# Opposition Brief — Ortiz v. Texas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1141%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 998

## Text

No. 02-1189 wal
me Ge THE Ot J]

IN THE w
SUPREME COURT OF THE UNITED STATES

RICARDO ORTIZ,
Petitioner,

¥,

THE STATE OF TEXAS,
Respondent.

On Petition for Wnit of Certiorari
to the Court of Criminal Appeals of Texas

RESPONDENT?’S BRIEF IN OPPOSITION

GREG ABBOTT GENA BUNN
Attorney General of Texas Assistant Attorney General
Chief, Capital Litigation Division

BARRY R. McBEE
First Assistant Atterney General *JOHN ANDREW HUTTON
Assistant Attorney General

JAY KIMBROUGH

Deputy Attorney General Capital Litigation Division

For Criminal Justice P. O. Box 12548, Capitol Station
Austin, Texas 78711

*Counsel of Record (512) 936-1600

ATTORNEYS FOR RESPONDENT

ie
CAPITAL CASE

QUESTIONS PRESENTED

Whether a Texas statute which permits the prosecution to
assert a challenge for cause to a prospective capital juror
where “the juror has conscientious scruples in regard to the
infliction of the punishment of death” is facially invalid
under the Sixth Amendment where the state courts have
construed the statute as a basis for disqualification only to
the extent constitutionally permitted by Wainwright v.
Witt, 469 U.S. 412 (1985).

Whether the lower court erred by rejecting Petitioner’s
allegation that his trial attorney rendered ineffective
assistance of counsel when he did not object to the
prosecution’s challenges for cause to thirteen prospective
jurors who indicated that they opposed the death penalty in
all circumstances.

-ii-

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED .......................... i
TABLE OF CURIOS 6 bia ie ee eee ewes il
TABas OF AU Tepe CO 6 os cen obsess bwwueeeeeen V
STATEMENT OF THE CASE ....................... ]
I. SONY TS gon 5k i ee eee l
a Venire member Reid ................... 3
ae Venire member Bonilla ................. 3
» Venire member Berlit .................. 4
4, Venire member Reta ................... 5
5. Venire member Lopez .................. 5
6. Venire member Herrick ................ 7
7. Venire member Escamilla ............... 7
8. Venire member Cortinas ................ 8
u Venire member Estala ................... 9
10 Venire member Portillo ................. 9
11. Venire member Gallegos ............... 10
12. Venire member Palomo ................ 11
13 Venire member Caballero .............. 11
Il. ee Ce eee 12
RTE | kx ke ce cea cbenndteeeeeee ee 13

I. The Questions Presented For Review Are
Unworthy Of The Court’s Attention. ........... 13

liiiliieieaiiieien

-111-

TABLE OF CONTENTS, CONTINUED

Page
II. The Texas Statute Permitting The Prosecution
To Challenge A Prospective Capital Juror For
Cause Where The Juror’ Voices
“Conscientious Scruples” Against The Death
Penalty Is Not Unconstitutional. ............... 4
A. Under the Court of Criminal Appeals’
construction of Article 35.16(b)(1), a
prospective capital juror may only be
disqualified from service based on
“conscientious scruples” where the
juror’s views on capital punishment
would prevent or substantially impair
the performance of her duties............. 15
B. This Court may not consider Ortiz’
allegation that prospective jurors in his
case were improperly excluded under
Witt because the lower court’s
disposition of the claim was based on
an adequate and independent state
procedural ground. ..................... 19
Ii]. The Lower Court Correctly Declined To Find
That Ortiz’? Trial Attorney Had Rendered
Ineffective Assistance Of Counsel Based On
The Record Presented During Direct Appeal. ..... 21

A. The Strickland Standard................. 22

-iv-

TABLE OF CONTENTS, CONTINUED

Page
B. Ortiz has_ failed to demonstrate
that his attorney’s performance fell
below an_ objective standard of
POROUS nn kc eect e ta esewness 23

eee eT eT ee oe ere Terre Ter 26

-\-

TABLE OF AUTHORITIES
Cases Page
Adams v. Texas, 448 U.S. 38 (1980) ................. 15,17
Bell v. Cone, 122 §. Ct. 1843 (2002) .... 02... cece ccens 22

Clark v. State, 881 S.W.2d 682 (Tex. Crim. App. 1994) .... 17
Coleman v. Thompson, 501 U.S. 722 (1991) ........... 20,21
Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. 1998) ..... 20
Cuevas v. State, 742 §.W.2d 331 (Tex. Crim. App. 1987) .. 18
Ex parte Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1998) 24
Ex parte Goodman, 816 S.W.2d 383 (Tex. Crim. App. 1991) 24

Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997) .. 24

Fisher v. Texas, 169 F.3d 295 (Sth Cir. 1999) ............ 20
Haley v. Cockrell, 306 F.3d 257 (Sth Cir. 2002) .......... 20
Harris v. Reed, 489 U.S. 255 (1989) .......0......0005. 20
Herb v. Pitcairn, 324 U.S. 117 (1945) ........0....00005. 20

Holberg v. State, 38 S.W.3d 137 (Tex. Crim. App.),
cert. Gented, S34 U8. S72 GOT) 2. eee neces 18

Houston v. Hill, 482 U.S. 451 (1987) .................. 18

-Vi-
TABLE OF AUTHORITIES, CONTINUED
Cases Page
Jackson v. Johnson, 194 F.3d 641 (Sth Cir. 1999)......... 20

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998) .. 24

Lambrix v. Singletary, 520 U.S. 518 (1997) ........ 19,20,21
Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) .... 24
McFarland v. State, 928 S.W.2d 482

(Fa. CO FO 5 ses cs oe chet saws saan 18
Michigan v. Long, 463 U.S. 1032 (1983) ............. 20,21
Nix v. Whiteside, 475 U.S. 157 (1986) ................06. 22

Penry v. State, 691 S.W.2d 636 (Tex. Crim. App. 1985) ... 17

Ramos v. State, 934 S.W.2d 358
eee FO rere eee 12,18

Robinson v. State, 16 S.W.3d 808 (Tex. Crim. App. 2000) .. 24

Sharp v. Johnson, 107 F.3d 282 (Sth Cir. 1997) .......... 20
Smith v. Cockrell, 311 F.3d 661 (Sth Cir. 2002) .......... 20
Sochor v. Florida, 504 U.S. 527 (1992) .............. 20,21
Strickland v. Washington, 466 U.S. 668 (1984)...... 22,23,25

Styron v. Johnson, 262 F.3d 438 (Sth Cir. 2001),
cert. denied, 534 U.S. 1163 (2002) ................. 20

-Vii-
TABLE OF AUTHORITIES, CONTINUED
Cases Page
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .. 24
Wainwright v. Sykes, 433 U.S. 72 (1977) ..........05... 20
Wainwright v. Witt, 469 U.S. 412 (1985) ............. passim

White v. State, 610 S.W.2d 504 (Tex. Crim. App. 1981) ... 17

Witherspoon v. Illinois, 391 U.S. 510 (1968) ......... passim
(Terry) Williams v. Taylor, 529 U.S. 362 (2000)........ 22,23
United States v. Cofske, 157 F.3d 1 (1st Cir. 1998) ........ 23
United States v. Jake, 281 F.3d 123 (3d Cir. 2002) ........ 23
United States v. King, 119 F.3d 290 (4th Cir. 1997) ....... 23
United States v. Rivas, 157 F.3d 364 (5th Cir. 1998) ...... 23
United States v. Neuhausser, 241 F.3d 460 (6th Cir. 2001),

cert. denied, 534 U.S. 879 (2001) ............... 23
United States v. Evans, 272 F.3d 1069 (8th Cir. 2001),

cert. denied, 535 U.S. 1029 (2002) .............. 23
United States v. Rewald, 889 F.2d 836 (9th Cir. 1989) ..... 23

United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995) .. 23

United States v. Griffin, 699 F.2d 1102 (11th Cir. 1983) ... 23

ee ee ee

-Viii-
TABLE OF AUTHORITIES, CONTINUED
Cases Page
United States v. Richardson, 167 F.3d 621 (D.C. Cir. 1999) 23

Wolfe v. State, 917 S.W.2d 270 (Tex. Crim. App. 1996) ... 18

Constitutions, Statutes and Rules
Sh. i Ag MU WE tes on ck sc eee kecastdarscvan passim

TEX. CRIM. PROC. CODE ANN. art. 35.16(b)(1)
SP CD 6% 6.6 8 68 6 a6 aehee 0 eb ee 6048404 es passim

TEX. PENAL CODE ANN. § 12.31(b) (Vernon 1974)... 15,17,18

ee AU, WE as uence keke oe cae 2 eee eee 13

és

BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI

Petitioner Ricardo Ortiz was convicted and sentenced to
death by a Texas jury for the capital murder of fellow jail inmate
Gerardo Garcia. The Texas Court of Criminal Appeals affirmed
Ortiz’ conviction and death sentence on direct appeal, and he now
seeks certiorari review from this Court. In particular, Ortiz alleges
that the Texas statute governing challenges for cause to
prospective capital jurors who harbor “conscientious scruples”
against the death penalty is facially unconstitutional in light of this
Court’s decisions in Witherspoon v. Illinois, 391 U.S. 510 (1968),
and Wainwright v. Witt, 469 U.S. 412 (1985). He also complains
that his trial attorney rendered ineffective assistance of counsel
when he did not object to the prosecution’s challenges for cause to
thirteen prospective jurors who indicated that they opposed capital
punishment and could not return a death sentence. However, as
discussed below, the Court of Criminal Appeals correctly
concluded that Ortiz’ arguments were without merit. Ortiz does
not present a compelling reason for this Court to review his claims
and certiorari review should be denied.

STATEMENT OF THE CASE

On August 17, 1997, Gerardo Garcia died in the El Paso
County Jail of a massive heroin overdose. The evidence adduced
at trial established that the heroin had been involuntarily-injected
into Garcia by Ortiz, who was a high-ranking member of the Texas
Syndicate prison gang, because Ortiz believed that Garcia had
implicated him in various bank robberies. According to one
witness, Ortiz indicated that he used heroin to kill Garcia in order
to make his death look like a suicide.

I. Jury Selection

Jury selection for Ortiz’ trial began on April 20, 1999. 11
RR 6.' Prior to individual voir dire examination by the parties, the
trial court addressed the assembled venire and discussed various |
questions included on the juror questionnaires. Jd. at 6-97. |
Among other things, the trial court inquired whether any of the |
jurors opposed the death penalty in all cases:

I am now going to ask you some questions
about your convictions regarding the death penalty.
Be assured that I am not now assuming that you
will find the defendant guilty of capital murder or
of any other crime in this case. Nevertheless, it is
necessary to learn your state of mind about capital
punishment in general, to determine whether you
have an open mind as regards what might be a just
and proper sentence in a capital case if the
defendant in that case is found guilty as charged.

So I am asking about your state of mind
regarding capital punishment in general. I am not
asking in this next question what you think would
be a just penalty in this case or any particular case.
... Iam asking, rather, whether for religious or
philosophical or any other reason you believe that
the death penalty should never be inflicted in any
case, regardless of what the evidence might be.

In answering this next question, keep in
mind that the circumstances and motives for the
commission of crimes, including capital murder,
are unlimited. Place a check mark by your answer,
yes or no. Do you have conscientious scruples in
regard to the infliction of death for a person

RR” refers to the “Reporters Record” of transcribed trial
proceedings, preceded by volume number and followed by page numbers.

3

convicted of capital murder? Yes or no?

If you have answered the proceeding
question yes, come up to the bench now.

Id. at 65-66. Twenty venire members came forward in response
to the court’s question and nineteen of those were ultimately
excused from jury service based on the prosecution’s challenge for
cause. /d. at 66-81. Of those nineteen, defense counsel only
raised an objection to the disqualification of two prospective
jurors. Jd. at 77-80.

Of the seventeen jurors excused for cause where defense
counsel did not object, Ortiz cites the testimony of the following
thirteen venire members in his petition for writ of certiorari.

a Venire member Reid
[Defense counsel]: Mr. Reid.
THE COURT: Yes, sir.

[Juror]: In regards to the question you just asked

THE COURT: Yes.

[Juror]: — about the death penalty, I checked on
the yes.

THE COURT: You have conscientious scruples
regarding —

[Juror]: Yes.

THE COURT: Anybody want to ask him any
questions? Take your seat, sir.

State challenge?

[Prosecutor]: Yes.:

-4-

THE COURT: All nmght. Court grants the
challenge. Next person.

11 RR 66-67.

y Be Venire member Bonilla

[Juror]: 57, Elizabeth Bonilla. I think only God
has a right to take someone’s life.

THE COURT: You have conscientious scruples
against infliction of the death penalty in all cases?

Anybody want to ask questions?
[Defense counsel]: No questions.
[Prosecutor]: No.

THE COURT: Take your seat, ma’am.
[Prosecutor]: Challenge.

THE COURT: Court grants the State’s challenge.

11 RR 67.

3. Venire member Berlit

[Juror]: Chris Berlit, B-E-R-L-I-T, number 83. I
do have reservations to the death penalty.

THE COURT: What do you mean by
“reservations?

[Juror]: I’ve been born, raised and educated in
Europe, and I believe that an appropriate
punishment would be life in prison.

THE COURT: The question not really is that. Do
you believe the death penalty unjustified in all
cases?

[Juror]: Yes. Yes, sir.

A.

THE COURT: Questions?
[Prosecutor]: State challenges.

THE COURT: State’s challenge is granted.

11 RR 69.

4. Venire member Reta
[Juror]: Number 127, Diana Reta.
[Prosecutor]: 127, Judge.

[Juror]: And I answered yes to conscientious
scruples in regard to the death penalty.

THE COURT: Is this a religious conviction or —
[Juror]: It’s just a moral, personal —

THE COURT: You’re opposed to the death
penalty in all cases?

[Juror]: Yes, sir.

THE COURT: Questions, State?

[Prosecutor]: No, Your Honor.

THE COURT: Defense?

[Defense counsel]: No questions, Your Honor
THE COURT: Next person.

[Prosecutor]: State is going to challenge that
juror.

THE COURT: Granted.

11 RR 69-70.

-6-

5. Venire member Lopez
[Juror]: 132. Yvonne Lopez.

THE COURT: Ms. Lopez, what is your statement
to the Court?

[Juror]: I would have a problem with the death
penalty.

THE COURT: Anybody would have a problem
with it.

[Juror]: Personally, I would havea problem. Yes,
I’m a Catholic, and only God gives life, and only
God takes away life.

THE COURT: I’m just trying to tell you, it’s a
problem for anybody. But do you have
~ conscientious scruples against the death penalty in

{Jurorj: Yes.

THE COURT: - any and all cases?
[Juror]: Most probably in all cases.
THE COURT: In all cases?

[Juror]: I think so. I’ve never been faced with it,
but | think I would have a problem.

THE COURT: It’s not a question of having a
problem. I’m not trying to —

[Juror]: I answered.

THE COURT: I’m not trying to contradict you.
Anybody that has any sensibility would have a
problem with the issue. The question is, are you
opposed to the death penalty in all cases, regardless

a

of what the facts might show?
[Juror]: Yes.

THE COURT: Questions?
[Prosecutor]: No questions.
[Prosecutor]: No.

[Defense counsel]: No questions.
THE COURT: Take your seat.

[Prosecutor]: State challenges. Judge, State
challenged that last juror.

THE COURT: Allright. Granted. I’ve forgotten
the name.

11 RR 70-72.
6. Venire member Herrick
[Juror]: Jeffery Herrick, 123.

THE COURT: Mr. Herrick, you have — I’m not
going put [sic] words in your mouth.

[Juror]: I’m opposed to the death penalty based
on my convictions as a Quaker.

THE COURT: Is that in any and all cases?
[Juror]: Yes.
THE COURT: Questions?

[Prosecutor]: I think he’d been previously
excused.

[Prosecutor]: No, he was not.

[Juror]: No, I just asked for permission to come in
late.

-8-

THE COURT: Have your seat, sir.

[Prosecutor]: | Move to challenge him, Your

Honor.
THE COURT: Granted.
11 RR 72-73.
Fe Venire member Escamilla

[Juror]; 56, Robert Escamilla.
THE COURT: Yes, sir.
[Juror]: I don’t believe in the death penalty.

THE COURT: You don’t believe it’s justified in
any case?

[Juror]: No, sir.

[Prosecutor]: No questions.

[Defense counsel]: No questions.
[Prosecutor]: He answered affirmatively.

THE COURT: He said he didn’t believe it was
justified tn any case.

[Prosecutor]: We have no questions.
[Prosecutor]: State challenges.
THE COURT: Granted.

11 RR 74.
8. Venire member Cortinas

[Juror]: Dolores Cortinas, juror 97. Sir, I do not
believe in the death penalty.

THE COURT: You do not believe in the death

-9.

penalty for any case whatsoever?
[Juror]: No, sir.
[Prosecutor]: No questions, Your Honor.
[Defense counsel]: No questions.
THE COURT: You may take your seat.
[Prosecutor]: State challenges.
THE COURT: All right. Granted.

11 RR 74-75.
9. Venire member Estala

[Juror]: Andre Estala, number 11. And I do have
a conscientious scruple about this.

THE COURT: What is your statement about the
death penalty?

[Juror]: I don’t believe in it, sir, in any degree.
THE COURT: In any kind of case whatsoever?
[Juror]: That’s correct.

THE COURT: You believe it’s never justified?
[Juror]: Never justified. |

[Prosecutor]: No questions, Your Honor.
[Defense counsel]: No questions.

THE COURT: You may return to your seat.

[Prosecutor]: State moves to challenge.
THE COURT: Granted.
11 RR 75-76.

-10-

10. Venire member Portillo
[Juror]: Jorge Portillo, 154.

THE COURT: You are Jorge Portillo. What is
your statement on the death penalty?

[Juror]: I don’t believe it’s nght.

THE COURT: Never justified under any
circumstances?

[Juror]: Two wrongs do not make a nght, sir.
[Prosecutor]: No questions.

[Defense counsel]: No questions.

THE COURT: You may take a seat.
[Prosecutor]: State challenges.

THE COURT: All right.

[Prosecutor]: Is that granted — I’m sorry — on the
last juror?

THE COURT: Granted.

11 RR 76.
11. Venire member Gallegos
[Juror]: Rose Gallegos, number 112.

THE COURT: Make your statement as regards
the death penalty, Mrs. Gallegos.

[Juror]: As a practicing Catholic, I do not believe
in the death penalty.

THE COURT: You don’t believe it is justified in
any case whatever?

[Juror]: No, sir.

oj].

[Prosecutor]: No questions.
[Defense counsel]: No questions, Your Honor.
THE COURT: Take your seat, please, ma’am.
[Prosecutor]: State will challenge.
THE COURT: You do challenge?
[Prosecutor]: Yes.
THE COURT: Granted.
11 RR 76-77.
12. Venire member Palomo
[Juror]: Number 142.
THE COURT: You are Ms. Palomo?

[Juror]: Yes. I oppose the death penalty. |
believe that the Lord gives us life, and he’s the
only one that’s supposed to —

THE COURT: You’re opposed to the death
penalty, no matter the circumstances?

[Juror]: Yes. Yes.
[Prosecutor]: No questions.
[Defense counsel]: No questions, Your Honor.

THE COURT: Take your seat, please, ma’am.

[Prosecutor]: State challenges this juror.
THE COURT: Granted.

11 RR 77.
13. | Venire member Caballero

[Juror]: Adriana Caballero, 108.

2.

THE COURT: Make your statement as to what —
make your statement. What is your belief about
the death penalty?

[Juror]: I am strongly opposed to the death
penalty.

THE COURT: You think that the death penalty
should never be inflicted in any case whatsoever,
regardless of the facts?

[Juror]: Yes.
[Prosecutor]: No questions.
[Defense counsel]: No questions.
THE COURT: You may take your seat.
[Prosecutor]: State would challenge, Your Honor.
THE COURT: Granted.

11 RR 80-81.

Il. Disposition Below

On appeal to the Court of Criminal Appeals, Ortiz argued
for the first time that a Texas statute permitting disqualification of
capital jurors who have “conscientious scruples in regard to the
infliction of the punishment of death for crime” was facially
unconstitutional under the Sixth Amendment. See Appeal Brief
at 69-73, Ortiz v. State, No. 73,692 (Tex. Crim. App. filed June
25, 2001). In particular, he complained that the statute was
inconsistent with this Court’s decisions in Witherspoon v. Illinois,
391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412
(1985). Jd. However, the state court rejected this facial challenge,
noting that it had previously held that the statute provided a means
for disqualification ‘“‘only to the extent constitutionally permitted
by Witt.’” Ortiz v. State, 93 S.W.3d 79, 88 (Tex. Crim. App. 2002)
(quoting Ramos v. State, 934 S.W.2d 358, 366 (Tex. Crim. App.

0%.

1996)). The court therefore found that, “[hjaving already
narrowed the scope of the statute to what is constitutionally
permissible, we perceive no further basis for complaint.” /d.

Ortiz also contended that, in his case in particular, the
thirteen jurors cited above were impermissibly excused from jury
service in violation of Witherspoon and Witt. See Appeal Brief at
73-77, Ortiz, supra. However, the Texas court concluded that
these allegations were not preserved for appellate review because
“{a] party must object to the granting of a challenge for cause
before he can complain of that action on appeal.” Ortiz, 93
S.W.3d at 88 (footnote omitted). It therefore declined to reach the
merits of Ortiz’ constitutional complaint.

In an apparent attempt to circumvent the procedural bar,
Ortiz also argued that his trial attorney’s failure to object to the
prosecution’s challenges for cause to the excused venire members
constituted ineffective assistance of counsel. See Appeal Brief at
119-24, Ortiz, supra. However, the Court of Criminal Appeals
declined to find a Sixth Amendment violation on the record
presented. Ortiz, 93 S.W.3d at 88-89. The court noted that it was
“possible for counsel to have legitimate reasons for declining to
object” to the prosecution’s challenges. /d. at 89. Because the
record was silent regarding why counsel chose not to object to
disqualification of the thirteen venire members cited by Ortiz, the
court stated that it would “defer to counsel’s decisions and deny
relief on an ineffective assistance claim on direct appeal.” Jd.

ARGUMENT

I. The Questions Presented For Review Are Unworthy Of
The Court’s Attention.

The Rules of the Supreme Court provide that review on
writ of certiorari is not a matter of right, but of judicial discretion,
and will be granted only for “compelling reasons.” Sup. CT.R. 10.
In the instant case, Ortiz fails to advance a “compelling reason” for
this Court to review his case, and none exists. Indeed, the opinion

-14-

issued by the lower court involved only a proper and straight-
forward application of established constitutional principles.
Moreover, this Court does not have jurisdiction to review those
arguments which the Texas court found were defaulted pursuant
to an adequate and independent state procedural bar. The petition
therefore presents no important question of law to justify the
exercise of this Court’s certiorari jurisdiction.

Il. The Texas Statute Permitting The Prosecution To
Challenge A Prospective Capital Juror For Cause
Where The Juror Voices “Conscientious Scruples”
Against The Death Penalty Is Not Unconstitutional.

In Ortiz’ first question presented for review, he complains
that Article 35.16(b)(1) of the Texas Code of Criminal Procedure
is facially unconstitutional under the Sixth Amendment. See
Petition at 17-23. As noted above, that statute permits the
prosecution to challenge a prospective capital juror for cause
where “the juror has conscientious scruples in regard to the
infliction of the punishment of death for crime.” TEX. CRIM.
Proc. CODE ANN. art. 35.16(b)(1) (Vernon1996). According to
Ortiz, this law effectively disqualifies jurors who voice only
general objections to the death penalty and is therefore
inconsistent with this Court’s decisions in Witherspoon v. Illinois,
391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412
(1985). He also argues that the trial court applied the defective
statute to his case and improperly excused several qualified jurors.

However, as discussed below, Ortiz’ facial challenge to
Article 35.16 must fail because the Texas courts have construed
the statute to permit venire members to be disqualified only to the
degree constitutionally allowed by Witt. Furthermore, to the extent
Ortiz seeks review of the manner in which the statute was applied
to the jurors in his case, the Court of Criminal Appeals found his
claims to be procedurally defaulted under the Texas
contemporaneous objection rule. This Court therefore does not
have jurisdiction to consider Ortiz’ “as applied” challenge. For

23.
these reasons, certiorari review should be denied.

A. Under the Court of Criminal Appeals’
construction of Article 35.16(b)(1), a
prospective capital juror may only be
disqualified from service based on
“conscientious scruples” where the juror’s
views on capital punishment would prevent or
substantially impair the performance of her
duties.

Ortiz’ facial constitutional challenge to Article 35.16(b)(1)
relies entirely on this Court’s decisions in Witherspoon and Witt.
In Witherspoon, this Court was faced with an Illinois statute which
permitted a prospective capital juror who indicated “that he [had]
conscientious scruples against capital punishment, or that he
opposed the same,” to be challenged for cause. 391 U.S. at 512.
Pursuant to the statute, the State was routinely allowed to excuse
jurors who expressed such reservations without specifically
inquiring into whether those scruples would compel them to vote
against the death penalty. /d. at 515. The Court determined that
such a practice was improper and held “that a sentence of death
cannot be carried out if the jury that imposed or recommended it
was chosen by excluding veniremen for cause simply because they
voiced general opposition to the death penalty or expressed
conscientious or religious scruples against its infliction.” /d. at
521-22 (footnote omitted).

In Adams v. Texas, 448 U.S. 38 (1980), the Court further
clarified the standard to be used for assessing the propriety of a
challenge for cause. That case involved the former Texas statute
which prescribed that “‘[a] prospective [capital] juror shall be
disqualified from serving as a juror unless he states under oath that
the mandatory penalty of death or imprisonment for life will not
affect his deliberations on any issue of fact.’” /d. at 42 (quoting
TEX. PENAL CODE ANN. § 12.31(b) (Vernon 1974)). The Adams
Court concluded that the Witherspoon line of cases established

-16-

“the general proposition that a juror may not be challenged for
cause based on his views about capital punishment unless those
views would prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.”
Id. at 45. However, the Court went on to hold that the Texas
statute at issue had been applied to the petitioner’s case in such a
way as to exclude jurors who were qualified to serve under
Witherspoon. Id. at 49-51. In particular, the state courts had
interpreted the statute so broadly that the prosecution had excluded
venire members “who stated that they would be ‘affected’ by the
possibility of the death penalty, but who apparently meant only
that the potentially lethal consequences of their decision would
invest their deliberations with greater seriousness and gravity or
would involve them emotionally.” Jd. at 49 (footnote omitted).
The Court found that this expansive application of the statute
could not be squared with the Sixth Amendment. /d. at 50.

In Wainwright v. Witt, this Court further refined the
standard that had been “simplified” in Adams for evaluating a
challenge for cause. Witt, 469 U.S. at 421. The Court summarized
the governing rule as follows:

Thf[e] standard [for determining when a
prospective juror may be excluded for cause
because of his or her views on capital punishment]
is whether the juror’s views would “prevent or
substantially impair the performance of his duties
as a juror in accordance with his instructions and
his oath.” We note that, in addition to dispensing
with Witherspoon’s reference to “automatic”
decisionmaking, this standard likewise does not
require that.a juror’s bias be proved with
“unmistakable clarity.” This is because
determinations of juror bias cannot be reduced to
question-and-answer sessions which obtain results
- in the manner of a catechism. What common
sense should have realized experience has proved:

«] 7.

many veniremen simply cannot be asked enough
questions to reach the point where their bias has
been made “unmistakably clear”; these veniremen
may not know how they will react when faced with
imposing the death sentence, or may be unable to
articulate, or may wish to hide their true feelings.
Despite this lack of clarity in the printed record,
however, there will be situations where the trial
judge is left with the definite impression that a
prospective juror would be unable to faithfully and
impartially apply the law. . . . [T]his is why
deference must be paid to the trial judge who sees
and hears the juror.

Id. at 424-26 (internal footnotes omitted).

Turning to the instant case, it is apparent that the Texas
statute passes constitutional muster. After Adams was decided, the
Court of Criminal Appeals narrowed its construction of section
12.31(b) of the Penal Code so that it “[could not] be used . . . to
exclude jurors on grounds broader than those permitted by the
Supreme Court in Witherspoon v. Illinois.” Penry v. State, 691
S.W.2d 636, 656 (Tex. Crim. App. 1985); see also Clark v. State,
881 S.W.2d 682, 686 (Tex. Crim. App. 1994); White v. State, 610
S.W.2d 504, 508 (Tex. Crim. App. 1981). The state courts
concluded that Adams did not declare section 12.31(b) facially
unconstitutional, but simply admonished the State because the
statute had been applied too broadly.” Clark, 881 S.W.2d at 686;
Penry, 691 S.W.2d at 656; White, 610 S.W.2d at 508.
Nevertheless, in 1991, the Texas Legislature deleted the language
confronted by the Adams Court. Clark, 881 S.W.2d at 685 n.1.

In Adams, the Court specifically noted that “the State could,
consistently with Witherspoon, use § 12.31(b) to exclude prospective jurors
whose views on capital punishment are such as to make them unable to follow
the law or obey their oaths. But the use of § 12.31(b) to exclude jurors on
broader grounds based on their opinions concerning the death penalty is
impermissible.” Adams, 448 U.S. at 48-49.

-18-

Article 35.16(b)(1) then became the only statutory basis for
excluding prospective capital jurors who opposed the death
penalty. As with section 12.31(b), the Court of Criminal Appeals
has consistently interpreted the “conscientious scruples” provision
of this statute to permit a venire member to be disqualified from
service in a capital case only where the juror’s views would
“prevent or substantially impair the performance of his duties as
a juror in accordance with his instructions and his oath.” Holberg
v. State, 38 S.W.3d 137, 141 (Tex. Crim. App.), cert. denied, 534
U.S. 972 (2001) (citing Witt, 469 U.S. at 424); see also Ortiz, 93
S.W.3d at 88; Ramos v. State, 934 S.W.2d 358, 366 (Tex. Crim.
App. 1996); McFarland v. State, 928 S.W.2d 482, 509 n.24 (Tex.
Crim. App. 1996); Wolfe v. State, 917 S.W.2d 270, 275-76 (Tex.
Crim. App. 1996); Cuevas v. State, 742 S.W.2d 331, 334 (Tex.
Crim. App. 1987). Thus, the statute is coextensive with this
Court’s opinions in Adams and Witt. If a juror is qualified to serve
under the constitutional standard articulated in those cases, he is
likewise qualified to serve under Texas law. See Ramos, 934
S.W.2d at 365; McFarland, 928 S.W.2d at 509 n.24. Put another
way, a juror cannot be disqualified under Article 35.16(b)(1) ifhe
is acceptable under Adams and Witt. Ortiz, 93 S.W.3d at 88;
Ramos, 934 S.W.2d at 365. Because the Texas courts have
tethered the statute’s requirements to the constitutional standards
announced by this Court, it survives a facial constitutional
challenge.’ Ortiz’ argument to the contrary is therefore without
merit and undeserving of certiorari review.

*Citing Houston v. Hill, 482 U.S. 451 (1987), Ortiz maintains that the
Article 35.16(b)(1) is simply “not susceptible to a narrowing construction.”
Petition at 21. However, contrary to Ortiz’ argument, it is completely
reasonable for the Court of Criminal Appeals to define “conscientious scruples”
as denoting views that would “prevent or substantially impair” a juror in the
performance of his duties. After all, the phrase “conscientious scruples” is
hardly self-defining. See Witherspoon, 391 U.S. at 515 n.9 (noting of a statute
that permitted jurors to be excused based on “conscientious scruples” that
“(w]hat matters is how [the phrases employed in this area] might be understood
— or misunderstood — by prospective jurors”).

|

-19-

B. This Court may not consider Ortiz’ allegation
that prospective jurors in his case were
improperly excluded under Witt because the
lower court’s disposition of the claim was based
on an adequate and independent state
procedural ground.

Although Ortiz repeatedly characterizes the argument
included in his petition as a “facial” challenge to the
constitutionality of Article 35.16(b)(1), he also contends that the
Statute was improperly utilized to exclude thirteen prospective
jurors in his case who were qualified to serve under Witherspoon
and Witt. See Petition at 17-23. Ortiz seems to imply that the
Court of Criminal Appeals simply ignored this additional
complaint. See, e.g., id. at 19 (“Despite what it says, the Court of
Criminal Appeals did not apply a narrowing construction to
Article 35.16(b)1 in Petitioner’s case”). However, a simple
reference to the lower court’s decision reveals that the court
declined to consider the merits of Ortiz’ “as applied” claim
because of an independent state procedural default. The Texas
court found that with regard to the thirteen jurors cited by Ortiz,
“Ortiz did not object to the trial court’s actions in granting the
State’s challenges.” Ortiz, 93 S.W.3d at 88. For this reason, the
court concluded that Ortiz had forfeited his claims:

A party must object to the granting of a challenge
for cause before he can complain of that action on
appeal. Because Ortiz failed to object, his
complaints were not preserved with respect to all
the challenges. . . .

Id. This holding precludes independent review of Ortiz’
constitutional allegations by this Court.

It is well settled that “this Court ‘will not review a question
of federal law decided by a state court if the decision of that court
rests on a state law ground that is independent of the federal
question and adequate to support the judgment.’” Lambrix y.

- -20-

Singletary, 520 U.S. 518, 522-23 (1997) (quoting Coleman v.
Thompson, 501 U.S. 722, 729 (1991)); see also Harris v. Reed,
489 U.S. 255, 262 (1989) (holding that an adequate and
independent state procedural default will bar federal habeas review
of a claim absent a showing of cause and prejudice). This is so
because the Court “in fact lack[s] jurisdiction to review such
independently supported judgments on direct appeal: Since the
state-law determination is sufficient to sustain the decree, any
opinion of this Court on the federal question would be purely
advisory.” Lambrix, 520 U.S. at 523 (citing Herb v. Pitcairn, 324
U.S. 117, 125-26 (1945)); see also Sochor v. Florida, 504 U.S.
527, 533 (1992) (noting and applying rule that “this Court lacks
jurisdiction to review a state court’s resolution of an issue of
federal law if the state court’s decision rests on an adequate and
independent state ground”); Michigan v. Long, 463 U.S. 1032,
1041 (1983) (“If the state court decision indicates clearly and
expressly that it is alternatively based on bona fide separate,
adequate, and independent grounds, we, of course, will not
undertake to review the decision”).

Ortiz does not contest that the Texas contemporaneous
objection rule constitutes an adequate and independent state
procedural ground. Indeed, as the Fifth Circuit has repeatedly and
correctly emphasized, this aspect of Texas law is firmly
established and regularly followed by the state courts. Smith v.
Cockrell, 311 F.3d 661, 683 (Sth Cir. 2002); Haley v. Cockrell,
306 F.3d 257, 262 n.8 (Sth Cir. 2002); Styron v. Johnson, 262 F.3d
438, 453 (Sth Cir. 2001), cert. denied, 534 U.S. 1163 (2002);
Jackson v. Johnson, 194 F.3d 641, 652 (Sth Cir. 1999); Fisher v.
Texas, 169 F.3d 295, 300 (Sth Cir. 1999); Corwin v. Johnson, 150
F.3d 467, 473 (Sth Cir. 1998); Sharp v. Johnson, 107 F.3d 282,
285-86 (Sth Cir. 1997); see also Wainwright v. Sykes, 433 U.S. 72,
88 (1977) (noting the important function served by a state’s
contemporaneous objection rule). This Court may therefore not
undertake review of this aspect of the lower court’s decision and

a

certiorari review should be denied.’

III. |The Lower Court Correctly Declined To Find That
Ortiz’ Trial Attorney Had Rendered Ineffective
Assistance Of Counsel Based On The Record Presented
During Direct Appeal. -

In an apparent attempt to circumvent the state procedural
bar, Ortiz argues that his trial attorney rendered ineffective
assistance of counsel when he did not object to the prosecution’s
challenges for cause to the thirteen prospective jurors cited above. ©
See Petition at 23-26. He maintains that the record from voir dire
reveals that his lawyers “clearly were unfamiliar with the decisions

‘Even if Ortiz’ allegations were not jurisdictionally barred, they are
without any substantive merit. The record reveals that the trial court specifically
advised jurors that its inquiry was meant to identify whether any of the
assembled venire members “believe[d] that the death penalty should never be
inflicted in any case, regardless of what the evidence might be.” 11 RR 65-66.
All of the jurors identified in Ortiz’ petition came forward in response to the
court’s question and expressed unwavering Opposition to imposing capital
punishment. /d. at 67-81. Twelve of the jurors explicitly confirmed that they
would oppose the death penalty in any circumstance. /d. Only one juror, Andy
Reid, simply answered “yes” to the court’s question as to whether he had
“conscientious scruples” regarding the death penalty. /d. at67. However, Reid
was the first venire member questioned by the court, immediately after the court
had explained that by “conscientious scruples” it meant to reveal only those
jurors who “believe[d] that the death penalty should never be inflicted in any
case, regardless of what the evidence might be.” The court was plainly in the
best position to evaluate each venire member’s demeanor and responses and to
find those individuals unable to follow the law. See Witt, 469 U.S. at 424-26.
In these circumstances, and absent any objection or questions from the defense,
this Court must defer to the conclusions of the trial court.

*To the extent that Ortiz’ Sixth Amendment claim is an attempt to show
“cause and prejudice” for the state default, this argument is inappropriate in the
context of a direct appeal. Although cause and prejudice may excuse a state
procedural default on federal habeas corpus review of a state criminal
conviction, see, e.g., Coleman, 501 U.S. at 750-51, no such excuse is available
to a defendant seeking review by this Court through direct appeal of the state
court’s judgment. See Lambrix, 520 U.S. at 523; Sochor, 504 U.S. at 533;
Long, 463 U.S. at 1041.

a.

of this Court in Witherspoon and Witt, and therefore did not realize
that Article 35.16(b)1 was unconstitutional on its face.” /d. at 24.
Ortiz argues that by failing to object to the exclusion of the various
venire members, the prosecution was able to successfully stack the
jury with “those who possessed the unwavering view that
imposition of a death sentence was necessary in the event
Petitioner’s guilt were proven.” Jd. at 26. However, as discussed
below, the venire members excused for cause were properly
challengeable under Witt. Counsel was therefore not ineffective
for failing to make a frivolous objection to their dismissal.
Moreover, because the record on direct appeal is silent regarding
why counsel did not challenge the disqualifications, the Court of
Criminal Appeals correctly concluded that Ortiz had presented
insufficient evidence to overcome the presumption that counsel’s
tactics constituted reasonable professional assistance.

A. The Strickland Standard

To prevail on a claim of ineffective assistance of counsel,
a defendant bears the burden of satisfying the two-pronged test set
forth in Strickland v. Washington, 466 U.S. 668 (1984).
Specifically, Strickland requires a defendant to show both (1) that
counsel rendered deficient performance, and (2) that counsel’s
actions resulted in actual prejudice. /d. at 687; see also Bell v.
Cone, 122 S. Ct. 1843, 1850 (2002); (Terry) Williams v. Taylor,
529 U.S. 362, 390 (2000). Failure to meet either element of the
Strickland test will defeat an ineffective assistance of counsel
claim, making it unnecessary to examine the other prong.
Strickland, 466 U.S. at 687.

To establish deficient performance under Strickland, a
defendant must show that, in light of all the circumstances as they
appeared at the time of the conduct, “counsel’s representation fell
below an objective standard of reasonableness,” i.e., “prevailing
professional norms.” /d. at 688-90; see also Nix v. Whiteside, 475
U.S. 157, 165 (1986). This Court has admonished that judicial
scrutiny of counsel’s performance “must be highly deferential,”

a.

with every effort made to avoid “the distorting effect of
hindsight.” Strickland, 466 U.S. at 689-90. Accordingly, there is
a “strong presumption” that the challenged conduct “falls within
the wide range of reasonable professional assistance,” and the
defendant is required to overcome the presumption that counsel’s
actions “might be considered sound trial strategy.” Id. at 689.

Even if counsel’s representation was deficient, the
defendant must also affirmatively prove prejudice that is “so
Serious as to deprive [him] of a fair trial, a trial whose result is
reliable.” Jd. at 687. To meet this requirement, he must show that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” /d. at 694; see also (Ti erry) Williams, 529 U.S. at
393-95. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at
694.

B. Ortiz has failed to demonstrate that his
attorney’s performance fell below an objective
standard of reasonableness.

The Texas courts have repeatedly indicated that ineffective
assistance of counsel claims are generally disfavored on direct
appeal.° In particular, the state court has explained that in order to
defeat Strickland’s presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly

*Texas is not alone in this conclusion. Virtually every federal circuit
court has also indicated that ineffectiveness claims should be brought in a
collateral attack rather than on direct appeal. See, e.g., United States v. Cofske,
157 F.3d 1, 2 (1st Cir. 1998); United States v. Jake, 281 F.3d 123, 132 n.7 (3d
Cir. 2002); United States v. King, 119 F.3d 290, 295 (4th Cir. 1997); United
States v. Rivas, 157 F.3d 364 (Sth Cir. 1998); United States v. Neuhausser, 241
F.3d 460, 474 (6th Cir. 2001), cert. denied, 534 U.S. 879 (2001); United States
v. Evans, 272 F.3d 1069, 1093 (8th Cir. 2001), cert. denied, 535 U.S. 1029
(2002); United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989); United
States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc); United
States v. Griffin, 699 F.2d 1102, 1107-09 (11th Cir. 1983); United States v.
Richardson, 167 F.3d 621, 626 (D.C. Cir. 1999).

-24-

founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.”” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). However, “[iJn the
majority of cases, the record on direct appeal is undeveloped and
cannot adequately reflect the motives behind trial counsel’s
actions.” Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.
2001) (footnote omitted); see also Robinson v. State, 16 §.W.3d
808, 813 n.7 (Tex. Crim. App. 2000) (“W]e are mindful that only
in rare cases will the record on direct appeal be sufficient for an
appellate court to fairly evaluate [an ineffective assistance] claim’’)
(citation omitted); Thompson, 9 S.W.3d at 813 (“Rarely will a
reviewing court be provided with the opportunity to make its
determination on direct appeal with a record capable of providing
a fair evaluation of the merits of a claim involving such a serious
allegation’”’) (footnote omitted); Ex parte Torres, 943 S.W.2d 469,
475 (Tex. Crim. App. 1997) (“In most cases, the record on direct
appeal is inadequate to develop an ineffective assistance of
counsel claim’’). The Texas courts have therefore concluded “that
a post-conviction writ proceeding. . . is the preferred method for
gathering the facts necessary to substantiate such a Sixth
Amendment challenge.”’ Robinson, 16 S.W.3d at 810 (citations
omitted); see also Jackson v. State, 973 S.W.2d 954, 957 (Tex.
Crim. App. 1998) (noting that because record on direct appeal is
usually insufficient to adequately reflect failings of trial counsel,
appellate court will not apply general doctrine that forbids raising
a claim on habeas review after it was rejected on appeal).

In the instant case, the Court of Criminal Appeals plainly
concluded that, by relying solely on the transcript from voir dire,

Of course, where a ineffective assistance of counsel claim may be
adequately resolved from the trial record, Texas appellate courts will address
the claim in the first instance. See Robinson, 16 S.W.3d at 813 n.7. Indeed,
where a state habeas petitioner attempts to assert a claim during post-conviction
proceedings that is based entirely on the record that is amassed during direct
appeal, his allegations are generally considered procedurally defaulted. See,
e.g., Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998); Ex parte
Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App. 1991).

28.

Ortiz had presented insufficient evidence to overcome the “strong
presumption” of reasonable assistance by trial counsel:

If counsel’s reasons for his conduct do not appear
in the record and there is at least the possibility that
the conduct could have been legitimate trial
strategy, we will defer to counsel’s decisions and
deny relief on an ineffective assistance claim on
direct appeal. Counsel’s reasons for failing to
object do not appear in the direct appeal record.
And it is possible for counsel to have legitimate
reasons for declining to object to a trial court’s
granting of a State’s challenge for cause.
Accordingly, we deny relief on Ortiz’ ineffective
assistance claims.

Ortiz, 93 S.W.3d at 88-89 (internal footnotes omitted). This
judgment is patently reasonable. In the absence of a full factual
record, a court may not presume that counsel’s actions in these
circumstances were deficient.’ See Strickland, 466 U.S. at 689
(emphasizing that a “strong presumption” exists that challenged
conduct “falls within the wide range of reasonable professional
assistance”).

Counsel could have had any number of legitimate, strategic
reasons for not objecting to the disqualification of the jurors
identified by Ortiz. For instance, counsel could have quite
reasonably concluded that all thirteen jurors were challengeable

‘Ortiz incorrectly asserts that the Court of Criminal Appeals abandoned
Strickland’s objective inquiry in favor of an analysis of counsel’s subjective
motivations. See Petition at 25. Rather, the lower court specifically stated that
it only required evidence of counsel’s decisionmaking where “there is at least
the possibility that the [challenged] conduct could have been legitimate trial
strategy.” Ortiz, 93 S.W.3d at 88. In other words, unless counsel reveals
otherwise, the court properly assumes that an attorney’s performance is not
deficient where legitimate, strategic reasons could exist for an attorney's
actions.

-26-

under Witt.’ In fact, prior to the questioning initiated by the trial
court, the presiding judge specifically advised the venire panel that
his question regarding “conscientious scruples” was meant to
identify only those jurors who, “whether for religious or
philosophical or any other reason . . . believe that the death penalty
should never be inflicted in any case, regardless of what the
evidence might be.” 11 RR 65-66 (emphasis added). All thirteen
jurors responded to this invitation and affirmed their unwavering
opposition to the death penalty. Jd. at 67-81. Although the
individual inquiries were brief, in the context of the court’s
examination end for the reasons apparent to both the parties and
the court at trial, counsel could have reasonably concluded that the
jurors were legitimately excused under this Court’s Sixth
Amendment precedent. Concomitantly, counsel could have
concluded that some or all of the thirteen venire members would
not have made favorable jurors for other reasons. The lower court
therefore correctly concluded that Ortiz had failed to overcome the
presumptions imposed by Strickland. Because there is nothing in
the record to support a finding that counsel was deficient,
certiorari review should be denied.

CONCLUSION

For the foregoing reasons, the State respectfully requests
that the petition for wnt of certiorari be denied.

*Ortiz speculates that his attorney was not familiar with this Court’s
decisions in Witherspoon and Witt. See Petition at 24. However, this
suggestion is belied by the record. Trial counsel specifically objected to the
trial court’s decision to grant the State’s challenge for cause regarding two
jurors who initially wavered regarding whether they could personally impose the
death penalty. See 11 RR 77-80. With one of the jurors, counsel specifically
tried to rehabilitate her answer by asking whether, in an appropriate case, she
could ever “make the proper findings so that the death penalty would be
imposed[.]” /d. at 78. Clearly, counsel was familiar with the fact that jurors
were required to have more than generalized objections to the death penalty
before they could be excused for cause.

* Counsel of Record

x. 2
Respectfully submitted,

GREG ABBOTT
Attorney General of Texas

BARRY R. McBEE
First Assistant Attorney General

JAY KIMBROUGH
Deputy Attorney General
for Criminal Justice

GENA BUNN
Chief, Capital Litigation Division
Assistant Attorney General

~*JOHN ANDREW HUTTON

Assistant Attorney General
State Bar No. 24012878

P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1600

(512) 320-8132 (Fax)

Attorneys for Respondent

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1141%3A2. Public record. Not legal advice.