Case: 11-70019     Document: 00511916016         Page: 1     Date Filed: 07/11/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           July 11, 2012

                                       No. 11-70019                        Lyle W. Cayce
                                                                                Clerk

KIMBERLY LAGAYLE MCCARTHY,

                                                  Petitioner-Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:07-CV-1631


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        A Texas jury convicted Petitioner Kimberly Lagayle McCarthy of capital
murder, and she was sentenced to death. The Texas Court of Criminal Appeals
affirmed and denied her subsequent application for habeas corpus. The district
court denied her federal habeas petition and declined to grant her a certificate
of appealability (“COA”). McCarthy asks this court to grant her a COA on two
issues pursuant to 28 U.S.C. § 2253.              Because McCarthy cannot make a


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
      Case: 11-70019   Document: 00511916016    Page: 2   Date Filed: 07/11/2012



                                   No. 11-70019

substantial showing of the denial of a federal constitutional right, we DENY a
COA.
                                         I
         The evidence presented at trial established that McCarthy “entered the
home of her 71-year old neighbor Dorothy Booth under the pretense of borrowing
some sugar and then ‘stabbed Mrs. Booth five times, hit her in the face with a
candelabrum, [and] cut off her left ring finger in order to take her diamond
ring.’” McCarthy v. Thaler, No. 3:07–CV–1631–O, 

, at *1 (N.D.
Tex. May 9, 2011) (quoting McCarthy v. State, No. 74590, 

, at
*2 (Tex. Crim. App. Sept. 24, 2004)). McCarthy then left with Mrs. Booth’s purse
and wedding ring. Eventually, she “drove Mrs. Booth’s Mercedes Benz to a
‘crack house’ where she attempted to purchase crack cocaine.” McCarthy, 

, at *2. She later “pawned Mrs. Booth’s wedding ring for $200, and
used the victim’s credit cards at least four times on the day after the murder.”
Id.
         McCarthy was originally convicted of the capital murder of Mrs. Booth in
1998. However, the Texas Court of Criminal Appeals (“TCCA”) reversed her
conviction on direct appeal. McCarthy v. State, 

, 49 (Tex. Crim.
App. 2001). The TCCA held that the trial court had violated McCarthy’s right
to counsel under the Fifth and Fourteenth Amendments by admitting into
evidence a written statement she made to police after she had unambiguously
invoked her right to counsel. Id. at 51. Although McCarthy did not admit to
physically killing Mrs. Booth in the statement, the TCCA concluded that the
statement “was, as the State’s attorney so effectively pointed out . . ., powerful
enough to establish her guilt of capital murder either as a party or as a




                                         2
   Case: 11-70019        Document: 00511916016          Page: 3     Date Filed: 07/11/2012



                                        No. 11-70019

conspirator. . . . [and] was also used to paint [her] as an unrepentant liar and set
out her cruel and greedy motive for killing her elderly neighbor.” Id. at 55.1
       McCarthy was subsequently re-tried. The jury found her guilty of capital
murder, and she was sentenced to death. The TCCA upheld her second capital
murder conviction on direct appeal, McCarthy, 

, and the
Supreme Court of the United States denied her petition for a writ of certiorari.
McCarthy v. Texas, 

 (2005). McCarthy timely filed a state petition
for a writ of habeas corpus. Without holding an evidentiary hearing, the state



       1
         The written statement reads as follows:
        Early Tuesday morning about 1:30 a.m., drugs were delivered to me at my residence
by “Kilo” and “J.C.”, two guys I met in South Dallas selling drugs, about a month or so ago.
Both guys stayed at my residence & partied with me. After my money & the drugs ran out,
they asked if I could get some more money. I told them no. They asked me if I knew any of my
neighbors I could borrow money from & I said no, not at that hour & that I had to go to work.
At that time they began to be verbally abusive & threatening to harm me if I didn’t. I called
my neighbor “Dorothy Booth”. I’m not sure of the time & got no answer. I waited a while &
called back, she answered. “Kilo” told me to hang up & I did. He told me to call back & ask her
to borrow some sugar or milk instead of money over the phone, because they were going to rob
her & take the car. I called back & asked to borrow sugar, she said ok. Kilo & J.C. followed me
to her house, when she opened the door & saw me, to let me in they both pushed the door open
& knocked her down. I was shoved back outside to her car. The driver side was unlocked & I
was told to stay there & lay down in the front seat. Several minutes later they both came out
with her car keys, purse, & CD player. Both guys went back into my house & came out with
a jam box, cordless phone & caller ID. They told me to drive to Mi Amore motel on second
avenue to make a pick up. I was told to park on the next street over & wait for them. After
about 3–5 minutes or so I drove off with all the belongings they took & went to Fitzhugh to the
dope house. No one answered the door so I went to Perry street dope house. I took everything
out of the car & went inside to get dope. They didn’t have any so “Smiley” said he would go
around the corner & get me some. I gave him the keys & another girl rode with him. They
came back & the police stopped them in front of the dope house on Perry street. I went to the
back of the house & waited a few minutes & left out the back door to get drugs elsewhere. A
few hours later I returned to Perry street dope house & “Smiley” was upset that the cops
stopped him. He gave me the car keys back. He asked me if the car was stolen & I said no. He
wanted to rent it out for dope so I did & left. After the dope ran out I searched the purse &
found a diamond ring & credit cards. I took the ring to the pawn shop & sold it. Later I used
the credit card at the grocery store & gas station to purchase cigarettes by the carton for resale
at the “boot leg” for cash. I went to a friend’s house to smoke dope. He sold the caller ID and
cordless phone for dope money. The jambox was sold to an individual at the Mexican dude on
Fitzhugh & East Grand. I got a ride with a male & female. We went to several gas stations &
she went inside to use the credit cards once or twice.

                                                3
   Case: 11-70019    Document: 00511916016      Page: 4   Date Filed: 07/11/2012



                                  No. 11-70019

habeas trial court entered findings of fact and conclusions of law recommending
that all requested relief be denied. The TCCA denied relief in an unpublished
order and adopted all but two of the state trial court’s findings and conclusions.
Ex Parte McCarthy, No. WR-50-360-02, 

, at *1 (Tex. Crim. App.
Sept. 12, 2007). McCarthy filed a federal habeas petition based on nine grounds.
The district court denied relief on all of her claims and declined to grant a COA.
McCarthy, 

. Petitioner appeals, requesting a COA from this
court on two of the issues asserted in the district court.
                                        II
      On appeal, McCarthy seeks a COA on two issues raised in the district
court. First, she claims that she was denied her right to effective assistance of
counsel when her lawyers failed to introduce the written statement she made to
police after her arrest as mitigating evidence at the punishment stage of trial.
Second, she asserts that she was denied her right to effective assistance of
counsel when her lawyers agreed to waive the imposition of Texas Rule of
Evidence 614 (“the Rule”) with respect to Mrs. Booth’s daughter, Donna Aldred.
      To obtain a COA, a prisoner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 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)). “[I]n determining this issue, we ‘view[ ] the
petitioner’s arguments through the lens of the deferential scheme laid out in 28
U.S.C. § 2254(d).’” Druery v. Thaler, 

, 538 (5th Cir. 2011) (quoting
Barrientes v. Johnson, 

, 772 (5th Cir. 2000)). Under § 2254(d), when
reviewing a claim adjudicated on the merits by a state court, we defer to the
state court’s determination regarding that claim, “unless the decision ‘[is]

                                        4
   Case: 11-70019   Document: 00511916016      Page: 5   Date Filed: 07/11/2012



                                   No. 11-70019

contrary to, or involve[s] an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or . . .
[is] based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Barrientes, 221 F.3d at 772 (quoting
28 U.S.C. § 2254(d)(1) & (2)).
      Because both of McCarthy’s claims allege ineffective assistance of counsel,
we review her claims under the familiar standard announced in Strickland v.
Washington, 

 (1984). To prevail on her ineffective assistance claims,
McCarthy “must demonstrate that (1) counsel’s representation fell below an
objective standard of reasonableness and that (2) there is a reasonable
probability that prejudice resulted.” Druery, 647 F.3d at 538 (citing Bower v.
Quarterman, 

, 466 (5th Cir. 2007)). In assessing the reasonableness
of counsel’s representation, “counsel should be ‘strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.’” Cullen v. Pinholster, 

,
1403 (2011) (quoting Strickland, 466 U.S. at 690).           “To overcome that
presumption, a defendant must show that counsel failed to act ‘reasonabl[y]
considering all the circumstances.’” Id. (quoting Strickland, 466 U.S. at 688).
Further, in order to establish prejudice, “[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.” Strickland,
466 U.S. at 694.
      “The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly so.’”
Harrington v. Richter, 

, 778 (2011) (citations omitted); see Druery,
647 F.3d at 538–39 (“When our review is governed by AEDPA—as is the case
here—our      review     of      the   state   court’s   resolution      of   the

                                         5
   Case: 11-70019    Document: 00511916016      Page: 6   Date Filed: 07/11/2012



                                  No. 11-70019

ineffective-assistance-of-counsel claim is ‘doubly deferential,’ since the question
is ‘whether the state court’s application of the Strickland standard was
unreasonable.’”) (citations omitted). Section 2254(d) applies to McCarthy’s
ineffective assistance claims. Thus, when deciding whether to grant habeas
relief on those claims, “the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Richter, 131 S. Ct. at 788.
      Accordingly, to obtain a COA on her ineffective assistance claims,
McCarthy must show “that it was ‘necessarily unreasonable for the [state court]
to conclude: (1) that [s]he had not overcome the strong presumption of
competence; and (2) that [s]he had failed to undermine confidence in the jury’s
sentence of death.’” Ayestas v. Thaler, 462 F. App’x 474, 478 (5th Cir. 2012)
(quoting Cullen, 131 S. Ct. at 1403); see id. (“For a COA, we are limited to
deciding whether jurists of reason would find the answers to these questions
debatable or whether the issues deserve encouragement to proceed.”) (citation
omitted).
                                        A
      McCarthy first claims that her counsel rendered ineffective assistance
under Strickland by failing to introduce the written statement she made to
police after her arrest as mitigating evidence at the punishment stage of trial.
Although she concedes that portions of the statement—even if introduced at
punishment—were inculpatory, she argues that the statement also contained
mitigating evidence. Specifically, she contends that the statement, inter alia, (1)
would have provided evidence that she was not the actual killer, even though she
was involved in the murder, (2) would have confirmed that the killing was due
to her drug addiction, and (3) would have demonstrated her willingness to
cooperate in the investigation of Mrs. Booth’s murder.



                                        6
   Case: 11-70019    Document: 00511916016      Page: 7   Date Filed: 07/11/2012



                                  No. 11-70019

      The state habeas court rejected McCarthy’s claim. First, it found that the
statement would have been inadmissible as a self-serving declaration under
Texas law if defense counsel had attempted to introduce it as mitigating
evidence at punishment. See Allridge v. State, 

, 152 (Tex. Crim.
App. 1988) (“[S]elf-serving declarations of the accused are ordinarily
inadmissible in his behalf, unless they come under some exception . . . .”)
(quoting Singletary v. State, 

, 576 (Tex. Crim. App. 1974)). The
state court thereby concluded that McCarthy’s counsel had not been deficient for
failing to introduce the written statement at punishment because the statement
would have been inadmissible if offered.
      Further, the state habeas court determined that even if the statement
were admissible under state law, the decision of McCarthy’s counsel not to
introduce it was sound trial strategy. For instance, the state court found that
the statement contained the following aggravating elements if introduced at
punishment: (1) the statement was inconsistent with some of the physical
evidence produced at trial, (2) portions of the statement were highly improbable,
(3) on direct appeal from her first conviction, the TCCA held that the statement
was “used to paint appellant as an unrepentant liar and set out her cruel and
greedy motive for killing her elderly neighbor,” McCarthy, 65 S.W.3d at 56, and
(4) the statement would have provided the only direct evidence of McCarthy’s
participation in the offense. Lastly, the state court found that even if McCarthy
could establish that her counsel was constitutionally deficient by not introducing
the statement, she had failed to show prejudice from that error, i.e., a reasonable
probability that but for her counsel’s error, the results of the proceeding would
have been different. Strickland, 466 U.S. at 694.
      In denying McCarthy’s claim for federal habeas relief on this issue, the
district court essentially adopted all three of the state habeas court’s rationales
for denying relief and declined to grant a COA. McCarthy, 

,

                                        7
   Case: 11-70019    Document: 00511916016      Page: 8    Date Filed: 07/11/2012



                                  No. 11-70019

at *7. We agree with the district court that “‘reasonable jurists could [not]
debate’ whether the . . . petition should have been resolved by the district court
in a different manner or ‘that [this issue was] adequate to deserve
encouragement to proceed further.’” Druery, 647 F.3d at 539 (citation omitted).
      To establish that her counsel was ineffective, McCarthy must first show
that her counsel was deficient. But McCarthy cannot show that reasonable
jurists could find debatable the district court’s conclusion that it was not
“necessarily unreasonable for the [TCCA] to conclude [] that [McCarthy] had not
overcome the strong presumption of competence.” Cullen, 

.
      As an initial matter, for McCarthy’s counsel to have been deficient for
failing to introduce evidence at trial, the evidence must have been admissible
under Texas law. See Turner v. Quarterman, 

, 298 (5th Cir. 2007)
(“For Turner’s counsel to be deficient in failing to object, the objection must have
merit under Texas law.”). Here, the state habeas trial court determined that
McCarthy’s statement would have been inadmissible under Texas evidentiary
law if her counsel had attempted to introduce it as mitigating evidence at
punishment, and the TCCA adopted that finding. Accordingly, a federal habeas
court cannot overrule that conclusion because “[u]nder § 2254, federal habeas
courts sit to review state court misapplications of federal law[;] [they] lack[]
authority to rule that a state court incorrectly interpreted its own law.” Charles
v. Thaler, 

, 500–01 (5th Cir. 2011); see id. at 500 (“Because the state
determined that Carter’s testimony was permissible lay opinion under state
evidentiary law . . . , a federal habeas court may not conclude otherwise.”); see
also Schaetzle v. Cockrell, 

, 448–49 (5th Cir. 2003) (“[W]e defer to
[the TCCA’s] determination of state law. ‘It is not our function as a federal
appellate court in a habeas proceeding to review a state’s interpretation of its
own law . . . .’”) (citation omitted). McCarthy’s counsel cannot have rendered
ineffective assistance by failing to introduce evidence that would not have been

                                         8
   Case: 11-70019    Document: 00511916016      Page: 9    Date Filed: 07/11/2012



                                  No. 11-70019

admitted. See Turner, 481 F.3d at 298 (“Turner’s counsel cannot have rendered
ineffective assistance of counsel by failing to make an objection that would have
been meritless.”). Thus, “it is not debatable that the state court’s resolution of
this issue was not unreasonable,” and we deny McCarthy’s request for a COA on
this issue. Druery, 647 F.3d at 540.
      Further, even if McCarthy’s written statement were admissible under
Texas law, it was not unreasonable for the state habeas court to conclude that
her counsel’s decision not to offer the statement was sound trial strategy. “[T]his
Court has repeatedly denied claims of ineffective assistance of counsel for failure
to present ‘double edged’ evidence where counsel has made an informed decision
not to present it.” Hopkins v. Cockrell, 

, 586 (5th Cir. 2003)
(citations omitted); see Boyle v. Johnson, 

, 187–88 (5th Cir. 1996)
(noting the heavy deference owed trial counsel when they decide as a strategical
matter not to introduce evidence of a “double-edged nature,” which could harm
the defendant’s case).
      Here, McCarthy’s written statement would have been “double-edged” if
introduced at punishment, as it contained several aggravating facts and had
been effectively used by the State at her first trial as (a) substantive evidence of
her guilt and (b) a basis upon which to attack her credibility. For instance, in
overturning McCarthy’s conviction at the first trial, the TCCA found that during
closing arguments in the guilt/innocence phase of the trial “[McCarthy’s]
inadmissible statement became the rhetorical strawman that the State
effectively decimated.” McCarthy, 65 S.W.3d at 53. Further, although the TCCA
found that “[the] statement did not place the murder weapon in [McCarthy’s]
own hands,” the court did conclude that the statement was, as the State “so
effectively pointed out . . . , powerful enough to establish her guilt of capital
murder either as a party or as a conspirator [and] was also used to paint
appellant as an unrepentant liar and set out her cruel and greedy motive for

                                         9
  Case: 11-70019       Document: 00511916016         Page: 10     Date Filed: 07/11/2012



                                       No. 11-70019

killing her elderly neighbor.” Id. at 56. McCarthy’s counsel at the second trial
was the same lawyer who represented her at her first trial and had successfully
represented her on direct appeal. Thus, counsel was well-aware of the fact that
introducing the statement at punishment could have harmed McCarthy’s case,
and his decision not to do so was therefore necessarily informed. Accordingly,
counsel’s strategic choice not to introduce the statement at punishment was not
objectively unreasonable. Cullen, 131 S. Ct. at 1403 (“To overcome th[e]
presumption [of adequate assistance], a defendant must show that counsel failed
to act ‘reasonabl[y] considering all the circumstances.’”) (citation omitted). It is
not debatable that the state court’s resolution of this issue was not
unreasonable, and we deny a COA on this issue. Druery, 647 F.3d at 540.
                                              B
       McCarthy also claims that her counsel rendered ineffective assistance
under Strickland when her lawyers agreed to waive the imposition of Texas Rule
of Evidence 614 (“the Rule”) with respect to Mrs. Booth’s daughter, Donna
Aldred.
       In Texas, the Rule allows a trial court to exclude certain witnesses from
the courtroom upon a motion from either party or upon the court’s own motion
so that the witnesses “cannot hear the testimony of other witnesses.” TEX. R.
EVID. 614. However, because Dr. Aldred was Mrs. Booth’s daughter, the court
could have only ordered her exclusion at McCarthy’s request if the court
determined that her testimony “would be materially affected if the witness hears
other testimony at trial.” TEX. CODE CRIM. PROC. art. 36.03(a) (providing for the
exclusion of certain witnesses “who for the purposes of the prosecution is a
victim, close relative of a deceased victim, or guardian of a victim”).2                    If
McCarthy’s counsel had moved to exclude Dr. Aldred under the Rule and the

       2
       The trial court also had authority to exclude Dr. Aldred on its own motion in order “to
maintain decorum in the courtroom.” TEX. CODE CRIM. PROC. art. 36.03(c).

                                             10
  Case: 11-70019     Document: 00511916016      Page: 11       Date Filed: 07/11/2012



                                    No. 11-70019

State opposed that motion, the court could have required McCarthy “to make an
offer of proof to justify the exclusion.” Id. art. 36.03(b).
      Dr. Aldred was the first witness to testify at the guilt/innocence stage of
trial; her testimony chiefly entailed identifying her mother’s stolen property. Dr.
Aldred then took a seat in the gallery and the second witness testified. Next, the
third witness, Lieutenant Nolan Smith, began testifying regarding his
investigation of the crime. As Lieutenant Smith identified and described several
crime scene photographs to the jury, Dr. Aldred became upset, began crying, and
left the courtroom. The trial court quickly called a recess and McCarthy’s
counsel moved for a mistrial. Counsel contended that the jury’s observation of
Dr. Aldred’s emotional reaction to the crime scene photographs was extremely
prejudicial to McCarthy’s case. The trial court denied a mistrial. Defense
counsel then invoked the Rule with regard to Dr. Aldred for all purposes, and the
trial court granted that request.
      McCarthy contends that her trial counsel’s decision to allow Dr. Aldred to
remain in the courtroom was objectively unreasonable under Strickland. First,
McCarthy claims that defense counsel could have excluded Dr. Aldred under the
Rule because her testimony could have been affected by hearing the testimony
of other witnesses if she had been recalled to testify. McCarthy also claims that
her counsel unreasonably failed to request that the trial court admonish Dr.
Aldred concerning outbursts during trial. She maintains that no sound trial
strategy can justify her counsel’s decisions not to (a) object to excepting Dr.
Aldred from the Rule or (b) request that the trial court admonish Dr. Aldred
about outbursts.     Lastly, McCarthy asserts that her counsel’s deficiency
prejudiced her because it created an unacceptable risk that impermissible
factors came into play in the jury’s deliberative process.
      The state habeas court rejected McCarthy’s ineffective assistance claim.
First, it concluded that her claim was procedurally barred under Texas law. The

                                         11
  Case: 11-70019    Document: 00511916016      Page: 12   Date Filed: 07/11/2012



                                  No. 11-70019

state court determined that McCarthy had expressly limited her claim to
matters that were in the record on direct appeal; thus, it concluded that she
could have raised those claims on direct appeal, thereby waiving her ability to
raise those claims in her petition for habeas relief under Texas law. See Ex
Parte Gardner, 

, 191 (Tex. Crim. App. 1996) (holding that
petitioner waived the ability to raise a claim in his habeas petition, in part,
because he made no attempt to raise the claim while his direct appeal was
pending, even though he could have raised his claim on direct appeal).
      Further, the state habeas court concluded that even if McCarthy’s claim
was not procedurally barred, she had failed to establish that her counsel’s
decision to waive the Rule as to Dr. Aldred was defective under Strickland. For
instance, the state court indicated that excluding Dr. Aldred from the courtroom
would not have served the main purpose of the Rule—i.e., preventing her
testimony from being materially affected by the testimony of other witnesses.
The state court found that the State had only used Dr. Aldred’s testimony to
identify her mother’s stolen property; thus, the court determined that the
testimony of other witnesses could not have influenced her testimony because
she was the only witness who identified her mother’s property. Further, the
state court concluded that it was reasonable for defense counsel not to have
expected Dr. Aldred to lose her composure at trial. It noted that Dr. Aldred had
been in the courtroom during the first trial where she saw the same evidence
and did not lose control of her emotions. Thus, the court held that defense
counsel’s decision reflected sound trial strategy and that counsel’s representation
of McCarthy was not deficient. Lastly, the court concluded that McCarthy had
failed to establish prejudice from Dr. Aldred’s presence at trial given the brief
nature of her crying, her quick removal from the courtroom, and the fact that the
jury heard from ten witnesses after the incident before they deliberated.



                                        12
  Case: 11-70019      Document: 00511916016         Page: 13    Date Filed: 07/11/2012



                                     No. 11-70019

       The district court denied McCarthy’s federal habeas petition on this claim,
even though the district court rejected the State’s argument that the claim was
procedurally barred under Texas law. The district court determined that the
state court’s order denying McCarthy’s habeas claim on this issue did not
contain an adequate and independent state ground for denying relief. McCarthy,

, at *2-3.3 However, we need not address that issue because
we hold that McCarthy cannot show that reasonable jurists could find debatable
the district court’s conclusion that it was not “necessarily unreasonable for the
[TCCA] to conclude [] that [McCarthy] had not overcome the strong presumption
of competence.” Cullen, 

.
       First, it is not clear that Dr. Aldred could have been excluded from the
courtroom under the Rule if McCarthy’s counsel had moved to exclude her. The
state habeas court appeared to find that Dr. Aldred could not have been excluded
under the Rule, and it explicitly determined that Dr. Aldred’s testimony could
not have been influenced by the testimony of other witnesses due to the limited
nature of her testimony. See Russell v. State, 

, 179 (Tex. Crim.
App. 2005) (“The purpose of placing witnesses under the rule is to prevent the
testimony of one witness from influencing the testimony of another, consciously
or not.”). The state court also found that McCarthy’s counsel had agreed to
waive the Rule as to Dr. Aldred in exchange for the State’s agreement to allow
some of McCarthy’s family members to remain in the courtroom—some of whom
would later testify at punishment. Accordingly, given the uncertainty regarding

      3
         The district court based its conclusion that McCarthy’s claim was not procedurally
barred, in part, on its mistaken finding that the TCCA had rejected the state habeas trial
court’s conclusion that McCarthy had waived her ability to bring this claim in a habeas
petition. McCarthy, 

, at *2. In fact, the TCCA only declined to adopt the
trial court’s finding that McCarthy had waived her ability to bring a habeas claim based on
defense counsel’s decision not to introduce her written statement at punishment; the TCCA
adopted the state trial court’s conclusion that McCarthy had waived her ability to bring a
habeas claim based on Dr. Aldred’s presence at trial. McCarthy, 

, at *1.


                                            13
  Case: 11-70019    Document: 00511916016       Page: 14   Date Filed: 07/11/2012



                                  No. 11-70019

whether Dr. Aldred could have been excluded under the Rule, it was not
unreasonable for the state court to have determined that it was a reasonable
strategical choice for defense counsel to forego attempting to exclude Dr. Aldred
under the Rule in exchange for ensuring that McCarthy’s family could also
remain in the courtroom. Pape v. Thaler, 

, 288 (5th Cir. 2011)
(“When evaluating an ineffective assistance of counsel claim, we afford counsel
the ‘strong presumption’ that counsel’s representation fell within a ‘wide range’
of ‘reasonable professional assistance.’”) (quoting Richter, 131 S. Ct. at 787).
      It was also not necessarily unreasonable for defense counsel to assume
that Dr. Aldred would not lose her composure during trial. Dr. Aldred sat
through McCarthy’s first trial without incident, presumably including portions
of the trial where graphic crime scene photographs were shown to the jury.
Further, after Dr. Aldred began crying and the trial court called a recess,
defense counsel responded appropriately, moving for a mistrial and then
successfully invoking the Rule as to Dr. Aldred for the rest of trial. Considering
all of the circumstances, defense counsel’s decisions not to initially invoke the
Rule as to Dr. Aldred or to request an admonishment regarding outbursts were
not necessarily unreasonable. Cullen, 131 S. Ct. at 1403 (“To overcome [the
presumption that counsel made all significant decision in the exercise of
reasonable professional judgment], a defendant must show that counsel failed
to act ‘reasonabl[y] considering all the circumstances.’”) (citation omitted). Thus,
“it is not debatable that the state court’s resolution of this issue was not
unreasonable,” and we deny a COA. Druery, 647 F.3d at 540; Turner, 481 F.3d
at 298.
                                        III
      For the reasons stated above, Petitioner’s request for a COA is DENIED.




                                        14