# Opposition Brief — ShisInday v. Quarterman, (2007) (No. 1383)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1432%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

Eee ae Fe
« ere
$ io
ti

JUL 7 - 2008
No. 07-1383 | OFFICE OF THE Er |

In The
Supreme Court of the Anited States

SHOZDIJIJI SHISINDAY, a.k.a. Danny Dean Thomas,
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

RESPONDENT'S BRIEF IN OPPOSITION

GREG ABBOTT EDWARD L. MARSHALL
Attorney General of Texas Chief, Postconviction

Litigation Division
KENT C. SULLIVAN

First Assistant *W. ERICH DRYDEN
Attorney General Assistant Attorney General
ERIC J.R. NICHOLS P.O: Box 12548,
Deputy Attorney General Capitol Station
For Criminal Justice Austin, Texas 78711-2548

(512) 936-1400
*Counsel of Record

ATTORNEYS FOR RESPONDENT

we
This is a capital case.

QUESTIONS PRESENTED

ShisInday’s first conviction was overturned
pursuant to Aiggins v. Nevada, 504 U.S. 127
(1992), because the trial court failed to submit
findings of fact to justify forcibly medicating
ShisInday. During ShisInday’s second trial
sixteen years later, the State read into the record
testimony from Ernest Gilliam, who testified at the
first trial but subsequently passed away. Gilliam
had merely testified that he sold the murder
weapon to ShisInday. Assuming arguendo that
this combination of circumstances resulted in a
violation of ShisInday’s right to confrontation, is
this violation subject to a harmless error analysis?
If so, was the admission of Gilliam’s testimony
harmless considering that it was cumulative of
other evidence provirg ShisInday was in
possession of the gun and that ShisInday confessed
to committing murder?

The trial court refused to instruct the jury
regarding the consequences of a deadlock, over
ShisInday’s objections. Texas law forbids the trial
court from doing so. For the first time in federal
court, ShisInday challenges the Texas statutory
sentencing scheme. Does this Court lack
jurisdiction to consider ShisInday’s claim that the
statute is unconstitutional for containing this
prohibition? If not, is ShisInday’s claim barred
pursuant to Teague v. Lane, 489 U.S. 288 (1989),
and foreclosed under Jones v. United States, 527
U.S. 373 (1999)?

Sit ae Sa? eal a

i Pea +

ee ee a Se i Oe

Fe Fe ae a RE SE eS aN ROY < RETS Sa SRS OM Pa aE eT Se SE Ren Sage

QUESTIONS PRESENTED
TABLE OF AUTHORITIES
JURISDICTION
STATEMENT OF THE CASE
I.

II.

REASONS FOR DENYING THE WRIT
I,

TABLE OF CONTENTS

NN Sa es Pe ed

The District Court’s Denial of ShisInday’s
Confrontation Clause Claim Ie Not
Debatable. Even If The Trial Court
Erroneously Admitted Ernest Gilliam’s
Testimony During ShisInday’s Second
Trial, That Ruling Is Subject To A
Harmless Error Analysis. And Given The
Substantial Evidence Of ShisInday’s Guilt,
Any Error Was Clearly Harmless.
Therefore, Certiorari Review Is Not

a aia lie RIE tn aE yA I

COO! O° 6: COEF 6 O67 ROLS.e Fs

*enereeee eeweeeee#ee@

IT.

A. ShisInday is actually claiming that
a Confrontation Clause violation
occurred, not Riggins error. In fact,
Riggins has no application to
ShisInday’s second trial because the
Riggins error was cured when
ShisInday received a new trial.
Thus, any error pertaining to retrial
must be assessed for harmlessness. .. .

B. The harmless error doctrine applies
to ShisInday’s claim; Crawford v.
Washington does not alter that

C. Any error was unquestionably
harmless given the substantial
evidence of ShisInday’s guilt. .......

This Court Does Not Have Jurisdiction To
Consider ShisInday’s Claim That The
Texas Statutory Sentencing Scheme Is
Unconstitutional Because He Failed To
Present That Claim To The Fifth Circuit.
Regardless, His Allegation Is Teague
Barred And Foreclosed Under Jones v.
SS re ian Gb peace eres

A. This Court lacks jurisdiction to
consider the instant claim. .........

11

23

~]V-

B. Regardless, ShisInday is requesting
a new rule of constitutional law
striking down the Texas statutory
scheme for not requiring courts to | |
instruct jurors on the consequences a
of a deadlock, although this Court a
has held that such a rule is not 4
relevant to a jury's role in
RR IER Se ac A eee re 25

C. ShisInday’s argument that Jones is
factually distinct from his case and, a
thus, should not apply is ineffectual. 4
Jones did not hold that an
instruction regarding the
consequences of a deadlock must be
given in certain cases. And even if it
did, this would not be one of those
cases because the Texas statutory
scheme does not mislead jurors. ..... 28

ci aa irate ae Sh EOS a ip ates ara . 34

> Se OME TPO ae DOR te hE COIR SET ep ey obey oy we ahs eth Sat OG aL DOOM ag PME Y be MOPAR AIR tiie | Se ee |e a ee
: us Ve RN pee

: re

; TABLE OF AUTHORITIES

| Cases Page
Allen v. United States, 164 U.S. 492 (1896) ....... 27
Arizona v. Fulminante, 499 U.S. 279 (1991) ....... 17

Barfield v. Harris, 540 F.Supp. 451
Ce ME 32

Brecht v. Abrahamson, 507 U.S. 619 (1993) ... Passim

Caldwell v. Mississippi, 472 U.S. 320 (1985) ...... 29
Chapman v. California, 386 U.S. 18 (1967).......... 16
Clingman v. Beaver, 544 U.S. 581 NE sn ces 25
Coy v. Iowa, 487 U.S. 1012 (1988) ............ 14,17

Crawtord v. Washington, 541 U.S. 36 (2004) .. Passim

Davis v. State, 782 S.W.2d 211

ee |) rir 26, 32
Delaware v. Van Arsdall,

Te ROE fo, Re an 14, 18, 22
Draughon v. State, 831 S.W.2d 331

(Tex. Crim. App. 1902) ............... 30, 32
Dugger v. Adams, 489 U.S. 401 (1989) ........... 29

Franklin v. Lynaugh,:487 U.S. 164 (1988) ........ 26

Baer ais os ladles er te mai it a Pate ib Batt ah Bol Lo i ee es Ee Rta at aa a et da lb i tas | ree Ea ME a Dai 80 a We as ee ob BEN gg
care hes ve al y Meee * . oo : ae CON ai gos is eit nh AGN sa a
(aga eas 2 : . ph >
Pet, *

-vi-
TABLE OF AUTHORITIES, continued
F Cases Page
Fry v. Pliler, 127 S. Ct. 2321 (2007) ............- 22
Heath v. Alabama, 474 U.S. 82 (1985) ........... 25

Hughes v. State, 897 S.W.2d 285
Chast: Cries Bae BOGE oc ee eee 26

Johnson v. Texas, 509 U.S. 350 (1993) ........... 26
Jones v. United States, 527 U.S. 373 (1999) ... Passim
Jurek v. Texas, 428 U.S. 262 (1976) ran epee Oe | 26
Justus v. Virginia, 266 S.E.2d 87 (1980) .......... 28

Kotteakos v. United States,
328 U.S. 750 (1946) ........ Sarg h tees vbr 15, 22

eee

Lawton v. State, 913 S.W.2d 542

ee ke. a 29, 30
Lilly v. Virginia, 527 U.S. 116 (1999) SCR 14, 16
Lowenfield v. Phelps, 484 U.S. 231 (1988) ........ 27
Neder v. United States, 527 U.S.1(1999) ........ 14

Nobles v. State, 843 S.W.2d 503
CIN BI Sk Ce eeen ee scesens 32

Olden v. Kentucky, 488 U.S. 227 (1988) .......... 14

PPS AIAN eek Pgh state Pea aE) sO yarn QUEL RTC EY oe URL WARS eS ER MS RENE SMe VEL ee Se Te ROE PRET Aer Ee a aie ee ae Oe

-Vii-

TABLE OF AUTHORITIES, continued

Cases Page
; O'Neal v. McAninch, 513 U.S. 432 (1995) ......... 22
4 Padgett v. State, 717 S.W.2d 55
Cee Gc PT AE ook a oe ee ee 31
Riggins v. Nevada, 504 U.S. 127 (1992) ...... Passim
: Romano v. Oklahoma, 512 US. EtHGO@) 00.6 28, 29
’ State v. Crawford, 54 P.3d 656 (Wash. 2002) ...... 16
| _ Sterling v. State, 830 S.W.2d 114
a OPOm ONIN, BUN. POPE ws... eee ete ee ee 26
q Teague v. Lane, 489 U.S. 288 (1989) ......... Passim
Texas v. Cobb, 582 U.S. 162 (2001) .......... 0. 16
United States v. Gonzalez-Lopez,
BOE. CE BOOT IG oc ccc cee eae 18

United States v. Wells, 519 U.S. 482 (1997) .. 3, 16, 25
United States v. Williams, 504 U.S. 36 (1992) ... 3, 16
Webb v. Collins, 2 F.3d 93 (5th Cir. 1993) ........ 25

Whorton v. Bockting, 127 S. Ct. 1173 (2007) ...... 17

TABLE OF AUTHORITIES, continued

Statutes and Rules Page
NE Rs ky eee we ess ‘adh ots a ee
I EE ies ib a.0:54 Aman ang er ore Sewanee
SE Nn mateo RD nT ee: 1, 22
H.B. 9, § 15, 72nd Leg., 2nd Sess. (Tex. 1991) .. 32-33

Crt... 0 @ OC: MeO Oe eee are
Oe Or 9-8

Petitioner Shozdijiji ShisInday, a.k.a. Danny Dean
Thomas,’ resides on Texas’s death row for the brutal
murder of Sylvia Harrison. He now challenges his
conviction pursuant to 28 U.S.C. §§ 2241 and 2254,
arguing that (1) the admission of testimony from a
deceased witness during his second trial violated his
constitutional rights, and (2) the Texas statutory
punishment scheme is unconstitutional because it
precludes a jury from being informed of the consequences
of a deadlock. However, certiorari review is
unwarranted.

ShisInday’s original 1982 conviction was reversed
pursuant to Riggins v. Nevada, 504 U.S. 127 (1992),
because the trial court failed to submit any findings to
support the forced medication of ShisInday, who was
suffering from psychosis at the time. At ShisInday’s
second trial sixteen years later, the testimony from
Ernest Gilliam, who was a witness at the first trial but
died during the interim, was read into the record.
ShisInday claims that the admission of this evidence
violated his right to confrontation under Riggins because
he was unable to adequately cross-examine Gilliam at his
first trial due to his medicated state. ShisInday further
argues that a harmless-error standard does not apply
under Figgins. But Riggins is now irrelevant. The
Riggins error was cured when ShisInday received a new
trial, and ShisInday was not medicated during his second
trial. Therefore, if any error occurred from the reading of
Gilliam’s testimony, it is subject to a harmless-error
analysis, as are all Confrontation Clause allegations.
And, as the lower courts determined, any error was

! Respondent Nathaniel Quarterman is referred to as

“the Director.”

A 3

certainly harmless. Gilliam’s testimony merely
established that ShisInday purchased the murder
weapon. This was cumulative evidence because several
other witnesses testified that ShisInday was in
possession of the firearm shortly before he murdered
Harrison. Further, the gun was found in ShisInday’s car
covered in Harrison’s blood, and he confessed to the
murder. Thus, the Fifth Circuit’s conclusion — that the
district court’s resolution of this claim is not subject to
debate — is appropriate.

ShisInday also argued in the lower courts that the
trial court violated his due-process rights during
punishment by instructing the jury to continue
deliberating after the jury informed the court that it was
deadlocked. ShisInday claimed that the court’s
instructions were coercive in light of the fact that the
court failed to instruct the jurors that a deadlock would
result in a life sentence. However, ShisInday now argues
that the Texas statutory sentencing scheme is
unconstitutional because it prohibits a court from
informing the jury of the consequences of the failure to
agree on the special issues. ShisInday did not challenge
the statute in his application for a certificate of
appealability (“‘COA”) in the Fifth Circuit; therefore, this
Court lacks jurisdiction to consider the allegation.
However, even if this Court could review the claim, this
Court has never held that the statute is unconstitutional.
ShisInday is asking this Court to apply retroactively a
new rule of ccnstitutional law, which would be barred
pursuant to Teague v. Lane, 489 U.S. 288 (1989).
Moreover, in Jones v. United States, 527 U.S. 373 (1999),
this Court determined that a trial court is not required to
instruct the jury on the consequences of a deadlock
because that information has no bearing on a jury’s role

8

in the sentencing process. Therefore, ShisInday’s claim
lacks any merit, and this Court should deny certiorari
review.

JURISDICTION

Under 28 U.S.C. § 1254(1), the Court lacks
jurisdiction to consider ShisInday’s constitutional
challenge to the Texas statutory sentencing scheme
because it was not “pressed [in] or passed on’ by the
Court of Appeals.” United States v. Wells, 519 U.S. 482,
488 (1997) (quoting United States v. Williams, 504 U.S.
36, 41 (1992) (brackets in Wells)). ShisInday also
presents ep new argument that, under Crawford v.
Washington, 541 U.S. 36 (2004), Confrontation Clause
error is structural and, thus, not subject to a harmless
error analysis. Because the Fifth Circuit did not have an
opportunity to address that issue, this Court lacks
jurisdiction to consider it. The remainder of ShisInday’s
allegations are properly before the Court.

% STATEMENT OF THE CASE
I. Facts of the Crime

The United States Court of Appeals for the Fifth
Circuit summarized the relevant facts of the case as
follows:”

The evidence at the guilt/innocence
phase of trial revealed that in July of 1981,
ShisInday and his girlfriend, Phoebe, were

2 The summary is taken from the Texas Court of

Criminal Appeals’s and federal district court’s opinions.

-4.

staying at the home of James Peels, his two
sons, fifteen-year old Doyle Peels and
seventeen-year-old Zendal Peels, and
Mertha Ann Tarver. On July 17, ShisInday
gave Doyle a ride in his 1969 black-and-
white Cadillac to pick up Doyle’s work
schedule at K-Mart. ShisInday entered the
store with Doyle and purchased some
ammunition in the sporting goods
department. Later that evening, ShisInday,
accompanied by Zendal, drove Doyle and
Ronald McHenry to the skating rink.

According to ShisInday’s July 9th
transcribed statement and testimony from
other witnesses, ShisInday and Zendal went
shopping at a Safeway store after dropping
the boys off at the rink. As they were
leaving the store, they spotted nineteen-
year’old Sylvia Harrison who was kaving
car trouble. They stopped to help her, and
ShisInday determined that she needed a
new fan belt. They drove her across the
street to an auto parts store, purchased the
belt, and put it on her car. Harrison asked
ShisInday and Zendal to follow her down
the street to her house to make sure her car
did not overheat again. Once they arrived,
ShisInday fixed a leak in her car’s “heater
hose.” She offered them a beer and invited
them into the house. They sat in her living
room, drank beer, and smoked some
marijuana.

a

According to ShisInday’s statement to
the police, Zendal unexpectedly hit Harrison
in the side of the head with ShisInday’s gun,
which Zendal had concealed in a paper bag.
They carried Harrison, unconscious, out to
the car and shoved her down on the
passenger’side floorboard. They also took
several items from her house including her
telephone and eye glasses. ShisInday drove
away with Zendal sitting in the passenger
seat. Harrison regained consciousness,
kicked the steering wheel, and bit
ShisInday’s hand. ShisInday told Zendal to
grab her, and Zendal hit her in the head
again with the gun, knocking her out. She
regained consciousness again, and Zendal
repeatedly hit her in the head with his knife
until she passed out. She came to once more
and began repeating, “God help me.”
ShisInday got his gun, put it to the side of
her head, and shot her one time. They
drove her to a bridge near the river and
picked up some cinder blocks. They then
drove to a more secluded bridge and parked
under one of the support pillars. ShisInday
looked around to see if anyone was nearby.
Zendal removed Harrison’s clothes and cut
off her bra. After tying cinder blocks to
Harrison's feet and neck with a rope, they
dumped her in the San Jacinto River.
ShisInday broke off a willow branch and
brushed away their footprints as they
returned to the car. They drove to a grocery
store parking lot where they threw
Harrison’s clothes and other personal items

-6-

in a dumpster. Then they went to a car
wash and washed the outside and inside of
the car, particularly the floorboard, which
was covered in blood.

After disposing of Ms. Harrison’s
body, Zendal and ShisInday returned to the
Peels’ home between four and five a.m.
Zendal Peels’ father accused ShisInday and
Zendal of being late because they were
smoking pot. ShisInday explained that they
had car trouble. ShisInday then went to
sleep in a back bedroom with his girlfriend.

The Peels family soon discovered
blood on the outside and inside of
ShisInday’s vehicle. ShisInday’s girlfriend
woke him up in the morning and confronted
him about the blood. ShisInday claimed
that he ran over a dog, put it in his car, and
mercifully killed the dog to end its suffering.
ShisInday told the same story to the Peels
family. When the Peels and ShisInday’s
girlfriend did not believe his story,
ShisInday decided to leave. Before going,
ShisInday threatened Zendal “[ilfI go down,
you are going down with me because you are
in this with me.”

ShisInday, who had a long history of
mental problems, soon sought treatment at
a psychiatric hospital claiming that others
accused him of killing a person when he
actually killed a dog. After talking to
Zendal Peels, and going to Ms. Harrison’s

if st
a

Me

residence and finding that there had been a
fire, the police arrested ShisInday at around
1:00 a.m. at the hospital. ShisInday
initially repeated his dog story to the police,
but he later confessed to killing Ms.
Harrison.

ShisInday v. Quarterman, 511 F.3d 514, 517-19 (5th Cir.
2007); Petition, Appendix A at 2-5

II. Trial, Direct Appeal, and Postconviction
Proceedings

ShisInday was twice convicted and assessed the
death penalty for the July 1981 capital murder of
nineteen-year-old Sylvia Harrison. His first conviction
was reversed and vacated by a federal district court in
1997 under Riggins v. Nevada. See Thomas v. Johnson,
No. H-95-5236 (S.D. Tex. July 2, 1997); Petition,
Appendix E.

In his 1998 retrial, a second jury found ShisInday
guilty of capital murder, CR 409,* and answered the
punishment-phase special issues that resulted in
ShisInday’s second death sentence. Jd. at 426-29, 441.
The Texas Court of Criminal Appeals affirmed the

* “CR” refers to the clerk’s record of pleadings and

documents filed with the court during trial, followed by page
number(s). “RR” refers to the reporter's record of the evidence
and testimony presented at trial, preceded by volume number
and followed by page number(s). “SX” refers to the State’s
Exhibits admitted at trial, followed by exhibit number(s)
“SHCR” refers to the state habeas record, followed by page
number(s).

-8-

conviction and sentence on direct appeal in an
unpublished opinion. SAisInd:; » State, No. 73,351
(Tex. Crim. App. Sept. 12, 2001); Petition, Appendix D.

On state habeas review, the trial court entered
findings of fact and conclusions of law recommending
denial, SHCR 2113-91, which the Court of Criminal
Appeals adopted in an unpublished, per curiam order. Ex

No. 15,153-07 (Tex. Crim. App. March 9, 2005); Petition,
Appendix F.

ShisInday timely initiated federal habeas corpus
proceedings. Following review, the federal district court
denied habeas relief and denied a COA. ShisInday v.
Quarterman, No. H-06-814, 2007 WL 776680 (S.D. Tex.
March 9, 2007); Petition, Appendix C. ShisInday filed an
application for a COA in the Fifth Circuit on July 12,
2007. The appellate court denied ShisInday a COA ina
published opinion on December 20, 2007. Petition,
Appendix A. The instant petition for writ of certiorari
followed.

-9.
REASONS FOR DENYING THE WRIT

I. The District Court’s Denial Of ShisInday’s
Confrontation Clause Claim Is Not Debatable.
Even If The Trial Court Erroneously Admitted
Ernest Gilliam’s Testimony During ShisInday’s
Second Trial, That Ruling Is Subject To A
Harmless Error Analysis. And Given The
Substantial Evidence Of ShisInday’s Guilt, Any
Error Was Clearly Harmless. Therefore,
Certiorari Review Is Not Warranted.

ShisInday argues that the lower courts improperly
applied a harmless-error analysis to reject his underlying
Confrontation Clause claim. ShisInday points to the
reversal of his first trial under Riggins v. Nevada and
alleges that because he was unable to confront witness
Ernest Gilliam at the first trial due to the effects of forced
medication, the admission of Gilliam’s testimony in his
second trial was constitutionally deficient for the same
reason. Petition at 12-27.

On July 2, 1997, the federal district court ordered
ShisInday’s 1982 conviction set aside under Riggins
based on the lack of trial-court findings in the record to
justify that ShisInday’s prescribed treatment with
antipsychotic drugs was medically appropriate and
necessary for the sake of ShisInday’s safety or the safety
of others. Petition, Appendix E. Prior to granting relief,
the district court addressed and found meritless
ShisInday’s other twenty-seven grounds for federal
habeas relief, including a competency allegation. See
Thomas v. Johnson, No. H-95-5236. In denying that
claim, the district court noted: “[ShisInday] was found
competent to stand trial. He was found to have the

-10-

ability to consult with his lawyer with a reasonable
degree of rational understanding, and was found to have
a rational as well as factual understanding of the
proceedings against him.” /d., slip op. at 31-32; see also
SHCR 1309-10 (State’s Exhibit “B”).

During ShisInday’s retrial in 1998, the State
offered the 1982 testimony of Ernest Gilliam, along with
a death certificate showing that Gilliam had passed
away. Petition, Appendices N & O. ShisInday objected
to the admission of the testimony on the ground that he
lacked the ability to cross-examine Gilliam during the
first trial due to his medicated state. Jd. at Appendix O.
The trial court overruled the objection, and the State read
Gilliam’s testimony to the jury. /d. The testimony was
brief: in short, Gilliam stated that he knew ShisInday
and that he recognized State’s Exhibit 10 as the .25
automatic pistol he owned and later sold to ShisInday for
fifty dollars in July 1981. Jd. at Appendix N. Gilliam
testified on cross-examination that the gun had one clip
when he sold it to ShisInday. Jd. Neither party asked
Gilliam any further questions.

ShisInday now offers a three-part argument
pertaining to his underlying Confrontation Clause
allegation: (1) the Riggins violation that affected his first
trial essentially carried over to his second when Gilliam’s
testimony was admitted; (2) Confrontation Clause
violations should not be subject to a harmless-error
analysis under Crawford v. Washington: and (3) the
admission of Gilliam’s testimony was not harmless.
Petition at 14-27. These arguments are meritless.

of}.

A. ShisInday is actually claiming that
a Confrontation Clause violation
occurred, not Riggins error. In fact,
Riggins has no application to
ShisInday’s second trial because the
Riggins error was cured when
ShisInday received a new trial.
Thus, any error pertaining to retrial
must be assessed for harmlessness.

ShisInday’s Riggins argument is as follows: a
harmless-error analysis does not apply to a Riggins
violation; therefore, because Aiggins error occurred
during his first trial, the admission of any evidence
during his second trial that was taken from his first
cannot be harmless. Petition at 14-17. In other words,
ShisInday is attempting to bootstrap Aiggins to his
second trial. His claim is flawed on several fronts.

In Riggins, the defendant, who was on trial for
robbery and murder, suffered from psychosis. 504 U.S. at
129-31. Riggins was involuntarily medicated throughout
trial without explanation from the trial court why
medication was necessary. /d. at 131. Riggins moved to
terminate medication, but the court denied that request.
Id. At trial, Riggins pleaded insanity and testified on his
own behalf. /d. This Court ultimately reversed, holding
that the trial court failed to acknowledge Riggins’s liberty
interest in being free from unwanted antipsychotic drugs.
Id. at 137. Considering reports from various doctors, the
Court determined that the side effects of this medication
might have altered Riggins’s appearance, the content of
his testimony, his ability to follow the trial proceedings,
or his ability to consult with counsel. Jd. The Court also
rejected the argument that Riggins needed to show how

-1]2-

he was harmed by the forced medication. “Efforts to
prove or disprove actual prejudice from the record before
us would be futile, and guesses whether the outcome of
the trial might have been different if Riggins’ motion had
been granted would be purely speculative.” Jd. The
Court concluded that because the record was devoid of
findings “that might support a conclusion that
administration of antipsychotic medication was necessary
to accomplish an essential state policy ... we have no basis
for saying that the substantial probability of trial
prejudice in this case was justified.” Jd. at 138.

Therefore, a harmless-error analysis did not apply
to Riggins because the Court had no way of determining,
even at the very least, the nature of the error that might
have occurred. Indeed, Riggins did not allege specific
constitutional violations; he generically claimed that
forced administration of antipsychotics denied him the
ability to assist in his defense and “prejudicially affected

his attitude, appearance, and demeanor at trial.” Jd. at
131.

But that is not the case here. ShisInday has made
it clear that he is alleging a Confrontation Clause
violation pertaining to the admission of Gilliam’s
testimony. This is a claim that can be assessed for
harmless error. For example, the record does not contain
any evidence that ShisInday was actually unable to assist
in the cross-examination of Gilliam due to being
medicated at his 1982 trial. The district court correctly
noted that “ShisInday offers no compelling area in which
he could have cross-examined Mr. Gilliam differently
than his attorneys did in the first trial. ShisInday makes
no showing that deeper cross-examination of Mr. Gilliam
in the second trial would have lessened the incriminating

«ite

nature of his testimony.” Petition, Appendix C at 46.
Moreover, the federal district court’s original reversal
under Riggins was based solely on the trial court’s failure
to make the factual findings necessary te justify
ShisInday’s medication, not that ShisInday was
incompetent to confront Gilliam. Jd., Appendix E. In
fact, as shown above, the federal district court found that
ShisInday was competent to stand trial and that he was
capable of assisting his attorneys in cross-examining the
witnesses.

Be that as it may, even if Gilliam’s 1982 testimony
was tainted under Figgins, this does not save ShisInday.
The fatal flaw in ShisInday’s argument is that he is
focused on the wrong trial. In other words, the issue is
not whether ShisInday’s confrontation rights were
impeded during his first trial when he was on
antipsychotics, but whether the reading of Gilliam’s
testimony at ShisInday’s second trial transgressed those
rights. ShisInday was not medicated the second time
around, so Arggins is no longer relevant. Therefore, this
is strictly a Confrontation Clause claim pertaining to the
admission of evidence during retrial. Consequently, as
discussed below, a harmless-error analysis absolutely
applies.*

4 Although, the Director is assuming arguendo that

error occurred, he is not conceding this point. Gilliam’s
testimony was debatably admissible under the Texas Rules of
Evidence, Rule 804(b)(1), former testimony from an
unavailable declarant whom the defendant had an opportunity
to cross-examine. As shown above, the record indicates that
ShisInday was not denied an opportunity to develop Gilliam’s
1982 testimony through cross-examination, despite
ShisInday’s medicated state. Nonetheless, because this case

-14-

ShisInday offers the novel argument that his
second trial was, in essence, a continuation of the first
and, consequently, that Riggins affects both. Petition at
16. ShisInday disregards that the Aiggins error was
cured when he received a second trial and that the two
trials were sixteen years apart. Moreover, this Court has
never held that Aiggins error, nor any error for that
matter, carries over from one trial to another. And
ShisInday cites to no precedent holding that a second
trial constitutes a continuation of the first. The adoption
of ShisInday’s argument would require the creation of a
new rule constitutional law barred under Teague v. Lane,
489 U.S. at 310. It would also lead to the absurd result
of never-ending trials and render meaningless the states’s
interest in finality. In short, this is not a legitimate
reason for granting certiorari review.

B. The harmless error doctrine applies
to ShisInday’s claim; Crawford v.

Washington does not alter that rule.

Assuming that the trial court erroneously admitted
Gilliam’s testimony at ShisInday’s second trial, ShisInday
must establish harm to obtain federal habeas corpus
relief. This Court has repeatedly held that Confrontation
Clause violations are subject toa harmless-error analysis.
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); O/den
v. Kentucky, 488 U.S. 227, 232-33 (1988); Coy v. Iowa,
487 U.S. 1012, 1021-22 (1988); Neder v. United States,
527 U.S. 1, 18 (1999); Lilly v. Virginia, 527 U.S. 116, 139-
40 (1999). Moreover, under Brecht v. Abrahamson,
federal habeas relief may not be granted for trial error

can be more easily resolved on the harmless-error issue, the
Director will not brief this matter any further.

a
gs

o] §-

that, although of constitutional magnitude, did not have
a “substantial and injurious effect or influence in
determining the jury’s verdict.” 507 U.S. 619, 637-38
(1993) (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946)).

ShisInday argues that the Court’s holding in
Crawford“requires reconsideration of the use of harmless
error analysis in relation to the Confrontation Clause.”
Petition at 18. In Crawford, this Court held that the
admission of a wife’s out-of-court statements to police
officers, regarding an incident in which the defendant,
her husband, allegedly stabbed the victim, violated the
Confrontation Clause. The Court held that it was
irrelevant whether the wife’s statements were deemed
reliable by the trial court because the statements were
testimonial and the defendant was not given prior
opportunity to cross-examine his wife. 541 U.S. at 66°68.
ShisInday now contends that Crawford distinguishes
Confrontation Clause allegations from other trial errors
because this Court stated that the lack of opportunity to
cross-examine “alone is sufficient to make out a violation
of the Sixth Amendment.” Jd. at 68. ShisInday also
argues that violations of the Confrontation Clause are
different because “[t]here is no way to reliably quantify or
predict what would have happened” had he been able to
cross-examine Gilliam. Petition at 19. Although Gilliam
was cross-examined at ShisInday’s first trial, ShisInday’s
argument fails for five additional reasons.

First, the Court lacks jurisdiction to even consider
this claim. ShisInday did not claim in his application for
a COA that Crawford altered the settled rule that
Confrontation Clause allegations are subject to a
harmless:error analysis. Petition, Appendix A at 15-17.

-16-

His claim pertained solely to Riggins. Therefore, under
28 U.S.C. § 1254(1), this Court cannot consider
ShisInday’s “structural error” allegation because it was
not “pressed [in] or passed on’ by the Court of Appeals.”
Wells, 519 U.S. at 488 (quoting Williams, 504 U.S. at 41).

Second, ShisInday is completely misreading
Crawford. The Crawford Court only concluded that an
indicia-of-reliability test does not apply to testimonial
statements. The Court did not reach the issue of
harmless error at all. Indeed, the Court did not reverse
Crawford’s conviction; it reversed the decision of the
Washington Supreme Court that the challenged
testimony was reliable and remanded the case to that
court “for further proceedings not inconsistent with this
opinion.” Crawford, 541 U.S. at 69. Also, the
Washington Supreme Court did not reach the issue of
harmless error when it previously reinstated Crawford’s
conviction. State v. Crawford, 54 P.3d 656 (Wash. 2002).
Implicit in the Court’s remand is that the Washington
Supreme Court determine whether the error was
harmless. For example, in Lilly v. Virginia, this Court
held that a defendant’s right to confrontation was
violated and concluded: “Adhering to our general custom
of allowing state courts initially to assess the effect of
erroneously admitted evidence in light of substantive
state criminal law, we leave it to the Virginia courts to
consider in the first instance whether this Sixth
Amendment error was ‘harmless beyond a reasonable
doubt.” 527 U.S. at 139-40 (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). Then, asin Crawford,
the Court remanded the case for further proceedings. Jd.
at 140. ShisInday, therefore, cannot rely on Crawford to
overcome the harmless-error question. See Texas v.
Cobb, 532 U.S. 162, 169 (2001) (“Constitutional rights are

tt?

not defined by inferences from opinions which did not
address the question at issue.”).

Third, assuming for a moment that Crawford
announced a new rule beneficial to ShisInday, he still
could not rely on it. In Whorton v. Bockting, 127 S. Ct.
1173, 1183-84 (2007), this Court held that Crawford does
not apply retroactively to cases on collateral review.

Fourth, this Court has already addressed
ShisInday’s concern about the impact on a trial stemming
from a defendant’s inability to confront a witness. In Coy
v. Jowa, this Court recognized that an assessment of
harmlessness with regard to Confrontation Clause
violations requires a _ particular approach. The
assessment “cannot include consideration of whether the
witness’ testimony would have been unchanged, or the
jury’s assessment unaltered, had there been
confrontation” because that involves speculation. 487
U.S. at 1021-22. “{H]armlessness must therefore be
determined on the basis of the remaining evidence.” Jd.
at 1022. Consequently, Coy undermines ShisInday’s
belief that courts “cannot determine, without cross-
examination, what impact unconfronted testimony had on
a trial overall.” Petition at 20.

Fifth, in Arizona v. Fulminante, 499 U.S. 279
(1991), this Court divided constitutional error into two
classes: trial error and structural defects. Jd. at 307-08.
Trial errors are those that occur during the presentation
of the case to the jury and include most constitutional
errors. Jd. at 306-07. They may “be quantitatively
assessed in the context of other evidence presented in
order to determine whether [the admission of evidence]
was harmless beyond a reasonable doubt.” /d. at 307-08.

-18-

The error ShisInday alleges clearly falls into this category
because it pertains to his alleged inability to confront a
witness. Only a handful of errors amount to structural
defects. These include the denial of counsel, the denial of
counsel of choice, the denial of self-representation, the
denial of a right to a public trial, and the denial of the
right to trial by jury by the giving of a defective
reasonable-doubt instruction. United States v. Gonzalez-
Lopez, 126 S. Ct. 2557, 2564 (2006). This Court has
never held that Confrontation Clause errors are of this
ilk. ShisInday is arguing that Van Arsdall, et al., should
be overruled, which is a request for a new ruie of
constitutional law. Therefore, this claim, like the Riggins
allegation above, is barred under Teague v. Lane.

C. Any error was unquestionably
harmless given the substantial
evidence of ShisInday’s guilt.

Both the Fifth Circuit and federal district court
determined that any Confrontation Clause violation was
harmless under Brecht v. Abrahamson. Petition,
Appendix A at 16-17, Appendix C at 45-46. This is not a
debatable conclusion.

Indisputably, Gilliam’s testimony that he sold the
gun to ShisInday was not significant. The gun —
introduced as State’s Exhibit 10 — had already been
identified as ShisInday’s gun by Martha Tarver, Doyle
Peels, and Peels’ friend, Ronald McHenry. 15 RR 55-56,
97, 119-20. The gun was seen in ShisInday’s possession
shortly before Harrison’s murder, id., and it was
recovered from the driver's side floorboard of ShisInday’s
car covered in blood. /d. at 41; 17 RR 123; 18 RR 111.
The blood on the gun matched Harrison’s DNA profile. 18

«1d.

RR 223. Blood was also found on both the inside and
outside of the car. 15 RR 40-41; 17 RR 122; 18 RR 110.
When the police picked up ShisInday in Galveston, he
appeared to have blood stains on his shirt and pants. 17
RR 105. Further, a neighbor confirmed seeing
Shisinday’s car in Harrison’s driveway until
approximately midnight, when he noticed smoke and a
flash of orange coming from Harrison’s home, later

determined to have been an intentional fire set in the
living room and bedroom. 15 RR 162-64, 183-87.

The most significant evidence presented at trial
was, of course, ShisInday’s confession. SX 40; 17 RR 217-
39. ShisInday became visibly upset when the police
showed him a morgue photograph of Sylvia Harrison. 17
RR 109, 208. He asked officer Johnny Freeze if they
could talk for a moment, and then he volunteered that he
murdered Harrison. 17 RR 111. ShisInday’s written _
confession, which is extremely lengthy and took several
hours to compose, followed. Jd. at 112, 217-39; SX 40.
The details of his confession were confirmed when the
police found Sylvia Harrison’s nude body and conducted
their investigation. For example, the police discovered
her body submerged in the San Jacinto River. 17 RR 187-
97. Just as ShisInday stated, cinder blocks had been tied
to her ankles and neck. /d. at 196-97. She had been shot
in the head, and she sustained numerous contusions and
three stab wounds to the face, consistent with Peels
“hitting” Harrison in the head with his knife. 18 RR 144-
48. Further, Harrison’s clothes and personal items were
found in the dumpster ShisInday mentioned. Jd. at 65-
73. The condition of her clothes revealed that they had,
in fact, been cut off. Jd. When the police searched
ShisInday’s car, they found — aside from the gun - a
white and orange tinted rope, a knife, and a fan belt cover

-20-

in the trunk. /d. at 109-13; 17 RR 180. At Harrison's
home, the police noticed a new fan belt on hercar. 17 RR
84. Inside her purse was a receipt for a fan belt. Jd. at
85. The owner of an auto parts store testified that
Harrison came into the store with two men and
purchased the belt. Jd. at 180. Finally, ShisInday hada
noticeable human bite mark on his finger, which he
initially claimed was a dog bite. 15 RR 37-38.

In short, the evidence of ShisInday’s guilt is
substantial. Nonetheless, ShisInday contends that
Gilliam’s testimony was harmful because the other
testimony linking him to the gun was tainted by the
personal connections of the witnesses to Peels. Petition
at 24. However, this is merely supposition; ShisInday
has provided nothing to show that this testimony was
unreliable simply because some of the witnesses are
related to Zendal Peels. Regardless, as the district court
noted, Ronald McHenry is not related to the Peels family.
Petition, Appendix C at 45. Although ShisInday argues
that McHenry is a friend of the family, Petition at 24 n.6,
ShisInday has not demonstrated that this somehow taints
McHenry’s testimony. Moreover, all of these witnesses
were cross-examined regarding their association to Peels.
15 RR 60-61, 106, 114, 127. Thus, the jury was not
oblivious to these facts.

More importantly, Gilliam’s testimony was trivial
because ShisInday’s ownership of the gun lacks direct
relevance to his conviction. The issue is not whether
ShisInday bought the gun from Gilliam, but whether
ShisInday shot and. killed Harrison. Considering
ShisInday’s confession, that the gun was found in his car
covered in Harrison’s blood, and the other evidence
discussed above, ShisInday’s guilt for committing capital

at.

murder is not in doubt. Therefore, Gilliam’s testimony
did not have a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507
U.S. at 637-38.

ShisInday also claims that any error was harmful
because he “argued” before the jury that his confession
was not reliable. Petition at 25. This is a meritless point.
The trial court held a suppression hearing and concluded
that ShisInday’s confession was properly obtained and
admissible. 16 RR 1-101. Subsequently, the Court of
Criminal Appeals, federal district court, and Fifth Circuit
all determined that ShisInday’s confession was not
acquired through coercive state action. Petition,
Appendix A at 11-14, Appendix C at 63-68, Appendix D at
13-21.

Next, ShisInday contends that the Fifth Circuit
erred in placing the burden on him to establish harm.
Petition at 25. He is apparently referring to the following
language in the Fifth Circuit’s opinion: “ShisInday argues
that when a petitioner establishes a Riggins violation, he
need not prove prejudice or harm to obtain relief. We
disagree.”” Petition, Appendix A at 16. ShisInday is
misconstruing this statement, which was merely a brief
response to Ais allegation. The Fifth Circuit did not
explicitly assign a burden of proof to ShisInday. This is
demonstrated by the court’s conclusion: “Based on our
review of the record, we agree with the Court of Criminal
Appeals that the evidence was cumulative of other

° Because the Fifth Circuit resolved ShisInday’s claim

under a harmless-error analysis, it did not consider whether
a. Riggins violation occurred or whether ShisInday’s claim
could even be characterized as such.

BS

properly admitted evidence and thus its admission did
not have a substantial and injurious effect on the
verdict.” Jd. at 17 (emphasis added). The appellate
court's approach is entirely consistent with O'Neal v.
McAninch, 513 U.S. 432, 436-37 (1995), in which this
Court — addressing the role of a judge who applies a
harmless-error standard — asserted, “[Wle think it
conceptually clearer for the judge to ask directly, ‘Do I,
the judge, think that the error substantially influenced
the jury’s decision” than for the judge to try to put the
same question in terms of proof burdens (e.g., ‘Do I
believe the party has borne its burden of showing ...?’).”
Moreover, as in the instant case, “[nlormally a record
review will permit a judge to make up his or her mind
about the matter.” Jd. at 435. It is only when that review
leaves a judge in grave doubt about the likely effect of an
error on the jury’s verdict that the judge must treat the
error as if it did affect the verdict. /d. This is not one of
those cases, and the Fifth Circuit’s analysis was proper.

Finally, ShisInday argues that this Court should
grant certiorari review because lower courts have not
consistently reconciled the harmless-error standard
enunciated in Van Arsda// with that in Brecht. Petition
at 25-27. However, in Fry v. Pliler, 1278S. Ct. 2321, 2325
(2007), this Court explained that Brecht“clearly assumed
that the Kotteakos standard would apply in virtually all
§ 2254 cases.” The only exception is for an “unusual case”
where “a deliberate and especially egregious error of the
trial type, or one that is combined with a pattern of
prosecutorial misconduct ... infect[s] the integrity of the
proceeding.” /d. (quoting Brecht, 507 U.S. at 638 n.9).
This Court has never held, nor has ShisInday
demonstrated, that an alleged Confrontation Clause
violation falls into that category. Therefore, Brecht is

a.

clearly the applicable standard. Once again, implicit in
ShisInday’s claim is a request for a new rule of
constitutional law, which would be Teague barred.

For all of the above reasons, the lower court’s
decision is not debatable, and certiorari review is not
warranted.

II. This Court Does Not Have Jurisdiction To
Consider ShisInday’s Claim That The Texas
Statutory Sentencing Scheme Is Unconstitutional
Because He Failed To Present That Claim To The
Fifth Circuit. Regardless, His Allegation Is
Teague-Barred And Foreclosed Under Jones v.
United States.

ShisInday claims that the statute under which he
was sentenced to death, Article 37.0711 of the Texas Code
of Criminal Procedure, is unconstitutional on its face and
as applied to him. Petition at 27-37. To summarize
ShisInday’s claim, the statute provides that the jury is to
return a “yes” or “no” answer to the deliberateness,
future-dangerousness, and mitigation specialissues. The
jury may not answer “yes” to the deliberateness and
future-dangerousness issues unless all jurors agree and
may not answer “no” unless ten or more agree. With
regard to mitigating circumstances, the jury may not
answer that issue “no” unless all jurors agree and may
not answer “yes” unless ten or more agree. Tex. Code
Crim. Proc. art. 37.0711 § 3(b)-(f). The statute also states
that if the jury is unable to answer any of the special
issues, the court must sentence the defendant to life
imprisonment. Tex. Code Crim. Proc. art. 37.0711 § 3(g).
However, § 3(i) provides: “The court, the attorney for the
state, or the attorney for the defendant may not inform a

-24-

juror or prospective juror of the effect of failure of the jury
to agree on an issue submitted under this article.” Tex.
Code Crim. Proc. art. 37.0711 § 3(i).

ShisInday contends that “the prohibition of this
part, 3(i), operating in conjunction with part 3(g)” is
unconstitutional because it misleads jurors into believing
that “a concurrence of ten or more is needed to answer a
special issue in a way that will result in a life sentence,
when in fact any one juror who believes that the
prosecution has failed to meet its burden can effectively
cause the imposition of a life sentence.” Petition at 30.
The result, ShisInday claims, is that a holdout juror who
believes that life should be the appropriate sentence will
tend to yield to the majority because the juror does not
understand the impact his or her vote will have on the
sentencing decision. Petition at 31-32. ShisInday further
alleges that the statute worked to his detriment because
the jury was deadlocked for several days and was
instructed to continue deliberating. /d. For the following
reasons, ShisInday’s claim cannot succeed, and certiorari
review is not warranted.

A. This Court lacks jurisdiction to
consider the instant claim.

In the Fifth Circuit, ShisInday alleged that he was
deprived of due process because the trial court instructed
the jury to continue deliberating after receiving several
notes that the jury was deadlocked. Petition, Appendix
A at 14-15. ShisInday argued that the trial court’s failure
to instruct the jury that a deadlock would result in a life
sentence, combined with the instruction that ten votes
were needed for a life sentence and the instruction to
continue deliberating, resulted in a coerced death

eee x

-2..
sentence. /d.

Thus, ShisInday’s claim pertained to the trial
court’s instructions. He is now raising a specific
allegation that the statute governing his punishment
proceedings is unconstitutional. Petition at 27-37.
Although there are similarities in the claims, ShisInday
did not give the Fifth Circuit an opportunity to address
the constitutionality of Article 37.0711. Moreover,
ShisInday challenges the statute on Eighth Amendment
grounds, not simply as a violation of due process.
Petition at 32-37. This is a separate issue the lower
courts did not resolve. Therefore, this Court lacks
jurisdiction to review this claim under 28 U.S.C. §
1254(1) because it was not presented to or considered by
the court of appeals. Wells, 519 U.S. at 488; see also
Clingman v. Beaver, 544 U.S. 581, 598 (2005) (“We
ordinarily do not consider claims neither raised nor
decided below.”); Heath v. Alabama, 474 U.S. 82, 87
(1985).

B. Regardless, ShisInday is requesting
a new rule of constitutional law
striking down the Texas statutory
scheme for not requiring courts to
instruct jurors on the consequences
of a deadlock, although this Court
has held that such a rule is not
relevant to a jury’s role in
sentencing.

Lack of jurisdiction notwithstanding, this Court
has never held that Article 37.0711 is unconstitutional for
containing the “objectionable” language of § 3(i). See
Webb v. Collins, 2 F.3d 93, 95-96 (5th Cir. 1993). Indeed,

a

this Court has repeatedly held that the Texas special
issues pass constitutional muster. Johnson v. Texas, 509
U.S. 350, 360-361 (1993); Franklin v. Lynaugh, 487 U.S.
164, 182 (1988); Jurek v. Texas, 428 U.S. 262, 279 (1976).
Moreover, the Texas Court of Criminal Appeals has
concluded that the statutory language prohibiting jurors
from being informed of the consequences of a deadlock is
not unconstitutional. Hughes v. State, 897 S.W.2d 285,
301 (Tex. Crim. App. 1994); Sterling v. State, 830 S.W.2d
114, 121-22 (Tex. Crim. App. 1992); Davis v. State, 782
S.W.2d 211, 221-22 (Tex. Crim. App. 1989). Therefore,
ShisInday’s argument, which would require this Court to
announce a new rule of constitutional law, is barred
under Teague v. Lane.

Moreover, this Court has rejected the theory that
a trial court’s failure to instruct the jury as to the
consequences of deadlock gives rise to an Eighth
Amendment violation. In Jones v. United States, the
capital defendant wished to inform the jury that the trial
judge would impose a life sentence without parole if the
jury could not reach a unanimous punishment verdict.
527 U.S. at 379. This Court noted that such issues do not
involve the failure to provide the jury with mitigating
evidence, but only whether the jury was misled as to its
role in the sentencing process. /d. at 381-82. In rejecting
this contention, the Court held:

The truth of the matter is that the
proposed instruction has no bearing on the
jury's role in the sentencing process.
Rather, it speaks to what happens in the
event that these jury is unable to fulfill its
role — when deliberations break down and
the jury is unable to produce a unanimous

x, 2

sentence recommendation. Petitioner's
argument, although less thanclear, appears
to be that a death sentence is arbitrary
within the meaning of the Eighth
Amendment if the jury is not given any bit
of information that might possibly influence
an individual juror’s voting behavior. That
contention has no merit. We have never
suggested, for example, that the Eighth
Amendment requires a jury be instructed as
to the consequences of a breakdown in the
deliberative process. On the contrary, we
have long been of the view that “[t)he very
object of the jury system is to secure
unanimity by a comparison of views, and by
arguments among the jurors themselves.”
Allen v. United States, 164 U.S. 492, 501 JJ
(1896).

Id. at 382. This Court also “recognized that in a capital
sentencing proceeding, the Government has ‘a strong
interest in having the jury express the conscience of the
community on the ultimate question of life or death.” Jd.
(quoting Lowenfield v. Phelps, 484 U.S. 231, 238 (1988)).
Thus, the instruction ShisInday desires “might well have
the effect of undermining this strong governmental
interest.” Jd.

Further, the Court declined to require that this
type of instruction be given in every capital case. The
Court held: “While this was a correct statement of law it
concerned a procedural matter and was not one which
should have been the subject of an instruction. It would
have been an open invitation for the jury to avoid its
responsibility and to disagree.” /d. at 383-84 (quoting

ee : : ee ‘ ; ‘ § « “yb ae ae
SOR Pe 1. eee. es Oe AeA eT CET ET ee oe a eR, ED CON eee ARTE DS OR Cote Lee We aD COE a RO EE OME TL OT Ie PRGA Ue ar ee eee MP Ee

-28-

Justus v. Virginia, 266 S.E.2d 87, 92 (1980)). Therefore,
despite ShisInday’s complaints, he has no constitutional
right to the instruction. Consequently, Jones forecloses
his challenge to the statute.

C. ShisInday’s argument that Jones is
factually distinct from his case and,
thus, should not apply is ineffectual.
Jones did not hold that an
instruction regarding the
consequences of a deadlock must be
given in certain cases. And even if it
did, this would not be one of those
cases because the Texas statutory
scheme does not mislead jurors.

Although ShisInday concedes that Jonesaddresses
the issue he is raising, he contends that his case differs in
several respects. First, he argues that Jones left open the
possibility that the failure to instruct the jury as to the
consequences of a deadlock could give rise to an Eighth
Amendment problem if the jury was “affirmatively misled
regarding its role in the sentencing process.” Jones, 527
U.S. at 381-82 (quoting Romano v. Oklahoma, 512 U.S. 1,
9 (1994)); Petition at 33. ShisInday then states that the
Texas statute is affirmatively misleading because, unlike
the federal statute at issue in Jones, it requires the trial
court to instruct the jury that a concurrence of ten jurors
is needed to sentence a defendant to life although “one
juror has the power to effect a life sentence.” Petition at
33.

ShisInday’s argument is wholly meritless. Jones
proclaimed that a court's failure to give this instruction
could lead to a constitutional dilemma in theory. Jones,

-29-

527 U.S. at 381. In practice, however, the refusal to do so
does not mislead because it has no bearing on the jury’s
role in sentencing; rather, it pertains to a procedural
matter in the event the jury cannot fulfill it’s role. Jd. at
382. Further, by quoting Romano, the Jones Court was,
in essence, referring to its holding in Caldwell v.
Mississippi, 472 U.S. 320 (1985).° In Caldwell, this Court
held that a prosecutor misled the jury about its role in
sentencing when he stated that the jury’s responsibility
for sentencing the defendant lay elsewhere. Jd. at 336-40.
But to establish a Ca/dwel// violation, a petitioner must
show that remarks to the jury improperly described the
jury’s role under state law. Dugger v. Adams, 489 U.S.
401, 407 (1989). That did not happen in ShisInday’s case
because the trial court’s instructions conformed precisely
with Texas law. ShisInday is complaining about what
the court did not say regarding a deadlock, which, as
Jones makes clear, is not required.

Importantly, the Court of Criminal Appeals has
repeatedly pointed out the flaws in arguments, like
ShisInday’s, that the Texas 12-10 rule is misleading. In
Lawton v. State, 913 S.W.2d 542, 559 (Tex. Crim. App.
1995), the court explained:

[While it is true that the jury is instructed
that they may not answer any of the special
issues in a manner that would result in a
life sentence unless ten jurors agree to that
answer, this instruction follows’ the
instruction that the jury may not answer

6

The petitioner in Romano argued that he should be
granted relief pursuant to Caldwell. Romano, 512 U.S. at 8-
10.

peat

-30-

any of the special issues in a manner
resulting in capital punishment unless the
verdict is unanimous. Under these facts,
appellant's argument that jurors will be
misled lacks merit; every juror knows that
capital punishment cannot be imposed
without the unanimous agreement of the
jury on all three special issues. The jury is
not informed of the consequences of a hung
jury, but each juror will know that without
his or her vote the death sentence cannot be
imposed.

Id. at 559 (emphasis added). And in Draughon v. State,
831 S.W.2d 331 (Tex. Crim. App. 1992), the court
correctly held that a defendant has no right for the jury
to be told of the consequences of their failure to agree
because “la]bstention is not a jury option. Rather ... it is
merely a consequence of the jury’s inability to exercise its
available options by reaching a verdict. It is not, nor
would it be appropriate to suggest that it is, a verdict
itself.” Jd. at 338. Thus, ShisInday’s argument that the
statute misinforms jurors about their role has no basis in
law or fact.

Second, ShisInday contends that Jones differs
because this Court held that lower courts are not required
in every capital case to give an instruction regarding the
consequences of a deadlock, whereas Texas law “prohibits
the trial court from ever instructing the jury” in that
manner. Petition at 33-34 (emphasis in original). This is
a frivolous argument. Obviously, if such an instruction is
not required, then a state can never run afoul of the
Constitution by repeatedly refusing to give it. The Jones
Court did not hold that a jury must, or even should,

<3}.
receive the instruction in certain cases.

Third, ShisInday argues that the Texas statute,
unlike the federal statute in Jones, appears to operate by
mistake and not design. Petition at 34. Prior to 1981, in
a capital case, a hung jury on punishment resulted in a
mistrial. See Padgett v. State, 717 S.W.2d 55, 58 (Tex.
Crim. App. 1986). In 1981, the Legislature amended the
statute to require the imposition of a life sentence in the
event ofa hungjury. Jd. The purpose of this change was
to prevent the lengthy delays and expense of retrying a
capital defendant. Jd. The Legislature also added the
provision banning the jury from receiving information
about the consequences of a deadlock. Jd. ShisInday
argues, in essence, that the Legislature put no
consideration into how the new amendments would
conflict with, or “render obsolete,” the 12-10
requirements. Petition at 35. ShisInday is incorrect
because there is no conflict. As stated above, a deadlock-
imposed life sentence is a procedural issue. It is not, and
never has been, a sentencing option for a jury under
Texas law. Moreover, there is no evidence that the
Legislature ever intended a non-answer on a special issue
to actually be an answer. See Padgett, 717 S.W.2d at 58.
Although that is now the procedural outcome, the
Legislature’s obvious goal via the two amendments was
to prevent retrials but not absolve the jury of its
responsibility to answer the special issues.

And that is one the primary problems with
ShisInday’s claim: he fails to comprehend why Texas has
the 12-10 rule and the prohibition against informing the
jury of the consequences of a deadlock. The 12-10 rule
was designed to stress juror unanimity and consensus
either for or against a death sentence. It is “likely to

tthe

stimulate in jurors a more serious approach to their task
by encouraging them to reach agreement through
continued deliberation rather than to abandon hope of
consensus prematurely.” Draughon, 831 S.W.2d at 337.
Moreover, “(t]he issues are framed in a manner which
permits them to be answered either affirmatively or
negatively, and it is the purpose of the deliberative
process to resolve juror vacillation.” Nobles v. State, 843
S.W.2d 503, 510 (Tex. Crim. App. 1992). This also
discourages a juror from skirting his or her responsibility
by failing to return a vote. /d. Additionally, although
ShisInday complains that the rule somehow “coerces” a
holdout juror into voting with the majority, the opposite
could happen if a juror is aware of the consequences of a
deadlock. In other words, “a juror convinced of the
appropriateness of a life sentence [might] refuse to
consider the evidence and the views of other jurors in
support of the death penalty, knowing that his blind
obstinance would preforce result in a life sentence.”
Davis, 782 S.W.2d at 221 (quoting Barfield v. Harris, 540
F.Supp. 451, 472 n.17 (E.D.N.C. 1982)). Thus, as the
Jones Court acknowledged, acceptance of ShisInday’s
argument would provide jurors an “open invitation” to
abdicate their responsibilities in order to reach a desired
outcome.

Fourth, and related to the above, ShisInday claims
that the statute operates in an arbitrary manner because
the ban of § 3(i) was lifted after 1991 but remains in place
for him. Petition at 35. This is an erroneous assertion.
In 1991, the Texas Legislature did not eliminate the
language prohibiting the trial court or the parties from
informing the jury of the consequences of the failure to
agree on the special issues; it simply moved that
language to the end of Article 37.071 § 2(a). H.B. 9, § 15,

mF

72nd Leg., 2nd Sess. (Tex. 1991). Therefore, the “ban” is
still in place.

Fifth, ShisInday claims that the facts of his case
are distinguishable from Jones because the petitioner in
Jones was unable to show that any confusion worked to
his detriment, whereas a few jurors in ShisInday’s case
held out for several days. Petition at 36. Thus, he argues
it is likely the jurors would have continued to hold out
had they known of the consequences of a deadlock. Jd.
However, Jones did not hinge on the duration of juror
deliberations; the Court simply stated that where the
effect of an alleged instruction error is so uncertain, a
defendant cannot show that his substantial rights were
violated. Jones, 527 U.S. at 394-95. And because
confusion over the consequences of a deadlock could lead
a jury in either direction, it’s potential effect is
speculative. Jd. Moreover, ShisInday’s claim is premised
on the faulty assumption that heated deliberations
equates to confusion. But the punishment phase of his
case lasted three days, eighteen witnesses were
presented, 120 exhibits were introduced, and the jury was
required to reconsider the evidence presented during
guilt-innocence. Petition, Exhibit C at 25. The
reasonable deduction is not that the jurors were confused,
but that they had significant disagreements about the
weight of the evidence. And despite those disagreements,
they did make slow progress in reaching a verdict, which
is why the trial court informed the jurors to continue
deliberating and did not declare a hung jury. /d. at 25-
37.

Last, ShisInday asks this Court to grant certiorari
review in order to clarify those circumstances in which an
instruction regarding a deadlock might be appropriate.

Bh.

Petition at 36. But, as stated, Jones did not delve into
this issue because that information has no relevance to
the jury’s role in sentencing and, thus, cannot mislead.
Jones, 527 U.S. at 382. Either there are no such
circumstances or they are so abstract that further
consideration of the matter would be futile. Regardless,
even if this Court did identify a scenario where a court
should give an instruction about the consequences of a
deadlock, (1) it would not be the instant case, and
(2) ShisInday would be barred from relying on the new
rule under Teague v. Lane.

Based on the foregoing, ShisInday’s complaints
about the Texas sentencing scheme are waived and
meritless. Consequently, certiorari review is not
warranted.

CONCLUSION

For the above reasons, the Director respectfully
requests that ShisInday’s petition for writ of certiorari be
denied.

Respectfully submitted,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ERIC J.R. NICHOLS
Deputy Attorney General
for Criminal Justice

Cael
RO
:
Ei
4
a
Bs
ga
B
BS
as
at

=

es)

Be Sk eS

ee

*Counsel of Record

EERE FOUL SENDS ROM TTT EINE

~35-

EDWARD L. MARSHALL
Chief, Postconviction

Litigation Division

*W. ERICH DRYDEN
Assistant Attorney General
State Bar No. 24008786

P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1400

(512) 320-8132 (Fax)

ATTORNEYS FOR RESPONDENT

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1432%3A2. Public record. Not legal advice.