Hoover v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-50443

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DEXTER HOOVER,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON,

Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

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Appeal from the United States District Court

for the Western District of Texas

_________________________

October 29, 1999

Before GARWOOD, SMITH, and commit, and had committed, the offense of

BENAVIDES, Circuit Judges. burglary of a building. The indictment

included a list of acts allegedly committed by

JERRY E. SMITH, Circuit Judge: Hoover, any one of which, the state

contended, would serve to fulfill the overt act

Dexter Hoover appeals the denial of his element of the conspiracy charge.

petition for writ of habeas corpus, challenging

the jury instructions given in his trial for Hoover requested an instruction requiring

conspiracy in state court, claiming that by the jury, by special ballot, to indicate which

omission the instructions denied him the overt act or acts it unanimously agreed had

assurance of a unanimous jury verdict as satisfied the overt-act requirement of the

guaranteed by the Texas Constitution. conspiracy charge. The trial court denied the

Because we find no error cognizable within the motion and, instead, recited the list of available

limited scope of review permitted to us, we overt acts and explained that, to find Hoover

affirm. guilty, the jury would need also to find that he

and at least one of the alleged co-conspirators

I. had committed “one or more” of the

Hoover was charged with engaging in enumerated acts, though “not necessarily that

organized criminal activity. The indictment two persons performed the same overt act

charged that he had combined with others to together.” The court instructed that to find

Hoover guilty, it needed to reach a unanimous to be as to the overt act that involves

verdict. this Defendant, and an overt act as it

relates with these two other defendants.

The jury arguments of both sides helped to

clarify this charge with regard to the question The intermediate state appellate court

whether the unanimity needed to extend to the affirmed in an unpublished opinion on the

jury’s selection of particular overt acts. In the ground that, under Texas law, a general

defense’s opening statement, counsel verdict satisfies the unanimity requirement

explained that under these circumstances if the defense has

not objected to the sufficiency of the evidence

I anticipate that the judge will instruct supporting any of the alleged overt acts. The

you . . . [that] no person may be Texas Court of Criminal Appeals refused

convicted of an offense unless each Hoover’s petition for discretionary review.

elementSSeach element, not justSSyou Hoover then filed an application for habeas

know, weSSsix of us agree that overt act relief in state court, which was denied without

number five occurred, and four of us written order.

agree that overt act number fifteen

occurred, and eleven of us agree that Hoover filed the instant federal habeas

overt act number twenty-two occurred. petition, raising, among others, a claim that the

No, but each elementSSI mean, it jury instructions were improper because they

doesn’t have to be all twenty-two, but did not guarantee juror unanimity. After

all twelve have to agree on at least one. Hoover was denied relief in the district court,

this court issued a certificate of appealability

Meanwhile, in his closing, the prosecutor solely on the jury-instruction question, and

told the jury that that is thus the only issue before us.

[n]ow, as you vote on these overt acts, II.

I would suggest to you that whoever the The district court’s denial of Hoover’s habeas

chairman of the jury may be, that you petition is, as to questions of law, subject to de

take them up individually and say, “How novo review. See Dyer v. Johnson, 105 F.3d

many of you believe that Overt Act 607, 609 (5th Cir. 1996). The scope of our

No. 1 has been proved beyond a review of the underlying state-court

reasonable doubt?” . . . You know if prosecution, however, is established by the

it’s unanimous by twelve, or it’s ten to Antiterrorism and Effective Death Penalty Act

two, or nine to three, whatever, put it of 1996 (“AEDPA”). See Lindh v. Murphy,

out to the side. And take each one of 521 U.S. 320, 335-36 (1997) (applying

them like that, and go through all of AEDPA to habeas cases filed after its effective

them. But all it takes to convict is one dates of April 24, 1996). That statute sets a

of these overt acts as it relates to this standard of review under which federal habeas

Defendant doing something in relief is denied

furtherance of this conspiracy and an

overt act relating to at least two other with respect to any claim that was

defendants. So if you find and believe adjudicated on the merits in State court

that all four of these people came up proceedings unless the adjudication of

here to Junction on January the 14th and the claim . . . (1) resulted in a decision

15th and committed this burglary, and as that was contrary to, or involved an

to those two overt acts, if you find . . . unreasonable application of, clearly

yes, that’s what happened, we all agree established Federal law, as determined

that that overt act is true and correct by the Supreme Court of the United

beyond a reasonable doubt, it doesn’t States.

make any different about the other overt

acts. Your unanimous verdict only has 28 U.S.C. § 2254(d) (1998). In applying this

2

standard, we must decide (1) what was the offense, and each of these methods may be

decision of the state courts with regard to the submitted alternatively in the charge to the

questions before us and (2) whether there is jury.” Renfro v. State, 827 S.W.2d 532,

any established federal law, as explicated by 635-36 (Tex. App.SSHouston [1st Dist.] 1991,

the Supreme Court, with which the state court pet. ref’d) (internal citations and quotations

decision conflicts. omitted). Finally, Texas makes a practice of

upholding jury verdicts in conspiracy cases,

III. even where the trial court fails entirely to

In this case, the state courts decided that instruct the jury that it must agree on the

the state constitution’s unanimous verdict same overt act, if the defense fails to object

guarantee is satisfied when the jury that the evidence was insufficient to support

instructions include a list of acts any one of any of the alleged overt acts. See Daniel v.

which might qualify as the overt act required State, 704 S.W.2d 952 (Tex. App. SSFort

by the definition of the crime charged; the Worth 1986, no pet.) (citing Vasquez v. State,

defense does not object that any of these acts 665 S.W.2d 484, 486 (Tex. Crim. App. 1984).

is supported by insufficient evidence; the court The trial court here satisfied these

admonishes the jury that its verdict must be requirements.

unanimous; and the opening statement of the

defense and the closing statement of the IV.

prosecution clarify that the jury must be The next step, then, is to discover what, if

unanimous with regard to which overt act(s) any, “clearly established federal law, as

were committed to satisfy the relevant criminal explicated by the Supreme Court,” might be

element; but the defense is denied a request to offended by this state-court practice. We first

have submitted to the jury a special verdict note that we cannot find, as petitioner would

form that would have required the jury to like, that the state court violated any federal

specify which overt act(s) it found to have right to a unanimous verdict in state court,

satisfied the element. This decision is because the Supreme Court “has not held that

consistent with Texas practice, which supports the Constitution imposes a jury unanimity

considering the jury instructions and the requirement.”2 We therefore look for more

arguments of counsel together to determine subtle ways in which Hoover’s trial may have

the jury’s understanding of its duties, and violated rights explicated by the Court.

whether that understanding was sufficient to

negate possible error in the jury instruction or The possibility arises that the state court

rendered such error harmless.1 violated Hoover’s rights by allowing the jury

to select amongst the list of available overt

Texas practice also comports with listing acts for the one it thought satisfied the overt

the enumerated overt acts to the jury and act requirement, without agreeing unanimously

allowing it to select those acts (if any) that it to the same overt act, and identifying that one.

finds to have been committed and therefore to Supreme Court text gives a bit of support to

satisfy the overt act requirement of the this contention. As the Richardson Court

conspiracy charge. “Each count of a charging noted,

instrument may contain as many separate

paragraphs charging that offense as necessary, Finally, this Court has indicated that the

as long as no more than one offense is charged

in any count . . . . An indictment may allege

different methods of committing the same 2

See Richardson v. United States, 119 S. Ct.

1707, 1712 (1999) (citing Johnson v. Louisiana,

406 U.S. 356, 366 (1972) (Powell, J., concurring)

1

See Gowans v. State, 995 S.W.2d 787 (Tex. (noting that “in criminal cases due process of law

App.-Houston [1st Dist.] 1999, no pet.); Ramos v. is not denied by a state law which dispenses with

State, 991 S.W.2d 430 (Tex. App. SSHouston [1st . . . the necessity of a jury of twelve, or unanimity

Dist.] 1999, pet. ref’d). in the verdict”)).

3

Constitution itself limits a State’s power therefore cannot agree with Hoover that the

to define crimes in ways that would failure of the state court to require the jury to

permit juries to convict while identify the overt act to which it had

disagreeing about means, at least where unanimously agreed violated an independent

that definition risks serious unfairness constitutional right.

and lacks support in history or tradition.

Schad v. Arizona, 501 U.S., at 632-633, The Supreme Court has, however,

111 S. Ct. 2491 (plurality opinion); id., explicated one narrow constitutional right of

at 651, 111 S. Ct. 2491 (SCALIA, J., relevance to state court practice in this case.

concurring) (“We would not permit . . . While federal law does not establish a

an indictment charging that the unanimous jury requirement for state-court

defendant assaulted either X on Tuesday proceedings, the Texas Constitution does

or Y on Wednesday . . . .”). provide such a right in felony trials.4 The

Supreme Court has held that, when a state

Richardson, 119 S. Ct. at 1711. guarantees a structural protection, it violates

the Due Process Clause of the federal

Further consideration of Richardson Constitution if it fails meaningfully to vindicate

reveals, however, that the Court did not

therein, and has not elsewhere, explicated a

constitutional requirement that state-court

juries must agree to a single act that satisfies

the overt act element of the relevant crime,

and then identify that act in a special ballot. In (...continued)

fact, the Court has not even firmly established [w]here . . . an element of robbery is force

such a requirement for federal juries.3 We or the threat of force, some jurors might

conclude that the defendant used a knife to

create the threat; others might conclude he

3

In Richardson, the Court held that “a jury in used a gun. But that disagreementSSa

a federal criminal case cannot convict unless it disagreement about meansSSwould not

unanimously finds that the Government has proved matter as long as all 12 jurors unanimously

each element . . . . [A] federal jury [, however,] concluded that the Government had proved

need not always decide unanimously which of the necessary related element, namely that

several possible . . . means the defendant used to the defendant had threatened force.”

commit an element of the crime.” Richardson,

119 S. Ct. at 1710. The Court there considered a Id.

challenge to a continuing criminal enterprises

(“CCE”) conviction. It held that the jury in CCE We note that the Court did not require, even

cases must agree unanimously which three acts had when directing that the jury agree unanimously as

been committed by a defendant accused of having to the specific act taken, either that this unanimity

undertaken a CCE, because it understood each of requirement be made clear from the instructions

those acts to be an independent element of the without reference to the statements of counsel to

crime. Id. at 1709. the jury, or that the court instruct the jury not only

unanimously to agree on a specific act, but also to

Had the Court understood the relevant element identify that act in a specific verdict. Even if

of the crime to be merely that a “series” of acts had Texas were required to vindicate its unanimous-

been committed, however, then, said the Court, the jury guarantee in the same way that the federal

acts making up that series would merely have been courts ensure the Sixth Amendment guarantee, we

“means” of committing the element, and jury cannot say that it has failed to do so in these

unanimity as to which means (which criminal acts) circumstances, under the narrow scope of review

had actually been performed would not be permitted us under the AEDPA.

necessary, so long as each juror agreed that a

4

“series” had been performed. The Court attempted See TEX. CONST. ART. V, § 13; TEX. CODE

to illustrate this distinction by explaining that CRIM. PROC. ANN. art. 36.29 (West 1998)

(continued...) (guaranteeing a jury trial in felony criminal cases).

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that guarantee.5 We assume, arguendo only, foundation for decisionmaking, one of

that this principle applies outside the context the more obvious merits of our federal

of Evitts and related cases. Accordingly, the system is the opportunity it affords each

only federal question is to determine whether State, if its people so choose, to become

Texas, having guaranteed the right to a a ‘laboratory’ and to experiment with a

unanimous verdict, has so deviated from that range of trial and procedural

guarantee as to have denied federal due alternatives.

process of law.

Johnson v. Louisiana, 406 U.S. 356, 376

V. (Powell, J., concurring).

The state courts’ decision that the

guarantee of unanimity was sat isfied by the We certainly cannot therefore say that the

practice in this case does not violate due Supreme Court requires that Texas, in

process. There is no suggestion in the vindicating its right to a unanimous verdict in

Supreme Court’s jurisprudence that a state, felony cases, follow exactly the procedures

having established a guarantee of a unanimous established by federal courts in vindicating the

jury in felony cases, must vindicate that right in right to a unanimous verdict in federal criminal

conspiracy trials by requiring that the trial cases. Instead, we can require of Texas

court either (1) give instructions to the jury, merely that it not “withdraw [the right]

explicit in themselves without regard to the without consideration of applicable due

arguments of counsel, that it must agree as to process norms.”6 Evitts, 469 U.S. at 400-01.

which act in a list of overt acts the defendant There is no reason, under these facts, to think

had committed before it could find him guilty that, under “established Federal law, as

of conspiracy; or (2) require that the jury issue determined by the Supreme Court of the

a special verdict signifying which of the overt

acts it has found the defendant to have

committed. Rather, to the extent that it has 6

In defining these “applicable due process

expounded law in this field at all, the Court has norms,” the Court has instructed that

indicated that states must be allowed to

determine for themselves, within reason, what [o]nce it is determined that due process

procedures satisfy the rights guaranteed by applies, the question remains what process

those states. is due. It has been said so often by this

Court and others as not to require citation of

[A]t least in defining the elements of the authority that due process is flexible and

right of jury trial, there is no sound basis calls for such procedural protections as the

particular situation demands. Consideration

for interpreting the Fourteenth of what procedures due process may require

Amendment to require blind adherence under any given set of circumstances must

by the States to all details of the federal begin with a determination of the precise

Sixth Amendment standards. . . . [I]t nature of the government function involved

strains credulity to believe that [the Civil as well as of the private interest that has

War Amendments] were intended to been affected by governmental action. To

deprive the States of all freedom to say that the concept of due process is

experiment with variations in jury trial flexible does not mean that judges are at

procedure. In an age in which empirical large to apply it to any and all relationships.

study is increasingly relied upon as a Its flexibility is in its scope once it has been

determined that some process is due; it is a

recognition that not all situations calling for

procedural safeguards call for the same kind

5

See U.S. CONST. AMEND. XIV; Evitts v. of procedure.

Lucey, 469 U.S. 387, 400-01 (1985) (holding that

because Kentucky allowed criminal appeals, it was Morrissey v. Brewer, 408 U.S. 471, 481 (1972)

required to administer them in a manner consistent (internal citations and quotations omitted); see also

with federal Due Process Clause). Goldberg v. Kelly, 397 U.S. 254, 262 (1970).

5

United States,” Texas has withdrawn any right

at all or has failed to vindicate its unanimous-

jury guarantee in any respect.

AFFIRMED.

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