Ruben Montoya Cantu challenges his murder conviction and death sentence. His application for a writ of habeas corpus was denied by the district court, but the court granted a certificate of probable cause.I.

A Bexar County, Texas grand jury convicted petitioner for the November 8, 1984 murder of Pedro Gomez during the commission of a robbery, in violation of § 19.03(a)(2) of the Texas Penal Code (Vernon Supp.1984). The murder took place at the house of Eusebio Moreno in San Antonio. The house was under construction, and because Moreno had been experiencing numerous incidents of theft from the building site, his brother, Juan Moreno, and brother-in-law, Pedro Gomez, were sleeping in the house to prevent any further loss. Some time after 10:30 p.m., Gomez and Juan Moreno were awakened by two intruders: a man who was poking Moreno with a rifle, whom he later identified as the petitioner, and an accomplice.1 Cantu and his companion took wristwatches from Moreno and Gomez, as well as Gomez's wallet. Cantu then told Gomez to pull back the mattress on one of the beds, under which a pistol owned by Eusebio Moreno was wrapped in a rag. According to Moreno, as Gomez was handing the bundle to the petitioner, Cantu shot him once in the head. Gomez fell to the ground, and Cantu shot him eight more times. Petitioner next trained his rifle on Juan Moreno, shooting him eight or nine times.

Gomez died from multiple gunshot wounds to the body and head. Juan Moreno survived.

On November 14, two detectives from the San Antonio Police Department visited Juan Moreno at the intensive care unit at Wilford Hall Medical Center. The detectives showed him photographs of possible suspects. Cantu's photograph was not in the photo spread, and Moreno did not identify any of the photos.

On December 16, detectives again visited Juan Moreno at Wilford Hall and showed him a photo array, which this time included a photo of Cantu. Moreno did not identify Cantu and did not look at his photograph. The detectives later testified that Moreno avoided looking at petitioner's picture, adding that it was their opinion that he knew more than he was saying. According to one of the detectives, when asked if he was afraid to identify the assailant, Moreno replied, "Yeah." Both detectives who visited Moreno at Wilford Hall on that day testified that he appeared to be frightened as he looked through the photo spread.2 Detective Garza added that Moreno did recognize some of the other men in the photo lineup, "but he advised me that these people were just from the neighborhood and they were not any of the individuals involved in the shooting of him or Pedro Gomez." Moreno also for the first time offered a general description of his assailants: two Hispanic males, one about 13 or 14 years old, the other about 19 and wearing blue jeans.

Four months later, on March 1, 1985, petitioner was involved in a bar shooting with an off-duty San Antonio police officer, Joe De La Luz. At the time of the De La Luz shooting, Cantu was already a suspect in the murder of Pedro Gomez. Because Cantu was a suspect in both cases, San Antonio police renewed their efforts to obtain a positive identification in the Gomez murder investigation. Accordingly, the day after the De La Luz shooting, an officer was assigned to interview Juan Moreno at his home. The officer, Detective Ballesa, showed Moreno five photographs different from those which he had viewed on December 16, except for the photo of Cantu, which appeared in both arrays. Once again, Moreno did not identify anyone in the photographs. Detective Ballesa then engaged Moreno in a discussion, advising him that he had to identify the assailants if he knew their identity. Moreno then provided the name of Ruben Cantu when viewing his picture but did not identify him as Gomez's murderer.3

The next day, on March 3, 1985, a different officer, Detective Quintanilla, went to the home of Eusebio Moreno for the specific purpose of taking Juan Moreno to the police station to show him the photo spread once more. At the station, Detective Quintanilla showed Juan Moreno the same photo spread containing the picture of petitioner that had been shown to him the day before by Detective Ballesa. This time, Moreno identified Cantu's photo as representing the man who had shot him and Gomez. Quintanilla testified that when he asked Juan Moreno why he had failed to identify Cantu previously, Moreno replied that "he had recognized the photo the day before; he just was afraid, scared."4 At trial, Juan Moreno identified Cantu in court, adding that he had recognized him in the photo line-ups he viewed on December 16, 1984, and March 2, 1985, but did not identify his photo on those occasions because, "I didn't want to get into any problems."5

In addition to Juan Moreno's trial testimony, the state's witnesses included Dr. Suzana Dana, a forensic pathologist and the deputy chief medical examiner of Bexar County. Dr. Dana testified that she performed the autopsy on Pedro Gomez, who had nine gunshot wounds to the body, including a "defensive" wound to the left forearm that was consistent with the victim attempting to shield his face or body with his hands. Gomez was killed by shots from a rifle, Dr. Dana continued, because there was no powder tattooing as would typically have been present had the shots been fired by a weapon with a shorter muzzle, such as a handgun. This and other forensic evidence suggested that the victim was probably shot from one and one-half to two feet away. Dr. Dana also analyzed gunpowder traces on the palms of Gomez's hands, comparing them to the relative absence of gunpowder particles on the backs of his hands. She concluded that these findings were consistent with "a gun being fired at the hands, or with the hands open simply because the levels are higher on the palms than on the backs." In response to questions from defense counsel, Dr. Dana opined that it was unlikely that Gomez had fired a weapon at Cantu because that would have left gunpowder residue on the backs of Gomez's hands; clutching the gun would have shielded his palms from gunpowder.6

Cantu did not testify at the guilt-innocence phase of the trial. Other than recall Juan Moreno and the police officers who conducted the photographic lineups in an attempt to discredit Moreno's identification testimony, the only other witness offered by the defense provided an alibi for Cantu. At the punishment phase of the trial, the prosecution presented five witnesses who testified to Cantu's bad reputation in the community. Officer De La Luz also testified that he was in the Scabaroo Lounge in San Antonio on the night of March 1, 1985, when Cantu shot him several times without provocation. Cantu then offered the testimony of six San Antonio police officers in an attempt to discredit De La Luz's testimony. The defense also recalled De La Luz to the stand and questioned him further about the shooting at the Scabaroo Lounge. At this point, the defense sought to have Cantu testify for the limited purpose of rebutting De La Luz's version of Cantu's assault on him. The trial court sustained the government's objection to this proposal, ruling that "when Ruben Cantu takes the stand, he is subject to the same grounds, the same areas of cross-examination as any other witness." In response to questions from defense counsel, the trial court added:

THE COURT: The ruling is that you may offer any and all evidence that you care to offer through this witness. If you want to limit it to exactly what he said on your direct, that's fine; but when you pass him for cross-examination, he will be subject to cross-examination to the same [sic] as all other witnesses, only exceptions are any and all rules of evidence that apply to any and all witnesses, regarding the admissibility of evidence.

The defense declined to put Cantu on the stand under the conditions set by the court but did perfect a bill of exception at which Cantu testified outside the presence of the jury. Cantu essentially claimed that De La Luz provoked the confrontation which led to the Scabaroo Lounge shooting, adding that he shot De La Luz with a pistol Cantu had purchased outside the bar earlier that evening.

Cantu was convicted of capital murder and sentenced to death on July 30, 1985. He appealed to the Texas Court of Criminal Appeals, which on February 4, 1987 affirmed his conviction and sentence. Cantu v. State, 738 S.W.2d 249 (Tex.Crim.App.1987). That court later denied Cantu's motion for rehearing, and the Supreme Court denied certiorari. Cantu v. Texas, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987). Cantu was slated to be executed on or before sunrise on January 8, 1988. He filed a post-conviction habeas application, which the Texas Court of Criminal Appeals denied. Cantu then filed a federal habeas application and motion for stay of execution, which was granted on January 7, 1988. After an evidentiary hearing, a federal magistrate recommended that habeas corpus relief be denied. The district court later accepted the magistrate's report and denied the writ, prompting this appeal.

In his brief, petitioner raises seven challenges to his conviction and death sentence, framing them as follows:

I. The Texas capital sentencing statutes precluded the jury from giving full effect to Mr. Cantu's mitigating evidence of youth, in violation of the Eighth and Fourteenth Amendments.

II. Petitioner was deprived of his constitutional rights under the Fifth, Eighth and Fourteenth Amendments by the trial court's refusal to instruct the jury on the lesser included offense of voluntary manslaughter.

III. The in-court identification of petitioner deprived him of due process of law under the Fifth and Fourteenth Amendments as the procedures employed by the San Antonio police departments were so impermissibly suggestive as to lead to a very substantial likelihood of irreparable misidentification.

IV. Petitioner was denied effective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments because trial counsel failed to request the services of an expert witness on the issue of eyewitness identification.

V. Petitioner was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel through the punishment phase of his criminal trial.

VI. Petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of counsel on appeal.

VII. Petitioner's constitutionally protected right to present evidence to the jury in mitigation of his sentence of death was impermissibly chilled by the Texas state rule which precludes a defendant, who testifies at the penalty phase of his trial, from challenging the sufficiency of the evidence in support of his guilt or the admissibility of the identification evidence.

We address each argument in turn.

Petitioner first contends that the Texas capital sentencing statute did not provide a vehicle by which the jury could consider and give mitigating effect to his youth.7 Petitioner admits that his trial counsel did "argue the issue of Mr. Cantu's youth ... as a basis for compassion." Indeed references to Cantu's age surfaced repeatedly during the punishment phase of his trial. At one point, for instance, Cantu's counsel told the jury: "I think that when a man is on trial for his life, and even more so when a boy is on trial for his life, that it warrants a substantial investment of time." In support of its request for an affirmative finding on the second special issue, the state argued along the following lines: "He's been referred to as a boy, a kid, a young man," the prosecutor noted at one point. "Well, he was an 18 year old with 18 rounds of ammunition, and he used them all."8

Notwithstanding the numerous references to the petitioner's age, he insists that the jury's consideration of mitigating evidence of his youth was unconstitutionally circumscribed by Art. 37.071(b). Specifically, he maintains that while the second special issue allowed the prosecution to use his youth as a sword against him--by drawing the jury's attention to his potential for future dangerousness--it effectively prevented him from using his youth as a shield against a death sentence. Thus, petitioner's brief continues, "the jury was left with no vehicle through which it might express a 'reasoned moral response' that, because of Mr. Cantu's youth, he should not be condemned to die."9

Cantu grounds his theory that Art. 37.071 failed to permit the jury to consider mitigating evidence of his youth on Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). We have, however, in an en banc decision recently rejected the theory that Penry calls into question the constitutionality of the Texas death penalty statute as applied to the arguably mitigating circumstance of youth. In Graham v. Collins, 950 F.2d 1009, 1017 (5th Cir.1992) (en banc), cert. granted, --- U.S. ----, 112 S. Ct. 2937, 119 L. Ed. 2d 563 (1992), we concluded "that Penry does not invalidate Texas's statutory scheme, ... in instances where no major mitigating thrust of the evidence is substantially beyond the scope of all the special issues." Id. at 1027.10 See also Black v. Collins, 962 F.2d 394 (5th Cir.1992); Holland v. Collins, 962 F.2d 417 (5th Cir.1992); and Romero v. Collins, 961 F.2d 1181 (5th Cir.1992). Graham held: "At the very least, Jurek must stand for the proposition that these mitigating factors--relative youth and evidence reflecting good character traits such as steady employment and helping others--are adequately covered by the second special issue." Id. at 1029.11 In Cantu's case, we agree with Graham that

[t]o the extent that [Cantu's] criminal conduct was a product of his youth, he was for that reason not only less culpable but, to the same extent, also less likely to be dangerous when no longer young. To the extent [Cantu's] criminal conduct was not attributable to his youth, his youth neither reduced his culpability nor his future dangerousness. Nothing in the present record suggests that the jury here might have viewed the matter in any other light.

Id. at 1031 (footnote omitted). Cantu's youth could adequately be taken into account as a mitigating factor in answering the special issues, particularly the second. Graham, 950 F.2d at 1033.12

Petitioner next contends that the state trial court erred when it refused to include in its jury charge petitioner's requested instruction on the lesser included offense of voluntary manslaughter. At the conclusion of the evidence, his counsel requested that the jury be so instructed, but the trial court sustained the state's objection. Subsequently, during the charge conference at the penalty phase of the trial, petitioner's counsel asked the court to submit Special Issue No. 3 as provided by Art. 37.071(b)(3). The prosecution did not object to this requested submission, despite its earlier opposition to a voluntary manslaughter instruction during the guilt/innocence phase of the trial. Citing this asserted inconsistency, petitioner argues that the third special issue would not have been submitted at the penalty phase unless the evidence in the record suggested that the killing occurred in response to provocation by the deceased.13 The evidence presented at his trial, Cantu contends, could have supported a verdict that he was guilty only of voluntary manslaughter, and the trial court's refusal to give such instruction therefore violated his constitutional rights.

Under the standard first announced in Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), "the jury [in a capital case] must be permitted to consider a verdict of guilt of a noncapital offense 'in every case' in which 'the evidence would have supported such a verdict.' " Hopper v. Evans, 456 U.S. 605, 610, 102 S. Ct. 2049, 2052, 72 L. Ed. 2d 367 (1982) (citing Beck, 447 U.S. at 627, 100 S.Ct. at 2384). Under Beck, a defendant is entitled to instruction on a lesser included offense only "if the evidence would permit a jury rationally to find him guilty of the lesser offense and to acquit him of the greater." Id. 100 S.Ct. at 2388 (quoting Keeble v. United States, 412 U.S. 205, 208, 93 S. Ct. 1993, 1995, 36 L. Ed. 2d 844 (1973)). See also Lincecum v. Collins, 958 F.2d 1271 (5th Cir.1992); and Cordova v. Lynaugh, 838 F.2d 764 (5th Cir.), cert. denied, 486 U.S. 1061, 108 S. Ct. 2832, 100 L. Ed. 2d 932 (1988).14

The voluntary manslaughter statute, Tex.Penal Code Ann. § 19.04, provides in relevant part:

§ 19.04 Voluntary Manslaughter

(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.

Sudden passion is defined as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Tex.Penal Code Ann. § 19.04(b). Adequate cause is defined as "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex.Penal Code Ann. § 19.04(c).

We agree with the district court and with the state courts that no rational jury could conclude that Cantu shot Gomez under the influence of sudden passion, thereby warranting an instruction of voluntary manslaughter. Juan Moreno, the only witness who testified at trial as to what happened at the time of the shooting, stated that Pedro Gomez did not fire the .38 caliber handgun he was attempting to hand over to Cantu. Petitioner's attempt to characterize police testimony as supporting his claim that some of the bullet holes in the wall were caused by a .38 caliber gun, instead of the .22 caliber murder weapon, does not accurately reflect what the investigating officer said. In fact, the officer stated that he was unsure whether the bullet holes, or slugs found at the scene, were .38 caliber. Nor has Cantu offered a plausible explanation linking this physical evidence to his claim that he acted in self-defense. His unsupported conjecture is hardly probative on the issue of whether he acted under the immediate influence of sudden passion. See, e.g., Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App.1983).

Yet even assuming for the sake of argument that Cantu acted upon sudden passion within the meaning of § 19.04(b), that passion did not arise from an adequate cause as required by § 19.04(c). See Hobson, id. It is undisputed that Cantu initiated the criminal episode in question when he and an accomplice entered Eusebio Moreno's house, awakened Gomez and Juan Moreno at gunpoint, robbed them, and repeatedly shot them with a rifle at point-blank range, killing one man and seriously wounding the other. We have recently noted that "Texas law plainly does not consider adequate cause to arise under these circumstances." Lincecum, 958 F.2d at 1277.15 See also Penry v. State, 691 S.W.2d 636 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 834, 88 L. Ed. 2d 805 (1986); and Goff v. State, 681 S.W.2d 619 (Tex.App.--Houston [14th Dist.] 1983), aff'd, 720 S.W.2d 94 (Tex.Crim.App.1986). Because state law prevented the jury from finding that Cantu committed voluntary manslaughter, the trial court's failure to instruct the jury on this offense was not constitutional error.

Petitioner next takes issue with the identification procedures used by the San Antonio Police Department. Specifically, he contends that the repeated showing of his photograph to Juan Moreno was so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). Even unnecessarily suggestive procedures do not automatically require suppression, however, if the witness's identification is reliable under the totality of the circumstances. Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2254, 53 L. Ed. 2d 140 (1977).

During the state court proceedings, Cantu moved to suppress the in-court identification, arguing that Moreno had been unfairly influenced by police officers. The trial court disagreed, finding that the photo array containing Cantu's picture was not unduly suggestive, nor was Moreno's identification in any way tainted.16 In denying the suppression motion, the court ruled that Moreno's testimony "established that he knew who the defendant was, what the defendant looked like, and was able to identify him without the aid of any photograph to assist him in his recollection of who the person was who shot him...." On direct appeal, the Texas Court of Criminal Appeals acknowledged that the repeated showing of Cantu's picture during the photo arrays was suggestive. Cantu v. State, 738 S.W.2d 249 (Tex.Crim.App.1987). However, that court rejected the petitioner's contention that the suggestive procedures tainted Moreno's in-court identification so as to create a substantial likelihood of irreparable misidentification. Id. at 252.

Under 28 U.S.C. § 2254(b), state court factfindings are entitled to a presumption of correctness absent one of eight statutory exceptions. Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981). Petitioner insists that the presumption of correctness should not be afforded here because the state factfinding was insufficient. According to Cantu, the presumption does not apply because "the trial court made no factual findings regarding the identification process, or the procedures employed, but merely arrived at a legal conclusion." He specifically faults the trial court for failing to make explicit factfindings on several issues, such as the brightness of the lighting in the room at the time of the murder, which he insists should bear on whether Moreno correctly identified Cantu as his and Gomez's assailant.

Petitioner's argument is totally without merit. That the trial court did not make explicit fact findings on every issue does not mean the court "merely arrived at a legal conclusion" unworthy of the presumption of correctness. Both implied and explicit factfindings fall within the ambit of § 2254(d). Marshall v. Lonberger, 459 U.S. 422, 433-34, 103 S. Ct. 843, 850-51, 74 L. Ed. 2d 646 (1983); McCoy v. Cabana, 794 F.2d 177, 182 (5th Cir.1986); Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir.1983). Thus, for instance, the state court, after weighing the evidence, found that Juan Moreno had sufficient opportunity to view Cantu on the night of the shooting. Cantu, 738 S.W.2d at 253. As the state correctly observes, petitioner cannot avoid the binding effect of the state court findings merely by referring to snippets of testimony from a voluminous record. "One of the purposes of § 2254(d) was to prevent precisely this kind of parsing of trial court transcripts to create problems on collateral review where none were seen at trial." Wainwright v. Witt, 469 U.S. 412, 435, 105 S. Ct. 844, 858, 83 L. Ed. 2d 841 (1984). Because § 2254(d) is controlling here, the district court properly relied on the presumption of correctness to reject Cantu's challenge to the state court factual findings on the identification issue.17

Petitioner asserts that his state trial and appellate counsel were constitutionally ineffective on several grounds. We review a claim of ineffective assistance of counsel at a capital sentencing trial under the familiar standards of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As this court has recently noted:

First, a defendant must show that "counsel's representation fell below an objective standard of reasonableness," with reasonableness judged under professional norms prevailing at the time counsel rendered assistance. Id. at 688, 104 S.Ct. at 2064. This is a standard which requires us to be "highly deferential," as it is extremely difficult for reviewing courts to place themselves in counsel's position and evaluate the choices he or she should have made....

Second, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. A court evaluating a claim of ineffective assistance need not address the reasonableness component first, and if a defendant fails on one part, it need not address the other. Id. at 697, 104 S.Ct. at 2069.

Black, 962 F.2d at 401.

First, Cantu insists that his trial counsel erred during the guilt-innocence phase of the trial by failing to secure the services of an expert witness to contest the testimony of eyewitness Juan Moreno. According to Cantu, because no expert witness testified, "the jury was deprived of a way to intelligently evaluate the testimony of Juan Moreno." This argument is specious. While petitioner is correct that the admission of expert testimony regarding eyewitness identifications is proper, see, e.g., United States v. Moore, 786 F.2d 1308, 1312-13 (5th Cir.1986), he cites no authority to support the theory that his trial counsel was required to call an expert witness to challenge Moreno's testimony. Indeed, Cantu's trial counsel testified at the evidentiary hearing that he considered seeking the services of an expert witness on the issue of eye-witness identification but decided against it based on his belief that his cross-examination of Moreno would be sufficient to refute the accuracy of the identification.18

Petitioner next contends that his trial counsel was ineffective during the punishment phase. Counsel, he maintains, acted unprofessionally by failing to present evidence of Cantu's "low IQ, emotional immaturity, troubled youth, trauma as a result of his parents' divorce, and appearance of neglect." While counsel did not seek a psychiatric examination, nothing at the time of trial indicated that Cantu was insane when the offense occurred.19 Moreover, Cantu's assertion that he was denied effective assistance of counsel by his attorney's failure to introduce evidence that he appeared to be a child who was either neglected or abandoned is specious. The evidence does not indicate that the petitioner was neglected or abandoned. At best, it shows he might have felt rejected and abandoned, which was assertedly manifested by the fact that he sometimes watched television until the early hours of the morning and engaged in fantasy. There is likewise no merit to petitioner's claim to have been traumatized by his parents' divorce or by his family's socio-economic background. Cantu's counsel thoroughly investigated these claims, consulting with his client as well as Cantu's father and brother for possible mitigating evidence. Counsel ultimately decided not to introduce this information because of his concern that the state would use it against his client. Introducing the testimony of family members would have allowed the state to cross-examine them about Cantu's reputation in the community, including both his membership in the Grey Eagles and his personal notoriety for theft, violence and drug use. Counsel was not incompetent in his approach to mitigating evidence.

Cantu also challenges his appellate counsel's representation as constitutionally deficient. Both the issues he faults appellate counsel for failing to raise--a challenge to the constitutionality of the Texas Sentencing Statute and the trial court's refusal to charge the jury on the lesser included offense of voluntary manslaughter--were raised and considered both on state habeas and in the present federal proceedings and were determined to be meritless. Because appellate counsel's effectiveness is judged by the same standard as that of trial counsel, see Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir.1991), petitioner's assertion, which fails even to allege that he was prejudiced by appellate counsel's performance, is frivolous.

LIMITATIONS ON PETITIONER'S TESTIMONY DURING THE PUNISHMENT PHASE

Petitioner did not testify at the guilt-innocence phase of his trial. However, his counsel attempted to call him as a witness during the punishment phase so that Cantu could testify on the limited issue of whether he shot Officer De La Luz in self-defense. The trial court refused to allow petitioner to testify on such a limited basis, ruling that if Cantu took the stand, he would be subject to cross-examination the same as any other witness. Petitioner then chose not to testify and offered a bill of exception, out of the presence of the jury, in which he testified that he shot Officer De La Luz in self-defense.

Petitioner now contends that the trial court's decision impermissibly chilled his right to present mitigating evidence. Specifically, petitioner challenges the Texas requirement that a defendant who testifies only at the punishment phase of the trial, and who admits guilt during such testimony,20 waives the right to challenge the sufficiency of the evidence as to guilt and waives any evidentiary objections made during the guilt-innocence phase. See, e.g., Brown v. State, 617 S.W.2d 234, 236 (Tex.Crim.App.1981) (en banc ). According to petitioner,

Mr. Cantu was faced with a Hobson's choice at the punishment phase of his trial. Mr. Cantu could, on the one hand, testify at the punishment phase and risk waiving his substantial appellate issues as to the sufficiency of the evidence and the legality of the in-court identification; or, as he chose to do, allow the jury to impose sentence without the benefit of his version of the De La Luz shooting....

Because of Texas' peculiar procedural rule, Mr. Cantu's constitutionally protected right to present mitigating evidence in favor of a sentence less than death was unconstitutionally chilled.

The state argues that Cantu has waived this argument because it is raised for the first time on appeal, and we agree. See Buxton v. Collins, 879 F.2d 140, 148 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S. Ct. 3295, 111 L. Ed. 2d 803 (1990) (Penry claim may not be considered for the first time on appeal). In the alternative, petitioner is asking this court to announce and apply retroactively on collateral review what amounts to a new rule of constitutional law, a request foreclosed by Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).21 We decline to review this issue.

For the foregoing reasons, the judgment of the district court denying habeas relief is AFFIRMED.