the death penalty, evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to emotional and mental problems may be less culpable than defendants who have no such excuse. Penry v. Lynaugh, 492 U.S. at 319, 109 S.Ct. at 2947, 106 L.Ed.2d at 278. As discussed above, applicant presented evidence of mental disease/defect, i.e. emotional and mental problems.
This Court has interpreted Penny to require a showing of some “nexus” between the mitigating evidence and the offense on trial, i.e. the evidence must tend to excuse or explain the criminal act so as to make that defendant not deserving of death. See, e.g., Richardson v. State, 879 S.W.2d 874, - (Tex.Cr.App.1993); Satterwhite v. State, 858 S.W.2d at 427; Gunter v. State, 858 S.W.2d 430, 446 (Tex.Cr.App.1993), cert. denied, — U.S. -, 114 S.Ct. 318, 126 L.Ed.2d 265 (1993); and see Mines v. State, 852 S.W.2d 941, 952 (Tex.Cr.App.1992) (Baird, J., dissenting), remanded, — U.S. -, 114 S.Ct. 42, 126 L.Ed.2d 13 (1993).
Applicant argues that there was such a nexus, apparently that there was a connection between his mitigating evidence, which created his deep-seeded hostility and resentment toward females and was triggered by an acute hypersensitivity to criticism and physical assault, and the capital murder of a woman. The psychiatrist indicated that the mental disease/defect may have been operating in applicant on or about October 31, 1979, but that “only God and [applicant] really know for sure, but he floats in and out of [a] psychotic state like every schizophrenic does.” He then indicated that if applicant had been in a psychotic state at that time he would not have known the difference between right and wrong, i.e. “[a] person who’s in a psychotic state is nothing but a bag of impulses, a caldron [sic] of seething, primitive impulses.” He added that “[t]he definition of psychosis is that you’re totally out of eontrol[,]” and that “[s]trange things happen when patients are psychotic, and one of the characteristics are [sic], is you are out of control[;] [a]ll the things you know about right and wrong or good and bad, these are irrelevant.” The psychiatrist also testified that if applicant “did th[e] offense, that whenever he did those things like that in those things that happened, that there is no question in my mind that he is psychotic and insane.” He stated, “Oh, I’m testifying that if [applicant] has done something like that[,] that he was psychotic at the time of any behavior like that.” He also added, “I’m perfectly willing to testify that [applicant] was psychotic and insane at the time of the offense. No question about it.”
As discussed above, applicant presented evidence of mental disease/defeet. He also presented evidence that he was acting under the influence of such when committing the instant offense. Like Penny’s evidence of mental retardation and history of abuse, applicant’s mental disease/defect evidence may have diminished his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future. As the Supreme Court indicated in Penry, that pursuant to the belief, long held by this society, that defendants who commit criminal acts that are attributable to emotional and mental problems may be less culpable than defendants who have no such excuse, applicant may have been less culpable based upon his emotional and mental problems that may have attributed to the instant offense. As in Penry, such evidence was a two-edged sword in that it might diminish applicant’s blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future. Accordingly, I conclude that the facts of the instant offense are analogous to those in Penry.
As in Penry, the special issues alone, without additional instructions permitting the application of such mitigating evidence which was outside the scope of the special issues, did not provide the jury with a vehicle for expressing its reasoned moral response to applicant’s mental disease/defect evidence in rendering its sentencing decision. Rios v. State, 846 S.W.2d 310 (Tex.Cr.App.1992), cert. denied, — U.S. -, 113 S.Ct. 1946, 123 L.Ed.2d 661 (1993); Richard v. State, 842 S.W.2d 279 (Tex.Cr.App.1992). As in Penry, that evidence was beyond the scope of the special issues.
Because the jury was not allowed to consider and give effect to that evidence, I am compelled by Penry and now Johnson to conclude that applicant’s conviction should be set aside. Ex parte McGee, 817 S.W.2d 77 (Tex.Cr.App.1991); Ex parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991). Therefore, applicant’s application for writ of habeas corpus should be granted. Because the majority does not do so, I respectfully dissent.
BAIRD, J., joins dissent.
At the time of Johnson’s trial, Article 37.071(b) of the Texas Code of Criminal Procedure provided for a jury to consider the following special issues in determining whether to assess the death penally in a capital case: (1)whether 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) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
Another confession, which was identified but not introduced into evidence, indicated that applicant was bom on “08-23-36.” There was also testimony that applicant was a 46-year old at the time he was examined in June of 1983.
I note that we have repeatedly rejected claims that evidence of a turbulent childhood and traumatic upbringing were comparable to Penry evidence and outside the scope of the special issues. See, e.g., Gunter v. State, 858 S.W.2d 430, 445-447 (Tex.Cr.App.1993), cert. denied, - U.S. -, 114 S.Ct. 318, 126 L.Ed.2d 265 (1993); Kemp v. State, 846 S.W.2d 289, 309-310 (Tex.Cr.App.1992), cert. denied, - U.S. -, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993); Jacobs v. State, 843 S.W.2d 517, 520 (Tex.Cr.App.1992), cert. denied, - U.S. -, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993); Nobles v. State, 843 S.W.2d 503, 505-506 (Tex.Cr.App.1992); Goss v. State, 826 S.W.2d 162, 166-167 (Tex.Cr.App.1992), cert. denied, — U.S. -, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993); Lewis v. State, 815 S.W.2d 560, 567 (Tex.Cr.App.1991), cert. denied, - U.S. -, 112 S.Ct. 1296, 117 L.Ed.2d 519 (1992).
The instruction, quoted supra, op. at 322, which informed the jury that in answering the special issues it could take into consideration all of the evidence submitted at guilt/innocence and punishment, did not empower the jury to assess a sentence of less than death in response to the mitigating evidence beyond the scope of the special issues. It simply informed the jury that it could consider all of the evidence, but provided no guidance or vehicle to apply a reasoned moral response” to evidence beyond the scope of the special issues. As we pointed out in Richard v. State, 842 S.W.2d 279, 280 n. 1 (Tex.Cr.App.1992), such an instruction telling the jury that it may utilize evidence for whatever mitigating value it may have relevant to the special issues is not a Penry instruction.
Henry Lee LUCAS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
No. 96-10389.
United States Court of Appeals, Fifth Circuit.
Dec. 5, 1996.
Danny D. Burns, Fort Worth, TX, Richard Alley, Fort Worth, TX, for petitioner-appellant.
Gena A. Blount, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for respondent-appellee.,
Before KING, JOLLY and DeMOSS, Circuit Judges.
[OPINION BY BY THE COURT: type=majority]
BY THE COURT:
Before us today is the appellee’s motion to stay briefing in this matter pending issuance of a certificate of appealability (“COA”). We grant the motion and stay the briefing schedule until an issue-specific COA is issued by this court.
The federal district court denied Henry Lee Lucas (“Lucas”) habeas corpus relief from a state court judgment and sentence. The court entered its judgment denying habeas relief, lifting the previously issued stay of execution and refusing to issue a certificate of probable cause to appeal in February 1996. Lucas timely -filed a notice of appeal. Lucas has filed an application for certificate of probable cause to authorize an appeal (“CPC”) in this court. This application has not yet been ruled upon by the court. Lucas has now filed his brief raising fourteen points of error, which provides us the basis to determine whether a COA should issue and, if so, on what issues.
The appellee moves this court to stay briefing until the court rules on Lucas’ CPC. This motion is premised upon the amendments to the federal habeas corpus statutes, which became effective with the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) on April 24, 1996, and which have been deemed to apply to habeas matters pending on that date. See. Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996). The amended version of the statute applies to this appeal. Among the amended provisions is 28 U.S.C. § 2258(c), which now reads:
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeal from—
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
Although Lucas’ motion is styled as a CPC, we have held that an application for CPC should be treated, under the new provisions, as an application for a COA. Drinkard, 97 F.3d at 757-58.
Under section 2253(c)(3), as amended, an appeal may not proceed until a COA issues. The COA must specify which points of appeal satisfy the new federal habeas relief standard set forth in section 2253(c)(2). We have not yet ruled on Lucas’ application. Thus, the State should not be required to respond until such certification issues. The effect of requiring the State to- respond at this point would be to nullify this newly amended section by transforming an application for a COA into an appeal on the merits. This result is inconsistent with the rule that statutes should be interpreted so as to give meaning to all terms. See Bailey v. United States, - U.S. -, -, 116 S.Ct. 501, 506-07, 133 L.Ed.2d 472 (1995). Therefore, we conclude that we must issue a COA specifying the issues meriting review before requiring the State to respond to the petitioner’s brief on the merits.
It is therefore ordered that the appellee’s motion to stay the briefing schedule in this appeal until a COA is issued is GRANTED until further order from this court.
Henry Lee LUCAS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
No. 96-10389.
United States Court of Appeals, Fifth Circuit.
Jan. 9, 1998.
Danny D. Burns, Richard Alley, Fort Worth, TX, for Petitioner-Appellant.
Gena A. Blount, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.
Before KING, JOLLY and DeMOSS, Circuit.Judges.
[OPINION BY E. GRADY JOLLY, Circuit Judge: type=majority]
E. GRADY JOLLY, Circuit Judge:
Henry Lee Lucas was sentenced to death after being convicted of capital murder in Texas state court. Following affirmance of the conviction and sentence on direct appeal, Lucas filed three applications for. habeas corpus relief in state court. After the denial of the final state application, Lucas filed his first application for habeas corpus relief in federal district .court, setting out seventeen alleged errors that he contended warranted relief. The district court denied the application and denied Lucas’s request for a cértifí-cate of probable cause. Lucas then filed an application for a certificate of probable cause with this court, advancing all seventeen points of error. It is this application that is before us today.
I
Lucas filed his application for a certificate of probable cause in May 1996. One month prior to his filing, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). In the light of the application of the Supreme Court’s recent ruling in Lindh v. Murphy, — U.S. -,-, 117 S.Ct. 2059, 2063-68, 138 L.Ed.2d 481 (1997), and this court’s previous determination that Texas does not meet the requirements to “opt in” under the AED-PA, the amendments to the federal habeas statutes do not govern this appeal. 28 U.S.C. § 2261(b); Carter v. Johnson, 110 F.3d 1098, 1104 (5th Cir.1997) (noting Texas fails to qualify to opt in under AEDPA); Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir.1996), vac’d in part on other grounds, 105 F.3d 209 (5th Cir.1997). Under pre-AEDPA law, a habeas petitioner must obtain a certificate of probable cause (“CPC”) prior to pursuing an appeal. 28 U.S.C. § 2258. Generally, the standard used to determine whether a CPC should issue, or, under the AEDPA, whether a certificate of appealability (“COA”) should issue, is the same. Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997) (noting the standards for issuance of CPC and COA are identical). Specifically, in order to obtain a CPC, a petitioner must make “a substantial showing of the denial of a federal right.” Id.
We therefore analyze Lucas’s application for a "certificate of probable cause under the pre-AEDPA relevant statutory authority and case law and examine his allegations to determine whether he has made the requisite “substantial showing of the denial of a federal right” with respect to any of the seventeen alleged errors. Under the pre-AEDPA standard, we require the habeas 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.” Drunkard, 97 F.3d at 755 (citing Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)). We hold that Lucas has met his burden in this respect and we grant his request for a CPC.
We turn now to the merits of the arguments advanced by Lucas in his application.
II
Lucas raises the following seventeen issues:
1. His execution would violate the Due Process Clause of the Fourteenth Amendment because he is actually innocent of the crime of capital murder in this case.
2. He has been deprived of due process of law as guaranteed by the Fifth, Sixth, and Eighth Amendments by the actions of the State in seeking his execution when the State has announced, via the Lucas Report, and public statements by the Attorney General, that the evidence acquired and reviewed by the State’s chief legal officer substantiates the fact that he is innocent of the charge.
3. His conviction violates the Due. Process Clause of the Fourteenth Amendment because the State failed to prove the corpus delicti of capital murder (murder in the course of committing or attempting to commit aggravated sexual assault).
4. His execution in a case in which the victim was never identified would be fundamentally unfair and would be cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
5. His counsel on direct appeal failed to provide effective assistance, because she failed to challenge the State’s failure to identify the victim.
6. His attorneys failed to raise several meritorious points, depriving him of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments.
7. The prosecutor improperly commented on his silence at trial and thereby violated his rights under the Fifth and Fourteenth Amendments.
8. The introduction of prior convictions to impeach his chief witness violated the Due Process Clause of the Fourteenth Amendment and rendered his trial fundamentally unfair.
9. The admission of his videotaped statement made in February 1984 undermined the fundamental fairness of his trial, because the statement was taken in violation of his rights to due process and assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments.
10. He was denied the presumption of innocence guaranteed by the Fourteenth Amendment by the admission of his August 1983 videotaped confession, because he is handcuffed in the video.
11. The admission of his June 1983 written statement was erroneous because it was obtained in violation of his right to counsel guaranteed by the Fifth and Sixth Amendments.
12. The admission of his July 28, 1983 confession was erroneous because it was obtained in violation of his right to counsel guaranteed by the Fifth and Sixth Amendments.
13. The admission of his July 31, 1983 audiotaped confession was erroneous because it was obtained in violation of his right to counsel guaranteed by the Fifth and Sixth Amendments.
14. His trial was rendered fundamentally unfair by the admission of evidence of extraneous offenses contained in his July 31, 1983 audiotaped confession.
15; His due process rights under the Fourteenth Amendment were violated by the State’s withholding of material exculpatory evidence concerning another suspect in this case.-
16. His right to a fair trial was violated by the trial-court’s failure to provide instructions at the penalty stage that would have allowed the jury to consider the mitigating aspects of evidence of mental illness and an abusive childhood.
17. His original arrest was illegal for lack of probable cause and his subsequent confessions in this matter are tainted by that unlawful arrest in violation of the Fourth Amendment.
We will now address each of Lucas’s contentions to determine whether the district court erred when it refused to award Lucas habeas relief.
Ill
A
Lucas contends that evidence, newly discovered and accumulated after his conviction, conclusively establishes that he is innocent of the crime for which he was sentenced to death. At the outset, we should observe that much of the evidence alleged by Lucas to be newly discovered is neither new nor newly discovered, but in its essence and character, was presented, or available to present, to the trial jury. See United States v. Freeman, 77 F.3d 812, 816-17 (5th Cir.1996) (setting forth the “Berry” rule for other relief based on newly discovered evidence) (citing Berry v. Georgia, 10 Ga. 511 (1851)). Lucas’s trial jury had ample opportunity to consider whether such evidence was convincing of actual innocence and obviously determined that it was not. In any event, it has long been a habeas rule that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Herrera v. Collins, 954 F.2d 1029, 1034 (5th Cir.1992)(quoting Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963)), aff'd, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Contrary to what Lucas argues, the Supreme Court’s Herrera opinion does not alter this entrenched habeas principle.
Claims of actual innocence based on newly discovered evidence have neve£ been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.... This rule is grounded in the. principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation .of the Constitution— not to correct errors of fact.
Herrera, 506 U.S. at 400, 113 S.Ct. at 860. Throughout the opinion, the Court returns to its original premise that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 404, 113 S.Ct. at 862. Justice Rehnquist further clarifies that the Court has “never held that [the fundamental miscarriage of justice exception] extends to freestanding claims of actual innocence.” Id. at 405, 113 S.Ct. at 863.
The language Lucas seizes upon appears at the end of the opinion where the Court writes:
We may assume, for the sake of argument in deciding this case, that in a capital ease a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.
Id. at 417, 113 S.Ct. at 869. The Court never held, however, that actual innocence would entitle a petitioner to habeas relief. It simply assumed such a premise arguendo. Id. at 426, 113 S. Ct. at 874 (“Accordingly, the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence'. That difficult question remains open.”).
Still a further bar to construing Herrera as effecting such a substantial expansion of federal habeas law is the language ignored by the petitioner that federal habeas relief would be warranted only “if there were no state avenue open to process such a claim.” This conditional statement was made in the context of the Court’s discussion of clemency and the availability of such procedures in Texas specifically, with the Court noting that “all 36 States that authorize capital punishment have constitutional or statutory provisions for clemency.” Id. 410-18, 113 S.Ct. at 866-69 (executive clemency is proper remedy to be sought by convicted person claiming actual innocence). Thus, the relief requested of us in this Texas case, even if somehow cognizable, nevertheless is thwarted by the restrictive language of the Herrera Court.
In subsequent opinions, our court has discussed Herrera, although not in any great detail. In Pemberton v. Collins, we noted the “properly limited role” that a federal habeas court fills when the constitutionality of a state court conviction is brought before it. 991 F.2d 1218, 1223 (5th Cir.1993). “A federal habeas court asks only whether a constitutional violation infected the trial.” Id. (emphasis added) (citing Herrera).
This court reemphasized this limited role in Bryant v. Scott, 28 F.3d 1411, 1420 n. 14 (5th Cir.1994). The petitioner argued that the district court erred in refusing to grant relief on the basis of his actual innocence claim. Bryant, 28 F.3d at 1420 n. 14. In discussing his claim, the Bryant Court basically noted that the Supreme Court had affirmed our opinion in Herrera holding that claims of actual innocence based on newly discovered evidence are not cognizable under federal habeas corpus, id. (quoting Herrera, 954 F.2d at 1034; Herrera, 506 U.S. at 400, 113 S.Ct. at 860), and summarily held Bryant’s actual innocence claim to be without merit.
We more fully discussed the Herrera issue in Jacobs v. Scott, 31 F.3d 1319, 1324-25 (5th Cir.1994). A brief quote, however, will suffice to sum up the panel’s holding:
The [Herrera] Court did not reach the issue of whether a defendant on death row can be executed if he can show that he is “actually innocent.” Thus, Herrera does not affect the precedential value of Boyd. We need not engage in the Court’s hypothetical analysis of whether the defendant has made a “truly persuasive demonstration of ‘actual innocence.’ ”
Jacobs, 31 F.3d at 1324: Herrera does not overrule previous holdings (nor draw them into doubt) that a claim of actual innocence based on newly discovered evidence fails to state a claim in federal habeas corpus. Lucas’s request for federal habeas relief on this basis is denied. Lucas’s road to relief on his actual innocence claim lies, if anywhere, in Texas state procedures.
B
On the other hand, in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the Supreme Court recognized the distinction between habeas petitioners who assert that their actual innocence in itself presents a violation of their constitutional rights — as in Herrera — and habeas petitioners who assert that their actual innocence acts as a catalyst to bring them within that “narrow class of cases” in which the refusal of the court to hear their underlying constitutional claims will result in “a fundamental miscarriage of justice.” 513 U.S. at 314-15, 115 S.Ct. at 860-61. Actual innocence in this second type of petition is. not itself a basis for federal habeas relief; it is, however, “a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 315, 115 S.Ct. at 861. We will address later in the opinion this “actual innocence” argument in the context of the constitutional deprivations that Lucas alleges occurred during trial in order to determine whether those claims are procedurally barred.
IV
Lucas next argues that it is inherently unconstitutional for a state to execute someone when the state has admitted that person’s innocence, and that this unconstitutionality exists separate from the value of the state’s admission as newly discovered evidence of his innocence. There is no authority in Fifth Circuit case law for such a claim and it is thus barred as an improper request for recognition of a new constitutional rule on collateral review. Teague v. Lane, 489 U.S. 288, 300-11, 109 S.Ct. 1060, 1070-75, 103 L.Ed.2d 334 (1989) (“[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.”).
V
A
Lucas failed to raise the issues numbered 3 through 7 (noted earlier) above until his third state application for habeas corpus. The state court dismissed Lucas’s third habeas petition as an abuse of the writ under state law and refused to review the merits. Dismissal of a Texas habeas petition on abuse grounds creates a procedural bar to consideration of the dismissed issue by federal courts. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.1995). A petitioner may avoid this bar by demonstrating “cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Lucas has not made either showing. However, this bar may also be overcome by a showing that the “failure to consider the claims will result in a fundamental miscarriage of justice.” Id. Such a fundamental miscarriage of justice may be demonstrated by a showing that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 321, 115 S.Ct. at 864 (citing Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986)). To satisfy this standard, a petitioner must show that he is “actually innocent.” Id. To demonstrate actual innocence, it is necessary that the petitioner “show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt ... in light of all of the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.” Id.
Thus, consideration of these claims is barred unless Lucas has made the requisite showing of actual innocence. The state court conviction was based, primarily, upon Lucas’s confessions of guilt. Lucas now contends, however, that evidence obtained after his conviction — largely contained in the compilation of information prepared by the Texas Attorney General’s office (including the audit of work records that purportedly establish his presence in Florida on the date of the murder in Texas, the results of a polygraph examination, and the corroboration of his story regarding his observation of an automobile fire in Florida on the day of the murder) — supports his claim of actual innocence. This evidence is indeed probative of Lucas’s claims of innocence. As we have indicated in footnote three, supra, however, we cannot say that Lucas has succeeded in demonstrating actual innocence. Nevertheless, we will assume for the purposes of this portion of the opinion that Lucas has made a sufficient showing of actual innocence to allow further inquiry into his constitutional claims.
B
Lucas contends that he was denied due process because the State did not present any evidence to corroborate his confession that the murder occurred in the course of committing or attempting to commit aggravated sexual assault — an element necessary to his conviction for capital murder. In the alternative, he argues that he is entitled to relief because the State failed positively to identify the victim of the murder. These arguments, based upon Texas law, fail to raise issues of constitutional dimension. Texas’ corpus delicti requirement is not constitutionally mandated. See West v. Johnson, 92 F.3d 1385, 1393-94 (5th Cir.1996); Autry v. Estelle, 706 F.2d 1394, 1407 (5th Cir.1983) (stating that “[s]uch a state rule of ‘corpus delicti’ has no independent constitutional footing”).
Moreover, to the extent that Lucas attempts to challenge his conviction based upon the sufficiency of the evidence establishing capital murder, our review is limited to determining whether based “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979). In the light of all the evidence presented at trial, including Lucas’s confession, we find that a rational juror could have found that Lucas committed the murder during the course of committing or attempting to commit aggravated sexual assault. We further conclude that no due process deprivation resulted from the failure of the State positively to identify the victim of the murder. The district court did not err by denying Lucas’s request for habeas relief on these points.
C
Lucas contends that he was denied effective assistance of counsel. He points out that on appeal his attorney raised neither the failure of the State to produce independent evidence corroborating that the murder occurred during the course of a sexual assault nor the failure of the State to identify the murder victim. To warrant habeas relief, Lucas must make a substantial showing that his attorney’s conduct was deficient and that he suffered prejudice as the result of the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Lucas has failed to make such a showing.
With respect to the claim of his counsel’s failing to object to the State’s failure to identify the victim, we must first note that the prejudice prong of the Strickland test is measured at the time the ineffective assistance claim is raised. Lockhart v. Fretwell, 506 U.S. 364, 369-73, 113 S.Ct. 838, 843-44, 122 L.Ed.2d 180 (1993); Westley v. Johnson, 83 F.3d 714, 723 (5th Cir.1996). Current Texas law (nor the law at the time of the trial for that matter) does not require the State to prove the identity of the victim. See Fisher v. State, 851 S.W.2d 298, 303 (Tex.Cr. App.1993). Therefore, Lucas has not been prejudiced by the failure of his counsel to object on direct appeal.
Lucas’s second claim of ineffective assistance focuses on counsel’s failure to object to the State’s lack of corroborating evidence of an underlying sexual assault. The determination whether the performance of counsel was deficient is based upon the law as it existed at the time of trial. Lockhart, 506 U.S. at 371, 113 S.Ct. at 844 (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Until the decision of Gribble v. State, 808 S.W.2d 65, 71 (Tex.Cr.App.1990), it was not clear under Texas law whether corroborating evidence of the underlying offense was necessary to support a conviction based upon extrajudicial confessions. Lucas’s counsel on direct appeal did not have the benefit of Gribble and, thus, Lucas has failed to demonstrate deficient performance because counsel is not required to anticipate subsequent developments in the law. See Gray v. Lucas, 677 F.2d 1086, 1096 n. 9 (6th Cir.1982). We therefore decline to hold that the district court erred by refusing to grant the requested relief on these grounds.
D
Lucas next asserts that he is entitled to habeas relief because of the improper comments made by the prosecution during closing argument, which he alleges denied his rights under the Fifth Amendment. The subject remark was neither a direct nor 'an indirect comment on Lucas’s failure to testify. See United States v. Borchardt, 809 F.2d 1115, 1119 (5th Cir.1987). Thé overall point of the prosecutor’s statements appears to be an argument that Lucas’s guilt did not hinge on whether Lucas or the victim owned the matches. Furthermore, even if the remark were construed as a comment on his failure to testify, there is no indication that it was an error having a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). The district court did not err when it denied habeas relief on this basis.
E
Lucas also advances the argument that he was denied a fair trial by the improper admission of prior convictions to impeach his chief alibi witness. The Texas Court of Criminal Appeals held that the trial court erroneously allowed the prosecution to impeach M.C. — one of Lucas’s construction job supervisors at the time .of the murder — with stale convictions. Lucas v. State, 791 S.W.2d 35, 52 (Tex.Cr.App.1989). The state court nevertheless concluded that “beyond a reasonable doubt ... the error did not contribute to either appellant’s conviction or his sentence.” Id.
When a habeas petitioner claims the erroneous admission of evidence, our role “is limited to determining whether [the] error [was] so extreme that it constituted denial of fundamental fairness” under the due process clause. Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir.1986). Habeas relief is warranted only when the erroneous admission played a “crucial, critical [and] highly significant” role in the trial. Id. The legitimacy of the particular convictions is a relevant factor in determining whether the improper impeachment ‘“constituted denial of fundamental fairness.’” Smith v. Collins, 964 F.2d 483, 486 (5th Cir.1992) (quoting Evans v. Thigpen, 809 F.2d 239, 242 (5th Cir.1987)).
Here, Lucas was not denied due process as a result of the admission of the convictions to impeach M.C.- The State’s impeachment of M.C. was not the only evidence that it offered to counter Lucas’s alibi defense that he was working in Florida at the time the Texas murder occurred. For example, K.E., Lucas’s coworker, testified that forgery of records by foremen in exchange for kickbacks was a common practice and that workers would often announce absent coworkers as present. Lucas himself related to investigators how the kickback system worked. In sum, the improper impeachment of M.C. simply was not of such a crucial nature to Lucas’s defense as to warrant habeas relief. Furthermore, the case upon which Lucas principally relies, Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), is easily distinguishable in that the convictions offered in that case were constitutionally invalid. There is no indication— and Lucas does not ..allege — that M.C.’s convictions suffered from any constitutional infirmity.
Thus, this alleged error is no basis for habeas relief.
F
Lucas next argues that his trial was fundamentally unfair because of the admission of his videotaped statement of February 16, 1984, in which he discussed the practice of paying supervisors to falsify work records for him. Lucas’s contention is that the statement was taken in violation of his right to counsel and his right to due process.
In November 1983, the trial judge signed an-order that prohibited questioning of Lucas about any matter unless he consented, and then only after his attorneys had been notified. The order further prohibited interrogation concerning “the offense for which he ha[d] been indicted” under all circumstances. Lucas was questioned — after the entry of this order and without an attorney present— about the validity of his work records. On direct appeal, the Texas Court of Criminal Appeals found that the statement was not in violation of the order because the interrogation did not relate to the offense for which Lucas had been indicted and because Lucas’s attorneys had agreed with the State, after the order was signed, to waive the notice requirement unless the proposed interrogation related to the instant offense.
Factual findings by a state court after a hearing on the merits are presumed to be correct and can be overcome only by “convincing evidence.” 28 U.S.C. § 2254(d) (West 1997 & Supp.1990). Although certain exceptions exist to the application of this presumption, Lucas has failed to establish, and it does not otherwise appear, that any of the listed exceptions apply. Id. We therefore assume that the factual issues before the state court were resolved correctly. Questions of law are reviewed de novo and mixed questions of fact and law generally remain subject to independent review. Wright v. West, 505 U.S. 277, 300-03, 112 S.Ct. 2482, 2495-96, 120 L.Ed.2d 225 (1992) (O’Connor, J., concurring) (the Supreme Court consistently reviews mixed questions of law and fact in pre-AEDPA habeas corpus eases de novo); Perillo v. Johnson, 79 F.3d 441, 445 (5th Cir.1996); Kirkpatrick v. Whitley, 992 F.2d 491, 494 (5th Cir.1993). Although the presumption of correctness does not attach to a state court’s determination of a mixed question, the presumption does apply to the historical facts underpinning the state court’s ultimate legal conclusion. Sumner v. Mata, 455 U.S. 591, 595-99, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982); Black v. Collins, 962 F.2d 394, 401 (5th Cir.), cert. denied, 504 U.S. 992, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992).
In determining this mixed question of law and fact, we must agree with the state court that the interrogation did not relate to the offense for which Lucas was indicted and that the state trial court’s order was thus not violated. Even if the order were violated, that fact alone is insufficient to warrant habeas, relief unless the violation also rises to a constitutional level. In this case, the record clearly indicates Lucas’s willingness to continue discussions with the authorities without benefit of counsel. Because Lucas waived his right to the presence of counsel during the relevant interviews under both the Fifth and Sixth Amendments, no constitutional violation occurred either in the taking of his February 16, 1984 statement or in its admission at his trial.
Contrary to Lucas’s assertions, he is not entitled to habeas relief on this ground.
G
Lucas next contends that he is entitled to relief because the admission of his videotaped confession of August 1983, in which he is handcuffed, deprived him of the right to be presumed innocent. Lucas cannot point to an established constitutional principal that dictates this result. Instead, he argues that the reasoning of our cases concerning the rights of accused persons who are restrained during the trial proceedings should be extended to the circumstance of a brief video exposure. In short, Lucas argues for the creation and retroactive application of a new rule of constitutional law. Teague controls this issue and mandates that we reject the argument. The district court properly declined to grant relief on this basis.
H
Lucas’s next three alleged errors (noted earlier as 11, 12 and 13) all relate to statements that he contends were taken in violation of his rights under the Fifth and Sixth Amendments.
These statements were taken pri- or to the institution of adversarial proceedings in the respective cases; therefore, there was no violation of Lucas’s Sixth Amendment rights. The protection provided by the Sixth Amendment is “offense specific” and, thus, does not attach simply because the accused has invoked the right with respect to adversarial proceedings involving another offense. McNeil v. Wisconsin, 501 U.S. 171, 174-76, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). At the time of the statements, Lucas had not been formally charged in either the present case (the subject of the June 22 and July 31 statements) or the Abilene ease (the subject of the July 28 statement). Therefore, notwithstanding the Texas Court of Criminal Appeals’ finding to the contrary, the interrogations leading to the statements do not implicate Sixth Amendment concerns.
On the other hand, the Fifth Amendment right to have counsel present during custodial interrogation; once invoked, applies to all interrogations. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). This right is invoked where a person indicates that he wishes to speak to an attorney or to have an attorney present during the questioning. Davis v. United States, 512 U.S. 452, 458-60, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994) (noting that the request must be made “sufficiently clearly that á reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The Texas Court of Criminal Appeals engaged in a lengthy consideration of this issue and concluded that Lucas never invoked his right to counsel under the 'Fifth Amendment. Lucas, 791 S.W.2d at 45-50. The facts as found by the state court are supported by substantial evidence and we thus presume their correctness. Prior to the taking of the statements in question, Lucas never verbally requested the presence of an attorney nor did he otherwise indicate that he wished to speak with an attorney or have one present during questioning. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Lucas consistently expressed his desire to cooperate with the authorities without the benefit of counsel. “[T]he tapes of the conversations in question undeniably demonstrate appellant’s ongoing desire to talk to the authorities, regardless of the personal cost to himself.” Lucas, 791 S.W.2d at 50. Lucas’s Fifth Amendment right to counsel was not infringed by the taking of these statements because he had not invoked this particular federal right. Habeas rélieí should not issue on these grounds.
I
Lucas also contends that he is entitled to habeas relief because of the admission of evidence of his extraneous offenses through the State’s introduction of portions of his July 31,1983 confession. The Texas Court of Criminal Appeals found that the evidence was properly admitted because Lucas “opened the door” by presenting other portions of the confession that gave the jury a false impression of the confession. Lucas, 791 S.W.2d at 53-54. In view of these circumstances, we agree that the introduction was proper. In the alternative, even if the trial judge committed error, our role “is limited to determining whether [the] error [was] so extreme that it constituted denial of fundamental fairness” under the due process clause. Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir.1986). Habeas relief is warranted only when the erroneous admission of evidence played a “crucial, critical [and] highly significant” role in the trial. Id.
The portion, of the confession to which Lucas objected contained only “implied references” to other offenses. Moreover, the trial judge instructed the jury not to consider any evidence regarding other crimes in determining Lucas’s guilt. We conclude that, even if the evidence were erroneously admitted, Lucas has not made a substantial showing that he was denied the fundamental fairness required by the Constitution and he is not entitled to habeas relief on this ground.
J
Lucas contends that the State violated the mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose exculpatory evidence in the form of information concerning another credible suspect in the murder.
The state court entered findings of fact, after an evidentiary hearing, that establish that there was never another credible suspect in this matter. Lucas presented no convincing evidence that casts doubt on the state court’s factual findings; nor has he demonstrated, and it does not otherwise appear, that any of the listed exceptions to the presumption of the correctness of state court findings, found under 28 U.S.C. § 2254(d), apply. Thus, we presume the correctness of the state court findings and conclude that no Brady violation occurred. See 28 U.S.C. § 2254(d). The application for relief on this basis was properly denied.
K
Lucas next maintains that he is entitled to habeas relief because the trial court failed to provide special instructions at the punishment phase of the trial -that would allow the jury specifically to consider his mitigating evidence of mental illness and childhood abuse. Lucas relies on Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), for this claim. In Penry, the Supreme Court held that the petitioner was constitutionally entitled to further jury instructions because, although his mitigating evidence had been placed before the sentencer, the sentencer “had no reliable means of giving mitigating effect to that evidence.” Graham v. Collins, 506 U.S. 461, 475-77, 113 S.Ct. 892, 902, 122 L.Ed.2d 260 (1993) (citing Penry). Penry’s application has since been limited to that narrow class of situations in which the petitioner’s mitigating evidence was placed beyond the jury’s effective reach. Id. The question we must decide, therefore, is whether the mitigating evidence presented was within the effective reach of the jury under either of the interrogatories considered by the jury.
In accordance with Texas law, the trial court put to the jury the following two statutory punishment-phase interrogatories:
(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 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?
The mitigating evidence at issue here relates to Lucas’s mental illness and his abusive childhood. With respect to his mental illness, experts testified at trial that Lucas was psychotic and suffered from schizophrenia. One expert further explained that if Lucas had committed the Orange Socks murder, then at the time of the act “[h]e would have been psychotic, meaning out of touch with reality, out of control over his impulses, over his drives_insane.” It is clear to us that the sentencer could have effectively considered the mitigating aspect of such evidence under the first interrogatory, that is, whether Lucas acted deliberately when he committed the murder.
Further, the testimony at trial indicated that, although Lucas had mental problems, he responded well to antipsychotic drugs like Thorazine and that his particular illness could be treated in a controlled environment. This prospect of medical treatment placed the evidence of his mental illness and abusive childhood within “the effective reach of the senteneer” as a potential mitigating factor with respect to the second issue, that is, the jury could have considered whether, in an institutional setting, the probability that Lucas posed as a future danger to society was not so great as to merit imposition of the death sentence. See Johnson v. Texas, 509 U.S. 350, 367-69, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (“[TJhere is no reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of petitioner’s [mitigating evidence].”); Graham, 506 U.S. at 475, 113 S.Ct. at 902 (“[I]t is apparent that Graham’s evidence — unlike Penry’s — had mitigating relevance to the second special issue concerning his likely future dangerousness.”); Motley v. Collins, 18 F.3d 1223, 1230-35 (5th Cir.1994).
Furthermore, to the extent that Lucas-seeks relief beyond the narrow purview provided in Penry, he has failed to show that reasonable jurists would feel compelled by precedent existing at the time his conviction became final in 1990 to rule in his favor. He is thus requesting retroactive application of a new rule and consequently we are barred from considering the merits of this claim pursuant to the non-retroactivity principles under Teague. Lucas is not entitled to relief on this ground.
L
Lucas’s final contention is that his original arrest was in violation of the Fourth Amendment because it was not supported by probable cause and, therefore, the subsequent confessions are tainted. This argument fails to state a basis for federal habeas relief. See Stone v. Powell, 428 U.S. 465, 493-97, 96 S.Ct. 3037, 3052-53, 49 L.Ed.2d 1067 (1976).
VI '
In conclusion, we grant Lucas’s motion to reconsider application of the Antiterrorism and Effective Death Penalty Act. In accord with the Supreme Court’s opinion in Lindh, we hold that the AEDPA does not govern this appeal. Under pre-AEDPA law, we find that Lucas has made a “substantial showing of. the denial of a federal right.” We therefore grant the application for a CPC in all respects. After reaching the merits, however, we hold that Lucas is not entitled to federal habeas relief. We therefore affirm the district court’s denial of Lucas’s petition.
MOTION TO RECONSIDER GRANTED; REQUEST FOR CPC GRANTED; and JUDGMENT OF DISTRICT COURT AFFIRMED.
See infra note 3.
Boyd v. Puckett, 905 F.2d 89.5, 896-97 (5th Cir.) (relying on Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963), for the holding that habeas relief is unavailable where new evidence bears only upon the petitioner’s guilt or innocence), cert. denied, 498 U.S. 988, 111 S.Ct. 526, 112 L.Ed.2d 537 (1990).
We must note that on the basis of the allegedly newly discovered evidence set out in the Record before us, Lucas has failed" to demonstrate that he is actually innocent of the "Orange Socks” murder. The Herrera Court said that only a "truly persuasive demonstration of 'actual innocence’ made after trial would render the execution of a defendant unconstitutional" and that "the threshold showing for such an assumed right would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417, 113 S.Ct at 869. The Court premised its observation on the assumption that the claim of actual innocence was grounded on newly discovered evidence. Id. Requests for relief based on newly discovered evidence generally must demonstrate that: (1) the evidence is newly discovered and was unknown to the defendant at the time of the trial; (2) the defendant's failure to detect the evidence was not due to a lack of diligence; (3) the evidence is material, not merely cumulative or impeaching; and (4) the evidence would probably produce acquittal at a new trial. Freeman, 77 F.3d at 817 (citing United States v. Pena, 949 F.2d 751, 758 (5th Cir.1991)) (discussing motion for new trial based on newly discovered evidence); see also Herrera, 506 U.S. at 400, 113 S.Ct. at 860 (quoting Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963)) (noting standard for federal habeas evidentiary hearing premised on newly discovered evidence). Lucas suggests the following "newly discovered evidence” suffices to demonstrate his innocence: 1) An audit conducted by J.R., the owner of the Florida company for which Lucas worked, which indicated that the work records showing that Lucas was at work at the time of the murder were correct; 2) Testimony by Lucas's neighbors that because Lucas was one of the few white residents in that area, they would have noticed his absence had he been out of town for an extended time to commit the murder and they had not noticed any such absence; 3) Expert testimony by Dr. Gudjonnson that Lucas fit the profile of a liar and explaining the impetus behind Lucas's confessions and why they were false; 4) The Lucas Report prepared by the Texas Attorney General’s office that documented Lucas’s whereabouts at the time of the murder and purportedly concluded that he was in Florida when the Texas murder took place; 5) The preferred treatment Lucas received while incarcerated and providing the authorities with information concerning different crimes; and 6) Polygraph results that Lucas was being truthful when he disavowed any involvement with the "Orange Socks” murder. Although this "new” evidence provides support for Lucas’s defense at trial, it is insufficient to demonstrate that he is actually innocent of the murder for which he was sentenced to die. Indeed, it is hardly correct to classify the evidence as "new” or as "newly discovered.” The evidence is more aptly described as simply corroborative of the alibi defense presented to the jury. Furthermore, it was available, if not accumulated in its present form, at the time of the state trial. At trial, Lucas's alibi defense was supported by testimony that he was on a construction job in Florida at the time the "Orange Socks” murder occurred. The "newly discovered” evidence of ‘the post-trial audit conducted by Lucas's employer does not purport to demonstrate the unequivocal correctness of the work records indicating his presence in Florida. The accuracy of these records was thoroughly litigated at trial. Furthermore, testimony adduced at trial indicated that a kickback system for falsifying attendance records was well established at Lucas's workplace. In addition, the State counters Lucas's neighbors' testimony that they would have noticed an extended absence with the assertion that Lucas did not move to the neighborhood in question until after the time of the murder. As such, their testimony is irrelevant. The testimony proffered by defense expert Dr. Gudjonnson appears for the main part only to corroborate evidence presented at trial. Because Lucas's defense was an alibi, his confessions were naturally placed under strict scrutiny. Indeed, Lucas’s attorneys argued in closing that the jury should disregard Lucas's statements because he was attempting to commit "legal suicide.” The Lucas Report does not contain any significant new evidence that in substance was not presented to the jury. It merely helps to document Lucas's whereabouts and corroborates the defense's alibi theory, which was presented at trial, that Lucas was in Jacksonville, Florida, at the time of the murder. One new piece of evidence that the Report does set out is Lucas's description of a car fire that took place in Florida on the day of the murder — the import being that Lupas had to be present at the fire in order to so accurately describe it. At the federal evidentiary hearing, however, testimony indicated that Lucas could have learned of the fire from two different acquaintances. Further, although the treatment that Lucas received while incarcerated is certainly suggestive of favors bartered for information and confessions, it is insufficient to raise a serious question as to actual innocence. Moreover, such evidence was available at the time of trial. Finally, a jury would not have been permitted to hear any polygraph evidence. Thus, even were a claim of actual innocence cognizable under federal habeas corpus, this accumulation of evidence that tracks and corroborates the evidence presented at trial and that largely was available at the time of trial, does not qualify to meet the extraordinarily high threshold as newly discovered evidence demonstrating actual innocence that is necessary to suggest a federal constitutional right arising from this Texas conviction.
Johnson disputes whether the Lucas Report contains any admission that Lucas is innocent of the "Orange Socks” murder. Testimony before the district court indicated that the Attorney General's Office reached no official conclusion with respect to Lucas’s guilt or innocence of the "Orange Socks” murder. Furthermore, the statements of former Attorney General Jim Mattox, relied upon by Lucas for support of this claim, were made after Mattox’s last term as Attorney General expired in January 1991. As such, they may not be attributed to the State as an official admission.
Teague set out two exceptions to its prohibition on retroactive application of new rules. Teague, 489 U.S. at 309-16, 109 S.Ct. at 1075-78. Neither of the exceptions applies in this instance.
The prosecutor stated, "The handwriting comparison on the matches with Henry Lee Lucas was inconclusive.- We don’t know that those are his matches; they might have been the girl’s matches. She might have written in the matchbook; we don’t know that. Only one person does know that, and that’s Henry Lee Lucas.”
The Supreme Court has stated that a holding sets out a new rule " ‘if the result was not dictated by precedent existing at the time the defendant’s conviction became final.’ ” Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989) (quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070) (emphasis in original). Difficult questions are presented when the new holding is reached through an extension of reasoning contained in previous cases. “But the fact that a court says that its decision is within the 'logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision, is not conclusive for purposes of deciding whether the current decision is a ‘new rule’ under Teague.” Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990). If the outcome of the case is "susceptible to debate among reasonable minds,” then the decision is not dictated by existing precedent and is a new rule barred by Teague unless one of the two exceptions embraces it. Id. The holding requested by Lucas is susceptible to debate and thus constitutes a new rule under the reasoning of Butler. The claim does not fall within either Teague exception and we are thus precluded from considering it.
Expert testimony indicated that Lucas's traumatic childhood could be credited as a likely cause of his mental instability. Consideration of this evidence was within the effective reach of the senteneer under the first interrogatory in that the senteneer could have appraised the relationship between his abusive childhood and his mental illness and, if that relationship were sufficiently substantial, given mitigating effect to the deliberateness of Lucas's actions in the context of considering the mitigating effect of his mental illness.