710 F.3d 267 | 5th Cir. | 2013
Lead Opinion
Nelson Gongora was convicted in Texas state court for capital murder and sentenced to death. After the state court denied habeas relief, Gongora petitioned the district court for relief under 28 U.S.C. § 2254, requesting that his conviction and sentence be set aside and a new trial ordered. The district court denied relief. We granted a certificate of appealability (COA) on two issues: (1) whether Gongora is entitled to habeas relief because the prosecutor commented during his closing argument on Gongora’s failure to testify; and (2) whether, in light of the Supreme Court’s holding in Tison v. Arizona,
I.
Texas charged Nelson Gongora with capital murder for the killing of Delfino Sierra during the course of a robbery. Although the indictment charged that Gon-gora shot Sierra, at trial, the State sought to convict Gongora either as the shooter or under the alternate theory that Gongora was a participant in a robbery in the course of which Sierra was murdered by one of Gongora’s co-defendants, Albert Or-osco. The jury heard sharply conflicting evidence regarding Gongora’s role in the offense, including evidence that the shooter may have been someone other than either Gongora or Orosco.
The State’s first witness, Sonia Ramos, told the jury that she was driving on the night of April 7, 2001 when she noticed three Hispanic men walking on the side of the road; the man in the middle (Sierra) had on a cowboy hat. As she turned to look toward a friend’s house, she saw the man on the left shoot Sierra. She then looked back, and saw a van parked in a driveway with its reverse lights on. The man who had been on the right side of Sierra ran “like he was running towards the van,” and the man who shot Sierra “kind of backed up” and “kind of looking to what he had done ... then turned around like to go towards the van.” Ramos could not see the mens’ faces.
Juan Vargas was the State’s next witness. Vargas also had been indicted for
With plea agreement in hand, Vargas testified that on the night of April 7, 2001, he was driving his van accompanied by Gongora, Almanza, Albert Orosco, Steven Gongora (“Steven”), and Luedtke (“Guero”) when they saw Sierra walking down the street and decided to rob him. Gongo-ra, Almanza, and Vargas had all taken heroin earlier in the evening. Vargas told the jury that when he pulled over, Gongora and Orosco jumped out of the van, ran toward Sierra, and demanded his money. When Sierra began to run, Gongora shot him in the head with a .38 caliber handgun that belonged to Vargas. Vargas said he had given the gun to Gongora earlier in the night for protection. Gongora and Orosco then returned to the van. Vargas asked what Gongora did, and Gongora said “I had to do what I had to do” and told everyone to remain silent. The group then returned to Gongora’s house for a cookout.
Vargas and Gongora were leaders in the criminal street gang Puro Li’l Mafia (PLM). Vargas testified that about two and a half hours after Sierra’s shooting, Almanza became a member of PLM by doing a drive-by shooting. Vargas was the driver for that shooting, and Gongora was in the van as well. Vargas testified that the shooting by Almanza was in retaliation for drive-by shootings at Gongora’s house. During the shooting, Gongora stood outside the van armed with a nine-millimeter handgun. The victim of this shooting survived. Vargas admitted that he was high on heroin and intoxicated with beer at the time of both shootings and that this impaired his ability to recall how things happened.
Several months after Vargas revised his account of Sierra’s shooting, police interviewed Dylan Griffith, who met with the group in Vargas’s van after Sierra’s shooting. At trial, Griffith, a defense witness, testified that when Vargas’s van pulled up Vargas was yelling at somebody, apparently Orosco, “because they were having a conflict over something.” When Orosco emerged from the van, he had a .38 in his waistband and was bragging about killing someone, saying, “I shot some wet back.” Griffith asked why Orosco did that and Orosco said they had tried to rob the person. Griffith then asked what they got from the robbery and Orosco said, “Nothing. I done took his soul and his dreams. That’s all I want.”
After Griffith was first interviewed by the police, he got in touch with James Luedtke (“Güero”) and told him the police were trying to locate “Güero.” Luedtke asked what the police wanted and Griffith said they just wanted a statement of what happened. Griffith testified that Luedtke then said, “So all I got to do is write down Albert shot him?” Griffith said, yes, if that was what happened, and Luedtke
At trial, Luedtke was called as a witness for the prosecution. Police officers did not talk to Luedtke until six months before trial. He was scared when he first talked to the investigator, fearing a charge of capital murder. Luedtke told police and later testified that Orosco had said “Let’s get this guy,” and that Gongora and Oros-co then approached the man and Gongora “told him pretty much ‘casa la febio,’” which, according to Luedtke, meant “Give me your money.” Luedtke stated that he was in the back — in the third row — of the van when this happened, but that he was able to hear because the side windows of the van were down. Luedtke testified that he saw Gongora pull a gun, and that when Orosco and Gongora returned to the car, Gongora said “I took his dreams,” apparently bragging. Gongora also said: “Nobody say nothing. Nobody seen nothing. Nobody heard nothing.” Luedtke said that Gongora and Orosco were behind the victim and Gongora was on the right and Orosco on the left. The day of Sierra’s shooting, Luedtke had been doing drugs (heroin and pot) and drinking.
Ramiro Enriquez, a defense witness who had been in prison with Vargas and Al-manza, testified that Almanza told him that Almanza and two others had gotten out of Vargas’s van and approached Sierra, and that Almanza had done the shooting. Almanza told Enriquez that he was standing over the victim and the other two people came up and said something to the effect of “Hey, let’s go, go, go.”
The jury also learned of Gongora’s written statement, which he gave after he was arrested about two-and-a-half months after Sierra’s murder. He wrote:
We passed [Sierra] up and pulled into a little store before [Sierra] passed the railroad tracks. We did a U-turn in the parking lot and went back towards the guy was walking.... All we wanted to do is get a little money and go about our business. Next thing I remember, the side door opened, all of us ... were going to get out. Then there were gunshots. I turned around and saw the guy that was wearing the cowboy hat laying on the ground. I think there was about three fast shots fired. Right after the shots, all of us jumped back in the van and we left.
Gongora stated that he did not know who fired the shots.
Both Orosco and Almanza invoked their Fifth Amendment right against self-incrimination and gave no testimony before the jury.
II.
The trial court instructed the jury that it could convict Gongora if it found the evidence established beyond a reasonable doubt that Gongora shot Sierra during the course of a robbery; or that Gongora entered into a conspiracy with Orosco to rob Sierra, that Orosco shot Sierra during the
In February 2007, Gongora filed the underlying 28 U.S.C. § 2254 petition for a writ of habeas corpus in the district court, claiming that constitutional errors infected both his trial and sentencing proceedings. The district court denied relief,
III.
We review Gongora’s habeas petition under the deferential standard of review provided in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under 28 U.S.C. § 2254(d), when a habeas claim has been adjudicated on the merits in the state courts, federal habeas relief may not be granted unless the federal habeas court finds that the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
A legal principle is “clearly established” only when it is embodied in a holding of the Supreme Court.
IV.
We now turn to Gongora’s Fifth Amendment claim. In Griffin v. California, the Supreme Court held that “the Fifth Amendment ... forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.”
Our evaluation of a Fifth Amendment claim like Gongora’s proceeds in two steps. First, we must decide under 28 U.S.C. § 2254(d)(1) whether fairminded jurists could disagree that a Griffin error occurred.
A.
During closing argument at the guilt-innocence phase of Gongora’s trial, the prosecutor made the following relevant comments (emphasis added):
[PROSECUTOR:] ... I want to talk about the people you heard from.... Who did you expect us to bring to you? There’s six people inside that van. When you look at it, here it is. Who would you expect for us to give to you to establish who the shooter is? Are you going to be satisfied in a case with gang members just looking at one person, even though he’s telling you the exact truth, no matter what? Even if the time that he first told this story, he told the truth — he told the truth about someone he’s scared to death of — this is James Luedtke. He had nothing against him. He had no crime pending. He had no reason to hide the truth. He had no reason to talk to us, but he told us the truth.
You listen to people inside there. Who else would you want to hear from, though? The shooter? We’re not going to talk to that person. We’re not going to make a deal with that person. This person deserves what they get. This person right here—
[Pointing to Gongora’s name on a chart.]
Nelson Gongora, the shooter. That’s the person on trial. That’s the person who deserves to be found guilty of capital murder.
Who should we go ahead and talk to? Who should we go ahead and present to you? Should we talk to the shooter? Should we talk to—
[DEFENSE COUNSEL:] Your Honor, I’m going to object. That’s a comment on the failure to testify.
[PROSECUTOR:] Let me make that clear. I don’t mean talk to the shooter. What I mean is this. Who—
Defense counsel then asked for a ruling on the objection, and the trial court sustained it; defense counsel then asked for a curative instruction:
[DEFENSE COUNSEL:] Could we get an instruction to the jury to disregard that comment?
THE COURT: Jury will so disregard.
[DEFENSE COUNSEL:] Move for mistrial, your honor.
THE COURT: Denied.
[PROSECUTOR:] Let me say this. And I don’t want to give the wrong impression in any sort of way. We’re asking, who do you expect to take the stand? Who do you expect to hear from, right?
[DEFENSE COUNSEL:] Your Honor, I object. That’s a continuation of the previous comments, and I, again, object to commenting on the failure to testify.
[PROSECUTOR:] I don’t want — to make it clear, /all, Defendant has a Fifth Amendment right not to testify. And, of course — and I don’t want to give any wrong impression on that whatsoever. Okay?
What I want to talk about is this. When you talk about the credibility of a person, I wish you — and I made a — I made a big mistake there. I’ll make it very clear. I’m not talking about, do you want to hear from him, because you can’t do that.
[DEFENSE COUNSEL:] Your Honor, again, I’m going to object. It’s on the same continuing subject matter. We object to comment on the failure ... to testify.
THE COURT: As to that particular statement, overruled.
[PROSECUTOR:] Let me back up and tell you this. Let me define it by the roles in the car. That’s what I’m trying to get at. Okay?
The roles in the car are this.... And then you have a person inside the car who is the Defendant’s brother, right? Where is that person? We know the person was there. They could have brought that person, but you never heard from that person. And that’s—
[DEFENSE COUNSEL:] Your Honor, I’m going to object as to what that person is and ask to approach the bench to make a record.
THE COURT: Counsel approach.
(At the bench, on the record:)
[DEFENSE COUNSEL:] I’ll be brief. Judge, our objection is that we issued bench warrants and subpoenas. We asked to have people brought in. They took the Fifth. And when he says “that person,” that diagram is still up there showing Albert [Orosco] and everybody else, and that is an improper comment, and it’s not invited.
[PROSECUTOR:] Judge, I’m trying to correct that right now to make it better in terms of I’m just talking about the roles of the persons involved.
THE COURT: All right. Sustain the objection, Counselor.
[PROSECUTOR # 2:] Excuse me. Let me make one comment for the record also.
Immediately — what [the prosecutor] was talking about there, so it’s clear for the record, was that he mentioned the name “Steven Gongora.” He mentioned the name, and he said, “The Defendant’s brother.” And he said, “Where is that person?”
Steven Gongora is the Defendant’s brother, and his name is also on the chart, and that’s what he was talking about.
THE COURT: All right. You need to clear it up, Counselor.
[PROSECUTOR:] I will.
Defense counsel then asked if his objection was sustained. The trial court sustained the objection and, on request of defense counsel, instructed the jury to disregard the comment. The trial court then overruled appellant’s motion for mistrial. The prosecutor continued:
[THE PROSECUTOR:] Ladies and gentlemen, I want to wrap this up, because that’s what I’m talking about, the confusion in the case.
When I — when you’re talking about the people inside the car, this is it. You have the person inside the van and, from all the testimony, established one person*277 is the shooter. You have a person in the car who got out and could possibly have stopped the killing from ever taking place. You have a person inside the car, by the testimony, you all know was involved in another shooting later that night. You have a person in the car who was related to the Defendant. That is his brother. Right? Then you have a person inside there who is just present. Okay?
Those are the different roles of the persons inside the car. You ask who — you know, you hear from this case, and who should — you know, how to determine the credibility. Who do you want to hear from? Who do you expect to hear from? The person who wasn’t involved at all, that had nothing at all, just present during that deal? Of course, you hear from that person.
When you’re considering and evaluating the credibility of the next person — and that’s who I’m talking about in talking about who you’re going to hear from. I’m talking about, when listening to Juan Vargas, there’s different people who played different roles. When you consider the fact that we actually spoke to him, that’s what I’m talking about. I’m not talking about who would you want to hear from, who would you expect us to call, but I meant to define it in the terms of the roles of those involved in the ease. Okay?
That’s what I wanted you to consider. That’s what I was trying to discuss about the different roles and who you would expect to hear from or expect us, you know, to be looking at. That was it. Just examine their roles.
In its opinion rejecting Gongora’s claims on direct appeal, the CCA admitted that “the prosecutor’s actual comments tended to be inartful and often confusing,” but stated that, “viewed in context, the complained-of comments appear to be the prosecutor’s attempt to comment on appellant’s failure to produce witnesses other than appellant, which is a permissible area of comment.”
The federal district court reviewing Gongora’s § 2254 petition found that the prosecutor’s comments constituted constitutional error because the prosecutor intended to comment on Gongora’s silence and that “the character of the remarks were such that the jury would necessarily construe them as comments on Gongora’s silence.”
B.
1.
At the first step of our analysis, we agree with the district court that Gon-gora has met his burden of showing a constitutional violation. The prosecutor repeatedly referred to Gongora’s failure to testify, and whatever the prosecutor’s subjective intent in making the remarks, “the
2.
At the second step, we assess the prejudicial impact of this constitutional error, applying the standard set forth in Brecht. We make this assessment “in light of the record as a whole.”
a. Extent of the Comments
As the district court observed, “the prosecutor’s remarks on Gongora’s failure
b. Inference of Guilt Stressed to the Jury
The prosecutor’s initial comment clearly and strenuously — regardless of whether the comments were intentional or inartful — emphasized Gongora’s guilt to the jury based on his failure to testify:
You listen to people inside there. Who else would you want to hear from, though? The shooter? We’re not going to talk to that person.... This person right here—
[Pointing to Gongora’s name on a chart.] Nelson Gongora, the shooter. That’s the person on trial. That’s the person who deserves to be found guilty of capital murder. Who should we go ahead and talk to? Who should we go ahead and present to you? Should we talk to the shooter? Should we talk to—
A principal focus of the prosecutor’s closing argument, and central to the State’s case, was the credibility of co-conspirators’ statements that Gongora was the shooter. It appears as though the prosecutor attempted to bolster the credibility of those statements by repeatedly stressing the fact that some co-conspirators took the stand, while persistently questioning Gongora’s claim of not-guilty by reference to his refusal to take the stand. The argument went to the core of the State’s case and aggressively prompted the jury to infer guilt based on Gongora’s failure to testify. Further, the comments came at the very end of the prosecution’s closing arguments.
Examined in context, the prosecution’s subsequent comments on Gongora’s silence might be read, as the State and the dissent contend, as a product of a prosecutor tripping over his words as he inartfully attempted to correct his initial mistake. But their effect, coming as they did after the prosecutor’s initial statement stressing an inference of guilt, was to reinforce the impression of Gongora’s guilt from his failure to testify. It also matters not that the prosecutor’s later comment merely recited that Gongora “has a Fifth Amendment right not to testify.” As we have previously observed, a reference of this sort by the prosecutor “is far different” than a cautionary instruction about a defendant’s Fifth Amendment right not to testify given by the court.
This factor, too, thus weighs against a finding of harmless error. The Fifth
c. Curative and Cautionary Instructions
While the trial court issued general cautionary instructions about the defendant’s constitutional right not to testify at voir dire and again immediately before closing argument,
d. Evidence Supporting Acquittal or Conviction
We also consider the evidence of guilt and innocence presented at trial. The
First, the jury had reason to question Vargas’s and Luedtke’s testimony that Gongora was the shooter. According to Vargas’s initial, written and sworn confession (prior to any plea agreement), Carlos Almanza and James Luedtke approached Sierra and Almanza was the shooter. The statement of Vargas’s wife, given to a detective, was consistent with the facts in that first confession. It was only after Vargas was re-interviewed by Detective Ortega (when he was seeking a plea bargain) that Vargas orally contradicted his initial written statement to claim that Gon-gora and Orosco exited the van to approach Sierra.
Dylan Griffith, with whom Luedtke had lived at the time of the offense, testified that when he met up with Luedtke and the others in Vargas’s van after the shooting, Albert Orosco had a .38 in his waistband and was bragging about having killed a man, saying he took “his dreams” (the words that .Luedtke attributed to Gongo-ra). In addition, Griffith testified that Luedtke had originally asked Griffith whether he should tell police that Orosco did it, and when Griffith said Luedtke should tell the truth about whatever happened, Luedtke said he was not “going down” for it.
Moreover, while Vargas replaced Alman-za and Luedtke with Gongora and Orosco in his second statement to police, he did not indicate in that statement that he had actually seen Gongora shoot Sierra. Indeed, it would have been difficult for Vargas or Luedtke to have actually seen the shooting, given their positions in the van and the van’s location at the time. In addition, the diagram drawn by one of the detectives based on his interview of Vargas shows that Gongora — according to Vargas — would have been walking on the right of Sierra. Luedtke, too, placed Gongora on the right. But Sonia Ramos, the State’s lead-off witness and the only independent eyewitness in the case, stated that the man walking on the left of Sierra shot him; her testimony was consistent with forensic evidence that showed a bullet had hit the back, left side of Sierra’s head. Vargas’s second statement to police had put Orosco on the left. The State offered no explanation of this significant difficulty, which was created by its own witnesses on direct examination.
Second, even taking into account the alternative theory offered to the jury— that Orosco and Gongora entered into a conspiracy to rob Sierra and that Orosco shot Sierra in furtherance of that conspiracy — the evidence against Gongora was far from overwhelming, for at least two reasons. First, the alternative theory not only required the jury to find that Gongora and Orosco entered into a conspiracy to rob Sierra and that Orosco shot Sierra in furtherance of the conspiracy, but also that the shooting “should have been anticipated” by Gongora. Yet the State presented no direct evidence that Gongora should have anticipated a shooting of Sierra by Orosco and made no effort to argue that point in its closing arguments.
Finally, the notes sent out by the jury during deliberations suggest that the prosecutor’s comments reflected a focus on which of the PLM members in the van had testified and which had not. One note requested Vargas’s first statement to the detectives and another asked about Vargas’s response to a question from defense counsel about which people were outside the van,
In sum, the Fifth Amendment violation in this case was not “an isolated comment in a sea of evidence.”
V.
Because Gongora was denied a right to a fair trial by the prosecutor’s comments in violation of his Fifth Amendment right not to testify, we REVERSE the judgment of the district court, GRANT Gongora’s petition for habeas relief, and vacate his conviction. Gongora will be released from custody unless within six months of the mandate of this court he is again brought to trial or the case is otherwise terminated by plea or other disposition under state law.
. 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
. Gongora v. Quarterman, No. 07-70031, 2008 WL 4656992, at *1 (5th Cir. Oct. 22, 2008) (Gongora IV).
. In his previous sworn written statement, Enriquez said was not sure how many people, according to Almanza, got out of the van and crossed the street toward Sierra. However, on cross-examination at trial, the prosecutor elicited that Enriquez had told the prosecutor at some point that it was Carlos and two others. Although the prosecutor phrased a series of questions that made reference to a group of three as about what Enriquez had previously told him Carlos said, he then followed up with a question: "And this is what you swear Carlos told you?" To which Enri-quez responded, “Yes.” On re-direct, the defense elicited that Enriquez actually still was not sure about the number of people Carlos had indicated approached Sierra.
. Gongora v. State, No. AP-74,636, 2006 WL 234987 (Tex.Crim.App.2006), cert. denied, 549 U.S. 860, 127 S.Ct. 142, 166 L.Ed.2d 104 (2006) (Gongora I).
. See Ex parte Gongora, No. WR-60,115-02, 2006 WL 3308713 (Tex.Crim.App. Nov. 15, 2006) (Gongora II).
. Gongora v. Quarterman, 498 F.Supp.2d 919, 931 (N.D.Tex.2007) (Gongora III).
. 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
. 28 U.S.C. § 2254(d)(1), (2).
. Thaler v. Haynes, 559 U.S. 43, 130 S.Ct. 1171, 1173, 175 L.Ed.2d 1003 (2010).
. Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005) (citing Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). In contrast, a state court decision is "contrary” to clearly established Court precedent if “it applies a rule that contradicts the governing law set forth in [the Court’s] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of th[e] Court but reaches a different result.” Id.
. Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495).
. Id. (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495).
. Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).
. Nelson v. Quarterman, 472 F.3d 287, 293 (5th Cir.2006) (en banc).
. 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
. United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988).
. Id. at 34, 108 S.Ct. 864.
. Chapman v. California, 386 U.S. 18, 23-25, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Id. at 24, 87 S.Ct. 824; Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007).
. See Richter, 131 S.Ct. at 786.
. See Fry, 551 U.S. at 120, 127 S.Ct. 2321.
. 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
. Id. at 631, 113 S.Ct. 1710. In this circuit, the assessment of harmless error under Brecht is a mixed question of fact and law, and we thus review the district court's determination de novo. See, e.g., Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir.2006).
. Fry, 551 U.S. at 121-22, 127 S.Ct 2321. The Supreme Court has explained: "[I]t is implausible that, without saying so, AEDPA replaced the Brecht standard of 'actual prejudice’ ... with the more liberal AED'PA/Chap-man standard which requires only that the state court’s harmless-beyond-a-reasonable-doubt determination be unreasonable.” Id. at 119-20, 127 S.Ct. 2321 (citation omitted) (internal quotation marks omitted).
. Gongora I, 2006 WL 234987, at *10.
. Id.
. Gongora III, 498 F.Supp.2d at 926.
. Id. at 927.
. Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir.1999) (citation omitted).
. See 28 U.S.C. § 2254(d)(1).
. Brecht, 507 U.S. at 638, 113 S.Ct. 1710; see also United States v. Pierre, 958 F.2d 1304, 1312 (5th Cir.1992) (en banc) ("To determine the potential prejudicial effect of the statements, we must consider the context in which the prosecutor made them.").
. O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). The Court has "deliberately phrasefd] the issue in terms of a judge’s grave doubt, instead of in terms of 'burden of proof.' " Id.
. Anderson v. Nelson, 390 U.S. 523, 523-24, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968); see also United States v. Johnston, 111 F.3d 380, 398 (5th Cir.1997) (considering "the magnitude of the prejudicial effect of the remark" and "the strength of the evidence of the defendant’s guilt”).
. See Johnston, 111 F.3d at 398 (listing "the efficacy of any cautionary instruction” as a factor to consider in assessing the harmlessness of a prosecutor’s improper comments); see also Greer v. Miller, 483 U.S. 756, 767 n. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (finding "no reason to believe that the jury in [the] case was incapable of obeying ... curative instructions” given after the introduction of inadmissible evidence).
. Where, as here, the state appellate court made no finding under Chapman, the Supreme Court has suggested that it "makes no sense to require formal application of both tests (NEDPA/Chapman and Brecht) when the latter obviously subsumes the former.” Fry, 551 U.S. at 120, 127 S.Ct. 2321. We note, though, that as our Brecht analysis implies, the CCA could not have reasonably deter
.Gongora III, 498 F.Supp.2d at 926.
. Johnston, 127 F.3d at 398.
. Id.
. United States v. Griffith, 118 F.3d 318, 325 (5th Cir.1997) (internal quotation marks omitted) (finding that a Gnffin violation did not affect the defendant's substantial rights where “it was an isolated comment, which did not 'strike at the jugular' of the defense, and which the jury was immediately instructed to disregard” and the "spontaneous remark [was] intended to call attention to [the defendant's] disruptive behavior during [the prosecutor’s] argument, and not to imply that he was harboring guilty secrets”).
. The court's instruction prior to closing argument read as follows:
In a criminal case the law permits the Defendant to testify in his own behalf but he is not compelled to do so, and the same law provides that the fact that a defendant does not testify shall not be considered as a circumstance against him. You will, therefore, not consider the fact that the Defendant did not testify as a circumstance against him; and you will not during your deliberations allude to, comment on, or in any manner refer to the fact that the Defendant has not testified.
. See Zafiro v. United States, 506 U.S. 534, 540-41, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993).
. See, e.g., Johnston, 127 F.3d at 398.
. Richardson v. Marsh, 481 U.S. 200, 207, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (quoting Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)) (internal quotation marks omitted); see also Donnelly v. DeChristoforo, 416 U.S. 637, 644, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (acknowledging that "some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect”).
. The dissent insists that "the evidence is overwhelming that, at the veiy last, Gongora was guilty as a party to capital murder,” pointing to Gongora’s written statement, in which Gongora admitted that he and others exited the van to "get a little money [from
. Specifically, Jury Note # 3 stated: "We need the original statement of Juan Vargas of April 27th and his court testimony.” The trial court responded that Vargas's original statement to police was not evidence. Jury Note # 5 stated: "On Juan Vargas Statement on Mon March 24th I would like to know when the defense ask[ed] ‘who was outside the van' he mention 2 people who were outside the van, what were the names he said.” The court responded: "If you wish to receive the testimony, it will be necessary for you to certify that you are in dispute as to a specific statement pf the witness, and you should request that part of the witness' statement on the specific point in dispute, and only on that point which is in dispute.” The jury then appears to have revised the original note, crossing out "mention” and replacing it with "stated,” crossing out "who” (in the phrase "who were outside the van”), crossing out "said” and replacing it with "stated,” and adding: "Three jurors could not hear the response of Juan Vargas.” The court then responded: "The specific question you requested was not asked. Please specify whether you are asking about a specific question or a general topic on that issue. If you wish to receive the testimony, it will be necessary for you to certify that you are in dispute as to a specific statement of the witness, and you should request that part of the witness' statement on the specific point in dispute, and only on that point which is in dispute.” The jury did not resubmit the request. The only other jury note requesting evidence or testimony was Jury Note # 1. That note requested “all evidentiary exhibits, except the bullets,” "photos of any who testified that were in the van,” and "the easel with all exhibits.”
. Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir.2003) (citation omitted) (internal quotation marks omitted) (finding that a comment by the prosecutor was harmless where two non-interested witnesses identified the defendant as the attacker and the defendant had admitted to an acquaintance that he had "killed a D.A.”); see also Nethery v. Collins, 993 F.2d 1154, 1159 (5th Cir.1993) (finding that a prosecutor’s improper comment did not have a substantial and injurious effect in light of the "overwhelming evidence of guilt").
. Fry, 551 U.S. at 121 n. 3, 127 S.Ct. 2321 (quoting O’Neal, 513 U.S. at 435, 115 S.Ct. 992).
. O’Neal, 513 U.S. at 437, 115 S.Ct. 992.
Dissenting Opinion
dissenting:
The majority opinion seriously misapprehends what constitutes actual harm, and it requires the State to retry Gongora or release him even though the evidence is overwhelming that, at the very least, Gongora was guilty as a party to capital murder. The majority opinion holds that both the Texas Court of Criminal Appeals (TCCA) and the federal district court were unreasonable in denying relief to Gongora. I respectfully dissent. I cannot agree with the majority opinion’s conclusion that “the extraordinarily extensive comments [by the prosecutor] on Gongora’s failure to testify resulted in actual prejudice.”
The prosecutor’s problematic statements did not have a “substantial and injurious effect or influence in determining the jury’s verdict”
With regard to the number and extent of the prosecutor’s improper comments, considered in context, the prosecutor commented three times, at most, on Gongora’s failure to testify, and these comments were themselves confusing. They were made in conjunction with the prosecutor’s arguments about the credibility of two occupants of the van during the shooting who testified at Gongora’s trial and on the failure of Gongora to call as a witness his brother Stephen Gongora, who was also in the van during the shooting.
An entirely separate question is whether Gongora’s conviction can be upheld since the jury issues allowed the jury to find him guilty of capital murder, as an alternative ground, under Texas’s “law of parties,” which permits conviction of capital murder on a finding that the defendant anticipated a human life would be taken. The majority opinion does not reach this issue. Though the jury issues may have been infirm under the Eighth Amendment, United States Supreme Court precedent that has not been expressly overruled permits Texas courts to make the finding that Gongora had the requisite mental state to satisfy the Eighth Amendment’s requirements. The TCCA made that finding and upheld Gongora’s conviction on direct appeal.
I would affirm the district court’s judgment denying habeas relief.
I
It is apparent that this has been a difficult ease for us to resolve. The fact that we ordered oral argument solely on whether a certificate of appealability (COA) was warranted is evidence of the uncertainty we had as to the merits of the issues presented. We nevertheless concluded that a COA should issue.
The first of the two issues pertains to statements made by one of the prosecutors, Granger, during closing arguments. To put these statements in context, it is helpful to review the closing arguments in their entirety. Another prosecutor, Rousseau, began the State’s closing argument. The first point that Rousseau made to the jury was that Gongora could be found guilty even if he was not the “person who pulled the trigger” and that “[t]he evidence in this case is undisputed that the man is guilty as a party. That is without a doubt.” With regard to Texas’s law of parties, Rousseau told the jury that because of Texas’s law of parties, “the answer, is he guilty or not guilty, is an easy question. Yes, he’s guilty.” The prosecutor then focused on an alternate ground that could support a verdict of a guilt, which was a finding that Gongora was “the one who pulled the trigger.” Rousseau said that he would spend most of his time on this issue and proceeded to discuss the evidence that indicated that Gongora shot the victim and why evidence that Albert Orosco was the shooter should be discounted.
Granger then argued for the State. His first point was a reminder to the jury to “[r]emember the law of parties. The law of parties is clear.” He discussed the substance of that law, contending that Gongo-ra was guilty of capital murder under it and again asserting that “[t]he law’s clear. The law’s very much on our side in this case.” Granger asked the jury to consider the facts, pointing to Gongora’s 'written confession to establish conspiracy to commit robbery.
Granger then turned to the alternate theory of guilt and examined at some length the varying evidence as to who actually shot the victim. One point that Granger emphasized to the jury was that every witness, including Sonia Ramos, a disinterested person who was driving past as the murder occurred, testified that two men got out of the van to accost the victim. The only contrary evidence was Gongora’s written confession, which said that “we all” got out of the van. At a minimum, counsel asserted, the credible evidence established that Gongora was one of those two men. Granger then argued that the consistency of the accounts of what happened “establishes the credibility” of the State’s witnesses.
The evidence reflects that there were six people inside the van just before the victim was killed. They were:
Juan Vargas, the driver, who testified
James Luedtke, who testified
Nelson Gongora, the defendant, who asserted the Fifth Amendment
Carlos Almanza, who asserted the Fifth Amendment
Albert Orosco, who asserted the Fifth Amendment
Steven Gongora, the defendant’s brother, who was not called as a witness
The prosecutor who presented the final closing argument, Granger, talked to the jury about the two men inside the van who testified, Vargas and Luedtke, and another who was inside the van, Stephen Gongora, who did not testify and who did not assert his Fifth Amendment rights. The prosecutor said, “When [those who had exited to rob the victim] got back inside the van, then consider what was said there.” It was then that the statements at issue commenced. Granger told the following to the jury:
Before you get there, I want to talk about the people you heard from. We’re talking about Juan [Vargas] and James [Luedtke] through this entire deal. I used his first name, because, in this*286 case, we have little brothers involved, you know, Steven Gongora, you know, Pablo Vargas. I’m using first names to keep everybody clear.
Who did you expect us to bring' to you? There’s six people inside that van. When you look at it, here it is. Who would you expect for us to give to you to establish who the shooter is? Are you going to be satisfied in a case with gang members just looking at one person, even though he’s telling you the exact truth, no matter what? Even if the time that he first told this story, he told the truth — he told the truth about someone he’s scared to death of [Gongora] — this is James Luedtke. He had nothing against him. He had no crime pending. He had no reason to hide the truth. He had no reason to talk to us, but he told us the truth.
You listen to people inside there. Who else would you want to hear from, though? The shooter? We’re not going to talk to that person. We’re not going to make a deal with that person. This person deserves what they get. This person right here.... Nelson Gongora, the shooter. That’s the person on trial. That’s the person who deserves to be found guilty of capital murder.
Who should we go ahead and talk to? Who should we go ahead and present to you? Should we talk to the shooter? Should we talk to' — •
At this point, Gongora’s attorney objected, “That’s a comment on the failure to testify,” and he requested a jury instruction to disregard the comment. He also moved for a mistrial. The trial judge sustained the objection, issued an instruction to disregard, and overruled Gongora’s motion for a mistrial.
The prosecutor continued, “Let me say this. And I don’t want to give the wrong impression in any sort of way. We’re asking, who do you expect to take the stand? Who do you expect to hear from, right?” Gongora’s attorney again objected, and the trial judge instructed the jury to disregard the comment. Gongora’s counsel moved for a mistrial, which was denied.
The prosecutor then attempted to address his error:
I don’t want — to make it clear, y’all, Defendant has a Fifth Amendment right not to testify. And, of course — and I don’t want to give any wrong impression on that whatsoever. Okay?
What I want to talk about is this. When you talk about the credibility of a person, I wish you — and I made a — I made a big mistake there. I’ll make it very clear. I’m not talking about, do you want to hear from him, because you can’t do that.
Gongora’s counsel again objected, but that objection was overruled “as to that particular statement.” The prosecutor continued,
Let me back up and tell you this. Let me define it by the roles in the car. That’s what I’m trying to get at. Okay? The roles in the car are this. You have a person inside the car who is the shooter. You have a person inside the car who got out with the shooter. You have a person inside the car who was guilty— or, actually, may have participated in another shooting later that night. You have a person inside the car who is just sitting there who is present. And then you have a person inside the car who is the Defendant’s brother, right? Where is that person? We know the person was there. They could have brought that person, but you never heard from that person. And that’s—
Gongora’s counsel interjected an objection, and the judge called counsel to the bench. Gongora’s attorney asserted that bench
One of the State’s other prosecutors, Rousseau, then commented for the record, saying,
Immediately — what J.D. [Granger] was talking about there, so it’s clear for the record, was that he mentioned the name “Steven Gongora.” He mentioned the name, and he said, “The Defendant’s brother.” And he said, “Where is that person?”
Steven Gongora is the Defendant’s brother, and his name is also on the chart, and that’s what he was talking about.
The trial judge responded, “All right. You need to clear it up, Counselor.” At the request of Gongora’s counsel, the judge then reiterated that the objection was sustained, instructed the jury to disregard, and denied Gongora’s motion for a mistrial. Granger then continued, without any further objection by Gongora’s counsel, as follows:
Ladies and gentlemen, I want to wrap this up, because that’s what I’m talking about, the confusion in the case.
When I — when you’re talking about the people inside the car, this is it. You have the person inside the van and, from all the testimony, established one person is the shooter. You have a person in the car who got out and could possibly have stopped the killing from ever taking place. You have a person inside the car, by the testimony, you all know was involved in another shooting later that night. You have a person in the car who was related to the Defendant. That is his brother. Right? Then you have a person inside there who is just present. Okay?....
Those are the different roles of the persons inside the car. You ask who — you know, you hear from this case, and who should — you know, how to determine the credibility. Who do you want to hear from? Who do you expect to hear from? The person who wasn’t involved at all, that had nothing at all, just present during that deal? Of course, you hear from that person.
When you’re considering and evaluating the credibility of the next person — and that’s who I’m talking about in talking about who you’re going to hear from. I’m talking about, when listening to Juan Vargas, there’s different people who played different roles. When you consider the fact that we actually spoke to him, that’s what I’m talking about. I’m not talking about who would you want to hear from, who would you expect us to call, but I meant to define it in the terms of the roles of those involved in the case. Okay?
The roles that are defined in this case are abundantly clear. When you look at all the roles of those persons involved, the person in this case who is, you know, least culpable, besides the person who didn’t do anything, is the driver, right? That’s what I wanted you to consider. That’s what I was trying to discuss about the different roles and who you would expect to hear from or expect us, you know, to be looking at. That was it. Just examine their roles.
I agree that the statements italicized in the above quotations were an impermissible comment on Gongora’s assertion of his Fifth Amendment rights. However, other of the statements that the panel majority’s opinion concludes “strenuously ... empha
Gongora argued in his direct appeal to the TCCA that the prosecutor’s comments were unconstitutional, but the state court disagreed. The Texas court reasoned, “When viewed in context, the eomplained-of comments appear to be the prosecutor’s attempt to comment on [Gongora’s] failure to produce witnesses other than [Gongora], which is a permissible area of comment.”
On federal habeas review, the district court “concluded that the prosecutor’s remarks concerning Gongora’s failure to testify amount[ed] to constitutional error.”
II
Gongora may obtain federal habeas relief on his claim of improper prosecutorial comment only if that constitutional error was not harmless. “[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht [v. Abrahamson ], whether or not the state appellate court recognized the error and reviewed it for harmlessness under ... Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ].”
Gongora has not shown that the constitutional error had substantial and injurious effect or influence in determining the jury’s verdict. The first hurdle that Gon-gora must overcome is the effect of the curative and cautionary jury instructions at Gongora’s trial. I agree with the district court that these instructions mitigated the prejudicial effect of the prosecutor’s comments. The trial judge, in addition to issuing curative instructions during the prosecutor’s closing argument, admonished the jurors several times that they could not and must not consider Gongora’s choice not to testify as evidence of guilt. The judge issued such cautionary instructions at voir dire and again immediately before closing arguments, when it instructed the jury:
In a criminal case the law permits the Defendant to testify in his own behalf but he is not compelled to do so, and the same law provides that the fact that a defendant does not testify shall not be considered as a circumstance against him. You will, therefore, not consider the fact that the Defendant did not testify as a circumstance against him; and you will not during your deliberations allude to, comment on, or in any manner refer to the fact that the Defendant has not testified.
Such jury instructions are “powerful tool[s] ... to protect the [Fifth Amendment] privilege” and give the trial judge a “unique power ... to reduce” speculation “about why a defendant stands mute in the face of a criminal accusation.”
Gongora confessed in writing that he intended to rob the victim. He confessed
Even were the question before the jury limited to whether Gongora was the shooter, there is no actual prejudice demonstrated on the record before us. For the reasons discussed above, the trial judge’s instructions were adequate.
The evidence that Gongora was not the shooter is not as strong as the majority opinion suggests. The majority opinion makes much of the testimony of Sonia Ramos, a disinterested witness who was driving past as the shooting occurred. She did now know any of the parties involved. She could say only on which side of the victim the shooter stood. The majority opinion says that Ramos’s testimony conflicts with Vargas’s placement of Gon-gora and Orosco. However, it is not at all clear from the record what left or right meant to either Vargas or Ramos in the context of Ramos driving past the scene of the murder at approximately thirty miles an hour and looking back over her shoulder from a vantage point that was different from Vargas’s. More importantly, the record about what Vargas said as to the positioning of Gongora and Orosco comes from a diagram drawn by a detective based on his interview with Vargas. Notably, the original diagram, drawn contemporaneously with the interview, does not show Gongora and Orosco in distinct positions. Instead, the diagram contains arrows pointing from “(Nelson/ Albert)” to two Is marking their position. The detective created the diagram to aid his “own personal understanding” based on his interpretation of Vargas’s recollection of the event. Vargas neither created the diagram nor testified to its accuracy at trial.
In sum, Gongora has not shown that the prosecutor’s violations of the Fifth Amendment substantially influenced the jury’s verdict that he was guilty of capital murder.
Ill
Gongora additionally argues that his sentence of capital punishment violates the Eighth Amendment, as applied to the states pursuant to the Fourteenth Amendment, based upon the Supreme Court’s clearly established holdings in Apprendi v. New Jersey,
The majority opinion did not reach this issue because of its disposition of the Fifth Amendment question. I nevertheless would deny habeas relief in this case because unless and until the Supreme Court overrules its existing precedent, state courts, including state appellate courts, are permitted to make the finding that the defendant had the mental state required to satisfy the Eighth Amendment’s requirements.
Under Texas law, it is a capital crime to commit murder in the course of attempted robbery.
Pursuant to Texas’s capital-sentencing scheme, after the jury found Gongora guilty of capital murder, it was required to answer three special issues to determine whether he was eligible for the death penalty.
The Supreme Court’s decisions in En-mund and Tison both address the degree of responsibility the Eighth Amendment requires for the imposition of capital punishment after felony-murder convictions. In Enmund, the Supreme Court held that the death penalty cannot be imposed upon a defendant who, though involved in a felony, did not kill, attempt to kill, intend that a killing take place, or anticipate that lethal force would be used.
The Supreme Court has also held that the findings mandated by Enmund and Tison need not be made during trial proceedings.
When a federal habeas court reviews a claim that the death penalty has been imposed without the findings mandated by Enmund and Tison,
the court must examine the entire course of the state-court proceedings*293 against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant’s culpability has been made. If it has, the finding must be presumed correct ..., and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the court is obliged to hold that the Eighth Amendment as interpreted in Enmund is not offended by the death sentence.35
In this case, the TCCA made the requisite finding on direct appeal, stating, “The testimony in the instant case showed that [Gongora] himself exited the van and shot the victim. Thus, he was a major participant in an offense who possessed ‘reckless indifference’ towards the murder.”
Pursuant to Cabana, the TCCA was permitted to make the requisite Tison finding that Gongora was a major participant in the robbery who possessed reckless indifference towards the murder.
Gongora contends, however, that the Supreme Court’s decisions in Ring v. Arizona
The Enmund, Tison, and Cabana line of cases makes clear that the Eighth Amendment is “a substantive limitation on sentencing, and like other such limits it need not be enforced by the jury.”
Enmund “does not affect the state’s definition of any substantive offense, even a capital offense.” Enmund holds only that the principles of proportionality embodied in the Eighth Amendment bar imposition of the death penalty upon a class of persons who may nonetheless be guilty of the crime of capital murder as defined by state law: that is, the class of murderers who did not themselves kill, attempt to kill, or intend to kill.45 * * *
We are unable to understand Justice BLACKMUN’s statement that we have failed to grasp “the distinction ... between defining an offense and being entitled to execute a defendant.” As stated in the text, we recognize that there is a class of persons whom the State may define as having committed capital murder but whom the State may not permissibly execute. The point we are making, however, is that while the Eighth Amendment prohibits the execution of such defendants, it does not supply a new element of the crime of capital murder that must be found by the jury; hence, such cases as Cole v. Arkansas [333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948) ], which hold that the inadequacy of a jury’s findings on the issue of guilt or innocence may not be corrected by an appellate court, are inapposite.46
[T]he decision whether a sentence is so disproportionate as to violate the Eighth Amendment in any particular case, like other questions bearing on whether a criminal defendant’s constitutional rights have been violated, has long been viewed as one that a trial judge or an appellate court is fully competent to make.47
Enmund ... imposes a categorical rule: a person who has not in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used may not be sentenced to death. Nonetheless, the rule remains a substantive limitation on sentencing, and like other such limits it need not be enforced by the jury.
Indeed, Enmund does not impose any particular form of procedure upon the States. The Eighth Amendment is satisfied so long as the death penalty is not imposed upon a person ineligible under Enmund for such punishment. If a person sentenced to death in fact killed, attempted to kill, or intended to kill, the Eighth Amendment itself is not violated by his or her execution regardless of who makes the determination of the requisite culpability; by the same token, if a person sentenced to death lacks the requisite culpability, the Eighth Amendment violation can be adequately remedied by any court that has the power to find the facts and vacate the sentence. At what precise point in its criminal process a State chooses to make the*295 Enmund determination is of little concern from the standpoint of the Constitution. The State has considerable freedom to structure its capital sentencing system as it sees fit, for “[a]s the Court has several times made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme.”48
If a state were to require in a statute the minimum requirements set forth in Enmund and Tison as an element of an offense or as a sentencing factor that could increase the severity of a sentence, then the Sixth Amendment, through the Fourteenth Amendment, would require a jury to find the requisite facts. That is the teaching of the decisions subsequent to Cabana on which Gongora relies.
The actual holdings in Apprendi and Ring were that when a state statute permits punishment to be increased based on the existence of particular facts, a jury must make the factual findings. Although the rationale of Apprendi and Ring calls into question the reasoning in Enmund, Tison, and Cabana, those cases have not been overruled. Nor are the actual holdings in Apprendi and Ring in conflict with the holdings in Enmund, Tison, and Cabana.
In Apprendi a state statute set the maximum penalty for possession of a firearm for unlawful purposes at ten years.
The Supreme Court’s decision in Ring extended this principle to the capital-punishment context and overruled Walton v. Arizona
Neither Ring nor Apprendi — nor any other decision of the Supreme Court — has explicitly overruled Cabana’s holding that a trial judge or appellate court may make the Eighth Amendment findings mandated by Enmund and Tison. The Supreme Court has repeatedly “reaffirm[ed] that ‘[i]f a precedent of [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme Court] the prerogative of overruling its own decisions.’- ”
In conclusion, I would deny Gongora’s application for a writ of habeas corpus because neither of his claims satisfy the requirements for a grant of the writ.
. Ante at 270.
. Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (internal quotation marks omitted).
. Gongora v. Quartennan, No. 07-70031, 2008 WL 4656992, at *1 (5th Cir. Oct. 22, 2008).
. Ante at 279.
. Gongora v. State, No. AP-74,636, 2006 WL 234987, at *10 (Tex.Crim.App. Feb. 1, 2006) (en banc).
. Id.
. Id.
. Id.
. Gongora v. Quarterman, 498 F.Supp.2d 919, 927 (N.D.Tex.2007).
. Id. (quoting Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)).
. Id.
. Id.
. Fry, 551 U.S. at 121-22, 127 S.Ct. 2321 (citations omitted).
. Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
. Carter v. Kentucky, 450 U.S. 288, 303, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981).
. Zafiro v. United States, 506 U.S. 534, 540-41, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); see also Portuondo v. Agard, 529 U.S. 61, 67, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000) ("It is reasonable enough to expect a jury to comply with [a curative] instruction since, as we observed in Griffin, the inference of guilt from silence is not always 'natural or irresistible.’ ” (quoting Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965))).
. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
. 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
. 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
. 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), overruled in part by Pope v. Illi
. The jury instructions in this case stated, in pertinent part, as follows:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, then all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Robbery is a felony.
. The issues submitted to the jury at the sentencing phase included "[w]hether the Defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.”
. See Hopkins v. Reeves, 524 U.S. 88, 100, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998); Cabana, 474 U.S. at 392, 106 S.Ct. 689.
. The Texas Penal Code provides as follows:
(a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and: ...
(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnaping, burglary, robbery....
Tex. Penal Code Ann. § 19.03(a)(2).
. Tex. Penal Code Ann. § 7.02(b).
. Article 37.071 of the Texas Code of Criminal Procedure provides that the issues submitted to the jury shall include the following:
(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
*292 (2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken....
[And if the answers to these questions are in the affirmative:]
[(3)] Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's 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 without parole rather than a death sentence be imposed.
Tex.Code Crim. Proc. Ann. art. 37.071(b), (e)(1).
.See Cabana, 474 U.S. at 386, 106 S.Ct. 689 (“Enmund ... imposes a categorical rule: a person who has not in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used may not be sentenced to death.”); see also Enmund v. Florida, 458 U.S. 782, 798, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
. Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
. See Hopkins v. Reeves, 524 U.S. 88, 100, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998) (“Ti-son and Enmund do not affect the showing that a State must make at a defendant’s trial for felony murder, so long as their requirement is satisfied at some point thereafter.”).
. Cabana, 474 U.S. at 392, 106 S.Ct. 689.
. Id. (emphasis added).
. See Reeves, 524 U.S. at 100, 118 S.Ct. 1895 (emphasizing that Cabana "held that a State could comply with Enmund's requirement at sentencing or even on appeal”).
. Cabana, 474 U.S. at 387-88, 106 S.Ct. 689 (citation omitted).
. Gongora v. State, No. AP-74,636, 2006 WL 234987, at *12 (Tex.Crim.App. Feb. 1, 2006) (en banc).
. See id. ("Considering the evidence, the fact that the jury was authorized by the charge to convict appellant as a party does not make Article 37.071, section 2(b)(2) unconstitutional as applied to appellant in this case.”).
. See Cabana, 474 U.S. at 387, 106 S.Ct. 689.
. See 28 U.S.C. § 2254(e)(1).
. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
. 530 U.S. 466, 120 S.Cl. 2348, 147 L.Ed.2d 435 (2000).
. Knowles v. Mirzayance, 556 U.S. 11, 122, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (internal quotation marks omitted); see also Wright v. Van Patten, 552 U.S. 120, 125-26, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (per curiam) (rejecting petitioner’s claim under § 2254(d)(1) because "[n]o decision of this Court ... squarely addresses the issue in this case” and "[b]ecause our cases give no clear answer to the question presented”); Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (rejecting petitioner's claim "[gjiven the lack of holdings from this Court” on the rule urged).
. Cabana, 474 U.S. at 386, 106 S.Ct. 689.
. Id. al 385, 106 S.Ct. 689.
. Id. (citations omitted).
. Id. at 385 n. 3, 106 S.Ct. 689.
. Id. at 386, 106 S.Ct. 689.
. Id. at 386-87, 106 S.Ct. 689 (quoting Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984)).
. Apprendi v. New Jersey, 530 U.S. 466, 468, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
. Id. at 468-69, 120 S.Ct. 2348.
. Id. at 490, 120 S.Ct. 2348 (emphasis added).
. 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).
. Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (citing Walton, 497 U.S. 639, 110 S.Ct. 3047).
. Id. at 594, 122 S.Ct. 2428 ("Because Ring was convicted of felony murder, not premeditated murder, the judge recognized that Ring was eligible for the death penalty only if he was Magoch’s actual killer or if he was 'a major participant in the armed robbery that led to the killing and exhibited a reckless disregard or indifference for human life.’ "); id. (explaining that the trial judge "concluded that Ring 'is the one who shot and killed Mr. Magoch’ " and that "[tjhe judge also found that Ring was a major participant in the robbery and that armed robbery 'is unquestionably a crime which carries with it a grave risk of death.' ").
. Id. at 595, 122 S.Ct. 2428 (internal quotation marks omitted).
. Id. at 597, 122 S.Ct. 2428.
. Id. (internal quotation marks omitted).
. Id. (emphasis added).
. See id. at 598-99, 609; id. at 609, 122 S.Ct. 2428 ("[W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.”).
. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (second alteration in original) (quoting Rodriguez de Quijos v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)); see also State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) ("[I]t is this Court's prerogative alone to overrule one of its precedents.”).