Appendix — Oliver v. Quarterman (No. 08-833)

Suprame ( nt U8.

08 - 833 JAN - 9 2009

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No. 08-

IN THE

SUPREME COURT OF THE UNITED STATES

KHRISTIAN OLIVER,

Petitioner,

V.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION,

Respondent.

On Petition for Writ of Certiorari to

the United States Court of Appeals for the Fifth Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

WINSTON E. COCHRAN, JR. SCOTT E. GANT

ATTORNEY AT LAW Counsel of Record

P.O. Box 38465 CHRISTOPHER L. HAYES

Houston, TX 77238 BOIES, SCHILLER & FLEXNER LLP

(713) 228-0264 5301 Wisconsin Avenue, NW

Washington, DC 20015

(202) 237-2727

Attorneys for Petitioner

ia

APPENDIX TABLE OF CONTENTS

APPENDIX A

U.S. Court of Appeals for the Fifth Circuit,

Opinion Filed August 14, 2008....................... la

APPENDIX B:

U.S. Court of Appeals for the Fifth Circuit,

Opinion Filed November 16, 2007................... 3la

APPENDIX C:

U.S. Court of Appeals for the Fifth Circuit,

Order on Petition for Rehearing

Pideds Cictben 3. BD vsciisccscsucictmaenan 53a

APPENDIX D:

U.S. Court of Appeals for the Fifth Circuit,

Judgment Issued October 13, 2008 ................. 55a

APPENDIX E:

U.S. District Court for the Eastern

District of Texas, Beaumont Division,

Opinion Filed November 9, 2008 ..................... 57a

APPENDIX F:

U.S. District Court for the Eastern

District of Texas, Beaumont Division,

Order on Certificate of Appealability

Pies FeOTUaTY BBG eccecceceiccseenaane 67a

APPENDIX G:

Transcript of Hearing on Motion

for New Trial, June 25, 1999 ................cccceeeeees 70a

APPENDIX H:

Texas Court of Criminal Appeals,

Opinion on Direct Appeal

Filed April 17, 2002

APPENDIX I:

Texas Court of Criminal Appeals,

Order on Habeas Application

TIN FF, FIIs viictiesintiiccecsinsniccencnannnes 288

APPENDIX J:

Transcript of Recorded Interview

of Juror Michael Brenneisen

APPENDIX K:

Jury Charge on Guilt

APPENDIX L:

Jury Charge on Punishment

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-70006

United States Court of Appeals

Fifth Circuit

FILED

AUGUST 14, 2008

Charles R. Fulbruge III

Clerk

KHRISTIAN OLIVER

Petitioner-Appellant

¥.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

2a

Before SMITH, GARZA, and PRADO, Circuit

Judges.

PRADO, Circuit Judge:

Khristian Oliver (“Oliver”) seeks habeas corpus

relief from his sentence of death for the murder of

Joe Collins (“Collins”). Oliver argues that the jury

violated his rights under the Sixth and Eighth

Amendments by considering passages from the Bible

during the sentencing phase of its deliberations.

Although the jury improperly consulted the Bible,

the state court found that the Bible did not influence

the jury’s decision. As Oliver has not presented clear

and convincing evidence to rebut this factual finding,

we AFFIRM the district court’s decision to deny the

writ.

I. FACTUAL AND PROCEDURAL BACKGROUND

Oliver shot Collins after Collins came home to

find Oliver burglarizing his house.! The jury learned

that while Collins was lying on the ground after

being shot, Oliver struck Collins several times in the

head with a rifle butt. At the trial, the medical

expert testified that although Collins likely died

from the gunshot wounds, the attack with the rifle

butt also could have been fatal by itself. A jury

convicted Oliver of capital murder based on his

killing of Collins during the commission of a

1 The district court recounted the facts of the murder in

detail, and as we repeated those details in our prior opinion in

this case, we need not do so again here. See Oliver uv.

Quarterman, 254 F. App’x 381, 383 (5th Cir. 2007) (per curiam)

(unpublished).

3a

burglary. The jury sentenced him to death. Oliver

filed a motion for a new trial regarding his sentence,

arguing that the jurors, during the penalty phase of

their deliberations, improperly consulted the Bible.

At a state court evidentiary hearing on his

motion for a new trial, Oliver called four jurors to

testify. Kenneth McHaney stated that during the

jury’s deliberations, one juror, Kenneth Grace, read

the Bible aloud to a small group of jurors in the

corner of the jury room. McHaney also testified that

fellow juror Donna Matheny mentioned to him that

the Bible contained a passage discussing who is a

murderer and who should be put to death, and that

he asked Matheny if he could read her Bible, which

Matheny had highlighted.? McHaney recalled

reading verses pertaining to the importance of

obeying the law of the land, the commandment that

“thou shalt not kill,” and the passage Matheny

pointed out that discussed who is a murderer and

who deserves a death sentence. [n particular, he

recalled reading a passage that says that if a man

strikes someone with an iron object so that he dies,

then he is a murderer and should be put to death.'

2 Neither Grace nor Matheny testified at the hearing.

3 The parties agree that the specific Bible passage at issue

came from the Book of Numbers:

And if he smite him with an instrument of iron, so

that he die, he is a murderer: the murderer shall

surely be put to death.

And if he smite him with throwing a stone, wherewith

he may die, and he die, he is a murderer: the

murderer shall surely be put to death.

4a

McHaney also witnessed juror Rhonda Robinson

reading the same passage from the Bible. McHaney

believed that there were approximately four Bibles

in the jury room, but he could not recall the exact

number. He said that many jurors had Bibles with

them because they went to church or Bible study at

night.

Juror Maxine Symmank stated that she read the

Bible to herself while in the jury room and that there

was another male juror who read the Bible aloud to

a small group of jurors at one end of the table.

Symmank could not recall exactly when she read the

Bible, although she believed it was after the jury

made its punishment determination while the jurors

waited for the court to reconvene. She admitted,

however, that it is possible that she also read the

Bible during earlier parts of the proceedings.

Symmank recalled reading the same passage that

McHanecy had consulted from the Book of Numbers:

“And if he smite him with an instrument of iron, so

that he die, he is a murderer: the murderer shall

surely be put to death.” Symmank had decided to

read this passage after a fellow juror opened the

Bible to that page. Symmank confirmed, however,

that no juror explicitly stated that the jury should

’ Or if he smite him with an hand weapon of wood,

wherewith he may die, and he die, he is a murderer:

the murderer shall surely be put to death.

The revenger of blood himself shall slay the

murderer: when he meeteth him, he shali slay him.

Numbers 35:16-19 (King James).

4 Robinson also did not testify at the hearing.

5a

use the Bible as evidence in its deliberations.

Rodney Rodrigues corroborated the testimony of

the previous two jurors that at least one juror read

Biblical passages aloud to a small group of jurors at

some point during the deliberations. He testified

that he did not read the Bible, but that some of his

fellow jurors did. He did not know which passages

the other jurors read. Finally, Glenda Webb recalled

seeing more than one Bible in the jury room, but she

stated that the Bible was not a focus of the jury’s

discussions. She recalled that some jurors consulted

the Bible after they had made their decision on the

appropriate punishment.

Based on this evidence, the state court ruled

that the jury did not act improperly. The court

concluded that “a conscientious, dedicated and

carrying [sic] jury considered this case in accord with

the Court’s Charge and the instructions of the Court

and rendered their verdict in accord with the

evidence they heard in this case uninfluenced by any

outside influence of any kind shown to the Court in

this hearing.” Oliver appealed this ruling to the

Texas Court of Criminal Appeals (“TCCA”), which

affirmed the trial court’s decision to deny a new trial

and stated that Oliver had not “met his burden of

showing outside influence. While there was

testimony that at least one Bible was brought to the

jury room and some passages were read by a few

jurors, every juror who testified stated that neither

the Court nor another juror claimed that the Bible

should be considered as law or evidence in the case.”

The state trial court and the TCCA denied Oliver’s

state habeas petition.

6a

After exhausting his state court remedies, Oliver

sought a writ of habeas corpus from the district

court. He argued that the jury improperly consulted

the Bible during its deliberations, particularly given

that at least one passage the jurors read specifically

described the facts of his case. Oliver also presented

newly discovered evidence regarding the jury’s

actions. He alleged that juror Michael Brenneisen,

who did not testify at the state court hearing, told

foreign journalist Egon Clausen in an interview that

the jurors discussed the Bible in depth before they

rendered their decision during the punishment

phase of the trial.5 Brenneisen told Clausen that he

used the Bible during the punishment phase to

ensure he was reaching the correct decision.

Specifically, Brenneisen remembered asking himself,

“is this the way the Lord would decide the case?” He

also stated that the jury used the Bible “to lend

support for or against the judgment call.” He noted

that the jury “went both directions in our use of the

scripture—forgiveness and judgment.” He

acknowledged that the jury referred to specific

passages in the Bible during its discussions, opening

the Bible to various passages and reading them

word-for-word. He also told Clausen that his

personal belief is that if civil law and Biblical law

conflict, then the Biblical law is paramount.®

S Oliver submitted to the district court a transcript of the

interview between Clausen and Brenneisen. Clausen swore

under oath in Denmark that the transcript was a true

representation of his interview with Brenneisen.

. We present the information contained in Brenneisen's

interview merely as background. As Oliver did not submit this

7a

The district court denied Oliver’s habeas

ition. The court viewed his argument as a request

an evidentiary hearing and ruled that Oliver is

; entitled to an additional hearing under 28 U.S.C.

'254(e)(2). The court also construed Oliver’s claim

be a “pure question of fact” and denied habeas

ief pursuant to the standard in § 2254(d)(2) that

> state court’s decision was not “based on an

reasonable determination of the facts in light of

» evidence presented in the state court

ceeding.” The court, however, granted a

‘tificate of appealability (“COA”) on whether the

ors’ use of the Bible violated Oliver's Sixth or

*hth Amendment rights.

On November 16, 2007, this court issued an

inion denying Oliver’s request for a COA on three

related claims, denying his request for a stay and

atement for a state or federal hearing, and

yuesting that the parties file additional briefs on

; remaining claims.’ See Oliver v. Quarterman,

4 F. App’x 381 (5th Cir. 2007) (per curiam)

ipublished). The only remaining question,

2refore, involves the merits of Oliver’s claim that

2 jury improperly consulted the Bible when

dence to the state court and therefore did not “develop the

tual basis of [his] claim in State court proceedings,” we do

. consider the interview as substantive evidence in reaching

- decision. See 28 U.S.C. § 2254(e)(2); Oliver, 254 F. App’x at

ye

In that opinion, we indicated that we might set this case

oral argument after the parties submitted their

»plemental briefs. However, we conclude that we can decide

s case without oral argument.

8a

deliberating during the sentencing phase of his trial.

Il. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), a federal court cannot grant

habeas relief unless the state court adjudication of

that claim either

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established federal law, as

determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts

in light of the evidence presented in the

state court proceeding.

28 U.S.C. § 2254(d); see Wiggins v. Smith, 539 U.S.

510, 520 (2003). Under § 2254(d)(1), a decision is

contrary to clearly established federal law if “the

state court arrives at a conclusion opposite to that

reached by [the Supreme Court} on a question of

law” or “confronts facts that are materially

indistinguishable from a relevant Supreme Court

precedent and arrives at a result opposite to [that

precedent].” (Terry) Williams v. Taylor, 529 U.S.

362, 405 (2000). A decision involves an unreasonable

application of Supreme Court precedent if it

“unreasonably extends a _ legal principle from

[Supreme Court precedent] to a new context where it

should not apply or unreasonably refuses to extend

that principle to a new context where it should

apply.” Id. at 407. We must presume that the state

court’s factual findings are correct unless Oliver

9a

meets his burden of rebutting that presumption by

clear and convincing evidence. See 28 U.S.C. §

2254(e)(1).

UI. DISCUSSION

A. Supreme Court Precedent

Oliver rests his argument on Supreme Court

precedent that, under the Sixth Amendment, forbids

a jury from being exposed to external influences

during its deliberations.* See Parker v. Gladden, 385

U.S. 363, 364-65 (1966) (stating that “the evidence

developed against a defendant shall come from the

witness stand in a public courtroom where there is

full judicial protection of the defendant’s right of

confrontation, of cross-examination, and of counsel!”

(internal quotation marks omitted)); Turner v.

Louisiana, 379 U.S. 466, 472 (1965) (“The

requirement that a jury’s verdict ‘must be based

upon the evidence developed at the trial’ goes to the

fundamental integrity of all that is embraced in the

constitutional concept of trial by jury.”); Remmer v.

United States, 347 U.S. 227, 229 (1954) (stating that

“private communication, contact, or tampering” with

the jury is presumptively prejudicial); Mattox v.

United States, 146 U.S. 140, 149 (1892) (stating that

“in capital cases [ ] the jury should pass upon the

case free from external causes tending to disturb the

exercise of deliberated and unbiased judgment”).

8 Oliver makes virtually the same argument under the

Eighth Amendment. However, as the applicable precedents

invoke the Sixth Amendment, we constrain our analysis to that

line of cases and reject his argument under the Eighth

Amendment.

10a

Remmer provides our starting point for

determining the Supreme Court’s clearly established

law regarding external influences on a jury. See 347

U.S. at 229. Remmer involved a third party who

attempted to bribe a juror. Id. at 228. The juror

notified the judge, who then informed the

prosecutors. Id. The judge asked the FBI to

investigate the incident, and the FBI concluded that

the third party had made the statement to the juror

in jest. Id. As a result, neither the judge nor the

prosecutor told the defendant about the incident. Id.

The jury found the defendant guilty, and he

appealed after learning of the alleged bribery

attempt. Id. The Supreme Court vacated the lower

court’s judgment that the defendant had not shown

any prejudice and held that in a criminal case,

any private communication, contact, or

tampering directly or indirectly, with a juror

during a trial about the matter pending

before the jury is, for obvious reasons,

deemed presumptively prejudicial, if not

made in pursuance of known rules of the

court and the instructions and directions of

the court made during the trial, with full

knowledge of the parties. The presumption is

not conclusive, but the burden rests heavily

upon the Government to establish, after

notice to and hearing of the defendant, that

such contact with the juror was harmless to

the defendant.

Id. at 229. Remmer thus prohibits jurors from being

subjected to “private communication, contact, or

lla

tampering’ and considers any such external

influences presumptively prejudicial. Id.; cf. United

States v. Sylvester, 143 F.3d 923, 933 (5th Cir. 1998)

(suggesting that “the presumption of prejudice and

the assignment of the burden of proof are not

triggered automatically but are imposed at the

discretion of the district court”).

Turner also involved an improper external

influence on a jury. 379 U.S. at 467. There, two

deputy sheriffs oversaw the sequestered jury. Id. As

part of their duties, the deputies “ate with them,

conversed with them, and did errands for them,”

although there was no evidence that the deputies

spoke with the jurors about the case itself. Id. at 468.

These same deputies also served as the prosecution’s

principal witnesses. Id. The Court held that the

deputies’ external contact with the _ jurors

“subvertled] the[ ] basic guarantees of trial by jury.”

Id. at 473. In particular, the Court stated that “[t]he

requirement that a jury’s verdict must be based upon

the evidence developed at the trial goes to the

fundamental integrity of all that is embraced in the

constitutional concept of trial by jury.” Id. at 472

(internal quotation marks omitted).

In Parker, a court bailiff assigned to shepherd

the sequestered jury stated to one of the jurors,

while the jury was on a public sidewalk, “Oh that

wicked fellow [petitioner], he is guilty.” 385 U.S. at

363. On another occasion, the bailiff remarked to at

least one juror, “If there is anything wrong [in

finding petitioner guilty] the Supreme Court wiil

correct it.” Id. at 364. The Supreme Court deemed

the bailiffs statements to be “private talk, tending to

12a

reach the jury by outside influence.” Id. (internal

quotation marks omitted). In a later decision

describing Parker, the Court characterized the

bailiffs statements as involving an _ improper

“external influence.” See Tanner v. United States,

483 U.S. 107, 117 (1987).

Finally, the Court fleshed out the difference

between an “external” and an “internal” influence on

a jury in Tanner. Id. at 117. There, the Court

considered allegations that a juror was intoxicated

during the trial. Id. at 110. The Court held that the

Sixth Amendment did not require the district court

to hold an evidentiary hearing, because juror

intoxication is not an “external influence.” Id. at 127.

In so holding, the Court noted that lower courts have

distinguished between external influences, which a

defendant can use to impeach a jury’s verdict, and

internal influences, which are not presumptively

prejudicial. Id. at 117-18. A juror is exposed to an

external influence when the juror reads information

not admitted into evidence, such as a newspaper

article about the case, or hears prejudicial

statements from others, as in Parker and Remmer.

Id. at 117. In contrast, internal influences, which

provide no basis for relief, include allegations of

physical or mental incompetence of a juror, such as

claims that a juror was insane, could not sufficiently

understand English, or had a_ severe hearing

impairment. Id. at 119.

These cases demonstrate that the Supreme

Court has clearly established a constitutional rule

forbidding a jury from being exposed to an external

influence. Whether an influence is “external” or

13a

“internal” depends on the facts of each case, but at

its core the distinction amounts to an examination of

the “nature of the allegation” of an improper

influence on the jury. Tanner, 483 U.S. at 117; see

Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006)

(“Under clearly established Supreme Court case law,

an influence is not an internal one if it (1) is

extraneous j ‘ejudicial information; 1.e., information

that was not admitted into evidence but nevertheless

bears on a fact at issue in the case, or (2) is an

outside influence upon the partiality of the jury,

such as ‘private communication, contact, or

tampering with a juror.”) (Gnternal citations

omitted); Robinson, 438 F.3d at 373 (King, J.,

dissenting in part) (“If the ‘nature’ of the influence is

that it impairs the juror’s physical or mental ability

to function effectively, it is an internal] influence.

Internal influences thus stand in stark contrast to

their external counterparts, which come from

without and carry the potential to bias the juror

azainst the defendant.”). Judge King, in his dissent

from the denial of en banc rehearing in Robinson,

cogently synthesized these Supreme Court cases:

The external influences recognized by the

Court in those decisions are factually

diverse, but they share a=_ single,

constitutionally significant characteristic:

they are external to the evidence and law in

the case, and carry the potential to bias the

jury against the defendant. This legal

principle unifies the bailiffs remarks

disparaging the defendant in Parker, the

rclationship of confidence between the jury

l4a

and key prosecution witnesses in Turner,

and the effort to bribe a juror in Remmer.

Robinson v. Polk, 444 F.3d 225, 231 (4th Cir. 2006)

(King, J., dissenting). It is against this backdrop that

we must consider whether the jurors’ consultation of

the Bible amounted to an external influence that

raises a presumption of prejudice.

B. The Bible as an External Influence on the Jury

Stemming from these clearly established

Supreme Court precedents, it is clear that the

prohibition of external influences from Remmer,

Turner, and Parker applies to this factual scenario.

See (Terry) Williams, 529 U.S. at 407 (stating that a

decision involves an unreasonable application of

Supreme Court precedent if it “unreasonably refuses

to extend [a legal principle from Supreme Court

precedent] to a new context where it should apply”).

Although there are no Fifth Circuit cases directly on

point, language from the Eleventh, First, and Sixth

Circuits bolsters this conclusion.

In McNair v. Campbell, 416 F.3d 1291, 1307-08

(11th Cir. 2005), the Eleventh Circuit analyzed a

similar situation under the Remmer line of cases and

determined that the jury’s use of the Bible was

presumptively prejudicial, but that the state had

rebutted the presumption.’ During the punishment

phase of the trial, the foreman, a Christian minister,

brought a Bible into the jury room during

9 The court held that the district court should have

dismissed this argument as procedurally barred, but the court

still went on to consider the merits of the claim. McNair, 416

F.3d at 1307.

15a

deliberations, read aloud from it, and led the other

jurors in prayer. Id. at 1301. The court noted that

“(b]ecause it is undisputed that jurors in the guilt

phase of McNair’s trial considered extrinsic evidence

during their deliberations, our analysis focuses on

whether the State can rebut the _ resulting

presumption of prejudice.” The court held that the

state had rebutted the presumption of prejudice

because there was no evidence that the “innocuous”

Bible passages in question had the effect of

influencing the jury’s decision. Id.

Even before this decision, a district court within

the Eleventh Circuit undertook a similar approach to

this question. In Jones v. Kemp, 706 F. Supp. 1534,

1558 (N.D. Ga. 1989), a juror asked the court if he

could take a Bible into the jury room, and the court

said yes. The district court, on habeas review, stated

that “[a] situation in which a jury, unsupervised by

the court and unobserved by counsel, could reach a

conclusion by consulting sources other than the legal

charge of the court and evidence actually received by

the court is not permitted.” Id. at 1560. The court

distinguished the situation of jurors bringing their

own Bibles into the jury room to consult for personal

inspiration or spiritual-guidance. Id. “The sole issue

here involves the at least implied court approval of a

group jury reference to an extra-judicial authority—

here the Christian Bible—for guidance in deciding

the explicit, statutorily mandated, carefully worded

guidelines which must be followed by a jury

deliberating during the sentencing phase of a death

penalty case.” Id. The court did not analyze

whether the state could rebut the presumption of

l6a

prejudice.

The First Circuit also suggested that the

presence of a Bible in the jury room amounts to an

external influence on the jury’s deliberations: and

that the Bible is no different from any other type of

external influence that enters the jury’s conscience.

See United States v. Lara-Ramirez, 519 F.3d 76, 88

(1st Cir. 2008). That case does not directly align with

the facts here, as it involved the direct review of a

district court’s mistrial declaration without the

defendant’s consent after the judge learned that the.

jury had consulted the Bible. Id. at 79.

Nevertheless, the court’s language is telling: the

court stated that the district court erred in

“treatling] the Bible in the jury room as qualitatively

different from other types of extraneous materials or

information that may taint a jury’s deliberations.”

Id. at 88. The court held that “[blecause no special

rule exists when the Bible is involved, the district

court had a duty to investigate the colorable claim of

juror taint in this case and explore and exhaust the

alternatives to mistrial, just as it would in other

situations where extraneous materials have been

brought into the jury’s deliberations.” Id. at 89

(internal quotation marks omitted). Thus,

underlying the court’s analysis was the conclusion

that the jurors’ use of a Bible in the jury room

constituted an “external influence.”

The Sixth Circuit imphed, albeit in dicta, that

the presence of a Bible in the jury room is an

external influence that might prejudice the jury’s

deliberations. See Coe v. Bell, 161 F.3d 320, 351 (6th

Cir. 1998) (rejecting the petitioner’s claim that the

17a

prosecutor’s closing argument mentioning the Bible

amounted to reversible error). The court

distinguished the situation of a prosecutor invoking

the Bible during his closing argument from the cases

where the jury actually had a Bible in the jury room.

Id. The court concluded that “there is error in [the

cases involving a Bible in the jury room] not because

the book was the Bible, but because the book was not

properly admitted evidence.” Id./°

10 In addition to the Eleventh, First, and Sixth Circuits,

three state supreme courts have held that a Bible in the jury

room is an external influence on the jury’s deliberations. In

People v. Harlan, 109 P.3d 616, 629 (Colo. 2005), the Colorado

Supreme Court held that the jury’s consultation of written

Biblical materials in the jury room was improper under state

law. In People v. Danks, 82 P.3d 1249, 1275 (Cal. 2004), the

court found that a juror’s action in bringing Bible passages into

the jury room was “misconduct,” but that the nature of the

particular Bible verses the jurors had read made this

misconduct not prejudicial. Finally, in State v. Harrington, 627

S.W.2d 345, 350 (Tenn. 1981), the Tennessee Supreme Court

found a constitutional error when “the jury foreman buttressed

his argument for imposition of the death penalty by reading to

the jury selected Biblical passages.” Because the court reversed

and remanded for a new sentencing hearing on a different

ground, however, the court did not undertake any analysis

regarding prejudice. Id.

Moreover, in a case involving slightly different facts, the

Pennsylvania Supreme Court vacated a death sentence when

the prosecutor told the jury during closing arguments, “As the

Bible says, ‘and the murderer shall be put to death.”

Commonwealth v. Chambers, 599 A.2d 630, 644 (Pa. 1991).

There, the prosecutor did not invoke well-known Biblical

aphorisms reminding jurors to follow the law but instead

sought to “interject/ ] religious law as an additional factor for

the jury’s consideration which neither flows from the evidence

18a

The Ninth Circuit, sitting en banc, refused to

determine one way or the other whether the jury’s

reliance on the Bible constituted an _ external

influence. Fields v. Brown, 503 F.3d 755, 781-82

(9th Cir. 2007) (en banc). In that case, a juror made

notes “for” and “against” the death penalty based on

his review of the Bible at home and then brought

those notes into the jury room. Id. at 777-78. The

court held, “[W]e do not need to decide whether there

was juror misconduct because even assuming there

was, we are persuaded that [the juror’s notes] had no

substantial and injurious effect or influence in

determining the jury’s verdict.” Id. at 781.

The only circuit to hold that the Bible is not an

external influence is the Fourth Circuit.!! In

Robinson v. Polk, 438 F.3d 350 (4th Cir. 2006), a

juror asked the bailiff for a Bible and then read

several passages out loud in the jury room—

including at least one referring to “an eye for an

eye’”—to convince the other jurors to vote for a death

sentence. Id. at 357-58. The court ruled that “reading

the Bible is analogous to the situation where a juror

quotes the Bible from memory, which assuredly

would not be considered an improper influence.” Id.

at 364. “[Plrecisely because the Bible occupies a

unique place in the moral lives of those who believe

or any legitimate inference to be drawn therefrom.” Jd.; see also

Romine v. Head, 253 F.3d 1349, 1368 (11th Cir. 2001) (“[A]

prosecutor misleads a capital sentencing jury when he quotes

scripture as higher authority for the proposition that death

should be mandatory for anyone who murders his parents.”).

11 The Second, Third, Seventh, Eighth, Tenth, and D.C.

Circuits have not spoken on this issue.

19a

in it, its teachings cannot blithely be lumped

together with a private communication, contact, o

tampering with a juror without clear guidance from

the Supreme Court.”!? Id. at 366; see also Lenz v.

12 The Fourth Circuit declined to rehear the case en banc,

although Judge Wilkinson stated that he believed there should

be a “clear line” distinguishing between “personal and

deliberative use of the Biblical text” in the jury room. Robinson

uv. Polk, 444 F.3d 225, 226 (4th Cir. 2006) (Wilkinson, J.,

concurring in the denial of rehearing en banc). Judge Wilkinson

voted to deny rehearing, however, because he believed that

AEDPA constrained the circuit court from fashioning such a

rule. Id. at 229. We do not share Judge Wilkinson’s concerns in

this case because we are not creating a new rule. Remmer,

Turner, and Parker clearly establish that it is presumptively

prejudicial for a jury to consult an external influence, and

bringing the Bible into the jury room and reading specific

passages that bear directly upon the facts of the case is plainly

outside the evidence and law. See, e.g., Fields v. Brown, 503

F.3d 755, 778-79 (9th Cir. 2007) (en banc) (stating that the

prohibition from Teague v. Lane, 489 U.S. 288 (1989), of

creating a “new rule” on habeas review does not preclude an

argument that the Bible is an external influence). Further, we

are not the first court to recognize the clearly established rule

against external influences in the jury room and apply it to a

set of facts that are distinct from those that the Supreme Court

encountered. See, e.g., Wisehart v. Davis, 408 F.3d 321, 327 (7th

Cir. 2005) (deeming a juror’s knowledge from outside sources

that the defendant had taken a polygraph test during the trial

to be an external influence); Nevers v. Killinger, 169 F.3d 352,

369 (6th Cir. _ 999) (stating, in a case involving white police

officers who beat a black suspect, that the jury’s viewing of the

movie Malcolm X, its learning that the city was preparing for a

potential riot in the event of an acquittal, and its knowledge

that the defendants had been members of a controversial

undercover police unit was extraneous evidence); United States

v. Martinez, 14 F.3d 543, 551 (11th Cir. 1994) (examining the

jury’s use of a dictionary during deliberations under Remmer).

20a

Washington, 444 F.3d 295, 310-12 (4th Cir. 2006)

(following Robinson); Billings v. Polk, 441 F.3d 238,

248 (4th Cir. 2006) (holding that a juror’s reading of

the Bible at home to assist his decision process did

not raise a presumption of prejudice); Burch v.

Corcoran, 273 F.3d 577, 591 (4th Cir. 2001) (stating

that the jury’s consultation of a Bible was not

“Improper jury communication” because the “Bible

quotes, whether stated from memory or read from

the book, were . . . statements of folk wisdom or of

cultural precepts”). Judge King wrote a vigorous

dissent in Robinson, which, given the Supreme

Court’s clear guidance regarding external influences

and the analysis from the rest of the circuits, we find

more persuasive than the majority’s opinion. See

Robinson, 438 F.3d at 368 (King, J., dissenting in

part). Further, although we part company with the

Fourth Circuit and join the majority of other courts

to pass upon this issue, we note that the Fourth

Circuit’s cases are distinguishable in that they all

involved a juror reading general Biblical statements,

as opposed to a command that directly tracked the

specific facts of those cases.

This analysis persuades us that when a juror

brings a Bible into the deliberations and points out

to her fellow jurors specific passages that describe

the very facts at issue in the case, the juror has

crossed an important line. The Supreme Court

counsels us that a jury may not consult material that

is outside the law and evidence in the case. The

But see United States v. Williams-Davis, 90 F.3d 490, 503 (D.C.

Cir. 1996) (holding that a juror’s use of a dictionary did not

raise a presumption of prejudice).

2la

sible passages in question here were not part of the

»w and evidence that the jury was to consider in its

larntiene...Monanuear the inrore did not simnvlv.

discuss their own understanding of religious law and

morality or quote Bible passages from memory to aid

the discussion. Instead, the jurors referenced a

specific passage that stated that someone who

engages in a particular act—striking a person with

an object and killing him, as Oliver did to Collins—is

a murderer and must be put to death. Most circuits

have ruled that when a Bible itself enters the jury

room, the jury has been exposed to an external

influence. Here, we face facts that are even more

egregious than in those previous cases, as the jurors

consulted a specific passage that provided guidance

on the appropriate punishment for this particular

method of murder. As such, we hold that the jury’s

consultation of the Bible passages in question during

the sentencing phase of the trial amounted to an

external influence on the jury’s deliberations.

The question before us is not whether a juror

must leave his or her moral values at the door or

even whether a juror may consult the Bible for his or

her own personal inspiration during the deliberation

process. This case is also not about whether jurors

must forget that, generally, the Bible includes the

concept of an “eye for an eye.” See Burch, 273 F.3d at

591 (noting that the “Bible quotes, whether stated

from memory or read from the book, were

statements of folk wisdom or of cultural precepts”).

Therefore, we need not address these issucs.

Instead, here, several jurors collectively consulted a

Bible, in the jury room, and likely compared the facts

22a

of this case to the passage that teaches that capital

punishment is appropriate for a person who strikes

another over the head with an object and causes the

person's death.

The state urges us to consider solely whether the

Bible passage at issue had any bearing on the

factual questions the jury had to decide during the

sentencing phase: whether Oliver presented a threat

of future dangerousness and whether there was

mitigating evidence to warrant a sentence of life

imprisonment instead of death. This argument

misses the mark. The Bible served as an external

influence precisely because it may have influenced

the jurors simply to answer the questions in a

manner that would ensure a sentence cof death

instead of conducting a thorough inquiry into these

factual areas. Further, the Bible passage in this

instance was evidence of the “circumstances of the

offense that militates for .. . the imposition of the

death penalty.” TEX. CODE CRIM. PROC. ANN. art.

37.071(d)(1) (discussing the instructions the court

must give to the jury in a death penalty case).

A contrary holding would eviscerate the rule

from Remmer that jurors must rely on only the

evidence and law presented in an open court room. It

may be true that the Bible informs jurors’ general

outlook of the world and their moral values in

particular, and jurors may constitutionally rely upon

those morals in their deliberations. See J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 149 (1994)

(O’Connor, J., concurring) (“Jurors are not expected

to come into the jury box and leave behind all that

their human experience has taught them.” (internal

23a

citation and quotation marks omitted)). But the

particular passage at issue here does not generally

inform a juror’s moral understanding of the world.

The jurors did not testify that they knew, as people

of faith, that someone who hits another over the

head with an “instrument of iron” or a “hand weapon

of wood” so that the person dies is a murderer and

should be put to death. Instead, several jurors

testified that they read this passage in the Bible

while they were in the jury room debating Oliver's

fate. Thus, the jury’s use of the Bible here amounts

to a type of “private communication, contact, or

tampering” that is outside the evidence and law,

which is exactly what Remmer_ sought to

circumscribe. 347 U.S. at 229.

C. Harmless Error Analysis

Our inquiry, however, is not complete. We must

next determine the effect the Bible had on the jury’s

decision to impose the death penalty. That is, given

that there was a constitutional error because the

jury consulted an external influence, we must

determine if that constitutional error was harmless.

See Garcia v. Quarterman, 454 F.3d 441, 444 (5th

Cir. 2006) (“If the issue is a mixed question of law

and fact, such as the assessment of harmless error,

we review the district court’s determination de

novo.”).

Normally, under Remmer, if prejudice is likely

from the jury’s consultation of an external influence,

the court may place the burden of rebutting that

presumption on the state. See Remmer, 347 U.S. at

229; United States v. Sylvester, 143 F.3d 923, 934

(5th Cir. 1998) (stating that “only when the court

24a

determines that prejudice is likely should the

government be required to prove its absence”); see

also United States v. Olano, 507 U.S. 725, 739 (1993)

(stating that the ultimate inquiry is whether “the

intrusion affectled] the jury’s deliberations and

thereby its verdict”). However, on habeas review, we

do not use the normal harmless error analysis. See

Brecht v. Abrahamson, 507 U.S. 619, 637 (19983);

Pyles v. Johnson, 136 F.3d 986, 994 (5th Cir. 1998).

Instead, habeas petitioners are not entitled to relief

based on a constitutional error unless the error “had

la] substantial and injurious effect of influence in

determining the jury’s verdict.” Id. (citing Kotteakos

v. United States, 328 U.S. 750, 776 (1946)); see aso

Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007) (hoicang

that a federal court must assess the prejudicial

impact of a constitutional error in a state court

crimina! trial under the “substantial and injurious

effect” standard set forth in Brecht).13

Other courts to consider the effect of a Bible in

the jury room have not faced similar facts, where the

passage the jury read described the defendant’s

13 Not all circuits ar in agreement regarding the

appropriate standard for determining prejudice when a jury

improperly consults the Bible during deliberations. In McNair

v. Campbell, the Eleventh Circuit did not cite Brecht and

instead analyzed whether the state could rebut the resumption

of prejudice, holding that the state had carried its burden based

on the “innocuous nature” of the Bible passages in question.

416 F.3d 1291, 1309 (11th Cir. 2005). However, we must follow

our previous decision in Pyles, which stated that the Supreme

Court requires us to use the Brecht standard when evaluating a

habeas petitioner’s claim that a juror improperly considered

external evidence. See Pyles, 136 F.3d at 992.

25a

method of killing. For example, in McNair v.

Campbell, the Eleventh Circuit noted that the two

passages that the foreman had read to the jury did

not contain “material which would encourage jurors

to find a defendant guilty or te recommend the death

penalty.”14 416 F.3d at 1308 (internal quotation

marks omitted). Therefore, the Bible passages

“merely had the effect of encouraging the jurors to

take their obligations seriously and to decide the

question of guilt or innocence based only on the

evidence.” Id. at 1309 (internal quotation marks

omitted). In addition to the innocuous nature of the

Bible passages at issue, the court noted that a juror

brought in the extraneous evidence without the

imprimatur of the court and that the state’s case

against the defendant was particularly strong. Id.

These factors supported the court’s view that the

Bible passages did not prejudice the jury’s decision.

Id.15

Similarly, the Ninth Circuit, sitting en banc,

rejected the petitioner’s argument of prejudice when

a juror made notes “for” and “against” the death

penalty based on his review of the Bible at home and

\¢ “The two Bible verses read included the familiar Psalm

121, and Luke 6:37. The latter verse reads as follows: ‘Judge

not, and ye shall not be judged; condemn not and ye shall not

be condemned; forgive, and ye shall be forgiven... .” McNair,

416 F.3d at 1308 n.16.

16 The court also noted that the habeas petitioner had not

rebutted the state court's factual finding that the Bible did not

prejudice the jury’s decision. Jd. at 1308-09. Nevertheless, the

court undertook its own review of the record and determined

that the state had “carricd its burden of rebutting the

presumption of prejudice.” Jd. at 1309.

26a

then brought those notes into the jury room. Fields

v. Brown, 503 F.3d 755, 776-82 (9th Cir. 2007) (en

banc). The court chose not to decide whether the

juror’s conduct was improper because, either way,

the notes did not have a “substantial and injurious

effect or influence in determining the jury’s

verdict.”16 Id. at 781. The court rested its decision of

no prejudice on the fact that the juror’s notes had

both a “for” and “against” part, the notes entered the

jury room early in the deliberations and thus jurors

could still take as much time as they needed to sort

through the evidence and reflect on the appropriate

punishment, the jury was instructed to base its

decision solely on the facts and the law as presented

during the trial, and the aggravating evidence was

powerful given that the case involved multiple

murders, rape, and kidnapping. Id. at 781-82.17

While the facts before us regarding the jury’s use

of the Bible are perhaps more egregious than in

16 Thus, the Ninth Circuit’s approach was backwards under

Remmer: the couct found that any use of the Bible was not

prejudicial before determining if the Bible was an external

influence that would trigger the presumption of prejudice.

17 Six judges dissented. As Judge Gould noted, “Considering

that if only one juror had declined to sentence Fields to death

the trial court would have been obligated to impose a life

sentence, it is more probable than not that [the juror’s]

introduction of written researched Bible quotations into jury

deliberations” prejudiced the jury. Jd. at 788 (Gould, J.,

dissenting). Judge Berzon added that “[h]jere, there is no

question that the Biblical passages copied by [the juror]

pertained to the key legal question before the jury at the

penalty phase—whether death was the appropriate sentence

for Fields’s acts.” Jd. at 793 (Berzon, J., dissenting).

27a

these previous cases, the procedural posture here

constrains our analysis. This is because here, the

state court made a factual finding regarding the

effect of the Bible on the jury, and we must defer to

that factual finding unless Oliver presents “clear and

convincing” evidence to the contrary. See 28 U.S.C. §

2254(e)(1). After hearing the testimony of four jurors

at an evidentiary hearing on Oliver’s motion for a

new trial, the state court ruled that the jurors

rendered their decision “in accord with the evidence

they heard in this case uninfluenced by any outside

influence of any kind shown to the Court in this

hearing.” In essence, the state court made a finding

that the Bible did not prejudice the jury’s decision.

The effect of an ex parte communicatici on a juror’s

impartiality is a question of “historical fact.” Rushen

v. Spain, 464 U.S. 114, 120 (1983) (per curiam)

(deferring to state court’s finding of “historical fact”

that the ex parte communications between a judge

and a juror did not bias the jury’s decision ); see also

Patton v. Yount, 467 U.S. 1025, 1036-37 (1984)

(holding that the question of juror impartiality is not

a mixed question of law and fact but instead is

“plainly one of historical fact”). A state court’s post-

trial factual finding regarding a juror’s impartiality

is entitled to a “presumption of correctness.” Rushen,

464 U.S. at 120.

For example, in Moody v. Johnson, the state

court conducted two evidentiary hearings and

determined that the improper conversation between

the bailiff and one of the jurors did not impact the

jury’s deliberations. 139 F.3d 477, 483 (5th Cir.

1998). On habeas review, we noted that “(t]he

28a

determination of whether there was any improper

conduct and its [elffect, if any, on juror impartiality

are questions of historical fact that ‘must be

determined, in the first instance, by state courts and

deferred to, in the absence of ‘convincing evidence’ to

the contrary, by the federal courts.” Id. (citing

Rushen, 464 U.S. at 120); see, e.g., Schaff v. Snyder,

190 F.3d 513, 534-35 (7th Cir. 1999) (deferring to

state court’s post-trial factual finding that the

extraneous statement the jury had heard regarding

other similar charges against the defendant did not

bias the jury’s decision); Crease v. McKune, 189 F.3d

1188, 1193 (10th Cir. 1999) (deferring to state court’s

factual finding that improper communication

between the judge and a juror did not prejudice the

habeas petitioner). In contrast, if the state court does

not make factual findings regarding the effect of an

external influence on the jury, then we simply

conduct a harmless error analysis using the Brecht

standard without having to defer to any state court

findings. See, e.g., Pyles, 136 F.3d at 994-95

(analyzing the prejudicial effect of a juror improperly

visiting the crime scene without mentioning whether

the state court made any factual findings). But see

Dorsey v. Quarterman, 494 F.3d 527, 531 (5th Cir.

2007) (conducting a harmless error analysis without

explicitly deferring to the state court’s conclusion

that the jury could continue deliberating even

though two jurors had viewed evidence not in the

record). J

Oliver has failed to demonstrate that the state

court’s finding that the Bible did not influence the

jury lacks “even fair support in the record.” Rushen,

29a

464 U.S. at 120 (internal quotation marks omitted).

Although the record includes evidence that cuts both

ways, given the highly deferential standard of

habeas review, we conclude that at least four factors

provide “fair support in the record” for the state

courts finding. See id. see also Nelson v.

Quarterman, 472 F.3d 287, 310 (5th Cir. 2006) (en

banc) (“We are mindful that under AEDPA a federal

court may not grant habeas relief simply because it

disagrees with the state court’s resolution of an issue

.”). First, there is contradictory evidence

regarding whether the jurors’ consultation of the

Bible occurred before or after the jury reached its

decision. Second, several jurors testified that the’

Bible was not a focus of their discussions. Third, the

court instructed the jury that “[i]n deliberating upon

the cause you are not to refer to or discuss any

matter or issue not in evidence before you” and that

“you are bound to receive the law from the Court.”!8

Fourth, the jurors brought the Bibles into the jury

room by themselves and without the imprimatur of

the court. While Oliver makes several arguments

that the Bible passages might have swayed the jury,

he has not presented clear and convincing evidence

18 We note that this factor also cuts against the state’s

argument in that the jurors disobeyed the court’s instructions

by consulting the Bible, which potentially tainted the jury’s

decision. See Fields, 503 F.3d at 787 (Gould, J., concurring in

part and dissenting in part) (noting that “here the conclusion is

inescapable that the jury did not follow the trial court’s

instructions” when it consulted the Bible). This fact also calls

into question the court’s statement that the jurors “considered

this case in accord with the Court’s Charge and the instructions

of the Court... .”

30a

to rebut the presumption of correctness that we must

afford to the state court's factual finding,

particularly given that the state court heard from

the jurors themselves and concluded that the Bible

did not prejudice their decision. See Rushen, 464

U.S. at 120 (“This finding of ‘fact’-—on a question the

state courts were in a far better position than the

federal courts to answer—deserves a high measure

of deference ... .” Gnternal quotation marks and

citation omitted)); Young v. Herring, 938 F.2d 543,

559 n.8 (5th Cir. 1991) (noting that the trial judge is

“uniquely qualified to appraise the prejudicial effect

of a communication on the jury”). As Oliver has not

presented clear and convincing evidence to rebut the

state court’s finding that the Bible did not influence

the jury’s decision, we cannot say that the jury’s use

of the Bible had a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht,

507 U.S. at 637.

IV. CONCLUSION

The jury’s use of the Bible during the sentencing

phase of Oliver’s trial amounted to an improper

external influence on the jury’s deliberations.

However, Oliver has failed to rebut the state-court’s

factual finding that the Bible did not prejudice the

jury’s decision. Therefore, we AFFIRM the district

court’s judgment denying habeas relief.

AFFIRMED.

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APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-70006

United States Court of Appeals

Fifth Circuit

November 16, 2007

Charles R. Fulbruge III

Clerk

KHRISTIAN OLIVER

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas, Beaumont Division

No. 1:04-cv-00041-RHC

32a

Before SMITH, GARZA, and PRADO, Circuit

Judges.

PER CURIAM:*

Khristian Oliver (“Oliver”) seeks habeas corpus

relief from his conviction and sentence of death for

the murder of Joe Collins (“Collins”). After denying

habeas relief on all claims, the district court granted

Oliver a certificate of appealability (“COA”) on two

issues: (1) whether he suffered a denial of his right

to an impartial jury under the Sixth Amendment

when jurors consulted Biblical scripture that called

for death as the punishment for murder, and (2)

whether Oliver suffered a denial of his right to a

punishment determination based upon discretion

carefully: guided by law under the Eighth

Amendment because several jurors consulted the

Bible during deliberations. Oliver appeals the denial

of a COA for three of his claims and the denial of

habeas relief for the claims in which he received a

COA. He also seeks either a stay and abatement of

the federal proceeding so that he may go back to

state court for an evidentiary hearing or a federal

evidentiary hearing regarding his Bible-related

claims. After reviewing the record, we DENY

Oliver’s request for a COA on his three additional

claims. We also DENY Oliver’s request for a stay

and abatement for a state hearing and his request

for a federal evidentiary hearing on his Bible related

* Pursuant to STH Cir. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the

limited circumstances set forth in STH Cir. R. 47.5.4"

33a

claims. Finally, we set this case for oral argument

regarding the remaining claims and direct the

parties to focus on specific issues, as discussed

below.

I FACTUAL AND PROCEDURAL BACK-

GROUND

The district court recounted the facts as follows:

Oliver began a crime spree about a year and

[a] half before the incident which resulted in

his conviction in this case. There were over a

dozen burglaries and many of them involved

the use of weapons. On March 17, 1998,

Oliver, his girlfriend Sonya Reed, Bennie

Rubalcaba (age 16) and his brother, Lonny

Rubalcaba (age 15), stopped at the house of

the victim, Joe Collins, in rural Nacogdoches

County. Oliver and Lonny Rubalcaba went

to burglarize the house, carrying Oliver’s

.380 caliber pistol, a handful of bullets and

bolt cutters. Reed and Bennie Rubalcaba

stayed in the truck. While the two were in

the house, Collins came home. Collins shot

Lonny Rubalcaba in the leg as he and Oliver

were trying to escape. Oliver then shot

Collins five times. At least two of the shots

were fired while the victim lay on his back

on the ground outside his house. As Bennie

Rubalcaba helped his brother Lonny back to

the truck he turned and saw Oliver striking

Collins several times in the head with a rifle

butt, while Collins was lying on the ground.

Collins’s skull was severely fractured and

his face was disfigured nearly beyond

34a

recognition.

Oliver then joined the group in the

truck. The group took Lonny Rubalcaba to

the hospital and went to the Sheriff's office

and filed reports saying that someone had

driven by and shot Lonny while they were

all at a farm. The next day, deputies picked

up Bennie Rubalcaba and questioned him.

Bennie then gave a written statement

admitting what had actually happened. The

same morning, police questioned Lonny

Rubalcaba, who, after originally repeating

the story about the farm, gave a second

written statement coinciding with his

brother’s second statement. Police located

Oliver and Reed at a Houston motel and

arrested them.

A jury convicted Oliver of capital murder based on

his killing of Collins during the commission of a

burglary. The Texas Court of Criminal Appeals

(“TCCA”) affirmed Oliver’s conviction and sentence

of death. Oliver v. State, No. 73,837, slip op. (Tex.

Crim. App. April 17, 2002) (unpublished). The

United States Supreme Court denied his petition for

a writ of certiorari. Oliver v. Texas, 537 U.S. 1161

(2003). The TCCA denied Oliver’s petition for post-

conviction relief, and the United States Supreme

Court again denied his petition for a writ of

certiorari. Oliver v. Texas, 538 U.S. 1001 (2003). On

January 21, 2004, Oliver filed an application for a

writ of habeas corpus with the district court. The

Appellee Nathaniel Quarterman (the “Director”)

moved for summary judgment on all of Oliver’s

35a

claims. The district court granted the Diurector’s

motions in two separate orders on September 29,

2005, and November 9, 2005. The court granted a

COA for two issues but denied a COA for the

remaining claims.

IT. Analysis

A. Oliver’s requests for a COA

1. Standard for issuing a COA

Because Oliver filed his habeas petition in the

district court after the effective date of the

Antiterrorism and Effective Death Penalty Act of

1996 (““AEDPA”), 28 U.S.C. § 2254, AEDPA governs

his petition. See Lindh v. Murphy, 521 U.S. 320, 336

(1997). Under AEDPA, Oliver must obtain a COA

from either the district court or appellate court

before he can appeal the denial of habeas relief. See

28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). To obtain a COA, Oliver must make

“a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). That is,

if Oliver can show that the district court’s

application of AEDPA to his constitutional claims is

debatable among reasonable jurists, we will issue a

COA. Miller-El, 537 U.S. at 336.

In deciding whether to grant a COA, we are

limited “to a threshold inquiry into the underlying

merit of [the petitioner’s] claims.” Miller-E]l, 537 U.S.

at 327 (citing Slack v. McDaniel, 529 U.S. 473, 481

(2000)). Our analysis “requires an overview of the

claims in the habeas petition and a_ general

assessment of their merits” rather than a “full

consideration of the factual or legal bases adduced in

36a

support of the claims.” Jd. at 336. “Because the

present case involves the death penalty, any doubts

as to whether a COA should issue must be resolved

in [the petitioner’s] favor.” Hernandez v. Johnson,

213 F.3d 243, 248 (5th Cir. 2000).

In deciding whether to grant a COA, we

recognize that AEDPA imposes a_ deferential

standard of review on a federal habeas court with

respect to claims adjudicated on the merits in state

court. A federal court cannot grant habeas relief

unless the state court adjudication of that claim

either:

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established federal law, as

determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts

in light of the evidence presented in the

state court proceeding.

28 U.S.C. § 2254(d); see Wiggins v. Smith, 539 U.S.

510, 520 (2003). A decision is contrary to clearly

established federal law if “the state court arrives ata

conclusion opposite to that reached by [the Supreme

Court] on a question of law” or “confronts facts that

are materially indistinguishable from a relevant

Supreme Court precedent and arrives at a result

opposite to [that precedent].” (Terry) Williams v.

Taylor, 529 U.S. 362, 405 (2000). A decision involves

an unreasonable application of Supreme Court

precedent if it “unreasonably extends a _ legal

37a

principle from [Supreme Court precedent] to a new

context where it should not apply or unreasonably

refuses to extend that principle to a new context

where it should apply.” Id. at 407. We presume the

facts of the case to be correct unless Oliver meets his

burden of rebutting that presumption by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1).

2. Reasonable jurists would not debate that

Apprendi _is inapplicable to the mitigation

apecial question

Oliver argues that the trial court erred in failing

to instruct the jury that the State had the burden of

proof beyond a reasonable doubt on the issue of

mitigation during the punishment phase of the trial.

He contends that the Supreme Court’s decisions in

Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Ring v. Arizona, 536 U.S. 584 (2002), extend the

requirement of proof beyond a reasonable doubt to a

jury’s determination of mitigating factors that would

warrant a sentence of life imprisonment instead of

death. In Apprendi, the Court held that “[o]ther than

the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed

statutory maximum must be submitted to > jury,

and proved beyond a reasonable doubt.” 530 U.S. at

490. Oliver contends that Texas’s capital murder

statute provides for life imprisonment as_ the

maximum penalty, and that death is the penalty

only if the jury answers both “special issues”

questions in the proscribed way. Therefore, Oliver

claims, Texas’s statute violates Apprendi because it

_allows a jury to “increase” the maximum penalty to

death without the State showing the absence of

38a

mitigating factors beyond a reasonable doubt.

Texas law regarding the death penalty first

requires a jury to find the defendant guilty of a

capital felony. See TEX. CODE CRIM. PROC. ANN. art.

37.071 § 1 (Vernon 2006). If the state seeks the

death penalty, then the trial court must conduct a

second punishment proceeding. Id. § 2(a)(1). During

deliberations on whether to impose the death

penalty, the jury must answer two “special issues”

questions: First, “whether there is a probability that

the defendant would commit criminal acts of violence

that would constitute a continuing threat to society,”

and second, “whether ... there is a sufficient

mitigating circumstance or circumstances to warrant

that a sentence of life imprisonment without parole

rather than a death sentence be imposed.” Id. §§

2(b)(1), (2)(e)(1). The court will impose the death

penalty only if the jury unanimously answers the

first question “yes” and the second question “no.” Id.

That is, the jury must find that there are

aggravating factors and insufficient mitigating

factors.

Reasonable jurists would not debate that

Apprendi is inapplicable to the jury’s determination

of mitigating factors. In Apprendi, the Supreme

Court specifically distinguished between “facts in

aggravation of punishment and facts in mitigation,”

stating that burden-of-proof requirements are

“absent” from a scheme that allows a judge to impose

a sentence below the maximum penalty based on

mitigating factors. Apprendi, 530 U.S. at 490 n.16

(noting that in reducing a sentence based on

mitigating factors, a judge is “neither exposing the

39a

defendant to a deprivation of liberty greater than

that authorized by the verdict according to statute,

nor is the judge imposing upon the defendant a

greater stigma than that accompanying the jury

verdict alone”); see also Ring, 536 U.S. at 597 n.4

(noting that its decision that a sentencing judge may

not, sitting alone, determine the presence or absence

of aggravating factors does not extend to the finding

of mitigating circumstances); Rowell v. Dretke, 398

F.3d 370, 376-77 (5th Cir. 2005) (noting that Ring

did not apply to the burden of proof for mitigating

factors because the Court “focused exclusively on

certain judicial findings regarding aggravating

factors”). Similarly, in Walton v. Arizona, the Court

stated that “[slo long as a State’s method of

allocating the burdens of proof does not lessen the

State’s burden to prove every element of the offense

charged, or in this case to prove the existence of

aggravating circumstances, a defendant’s

constitutional rights are not violated by placing on

him the burden of proving mitigating circumstances

sufficiently substantial to call for leniency.” 497 U.S.

639, 650 (1990), overruled on other grounds, Ring,

536 U.S. at 584. More recently, the Supreme Court

upheld Kansas’s death penalty scheme that placed

the burden of proving the existence of aggravating

factors on the state but required the defendant to

offer any mitigating evidence. Kansas v. Marsh, 126

S. Ct. 2516, 2524 (2006); see id. at 2527

(“Significantly, although the defendant appropriately

bears the burden of proffering § mitigating

circumstances—a burden of production—he never

bears the burden of demonstrating that mitigating

circumstances outweigh aggravating circum-

40a

stances.”). Plainly, therefore, if a state’s scheme is

constitutional when it places the burden of

production for mitigating factors on the defendant,

then Texas’s death penalty statute also comports

with Supreme Court precedent because it leaves

open who has the burden of proof for mitigating

factors.

This court’s cases also have upheld Texas’s

scheme of not instructing the jury on who has the

burden of proof for mitigating factors. See Granados

v. Quarterman, 455 F.3d 529, 537 (5th Cir.), cert

denied, 127 S. Ct. 732 (2006). In Granados, the court

granted a COA to a death penalty habeas applicant

on this very same claim and subsequently rejected

the applicant’s argument after additional briefing.

Id. In so doing, the court noted that death—not life

imprisonment—is the maximum sentence for a

capital conviction under Texas law. Id. “Put another

way, a finding of mitigating circumstances reduces a

sentence from death, rather than increasing it to

death.” Id. Similarly, this court noted that “[nlo

Supreme Court or Circuit precedent constitutionally

requires that Texas’s mitigation special issue be

assigned a burden of proof.” Rowell, 398 F.3d at 378;

see also Ortiz v. Quarterman, No. 06-70020, 2007

WL 2936244, at *10 (5th Cir. Oct. 10, 2007)

{rejecting a COA for this exact same claim);

Scheanette v. Quarterman, 482 F.3d 815, 828 (5th

Cir. 2007) (same). Given the extensive Supreme

Court and circuit precedent, reasonable jurists

would not debate that Apprendi has no application

to ‘'exas’s scheme of leaving open who has the

burden of proof for the mitigation special issue. We

4la

therefore DENY Oliver’s request for a COA on this

claim.

3. Reasonable jurists would not debate that

Penry IT does not apply to the lack of jury

instructions regarding mitigation

Oliver contends that Texas’s “special issues”

questions—which place the burden of proof on the

State to show aggravating but not mitigating

factors—sends “mixed signals” to the jury in

violation of Penry v. Johnson (Penry ID, 532 U.S.

782, 802 (2001). Oliver argues that failing to assign

a burden of proof for the mitigation factors produces

a confusing effect and encourages jurors to evaluate

the evidence in inconsistent ways.

In Penry II, the Supreme Court struck down a

judicially crafted jury instruction because it was

confusing and, in effect, required the jury to answer

the special issues dishonestly in order to give effect

to the defendant’s mitigating evidence. Id. at 801.

The Court rejected the instruction as sending “mixed

signals” to the jury. Id. at 802. The Court, however,

implicitly upheld Texas’s current scheme:

A clearly drafted catchall instruction on

mitigating evidence also might have

complied with [the Court’s precedents].

Texas’ current capital sentencing scheme

(revised after Penry’s second trial and

sentencing) provides a helpful frame of

reference. Texas now requires the jury to

decide “[wJhether, taking into consideration

all of the evidence, including’ the

circumstances of the offense, the defendant’s

42a

character and background, and the personal

moral culpability of the defendant, there is a

sufficient mitigating circumstance’ or

circumstances to warrant that a sentence of

life imprisonment rather than a death

sentence be imposed.” TEX. CODE CRIM.

Proc. ANN. art. 37.071(2)(e)(1) (Vernon

Supp. 2001). . . . At the very least, the

brevity and clarity of this instruction

highlight the confusing nature of the

supplemental instruction actually given, and

indicate that the trial court had adequate

alternatives available to it as it drafted the

instructions for Penry’s trial.

Id. at 803. Far from rejecting the current scheme

regarding mitigation, therefore, the Supreme Court

implicitly endorsed it. See, eg. Coleman v.

Quarterman, 456 F.3d 537, 542 (5th Cir. 2006), cert

denied, 127 S. Ct. 2030 (2007) (quoting Rowell, 398

F.3d at 378) ([Nlo Supreme Court or Circuit

precedent constitutionally requires that Texas’s

mitigation special issue be assigned a burden of

proof.”). Oliver has failed to make any plausible

argument that Texas’s mitigation special issue does

not allow the jury to consider and give effect to a

defendant’s mitigating evidence. Oliver also points to

no other cases to support his position. Thus, Oliver

has failed to explain why the district court’s decision

amounted to a violation of “clearly established

federal law, as determined by the Supreme Court.”

28 U.S.C. § 2254(d)(1). Reasonable jurists would not

debate that the district court properly rejected

Oliver’s claim. We therefore DENY Oliver’s request

43a

for a COA on this claim.

4. Reasonable jurists would not debate that the

district court did not err in rejecting Oliver’s

parole instruction claim

Oliver argues that the trial court’s failure to

instruct the jury that a life sentence would require

Oliver to spend forty years in prison before becoming

eligible for parole violated the Eighth Amendment’s

requirement of heightened reliability in the jury

instructions. He rests his argument on an “evolving

standard regarding parole instructions” that he

claims mandated his requested jury charge.

Specifically, he argues that during his trial, in April

1999, the Texas legislature considered, and then

passed, a law requiring an instruction that notified

the jury that the defendant would not be eligible for

parole for forty years. See TEX. CODE CRIM. PROC.

ANN. art. 37.071 § 2(e)(2)(B) (Vernon 1999).! This

| The new instruction (now no longer in effect), for crimes

committed after September 1, 1999, read:

Under the law applicable in this case, if the defendant

is sentenced to imprisonment in the institutional

division of the Texas Department of Criminal Justice

for life, the defendant will become eligible for release

on parole, but not until the actual time served by the

defendant equals 40 years, without consideration of

any good conduct time. It cannot accurately be

predicted how the parole laws might be applied to

this defendant if the defendant is sentenced to a term

of imprisonment for life because the application of

those laws will depend on decisions made by prison

and parole authorities, but eligibility for parole does

not guarantee that parole will be granted.

44a

law became effective for crimes committed on or

after September 1, 1999. Act approved May 21,

1999, 76th Leg. R.S., ch. 140, § 2, 1999 Tex. Sess.

Law. Serv. 140 (Vernon). Oliver correctly concedes

that the amended statute does not apply

retroactively to his trial and instead argues that the

legislative hearing that culminated in the revised

jury instruction represented an “evolving standard”

that required the jury to know, even before the law

took effect, of Oliver’s ineligibility for parole for forty

years.

In Simmons v. South Carolina, the Supreme

Court ruled that a capital defendant has a

constitutional right to inform the jury of his

ineligibility for parole when the state’s statute

provides for a life sentence without the possibility of

parole as the alternative to the death penalty. 512

U.S. 154, 168-69 (1994) (plurality opinion). The

plurality specifically exempted from its decision

those state statutes that provide for the possibility of

parole. Id. at 168 (“In a State in which parole is

available, how the jury’s knowledge of parole

availability will affect the decision whether or not to

impose the death penalty is speculative, and we

shall not lightly second-guess a decision whether or

not to inform a jury of information regarding

See TEX. CODE CRIM. ANN. art. 37.071 § 2(e)(2)(B) (Vernon

1999). Texas has since amended its statutes to provide for life

without parole as the alternative to the death penalty and to

instruct the jury of this fact. See td. § 2(e)(2)(B) (Vernon 2006)

(The Court shall “charge the jury that a defendant sentenced to

confinement for life without parole under this article is

ineligible for release from the department on parole.”).

45a

parole.”). In Ramdass v. Angelone, the Court

reiterated that the Simmons rule applies only when

the defendant is ineligible for parole for life under

state law. 530 U.S. 156, 166-67 (2000) (plurality

opinion) (holding that the trial judge did not have to

provide a jury instruction on a life sentence under

Simmons because the defendant was not actually

parole ineligible at the time of his capital

sentencing). Although the Supreme Court decided

these cases under due process rationale and not the

Eighth Amendment, we find them instructive as to

the lack of an evolving standard requiring a jury

instruction regarding a Texas statute that allowed

for the possibility of parole.

Indeed, we have rejected similar claims from

other habeas petitioners. See Thacker v. Dretke, 396

F.3d 607, 617 (5th Cir. 2005) (“Since Simmons was

decided, we have repeatedly held that neither the

Due Process clause nor the Eighth Amendment

requires Texas to allow presentation of parole

eligibility issues, because Texas does not offer, as an

alternative to capital punishment, life imprisonment

without possibility of parole.”) (footnote omitted);

Rudd v. Johnson, 256 F.3d 317, 320-21 (5th Cir.

2001) (rejecting a COA for this exact same claim);

Johnson v. Scott, 68 F.3d 106, 112 (5th Cir. 1995)

(“We have consistently held. . . that neither the due

process clause nor the Eighth Amendment compels

instructions on parole in Texas.”).

Given this precedent,” reasonable jurists would

~ The only case that Oliver cites to support his position is

Clark v. Tansy, 882 P.2d 527, 533 (N.M. 1994), where the New

46a

not debate that there is no “evolving standard” that

required the trial court to provide Oliver’s requested

jury instruction. See Thacker, 396 F.3d at 617

(“Thus, settled precedent makes pellucid the

reasonableness of the state court’s rejection of [the

habeas petitioner’s] argument that Simmons and its

progeny require that he be able to raise parole

eligibility with the jury. The district court’s denial of

his claims, therefore, is not reasonably debatable

and cannot justify the issuance of a COA.”). We

therefore DENY Oliver’s request for a COA on this

claim.?

B. Oliver’s claims for which he received a COA

The district court rejected Oliver’s request for

Mexico Supreme Court held that due process required a jury

instruction that notified the jury as to the length of

incarceration the defendant would face before becoming eligible

for parole if he is not sentenced to death. Clark provides little

support, however, because the court explicitly chose not to

decide the case on Eighth Amendment grounds. Id. at 490.

Moreover, even if Clark supports Oliver’s position, it is hardly

enough evidence to constitute an “evolving standard.”

3 We also note that Oliver’s requested jury instruction

would amount to a “new rule” in violation of the non-

retroactivity principle of Teague v. Lane, 489 U.S. 288, 310

(1989). See Thacker, 396 F.3d at 617 n.15 (“Although [the

habeas petitioner] argues at length that applying Simmons in

the way he proposes would merely be an unremarkable

application of existing precedent, this is plainly not the case.

Given the volume of caselaw in this circuit holding that, despite

Simmons, the Fourteenth and Eighth Amendments do not

require Texas to allow discussion of parole eligibility in capital

trials, a decision to the contrary here would undoubtedly

constitute a ‘new rule’ under Teague and is therefore barred.”).

47a

habeas relief but granted a COA on two claims

related to several jurors’ alleged use of the Bible

during jury deliberations. Oliver contends that

evidence from his state court post-conviction hearing

on his motion for a new trial, as well as additional

evidence uncovered after that hearing, demonstrates

that jurors consulted the Bible when considering

whether to impose death or life imprisonment during

the punishment phase of his trial. Oliver argues that

any use of the Bible during jury deliberations

violated his rights under the Sixth and Eighth

Amendments. Oliver also asks this court either to

stay this proceeding so that the state court can

conduct an additional hearing based on the newly-

discovered evidence or remand to the federal district

court for an evidentiary hearing.

1. Oliver’s request for a stay and abatement or

for an evidentiary hearing is without merit

Oliver argues that he is entitled to, and never

received, a hearing on the additional evidence he

uncovered from an interview between a foreign

journalist and juror Michael Brenneisen (the

“Brenneisen interview”). This interview took place in

February 2002, one month after Oliver had timely

submitted his habeas application to the TCCA. In

the interview, Brenneisen stated that jurors relied

on the Bible in making their decision during the

punishment phase of deliberations.4 Upon learning

of the interview, Oliver submitted to the TCCA an

4 Oliver claims that Brenneisen’s interview confirms and

bolsters the evidence from the four jurors who testified during

the state post-conviction hearing.

48a

“Objection[ ] to Disposition Without Evidentiary

Hearing and Motion for Extension of Time to File

Habeas Findings of Fact and Conclusions of Law.”

The TCCA deemed this motion to be—a-subsequent

application for habeas corpus because Oliver

submitted it after the state law deadline for an

initial writ of habeas corpus. The court therefore

dismissed the subsequent application as an abuse of

the writ.

Oliver then filed his federal habeas application

in the district court. The court denied his motion to

stay the federal proceeding so that he could seek a

hearing in state court based on his “new” evidence.

The court determined that “the appropriate relief

[when a habeas applicant asserts that he has not

exhausted his claim in the state court based on

newly discovered evidence] . . . is for the federal

court to consider the new evidence, not to remand

the case to the state court.”5 Oliver submitted a

transcript of the interview to the district court. The

court denied Oliver’s request for a federal hearing on

this issue. In particular, the court ruled that under

28 U.S.C. § 2254(e)(2), Oliver was not entitled to a

hearing because he did not act with “due diligence”

to exhaust his claim in the state post-conviction

hearing. The district court also ruled that Oliver

failed to meet the second prong of § 2254(e)(2)

because he failed to show that “but for relying on the

5 It is not clear whether the district court relied on the

Brenneisen interview in making its decision on the merits of

Oliver’s claim. Instead, the district court focused on whether

Oliver was entitled to a hearing and spent little time analyzing

the underlying substantive issues.

49a

Bible, no reasonable juror would have answered the

special issues in the way that resulted in his

receiving a death sentence.” The district court then

denied habeas relief on his two claims related to the

jury’s use of the Bible.

Oliver argues that this court should stay and

abate the federal proceeding so that he may go back

to the state court and obtain a hearing on his claim.

The flaw in Oliver’s argument, however, is that the

state court already refused to grant him a hearing.

The TCCA already considered his request to stay

the proceeding so that he could seek a hearing

regarding the information from the Brenneisen

interview, and it deemed Oliver’s request to be a

subsequent application for habeas corpus that is

barred under state law. Oliver presents no

arguments as to why the state court would now

grant him a hearing. A stay and abatement,

therefore, would amount to nothing more than an

unnecessary and fruitless delay.

Nor is Oliver entitled to a hearing in federal

court. The district court applied the correct standard

under § 2254(e)(2) regarding Oliver’s request for an

evidentiary hearing in federal court.

Section 2254 (e)(2) provides:

If the applicant has failed to develop the

factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless the

applicant shows that—

50a

(A) the claim relies on—

(i) a new rule of constitutional law,

made retroactive to cases. on

collateral review by the Supreme

Court, that was previously

unavailable; or

(ii) a factual predicate that could

not have been previously discovered

through the exercise of due

diligence; and

(B) the facts underlying the claim

would be sufficient to establish by clear

and convincing cvidence that but for

constitutional error, no_ reasonable

factfinder would have found the applicant

guilty of the underlying offense.

As the district court correctly noted, Oliver fails to

meet subsection (A)(ii) because Oliver could have

discovered the evidence from the Brenneisen

interview through the exercise of due diligence.® All

6 We make no decision regarding whether the district court

correctly found that Oliver failed to meet subsection (B)

because, “but for relying on the Bible, no reasonable juror

would have answered the special issues in the way that

resulted in [Oliver] receiving a death sentence.” We note,

however, that subsection (B) requires the habeas applicant to

show that “no reasonable factfinder would have found the

applicant guilty of the underlying offense,” not that no

reasonable factfinder would have imposed the same sentence.

28 U.S.C. § 2254(e)(2)(B) (emphasis added). Oliver’s failure to

meet subsection (A) makes the district court’s application of

pee 0 Bac (B) moot. As to the substance of the district court’s

statement that the jurors did not improperly rely on the Bible

5la

Oliver had to do to uncover Brenneisen’s testimony

was to call him to the stand during the state post-

conviction hearing.’

In sum, Oliver has presented no authority that

would allow us to stay and abate this proceeding so

that the state court can conduct an evidentiary

hearing. Even if we did stay the federal proceeding,

Oliver has failed to show why the state court would

grant him a hearing after it denied the exact same

request in its habeas decision. Further, Oliver failed

to meet the stringent standard in § 2254(e)(2) that

would allow a federal court to conduct an evidentiary

hearing. Congress has decided that a habeas

applicant must jump a high hurdle before a federal

court can grant an evidentiary hearing, especially

when the applicant failed to develop the factual basis

of his claim in. state court. Therefore, we DENY

Oliver’s request for a stay and abatement and for an

evidentiary hearing.

2. Substantive merits of Oliver’s Bible claims

Oral argument will assist the court in

determining if Oliver is entitled to habeas relief

given the evidence presented in the state court post-

conviction hearing regarding the jury’s consultation

of the Bible during deliberations. Specifically, the

in making its decision, the court will consider this issue after

further briefing and oral argument.

7 Oliver claims that he did not call Brenneisen to testify

because Brenneisen would have been hostile to his lawyer and

would not have cooperated. This is mere speculation, however,

and does not excuse Oliver’s failure to call Brenneisen—or any

of the other jurors—at the hearing.

52a

parties are directed to focus on the following two

issues: (1) as a matter of law, did the jurors’

consultation of the Bible in the jury room constitute

an external influence that raises a presumption of

prejudice under clearly established federal law, as

determined by the Supreme Court of the United

States; and (2) if so, has the state rebutted that

presumption here? The clerk will issue a briefing

schedule for the partics to submit supplemental

priefs on these questions and will schedule oral

argument in due course.

lil. CONCLUSION

We DENY Oliver’s request for a COA on his

three claims. We also DENY Oliver’s request for a

stay and abatement or for an evidentiary hearing.

The clerk will issue a briefing schedule and schedule

oral argument for Oliver’s remaining claims.

53a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-70006

U.S. COURT OF APPEALS

FILED

OCT 3 2008

CHARLES R. FULBRUGE III

CLERK

KHRISTIAN OLIVER

Petitioner-Appellant

Vv.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas, Beaumont

54a

ON PETITION FOR REHEARING

Before SMITH, GARZA, and PRADO, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for

rehearing is

DENIED.

ENTERED FOR THE COURT:

/s/ Edward Prado

UNITED STATES CIRCUIT JUDGE

55a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-70006

D.C. Docket No. 1:04-CV-00041

KHRISTIAN OLIVER

Petitioner-Appellant

Vv.

NATHANIEL QUARTERMAN, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas, Beaumont.

56a

Before SMITH, GARZA, and PRADO, Circuit

Judges.

JUDGMENT

This cause was considered on the record on

appeal and the briefs on file.

It is ordered and adjudged that the judgment

of the District Court is affirmed.

ISSUED AS MANDATE: OCT 13, 2008

A True Copy

Attest

Clerk, U.S. Court of Appeals, Fifth Circuit

By: OO ince dam eo

Deputy

New Orleans, Louisiana QCT 13 2008

57a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

Institutions Division,

KHRISTIAN OLIVER, §

§

Petitioner, §

§

v. § Civil Action

§ No. 1:04-CV-41

DOUG DRETKE, Director, §

Texas Department of Criminal § JUDGE

Justice, Correctional § RON CLARK

§

§

Respondent. §

SECOND MEMORANDUM OPINION

Khristian Oliver (“Oliver”), an inmate confined

to the Texas Department of Criminal Justice,

Institutional Division, filed an application for a writ

of habeas corpus pursuant to 23 U.S.C. § 2254.

Oliver challenged his capital murder conviction and

death sentence imposed by the 145th Judicial

District Court of Nagcodoches County, Texas in

cause No. 27,037, styled The State of Texas vs.

Khristian Oliver. Respondent Doug Dretke (“the

Director”) has filed a motion for summary judgment.

The court earlier granted judgment as to Petitioner’s

claims 1-20, reserving ruling on 13 and 14. For the

reasons set forth below, judgment will be granted as

08a

to Petitioner’s remaining claims, numbers 13 and 14.

I. Background Facts

Oliver began a crime spree about a year and half

before the incident which resulted in his conviction

in this case. There were over a dozen burglaries and

many of them involved the use of weapons. On

March 17, 1998, Oliver, his girlfriend Sonya Reed,

Bennie Rubalcaba (age 16) and his brother, Lonny

Rubalcaba (age 15), stopped at the house of the

victim, Joe Collins, in rural Nagcodoches County.

Oliver and Lonny Rubalcaba went to burglarize the

house, carrying Oliver’s .380 caliber pistol, a handful

of bullets and bolt cutters. Reed and Bennie

Rubalcaba stayed in the truck. While the two were

in the house, Collins came home. Collins shot Lonny

Rubalcaba in the leg as he and Oliver were trying to

escape. Oliver then shot Collins five times. At least

two of the shots were fired while the victim lay on

his back on the ground outside his house. As Bennie

Rubalcaba helped his brother Lonny back to the

truck he turned and saw Oliver striking Collins

several times in the head with a rifle butt, while

Collins was lying on the ground. Collins’s skull was

severely fractured and his face was disfigured nearly

beyond recognition.

Oliver then joined the group in the truck. The

group took Lonny Rubalcaba to the hospital and

went to the Sheriffs office and filed reports saying

that someone had driven by and shot Lonny while

they were all at a farm. The next day, deputies

picked up Bennie Rubalcaba and questioned him.

Bennie then gave a written statement admitting

what had actually happened. That same morning,

59a

police questioned Lonny Rubalcaba, who, after

originally repeating the story about the farm, gave a

second written statement coinciding with his

brother’s second statement. Police located Oliver and

Reed at a Houston motel and arrested them.

II. Procedural history

Oliver was indicted for capital murder, the

killing of Collins having taken place during the

commission of a burglary. He was tried and found

guilty in April 1999, and after a punishment

determination hearing, he was sentenced to death.

His conviction and sentence were affirmed on direct

appeal by the Texas Court of Criminal Appeals,

Oliver v. State, No. 73,837, slip op. (Tex. Crim. App.

April 17, 2002) (unpublished). The Supreme Court of

the United States denied his petition for a writ of

certiorari. Oliver v. Texas, 537 U.S. 1161 (2003). His

petition for post conviction relief was denied by the

Court of Criminal Appeals on October 20, 2002, and

his petition for a writ of certiorari was also denied.

Oliver v. Texas, 538 U.S. 1001 (20093).

On January 21, 2004, Oliver filed the present

application for a writ of habeas corpus. On October

14, 2004, the Director moved for summary judgment

as to all of the claims in the petition.

Ill. Claims

All claims except numbers 13 and 14 were

disposed of by the court’s previous order. Claims 13

and 14 state:

13. The petitioner’s right to an impartial jury

under U.S. CONST. amend. VI was denied when

jurors consulted Biblical scripture which called

60a

for death as the punishment for murder.

14. The Petitioner’s right to a punishment

determination based upon discretion carefully

guided by law, under U.S. CONST. amend. VIII,

was denied when jurors consulted Biblical

scripture which called for death as_ the

punishment for murder.

IV. Standard of review

28 U.S.C. § 2254 (d) provides that relief in

habeas corpus may not be granted with respect to

any claim which was adjudicated on the merits in

State court proceedings unless the adjudication of

the claim resulted in a decision that was either (1)

contrary to, or an unreasonable application of,

clearly established Federal law, as determined by

the Supreme Court of the United States, or (2) based

upon an unreasonable determination of the facts in

light of the evidence presented in the State court

proceedings. Pure questions of law and mixed

questions of law and fact are reviewed under § 2254

(d)(1), while pure questions of fact are reviewed

under § 2254 (d)(z). Moore v. Johnson, 225 F.3d 495,

501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001).

Claims fairly presented to the state courts but not

adjudicated on the merits are reviewed de novo.

28 U.S.C. §2254 (b) generally prohibits granting

relief on claims not previously presented to the state

courts. If a federal application contains any such

claims, the Court will attempt to allow the applicant

to return to state court and present them to the state

court in a successive petition, either by dismissing

the entire petition without prejudice, see Rose v.

Lundy, 455 U.S. 509, 520-22 (1982), or by staying

6la

the federal proceedings on the exhausted claims. See

Rhines v. Weber, --- U.S. ---, 125 S. Ct. 1528, 1534

(2005).

If the federal court is convinced that the state

court would refuse to consider the merits of such a

successive petition, however, the federal court will

treat the unexhausted claims as if the state court

had already refused to hear them on procedural

grounds. See Finley v. Johnson, 243 F.3d 215, 220

(5th Cir. 2001). The Court does not review such

procedurally defaulted claims unless the applicant

can establish either that he had good cause for

failing to fairly present his claims, and he would be

prejudiced by not being given an opportunity to do so

in the federal court, or that the Court’s failing to

address the claims would result in a fundamental

miscarriage of justice. See Coleman v. Thompson,

501 U.S. 722, 749-50 (1991); Finley v. Johnson, 243

F.3d 215, 220 (5th Cir. 2001). If it is not entirely

clear that the state court would refuse to hear a

successive petition containing the new claims, the

federal court will allow the state court the first

opportunity to consider them. See Wilder v. Cockrell,

274 F.3d 255, 262-63 (5th Cir. 2001).

V. Analysis

Oliver’s thirteenth claim is that the jurors

consulted the Bible during the punishment-

determination phase of deliberations, which denied

him a fair and impartial jury. Because this claim

was denied on the merits by the state court on direct

appeal, and involves a pure question of fact, the

question for this Court would normally be whether

the state court’s adjudication of the claim was based

62a

upon an unreasonable determination of the facts in

light of the evidence presented in the State court

proceedings.

Oliver originally raised this issue by post-trial

motion, and the trial court conducted an evidentiary

hearing. The Motion for New Trial transcript shows

that Oliver’s attorney, Mike DeGeurin, Esq., spoke

with all twelve jurors on the telephone before the

evidentiary hearing. Oliver and his attorney called

four jurors to testify at the hearing. The State

opposed this testimony, but the Judge overruled the

State’s objection and let the jurors testify as to facts

surrounding the Bible in the jury room. Based upon

their testimony, the trial court denied Oliver’s

rnotion and made the following finding:

And then the ruling of this Court is, that

having heard all the evidence pertaining to

the occurrence in the jury room in question

in reference to the Biblical quotation which

is on file in the case, it is the Judgment of

this Court that the conduct of the jury was

not improper. And that a conscientious,

dedicated and caring jury considered this

case in accord with the Court’s Charge and

the instructions of the Court and rendered

their verdict in accord with the evidence

they heard in this case uninfluenced by any

outside influence of any kind shown to the

Court in this hearing.” The Texas Court of

Criminal Appeals reviewed the transcript of

the new trial motion and _6 affirmed,

determining that the jurors’ deliberations

were not influenced by their reading the

Bible.

63a

Oliver contends that the habeas standard of

review should not apply, because he has newly

discovered evidence. Oliver alleges that a different

juror had told a foreign journalist that the jurors did

discuss the Bible during deliberations. Oliver tried,

unsuccessfully, to raise this claim, with this new

evidence, in his state post-conviction proceedings.

The state court denied Oliver’s request to consider

his newly discovered evidence or conduct another

evidentiary hearing on July 25, 2002. Oliver

objected to the denial of another evidentiary hearing

and he now asks the federal court to conduct an

evidentiary hearing and receive this evidence, and

then determine whether the state court’s ultimate

finding that the Bible was not an outside influence,

was reasonable in light of all the evidence, not just

the evidence considered by the state court.

28 U.S.C. § 2254 (e)(2) provides, in relevant part,

that an applicant may obtain an evidentiary hearing

if the factual predicate of his claim could not have

been previously discovered through the exercise of

due diligence, and the facts underlying the claim

would be sufficient to establish, by clear and

convincing evidence, that but for constitutional

error, no reasonable fact finder would have

sentenced him to death.

Assuming arguendo that Oliver could not

through due diligence have discovered the testimony

of the other juror in time to timely present it to the

state court, his request still must be denied because

he has not even alleged, let alone established, that

but for relying on the Bible, no reasonable juror

would have answered the special issues in the way

that resulted in his receiving a death sentence. The

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Court will deny Oliver’s request for an evidentiary

hearing on this claim. See Guidry v. Dretke, 397

F.3d 306, 327 (5th Cir. 2005). The Court in Guidry

affirmed the District Court’s decision to conduct an

evidentiary hearing because the written findings of

the state court omitted crucial testimony. Jd. Unlike

the case of Guidry, the testimony presented at

Oliver’s hearing on his Motion for New Trial was not

inconsistent. A habeas petitioner can not discredit

state court findings on credibility simply because the

findings are not explicit. Id. In addition, Oliver has

not provided this court with sworn testimony from

the juror or journalist stating what actually was

stated in the jury room. The Court recognizes that

the state court findings were sparse, but, as

previously stated, the jurors’ testimony at the

hearing was not inconsistent.

Because the Court will not receive new evidence

on this claim, and because Oliver does not dispute

that the state court’s rejection of his claim, in light of

the evidence presented in the state court

proceedings, the Court will grant the Director’s

motion for summary judgment as to Oliver’s

thirteenth claim.

Oliver’s fourteenth claim is that because the

jurors consulted the Bible during the punishment-

determination phase of the deliberations, Oliver was

denied the right to a punishment determination

based upon discretion carefully guided by law.

Because this claim was denied on the merits by the

state court on direct appeal, and involves a pure

question of fact, the question for the Court is

whether the state court’s adjudication of the claim

was based upon an unreasonable determination of

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the facts in light of the evidence presented in the

State court proceedings.

As stated earlier, Petitioner’s attorney talked to

all twelve jurors, but only four testified at the

hearing. Oliver and his attorney had the authority to

call all twelve jurors and there is no evidence that

the Judge only allowed four to be called, or limited in

any way Oliver’s ability to call all twelve. It was the

decision of Oliver and his attorney to call only four

and that evidence is what the trial court had before

it when it made its decision. Oliver can not now say

a juror has changed his mind or would give a

different answer. Even if that was permitted, Oliver

has provided no documentation to support the

proposition, such as an affidavit from the juror, or

even an unauthenticated letter from the juror. The

only piece of “evidence” offered by Oliver is an

unsworn “transcript” of what an unsworn journalist

allegedly claims a juror said. That is simply not

enough to meet Oliver’s burden of proof.

The analysis of this claim is similar to that of his

thirteenth claim, and for the reasons stated above,

which are applicable here and because Oliver takes

no other issue with the state court’s adjudication of

this claim and because Oliver has not met his

burden of proof the Court will grant the Director’s

motion for summary judgment as to the fourteenth

claim and deny Oliver’s request for an evidentiary

hearing.

VI. Conclusion

The state court’s rejection of his thirteenth and

fourteenth claims was not unreasonable in light of

the evidence presented to the state court. For the

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reasons stated, the Court will grant the Director’s

motion for summary judgment as to both of these

claims. All claims having now been disposed of, a

final judgment as to all claims will be entered.

So ORDERED and SIGNED this 9 day of Novemher,

2005.

/s/ Ron Clark

Ron Clark,

United States District Judge

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APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

KHRISTIAN OLIVER,

Petitioner,

§

§

§

§

v. § Civil Action

§ No. 1:04-CV-41

DOUG DRETKE, Director, §

Texas Department of Criminal §

Justice, Correctional §

§

8

§

Institutions Division,

JUDGE

RON CLARK

Respondent.

ORDER GRANTING IN PART AND DENYING IN

PART REQUEST FOR CERTIFICATE OF

APPEALABILITY

This matter comes before the Court on applicant

Khristian Oliver’s (“Oliver’s”) request for a

certificate of appealability, (docket entry # 36-3) filed

on January 9, 2006. The Court, having considered

the circumstances alleged and authorities cited in

the motion, finds that it is well-taken in part and it

will accordingly be granted in part and denied in

part.

Oliver was convicted of capital murder and

sentenced to death. The Court denied his application

68a

for writ of habeas corpus on November 10, 2005. To

appeal this decision, Oliver must obtain a certificate

of appealability pursuant to 28 U.S.C. § 2253.

Subsection (c)(2) of that statute provides that an

application for a certification of appealability shall

be granted if a petitioner makes a _ substantial

showing of the denial of a constitutional right. To

make a “substantial” showing, a petitioner must

demonstrate that the issue is (1) debatable among

jurists of reason (2) that a court could resolve the

issues in a different matter, or (3) that the questions

are adequate to deserve encouragement to proceed

further. Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983). Because this is a capital case, any doubt

whether petitioner’s claims meet those standards

must be resolved in favor of the petitioner. Fuller v.

Johnson, 114 F.3d 491, 495 (5th Cir. 1997), cert.

denied 522 U.S. 963. Oliver requests a certificate of

appealability as to nine of his twenty claims. The

Court finds that the questions in Oliver’s thirteenth

and fourteenth claims are adequate to deserve

encouragement to proceed further, and therefore

issues a certificate of appealability as to those two

claims. The Court finds that the issues in Oliver’s

first, second, third, fourth, tenth, eleventh, and

fifteenth claims are not debatable amount jurists of

reason, could not be resolved in a different manner,

and are not adequate to deserve encouragement to

proceed further. Accordingly, the Court denies

Oliver’s request for a certificate of appealability as to

those seven claims.

IT IS THEREFORE ORDERED that Petitioner’s

Request for Certificate of Appealability [Doc. # 36-3]

is GRANTED IN PART. A certificate of

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appealability is issued as to Petitioner’s thirteenth

and fourteenth claims only.

So ORDERED and SIGNED this 2 day of February,

2006.

/s/ Ron Clark

Ron Clark,

United States District Judge

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APPENDIX G

VOLUME 44 OF 44

Trial Court No. 7901-98-5

THE STATE OF TEXAS * IN THE 145TH

JUDICIAL DISTRICT

VS. * COURT OF

| NACOGDOCHES

KHRISTIAN OLIVER * COUNTY, TEXAS

HEARING ON MOTION FOR NEW TRIAL

On the 25th day of June, 1999, at 1:40 p.m.,

the Hearing on Defendant’s Motion for New Trial

came on to be heard in the presence of the Court, in

the above-entitled and numbered cause; and the

following proceedings were had before the

Honorable Jack Pierce, Judge Presiding, held in

Nacogdoches County, Texas:

Proceedings reported by COMPUTERIZED

STENOTYPE MACHINE; Reporter’s Record

produced BY COMPUTER-ASSISTED TRANS-

CRIPTION.

Jerry G. Poole, CSR #1020

Official Court Reporter-i45th Judicial District Court

101 West Main Street, Suite 217

Nacogdoches, TX 75961

(936) 560-7799

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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il

Honorable Tim James Honorable Mike DeGeurin

District Attorney Attorney at Law

101 West Main St. 909 Fannin St., Ste. 590

Nacogdoches, TX 75961 Houston, TX 77010

(936) 560-7766 (713) 655-9000

ATTORNEY FOR STATE ATTORNEY FOR

DEFENDANT

Honorable Mac Cobb

Assistant Attorney General

P. O. Box 12548

Austin, TX 78711-2548

(512) 463-2170

ATTORNEY FOR STATE

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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ili

CHRONOLOGICAL WITNESS INDEX

Direct Cross Voir Dire Vol.

McHaney, Kenneth M. 36,58 54 44

Symmank, Maxine K. 59,70 68,71 44

Rodrigues, Rodney W. 72,79 77 44

Webb, Glenda M. 81,86 84,88 44

Oliver, Kermit 108 44

ALPHABETICAL WITNESS INDEX

Direct Cross Voir Dire Vol.

McHaney, Kenneth M. 36,58 54 44

Oliver, Kermit 108 44

Rodrigues, Rodney W. 72,79 77 44

Symmank, Maxine K. 59,70 68,71 44

Webb, Glenda M. 81,86 84,88 44

EXHIBIT INDEX

DEFENSE

NO. DESCRIPTION

OFFERED ADMITTED VOL.

Defendant 1 Pencil sketch of Juror Matheny

43 44 44

Defendant 2 Pencil sketch of Juror Byrd

43 44 44

Defendant 3. Video tape from KTRE-TV station

95 97 44

Defendant 4 Passage of the Bible contained in the

Motion for New Trial

98 99 44

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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4

THE COURT: The Court is convening for the

2 hearing of matters.set for this afternoon, the

State of Texas

3 versus Khristian Oliver, hearing on Motion for

New Trial,

Cause No. 7901-98-5. And what says the State?

MR. COBB: State’s ready, Your Honor

THE COURT: What says moving party, the

defense?

MR. DEGEURIN: The defense is ready, Your

Honor.

10 THE COURT: Thank you. And we shall

proceed

o von oD oO >

11 accordingly. The Court has reviewed the papers

on file and

12 any briefs that have been filed therein. And you

may

13 proceed.

14 MR. DEGEURIN: Your Honor, I will— [ll call

15 Mr. Michael] McHaney first. And Id like to have

the rule

16 invoked for his testimony.

17 MR. COBB: Your Honor, before witnesses are

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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called, there are challenges to the motion itself

and to the

procedure of calling witnesses in this. I think

we need to

take those up first. The State objects to the

calling of any

witness that was a member of the jury in this

case, and I’d

like to state our reasons why.

THE COURT: Yes. You may doso. The Court

will take the matter up first, that issue.

MR. DEGEURIN: While we’re doing that, Your

5

Honor, because it’s intermingled I’d ask that the

jurors be

put in a comfortable place outside the hearing of

the motion

to stop the gathering of evidence about the trial.

THE COURT: But, of course, there will be no

evidence heard at this hearing, so — there will be

no

evidence heard on this motion. It’s argument.

And the

jurors will not be affected by it.

MR. DEGEURIN: Well, that’s the issue, is

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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whether or not the jurors can testify about

certain matters.

THE COURT: That’s true. But they’re all legal

issues as to whether they can testify or not.

They’re not

factual issues. The jury’s not going to go be

testifying

about it. It could not affect their testimony in

any way.

MR. DEGEURIN: I see. You’re talking about

the

argument now —

THE COURT: Uh-huh.

MR. DEGEURIN: — would not affect their

testimony.

THE COURT: Yes, sir.

MR. DEGEURIN: Therefore, the sequestration

request is not necessary at this time.

THE COURT: Yes, sir.

MR. DEGEURIN: I see. Well, because it’s such

a sensitive matter I would still request it, Your

Honor.

THE COURT: The Court will instruct them not

to

6

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

76a

be in anyway influenced by what is said here.

They’re all

legal matters. You may be heard.

MR. COBB: Your Honor, in the Motion for New

Trial there are only two matters raised, I think,

which I

would anticipate the movement to offer

testimony about. They

each involve conduct of the jurors or conduct of a

juror.

One of those matters had to do with what

occurred during

deliberations of the jury. The other matter has

to do with

the occurrences in the courtroom during the

final arguments.

So, to separate those [ll try from time to time as

T go

through this to keep them separate.

I first of all want to address the proposal to call

witnesses who would testify about what

happened in the jury

room. And the controlling rule in present law at

this time

would be the Rules of Evidence, Section 606(b),

which has

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145th JUDICIAL DISTRICT

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developed over a long period of time to restrict to

certain

matters those things that can be inquired

concerning the

jury’s deliberations.

Under the present version of the rule it’s

restricted

that the jurors cannot testify nor can they give

affidavits

which are received by the Court about most of

the matters

that occur concerning their deliberations, the

conversations

that take place, or things that might have

affected and

influenced their state of mind in answering the

questions.

Most of that’s protected, protected for the

purpose of

7

allowing the jury to have privacy in which they

can openly

discuss together the evidence in the case and the

law without

fear of being questioned about their verdict,

about being

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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4 required to impeach their verdict, or without

being harassed

5 by someone trying to show blame on the jury to

substitute for

the blame of the defendant.

7 And the only matters a juror may testify about,

if

8 theyre properly raised, would be whether an

outside

9 influence was improperly brought to bear upon

any juror, or

10 to rebut a claim that the juror was not qualified

to serve.

11 There’s no claim that any of the jurors are

disqualified to

12 serve so it narrows the focus of this Motion for

New Trial to

13 only what could be limited by whether any

outside influence

14 was improper brought to bear upon any juror.

Even then if

15 the Court inquired about that through

testimony that’s

16 outside the record by hearing testimony of

someone concerning

17 that issue, the issue is only whether there was

outside

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145th JUDICIAL DISTRICT

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79a

influence that was improperly brought to bear

on the juror.

It’s not what the content was. If there was

content to some

matter that was outside influence then the

Court has to look

beyond that to see whether that was harmful or

whether it

constituted reversible error.

But, first of all these outside influences have

been held

by all of the cases to refer to matters that

actually and

literally are from an outside source. The

discussions that

8

occur within the jury room for the purpose of

that limitation

cannot involve statements made by the jurors,

arguments made

by the jurors, or anv of the other discussion

among the jury

members, because by its definition those would

be things

within the jury and not of an outside influence.

To get to that point it’s necessary for the Motion

for

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145th JUDICIAL DISTRICT

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New Trial to be supported by an affidavit of

someone who has

knowledge of what would be that outside

influence. The,

motion does not contain an affidavit of someone

in a position

to know what took place in the jury room. So it’s

not

supported by an affidavit concerning those

matters.

The movant has filed a memorandum which

cites one case,

which in an apology I want to discuss at this

time, which is

not discussed in our response, response that I

previously

filed with the Court and also filed or gave a copy

of to Mr.

DeGeurin. And that case is Smith versus State,

Your Honor.

I believe I attached or provided with our motion

this morning

a copy of Smith versus State. I read that case

time and

again for four days, Your Honor, trying to

understand what it

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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was talking about. And I think that it’s unclear

to me

because one of the main things in that case

they’re looking

at and dealing with is the support of the motion

itself by

the affidavits. And J think for that reason Mr.

DeGeurin is

referred to, the Smith case in his memorandum.

But, even if it has value to the court for that

purpose

9

it also has value to the Court, I think 1 now

recognize,

about the Bible. In all of the allegations in the

Motion for

New Trial that accuse the jury of misconduct

relate to

reading of scriptures from the Bible. And I have

also

provided the Court, State versus Martin, or

actually Martin

versus State and Branch versus State, a couple

of older cases

that refer to scriptures and the Bible in the jury

room, both

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145th JUDICIAL DISTRICT

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ot which cases hofd that that’s not evidence and

that’s not

outside influence, or the effect of the case is, is

that is

not jury misconduct. Those cases were not

reversed and the

Court recognized that as a potential ground of

error,

considered it and rejected the ides that the

quoting of

scriptures, or the reading of scriptures, was

error.

In the Smith case the pertinent part is — I'll

quote

from the case. “Appellant’s 12th and 15th

grounds of error

relate to an alleged jury misconduct which

Appellant contends

occurred when one of the jurors read “scriptures

from the

Bible” to the other jurors during the punishment

deliberations.” The Court holds in a confusing

structure as

far as the sentence is concerned, “What

scriptures from the

Bible were read, if any were, and this indefinite

allegation,

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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would not caii for a hearing on jury misconduct.”

So, it’s

answering in the form of what procedure is,

whether it’s

raised, whether it’s a proper matter, and says

it’s nota

proper matter for a hearing and did not call for a

hearing on

10

jury misconduct.

But it also reads, “What scriptures from the

Bible were

read would not call for a hearing on jury

misconduct”. So,

it’s also talking about the scriptures themselves,

not just

the procedure of getting there.

And it quotes and cites to Martin versus State,

the Court

of Criminal Appeals case, which I did include in

the

memorandum that says, “Even though versus

were read from

another Bible in the jury room this matter in

light of the

record does not call for reversal.” That’s the

case about

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145th JUDICIAL DISTRICT

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JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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reading scriptures in the jury room.

Branch versus State, which was only reversed as

to

punishment and not on this matter, says, “We

find no

merit” — Well, the question was about jury

misconduct if

that occurred during deliberations when one of

the jurors

quoted scripture from the Bible to others. The

Court said,

“We find no merit in these grounds of error,

first, because

the allegations if proved would not constitute

grounds for

reversal, and second, because such allegations

were not

supported by affidavit of one in position to know

what

transpired in the jury room during the

deliberations of the

jury, hence, was insufficient as a pleading.

They’re saying,

in this case it’s not be been reversed as to that

finding,

that there is no merit to an allegation that

reading the

25

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85a

Bible in the jury room or quuting scriptures is

error.

11

Your Honor, the rule is clear that merely

making an

allegation that there’s jury misconduct does not

even justify |

having a hearing about that if the grounds

themselves will

not support a finding that sould result from

such a hearing.

Here there is no proper allegation or pleading

because there

is no affidavit of someone who was in a position

to know what

took place in the jury room. The motion is

merely verified

by the attorneys that represented in court the

Appellant, or

the defendant.

Reading of the Bible, if true, has been held not

to be

grounds for a new trial. Reading of the Bible, if

it was

true, does not constitute new evidence as alleged

in the

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145th JUDICIAL DISTRICT

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Motion for New Trial. It does not constitute law

as alleged

in the Motion for New Trial, and does it not

constitute the

only relevant consideration, and that is, whether

an outside

influence was improperly brought to bear upon

any juror.

That’s not even stated as a ground in the Motion

for New

Trial.

Because there are not sufficient affidavits of

someone in

a position to know and because this is not a

matter that

would result in a new trial or harm to the

defendant it is

the State’s position, Your Honor, that it is not

necessary

and would be improper under Rule 606(b) to

inquire of the

jurors, because the jurors may not testify as to

any matter

or statement occurring during the jury’s

deliberation or to

12

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145th JUDICIAL DISTRICT

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the effect of anything on the jurors’ mind or

emotions or

mental processes as influencing the jurors

assent sent or

dissent from the verdict.

The Movant asks you to find that a juror’s

personal

experience and background with their religion,

with their

Holy Scriptures taints their ability to be a fair

juror, and

that they can’t bring that in, when all the cases,

hundreds

of them have said that it is not an outside

influence for the

juror to use their past experience, their common

knowledge

and their common experiences as a part of their

consideration

in the verdict. What the Appellant, Movant,

also ask the

Court to do, is to find that reading the Bible is of

itself a

bad thing, that it can never find its place in the

jury room

even though each witness who testifies places

their hand in

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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15 this court on this Bible in this room. As we sit

here today

16 their testimony of the witnesses, including the

jurors who

17 discuss their qualifications in the voir dire,

began with

18 that. To say that that’s a bad thing, for the

Movant to

19 represent that that’s a bad thing, would undo

every trial

20 from the very beginning.

21 The rules have developed and the cases have

developed

22 under the rules for the purpose of protecting

jurors from the

23 harassment of a loser in a case who wishes to

shift the blame

24 from the criminal act to the jury deliberations.

And that —

25 the rules have carefully considered what would

be proper and

13

1 then restricted the jurors, to keep jurors from

impeaching

2 their own verdict and to keep losers from trying

to impeach

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their verdict by fishing into everything that took

place in

the jury room, or by finding blame with the

discussions and

the conversations that must take place as a part

of the

normal deliberations. Because if we brought

into question

all of those things, Your Honor, if we harassed

those jurors

by asking them, well, what did you say, and

then, what did

you think, then it wouldn’t make any difference

what was

said, because it could be shown that if it said

that in the

Bible, if Shakespeare said that or Snoop Doggie

Dog said it,

if the quote was one thing, “Thou shalt not kill”,

or if it

was another thing, and said, “If you can’t do the

time don’t

do the crime,” those things would all spoil the

jury’s

deliberations if that was evidence. But it’s not.

Those

JERRY G. POOLE, OFFICIAL COURT REPORTER,

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16 things would all spoil the jury in deliberating if

it was

17 law, but it’s not. Those are just things that are

part of

18 our common experiences, and jurors are

intended to bring

19 those things in, unless it’s shown to be an

outside influence

20 or improper evidence, which this is not. Then it

can in no

21 way harma defendant, and it should not even —

and it is

22 prohibited even from being inquired into by

testimony or

23 affidavits from jurors.

24 For those reason, Your Honor, we believe that

this part

25 of the motion that intends to inquire as to what

took place

14

1 inthe jury room is improper and prohibited by

the rules.

2 THE COURT: Thank you. And you may

respond to

3 this phase of the argument.

MR. DEGEURIN: Your Honor, I would hope

that

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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you understand that by politely allowing Mr.

Cobb to complete

his — towards the end argument as opposed to

motion, that

that does not mean I was agreeing with what he

said. I found

some of the things he said were quite offensive,

because |

didn’t allege certain things in my motion. And |

didn’t say

the Bible was a bad thing. And I didn’t say that

we

shouldn’t put our hands on the Bible when we

were sworn. [

didn’t say those things. And I hope that the

Court is not

persuaded in anyway by those statements by

Mr. Cobb. What I

said is in my pleadings. What I’ve said is been

in my briefs

or in the case law that I provided the Court.

There is a problem when something occurs in

the jury

room — Neither the prosecutor or the defense

counsel are

there. In fact, no one’s there except the jurors.

And the

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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only people that can tell what happened inside

the jury room

are the jurors.

Now, historically what is — what we do is, the

juror

gives an affidavit, not as to how their mental

processes

worked, but as to operative facts. In the Court

of Criminal

Appeals opinions that I gave you the Court talks

about, they

can talk about what happened, and they can

talk about what

15

was said, but not how it affected their mental

processes.

That we don’t want to go into. And then the

courts say, you

look at the character of the evidence, character

of the other

matters that came inside the jury room, and you

see if it is

something that could be harmful. You don’t ask

the jurors

was it harmful. And so that’s exactly what I did.

Now, here’s what happens in reality and here’s

why we

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145th JUDICIAL DISTRICT

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have all these cases with the juror’s testimony in

them,

where the Judge has the jurors testify and

dismiss, and. then.

limit the questions to the jurors while they’re

being —

testifying so that they do not — you don’t invade

the mental

processes of the jury. That’s why case after case

after

case — he said hundreds of cases about Bibles. I

don’t know

what he’s talking about. But there’s hundreds of

cases where

new trials are granted because the juror testifies

this is

what happened, and the Court finds that that

matter was not

something that was debated in court, was not

‘subject to cross

examination, did not have all of the due process

things that

make it something that is admissible and

permissible to

contro! or to effect a verdict.

We've had — the Court is well aware of where a

juror

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

94a

22 talks about parole laws. And so then the — the

cases come

23 where you analyze what they actually said about

parole laws.

24 We have tests for that, what was said in the jury

room, not

25 how it affected any of the jurors but what was

said. And

16

1 that’s how we determine whether or not a new

trial is

required.

In Smith versus State we have a situation that

is similar

4 to this case in the sense that all of these good

jurors spoke

5 to me on the phone and they told me matters

that I put in the

6 Motion for New Trial, but none of them wanted

to give an

7 affidavit. Smith says in a situation like that you

cannot

8 prevent the truth from coming to court because

simply there’s

9 no affidavit. In a case like that what you do is,

the lawyer

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145th JUDICIAL DISTRICT

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gives an affidavit as to what the juror told him,

and then

the Judge can have the hearing. Otherwise, all

you have to

do is have jurors saying, I just don’t want to do

this. It

is a tough case anyway, I don’t want even — I

don’t want to

be back in court. So, obviously across the nation

that is

recognized as the proper way of doing it. And

it’s

recognized by the Court of Criminal Appeals.

Se, the fact that the jurors were unwilling to

give an

affidavit as to the truth is not something the

State can rely

upon to execute someone just because they

didn’t give an

affidavit, or not even have a hearing — don’t even

make of

record the truth of what happened because

there’s no

affidavit. No. The Court says that is not going

to bea

barrier to the Court seeking the truth. Take the

affidavit

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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of the lawyer, have — The lawyer cain’t testify,

but the

jurors can about what happened. No one else is

in the jury

17

room. Hearsay would not be admissible as to

someone outside

the jury room hearing that the jurors discussed

the Bible.

The jurors are here to testify about that.

Now, with regard to Bibles in the jury room,

there are

case after case after case that have been

reversed because of

that. There are — there is one case, Branch, that

in a dual

duplicitous holding, Judge Woodley — you may

remember Judge

Woodley.

THE COURT: Yes.

MR. DEGEURIN: Says this is — Reading

scriptures is okay. But there’s been a lot of

cases — that

was 1969, Judge.

THE COURT: I recall. I read that case.

MR. DEGEURIN: Yeah. That was a 1969 — It

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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hangs by itself. There is many cases across the

nation as

well as Texas tii »t discuss Bible, and that it’s

not proper

because — It’s obvious — that if passages of the

Bible have

some relevance to the law to the extent that it’s

maybe even

inconsistent with the Charge of the Court,

unless we took six

or seven days in final argument on each case to

discuss each

and every possible passage in the Bible that

might be

discussed and utilized by the jury, you would

never have the

due process rights that the court of law assures

you. You

cannot — you cannot say the Bible is good as Mac

Cobb says

or as bad. That’s not the —

18

You take a particular scripture, and if that

scripture is

read in the jury room, and that scripture is — Let

me back

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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up and give an example. We had a case where a

juror said, “I

was robbed” — This is in the jury room. “I was

robbed years

ago and I remember what the man looks like

three years

later.” That case was reversed because in that

particular

case there was — there was some sort of either

robbery or

rape or something and identity was an issue.

That outside

influence, although it was said in the jury room,

it didn’t

come from — I mean, it was outside because the

robbery of

the juror had occurred outside the jury room and

outside the

courtroom. That statement caused reversible

error because

there was — the issue was identity.

Now, in the most recent cases of the Court of

Criminal

Appeals they say, what you do is you have the

juror — you

figure out what scripture was read, or what was

said in the

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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jury room. And then you say in light of the

issues in the

case is there a problem? And so in Smith, I

believe it was,

one of them, it said, a juror said I can identify

somebody.

But in the case at the trial identity wasn’t even

an issue.

It was consensual rape, or something to that — I

think

that’s what it was. So, the Court of Criminal

Appeals said

the fact that this was said, which is outside

evidence,

outside testimony, outside influence, doesn’t

matter in that

particular case because identity wasn’t even an

issue. And

19

that makes sense. We understand that.

In a capital murder case where the capital — the

death

penalty statutes have gone under quite a bit of

revision to

try to make it as fair as possible requires many

things

before you execute a young man.

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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And in the federal courts, for example, the many

times

that they reverse for Bible reading in the jury

room, “How

the jurors use the Bible, whether as a silent

monitor

witnessing that the jurors approach their

solemn task in the

proper attitude, or for guidance as to their

specific task,

the Court cannot ascertain. Bible in some places

rejects the

drawing of distinctions in murder cases, but

state law

requires distinction between murder and capital

murder. Some

parts of the Bible also disparage mercy as a

valid sentencing

consideration contrary to law of the federal

circuit or of

the state. To disparage mercy is to strike at the

most

important component of a capital jury’s

discretion, favoring

capital defendants.” In that particular case —

This is out

of Georgia.

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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In the State Court they had something similar

to us.

They have a mitigation section. They read

Numbers, discussed

it. Someone read it out loud in the jury room,

that that’s

where they’re talking about a person who takes

another’s life

by hitting them with a stone shall be put to

death. This is

the Lord’s law. I mean, I’m paraphrasing.

20

THE COURT: Yes.

MR. DEGEURIN: I set it out. The federal

courts find no hesitation in finding that that —

there’s

nothing with having a Bible, nothing wrong with

having your

personal Bible, nothing wrong having your

personal — pulling

your only personal strength from the Bible. Just

like you

can have — you can take notes, but you can’t

read your notes

to the other jurors. And you told them that.

You can have your own interpretations of your

philosophy

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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but you can’t take an outside influence,

something that has

not been debated or talked about in the

courtroom and

discussed and debated and cross examined, you

cannot take a

Bible in, open up a passage and read it, because

then it

becomes an outside matter inside the jury room

beyond the

safeties of the state due process rights to insure

a fair

trial under civil — no, criminal law.

So, you cannot have a trial out here with all the

rights

and duties, and assure that nothing goes back

there that

hasn’t been, that the Court hasn’t given both

parties

adequate time to discuss and debate, and then

the Court give

the Charge. Instead, you have something

happening in the

jury room that is outside. It is the Bible. And in

this

particular case the passage that was quoted to

me by some of

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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the jurors was the one that I put in the Motion

for New

Trial, almost word for word by some of them.

21

So, the point is this, this Court has a duty to see

that

a record is made. And if this happened as set

forth in the

Motion for New Trial then the Court can

determine whether the

character — this is the Court of Criminal Appeals

speaking — “The character of the outside matter

in light of

the issues of the case had an affect”. Not what

effect it

had, because we can’t — you're not suppose ask

the jurors —

The State can’t ask them, “Well, even though it

was done you

didn’t pay attention to it, did you?” Nor could I

ask, “And

did that happen some influence on you or giving

you some

comfort in deciding the case in a certain way

when you were

undecided?’ What can be asked is, “Was this

outside matter

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

104a

13 used for guidance?” Yes. How did it guide you

we cannot

14 ask. The cases are clear on that. But asking

what

15 scriptures were read, how many people had

their Bibles there

16 is very much something that is in issue and

relevant to is

17 the issues in the Motion for New Trial.

18 So, 1—if the Court needs any time to read any

more of

19 those cases I— I would ask to you do so. It is

true that

20 on appeal, it — the Court will first look to

whether it was

21 an abuse of discretion to prevent the evidence

from being

22 gathered at the Motion for New Trial. But cases

have held it

23 was an abuse of discretion where the matters

that were

24 alleged, were Bible verses, or parole law, or a

couple of

25 other matters. So, — and, of course, the Writ of

Habeas

22

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

i aii

105a

1 Corpus is another way it happens. And then

you don’t have

2 quite the same rules as with regard to the

restrictions. So,

3 for —and they have — They say, in light of the

Judge’s

4 experiences, education and experiences in court,

you are to

5 make the call. Is this matter, the scripture

being read,

6 brought out and discussed by the jurors during

deliberations,

7 is that relevant to any issue in the trial that was

decided

8 by the jury such as death or not death.

9 So, Id ask the Court to allow me to call the

witnesses.

10 Tll— None of the witnesses will take more than

a few

11 minutes. [ve talked to them all before.

12 Now, I will say that they have all, as I

understand it,

13 talked to the State since I have talked to them.

Some of

14 them were called down to the District Attorney’s

office and

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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spoken to. So, I don’t think the prosecution is

doubting

that what I alleged occurred. It’s just they are

trying to

prevent it from becoming of record.

MR. COBB: May I respond for just —

THE COURT: You may.

MR. COBB: — briefly, Your Honor. I expected

to represent that the cases held that the Bible

being read or

quoted in the jury room was not error or grounds

for new

trial. I may have overlooked cases, but I

diligently

attempted to research the law in Texas cases on

that, and

found no case that said that it was error ina

Texas case.

23

If Mr. DeGeurin has cases, I think he said there

were

many of those where cases were reversed

because the Bible was

in the jury room. I’m not aware of those. I

apologize for

the inadequacy of my legal research. I in no way

intended to

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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107a

withhold cases contrary to my position from the

Court.

I would like an opportunity to read those cases,

maybe

even that Georgia case. But, Your Honor,

honestly I did not

know that there were - I did not find any case

that allowed

in Texas that the jury could not read the Bible

or that vould

be reversible error. If I misrepresented that it

was

entirely unintentional. I would like to see those

cases

before we go forward.

MR. DEGEURIN: [I'll give them to you. There’s

Jones versus Kemp. 706 Federal Supplement.

MR. COBB: K-E-M-P?

MR. DEGEURIN: K-E-M-P.

MR. COBB: Say again. I’m sorry.

MR. DEGEURIN: 706 Federal Supplement

1534.

MR. COBB: Is that a Texas case?

MR. DEGEURIN: No. It’s a federal case. It’s

reversing a State of Georgia capital case because

the Bible

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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was read during the sentencing phase of

deliberation.

State versus Herrington. Now that — this is a —

I was

trying to find something that was specific to our

particular

facts. And the State versus Herrington is 627

SW2nd 345.

24

That’s a Tennessee case. And there during the —

the jury

foreman read a passage from the Bible to

buttress his

argument for the death penalty. And they said,

of course,

that’s reversible error.

The federal case I called to the Court’s attention

and

given to counsel is particularly important

because it’s

talking about your constitutional right not to

have matters

in the jury room, Bible scriptures, that were not

part of the

Court’s Charge, discussed and debated or talked

about and

evidence put on during the trial of the case.

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145th JUDICIAL DISTRICT

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I don’t shy away from the Texas cases at all.

The Bible

case that was not reversed in Texas was where

they said there

were scriptures read. They didn’t say which

ones. And there

was no affidavit, even from the lawyer, in that

case. And

they held that we don’t even know which

scripture so we can’t

whether that particular scripture had any —

relevance to any

issue at the trial. And I told you about the

Branch case,

the Woodley case.

So, there is no cases saying — there’s not a single

case

that says the reading of a passage from a

dictionary, or from

a Bible, or from a medical book that’s not in

evidence,

there’s no cases saying that’s not reversible

error. Mr.

Cobb would say reading from the Bible is not.

There is no

cases saying that. There’s reasons that they by

virtue of

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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one matter or another it’s not reversible. But

you know, —

25

you're aware of cases, Judge, where they read,

someone has a

dictionary and reads the definition of a word in a

Bible —

in the jury room, which is reversible error. The

only

difference today is that the Court is saying, let’s

look at

the passage read, and let’s see, or discussed, and

let’s see

if it has nothing to do with anything that had to

do with the

trial and then we don’t have to remedy it. But,

if it has

something to do with it, then we'll take another

look at it.

What the State is saying is, don’t even look at it,

prevent

the hearing.

And so | ask again, Judge, that you allow us to

put on

the evidence and then you can make your

decision

appropriately.

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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THE COURT: Anything further?

MR. COBB: Not from the State, Your Honor,

THE COURT: Well, suppose we brief out those

two cases that have been raised that you made a

note of and

review them and « *e what they have to offer.

MR. COBB: Id like to, Your Honor. I did not

cross those cases through my research because

they weren’t

Texas cases.

THE COURT: Suppose you could send someone

from

your office down to draw it out of the computer if

it’s on

the internet. I assume that’s where you’re going

to get it

from. I have the federal reporters though

however here in

26

the library.

MR. COBB: Yes.

THE COURT: And can they have your office

make

copies for all parties involved, including the

Court, and we

can all review it.

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

ll2a

MR. COBB: Are your Southwestern Reporter

Texas

cases only?

THE COURT: Yes, they are.

MR. DEGEURIN: Judge, here’s a case that you

could read during the brief recess —

THE COURT: —I said that. I don’t think

that’s correct. Some of them are, but not all of

them.

Yes, sir.

MR. DEGEURIN: Buentello, I have a copy of,

and

this is one that’s — it’s a ‘92 case.

THE COURT: Yes.

MR. DEGEURIN: And it has both good and bad

things from my standpoint, but it’s a good

discussion. And |

would ask the Court to read it. It just — it

assumes

through its discussion things that are obvious.

THE COURT: Yes.

MR. DEGEURIN: How could you ever — How

could

you ever bring up things that happened in the

jury room if

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145th JUDICIAL DISTRICT

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you took the position that the State is taking is,

that it

has to be something that comes from outside

into the jury

27

room. You can’t ask anybody in the jury room if

it came in.

It just doesn’t — that doesn’t make sense. You

don’t know

unless someone overheard it coming in or

something. Any

rate, if I can be —

THE COURT: Let counsel’s office make a copy

of

it and that way they can make a copy for the

Court and for

him at the same time. Do you mind?

MR. COBB: No, Your Honor. We have that

case.

And as the Court considers this, and I urge that

you do.

This Buentello case was decided prior to the

change in Rule

606(b).

But there’s one other thing that we might as

well

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145th JUDICIAL DISTRICT

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consider now as we consider this case. If there

is going to

be testimony, and Mr. DeGeurin has related a

similarity

between the passage from the Bible which he

alleges is law

from outside, evidence or law, and the discusses

about the

parole question. Buentello says that if you do

consider

those matters that you consider the effect, in

that you apply

what’s called the Sneed test, of deciding whether

someone

represented it as law, who suppose to have

known what the law

was, represented it as a fact about the law, and

that it

influenced a juror.

So, that if we do get into that inquiry I think

that we

also must inquire then about the effect of the

passage on the

jurors, because the Sneed test is still intact. The

28

Buentello case is still intact, but it’s limited by

Rule °

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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606(b). And so that’s something else we ought to

consider

about that testimony if the Court chooses to

hear it.

And I will make copies.

MR. DEGEURIN: Okay. I thought you had it

attached to yours.

MR. COBB: No. We recite it, but we didn’t

have a copy attached.

MR. DEGEURIN: Okay. I want it back.

MR. COBB: Yes.

MR. DEGEURIN: No. The Court say — they

actually make a distinction between parole,

unless someone

brought in a piece of paper and said, “This is the

parole

law”. If someone says, “I have a friend that

went to jail

and he got out in two years”, that’s a statement

about

parole. In those circumstances it has their own

test, and

you do ask for the effect. The Court’s make it

very clear

that you do not, and I’ve cited both cases, the

Rogers case

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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and the other in my — and [111 cite them to you

again —

There’s two cases that say, “With regard to

outside evidence,

matters, influences coming into the jury room,

you determine

what they are and the character of them, and

you determine

from that if it’s relevant to any issue in the case,

but you

do not ask what effect it had on a juror”. So-—

And that’s

clear.

29

The only exception to that is Sneed with regard

to parole

laws. And in Sneed it does say that if someone

says this is

the law, did they purport that they knew the law

when they

said it? Did you think they knew the law when

they said it?

The difference here is the actual Bible scripture

was in the

courtroom — I mean, in the jury room, in the

book. Okay.

JERRY G. POOLF, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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THE COURT: How long do you think you will

be

making the copies?

MR. COBB: Fifteen minutes at most, Your

Honor,

THE COURT: Well, suppose we take an evening

recess and gather up the material and then we'll

convene

again.

THE COURT: Mr. Bailiff you may recess the

Court for about 15 or 20 minutes.

(Short recess)

THE COURT: The Court is reconvening. All

the

parties had time to review the important

authorities that

have been provided, and we shall continue. Any

further

comment to be made by the moving party, the

defense?

MR. DEGEURIN: Your Honor, the actual

quotation

out of the Texas case about where there’s no,

where no juror

would sign an affidavit — I don’t know if the

Court had an

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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opportunity to read that particular section — but

THE COURT: Oh, it clearly provides for the

filing of an affidavit, that none was available.

30

MR. DEGEURIN: Right. Where it says, “This is

not the exclusive method, where the Appellant is

unable to

secure such an affidavit”

THE COURT: That’s correct. No question.

MR. DEGEURIN: You read the — Okay.

THE COURT: No question about it.

MR. DEGEURIN: Okay. And with regard to

the

federal case that held that it was an error of

constitutional

magnitude for a Bible to be used in the — to go to

the jury

room was —

THE COURT: Now, what case are you reading

from?

MR. DEGEURIN: That’s the Jones versus

Kemp.

THE COURT: Yes.

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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MR. DEGEURIN: Federal Habeas Corpus case

THE COURT: Yes.

MR. DEGEURIN: ~— after the direct appeal had

been denied. In sum it was constitutional error

for the

Court to permit -- Now, that’s a little bit

different because

in that case the Court permitted the Bible to be

in the jury

room.

THE COURT: Uh-huh.

MR. DEGEURIN: They cite cases, of course,

that

say —

THE COURT: Yes.

31

MR. DEGEURIN: -— of course, it’s error for a

Bible to be referred to during the jury

deliberations. I

just wanted to point those two section out now

that we have

the actual cases before the Court.

THE COURT: Yes. And the State may be

heard.

MR. COBB: Yes, Your Honor. Referring to the

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same page that Mr. DeGeurin did in Jones

versus Kemp, that

federal case, where as the jury went out, in the

Tennessee

Trial Court — the Georgia Trial Court, as the

jury went out

they asked if the Bible could go into the jury

room with

them. And the Court said, “Yes.” The

paragraph above where

Mr. DeGeurin read from, the opinion states,

“The sole issue

here involves the at least implied court approval

of group

jury reference to an extra judicial authority,

here the

Christian Bible, for guidance in deciding the

exclusive

statutorily mandated carefully worded

guidelines which must

be followed by a jury deliberating during the

sentencing

phase of a death penalty case”. It states the sole

issue

involves where there’s court approval of that in

advance of

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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the deliberations, a different matter than we

have here.

THE COURT: I understand.

MR. COBB: The Buentello case from 1992,

which

is still case law subsequent to the change in the

rule, I

think does guide the Court about what to hear if

the Court

hears testimony. And says on page 614, “We

hold that the

32

test for admission of juror testimony at a

hearing on a

Motion for New Trial is not whether the conduct

constitutes

an overt act, but whether the matter sought to

be elicited is

deemed by the trial court to be relevant to the

validity of

the verdict. What is considered relevant will be

determined

on a case by case basis, taking into account the

Court’s

experiences and observations, the grounds for

new trial set

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forth in Texas Rules of Appellate Procedure 30

(b), and the

case law which was developed under the

predecessor to 30 (b).

Thus, the test adopted in Sneed is still a viable

means of

determining whether a jury discussion of parole

law

constitute reversible error.”

They’re not saying — they’re only using their new

finding to say that the Sneed inquiry is still

appropriate,

that you look to what this has as an effect on the

jury. So

they’re saying, and I think extending beyond

just parole law

cases, they’re saying that the Court looks at

whether this is

relevant to the validity of th~ verdict. And, I

think in

order to do that, Your Honor, you would have to

understand

what went on in the courtroom when it occurred,

what the

effect of it was, not how it operated on the jurors’

minds,

but at least in how it fit into the scheme of the

JERRY G, POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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23 deliberations, whether it occurred at the very

beginning,

24 whether it was stated as law, whether it was a

passing

25 mention heard by all or a brief mention by some.

All of

33

1 those factors the Court has to look at in order to

judge it

2 onacase by case basis. There is not a firm rule

that says

3 youcan’t do it. In fact, that is the approach that

the

4 courts have taken in those cases about whether

a dictionary

5 was used or whether right to remain silent, for

instance, was

6 discussed. The Court has to hear about whether

it was

7 discussed as a passing mention or whether it

was discussed in

8 great detail or whatever.

9 And so, if you inquire, Your Honor, I think have

you to

10 inquire sufficiently to have an understanding of

what

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occurred so that you can apply your experience

and

observations of the trial as a whole to see if it

was really

relevant to the validity of the verdict. That’s a

separate

issue from whether you should hear it. But the

case — the

federal case certainly does not state that at all

times when

a Bible appears in the jury room that it is

automatically

reversible error. It only says that because of the

Court’s

implied approval by the Court permitting Bible

to be taken at

the request of the jurors, that gave it a more

impressive

aspect for the jury’s consideration, as if it was

the Court’s

approval. And that’s not what the says we have

here of

course.

THE COURT: Thank you. Anything further?

MR. DEGEURIN: Judge, on that last point

about

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145th JUDICIAL DISTRICT

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the, parole — Sneed and parole considerations is

a section by

34

itself. The Court of Criminal Appeals says, in

other

evidence outside influences coming in, in those

cases, “It is

the character of the evidence that controls the

determination

of the issue, and the Court will not speculate”,

and in other

cases say, “or hear evidence on the probable

effects on the

jury or the question of inquiry”. And that’s the

Court of

Criminal Appeals —

THE COURT: Yes, I reviewed it.

MR. DEGEURIN: In Rogers. Okay.

THE COURT: I don’t question that.

MR. COBB: I don’t either, Your Honor. I think

it is clear though that what they mean by

“character of the

evidence” does not just mean the quote in black

and white,

but the character of how it became before the

jury.

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145th JUDICIAL DISTRICT

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THE COURT: Yes. One of the great failures of

trial judges, or the Appeals Court in particular

is, they

kind of sometimes speak in the abstract. In fact,

in all of

the cases they’ve yet to actually firmly and

properly define

some of the terms that are controlling in this

very matter,

such as “outside influence,” and many other

matters that they

yet to really — In that first case from 1969,

where the

Court so emphatically stated, you know, that the

reading of

the Bible was never a matter that was harm in

the trials, a

careful reading of that shows that the reason

why that

statement was made was because they did not

allege what part

35

of the Bible was read to the jury or offered to

them. And

that was the basis of the Court’s statement in

the matter.

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But on the phase of it, it appeared to mean

much more but it

didn't.

But nonetheless the scope note does the best job

of

explaining it where that someone summarized it

and so forth. |

But there are many interesting cases here.

There are a

number of cases here where that the jury has

been permitted

to delve into their verdicts and so forth where

there’s been

testimony given to the jury, such as where you

cited the

instance of the dictionary being controlled. Of

course, when

you bring the dictionary in you’re prohibited

specifically

from not going into the dictionary and other

books as a

juror. And when it is brought it, it actually

changes the

Charge that’s submitted to the jury, because it

becomes

something that they’re considering that is not

authorized by

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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the Court’s Charge.

But anyway there are a lot of interesting cases

here.

Some of the cases turn on the point of testimony

being ;

offered in the jury room by a juror. And they |

just adapt |

that term on it. But, they have reversed them

based upon

such matters as jurors insisting on giving

outside

information about a juror’s prior criminal |

record. I’m sure

you all are familiar with that. So there are a

number of |

interesting matters here. But all of them taken

together

36

though come back to a very basic concept in this

matter. And

I just discuss the cases briefly with you as a

background for

that. I wish time permitted. Id like to go

through each of

the cases with you and point out what the Court

finds to be

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distinguishing factors in them. But, that is not

necessary.

The primary determination to be made is, what

will be the

scope of this inquiry in reference to the conduct

of the jury

in having a Biblical passage before them at the

time. That’s

the issue we’re speaking of for the Court’s ruling

at this

time. There are other issues in the case. But

that’s the

primary issue that we’re concerned with. And

it’s the

Court’s opinion as follows: And that is, because

the courts

all agree upon one thing, and that is, as each

attorney has

spelled out, that it has to do with the nature and

the

circumstances under which the matter was

considered or was

before the Court, the jury. And the Court’s of

the opinion

that there’s no way for Court to determine what

those facts

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145th JUDICIAL DISTRICT

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and circumstances were or what occurred. And

counsel for the

State even has indicated in your final argument

to the Court

that that’s a matter to be considered, is what did

occur;

what happened; how was it used. But we can’t

go into the

effect it had upon the jurors. And we have to be

very

careful about avoiding the effect it had upon any

juror, if

any. It’s a matter of simply determining as best

we can to

ascertain the truth about what occurred in the

jury room.

37

Now, the question of whether it’s outside

influence or

whether it is an outside influence, or whether it

was Outside

influence brought to bear upon the tury to

influence their

verdict, that’s a matter that we'll look at. But

first we

have to learn what did occur. All we have now is

an

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affidavit, which under the law is authorized, and

under the

facts and circumstances, and the Court so finds

that the rule

has been complied with, wh’ *h authorizes to

open the door as

to what occurred in the jury room. And that’s

what the Court

plans to do, is to hear very carefully what did

occur.

All we have now is an affidavit, and we need the

facts.

And then the Court upon that limited

information will then

rule further in the case. So, assuming that we

all

understand the rule, it is to ascertain what did

occur in the

jury room and in reference to the Biblical

passage, and that

inciudes how was it used, things of that nature.

But we must

stay away from what influence it had upon any

juror in their

verdict in the case. Is that agreed upon, —

MR. DEGEURIN: Yes, Your Honor.

THE COURT: — those limitations?

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MR. DEGEURIN: Yes, Your Honor.

THE COURT: Anything further from the State?

MR. COBB: No, Your Honor.

THE COURT: Anything further from the

defense?

MR. DEGEURIN: No, Your Honor.

38

THE COURT: Then you may call your first

witness.

MR. DEGEURIN: I call Mr. Mike McHaney.

And at

this time I would like to have the rest of the

jurors

sequestered.

THE COURT: Oh, I don’t mind sequestering

them.

They’ re all here though as good citizens and

good jurors.

And I don’t think any one of them is going to be

influenced

by what the other one testifies to. I think

they’re all

going to be independent.

MR. DEGEURIN: I’m not alleging that —

THE COURT: — Oh, I know you're not.

JERRY G. POOLE, OFFICIAL COURT REPORTER,

145th JUDICIAL DISTRICT

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MR. DEGEURIN: — that they would do

something

like that.

THE COURT: I know that.

MR. DEGEURIN: I have — when I spoke to

them I

told them the issue would not be the effect on

anybody but

what occurred, and that what they told me had

occurred. I

may have said others have told me similar

things —

THE COURT: The Court will grant your

request.

MR. DEGEURIN: Okay.

THE COURT: And it certainly didn’t mean to

imply that you were doing or denying —

MR. DEGEURIN: Thank you, Judge.

THE COURT: — some right to them.

39

Now, ladies and gentlemen of the jury panel,

very briefly

the Court’s going to ask you to retire. And we'll

make you

as comfortable as possible. You may either use

the grand

JERRY G. POOLE, OFFICIAL COURT REPORTER,

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jury and jury room if you like, or you may be in

the Court’s

chambers, or wherever you desire to be during

this period of

time. I don’t suggest that you be in the lobby,

but you can

be in any of those quarters, the law library —

You're

familiar with all those areas. What’s your

pleasure? Do you

want to be in the jury room? Do you want to be

back in the :

Court’s chambers. Do you have one? Yes.

Thank you. You

may have the witness.

KENNETH M. MCHANEY,

after having been duly sworn by the Court,

testified as

follows:

DIRECT EXAMINATION

(QUESTIONS BY MR. DEGEURIN)

Q. Mr. McHaney, you’ve been in the court while

the Judge

made his ruling about the limited inquiry we

can make. Is

that correct?

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20 A. Yes, sir.

21 Q. Allright. And I’m going to try to ask

questions in such

22 a way that don’t get into areas about what the

Bible passage,

23 how they effected you.

24 A. Okay.

25 Q. Allright. During the deliberations in the

trial was

40

1 there a Bible brought to the jury room, a Bible,

or Bibles?

A. Bibles.

Q. Okay. Was there first one and

This text is long and has been trimmed here. Open the source document for the complete record.