Corwin v. Johnson ( 1998 )

Revised August 26, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 97-20890
___________________________
DANIEL LEE CORWIN,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
___________________________________________________
August 7, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Daniel Lee Corwin, a Texas death row inmate, seeks a
certificate of appealability (“COA”) to review the district court’s
denial of his application for writ of habeas corpus. For the
reasons that follow, we deny Corwin's application for a COA.
I.
A. Facts & Procedural History
Corwin was sentenced to death following his state court
conviction for murdering more than one person pursuant to the same
scheme or course of conduct. TEX. PENAL CODE ANN. § 19.03(a)(7)(B)
(West 1994).1 His conviction and sentence were affirmed by the
Texas Court of Criminal Appeals. Corwin v. State, 870 S.W.2d 23
(Tex. Crim. App. 1993) (en banc). The Texas Court of Criminal
Appeals summarized the facts supporting Corwin’s conviction and
sentence, and Corwin has acknowledged that this summary of the
facts is accurate.
Over the course of nine months in 1987 [Corwin]
abducted, sexually assaulted, and killed two women, and
then attempted to abduct, and when he could not, killed,
a third. In July of 1987 he abducted twenty-six year old
Debra Ewing from the Huntsville Vision Center, where she
worked. He apparently drove her to a remote area of
Montgomery County, raped her in the front seat of his
truck, and then strangled her with a ligature of some
sort and stabbed her twice in the chest. In February of
the same year [Corwin] had abducted a seventy-two year
old Alice Martin, who was taking her daily walk along a
farm to market road in Madison County. He apparently
drove her to a more remote area in Robertson County,
raped her in the front seat of his truck, and then
strangled her with a ligature and stabbed her four times
in the back. On Halloween evening of 1987 [Corwin] tried
to force thirty-six year old Mary Risinger into his truck
at a car wash in Huntsville. When she put up a struggle,
he stabbed her in the throat, severing every major blood
vessel in her neck.
At the punishment phase it was shown [Corwin] had
committed similar offenses both before and after the
three offenses in 1987. In 1975 [Corwin] abducted a high
school classmate and drove her in her own car to a gravel
pit, where he raped her. He then forced her out of the
car, slashed her throat, stabbed her in the heart, and
left her for dead. Miraculously, she lived. [Corwin]
was assessed a forty year prison sentence for this
offense. In October of 1988 [Corwin] abducted a Texas A
& M co-ed in her own vehicle and drove her to a park.
There he sexually assaulted her, then tied her arms
around a tree and slashed and stabbed her throat. She
1
When Corwin was convicted, this section was codified at
§ 19.03(a)(6)(B). For purposes of clarity, we will refer to the
new codification--§ 19.03(a)(7)(B)--as the provision under which he
was convicted.
2
also survived. [Corwin] was serving time for this last
offense during the instant prosecution.
Id. at 27.
Corwin filed an application for writ of habeas corpus in the
state trial court, in which he made several claims. The trial
court addressed these claims, made findings of fact and conclusions
of law, and recommended that Corwin be denied habeas relief. Ex
parte Daniel Lee Corwin, No. 89-05-00404-CR-(1) (Tex. D. Ct.
Montgomery Cty. Mar. 10, 1997).
The Texas Court of Criminal Appeals’ opinion issued in April
of 1997, which summarily adopted the trial court’s findings and
conclusions. Ex parte Daniel L. Corwin, No. 33570-01 (Tex. Crim.
App. Apr. 23, 1997) (en banc). The Texas Court of Criminal Appeals
stated that “[t]he trial court’s findings of fact and conclusions
of law are supported by the record and upon such basis the relief
sought is denied.” Id.
In August 1997, Corwin filed an application for federal habeas
corpus relief pursuant to 28 U.S.C.A. § 2254 (Supp. 1998). Corwin
raised the same issues in his federal habeas petition that he
raised in his state petition. The Respondent answered Corwin’s
application and moved for summary judgment. The district court
issued a memorandum and order in September of 1997, granting the
Respondent’s motion for summary judgment and denying both Corwin’s
§ 2254 application and his application for a COA. Corwin v.
Johnson, No. H-97-2667 (S.D. Tex. Sept. 18, 1997). Corwin filed a
timely notice of appeal. He seeks a COA from this Court on eight
3
of the issues he raised in his petition to the district court.
Before discussing the merits of this appeal, we consider the effect
of the recently enacted Antiterrorism and Effective Death Penalty
Act (“AEDPA”) of 19962 on this case.
B. Application of the AEDPA
Corwin filed his § 2254 federal habeas petition on August 13,
1997. The AEDPA was signed into law by the President on April 24,
1996. In Nobles v. Johnson, this Court held that the AEDPA’s
provisions apply to a habeas petition when the habeas petition was
filed after the enactment of the AEDPA. 127 F.3d 409, 414 (5th
Cir. 1997), cert. denied, 118 S. Ct. 1845 (1998). The AEDPA is
therefore applicable in this case.
Under the AEDPA, the petitioner must obtain a Certificate of
Appealability (COA) to proceed with his appeal. A COA will be
issued if the movant makes a substantial showing of the denial of
a constitutional right. 28 U.S.C.A. § 2253(c)(2) (Supp. 1998).
Corwin first challenges this Circuit’s interpretation of the
AEDPA.3 Corwin argues that this Circuit’s interpretation of the
2
Pub. L. No. 104-132, 110 Stat. 1218.
3
The AEDPA provides:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim
--
(1) resulted in a decision that was contrary
to, or involved an unreasonable
application of, clearly established
4
AEDPA’s language violates the Supremacy Clause because it requires
federal courts to give deference to state court decisions regarding
the validity of trial practices under the United States
Constitution.
In this Circuit, provided the state court conducted a full and
fair adjudication of the petitioner’s claims, pure questions of law
and mixed questions of law and fact are reviewed under
§ 2254(d)(1), and questions of fact are reviewed under
§ 2254(d)(2). Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.
1996), cert. denied, 117 S. Ct. 1114 (1997). Under § 2254(d)(1),
“an application of law to facts is unreasonable only when it can be
said that reasonable jurists considering the question would be of
one view that the state court ruling was incorrect.” Id. at 769.
“In other words, we can grant habeas relief only if a state court
decision is so clearly incorrect that it would not be debatable
among reasonable jurists.” Id.
Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on
an unreasonable determination of the
facts in light of the evidence presented
in the State court proceeding.
(e)
(1) In a proceeding instituted by an application
for a writ of habeas corpus by a person in
custody pursuant to the judgement of a State
court, a determination of a factual issue made
by a State court shall be presumed to be
correct. The applicant shall have the burden
of rebutting the presumption of correctness by
clear and convincing evidence.
28 U.S.C.A. § 2254 (Supp. 1998).
5
Corwin argues that these interpretations of § 2254 are
unconstitutional and that all state court determinations of federal
constitutional issues in habeas proceedings should be subject to de
novo review by the federal courts. Even if we agreed with this
conclusion--which we do not--one panel of this Court may not
overrule another panel. See United States v. Taylor, 933 F.2d 307,
313 (5th Cir. 1991). As a result, Corwin’s appeal must be reviewed
in accordance with this Circuit’s interpretations of the AEDPA, as
established in Drinkard. Drinkard, 97 F.3d at 769.
We now turn to a consideration of the issues Corwin raises in
his application for a COA.
II.
A. Corwin’s Absence from the First Day of Jury Selection
Corwin first argues that his Sixth Amendment right to the
effective assistance of counsel and his Fourteenth Amendment right
to a fair trial were violated because he was not physically present
in the courtroom during the preliminary qualification of jurors.
Corwin was absent from the initial day of jury selection, during
which exemptions and excuses were considered and the venirepersons
were asked to answer a questionnaire. Corwin raised this argument
in his state application for habeas corpus. The state trial court4
4
In considering Corwin’s state habeas petition, the trial
court made the following findings of fact:
19. The Court judicially knows and notices that
potential jurors in Montgomery County are permitted
to be excused or exempted by returning their jury
summons to the clerk, indicating the type of
6
concluded that Corwin had waived any error regarding his absence
from the proceeding because after he appeared for voir dire, he
failed to object to the disqualification of any juror while he was
absent from the courtroom. Ex parte Daniel Lee Corwin, No. 89-05-
00404-CR-(1), at 7 (Tex. D. Ct. Montgomery Cty. Mar. 10, 1997).
The trial court alternately determined that Corwin’s absence from
the preliminary jury qualification proceeding constituted harmless
error and that Corwin had no right to be at the proceeding because
his presence would not have contributed to the fundamental fairness
of the proceeding. The state trial court’s conclusions were
summarily adopted by the Texas Court of Criminal Appeals. Ex parte
Daniel L. Corwin, No. 33570-01 (Tex. Crim. App. Apr. 23, 1997) (en
banc). The district court concluded that Corwin’s failure to
object to the disqualification of jurors in his absence constituted
an independent and adequate state ground which procedurally barred
federal review of his claim.
If a state court decision rejecting a federal habeas
petitioner's constitutional claim “rests on an adequate
and independent state procedural bar, and does not fairly
appear to rest primarily on federal law, we may not
exemption to be exercised or providing
documentation for an excuse. Said actions are
routinely completed without participation by
attorneys, parties, and judges in the affected
cases.
20. The excuse of legally exempted jurors involves no
discretion on the part of the judge or any affected
party.
Ex parte Daniel Lee Corwin, No. 89-05-00404-CR-(1), at 5 (Tex. D.
Ct. Montgomery Cty. Mar. 10, 1997).
7
review the merits of the federal claim absent a showing
of cause and prejudice for the procedural default, or a
showing that our failure to review the claim would result
in a complete miscarriage of justice."
Boyd v. Scott, 45 F.3d 876, 879-80 (5th Cir. 1994) (quoting Young
v. Herring, 938 F.2d 543, 546 (5th Cir. 1991)) (other citations
omitted).
Corwin challenges the district court’s ruling on a number of
grounds. Corwin first argues that because the contemporaneous
objection rule is not regularly followed in Texas, the procedural
bar fails. See Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995)
(holding that the presumption that a state procedural rule may bar
review of a claim for federal habeas relief may be rebutted by the
fact that the state procedural rule is not strictly or regularly
followed). The Supreme Court has held that “a state procedural
ground that is strictly or regularly applied evenhandedly to the
vast majority of similar claims” suffices as an adequate procedural
bar. Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995) (citing
Dugger v. Adams, 489 U.S. 401, 410 n.6, 109 S. Ct. 1211, 1217 n.6,
103 L. Ed. 2d 435 (1989)). This Circuit has held that the Texas
contemporaneous objection rule is strictly or regularly applied
evenhandedly to the vast majority of similar claims, and is
therefore an adequate procedural bar. Id. Corwin’s first argument
therefore fails.
Corwin also argues that the trial court did not clearly state
that it was dismissing the issue due to a procedural default. We
disagree. The trial court found that Corwin had not objected to
8
being absent from the preliminary jury qualification. In addition,
regarding Corwin’s absence from the proceeding, the trial court
found that Corwin “failed to object to any venireperson and waived
any error.” Although the trial court based its ruling on two
alternative grounds, this does not detract from the court’s primary
holding--that Corwin’s failure to object constituted a procedural
default. This argument therefore fails as well.
Corwin further contests the procedural bar by arguing that the
Court of Criminal Appeals did not “expressly adopt the written
findings and conclusions of the trial court, but merely held that
such findings and conclusions” were supported by the record. When
the last state court decision regarding a claim summarily affirms
a lower court judgment denying relief, the federal court looks to
the last explained decision to determine whether it was decided
primarily upon a state procedural bar. Ylst v. Nunnemaker, 501
U.S. 797, 802-04 & n.3, 111 S. Ct. 2590, 2595-96 & n.3, 115 L. Ed. 2d
706 (1991). Corwin argues that this panel cannot look through the
opinion of the Texas Court of Criminal Appeals to the trial court’s
conclusions because the Court of Criminal Appeals chose language
different from that of a previous court to express its summary
affirmance. It is inescapable that the Court of Criminal Appeals
summarily affirmed the state trial court’s findings of fact and
conclusions of law, which held that Corwin cannot raise this
argument due to a procedural default. Corwin’s semantic
distinction is meritless.
Finally, Corwin argues that because the trial court provided
9
alternative holdings, including a decision denying the claim on its
merits, the procedural bar is no longer operative. See Ylst, 501
U.S. at 801, 111 S.Ct. at 2593. Corwin ignores the fact that the
trial court made it clear that its merits discussion was in support
of its alternative holding. It is clear in this Circuit that
alternative rulings do not operate to vitiate the validity of a
procedural bar that constitutes the primary holding. Rogers v.
Scott, 70 F.3d 340, 342 (5th Cir. 1995), cert. denied, 517 U.S.
1235 (1996).
The Petitioner makes no arguments that would otherwise
preserve his right to raise this issue in a habeas petition. In
addition, the Petitioner failed to show that a federal court’s
unwillingness to consider the claim will result in a complete
miscarriage of justice. Because Corwin has not claimed actual
innocence, the “fundamental miscarriage of justice” exception is
inapplicable. See Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)
(confining the fundamental miscarriage of justice exception to
instances in which “the petitioner shows, as a factual matter, that
he did not commit the crime of conviction”).
Not only does Corwin not argue innocence, he does not show any
error. Corwin speculates that his presence may have resulted in a
different jury pool, but he does not assert that the jury chosen
was improper. “The defense has no constitutional right to be
present at every interaction between a judge and juror.” United
States v. Gagnon, 470 U.S. 522, 526 (1985). The Due Process
Clause guarantees a defendant "the right to be present at any stage
10
of the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure."
Kentucky v. Stincer, 482 U.S. 730, 745 (1987). In Gagnon, the
Supreme Court explained that the "presence of a defendant is a
condition of due process to the extent that a fair and just hearing
would be thwarted by his absence, and to that extent only." 470
U.S. at 526 (internal quotations omitted).
We conclude that Corwin has not made a substantial showing of
deprivation of a constitutional right, and is not entitled to a COA
on this issue.
B. Excusal of Potential Juror
Corwin’s second claim is that the trial court improperly
excused a potential juror in violation of Witherspoon v. Illinois.5
The trial court excused Gloria Dawn Northam was excused because she
expressed a reluctance to impose the death penalty. In considering
the propriety of excluding a juror, “the decisive question is
whether the juror’s views would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.” Mann v. Scott, 41 F.3d 968, 980 (5th
Cir. 1994) (internal quotations and citations omitted).
Corwin argues that Northam should not have been excluded
because she did not explicitly state that she would not impose the
5
391 U.S. 510, 522 (1968) (holding “that a sentence of
death cannot be carried out if the jury that imposed or recommended
it was chosen by excluding veniremen for cause simply because they
voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction”).
11
death penalty.6
6
On voir dire, Northam made the following statements:
Q. And, then later, in response to Mr. Speers’
questions about whether you personally could render
a decision that might result in the death penalty,
if I’m not mistaken, you began to say that that
would be very difficult for you; is that true?
A. Yes.
Q. Then, I think I heard you say also, that in your own
mind, you would probably change the burden of proof, in
other words, rather than making Mr. Speers or the State
prove its case beyond a reasonable doubt, that you, in
your own mind, would require a heavier burden than that
before you could answer yes to those questions?
A. Yes. More than reasonable.
* * *
Q. Okay. Now, what is your feeling about that? I’m
just clarifying for you that that’s the law as I
anticipate it would be submitted to you. Do you
still have those same feelings, that you are --
notwithstanding those instructions and that law,
that you would apply some other standard? Of
course, I’m referring to what you said about having
to be absolutely convinced, or words to that
effect, and that you would not follow the
reasonable doubt standard.
A. That’s what gives me a problem. Well, I would
really have to be very convinced.
Q. Does that mean you would be, would have to be
convinced beyond all doubt, or what does it mean?
A. Beyond all doubt to myself, yes.
Q. Well, I just want to make sure I understand whether
you’re willing -- now, bear in mind it’s, I would not, and the law
does not require persons who could not follow the law to be made
part of the jury. So, that if you tell me now you couldn’t follow
the law, then I wouldn’t put you in the position where you had to
violate your conscience or to cause a terrible problem for the
lawyers or the county.
12
A. The law as defined, I would have to follow my own
conscience, which might be in contradiction to
that.
Q. You say it might be in contradiction, but if I
understand you correctly, your conscience would be
in contradiction because you told us, I believe,
that beyond a reasonable doubt is not enough. It
would have to be stronger than that?
A. Right, yes.
Q. That’s what you’re telling me?
A. Yes.
Q. Okay.
* * *
Q. All right, and what this all stems from, this
entire discussion, is the fact that when you were
asked yesterday if you personally could participate
in decisions that might cause the death penalty to
be imposed, as I understand you, you told us that
you felt that you could not at one point?
A. Right.
Q. You felt that, whereas you didn’t have a huge
objection against the Capital Murder law, when it
came down to you personally --
A. Right.
Q. -- as a matter of conscience, if I’m not mistaken -
-
A. Uh-huh.
Q. -- that you did not think you personally could do
it?
A. Right.
Q. Is that how you still feel today?
A. I still feel that that’s a big question with me and
I cannot answer it absolutely for you, that I could
13
Northam’s statements on voir dire repeatedly expressed her
discomfort, if not unwillingness, to apply the appropriate legal
standard for imposition of the death penalty. Instead, she
expressed a conviction to apply her own higher standard of proof,
in keeping with her conscience. The state trial court found that
Northam would “require a higher burden of proof to answer the
special issues than the law required, and would be unable to
faithfully and impartially apply the law.” Ex parte Daniel Lee
Corwin, No. 89-05-00404-CR-(1), at 6 (Tex. D. Ct. Montgomery Cty.
Mar. 10, 1997).
In Drew v. Collins, we held that where a potential juror
“stated on numerous occasions during voir dire questioning that he
would apply a standard higher than what he understood as the
reasonable doubt standard,” a trial court “could correctly
determine that [the potential juror’s] insistence on such a high
burden of proof would substantially impair his performance as a
juror.” 964 F.2d 411, 417 (5th Cir. 1992). Given Northam's
response to questioning in voir dire, the state trial court
reasonably applied the law to the facts and federal habeas relief
is not appropriate. Corwin is not entitled to a COA on this issue.
indeed do that.
Q. All right.
A. And that’s after a lot of thought that I realized
that I don’t know that I could.
14
C. The Constitutionality of Texas Penal Code § 19.03(a)(7)(B)
Corwin next argues that Texas Penal Code § 19.03(a)(7)(B) is
unconstitutionally vague under the Eighth and Fourteenth Amendments
to the United States Constitution. This provision makes it a
capital crime to murder more than one person during different
criminal transactions, where the murders are committed pursuant to
the same scheme or course of conduct. TEX. PENAL CODE ANN.
§ 19.03(a)(7)(B) (West 1994).
The Texas Court of Criminal Appeals addressed this question in
Corwin’s direct appeal. The Court of Criminal Appeals rejected the
idea that the statute “is indefinite simply because it fails to
specify that the different transactions during which one or more
person [sic] are killed must occur over a definite period of time
or in a definite location.” Corwin v. State, 870 S.W.2d 23, 27
(Tex. Crim. App. 1993).
In Anderson v. Collins, this Court considered the
constitutionality of a related section of the Texas Penal Code’s
capital sentencing provisions--§ 19.03(a)(2)--which makes it a
capital crime to commit a murder “in the course of committing”
enumerated felonies. 18 F.3d 1208 (5th Cir. 1994). After
considering Supreme Court precedent, this Court found that “‘in the
course of committing . . . robbery’ is grounded in the objective
proof of the particular case; it does not appeal to the
sensibilities of the jurors or invite imposition of a subjective
standard.” Id. at 1222. This Court further found that “both the
nature of the phrase and the practice of Texas courts prevent the
15
jury from being given unbridled discretion.” Id. The panel
distinguished the provision’s language from impermissibly vague
phrases such as “outrageously or wantonly vile, horrible or
inhuman.” Id. Although the Anderson panel admitted that there was
room for uncertainty with respect to the temporal proximity or the
factual connection between the crimes associated according to the
statutory language, it concluded that the Texas Court of Criminal
Appeals had adequately narrowed such discretion in its
interpretation and construction of the language. Id. at 1222-23.
Similarly in this case, the sentencing provision itself--
killing more than one person during different criminal transactions
where the murders are committed pursuant to the same scheme or
course of conduct--is much more specific than language previously
rejected by the Supreme Court--“outrageously or wantonly vile,
horrible or inhuman.” See Godfrey v. Georgia, 446 U.S. 420, 432
(1980). The language of § 19.03(a)(7)(B) operates like an element
of the substantive offense. In addition, the Texas Court of
Criminal Appeals’ interpretation and construction of the provision
is sufficiently narrow to eliminate the possibility of
unconstitutional applications. See Corwin, 870 S.W.2d at 27-29.
The Supreme Court has held that “[f]or purposes of vagueness
analysis, . . . in examining the propositional content of a factor,
our concern is that the factor have some ‘common-sense core of
meaning . . . that criminal juries should be capable of
understanding.’” Tuilaepa v. California, 512 U.S. 967, 975 (1994)
(citing Jurek v. Texas, 428 U.S. 262, 279 (1979) (White, J.,
16
concurring)). We are satisfied that § 19.03(a)(7)(B) has such a
common-sense core of meaning that juries are able to comprehend.
Corwin is not entitled to a COA on this issue because he has not
made a substantial showing that the decision on the merits by the
state appellate court is "contrary to clearly established federal
law, as determined by the Supreme Court.” Carter v. Johnson, 110
F.3d 1098, 1103 (5th Cir. 1997), vacated in part on other grounds,
118 S. Ct. 409 (1997).
Relatedly, Corwin argues that due to the vagueness of the
statutory sentencing language, the evidence is insufficient to show
that he committed serial capital murder as defined by the statute.
Corwin concedes that the evidence is sufficient to support a
finding that he killed three women in the manner described by the
Texas Court of Criminal Appeals, but argues that the evidence
cannot be sufficient in light of the unconstitutional vagueness of
the statutory language. Because we have already rejected Corwin’s
vagueness argument, that assertion alone cannot support his
insufficiency of the evidence argument. Corwin’s application for
a COA on this issue is denied.
D. Introduction of the Painting and the Prosecution’s
Allegedly Prejudicial Statements
Finally, Corwin argues that the introduction of a painting by
Corwin and the Prosecutor’s accompanying statements deprived him of
his constitutional rights to a fair trial and due process of law.
Corwin painted a vivid tempera-on-butcher paper painting, which is
six feet tall, at the request of a vocational instructor who worked
17
at the prison. The instructor requested the picture as a Halloween
decoration, and he displayed it on his door. The painting depicts
a serpentine body with a human torso. The figure’s grotesque face
has fangs and its ears are composed of snake-like fangs and fish
fins. One hand of the figure holds a bloody axe and the other
holds a detached scalp. Near the serpent figure is a severed
bloody arm.7
The prosecution introduced the painting as evidence of
Corwin’s future dangerousness. The State argued:
. . . Presented the, what I call the self portrait. A
real indication . . . I submit to you this shows what
[Corwin] comes up when he’s asked to create something on
his own devices. Not following or copying some model.
He comes up with a monster. That creature lives within
[Corwin]. We don’t have any way available to us to
exorcise [sic] that demon from within [Corwin]. But we
certainly have a way, and you have a way, by answering
yes and yes to those special issues of exorcising [sic]
[Corwin] from our society. I submit that’s what you
should do.
Corwin did not object to the Prosecutor’s statements at the time
they were made. The Texas Court of Criminal Appeals concluded that
the painting was relevant to the second special issue--whether
Corwin was a continuing threat to society. Other members of the
Texas Court of Criminal Appeals concurred in the opinion,
concluding that the admission of the painting was in error, but
constituted harmless error.
On habeas review, the trial court concluded that the admission
of the painting was proper. The trial court held in the
7
The painting is reprinted at Corwin v. State, 870 S.W.2d
23, 40 (Tex. Crim. App. 1993) (en banc).
18
alternative that its admission was harmless beyond a reasonable
doubt.
We need not decide whether admission of the painting was
error. Assuming without deciding that it was error to admit the
painting, we agree with the district court that the error was
harmless. Corwin is not entitled to federal habeas relief due to
trial error unless “the error ‘had substantial and injurious effect
or influence in determining the jury’s verdict.’” Brecht v.
Abrahamson, 507 U.S. 619, 637, 637-38 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)). The evidence against
Corwin was overwhelming. As profiled above, the jury heard strong
evidence that Corwin killed three different women in a brutal,
gruesome manner. In light of the extensive and convincing evidence
of his guilt, we conclude that the introduction of the painting,
even coupled with the Prosecutor’s statements, did not have a
“substantial and injurious effect or influence in determining the
jury’s verdict.” Because Corwin has not made a substantial showing
of the denial of a constitutional right, he is not entitled to a
COA on this issue.
E. The Prosecutor’s Statement Referring to the
Potential of Additional Undiscovered Victims
In his closing argument, the Prosecutor stated: “I think you
can reasonably assume from the evidence that there are more dead
women out there that we just haven’t found out about.” At Corwin’s
objection, the trial court ordered the jury to disregard the
comment. Corwin claims that the Prosecutor’s remark was so
19
prejudicial that it was incapable of being cured by an instruction.
The Texas Court of Criminal Appeals concluded on direct appeal that
the instruction was adequate to cure the error.
As noted above, the evidence of Corwin's multiple crimes was
overwhelming. Given this evidence and the presumption that jurors
follow their instructions, the Texas Court of Criminal Appeals
reasonably applied the law to the facts and federal habeas relief
is not appropriate. See Green v. Johnson, 116 F.3d 1115, 1119-20
(5th Cir. 1997). Corwin is not entitled to a COA on this issue.
F. Collective Prejudice of Errors that are Individually Harmless
Finally, Corwin argues that even if they don’t individually
constitute a substantial showing of deprivation of a substantial
constitutional right, the introduction of the painting, the
accompanying statements by the prosecution, and the statement
regarding the potential of additional victims collectively make a
substantial showing that he was deprived of a fundamentally fair
trial. Although there may be cases in which a collection of errors
are individually harmless but collectively deprive the defendant of
a fair trial, this is not such a case. Corwin fails to demonstrate
how these errors combine to rise to the level of a substantial
showing of the denial of a constitutional right. Corwin is not
entitled to a COA on this ground.
CONCLUSION
For reasons discussed above, we deny Corwin's application for
a COA and vacate the stay of execution granted by this Court.
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