Petition for Writ of Certiorari — Tarus Vandell Sales, Petitioner v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No.

IN THE

Supreme Court of the United States

TARUS VANDELL SALES,

Petitioner,

v.

ERIC GUERRERO, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FIFTH CIRCUIT COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

**CAPITAL CASE**

KENNETH W. MCGUIRE

MCGUIRE LAW FIRM

TEXAS BAR: 00798361

P.O. BOX 79535

HOUSTON, TX 77279

(713) 223-1558

KENNETHMCGUIRE@ATT.NET

Counsel for Petitioner

*** CAPITAL CASE ***

I.

QUESTIONS PRESENTED

This postconviction capital case involves the imposition of a death sentence on

a non-shooter, Tarus Sales, who was not present at the murder scene when another

person, Herschel Ostine, killed the victim by shooting him. Ostine, tried several years

after Sales, received a life sentence, while Sales received a death sentence for the

murder committed by Ostine. Ostine did not testify at Sales’ trial, and no witness

testified at Sales’ trial directly about any communications between Sales and Ostine

concerning carrying out the murder. The evidence was undisputed by the parties at

Sales’ trial that Sales was not present at the murder scene and that Ostine murdered

the victim. Sales was given a death sentence under the Texas law of parties for the

murder committed by Ostine, after Sales’ indictment had charged that Sales himself

killed the victim.

The questions presented are:

1. Whether a death sentence may be constitutionally imposed on a non-shooter

such as Sales who was not physically present at the murder scene, under the

Eighth Amendment and this Court’s precedents in Tison v. Arizona, 481 U.S.

137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) and Enmund v. Florida, 458 U.S.

782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), where the jury found in a general

verdict under the Texas law of parties that Mr. Sales had entered into a

conspiracy to commit the offense of retaliation against the victim with Mr.

Ostine, and Sales should have anticipated that Ostine would murder the

victim, and the state courts did not make Enmund-Tison findings that Sales

i

was a major participant in the offense and was reckless indifferent that human

life would be taken, and instead found that Sales was not a participant in the

murder but anticipated that a life would be taken.

2. Whether this Court’s Sawyer v. Whitely1 actual innocence of the death penaltymiscarriage of justice exception excusing procedural default applies to

eligibility criteria for imposing the death penalty under the Eighth

Amendment, in addition to state statutory eligibility criteria, or is limited to

state statutory eligibility criteria only, as found by the federal district court

and Court of Appeals in denying Sales’ Eighth Amendment Enmund-Tison

claim.

1 Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

ii

PARTIES TO THE PROCEEDING

Petitioner (defendant-appellant below) is Tarus

Vandell Sales.

Respondent (appellee below) is Eric Guerrero,

Director, Texas Department of Criminal Justice,

Correctional Institutions Division.

iii

RELATED PROCEEDINGS

Texas Court of Criminal Appeals:

Sales v. State, No. 74594, 2005 WL 8153975 (Tex. Crim. App. Jan. 26,

2005) (affirming Petitioner’s sentence on direct review).

Ex parte Sales, No. WR-78,131-01 (Tex. Crim. App. Jan. 14, 2015)

(unpublished) (denying Petitioner’s initial state post-conviction writ of

habeas corpus).

Ex parte Sales, Cause No. 893161-B, No. WR-78-131-02 (Tex. Crim. App.

July 10, 2017)

Ex parte Sales, Cause No. 893161-B, No. WR-78-131-02 (Tex. Crim. App.

Jan. 25, 2023)

U.S. District Court for the Southern District of Texas:

Sales v. Guerrero, No. H-15-256 (S.D. Tex. Oct. 9, 2025) (unpublished)

(denying Petitioner’s federal post-conviction writ of habeas corpus and

certificate of appealability).

United States Fifth Circuit Court of Appeals:

Sales v. Guerrero, No. 25-70018 (unpublished) (May 14, 2026) (denying

certificate of appealability).

iv

TABLE OF CONTENTS

Page

I.

QUESTIONS PRESENTED..................................................................................i

II.

RELATED PROCEEDINGS ............................................................................ iiiv

III.

OPINIONS BELOW ............................................................................................. 1

IV.

JURISDICTION.................................................................................................... 2

V.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ............... 2

VI.

STATEMENT OF THE CASE .............................................................................. 3

VII.

A.

Factual Background .................................................................................. 3

B.

Procedural History …..………………………………………………………..6

REASONS FOR GRANTING THE PETITION ................................................... 9

A.

This Court Should grant Certiorari and Certificate of Appealability.

Reasonable jurists would find debatable or wrong the lower court's

assessment of Sales’ Sawyer w. Whitely Actual Innocence of the Death

Penalty-Miscarriage of Justice Exception Claim under the Eighth

Amendment Bars to Imposing the Death Penalty in Enmund v. Florida

and Tison v. Arizona. ………………………………………………………….9

B.

Reasonable jurists could debate whether the Sawyer v. Whitely Actual

Innocence of the Death Penalty Exception applies here. ………………16

VIII. CONCLUSION ................................................................................................... 34

v

TABLE OF APPENDICES

Page

APPENDIX A: Memorandum Opinion and Order of United States District Court,

Southern District of Texas (Sept. 4, 2024) (denying Petitioner’s § 2254 federal

writ of habeas corpus).............................................................................................. 1a

APPENDIX B: Order of the Fifth Circuit Court of Appeals (May 14, 2026) (denying

a certificate of appealability) ................................................................................. 74a

APPENDIX C: Findings of Fact and Conclusions of Law, Ex parte Tarus Vandell

Sales, Cause No. 893161-B, 179th District Court, Harris County, Texas (Aug. 19,

2022) ....................................................................................................................... 79a

APPENDIX D: Texas Court of Criminal Appeals Order Denying Relief, Ex parte

Tarus Vandell Sales, No. WR-78,131-02 (Aug. 19, 2022) .................................. 133a

APPENDIX E: Constitutional and Statutory Provisions Involved ....................... 140a

8th Amendment ................................................................................................... 140a

14th Amendment ................................................................................................. 140a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................................................ 11, 12, 14, 15

Bousley v. United States,

523 U.S. 614 (1998) .................................................................................................. 16

Cabana v. Bullock,

474 U.S. 376 (1986) ...................................................................................... 25, 26, 31

California v. Roy,

519 U.S. 2 (1996) ...................................................................................................... 24

Coker v. Georgia,

433 U.S. 584 (1977) ...................................................................................... 11, 12, 17

Cole v. Arkansas,

333 U.S. 196 (1948) ...................................................................................... 24, 25, 26

Connecticut v. Johnson,

460 U.S. 73 (1983) .................................................................................................... 25

Enmund v. Florida,

458 U.S. 782 (1977) ............................................... 1, 6-9, 12-16, 19, 25, 27-32, 34-35

Ford v. Wainwright,

477 U.S. 399 (1982) .................................................................................................. 11

Hedgpeth v. Pulido,

555 U.S. 57 (2008) .............................................................................................. 22-23

Miller-El v. Cockrell,

537 U.S. 322 (2003) .................................................................................................... 9

Neder v. United States,

527 U.S. 1 (1999) ...................................................................................................... 25

Roper v. Simmons,

543 U.S. 551 (2005) ...................................................................................... 11, 12, 14

vii

Rose v. Clark,

478 U.S. 570 (1986) ............................................................................................ 25-26

Sawyer v. Whitley,

505 U.S. 333 (1992) ............................................................................. 7-11, 13-17, 19

Slack v. McDaniel,

529 U.S. 473 (2000) .................................................................................................... 9

Stromberg v. California,

283 U.S. 359 (1931) .................................................................................................. 22

Sullivan v. Louisiana,

508 U.S. 275 (1993) ............................................................................................ 24-26

Tison v. Arizona,

481 U.S. 137 (1987) ........................................................ 1, 6-11, 12-17, 19, 25, 28-35

Thompson v. Oklahoma,

487 U.S. 815 (1988) ............................................................................................ 10, 17

United States v. Gaudin,

515 U.S. 506 (1995) .................................................................................................. 24

Yates v. United States,

354 U.S. 298 (1988) .................................................................................................. 22

Callins v. Johnson,

89 F.3d 210 (5th Cir. 1996)........................................................................................ 7

Clark v. Johnson,

227 F.3d 273 (5th Cir. 2000)...................................................................................... 7

Cuesta-Rodriguez v. Carpenter,

916 F.3d 885 (10th Cir. 2019).............................................................................. 8, 13

Foster v. Quarterman,

466 F.3d 359 (5th Cir. 2006)................................................................. 7-8, 28-29, 31

Gilbert v. United States,

640 F.3d 1293 (11th Cir. 2011)................................................................................ 13

viii

Halprin v. Davis,

911 F.3d 247 (5th Cir. 2018)...................................................................................... 7

Nelson v. Quarterman,

472 F.3d 287 (5th Cir. 2006).................................................................................... 12

Rocha v. Thaler,

626 F.3d 815 (5th Cir. 2010).............................................................................. 11-12

Rose v. Lee,

252 F.3d 676 (4th Cir. 2001)...................................................................................... 9

Sawyer v. Whitley,

945 F.2d 812 (5th Cir. 1991)..................................................................... 10-11, 16-17

Sibley v. Culliver,

377 F.3d 1196 (11th Cir. 2004)............................................................................ 8, 13

Tong v. Lumpkin,

90 F.4th 857 (5th Cir. 2024) ................................................................................ 7, 13

Cordova v. State,

698 S.W.3d 107 (Tex. Crim. App. 1985) .................................................................. 22

Ex parte Blue,

230 S.W.3d 151 (Tex. Crim. App. 2007) .................................................................. 25

Ex parte Thompson,

179 S.W.3d 549 (Tex. Crim. App. 2005) ............................................................ 21, 33

Ex parte Wood,

498 S.W.3d 926 (Tex. Crim. App. 2016) .................................................................. 15

Gross v. State,

380 S.W.3d 181 (Tex. Crim. App. 2012) ...................................................... 18-21, 33

Guevara v. State,

152 S.W.3d 45 (Tex. Crim. App. 2004) ............................................... 8, 19-21, 32-33

Lawton v. State,

913 S.W.2d 542 (Tex. Crim. App. 1995) ............................................................ 28-29

ix

Ransom v. State,

920 S.W.3d 288 (Tex. Crim. App. 1996) ........................................... 18-19, 21-22, 33

Salinas v. State,

163 S.W.3d 734 (Tex. Crim. App. 2005) ...................................................... 18-21, 33

Tarpley v. State,

565 S.W.2d 525 (Tex. Crim. App. 1978) .................................................................. 22

Urtado v. State,

605 S.W.2d 907 (Tex. Crim. App. 1980) .................................................................. 22

STATUTES

28 U.S.C. § 1257 .............................................................................................................. 2

28 U.S.C. § 2253 .............................................................................................................. 9

Tex. Code Crim. Pro. art. 37.071 § 2(b)(2) ..................................................... 7-8, 28, 31

Tex. Pen. Code § 7.01 ................................................................................ 3, 8, 17, 28, 31

Tex. Pen. Code § 7.02 ............................................. 3, 8, 17, 19, 21, 23, 25, 28-29, 31-34

x

*CAPITAL CASE*

PETITION FOR A WRIT OF CERTIORARI

Tarus Vandell Sales respectfully petitions for a writ of certiorari to review the

judgment of the Fifth Circuit Court of Appeals and to grant a certificate of

appealability.

III.

OPINIONS BELOW

The TCCA opinion affirming Mr. Sales’ conviction and death sentence on direct

review, is available at Sales v. State, No. 74594, 2005 WL 8153975 (Tex. Crim. App.

Jan. 26, 2005). The TCCA opinion denying Petitioner’s initial state post-conviction

writ of habeas corpus is unpublished. Ex parte Sales, No. WR-78,131-01 (Tex. Crim.

App. Jan. 14, 2015). The TCCA opinion dismissing Sales’ successor petition TisonEnmund claims but remanding his claim based on previously-unavailable evidence

for further proceedings is unpublished. Ex parte Sales, Cause No. 893161-B, No. WR78-131-02 (Tex. Crim. App. July 10, 2017). The TCCA opinion denying Petitioner’s

successor state post-conviction writ of habeas corpus is unpublished. Ex parte Sales,

Cause No. 893161-B, No. WR-78-131-02 (Tex. Crim. App. Jan. 25, 2023). The

Memorandum Opinion and Order denying the federal habeas corpus writ and

certificate of appealability, Pet. App. at 1a–72a, is unpublished. Sales v. Guerrero,

No. H-15-256 (S.D. Tex. Oct. 9, 2025). The Fifth Circuit order denying certificate of

appealability, Pet. App. at 74a, is unpublished. Sales v. Guerrero, No. 25-70018 (5th

Cir. May 14, 2026).

1

IV.

JURISDICTION

The Fifth Circuit Court of Appeals entered judgment against Mr. Sales on

May 14, 2026. Pet. App. at 74a. This Court’s jurisdiction is invoked pursuant to 28

U.S.C. § 1257(a).

V.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The Eighth Amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishment inflicted.

The Fourteenth Amendment to the United States Constitution provides in

pertinent part:

No State shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the equal protection

of the laws.

2

VI.

I.

STATEMENT OF THE CASE

Introduction

These claims warrant full and thorough debate by reasoned jurists, and a COA

should issue after the grant of certiorari.

A.

Factual Background

Mr.

Sales was convicted of capital murder on February 22, 2003, and

sentenced to death on March 1, 2003, in Harris County District Court. ROA.1692,

1707, 2003 Trial 1 CR 148, 163.2

Sales’s trial began on February 17, 2003. The State did not argue that Sales

was the shooter; instead, prosecutors argued that Sales had encouraged Ostine to kill

Butler. The State based its prosecution on the Texas law of parties. Under Texas

Penal Code §§ 7.01 and 7.02, a jury may convict a person under “party liability” “if . .

. acting with intent to promote or assist the commission of the offense, he solicits,

encourages, directs, aids, or attempts to aid the other person to commit the offense .

. . .” Tex. Penal Code § 7.02(a)(2). A jury may convict a person under “conspiracy

liability” if:

. . . . in the attempt to carry out a conspiracy to commit one felony,

another felony is committed by one of the conspirators, [and thus] all

conspirators are guilty of the felony actually committed, though having

no intent to commit it, if the offense was committed in furtherance of the

unlawful purpose and was one that should have been anticipated as a

result of the carrying out of the conspiracy.

Texas Penal Code § 7.02(b). The State’s case allowed the jury to convict Sales under

2 Citations in this application will be to the Fifth Circuit Electronic Record on Appeal (“ROA”) where

available. The state trial court record in this case, includes the Clerk’s Record [cited herein as “CR”],

and the Reporters Record [cited herein as “__ RR __” where the volume precedes and the page number

follows].

3

either theory in a general verdict, and the jury was not required to and did not

indicate which theory it chose, finding “We, the Jury, find the defendant, Tarus

Vandell Sales, guilty of capital murder, as charged in the indictment.” Guilt Verdict,

ROA.1692.

1. The Guilt/Innocence Testimony

As the federal District Court noted, “The State’s case against Sales was not

airtight. ROA.16434.3” As the District Court opinion recounts, Sales never admitted

any involvement in the crime. No forensic evidence or eyewitness account pointed to

Sales’s participation. The State’s case primarily depended on what Sales had said

before and after the murder. ROA.16434.

The District Court found that the State presented its strongest testimony

through four witnesses: Officer Mehl, Leon Leshall Hatfield, Kevin Howell, and

Martinez Hardnett. Officer Mehl’s testimony set the factual background, explaining

how the police investigation connected the Sharpstown Mall shooting to Butler’s

death. Officer Mehl told jurors what information led him to contact Sales’s friends,

including Leon Hatfield and Kevin Howell. Hatfield provided testimony about Sales’s

3 The prosecutor’s opening statement cautioned jurors:

The evidence in this case is not ever going to be overwhelming evidence. It’s a

retaliation of a dead witness. The witnesses will be obviously reluctant to you when

you get to judge them and see how they testify. And if you come into this courtroom

thinking when you leave you’re going to know all the answers and the puzzle is going

to fit perfectly together, you need to go back and finish the John Grisham book you’re

reading because it doesn’t work like that way in the real world. But you will believe

with all your heart when they’re done testifying and you put it all together, that all

those deals that were made and all the dragging out of the witnesses and all the

pushing and prodding and all the work by [Houston Police Department Officer] Eric

Mehl amounts to one thing. It was all worth it to get to the man that was capable of

having a witness executed to save his own life.

4

involvement in orchestrating the murder. Hatfield testified that Sales bought a .357

pistol after his arrest for the Sharpstown Mall shooting. When Sales and Ostine were

arrested after the Sharpstown Mall shooting, police recovered a 9mm pistol and .357

revolver from Ostine. ROA.18093. The murder weapon was identified as a .38 caliber

revolver, and was never found. ROA.18205-06. Sales told Hatfield that he would

“have to deal with” and “take care of” the Mall security guard because “he didn’t want

a felony gun charge on him” or “to go to prison behind this n*****.” Hatfield testified

that Sales “wanted [Butler] to be killed.” Sales offered to pay several individuals,

including Hatfield, $5,000 for the murder. Sales told Hatfield said that “he should

hire a dopehead” or “get one of his homies” from Tennessee to do it. ROA.16435.

Hatfield testified that Sales worked on finding out “what time [Butler] got off

. . . and checking his schedule a lot, like casing the joint.” Sales later told Hatfield

that “they k[new] what [Butler’s] schedule [was]” and “they [were] going to handle

what they [were] going to handle.” Hatfield knew that Sales “was serious” about

having Butler killed. ROA.16435. Hatfield however had first told police that state

witness Kevin Howell committed the murder of Butler, which caused Howell to be

formally charged and arrested for the capital murder of Butler. The State later

dropped their charge against Howell that had been based on Hatfield’s initial false

accusation of Howell. Hatfield testified that Sales jointly offered Hatfield and Howell

in the presence of accomplice Kevin Howell money to kill the security guard Butler,

an event that state witness Howell denied happened.4 ROA.16412.

4 Q. Did there come a time before the night they all left, you know what time I’m talking about,

the time that they all left, Little One and Cheryl and the girlfriend, before that time, did there

5

Howell’s testimony provided additional incriminating information about the

shooting. Howell testified that he met Sales and Ostine through his friend, Fleary.

The men would travel back and forth to Nashville for drug transactions. In early

summer 2000, Sales wanted Fleary and Howell to obtain information about Butler’s

work schedule. Fleary and Howell visited the Sharpstown Mall one time but they did

not see Butler or when Butler got off work. 16 RR 11-12, ROA.18262.

In July 2000, however, Fleary disappeared after taking a large amount of

money from Sales and Ostine. Sales had anticipated that Fleary would kill Butler in

return for the money. Sales was angry when he realized that Fleary had left without

killing. ROA.16436.

Howell testified that Ostine, Kissentaner, and Darfour left together on the

night of Butler’s murder. When the three returned, Sales asked, “Did you take care

of it?” Ostine answered, “Yes.”

The morning after Butler’s murder, Howell left for the airport with Sales and

Ostine. On the way, they stopped in a wooded area where Ostine discarded a small

black revolver. At the airport, Sales used Howell’s identification to buy plane tickets

to Nashville for himself and Ostine. ROA.16436.

B.

Procedural History

The District Court in its opinion wrote:

Texas law has not codified the Enmund/Tison analysis. Sales has

not pointed to any authority requiring a sua sponte Enmund/Tison

analysis when a non-triggerman receives a death sentence. Because

Sales did not raise any Enmund/Tison issue until his procedurally

come a time when Bread asked you specifically if you would kill the security guard? A. No. 16

RR 23, ROA.18265.

6

defective successive habeas application, no state court directly

conducted that analysis. The Texas jury and courts did, however, make

decisions that functionally correspond to the Enmund/Tison analysis.

The record contains findings corresponding to Tison’s majorparticipation requirement. The jury instructions allowed for Sales’s

conviction as either a party or a coconspirator to the murder. While a

conviction as a coconspirator may not sufficiently establish a defendant’s

role as a major participant, a conviction as a party does. See Clark v.

Johnson, 227 F.3d 273, 280 (5th Cir. 2000). Even though the jury issued

a general verdict, the successive state habeas court found that “[t]he

trial evidence established [Sales] as both a party to capital murder, and

as a coconspirator to capital murder for conspiring to retaliate against

[Butler].” (Docket Entry No. 54-21 at 486) (emphasis added). The state

court found that the evidence supported Sales’s conviction as a party,

which satisfies a condition set in the Enmund/Tison cases.

As to the reckless-indifference requirement, the jury in the

penalty phase answered the special-issue question asking whether Sales

“actually caused the death,” “intended to kill,” or “anticipated that a

human life would be taken,” Tex. Code Crim. Pro. art. 37.071 § 2(b)(2).

Federal and state courts have held that this Texas special-issue question

complies with the Enmund/Tison requirement of displaying reckless

indifference to human life. See Halprin v. Davis, 911 F.3d 247, 259 (5th

Cir. 2018); Foster v. Quarterman, 466 F.3d 359, 370 (5th Cir. 2006);

Alvarez v. Davis, 2017 WL 4844570, at *23 (S.D. Tex. 2017); Walker v.

Scott, 123 F. Supp. 2d 1034, 1043 (E.D. Tex. 2000); see also Leza v. State,

351 S.W.3d 344, 355 (Tex. Crim. App. 2011); Ladd v. State, 3 S.W.3d

547, 573 (Tex. Crim. App. 1999); but see Gongora v. Quarterman, 2008

WL 4656992, at *7 (5th Cir. 2008) (granting a certificate of appealability

on a similar argument but ultimately deciding the case on other

grounds). In answering the special-issue question, the jury made Tison’s

reckless-indifference finding.

In short, the Enmund/Tison analysis was effectively done in this

case….Third, Sales’s barred claims are based on arguing that the

elements of the judicially created Enmund/Tison analysis are the same

as the elements of capital murder. The Sawyer exception, however,

focuses on the statutory elements that make a defendant eligible for a

death sentence. See Sawyer, 505 U.S. at 348; see also Tong v. Lumpkin,

90 F.4th 857, 864 (5th Cir. 2024) (“Sawyer limited this exception to

situations where alleged constitutional errors only affected the

applicant’s eligibility for the death penalty under state statutory law”)

(quotation omitted and cleaned up); Callins v. Johnson, 89 F.3d 210, 215

(5th Cir. 1996) (“Sawyer does not hold that anyone who is legally

ineligible for a particular punishment is ‘actually innocent.’ Sawyer

merely likens sentencing criteria to the elements of a crime, focusing on

7

the factual, not legal, basis for the verdict.”). In other words, innocence

claims under Sawyer “are limited to arguments that ‘no reasonable juror

would have found the petitioner eligible for the death penalty under the

applicable state law,’ i.e., the elements of the crime itself and the

existence of aggravating circumstances.” Cuesta-Rodriguez v.

Carpenter, 916 F.3d 885, 906 (10th Cir. 2019); see also Gilbert v. United

States, 640 F.3d 1293, 1320 (11th Cir. 2011); Sibley v. Culliver, 377 F.3d

1196, 1205 (11th Cir. 2004). Texas law has not made the Enmund/Tison

inquiry an element of the crime of capital murder.

Pet. App. at 26a-31a (DE 61, at 26-31), ROA.16456-61.

Ultimately the District Court denied all relief, and declined to issue a COA.

Pet. App. at 72a, ROA.16502. A timely appeal followed.

The Fifth Circuit declined to issue a certificate of appealability on the District

Court’s Sawyer procedural ruling. The Fifth Circuit ruled alternatively that

In any event, even if jurists of reason could debate the district

court’s procedural ruling, jurists of reason could not debate the district

court’s rejection of Sales’s underlying Enmund-Tison claim. In Texas, a

jury cannot recommend a death sentence without first answering the socalled “antiparties” special issue. That special issue asks the jury to

decide whether the “defendant actually caused the death of the deceased

or did not actually cause the death of the deceased but intended to kill

the deceased or another or anticipated that a human life would be

taken.” Tex. Code Crim. Proc. art. 37.071 § 2(b)(2); see also Tex. Pen.

Code §§ 7.01, 7.02. The jury answered this special issue “yes.”

ROA.16682. And our precedent holds that answer to the anti-parties

special issue meets the “reckless indifference” requirement imposed by

Tison. See Foster v. Quarterman, 466 F.3d 359, 370 (5th Cir. 2006).

[*Sales attempts to avoid this result by arguing that Texas Penal Code

§ 7.02(a) requires the defendant’s physical presence at the crime scene

to support a party-liability conviction. Because Sales was not physically

present, he reasons that he was not a “major participant” in the murder

and hence cannot be sentenced to death under Enmund and Tison. See

Tison, 481 U.S. at 158 (holding defendant must be a “major

participant”). This contention rests on a misconstruction of state law.

Section 7.02(a) does not require the defendant’s physical presence. See

Guevara v. State, 152 S.W.3d 45, 51–52 (Tex. Crim. App. 2004) (“[T]he

Penal Code does not require that the party actually participate in the

commission of the offense to be criminally responsible,” and it “also does

8

not require that a party to the crime be physically present at the

commission of the offense.” (emphasis added)). The evidence in the state

court record amply shows that Sales was a “major participant” in the

murder, and hence jurists of reason could not debate the district court’s

rejection of his claims under Enmund and Tison (even if that claim was

not defaulted, which it was).] Thus, jurists of reason could not debate

the district court’s resolution of the underlying Enmund-Tison claim in

any event.

At the end of the day, no one—including our dissenting

colleague—can explain how jurists of reason could debate the district

court’s procedural default holding. And no one—including our dissenting

colleague—can explain how jurists of reason could debate the

underlying Enmund-Tison claim given the jury’s answer to the antiparties special issue.

Pet. App. at 77a. The Fifth Circuit denied a certificate of appealability.

VII.

A.

REASONS FOR GRANTING THE PETITION

This Court Should grant Certiorari and Certificate of

Appealability. Reasonable jurists would find debatable or wrong

the lower court's assessment of Sales’ Sawyer v. Whitely Actual

Innocence of the Death Penalty-Miscarriage of Justice Exception

Claim under the Eighth Amendment Bars to Imposing the Death

Penalty in Enmund v. Florida and Tison v. Arizona.

The governing law provides that:

(c)(2) A certificate of appealability may issue . . . only if the applicant has

made a substantial showing of the denial of a constitutional right.

(c)(3) The certificate of appealability . . . shall indicate which specific issue

or issues satisfy the showing required by paragraph (2).

28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that

reasonable jurists would find the lower court's assessment of his constitutional claims

is debatable or wrong, and that any dispositive procedural ruling by the district court

is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v.

McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).

9

In Sawyer v. Whitely5 this Court set the requisites of its actual innocence of the

death penalty/miscarriage of justice exception excusing the procedural default of

federal constitutional claims. To qualify for the exception the petitioner must show,

“by clear and convincing evidence that but for constitutional error, no reasonable

juror would find him eligible for the death penalty” meaning “the existence of those

facts which are prerequisites under state or federal law for the imposition of the death

penalty.’ 945 F.2d, at 820 (footnotes omitted)6.” Sawyer, 505 U.S. at 346 (emphasis

added). After this Court adopted the Fifth Circuit decision in Sawyer, holding that

ineligibility for the death penalty focused on “the existence of those facts which are

prerequisites under state or federal law for the imposition of the death penalty,” Id.,

this Court held that “We agree with the Courts of Appeals for the Fifth and Eleventh

Circuits that the “actual innocence” requirement must focus on those elements which

render a defendant eligible for the death penalty, and not on additional mitigating

evidence which was prevented from being introduced as a result of a claimed

constitutional error.” Sawyer, Id. at 347.

The Fifth Circuit’s 1991 opinion in Sawyer that this Court expressly agreed

with and adopted, citing the Fifth Circuit opinion at page 820, in footnote 14 explicitly

cited to Tison’s Eighth Amendment requirements as an example of the actual

innocence of the death penalty exception:

There are several circumstances under which the death penalty

is unavailable as a matter of constitutional law. See, e.g., Thompson v.

Oklahoma, 487 U.S. 815, 857-78, 108 S.Ct. 2687, 2711, 101 L.Ed.2d 702

5 Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

6 Sawyer v. Whitley, 945 F.2d 812 (5th Cir. 1991).

10

(1988) (O'Connor, J., concurring) (persons under 16 years of age when

they commit capital offense cannot receive death penalty unless

legislature clearly includes them by setting a lower minimum age);

Tison v. Arizona, 481 U.S. 137, 157-58, 107 S.Ct. 1676, 1688, 95 L.Ed.2d

127 (1987) (minor participation in felony underlying felony murder

conviction cannot support death penalty absent finding that defendant

exhibited at least reckless disregard for human life); Ford v.

Wainwright, 477 U.S. 399, 409, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335

(1986) (Constitution prohibits executing death sentences of insane

persons for the duration of their insanity); Coker v. Georgia, 433 U.S.

584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality) (rape

conviction cannot serve as basis for death sentence).

Sawyer v. Whitley, 945 F.2d 812, 820 at n.14 (5th Cir. 1991).

The Fifth Circuit has in some cases upheld its own Sawyer v. Whitley precedent

that Sawyer actual innocence of the death penalty includes ineligibility based on

federal Eighth Amendment requirements for imposing a death sentence.

An actual-innocence claim is not a claim of constitutional error. It

is a procedural device that authorizes the adjudication of a federal

constitutional claim that would otherwise be procedurally defaulted.

However, the federal constitutional claim of a habeas petitioner who

argues that the Constitution renders him ineligible for the death penalty

is, in substance, a claim that the petitioner is actually innocent of the

death penalty. In cases presenting such claims, the gateway issue and

the underlying constitutional issue largely merge into a single inquiry.

See infra notes 46-51 and accompanying text.”)

Rocha v. Thaler, 626 F.3d 815, 819 at n.3 and n.49 (5th Cir. 2010) (emphasis added).

The Rocha panel further explained that

There may well be some exceptions to the rule that a decision on

the gateway innocence claim does not constitute a decision on the

underlying constitutional claim. As Judge Dennis has previously

recognized, an Atkins claim7 is a claim that the petitioner is ineligible

for the death penalty. So too is a claim that the petitioner was under

eighteen at the time of his crime,8 is insane,9 or has some other

7 See Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the

Eighth Amendment prohibits the execution of the mentally retarded).

8 See Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

9 See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

11

characteristic that the Supreme Court has held categorically justifies

exemption from the death penalty. In such cases, the inquiry into the

gateway innocence claim will substantially overlap with the inquiry into

the merits of the underlying constitutional claim. Our panel opinion's

holding does not implicate this limited class of cases, as Rocha's Wiggins

claim is not a claim of categorical ineligibility for the death penalty.

Finally, it follows that this Court reviews de novo the CCA's

determination that Rocha cannot establish that he is actually innocent

of the death penalty. A gateway claim of actual innocence is not a basis

for relief under AEDPA. Such a claim stands outside of AEDPA and

offers to open a door into the statute that the petitioner's lack of

diligence otherwise would have closed. Gateway claims of innocence are

part of the federal common law of procedural default. De novo review is

the norm in this area. Just as we make de novo determinations of

whether a state-law ground of decision is independent of federal law or

adequate to support the judgment, so too do we decide afresh whether a

federal habeas petitioner is actually innocent of the death penalty.

Rocha v. Thaler, 626 F.3d at 826-27.

Rocha v. Thaler, Id. at 826 footnote 49 cited Judge Dennis’ concurrence in

Nelson v. Quarterman, 472 F.3d 287, 318-19 (5th Cir.2006) (en banc), cataloguing the

various Eighth Amendment categorical exemptions from death-penalty eligibility

recognized by the Supreme Court, including Roper v. Simmons, 543 U.S. 551, 569-75,

125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (persons under the age of 18 at the time of their

crime are categorically ineligible for the death penalty); Atkins v. Virginia, 536 U.S.

304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)(imposing death sentence on the mentally

retarded violates the Eighth Amendment), Coker v. Georgia, 433 U.S. 584, 598, 97

S.Ct. 2861, 53 L.Ed.2d 982 (1977) (death penalty imposed for rape of adult woman

violates Eighth Amendment); and Enmund v. Florida, 458 U.S. 782, 798, 102 S.Ct.

3368, 73 L.Ed.2d 1140 (1982) (imposing death penalty on non-shooter who did not

kill, attempt to kill or intend to kill violates Eighth Amendment).

12

The District Court here, however, denied Sales’ Tison-Enmund actual

innocence of the death penalty-miscarriage of justice exception claim on the basis that

the Sawyer exception applies only to state statutory law setting eligibility for the

death penalty. “The Sawyer exception, however, focuses on the statutory elements

that make a defendant eligible for a death sentence. See Sawyer, 505 U.S. at 348; see

also Tong v. Lumpkin, 90 F.4th 857, 864 (5th Cir. 2024) (“Sawyer limited this

exception to situations where alleged constitutional errors only affected the

applicant’s eligibility for the death penalty under state statutory law. In other words,

innocence claims under Sawyer “are limited to arguments that ‘no reasonable juror

would have found the petitioner eligible for the death penalty under the applicable

state law,’ i.e., the elements of the crime itself and the existence of aggravating

circumstances.”). Memorandum Opinion, D.E. 61, at 30-31, Pet. App. at 30a-31a,

ROA.16460-16461.

Numerous federal and state courts also hold that innocence claims under

Sawyer “are limited to arguments that ‘no reasonable juror would have found the

petitioner eligible for the death penalty under the applicable state law,’ i.e., the

elements of the crime itself and the existence of aggravating circumstances.” CuestaRodriguez v. Carpenter, 916 F.3d 885, 906 (10th Cir. 2019); see also Gilbert v. United

States, 640 F.3d 1293, 1320 (11th Cir. 2011); Sibley v. Culliver, 377 F.3d 1196, 1205

(11th Cir. 2004); Tong v. Lumpkin, 90 F.4th 857, 864 (5th Cir. 2024) (“According to

the TCCA, § 5(a)(3) ‘more or less’ adopted the Supreme Court's actual innocence of

the death penalty rule in Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d

13

269 (1992). Ex parte Blue, 230 S.W.3d 151, 159-60 (Tex. Crim. App. 2007). Sawyer

limited this exception to situations where alleged constitutional errors only ‘affect[ed]

the applicant's eligibility for the death penalty under state statutory law.’ Blue, 230

S.W.3d at 161.”)

The Texas Court of Criminal Appeals does not afford the Eighth Amendment

Tison and Enmund prohibitions on imposition of the death penalty the same

protections under state law as they do this Court’s Atkins and Roper Eighth

Amendment prohibitions, as stated in Ex Parte Blue, 230 S.W.3d at 161-62. In a

concurring opinion in another Texas capital case, Texas Court of Criminal Appeals

Justice Alcala noted that the Texas capital murder special issue jury findings made

there, the same made in a general verdict in Sales’ case, that the defendant

“anticipated that a human life would be taken,” does not meet the requirements of

Tison and Enmund:

At first blush, the jury's finding in this case appears to have met

the Tison requirements, but it likely did not. The jury instructions did

comport with Tison's requirement that a death sentence may be

appropriate when the defendant exhibits a subjective reckless

indifference to human life, but it failed to include the additional

requirement that there be evidence of “major participation in the felony

committed.” Id. at 158, 107 S.Ct. 1676. As described above, the guiltinnocence instructions permitted the jury to convict applicant as a party

even if the evidence showed much less than “major participation” in the

robbery. See id. More specifically, the jury instructions permitted the jury

to convict applicant even for minimal participation in the robbery based

on evidence that (1) he intended to promote and assist his codefendant to

commit robbery, and (2) he “was acting with and aiding, or attempting

to aid” his co-defendant. Thus, it is arguable that the jury instructions

in this case failed to comport with the Tison standard because they failed

to require that applicant's participation in the offense be more than

minor.

Perhaps one might suggest that I should not concern myself with

14

the fact that applicant's death sentence appears to be unconstitutional

under Tison because applicant should have raised this claim at some

earlier stage of his post-conviction challenges and he is now procedurally

barred from raising this challenge. I, however, would disagree with that

suggestion. I would hold that Tison spells out the same type of

categorical ban on the death penalty for certain individuals much in the

same way as Atkins has for intellectually disabled offenders. See Atkins

v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Applying the same reasoning that applies in the Atkins context,

applicant may be actually innocent of the death penalty because he may

be categorically ineligible for that punishment under the particular facts

of this case. I would consider treating Tison claims much like this Court

has treated intellectual disability claims that should have been raised

in earlier proceedings by permitting relief on those claims when they are

proven by clear and convincing evidence. See Ex parte Blue, 230 S.W.3d

151, 163 (Tex.Crim.App.2007) (permitting consideration of otherwise

procedurally barred Atkins claim if applicant could make “threshold

showing” of evidence that would be “at least sufficient to support an

ultimate conclusion, by clear and convincing evidence, that no rational

factfinder would fail to find mental retardation”).

Ex parte Wood, 498 S.W.3d 926, 928-29 (Tex. Crim. App. 2016) (Alcala, J., concurring)

(emphasis added).

These conflicts among the State and federal courts in applying this Court’s

Sawyer actual innocence of the death penalty exception justify this Court granting

certiorari to settle this conflict among the lower state and federal courts, in the most

serious cases under the Eighth Amendment where capital punishment is implicated.

The ongoing conflict now existing among state and federal courts on whether

Sawyer’s actual innocence exception is limited solely to state law grounds for

eligibility for a death sentence, or includes some, or all, of the federal Eighth

Amendment limitations on imposing the death penalty, such as that found in

Enmund and Tison implicated here, are further exposed by this Court’s application

of the Sawyer actual innocence exception to guilt of a federal criminal statute, use a

15

firearm under 18 U.S.C. § 924(c)(1). Bousley v. United States, 523 U.S. 614, 624, 118

S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citing Sawyer v. Whitley, 505 U. S. 333, 339

(1992)).

B.

Reasonable Jurists Could Debate Whether the Sawyer v. Whitely

Actual Innocence-Miscarriage of Justice Exception Applies Here.

In Sawyer v. Whitely10 this Court established its actual innocence of the death

penalty/miscarriage of justice exception excusing the procedural default of federal

constitutional claims, which the Fifth Circuit held Sales did not meet. To qualify for

the exception the petitioner must show, “by clear and convincing evidence that but

for constitutional error, no reasonable juror would find him eligible for the death

penalty” meaning “the existence of those facts which are prerequisites under state or

federal law for the imposition of the death penalty.’ 945 F.2d, at 820 (footnotes

omitted) 11.” Sawyer, 505 U.S. at 346 (emphasis added). The Sawyer opinion clarified

that “We agree with the Courts of Appeals for the Fifth and Eleventh Circuits that

the “actual innocence” requirement must focus on those elements which render a

defendant eligible for the death penalty, and not on additional mitigating evidence

which was prevented from being introduced as a result of a claimed constitutional

error.” Sawyer, 505 U.S. at 347. The Fifth Circuit’s Sawyer decision, at 945 F.2d, at

820, which this Court adopted in Sawyer v. Whitely, contains at footnote 14, a list of

some of the then-existing federal Eighth Amendment eligibility requirements barring

imposition of a death sentence, specifically citing to among others Tison and Enmund,

10 Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

11 Sawyer v. Whitley, 945 F.2d 812 (5th Cir. 1991).

16

and that would qualify for the actual innocence of the death penalty exception

adopted by this Court in Sawyer. The Fifth Circuit’s Sawyer footnote 14 held

There are several circumstances under which the death penalty

is unavailable as a matter of constitutional law. See, e.g., Thompson v.

Oklahoma, 487 U.S. 815, 857-78, 108 S.Ct. 2687, 2711, 101 L.Ed.2d 702

(1988) (O'Connor, J., concurring) (persons under 16 years of age when

they commit capital offense cannot receive death penalty unless

legislature clearly includes them by setting a lower minimum age);

Tison v. Arizona, 481 U.S. 137, 157-58, 107 S.Ct. 1676, 1688, 95 L.Ed.2d

127 (1987) (minor participation in felony underlying felony murder

conviction cannot support death penalty absent finding that defendant

exhibited at least reckless disregard for human life); Ford v.

Wainwright, 477 U.S. 399, 409, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335

(1986) (Constitution prohibits executing death sentences of insane

persons for the duration of their insanity); Coker v. Georgia, 433 U.S.

584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality) (rape

conviction cannot serve as basis for death sentence).

Sawyer v. Whitley, 945 F.2d at 820 at n.14.

Sales’ jury was instructed at his guilt trial on the Texas law of parties as

follows:

All persons are parties to an offense who are guilty of acting

together in the commission of the offense. A person is criminally

responsible as a party to an offense if the offense is committed by his

own conduct, by the conduct of another for which he is criminally

responsible, or by both.12

A person is criminally responsible for an offense committed by the

conduct of another if, acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or

attempts to aid the other person to commit the offense. Mere presence

alone will not constitute one a party to an offense.

If, in the attempt to carry out a conspiracy to commit one felony,

another felony is committed by one of the conspirators, all conspirators

are guilty of the felony actually committed, though having no intent to

commit it, if the offense was committed in furtherance of the unlawful

purpose and was one that should have been anticipated as a result of

the carrying out of the conspiracy.13

ROA.1675.

12 Tex. Penal Code § 7.01.

13 Tex. Penal Code § 7.02.

17

In Salinas v. State,14 the Texas Court of Criminal Appeals stated the elements

for criminal liability for the acts of others under the Texas law of party liability:

“Evidence is sufficient to convict under the law of parties

where the defendant is physically present at the

commission of the offense and encourages its commission

by words or other agreement.” Ransom v. State, 920 S.W.2d

288, 302 (Tex. Crim. App.1994). Party participation may be

shown by events occurring before, during, and after the

commission of the offense, and may be demonstrated by

actions showing an understanding and common design to

do the prohibited act. Id.

In Gross v. State,15 the Texas Court of Criminal Appeals found the evidence

insufficient to sustain the defendant's conviction for murder under the law of parties

where the defendant was physically present at the murder scene and driving when

he engaged in a roadside verbal altercation with the murder victim, had parked his

car when his brother-in-law grabbed a shotgun inside defendant’s car, and intervened

in the continuing roadside verbal altercation by shooting the victim with the

defendant’s shotgun while defendant was present. After the shooting the defendant

fled the scene with his brother-in-law the shooter, and allowed the brother-in-law to

leave with the murder weapon. Appellant was later arrested, denied involvement

when questioned, and failed to mention the involvement of his brother-in-law. The

Court of Criminal Appeals held that

Here, like the defendant in Ransom,16 Appellant was present at

the scene and the weapon was in his possession. On the other hand, in

Ransom there was considerably more circumstantial evidence indicating

a prior or contemporaneous plan to rob the victim; the defendant agreed

14 Salinas v. State, 163 S.W.3d 734, 739-40 (Tex. 2005).

15 Gross v. State, 380 S.W.3d 181, 187 (Tex. Crim. App. 2012)

16 Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1996).

18

to join the robbery scheme, and he recruited a friend to assist in the

crime. Although it was probable that the defendant was the primary

actor, the evidence that he participated in the crime was substantial

enough to support the jury's inference of guilt as a party to the offense.

In Guevara,17 the defendant lied to the police about his knowledge

of the crime, and he concealed evidence. Here, Appellant initially denied

involvement, and he served as a getaway driver for Jones as Jones took

the gun away from the scene. However, the evidence against Guevara

was much stronger than that against Appellant. For example, Guevara

had both financial and personal motives to have his wife killed. He

provided the weapon, an alibi, and access to the home. After the offense,

he lied to the police and attempted to conceal evidence. The jury could

reasonably conclude, based on Guevara's actions prior to and after the

shooting, that he was involved with the murder of his wife.18

The Fifth Circuit’s decision denying Sales a certificate of appealability for his

Sawyer actual innocence of the death penalty claim under Tison and Enmund cited

Guevara v. State19 as authority that Texas law allows conviction for Section 7.02(a)

party liability for crimes committed by others, even where the defendant is not

physically present at the commission of the offense and acting to encourages its

commission by words or other agreement. A close reading of the Guevara case, and

the TCCA’s subsequent interpretation of its holding in Guevara, shows that the

TCCA did not deviate from its consistent holdings in Salinas and Ransom, decided

both before and after Guevara, that “Evidence is sufficient to convict under the law

of parties where the defendant is physically present at the commission of the offense

and encourages its commission by words or other agreement.” Ransom, 920 S.W.2d

at 302. In Guevara, the evidence showed that the defendant Guevara drove his

mistress the morning of the murder to the apartment Guevara shared with his wife,

17 Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004).

18 Gross v, 380 S.W.3d at 187-88.

19 Guevara v. State, 152 S.W.3d at 51-51.

19

and provided access to the apartment so that his mistress could lie in wait and later

murder Guevara’s wife inside the apartment, while Guevara was away from the

apartment playing golf in order to create an alibi. Guevara, 152 S.W.3d at 50-51.

By providing his mistress the weapon, an alibi, and access to the home by

giving her a key and driving her the morning of the murder so that the mistress could

enter the Guevara family apartment and lie in wait before murdering his wife,

Guevara was physically present at the scene and acting in assisting his mistress in

committing the murder. “During the trial, the State claimed that Velia had been lured

from her apartment with a phone call so Salinas could surreptitiously enter the

Guevara's apartment using a key from the appellant. There was no sign of forced

entry into the apartment, nor was anything stolen, despite the obvious presence of

valuables. The lack of evidence of burglary suggested that the murder was premeditated, not a robbery gone bad.” Guevara, 152 S.W.3d at 51. As the TCCA in Gross

found, Guevara “provided the weapon, an alibi, and access to the home,” 380 S.W.3d

at 187-88.

Although Gross was present at the murder scene, the TCCA found the evidence

insufficient under the law of parties to sustain the murder conviction because there

was no evidence that Gross assisted or encouraged the shooter to kill the victim while

Gross was also present at the crime scene: “the very least that is required is

encouragement of the commission of the offense by words or by agreement made prior

to or contemporaneous with the act.” Gross, Id. at 188. “Although Appellant's

presence at the scene may contribute to a finding of guilt, mere presence, even when

20

coupled with flight from the scene, is insufficient to support a conviction as a party to

the murder. There must be other facts to show that the accused participated in the

offense” for the defendant to be liable as a party under Texas law for the criminal acts

of others, and thus the TCCA found the evidence “legally insufficient to support

Appellant’s conviction for murder as a party.” Gross, Id. at 188. See also Ex Parte

Thompson, 179 S.W.3d 549, 552 and n. 7 (Tex. Crim. App. 2005) (“Thus, applicant

could be found guilty of capital murder under Section 7.02(a) if he had the intent to

kill someone during this aggravated robbery, and (1) he caused or aided a totally

innocent person to shoot and kill Mr. Rahim, or (2) he solicited, encouraged, directed,

or aided Sammy Butler to commit capital murder. Put another way, the evidence must

show that, at the time of the offense, the parties were acting together, each contributing

some part toward the execution of their common purpose. Ransom v. State, 920 S.W.2d

288, 302 (Tex.Crim.App.1994).”) (emphasis added). Salinas, Gross, and Ex Parte

Thompson all post-date Guevara, and each apply the holding of Ransom v. State that

the “evidence must show that, at the time of the offense, the parties were acting

together, each contributing some part toward the execution of their common purpose.”

Ransom, Id. at 302 (emphasis added). In Ransom, the Court of Criminal Appeals

found that a law of parties jury charge was appropriate only because “the evidence

was sufficient to show that appellant was present at the crime scene and aided the

commission of the robbery-murder. The trial court was justified in submitting a

parties instruction.” Ransom, Id. at 302.

Texas case law on the law of parties before Guevara held the same. “Evidence

21

is sufficient to convict the defendant under the law of parties where he is physically

present at the commission of the offense, and encourages the commission of the offense

either by words or other agreement. Tarpley v. State, 565 S.W.2d 525

(Tex.Cr.App.1978.) The agreement, if any, must be before or contemporaneous with

the criminal event. Urtado v. State, 605 S.W.2d 907 (Tex.Cr.App.1980). To convict

someone as a party to an offense, the evidence must show that at the time of the offense

the parties were acting together, each doing some part of the execution of the common

purpose. Brooks v. State, 580 S.W.2d 825 (Tex.Cr.App.1979).” Cordova v. State, 698

S.W.2d 107, 111 (Tex. Crim. App. 1985) (emphasis added).

Sales was convicted in a general verdict that allowed his conviction under §

7.02(a) party liability, and 7.02(b) conspiracy liability. “A conviction based on a

general verdict is subject to challenge if the jury was instructed on alternative

theories of guilt and may have relied on an invalid one. See Stromberg v. California,

283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Yates v. United States, 354 U.S. 298,

77 S.Ct.1064, 1 L.Ed.2d 1356 (1957).” Hedgpeth v. Pulido, 555 U.S. 57, 58, 129 S. Ct.

530, 172 L.Ed.2d 388 (2008). Because Sales’ jury instructions allowed Sales to be

convicted of capital murder as a party for the undisputed murder personally

committed by Ostine when Sales was not present at the murder scene, and neither

did the undisputed facts show that “at the time of the offense, the parties were acting

together, each contributing some part toward the execution of their common purpose”

because Sales was not “physically present at the commission of the offense and

encourages its commission by words or other agreement”, Ransom, 920 S.W.2d at 302,

22

Sales’ guilt for capital murder was rendered in a general verdict where the “jury was

instructed on alternative theories of guilt and may have relied on an invalid one.”

Hedgpeth v. Pulido, 555 U.S. at 58.

The only valid theory of guilt under Sales’ general verdict was for § 7.02(b)

conspiracy liability. Sales’ jury, to find Sales guilty under Penal Code § 7.02(b)

“conspiracy liability”, was instructed that if “in the attempt to carry out a conspiracy

to commit one felony [the retaliation of Butler], another felony is committed by one of

the conspirators, all conspirators are guilty of the felony actually committed, though

having no intent to commit it [the felony actually committed by Ostine of murder] if

the offense was committed in furtherance of the unlawful purpose and was one that

should have been anticipated as a result of the carrying out of the conspiracy.” Guilt

phase jury instructions, at p. 3, ROA.1675 (emphasis added). Thus, Sales’ guilt jury

necessarily only lawfully found under the jury instructions given them and under

controlling Texas law that Sales had no intent to commit the murder Ostine

committed, but that Ostine’s murder of Butler should have been anticipated as a

result of the carrying out of the retaliation conspiracy charged in the jury

instructions. Sales’ indictment had charged that Sales himself personally killed the

victim Butler by shooting him, Indictment, ROA.1549,20 a fact that no party claimed

20 “The duly organized Grand Jury of Harris County, Texas, presents in the District

Court of Harris County, Texas, that in Harris County, Texas, TARUS VANDELL

SALES, hereafter styled the Defendant, heretofore on or about JULY 21, 2000, did

then and there unlawfully, while in the course of committing and attempting to

commit the RETALIATION of TYRON BUTLER, intentionally cause the death of

TYRON BUTLER by SHOOTING TYRON BUTLER WITH A DEADLY WEAPON,

NAMELY A FIREARM.” Indictment, ROA.1549.

23

to be the evidence at trial, where it was undisputed by the parties that Ostine

personally murdered Butler, and that Sales was not physically present at the murder

scene.

A later state appellate or trial court finding cannot contradict this mental state

finding necessarily made by Sales’ jury under the instructions they were given

without violating the right to trial by jury.

As we held in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078,

124 L.Ed.2d 182 (1993), a criminal defendant is constitutionally entitled

to a jury verdict that he is guilty of the crime, and absent such a verdict

the conviction must be reversed, ''no matter how inescapable the

findings to support that verdict might be.'' Id., at 279, 113 S.Ct., at 2082.

A jury verdict that he is guilty of the crime means, of course, a verdict

that he is guilty of each necessary element of the crime. United States v.

Gaudin, 515 U.S. ----, ---- - ----, 115 S.Ct. 2310, 2319-20, 132

L.Ed.2d 444 (1995).

The absence of a formal verdict on this point cannot be rendered

harmless by the fact that, given the evidence, no reasonable jury would

have found otherwise. To allow the error to be cured in that fashion

would be to dispense with trial by jury. ''The Sixth Amendment requires

more than appellate speculation about a hypothetical jury's action, or

else directed verdicts for the State would be sustainable on appeal; it

requires an actual jury finding of guilty.'' Sullivan, supra, at 280, 113

S.Ct., at 2082.

California v. Roy, 519 U.S. 2, 6-7, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (Scalia,

Ginsburg, J., concurring). In Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed.

644 (1948), this Court held that the inadequacy of a jury's findings on the issue of

guilt or innocence may not be corrected by an appellate court.

The jury's central obligation under the Due Process Clause is to

determine whether the State has proved each element of the offense

charged beyond a reasonable doubt. See Sandstrom v. Montana, supra;

In re Winship, supra. The Constitution assigns this function “solely to

the jury.” Sandstrom, 442 U.S., at 523, 99 S.Ct., at 2459. This duty

cannot be interfered with, see Ulster County Court v. Allen, 442 U.S.

140, 169, 99 S.Ct. 2213, 2231, 60 L.Ed.2d 777 (1979) (POWELL, J.,

24

dissenting), nor delegated to another entity. “Findings made by a judge

cannot cure deficiencies in the jury's finding as to the guilt or innocence

of a defendant resulting from the court's failure to instruct it to find an

element of the crime. See Connecticut v. Johnson, 460 U.S. 73, 95, and

n. 3 [103 S.Ct. 969, 982, and n. 3, 74 L.Ed.2d 823] (1983) (POWELL, J.,

dissenting).” Cabana v. Bullock, 474 U.S. 376, 384-385, 106 S.Ct. 689,

696, 88 L.Ed.2d 704; see also Cole v. Arkansas, 333 U.S., at 202, 68 S.Ct.,

at 517. The Constitution does not allow an appellate court to arrogate to

itself a function that the defendant, under the Sixth Amendment, can

demand be performed by a jury.

Rose v. Clark, 478 U.S. 570, 593, 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460 (1986)

(BLACKMUN, J., dissenting), adopted in Sullivan v. Louisiana, 508 U.S. 275, 27980, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). This is the case unless “a reviewing court

concludes beyond a reasonable doubt that the omitted elements were uncontested and

supported by overwhelming evidence.” Neder v. United States, 527 U.S. 1, 17, 119

S.Ct. 1827 (1999). Here, as argued, the general verdict is inadequate under state law

for § 7.02(a) party liability, and the jury made affirmative and not omitted findings

under § 7.02(b) conspiracy liability, so this Court’s Neder holding is not implicated,

and could not be harmless regardless because the evidence was both contested and

was not overwhelming.

While this Court in Cabana v. Bullock21 allowed state courts to make the

Eighth Amendment factual findings required by Enmund and Tison,22 for imposition

of a death sentence, where state law itself does not require that juries make the

factual findings, Cabana itself recognized that where state law allows for jury factual

findings on mental states or other necessary facts under state law, state appellate

21 Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986).

22 Tison, 481 U.S. at 158.

25

courts may not thereafter find facts the jury was entitled to make but did not, nor

make contrary factual findings that contravene factual findings the jury did make.

Cabana, 474 U.S. at 385 and n.3, at 387 and n.4; accord, Sullivan, 508 U.S. at 27980, supra (adopting Justice Blackmun’s dissent in Rose v. Clark). “It is as much a

violation of due process to send an accused to prison following conviction of a charge

on which he was never tried as it would be to convict him upon a charge that was

never made. To conform to due process of law, petitioners were entitled to have the

validity of their convictions appraised on consideration of the case as it was tried and

as the issues were determined in the trial court.” Cole v. Arkansas, 333 U.S. at 20102. Cabana footnote Four recognized Justice Blackmun’s concerns in his Cabana

dissent that where state law creates for the defendant a liberty interest in having the

jury make particular fact findings, the Due Process Clause implies that appellate

court findings do not suffice to protect that entitlement.

In Presnell, the defendant was convicted on charges of murder

and kidnaping with bodily injury, and was sentenced to death by the

jury. The sole aggravating factor supporting the death penalty for

murder was that the defendant was also guilty of kidnaping with bodily

injury. The Georgia Supreme Court found that the jury had been

wrongly instructed on the elements of kidnaping with bodily injury, but

affirmed both the conviction for that crime and the use of the crime as

an aggravating factor on the ground that the evidence was sufficient to

support the jury's findings under a theory on which the jury had not

been instructed. We set aside both the conviction and the death sentence

on the authority of Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed.

644 (1948), which held that it was constitutional error for a state court

to affirm a conviction for one offense on the basis of evidence in the

record indicating that the defendant had committed another offense on

which the jury had not been instructed.

Cabana, 474 U.S. at 387 n.4; Id. at 385 n.3 (“[S]uch cases as Cole v. Arkansas, 333

26

U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), hold that the inadequacy of a jury's

findings on the issue of guilt or innocence may not be corrected by an appellate court”

but finding that the Enmund facts do “not supply a new element of the crime of capital

murder that must be found by the jury”.)

The retaliation conspiracy theory for capital murder that Sales’ guilt jury was

charged with under the Texas law of parties stated:

A person commits the offense of retaliation if he intentionally or

knowingly harms or threatens to harm another by an unlawful act in

retaliation for or on account of the service or status of another as a

witness or prospective witness; or a person who has reported, or who

the actor knows intends to report the occurrence of a crime.

1 CR 129, ROA.1673

Or;

If find from the evidence beyond a reasonable doubt that on the

occasion in question the defendant entered into an agreement with

Herschel Ostine to commit the felony offense of retaliation of Tyron

Butler, as alleged in this charge, and pursuant to that agreement they

did carry out their conspiracy, and while in the course of committing

said conspiracy, Herschel Ostine intentionally caused the death of

Tyron Butler by shooting Tyron Butler with a deadly weapon, namely

a firearm, and the death of Tyron Butler was an offense that should

have been anticipated by the defendant as a result of carrying out the

conspiracy, and unless you so find, then you cannot convict the

defendant of the offense of capital murder. 1 CR 132, ROA.1676

(emphasis added).

Sales’ jury was asked to answer Special Issue No. 2 in a general verdict.

SPECIAL ISSUE NO.2

Do you find from the evidence beyond a reasonable doubt that

Tarus Vandell Sales, the defendant himself, actually caused the death

of Tyron Butler, on the occasion in question, or if he did not actually

cause the death of Tyron Butler, that he intended to kill Tyron Butler,

or that he anticipated that a human life would be taken?

ANSWER

We, the jury, unanimously find and determine beyond a

reasonable doubt that the answer to this Special Issue is “YES.”

ROA.1708

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Reasonable jurists could debate the Fifth Circuit’s decision finding that jurists

of reason could not debate the district court’s rejection of Sales’s underlying EnmundTison claim. The Fifth Circuit in this case held

In any event, even if jurists of reason could debate the district court’s

procedural ruling, jurists of reason could not debate the district court’s

rejection of Sales’s underlying Enmund-Tison claim. In Texas, a jury

cannot recommend a death sentence without first answering the socalled “antiparties” special issue. That special issue asks the jury to

decide whether the “defendant actually caused the death of the

deceased or did not actually cause the death of the deceased but

intended to kill the deceased or another or anticipated that a human

life would be taken.” Tex. Code Crim. Proc. art. 37.071 § 2(b)(2); see

also Tex. Pen. Code §§ 7.01, 7.02. The jury answered this special issue

“yes.” ROA.16682. And our precedent holds that answer to the antiparties special issue meets the “reckless indifference” requirement

imposed by Tison. See Foster v. Quarterman, 466 F.3d 359, 370 (5th

Cir. 2006).* Thus, jurists of reason could not debate the district court’s

resolution of the underlying Enmund-Tison claim in any event.

Sales v. Guerrero, No. 25-70018 (Fifth Cir. May 14, 2026), at *3-4.

Reasonable jurists could debate both the Fifth Circuit and the district court’s

rejection of Sales’ Enmund-Tison claim because this Court itself rejected in Tison the

Fifth Circuit’s analysis in Foster v. Quarterman used to deny Sales’ claim.

The Foster v. Quarterman holding underlying the Fifth Circuit’s decision

denying Sales’ claim stated:

[I]t appears the Court of Criminal Appeals upheld Foster's death–

sentence on a flawed legal theory, based on its 1995 decision in Lawton.

As noted supra, the Court of Criminal Appeals held that, before

convicting Foster, the jury had to determine he specifically intended

either to murder Michael LaHood or promote or assist in that murder.

The cases Lawton cites (for example, Tucker v. State, 771 S.W.2d 523,

530 (Tex. Crim. App. 1988)) discuss the § 7.02(a) instruction, which

states a defendant tried for capital murder as an accomplice is death–

penalty eligible only if he intended to promote or assist in the

commission of a capital murder. Tex. Penal Code § 7.02(a).

28

Foster's jury was instructed pursuant to both §§ 7.02(a) and (b).

Section 7.02(b) does not require the same level of intent. It allowed the

jury to convict Foster if it found he should have anticipated a

coconspirator might commit murder, even if Foster did not intend for

that murder to occur. Tex. Penal Code § 7.02(b). Therefore, the Court of

Criminal Appeals erred by relying on Lawton23 to uphold Foster's death

sentence.

As discussed, our review does not end merely because the state

court's decision was based on flawed reasoning. Neal v. Puckett, 286 F.3d

230, 246 (5th Cir. 2002) (federal habeas court reviews only a state court's

decision, not the reasoning behind that decision), cert. denied, 537 U.S.

1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). Therefore, as in Clark, we

examine the entire state-court record to determine whether any state

court made the requisite Enmund/Tison findings: (1) that Foster played

a major role in the criminal activities leading to Michael LaHood's

death; and (2) that he displayed reckless indifference to human life.

Addressing the second required finding first, and as the district

court held, Foster obviously displayed reckless indifference to human

life. The jury found as much when it answered the earlier described

special issue in the affirmative (the jury could not answer that issue in

the affirmative unless it found, at a minimum, Foster anticipated a life

would be taken).

Foster v. Quarterman, 466 F.3d at 370 (emphasis in original).

The Fifth Circuit’s Foster v. Quarterman precedent therefore equates the jury

finding in the punishment special issues that Sales “anticipated” a life would be taken

as equivalent to displaying “reckless indifference to human life.” But Tison itself

explicitly rejected this equivalence, finding that the Arizona jury instruction

requiring a finding of “anticipating” a life would be taken was instead “a species of

foreseeability” that was not equivalent to intent to kill or reckless indifference to

human life. The Arizona death penalty statute at issue in Tison required a jury

finding of “anticipated a life would be taken” just as Sales’ Texas jury was instructed

and found.

23

Lawton v. State, 913 S.W.2d 542, 555 (Tex. Crim. App. 1995).

29

The Arizona Supreme Court did not attempt to argue that the

facts of this case supported an inference of “intent” in the traditional

sense. Instead, the Arizona Supreme Court attempted to reformulate

“intent to kill” as a species of foreseeability. The Arizona Supreme

Court wrote:

“Intend [sic] to kill includes the situation in which the

defendant intended, contemplated, or anticipated that

lethal force would or might be used or that life would or

might be taken in accomplishing the underlying felony.”

142 Ariz., at 456, 690 P.2d, at 757.

This definition of intent is broader than that described by the Enmund

Court. Participants in violent felonies like armed robberies can

frequently “anticipat[e] that lethal force . . .might be used . . . in

accomplishing the underlying felony.” Enmund himself may well have

so anticipated. Indeed, the possibility of bloodshed is inherent in the

commission of any violent felony and this possibility is generally

foreseeable and foreseen; it is one principal reason that felons arm

themselves. The Arizona Supreme Court's attempted reformulation of

intent to kill amounts to little more than a restatement of the felonymurder rule itself. Petitioners do not fall within the “intent to kill”

category of felony murderers for which Enmund explicitly finds the

death penalty permissible under the Eighth Amendment.

Tison v. Arizona, 481 U.S. 137, 150-151.

This Court then vacated the Tison brothers’ death sentences and remanded for

a factual determination by the Arizona state courts of whether the Tison brothers

exhibited “reckless indifference to human life”, despite the jury’s finding in a general

verdict that the Tison brothers “anticipated that lethal force would or might be used

or that life would or might be taken in accomplishing the underlying felony.” Tison,

Id. This Court held that the Arizona state courts had already factually found in their

written opinions that the Tison brothers had been major participants in the felony

committed (the kidnapping that ended in the murder of the four family members

30

killed by their father Gary Tison24).

Rather, we simply hold that major participation in the felony

committed, combined with reckless indifference to human life, is

sufficient to satisfy the Enmund culpability requirement. The Arizona

courts have clearly found that the former [major participation in the

felony committed] exists; we now vacate the judgments below and

remand for determination of the latter [reckless indifference to human

life] in further proceedings not inconsistent with this opinion. Cabana

v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986).

Tison, 481 U.S. at 158.

The Fifth Circuit’s decision in Sales’ case that Sales’ jury finding that Sales

“‘anticipated that a human life would be taken.’ Tex. Code Crim. Proc. art. 37.071 §

2(b)(2); see also Tex. Pen. Code §§ 7.01, 7.02.”, and that Fifth Circuit “precedent holds

that answer to the anti-parties special issue meets the ‘reckless indifference’

requirement imposed by Tison. See Foster v. Quarterman, 466 F.3d 359, 370 (5th Cir.

2006)” is directly contrary to this Court’s holding in Tison, that “anticipat[ing] life

would or might be taken in accomplishing the underlying felony” “do[es] do not fall

within the ‘intent to kill’ category of felony murderers for which Enmund explicitly

finds the death penalty permissible under the Eighth Amendment,” Tison, Id. at 15051, and neither is it equivalent to “reckless indifference to human life.” Tison, Id. at

158. This Court vacated the judgments and remanded to the Arizona state courts for

determination of “reckless indifference to human life” in further proceedings

under Cabana. Tison, Id. at 158.

Reasonable jurists could thus debate this part of the Fifth Circuit’s decision,

24 “Gary Tison, the central figure in this tragedy, the man who had his family

arrange his and Greenawalt's escape from prison, and the man who chose, with

Greenawalt, to murder this family while his sons stood by.” Tison, 481 U.S. at 159

(Brennan, J., dissenting).

31

as this Court did in Tison.

Reasonable jurists could also debate the Fifth Circuit’s decision stated in a

footnote on page four of its decision denying Sales a certificate of appealability, where

it held:

Sales attempts to avoid this result by arguing that Texas Penal Code §

7.02(a) requires the defendant’s physical presence at the crime scene to

support a party-liability conviction. Because Sales was not physically

present, he reasons that he was not a “major participant” in the

murder and hence cannot be sentenced to death under Enmund and

Tison. See Tison, 481 U.S. at 158 (holding defendant must be a “major

participant”). This contention rests on a misconstruction of state law.

Section 7.02(a) does not require the defendant’s physical presence. See

Guevara v. State, 152 S.W.3d 45, 51–52 (Tex. Crim. App. 2004) (“[T]he

Penal Code does not require that the party actually participate in the

commission of the offense to be criminally responsible,” and it “also

does not require that a party to the crime be physically present at the

commission of the offense.” (emphasis added)). The evidence in the

state court record amply shows that Sales was a “major participant” in

the murder, and hence jurists of reason could not debate the district

court’s rejection of his claims under Enmund and Tison (even if that

claim was not defaulted, which it was).

The Fifth Circuit misconstrued Sales’ argument and the state court findings.

The state habeas court factually found that Sales was not a participant in the murder,

naming the direct participants: “112. Of all the direct participants in the

complainant's murder (i.e., Ostine, Darfour, Kissentaner).” Pet. App. at 97a;

ROA.32066. The state habeas court also found

Conclusion of Law 8. The trial evidence established the applicant

as both a party to capital murder, and as a coconspirator to capital

murder for conspiring to retaliate against the complainant. Similarly,

Ostine was guilty as a direct actor, a party, and a co-conspirator. Tex.

Penal Code § 7.02. Pet. App. at 110a; ROA.32079.

The state habeas court’s conclusion of law that the trial evidence established

32

Sales as both a party and a co-conspirator to capital murder suffers from the problem

that the jury made findings on a general verdict, answering “We, the Jury, find the

defendant, Tarus Vandell Sales, guilty of capital murder, as charged in the

indictment" to the guilt question. ROA.1692, and that § 7.02(a) party liability and §

7.02(b) conspiracy liability have differing mental states for guilt, and it is not

established which mental state the jury agreed defendant had.

In addition, § 7.02(a) party liability requires that “at the time of the offense, the

parties were acting together, each contributing some part toward the execution of their

common purpose” and the defendant be “physically present at the commission of the

offense and encourages its commission by words or other agreement”. Ransom, 920

S.W.2d at 302; Thompson, 179 S.W.3d at 552 and n. 7 (“Thus, applicant could be

found guilty of capital murder under Section 7.02(a) if he had the intent to kill

someone during this aggravated robbery, and (1) he caused or aided a totally innocent

person to shoot and kill Mr. Rahim, or (2) he solicited, encouraged, directed, or aided

Sammy Butler to commit capital murder. Put another way, the evidence must show

that, at the time of the offense, the parties were acting together, each contributing some

part toward the execution of their common purpose. Ransom v. State, 920 S.W.2d 288,

302 (Tex.Crim.App.1994).”) (emphasis added). Salinas, Gross, and Ex Parte

Thompson all post-date Guevara, and each apply the holding of Ransom v. State that

the defendant must be “physically present at the commission of the offense and

encourages its commission by words or other agreement”. Ransom, Id.

33

Sales was convicted in a general verdict, just like the Tison brothers were

under Arizona law, and where as shown above the only valid verdict under state law

was for § 7.02(b) conspiracy liability, and where the jury found a mental state that

Sales “should have anticipated” Ostine would murder the victim. “Anticipate that life

would or might be taken” is “a definition of intent broader than that described by the

Enmund Court,” however, as found by Tison, Id. at 150, and “do[es] not fall within

the "intent to kill" category of felony murderers for which Enmund explicitly finds

the death penalty permissible under the Eighth Amendment.” Tison, Id. at 151. A

jury mental state finding of “anticipated life would be taken” is also not equivalent to

reckless indifference that life would be taken. Tison, Id. at 151. This Court in Tison

found that “each [Tison brother] was actively involved in every element of the

kidnaping-robbery and was physically present during the entire sequence of criminal

activity culminating in the murder of the Lyons family and the subsequent flight. The

Tisons' high level of participation in these crimes… fall well within..major

participation in the felony committed,” Tison, Id. at 158. The state habeas court in

Sales’ case in contrast found that Sales was not a direct participant in the murder of

Butler, much less that he was a major participant in the murder, and the trial

evidence was undisputed that Sales was not physically present during the victim’s

murder, unlike the Tison brothers. Supra.

VIII. CONCLUSION

For the foregoing reasons, Mr. Sales respectfully requests this Court grant

certiorari, and then find after full briefing that reasonable jurists can debate the

34

lower courts’ resolution of Mr. Sales’ Sawyer actual innocence of the death penalty

claim, based on his Eighth Amendment Tison-Enmund claim.

Respectfully Submitted,

/s/ Kenneth McGuire

KENNETH W. MCGUIRE

MCGUIRE LAW FIRM

TEXAS BAR: 00798361

P.O. BOX 79535

HOUSTON, TX 77279

(713) 223-1558

KENNETHMCGUIRE@ATT.NET

Counsel for Petitioner

August 11th, 2026

35