United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   June 4, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-70036



DENARD SHA MANNS

                       Petitioner - Appellant

     v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                       Respondent - Appellee



          Appeal from the United States District Court
             for the Western District of Texas, Waco
                        No. 6:04-CV-00332


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

KING, Circuit Judge:*

     Petitioner-appellant Denard Sha Manns seeks a certificate of

appealability (“COA”) to appeal the district court’s judgment

denying his petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254.    Because Manns has not made a substantial showing

of the denial of a constitutional right, we DENY his COA

application.




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           I. BACKGROUND

     Manns was indicted in Texas state court for the November

1998 death of Michele Robson.   The indictment charged Manns with

capital murder and alleged that Manns intentionally caused

Robson’s death in the course of committing or attempting to

commit robbery, kidnapping, and aggravated sexual assault.       Manns

pleaded “not guilty” and proceeded to a jury trial in February

2002 before the 27th District Court of Bell County, Texas.       He

was convicted of capital murder on March 1, 2002, and was

sentenced to death.   Manns appealed his conviction and sentence

to the Texas Court of Criminal Appeals, which affirmed.        See

Manns v. Texas, 

(Tex. Crim. App. 2003).

     On November 10, 2003, Manns filed a state application for a

writ of habeas corpus.   The 27th District Court of Bell County,

Texas, entered findings of fact and conclusions of law and

recommended that Manns’s application be denied.    The Court of

Criminal Appeals summarily adopted the trial court’s findings and

conclusions and denied Manns’s application on September 29, 2004.

See Ex Parte Manns, No. 59,664-01, slip op. (Tex. Crim. App.

Sept. 29, 2004) (per curiam) (unpublished opinion).

     Manns filed a federal petition for a writ of habeas corpus

in the Western District of Texas on September 29, 2005 and an

amended petition on October 14, 2005.    The district court denied

the petition on April 21, 2006.     See Manns v. Dretke, No.



                                  -2-
W-04-CA-332, slip op. (W.D. Tex. Apr. 21, 2006) (unpublished

opinion).   Manns timely filed a notice of appeal and moved for a

COA, but the district court denied Manns’s COA request.       Manns

now seeks a COA from this court to appeal the district court’s

denial of his habeas petition.

                      II. STANDARD OF REVIEW

     Manns’s petition is governed by the Antiterrorism and

Effective Death Penalty Act (AEDPA) of 1996 §§ 101-108, Pub. L.

No. 104-132, 110 Stat. 1214 (1996) (codified as amended at 28

U.S.C. §§ 2244, 2253-2266).   Under AEDPA, a state habeas

petitioner may appeal a district court’s dismissal of his

petition only if the district court or the court of appeals first

issues a COA.   28 U.S.C. § 2253(c)(1).

     A COA will be granted “only if the applicant has made a

substantial showing of the denial of a constitutional right.”

§ 2253(c)(2).   A petitioner satisfies this standard by

demonstrating that “jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.”     Miller-El v.

Cockrell, 

, 327 (2003) (citing Slack v. McDaniel, 

, 484 (2000)).   The court’s review of the COA request

thus involves performing a threshold inquiry into the merits of

the claims in the underlying habeas petition.     See 

                                 -3-
(citing 

).      “This threshold inquiry does

not require full consideration of the factual or legal bases

adduced in support of the claims.      In fact, the statute forbids

it.”    

       In determining whether jurists of reason could disagree with

the district court’s denial of the habeas petition, we must also

consider the district court’s deferential standard of review

under AEDPA.    See Brown v. Dretke, 

, 371 (5th Cir.

2005) (“With respect to the review of factual findings, AEDPA

significantly restricts the scope of federal habeas review.”).

Under AEDPA, a federal court must not grant habeas relief “with

respect to any claim that was adjudicated on the merits in State

court proceedings” unless it determines that the state court’s

adjudication “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States.”    28 U.S.C. § 2254(d)(1).    “A state court’s decision is

contrary to Supreme Court precedent if (1) ‘the state court

arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law’[] or (2) ‘the state court confronts

facts that are materially indistinguishable from a relevant

Supreme Court precedent and arrives at a result opposite to [that

of the Supreme Court].’” Pippin v. Dretke, 

, 787 (5th

Cir. 2005) (first and third alterations in original) (quoting

Williams v. Taylor, 

, 405 (2000)), cert. denied, 127

                                 -4-
S. Ct. 351 (2006).   “A state court’s decision is an unreasonable

application of clearly established federal law whenever the state

court identifies the correct governing legal principle from the

Supreme Court’s decisions but applies that principle to the facts

of the prisoner’s case in an objectively unreasonable manner.”

v. Dretke, 

, 623 (5th Cir. 2004)

(internal quotation marks omitted)).   “An unreasonable

application may also occur if ‘the state court either

unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.’”    

original) (quoting

).

                           III. DISCUSSION

A. Claims Two and Four: Burden of Proof on Mitigating Factors

     1. Background

     We first address Manns’s second and fourth claims.   Both

claims relate to the mitigation special issue submitted to the

jury during the sentencing phase of his trial and to the lack of

any explicit assignment of a burden of proof on the question.

     In accordance with the version of article 37.071, section

2(e)(1) of the Texas Code of Criminal Procedure as it then

existed, the jury was asked:

                 Do you find from the evidence, taking
          into    consideration all of the evidence,

                                 -5-
          including the circumstances of the offense,
          the defendant’s character and background, and
          the   personal   moral   culpability   of   the
          defendant,   that   there   is   a   sufficient
          mitigating circumstance or circumstances that
          a sentence of life imprisonment rather than a
          death sentence be imposed?

See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(1) (Vernon Supp.

2004) (amended 2005).   Although the jury was asked whether there

were mitigating factors sufficient to warrant a sentence of life

imprisonment rather than death, the jury was not instructed

whether the burden of proof on the question was borne by the

state or by Manns.

     In his second claim, Manns contends that the lack of any

burden-of-proof allocation sent “mixed signals” to the jury in

violation of Penry v. Johnson (Penry II), 

(2001).

And in his fourth claim, Manns asserts that under Apprendi v. New

Jersey, 

(2000), and Ring v. Arizona, 

(2002), the state should have been required to prove beyond a

reasonable doubt the absence of sufficient mitigating evidence

warranting a sentence of life imprisonment.

     The state asserts here, as it did before the district court,

that Manns did not exhaust these claims in state court.     True,

Manns raised these claims for the first time in his federal

habeas petition; he did not raise them at any point in his

original state criminal proceedings or in his state habeas

application.   Even though Manns failed to exhaust these claims in

state court, the district court proceeded to the merits and

                                -6-
denied the claims.   The district court was permitted to deny

Manns habeas relief on the merits of his claims notwithstanding

his failure to exhaust.   See 28 U.S.C. § 2254(b)(2) (“An

application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust

the remedies available in the courts of the State.”).   We perform

a threshold inquiry into the merits of Manns’s claims to

determine whether jurists of reason could disagree with the

district court’s denial of the claims.

     2. Claim Two: Penry Claim

     Manns asserts that the mitigation special issue sent “mixed

signals” to the jury and thereby violated the Eighth Amendment

under Penry II.   The district court denied Manns’s claim,

observing that Manns received the instruction required by article

37.071, section 2(e)(1), which does not contain a nullification

instruction as prohibited by Penry II.

     Manns’s claim is not the typical Penry claim——i.e., that the

mitigation special issue presented to the jury did not permit the

jury to consider and give full effect to Manns’s mitigating

evidence.   See, e.g., Scheanette v. Quarterman, 

,

824-25 (5th Cir. 2007).   Manns does not argue that the jury

received mixed signals about how to give full effect to his

mitigating evidence.   In fact, Manns’s COA request does not even

identify what mitigating evidence, if any, he presented to the



                                 -7-
jury.

     Instead, Manns opines that the jury received mixed signals

in violation of Penry II because the mitigation special issue did

not explicitly allocate the burden of proof on the question.         He

asserts that the jury’s answer to the mitigation special issue

may have turned on whether the jury believed it should begin its

deliberations with a presumption of a death sentence or a

presumption of a sentence of life imprisonment.1       In essence,

     1
         The heart of Manns’s argument is as follows:

                 [Under Penry II,] [t]he question here
            then    becomes     whether     the     statutory
            “mitigation” issue submitted to the jury in
            this case also suffers from the constitutional
            flaw of sending “mixed signals.” To pose the
            question is to answer it, for [the Texas Court
            of Criminal Appeals] has already acknowledged
            that the statutory issue is unclear as to the
            burden of proof. . . . As discussed above,
            the practical effect is even worse, as . . .
            the burden seems to fall on the defense.
            Jurors can focus their deliberations on
            whether a defendant has produced sufficient
            evidence to convince them a death sentence
            should not be imposed.       On the other end,
            jurors could focus on whether the State
            disproved or rebutted the mitigating evidence
            produced by the defendant. Put another way, a
            juror can begin deliberations with either a
            presumption    that   a    death    sentence   is
            appropriate,    or    a    life    sentence    is
            appropriate. A juror’s answer may well depend
            on which presumption he uses, and how he
            approaches the issue. With such conflicting
            interpretations, there is no way for a juror
            to   determine   how    they   should    approach
            answering the issues. In this situation it is
            more than probable that jurors may have
            different views of how the issues should be
            approached.

                                  -8-
Manns posits that Penry II requires the trial court to instruct

the jury regarding which party bears the burden of proof in order

to avoid sending prohibited mixed signals.

     But Penry II simply does not address which party bears the

burden of proof on the mitigation special issue, nor does it

require that the burden be assigned to a particular party.

Instead, Penry II reaffirmed that the jury must “be able to

‘consider and give effect to [a defendant’s mitigating] evidence

in imposing 

(emphasis omitted)

(alteration in original) (quoting Penry v. Lynaugh (Penry I), 

, 319 (1989)).    The Supreme Court held that a judicially

crafted nullification instruction did not permit the jury to give

full effect to the defendant’s mitigating evidence in part

because “[a]t best, the jury received mixed signals” from the

combination of the nullification instruction and an instruction

to follow the oath and the law.     See Penry 

.

The district court observed that Manns’s jury did not receive a

nullification instruction and implicitly concluded that the jury

therefore did not receive Penry II’s prohibited “mixed signals.”

Jurists of reason could not disagree with the district court’s

resolution of Manns’s claim, and accordingly we deny Manns’s COA

request on this claim.

     3. Claim Four: Apprendi/Ring Claim

     Manns also contends that his Fourteenth Amendment due



                                  -9-
process rights were violated because the mitigation special issue

implicitly placed the burden of proving sufficient mitigating

factors onto Manns.   Manns posits that under Apprendi and Ring,

the state must bear the burden of proving beyond a reasonable

doubt that there are insufficient mitigating circumstances to

warrant the imposition of a sentence of life imprisonment rather

than death.   The district court denied this claim, observing that

the same argument has been rejected at both the state and federal

level.2

     In previous cases, we have denied COA applications on this

very issue, see 

, and Rowell v.

Dretke, 375-78 (5th Cir. 2005),   and for the same reasons we do

so in this case as well.   Under Apprendi and Ring, the

aggravating factors permitting the elevation of the sentence from

life imprisonment to death must be found by a jury.    See 

.    But nothing in Apprendi or Ring addresses

mitigating factors.    See 

n.4 (“[Ring] makes

no Sixth Amendment claim with respect to mitigating

circumstances.”).   As this court has observed, the absence of

mitigating factors need not be proved by the state beyond a

reasonable doubt because “a finding of mitigating circumstances

reduces a sentence from death, rather than increasing it to

     2
       The district court cited Russeau v. Texas, 

(Tex. Crim. App. 2005), Resendiz v. Texas, 

, 549-50
(Tex. Crim. App. 2003), and Resendiz v. Dretke, No. 4:05-CV-1604,

(S.D. Tex. Sept. 7, 2005) (unpublished opinion).

                                -10-
death.”   Granados v. Quarterman, 

, 536-37 (5th Cir.),

cert. denied, 

(2006).    Moreover, the Supreme Court

recently made clear that its decision in Walton v. Arizona, 

(1990), that “a state death penalty statute may place

the burden on the defendant to prove that mitigating

circumstances outweigh aggravating circumstances,” is still

controlling.     Kansas v. Marsh, 

, 2524 (2006).

Jurists of reason could not disagree with the district court’s

resolution of this claim.    Accordingly, Manns’s request for a COA

on this claim is denied.

B. Claim 1: Lack of Juror Unanimity on Manner of Committing

Capital Murder

     We turn next to Manns’s first claim.    Manns contends that

his Fourteenth Amendment right of due process and his Sixth

Amendment right of trial by jury were violated because the trial

court did not require the jury to unanimously agree whether the

offense elevating murder to capital murder was robbery,

kidnapping, or aggravated sexual assault.3    Manns first presented

this claim in his state habeas application.4    The Court of


     3
       Although Manns’s first claim is predicated on both the
Fourteenth Amendment and the Sixth Amendment, the right of juror
unanimity “is more accurately characterized as a due process
right than as one under the Sixth Amendment.” Schad v. Arizona,

, 634 n.5 (1991) (plurality opinion).
     4
       The state contends that Manns did not exhaust his state
remedies on this claim. But in his state habeas application,
Manns asserted that his constitutional rights of due process and

                                 -11-
Criminal Appeals rejected Manns’s argument, relying on Kitchens

v. Texas, 

(Tex. Crim. App. 1991).5    Manns again

presented the argument in his federal habeas petition.      The

federal district court also relied on Kitchens in rejecting

Manns’s argument.    Manns now seeks a COA on this claim.

     The indictment charged Manns with capital murder, which was

defined in 1998 in relevant part as “intentionally

commit[ting] . . . murder in the course of committing or

attempting to commit kidnapping, burglary, robbery, aggravated

sexual assault, arson, or obstruction or retaliation.”      TEX. PENAL

CODE ANN. § 19.03(a)(2) (Vernon 1998) (amended 2003).   The

indictment alleged that Manns “caus[ed] the death of an

individual, namely, MICHELE ROBSON, by shooting the said MICHELE

ROBSON with a firearm . . . in the course of committing or

attempting to commit the offense[s] of kidnapping[,] . . .

robbery[,] . . . [and] aggravated sexual assault of the said

MICHELE ROBSON.”    The state trial court instructed the jury:

          [I]f you believe from the evidence beyond a
          reasonable doubt, that the defendant, DENARD


trial by jury were violated because the jury instructions “did
not require all twelve jurors to agree on whether the aggravating
factor elevating murder to capital murder was kidnapping,
robbery[,] or aggravated sexual assault.” Consequently, Manns
fairly presented this claim to the state courts and therefore
exhausted his state remedies. We thus proceed with a threshold
inquiry into the district court’s resolution of his claim.
     5
       The Court of Criminal Appeals did so indirectly by
summarily adopting the findings and conclusions of the state
district court, which relied on Kitchens.

                                -12-
           MANNS, . . . intentionally commit[ted] murder
           by causing the death of an individual, namely,
           MICHELE ROBSON, by shooting the said MICHELE
           ROBSON with a firearm, and

           (1) the defendant was then and there in the
           course of committing or attempting to commit
           the offense of kidnapping of the said MICHELE
           ROBSON; or

           (2) . . . robbery of the said MICHELE ROBSON;
           or

           (3) . . . aggravated sexual assault of the
           said MICHELE ROBSON,

           you will find the defendant guilty of the
           offense of Capital Murder . . . .

The jury reported on a general verdict form its finding that

Manns was “guilty of the offense of Capital Murder as alleged in

the indictment.”

     Manns argues that his constitutional rights were violated

because the jury was not required to unanimously agree on which

aggravating offense (i.e., kidnapping, robbery, or aggravated

sexual assault) elevated his crime to capital murder.   The thrust

of Manns’s argument is that the aggravating offenses enumerated

in section 19.03(a)(2) are separate elements of the offense of

capital murder, not merely alternate means of committing capital

murder.   As such, Manns contends, the jury should not have been

permitted to find him guilty of capital murder without agreeing

unanimously on at least one particular offense enumerated in

section 19.03(a)(2).

     In Schad v. Arizona, 

(1991), a plurality of the


                               -13-
Supreme Court “concluded that when a statute enumerates

alternative routes for its violation, whether jurors must be

unanimous with respect to a particular route depends on two

questions.”     United States v. Edmonds, 

, 815 (3d Cir.

1996) (en banc).    The first question involves an inquiry into

legislative intent: “[D]id the legislature intend the different

routes to establish separate ‘offenses,’ for which unanimity is

required as to every fact constituting the offense, or different

‘means’ of violating a single offense, for which unanimity is not

required?”    Id.; see also 

(plurality

opinion).    The second inquiry is constitutional in nature: “[I]f

the legislature intended the alternative routes to be mere means

of violating a single statute, is the statute’s definition of the

crime unconstitutional under the Due Process Clause?”     

; see also 

(plurality

opinion).

     In Kitchens, the Texas Court of Criminal Appeals answered

the first Schad question with regard to the crime of capital

murder in Texas.    The Kitchens court determined that the offenses

enumerated in section 19.03(a)(2) do not establish separate

elements but rather are merely “differing methods of committing

one 

.   The court explicitly

condoned the use of a general verdict in a capital-murder trial,

whereby the jury need not be unanimous as to which of the

enumerated offenses elevates murder to capital murder.     

contends, however, that Kitchens was wrongly decided.

He criticizes the perceived lack of thoroughness in Kitchens’s

analysis, contending that the Court of Criminal Appeals did not

perform a sufficient inquiry into the Texas legislature’s intent

as contemplated by Schad and Richardson v. United States, 

(1999).   He maintains that the Kitchens court instead

simply “declare[d], essentially by judicial fiat, that any

alternative theories of commission of an offense as defined

within a single penal statute will invariably and always be

regarded as nothing more than ‘means’ of satisfying the elements

of the statute.”   He argues that a proper inquiry into

legislative intent yields the conclusion that the Texas

legislature intended for section 19.03(a)(2) to create separate

elements, not merely to provide alternative methods for

committing a single crime.   He relies primarily on the statute’s

language, but he also argues that even if the statute is

ambiguous, there should essentially be a presumption that the

statute creates separate elements.    Finally, Manns opines that

Kitchens no longer represents the view of the Texas courts.    He

argues that the Court of Criminal Appeals revisited the issue of

juror unanimity in Ngo v. Texas, 

(Tex. Crim. App.

2005), and that Ngo’s rationale supports a conclusion that

section 19.03(a)(2) enumerates elements of capital murder, not




                               -15-
merely manner and means of proving a single element.6

     But in construing the Texas legislature’s intent, a federal

habeas court is bound by the statutory interpretation set forth

by the Texas court.   By rejecting Mann’s claim and relying on

Kitchens, the Court of Criminal Appeals effectively determined

that under Texas law, robbery, kidnapping, and aggravated sexual

assault are simply alternate means of committing the crime of

capital murder.   Cf. 

(plurality opinion)

(“In the present case, for example, by determining that a general

verdict as to first-degree murder is permissible under Arizona

law, the Arizona Supreme Court has effectively decided that,

under state law, premeditation and the commission of a felony are

not independent elements of the crime, but rather are mere means

of satisfying a single mens rea element.”).   On habeas review,

the district court is not permitted to second-guess the Texas


     6
       Manns also asserts that the Court of Criminal Appeals
specifically held in Rodriguez v. Texas, 

(Tex.
Crim. App. 2004), that the alternative theories of capital murder
enumerated in section 19.03(a)(2) do in fact constitute elements
of the offense. The Rodriguez court did state that the offense
of capital murder includes “aggravating ‘nature of circumstances
and/or nature of conduct elements’ [that] are elements of the

. But the court appears to have been
recognizing simply that in a capital-murder case the state
must——in addition to proving that the defendant intentionally
caused an individual’s death——also prove “that the accused
engaged in other criminal conduct (i.e., kidnapping, robbery,
aggravated sexual assault, escape from a penal institution) or
had knowledge of certain circumstances (i.e., that the victim was
a peace officer).” 

v. Texas, 

, 491 (Tex. Crim. App. 1995)). The Rodriguez court did not
state that it was in any way modifying or overruling Kitchens.

                               -16-
court’s interpretation of Texas law but must instead respect it

as controlling.   See 

(plurality opinion) (“If a

State’s courts have determined that certain statutory

alternatives are mere means of committing a single offense,

rather than independent elements of the crime, we simply are not

at liberty to ignore that determination and conclude that the

alternatives are, in fact, independent elements under state law.”

(citing Mullaney v. Wilbur, 

, 690-91 (1975); Murdock

v. City of Memphis, 

(1875))).   In disposing of

Manns’s due process claim, the district court respected Kitchens

as controlling, and jurists of reason could not disagree with

that resolution of Manns’s claim.7    Accordingly, we deny his

request for a COA on this claim.

C. Claim 3: Ineffective Assistance of Counsel

     Lastly, Manns claims that he received ineffective assistance

of counsel.   He argues that his appellate counsel provided

constitutionally deficient assistance by failing to raise on

direct appeal the issue of the lack of juror unanimity as to

which enumerated offense elevated murder to capital murder, even

though this issue had been preserved in the trial court.8     Manns

     7
       Manns did not go on to argue in the district court (and
does not argue here) that under Schad’s second prong, Texas’s
definition of capital murder, as construed by the Court of
Criminal Appeals, violates due process. Hence, we do not address
it.
     8
       Manns made other arguments in his state and federal habeas
petitions about the effectiveness of his appellate counsel. But

                               -17-
presented this claim in both his state habeas application and in

his federal habeas petition.

      Manns’s ineffective-assistance-of-counsel claim is governed

by Strickland v. Washington, 

(1984).   See Smith v.

Robbins, 

(2000).   Under the Strickland standard,

Manns must show that his appellate counsel’s performance was

objectively unreasonable and that it prejudiced him.     See 

prejudice, Manns must demonstrate a reasonable

probability that absent his appellate counsel’s unreasonable

performance he would have prevailed on appeal.   See 

86.

      Manns has not shown that jurists of reason could disagree

with the district court’s denial of his claim of ineffective

assistance of counsel.   Assuming arguendo that Manns’s appellate

counsel’s failure to present the juror-unanimity argument on

direct appeal was objectively unreasonable, Manns cannot

demonstrate prejudice.   As we explained above, Manns has not made

a substantial showing that the trial court’s failure to require

the jury to be unanimous on which offense elevated murder to

capital murder deprived him of a constitutional right.    As a

result, he has also failed to demonstrate prejudice——i.e., a

reasonable probability that had his appellate counsel made the

juror-unanimity argument, he would have prevailed on direct



he does not address these arguments in his COA request.

                                -18-
appeal.   Consequently, Manns’s request for a COA on this claim is

denied as well.

                          IV. CONCLUSION

     For the foregoing reasons, Manns’s request for a COA is

DENIED.




                               -19-
EMILIO M. GARZA, Circuit Judge, specially concurring:



     I concur in the majority opinion but write separately to

voice concern that Kitchens was wrongly decided.    Under both of

Schad’s inquiries—statutory construction of Texas’s capital

murder statute and due process—the specific felony offense

elevating murder to capital murder is a separate element of the

crime of capital murder, not, as the Texas Court of Criminal

Appeals has held, a “differing method[] of committing one

offense.”   Kitchens v. Texas, 

, 258 (Tex. Crim.

App. 1991); see TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 1998)

(amended 2003).

     The distinction between the elements of a crime and the

means of committing an element of a crime is often less than

clear, but Texas’s capital murder statute is straightforward.      To

commit capital murder, a defendant must not only have the

requisite actus reas and mens rea of murder, but he also must

commit a felony that is, in and of itself, a separate crime,

which comes with its own actus reas and mens rea requirements.

See, e.g., TEX. PENAL CODE ANN. § 20.03(a) (kidnaping); 

(robbery); 

(aggravated sexual assault).

The act of committing kidnaping, or robbery, or aggravated sexual

assault is not an alternate means by which one commits capital

murder.   Means are “preliminary factual issues which underlie the

                                -20-
verdict,” Schad v. Arizona, 

, 631-32 (1991) (internal

quotations omitted), and consist of alternate theories in the

commission of an element of the offense—for example, using a gun

versus using a knife in committing aggravated sexual assault.

The mens rea element can also be established by various means,

for example, committing murder that is premeditated or an act of

passion.   Here, however, the underlying felony offense is a

separate crime in and of itself, which, if its elements are

proved beyond a reasonable doubt, elevates murder to capital

murder and hence is an element of the crime of capital murder.

Cf. Richardson v. United States, 

, 817-19 (1999);

Apprendi v. New Jersey, 

, 496 (2000) (“[T]he fact

that New Jersey . . . has also made precisely the same conduct

the subject of an independent substantive offense” is probative

as to whether the conduct is an element of the crime).   I concur

in denying COA because we are required under Schad to defer to

Texas’s own interpretation of its capital murder statute.

     Moreover, although I agree with the majority that Manns

waived any argument under Schad’s second prong that Texas’s

definition of capital murder, as construed by the Texas Court of

Criminal Appeals, violates due process, I am not confident that

Kitchens can survive a due process analysis.   For one, proving

the specific underlying felony offense as a separate element of

the crime makes a difference where, as here, the Government


                                -21-
introduced evidence that the defendant committed more than one

felony offense.   By combining alternative theories of guilt, the

prosecutor may have managed to convict Manns without proving

beyond a reasonable doubt all of the elements of any one theory

to a constitutionally adequate number of jurors.    See 

(expressing concern with “increas[ing] the

likelihood that treating violations simply as alternative means,

by permitting a jury to avoid discussion of the specific factual

details of each violation, will cover up wide disagreement among

the jurors about just what the defendant did, or did not, do.”).

Moreover, Kitchens does not construe the elements of capital

murder to that level of specificity required by the Constitution.

See 

-33 (“require[ing] proof some specific

illegal conduct”). “[N]othing in our history suggests that the

Due Process Clause would permit a state to convict anyone under a

charge of ‘Crime’ so generic that any combination of jury

findings of embezzlement, reckless driving, murder, burglary, tax

evasion, or littering, for example, would suffice for

conviction.”   See 

.   I fear that, under

Kitchens, Texas’s capital murder statute, by allowing a

combination of jury findings of kidnaping, robbery, or sexual

assault, may be such an unconstitutional crime.




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